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Wow. That's a world of infringement. Or is it?

By Anthony Verna, Esq.

Blizzard Entertainment (a video game company that has made games such as "Starcraft," "Warcraft" and the hugely popular "World of Warcraft") is suing a person in Arizona for making software that allows the game to be played . . . automatically, so that no person has to be around for a player's character to be in the game, interact with the game, and play. (Why would anyone want a game to be played automatically? Money.)

There are two main issues here: Copyright law (infringing the copyright of Blizzard Entertainment - do not forget that computer programs are treated as literary works in copyright law) and a violation of the End User License Agreement (which governs software when you install it on your computer - and we can fully admit that you don't read it).

I am reminded of a copyright case that is 25 years old and others that have followed it. According to Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 (N.D. Ill. 1982), a video game has two distinct components: the program code and the audiovisual display components. (At the time, both could be registered so a computer program could have two copyrights - but this is not the case today. Today, only one copyright - either the code OR the audiovisual work - may be registered in a computer program.) Artic International bought arcade machines (like "Pac-Man" and "Galaxian") and altered the circuitry in order to change the games. The court in Midway ruled that the alteration is a violation of Midway Manufacturing's copyrights. This was because the works were fixed in the circuity of the machines and repeated themselves.

Eventually, the world was introduced to the Game Genie. What's the Game Genie? It's a device that, for console video games (think Nintendo and Playstation instead of PC), allows the player to cheat by entering codes at a start-up screen. The device does NOT alter the video game code, but it changes the results by intercepting the while it is being processed by the device, changing the outcome. So it does not fall under the same situation as the Midway case. What do you do if you are Nintendo? Of course, you file a lawsuit against the makers of the Game Genie - and you claim that the Game Genie infringes the copyrights of the games you make. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. (9th Cir., 1992) states that a user owns the copy of the work and can do what he or she wants to with this one work - what copyright law defines as fair use. Game Genie does not alter the code of the product, but it allows the owner of the copy to experiment with the work.

Going back to the original situation - under the two cases, can a person create software to play a game automatically (called a "bot")? It almost seems as if that is possible under copyright law - as the owner of the copy of the work can experiment (as long as the code is not changed). The facts here are quite different than either case, so it is possible that a different decision could be made down the line.

Full post as published by Trademark, Copyright and Entertainment Law Forum on March 31, 2008 (boomark / email).