MDY v. BLIZZARD

[Alexander Terekhov]

http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000011049
(Opinion for: MDY INDUSTRIES, LLC V. BLIZZARD ENTERTAINMENT, INC.,
09-15932)

The question of copy ownership aside, the court rejected the 
copyright claim and held: 

"Were we to hold otherwise, Blizzard — or any software copyright
holder — could designate any disfavored conduct during software
use as copyright infringement, by purporting to condition the
license on the player's abstention from the disfavored conduct.
The rationale would be that because the conduct occurs while
the player's computer is copying the software code into RAM in
order for it to run, the violation is copyright infringement.
This would allow software copyright owners far greater rights
than Congress has generally conferred on copyright owners."

It seems the court here ruled that certain requirements in a
software license may be construed as "covenants" rather than
"conditions" (or license scope limitations like e.g. a limit
on number of copies to be made). In other words, the WoW
license may say, in a nutshell, "We license you the right to
use this software so long as you don't use a bot." (Among other
things). The court considered that a "covenant" of a contract,
not a "condition" of the license (and not a license scope
limitation). What impact could that reasoning have on the
copyleft-like licenses? The copyleft basically says, "We
license you the right to distribute verbatim or modified
versions of this software so long as you provide source code."
Could a court following the MDY precedent construe the
"source code" requirement as a "covenant" and not a
"condition", thereby rendering the copyleft ineffective? I
see no reason why not...

regards,
alexander.

-- 
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