Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourt of Appeals

[Hyman Rosen]

On 12/21/2010 10:02 AM, Alexander Terekhov wrote:
> But what does a "condition" to GIVE written offer has to do
> with rights spelled out in 17 USC 106 in the first place?

Because they are conditions on how the work may be copied
and distributed, and are therefore part of the exclusive
right of the copyright holder under the Copyright Act. Just
as the court decision said:
<https://www.eff.org/files/MDY_opinion.pdf>
    For instance, ToU § 4(D) forbids creation of derivative works
    based on WoW without Blizzard’s consent. A player who violates
    this prohibition would exceed the scope of her license and
    violate one of Blizzard’s exclusive rights under the Copyright
    Act. In contrast, ToU § 4(C)(ii) prohibits a player’s disruption
    of another player’s game experience. Id. A player might violate
    this prohibition while playing the game by harassing another
    player with unsolicited instant messages. Although this conduct
    may violate the contractual covenants with Blizzard, it would
    not violate any of Blizzard’s exclusive rights of copyright.