Blizzard vs MDY: July Ruling
An excellent explanation of the ruling by a member of the Something Awful forums:
Truthfully, OpenKore wouldn't get charged with the second/third counts. The first one applies to OpenKore, although I don't think that this project would be charged in court. VisualKore would get torn a new fiscal asshole, though.Count I - Tortious Interference
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This isn't related to the EULA at all. Tortious Interference is when one party interferes with or meddles with the business of another partym beyond a certain reasonable point.
In this case, MDY interfered with Blizzard's business by explicitly encouraging users to violate their terms of service with Blizzard. It is indicated in the judgement that MDY doesn't deny the fact that users violate their agreement, and the judge finds intent in the fact that MMOGlider actively advertises itself as a program that will help users do that.
Contributory and Vicarious Copyright Infringement (Counts II-III)
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Contributory infringement is very similar, in some ways, to Tortious Interference only instead of contract violating it is about copyright violating.
Vicarious infringement is when you profit from someone's infringement and do nothing to put a stop to the infringement.
So, the first question is, do USERS of Glider infringe copyright? If they don't, then there's no Contributory Copyright Infringing!
According to the 9th Circuit's ruling in 1993 in a case called MAI Sys. Corp. v Peak Computer Inc, copying software to RAM constitutes "copying" for purposes of section 106 of the Copyright Act. Agree with it or not, this precedent was set over a decade ago and NOT in this case. So if this copying to RAM is not allowed by an agreement or Copyright Law directly, it is considered an infringement in the 9th Circuit jurisdiction.
That's okay, because the users are entitled to this copying by the user agreement They might be breaking their user agreement, but not the copyright!
This is true, with an exception established in 1999 during Sun Microsystems v. Microsoft Corp. If the agreement is considered "limited in scope", and the user acts outside of this scope, then the copyright holder is entitled suing for infringement.
So… is the EULA limited in scope?
Yes! There are explicit parts of the agreement that state "IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO INSTALL, COPY, OR USE THE GAME." There are also a lot of other restrictions in permitted use listed in the EULA and other terms players agree to. There's more stuff about the difference between "Separate Contractual Covenenants" and "Scope of License" but that is a little difficult to easily explain. Suffice it to say, the judgement is that it is "Scope of License" and therefore, a breach of the license means that copyright is being violated.
Users copy copyrighted software into RAM, the EULA is limited in scope (violations of this scope violate copyright), the users that use Glider CLEARLY violate that agreement, so the users are violating copyright by using Glider.
