Is Mere Breach of a EULA Automatically Copyright Infringement
Blizzard Entertainment, the makers of World of Warcraft recently won a legal battle against MDY Industries, the makers of the "Glider" software that allows players of the game to automate the advancement of their World of Warcraft characters. In other words, software that would allow users to continue to play WOW when they are not actually sitting in front of their computer.
As is standard post-Grokster, Blizzard alleged that MDY is guilty of contributory and vicarious infringement because it is inducing or encouraging direct infringement of end users. MDY claimed that, if anything, use of its software by end users was a mere breach of contractual covenants of the EULA, not a direct copyright infringement by the user. The court held that (a) the software was licensed not sold, despite being sold over the counter; and (b) violation of conditions in the EULA and accompanying Terms of Use constituted a breach of the scope of the license and hence copyright infringement.
This decision could have significant implications because the terms in the Blizzard EULA and Terms of Use are pretty standard for software, software as a service, and Websites. Read broadly, this could turn a number of garden variety breach of contract lawsuits and turn them into copyright infringement lawsuits (of course we might also get further guidance as to whether these are actually contracts of adhesion).
