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

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.

Broken Dreams

Imagine that you are a big fan of a presidential candidate and that you wanted to show your support for this presidential candidate. What would you do to show that you are a big supporter? Wear buttons? T-shirts? Show up at rallies? How about print t-shirts with the candidate's name on them in the fonts of various baseball teams.

There was a website set up by a Barack Obama supporter called obamaofdreams.com that did just that. On the site, various t-shirts came in the styles of Major League Baseball teams. According to the creator of the site, Morris Levin (scroll down to see the reference), “One of my underlying goals is to marry Obama with mainstream culture through baseball, and I’d like to think that everyone here can appreciate the results, regardless of your political affiliation."

The website, however, is now closed.

What happened? Quite simply, an attorney contacted Levin contending that Levin violated the league's trademarks.

Before you continue reading, please click on the last link to take you to thesmokinggun.com's article on the site (it also has a few examples of the t-shirts). Did you read it? Good.

Thesmokinggun.com brings up two different thoughts without probably realizing it: 1) distinctiveness of trademarks and 2) transformation of trademarks.

Both ideas in trademark law underscore the biggest philosophy - consumer confusion. Consumers must be able to understand the source of goods and services and the quality of those goods or services - else trademarks fail as a system.

Here, if Levin's t-shirts are so transformative that consumers can tell that one of the t-shirts does not come from a baseball team - even if the marks used are so distinct - then it can be argued that his marks do not infringe or dilute the trademarks of baseball teams. On Levin's side is that certainly, baseball teams do not routinely print t-shirts of political figures in their own fonts. On baseball's side is that the marks are so distinct that those fonts are only representative as a source of goods from a baseball team. Plus, baseball teams make t-shirts (as well as many other kinds of clothing). It's a difficult argument, but there arguments for both sides.

One other issue - is a font a trademark? Generally, I would answer that a font is not a trademark. However, many of these teams have operated for many years using the same font and the same (or similar) colors. At some point, those fonts are associated with that team and with that team only.