Copyright Infringement for Network Software

Game maker Blizzard sued bot maker MDY Industries for copyright infringement because MDY sells subscriptions to bots that allow Blizzard's customers to play the first few levels of the game automatically. This capability was in demand by gamers who like to skip to the really exciting gameplay, I guess, without spending a lot of time on the first levels that they feel are uninteresting after playing them too many times or if they are too lazy to master the first levels and want to cheat. Using bots is against Blizzard's published terms of use of its game software.

I think that copyright law should be about making copies, not about rules for using legitimately purchased copies.  I agree with Blizzard that if they set terms of use for the network servers and their customers are violating them using the client software that Blizzard can terminate access to those customers. I disagree that copyright law has anything to do with it.

Should it be illegal to create software for the explicit purpose of helping a person violate one or more specific agreements? Maybe. This can cause an undue burden on the violated party to enforce their agreement. Customers who don't want to abide by the agreement should just cancel it entirely and stop doing business with the other party instead of circumventing it.

Should it be illegal to create software that can be used by a person to violate any agreement? This one seems too broad and presupposes a fixed set of agreements into which people may enter. This is not the case. Tools are routinely used for something other than their intended purpose and this should not create any liability for the manufacturer or the software company. Even if a tool has been clearly created for a specific purpose, the software industry standard is to disclaim any liability for its use. So when people use it for some purpose, it's those people who should be sued for violating the agreement, not the makers of the tools they used.

Should it be illegal to create software for the explicit purpose of helping a person violate one or more laws? Maybe. A hardware analogue would be: should it be illegal to create hardware for the explicit purpose of helping a person violate one or more laws? My first thought was cars and guns but these are not good examples; cars guns aren't made specifically for the purpose of breaking laws - laws are made to regulate the use of cars and guns. Lockpick kits? These are made for picking locks but is there a law against that? I don't know. What if a person needs to pick a lock to get into his own property because he accidentally locked the key inside and prefers not to drill out the entire lock? Dubious but possible. This actually happened to me and I chose to drill out the lock.  But then should a drill be illegal to use since it allows people to break and enter into property?  Clearly this line of thinking doesn't result in a sensible rule.

Blizzard should have sued for violating their terms of service, not their copyright.

However, a judge, after seeing numerous cases of people being convicted for using a specific set of tools to commit a specific crime or tort, and not seeing any other lawful use for those tools at all, even after making a determined effort to uncover lawful and non-damaging uses, may order the manufacturer of the tools to pay a fine for creating something that has been used exclusively to hurt others. That fine should not be in the amount of damage caused because that is the liability of the individuals who used the tool. That fine should be for the amount of profits made by selling that tool from its first sale until the day the fine is ordered. The fine should be applied towards the justice system operating funds.  The company is free to continue creating tools, and should not be ordered not to make this tool or that. But after having to give up the profits -- not gross income, just profits -- from making that tool, it may be prompted to re-evaluate if it wants to continue making it, or if it wants to restrict who can buy it from them in order to ensure that it isn't used to damage other people. Such actions will not free it from future liability for items sold after the fine is ordered, but they may prevent damage from being caused by their tool which would allow them to continue making it without being fined.