4 January 2011

Warden calls DMCA for help against briskly Glider

Blizzcon 2008photo © 2008 Oracio Alvarado | more info (via: Wylio)

I must take the chance to win World of Warcraft (WoW) players as readers of the Reguligence Weblog! Believe it or not, but in MDY Industries vs Blizzard Entertainment and Vivendi Games the US Court of Appeals for the ninth Circuit delivered an interesting decision that deals with some copyright aspect of this successful role-playing game. In particular, the Court had to determine whether MDY’s level-up enabling software called Glider infringed Blizzard’s copyright and other rights under DMCA’s sections 1201 et seq.

Everyone who has played either of Blizzard’s computer games knows that they are based on a so called “leveling-up“. The latter is both, desirous and quite time-consuming for players. Since Glider’s purpose is to play WoW for its owner and level him or her up, it represents an add-on computer game bot to WoW. On the grounds of their End User License Agreement (“EULA”) and Terms of Use (“ToU”) as well as on the introduction of Warden, an anti-bot technology, Blizzard served MDY with a cease-and-desist letter demanding that MDY immediately ceased selling Glider. As a response, MDY brought an action for declaratory judgment to establish that Glider does not infringe Blizzard’s copyright or other rights.

In the first instance the District Court for the District of Arizona found MDY liable for secondary copyright infringement, violations of DMCA §§ 1201(a)(2) and (b)(1), and tortious interference with contract.

However, the 9th Circuit reviewed de novo and found that

  • the ToU’s forbiddance against bots were covenants rather than copyright-enforceable conditions, hence MDY did not infringe Blizzard’s copyright, and
  • since Warden effectively controlled access to WoW’s dynamic non-literal elements, MDY was liable under § 1201(a)(2) with respect to WoW’s dynamic non-literal elements.

In spite of the above, the 9th Circuit denied MDY’s liability under § 1201(b)(1) for Glider’s circumvention of Warden since Warden did not effectively protect a right of Blizzard under the Copyright Act.

The Court reasoned this result with the textual differences between §§ 1201(a) and (b).

§ 1201(a)(2) prohibits the circumvention of a measure that “effectively controls access to a work protected under this title,” whereas § 1201(b)(1) concerns a measure that “effectively protects a right of a copyright owner under this title in a work or portion thereof.”

Accordingly, the 9th Circuit read § 1201 (a) as extending a new form of protection distinct from traditional copyright infringement, i.e., the right to prevent circumvention of access controls to copyrighted works.

Finally, why is this decision of a legal significance?

I suggest that we honour it for its clear-cut between § 1201’s two distinct types of claims.

Last but not least, it should read like a warning to all developers of computer game bots: creators of computer games are given an extra weapon to fight you!


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Comments (1)

  1. 23 February 2011

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