The Strange Copyright World of Warcraft

The trial court has handed down its summary judgment opinion in MDY Industries, LLC v. Blizzard Entertainment, Inc., involving the multiplayer online role-playing game "World of Warcraft" and a bot program known as WowGlider, created by declaratory judgment plaintiff. WowGlider plays WoW while the player is away from his or her computer, thereby permitting the player to advance more quickly than he or she otherwise could. WoW's owners didn't like this, claiming it violated terms of use and the end user license. Blizzard found out about the activity through its "Warden" spyware program, discussed here in Wikipedia, and in the opinion at pages 17-20. Blizzard took a page out of the Godfather by sending representatives to MDY owner Michael Donnnelly's home and telling him they would file suit the next day against MDY and Donnelly unless he agreed to stop selling the program. About 100,000 copies of the program have been sold, as compared to the 10 million active players of WoW. Not intimidated, Donnelly filed a declaratory judgment action later that day. Blizzard filed a counterclaim, charging contributory infringement and vicarious liability.

The court held for Blizzard on the copyright claims (No. CV-06-2555-PHX-DGC (David Campbell, Judge, July 14, 2008)), available here. On the DMCA claims, the court granted MDY's motion that the Warden spyware did not qualify as controlling access within the meaning of 17 USC 1201(a)(2), but denied summary judgment on Blizzard's 1201(b)(1) claim that the spyware was a technological protection measure: MDY argued that the code from the game client software was not written to RAM after the user makes it through the spyware scan; the court found there was a factual dispute "with respect to the extent to which Blizzard's protective software protects the copying of software code to RAM ... ."

The court's holding on the copyright claims compares very unfavorably to its handling of the DMCA claims, permitting a chilling extension of control by copyright owners of software over copies of programs they have sold. The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.