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The Lawbringer: Glider's Neverending Story

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Running parallel to the games we love and enjoy is a world full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

Back in October, I made the case that Blizzard was in the best position to fight for a stronger EULA because it has the money, industry sway, and a very specific set of lawsuits pending that could allow for stricter End User License Agreement provisions. In the simplest terms, EULAs are hard to hold up in court. They aren't airtight -- yet. Game companies would love to strengthen EULAs since enforcement of their provisions would then be easier.

Here's the most basic recap of the MDY Glider v. Blizzard case for anyone who hasn't been paying attention to the saga. MDY made a bot program called Glider for World of Warcraft that controlled characters for the user, negating any player interaction needed to go through the game. MDY sought the judgment of a court to declare that their program did not infringe upon Blizzard's rights, and in a counterclaim, Blizzard said that Glider not only infringed on its rights, but also that Glider was violating the Digital Millennium Copyright Act (DMCA) that makes illegal circumventing security measures in software, most notably digital rights management (DRM), to hack it.

In 2008, the U.S District Court of Arizona ruled in favor of Blizzard on the copyright infringement and DMCA claims. The decisions of the court were appealed to the Ninth Circuit Court of Appeals, and a judgment was rendered on Dec. 14, 2010. You might remember the Ninth Circuit from that other big case we've got going on right now.

So, on Dec. 14, 2010, finally, we would see the end of this whole ordeal. Potentially. The court did something not unexpected but interesting -- the copyright infringement claims were thrown out. MDY's Glider was still found to violate the DMCA, so MDY was still on the hook, so to speak, but the EULA copyright infringement logical jumps were found to be wanting.

License, not own

Here's how the logical jumps worked for the lower court (District) to come up with copyright infringement from EULA and Terms of Use violations. Basically, it all depends on whether you own World of Warcraft or are licensing your copy of the game from Blizzard. The court decided that the relationship looked more like a licensing agreement, and as part of that license, the player/user agreed to the Terms of Use and the EULA as part of the license.

Part of World of Warcraft's EULA and Terms state that players will not use bots or cheat programs. Follow the logic here -- you license WoW, and as part of that license, you agree to the EULA and Terms of Use. Glider is a bot program, so a player using the program is in violation of the terms of use. If you're not adhering to the EULA, technically you are not allowed to install the game -- you've made an illegal copy. By selling Glider, MDY was found to be secondarily liable for copyright infringement.

Did that hurt your head? It apparently hurt the Ninth Circuit's head enough that it overturned that part of the decision. You still don't own your copy of World of Warcraft, but the logical lengths that the lower court went to and the power of the EULA in that respect was diminished. It is a very curious thing to watch, as the EULA gains status, loses status, and continually fights for dominance in the current video game environment.

The appeal

So what did actually happen on appeal? Well, the Ninth Circuit threw out the copyright infringement violations but kept the DMCA violation. The DMCA is the piece of federal legislation that gets carted out, most notably in "take down" notices, when networks want their clips taken off websites, among other things. Circumventing protective software and digital rights management software is a no-no. Glider was found to have circumvented Warden, Blizzard's protective program that monitors computer activity for bots and cheats, similar to Valve's Anti-Cheat (V.A.C.) and information that Blizzard's servers deal with, opposed to the static stuff that lives on your hard drive.

Pots of gold

As for how much MDY is going to have to fork over to Blizzard for all the trouble it's caused, the amount is currently uncertain. That aspect of the case was sent back to the lower court -- remanded, if you will, for "further consideration." What this means is that Blizzard did not meet the requirements, factually, for a summary judgment (I win, you lose, on the facts only, under certain circumstances) on that claim. With all of this new information and, most likely, some new research done by Blizzard's lawyers and MDY's lawyers, some monetary amount will be found. Hell, that number could even be zero.

It is an interesting proposition -- how much does MDY owe Blizzard for rooting around in WoW's code base and creating a program to screw with the way Blizzard wants you to play the game? Do they just get to take MDY's profits? How about statutory damages, according to the DMCA? Statutory damages are damages that the statute (shocker) says you can get -- kind of like the bottom line amount that the infringer will be on the hook for. The DMCA states:
(3) Statutory damages. - (A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
So, we're looking at a ton of damages or just a small amount of damages. At the end of the day, it's really just the court's call, with the law as a rubric or backdrop to make a decision around.

What does this all mean? It means that at some point in the future, I'll write another Lawbringer about the MDY Glider v. Blizzard case, because it's still going on. Really, court cases go on like this for a good long while, especially when you have these multi-count technology slugfests that Blizzard is engaged in. Suffice to say, the weight of the EULA in regards to the copyright issues present during this case was cast away, and nebulous leaps of copyright logic were dispelled like a Shield Slam rips off a priest's Power Word: Fortitude. I know at least a few copyright scholars who are very happy that the Ninth Court ruled the way that it did.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.

Filed under: Analysis / Opinion, The Lawbringer

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