The Lawbringer: Glider's Neverending Story
by Mathew McCurley 
Dec 25th 2010 at 6:00PM
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.
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.
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:
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.(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.
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
Reader Comments (Page 1 of 3)
Azhural Dec 25th 2010 6:12PM
In a previous article you stated that this case will improve the EULA's strength. Will it be harder now to sue for copyright infringement since it's been thrown out and future lawsuit can go like "Blizz v. MDY dismissed the charges"?
I'm sorry if I used some words wrong. As a German I'm not to familiar with your justice system.
Eskarel Dec 25th 2010 7:04PM
The EULA bit in this seems a trifle overblown. My understanding is that EULAs for services like WoW are fairly solid and EULAs for regular games are very much not. This won't affect those other games regardless because it doesn't decide the whole first sale issue one way or the other. The stretch in the glider case and to be honest the reason Blizzard should lose is that Glider didn't actually use the service or violate the service EULA they merely enabled others to do so.
I'd love to see bots gone, but not at the expense of what little justice is left in the copyright system. Copyright is important but going this far isn't good for anyone.
j.h.gorton Dec 25th 2010 9:13PM
No, this case doesn't make suingg for copyright infringement harder.this case just said, "Based on existing copyright law, which we aren't changing here, this decision was improper."
This case doesn't define what you need for copyright infringement, it just demonstrates one of an infinite number of situations where it is improper.
canada4l Dec 25th 2010 11:58PM
If you read the ruling, the judges ruled that because the clause that was violated in the TOS/EULA was not one that related to a copyright protected issue violating that clause did not invoke copyright infringment and merely violated the contract and thus became a contract issue and not a copyright issue. They also did not seem impressed that Blizzard changed their EULA and TOS to prohibit bots after Glider was already being sold. They ruled in favor of Blizzard on the DMCA; however admitted that if it was ruled on based on federal precedent that it would have ruled in MDY's favor. This will have to be ruled on by the SCUS to unify the rulings of the state and federal courts. The final issue of Tort interference was sent back to the lower court for a trial, due to the fact that Blizzard's original TOS/EULA stated only that one could not cheat or hack the game and did not mention the use of bots. They later specified bots in the TOS/EULA after Glider was being sold. This will be decided by a trial by jury and could end up going either way.
Magnus Dec 25th 2010 6:14PM
Wow, that really did hurt my brain.
Xano Dec 25th 2010 6:15PM
I'm glad to see that MDY isn't getting completely hung out to dry. I'm also glad to see that this article was a LOT less negatively biased than last time.
Spark Dec 25th 2010 7:33PM
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Xano Dec 25th 2010 6:15PM
I'm glad to see that MDY isn't getting completely hung out to dry. I'm also glad to see that this article was a LOT less negatively biased than last time.
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I would like to see MDY hung out to dry. But hung out to dry for the right reasons and in a way that doesn't screw over public rights. Blizzard's strategies over the years (to include bnetd) have been worrisome.
talkingmike Dec 25th 2010 7:29PM
MDY may have created some crafty code to make use of the existing Blizzard code as a foundation, but there is no other reason to admire them. They created something to circumvent an agreement that every player must consent to, and even worse, attempted to profit off of it.
Why exactly are you appearing to sympathize with MDY?
Xano Dec 25th 2010 8:59PM
@talkingmike: I sympathize as I, being a programmer and also a writer of OpenGL hooks back while playing Counter-Strike, have a personal attachment to some of the outcomes of the case (not that it affects me directly, but that it interests me to see how that field of the programming world is during the now).
I always enjoy seeing innovative hacks/cheat engines (not to be confused with Cheat Engine, which is an interesting program on its own). I hate seeing various companies take it as a personal attack against them. If you looked at the original judgment set by the first court on this case, it was far beyond the scope of what Blizzard should have asked for, speaking monetarily.
kurnos Dec 25th 2010 6:40PM
i just dont get it. glider was a cheat. ppl who used it were cheating. its simple. it not a matter of by how much am i cheating. its cheating. we hang athletes out to dry who use drugs and we take down the ppl who supply those drug. is glider trying to say hey i just made the cheat i didnt force any1 to use it? my head is about to explode.
Jeremy Dec 25th 2010 7:58PM
Wow, I can understand why your head's hurting, because you make no sense. In terms of athletes using drugs, steroids and other performance-enhancing drugs are not illegal, just not allowed in whatever sport they're playing. They don't "take down" the people who supply them; they're fairly easy to get and, as I said, legal. So that argument actually supports letting MDY supply a bot if they're not using it.
If you're talking about illegal drugs, then your argument's even less founded. Illegal drugs are, obviously, illegal in the first place, as is selling them. A bot is not illegal; you can make one to do any number of things that don't violate the law or EULAs or whatever. So of course if someone sells illegal drugs they get arrested, but if someone makes a bot and someone else uses it in an illegal way, that's not illegal. In this case, it seems they made it specifically to do something illegal, which is a different case, but your analogy still doesn't hold up at all.
Mardoc Dec 25th 2010 10:04PM
But, hang on, wasn't the whole ruling about how breaching the EULA is NOT an illegal activity? Blizzard can police their own property however they want, but just by breaching an EULA it isn't a legal problem.
And this is a good thing. As was asked by a member of the Ninth Circuit, to Blizzard, "If you put in the EULA that all WoW players must clean their teeth before playing, and someone didn't clean their teeth, are they breaching copyright law?"
Making the EULA punishable through the law is a ridiculous, extremely dangerous way of allowing big money-hungry corporations (Activiosn, Microsoft etc.) to in essence write up their own laws and stick them in the EULA.
theRaptor Dec 25th 2010 11:25PM
@Jeremy.
Steroids (at least for human non-medicinal use) are illegal in many countries. Just because something is used for medicinal purposes doesn't mean it isn't an "illegal drug" under the normal meaning of that term. eg Morphine is commonly used in medicine but strong opiates are normally not legal for personal (non-medicinal) use.
A quick Googling in fact says that steroids are "illegal drugs" (a controlled substances) in the US and UK and I know from recent news here that they are illegal in Australia (after a bunch of our soldiers got busted using/supplying them).
Zanathos Dec 26th 2010 3:17AM
Steroids can be obtained legally and often are, though the circumstances of acquisition might be less than ethical. There's also other performance enhancing drugs that aren't illegal.
icepyro Dec 26th 2010 1:31PM
To answer OP, IIRC, then yes, MDY is saying that they have a "performance enhancing" program that can be used to play video games. Blizzard (like many sports) said that's not allowed and sued MDY for making it in the first place. MDY is, indeed, saying they just make the product. Of course, MDY is also saying Blizzard made it against the ToS/EULA after the fact, so it wasn't against the rules when it was made in the first place.
Technically, bots are not a cheat in the traditional sense of the word. It's not a Konami code to lots of gold. Your game time is being logged and you would get the same XP, gold, items, etc., if you were interacting with the game. It's still subject to RNG and all of the rules of the game. It simply takes your interaction with the game away. As far as the game could tell, someone was playing. This is the logic behind why MDY made their product and why Blizzard changed their EULA/ToS to include bots since it was a hole in their contract prior.
After thinking about it, I agree with the decision to throw out the copyright infringement, provided Glider interacted with the hooks and didn't change game files to work. Too bad Blizzard didn't include the contract laws in their suit. Although, I'm pretty sure if this lasts much longer, penalties won't matter as much as precedent since MDY is more or less going to file bankruptcy as soon as the entire thing is finished. For as much as I hate the DMCA, it will stick the most out of this whole ordeal. There is no doubting that Glider specifically circumvented Warden.
staffan.johansson Dec 25th 2010 6:44PM
Strong EULAs are good for corporations like Blizzard, Electronic Arts, and whatnot. They're not good for consumers. And the DMCA is a horrid piece of legislation that should be repealed immediately, along with lowering copyright terms to something like 5 to 10 years.
As far as I'm concerned, when I buy a piece of software, I BUY it. I should be entitled to do whatever I want with it. Sure, Blizzard provides access to their servers, and that's covered by a contract between me and Blizzard, but that's a different issue than the software I walked into the store and forked over cold hard cash for.
Saeadame Dec 25th 2010 6:58PM
Eh, at the same time, with this kind of situation, because I'm playing with other people, I want to feel like I have a relatively level playing field with them. Sure that may not exactly be true, maybe someone doesn't have a job and can play WoW 16 hours a day and can therefore get much richer/better gear/etc than me. But someone being able to set up a bot to farm mobs/herbs/ore for them while they're at work seems like just too much of an advantage over me, the player who plays when I'm not at school and does everything "manually". I don't want to have to compete with those people in a public game, and I feel like there SHOULD be something done to the company that is more or less promoting people doing this by selling the product.
On the other hand, I don't agree with the DMCA on other things, like in the music industry... I mean, both the movie and music industries are just silly. Ever since blank tapes came out, they've been pointing fingers at consumers when their sales aren't as high as expected, when it could be that people just need better incentives to buy CDs, or that there's just such a variety of music out there that people don't just go out and buy the "one" CD that was good in the last year. Anyway.
Alex Dec 25th 2010 7:03PM
Just because you THINK you own the software, doesn't make it legally so.
People lease cars all the time, why can't software purchases be a lease?
staffan.johansson Dec 25th 2010 7:31PM
@Saedame: The bot thing would be covered by the contract allowing them to use Blizzard's servers, not by some sort of weird license inherent in the purchase of the software in the first place. If there was a legal way to run private servers (and I'm aware there isn't, and even by my standards creating legal private servers would require some heavy-duty reverse engineering), I wouldn't have any problems with the use of programs like Glider on those (as long as those servers were OK with it).
Basically, the way I see it the WoW software is like a car. If I buy a car, I should be able to do whatever I want with it in the privacy of my own home. If I want to take it apart and see what makes it tick, that's my business. If I want to replace part of the engine, sure. But the actual subscription is more like renting access to a racing track. If I want to use Blizzard's racing track, I have to abide by their rules as long as I'm there, and they're completely within their rights to demand that I don't modify my car in order to use it, or more specifically only use modifications that attach to specific points on the car (the equivalent of using Lua-based addons as opposed to hacking the actual game files).
But if I drive the car on my own racing track, or the racing track someone else made, that's none of Blizzard's business.
balazamon0 Dec 25th 2010 9:23PM
@alex, you have the choice to lease a car or buy one. Right now you have no choice when it comes to software. The idea that the company owns the Game I purchased from them is ridiculous.