It always amazes me how much of the global economy is devoted to technological cat-and-mouse games; for every gadget, industrial process, or computer program out there, there are a dozen companies trying to reverse-engineer or manipulate it.
"Glider" was an aptly-named bot which allowed World of Warcraft ("WoW") players to glide through the first few levels of the game without doing much, and thus obtain "experience" for their online avatars, thereby proving Bruce Campbell wrong.
Blizzard Entertainment, publishers of WoW, were understandably upset about Glider, and so installed "Warden," a program designed to seek out instances of bots like Glider in a user’s RAM and, if it found one, block WoW from loading. If Warden found you gliding, it banned you from WoW’s servers. The maker of Glider ("MDY Industries, LLC," which has only one member, Michael Donnelly) responded by dreaming up ways to avoid Warden, and offering, for a monthly fee, updates that would react to the various changes Blizzard made to Warden to catch bots like Glider. Like I said, cat-and-mouse.
Blizzard sent the maker of Glider a cease and desist letter claiming copyright infringement. Donnelly wrote them back requesting more explanation then, for reasons which aren’t clear for me, eventually brought suit against Blizzard seeking a declaratory judgment establishing that he was not infringing on their copyrights.
(A word to the wise: don’t sue someone if the expected value of your claim against them is less than the expected value of their claim against you.)
This all may sound trivial. If so, consider these lines of the Ninth Circuit’s opinion:
Following MDY’s anti-detection modifications, Warden only occasionally detected Glider. As of September 2008, MDY had gross revenues of $3.5 million based on 120,000 Glider license sales.
Blizzard claims that from December 2004 to March 2008, it received 465,000 complaints about WoW bots, several thousand of which named Glider. Blizzard spends $940,000 annually to respond to these complaints, and the parties have stipulated that Glider is the principal bot used by WoW players. Blizzard introduced evidence that it may have lost monthly subscription fees from Glider users, who were able to reach WoW’s highest levels in fewer weeks than players playing manually.
The most concise summary of the opinion I’ve seen is over at GamerLaw. In short, Glider defeated the copyright infringement claim, was found liable — or rather, enjoined — on the Digital Millennium Copyright Act ("DMCA") anti-circumvention claim, and was remanded for trial on the tortious interference claim.
"Condition" is an important word there; if a copyright license is conditioned upon a licensee not doing a particular thing, then doing that prohibited thing (here, using a bot like Glider) is copyright infringement. If, instead, the only "condition" of the license is the purchase of the product — which is probably what most WoW users assume when they buy and use the game — then there’s only a covenant not to use bots, and so the use of bots is a mere breach of the license.
Interpreting both Delaware law and the federal Copyright Act, the Ninth Circuit took a Shadowmourne to that theory, concluding:
Were we to hold otherwise, Blizzard-or any software copyright holder-could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.[Fn 3]
Fn 3: A copyright holder may wish to enforce violations of license agreements as copyright infringements for several reasons. First, breach of contract damages are generally limited to the value of the actual loss caused by the breach. See 24 Richard A. Lord, Williston on Contracts § 65:1 (4th ed.2007). In contrast, copyright damages include the copyright owner’s actual damages and the infringer’s actual profits, or statutory damages of up to $150,000 per work. 17 U.S.C. § 504; see Frank Music Corp. v. MGM, Inc., 772 F.2d 505, 512 n.5 (9th Cir.1985). Second, copyright law offers injunctive relief, seizure of infringing articles, and awards of costs and attorneys’ fees. 17 U.S.C. §§ 502-03, 505. Third, as amicus Software & Information Industry Association highlights, copyright law allows copyright owners a remedy against “downstream” infringers with whom they are not in privity of contract. See ProCD, Inc., 86 F.3d at 1454.
Which leaves just the DMCA issue. The Ninth Circuit admits that their decision, in which they found that Glider’s attempts to evade Warden violated § 1201(a) of the DMCA, conflicts with the Federal Circuit’s precedent holding § 1201(a) of the DMCA requires plaintiffs demonstrate that the circumventing technology infringes or facilitates infringement of the plaintiff’s copyright, a/k/a an “infringement nexus requirement." See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (Fed.Cir.2004).
It’s hard to fault the Ninth Circuit for finding that Gilder could violate the DMCA even while not violating the Copyright Act; major media companies bought Congress fair and square and paid those public servants to pass the broadest copyright laws they could. At the same time, though, what sense does it make to hold someone liable for evading a copyright protection if they are not, in fact, actually infringing upon a copyright? After all, it’s not like we’re talking about some blackmarket program for pirating DVDs; we’re talking about a third-party tool that assists paid WoW users. It may be a form of tortious interference — in my opinion, that depends upon the damage caused to non-Glider users, rather than that baloney about how Blizzard "may" have lost monthly subscriptions due to Glider users completing the game faster — but it’s not the type evil sought to be remedied by the Copyright Act or the DMCA.
It’s possible that this case will be reviewed by the Supreme Court — after all, there’s now a split between two of the most influential circuit courts with regard to copyright, the Ninth Circuit (home of Hollywood and Silicon Valley) and the Federal Circuit (home of the USPTO and Copyright Office and the rest of the federal officers) — but that’s a longshot, even in circuit split cases.
More importantly, which lawyers here are the Paladins, "virtuous defenders of the weak and tireless, unfaltering enemies of the undead," and which are the Warlocks, "masters of the dark arts, devoted to … summoning of demons from within the Twisting Nether?"
I guess that depends upon your view of copyright law.