Happy holidays!

If you find World of Warcraft's first parts tedious — and Blawgletter, in spite of never having played the massively multi-player online game, guarantees that you will — you can cheat your way to WoW skills, fame, and wealth by hiring a bot to do the work for you.  Slackers everywhere rejoice!

But the Warcraft folks, ahem, don't like you to do that — because, they say, it disrupts the gaming fun of non-cheating subscribers.  They — Blizzard Entertainment — even created a program, Warden, that aims to detect and disable bots.

Blizzard told one bot maker, MDY Industries, to cease and desist selling MDY's Glider to lazy WoW players.  MDY answered in that most American of ways — by suing Blizzard (for a ruling that Glider did NOT — did NOT, I tells ya — violate any Blizzard rights).  Blizzard counter-claimed for copyright infringement, violation of the Digital Millennium Copyright Act, and tortious interference with contract under Arizona law.  Blizzard's frosty response largely warmed the district court's heart.

The Ninth Circuit's opinion on MDY's appeal bears reading for any lawyer who does practice, or wants to practice, in the realm of Computers, Computer Software, or Copyright Law.  The panel held:

  • MDY didn't infringe the Blizzard copyright in WoW because a mere violation of WoW's licensing terms — the ones that barred using bots to play the game for you — didn't trench on any copyright right (to reproduce your work, perform or display it in public, or create derivative works from it) due to the fact that the terms allowed users to load the WoW software into their computers' random access memory.
  • MDY didn't violate DMCA section 1201(a)(2) — by using Glider to get around Warden as to WoW's "literal elements" and "individual non-literal elements" — because users could access those elements via the WoW software that resided on their computers.
  • MDY did violate section 1201(a)(2) — by using Glider to circumvent Warden's ability to detect bots like Glider and cut off users' access to WoW servers and therefore its "dynamic non-literal elements" — because, but for Glider, Warden would stop bot-deploying users from experiencing "travel[] through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players."
  • MDY didn't violate DMCA section 1201(b)(1) because WoW's licensing terms permit loading of the Warcraft software into the RAM of the user's computer and thus Glider doesn't circumvent a measure that protects a copyright right (i.e., the right to copy the software).
  • Questions of fact precluded summary judgment against MDY on Blizzard's tortious interference claim.

MDY Industries, LLC v. Blizzard Entertainment, Inc., No. 09-15932 (9th Cir. Dec. 14, 2010).

The opinion includes a long dissertation on the panel's furious disagreement with the Federal Circuit's views on the DMCA — something about whether the DMCA requires copyright infringement as an element of a violation.  The Ninth Circuit didn't think so; the Federal Circuit did.  See id., slip op. at 20010-17 (rejecting Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2004)).

The Fifth Circuit not long ago went with the Federal Circuit on the point but — without explanation — changed its opinion to leave out that part.  See "Fifth Circuit Cuts DMCA Down to Size; "Dongle" in the Software Jungle"; compare the original opinion with the later one.