Blizzard v. MDY Decided

Posted by Joshua Auriemma on February 1, 2009

This past Wednesday, the federal court for the District of Arizona issued an opinion on MDY Industries, LLC v. Blizzard Entertainment, Inc. et al (the glider case).

The decision is very favorable for Blizzard, ruling that multiple violations of the DMCA occurred, and holding Michael Donnelly personally liable for tortious interference and vicarious and contributory infringement of the DMCA.

Most troubling is the court’s holding that avoiding the Warden client is a violation of the DMCA Section 1201(a)(2), which reads:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title

By designing WoWGlider to evade Blizzard’s bot detection code (”Warden”) the court held that Mr. Donnelly violated the DMCA.  The court also considered it relevant that Glider attempts to trick other players by acting less like a bot.  This holding is troubling for more than its ramifications to video games:  the modding of any technological object comes to mind.

While I am generally critical of  MDY’s defense (See my hopefully forthcoming Penn State Law Review article), their response to the 1201(a)(2) claim was perfect:  the non-literal elements (the overall “experience” of playing WoW, from the music to the weather) do not apply to the DMCA because they are not copyrightable.  In particular, you cannot fix the non-literal elements in a tangible medium.  The court’s response to this argument is sickeningly provincial:

Audio-visual displays of computer games are subject to copyright protection, and a player’s interaction with the software of those games does not defeat this protection even though the player’s actions in part determine what is displayed on the computer screen.  See Atari Games Corp.  v. Oman, 888 F.2d 878, 884-85 (D.C. Cir. 1989); Midway Mfg. Co. v. Arctic Int’l, Inc., 704 F.2d 1009, 1011-12 (7th Cir. 1983); Williams Elec., Inc. v. Arctic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982); Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855-56 (2d Cir. 1982).

Really?  You’re going to go with basic video game copyright cases from the 80’s?  You’ve got nothing else?  After all, they are easily distinguishable:  in Midway, a user could exactly recreate the same user experience simply by replaying the same sequence of button presses.  In WoW, it’s almost impossible to exactly recreate the same non-literal elements that this court is so excited about.  Every time I try to recreate the same scene, there will likely be new music playing, new people passing by, new weather effects, etc.  If you can address that, fine, but don’t pretend like we’re talking about Donkey Kong here.

Unfortunately, some of the best arguments re: unconscionably have probably been waived for appeals, so Mr. Donnelly is likely having a very bad week.  Our hearts go out to you (while our Death Knights play themselves).

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