World of Warcraft Meets the Digital Millenium Copyright Act

The Digital Millennium Copyright Act (DMCA) was enacted by Congress in 1998 in part to prevent the circumvention of technological measures designed to prevent either access to or copying of a copyrighted work.  With certain exceptions, the DMCA made it a crime to circumvent such measures and outlawed the manufacture, sale, or distribution of devices used to illegally copy software.

Examples of such anti-piracy prevention measures include technology that prevents an unauthorized copy of a DVD from being played and software that limits the number of times a computer program can be installed.  Because the law is relatively new and because technology is constantly changing, the scope and application of the DMCA remains an evolving frontier.

On January 28, the DMCA was applied to circumvention software used in connection with the largest and most successful multi-player online game in the world, the World of Warcraft computer game (WoW).  WoW players control their characters in a virtual universe.  The players can explore the landscape, fight monsters, perform quests, build skills, and interact with other players and computer-generated characters.  While playing, the players may acquire in-game assets, experience, and power.

Blizzard created and now operates WoW and owns all copyrights related to the game.  Introduced in late 2004, WoW currently has approximately 11,500,000 players, generating over $1.5 billion in annual revenues.

To play WoW, a user obtains the game client software and loads it onto his or her computer hard drive.  When the game is played, the client software accesses Blizzard’s game server software through an online account for which the user pays a monthly fee.

In June 2005, MDY began selling Glider to WoW users, generating revenues of over $3.5 million to date.  Glider is a type of computer program known as a “bot” that plays WoW while a user is away from his or her computer.  This enables the user to advance more quickly within WoW.

To an outsider, the use of Glider may not appear to have a significant effect on WoW.  However, because WoW is a carefully balanced competitive environment in which players compete against each other to advance, the use of Glider upsets this balance by enabling its users to obtain more than their fair share of game assets.  This diminishes the value of the assets acquired fairly by other users.  As a result, Blizzard received numerous complaints about the use of bots from customers.

To combat bots, Blizzard developed a technical measure known as Warden to prevent the use of bots by WoW players.  Initially, the software prevented the use of Glider to play WoW.  However, MDY made changes to Glider designed to avoid detection by Warden.  Thus, Blizzard filed claims, among others, of violation of the DMCA.

In MDY Industries, LLC v. Blizzard Entertainment, Inc., the Arizona District Court held that the DMCA applied to Glider.  In reaching this decision, the court examined the aspects of the WoW software that Warden was designed to protect.  The literal code could be freely copied without connecting to the server where Warden resided.

Likewise, the non-literal elements which constituted the majority of the game client software–multimedia content such as environmental graphics, sound effects, music, player avatars, etc.–are stored on the user’s hard drive and can be accessed without connecting to the server.  Consequently, the court found that the DMCA did not apply to the literal code and the individual non-literal elements because Warden did not prevent access to these features of the program.

However, the court’s analysis did not end there.  Although the individual non-literal illustrations and sounds created by the game client software can be viewed in isolation and even in limited combinations, they cannot be viewed dynamically in the WoW game unless the user connects to the Blizzard server.  Upon connecting to the server, the user can experience the dynamic components–real-time travel through different worlds, hearing the sounds of those worlds, encountering their inhabitants and monsters, and encountering other players.

None of these dynamic features can be accessed on a user’s hard drive.  To connect to a server and access the dynamic features, Glider must bypass the circumvention protections provided by Warden.  Consequently, the court found that the DMCA applied with respect to the dynamic nonliteral elements of the game.

MDY argued that the dynamic nonliteral elements cannot be copyrighted because 1) they are not “fixed” in a tangible medium as is required by the Copyright Act and 2) the users control the dynamic elements of the game, not Blizzard.  The Court rejected these argument citing a number of cases for the proposition that audio-visual displays of computer games are subject to copyright protection even though a player’s actions determine, in part, what is diplayed on the computer screen.  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).

Another of MDY’s arguments that was rejected by the court in a previous decision is that copying software into the RAM memory of a computer is not a violation of any copyright owned by Blizzard because that is a use that is permitted by the Copyright Act.  An amicus brief was also filed in the case by Public Knowledge supporting MDY’s position in this regard.  Under 17 USC § 117, it is not a copyright infringement to make a new copy or adaptation of a computer program where making that copy is “an essential step in the utilization of the computer program in conjunction with a machine and that is used in no other manner.”  The court rejected MDY’s argument based on the Ninth Circuit’s previous decision in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), holding that copying to RAM memory of a computer is a copyright infringement.

MDY has expressed its intent to appeal the trial court’s decision and ask the Ninth Circuit to overturn the MAI Systems decision.  It will be interesting to see how the Ninth Circuit deals with the MAI Systems precedent in this case.  This could be an important appeal as evidenced by the varied opinions regarding the effect of the trial court’s decision.  As an example of the varied opinions, see the Broken Toys blog on this case.

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