Major Cases

Davidson & Associates v. Jung, 422 F. 3d 630 (8th Cir. 2005) — This case involved the popular Massively Multiplayer Online game World of Warcraft (“WoW”) and its associated Battle.net service, through which legally purchased games were authenticated via CD keys. After being dissatisfied with the Battle.net service and its functionality, one group of gamers and hobbyist programmers formed a non-profit group that developed a portal called the “bnetd project,” through which game players could play WoW without connecting to Battle.net. While this may appear to be blatant circumvention punishable by the DMCA,  the bnetd project was actually reverse engineered from the original Battle.net code, which may have qualified them for the “interoperability” exception of the DMCA.

Unfortunately for the defendants, the court did not find that their conduct fell within the exception. In order to qualify, the defendant must establish 4 elements:

(1) they lawfully obtained the right to use a copy of a computer program; (2) the information gathered as a result of the reverse engineering was not previously readily available to the person engaging in the circumvention; (3) the sole purpose of the reverse engineering was to identify and analyze those elements of the program that were necessary to achieve interoperability of an independently created computer program with other programs; and (4) the alleged circumvention did not constitute infringement.

The court found that defendants did not meet this criteria, as the purpose behind creating the bnetd project was to allow game access without authentication with Battle.net’s copy protection servers. Further, the creators of the project were aware that their program was being used by pirates to play on-line. For these reasons, the court refused to apply the exception in this case.

MDY Indus., LLC v. Blizzard Entertainment, Inc., 2010 WL 5141269, 97 U.S.P.Q.2d (BNA) 1001 (9th Cir. Dec. 14, 2010)  — Another case involving WoW, the MDY Industries case dealt with a program called “Glider,” which allowed WoW players to level up characters without actually playing the game themselves, with the program automating their progression. Players could then sell their characters for real money, or enjoy high-level play without the considerable time commitment usually required.

To combat programs like Glider, Blizzard Entertainment created a program called Warden, which would identify and ban players using automation programs. MDY Industries responded to Warden by altering the Glider program to initialize itself only after Warden had performed its initial check for prohibited programs. Blizzard then filed suit against MDY Industries for violation of the DMCA anti-circumvention provisions, among other claims.

The Glider/Warden interaction was difficult to treat via the DMCA for a number of reasons. First,  the Glider program did not constitute copyright infringement, and, therefore, Warden was not acting in any capacity to protect Blizzard’s copyright interests. In dealing with this issue, the court found that there did not have to be a nexus between circumvention of DRM and copyright infringement, thereby allowing the DMCA to be applied to the Glider and Warden software.

A further difficulty with the DMCA arose from the fact that the Warden software does not act as traditional DRM,  which serves to prevent access to a game’s code or fundamental operability. Warden has no impact or influence on WoW’s installation process, and thus did nothing to protect access to the WoW code and program itself. Still, the court believed that Warden protected Blizzard’s product beyond the game’s code, as an individual could not actually connect to the game-world without passing through Warden’s checks. Thus,  although it did not protect the literal code, Warden did act to control access to a copyrighted work,  and the Glider program violated § 1201(a)(2).

 While Blizzard succeeded on its  § 1201(a)(2) claim, the court refused to grant the game developer relief under  § 1201(b)(1), which allows for recovery when the circumvented program protects a right of the copyright holder. The issue under this section is not access to a copyrighted work, but protection of a fundamental right in the work. Because Warden did nothing to protect Blizzard’s right of reproduction (users could still take screenshots of the game or copy game files from their computer, for example), no violation of  § 1201(b)(1) was found.

Sources:

Davidson & Associates v. Jung, 422 F. 3d 630 (8th Cir. 2005), available at http://scholar.google.com/scholar_case?case=5463280175310353497&q=422+F.3d+630&hl=en&as_sdt=2002.

MDY Indus., LLC v. Blizzard Entertainment, Inc., 2010 WL 5141269, 97 U.S.P.Q.2d (BNA) 1001 (9th Cir. Dec. 14, 2010), available at http://www.ca9.uscourts.gov/datastore/opinions/2010/12/14/09-15932.pdf.


Print Friendly

Comments are closed.