Metropolitan News-Enterprise


Wednesday, December 15, 2010


Page 3


Ninth Circuit Upholds Ban on ‘Bot’ in Online Role-Playing Game


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld an order barring distribution of a computer program that automatically plays early levels of popular online role-playing game World of Warcraft so that players can avoid having to do so.

A three-judge panel ruled that Glider, software that kills enemies and accumulates credit in the game’s virtual world while players are away, does not infringe game creator Blizzard’s copyright, but held that the “bot” violates the Digital Millennium Copyright Act.

Judge Consuelo M. Callahan wrote that the program did so where it was designed to circumvent measures controlling access to the game’s “real-time experience of traveling through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players.”

U.S. District Court Judge David G. Campbell of the District of Arizona enjoined Glider’s distribution in 2009. Campbell not only found vicarious “secondary” copyright infringement by Glider creator Michael Donnelly and his company, MDY Industries, but tortious interference and violation of another DMCA provision.

Created in 2004, World of Warcraft has 10 million subscribers, including two and a half million in North America. Players roleplay different characters, such as humans, elves and dwarves, through the game’s 70 levels by participating in quests and battling monsters.

Glider was developed by Donnelly, a Warcraft player, in 2005. He began selling it that year, but Warden, Blizzard’s program to detect players’ use of unauthorized third-party software, found the bot and Blizzard modified its terms of use to ban Glider.

Donnelly modified Glider to continue to elude Warden and sued in 2006 seeking a declaration that he had not infringed Blizzard’s copyrights. As of September 2008 his company had gross revenues of $3.5 million based on 120,000 Glider license sales.

On appeal from Campbell’s rulings, Callahan wrote that Donnelly could not defend against Blizzard’s infringement claim by arguing that copies of Warcraft software produced in a computer’s temporary memory were “an essential step in the utilization of the computer program in conjunction with a machine.”

She also said Donnelly was not guilty of secondary copyright infringement because the prohibitions on bots in Blizzard’s terms of use were covenants that triggered a breach of contract action if violated, not copyright-enforceable conditions.

The judge partially determined that Donnelly’s programming of Glider to elude Warden did not violate Sec. 1201(a)(2) of the DMCA—prohibiting circumvention of any technological measure controlling access—with respect to the game’s literal elements and individual non-literal elements, such as source code and visual and audible components. But she said the modification was a violation as to the game’s “dynamic non-literal elements,” such as travel through the virtual world.

Callahan rejected Blizzard’s claim that the programming also violated Sec. 1201(b) of the DMCA, which prohibits trafficking in technologies that circumvent technological measures that effectively protect “a right of a copyright owner.” She noted that the game’s detection software, designed to reduce cheats and bots, did not protect Blizzard’s reproduction right against unauthorized copying.

The judge further wrote that Blizzard was not entitled to summary judgment on its tortious interference claim where there was a material question of fact as to whether Donnelly’s actions were improper, given that the company changed its terms of use after Glider existed. Callahan rejected Donnelly’s argument that the claim was preempted by the Copyright Act.

Senior William C. Canby Jr. and Judge Sandra S. Ikuta joined Callahan in her opinion.

The case is MDY Industries, LLC v. Blizzard Entertainment, Inc., 09-15932.


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