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February 9, 2009

DMCA Rulings Overbroad in Gaming Too

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Posted by Alan Wexelblat

Blizzard Entertainment has just scored another victory in its campaign against "botters" - or rather, makers of bots. The company had already won a judgment against bot-maker MDY on grounds of interference; now it has won on DMCA grounds, and not everyone is happy about that.

To back up a bit: Blizzard makes World of Warcraft the insanely popular online multiplayer fantasy game(*).

MDY makes and sells a program that plays the game automatically (called a "bot," for "robot"). Many players resent bots and botters, and Blizzard has waged war against them for years. However, the bots are popular. Apparently over 100,000 copies of MDY's bot, called Glider, have been sold at $35 a pop.

The question raised in this case, which was just decided in an Arizona court, are whether Glider violates the DMCA by "circumventing protections" as Blizzard claims. It appears that all sides agree that Glider does not decrypt anything, hack anything, nor break any security. It uses the legitimate credentials of the player.

Timothy Lee, at ars technica, calls this "DMCA hairsplitting" and I think he's right. I further think he is correct in pointing out that Judge Campbell has made a decision with some bad implications. This gets a bit detailed, so bear with me...

Campbell drew a distinction between components of the game, thus: the bits stored on disk (called "literal elements") and the bits encountered by the game player during the course of the game (called "non-literal elements"). Part of the World of Warcraft client ensemble is a program called Warden that attempts to control how the client operates and can be accessed while it's running. Campbell decided that Glider did not violate the DMCA with respect to the literal elements, but because it attempted to evade or circumvent detection by Warden while the game was running, it did violate the DMCA with repect to the non-literal bits. Confused yet?

MDY's argument rested on the thesis that these non-literal bits were not protectable by the DMCA because they don't constitute a separate copyrighted work. If that's true it doesn't matter what interaction Glider and Warden have. Campbell rejected MDY's contention that the non-literal bits were too ephemeral, since they could be captured by recording software. That seems reasonable - all kinds of ephemera have been ruled copyrightable for various reasons. More interesting to me is MDY's contention that the ephemera weren't solely Blizzard's work. The ephemera are created in the interaction of the game and its many players.

This is significant as it describes pretty much every "Web 2.0" content-sharing site such as Facebook or LiveJournal. In these sites, too, the named software company provides a vehicle or environment into which users place their content interactively. For example, LiveJournal strongly resembles a blogging system in which individual registered users write postings on which other people add comments. Attempting to apply Campbell's logic to the blogosphere would be troubling at best.

Judge Campbell also agreed with Blizzard that violation of the game's EULA meant that the gamers no longer had a license to play the game. This is extremely troubling in that the logical extension of this reasoning is that any violation of a EULA involves forfeiting your license to that software. I don't know about you, dear reader, but I'm quite certain I've violated more than a few EULAs and am probably in violation of some right now. I don't think that means I give up my licenses to those software programs, nor do I think it means I'm infringing the copyrights of those programs - or at least I don't think it should mean that.

Finally, there's an additional twist in that Cambell ruled that MDY's founder Michael Donnelly, who wrote the Glider bot, was also personally liable for the infringement because he should have known that his and his firm's actions were illegal. Donnelly's good faith argument was rejected.

Lee makes the point that Blizzard is misusing the DMCA in this case. A law on copyright is not an all-purpose behavior-control mechanism. Sherwin Siy, Staff Attorney for Public Knowledge, made this case pretty clearly last year when PK filed its amicus brief in the case. Blizzard appears to have won on merits other than the DMCA and I hope they'll withdraw this claim before it has to be appealed up.

(*) Your humble author is himself a confessed WoW addict, who has spent more than a few hours battling botters and other in-game cheats. I'm not at all impartial on the topic, just in case you had any illusions.

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