The 9th Circuit has reversed the MDY v Blizzard (WoW Glider) case on the secondary copyright infringement grounds (but not one of the DMCA claims).

This is important; the district court had held that players infringe Blizzard’s copyright in WoW by playing the game in breach of the rules, primarily because the prohibition on botting was sitting next to a prohibition on reverse-engineering etc. The district court held that it was a condition of the licence grant, and that therefore players infringed when using glider, and that MDY was liable for their infringement.

The 9th Circuit held instead that the prohibitions on botting were contractual covenants. I think this reading fits much better with Sun v Microsoft and common sense (they’re clearly gameplay rules, not rules designed to protect Blizzard’s copyright interests).

“Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.” ([11])

In the long term, I think this is important because copyright provides remedies for infringement that become punitive when used to enforce game rules, whereas the more compensatory remedies available under contract do not, in general. (I have a pre-print of an article on this point, if anyone is interested I can send it through.)

In the direct circumstances of the case, though, this is not a big win for MDY. They’re still liable on one of the DMCA circumvention claims (access) and will likely be found liable for tortious interference with contract.

I’m in Edinburgh to present at DIS:E run by Ren Reynolds and Andrés Guadamuz.

My talk is on, predictably enough, the rule of law and legitimacy in virtual community governance. Particularly, I want to focus on two main ways that we can look at things differently: looking at the limits of contract rather than only the contractual terms themselves; and looking at procedural legitimacy rather than substantive rights. My slides are here in PDF.

Last month, I was interviewed by 4ZzZ’s Zed Games show on the introduction of an R18+ rating in Australia. The show also includes an interview with Gamers 4 Croydon. You can grab the mp3 here: 20100218-ZedGames-R18-EFA-G4C.

Thanks a lot to Ray and Chani for having me on the show. It’s great to see a gaming show on prime-time community radio, and I’m really excited to hear future episodes.