2010.12.15
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.
2009.03.30
MDY v Blizzard provides one of the hard questions through which I'm framing my thesis. This case concerns how internal rules are going to be able to be enforced in virtual communities, and to what extent copyright is the appropriate vehicle for their enforcement. Virtually Blind had a lot of great coverage of this case until he stopped blogging late last year, and there was a very good amicus brief filed by Public Knowledge. Here's my quick summary of the questions this case raises.
Blizzard makes and operates the hugely popular World of Warcraft (WoW) virtual world. Blizzard has structured the game in a way that rewards long periods of repetitive behaviour, popularly dubbed 'grinding'. MDY made and sold a program, 'Glider', that automates this repetitive behaviour, allowing players to advance in the game with only minimal human interaction. Blizzard prohibits the use of bots like Glider, and routinely bans the accounts of users suspected of using such techniques. There is a suggestion in the community that people who use bots are cheaters or gold farmers – the latter suspected as being responsible for inflation in the virtual economy. On the other hand, there is a contrary suggestion that the use of bots merely lessens the boring, repetitive, and continuous labour that is required in order to enjoy the WoW endgame.
The Glider software interacted with the WoW client software by directly modifying the memory of the client computer. The WoW Terms of Service contains a broad clause that prohibits users from intercepting, emulating, or redirecting the WoW software. Blizzard contended that by using Glider, users were exceeding the scope of their licence to play the game and thus infringing copyright when the game was copied into RAM. Blizzard therefore contended that by enabling and encouraging users to use WoW in breach of the Terms of Service, MDY was liable for secondary copyyright infringement.
Blizzard threatened to sue MDY for copyright infringement if it did not cease selling the software. MDY filed suit in response, seeking (amongst other things) a declaratory judgment that the use of Glider did not infringe the copyright in WoW, and that MDY was therefore not liable in copyright for any acts of Glider users.
The US District court found that the End User Licence Agreement that granted permission to play WoW had to be read in conjunction with the Terms of Service, and that certain requirements of the ToS were to be read as limitations on the licence grant, whereas others would be mere contractual provisions. Because the limitation on emulation was part of the licence grant, users who used emulators were therefore outside the scope of the licence and infringed copyright in the game when they played it. It followed, then, that MDY was liable for inducing or encouraging their users to infringe Blizzard's copyrights.
Blizzard was also successful at trial on one of its DMCA circumvention claims. Judge Campbell found that Warden, a subroutine that checks the RAM of WoW clients, “controls access to the dynamic nonliteral elements of the WoW game environment” within the meaning of 17 USC 1201(a)(2). The District Court found that while Warden did not control access to either the computer code that made up WoW9 or the individual sound and media files that made up the environment, it controlled access to the dynamic experience of the sounds and graphics – the “real-time experience of traveling through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players”. This was sufficient for Warden to qualify for protection under the DMCA. Because Glider circumvented the security measures in Warden and MDY knowingly marketed Glider to do so, MDY was liable under 1201(a)(2).
The role of Glider in the WoW world certainly seemed to influence the District Court's decision. At trial, Judge Campbell began his judgment by holding that Glider has substantial damaging impact:
WoW is a carefully balanced competitive environment where players compete against each other and the game to advance through the game's various levels and acquire game assets. Glider upsets this balance by enabling some payers to advance more quickly, diminishing the game experience for other players. Glider also enables its users to acquire an inordinate number of game assets – sometimes referred to as “mining” or “farming” the game. The acquisition of these assets upsets the game's economy, diminishing the value of assets acquired by regular game users.
The MDY case is interesting because it sets up significant penalties for breach of the rules contained in the terms of service. Were damages only available in contract, Blizzard would only be able to claim reasonably small actual losses. Here, however, damages were available as copyright infringement damages, for which the copyright owner does not need to show actual loss (in the United States). Importantly, a permanent injunction is also more readily available under copyright.
Fundamentally, this precedent means that breaking the terms of service or encouraging others to break the terms of service can potentially result in severe damages and a court order to cease the infringing behaviour, without the proprietor needing to show any actual losses. Essentially, this gives certain rules of participation the force of binding law. The US District Court distinguished the rules on interception and emulation, which it held to be sufficiently related to the exclusive rights under copyright to be limitations on a licence grant, from other rules on player interaction and naming policies, which were mere contractual terms. The mechanism through which it did so, however, is not exactly clear. This leaves substantial uncertainty for future cases; if a contract can be written where the internal rules are expressed as conditions to the copyright licence grant, it may well be that these rules will be enforceable by the whole weight of copyright law.
MDY v Blizzard raises questions far beyond its facts. On one level, it is about a proprietor's ability to enforce its rules against not only its users, but those who enable and profit from cheating users. On another level, however, it raises questions about the legitimacy of using copyright law as a means of enforcing internal rules – essentially giving the internal rules the force of law without any of the accompanying requirements of due process or democratic discourse. This is a genuinely hard case – to the extent that internal rules that are important to the integrity of a virtual community are not able to be effectively policed within the community, how ought the law and the state aid in their enforcement? If the law does aid in their enforcement, what limitations should we impose on the ability of the proprietor to set the rules?
( Image from Gaming @ TP. )
Categories : Uncategorized
2006.03.18
Blizzard make several popular games, including Warcraft, Diablo and Starcraft. Online multiplayer in these games is limited to using Blizzard's Battle.net service. Battle.net provides a mechanism for users to create and join multi-player games, to meet and chat with other users, and to record statistics and participate in tournaments. Battle.net functionality is built into the games. Blizzard's Battle.net servers check the validity of users' cd-keys when a user connects to the service from within the game. This validation is known as the “secret handshake” which allows only users with valid cd-keys to continue connecting to Battle.net.
The Eight Circuit Court of Appeals has determined that an open source replacement to Blizzard's Battle.net violates the DMCA by bypassing this 'secret handshake'.
Blizzard's End User License Agreements on the games themselves state that a user may not “in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on the Program, or remove any proprietary notices or labels on the program without the prior consent, in writing, of Blizzard”1)
Blizzard's Terms of Use on Battle.net state that a player may not
(ii) copy, photocopy, reproduce, translate, reverse engineer, modify, disassemble, or de-compile in whole or in part any Battle.net software;
(iii) create derivative works based on Battle.net;
(iv) host or provide matchmaking services for any Blizzard software programs or emulate or redirect the communication protocols used by Blizzard as part of Battle.net, through protocol emulation, tunneling, modifying, or adding components to the Program, use of a utility program, or any other technique now known or hereafter developed for any purpose, including, but not limited to, network play over the Internet, network play utilizing commercial or non-commercial gaming networks, or as part of content aggregation networks […]
(v) use any third-party software to modify Battle.net to change game play, including, but not limited to cheats and/or hacks;
(vi) use Blizzard's intellectual property rights contained in Battle.net to create or provide any other means through which Blizzard entertainment software products […] may be played by others, including, not limited to, server emulators. 2)
The defendants were frustrated by the poor performance of Blizzard's Battle.net service, as well as cheating and otherwise offensive players. They subsequently began free development of bnetd, which would act as a replacement server for Battle.net which gave users more control over the games they played online. To create bnetd, the defendants had to reverse engineer the protocol spoken by Battle.net and the Blizzard games, and they also developed a small utility which was used to modify the Blizzard games so they could connect to other multiplayer servers. Notably, the defendants had no way of enforcing the cd-key validity check, and were forced to treat any cd-key presented as valid.
The district court granted summary judgment to Blizzard, holding that fair-use reverse engineering could be excluded by terms in shrink-wrap or click-wrap contracts, and that the reverse-engineering exceptions in the DMCA do not protect reverse-engineering in order to create fully functional alternative products, or where the program is distributed for free.3)
The Eight Circuit Court of Appeals affirmed the decision. Blizzard's EULA and ToS were enforceable contracts, and the defendants had waived any fair-use defence they may have had.4) The 'secret-handshake' constituted an effective Technological Protection Measure (TPM), and bnetd circumvented that TPM by allowing all clients to connect. The 'interoperability' exception did not apply, on the basis that the bnetd emulator allowed unauthorised copies of the Blizzard games to be played on the bnetd.org servers. The court considered that this constituted infringement of copyright, and as such, the interoperability defence could not apply. The Court did not consider whether bnetd was a dual use technology which could have both infringing and non-infringing uses, or whether the playing of an infringing copy of a game on an internet server constituted copyright infringement at all.
In Australia, reverse engineering to make interoperable products is protected as an exception to copyright by Copyright Act 1968 (Cth) s 47D. Section 47H provides that section 47D, which was inserted by the Digital Agenda amendments, can not be excluded by contract. In Australia, Blizzard could not require that its users refrain from reverse engineering.
Reverse engineering for interoperability is also an exception to circumvention of a technological protection measure, in s 116A(3), where a 'qualified person' is permitted to circumvent a TPM for a permitted purpose, which includes interoperability from s 47D. A qualified person in this case would mean the owner or licensee of the copy of the game. Section 116A(4)(b) provides a similar exception for supplying a circumvention device.
There is nothing in the text of the anti-circumvention law that prevents the right to reverse engineer for interoperability from being excluded by contract. The exceptions to infringement in s 116A are not protected in the same way as s 47D protects ss 47B(3), 47C, 47D, 47E and 47F.
This case shows that this gap in Australian anti-circumvention law can have real consequences for Australian developers. Reverse engineering for interoperability is an important exception to the exclusive rights of the copyright owner, in that it provides developers with a mechanism to make competing products, or to adapt a technology product to work in new environments.
These exceptions are important – they concern not the piracy of games, but the right of players to make use of their lawfully acquired games in the way they want. A player who purchases a game which doesn't work satisfactorily with another product, like an internet game server, should not be precluded from seeking to play the game on another interoperable server. The right to use a game is a fundamental right of a purchaser of a copy of that game, and if the game must be reverse engineered in order to enable its use, then that reverse engineering should be permissible.
Both the Copyright Law Review Committee Copyright and Contract report and the Philips Fox Digital Agenda Review recommended that the Copyright Act be amended so that the permitted purpose exceptions in s 116A(3) cannot be excluded by contract.5) If these recommendations are not followed, there is a significant risk that the ability to create interoperable software in Australia will be crippled, and producers of computer games will be able to require that purchasers of their games are tied to their other software products and services in order to make use of the games.
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