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. )
