The Ninth Circuit has a lot on their hands as they prepare to hear appeals from a recent case decided in the District Court for the District of Arizona. In the case, Blizzard Entertainment, the development company responsible for the popular game World of Warcraft, challenged the development of special “bot” programs essentially designed to help gamers cheat. In July 2008, the District Court ruled that a violation of the End Users License Agreement (“EULA”) constituted copyright infringement. MDY Indus., LLC v. Blizzard Entm’nt, Inc., 2008 U.S. Dist. LEXIS 97696 (D. Ariz. 2008). In January, the District Court resolved the remaining matters, in particular, Blizzard’s claim under the Digital Millennium Copyright Act. MDY Indus., LLC v. Blizzard Entm’nt, Inc., 616 F. Supp. 2d 958 (D. Ariz, 2009).
This case focuses on a “bot” program designed to operate with Blizzard’s World of Warcraft massively multi-player online role-playing game (“MMORPG”). The bot, known as “Glider,” allows an avatar to perform routine tasks, such as mining or food collection, while the player is away from the computer. These routine tasks speed up the process of “leveling,” improving an avatar’s ability to win battles. Worried about the effects that bots might have on other players’ enjoyment and continued usage of its online servers, Blizzard designed “Warden,” a program which controls access to the servers by scanning a player’s hard drive for bot programs and denying access while a bot is operating. From these humble beginnings, a technological escalation, which could only be described as the ultimate PvP (person versus person) duel, ensued. MDY programmers started reverse engineering Warden in order to make Glider undetectable. Blizzard shot back, enhancing Warden and banning Glider users. Eventually, MDY succeeded in making Glider undetectable. However, the programmers responsible for designing “invisibility potions” and “stealth” are well aware of the principle that just because you cannot detect your target does not mean it’s not there. Despite all the investment in software development, it was the District Court that delivered the fatal blow to Glider.
At the heart of Blizzard’s DMCA claim is a provision that prohibits “circumventing a technological measure” that “effectively controls access” to a protected work. 17 U.S.C. § 1201(a)(1)(A). To “circumvent a technological measure” means to “descramble a scrambled work, to decrypt an encrypted work, or otherwise avoid, bypass, remove, deactivate, or impair a technological measure” without permission. 17 U.S.C.§1201(a)(3)(A). A technological measure “effectively controls access” to a work when it requires the application of information, a process, or a treatment to gain access to the work. 17 U.S.C. §1201(a)(3)(B).
In its analysis, the MDY court divided the video game into the client software, available for purchase at a local store, and the server software, stored on Blizzard’s own servers. A user can access the “discrete nonliteral components” of the game directly from her hard drive. The nonliteral components include graphics, music, sound effects, and characters. Using just the material stored on her hard drive, a savvy user can almost mimic the world of World of Warcraft, with just one major flaw. The user cannot enjoy the dynamic, interactive aspects of the game without connecting to the server. Thus, in order to experience live action game play, a Glider user must bypass or avoid Warden. Based on the Warden’s control over access to the dynamic, interactive elements of the game, the MDY court ruled that Glider violated the DMCA by circumventing Warden.
MDY asserted that the nonliteral, dynamic aspects of a game should not be subject to a copyright and, thus, are not a protected work under the DMCA. Its argument rested primarily on the fact that the dynamic elements of the game are largely controlled by the users. See MDY, 616 F. Supp. 2d at 966. The court dismissed this argument, citing a number of circuit decisions, but none from the Ninth Circuit, holding that audio-video displays of computer games are subject to copyright regardless of the level of interactivity with users. The other circuit courts focused on the fact that each game has a repetitive sequence of sights and sounds that remains constant regardless of how the user plays. See, e.g., Williams Elecs., Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3rd Cir. 1982).
In this case, however, Warden is not designed to restrict access to the audio-video displays of World of Warcraft; it is designed to restrict access solely to the interactivity between the user and other users. The MDY court does not address whether this restriction is controlling access to the “protected work.” The “work” in this case is not the nonliteral, dynamic or static components, the literal source code, or the interactivity between the elements and the user. What makes the work eligible for protection is the combination of sights, sounds, and interactivity that creates, as suggested by the Williams Elecs. court, a repetitive sequence of sights and sounds attributable to Blizzard. The “work” is the sum of all the parts. While theWilliams Elecs. court held that interactivity was insufficient to prevent claiming a copyright, it did not address whether controlling access to interactivity is equivalent to controlling access to a protected work.
Still, a glaring question remains: what is the right being protected? Warden is not designed to protect a copyright, but to ensure fair game play. Bots simply play as the user would play, only longer. The Warden, the MDY court reasons, prevents users operating bots from copying the nonliteral, dynamic aspects of the game. Presumably, this refers to a user recording her progress through the game. The court acknowledges, however, that Warden does not prevent other users from copying. Keeping with a strict statutory interpretation, the relationship between a technological measure and a copyright protection purpose may very well be insignificant. However, the statute lists specific examples such as descrambling a scrambled work and decrypting an encrypted work before the more general language that includes avoiding and bypassing. These examples suggest that the statute should focus on technological measures designed to protect a copyright.
Providing access to interactivity through its online servers appears to be more of a service than a protectable copyright. Blizzard certainly has the right to charge a fee for this service (which it does) and to specify the terms of service (which it also does). Glider is unquestionably a breach of Blizzard’s EULA and, thus, subjects MDY and all of Glider’s users to contractual liability. Whether Blizzard should be permitted to enforce its rights under the DMCA remains a question for the Ninth Circuit.
The Ninth Circuit has the opportunity to address a ground-breaking issue in technology and online gaming on this appeal. Distinct from the games in the decisions cited by the District Court, World of Warcraft includes, even emphasizes, person-to-person interactivity. This distinction should not be overlooked as it is the defining element of the game and of the MMPORG genre. While background images and sounds continue to be relatively uniform and repetitive, a distinctly human element is playing a predominant role in the game’s enjoyability and durability. What previous courts have found to be copyrightable has merely become the background for a broader online community. How the courts strike a balance between human-to-human interactivity and developer copyrights may shape the future of online gaming and social networking.