Home > Copyright Law, Intellectual Property Law > WoW: Humans and Elves Dodge A Copyright Bullet

WoW: Humans and Elves Dodge A Copyright Bullet

December 17, 2010


A "World Of Warcraft" Warrior From An Earlier Time Perhaps? Leonard da Vince [Public Domain] via Wikimedia Commons

Those of you who are interested in United States copyright law should read this week’s decision by the Ninth Circuit Court of Appeals in the “World of Warcraft” (or “WoW”) case, http://bit.ly/gGa3D8.   No, it has nothing to do with Orson Welles or H.G. Wells.  It concerns a virtual universe many of us will never enter.

The basic facts of the case are this:  The defendant Blizzard created an online game (“World of Warcraft”) that has attracted millions of players.  Like many games, it involves various levels of difficulty.  As you advance from one round to the next, the   game becomes more complex:

WoW players roleplay different characters, such as humans, elves, and dwarves. A player’s central objective is to advance the characterthrough the game’s 70 levels by participating in quests and engaging in battles with monsters. As a player advances, the character collects rewards such as ingame currency, weapons, and armor. WoW’s virtual world has its own economy, in which characters use their virtual currency to buy and sell items directly from each other, through vendors, or using auction houses. Some players also utilize WoW’s chat capabilities to interact with others.

Op’n at Part I (A), page 5.

Plaintiff MDY created a “bot” (“Glider”) that could stand in for real-live players during early rounds of play . . . permitting users to attend to other things during these rounds and advance more quickly to advanced levels.  When Blizzard detected the “bot,” it created software (“Warden”) that prevented bot-users from connecting to its server.  Plaintiff then created a program to circumvent Warden and permit Glider-users to continue to play.  MDY sued for a declaration that it was not infringing Blizzard’s rights and Blizzard counterclaimed.

The District Court found that MDY committed a variety of torts.  It found that it was secondarily liable for direct copyright infringement.  It found that it had violated two of the DMCA’s “anti-circumvention provisions,” designed to protect against unauthorized access to copyrighted works.  And, it found that it had committed interference with contractual relations, a state-law tort.  (The relations interfered with were those between Blizzard and its non-bot players).

The Ninth Circuit reversed in substantial respects.  Three aspects of the decision are particularly worth noting:

First, the Ninth Circuit found that although the use of the bot (Glider) was in violation of Blizzard’s amended “Terms of Use,” it only violated a “contractual covenant” and not a “copyright condition.”  That meant that players using Glider did not commit direct copyright infringement, and MDY could not be secondarily liable for infringement.   This aspect of the ruling may well have reverberations far beyond the bounds of the case if it serves as a template for eliminating copyright remedies (and penalties) for many “Terms of Use” violations.

Second, the Ninth Circuit found that even though circumvention of Warden’s defenses did not enable there to be infringement, the defendant had a cause of action against MDY for violating § 1201(a)(2) of the DMCA.  In this respect, the Ninth Circuit parted ways with the Federal Circuit which has held that there cannot be any DMCA violation absent an infringement of copyright.  Now that there is a Circuit-split on this issue, the  matter  may well end up before the United States Supreme Court.   In my view, the Ninth Circuit has the better legal argument on this question.

Third, the Ninth Circuit sent the state-law tortious interference claim back to the District Court for trial, finding that there was a material issue of fact in dispute.  It specifically held that the state law claims were not preempted by the Copyright Act.  This is an issue about which there has been substantial debate in numerous cases.

In the final analysis, both sides used up a lot of real-world currency attempting to stake out virtual turf.  Neither ended up annihilating the other.

It may yet be up to the Supreme Court, however, to decide if they can both keep playing … or one is going to get royally hammered.