Before some comments on the ruling, I should say that I really enjoy reading these early opinions on virtual worlds and law just to see how courts summarize basic facts. For instance, check out how the court summarizes arguments by Blizzard and MDY about the nature of suit--as far as I know, this is the first time a federal court has described gold farming in a judicial opinion:
Blizzard contends that Glider diminishes the value of WoW and causes Blizzard to lose customers and revenue. Blizzard asserts that 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 to acquire game assets. Blizzard claims that Glider upsets this balance by enabling some payers to advance more quickly and unfairly, diminishing the game experience for other players. Blizzard also contends that Glider enables its users to acquire an inordinate number of game assets – sometimes referred to as “mining” or “farming” the game – with some users even selling those assets for real money in online auction sites, an activity expressly prohibited by the TOU.
MDY, by contrast, claims that Glider enhances the game playing experience of its users and even enables some disabled users to play WoW. MDY contends that Glider users constitute a small fraction of WoW players and that the effect of Glider on WoW is minimal. MDY characterizes itself as an innovator and entrepreneur, and claims that Blizzard seeks improperly to use the copyright laws to squelch competition and stifle innovation.
On the issue we previously discussed here, the copyright claim, the court finds that Ninth Circuit doctrine supports Blizzard, explicitly noting with respect to the amicus briefing that "Although the Court appreciates these policy arguments and has benefitted from their excellent presentation, the Court is not a policy-making body." (See footnote 3.)
Summing up the copyright issues, the court states:
The Court reaches the following conclusions on the basis of undisputed facts, construction of the EULA and TOU, and controlling Ninth Circuit law: Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.
On the other claims
- MDY did not prevail on its motion for summary judgment on Blizzard's unjust enrichment claim. So Blizzard still has the ability to bring that claim to trial.
- MDY won in part on one of the DMCA claims, based on the fact that players had open access to certain portions of the software claimed to be protected--with or without the operation of Glider. This is interesting, but much of the DMCA claims were left for trial. The court seemed to say the factual record was too muddled for summary judgment.
- The section on whether MDY's action constitute tortious interference with Blizzard's contractual relationship with players is very interesting. After applying the standard test, the court drills down to the key question of whether it is an "improper" business for MDY to sell a bot program that can be run on WoW. In short, it is improper, according to the court (applying Arizona law which applies the Restatement (Second) of Torts).
Why? Well, for example, here are the first two factors in the 7-factor test for impropriety in interference with contractual relations:
The first factor concerns the nature of MDY’s conduct. The following facts are not disputed: MDY knowingly aids WoW players in breaching their contracts with Blizzard; MDY assists the players in gaining an advantage over other WoW players; MDY enables players to mine the game for their own financial benefit and in direct violation of the TOU; MDY assists players in avoiding detection by Blizzard, and does so in a way designed to place Blizzard at risk. In MDY’s own words, “[s]taying one step ahead of Blizzard is just about impossible,” so MDY seeks to make it “bad business” for Blizzard to spend time and money trying to detect Glider. Dkt. #43-10 at 3. MDY seeks to make it a “bad idea” for Blizzard to try to detect Glider because counter-measures Blizzard must create to detect Glider present
the “risk [of] banning or crashing innocent customers.” Id.
The second factor concerns MDY’s motive. That motive is clear – profit. MDY’s business strategy is not to accept and honor the pre-existing contract between Blizzard and its customers, but to take advantage of that relationship for MDY’s financial gain.
There are five more factors, but you get the idea: enabling gold farming & EULA violations for profit = not cool.
It will be interesting to see whether the parties decide to bring the other claims to trial or if they settle. An appeal by MDY is also possible. But in any case, this is a big win for Blizzard.
(It's also, as mentioned before, a bit disturbing from the standpoint of the way virtual world EULAs integrate with copyright policy.)