Blizzard v WoW Glider: Interesting, no?

The EFF's Fred von Lohmann just sent round a note on an email list about the summary judgment briefs in the WoW Glider case. I've mirrored the briefs here and here for those who are interested, and below the fold I'm gonna engage in rampant copyright infringement by reposting all of Fred's message. He sums it up too well to bother trying to explain any better, and I'm sure that he'll forgive the infringement...

Fred says:

Glider lets WoW players play on "autopilot" in order to maximize in- game experience and loot. Blizzard has not been able to successfully stop players from using it, despite the deployment of technical countermeasures (i.e., "Warden").

Blizzard is arguing direct copyright infringement by WoW players who
use Glider (because they breach the EULA term that says "no bots!" and
copy the WoW software into RAM), and secondary liability for MDY, the
maker of Glider. Blizzard's argument is built expressly on the MAI v.
Peak's "RAM copies" doctrine, plus the argument that any contractual
breach of a EULA term creates an infringement claim, at least where
the license grant is expressly conditioned on compliance with the
contractual restriction (apparently the WoW license grant is
contingent on compliance with **all** the terms of the EULA, a typical
drafting approach in modern EULAs).

Blizzard also argues 1201 liability, on the view that Glider evades
Warden. There is an interesting question here as to what copyrighted
work Warden restricts access to -- Warden blocks access to Blizzard's
WoW **servers**, not the client-side game software itself. Blizzard
seems to argue that certain client-side game assets -- i.e., graphics
-- are rendered inaccessible when Warden blocks an account for
cheating. But it's fair to say that this is not the typical
"encryption" or "password" 1201 terrain.

Finally, Blizzard argues tortious interference with the EULA, premised
on the same EULA whose breach is supposedly also a copyright
infringement.

Interesting, no?

Fred
--
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

Comments

[Bruce Boyden]

1.

I know it may strike many as the most boring point, but the question of whether you can condition the copyright license grant on the entire EULA and thus make any breach of contract = infringement strikes me as the most interesting issue in need of resolution here. I think a clear line between breach of contract and infringement would do a world of good. The question of what an access control is is also interesting, but courts often find the technological issues impenetrable.

[Benjamin Duranske]

2.

FYI - Excerpts, full docs, a bit of analysis, and an expert witness report from Dr. Castronova supporting Blizzard (from the exhibits to these motions, which I'll get posted in their entirety eventually) are available at VB.

[greglas]

3.

If this doesn't settle (and it doesn't seem like it will), I'm sure we'll have a very interesting opinion to analyze.

[robusticus]

4.

Sad to see Blizzard suing to monetize addiction.

In the past couple of months I've ran into two couples who have had marital difficulties because of WoW addiction. One is getting a divorce, the other quit at about level 45.

The latter I think is what is supposed to happen, but doesn't, because of addiction. And that's what Blizzard is suing for here, the monetization of that addiction.

No matter what happens, nothing will change in Azeroth. People can whine about inflation or deflation or whatever but wether people are botting or just playing 20 hours a day, nothing will change.

I did enjoy the leetspeak testimony from the WoW addicts. Stop Glider!!!1 The mirror is too gruesome for us to look at!

[Allen]

5.

I am somewhat puzzled by the assumptions in Castronova's damage estimates. He argues that a player who might have taken eight months to reach maximum level can do so in a single month using a bot, denying Blizzard the subscription revenue for the "missing" seven months. Blizzard goes on to multiply seven month's subscription fees (at $15 a month, which not all customers pay) by the total sales of WoWGlider and claims the resulting $10 million and change as ACTUAL lost subscription revenue.

The underlying assumptions are:
1. That a player desperate enough to escape the grind that they PAY a third party for software that could get them banned would have happily continued to pay to play unassisted for an additional seven months. (There are secondary flawed assumptions here - that the botter would have advanced at the "average" rate during that time when the cited number is 20 times higher than the current record time for speed leveling, and that the bot AI is good enough to advance at the same rate as a human - which, as I understand it anecdotally, it isn't.)
2. That advancement at a rate faster than the developer intended is cause for a court to award monetary damages.

I just don't believe that the former assumption is accurate, or that the latter is, well, a good idea. I fully agree that botting causes real damages, both in terms of enforcement costs and (hard to quantify) lost revenue from dissatisfied customers. The enforcement costs, and the inducement to breach the TOS by running a third party program, are more than sufficient to wipe WoWGlider off the map. Saying that anyone who advances faster than the mean is causing the company damage is a Pandora's Box that we would all be better off not opening.

[Mark S.]

6.

@robusticus

I think Blizzard is trying to make sure the playing field is level for all their players. I am just going to ignore the addiction stuff you said because not only do I not believe any video game leads to addiction WoW has parental controls to help limit playtime.

@Allen

I honestly think that Blizzard could care less about the money "lost". Long before WoW Blizzard was hard as nails on cheaters in StarCraft and WarCraft III and Diablo II. This is just par for the course with them.

I secretly hope this goes to court because I am interested in what a ruling either way would do for future "botting" in other virtual worlds.

[Dustin]

7.

@Mark

Who thinks to use parental controls on themselves though? Most people playing the game are 18+ (they just act like they are 12 to catch up on a lost social childhood - I kid =P). You think an 18 yo is going to set up parental controls? Last thing he wants to think about at that age is his parents and their control. There is a strong level of personal responsibility that needs to be refound, but there is something inherent about MMOs that draw people back, even after they have done everything the game has to offer. By, I don't want to hijack these comments, so I'll stop there.

I don't blame Blizzard for going after the company making the product if they can't find the people using it. But the damages they are suing for are crazy. These potentially lost revenue claims only work if the person was going to actually purchase the item in the first place. In this case, if someone was so turned off by a game they resorted to cheating, do you think they would stick around and shell out 15 dollars a month to be pissed off at a game? Whoever the psychologist/economist is that can show how this is a flawed argument, I think you will have several expert witness cases lined up for you.

[Mark S]

8.

@Dustin

For the sake of derailment I will just say I agree with you on both counts: 1. They won't set it on themselves and 2. WoW does a great job teaching people time management and personal responsibility when they tango with the Azerothian Beast and lose.

Also what makes you think it is people turned off by the game that are cheating? I would be willing to bet the majority is power players looking for an advantage. They would be tech savvy enough to be confident using it and I do not know how many borderline cancelers even know what WoW glider is much less how it used.

[shander]

9.

It sort of cracks me up the lengths the parties are going to cheat/counter cheaters in a game.

Ok, I see the money in it for MDY ... large numbers of people paying a small amount make it worth while for a skilled programmer to get into a technical arms race against a large company... but I still find it funny.

So much of the cheating, gold farming, RMT etc that Blizzard cracks down on really stem from game design. Clearly there is a good size block of customers who want to play their product but find elements of it dissatisfying enough to pay extra money to: start the game at different points(leveling), to avoid certain parts of play that they don't enjoy (farming for materials or repair/enchantments gold).

Blizzard has a group of customers who don't want to play large parts of their game but are happy to pay even more than others to play the rest.

Instead of taking the extra revenue themselves, Blizzard hounds these customers out, spends significant money in employee time and effort programming, moderating, and suing offenders and creates semi criminal markets that create sets of problems (corruption of cusp players, exploitation of foreign workers, incentives for key logging and account stealing) not dissimilar to the problems stemming from prohibition of alcohol.

While I understand that achievement is a goal for a great many players I make the distinction between achievement coming from the process of accomplishment (fun) and the esteem or lack thereof of comparing your items to others. To boot getting items in WoW is far more a matter of time invested rather than skill (although skill can reduce the time spent) so what people are really getting is esteem from having played more.

While trying to stay away from the larger addiction issue, I do think there is something a bit dysfunctional about fostering pride from relative exclusivity of items possessed that took large and tedious time commitments. It almost admits that game design has people spending large amounts(tens even hundred of hours) of "play" not because they are enjoying the manipulation of their avatars, spells, efforts but out of some compulsive overlay of relative possessions (or obligation to groups to have those) and serves to maximize the values of sunk cost ties to the game.

The economic distortions are small portion of the game and addressable in many ways...a bit of a red herring as is the actual role that advantage resources give as the expectation is that people competing will have top equipment and know they wont' be competitive until they grind to get it.

Blizzard can't come out and say that many players will feel less self esteem and thus have less interest in playing the game at all if someone else buys what they spent 500 to 1000 hours of often tedius time to get.

[Bret]

10.

Anyone else find it interesting that Blizzard's claim of lost revenue relies on a presumption about how long it takes a player to have fun from using their product?

Blizzard: This will be easier if you charge $150 for the CD, give me and my three friends thirty-seven AI guild-mates who pot up and don't bitch, then just let us fight Onyxia right away. Think about it.

[Ola Fosheim Grøstad]

11.

@Bret: Yes. It's kinda like suing someone over making sports-equipment that doesn't meet the requirements for a competition.

Should the police be allowed to sue makers of radar-sensing devices for all the fines they don't get to collect?

[greglas]

12.

@Ola -- hmm.

[DM]

13.

Very interesting read from Adam Martin one of NCsoft Developers:
http://t-machine.org/index.php/2008/03/26/mmo-economies-suck-but-developers-are-blameless/

Nice to see an actual developer of an MMORPG discuss.

[David Grundy]

14.

The $10.5 million in lost revenue claim is extremely laughable, indeed I'd speculate it's loaded in as a shock tactic joke to try to up the potential damages claimed.

The entire idea surrounds 7 months of lost revenue. But it's completely unknown whether a player, if they'd started playing WoW normally, would have quit when he realised that he had an 8 month mountain to climb. (which btw, is rather weird in itself, I recently leveled a 70 in 6 days played i.e. 144 hours, they claim 480 hours for a 70 character so even that figure is open to interpretation and debate, the current "record" standing at 28 hours till 70)

Indeed, there could be a strong arguement (hey, I know saying this is like throwing a live hand grenade into the discussion, but what the hell..) that WoWglider might actually extend the life cycle of playtime for those players as they might have quit otherwise (yes a subjective arguement, but just as subjective as Blizzards contention regarding the $10.5 million)

David

[robusticus]

15.

At least the analysis admits the truth of deflation. However, that deflation is not necessarily malign. The prices of random drop goods that can not be easily obtained with botting are astronimic and way out of grasp of any casual player. Because those prices are so high due to a crimped supply those goods are soulbound to prevent RMT.

Bots do not cause a change in direct faucets versus sinks, that is gold that is directly procured rather than by selling random drop items on the AH. In other words, ~1 gold per mob to buy a 50 gold mount takes 50 mobs no matter what other players do. Additionally, there is a slew of cheap goods provided by these stone golems such that the value of that static direct faucet is increased and the time decreased for the casual players. If you are in the market to buy an Essence of Water, you appreciate that there is a golem there to fetch it for you on the cheap. Especially if there are no real players willing to do it, forcing you to do it yourself and spend your time against the defective RNG.

I do not think responding to the hard core complaining their labor is valued at only $.017 because of Glider is an appropriate use of the legal system. Their labor is not supposed to be measured in USD, period.

If these complaints were legitimate the response to limit the economic benefit to 15 hours a week would not be met with so much derision about nanny states, because the complainer would never go over 15 hours anyway.

Honestly, there should be more support costs involved to provide these people with some emotional support.

If there was an accord that bots had to actually look like stone golems and would have to stop when players with relevant quests arrived in a zone, people would build their own bots to defeat the legit bots and the GMs would have to kick the puritans (i.e. slave traders).

The Orange Catholic Bible has a spirit as well as a letter.

[Tom C.]

16.

I'd also like to add that revenue brought to Blizzard from Glider is high. As a Glider user myself, I'm in the know about how much "gliders" spend to feed their urge to get ahead. While a large portion of players pick up glider (and then glider elite) to advance their characters through the grind, others are simply buying more and more copies of the game/expansion/monthly fee to not only level their characters to sell, but to level them for the only purpose of gold selling. Blizzard bans these accounts almost all of the time, and their methods of banning are simply by player reports (Because glider is, as far as we know, undetectable.) and the possible detection of an unskilled glider.

Blizzard potentially makes more money banning these accounts than the negative impact that's taking place to "price inflation". Buying the game, the expansion, and if we sell the account, the transfer fee/renaming fee nets blizzard approx $75-100 every account. Without Glider, these accounts would not exist, and they would be losing money.

That's all I came to say!

[Rob]

17.

I just started using glider.. thanks to Blizz.. I know it must work.. I am levelling my GFs toon.. so we can Arena together. She quit at 60, and it caused us major problems.

If Blizzard catches me, then they lose 2 subs.. is it worth their time to bust my ass, and lose money.. that's their call and loss.. as for WoW economy, firstly, its not real, secondly, I'm only botting to give my REAL LIFE it's time back.

Blizzard will lose me if they win the case!!

I don't hate botter's either.. who cares, it's a game.. any economy the botters screw, is nothing compared to Blizzard roadmap or making everything redundant..

[1337BAWTORTEEHEE]

18.

First. My name is a joke.

Second. Perhaps people will stop botting when a game is produced with enough complexity, design, thought, and depth that no AI would be able to repeatedly advance through. I think once you make it to level 70, you should be able to spawn a 70 of any class you want. Why continue to torture (and leveling is torture) your player base when they will gladly keep playing you game at the "tweaked" levels of play?

Make yourselves known as a game company with integrity, intelligence and respect for your player base and I promise you will be rewarded with far far far more green than you currently have. Not to mention, no more botters exploiting your leveling.

You also might want to remove the republican economics guys from working on your game. Money is once again another thing that should have utility and significance... not just another grind. Same with Rep, and Honor. All of these just represent different grinds so you can squeeze out those cool moments of teamwork and playfulness with your friends.

No one wants to farm MEANINGLESS gold for faster transportation.

No one wants to farm MEANINGLESS points for better gear.

No one wants to farm MEANINGLESS items for their pve sets.

No one wants to farm MEANINGLESS items for resist gear. If resist gear is what MAINLY makes or breaks a boss fight your game inherently STINKS. SKILL SHOULD BE 80 FuCcking % of the determination.

Stop making people do INSANE AND UNCHALLENGING quest lines to get themselves keyed.

Focus on making STRATEGIC intensive PVE where what EVERY player on the team does is of SIGNIFICANT value. Where friends can try together repeatedly without having to go back and farm ANYTHING.

Make every part of the game significant, steal some of those Rockstar game designers if you have to. Every part, EVERY part of their game has something fresh to enjoy well after their characters are done with that "stage".

Do all this, and your game economy, botting, and all your other bullshit will disappear and all you will have are HAPPY, PAYING customers.

PS AOC may not come out as polished as warcraft, but my dethrown warcraft on artistic feeling, visuals, and better gameplay mechanics.

BETTER GAMEPLAY MECHANICS

[Jason Beatty]

19.

New filings: Response Briefs, April 24, 2008:
MDY:
MDY_Response_April_24_2008.zip

Blizzard:
Blizzard_Response_April_24_2008.zip

[Eric]

20.

The implications that this "bot" has on the game is kind of irrelevent. What is relevent is that it explicitly violates Blizzards EULA, is completely illegal as it undermines Blizzards entire gaming system for World of Warcraft, and breaks multiple copyright laws.

Donelly is fighting a losing battle just to hang onto his millions that he made illegally. If he made no profits from this do you think he'd be fighting so hard to win? No, he would've shut down his little operation the moment Blizzard showed him their complaint.

[Adam Ruch]

21.

I've just finished an article which addresses some of the issues that have come up in this comments trail, notably the 'meaninglessness' of certain aspects of MMOs. Anyone read the Gambling Your Life Away in ZT Online? Have a read of that article and mine, then talk about meaninglessness again.

Reflections on ZT Online

[iBotBecauseLevelingSux]

22.

I have three 70s all done manually. I'm not doing it any more. Once you hit 70, its another grind for rep/gear/honor/arena to get gear to compete at the top.

Why three? The constant nerfs/buffs to certain classes. It takes far too long to level a character only to have a developer destroy everything you've worked MONTHS if not YEARS to build.

If I wasnt botting my new character to 70, I would've canceled both my accounts.

Why two accounts? One to bot with and hold the character for 6 months and one main account that I dont have to worry about getting banned.