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Dec 29, 2010

Comments

1.

An interesting thought for the DMCA claim I don't think was ever brought up.

That is, Is MDY actually circumventing warden (as in, Are they modifying the warden process so that it operates incorrectly, much as a "crack" would allow access to a program without paying) or is MDY simply modifying its own process to be undetectable. Im not sure that the DMCA would cover that case. Is there DMCA grounds simply because warden was incompetent at detecting a advanced program? Imagine it in a game of cat and mouse. The DMCA says, you cant interfere with the cat at all. But is making the mouse super-camoflague and impossible to find grant the same protections?

Note, this discussion could be mute if MDY was in fact modifying warden but I have not heard any claims either way. I did hear that MDY developed a "shadow driver" which made the program hidden from the windows process list, but again- This is not 'modifying' warden.

I hope MDY's lawyer brought up this point as it seems he may be remiss if he didnt.

2.

Humphrey,

The court deals with this at footnotes 16-18 and the text accompanying. I think it would be a reasonable interpretation of the DMCA to require that a circumvention technology in some way "breaks" the protection of a work. But that isn't how courts have interpreted. If a program disguises itself to gain access, that has been ruled to be a form of circumvention -- sort of like forging papers to get access to a building. (I hate the spatial analogies, but I'm afraid they're deeply ingrained in the logic of 1201.)

What bothers me is not so much that the court finds liability because Glider evades Warden (that bridge has been crossed several times), but that the sort of access control involved here is actually post-facto.

It's sort of like a guard in a movie theater who walks around checking to see if you have a ticket stub -- does that guard effectively "control access" to the work? Well, yes, in one sense, but you're already through the door, so the access control occurs after access has been gained. This suggests that post-hoc policing of behaviors (notably, copyright-unrelated behaviors) can amount to a technological access control measure under 1201.

Ruling otherwise would have been a way to narrow the scope of 1201, but the court doesn't seem interested in pursuing that distinction.

3.

And if this wasn't enough legal commentary on MDY, Lionel Sobel provides several more links to peruse here.

4.

Is there a reason 1201(f)(2) wouldn't apply? That exception places an infringement nexus and does not specify authorization, good faith or otherwise as 1201(g) does.

5.

Anyway...in my opinion blizzard is the best.

6.

Hi robusticus,

Doesn't seem like MDY raised that exemption claim. I'll have to double check the briefs. While it looks plausible, I think the jurisprudence has interpreted that exemption narrowly, but I should do some digging around to refresh and update my knowledge on that...

Greg

7.

Well, Lexmark, apparently. And an amicus brief in Chamberlain.

"Thus, even accepting the
validity of the concerns expressed in Chamberlain, those concerns
do not authorize us to override congressional intent and
add a non-textual element to the statute."

That sentiment is expressed throughout. My confusion is why the need to override congressional intent when the text is already there in 1201(f)(2)? Ignoring that part of the law seems to be a bigger override.

Further it seems the logic used to interpret 1201(a)(2) [and other sections] if applied to 1201(f)(2) in the same way in the same scope would have led to a different conclusion.

8.

Right -- I'm certainly with you on the curious way that the exemptions seem to mean less than the literal text reads, while the liability provisions are read more expansively than the literal text.

On 1201(f), the Davidson case (where Blizzard was a plaintiff in another case involving interoperation with an ongoing service) is the hurdle I was thinking of. If MDY decided not to go after 1201(f), that was probably the case they were looking at. The court there interpreted the exemption very narrowly, and that reading, if applied to Glider, would have ruled out 1201(f). But you're right that Lexmark's language is broader.

It's hard to second guess strategy, but it does seem like it would have been worth giving 1201(f) a go here. The court's approval of the Corley approach makes me dubious the argument would have persuaded it, though. I still haven't looked back at the briefs to see if it was ever raised by MDY, but a quick text search of my library suggests it wasn't.

9.

Well strategerizing is much easier with a ruling in hand, I imagine.

Is BNetD the case you are thinking of? Both BNetD and Corley involved technologies that created the possibility (likely, one could argue) of infringement where no possibility existed prior. With Glider infringement is simply impossible. So even the narrowest interpretation of 1201(f), even a more narrow one than Lexmark - which involved copying software in its entirety - should include Glider. I can't imagine any case that would qualify under 1201(f) if not something like this.

Is the Supreme Court next? Or is there an interim step yet? Sorry for the basic questions, Holiday Inn Express lawyering has its limits.

10.

Well strategerizing is much easier with a ruling in hand, I imagine.

Is BNetD the case you are thinking of? Both BNetD and Corley involved technologies that created the possibility (likely, one could argue) of infringement where no possibility existed prior. With Glider infringement is simply impossible. So even the narrowest interpretation of 1201(f), even a more narrow one than Lexmark - which involved copying software in its entirety - should include Glider. I can't imagine any case that would qualify under 1201(f) if not something like this.

Is the Supreme Court next? Or is there an interim step yet? Sorry for the basic questions, Holiday Inn Express lawyering has its limits.

11.

Yes, it's the BNetD case I'm thinking of, and you're right that Blizzard argued in that case that the avoidance of the access keys in the rogue Battle server meant that people could play with pirated copies of the game. But there's some interesting language in that decision about the way the TOS relates to 1201(f) -- I could try to parse it, but in short, I don't think that court would rule different w/r/t Glider.

In Corely as well, the defendants made the claim that DeCSS could be used to obtain access for non-infringing fair uses, but the court was not buying that, essentially stating, like the MDY court, that 1201(a) was paracopyright law, and it didn't matter what happened after the tool was used to circumvent.

To do this right, I'd down and re-read these cases interpreting 1201(f) closely before replying. Maybe I'd look at the secondary literature too. So I'm doing this wrong.

The interim step would be en banc review by the Ninth Circuit -- I think this would be a great case for that.

In theory, it could go to the Supreme Court (wouldn't that be neat!) but honestly, I'd much rather a more sympathetic DMCA 1201 case went up first instead. Like I said in the OP, I think this case if about gold farming and -- writ broadly -- virtual world governance. But the record doesn't lay that material out.

Also, there are plenty of other circuit splits out there and the Supreme Court only takes a handful of cases each year. So if MDY wants to petition for cert, it gets a lottery ticket. A valid lottery ticket, but still a lottery ticket.

12.

Even if the court disagrees it would be nice to at least have it addressed so we could know exactly what is the issue. I'd like to think it's a far cry from dreaming up some non-infringing use when you get sued to absolutely no infringement being possible, no infringement having been committed. But I'd also like to think it should be illegal for a system to kill an application for arbitrary reasons.

As for sympathetic cases, well, the underlying concept here is third party applications driving innovation. Virtual world automation is a huge driver of innovation, way more so than most types of third party applications. Glider losing causes the pace of innovation to slow. Ironically that will delay Congress addressing virtual worlds in the way they've addressed other media.

So I would be more sympathetic to 1201(a) if the third parties were allowed in some context but not others. Like for example if you could pay more for an iPhone that runs Flash but is not supported, or pay less for the "pure" version. In that case I would think it would be ok to kill and ban in the "pure" version.

13.

I agree with Andy, in that, blizzard is the best!

It is so interesting to observe the painful developments of our growing virtual world on the real world; even possibly the Supreme Court.

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