As we related in Part I of this post, Blizzard Entertainment, distributor of the World of Warcraft game software and the operator of the servers that enable online game play, sought to block the use of automated game playing software by deploying anti-bot software, WoW Warden. But MDY Industries, the distributor of the Glider bot software, countered that move by re-engineering Glider to evade detection by Warden and enable users to continue access WoW’s servers while using the bot. This feature of Glider is the basis for Blizzard’s claims that MDY violated the provisions of the Digital Millennium Copyright Act that prohibit trafficking in software and other devices that enable circumvention of copyright protection technologies.

In MDY Industries, LLC v. Blizzard Entertainment, Inc., the Ninth Circuit commenced its analysis of the DMCA issues by parsing the complex interconnection between the two parallel prohibitions in the anticircumvention provisions: the prohibition in Section 1201(a) against the circumvention of a technological measure that “effectively controls access to a work protected under this title,” i.e., a copyrighted work; and the prohibition in Section 1201(b) against the circumvention of a technological measure that “effectively protects a right of a copyright owner.” It is important to note the difference between the two sections: Section 1201(a) protects measures that limit access to a copyrighted work, while Section 1201(b) protects measures that protect a right of a copyright owner.

The appeals court concluded that a copyright owner’s rights in Section 1201(a) are, in effect, broader than a copyright owner’s rights under Section 1201(b) because “preventing ‘access’ to a protected work in itself has not been a right of a copyright owner arising from the Copyright Act.” And thus, the court said, “we read this term as extending a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to … copyrighted works.”

The court explicitly rejected the argument that Section 1201(a) should be more narrowly construed, and should only be applied where there is a “nexus” between the access sought to be prevented and a copyright owner’s rights under the Copyright Act. Such a nexus was required by the U.S. Court of Appeals for the Federal Circuit in Chamberlain Group, Inc. v. Skylink Technologies, Inc. (Fed. Cir. 2004), where a manufacturer of garage door openers that contained copyrighted firmware unsuccessfully sought to use the anticircumvention provisions to bar the use of third-party replacement controls that required access to the firmware in order to activate the opener.

As the Ninth Circuit in MDY v. Blizzard acknowledged, in Chamberlain, the Federal Circuit “feared that Section 1201(a) would allow companies to leverage their sales into aftermarket monopolies, in tension with antitrust law and the doctrine of copyright misuse.” The Ninth Circuit concluded that the policy concerns that the Federal Circuit relied on in Chamberlain were not present in MDY v. Blizzard, and that the potential interplay between antitrust law and Section 1201(a) could be reserved for future cases. And in any event, the Ninth Circuit concluded, those policy concerns should not prevail over the plain language of the statute, and the legislative history that it carefully and extensively examined.

The Ninth Circuit also left for future consideration the issue of whether fair use is a defense to a prima facie violation of Section 1201, because MDY did not claim that the use of Glider was protected by the doctrine of fair use.

The next question the court tackled is whether Blizzard’s Warden software either “effectively controls access” to a copyrighted work or “effectively protects a right of a copyright owner.” And that requires understanding of how the WoW software is structured, and how the Warden program works.

The WoW software consists of two components: a game client that is installed on the user’s computer, and game elements that are available only when the user is connected to the WoW servers. The court divided the protectable elements of the WoW software into three “buckets”: the literal elements of the software (the game client’s software code that resides on the user’s computer), the individual non-literal elements (individual components, such as recorded sounds and images that are stored locally and called up by the game client software in the course of play) and the game’s dynamic, non-literal elements, the “real-time experience of traveling through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players.” This last element is only available when the user is connected to the WoW servers.

The Warden program has two functions: first, it scans the random access memory (RAM) of a user’s computer before the user connects to WoW’s online game servers to see if a bot is running, and second, it periodically scans the user’s RAM to look for patterns of code that it has identified as belonging to bots and other cheating software. When it detects a bot before the user has connected to a game server, it prevents the user from logging on to the server, and if it detects a bot during play, it boots the player from the server.

Given the manner in which Warden functions, the court concluded that it does not prevent access to either the of the WoW elements that are stored locally on a user’s computer, because those elements are accessible to a user despite the presence of Warden. But Warden does prevent access to WoW’s dynamic, non-literal elements that are accessible only when connected to Wow’s servers. Accordingly, the appeals court found that Warden is a technological measure that “effectively controls access” to a copyrighted work, and that MDY had engaged in trafficking in a technology, Glider, that circumvents that control, in violation of Section 1201(a)(2).

MDY was not found to violate Section 1201(b). Blizzard argued that Warden effectively protected its right against unauthorized copying in various respects, but the court disagreed. Because WoW gamers are authorized to load the game code into RAM, a user of Glider who continues to load code into RAM despite Warden’s efforts to interrupt that process are not infringing, the court found. And, because WoW players using Glider who are able to log on to the game server and access the dynamic non-literal elements of the game despite Warden’s efforts, Warden doesn’t “effectively” protect against copying.

For Blizzard, although the ruling is a mixed bag, the result is certainly not a total loss. At the end of the day, its Section 1201(a) trafficking claim survived with respect to protecting WoW’s dynamic, non-literal elements from copying, and is likely to be sufficient basis for the district court to reissue an injunction and award of damages. Although summary judgment on Blizzard’s tortious interference claim was vacated, it may still press that claim on remand.

For users of software and other copyrighted works, the aspects of the ruling dealing with the issue of contract covenants and copyright conditions narrows the circumstances under which they might be found to be copyrighted infringers, should they violate a provision in a Terms of Use or similar document. Accordingly, service providers may be limited in using the stern remedies of the Copyright Act to control unwanted access to their systems, at least in the Ninth Circuit. In that respect, see, e.g., Facebook, Inc. v. Power Ventures, Inc. (N.D. Cal. May 11, 2009), discussed here.

For device manufacturers who, like the garage door opener manufacturer in Chamberlain, wish to use the DMCA anticircumvention provisions for competitive advantage, the ruling may present new possibilities for structuring their products. And of course, copyright owners generally will be advantaged in their efforts to use technical means to block unauthorized access to their works.

For the DMCA itself, the ruling in MDY v. Blizzard sets up a circuit split on the construction of the anticircumvention provisions, and presents the possibility of U.S. Supreme Court review. Or possibly, a reexamination of the ruling by the Ninth Circuit en banc, a remedy that either or both sides in the case might well seek.