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Thought you owned that copy of WoW? Think again

November 3, 2009 by · Comments Off
Filed under: Business, Copyright Articles 

By Jennifer Reichle

Thought you owned that copy of WoW? Think again. A recent district court case found that World of Warcraft users do not own the software they purchase, but merely license it.

The case is MDY v. Blizzard. Glider, created by MDY, is a program (better defined as a “bot”) that “plays” World of Warcraft automatically. It doesn’t use hacks and won’t let your character move at super speed. It just performs tasks that any person can perform gaining experience points; just without any human interaction. Essentially the user can go to school or work while their character is leveling up at home.

Thinking that it doesn’t seem fair? Well, it’s not. It’s actually a violation of World of Warcraft’s Terms of Use Agreement: “You agree that you will not, under any circumstances: A. use cheats, automation software, hacks, mods or any other unauthorized third-party software designed to modify the World of Warcraft experience.”

If it’s a violation of the Terms of Use Agreement then what’s the issue? The issue is that Blizzard, the owners of World of Warcraft, then sued MDY for copyright infringement. Blizzard claims that MDY is in violation of 17 U.S.C.S. §1201 (a)(2) of the Digital Millennium Copyright Act which states, “no person shall manufacture, import, offer to the public, provide, or otherwise traffic any technology…that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this [DMCA] title.”

There is a six part test for a violation under 17 U.S.C.S §1201(a)(2) that the party alleging a violation must prove:

1.  That they own a valid copyright on the work

2.  That the work is effectively controlled by a technology measure, which is now being circumvented

3.  That third parties can now access;

4.  That the copyright owner has not authorized it;

5.  That this was done by a product in which the defendant either: designed or produced primarily for circumvention, made available despite only limited commercial significance other than circumvention, or marketed for use in circumvention of the controlling technological measure;

6.  That it infringes or facilitates infringing a right protected by the copyright act.

First, Blizzard did own a valid copyright on the dynamic non-literal elements of WoW; when fighting the monster, encountering another in town, viewing the scenes with wolves, etc. Second, WoW is effectively controlled by something called Warden that is being circumvented by Glider. Warden has two software components: one that scan the computer before logging onto the Blizzard server to determine whether any unauthorized programs are running and another that runs periodically throughout the game to make sure that no unauthorized programs are running. Glider circumvents Warden so the bot can be used. Third, Glider allows third parties to access the dynamic non-literal elements of the game. Fourth, Blizzard has not authorized the access. Fifth, Glider was designed to circumvent Warden. Blizzard has altered Warden twice to allow it to catch Glider users, thus banning the users from playing. Each time MDY alters Glider to allow it to run unnoticed by Warden. Glider would have no commercial significance if it did not circumvent Warden. Also it is marketed as to the point that it circumvents Warden. Sixth it infringes or facilitates infringing a right protected by the Copyright Act?

When a user launches a copy of WoW (or any piece of software) from the hard drive to play the game, the WoW client is then copied from the hard drive to the random access memory (RAM). More files are copied as they are needed. This continues until the program is closed. In MAI Sys. Corp v. Peak Computer, 991 F.2d 511 (9th Cir. Cal. 1993), it was decided that “In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement.” In this case, the user doesn’t own the copyright. There is permission by license to play the game, if the user agrees to, and adheres to, the EULA and Terms of Use Agreement. When the bot is used it violates the EULA and Terms of Use Agreement; therefore, running the game is copyright infringement.

So when you walk into Best Buy and purchase software what are you actually getting? A disk with software on it, some packaging, and a license. You also get the opportunity to agree to and adhere to the EULAs and Terms of Use Agreements thus allowing you to actually use the software.

If you’re playing Full Tilt poker and are using a poker odds calculator, that’s infringing a right protected by the Copyright Act. If you put Adobe Photoshop on your home and laptop computer and a colleague uses it, that’s infringing a right protected by the Copyright Act. So be sure to read the EULA before you click I agree and adhere to every line. Because like Microsoft says, “The software is licensed, not sold.”