Friday, June 18, 2010


We're back with the third and final round in our "Battles in Seattle" series.

Round 3 - MDY Indus. v. Blizzard Entertainment

Blizzard Entertainment and Vivendi Games (“Blizzard”) are the creators and operators of the popular Massively Multiplayer Online Role-Playing Game (MMORPG) World of Warcraft. Blizzard owns the copyright for the World of Warcraft software. MDY Industries created a bot (short for robot) known as WowGlider. The WowGlider bot plays World of Warcraft for its user while he or she is not playing, thus enabling WowGlider users to advance, and attain experience and game assets more quickly within World of Warcraft than other players. MDY sought declaratory judgment that its Glider program did not infringe Blizzard’s copyright and Blizzard counter-claimed against MDY for trademark infringement, contributory and vicarious copyright infringement, tortuous interference with contract, violation of the DMCA, unfair competition and unjust enrichment.

In arguing against Blizzard’s counerclaims, MDY urged the District Court to adopt the Western District of Washington’s decision in Vernor v. Autodesk, Inc. and find that WoW players are owners of the software because they are entitled to keep the copy of the software they acquire from Blizzard. The District Court of Arizona did not adopt MDY’s position.

The District Court of Arizona granted summary judgment in favor of Blizzard with respect to MDY's liability for tortious interference, contributory copyright infringement, and vicarious copyright infringement. The court granted summary judgment in favor of MDY on a portion of the DMCA claim and on the unfair competition claim. In making its ruling on Blizzard's copyright infringement claims, the Court inquired whether purchasers of WoW owned their copy of the game. Pursuant to to 17 U.S.C. § 117, owners of computer programs are allowed to create copies or adaptations of the computer program if it is an essential step towards utilization of the program. The Court found that WoW purchasers were not owners of their copy of the game but rather were licensees. Thus, the players are required to adhere to the End User License Agreement and the Terms of Use set by Blizzard in order to play the game. Blizzard expressly prohibits "the use of bots or third-party software to modify the WoW experience" in the Terms of Use and End User License Agreement. Thus, the Court found that players who use Glider violated the Terms of Use and were not licensed to use WoW and therefore the copying of the World of Warcraft software to RAM constituted copyright infringement.

Unlike UMG Recordings Inc. v. Augusto and Vernor v. Autodesk, Inc., the oral arguments in MDY Indus. v. Blizzard Entertainment dealt predominantly with the contractual issues and the validity of shrinkwrap licenses. Counsel for MDY argued, along the lines of Vernor, that Blizzard’s End User License Agreement and Terms of Use were merely labeled as licenses but were not and that merely stating in the contract that a certain action was copyright infringement did not make is so.

You can listen to the oral argument in its entirety here.

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