A US appeal court has upheld the illegality of WoW Glider, a high-profile and profitable bot for Blizzard’s World of Warcraft (hat-tip to Nic Suzor). The case is important both for its implications for bot use generally in MMOs as well as for a number of other legal points for games companies which come out of the case. The case was also not a clean win for Blizzard, which suffered setbacks in two important parts of the case.
Glider allows players to level up automatically within WoW by playing their avatars for them. It therefore bypasses the level progression built into WoW. Glider was built by MDY Industries, which is owned by Michael Donnelly, who sold it to WoW players for a lot of money. Interesting fact: Donnelly made $3.5m profit off WoW Glider, apparently.
Blizzard did not like Glider, unsurprisingly, and told MDY to stop selling it. MDY then commenced legal action seeking to justify the legality of Glider. In 2008, a California court held against MDY, finding both that Glider involved copyright infringement of WoW and that it contravened the Digital Millenium Copyright Act. That last bit needs a bit of explanation for non-US readers: the DMCA makes it illegal for you to try to circumvent technological protection measures which a software company puts in place to protect its software. In this case the principal protection measure is The Warden, a program that Blizzard uses to track down bots – and which Glider was designed over time to evade.
Having lost the lawsuit, Donnelly and MDY were therefore made subject to a huge $6.5m fine and ordered to stop selling Glider. They appealed – and the judgement from the US 9th Circuit appeal court has now arrived.
Key points from the case
- Blizzard lost its copyright infringement argument. In a nutshell, it argued that its EULA prohibits bot use and therefore, if a player uses Glider, that is a breach of the EULA and constitutes copyright infringement, for which MDY should be legally responsible as it sells Glider in the first place. The court held that in fact using a bot does not involve copyright infringement, it just means a breach of contract (i.e. of the EULA). In other words, using or selling Glider is still illegal because it involves breach of contract, but it’s not quite as illegal as Blizzard made out, i.e. copyright infringement. This has important practical consequences, because it significantly limited the legal penalties that Blizzard could seek against MDY. It is also significant legally, because it is the first time that a court has found that using a bot does not involve copyright infringement.
- However, Blizzard won the DMCA argument. The court found, again, that because Glider is specifically designed to evade The Warden, it therefore fell foul of the anti-circumvention laws in the DMCA. Therefore, the court upheld the ban on Glider, even though MDY had ‘won’ the copyright argument.
- Because Blizzard lost the copyright infringement argument, the court effectively overturned the massive $6.5m fine against Donnelly and MDY. Which must be a relief for them. But it doesn’t get them entirely out of the financial wood because…
- Blizzard had also run a ‘tortious interference with contract’ argument – i.e. it wanted MDY to pay for the damage that Blizzard suffered due to Glider, which appears to have been lost subscriptions. In the lower court, Blizzard won this argument, but the appeal court now basically has ordered a re-trial.
- We’ll very likely see this in the courts again, either because of the partial re-trial or because one or both parties attempts to appeal the case up to the US Supreme Court.
Other interesting points:
- The court affirmed the decision in Vernor v Autodesk earlier this year that games ‘owners’ in fact only license their games, they do not own them (read more here: what Vernor v Autodesk means for games)
- Blizzard apparently spends “$940,000” a year responding to complaints regarding anti-bot activities (contrast that with the $3.5m profit Donnelly made on Glider sales). Still, I wonder how much extra Blizzard spends on actually combatting the bots themselves.
- Interestingly, MDY’s explicit business model was to make it so commercially difficult for Blizzard to continue its anti-bot activities that it would effectively allow Glider to continue.
It might sound like a lot of legalese, but really this is a milestone lawsuit in the games industry:
- It shows yet another weakening of the EULA. Just because Blizzard said that using a bot was illegal and a breach of copyright, didn’t actually make it so. Expect more hard looks at the EULA in the future.
- On the other hand, it shows how important the DMCA is to protecting games in the US. The equivalent in the UK is the Copyright, Designs and Patents Act 1988 (you can read more about that here in the context of modchips).
- It also shows that Blizzard really doesn’t like bots. Its legal costs must be quite substantial by now and, the court having ordered that each side pay its own costs, it can’t recover them from MDY. That’s a lot of money to spend going after one bot, but Blizzard must have been banking that it will have a deterrent factor on other bots in the future.
Finally, here’s the really interesting question for me: MDY lost not because of Glider itself, but because it circumvented The Warden. What if there was an MMO with no such protection program in place (and, perhaps, with a less strict EULA too)? In that case, there is at least an argument I think that bots could be ‘legal’ for that game. Food for thought, eh?