The Digital Millennium Copyright Act Imposes Liability for Circumventing Technological Measures That Protect a Choreographed Compilation of Copyrighted Works

MDY filed a claim for declaratory judgment that its program, Glider, did not infringe rights owned by Blizzard. Blizzard Entertainment counterclaimed, alleging two violations of the Digital Millennium Copyright Act (DMCA). Blizzard also attempted to hold Michael Donnelly, the president of MDY, vicariously liable for tortuous interference and copyright infringement, previously decided at summary judgment. Glider is ‘bot’ software that can play Blizzard’s World of Warcraft (WoW) for users. Blizzard claimed that MDY violated §1201(a)(2) and §1201(b)(1) of the DMCA by trafficking in a technology designed to circumvent protective countermeasures in WoW’s code designed to protect copyrighted material. Previously at summary judgment the court held that this DMCA protection did not apply to the literal game code. The court extended this logic, holding that the protection also did not apply to non-literal elements of the game, like graphics and sound, because the user could freely access these elements. Instead the court noted that Glider circumvented a countermeasure protecting the dynamic game play experiences which even when merely ‘choreographed’ by the server, is protected by copyright.

Michael Donnelly, as president of MDY, created a ‘bot’ called Glider. Glider can play World of Warcraft (“WoW”) automatically on behalf of players. The court found this program grants users an advantage playing WoW. This advantage upsets the game balance Blizzard attempts to maintain, in part through preventing play by use of bots via electronic countermeasures, including a program called Warden. Blizzard brought claims under § 1201(a)(2) and §1201(b)(1) of the Digital Millennium Copyright Act (DMCA). Section 1201(a)(2) prohibits trafficking in any technology designed to bypass a technological measure that controls access to a work. Section 1201(b)(1) prohibits circumventing any technological measure protecting a copyrighted work.

Warden periodically scans for unauthorized programs in computer memory and can block access to the WoW server if it finds any unauthorized programs. MDY reversed engineered Warden and created a version of Glider immune to detection. The court previously held that Warden protected the literal game code because a player could access the code without being connected to Blizzard’s server. Likewise the court found that Warden failed to protect the non-literal game elements, like graphics and sound, because again users could access these elements while off the Blizzard server.

However, the court found that the WoW game was “controlled or choreographed by a Blizzard server.” Therefore Warden with its ability to terminate connection to the server protected the dynamic game play experience. The court examined whether protection of the ‘dynamic elements’ of the game, i.e. game play, fell under § 1201(a)(2) and §1201(b)(1) DMCA. This question turned on whether copyright protection subsists for the dynamic composition of copyrighted works. MDY argued that ‘dynamic elements’ of the game lost copyright protection because game users control the game environment and the game environment is not a “work[] of authorship fixed in any tangible medium.” The court rejected this argument, holding that even in a process only choreographed by Blizzard the “[a]udio visual displays of computer games are subject to copyright and a player’s interaction with the software of those games does not defeat protection.”

Donnelly next argued that a ‘technological counter measure’ requires that a computer user apply information to gain access to copyrighted content. The court held that Warden requires the application of information to gain access to WoW, and that even without any human involvement, it creates an electronic counter measure. Because Warden protected the “dynamic non-literal sights and sounds of WoW,” and because MDY constructed Glider to bypass Warden, the court held MDY liable under both § 1201(a)(2) and § 1201(b)(1).

The court then turned to the personal liability of Donnelly and whether a permanent injunction was an appropriate remedy. The court found Donnelly personally liable for tortious interference and contributory and vicarious copyright infringement. For tortious interference with contract the court held that Donnelly knew of a valid contract between Blizzard and its customers and knew of his improper interference because Blizzard sent a cease and desist letter outlining the improper interference.

For contributory and vicarious copyright infringement the court stated a two prong test of (1) ability to supervise and (2) direct financial interest. Relying on MGM Studios, Inc. V. Grokster, the court rejected Donnelly’s claims that knowledge of infringement is necessary. The court then found Donnelly as owner of MDY supervised the infringing activity and personally benefited from the infringement.

The court granted a permanent injunction against MDY. It held that Glider caused an irreparable injury to Blizzard for which there was no adequate remedy: the lost goodwill of players in the game. Since the only harm to MDY would be an inability to profit from activities that are likely to be infringing, the balance of hardships favored Blizzard. For the element of public interest the court found that protecting copyright is in the public interest.

MDY Industries, LLC v. Blizzard Ent’t and Vivendi Games, Inc., No. CV-06-2555-PHX-DGC (D. AZ, Jan. 28, 2009)