

World of Warcraft utility bot violates DMCA, says 9th Circuit - anigbrowl
http://www.ca9.uscourts.gov/datastore/opinions/2010/12/14/09-15932.pdf

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tptacek
I'm morally on Blizzard's side, but if you're a freedom-to-tinker absolutist
there are some bright spots in here. Highlights:

1.

The ruling draws a bright line distinction between "conditions", which limit
the the scope of right copyright rights granted by a contract, and
"covenants", which are basically any other promise in that contract. Under
this ruling, you can't claim copyright violation when someone violates a EULA
covenant; the fundamental right to make whatever copy you made was determined
by the conditions in the contract, not the covenants. What this means is that
companies can't force you to hop up and down on one foot or say nice things
about them in public and then claim _copyright violation_ when you don't. See:

 _Were we to hold otherwise, Blizzard — or any software copyright holder —
could designate any disfavored conduct during software use as copyright
infringement, by purporting to condition the license on the player’s
abstention from the disfavored conduct. The rationale would be that because
the conduct occurs while the player’s computer is copying the software code
into RAM in order for it to run, the violation is copyright infringement. This
would allow software copy- right owners far greater rights than Congress has
generally conferred on copyright owners._

2.

But on the other hand, there is a major shift in DMCA interpretation in the
ruling. Prior rulings have held that the DMCA comes into play only in the
setting of copyright violation. In particular, there had to be a nexus of both
circumvention _and_ a resulting violation of copyright to employ the
anticircumvention cause of action.

No more. This ruling reads the plain language of the DMCA and determines that
Congress meant to establish _two_ anticircumvention causes: 1201(a), which
covers _any_ circumvention, and 1201(b), which covers only copyvio
circumvention. In support of this interpretation, beyond the plain text of the
statute, the court notes that there are different checks on 1201(a) and
1201(b): 1201(a) is subject to Library of Congress exemptions and 1201(b)
isn't, but 1201(b) only applies in copyvio.

To the concerns that this interpretation will result in a distopian hellscape,
the court responds:

* Tell it to congress, bitches.

* If DMCA anticircumvention exacerbates antitrust, bring an antitrust-relevant DMCA case and they'll consider it.

* Stop being silly about DMCA violations for bypassing your own burglar alarms.

3.

Finally, it's worth looking at the court's take on Blizzard's tortious
interference claim. Recall: you're liable for the tort of interference when
you cause damage by knowingly and improperly inducing someone else to violate
a contract. Blizzard has what seems to be a very strong case here; MDY
conceded that very point on its own website. Thus, Blizzard got a lower-court
summary judgement on this point.

The court reversed the summary judgement. To get a summary judgement for
interference out of the 9th circuit, you need to consider 7 factors:

\- Nature of the conduct - Motive - The interests of the aggrieved party - The
interests the interference advances - Relevant social interests - How directly
the conduct actually bore on interference - Any existing relationship between
the interferer and the aggrieved party.

The appeals court decided that the factors here were too murky to grant a
summary judgement; MDY's product may have provided meaningful benefits to
users, and even advanced social interests by (wait for it) "improv[ing] some
users’ romantic relationships by reducing the time that they spend playing
WoW". I FIND IT HARD TO DISAGREE.

ps.

Permit me a brief moment of punditry:

I'd like to live in a world where companies are free to offer the products
they choose to offer under the terms they choose to offer them under.
Companies should not have to incur a technological arms race simply to ship a
"no bots allowed" game". I also feel like that's a point that startup
entrepreneurs should sympathize with.

On the other hand, the DMCA makes me queasy, because companies will exploit it
to advance illegitimate interests, such as "preventing the public from
learning about product flaws discovered through unauthorized research that
endanger them". The DMCA has controls against this, but they all seem to
involve researchers spending hundreds of thousands of dollars on lawyers.

So while I'm glad that Blizzard looks poised to "win" this, I wish there was
something less treacherous than the DMCA to allow them to do it.

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bumbledraven
_I'd like to live in a world where companies are free to offer the products
they choose to offer under the terms they choose to offer them under._

Companies have always been able to _offer_ products under arbitrarily
complicated terms of their choosing. But any supposed benefits from having the
government _enforce compliance_ with these terms should be weighed against the
consequent loss of individual privacy & liberty.

~~~
bdr
Why can't you do that weighing as an individual?

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bumbledraven
Because all the citizens of a country live under one government, the rules of
which supposedly apply to everyone.

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tptacek
I don't understand this response at all. Contract covenants aren't laws;
they're agreements freely entered into between parties: "you promise not to do
X and to pay me Y, and I'll let you play my game Z".

~~~
bumbledraven
For people who entered into a contact with Blizzard in order to use their
system, sure. I'm talking about a 3rd party who obtains their client through
an anonymous third party and reverse-engineers it.

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mquander
I don't understand their reconciliation of this case with the printer toner
case in regards to Warden "effectively controlling access" to WoW's dynamic
elements. From the decision:

 _...In Lexmark, the plaintiff sold laser printers equipped with an
authentication sequence, verified by the printer’s copyrighted software, that
ensured that only plaintiff’s own toner cartridges could be inserted into the
printers. The defendant sold microchips capable of generating an
authentication sequence that rendered other manufacturers’ cartridges
compatible with plaintiff’s printers.

...The mere purchase of one of plaintiff’s printers allowed “access” to the
copyrighted program. Any purchaser could read the program code directly from
the printer memory without encountering the authentication sequence. The
authentication sequence thus blocked only one form of access: the ability to
make use of the printer. However, it left intact another form of access: the
review and use of the computer program’s literal code...it seems clear that
this provision does not naturally extend to a technological measure that
restricts one form of access but leaves another route wide open._

By the same token, wouldn't you say that Warden blocks only one form of access
to WoW's copyrighted dynamic elements -- the ability to access the game when
running a bot -- and leaves intact another form of access -- the ability to
access the game normally when no other programs are running? Can someone who
understands the fine print here help explain the distinction?

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wtallis
Good point. There does seem to be some disagreement.

The Lexmark case was heard by the 6th Circuit, and this one by the 9th. It
would seem that a petition for a writ of certiorari would likely be granted
for this or a similar case so that the Supreme Court can reconcile any
differences. However, I'm not sure that I want the current Supreme Court to
have the opportunity to strengthen the DMCA.

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dion
_That is, MDY (1) traffics in (2) a technology or part thereof (3) that is
primarily designed, produced, or marketed for, or has limited commercially
significant use other than (4) circumventing a technological measure (5) that
effectively controls access (6) to a copyrighted work. See 17 US.C. §
1201(a)(2)._

I don't quite get how elements 3 and 4 are met. Glider's primary purpose is to
autonomously play WoW (as stated in the opinion) not to bypass Warden. Was it
"primarily marketed" as a Warden bypass? I assumed it was marketed as a bot
with the Warden bypass as a feature? I guess I'm misunderstanding the 3rd
textual element for violating § 1201(a)(2).

Can anyone clarify?

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jamii
Slightly OT: I would love to see games designed to be scripted by the users.
It would be fascinating to see the kinds of strategies and user interfaces
that would evolve. RTS user interfaces haven't changed significantly in the
last couple of decades. The number of times I've cursed at stupid pathing or
unit AI in existing RTS games - I know exactly what I want them to do but I
can't communicate my intentions.

There are plenty of AI competitions but I don't know of anything for AI-
assisted humans. Perhaps I should start one? Modifying an existing open-source
RTS seems like the best route.

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trotsky
[EDIT - removed - it seems I couldn't tell the difference between what was
being overturned and the actual decision]

This is a case where being able to provide a bit of context for the link would
be useful.

~~~
jasonlotito
> If another party markets green shirts to users of this progam, they would
> under this case be liable for contributory infringement.

No. This is not accurate. It's not even close. The "shirt maker" would have to
be making shirts specifically to violate the agreement of the customer.

Blizzard isn't going after software that could potentially infringe. Rather,
it's going after software that was specifically designed to infringe. Indeed,
to make the software, the developer would have to infringe.

Whether this is fair or not is up for debate. But don't mischaracterize it as
something it's not.

~~~
trotsky
Well, I had meant to characterize the shirt as having been specifically made
for the software users who wished to violate the license agreement. But never
the less the court didn't actually hold this - the lower court did. This
document says that no copyright infringement happened.

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jrockway
Wow, what utter fucking bullshit. It looks like the court just rubber stamped
whatever the BSA submitted. They actually say it's copyright infringement to
copy a program into RAM to run it.

Mind boggling.

~~~
mquander
Your remark is utter fucking bullshit; it's clear that is not the basis of
this case. The decision explains clearly that Blizzard cannot put arbitrary
conditions on a user's license to copy the program into RAM, so Glider is not
liable for doing so against Blizzard's preference.

 _First, although WoW players copy the software code into RAM while playing
the game, Blizzard’s EULA and ToU authorize all licensed WoW players to do so.
We have explained that ToU § 4(B)’s bot prohibition is a license covenant
rather than a condition. Thus, a Glider user who violates this covenant does
not infringe by continuing to copy code into RAM. Accordingly, MDY does not
violate § 1201(b)(1) by enabling Glider users to avoid Warden’s interruption
of their authorized copying into RAM._

(from earlier)

 _A Glider user violates the covenants with Blizzard, but does not thereby
commit copyright infringement because Glider does not infringe any of
Blizzard’s exclusive rights... Were we to hold otherwise, Blizzard — or any
software copyright holder — could designate any disfavored conduct during
software use as copyright infringement, by purporting to condition the license
on the player’s abstention from the disfavored conduct._

~~~
jrockway
Well, I got bored in the middle, so there.

~~~
mquander
I enjoy this reply.

