Blizzard notched another victory in its legal campaign against World of Warcraft bots when a judge on Wednesday ruled that a leading bot violates the Digital Millennium Copyright Act. MDY Industries LLC, the firm that develops and sells the Glider bot, already suffered a major setback last summer when the judge granted Blizzard summary judgment on several key issues. This week's decision deals with the issues the judge believed could not be decided until the conclusion of this month's trial. The judge ruled that Glider violated the DMCA's ban on "circumvention devices," and he also found that MDY's founder, Michael Donnelly, was personally liable for the actions of his firm.

As we've noted before, Blizzard's legal arguments, which Judge David G. Campbell largely accepted, could have far-reaching and troubling implications for the software industry. Donnelly is not the most sympathetic defendant, and some users may cheer the demise of a software vendor that helps users break the rules of Blizzard's wildly popular role playing game. But the sweeping language of Judge Campbell's decision, combined with his equally troubling decision last summer, creates a lot of new uncertainty for software vendors seeking to enter software markets dominated by entrenched incumbents and achieve interoperability with legacy platforms.

DMCA hairsplitting

World of Warcraft includes software called a "warden" that scans a user's computer looking for bots such as Glider. Blizzard contends that Glider violates the provision of the DMCA that prohibits "trafficking" in software that is "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work" protected by copyright.

Judge Campbell has distinguished between the actual bits stored on the World of Warcraft disk (which he called the "literal elements" of the game) and the interface elements the user encounters as he's actually playing the game (which he dubbed "non-literal elements"). In his ruling last summer, Judge Campbell ruled that Glider did not violate the DMCA with respect to the "literal elements" because Warden did not "effectively control" access to those elements: they are stored, unencrypted, on the World of Warcraft disk. But he deferred until this month's trial the question of whether Glider violated the DMCA with respect to the "non-literal elements."

In Wednesday's ruling, Judge Campbell found that Warden did effectively control access to the "non-literal elements." That is, while Warden does not prevent users from accessing the individual elements of the game separately, it does effectively bar users from accessing all of the elements together while playing the game. Therefore, Judge Campbell concluded, MDY violated the DMCA when it evaded warden's checks.

MDY argued that these "non-literal elements" did not constitute a distinct copyrighted work, and therefore could not trigger DMCA liability. The firm offered two arguments. First, the law only grants protection to works that are fixed in a tangible medium, and MDY argued that the "non-literal elements" were too ephemeral to qualify. The judge rejected this argument, holding that it was sufficient that the "non-literal elements" could be recorded by screen-capture software, even if Glider didn't actually do so. Second, MDY argued that the "non-literal elements" were not created solely by Blizzard, but by the interaction of Blizzard's software with the user. Hence, if the game experience was copyrighted, it would be the joint work of Blizzard and its users. The judge tersely rejected this argument as well.

The other question Judge Campbell considered is whether Michael Donnelly, MDY's founder and Glider's author, should be personally liable for the infringing activities of his firm. Donnelly contended that because copyright is unclear in this area, and because he believed his conduct to be legal, that he should not be personally liable for the infringing activities of his firm. Judge Campbell rejected this argument, holding that Campbell was aware of his firm's actions and should have known that they were illegal.

Ars talked to two legal experts at Public Knowledge, a public interest organization that filed an amicus brief in the MDY case last year. Staff attorney Sherwin Siy compared Wednesday's decisions to past decisions that tried to use the DMCA to limit competition in the garage door opener and printer industries. He noted that the purpose of warden seemed less to control access to a copyrighted work than to a network service—quite a different thing. Siy's colleague Jef Pearlman agreed, warning that if the courts weren't careful, we could end up in a situation where "because anything can contain copyrighted works, any access to anything becomes a DMCA violation."

Siy and Pearlman also expressed skepticism at the notion that these "dynamic, non-literal elements" constitute a distinct copyrighted work. The in-game experience is assembled from a variety of disparate elements, including files already on the user's hard drive, instructions from Blizzard's server, and the decisions of the various players.

Judge Campbell's ruling seems clearly out of step with the stated purpose of the DMCA. When Congress passed the DMCA in 1998, it was concerned with the specter of mass file-sharing on the Internet. Yet in this case, there is no file-sharing in sight. Glider is designed to be used by legitimate Blizzard customers who not only paid for their copies of World of Warcraft, but pay a monthly fee for access to Blizzard's servers as well. Blizzard is using the DMCA not to stop illicit file sharing, but as an all-purpose tool to control their users' behavior.

Next stop: Ninth Circuit

It's a safe bet that the ruling will be appealed to the United States Court of Appeals for the Ninth Circuit, the appeals court that has decided many key high-tech copyright cases. Although Wednesday's ruling will be among the issues considered by the Ninth Circuit, the core of the argument will likely focus on the issues Judge Campbell decided last summer, especially the relationship between copyright law and contract law.

Blizzard argued, and Judge Campbell agreed, that when users violated the World of Warcraft EULA, they no longer had a license to play the game and were therefore guilty of copyright infringement. As Siy noted in a blog post last year, Blizzard's theory, if taken literally, would mean that violating any of the rules in the EULA and Terms of Service, such as choosing a screen name that didn't meet Blizzard's guidelines, would be an act of copyright infringement. And distributing software that helps users infringe copyright itself constitutes secondary copyright infringement, which could expose MDY to copyright law's draconian "statutory damages" of $150,000 per act of infringement. The law gives aggrieved parties to contract disputes much less potent powers.

Copyright was never intended as an alternative mechanism for contract enforcement. If that theory is allowed to stand, it would dramatically strengthen end-user license agreements and create enormous liability for those who break them. That would eviscerate the first sale doctrine and create tremendous legal risks for firms and free software projects that reverse-engineered other firms' products for purposes of interoperability. MDY may not be the world's most sympathetic defendant, but there's a lot more at stake in this case than World of Warcraft bots.