MDY v. Blizzard – Ninth Circuit Weighs in on Software ownership and DMCA Anti-Circumvention

The Ninth Circuit Court of Appeals yesterday released an opinion in a World-of-Warcraft case that has meaning both for the nature of software ownership and for a circuit battle ripe for review by the Supreme Court.  The case is detailed nicely over at EFF.

One of the claims made by Blizzard, the WoW creator, against Blizzard, creator of a Glide bot that ran on WoW, could have laid the groundwork for serious damage whenever a software user went beyond the scope of the license.  There is an argument that the license defines the scope of use, and that any use outside that scope is unauthorized.  A copy of software must necessarily be made in the computer for the software to run, so when the use of that software is unauthorized, it is arguably infringing.  And so went the claim: by operating the Glide bot in defiance of the WoW terms and conditions, the gamer was running an unauthorized copy of WoW and thus infringing the WoW copyright.

This line of logic is a powerful tool that could have been used to attack anyone using software in an unauthorized way with not just a contract claim, but a copyright infringement claim.  Double-dipping in this way creates some serious repercussions.  However, the court parried the argument and denied the copyright claim.

The Supreme Court comes into play because of the Ninth Circuit’s ruling on the DMCA provision.  The DMCA has many facets; one of them making it illegal to circumvent technological protections that protect copyrighted material.  The Fifth Circuit’s ruling in MGE UPS Systems Inc. v. GE Consumer and Industrial Inc., in July on this provision stated that liability would arise only if there were circumvention and copying.  In other words, merely breaking through technological protection and viewing or accessing the copyrighted work would not create problems – copying also would have to take place.  The Ninth Circuit has adopted a different track, however, and in this case it holds that both elements need not be present.  This adds another case to the circuit split among several appellate courts, meaning the issue could be ready for final decision by the Supreme Court.