Wednesday, March 26, 2008

And then some guys Dad chimes in…

I’ve been following the case between MDY and Blizzard pretty closely and certainly have my opinions. There is a lengthy discussion going on over on at Broken Toys and while I chirmped in my $0.02, the commenter Freakazoid had the best take on the discussion:

I cannot possibly find a big enough rolleyes emote for the armchair lawyering going on in here.

And then about 25 comments later, CiscoKid’s Dad chimed in with this insightful commentary:

Re: Triforcer.

I could not disagree with you more. I have been an IP lawyer for over 22 years, I rarely play video games, but my kids are big WoW players. I have read both briefs and I personally think Blizzard is up a creek on this one. To me, Blizzard cannot rebut three simple points that MDY eloquently raised in its brief: (1) simply adding a term to a EULA that makes something a violation of the EULA cannot turn a violation of that term into a copyright infringement, (2) if you circumvent a technological measure, the measure has to be protecting someone from infringing an exclusive right under the copyright act (Warden and Scan.dll do not), and (3) there must be some malicious intent to harm Blizzard by MDY (simply wanting to make a profit by using a game that interferes with a contract is not malicious, especially if the person is a competitor). People are allowed to interfere with contracts. They cannot interefere tortiously and my reading of the brief shows that MDY has to have “malice”. Making a piece of software for profit that might harm someone else indirectly is not malicious, especially , as MDY’s brief points out, if that person depends on the interfered party. It happens all the time.

MDY’s citation to Chamberlain and Storage Tech are right on point because, as MDY points out in its brief, Blizzard is trying to use the copyright laws to police its business model. That’s not what copyright law does. The proper enforcement of a business model is through contracts. The only reason why Blizzard is trying to use copyright is to try to fool the judge into thinking that software is somehow different than if WoW was played as a big MMORPG board game. If WoW were a board game and Blizzard said that if you didn’t play WoW with a WoW hat on while you play the game, would they be able to sue for copyright infringement if someone wasn’t wearing a WoW cap but played the game anyway? I think not. Blizzard relies on Ticketmaster v. RMG which is a horrible decision by a judge who didn’t understand the DMCA and it has no controlling effect on the matter since it is a California district court case.

In my opinion, if MDY loses this case, it would shock me.

Uh.. I think I’d like to take back my earlier statements that I think Blizzard is going to win this one. In my own armchair lawyering, I deduced that the motive for the harm MDY causes Blizzard is astoundingly obvious – profit. However, as CiscoKid’s dad points out – simply wanting to make a profit is not the malicious motive required to constitute as tortious interference. Quite the contrary, MDY’s product is inherently dependent upon the success of Blizzard’s game and even advertises other sites where their customers can purchase WoW licenses and game cards. Without WoW subscribers, there would be no Glider subscribers.

In other words, MDY has no contractual obligations to obey Blizzard’s EULA agreement. That contract agreement is only made between the subscriber and Blizzard. As a third party, MDY is not subject to the terms of that contract and the burden is on Blizzard to prove malicious intent to intefere with the contract. This means that while Blizzard has a very clear case against subscribers who break the EULA contract, they have no reasonable legal recourse to pursue MDY for the contractual violations caused by Glider customers.

If that interpretation is correct, then the only avenue left for Blizzard is to pursue copyright infringement. And as I pointed out in my previous post, the result of that decision could have much more sweeping ramifications than just a video game. I’m certainly no lawyer, but I do take an interest in IP laws and I am certainly very opinionated about how our laws should work. In practice, they may work very differently because of legalese, but that doesn’t mean I can’t express my opinion about what is right and wrong.

4 comments:

Matticus said...

If that happens and those turkeys win their case, I'm retiring from WoW.

sid67 said...

If MDY wins, the precedent set will impact all MMOs. It’s a really thorny issue because it is very important that Blizzard not be allowed to use the DMCA to prevent third party integration. However, MMOs also need to be allowed to protect their game from cheats. If we assume there is no protection under the DMCA, then the only real legal recourse MMOs have is to enforce the EULA. I’ve always hung my hat on the idea that MDY interferes with the EULA in place between Blizzard and WoW subscribers. If the interpretation presented by the anonymous IP lawyer is correct, then that is meaningless. And the more I think about it, the more it makes sense that it is meaningless. If you and I enter a contract agreement and then I later enter another contract with a third party that breaks the terms of my contract with you, should you be able to hold the third party accountable for breaking my contract? No. The third party is under no contractual obligation to respect the original contract between you and I since they were not party to making the original agreement. Your legal recourse would be against me based on the terms that I broke in our agreement.

Proudfoot said...

If the previously stated case is won by MDY then we will undoubtedly see alot more accounts banned. People are stupid if they are using 3rd party hacks anyways, they are just asking for their accounts to be banned. The only thing that worries me here is to what extent Blizzard can define "hack". Are some UI mods "hacks"?

sid67 said...

The EULA has this to say about third party programs:

5. Consent to Monitor. WHEN RUNNING, THE GAME MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH THE GAME. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY "ADDON," "MOD," "HACK," "TRAINER," OR "CHEAT," THAT IN BLIZZARD'S SOLE DETERMINATION: (i) ENABLES OR FACILITATES CHEATING OF ANY TYPE; (ii) ALLOWS USERS TO MODIFY OR HACK THE GAME INTERFACE, ENVIRONMENT, AND/OR EXPERIENCE IN ANY WAY NOT EXPRESSLY AUTHORIZED BY BLIZZARD; OR (iii) INTERCEPTS, "MINES," OR OTHERWISE COLLECTS INFORMATION FROM OR THROUGH THE GAME. IN THE EVENT THAT THE GAME DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, THE GAME MAY (a) COMMUNICATE INFORMATION BACK TO BLIZZARD, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE THE UNAUTHORIZED THIRD PARTY PROGRAM WAS DETECTED; AND/OR (b) EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO THE USER.

A couple of interesting bits from that are 1) Blizzard considers “addons” to be 3rd party software, 2) they don’t define “cheating” so it’s impossible to determine what isn’t acceptable, 3) data collection mods that “mine” data are expressly called out as a bannable offense, and 4) it even goes as far as saying that anything which will “modify (..) the game interface” is bannable. Even in the loosest terms, addons like Auctioneer or any of the ones that alter your User Interface (like bar mods) could be considered an “Unauthorized Third Party Program.” In practice, they allow all these things and even provide a LUA API to allow third party authors to develop addons for the game. That’s why, generally speaking, many addon authors have simply adopted the stance that Blizzard can protect or remove LUA functions whenever they want and it is Blizzard’s responsibility to police the functionality they provide through the LUA API. History tells us that Blizzard agrees with this logic because they only act to break addons they don’t like by altering the API rather than suspending or banning players using those addons. As a result, the prevailing train of thought is that if the LUA allows it – then it’s legal and won’t get you banned.