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:
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.