Monday, March 24, 2008

Blizzard, MDY, the DMCA, and You!

I take particular issue with Blizzard’s interpretation of how the DMCA should be applied for copyright infringement against a botting program. If they win, it sets a bad precedent for IP and Copyright law that potentially strangles future innovation and competition. The DMCA is intended to protect companies from the unauthorized distribution of their intellectual property. To quote MDY’s legal argument:

Congress did not enact the DMCA as a way for businesses to use the copyright laws to enforce their business models or license agreements. (…) The DMCA does not extend to every act of electronic circumvention. The DMCA extends only to efforts to circumvent measures that enable access to a forbidden place and thereby facilitate ―digital trespass. (…) DMCA liability does not attach -- when efforts to circumvent technological protection merely enables rightful access to a protected work for the purpose of using it for its intended purpose (without copying, making derivative works, or distributing the work).

This is not about botting. It’s about how a business should be allowed to apply the DMCA to enforce copyright. Check your knee-jerk fanboi reaction at the door for a moment and think about issues a bit bigger than a video game. And in plain terms, this is WAY outside of the scope of what the DCMA is intended to protect. Blizzard’s EULA and TOS agreement have nothing to do with copyright and their legal argument should be restricted to enforcing those contractual agreements, not copyright. Should they win this point, the precedent could be used later to enforce copyright law on things that have nothing to do with the video game industry. For example, it could easily extend to a third-party product that circumvents protection on your cell phone to provide some functionality your current provider doesn’t even offer.

I believe Blizzard can and will win this case based solely on the contention that “MDY knew that the use of its Glider software with Blizzard‘s WoW game client violated Blizzard‘s EULA and TOU. MDY‘s acts of offering its Glider software for sale to Blizzard‘s licensees tortiously interfered with the contracts between Blizzard and its licensees.” I have yet to read any response from MDY that effectively counters this complaint. MDY knowingly encouraged players to break contract with Blizzard. Period. In the end, I think that simple inarguably fact leads to the inevitable conclusion that MDY can and does cause Blizzard harm. In fact, I find MDY’s response to this claim in the summary judgment to be laughable:

Blizzard does not have requisite evidence to support three of the five elements, namely that:
1. MDY acted improperly as to motive or means;
2. MDY intentionally interfered by causing a breach; and,
3. MDY‘s actually caused damage to Blizzard

Are they joking? Motive is simple enough – Glider customers must break the EULA to use the product. Ergo, MDY profits from Glider license sales and has motive to encourage users to break the agreement. Likewise, they intentionally motivate customers to breach contract in order to sell the product and even market “protection” against Warden and other means of detection. Thirdly, harm caused to Blizzard comes in the form of Blizzard losing subscription revenue when it enforces it’s EULA contract with the licensee who violated the terms. The alternative, not enforcing the contract, would cause a greater harm in community perception and lack of faith in the product.

In the end, you don’t have to win all points – just the few that matter. And in my mind, that one matters most of all.

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