Thursday, July 17, 2008

Blizzard's litigious ways

during my 1L summer (the summer between first and second year of law school), i had the great opportunity and pleasure to be a summer legal intern at the Electronic Frontier Foundation. one of the cases i helped with while i was there was the 8th Circuit Appeal of Davidson v. Universal Associates, better known as Blizzard v. BnetD. the case dealt with a group of amateur software developers who created a rival server to Blizzards -- which they called BnetD -- that allowed them to play the Blizzard game 'World of Warcraft' online, without using the official Blizzard server. their story was that Blizzard's official server was buggy and didn't have some features that they wanted, so they made their own. Blizzard doesn't charge for playing the game on their server, though they get some ad revenue for it, but that wasn't their issue with the developers. unlike Blizzard's official server, the unofficial BnetD server was unable to tell whether a copy of the World of Warcraft game was an official registered copy with a valid CD key, or was an illegal copy of the game. so Blizzard's theory was that the developers had created a server of their own so that they could play (and empower others to play) illegal copies of the games. they brought suit under the DMCA and under contract and copyright law, and they won.

i wrote about this case in one of my papers, a paper about the effects of cognitive framing. the case hinged on the interpretation of a very ambiguous technical term, "interoperability", contained within an ambiguous provision of a complex and largely unlitigated statute. the 8th Circuit's opinion distinguished the one and only relevant precedent, Lexmark v. Static Control Components, on fairly thin reasoning, and ruled (in my opinion, without much in the way of an explanation) that the activities of the developers exceeded the bounds of the DMCA interoperability exception and constituted a copyright violation. i thought the opinion showed signs of undue influence from cognitive framing activity in the briefs, so i wrote the whole thing up as one of my paper's key examples.

apparently Blizzard is active in the courts again - this time, challenging the developer of "WoWglider", a "bot" program that allows users to leave their characters running and continuing to accrue experience and gold even when the user is not at the computer. according to Sherwin Siy over at Public Knowledge, one of the legal theories raised by Blizzard was that the use of the World of Warcraft software in conjunction with the WoWglider program is not a valid use under the license terms for the WoW software, and that in the absence of permission under the license the minimal technical copying activities involved in operating the game constitute copyright infringement. (Ars Technica has a slightly reworded explanation of the same theory.) on motion for summary judgment, the trial court judge agreed with Blizzard in many respects, including Blizzard's copyright liability theory.

i'll leave the detailed analysis to others who are far more qualified, and take up a little bit more of your time to examine the policy issue. what do we, as a society, want to be the outcome of this case? Blizzard has a valid point: the use of the WoWglider software lessens the enjoyment of the system by legitimate game players, by making it harder for them to compete and advance in the game (certainly relatively speaking, but in MMORPGs, that can be an absolute statement as well). but Blizzard has every right to try, through technological means, to shut down the use of bots, or (even better) to try to detect them and identify the human users behind them, and ban them from the system. do they have the right to punish the developer of the software? do we want them to have that kind of control, reaching outside their domain and getting the law on their side? i am extraordinarily uncomfortable with that kind of power. what right do they have to interfere with how others choose to use the open tools of technology which they are given? they have the rights that we give to them through copyright. unfortunately, these rights and the laws that underpin them are being stretched to bizarre and unrecognizable levels to make sure that companies like Blizzard maintain as much control over their products as possible, even when the technology cannot support that control. why? is this in service of some hidden policy goal, one which is incredibly pro-business and anti-openness? is it the product of effective framing and litigation techniques (imposed on judges unfamiliar with the technological concepts at issue) by the well-funded industry lawyers?

i wish we knew. maybe then we could fix it.


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