Are you procrastinating on your assignments because you spend your time playing World of Warcraft (WoW)? Are you one of the many WoW players that dedicate 21-22 hours a week playing the game? Imagine a scenario in which you can have your cake and eat it too! Envision yourself leveling up while researching an assignment or socializing! Thanks to Michael Donnelly, founder and sole member of MDY Industries LLC, you can do exactly that! If you have $15 to $25, you can have Glider, a bot, play WoW for you and you can have your life back! Once installed, Glider will do all the work for you! No need to worry about Warden, Blizzards robot that detects bots. Glider simply circumvents Warden, allowing Glider to enhance your playing experience! Unfortunately, monthly subscription fees must still be paid to play. WARNING: Consequences of using Glider include: permanent bans on your user account, contract damages and/or injunctions by Blizzard Entertainment.

The situation above is real. Many WoW users gladly paid to enjoy the benefits provided by Glider, even though Blizzards End User License and Terms of Use explicitly state that users cannot use bots. Blizzard sued for an injunction against MDY to stop the distribution of Glider as Blizzard considered the use of bots cheating which degrades other users WoW experience, which in turn could lower the amount of monthly fees Blizzard collects from users.

Blizzard claimed vicarious infringement of their copyright. To establish this claim Blizzard had to demonstrate copyright ownership and a violation of one of its exclusive rights by Glider users. Here, MDY may be liable for contributory infringement if it has intentionally induced or encouraged direct infringement by Glider users. However, to establish secondary infringement, Blizzard must first demonstrate direct infringement by the users.

MDY conceded that Blizzard is the copyright owner. The circuit Court then examined whether users are licensees or owners to determine what would constitute infringement. Applying the test established in Vernor v. Autodesk, 621 F. 3d 1102 (9^th Cir., September 10, 2010), the court concludes that users are licensees, and that these users may infringe a copyright if their usage is not within the scope of the license.

However, MDY argued that Section 4 of the Terms of Use, which provides that a licensee will not “create or use cheats, bots, ‘mods’…”, is a contractual covenant and not a license condition. A breach of a covenant, or a contractual promise, is actionable only under contract law while a breach of a condition is actionable under copyright law. The circuit Court determined that Section 4 of the Terms of Use was in fact a covenant. Thus, the Court concluded that although a Glider user violates the covenants of Blizzards agreement, they do not commit copyright infringement because Glider does not infringe any of Blizzard’s exclusive rights. The Court further elaborated that to constitute copyright infringement there must be a nexus between the condition and the licensor’s exclusive rights to the copyright. Since players do not commit copyright infringement by using Glider, MDY is not liable for secondary copyright infringement.

This is a potentially frightening conclusion for game developers. To effectively prevent widespread use of cheats, bots or mods, a developer would have to target each user utilizing or creating these mods or bots and terminate their service. This type of punishment is far less consequential than those offered by US copyright law.

So what is a developer to do? Since many MMORPG are funded by monthly access fees and not solely by game sales, MMORPG developers need to find a balance between the cost of monitoring and the user’s experience. If user experience is highly degraded because of the excessive use of bots, cheats and mods, then the developer will have no choice but to “clean” up the service or suffer substantial user loss and revenue. It’s clear that Blizzard has a strong policy of banning users that utilize bots. Blizzard urges users to work with them to eliminate cheating by not supporting websites that promote cheating and submitting a form. These efforts may subside some of the costs of finding cheating users.

Lastly, Blizzard claimed that MDY is liable under the Digital Millennium Copyright Act under  17 USC §1201 (a)(2) which prohibits trafficking in a technology [Glider] that is primarily designed, or has limited commercially significant use other than circumventing a technological measure [Warden] that effectively controls access to the copyrighted work. Thus, MDY does violate §1201(a)(2).

Luckily for Blizzard, MDY was selling Glider to users and touted its ability to evade Warden. However, what would happen to a mod/bot in a similar situation that is not marketed and sold to the masses or “leaked” onto the internet is unclear. The court heavily relies on the fact that MDY sold Glider, thus satisfying the trafficking element. However, the only definition of trafficking in the copyright act (which is similar to the definition in 18 U.S.C §2320) requires consideration for anything of value or private financial gain. If the release of a new bot had no specific owner and was free, would this satisfy the prong for “traffics in a technology”? I believe it wouldn’t, rendering the DMCA powerless to a developer. Thus, the developer’s only recourse is to block the accounts that utilize the unauthorized features at their own expense.