...In Lexmark, the plaintiff sold laser printers equipped with an authentication sequence, verified by the printer’s copyrighted software, that ensured that only plaintiff’s own toner cartridges could be inserted into the printers. The defendant sold microchips capable of generating an authentication sequence that rendered other manufacturers’ cartridges compatible with plaintiff’s printers.

...The mere purchase of one of plaintiff’s printers allowed “access” to the copyrighted program. Any purchaser could read the program code directly from the printer memory without encountering the authentication sequence. The authentication sequence thus blocked only one form of access: the ability to make use of the printer. However, it left intact another form of access: the review and use of the computer program’s literal code...it seems clear that this provision does not naturally extend to a technological measure that restricts one form of access but leaves another route wide open.

By the same token, wouldn't you say that Warden blocks only one form of access to WoW's copyrighted dynamic elements -- the ability to access the game when running a bot -- and leaves intact another form of access -- the ability to access the game normally when no other programs are running? Can someone who understands the fine print here help explain the distinction?

The Lexmark case was heard by the 6th Circuit, and this one by the 9th. It would seem that a petition for a writ of certiorari would likely be granted for this or a similar case so that the Supreme Court can reconcile any differences. However, I'm not sure that I want the current Supreme Court to have the opportunity to strengthen the DMCA.

I don't quite get how elements 3 and 4 are met. Glider's primary purpose is to autonomously play WoW (as stated in the opinion) not to bypass Warden. Was it "primarily marketed" as a Warden bypass? I assumed it was marketed as a bot with the Warden bypass as a feature? I guess I'm misunderstanding the 3rd textual element for violating § 1201(a)(2).

Can anyone clarify?

1.

The ruling draws a bright line distinction between "conditions", which limit the the scope of right copyright rights granted by a contract, and "covenants", which are basically any other promise in that contract. Under this ruling, you can't claim copyright violation when someone violates a EULA covenant; the fundamental right to make whatever copy you made was determined by the conditions in the contract, not the covenants. What this means is that companies can't force you to hop up and down on one foot or say nice things about them in public and then claim copyright violation when you don't. See:

Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copy- right owners far greater rights than Congress has generally conferred on copyright owners.

2.

But on the other hand, there is a major shift in DMCA interpretation in the ruling. Prior rulings have held that the DMCA comes into play only in the setting of copyright violation. In particular, there had to be a nexus of both circumvention and a resulting violation of copyright to employ the anticircumvention cause of action.

No more. This ruling reads the plain language of the DMCA and determines that Congress meant to establish two anticircumvention causes: 1201(a), which covers any circumvention, and 1201(b), which covers only copyvio circumvention. In support of this interpretation, beyond the plain text of the statute, the court notes that there are different checks on 1201(a) and 1201(b): 1201(a) is subject to Library of Congress exemptions and 1201(b) isn't, but 1201(b) only applies in copyvio.

To the concerns that this interpretation will result in a distopian hellscape, the court responds:

* Tell it to congress, bitches.

* If DMCA anticircumvention exacerbates antitrust, bring an antitrust-relevant DMCA case and they'll consider it.

* Stop being silly about DMCA violations for bypassing your own burglar alarms.

3.

Finally, it's worth looking at the court's take on Blizzard's tortious interference claim. Recall: you're liable for the tort of interference when you cause damage by knowingly and improperly inducing someone else to violate a contract. Blizzard has what seems to be a very strong case here; MDY conceded that very point on its own website. Thus, Blizzard got a lower-court summary judgement on this point.

The court reversed the summary judgement. To get a summary judgement for interference out of the 9th circuit, you need to consider 7 factors:

- Nature of the conduct - Motive - The interests of the aggrieved party - The interests the interference advances - Relevant social interests - How directly the conduct actually bore on interference - Any existing relationship between the interferer and the aggrieved party.

The appeals court decided that the factors here were too murky to grant a summary judgement; MDY's product may have provided meaningful benefits to users, and even advanced social interests by (wait for it) "improv[ing] some users’ romantic relationships by reducing the time that they spend playing WoW". I FIND IT HARD TO DISAGREE.

ps.

Permit me a brief moment of punditry:

I'd like to live in a world where companies are free to offer the products they choose to offer under the terms they choose to offer them under. Companies should not have to incur a technological arms race simply to ship a "no bots allowed" game". I also feel like that's a point that startup entrepreneurs should sympathize with.

On the other hand, the DMCA makes me queasy, because companies will exploit it to advance illegitimate interests, such as "preventing the public from learning about product flaws discovered through unauthorized research that endanger them". The DMCA has controls against this, but they all seem to involve researchers spending hundreds of thousands of dollars on lawyers.

So while I'm glad that Blizzard looks poised to "win" this, I wish there was something less treacherous than the DMCA to allow them to do it.

I disagree, I think this is something entrepreneurs should be willing to understand is for the good of innovation. With all the attempts to weaken first sale doctrine it's likely if we followed these rules libraries wouldn't exist anymore, to say nothing of gamefly, netflix and used record stores. The existence of cydia gives developers and users an alternative, drives innovation and keeps pressure on apple. What if vmware had been prevented from running windows as a linux guest or linux as a windows guest years ago because microsoft didn't approve? Would we have ever seen server virtualization take off? The cloud? Game modifications, often unapproved, have gone on to launch plenty of new studios.

There's no way to know if great advances in real world AI applications won't end up emerging from some scrappy game bot company.

I think it's clear that restrictive license terms if left unchecked can stifle innovation and are bad for entrepreneurs and startups.

  Public interest includes:
  * Common carrier status
  * Desegregation
  * Product Safety
  * Privacy
  etc.

Why can't I only sell books to white people and not to libraries or people whose skin color I dislike? That seems like a reasonable thing to want.

Some "contracts" aren't and shouldn't be enforceable. Blizzard may be better off if they and Congress create laws that prevent individuals from using internet services in any way the internet service doesn't like, but society is worse off.

Companies have always been able to offer products under arbitrarily complicated terms of their choosing. But any supposed benefits from having the government enforce compliance with these terms should be weighed against the consequent loss of individual privacy & liberty.

- "You agree to let us sue you for $1 million if we catch you using a bot." A court probably wouldn't uphold such a contract.

- "You agree not to reverse engineer our software (to figure out ways to circumvent our bot detection mechanisms)." The bot's author could have received Blizzard's software through a third party and so wouldn't be bound by the contract.

And no, you haven't discovered a great way for absolutely anybody to evade any contract by laundering software through an anonymous third party.

There are plenty of AI competitions but I don't know of anything for AI-assisted humans. Perhaps I should start one? Modifying an existing open-source RTS seems like the best route.

This is a case where being able to provide a bit of context for the link would be useful.

No. This is not accurate. It's not even close. The "shirt maker" would have to be making shirts specifically to violate the agreement of the customer.

Blizzard isn't going after software that could potentially infringe. Rather, it's going after software that was specifically designed to infringe. Indeed, to make the software, the developer would have to infringe.

Whether this is fair or not is up for debate. But don't mischaracterize it as something it's not.

First, although WoW players copy the software code into RAM while playing the game, Blizzard’s EULA and ToU authorize all licensed WoW players to do so. We have explained that ToU § 4(B)’s bot prohibition is a license covenant rather than a condition. Thus, a Glider user who violates this covenant does not infringe by continuing to copy code into RAM. Accordingly, MDY does not violate § 1201(b)(1) by enabling Glider users to avoid Warden’s interruption of their authorized copying into RAM.

(from earlier)

A Glider user violates the covenants with Blizzard, but does not thereby commit copyright infringement because Glider does not infringe any of Blizzard’s exclusive rights... Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct.

Then, like 'mquander points out, the court gutted any value Blizzard got out of controlling the right to make temporary RAM copies of the software.

Thanks to incredibly idiotic rulings like MAI v Peak, it pretty much is.

    “Copies” are material objects, other than phonorecords,
    in which a work is fixed by any method now known or
    later developed, and from which the work can be
    perceived, reproduced, or otherwise communicated,
    either directly or with the aid of a machine or device.
    The term “copies” includes the material object, other
    than a phonorecord, in which the work is first fixed.

    A work is “fixed” in a tangible medium of
    expression when its embodiment in a copy or
    phonorecord, by or under the authority of the
    author, is sufficiently permanent or stable to
    permit it to be perceived, reproduced, or
    otherwise communicated for a period of more than
    transitory duration.

It would be possible to change the law to make it so that loading a program into RAM is not a copy, but then you'd have to have some kind of unnatural definition of copy. It makes far more sense to recognized a program in RAM as a copy and then make it so that copy is not an infringing copy (and that would be 17 USC 117, which says it is not infringement for the owner of a particular copy of a program to copy it to RAM to run the program).