July 14th, 2008 by Benjamin Duranske
Blizzard has won its summary judgment motion against World of Warcraft bot maker MDY on copyright grounds. Blizzard also prevailed on its tortious interference claim. This means that liability for contributory and vicarious copyright infringement and tortious interference is completely off the table and will not go to the jury at trial in September, assuming that the parties do not settle before then. The only issue before the jury on these two claims will be damages. This is a major setback for MDY, which originally brought this action seeking a declaratory judgment that its WowGlider (now MMOGlider) bot software did not infringe Blizzard’s copyright.
For the background of this suit, see Virtually Blind’s complete coverage of MDY v. Blizzard. Here is today’s Order re: Blizzard’s and MDY’s Summary Judgment Motions (.pdf).
The Court ultimately held that:
Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.
Blizzard had argued that:
In this Circuit, the “copying” element may be proved in software cases by showing an unauthorized reproduction of a copyrighted software program in the computer user’s Random Access Memory (“RAM”). The Ninth Circuit has recognized that “the loading of software into the RAM creates a copy under the Copyright Act.” MAI Sys. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993), cert. dismissed 510 U.S. 1033 (1994); Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1334 (9th Cir. 1995); see also Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F. Supp. 2d 607, 621 (S.D.N.Y. 2007) (agreeing with the “numerous courts [that] have held that the transmission of information through a computer’s random access memory or RAM . . . creates a ‘copy’ for purposes of the Copyright Act,” and citing cases.) When such a copy is made in excess of a license, the copier is liable for copyright infringement. Ticketmaster LLC v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1107 (C.D. Cal. 2007) (‘“When a licensee exceeds the scope of the license granted by the copyright holder, the licensee is liable for infringement.”’ (citation omitted)).
MDY argued that loading a copy of the software into RAM is protected by Section 117, and was joined in that argument by Public Knowledge, a digital rights advocacy group. The court rejected these arguments, noting that “the Court is not free to disregard Ninth Circuit precedent directly on point.” From the Order:
MDY urges the Court to follow the approach recently taken by the United States District Court for the Western District of Washington in Vernor, 2008 WL 2199682. The Vernor court declined to follow MAI, Triad, and Wall Data, and instead applied an earlier Ninth Circuit case, United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). Wise involved the application of the “first sale” doctrine under 17 U.S.C. § 109 to various transfer contracts between movie studios and recipients of movie prints. Vernor concluded that the critical factor in Wise for determining whether a transaction was a sale or a license was “whether the transferee kept the copy acquired from the copyright holder.” 2008 WL2199682, at *6. MDY urges the Court to follow Vernor and Wise and hold that the users of the WoW game client software are owners of the software because they are entitled to keep the copy of the software they acquire from Blizzard. The Court declines this invitation. Whatever freedom the court in Vernor may have had to disregard Wall Data when applying a different statutory provision – section 109 – this Court does not have the same freedom. This case concerns section 117, the very provision addressed by the Ninth Circuit in Wall Data. The Court is not free to disregard Ninth Circuit precedent directly on point.
MDY prevailed on some other other pending summary judgment issues and Blizzard prevailed on others, but the key result is that MDY has been found by the court to infringe Blizzard’s copyright through the sale of its WoWGlider (now MMOGlider) bot program, and to have tortiously interfered with Blizzard’s relationships with its customers through those sales. VB will be interested in seeing if MDY appeals.
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