BNA reports on MDY Indus. LLC v. Blizzard Entm’t Inc., filed recently in the District of Arizona. Blizzard operates the online multi-player game Worlds of Warcraft; MDY sells WoWGlider, which plays WoW on behalf of your character. WoWGlider is sort of a software version of J. Pierpont Finch, the hero of How to Succeed in Business Without Really Trying. According to the WoWGlider FAQ,
Glider works a lot like a regular player. It looks at your health, mana, energy, etc. It moves the mouse around and pushes keys on the keyboard. You tell it about your character, where you want to kill things, and what to kill. Then it kills for you, automatically. You can do something else, like eat dinner or go to a movie, and when you return, you’ll have a lot more experience and loot.
MDY freely admits in its FAQ that use of the WoWGlider violates the WoW Terms of Service. Still, it sued Blizzard for a declaration that MDY is not liable for infringing Blizzard’s copyrights in the game, for violating the DMCA, or for inducing breaches of contracts between Blizzard and WoW users. Blizzard, unsurprisingly, has counterclaimed on the grounds that this is precisely what MDY does.
I have a hard time seeing how MDY will wiggle out of this. MDY offers do-it-yourself automated goldfarming.
Inducing someone else to breach a contract is not by itself actionable. Yes, WowGlider starts out in a rhetorical hole, but some of Blizzard’s legal theories are real stretches. Take the DMCA claim. Use of WowGlider is cheating and in breach of contract. But does it circumvent an access/copying control the way that BNetD did? (That case, let it be noted, is already controversial.) There’s a reasonable argument that it doesn’t, particularly since WowGlider sends inputs rather than redirecting a copyrighted output stream for later misuse.
The “inducement” claim depends on state law, and I have no idea where Arizona stands on that. In California, interference jurisprudence is so fuzzy that almost anything can get by a demurrer.
I agree that the DMCA claim is a stretch (WoWGlider bypasses the authorized launch sequence that exists in the RAM copy of WoW?), but I’ve been waiting for a while for a case in which the plaintiff alleges and wins a claim under the DMCA where the defendant supplied a technology that, when deployed, would lead the user to violate the plaintiff’s EULA/ToU/ToS. Might this be the one?
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