Litigation Continues; Both Sides Still have Claims
Both Blizzard Entertainment and Michael Donnelly have something to crow about from a Ninth Circuit judge’s decision made this week regarding Glider–but Blizzard may be the early bird that gets the first worm.
We’ve covered the World of Warcraft utility and its legal woes as opportunities have risen. Mr. Donnelly, who makes Glider, has been in a two-sided battle with Blizzard ever since company lawyers showed up at his door two years ago, demanding the utility be discontinued. He responded with a DMCA suit. They countered with a copyright infringement claim.
Judge David Campbell has granted, in part, two motions for summary judgment, one on each side. Mr. Donnelly’s DMCA claim survives along with a claim of “unfair competition,” and Blizzard’s claims of “tortious interference” and “contributory and vicarious copyright infringement” also remain.
That means that the case will continue on until there’s a trial and verdict, unless a settlement is reached.
Most troubling for Donnelly and users of Glider, however, is one of Judge Campbell findings in the decision. He reasons that because Glider is in violation of WoW‘s license, that “Glider users therefore infringe Blizzard’s copyright.” That potentially opens the door for users of the utility to be sued individually. Given the $1.5 billion in revenue WoW generates for Blizzard, that could be a real possibility. Recording industry redux, anyone?
Our more legally inclined readers can take a look at more of Judge Campbell’s decision:
The Court reaches the following conclusions on the basis of undisputed facts, construction of the EULA and TOU, and controlling Ninth Circuit law: 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 alleges that MDY has violated the DMCA. Specifically, Blizzard claims that MDY traffics in technological products, services, devices, or components designed to circumvent technological measures Blizzard has put in place to control access to its copyrighted work and to protect its rights as the copyright owner of WoW. Blizzard moves for summary judgment on all of its DMCA claims. MDY moves for summary judgment on Blizzard’s claim under 17 U.S.C. § 1201(a)(2). The Court will grant MDY’s motion insofar as it applies to Blizzard’s game client software code, but deny the motions in all other respects.
We’ll have more information on this case as we get it–though given the legal system, that could be a while.