In the case of Blizzard Entertainment, Inc and Vivendi Games, Inc. Vs. MDY Industries, LLC, Blizzard as the owner of an MMORPG's online game, World of Warcraft [published on November 2004], Blizzard claimed that MDY has infringed its copyright of WoW by developing a software, called "Glider", which enabled WoW's player to play WoW automatically.
Glider is a computer program known as "Bot". Glider enabled WoW' player's character to continue play in WoW even when the player is away from his/her computer. It purported for the player to advance faster in WoW and to acquire items or game assets more easily ["Farming"]. MDY started selling Glider to WoW's player on June 2005 and has sold more than 100.000 copies.
Blizzard claimed that MDY has infringed its copyright as ruled by U.S. DMCA [Digital Millenium Copyright Act]. The ninth court agreed that MDY has violated Blizzard's copyrights but not based on the DMCA, but on violating the Terms of Service [ToS] or EULA [End User License Agreement, which all WoW's players have to adhere to in order to be able to play WoW.
By that decision, the court has given a recognition that, among other points, Farming by using Bot is not a cool thing to do. It has raised an attention from the public to the fact that the court's decision has widen the scope of what would be considered as copyright violation, which included ToS or EULA.
The question would be why software owner would be aiming for copyright protection for its EULA or ToS. It's because copyright protection would bring bigger penalties and remedies, compare if EULA or ToS is not considered to be protected by copyright, where a violation of EULA or ToS would only be considered as a mere breach of contract.
As a General Counsel for an online game company myself, Farming is definitely an action which can be assumed to happen and it can disturb a game's economy equilibrium, not to mention it's really annoying to see a player could end up on the first rank of a game's highest level list when that player can achieve it by using Bot and other players only rely on their sweat and brow by staying hours and hours at a cyber cafe or playing the game at home on an endless hours and skip dinner and breakfast and still can't catch up with that player's speed with a Bot.
So yes, I do agree that Bot or alike that temper with a game play should be identified and legal action should be taken towards the Bot user and Bot developer. This can be achieved by relying on the ToS or EULA. That's why it is very important for a software owner/publisher to smartly draft their ToS or EULA, to acknowledge this issue and to encounter in the ToS or EULA.
Nonetheless, this big uproar about opposing WoW's intention for ToS or EULA as to be protected by copyright, I'm in an opinion that it should be cleared first on what would be the perspective of ToS or EULA is protected by copyright. ToS or EULA in a game is an agreement or contract which binds both parties of publisher and player. Hence, a player will be given a license to play a game by firstly agreeing and binding herself/himself to the ToS or EULA. Any violation towards ToS or EULA will be considered as a breach and a publisher has a right to sanction a player according to the in-game policy as stated in ToS or EULA. It could be ban or kick out from the game. But, it doesn't necessarily make ToS or EULA as protected by copyright. What copyrighted is the game software itself! Any attempt to temper with the software will be a violation to DMCA, as stated in below clause:
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;MYD, by manufacturing and offer to the public, its product Glider, which tempered Blizzard's game software of WoW, could be easily said had infringed the DMCA. Whether it is stated or not in the ToS or EULA, as copyright appear the moment a work is created in a certain medium, such as in written or a drawing.
I might be wrong. But it's merely my own opinion and I just hope my writing can shed a light on this matter. What is your own opinion?
Jakarta, 040409
Sarah M. Abdullah
