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Category — DMCA-TPM Cases

Blizzard/Vivendi Countersue WowGlider ‘bot Creator

Categories: Antitrust/Competition CasesBotsCheatingCopyright CasesDMCA-TPM CasesGold FarmingHackingTortious InterferenceTrademark CasesUnfair Business Practice Casses

Case Management Summary (March 27, 2007)
Text of Blizzard’s/Vivendi’s Answer & Counterclaim (Feb 16, 2007)
Text of MDY’s (Donnelly’s) Complaint (Oct 25, 2006)

Michael Donnelly created a ‘bot’ program called WowGlider (since renamed to simply “Glider” in response to Blizzard’s trademark complaints) that allows players of the wildly popular World of Warcraft (“WOW”) MMORPG to automate their game play and keep their character “playing” 24/7.

Using this bot the player can continue to level up and harvest gold 24/7 without actually having to play the game – an activity widely considered to be cheating. The use of such “bots” circumvent Blizzard’s security/anti-cheating measures and are prohibited by WOW’s EULA and terms of use.

In the fall of 2006 Blizzard (and its parent Vivendi) demanded Donnelly cease selling the bot. In response, On October 25, 2006 Donnelly’s company MDY filed a complaint in the U.S. District Court of Arizona seeking a Declaratory Judgment that it is not infringing any rights, copyright or otherwise owned by Blizzard and Vivendi.


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Australia Copyright Reform to Explicitly Permit Region-Code Mod Chips

Categories: DMCA-TPM CasesDRMModding CasesRegion Coding Cases

Text of Copyright Amendment Bill 2006
In stark contrast to American and British modding decisions and copyright law, Australia is set to amend its copyright laws to make it legal for consumers to purchase/use mod chips that circumvent anti-piracy technology (TPMs and DRM) built into game consoles when used to overcome region-coding measures that restrict the use of DVDs and games titles purchased legally in other regions. Most of the Copyright Amendment Bill 2006 passed through both houses of Parliament, will become law by January 1, 2007.

Dale’s Comment: This doesn’t really change the law in Australia because, as you can see from the related posts below, Australian courts had held that such modding did not breach Australian copyright and anti-circumvention laws. As far as I can tell, these amendments merely codify the existing case-law. These amendments may be important though because it was thought that Australia’s recent free-trade agreement with the United States may have resulted in copyright reform to explicitly overrule existing mod-chip case-law.

Sources: Gamasutra | P2PNet | News.com.au | Austrian IT | Kotaku | FAQ

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Librarian of Congress Exempts ‘Abandonware’ DRM Circumvention for ‘Preservation” from DMCA Liability

Categories: Agency/Board ActionsCopyrightsDMCA-TPM CasesDRMHackingLegal Reform

In its recent triennial rule-making with respect to exemptions from the prohibition against circumvention of technological measures that control access to copyrighted works, the Librarian of Congress, James H. Billington, has ruled, again, that persons making non infringing uses of older abandonware video games, as described below, will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years. Specifically exempt from the prohibition are:

…video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Dale's Comment: Firstly, despite many reports to the contrary, this is not a wholly new ruling. The 2003 triennial rule-making contained the following very similar exemption:

… video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

Indeed, this rulemaking is more restrictive than the previous rulemaking because it now specifically limits such circumvention for preservation purposes as I discuss below.

Secondly, I have read many blog 'interpretations' of this exemption over the last few days (not linked to here for obvious reasons) and most bloggers don't seem to understand this exemption. Most are interpretting this exemption as a free-for-all right to decrypt, copy, distribute and use any abandonware on any system.  My reading of this exemption is much more limited. 

Clearly the circumvention exemption for "archival reproduction of published digital works by a library or archive" doesn't apply to the average gamer.  However, the first portion of the exemption "for the purpose of preservation" would apply to the average gamer.

It appears the average gamer has the right to circumvent technological measures used to protect video games in obsolete formats that are already owned by the user for the purpose of preservation when the gaming console, for instance, is no longer manufactured or reasonably available in the commercial marketplace. 

This DMCA exemption does not exempt other provisions of Title 17 (the U.S. Copyright law) that otherwise generally prohibit copying, distributing and otherwise infringing copyrighted works.

So, what exactly does this exemption allow you, the owner of a video game in an obsolete format, to do. It allows you to circumvent the copy-protection scheme used to protect obsolete format video games for the purpose of preserving them (backing them up and, presumably, using the backup if the original copy becomes defective).  That's pretty much it. Indeed in the Librarian of Congress' commentary on the exemption he flatly says: 

"…the sole basis for this exemption is preservation and archival use…"

An important point here is that Billington did NOT exempt non-obsolete formated video games from the DMCA. So, it is still illegal under the DMCA's (17 U.S.C. § 1201(a)(1)(A)) to circumvent DRM on modern video games for the purpose of backing them up – let alone for any other purpose.

This exemption expires after three years unless the rule proponent (in this chase the Internet Archive) proves their case again. Namely, that without the exemption:

current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

Sources: Library of Congress Rulemaking | Detailed Background and Librarian of Congress Discussion | GameSpot | GWN | Joystiq

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French Mod-chip Maker Divineo Ordered to Pay $9 Million in Fines for Violating DMCA

Categories: DecisionsDMCA-TPM CasesModding CasesPiracy Cases

On September 11, 2006, U.S. District Court Judge Claudia Wilken assessed more than $9 million in penalties against France-based mod-chip maker Divineo for trafficking in mod chips and the associated HDLoader software. HDLoader allows users to copy their games from CD/DVD disks to their hard drive. Despite legitimate use by legions of honest gamers, this mod-chip/software bundle works by circumventing copy protection measures contained on the game CD/DVD and thereby contravenes the controversial DMCA.

Dale’s Comment: Mod-chips and software like HDLoader is hated by game developers/publishers because they are commonly used to distribute pirated video games on PS2 consoles. For honest gamers, they are a terrific way to install all purchased games on a hard drive so that they can be quickly and conveniently served up like records in a jukebox. Without it gamers must manually flip game disks each time they want to change the current game.

Sources: Gamasutra | Digital Trends | GameDaily.biz | Businesswire | ars technica | Next Generation | Engadget | ESA Press Release

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Blizzard/Vivendi Settle WOW Unofficial User Guide DMCA Dispute

Categories: Copyright CasesDMCA-TPM CasesSettlements

Text of Complaint
In an out-of-court settlement, a 24 year old Florida man, Brian Kopp, who claimed last March that he’d been unlawfully blocked from selling copies of his unofficial “World of Warcraft” guide by the Blizzard and Vivendi, can resume his sales on eBay. The settlement does not provide for monetary compensation for Kopp. Blizzard and Vivendi agreed to withdraw their previous take-down notices and to drop their infringement claims. They also agreed to refrain from filing future DMCA take-down notices against the same items Kopp had already disputed through counter-notices. Kopp agreed to retain the book’s disclaimers about its unofficial nature and agreed not to include links or instructions on how to locate ‘cheats’ in the game.

Sources: CNet | Kopp’s Press Release | GameSpot | USA Today | Kotaku | GameDaily.biz | Gamasutra | EuroGamer | GamePolitics.com

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Blizzard/Vivendi Sued for Blocking Sales of Unofficial ‘WOW’ Guide

Categories: Copyright CasesDMCA-TPM Cases

Text of Complaint
In a complaint filed in a California federal court, 24 year-old Brian Kopp alleges that Blizzard and Vivendi were wrong to order eBay to terminate auctions of his book, “The Ultimate World of Warcraft Leveling & Gold Guide“.

Sources: CNet | MMORPG Blog | ZDNet | ars technica | Common Dreams | Public Citizen | Gamasutra | Gamespot | Next Generation | Joystiq

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19 Indicted in U.S. and U.K. as part of on-going Anti-Piracy Operation

Categories: Criminal ProsecutionsDMCA-TPM CasesPiracy Cases

The alleged pirates were said to have either removed the copy protection from, duplicated, or otherwise bootlegged over $6.5 million worth of software (including game-related content) and movies.

Source: Gamasutra  |  Next Generation  |  GameDaily  |  GameIndustry.biz

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Sony Wins $6 Million Award Against U.S. PlayStation Modder

Categories: DecisionsDMCA-TPM CasesModding CasesPiracy Cases

Text of Sony v. Filipiak Decision
On Dec 27, 2005, In this decision, Sony was awarded more than $6 million in statutory damages against an individual that sold Playstation mod chips in contravention of the anti-circumvention provisions of the DMCA. The statutory minimum and maximums are $200 and $2,500 per violation. Sony was awarded $800 per “wilful” circumvention/infringement for initial violations and the highest possible, $2,500, for violations that occurred after the defendant had signed a consent judgment agreeing to stop such violations – he didn’t! In this case a computer forensics expert was able to determine that the defendant had erased thousands of incriminating transaction files/records just prior to handing his hard drive over to Sony’s counsel as agreed in a consent judgment.

Sources: Findlaw | InternetCases.com | Davis & Co

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Three Indicted In Xbox Piracy/Modding Case

Categories: Criminal ProsecutionsDMCA-TPM CasesModding CasesPiracy Cases

Two Hollywood video game store owners and a third man who were charged in December for allegedly pirating video games and installing them on modified Microsoft Corp. Xbox consoles were indicted on Thursday, according to the United States Attorney’s Office in Los Angeles. The indictment also charged the three with two felony violations of the Digital Millennium Copyright Act,

Sources: Gamasutra  |  Next Generation  |  Information Week

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Original XBox Modders Charged with DMCA Violations

Categories: Criminal ProsecutionsDMCA-TPM CasesHackingModding CasesPiracy Cases

Authorities charge three Los Angeles-area men with hacking Xbox game consoles to allow pirated games to run on them.

Sources: Red Herring | Information Week | Reuters UK | 1Up | Techtree | NextGen.biz | Joystiq | Gamasutra | Law Fuel | Xbox 360 Fanboy

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Australian High Court Rules PlayStation Region Code Mod Chips Legal

Categories: DecisionsDMCA-TPM CasesModding CasesRegion Coding Cases

Text of Stevens v. Sony Decision
In Stevens v. Sony, the Australian High Court ruled that modding Playstation consoles to circumvent region coding restrictions does not breach Australian copyright laws.

Sources: High Court Press Release | Freehills | GameIndustry.biz | Gamasutra | PS3Focus.com

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Maryland Video Game Pirate Sentenced

Categories: Criminal ConvictionsDMCA-TPM CasesPiracy Cases

Biren Amin, owner of Pandora’s Cube, is: (i) sentenced to five months in prison, (ii) sentenced to three years of supervised release, including 5 months of house arrest, (iii) fined $$247,237.05; and (iv) ordered to complete 80 hours of community service, for copyright infringement and DMCA violations.

Sources: Xbox Solution | Next Generation | CNet | ESA Press Release

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Blizzard Wins Video Game Hacking Lawsuit Against BNetD

Categories: DMCA-TPM CasesHackingModding Cases

Text of Blizzard v. BNetD Decision
Audio of Oral Arguments before the Eight Circuit Court of Appeals [MP3 from EFF]

In making a more stable and feature-rich, multi-player online video game server available for free to Blizzard’s video game customers, in competition to Blizzard’s own proprietary Battle.net server, the 8th circuit CA held, among other things, that the appellants’ (i) reverse engineering and circumventing of Blizzard’s CD key validation process; (ii) distribution of the resultant circumvention software; violated the anti-circumvention and anti-trafficking provisions of the DMCA.

Dale’s Comment: It seems to me that this is yet another unintended consequence of of the DMCA. The DMCA’s primary purpose is to protect copyright, not to protect Blizzard’s business model. So long as players are using properly purchased/licensed versions of the game, end users should not be liable if they create a competitive online means of playing that game.

Sources: CNet News | Gamasutra | ars technica | Red Herring | GameSpot | EFF Page on Case | EFF Critique of Case | Salon.com Back Story Article

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Blu-ray Disc Association Outlines Content Protection

Categories: DMCA-TPM Cases

The members of the Blu-ray Disc Association, a consortium for development of the upcoming Blu-ray media format, have announced the medium’s planned features for protection of content


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Xbox-Modding Retailers Plead Guilty to DMCA Violations

Categories: Criminal ConvictionsDMCA-TPM CasesModding Cases

Several retailers in Maryland have pleaded guilty to selling modified Xboxes, called “Super Xboxes” by the group, thereby violating the Digital Millennium Copyright Act. The maximum penalty for first-time violators of the DMCA is five years in prison along with a $250,000 fine.

Source: Gamasutra
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Tecmo’s Nude Volleyball Lawsuit is More Dead than Alive

Categories: DMCA-TPM CasesModding CasesSettlements

NinjaHacker.net reportedly settled with Tecmo. The case was dismissed, with leave to reinstate if the settlement is not finalized.

Sources: ars technica | Gamasutra | Wired

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Tecmo Sues Hackers Over Xbox Game Modifications

Categories: DMCA-TPM CasesModding CasesPolice Actions

Tecmo alleges that modifications to its Games both infringe and circumvent copy protection systems in violation of the DMCA.

Sources: Gamasutra | The Register | CNet | GameSpot | Gaming Horizon | IGN | The Inquirer

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3D Realms Shuts Down Duke Nukem Based Mod Project

Categories: Cease & DesistCharacter License CasesCopyright CasesDMCA-TPM CasesModding CasesPolice ActionsTrademark Cases

Those working on the mod were informed by 3D Realms that it does not allow any of its intellectual property to be used in conversions or mods for other game engines, forcing the project to be shut down.

Source: GameIndustry.biz

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Sony Wins U.K. Mod-chip Ruling Against Channel Technology

Categories: Copyright CasesDMCA-TPM CasesImport/Export CasesModding CasesPiracy CasesPolice ActionsRegion Coding Cases

Channel Technology imported mod-chips from Russia that when installed in PS2′s to play games from all regions. Importantly, the chip also allows users to play pirated games. The U.K. High Court found Channel Technology in violation of a provision in the UK. Copyright, Designs and Patents Act 1988 that prohibits knowingly making, importing or selling any device specifically designed or adapted to circumvent copy-protection. Judge Jacob awarded Sony damages of £15,000 and costs of £45,000. Channel Technology has since closed.

Sources: The Register | ZDNet | Out-Law.com

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