Category — Hacking
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.
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.
Librarian of Congress Exempts ‘Abandonware’ DRM Circumvention for ‘Preservation” from DMCA Liability
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.
The FBI has shut down an illegal game operation that allegedly provided subscribers with fraudulent service to, and code for, Lineage II. Apparently L2Extreme.com (now seized by the FYI) had some 50,000 active users. NCSoft says it lost millions in revenue from this. The operators of L2Extreme.com face a fine of $250,000 and up to five years in jail. NCSoft has said it has no plans to pursue the users.
This case is different from the Blizzard v. BNetD case because in the BNetD circumstance, they had reverse engineered the Blizzard server software and, presumably, wrote emulating software in a “clean room” without access to the original Blizzard server software – thus no direct copyright infringement. In the L2Extreme case, it is alleged that the L2Extreme.com server software was pirated (ie: copied) NCSoft server software.
Text of Bragg v. Linden Labs Complaint (Oct 4, 2006)[.zip format]
Jurisdiction and other Interim Court Filings
While I was converting this blog to WordPress over the last 8 weeks, Mark Bragg sent me his updated complaint against Linden Research Inc. ("Linden") that was filed on October 4 in the Chester County (Pennsylvania) Court of Common Pleas. Mr. Bragg is seeking a jury trial. On November 7, Linden petitioned the US District Court for the Eastern District of Pennsylvania to take jurisdiction of the case.
I'm just now getting the time to review the claim and post this blog entry about it.
The complaint contains a terrific history (frankly, the best I've read) of Linden, its MMORPG Second Life and describes how Linden differentiated Second Life from its competitors by granting "ownership rights" to in-game property (most MMORPG publishers claim/retain ownership in all related virtual property). It also contains a history/description of virtual property generally in the context of the growing MMORPG phenomena.
The 239 paragraph complaint alleges violation of Californian and Pennsylvanian unfair practices and consumer protection laws, fraud, violation of California's Civil Code concerning auctions, conversion (theft), interference with contractual relations, breach of contract, unjust enrichment and tortuous breach of the covenant of good faith and fair dealing. He discounts many of the provisions of the Linden Labs Terms of Service ("TOS") as being unenforceable due to unconscionably. Suffice it to say, when this case is over, I suspect Linden will be updating its TOS!
This Law.com article provides a good summary of the facts. The complaint, itself, is worth reading if only for its best-in-class description of the MMORPG industry and related virtual property issues. Excellent job Mark!
Dale's Comment: Given that many courts in many countries have upheld the validity of extremely one-sided Internet-service click-wrap/shrink-wrap agreements, I think Mark will have a tough time overcoming the clear provisions contained in the TOS. But he makes many compelling arguments pertaining to the contradicting public statements of Linden representatives, rights in and to virtual property purchased from other Second Life users, and the right to recoup the real $U.S. dollars he paid into the Second Life economy and not returned when Linden booted him from the game.
Bragg is claiming ownership to his in-game property. I am quite sympathetic to his arguments and have advocated, here, for the the recognition, at law, of rights in and to virtual property. But, if analogies to real-world and intangible property are taken to their logical extreme, Second Life players could argue that Linden would never have the right to shutdown their MMORPG and deny virtual property owners of their "right" to access, use, sell and other wise deal with their virtual property when, as will inevitably be the case one day, Second Life ceases to be a profitable game for Linden.
This could be a very important, precedent setting case if it goes to trial. It could set the ground rules for the application of laws to virtual property going forward. Needless to say, I'll be following this one closely.
[Dec 13, 2006 Update: Mark has sent me this link where the most recent court filings in the case can be found. At the moment the parties are fighting over the most appropriate jurisdiction for further proceedings.]
- Mark Bragg File's Virtual Property Complaint Against Linden Labs (November 16, 2006)
- Linden Lab Sued for Alleged Breach of Virtual Land Contract (May 18, 2006)
A former deputy manager of Shanghai-based Shanda Network Development, Wang Yihui, and two accomplices are being prosecuted in China for illegal virtual weapons trade. Mr. Yihui changed the underlying game database of the popular Legend of Mir video game to produce, and replicate, two high powered weapons and provide them to two registered gamer accomplices. They, in turn, sold multiple copies of these weapons for profit. The group was able to make around $250,000 between September 2004 to August 2005 by such sales. Users of these weapons have an unfair advantage that allows them to advance through the game at a much quicker pace. The group are being prosecuted for copyright infringement.
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.