Tuesday, February 03, 2009

Blizzard/Glider/WoW case: can DMCA affect net access, affect neutrality and innovation?

First of all, I put this story on the network neutrality page rather than the main page – maybe I need more stories, to be sure – but really because of an interesting legal artifact. A software vendor is accused (and a federal judge upholds) of violating the DMCA (Digital Millennium Copyright Act of 1998) because it, among other things, can change the way an original device (in this case, a computer game) connects to other network services. In the past, there have been decisions to limit the application of the DMCA to competition in garage door and printer industries – and by implication that could extend to any other device connected to a network or the Internet, such as future energy conservation devices that are being proposed and developed as connected to Internet applications. Presumably, it’s important that the legal climate allow flexibility and innovation in the deployment of the devices in the average home (Thomas Friedman’s “energy Internet” and such), or else companies won’t have an economic incentive to develop them. That’s why the case at hand here could matter so much done the road.

So here we are, looking at an arcane case involving computer gaming, MDY v. Blizzard, with components like “wardens” that look for a user computer’s bots like “Glider” to mediate the way a popular role-playing video game is experienced. We also get into convoluted discussions as to whether “non-literal elements” controlling network interfaces themselves are copyrightable and fall under the DMCA.

There were other issues, such as the personal liability of the defendant firm’s founder, Michael Donnelly, could become personally liable for infringement.

Judge Campbell ruled for the plaintiff, which will certainly lead to a Ninth Circuit Appeal.

Timothy B. Lee has a detailed analysis dated Jan. 29, 2009 in Ars Technica, and gets into other disturbing areas, like erosion of the “first sale” doctrine.

The full title of the case is “MDY Industries, LLC v. Blizzard Entertainment, Inc. et al” and Justia has a complete fact sheet and links to court papers here. Note that the case is presented here "contrapositionally" as a counter claim: "MDY Industries, LLC seeks a declaratory judgment that its product—WOWGLIDER—does not infringe on the Defendant's copyrights to World of Warcraft, violate the DMCA or interfere with the contractual relationships."

Strategically, this case could turn out to be important for innovation incentives, important for sharing information and implements over networks in all kinds of areas, including energy use and health care. The new Obama administration ought to look at this case carefully.

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