cyckV4

598 ANTI-CIRCUMVENTION: A NEW STATUTORY SCHEME
F. Blizzard’s § 1201(b)(1) claim
Blizzard may prevail under § 1201(b)(1) only if Warden “effectively protect[s] a
right” of Blizzard under the Copyright Act. Blizzard contends that Warden protects its
reproduction right against unauthorized copying. We disagree.
First, although WoW players copy the software code into RAM while playing the
game, Blizzard’s EULA and ToU authorize all licensed WoW players to do so. We have
explained that ToU § 4(B)’s bot prohibition is a license covenant rather than a condition.
Thus, a Glider user who violates this covenant does not infringe by continuing to copy
code into RAM. Accordingly, MDY does not violate § 1201(b)(1) by enabling Glider
users to avoid Warden’s interruption of their authorized copying into RAM.
Second, although WoW players can theoretically record game play by taking screen
shots, there is no evidence that Warden detects or prevents such allegedly infringing
copying. This is logical, because Warden was designed to reduce the presence of cheats
and bots, not to protect WoW’s dynamic non-literal elements against copying. We conclude
that Warden does not effectively protect any of Blizzard’s rights under the Copyright Act,
and MDY is not liable under § 1201(b)(1) for Glider’s circumvention of Warden. . . .
VII.
. . . [W]e determine that MDY is not liable for secondary copyright infringement
and is liable under the DMCA only for violation of § 1201(a)(2) with respect to WoW’s
dynamic non-literal elements.
Questions:
1.) What is the significance of MAI v. Peak’s holding that RAM copies are “fixed” for
purposes of copyright infringement to the MDY case? Put another way, if MAI were
decided the other way, and RAM copies were too fleeting to infringe, how would this
have changed the analysis in MDY?
2.) What is the difference between a covenant and condition? Why does it matter in this
case?
3.) Have you ever read any Terms of Use agreements before clicking “I Agree”? Does it
(should it) inform your analysis of MDY if you found that, in a related context, privacy
scholars have estimated that an average user might access about 1450 websites per year
that have privacy policies—note, not Terms of Use—and that it would take 244 hours a
year to read those privacy policies? 1 It should be stressed that many other digital
encounters—including those with games, phones and so on—also require assent to terms
of use that are not captured in the study of websites. On the other hand, one does not have
to assent to privacy policies to use many websites but at least formal assent to Terms of
Use is necessary to use many services.
4.) “Were we to hold otherwise, Blizzard—or any software copyright holder—could
designate any disfavored conduct during software use as copyright infringement, by
purporting to condition the license on the player’s abstention from the disfavored
conduct. . . . This would allow software copyright owners far greater rights than Congress
has generally conferred on copyright owners.” Focus on the court’s analysis of whether
1
Aleecia MacDonald & Lorrie Cantor, The Cost of Reading Privacy Policies
http://lorrie.cranor.org/pubs/readingPolicyCost-authorDraft.pdf