Advanced Copyright Issues on the Internet - Fenwick & West LLP

technologies known as “Warden” to detect and prevent the use of bots by WoW players.Warden included two different software components. The first component, known as “scan.dll,”scanned the user’s computer for unauthorized programs such as Glider before the user loggedonto the WoW servers to play the game, and if it detected such programs, scan.dll would denythe user access to the game servers. The second component, known as the “resident” componentof Warden, ran periodically while a user played WoW and if it detected the use of a bot program,Blizzard would revoke access to the game. 548Blizzard argued that scan.dll and the resident software controlled access to copyrightedsoftware, as required by Section 1201(a)(2) of the DMCA, in two ways. First, when scan.dllprevented a user from playing WoW, or when the resident software terminated a user’s playingof WoW, they prevented additional code in the game client software from being written to RAM.Second, scan.dll and the resident software barred access to WoW’s non-literal elements (themulti-media presentation of the WoW universe and character interactions) generated by thecode’s interaction with the computer hardware and operating systems. 549The court rejected Blizzard’s claim under Section 1201(b)(2). With respect to access tothe code of WoW, the court, citing the Lexmark case, ruled that a holder of Blizzard’s gameclient software had full and complete access to that code on both the CD that contained it and onthe user’s hard drive once the software had been loaded onto the user’s computer. The userthereafter could view a copy of the game client software code, regardless of whether the useractually played WoW or encountered Warden. The user did not need to pass through Blizzard’ssecurity devices to gain access to the code. Accordingly, the court granted summary judgment tothe defendant on this issue. The court ruled that it could not similarly grant summary judgmentwith respect to the non-literal elements of WoW because the parties’ statement of facts filed inconjunction with their motions for summary judgment said virtually nothing about this aspect ofthe game. Finally, the court noted that neither scan.dll nor the resident software appeared torequire the application of information by the game user, or the application of a process or atreatment by the game user, before granting access to copyrighted information, as required bySection 1201(b)(2). Instead, they merely scanned for unauthorized programs. However, becauseneither party had addressed this issue in their briefs, the court noted that it would be a factualissue for trial. 550The court also rejected a claim by Blizzard under Section 1201(b)(1) of the DMCA.Blizzard asserted that scan.dll and the resident software prevented users from copying softwarecode to RAM and accessing the non-literal elements of the game once they were caught usingGlider. MDY disputed this factual assertion, contending that code from the game client softwarewas not written to RAM after a user passed by scan.dll or the resident software. The courtconcluded that, because there was a factual dispute with respect to the extent to which Blizzard’sWarden software protected against the copying of software code to RAM, and because theparties did not submit sufficient facts from which the court could decide whether the protective548549550Id. at *34.Id. at *34-35.Id. at 18*35-40.- 132 -