Advanced Copyright Issues on the Internet - Fenwick & West LLP

measures protected Blizzard’s rights in the non-literal elements of the game, summary judgmenton the Section 1201(b)(1) claim was denied. 551In a subsequent opinion issued after a bench trial, the court held that Blizzard’scircumvention claims against Glider under Sections 1201(a)(2) and 1201(b)(1) failed withrespect to the discrete nonliteral components of the games stored on the game player’s harddrive, because they could be accessed and viewed without signing onto the server (and thereforeinvolving the Warden software) by independently purchased computer programs that could callup the individual visual images or recorded sounds within the game client software. However,the circumvention claims were valid with respect to the “dynamic” nonliteral elements of WoW– i.e., the real-time experience of traveling through different worlds, hearing their sounds,viewing their structures, encountering their inhabitants and monsters, and encountering otherplayers – because those dynamic elements could be accessed and copied only when the user wasconnected to a Blizzard server that controlled their dynamic display, which in turn required theuser successfully to pass scan.dll when logging on and to survive the periodic scrutiny of theresident component. 552Six weeks later, the court entered two permanent injunctions against the marketing, saleand distribution of Glider for use in connection with WoW – one on the basis of the copyrightinfringement and DMCA claims, and another on the basis of a tortious interference with contractclaim for which the court had ruled in favor of Blizzard. The court stayed the injunction on thecopyright and DMCA claims pending their appeal, but refused to stay the injunction on thetortious interference claims. 553 In a subsequent opinion, the court awarded Blizzard statutorydamages of $6.5 million. 554 (x) Coupons, Inc. v. StottlemireThe plaintiff offered coupon printing software that enabled online, printable coupons tobe delivered to consumers. The software placed a registry key file on the user’s personalcomputer that acted as a counter, limiting the number of times each coupon could be printed onthat computer (typically, two prints per coupon). The defendant discovered how to remove thecounter, created a computer program that automated its removal, and distributed the program.The plaintiff alleged that, because each coupon had its own unique bar code and date stamp, thecoupons were subject to copyright protection, and the defendant’s distribution of its computerprogram violated the DMCA by allowing users to access more than the limit for each coupon.551552553554Id. at *41-43.MDY Industries, LLC v. Blizzard Entertainment, Inc., 616 F. Supp. 2d 958, 964-68 (D. Ariz. 2009). The courtnoted that Warden did not prevent all WoW users from copying the dynamic nonliteral elements of the gamebecause players who did not use Glider could copy that content while connected to Blizzard servers. The courtnoted, however, that Section 1201(b)(1)(A) requires only that the technological measure restrict or otherwiselimit unauthorized copying. Id. at 968 n.3.MDY Industries, LLC v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 24151 (Mar. 10, 2009). Thecourt denied a motion for reconsideration of the denial of the stay of the tortious interference injunction. MDYIndustries, LLC v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 25650 (Mar. 25, 2009).MDY Industries, LLD v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 38260 (D. Ariz. Apr. 1, 2009).- 133 -