I have fond memories of using the Game Genie on my NES. To my seven-year-old self, it was a godsend. So many Nintendo games were fun but punishing to my young sensibilities, and I wanted to win. I also wanted to show my older brother I was as good at video games as he was. (Narrator: He was not.) After borrowing a friend’s Game Genie, I convinced my dad to buy me one and thus started and mostly ended my career of cheating in video games. I found that I didn’t have fun when everything was super easy. Sure, I beat the games – but it didn’t feel like it.
Not everyone feels the same way. Cheats and hacks for games are alive and well in games, including MMOs. A quick Google search can find cheats for just about any of the major MMOs. We’ve actually had a few law cases around cheating in MMOs, but oddly, they’re all filed under copyright law. Why would a game cheat be a copyright violation? The answer is pretty simple — it all comes down to what’s protected content and how that content is protected.
Let me give a brief overview: The DMCA, or Digital Millennium Copyright Act, is the US copyright law that criminalizes the product and dissemination of technology and services intended to circumvent access control. Keep that in mind because when it comes to code, everything gets a whole lot more complicated.
Before I dive down into the specifics of the case, I want to take a look at two of the concepts that are at the center of the copyright case Blizzard – literal elements and non-literal elements of software. Ultimately, these concepts are why game cheat/hack cases are often brought as DMCA violations.
The literal elements of a piece of software are the easier to understand: It’s the source code, both the human readable language, such as Python or C++ and the object code, the same code translated into binary, machine readable code. Copyright infringement of the literal elements of a software piece is basically what we think of as plagiarism. If you copy and paste a function verbatim, that’s a copyright violation of the literal elements.
There are also the non-literal elements, which are not nearly as clear. As the courts have defined them, non-literal elements of a computer program included structure, sequence, organization, screen displays, menu structures and user interfaces. In some cases, non-literal elements are protected content, and in others they aren’t. I’m not going to cover it here, but it’s worth mentioning that what non-literal elements are protected content has changed over the last 50 years or so — going from not protected to broadly protected and most recently to a middle ground hated by pro- and anti- copyright activists alike.
There are several tests employed by courts today to determine what non-literal elements of software are protected, and the most common test is the Abstraction-Filtration-Comparison test, which abstracts the utilitarian elements of the code from the expressive pieces of the code.
Now that we’ve looked at literal vs. non-literal elements, let’s take a look at the two cases. The first case, MDY Industries vs. Blizzard, is the more interesting of the pair. According to the record from 2010, MDY Industries created the World of Warcraft bot program Glider, a “cheat” of sorts that allowed users to auto-play the game while they weren’t actually at the computer. Blizzard reached out to MDY saying it was violating the studio’s copyright, and in response MDY took the audacious step of preemptively suing Blizzard. Blizzard responded with a counter-suit, and the race, as it were, was on.
There’s quite a bit I could unpack in this case, but I wanted to focus on why the court decided MDY/Glider violated the DMCA. It boils down to two things: how the court defined the non-literal elements of the game, and what Blizzard’s Warden anti-cheating software protected.
Blizzard’s counter-suit focused on two sections of the DMCA, 1201(a)(2) and 1201(b)(1). Both of sections deal with the circumvention of a technology measure that controls access to a work, but with a slightly different perspective. The fact that this section, 1201, deals with circumvention of controls access or rights management is paramount to why this case was was a DMCA 1201 violation.
1201(a)(2) states that “[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology . . . primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access” to a copyright-protected work.”
1201(b)(1) states that “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology…is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.”
The judge sided with MDY on the literal element portion of 1201(a)(2). Since that code is on the user’s computer and not protected by Warden, it fails to violate the 1201(a)(2). MDY didn’t actually circumvent anything.
But that’s where the good news ended for MDY. The judge went on rule that dynamic, non-literal elements were protected contents under DMCA Section 1201, while the static non-literal elements weren’t in this instance. The dynamic, non-literal elements being referred to were the graphics, sounds, animations and characters produced by the literal code, which required the server code to work. The static, non-literal elements were just the elements themselves – the sounds, images, animations not actively being expressed by the source code.
Here’s where things get more interesting. The court made a distinction between the literal elements of code on the user’s hard-drive and the literal elements of code on Blizzad’s servers. While the code on the user’s end was protected content, it didn’t fall under either 1201(a)(2) or 1201(b)(1) — but the server code did, on both accounts. The judge asserted that the dynamic, non-literal elements were protected content, that content required the user of Blizzard’s servers, and that MDY to had circumvent Warden in order to make Glider work.
The court set an interesting precedent here with how broadly it applied copyright protection of the non-literal elements. Back then, this division between the code on the user’s hard drives and code on the servers was relatively novel. Had the judge determined that the dynamic, non-literal elements — i.e., those requiring the server — had not been protected content, the case would have been decided in favor of MDY.
The later case, Blizzard v. Bossland, followed the same way – relying on Section 1201 and circumvention to make a DMCA case. Again, the critical factor was that Bossland had circumvented Warden in order to function.
A final note on MDY vs. Blizzard, before you walk away patting Blizzard too much on the back. I do want to point out that the damages blizzard wanted – $6 million – MDY and the owner couldn’t actually afford to pay (a similar fate befell the Bossland hackers). The judge granted all profits and all money set aside by the owner and MDY to be placed in an escrow account for Blizzard. Blizzard didn’t think that was enough, and so it tried to take the hacker’s entire life savings and asked for the title of his car. The judge denied the motion.
Stay classy Blizzard.
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