Blizzard argued that scan.dll and the resident software controlled access to copyrighted
software, as required by Section 1201(a)(2) of the DMCA, in two ways. First, when scan.dll
prevented a user from playing WoW, or when the resident software terminated a user’s playing
of 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 (the
multi-media presentation of the WoW universe and character interactions) generated by the
code’s interaction with the computer hardware and operating systems.^861
The court rejected Blizzard’s claim under Section 1201(a)(2). With respect to access to
the code of WoW, the court, citing the Lexmark case, ruled that a holder of Blizzard’s game
client software had full and complete access to that code on both the CD that contained it and on
the user’s hard drive once the software had been loaded onto the user’s computer. The user
thereafter could view a copy of the game client software code, regardless of whether the user
actually played WoW or encountered Warden. The user did not need to pass through Blizzard’s
security devices to gain access to the code. Accordingly, the court granted summary judgment to
the defendant on this issue. The court ruled that it could not similarly grant summary judgment
with respect to the non-literal elements of WoW because the parties’ statement of facts filed in
conjunction with their motions for summary judgment said virtually nothing about this aspect of
the game. Finally, the court noted that neither scan.dll nor the resident software appeared to
require the application of information by the game user, or the application of a process or a
treatment by the game user, before granting access to copyrighted information, as required by
Section 1201(a)(2). Instead, they merely scanned for unauthorized programs. However, because
neither party had addressed this issue in their briefs, the court noted that it would be a factual
issue for trial.^862
The 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 software
code to RAM and accessing the non-literal elements of the game once they were caught using
Glider. MDY disputed this factual assertion, contending that code from the game client software
was not written to RAM after a user passed by scan.dll or the resident software. The court
concluded that, because there was a factual dispute with respect to the extent to which Blizzard’s
Warden software protected against the copying of software code to RAM, and because the
parties did not submit sufficient facts from which the court could decide whether the protective
measures protected Blizzard’s rights in the non-literal elements of the game, summary judgment
on the Section 1201(b)(1) claim was denied.^863
In a subsequent opinion issued after a bench trial, the court held that Blizzard’s
circumvention claims against Glider under Sections 1201(a)(2) and 1201(b)(1) failed with
respect to the discrete nonliteral components of the games stored on the game player’s hard
drive, because they could be accessed and viewed without signing onto the server (and therefore
involving the Warden software) by independently purchased computer programs that could call
(^861) Id. at 34-35.
(^862) Id. at 1835-40.
(^863) Id. at *41-43.