up 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 other
players – because those dynamic elements could be accessed and copied only when the user was
connected to a Blizzard server that controlled their dynamic display, which in turn required the
user successfully to pass scan.dll when logging on and to survive the periodic scrutiny of the
resident component.^864
Six weeks later, the court entered two permanent injunctions against the marketing, sale
and distribution of Glider for use in connection with WoW – one on the basis of the copyright
infringement and DMCA claims, and another on the basis of a tortious interference with contract
claim for which the court had ruled in favor of Blizzard. The court stayed the injunction on the
copyright and DMCA claims pending their appeal, but refused to stay the injunction on the
tortious interference claims.^865 In a subsequent opinion, the court awarded Blizzard statutory
damages of $6.5 million.^866
On appeal, the Ninth Circuit reversed, except as to MDY’s liability for violation of
Section 1201(a)(2).^867 The Ninth Circuit cast one of the key issues on appeal to be whether the
DMCA’s anti-circumvention provisions prohibit circumvention of access controls only when
unauthorized access leads to copyright liability, as the Federal Circuit had held in the
Chamberlain and Storage Tech cases.^868 The Ninth Circuit reached a conclusion contrary to the
Federal Circuit on that issue.^869
First, the Ninth Circuit noted textual differences between the prohibitions of Section
1201(a) and 1201(b). Section 1201(a) is directed to protecting a “work protected under this
(^864) MDY Industries, LLC v. Blizzard Entertainment, Inc., 616 F. Supp. 2d 958, 964-68 (D. Ariz. 2009). The court
noted that Warden did not prevent all WoW users from copying the dynamic nonliteral elements of the game
because players who did not use Glider could copy that content while connected to Blizzard servers. The court
noted, however, that Section 1201(b)(1)(A) requires only that the technological measure restrict or otherwise
limit unauthorized copying. Id. at 968 n.3.
(^865) MDY Industries, LLC v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 24151 (Mar. 10, 2009). The
court denied a motion for reconsideration of the denial of the stay of the tortious interference injunction. MDY
Industries, LLC v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 25650 (Mar. 25, 2009).
(^866) MDY Industries, LLD v. Blizzard Entertainment, Inc., 2009 U.S. Dist. LEXIS 38260 (D. Ariz. Apr. 1, 2009).
(^867) MDY Industries, LLC v. Blizzard Entertainment, Inc., 2011 U.S. App. LEXIS 3428 (9th Cir. Feb. 17, 2011).
(^868) Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004); Storage
Technology Corp. v. Custom Hardware Eng’g Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).
(^869) The court also rejected MDY’s contention that Warden’s scan.dll and resident components were separate, and
only scan.dll should be considered as a potential access control measure under Section 1201 (a)(2). The court
held that “an access control measure can both (1) attempt to block initial access and (2) revoke access if a
secondary check determines that access was unauthorized. Our analysis considers Warden’s scan.dll and
resident components together because the two components have the same purpose: to prevent players using
detectable bots from continuing to access WoW software” MDY Industries, 2011 U.S. App. LEXIS at *27.