‘circumvention’ element of a § 1201(a)2) claim, because Blizzard has demonstrated that it did
not authorize MDY to circumvent Warden.”^883
The Ninth Circuit found, however, that MDY was not liable under Section 1201(b)(1)
because Warden did not protect MDY’s reproduction right against unauthorized copying.
Although WoW players copied the software code into RAM while playing the game, Blizzard’s
end user license agreement and Terms of Use authorized all licensed WoW players to do so.
Because the court had found that the prohibition in the Terms of Use on use of bots was a
contractual covenant rather than a condition to the license,^884 violation of the covenant by a
Glider user did not make the user a copyright infringer by continuing to copy code into RAM.
Second, although WoW players could theoretically record game play by taking screen shots,
there was no evidence that Warden detected or prevented such allegedly infringing copying.
Warden had been designed to reduce the presence of cheats and bots, not to protect WoW’s
dynamic non-literal elements against copying. Accordingly, the court ruled that Warden did not
effectively protect any of Blizzard’s rights under the copyright act, and MDY was therefore not
liable under Section 1201(b)(1) for Glider’s circumvention of Warden.^885
(ix) Coupons, Inc. v. StottlemireThe plaintiff offered coupon printing software that enabled online, printable coupons to
be delivered to consumers. The software placed a registry key file on the user’s personal
computer that acted as a counter, limiting the number of times each coupon could be printed on
that computer (typically, two prints per coupon). The defendant discovered how to remove the
counter, 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, the
coupons were subject to copyright protection, and the defendant’s distribution of its computer
program violated the DMCA by allowing users to access more than the limit for each coupon.
The plaintiff also claimed that the act of printing constituted unauthorized copying. The
defendant brought a motion to dismiss.^886 The court found fault with the plaintiff’s DMCA
claims:
These concepts seem to be logically inconsistent and, when asserted together, do
appear to blur the carefully constructed distinction between “access controls” and
“rights controls.” If the court accepts Coupons’ argument that each coupon is
“unique,” then can there be a claim of improper copying ....? On the other hand,
if the coupons are not unique, then the allegations against Stottlemire appear to
fall within the “rights controls” (i.e., permitting users to print more copies of
coupons than were authorized by Plaintiff).^887(^883) Id.
(^884) See Section III.C.2(i) below.
(^885) 2011 U.S. App. LEXIS 3428 at *60-61.
(^886) Coupons, Inc. v. Stottlemire, No. CV 07-03457 HRL (N.D. Cal. July 2, 2008), slip op. at 1, 4.
(^887) Id. at 4-5.