Blizzard, creator of the popular online game World of Warcraft (WoW), recently suffered a setback in its litigation against MDY Industries, which sells Glider – a software "bot" that automatically plays some of the early levels of the game. The Ninth Circuit reversed a $6.5 million judgment for Blizzard, finding no liability for secondary copyright infringement. A party may be liable for secondary infringement if it either (1) intentionally induced another person's direct infringement (known as "contributory infringement") or (2) had the right and ability to control another's infringing activities and derived a financial benefit from those activities (known as "vicarious infringement"). In either case, direct infringement must be established before secondary liability can attach.
The decision was a mixed bag of good news and bad news for the parties – as well as their customers. Although the court exonerated MDY for copyright infringement, it found the "bot" maker liable for violations of the Digital Millennium Copyright Act (DMCA). In addition, the court ordered a trial on Blizzard's claim that MDY tortiously interfered with Blizzard's user agreements. While WoW players may be happy with the ruling that license and ToU violations do not necessarily constitute copyright infringement, they might be surprised to learn they do not actually own their copies of the WoW software program, according to the court's decision.