## Facts

- Blizzard Entertainment and Vivendi Games operated *World of Warcraft* (WoW) and distributed the WoW client subject to an End User License Agreement (EULA) and Terms of Use (ToU) that prohibited bots and other unauthorized programs.
- MDY Industries, founded by Michael Donnelly, developed and sold “Glider,” a bot that automated gameplay in WoW.
- Blizzard deployed “Warden,” an anti-cheat system intended to detect and block unauthorized programs; Glider was updated to evade Warden.
- MDY sought declaratory relief that Glider did not infringe Blizzard’s rights; Blizzard counterclaimed for, among other theories, contributory and vicarious copyright infringement, DMCA violations under 17 U.S.C. §§ 1201(a)(2) and 1201(b)(1), and tortious interference with contract.
- The district court treated WoW users as licensees, held that certain EULA/ToU breaches amounted to copyright infringement, awarded damages, and entered a permanent injunction barring Glider’s distribution.

## Issues

1. Whether WoW users were owners of their copies of the client software or licensees under the EULA/ToU.
2. When a software license breach constitutes copyright infringement rather than only a contract breach.
3. Whether Glider created DMCA liability under 17 U.S.C. § 1201(a)(2) (access-control circumvention devices) and/or § 1201(b)(1) (rights-control circumvention devices), including whether § 1201(a)(2) requires a showing of infringement.
4. Whether MDY’s sale and promotion of Glider supported tortious interference with Blizzard’s player contracts under Arizona law.

## Decision

- Affirmed in part, reversed in part, and remanded.
- Held WoW users were licensees, not owners, because Blizzard retained title and imposed significant use and transfer restrictions.
- Reversed the district court’s broad view that EULA/ToU breaches automatically converted gameplay-related RAM copying into copyright infringement; many anti-bot provisions were covenants enforceable in contract, not license conditions defining the scope of a copyright grant.
- Affirmed DMCA liability under § 1201(a)(2) because Warden was an access-control measure and Glider was designed and distributed to bypass it; no showing of actual or likely copyright infringement was required.
- Reversed DMCA liability under § 1201(b)(1) because that subsection targets measures protecting the exercise of exclusive rights, and the necessary connection to infringement was not established under the court’s narrowed copyright analysis.
- Largely upheld tortious interference and the permanent injunction against distributing Glider, while remanding aspects of relief for recalculation consistent with the modified holdings.

## Legal Principles

- A mass-market software user may be a licensee, not an owner, when the licensor retains title and imposes substantial restrictions on use and transfer.
- A software licensee’s breach is copyright infringement only when the violated term is a license condition that limits the scope of the license and bears a nexus to one of the copyright holder’s exclusive rights under 17 U.S.C. § 106; otherwise, the term is a covenant enforceable in contract.
- Under 17 U.S.C. § 1201(a)(2), trafficking in a device that circumvents a technological measure effectively controlling access to a copyrighted work can be actionable without proof that the circumvention results in actual or likely infringement.
- Liability under 17 U.S.C. § 1201(b)(1) requires circumvention of a measure that protects the exercise of exclusive rights (not merely access), and depends on the measure’s connection to preventing infringement of those rights.
- Knowingly encouraging users to breach contractual anti-bot provisions can support tortious interference with contractual relations under Arizona law.

## Conclusion

The Ninth Circuit rejected treating ordinary EULA/ToU breaches as automatic copyright infringement, affirmed that Glider’s Warden-bypassing function triggered DMCA § 1201(a)(2) access-control liability without an infringement showing, reversed § 1201(b)(1) rights-control liability, and largely sustained tortious interference findings and injunctive relief against distributing the bot.


MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928 (9th Cir. 2010)