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Court Reverses Copyright|Ruling for WoW Creators

(CN) - The 9th Circuit on Tuesday partially vacated a $6.5 million judgment and an injunction against a programmer who created software that helps World of Warcraft players advance quickly to the higher levels of the popular online role-playing game.

The federal appeals court in Seattle said that Michael Donnelly did not violate copyright law by selling his Glider software, which allows a player to automatically move through World of Warcraft's (WoW) early levels. But the court did find that Donnelly's company, MDY Industries, violated part of the Digital Millennium Copyright Act.

A district court will now determine Donnelly's personal liability.

Blizzard Entertainment, which created WoW in 2004, claims that Glider interferes with its contracts, and that gamers who use Glider may pay fewer subscription fees since they get through the 70 levels in fewer weeks than manual players.

"MDY argues that Glider is an innovative, profitable software program that has positively affected its users' lives by advancing them to WoW's more interesting levels," the ruling states. "MDY has introduced evidence that Glider allows players with limited motor skills to continue to play WoW, improves some users' romantic relationships by reducing the time that they spend playing WoW, and allows users who work long hours to play WoW."

A Blizzard lawyer visited Donnelly at home in 2006, threatening to sue unless he stopped selling Glider and remitted all profits to Blizzard.

Donnelly filed a complaint against Blizzard seeking a judgment that his program did not violate Blizzard's copyright. Blizzard countersued for copyright infringement and tortious interference with contract.

As of September 2008, MDY Industries made about $3.5 million from selling 120,000 copies of Glider, according to the ruling.

Arizona District Court Judge David Campbell found Donnelly personally liable for most of the claims, permanently enjoined him from distributing Glider and ordered him to pay $6.5 million to Blizzard.

The three-judge appeals panel vacated part of the district court's findings in a 47-page ruling Tuesday.

While Donnelly's software may violate Blizzard's terms-of-use for World of Warcraft, it does not violate the company's copyright, Judge Consuelo Callahan wrote for the panel.

Prohibiting bot, or robot, software are covenants, not "copyright-enforceable conditions," the court found.

"A Glider user violates the covenants with Blizzard, but does not thereby commit copyright infringement because Glider does not infringe any of Blizzard's exclusive rights," Callahan wrote. "For instance, the use does not alter or copy WoW software."

If the district's court's ruling were allowed to stand, Callahan added, any software-copyright holder could label any unpopular conduct a copyright infringement, which "would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners."

The panel also found that the district court had ignored questions of fact to grant Blizzard summary judgment on the contract interference claims.

Blizzard argued that Donnelly knowingly helped World of Warcraft players to breach their contracts with Blizzard, and that he "distorts" the game's virtual economy and puts a strain on Blizzard's servers and other resources.

Blizzard spends $940,000 every year responding to complaints about bots like Glider, and was forced to develop anti-bot software called Warden, according to the ruling.

Donnelly countered that he created Glider in 2005, before Blizzard's terms of use prohibited bots, and that "Glider enhances some players' experience of the game, including players who might otherwise not play WoW at all," according to the ruling.

These and other disputes should have precluded summary judgment on the contract claims, the panel found.

"The parties dispute Glider's impact on the WoW experience," Callahan wrote. "Taking this evidence in the light most favorable to MDY, there is a genuine issue of material fact as to these factors."

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