July 19, 2024

Ninth Circuit Ruling in MDY v. Blizzard

The Ninth Circuit has ruled on the MDY v. Blizzard case, which involves contract, copyright, and DMCA claims. As with the district court ruling, I’ll withhold comment due to my involvement as an expert in the case, but the decision may be of interest to FTT readers.

[Editor: The EFF has initial reactions here. Techdirt also has an overview.]


  1. The malignant apparition of so-called “intellectual property” continues to be employed as a means of eliminating the concept that the consumer acquires a property right to a product at the time it is acquired (bought). Not only is the consumer being deprived of the historically recognized right of ownership, but the “seller” also now claims the right to control the product post-sale.

    I might even go so far as to say that the concept of “contract” has been totally bastardized. Used to be that a contract established through negotiation the rights and responsibilities of the parties involved. Now so-called “contracts” are simply a list of consumer obligations that can be changed unilaterally and at will by the firm “leasing” the product..

    When laws no longer seem rationale to the affected society they will be ignored. When will that happen here? I don’t know.

  2. Arizona Patent Attorney says

    The DMCA ruling makes this issue ripe for review by the Supreme Court, as several circuit courts have taken different approaches to the issue. Anyone else think so?

  3. I really don’t know anything about it, but if Blizzard claims that it is simply licensing its software, they why are they allowed to sell it to you as if you were buying it? Could someone sue Blizzard for false advertising because all over their web store, they have “Buy Now!” buttons which then direct you to pages where apparently, all you can do is lease.

    • A clear distinction should be made between selling access to data and selling a product.
      This has been a source of much confusion for the content industry since people are traditionally used to purchasing a hard vehicle (DVD, CD, etc) as a product to access data.

      Now that data is accessed directly, there is no inventory. It should not be treated as such.
      Nobody owns data. Data has no meaning. It is the processed data known as “content” that copyright licenses govern.

  4. It seems the court here ruled that certain requirements in a software license may be construed as “covenants” rather than “conditions”. In other words, the WoW license may say, in a nutshell, “We license you the right to use this software so long as you don’t use a bot.” (among other things). The court considered that a “covenant” of a contract, not a “condition” of the license. What impact could that reasoning have on the GPL? The GPL basically says, “We license you the right to distribute modified versions of this software so long as you include source code.” Could a court following the MDY precedent construe the “source code” requirement as a “covenant” and not a “condition”, thereby rendering the GPL ineffective? It would seem a ludicrous result, but seems to be possible given this latest opinion from the 9th Circuit.