I'm morally on Blizzard's side, but if you're a freedom-to-tinker absolutist there are some bright spots in here. Highlights:

1.

The ruling draws a bright line distinction between "conditions", which limit the the scope of right copyright rights granted by a contract, and "covenants", which are basically any other promise in that contract. Under this ruling, you can't claim copyright violation when someone violates a EULA covenant; the fundamental right to make whatever copy you made was determined by the conditions in the contract, not the covenants. What this means is that companies can't force you to hop up and down on one foot or say nice things about them in public and then claim copyright violation when you don't. See:

Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copy- right owners far greater rights than Congress has generally conferred on copyright owners.

2.

But on the other hand, there is a major shift in DMCA interpretation in the ruling. Prior rulings have held that the DMCA comes into play only in the setting of copyright violation. In particular, there had to be a nexus of both circumvention and a resulting violation of copyright to employ the anticircumvention cause of action.

No more. This ruling reads the plain language of the DMCA and determines that Congress meant to establish two anticircumvention causes: 1201(a), which covers any circumvention, and 1201(b), which covers only copyvio circumvention. In support of this interpretation, beyond the plain text of the statute, the court notes that there are different checks on 1201(a) and 1201(b): 1201(a) is subject to Library of Congress exemptions and 1201(b) isn't, but 1201(b) only applies in copyvio.

To the concerns that this interpretation will result in a distopian hellscape, the court responds:

* Tell it to congress, bitches.

* If DMCA anticircumvention exacerbates antitrust, bring an antitrust-relevant DMCA case and they'll consider it.

* Stop being silly about DMCA violations for bypassing your own burglar alarms.

3.

Finally, it's worth looking at the court's take on Blizzard's tortious interference claim. Recall: you're liable for the tort of interference when you cause damage by knowingly and improperly inducing someone else to violate a contract. Blizzard has what seems to be a very strong case here; MDY conceded that very point on its own website. Thus, Blizzard got a lower-court summary judgement on this point.

The court reversed the summary judgement. To get a summary judgement for interference out of the 9th circuit, you need to consider 7 factors:

- Nature of the conduct - Motive - The interests of the aggrieved party - The interests the interference advances - Relevant social interests - How directly the conduct actually bore on interference - Any existing relationship between the interferer and the aggrieved party.

The appeals court decided that the factors here were too murky to grant a summary judgement; MDY's product may have provided meaningful benefits to users, and even advanced social interests by (wait for it) "improv[ing] some users’ romantic relationships by reducing the time that they spend playing WoW". I FIND IT HARD TO DISAGREE.

ps.

Permit me a brief moment of punditry:

I'd like to live in a world where companies are free to offer the products they choose to offer under the terms they choose to offer them under. Companies should not have to incur a technological arms race simply to ship a "no bots allowed" game". I also feel like that's a point that startup entrepreneurs should sympathize with.

On the other hand, the DMCA makes me queasy, because companies will exploit it to advance illegitimate interests, such as "preventing the public from learning about product flaws discovered through unauthorized research that endanger them". The DMCA has controls against this, but they all seem to involve researchers spending hundreds of thousands of dollars on lawyers.

So while I'm glad that Blizzard looks poised to "win" this, I wish there was something less treacherous than the DMCA to allow them to do it.