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Analysis A federal appeals panel has upheld a ban on the distribution of a once-popular World of Warcraft bot in a sprawling ruling that is sure to anger just about everyone with a stake in the debate over whether gamers have the right to tweak the titles they play.

Tuesday's 3-0 decision from the Ninth US Circuit Court of Appeals said the Glider bot, which automatically plays early levels of WoW to save users time, violated provisions of the Digital Millennium Copyright Act that bar the circumvention of technology designed to prevent access to copyrighted material. Glider maker MDY Industries added the measure to evade a feature called the Warden, which WoW maker Blizzard Entertainment added to enforce terms of service that forbid the game's 10 million users from employing bots.

The ruling means that MDI's sole member, Michael Donnelly, who had gross revenue of about $3.5 million selling 120,000 Glider licenses, won't be able to put the bot back on the market anytime soon. That's sure to tick off gamers and hackers who believe they should be able to modify the software they legally acquire, as well as entrepreneurs who want to make money selling products that do just that. (WoW users who consider Glider users cheaters, on the other hand, are likely to applaud.)

The lynchpin of the ruling (PDF) is the determination that one of the DMCA's anti-circumvention provisions extends a new form of protection that is distinct from those under the US copyright act. That finding, which directly contradicted a 2004 ruling issued by an appeals court in Washington, DC, means content owners are free to wield section 1201 (a) against bot makers and modders even when there is no claim of copyright infringement.

That's sure to tick off critics who believe the DMCA has already handed hardware and software manufactures too much control as it is.

The decision also affirms previous decisions, including this one from September that people who pay money to use software are mere “licensees” of the titles, not the owners. That means the software makers are free to impose restrictions on its use that in many cases wipes away important consumer rights.

But Tuesday's opinion offered much to anger manufacturers as well. It struck down a lower court finding that Donnelly was liable for what's known as secondary infringement because Glider made it possible to violate Blizzards copyrights. While Glider violated WoW's terms of use, the violation was rooted in contract law, not copyright, so there was no direct infringement to begin with, the judges said.

“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 opinion stated. “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 copyright owners far greater rights than Congress has generally conferred on copyright owners.”

The judges went on to overturn a finding that Donnelly was personally liable for a $6.5 million fine. They also ordered the lower court to reconsider the fine amount in light of the determination there was no infringement.

“This was a victory for our client,” Lance Venable, one of the attorneys representing Donnelly, told The Reg. “It wasn't what we wanted in total, but it was definitely a victory.”

He said he's confidant the ruling on the DMCA's anti-circumvention provision could be overturned should the US Supreme Court ever take up the matter. And with a split on the matter in appellate courts, it wouldn't be surprising to see the nation's highest court weigh in.

Until then, parties on all sides will have to grin and bear it. ®

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