MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 55

RESPONSE TO 46 Statement of Facts, RE: 45 MOTION for Summary Judgment and Memorandum of Points and Authorities filed by Vivendi Games, Inc., Blizzard Entertainment, Inc.. (Attachments: # 1 Exhibit Index & Ex. 50, # 2 Exhibit Ex. 51, # 3 Exhibit Ex. 52, # 4 Exhibit Ex. 53, # 5 Exhibit Ex. 54, # 6 Exhibit Ex. 55, # 7 Exhibit Ex. 56, # 8 Exhibit Ex. 57, # 9 Exhibit Ex. 58)(Genetski, Christian) Modified on 4/24/2008 INCORRECT DOCUMENT EVENT SELECTED; DOCUMENT NOT LINKED CORRECTLY. LINKAGE ADDED AND TEXT CORRECTED TO REFLECT CORRECT DOCUMENT DESCRIPTION. (REW, ).

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al Doc. 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SONNENSCHEIN NATH & ROSENTHAL LLP Scott Stein (AZ Bar No. 022709) Shaun Klein (AZ Bar No. 018443) 2398 East Camelback Road, Suite 1060 Phoenix, AZ 85016-9009 Facsimile (602) 508-3914 Telephone (602) 508-3900 Christian S. Genetski (Pro Hac Vice) Shane M. McGee (Pro Hac Vice) 1301 K Street, NW, Suite 600-East Tower Washington, DC 20005 Facsimile (202) 408-6399 Telephone (202) 408-6400 Attorneys for Defendants Vivendi Games, Inc. and Blizzard Entertainment, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff and Counter-Claim ) Defendant ) ) vs. ) ) BLIZZARD ENTERTAINMENT, INC., ) and VIVENDI GAMES, INC. ) ) Defendants and ) Counter-Claim Plaintiffs. ) ) BLIZZARD ENTERTAINMENT, INC., ) and VIVENDI GAMES, INC. ) ) Third-Party Plaintiffs, ) ) vs. ) ) MICHAEL DONNELLY, ) ) Third-Party Defendant. ) ) MDY INDUSTRIES, LLC, Case No.: CV06-02555-PHX-DGC BLIZZARD ENTERTAINMENT, INC. AND VIVENDI GAMES, INC. RESPONSES TO MDY'S STATEMENT OF FACTS IN SUPPORT OF SUMMARY JUDGMENT The Honorable David G. Campbell Pursuant to Local Rule 56.1 and Federal Rule of Civil Procedure 56, Blizzard Entertainment, Inc. and Vivendi Games, Inc. (together, "Blizzard") hereby submit the following response to Defendants' Statement of Facts in Support of Summary Judgment. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. World of Warcraft is a massive multi-player online roll playing game (MMORPG). Blizzard Entertainment developed the game and distributes the game through various retail stores where it can be purchased on compact disc and installed to a computer. Blizzard also distributes the game through its internet website where it can be freely downloaded and installed directly to a hard drive. Blizzard first released WOW to the public on November 23, 2004. See generally, Exhibit A (Wikipedia entry); Exhibit B (Deposition of Greg Ashe pp 15-23). OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard does not dispute this statement, but notes that World of Warcraft is a massively multi-player online roll playing game (MMORPG). SOF 9.1 RESPONSE TO SECOND SENTENCE: Blizzard disputes this statement. The WoW client is licensed, not purchased; all users agree to the End User License Agreement ("EULA") and the Terms of Use ("TOU") which define the scope of the license. SOF 84-88. RESPONSE TO THIRD SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO FOURTH SENTENCE: References to "SOF" in Blizzard's responses cite to materials included in Blizzard's Statement of Facts submitted in support of its own Motion for Summary Judgment. References to "SOF Supp." cite to Blizzard's Supplemental Statement of facts submitted herein, which continue sequentially from the SOF beginning at paragraph 265. -2- 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 2. Since its initial release, Blizzard has steadily increased the number of active subscriptions of its game. On average, Blizzard has increased its total number of active subscriptions by one million every three to four months. In June, 2005, Blizzard's active subscription total was approximately three million and has steadily increased to a total of ten million as of January 22, 2008. See Exhibit B (Deposition of Greg Ashe, pp 211-222); Exhibit C (Blizzard Press Release dated January 22, 2008). RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 3. Each active subscription account requires that a user pay a monthly fee to play the game. In the U.S., the monthly cost is fifteen dollars per month. Exhibit B, at 218. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 4. In the WoW game, a person controls a character avatar within a persistent game world, exploring the landscape, fighting monsters, performing quests, building skills, and interacting with computer-generated characters, as well as other players. The game rewards success with in-game currency (gold), items, experience and reputation, which in turn allow players to improve their skill and power. A player begins the game at level 1. Players can raise their characters from level one to level 60 without an expansion module, and level 70 if they have purchased an expansion module of the World of Warcraft game entitled, "The Burning Crusade." Additionally, players may opt to take part in battles against other players of an enemy faction, in player vs. player battlegrounds or in normal world zones subject to the rules in place on the particular server. Duels can also be fought between members of the same or opposing factions, although these do not provide rewards. Many players also choose to join guilds. Short term parties and raid groups can be formed to conduct raids against enemy territories. See Exhibit A, at 2; Exhibit B, pp 19-20. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. While players play the game for many reasons, one of the primary reasons to play the game is to reach level 70. Exhibit B, at 19. RESPONSE: Blizzard disputes this statement; this statement is not supported by the record. Blizzard's Greg Ashe testified that WoW players enjoy the game for a variety of reasons, including leveling characters, role-playing, and the social immersion. SOF 28-29. 6. When a player reaches level 70, the player no longer accumulates experience, but can still accumulate in-game wealth. Id. at 21. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 7. At level 70, the player has access to WoW's high end content such as an "epic mount" and an "epic flying mount", which are considered the two most prized possessions in the game. In fact, according to Blizzard, many people feel the game does not really begin until one reaches level 60 because of that. Id. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO SENTENCE 1: Blizzard disputes this statement. The deposition transcript cited by MDY indicates that the epic mount and the epic flying mount are "two of the most prized possessions," not "the two most prized possessions" as indicated by MDY. SOF Supp. 269. 8. Even if a player reaches the highest level (60 or 70) in the game, there is plenty of other content to explore within the game and one can continue playing the game indefinitely. Id. at 24. RESPONSE: -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 9. Prior to installing the game on a computer hard drive, Blizzard requests that the account holder agree to the terms of Blizzard's EULA and TOU. Generally, the agreements grant the end user a non-exclusive license to operate the WoW game client software by installing it on an unlimited number of computers that the user owns, as well as the right to make one archival copy of the compact discs containing the game client software. See Exhibit D (Blizzard's current EULA updated February 2, 2007, Paragraph 1). OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO SENTENCE 1: Blizzard disputes this statement. Blizzard requires not requests that the registrant of an account agree to the terms of Blizzard's EULA and TOU. Failure to do so will prevent the user from playing the game. SOF 84-88. 10. The current version of the TOU (last updated January 11, 2007) also includes many restrictions on the licensee. Pertinent to this case, the TOS in Paragraph 4(B) states: "You agree that you will not (i) modify or cause to be modified any files that are a part of the Program or the Service; (ii) create or use cheats, bots, "mods", and/or hacks, or any other third-party software designed to modify the World of Warcraft experience; or (iii) use any third-party software that intercepts, "mines", or otherwise collects information from or through the Program or the Service. Notwithstanding the foregoing, you may update the Program with authorized patches and updates distributed by Blizzard, and Blizzard may, at its sole and absolute discretion, allow the use of certain third party user interfaces." See Exhibit E (Blizzard's current TOU, Paragraph 4(B)). RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 11. Regarding termination of the TOU, Paragraph 10 of the TOU states: "This Agreement is effective until terminated." Blizzard does not provide a basis in the TOU that terminates the TOU upon violating paragraph 4(B). See Id. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO SENTENCE 1: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO SENTENCE 2: Blizzard disputes this statement. Both Paragraphs 7 and 10 of the TOU provide Blizzard the unqualified right to immediately terminate the TOU for violation of Paragraph 4(B). MDY SOF , Exhibit E, 7, 10. Additionally, the WoW EULA, which incorporates the TOU by reference secures Blizzard's right to terminate for violations of the TOU. MDY SOF, Exhibit D. 12. The current version of Blizzard's EULA also includes many restrictions on the licensee. Pertinent to this case, regarding the responsibilities of the end user, the EULA in Paragraph 4 states: A. Subject to the license granted hereunder, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Game, or remove any proprietary notices or labels on the Game. Failure to comply with the restrictions and limitations contained in this Section 4 shall result in the immediate, automatic termination of the license granted hereunder and may subject you to civil and/or criminal liability. Notwithstanding the foregoing, you may make one (1) copy of the Game Client and the Manuals for archival purposes only." B. You agree that you shall not, under any circumstances, (i) sell, grant a security interest in or transfer reproductions of the Game to other parties in any way not expressly authorized herein, nor shall you rent, lease or license the Game to others; (ii) exploit the Game or any of its parts, including without limitation the Game Client, for any commercial purpose, including without limitation use at a cyber cafe, computer gaming center or any other location-based site without the express written consent of Blizzard; (iii) host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by Blizzard in any way, including without limitation through protocol emulation, tunneling, packet sniffing, modifying or adding components to the Game, use of a utility program or any other techniques now known or hereafter developed, for any purpose, including without limitation unauthorized network play over the Internet, network play utilizing commercial or non-commercial gaming networks, or as part of content aggregation networks; or -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (iv) facilitate, create or maintain any unauthorized connection to the Game or the Service, including without limitation any connection to any unauthorized server that emulates, or attempts to emulate, the Service. All connections to the Game and/or the Service, whether created by the Game Client or by other tools and utilities, may only be made through methods and means expressly approved by Blizzard. Under no circumstances may you connect, or create tools that allow you or others to connect, to the Game's proprietary interface other than those expressly provided by Blizzard for public use. Id. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 13. Paragraph 5 of the EULA also includes specific language that allows Blizzard to monitor the licensee's computer to detect if the licensee is violating the EULA. Specifically, paragraph 5 states: 5. Consent to Monitor. WHEN RUNNING, THE GAME MAY MONITOR YOUR COMPUTER'S RANDOM ACCESS MEMORY (RAM) FOR UNAUTHORIZED THIRD PARTY PROGRAMS RUNNING CONCURRENTLY WITH THE GAME. AN "UNAUTHORIZED THIRD PARTY PROGRAM" AS USED HEREIN SHALL BE DEFINED AS ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY "ADDON," "MOD," "HACK," "TRAINER," OR "CHEAT," THAT IN BLIZZARD'S SOLE DETERMINATION: (i) ENABLES OR FACILITATES CHEATING OF ANY TYPE; (ii) ALLOWS USERS TO MODIFY OR HACK THE GAME INTERFACE, ENVIRONMENT, AND/OR EXPERIENCE IN ANY WAY NOT EXPRESSLY AUTHORIZED BY BLIZZARD; OR (iii) INTERCEPTS, "MINES," OR OTHERWISE COLLECTS INFORMATION FROM OR THROUGH THE GAME. IN THE EVENT THAT THE GAME DETECTS AN UNAUTHORIZED THIRD PARTY PROGRAM, THE GAME MAY (a) COMMUNICATE INFORMATION BACK TO BLIZZARD, INCLUDING WITHOUT LIMITATION YOUR ACCOUNT NAME, DETAILS ABOUT THE UNAUTHORIZED THIRD PARTY PROGRAM DETECTED, AND THE TIME AND DATE THE UNAUTHORIZED THIRD PARTY PROGRAM WAS DETECTED; AND/OR (b) EXERCISE ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT, WITH OR WITHOUT PRIOR NOTICE TO THE USER. (Exhibit D). RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. The EULA and TOU have evolved from when the World of Warcraft software first became available in November 2004. In the current version of the TOU, Blizzard restricts the use of certain types of third party software that can be used with the WoW software. One type of prohibited software is a "bot" program. See Exhibit E, at Paragraph 4(B). OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 15. A bot program is a software program that enables a person to run another software program on auto-pilot with minimal assistance from the person. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 16. Blizzard did not explicitly prohibit "bot" programs until it modified its EULA on December 11, 2006. Blizzard modified its EULA and TOU several times from November, 2004 to December, 2006. See e.g. Exhibit F (Copy of original Blizzard TOU, Paragraph 4(c)). OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard disputes this statement. Prior to December 11, 2006, the EULA and the TOU both prohibited bot programs. SOF 97-102, 104. 17. Blizzard used the word "bot" in its earliest version of its TOU (6/2/2005). Blizzard explicitly prohibited the use of "bots" in 3(B)(vi) "to collect information from World of Warcraft or any forum or website owned or administered by Blizzard...". In Paragraph 2(C) of the same agreement, -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard did not, however, list "bots" as one of its prohibited third-party software programs. See Exhibit F. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO SECOND SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO THIRD SENTENCE: Blizzard disputes the import of this statement. Bots and other unauthorized third party programs are prohibited by the section of the TOU cited by MDY, even if the word "bot" is not used. SOF 99. 18. On December 11, 2006 Blizzard added the word "bots" as a prohibited program. Of note, Blizzard did not add the provision until nearly two months after Blizzard first appeared at Donnelly's home on October 25, 2008 [sic] (also the day Donnelly filed suit).Compare Exhibit F, Paragraph 2(c) with Exhibit G, Paragraph 4(c). OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST AND SECOND SENTENCE: Blizzard disputes this statement, because the addition of the word "bot" first occurred in the October 16, 2006 update, prior to its meeting with Mr. Donnelly and -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his filing suit. SOF 99, 101. Blizzard further disputes this statement because the word "bots" was added not as an additional type of prohibited program, but as a further example of a category of programs that had clearly been prohibited since the release of World of Warcraft. SOF 103. Blizzard notes that Blizzard representatives arrived at Donnelly's home on October 25, 2006, not October 25, 2008. 19. Blizzard does not utilize any access or copy protection measures to prevent the copying of its WoW Game Client Software. Blizzard uses no form of copy protection for the compact discs that contain the WoW game client software. See Exhibit B, at 38-44. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard disputes this statement. Blizzard uses safeguards, including Warden (and its scan.dll component), to prevent users from making unauthorized copies of the WoW game client software in RAM. SOF 109-111, 115-18. RESPONSE TO SECOND SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 20. Despite the prohibition from making more than one archival copy of the software in the EULA, the compact discs may be easily copied or installed to an unlimited number of computer hard drives. Id. OBJECTIONS: MDY's statement is argumentative, and not factual as required by Local Rule 56.1. - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE: Blizzard does not dispute that the WoW CDs may be copied. 21. Moreover, despite the prohibition of making unauthorized copies, Blizzard makes its WoW software freely available for downloading from its website and to anyone who creates a user account. See Exhibit B, at 293. OBJECTIONS: MDY's statement is argumentative, and not factual as required by Local Rule 56.1. RESPONSE: Blizzard does not dispute that Blizzard makes its WoW software freely available for downloading from its website and to anyone who creates a valid user account. 22. Warden is a mechanism Blizzard uses to detect the presence of third-party software that Blizzard deems is unauthorized under its EULA or TOS. See Exhibit H (Bates No. BLIZZM00335490, BLIZZM00335507). RESPONSE: Blizzard disputes this statement; it represents an inadequate explanation of Warden. Warden is much more, and includes features that removes users from the game, suspends users and/or bans user accounts where certain third-party software, including MDY's Glider program, is detected. SOF 115-118. 23. When a licensee is running the WoW game client, Warden detects changes to the licensee's computer memory (RAM) and reports any changes back to Blizzard. Blizzard then compares the changes in the licensee's RAM for known patterns of code that indicate that an unauthorized third-party software program is running. Once Blizzard confirms the licensee's use of an "unauthorized" third-party program, such as a bot program, Blizzard decides whether it will ban the licensee's account. See Exhibit I (Deposition of Matthew Versluys), at 1822. OBJECTIONS: - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard disputes this statement. The Scan.dll portion of Warden does not report any information back to Blizzard. SOF Supp. 270. Moreover, when the resident portion of Warden detects the presence of an unauthorized program, it only notifies a Blizzard server that a specific program has been found. SOF Supp. 271. There is nothing in the record to indicate that Warden detects changes in RAM and "reports any changes back to Blizzard." RESPONSE TO SECOND SENTENCE: Blizzard disputes this statement. The resident portion of Warden scans that part of the RAM dedicated to the World of Warcraft process. Id. If it detects changes known to be caused by a specific unauthorized third party program, the resident portion of Warden will only notify a Blizzard server that the specific program has been found. Id. RESPONSE TO THIRD SENTENCE: Blizzard disputes this statement. Blizzard decides whether it will ban accounts based on which cheat program is detected. SOF Supp. 272. This decision is usually made before the program is located in an impacted user's RAM. Id. 24. Blizzard does not ban, nor has it ever banned the licensee itself. If Blizzard bans a licensee's account, the licensee may immediately sign up for a new account using the licensee's name and same credit card number that it previously used for the banned account. See Exhibit B, at 254. OBJECTION: - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE: Blizzard disputes this statement to the extent it mischaracterizes "licensees." Blizzard terminates the license of WoW licensees for breach of their license, at which point they are no longer "licensees." Blizzard does not dispute that it does not permanently bar individuals from creating new, valid accounts. 25. Warden is not a copy protection program in that it cannot: a. prevent a person from accessing the WoW game client software code; b. Prevent a person from copying the WoW game client software from a compact disc or DVD to another form of storage medium; c. Prevent a person from copying a downloaded version of the WoW game client obtained from Blizzard's server to another form of storage medium; d. Prevent a person from distributing copies of the WoW game client software; e. Prevent a person from making derivative works of the WoW game client software. See Exhibit B, at 43-44. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard further objects to the legal conclusions included in, and the argumentative nature of, this statement; this statement does not constitute a "statement of fact" as required by Local Rule 56.1. RESPONSE: To the extent they are qualified by the statement "Warden is not a copy protection program," Blizzard disputes the statements set forth in subsections (a) through (e). Warden prohibits users from continuing to make copies of the game client - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in RAM once it detects a cheat program. SOF 109-111, 115-118. Standing alone, the statements in (b) through (e) are not disputed. 26. Scan.dll is the second element of Warden's cheat detection system. Scan.dll is a dynamic link library file that is part of the WoW game client. After the WoW game client is loaded into a licensee's RAM, the computer executes the Scan.dll file. The file scans the inside of the licensee's RAM and WoW game data files and checks for changes or modifications to the WoW game client code and game files to determine whether the licensee has loaded any "unauthorized" third-party programs. If Scan.dll detects an unauthorized program, the WoW game client will present an error message and will not allow the licensee to log onto WoW server to play WoW. See Exhibit B, at 53-56, 63. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO SECOND SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO THIRD SENTENCE: Blizzard disputes this statement. It would be "very impractical" to load the entire game into RAM at one time; a user would have to have a "massive amount of RAM" for that to be possible. SOF Supp. 266. Various portions of the game are loaded into the licensee's RAM as the game progresses, and only the authentication module is loaded before scan.dll's scanning process runs. SOF 51, 112. RESPONSE TO FOURTH SENTENCE: - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO FIFTH SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 27. If any of the three tests fail, then the WoW game client will present an error message and will not allow the licensee to log into the WoW game client to play WoW. See id. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard objects to the vague nature of this statement; MDY's statement does not indicate what it means by "the three tests." RESPONSE: Blizzard disputes this statement as the vague nature of the statement prevents Blizzard from evaluating it, but generally does not dispute that when scan.dll identifies the presence of an unauthorized third-party program running with WoW, it does not permit further loading of game content into RAM nor access to the game. SOF 109113. 28. Like Warden, Scan.dll is not a copy protection program in that it cannot: a. Prevent a person from accessing the WoW game client software code; b. Prevent a person from copying the WoW game client software from a compact disc or DVD to another form of storage medium; c. Prevent a person from copying a downloaded version of the WoW game client obtained from Blizzard's server to another form of storage medium; d. Prevent a person from distributing copies of the WoW game client software; e. Prevent a person from making derivative works of the WoW game client software. See Exhibit B, at 43-44. OBJECTIONS: - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard further objects to the legal conclusions included in, and the argumentative nature of, this statement; this statement does not constitute a "statement of fact" as required by Local Rule 56.1. RESPONSE: To the extent they are qualified by the statement "Like Warden, Scan.dll is not a copy protection program," Blizzard disputes the statements set forth in subsections (a) through (e). Scan.dll prohibits users from continuing to make copies of the game client in RAM once it detects a cheat program. SOF 109-113. Standing alone, the statements in (b) through (e) are not disputed. 29. MDY Industries LLC is an Arizona Limited Liability Company that was formed on December 6, 2004. See Exhibit J (Affidavit of Michael M. Donnelly), at 1. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 30. Michael Donnelly is the sole member of MDY. Id., at 2. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 31. Donnelly formed MDY solely for the purpose of keeping his computer contract work that he had been doing separate from his personal finances. Id., at 3. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. RESPONSE: - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 32. At the time Donnelly formed MDY, he had not yet begun creating the Glider software. Id. at 4. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 33. When Donnelly formed MDY, he had no intention of creating the Glider software and then using MDY as a shield against potential creditors if Blizzard ever filed a lawsuit against him for creating Glider. Id. at 5. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 34. When Blizzard released WoW in late 2004, Donnelly became an avid player of WoW. Like many others who play WoW, Donnelly became frustrated with the amount of time it took to advance his character in WoW. Id. at 6. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. With regard to the second sentence, Blizzard further - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objects to this self-serving statement which is not corroborated by any evidence in the record. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 35. Inspired by his desire to advance his character's level to the same level several of his friends had reached, Donnelly searched online for any available programs that would help him speed up the time it took to level his character up to where his friends were. Id. at 7. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 36. After searching and being unsuccessful in locating a software program to meet his needs, Donnelly decided to write software code to assist him in catching up with his friends in the game without having to be physically playing WoW. Id. at 8. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 37. Between March 2005 and May, 2005, Donnelly went through several iterations in the development of a software program that became known as WoWGlider ("Glider"). Id. at 9. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 38. Generally, Glider allows a person to play a piece of software on autopilot by automating the keystrokes that are necessary to play the game. Id. at 10. RESPONSE: Blizzard disputes this statement. This statement implies that Glider works with software other than World of Warcraft. In fact, Glider was designed to automate World of Warcraft exclusively, and only works in conjunction with World of Warcraft; MDY's own Frequently Asked Questions ("FAQ") available at MMOGLIDER.com talks exclusively about World of Warcraft, and mentions no other programs. See SOF 182 and FAQ, Exhibit 39 to Blizzard's SOF. 39. A Glider user must be an active, paying customer of Blizzard in order to use the Glider program with WoW. Id. at 11. RESPONSE: Blizzard disputes this statement. According to Donnelly's own testimony, Glider can be and indeed is used by users of "private servers," that is, unauthorized servers that host World of Warcraft games. SOF Supp. 273. 40. MDY has since developed several current and potential uses for Glider with other software programs. Id. at 12. OBJECTIONS: - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. RESPONSE: Blizzard disputes this statement. MDY's own Frequently Asked Questions ("FAQ") available at MMOGLIDER.com talks exclusively about World of Warcraft, and mentions no other programs or uses. See SOF 182 and FAQ, Exhibit 39 to Blizzard's SOF. 41. Under certain conditions, Glider can help a WoW player raise the level of his character to level 60 or 70 by playing the character when the customer is idle or absent from his computer. Id. at 13. RESPONSE: Blizzard disputes this statement; it is inadequate and incomplete. Glider continues to function after level 70, and permits users to continue accumulating reputation points, wealth and items just as it does prior to level 70. SOF Supp. 275; MDY SOF 4 (second sentence), 6. 42. Once a player reaches the highest level in the game, however, Glider does not allow the player to accumulate any more experience points in the game and its utility is drastically reduced. Id. at 14. RESPONSE: Blizzard disputes this statement. Although a player cannot obtain experience points after level 70, Glider allows the player to continue accumulating reputation points, wealth and items just as it does prior to level 70. SOF Supp. 275. In fact, a user can accumulate more gold using Glider after level 70 than they could before, because rewards that were awarded as experiences points prior to level 70 are, after level 70, awarded in gold. SOF Supp. 276. - 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43. Glider can also assist handicapped persons with limited use of their limbs by minimizing the need to use the keyboard to play WoW. Id. at 15. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. RESPONSE: Blizzard disputes this statement; there is no evidence to support it. 44. Glider can be loaded either before or after WoW is loaded into the user's RAM memory. Id. at 16. RESPONSE: Blizzard disputes this statement; it is incomplete. Although it is possible to launch Glider after World of Warcraft, Donnelly's own testimony indicates that doing so would subject Glider to detection by Warden. SOF Supp. 277. 45. Glider works by reading the player's state information (character health, nearby monsters, nearby chests and mines, the character's spells) from the user's RAM memory. It then sends keystrokes into the WoW client software on behalf of the user to try to kill the monsters and do other repetitive tasks such as collecting loot from killed monsters and harvestable objects. Under no circumstances can Glider: a. alter the WoW client game software in anyway; b. give the WoW player the ability to do anything that a human player could not already do; c. give the WoW player additional power, wealth, or in-game advantage over any player other than allowing the player not to be present when playing the game; d. give the WoW player the ability to make any copies of, make derivative works of, or publicly distribute copies of the WoW client software. Id. at 17. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO SECOND SENTENCE: Blizzard disputes this statement; it is incomplete. In addition to keystrokes, Glider is also capable of sending mouse commands to the WoW client software. SOF Supp. 280. RESPONSE TO THIRD SENTENCE: Blizzard disputes this statement. This statement is not supported by the record cited, and constitutes legal argument that belongs in a brief as opposed to MDY's statements of fact. Specifically, subsections (a) and (d) seek to establish legal conclusions as to Glider's effect on the game. With respect to those subsections (a) and (d), Blizzard maintains that Glider fundamentally changes the game and the game experience. SOF 132-36, 171-73. Blizzard disputes subsections (b) and (c). Glider gives Glider users a tremendous advantage over players that do not cheat, by allowing those players to accumulate more experience, reputation points, in-game items and gold than players that follow the rules. SOF 56-57. From a simple game-play perspective, Glider allows its users several obvious advantages, including the ability to "see" through walls and other terrain, and the ability to react to situations with the speed and reliability of a computer instead of using human judgment and human reflexes. SOF Supp. 277. 46. A Glider user must actively manage the program on regular intervals or the program will not provide any additional experience points that increase the level of the player toward 60 or 70. Id. at 18. RESPONSE: - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard disputes this statement; it is vague and incomplete. Experience points constitute only one type of resource that can be gathered by a character in-game whether controlled by Glider or a human player. MDY SOF 4(second sentence)("The game rewards success with in-game currency (gold), items, experience and reputation, which in turn allow players to improve their skill and power.") Glider may run for days at a time or even longer and continue to accumulate gold, reputation points and in-game items the entire time. SOF Supp. 278. 47. MDY has only marketed the game as an alternate method to reduce the time it takes to level a character to 60 or 70. Id. at 19. RESPONSE: Blizzard disputes this statement. First, MDY has spent advertising dollars to promote Glider as only two things a "World of Warcraft cheat" and a "World of Warcraft bot." SOF 246-47. MDY also hosted a forum on its website dedicated to gold-farming, and noted that the forum "is about hardcore use of Glider for things that it wasn't necessarily born to do... but can do." SOF 188; SOF Supp. 281. MDY has also created marketing relationships with businesses involved in WoW account and virtual property sales. SOF 127, 129, 189, 190, 193 and 197. 48. Based upon Donnelly's personal success using Glider, Donnelly decided to see if he could sell the Glider software for profit. In June, 2005 Donnelly began selling the Glider software through MDY. Id. at 20. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE: - 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 49. Since its release, MDY has made the program available solely by downloading it from MDY's website located at www.mmoglider.com at a cost of $15.00 per license. Moreover, MDY has increased its sales from approximately twenty in the first month, to over 100,000 as of February, 2008 (although only approximately 30,000 are active accounts). Id. at 21. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard disputes this statement. MDY's SOF 50 contains a more accurate description of Glider pricing. Specifically, 50 notes that "[i]n November, 2005, Donnelly raised the price of a Glider license from $15.00 to $25.00." MDY SOF 50. RESPONSE TO SECOND SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 50. In November, 2005, Donnelly raised the price of a Glider license from $15.00 to $25.00. Id. at 22. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 51. Glider is inefficient as a gold farming tool, and many other programs are available that do a much better job at gold farming than Glider does or can. Id. at 23. OBJECTIONS: Blizzard objects to this self-serving, uncorroborated statement. RESPONSE: - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard disputes both statements. Glider makes an efficient gold farming tool, as demonstrated by the gold farming forum once hosted on the WoWGlider.com website, and the messages on that forum indicating that Glider users utilize Glider to farm gold. SOF 188-197; SOF Supp. 281. Additionally, one of MDY's forum moderators testified that he gold farms exclusively with Glider, and he has promoted Glider use to customers by explaining that a $25 investment in Glider allows botters to use the program to acquire and sell in-game virtual property at a profit. SOF 131, 197. That same MMOGlider forum moderator acknowledged that Glider enables players to collect large amounts of in-game gold and items for RMT (real world sale). SOF 157. 52. MDY utilizes Google AdWords to draw traffic to its website and to advertise the availability of the program. MDY also markets the program using an affiliate structure whereby third-parties can post ads for the Glider program on their website and are compensated if a Glider sale originates from the advertisement. Id. at 24. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 53. MDY has only marketed the game as an alternate method to reduce the time it takes to level a character to 60 or 70. Id. at 25. RESPONSE: Blizzard disputes this statement. First, MDY has spent advertising dollars to promote Glider as only two things a "World of Warcraft cheat" and a "World of Warcraft bot." SOF 246-47. MDY has also created marketing relationships with businesses involved in WoW account and virtual property sales. 127, 129, 189, 190, 193 and 197. MDY at one point promoted gold farming by hosting a forum on its website dedicated to gold-farming, and noted that the forum "is about hardcore use of Glider for things that it wasn't necessarily born to do... but can do." SOF 188; SOF Supp. 281. - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Additionally, one of MDY's forum moderators that he has promoted Glider use to customers by explaining that a $25 investment in Glider allows botters to use the program to acquire and sell in-game virtual property at a profit. SOF 131, 197. That same MMOGlider forum moderator acknowledged that Glider enables players to collect large amounts of in-game gold and items for RMT (real world sale). SOF 157. 54. Although Glider can be used as a tool to help WoW licensees to "farm gold" within the WoW game, MDY has never marketed the program for that purpose and actively discourages persons from using Glider as a gold farming tool. Id. at 26. RESPONSE: Blizzard disputes this statement. MDY has created marketing relationships with businesses involved in WoW account and virtual property sales. 127, 129, 189, 190, 193 and 197. MDY at one point promoted gold farming by hosting a forum on its website dedicated to gold-farming, and noted that the forum "is about hardcore use of Glider for things that it wasn't necessarily born to do... but can do." SOF 188; SOF Supp. 281. Additionally, one of MDY's forum moderators that he has promoted Glider use to customers by explaining that a $25 investment in Glider allows botters to use the program to acquire and sell in-game virtual property at a profit. SOF 131, 197. 55. In fact, MDY actively discourages persons from using Glider as a gold farming tool. Id. at 27. RESPONSE: Blizzard disputes this statement. There is no evidence in the record to corroborate this self-serving statement. To the contrary, MDY has created marketing relationships with businesses involved in WoW account and virtual property sales. 127, 129, 189, 190, 193 and 197. MDY at one point promoted gold farming by hosting a forum on its - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 website dedicated to gold-farming, and noted that the forum "is about hardcore use of Glider for things that it wasn't necessarily born to do... but can do." SOF 188; SOF Supp. 281. Additionally, one of MDY's forum moderators that he has promoted Glider use to customers by explaining that a $25 investment in Glider allows botters to use the program to acquire and sell in-game virtual property at a profit. SOF 131, 197. 56. MDY also actively discourages Glider users from skipping the game content. Id. at 28. RESPONSE: Blizzard disputes this statement. There is no evidence in the record to corroborate this self-serving statement. Glider is designed to allow its users to "play" without a human at the keyboard. SOF 230. When a user "plays" a game while not at the computer to enjoy the content, s/he is necessarily "skip[ping] ahead," and thus missing content. SOF 256. 57. Prior to September, 2005, Donnelly was unaware that Blizzard would object to anyone using Glider with WoW. Donnelly did not become aware that Blizzard was attempting to detect the use of Glider until September, 2005 when Blizzard banned certain Glider customers' accounts. Id. at 29; See Exhibit K at 54-55. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard objects to these self-serving, uncorroborated statements. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: The EULA and TOU prohibited unauthorized third party programs, including bots like WoWGlider, prior to September 2005. See SOF 99; MDY's Exhibit F sec. 2(C) (June 2005 TOU) ("You agree that you will not...create or use cheats, `mods' and/or - 27 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hacks, or any other third-party software designed to modify the World of Warcraft experience [or] use any third-party software that intercepts, `mines', or otherwise collects information from or through World of Warcraft...."). Donnelly admits to having read and agreed to the TOU and the EULA several times, having seen a prohibition on the use of unauthorized third-party programs with WoW, and further admits he never sought nor received such authorization for Glider. SOF 179-80; SOF Supp. 282. 58. Prior to that time, Donnelly had not developed any software component that would avoid detection by Blizzard. See Exhibit J at 30; Exhibit K at 55. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. 59. Donnelly responded to Blizzard's efforts to detect and ban Glider users by developing software counter-measures to avoid being detected by either Blizzard's Warden or Scan.dll programs. In late September, 2005, Glider began avoiding detection by Warden and Scan.dll so that Blizzard's licensees could use Glider with the WoW game client software without interference from Blizzard. See Exhibit J at 31. See Exhibit J at 76. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard further objects to the legal conclusions included in, and the argumentative nature of, this statement; this statement does not constitute a "statement of fact" as required by Local Rule 56.1. RESPONSE TO FIRST SENTENCE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. RESPONSE TO SECOND SENTENCE: - 28 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard disputes this statement. By policing its own game, Blizzard is not "interfering" with Glider users. However, Blizzard does not dispute that on or before September 2005, Glider began circumventing detection by Warden/scan.dll. 60. Glider, however, cannot circumvent Warden or Scan.dll for the purpose of allowing a person to: a. make an unauthorized copy of the WoW game client software; b. make an unauthorized derivative work of the WoW game client software; or c. make an unauthorized distribution of the WoW game client software. See Exhibit J at 32. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard further objects to the legal conclusions included in, and the argumentative nature of, this statement; this statement does not constitute a "statement of fact" as required by Local Rule 56.1. RESPONSE: Blizzard disputes this statement. Large portions of Blizzard's Motion for Summary Judgment and the accompanying brief are dedicated to establishing that Glider circumvents Warden/scan.dll for purposes of allowing a person to make an unauthorized copy of the WoW game client software. See Blizzard's Motion for Summary Judgment. 61. Although Blizzard's acts of detecting Glider and banning Glider users' accounts led Donnelly to believe that Blizzard considered Glider an unauthorized thirdparty software program under its EULA and TOU, Donnelly did not agree with Blizzard's interpretation of its agreements. Donnelly believed that Blizzard had no right to control MDY's ability to sell Glider because he had no contractual relationship with Blizzard. Id. at 33. Exhibit K at 293-94. OBJECTIONS: - 29 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard objects to these self-serving, uncorroborated statements. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: The EULA and TOU prohibited unauthorized third party programs, including bots like WoWGlider, prior to September 2005. See SOF 99; MDY's Exhibit F sec. 2(C) (June 2005 TOU) ("You agree that you will not...create or use cheats, `mods' and/or hacks, or any other third-party software designed to modify the World of Warcraft experience [or] use any third-party software that intercepts, `mines', or otherwise collects information from or through World of Warcraft...."). Donnelly admits to having read and agreed to the TOU and the EULA several times, having seen a prohibition on the use of unauthorized third-party programs with WoW, and further admits he never sought nor received such authorization for Glider. SOF 179-80; SOF Supp. 282. 62. Prior to September, 2005, Donnelly was unaware that Blizzard would object to anyone using Glider with WoW. See Exhibit J at 33; Exhibit K at 76. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Blizzard objects to these self-serving, uncorroborated statements. An uncorroborated description of a party's state of mind is not appropriate for an SOF. RESPONSE: - 30 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The EULA and TOU prohibited unauthorized third party programs, including bots like WoWGlider, prior to September 2005. See SOF 99; MDY's Exhibit F sec. 2(C) (June 2005 TOU) ("You agree that you will not...create or use cheats, `mods' and/or hacks, or any other third-party software designed to modify the World of Warcraft experience [or] use any third-party software that intercepts, `mines', or otherwise collects information from or through World of Warcraft...."). Donnelly admits to having read and agreed to the TOU and the EULA several times, having seen a prohibition on the use of unauthorized third-party programs with WoW, and further admits he never sought nor received such authorization for Glider. SOF 179-80; SOF Supp. 282. 63. In September, 2007, MDY began developing functionality in the Glider software to allow it to work with other games besides WoW including both non MMORPG and non-MMORPG games. See Exhibit J at 34. OBJECTIONS: Blizzard objects to this self-serving statement. This statement is not corroborated by any evidence in the record. RESPONSE: Blizzard disputes this statement. Glider was designed to automate World of Warcraft exclusively, and only works in conjunction with World of Warcraft; MDY's own Frequently Asked Questions ("FAQ") available at MMOGLIDER.com talks exclusively about World of Warcraft, and mentions no other programs. See SOF 182 and FAQ, Exhibit 39 to Blizzard's SOF. 64. MDY continued to sell Glider for several months. On the early morning of October 25, 2006 and without any prior notice, the defendants' counsel Shane McGee, an officer of Vivendi Games Fritz Kryman, and an unidentified private investigator appeared at Donnelly's home. When they arrived, they presented - 31 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Donnelly with a copy of a complaint that they indicated they would file the next day in the U.S. District Court for the Central District of California if Donnelly did not immediately agree to stop selling Glider and return all profits that he made from Glider sales. Id. at 35; Exhibit K at 283-84. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. RESPONSE TO THIRD SENTENCE: Blizzard disputes this statement. This statement mischaracterizes the nature of Blizzard's representatives' visit. Moreover, Fritz Kryman is not an officer of Vivendi Games, Inc. SOF Supp. 283-287. 65. Donnelly was offended by the audacious threats Blizzard's representatives made. Exhibit J at 36; Exhibit K at 283. OBJECTIONS: Blizzard objects both to the characterization of Blizzard's communications ("audacious threats"). Blizzard further objects to the inclusion of a self-serving, uncorroborated description of a party's state of mind as a "statement of fact." RESPONSE: Blizzard denies that there were any "audacious threats." SOF Supp. 283-287. 66. Donnelly immediately contacted his current counsel, who later that day, filed a declaratory judgment action in this court. The defendants filed counterclaims against Donnelly and MDY for contributory and vicarious copyright infringement, violation of the Digital Millennium Copyright Act (17 U.S.C. 1201(a)(2) and (b)(1)) and tortious interference with Blizzard's contractual relations with its licensees. Exhibit J at 37. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment. - 32 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67. On the early morning of October 25, 2006 and without any prior notice, Blizzard and Vivendi's counsel, Shane McGee, an officer of Vivendi Games, Fritz Kryman, and an unidentified private investigator appeared at Donnelly's home. See Exhibit J at 36; Exhibit K at 283. RESPONSE: Blizzard does not dispute this statement for purposes of MDY's Motion for Summary Judgment, but notes that Kryman, McGee and the investigator appeared at Donnelly's condominium, building, and only visited his unit after Donnelly permitted them access to the building, invited them to take the elevator to the floor on which he lived, and then invited them into his home. SOF Supp. 283-287. 68. Blizzard has offered its damages expert witness' report in support of Blizzard's argument that it has suffered monetary harm. A copy of Dr. Edward Castronova's report is attached as Exhibit L. A thorough review of the report demonstrates that Blizzard has offered nothing more than speculative opinions of how Glider use harms Blizzard. Specifically, Blizzard's expert argues that: a) Because Glider can help advance a character's level faster, Blizzard loses revenue from a licensee who uses Glider because of a shortened monthly subscription time; b) Because a portion of Blizzard's licensee's oppose the use of botting programs such as Glider, many people quit in frustration thereby causing Blizzard to lose revenue; c) Because the gaming world perceives people who use Glider as having an unfair advantage, many potential WoW players choose not to play WoW thereby causing Blizzard to lose revenue; d) Glider users can use the software to "farm gold" in WoW, which damages the WoW game economy thereby causing people to quit the game; e) Blizzard must pay employees to deal with complaints about bot programs; and f) Blizzard must pay employees to locate Glider users in the WoW game environment and verify Glider detections from Warden so Blizzard can ban such accounts. Id. at 25-28. OBJECTIONS: - 33 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Moreover, MDY's long series of statements is purely argumentative and belongs in its brief instead of its statements of fact. RESPONSE: This series of statements mischaracterizes the import Blizzard's expert's report, which speaks for itself. See Castronova Expert Report and Supplemental Expert Report. (SOF Exhibits 7,13). 69. Castronova argued that these bases damage Blizzard in the amount of twenty million dollars per year. Id at 28. MDY disputes every aspect of Castronova's conclusions. MDY's damages expert, Dr. Koleman Strumpf summarily dismissed Castronova's conclusions in his rebuttal report. Castronova even admitted as much in his report. Castronova stated on the issue of the points listed above: "[I]s it (sic) difficult for another user to confirm that the players gaining levels at an accelerated pace are botting, so the average player concludes that either he must be an incompetent player or the system is balanced against them. Either way, he may quit the game and encourage others not to purchase it. The more than 300,000 botting complaints that Blizzard has received does not include complaints lodged by the many current and former players whose game experience was adversely impacted by bots, but did not know the reason for their less-than-perfect gaming experience. Unfortunately, there is no way to ascertain this number or to quantify these damages." (emphasis ours). Id. at 6. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Moreover, MDY's statement is purely argumentative and belongs in its brief instead of its statements of fact. RESPONSE: Blizzard does not dispute the text of Castronova's report, but disputes MDY's characterization of its findings. Dr. Castronova's reports speak for themselves. (SOF - 34 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibits 7,13). Moreover, while Castronova and MDY's expert disagree on the amount that Blizzard is financially damaged by Glider as a result of decreased user demand and other factors incorporated into Dr. Castronova's damages model, they do not disagree that Blizzard is in fact harmed. MDY's expert Dr. Strumpf critiqued the numbers used by Dr. Castronova as underlying assumptions in his damages model, and offered what he deemed to be more realistic numbers. Even when using Strumpf's numbers, quantifiable harm to Blizzard results. (SOF Supp. 288-89. ("The rebuttal expert and I can disagree about, it's high, it's low, but zero is not in there."). In fact, Strumpf's figures indicate that Blizzard's damages reach five million dollars per year. Id. 70. Simply stated, Castronova cannot quantify any alleged damages because Castronova can provide no proof, just speculation, as to damages. In his deposition, Castronova admitted that he had never conducted a single scientific or economic study to support his conclusions. See Exhibit N (Deposition of Edward Castronova) at 49-52, 55, 65-66, 74-75, 84-87, 101-02, 105-13, 123-24, 140-46, 173-74, 178-80, 203-05, 238-40, 293-95. He admitted that he had never interviewed a single WoW player to support his conclusions. Id. OBJECTIONS: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Moreover, MDY's statements are purely argumentative and belong in its brief instead of its statements of fact. RESPONSE: Blizzard disputes these statements as mischaracterizations of Blizzard's arguments and theories of damages, as reflected in Dr. Castranova's reports. (SOF Exhibits 7, 13). Moreover, Castronova studied World of Warcraft and Glider in the most effective way possible, by actually using both programs. Castronova has played World of Warcraft since 2004, building up 15-20 characters. (SOF Supp. 290). - 35 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Castronova purchased a Glider key and used Glider in conjunction with World of Warcraft as part of his research. (SOF Supp. 291). Castronova supports his conclusions with first-hand knowledge of the World of Warcraft environment. (SOF Supp. 292). In addition, Castronova testified that he reviewed forum posts and comments of WoW players in forming his conclusions. (SOF Supp. 293). 71. For example, Castronova could not rebut the fact that a if a person used Glider to arrive at level 70 quicker than normal, that the person was just as likely to play WoW for a longer period of time than a player who played WoW longer to reach level 70, but quit shortly after reaching level 70 out of frustration. Id. at 49-50. In fact, Blizzard itself has unilaterally reduced the time it takes to level a character to Level 70 by as much as 15% to 30%. Exhibit M (WoW Patch Notes; Exhibit 7 to Castronova Depo.). Castronova provided no evidence, nor has Blizzard, that despite receiving 300,000 complaints about bot programs, one person ever quit WoW because of people using Glider in WoW. Exhibit N at 85-87. Castronova provided no evidence, nor did Blizzard that one person who was a potential WoW player, ever chose not to play WoW because he perceived people having an unfair advantage using Glider. Id. at 109-11. Castronova, at best, speculated that Glider damages the WoW economy when people use it to farm gold in WoW, but never offered any evidence that one WoW user has ever used Glider to farm gold, nor did he provide evidence that one WoW player ever terminated his account because of people who use Glider to farm gold in WoW. Thus, Blizzard can provide no factual evidence to support its damages claim. OBJECTION: Blizzard objects to the compound nature of these statements; they do not comply with Local Rule 56.1. Moreover, MDY's statements are purely argumentative and belong in its brief instead of its statements of fact. RESPONSE: Blizzard disputes this series of statements as mischaracterizations of Blizzard's arguments and theories of damages as reflected in Dr. Castronova's reports. (SOF Exhibits 7, 13). Moreover, Castronova testified that in just 5-7 hours of Glider use, he had accumulated several thousand experience points without actively playing the game. - 36 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (SOF Supp. 294). Castronova correctly notes that the amount of time a Level 70 user continues to play the game is irrelevant, because regardless, the amount of time required to get to Level 70 using Glider is less, and reduces the total subscription cost commensurately. (SOF Supp. 295). As Castronova indicates, individual hypotheticals are irrelevant to his analysis because "you don't make judgments about a macro social phenomenon by focusing on individual cases. You have to look at what the aggregate of those things are. "(SOF Supp. 296). Regardless of individual examples, Castronova testified that, based on his research and experience, when players are upset with a game, revenues for the game are negatively affected because the players quit, become less likely to sign up in the first place, and overall demand for the game drops. (SOF Supp. 297). Thus, some percentage of the 300,000 complainers undoubtedly quit the game as a result of botting. (SOF Supp. 298). Blizzard further disputes MDY's statement that Castronova "never offered any evidence that one WoW user has ever used Glider to farm gold," where Castronova testified that there is a switch in the Glider program that offers the Glider user the option to sell loot obtained by gliding for gold. (SOF Supp. 299). He also testified that Glider has no setting enabling users to kill monsters but NOT collect their gold. (SOF Supp. 300). Finally, Castronova testified that he has seen and read where Glider users brag about the effectiveness of Glider in farming gold. (SOF Supp. 301). Blizzard also submitted evidence both of WoW players indicating they were quitting W