Modchips now legal in the EU (as long as they’re not naughty)

We now have some authoritative clarification about the legal status of modchips in the EU for the first time.  As longstanding readers of this blog will know, I’ve been writing about modchips for some time.  Here’s a quick recap of the latest position.

What are modchips?

Essentially, a modchip is a technology which permits you to circumvent restrictions which a device manufacturer builds into a device to limit your potential usage of the device.  These limitations are enforced by technology commonly called ‘technological protection measures’.  For example, a modchip might permit you to install software or to play games on a device which otherwise you wouldn’t be able to due to the technological protection measures installed by the device manufacturer on the device. Continue reading Modchips now legal in the EU (as long as they’re not naughty)

Some thoughts on game trademarks, King and Candy Crush

This blog (and Gamer/Law generally) represents my personal views, not that of my employer.

The games press and sections of the games community has got hot under the collar (again) over trademark law.  This time around, it’s about news that King.com, maker of Candy Crush Saga and other games, is seeking to trademark ‘Candy’.  Cue lots of (to put it charitably) loose talk about ‘monopolies’ and even ‘patent trolling’.  I’m going to try and talk some sense about this topic. Continue reading Some thoughts on game trademarks, King and Candy Crush

Spry Fox settles with 6Waves – does it matter?

Spry Fox and 6Waves have settled their legal dispute over allegations that 6Waves had cloned Spry Fox’s game Triple Town.  News of the lawsuit received great attention and no small amount of oppobrium directed at 6Waves.  News of the settlement has received similar fanfare.  But does this really matter to the wider games or software industry?  I don’t think so – not from a purely legal perspective anyway. Continue reading Spry Fox settles with 6Waves – does it matter?

Tetris wins the first legal victory against clones

The Tetris Company has won a court case against the developer of an iOS Tetris clone  – this is a really significant legal development in fighting clones, so I’m quite excited about it.  The case is here and is reported on extensively by the 1709 copyright law blog (via Rosie Burbidge – thanks!), which I recommend you read, so I’ll just summarise the facts briefly here and add a few observations. Continue reading Tetris wins the first legal victory against clones

Game cloning: recent legal developments

My employer, Osborne Clarke, held its biannual Interactive Entertainment Legal Forum (a networking event and training session for inhouse games lawyers from UK and Europe) last month.  I spoke about the difficult topic of game cloning, non-literal copying and recent legal developments regarding it.  What actually is the law about game cloning in the UK and EU?  Is it right that there’s no real legal recourse for cloning? Continue reading Game cloning: recent legal developments

Games Law Round-Up: January 2012

There’s so much going on these days in games law, I don’t have time to write about everything sadly. So, I thought that every month or so I’d do a round-up of the notable developments.  Here’s the first one – let me know what you think…


It has been a BUSY start to the year in the world of games law.  Here’s the highlights from January, in no particular order:
Continue reading Games Law Round-Up: January 2012

Demystifying copyright and games

This post was originally published on GAMESbrief.

If you want to protect your games, you need to understand copyright law. It’s that simple. The problem is that many people get pretty hot under the collar about copyright law and think it does a lot more than it actually does. So, this post is about what copyright really is, what it does and what it doesn’t.

Before I get started though, it’s worth making a few initial points, since copyright in the games industry can be a pretty divisive subject:

  • This post is intended to summarise some key points about copyright law as it is, to help developers to understand where they stand legally. It isn’t about what the proper balance of copyright law should be between rewarding existing innovation and not discouraging new innovation.
  • This post isn’t about anti-piracy laws or UGC, though they do derive largely from copyright law. Those are posts for another day.
  • This post isn’t claiming that copyright infringement is any more or less of a risk for the games industry than it was back in the days of Pong. Personally, I think copyright infringement issues are on the rise, particularly in an era of mobile and casual games borrowing from established IP elsewhere in the industry (look at say Gameloft’s N.O.V.A. vs HALO or Desktop Dungeons vs League of Epic Heroes), but you can make your own mind up about that.

What is copyright?

Copyright law protects the rights of anyone who creates and/or owns a piece of work – such as a book, a film, a database or a computer program (I’ll call them “works”). To the right is an example of a random copyright work derived from one of my favourite games:

Copyright law is the main branch of IP law which protects creativity, as opposed to say trade mark law (more on that here), which is essentially about marketing your products, or patent law, which protects industrial innovation.

Five key points you need to know about copyright

(1) Copyright only gives you rights over the actual work you’ve created; it doesn’t give you a monopoly over the idea underlying the work.

This is critical: copyright law is meant to protect the fruit of your work, but it doesn’t stop people independently carrying out the same work and also enjoying legal protection of the fruit of that independent work. Legally, we say that copyright law protects the expression of an idea but not the idea itself.

Example: the fact that Nintendo owns copyright over the way that Mario looks and sounds does not give it a monopoly over all Italian plumber-themed games characters. If hypothetically Sega had entirely separately a similar Italian plumber for their own platformer back in the 80s, then Nintendo could not have objected to Sega using that work, or vice versa.

Therefore, it is entirely possible to have two very similar works both co-existing under copyright law, provided one has not substantially copied the other of course (more on that later).

(2) Copyright law gives you specific rights over your copyright work.

Essentially, you have the right to exploit the copyright work and stop others from exploiting/distributing it without your authorisation (the latter category starts straying into anti-piracy laws, which as I said is a post for another day).

These rights are valuable: you can buy/sell, leverage and license your or someone else’s copyrights. Licensing is key in the modern games industry: it is through licensing that a developer is able to make a game based on a copyright work owned by someone else (e.g. Bigpoint developed Battlestar Galactica Online or TT Games developed Lego Star Wars).

(3) A game will contain lots of different copyright elements at the same time.

For example, it could contain code, databases, pictures, films, sounds and written materials. Each of these elements is separately protectable by copyright law in different ways. This makes the copyright protection of games more difficult than, say, a book or a painting.

(4) Different countries have different copyright systems.

Example: in the UK copyright protection is automatic and there is no need to register the work. In the US, a work is not fully protected unless it is registered. (This might not sound that important, but in the recent past it’s caused real problems for Jagex, for example). Similarly, different countries have different defences to copyright infringement: the US has a wide ‘fair use’ defence, whereas the UK does not (not yet, anyway). Depending on the territories in which you operate, you may need to take specialist copyright advice (NB this post is based on UK law).

(5) Different copyright works last for different time periods.

When that time period expires, generally the work enters the public domain and becomes freely exploitable.

Example: copyright protection for a script lasts 70 years after the death of the author. However, for a film it is 70 years effectively after the death of the last of its creative team. Once that protection has expired, the work will in principle become freely exploitable in the public domain. (Here’s some food for thought: as a result, valuable IP will fall out of copyright protection in the first half of this century. For example, what happens when Mickey Mouse enters the public domain?)

Copyright infringement

As a broad summary:

  • If a developer takes an existing copyright work and copies “all or a substantial part” of it, and
  • That copying can be established factually,

Then that developer may in principle be liable for copyright infringement to the owner of the original copyright work.

So copyright infringement DOESN’T mean that if a developer bases a work on the same source or idea as your existing work, or even if his/her new work copies your existing work, that he/she is automatically infringing your copyright. There has to be copying of ‘all or a substantial part’ for there to be copyright infringement.

Copying of a ‘substantial part’ is a test of quality but also quantity: the developer could be liable for copyright infringement if he/she has copied very significant portions of your work or if he/she has copied one small but very significant part of that work.

BUT – there’s a catch. It has to be shown on the facts that the other guy has copied your work. This is done by a painstaking examination of the two copyright works next to each other in order to establish every similarity and dissimilarity between them. The judge will then take that analysis and decide whether he/she considers that there has been copying of “all or a substantial part” of the original work and therefore if there has been copyright infringement.

In practice, this can be a hard test to meet:

  • If the alleged infringer in fact did not even know about or see your work, then you’ll have no claim.
  • If the alleged infringer did know about your work, but you can’t prove that he/she had any access to it, then you’ll have difficult making a claim.
  • If the alleged infringer did know and have access to your work, then you may have a claim – but, as I said, you’ll need to show that there are sufficient similarities between the works for the judge to find copying of “all or a substantial part” of your work.

This is where it can get very murky indeed. I’m going to discuss the difficulties of establishing copyright infringement through two examples – one outside the games industry and one from within it.

Dan Brown, The Da Vinci Code and The Holy Blood and the Holy Grail

Back in 1982, three authors wrote a controversial book entitled The Holy Blood and the Holy Grail, the central theory of which was that Jesus married Mary Magdalene and that ‘the Holy Grail’ was both her womb and the resulting bloodline from that marriage. In 2003, Dan Brown’s best-selling The Da Vinci Code essentially turned the same theory into a novel.

Two of the authors of The Holy Blood and the Holy Grail then sued Brown and his publisher in 2006 for copyright infringement. The judge found that Brown had quite clearly recycled large parts of the “central theme” of their book when writing The Da Vinci Code. BUT the judge still ruled that there had been no copyright infringement, on the basis that there had not been copying of “all or a substantial part” of the actual contents of The Holy Blood and the Holy Grail. Any similarities, the judge found, were at so high a level that it could not be shown that sufficient copying of the actual text of The Holy Blood and the Holy Grail had occurred. Thus, Dan Brown, who quite clearly had taken his inspiration from someone else’s earlier work, was not liable for copyright infringement. (Incidentally, this case became infamous in legal circles because the judge incorporated his own code into his written judgment – seriously).

Let’s apply that in a games context. You create a game called Doom featuring innovative first person perspective action set on a future Mars against hordes of hostile aliens. A rival developer then creates a highly similar game called Gloom. Can you sue successfully for copyright infringement?

Answer: you will only succeed if you can show actual copying of the actual contents of your game – the artwork, sound, code etc. But it’s not enough for you to just argue that the other guy sat down in front of your game and thought “right, how can I make a game that looks and plays just like that?”

Let’s explore that further in the next example…

Nova Productions v Mazooma Games

Nova and Mazooma were both UK developers who created arcade machine games. Nova sued Mazooma and others, arguing that Mazooma’s games Jackpot Pool and Trick Shot infringed copyright in Nova’s game Pocket Money. All of them were pool-themed arcade machine games. BUT, Nova didn’t argue that Mazooma had actually copied Pocket Money’s underlying code. Instead, Nova argued that Mazooma had copied the user interface, or ‘look and feel’, of its game (you can see examples of the alleged similarities here). Nova also argued that Mazooma had copied key game mechanisms such as a cue aiming interface and power meter.

Nova lost the case, because it couldn’t show that there had been actual copying of its actual copyright works (e.g. the program code or its graphics) and it just wasn’t enough to show some similarities in the user interfaces of the games. (There’s more on the case here for those who are interested in the detail.)

This case shows us again that:

  • Copyright infringement depends on copying of ‘all or a substantial part’ of actual copyright works within a game – such as its code, graphics or sound;
  • You have to be able to show factual evidence of the copying; and
  • It’s not enough to point to superficial similarities or the ‘look and feel’ of the game – because that could just as easily have derived from the (unprotected) ideas which you yourself based your game on. Just because you develop a pool arcade game (or an FPS like Doom) first and then another guy makes a similar game, it doesn’t automatically entitle you to sue for copyright infringement.

It’s not all doom and gloom

A sceptic might be thinking at this point that there’s no point in having copyright protection. That’s not the case at all. Here’s some more positive points to think about:

  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged. In fact, for games developers it is often their main asset.
  • Cpyright law goes hand in hand with trade mark law. You may not in some cases be able to stop a rival from poaching aspects of your game via copyright law, but you might be able to use trade mark law instead. You can read more about that here: Demystifying Trademarks and Games.
  • Dn’t take the above as the last word on copyright law and games. In fact, copyright law as it applies to games is not very well understood at the moment – would the same result in Nova v Mazooma happen if it was a popular narrative game rather than an essentially mechanical pool arcade game? There is I think scope for a more favourable interpretation of copyright law for the games industry in the future.

In the meantime, here’s some practical tips…

Top copyright tips for developers

  • Be realistic about how important copyright protection is to your business. What resources do you want to put towards it and in which territories? What can you do to read up on copyright law? (Tip: for the UK, have a look here for starters.)
  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged.
  • If you have a dispute with another developer, think about what you want to achieve. Can you reach an amicable resolution with the other developer? Or are they actively trying to copy your product and take your customers such that a fight is inevitable? Can you use third parties, like Apple, to make your life easier via takedown requests? Can you enlist your player base or the games press to help? Have you had a word with a friendly games lawyer?
  • BUT, don’t just be guided by legal factors alone. Think about how much a legal fight would cost, how much time you have to devote to it, what your player base or partners would think of you. It may be that a negotiated settlement is better than an all out fight.
  • Don’t forget your safest bet is to make sure your games are better than your rivals’. Ultimately, only good products can grow your business and ensure your players stay with you rather than go to a rival.

Next month, to round off our IP fun over the last couple of months, I’ll be answering some frequently asked questions about IP law and games…

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Image credit: Valve Software

WoW Glider: what actually happened in the courtroom

Last week I wrote an analysis of the Blizzard/WoW Glider case, which got a decent amount of press on the mainstream games sites and led to an awesome debate/flame war/hilarity in the comments to my original post – see here.
One (anonymous) poster wrote up a tongue-in-cheek script for what might have happened in the courtroom, which I liked so much I decided to post it properly below. Enjoy – and if you’re the writer of this piece of genius, let me know for credit….
Blizz: …So in conclusion, please order Michael “Mike” Donnelly to shut down Glider, and also buy us all Yachts. Cuz really, that’s what we were gonna do with it anyway. Either that, or nerf rogues.
Judge: I hate rogues too! B*ggers always gank me when I’m afk taking a leak…
Blizz: Well, we DID nerf stealth by making it MUCH easier to detect. Obviously there were complaints, but PR’s got it covered with the usual run-around.
Judge: Oh sh*ts, I know SOMEONE who’s gonna win a lawsuit if they’d keep a certain class from ever stealthing aga-
Mike: Uh, your honor?
Judge: shut up, Mikey Mike. I’m talking business here. So anyway, this one time I was THIS CLOSE to getting that peacebloom, when I hear that WOOOO, ya know? And then I-
Mike: Your honor, the case?
Judge: FINE, but you BETTER make it a good one, I’m one global away from swinging my Gravel of Justice in favor of Blizz here.
Mike: Thank you, your Honor. Well, ladies and gentlemen of this “supposed” jury, Blizz would like you to believe they made my Glider program illegal. And they make a good case. Hell, I even felt pity myself! But ladies and gentlemen of this “supposed” jury, I have one final piece of evidence for you to consider…
Blizz: (Wait, isn’t this a South Park skit?)
Judge: When did that chartboard get here? Warden, did you catch that?
Warden: No, but there’s a guy in Diremaul who hasn’t logged off in 3 days straight…
Blizz: SEE?! They’re RUINING us!1!
Judge: Really? I mean, it’s just Diremaul. Honestly, have you guys actually tried to run your own instances? They really suck sometimes.
Blizz: Uh… well, we ARE in the process of streamlining the PVE content in order to re-optimize the percentage of numbers such that they increase with better lateral passing.
Judge: …oh.
Phoenix Wright: OBJECTION!
Judge: wat
Phoenix: The excuse offered by Blizz doesn’t make even the most remote logical sense! It’s just words they strung together from what little they remember during the last manager’s meeting in Vegas! Furthermore, “lateral passing” isn’t even an economics term! It’s from football!
Judge: He’s gotcha there, Blizz.
Blizz: Oh yea? Well guess what Phoenix? You just lost.
Phoenix: ?
Blizzard: THE GAME! lol
Judge: lol
Phoenix: !!!
Mike: /sigh
Blizz: Hey! That’s OUR property there!
Mike: You know what, I give up. I had this wookie I was gonna show and everything, but seriously this is just too stupid. (morons, every one of them)
Judge: You heard the man, he sai- wait.
Blizz: ?
Mike: ?
Judge: … did he say he had a wookie to show us?
Mike: (Oh, God…)
God: I LOVE WOOKIES
Mike: /facepalm
Blizz: STOP IT! God, make him stop! He’s stealing our stuffs!
God: MAN WAS ORIGINALLY SUPPOSED TO BE WOOKIES
Judge: Really? What happened?
God: TEQUILA
Judge: Fair point.
Mike: For the love of… you, please just get me out of here. I can’t take this any more.
God: I CANNOT DO THAT HERE
Mike: I know I’m gonna regret this, but… why not, God?
God: I AM OVERBURDENED
Blizz: lol! He’s doing the D2 Barb lines!
Judge: lol! His voice is perfect for it too! Do the A1Q1 quest completion line!
God: THE ROGUES ARE SAFE FOR THE MOMENT
Judge: lol
Blizz: lol
Warden: lol
Phoenix: lol
Mike: Fuck it. I’ll see you all in appeals. /camp
God: ACTUALLY YOU’LL SEE ME IN 1 DAY 17 HOURS 1 MINUTE 0 SECONDS
Judge: Is that… is that when he’s going to die?
God: NO THAT’S WHEN I RENEW MY WOW SUBSCRIPTION
Blizz: Now THERE’S a marketing pitch! “WoW: the only game fit for God!”
God: MY SON PLAYS BEJEWLED
Blizz: we’ll talk to Popcap, make it an addon.
God: AND THE LORD SAW IT AND SAID THAT IT WAS GOOD
…And that’s how a massive lawsuit between a company and some dude brought about the addition of Bejewled into WoW.”
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Thoughts on the WoW Glider appeal

A US appeal court has upheld the illegality of WoW Glider, a high-profile and profitable bot for Blizzard’s World of Warcraft (hat-tip to Nic Suzor).  The case is important both for its implications for bot use generally in MMOs as well as for a number of other legal points for games companies which come out of the case.  The case was also not a clean win for Blizzard, which suffered setbacks in two important parts of the case.

The background

Glider allows players to level up automatically within WoW by playing their avatars for them.  It therefore bypasses the level progression built into WoW.  Glider was built by MDY Industries, which is owned by Michael Donnelly, who sold it to WoW players for a lot of money.  Interesting fact: Donnelly made $3.5m profit off WoW Glider, apparently.

Blizzard did not like Glider, unsurprisingly, and told MDY to stop selling it.  MDY then commenced legal action seeking to justify the legality of Glider.  In 2008, a California court held against MDY, finding both that Glider involved copyright infringement of WoW and that it contravened the Digital Millenium Copyright Act.  That last bit needs a bit of explanation for non-US readers: the DMCA makes it illegal for you to try to circumvent technological protection measures which a software company puts in place to protect its software.  In this case the principal protection measure is The Warden, a program that Blizzard uses to track down bots – and which Glider was designed over time to evade.

Having lost the lawsuit, Donnelly and MDY were therefore made subject to a huge $6.5m fine and ordered to stop selling Glider.  They appealed – and the judgement from the US 9th Circuit appeal court has now arrived.

Key points from the case

  • Blizzard lost its copyright infringement argument.  In a nutshell, it argued that its EULA prohibits bot use and therefore, if a player uses Glider, that is a breach of the EULA and constitutes copyright infringement, for which MDY should be legally responsible as it sells Glider in the first place.  The court held that in fact using a bot does not involve copyright infringement, it just means a breach of contract (i.e. of the EULA).  In other words, using or selling Glider is still illegal because it involves breach of contract, but it’s not quite as illegal as Blizzard made out, i.e. copyright infringement.  This has important practical consequences, because it significantly limited the legal penalties that Blizzard could seek against MDY.  It is also significant legally, because it is the first time that a court has found that using a bot does not involve copyright infringement.
  • However, Blizzard won the DMCA argument.  The court found, again, that because Glider is specifically designed to evade The Warden, it therefore fell foul of the anti-circumvention laws in the DMCA.  Therefore, the court upheld the ban on Glider, even though MDY had ‘won’ the copyright argument.
  • Because Blizzard lost the copyright infringement argument, the court effectively overturned the massive $6.5m fine against Donnelly and MDY.  Which must be a relief for them.  But it doesn’t get them entirely out of the financial wood because…
  • Blizzard had also run a ‘tortious interference with contract’ argument – i.e. it wanted MDY to pay for the damage that Blizzard suffered due to Glider, which appears to have been lost subscriptions.  In the lower court, Blizzard won this argument, but the appeal court now basically has ordered a re-trial.
  • We’ll very likely see this in the courts again, either because of the partial re-trial or because one or both parties attempts to appeal the case up to the US Supreme Court.

Other interesting points:

  • The court affirmed the decision in Vernor v Autodesk earlier this year that games ‘owners’ in fact only license their games, they do not own them (read more here: what Vernor v Autodesk means for games)
  • Blizzard apparently spends “$940,000” a year responding to complaints regarding anti-bot activities (contrast that with the $3.5m profit Donnelly made on Glider sales).  Still, I wonder how much extra Blizzard spends on actually combatting the bots themselves.
  • Interestingly, MDY’s explicit business model was to make it so commercially difficult for Blizzard to continue its anti-bot activities that it would effectively allow Glider to continue. 

So what?

It might sound like a lot of legalese, but really this is a milestone lawsuit in the games industry:

  • It shows yet another weakening of the EULA.  Just because Blizzard said that using a bot was illegal and a breach of copyright, didn’t actually make it so.  Expect more hard looks at the EULA in the future.
  • On the other hand, it shows how important the DMCA is to protecting games in the US.  The equivalent in the UK is the Copyright, Designs and Patents Act 1988 (you can read more about that here in the context of modchips).
  • It also shows that Blizzard really doesn’t like bots.  Its legal costs must be quite substantial by now and, the court having ordered that each side pay its own costs, it can’t recover them from MDY.  That’s a lot of money to spend going after one bot, but Blizzard must have been banking that it will have a deterrent factor on other bots in the future.

Finally, here’s the really interesting question for me: MDY lost not because of Glider itself, but because it circumvented The Warden.  What if there was an MMO with no such protection program in place (and, perhaps, with a less strict EULA too)?  In that case, there is at least an argument I think that bots could be ‘legal’ for that game.  Food for thought, eh?

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Image credit: Juanpol/Flickr, via Wired