A legal guide to Let’s Play and gaming videos

Let’s Play videos, and gaming videos more generally, are awesome. I started playing Minecraft thanks to Seananners’ very early videos about his love of what was then a quirky indie half-finished game just beginning to gather fans; I’ve played many games (and laughed a lot) thanks to the Let’s Play videos of my friends (and clients) at Yogscast; I enjoy video reviews of games from people like my friend Matt Lees at Videogamer.com; several clients of mine got their big break thanks to Let’s Play videos popularising their games.  But to many people the legal status of gaming videos is unclear and getting pretty controversial, too.

Some early gaming videos were taken down; Nintendo said they wouldn’t permit them at all (though they may have changed their mind later); and most recently and infamously, some licensing companies used the YouTube system to issue many IP infringement notices to gaming videos (more on that later).  To try to clarify what’s actually happening here, I thought I’d write this legal guide. Continue reading A legal guide to Let’s Play and gaming videos

Blizzard says no to World of Starcraft mod


2nd UPDATE: Looks like there is a happy compromise – Ryan has been contacted by Blizzard and it seems he can continue work on the mod provided he changes the name.  Good stuff.

A gamer who created a ‘World of Starcraft’ mod for Starcraft 2 has been frowned on by Blizzard.  Unsurprisingly.

Modder “Ryan” used Starcraft 2’s Galaxy Editor, which enables modders to create anything from custom maps to total converstion mods for Starcraft 2 (quick digression: my favourite is Footmen Frenzy), to create a prototype Starcraft type MMO.  Rather unwisely, he went on to call it World of Starcraft.  And Blizzard didn’t like it, obviously.  Apparently it manifested this dislike by sending a takedown request to YouTube in respect of a World of Starcraft promo video. UPDATE: a helpful reader has noted that apparently the takedown request was due to Ryan allegedly violating Blizzard’s policy on videos, but as yet there has been no takedown/cease and desist request made against Ryan himself.  So, the rest of this post proceeds on the hypothetical basis that Blizzard does try to take World of Starcraft down, because that’s when things would get more interesting.

So, I thought I’d take the opportunity to think a bit about Blizzard’s likely thought process when this came up on their radar:
  • I couldn’t find the EULA which governs use of the Galaxy Editor [if anyone can find it, let me know please!], but broadly it will involve Blizzard giving modders a limited licence to use Starcraft 2 IP, e.g. in-game characters and probably the name ‘Starcraft’, in order to create mods for Starcraft 2 using the Galaxy Editor.
  • Broadly, the main constraints on that kind of licence are: (1) that the mod is not made for profit; and (2) Blizzard has no other objections to it.
  • Clearly, it’s the second exception which is interesting here: does Blizzard have the right to complain if a modder takes a whole bunch of Starcraft 2 IP and turns it into a fusion of World of Warcraft and Starcraft 2, in circumstances where Blizzard gave the modder rights over that IP in the first place?
  • This will boil down mainly to what the EULA says.  Unfortunately I can’t see the EULA, so I can’t answer that question definitely – yet.
  • Anyway, leaving the legal specifics aside, it does seem to me that Blizzard is on slightly tricky ground here.  Regardless of exactly what a EULA says, if you give the modder community the ability and the blessing to go make fun stuff with your game, potentially you’re playing with fire if you then bring the hammer down because you don’t like what they’ve done, surely?  Especially when all the modder here has done is try to imitate that other wildly popular Blizzard game, WoW.
Still, the morale of the story is this: be clear with your fans what they can and cannot do with your game, especially if you release an editor.  The legal small print is important, but don’t rely on just small print alone.

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[Image credit: who the hell knows?  I’m going to go with Blizzard/’Ryan’/Videogamer.com to be safe]

Blizzard wins $88m lawsuit against WoW private server owner

Blizzard Entertainment has just won a substantial lawsuit against WoW private server provider Scapegaming, including a crippling award of $88 million in damages. Read on for more on WoW private servers and this case.
What was Scapegaming?
Scapegaming was a WoW private server, which permitted players to play a modified version of WoW that was not under Blizzard’s control and for which players would pay the private server provider rather than WoW. For example, it seems that Scapegaming even featured a (real money) microtransactions system, which obviously WoW does not.  Vanilla WoW is just fine for me for me (my 80 Horde DK is doing ok thanks), but I can imagine that some gamers may find attractive the idea of playing a different, non-sanctioned version of WoW.
Private servers inhabit a pretty murky world (more on them below) and so not much is known about Scapegaming. However, from some investigation it seems clear that Scapegaming is/was one of a number of interconnected WoW private servers, who enjoy apparently quite substantial player bases.  For example, you can have a look at this Youtube video for some rather mysterious allegations about the various figures behind Scapegaming and its rivals.  One thing that does seem clear is that some point Scapegaming was shut down, though whether this was as a result of this lawsuit or other factors is unclear.

So, a bit about private servers
As I said, private servers permit players to play WoW without Blizzard’s supervision and which therefore gives them the ability to manipulate the game to an extent impossible in the official servers. BUT, private servers without the dev’s consent are quite clearly illegal. Why? Because if you reverse-engineer and make available to the public a modified version of someone else’s game without his/her consent, you are committing a range of IP infringements, particularly copyright and trademark infringement. Moreover, both making and using a private server would involve breach of the WoW terms and conditions, entitling Blizzard in principle to shut down WoW game accounts of both the private server providers and their users. In fact, if such servers are provided to the public for profit, then under many jurisdictions this could potentially be a criminal as well as a civil matter for the server providers. Beyond that, private servers cause commercial and creative problems for the dev because they are outside of his revenue stream or his creative control. In other words, they are pretty much always going to be BAD NEWS for developers.
Blizzard itself is certainly alive to the dangers posed by private servers. In around 2002, it took legal action against the owners of Bnetd, a reverse-engineered clone of Battle.net and therefore in effect a private server itself (you can read more on that here) http://en.wikipedia.org/wiki/Bnetd. Beyond that, Blizzard has taken legal action on a number of other occasions when third parties have attempted to introduce changes to WoW without its consent (see for example the WowGlider litigation).

So, at this point, let’s have a quick look at what we know of the Scapegaming case.

The case
In early 2010, Blizzard commenced the legal action in a Californian court directly against Alison Rees, apparently the owner/manager of Scapegaming. The details of Blizzard’s exact complaint were, as usual, set out in a formal Compaint (known as Particulars of Claim in England) – but unfortunately I don’t have access to it (yet). Still, one would expect that it gave set out the IP/contract arguments against Rees.
Then, it seems from the court record, Rees did…nothing. As seems often to be the case in clear IP infringement cases of this kind, Rees ing appears to have chosen not to respond to the lawsuit at all. As a result, it seems that Blizzard became entitled to default judgment (this is a legal procedure in which, if you start a lawsuit and the other side doesn’t respond within the requisite reply period, then you automatically ‘win’ the lawsuit because of the other side’s failure to engage in the process).
At which point the lawsuit seems to take another non-twist, because then Blizzard’s lawyers appear to have done nothing either. The lawsuit history is skimpy on detail and therefore difficult to follow at this point, but it seems that the court took a pretty dim view of this and therefore proposed to dismiss Blizzard’s lawsuit altogether because Blizzard had failed actually to ask for default judgment against Rees. Anyway, after a court hearing on the issues, the court (apparently quite begrudgingly) gave Blizzard a short period in which actually to seek default judgment, which it then did in mid June 2010. This then rolled on for some time until, in early August, the judge ruled that:
Based on Plaintiffs evidentiary submissions, the Court concludes that Plaintiff is entitled to default judgment in the amount of $3,052,339 in disgorged profits, $85,478,600 in statutory damages, and $63,600 in attorneys fees…Plaintiff Blizzard Entertainment, Inc. shall recover $88,594,539.00, and post-judgment interest thereon at the rate provided by law until paid in full, from Defendant Alyson Reeves, d/b/aScapegaming.
Let’s just pick the numbers apart for a moment. Blizzard is to recover $3m in “disgorged profits“, meaning that it was able to convince the court that Rees herself had made over $3m in profits from Scapegaming. That’s a serious amount of dough to earn from a private server. Then we have $85m in “statutory damages”, which is the amount awarded by the court to compensate Blizzard for the estimated loss caused by the IP infringements. Clearly this makes up the bulk of the award and is pretty nuclear all on its own (though NB that the amount of statutory damages awarded are often a target for an appeal later on). Finally, we have $63,600 in legal costs.
So what?
$88m in damages is a pretty crippling blow to bring against an individual and I would guess that, unless Rees is a wealthy individual living in the US (or she manages to win an appeal against that award – seems unlikely), then actually recovering anything like that sum of money may be difficult. However, the sheer size of the damages award certainly should send a clear message to other WoW private server providers (particularly any of those who have moved in on Scapegaming’s territory since the lawsuit began).
Which leads us to the last point for this post. What this case shows most strongly is that Blizzard views private servers as a sufficiently significant problem to merit lawsuits – particularly if other private server providers are earning anything like the $3m that Rees made from Scapegaming. Couple that with the fact that there are clearly other private server providers out there, and it suggests we will see more of this kind of action from Blizzard in the future. Watch this space…

Image credit: Activision-Blizzard/Wikimedia

Teen admits crashing Playstation site in banhammer revenge

Thanks to Kotaku for this one: a US teen has pleaded guilty to criminal offences over his hacking and crashing of a Playstation web site in 2008, which he did in revenge for being kicked out of a tournament for the PS2 game SOCOM US Navy Seals for using a cheat mod. 

Apparently, he carried out his attack by infecting the site’s servers with a virus.  Clearly, he was savvy enough to carry out the attack, but not savvy enough to hide his tracks, meaning that he was found out and has now pleaded guilty to four felonies: unlawful use of a computer, criminal use of a computer, computer trespassing and the distribution of a computer virus (this was part of a plea bargain and prosecutors have therefore dropped 11 other counts in exchange for the four guilty pleas).  Silly boy.

The case gives us an opportunity to remind everyone of the legal position in the UK.  The Computer Misuse Act 1990 is the principal legislation for hacking and it criminalises the following main actions:

(i) Intentional attempts to cause a computer to perform any function with intent to obtain unauthorised secure access to a computer or data on it (e.g. phishing),

(ii) Same as (i) but with the intent to carry out a further criminal offence (e.g. hacking a PC in order to commit fraud), or

(iii) acting in any way which causes the unauthorised modification of the contents of any computer, with the intent to impair the operation of any computer/programme or to hinder access to data on any computer (e.g. uploading a virus to a PC or server).

This Act was most recently used publicly by the UK police to swoop in on a group of Runescape players who had been hacking/phishing Runescape accounts for criminal purposes (more on that, and the Computer Misuse Act, here).

This is one of those posts when the legal lesson of the day seems blindingly obvious, but here goes anyway: hacking someone else’s computer or web site is a criminal offence, so don’t do it!

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Activision pwns King’s Quest fan sequel = important lessons for fan mods and sequels

In a nutshell: the King’s Quest games series was in games limbo, some fans tried to rescue it and make a fan sequel, they did it in the right way legally, but Activision has now decided to shut them down.  Shame.  Still, this is another example a simple but useful lesson for anyone wanting to make a fan-mod/sequel for a game: you have to seek the rights holder’s approval before you make the mod/sequel.  Read on for more… (sources: Joystiq and SPONG)

The background

Remember seminal adventure game series King’s Quest by Sierra?  It was awesome, but as with so many games in the Nineties, somehow it fell into games limbo.  Sierra went through various corporate shenanigans and by the early Noughties ended up being owned by Vivendi, which sat on the King’s Quest IP.

Then, along came Phoenix Online Studios, who wanted to make a King’s Quest fan sequel eventually called The Silver Lining.  They could have just started making the game themselves, as so many modders/fans do, but unless you first have the rights holder’s approval then making a fan sequel/mod means you open yourselves up to an IP infringement lawsuit (there may be IP defences available in your jurisdiction, e.g. fair use, but that wouldn’t necessarily cover you completely and, anyway, why take the risk?)  It seems that initially Phoenix did just that, working away at The Silver Lining and presumably hoping to get away with it.  But, in 2005, they received a cease and desist letter from Vivendi.  So, Phoenix then did the right thing legally by asking Vivendi’s consent for them to make The Silver Lining.  This led to an arrangement being reached with Vivendi that would allow the game to go ahead.  So far, so win.

Activision, it say NO!

But, fast forward to the present day (ish) and we remember of course that Vivendi had a $18bn merger with Activision, meaning it no longer called the shots in the Sierra titles.  Activision later said that it wasn’t particularly interested in the Sierra legacy titles it had acquired, including King’s Quest.

It seems that Phoenix tried to negotiate with Activision for the future of Silver Lining, but it didn’t work out.  As Phoenix announced today:

“After talks and negotiations in the last few months between ourselves and Activision, they have reached the decision that they are not interested in granting a non-commercial license to The Silver Lining, and have asked that we cease production and take down all related materials on our website.”

This suggests that the non-commercial licence that Vivendi had granted to Phoenix terminated on the Vivendi/Activision merger (this may have been an express term of the licence, or possibly was a side-effect of a corporate reorgnisation following the merger).  Either way, Activision considered itself no longer bound by the licence and decided, as it is entitled to do as the King’s Quest rights holder, not to renew the licence.  This of course means that Phoenix cannot continue to make The Silver Lining without the risk of an Activision lawsuit.  So, hence Phoenix Online decision that:

“Sadly, after eight years of dedicated work and even more dedicated fans, The Silver Lining project is closing down.

What the future holds for us, as individuals or a team, we cannot say. We have an amazing development team, however, filled with talented and hard-working individuals, and we hope the teamwork and rapport we’ve developed won’t go to waste. We hope that when we do know what the future holds for us, our fans will be there to enjoy what we can give them still.

Again, thank you all so much for everything. This has been a long and crazy road, full of more twists than we could’ve anticipated, but more triumphs and wonderful memories than we could’ve ever hoped for. And for that, to all of you and to everyone on our team, we will always be grateful.”

We can only guess why Activision refused to grant a licence to Phoenix.  The most likely reasons imo are:

  • Activision and Phoenix just couldn’t agree the terms of the licence
  • Activision may have been looking for a royalty, which Phoenix couldn’t/didn’t want to pay
  • Activision has its own plans for King’s Quest
  • Activision didn’t want to open the floodgates for all the other legacy titles it is sitting on
  • Activision just didn’t like The Silver Lining or Phoenix Online enough
  • Activision wants no further King’s Quest titles

These kinds of factors are always going to come up in situations where any dev/publisher holds the rights and a third party wants to use them, even if it’s for the non-commercial purpose of making a fan-sequel/mod just for the love of the game.  Think about it from the right’s holder perspective: even if you’re not doing anything with the title, why would you give control of it to someone else over whom you have limited control and probably don’t expect to get any money?  It’s a shame, and no doubt the King’s Quest fans and gamers generally are disheartened at Activision’s decision, but when games, law and business collide, you don’t always get the result you might have hoped for.

Still, that doesn’t mean that every attempt to make a fan-mod or sequel will go the same way…

Lessons for fans who want to make a fan-mod or sequel of a game:

  • Copying, decompiling, modding or in any way interfering with a game, or using game characters/names/concepts/images/sound/video etc without authorisation, opens you up to the risk of a lawsuit from the rights holder.  Don’t assume that you will be covered by a ‘fair use’ defence – that depends entirely on the law of your jurisdiction as well as what you actually do with the game (e.g. are you making a sequel for commercial or non-commercial purposes? Are you passing off aspects of the game as your own, rather than the rights holder’s?)
  • If you are in any doubt as to the legality of what you are proposing to do, have a chat with a friendly lawyer.  We don’t bite and some of us even like games…
  • Even if you don’t seek legal advice, the safe course is to seek the rights holder’s consent before you do anything – that’s the surest way to stave off a lawsuit.  The rights holder will be able to tell you whether or not it is happy for you to go ahead and, if so, on what terms. 
  • At that point, it’s down to you to get the best deal you can.  Again, if in doubt, have a chat.  Friendly developers or games business folk all may be able to give you a few pointers.  And, again, if in legal doubt, ask a lawyer.
  • But, if you don’t get the approval from the rights holder, for goodness’ sake don’t go ahead and make the game anyway.  You’ll just be back at square one and begging Mr Lawsuit to steamroller you.
  • That’s a positive note to end this post on, isn’t it?

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