Blizzard, Valve and the future of virtual goods

This is a long(ish) post about some moves that Blizzard and Valve have recently announced regarding Diablo 3 and Steam respectively, and what they mean for the future of virtual goods in games.  Here’s the short version for lazy sods:

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’/ to be safe]

Blizzard to contest Valve’s DOTA trademark application?

I wrote earlier this month about the Legal Battle Brewing Over DOTA, a popular free to play Warcraft 3 mod which Valve is now planning to revamp and release commercially.  I said in that post that I think the fact that the DOTA IP is split across multiple developers means that we will see legal difficulties over both the copyright and trademark ownership of any commercial DOTA game.

It’s nice to be proven right every now and then. reports that Blizzard has publicly objected at Blizzcon 2010 to Valve’s attempt to register a trademark over DOTA.  Rob Pardo, Executive Vice President of Game Design at Blizzard, told Eurogamer: “To us, that means that you’re really taking it away from the Blizzard and Warcraft III community and that just doesn’t seem the right thing to do“.  It’s important to bear in mind that there is no indication that Blizzard is going formally to object to Valve’s application though – GI reported that “When asked what would happen in the event Valve were to object to Blizzard’s use of the term for Blizzard DOTA, Pardon claimed: “Our response is that they don’t own the term DOTA at this point. It’s something that they’re filing for. “

However, interestingly, at Blizzcon 2010 Blizzard has apparently also unveiled “Blizzard DOTA”, a free DOTA mod for Starcraft 2. 

So, you have Blizzard making noises about Valve not being in a position to trademark DOTA (even if technically Blizzard has said nothing about formally objecting to that application – so far).  At the same time, Blizzard wants to release its own (free) DOTA mod – which potentially could infringe Valve’s DOTA trademark if it is granted in the near future.  Then there’s the issue of actual ownership of the game IP as I’ve discussed previously.  Doesn’t look good.  Let’s hope that Valve and Blizzard can come to an agreement as to how their respective games can live together side by side, because otherwise it could get really legal…

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Opinion: the legal fight brewing over DOTA 2

UPDATE: Now Blizzard have begun to get involved a little more actively in the DOTA matter, which raises the stakes on the trademark front – see more from me on that here.

So, Valve announced DOTA 2 yesterday.  This is of course a sequel (of sorts) to the wildly popular Warcraft III custom map, Defense of the Ancients.  I’ve played a fair bit of DOTA in my time and was looking forward to Valve’s take on it, but beyond that I hadn’t paid much attention to it…until now.

Today this exposé/rant/hoax? appeared on the net, which has made me do a bit of further reading into DOTA 2’s development- which in turn has made me wonder if there is an almighty fight brewing over DOTA next year…

The story so far…

  • The first DOTA map went live – as best I can tell – around 2003
  • Subsequent versions were developed by at least three different devs.  One of them was Steve Feak, aka Guinsoo.  Another was Steve Mescon, aka Pendragon (who also ran the DOTA AllStars website).  The latest dev to work on DOTA was Abdul Ismail, aka Icefrog.
  • Mescon and Feak subsequently went to Riot Games which developed League of Legends, a DOTA type game.
  • S2 Games subsequently developed Heroes of Newerth, another DOTA type game.
  • More recently, Ismail announced he was joining Valve to make DOTA 2.
  • Valve subsequently applied for a trademark over “DOTA” which provoked a counter-filing from Riot Games for a trademark over “Defense of the Ancients” (I do not know what happened following that, but I assume both parties were granted or will be granted the trademarks they had applied for – though obviously there is scope for confusion between the two.)
  • Now, an anonymous Valve employee has written about Ismail.  I stress I have NO IDEA if it is genuine or not and it is quite possibly defamatory in parts even if other parts of it are true.  But what is interesting about the post is that it claims that Ismail had worked either with or for one or both of Riot and S2 prior to coming to Valve and unbeknown to Valve.  The allegation therefore is that Ismail does not own the DOTA content himself. 

Why there could be a fight over DOTA

You can see by now that, even if the Ismail rant is a hoax (which we don’t know for sure), the ownership of the DOTA IP looks like it could be a total mess.  You could see competing claims from:

  • Activision-Blizzard: the publisher of Warcraft III and which could claim IP ownership of UGC made for it – including custom maps like DOTA.
  • Any of the original developers of DOTA, plus Steve Mescon, Steve Feak and Abdul Ismail: these are the guys who made the original DOTA and could therefore claim rights in it.
  • Riot Games and S2 Games: they employ or worked with some of the original DOTA developers, allegedly including Ismail himself, and made DOTA type games themselves (which potentially they could argue are infringed by DOTA 2).  Riot Games has applied for the Defense of the Ancients trademark.
  • Valve: the prospective publisher of DOTA 2 itself and applicant for the DOTA trademark.

So, we have a situation in which multiple developers have worked on the same product and then gone in subsequent directions to different companies, in circumstances where very likely there has never been any formal agreement as to the ownership of the DOTA IP.  Then, on top of that, you have allegations that one of the developers may have worked for competing games companies all working on DOTA type games unbeknownst to anyone else, the implication being that he might thereby have misused confidential information.  AND finally, yet further, you have two rival games companies both making rival DOTA type games and filing for similar trademarks.

Sounds like a recipe for a legal battle to me.  All is that needed is the money – and if DOTA 2 is a big hit for Valve next year (as pretty much all of its games have been, ever), then we’ll see plenty of cash next year when the game is released.  Watch this space…

Image credit: PlayDota/Wikipedia

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Opinion: why PopCap had to say yes to Blizzard

Last month, news emerged that Blizzard will introduce an homage to Popcap’s hit game Plants vs Zombies in the forthcoming World of Warcraft expansion, Cataclysm.   Apparently there will be a Plants v Zombies themed quest chain in the game, including the ability to…well, fight zombies with plants.  It seems that Popcap had collaborated closely with Blizzard on the project.

All well and good.  But this got me thinking: what if hypothetically it had been reported that PopCap had known nothing of Blizzard’s plans and was unhappy with them?  What could Popcap have done then, legally?

My view is this: if Blizzard did it right, then PopCap couldn’t have done much legally – and I’ll explain why in this post. 

But first, a couple of caveats.  One: this is not a complete legal analysis – it is an opinion piece, in which I take you through my views of the key legal issues that would be encountered (though if you do want a careful legal analysis about these kinds of issues, let me know!)  Two: this is not intended to cast any aspersions on Blizzard or PopCap – I’m just using a convenient recent example to discuss the limitations of copyright and trademark law as regards gamesThere is a tendency sometimes to think that, just because someone has copyright and trademark protection in their games, that somehow that makes them invulnerable to copying etc.  Not at all – as I’ll show you.

The basics

These are real basics: a game is really just a bundle of different components : images, audio, video, code, databases etc.  Virtually all those components are intellectual property (i.e. intangible stuff you can own, as opposed to tangible stuff you can own – such as a house) and therefore protected by intellectual property law.  The games components outlined above will usually be protected by a branch of IP law called the law of copyright (more on that below).  Told you it was the real basics…

Separately, your name, the name of the game and the names of some its key features (e.g. its characters) can potentially be protected by trademark law.  For example, Nintendo and Super Mario are trademarked terms (again, more on that below).

In addition, there can be a whole bunch of other intellectual property rights in or around your game – e.g. rights in databases forming part of the game or in its packaging or ‘get up’.  For the purpose of this post, they’re not as relevant so I won’t discuss them.

The copyright bit

As I said much of the game components, like audio and graphics, will be protected by copyright law.  But really that just protects the actual images you’ve drawn or audio you’ve actually recorded.  Copyright law does not give you a monopoly over every other kind of similar image or audio. 

Example: if Alan draws a picture of a fat grey zombie attacking a plant, then he can’t stop Bob entirely separately drawing and selling another image of a fat grey zombie attacking a plant.  This is a critical principle of copyright law: it protects the expression of an idea, not the idea itself.  Two people drawing that picture entirely separately have just drawn on a common idea, so neither of them has the right to stop the other from drawing or exploiting their picture.    Copyright law does this in order to strike a balance between rewarding hard work and protecting intellectual liberty.

Ah, you say, but what about if Alan saw Bob’s picture first?  That’s where it gets tricky.  If Alan can prove that Bob had access to his picture, and can prove that Bob made a replica picture that copies all or (to use some legalese) a “substantial part” of Alan’s picture, then in principle Alan could sue Bob for copyright infringement on the basis that Bob’s inspiration was Alan’s picture, not the abstract idea of a fat grey zombie attacking a plant.

BUT, suing for copyright infringement is not as easy as just looking at the two pictures.  Judges have to look very closely at every aspect of the two copyright works, comparing and contrasting every part of them in order to reach to a decision as to whether there are enough detailed points of similarity to justify a finding of copyright infringement.  This is a very, very hard test to meet.  On top of that, it is often hard to prove that the person who made the alleged replica work actually had access to, and copied, your copyright work.  All lawsuits ultimately involve a degree of chance, but copyright lawsuits often  go beyond that.

What about if there are no obvious technical examples of copying but there is overall a very similar ‘look and feel’ to the two works?  For example, what if there are two GUIs or menus that are not exactly the same but overall give the same or similar effect – could there be copyright infringement there?  Answer: it is going to be very, very hard under UK (and US for that matter) law to prove that someone has copied your game or any other copyright work just based on a similar ‘look and feel’. 

A good example of how hard all this is to prove is the Da Vinci Code case (aka Baigent and Leigh v Random House).  Two authors claimed that Dan Brown had plagiarised their book, The Holy Blood and the Holy Grail, when writing his massive hit The Da Vinci Code.  Brown quite clearly had taken a huge amount of inspiration and plot details from their book, but he was not found liable for copyright infringement because he hadn’t actually copied any text from Baigent’s and Leigh’s book.  There were not enough painstaking points of similarity between the two books, and any general similarities or ‘look and feel’ were not sufficient, to find Brown liable for copyright.

Another example:  Navitaire Inc v easyJet.  Navitaire had developed an airline booking system, which easyJet instructed software engineers to replicate down to the last detail, partly by reverse-engineering it through repeated use of the system.  Navitaire tried to sue for copyright infringement and failed because, even though easyJet it couldn’t show that the relevant copyright works had technically been copied in the word-for-word sense and its ‘look and feel’ argument failed.

That key point again: it’s actually quite hard to prove copyright infringement regarding software, including games.  Ever wonder why (naming no names) some social games look, sound and and have names remarkably similar to each other?  It’s partly because the above shows how hard a lawsuit over any alleged copying would be.

So that’s all very nice and academic, but what does it mean for PopCap and Blizzard?  Here’s my view:
  • Popcap will (unless it has assigned it to someone else) own the copyright in all the visual, audio, video, code etc in Plants vs Zombies
  • But that does not give Popcap a monopoly over the idea of a cartoony tower defence game in which the player builds plants to fight off zombies
  • Nor does it give Popcap a monopoly over the ‘look and feel’ of that kind of game
  • Done correctly, Blizzard could quite properly look at Plant v Zombies and – without actually copying any of the copyright works in that game – make its own version which looked very similar and played very similar
  • In other words, if Blizzard had decided to include a game-mode very like Plants v Zombies in its game, and did it correctly, I think Popcap would have great difficulty in arguing copyright infringement against Blizzard
Of course, there’s a BUT here.  None of this means that you have a licence to rip someone else’s game off without regard to copyright law, firstly because that’s just a bad thing to do but secondly because there’s nothing to stop the copyright owner commencing litigation against you anyway (even if the prospects of success are actually against it).

The trademark bit

So, copyright wouldn’t help (I think).  How about trademark?  Answer: I don’t think so, not if Blizzard was savvy.

Again, another bit of legal 101 first.  Trademarks are intended to give legal protection to the financial value of the name of your company and product, because otherwise it is very tempting to put together a similar product with a similar name and piggyback on someone else’s successful product.  This often comes up in cybersquatting cases, when a shady character sets up a website very similar in name to a popular website and tries to profit from misdirects (for example, Facebook recently successfully went after and shut down  So, both ‘Popcap’ and ‘Plants v Zombies’ are (or should be) trademarked. 

The basic test for trademark infringement is fairly simple: if you use deliberately in your trade a name which is similar to a name trademarked by someone else and this is likely to cause consumer confusion between your name and the trademarked name, in principle you can be liable for trademark infringement to the trademark owner.

The solution is simple: use a name which won’t cause consumer confusion.  So, if Blizzard was to use a name sufficiently similar to Plants v Zombies to cause consumer confusion (e.g. ‘Zombies v Plants’) then in principle it would be liable for trademark infringement.  But what if Blizzard used a name like “Botanical Mayhem” or something? 

My answer: far less chance of  succesful legal complaint from PopCap, probably.  So Blizzard could take their own type of plant/zombie tower defence game, give it a non-trademark infringing name, and off they go.

Practical points coming out of this little thought experiment:
  • Having copyright and trademark protection for your game is helpful, but it doesn’t necessarily make it invulnerable to being copied/ripped off
  • Copyright protection isn’t going to be a complete shield if someone is determined to exploit your game cleverly
  • Trademarks won’t help you either if they deliberately call the game something else which is sufficiently different so that it wouldn’t cause consumer confusion
  • BUT, litigation isn’t just about winning a lawsuit when you’re absolutely right, it’s also about applying commercial pressure to the other side – so you shouldn’t necessarily be swayed by just these legal arguments
  • And don’t take of this as a licence to go ripping someone else off – obviously, it’s never a good idea to do that

Image credit: PopCap Games/Wikimedia

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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 and therefore in effect a private server itself (you can read more on that here) 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

Starcraft II to be rated 18 in South Korea

Starcraft II has been given an 18 age classification by South Korea’s Games Rating Board, reports
Although Starcraft II beta was given a 15 classification, the South Korean Games Rating Board reportedly justified the increased classification to a more thorough review than the beta had received.  Beyond that, no information has been released explaining the increased classification.  In other words, nothing to explain why Starcraft II – a RTS title, remember – is so violent it requires an adults-only rating.  Make of that what you will.
For Blizzard’s part, it told the Korea Times that “we have nothing to say at this point. We are discussing our official position on the matter as well as what would be the right reaction”.  GI reports that the company has a 30 day period in which to file any objection to the rating.
Clearly, if the rating stands then it would have some impact on the South Korean audience at which the game is targeted – but it’s unclear how significant that impact would really be.  That said, given the popularity that Starcraft I enjoys in South Korea, it will  be interesting to see what is the public reaction to this move by the government…
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