Blizzard Entertainment has produced some of the most beloved and enduring multiplayer games in the industry. From Warcraft to World of Warcraft, Starcraft to Overwatch, and everything in between, the studio has in many ways set the bar for multiplayer experiences.
But the most fascinating legal aspect of the company is Blizzard’s determination to maintain control over its IP for the sake of maintaining the status quo among players. Blizzard has frequently employed legal action to defend the integrity of the player experience. Some outcomes have resulted in criticism, including one of the earliest decisions in Blizzard’s favor against bnetd.org. Others seemed justified in the interest of fair play, such as its most recent case against Bossland.
Look at it this way: If I use a non-regulation net in a pickup game of basketball (full disclosure, I will never play a pickup game of basketball), no one can or will sue me for it. If I purchase a board game and decide to play among friends using a different rule set we made up (full disclosure, I do this all the time), no one can or will come after us for playing by our own rules.
But video games provide an entirely unique question concerning the integrity of the player experience — and what fans can and cannot do to modify that user experience — thanks to the operation of intellectual property law. It’s fascinating.
Let’s examine the operation of some of those laws from the perspective of the developer, and the nature of the developer/modding community relationship in general as I’ve experienced it in my role as counsel for developers.
So what is a mod?
Blizzard is no stranger to software modification, or “mods” in the common usage. I’m not allowed to raid with my guild without fully updated versions of Deadly Boss Mods and Mr. Robot loaded (shout out to the Hurricane on Dark Iron, ya’ll). In fact, most serious World of Warcraft players have an add-on folder filled with various tools and tricks to tweak our user experience beyond the options that Blizzard designed for the game.
Similarly, games like Bethesda’s Elder Scrolls: Skyrim and Bohemia’s Arma 2 and 3 have experienced a prolonged Renaissance thanks to fan-created mods. In turn, these mods may garner a degree of popularity and success substantial enough to warrant their own following. By way of example, my firm represents Dean Hall. He’s the mind behind Day Z, a little-known mod for Arma 2: Operation Arrowhead. The mod ultimately turned into a stand-alone product and led to Hall forming his own development studio, Rocketwerkz.
Mods are typically identified as user-generated content developed for the purpose of enhancing or modifying some aspect of gameplay (thus, “mod”). From a legal perspective, things get interesting when we look at how those mods are created. It’s common for developers or publishers to provide modding tools with their products, to the point that middleware developers like Havok, Unity and Unreal now frequently include provisions for modding in their engine licenses to publishers and developers.
This gets complicated when confronted with other methods of mod production, like reverse engineering. This is the act of looking at a finished thing, breaking it down to its component parts to figure out how it works, and using that as the basis to build an improvement or mod that works with the thing.
Reverse engineering is technically supposed to be OK, but it is often treated as a gray area of the law. Generally reverse engineering that circumvents certain technology in a game is prohibited under an End User License Agreement and, in turn, the Copyright Act.
Blizzard cemented this, in fact, in one of its earliest cases against bnetd.org, a private server interoperable with Battle.Net’s online multiplayer features for Warcraft II. The matter was first litigated in the Eastern District of Missouri before making its way to the Eighth Circuit.
The district court found that (1) Blizzard’s EULA and Terms of Use, which prohibited reverse engineering, were enforceable contracts; (2) the defendants waived their right to a “fair use” defense; (3) the EULA and Terms of Use did not constitute an abuse of copyright; and (4) in addition to violating the agreements, the defendants also violated the DMCA’s anti-circumvention and anti-trafficking regulations (17 U.S.C. §1201(a) and (b), respectively). The Eighth Circuit affirmed this ruling way back in 2005.
Put in simple terms, the Court considered Blizzard’s EULA at that time, which prohibited reverse engineering, perfectly valid. By breaching their contract the defendants invalidated their license. So their use of the program to build a private network outside of Battle.Net not only breached their contract, but violated the Copyright Act because they no longer had a valid license when they reverse engineered the game. They also violated 17 U.S.C. §1201 because people could play unlicensed copies of the game on bnetd.org., thus circumventing the CD key technology used to protect the game.
But again and again Blizzard has made the same case against modders. Its most recent case is against Bossland, the creator of “HonorBuddy” and similar mods that offer hacks, bots and tools to circumvent the game’s intended gameplay (predominantly through automating that gameplay).
This case began with a lawsuit in Germany, where the defendant is based. More recently, Blizzard filed an action for recovery of over $8 million in damages in a US Court based on statutory damages and the German Court’s finding in its favor.
Blizzard once again argues that the creation and use of these mods not only violates its agreements and detracts from the general user experience, but violates its intellectual property rights under the Copyright Act.
DMCA, Copyright, and Mods
So what is the “fair use” right modders claim when defending against this kind of legal action? First we need to take a closer look at the DMCA, particularly the above referenced §1201, which covers the concept of technological circumvention—in other words, getting around safeguards to copyrighted material.
There are several features to this rule, but the ones we need to pay attention to for most disputes between developers and modders concern the two main functions of the act: §1201(a) prevents circumventing technology that controls access to protected works and distributing those circumvention tools, while §1201(b) more generally covers circumventing technology that protects the specific rights of the copyright owner (e.g., the right to copy, distribute and modify the work). I say “generally” because (b) might be broad enough to cover circumventing game features like anti-hacking and anti-botting tools.
The “fair use” claim also comes from an exception in §1201, namely §1201(f). This provides a specific exemption to the general prohibition against anti-circumvention for reverse engineering solely to identify and analyze elements of the program necessary to achieve interoperability with a program you have created, such as an emulator, engine, operating system or platform.
Put in plain English, reverse engineering is okay if: (a) you own a legal copy of the program you’re reverse engineering; (b) you are only doing it to identify and analyze those components necessary to make your independently created program interoperable with the reverse engineered program; (c) you’re doing it because there’s no other way to make it interoperable with other programs (information isn’t readily available, e.g. through readily available modding tools); and (d) doing so won’t otherwise violate a copyright owner’s rights.
In Blizzard’s case against bnetd.org, the Eighth Circuit found that the defendant’s reverse engineering constituted infringement. The court’s logic rested in the fact that the bnetd.org emulator didn’t verify CD Keys to ensure users owned a valid, legal copy of the game, thus allowing unauthorized copies to be played on its emulator. Furthermore, the defendants waived whatever fair use claim they had to lawfully reverse engineer the game when they agreed to the EULA. The real kicker is that you can’t not accept the EULA, because the exemption only applies if you have a valid license to the source material — failing to accept the EULA means any use is a violation of copyright.
But it’s hard to apply Blizzard’s earlier lawsuit in light of its more recent case, as the Bossland suit was litigated in Germany. To some extent, components of the DMCA, including the anti-circumvention measures and reverse engineering exception, are reflected in the laws of those countries that are signatories to the Berne Convention (the treaty among countries that covers things like intellectual property rights, which includes Germany).
Bossland definitely raised lawful reverse engineering as a defense. However, the German court determined that Bossland’s bots were considered “anti-competitive,” which suggests the German court at least in part shared some of the same concerns as the Eighth Circuit.
A discussion on fair use under the Copyright Act and what qualifies as fair use rightfully deserves its own coverage, so I won’t spend much time on it here. However, it’s important to remember that “fair use” is an absolute pain in the rear to litigate because it is intentionally vague. It has to be, because it’s supposed to be applied on a case-by-case basis. This means legal precedent on fair use can be unhelpful at best, and contradictory at worst.
If anyone says something is “clearly” a case of fair use, be very skeptical, and understand that the courts rarely see this as a clear issue at all.
EULAs and the Reverse Engineering Restrictive Covenant
The biggest barrier to the “reverse engineering” defense arises in the form of the agreement you accept when you purchase or download a game. That’s right: the End User License Agreement. This is actually far more straightforward than discussing the law itself.
Despite what most people want to believe, and as pointed out by the Eighth Circuit above, you actually can waive your right to fair use by agreeing to the EULA.
But what’s even more interesting in the age of digital sales and distribution is the concept of Games as a Service, which in turn brings to question the applicability of other rules like the First Sale Doctrine.
Typically when you purchase a product, reverse engineering it to make it operable with your own emulator should, theoretically, be legal under something like the first sale, right? We just walked through that exemption to §1201. But when you take into account a license model for games, where users are given access to a game instead of a physical copy, that doctrine can arguably be thrown out the door. Your access to the game is conditioned on your continued compliance with the EULA, or license. Use in violation of the license is technically infringing.
And a prohibition against reverse engineering is pretty much the standard. Take, for example, the Defender’s Quest EULA (and I can, because I drafted it). You’ll understand why this EULA is particularly helpful in a moment:
“You may not modify, distribute, transmit, display, perform, reproduce (except for one archival and backup copy as permitted by applicable laws), publish, license, create derivative works from, adapt, translate, sublicense, auction, rent, lease or sell all or any part of the Game … In addition, you may not reverse engineer, decompile, or disassemble any part of the Game …
What this means:
...selling or giving away the Game isn’t allowed. Additionally, reverse engineering or using/adapting any part of the Game’s code or other content for commercial or redistribution purposes isn’t permitted…”
I include a “What this Means” section for every provision of almost every EULA I draft (see? Helpful! I don’t need to paraphrase myself!). My logic for doing this is that there’s no point in having an agreement if one or both parties aren’t clear on the intent.
But this example does provide a clear and direct prohibition against reverse engineering, and I included it in this EULA because my developers want to protect the commercial viability, integrity and balance of gameplay. It’s massively problematic if someone creates, say, a cheat version of the game, or a version that’s operable on an emulator that doesn’t require a Steam key or otherwise uses reverse engineering to produce a subpar rip-off. I stand by that prohibition even if some find it unfair or against the interests of interoperability and fair use.
So what happens when a developer like Level Up Labs wants to support the modding community? How do we reconcile protecting IP with effectively allowing strangers to change it?
Modding and EULAs
Fortunately, in what is a rapidly growing trend in the industry, the folks over at Level Up Labs have been in favor of modding from day 1. Lars and his team provide modding tools so you can tweak the user experience. So how did we handle this in the context of the game license? We created an exception to the general rule against modifying the game under the EULA, which you probably noticed in the selected language above.
So long as you use the provided tools, you can customize certain aspects of the gameplay, balance, equipment, and assets as you so desire:
We may make available, or have others make available, the Defender's Quest Software Development Kit ("SDK") Source Engine, or other tools for player modification purposes. These tools are considered Game Assets and are in and of themselves subject to the same licensing restrictions set forth in this Agreement, provided the following: Players may use the SDK or other modding tools provided by us or authorized by us solely for the purpose of creating modifications to and derivative works of the Game. Unless otherwise provided in this EULA, you may use the SDK and modding tools for non-commercial purposes, and solely to develop a modified version of Defender's Quest compatible with the lawfully purchased and licensed original source engine of the Game ("Mod"), or to create derivative works of the Game's content (such as new levels, in-game items, and audio-visual inclusions) that are also solely compatible with a legally purchased and licensed version of the original Game ("Derivative Works"). Except as otherwise set forth in this EULA, you may (i) reproduce and distribute the Mods and in object code form solely to licensed end users of the Game, and (ii) reproduce and distribute Derivative Works in object code form, solely to licensed end users of the Game. Any distribution of either Mods or Derivative works is wholly contingent upon the releases being available to players without charge and on a non-commercial basis. You are prohibited from reproducing or distributing the modified version of the Game-you may only distribute the object code of the Mods or Derivative Works.
What this means:
We want you to have fun with the game and we want to give players the opportunity to make the game even better. To do that we're prepared to use modding tools like those available through the Valve Steam Workshop platform so you can create new levels, characters, and items for Defender's Quest. We also want you to make those mods available to other players who have purchased the game. However, since we own the game and provide the tools you'll be using, we can't allow you to make a profit from those mods. We also can't allow you to release or distribute modifications that are functional on un-licensed or pirated versions of the game. You can distribute them for free through Steam Workshop or similar platforms to those who have lawfully purchased the Game, but you cannot reproduce or distribute the modified version of the Game or any part of the original work. Mods may not be used to enable the distribution of un-licensed or pirated versions of the game.
I apologize for the lengthy quote, but I want to show you the justification and logic behind (a) supporting the modding community while also (b) protecting the developer’s IP. And this is important, because developers like Level Up Labs aren’t doing this as a hobby. This is their business. Their main business asset is their IP. This is why we go so far to make it clear that the primary cause for concern is piracy, or providing a means for players to play unlicensed or unauthorized versions of the game.
Some modding tools may only allow you to replace art assets and GUI features, while other developers offer tools with sufficient flexibility to change game balance and rule sets completely. Some may even permit commercial sale of your mod. Those decisions usually comes down to whether or not introducing too much flexibility will lead to game-breaking mechanics that wreck the integrity and fairness of the game, and whether commercialized mods will lead to cannibalizing your market.
So the middle ground developers have found means providing tools for modding and setting some ground rules for how those mods are created and distributed. This also gives developers the freedom to determine what, exactly, players can modify. It’s this middle ground that allows Blizzard to protect itself by taking some people to court while allowing so many of us to heavily mod World of Warcraft.
Conclusion
Many of the developers I work with love their modding community. That community represents their fans. More to the point, for many developers it’s literally where they came from. They want you to find new and creative ways to enjoy their game, because doing so benefits everyone in the long run.
But limits are important, too. There are risks to making your game more “open source.” especially considering the work developers put into creating game balance and a sense of fairness.
A huge company like Blizzard has the resources to use copyright law in a way we can’t and won’t see in analog games. Blizzard can protect the rules, fairness and integrity of its game through the DMCA.
But others have to rely on the good faith of their modding community and their own good sense in what to permit. The objective of all developers, however, is obvious. They want their game to be fun and relevant for as long as possible.
That has been Blizzard’s argument all along.
Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.