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Theloras

Legal Ramifications of Running a Private Server 101

15 posts in this topic

A few years ago I looked into the legal ramifications of running a private WoW server, with a payshop and then donating the money to charity.

I had a lawyer draw up a legal finding to look into whether it was potentially viable for me to do as the money coming in would be donated to charity - this was his finding:

John,

What you are proposing to do would involve a clear breach of contract, a violation of Canadian copyright law, and likely trade-mark infringement. Your intention to direct the proceeds to a charity is of no consequence.

Penalties for copyright infringement include civil and criminal sanctions pursuant to the Copyright Act. Breach of contract and trade-mark infringement would expose you to claims for damages and possibly injunctive relief. Though we cannot advise on US law, we suspect that your proposed actions may also expose you to civil and criminal sanctions in the United States and we are aware of similar circumstances in which foreign judgements for copyright infringement were successfully enforced in Canada.

Discussion

You asked that we consider your intention to host Blizzard Entertainment, Inc.’s (“Blizzard”) World of Warcraft ("WOW") on a private server and you detailed as follows: (a) users will be directed to reconfigure the WOW Game Client to connect to a private server rather than connect to Blizzard's servers; (b) content will be copied; (c) missing functionality will be reverse engineered; (d) the game will be promoted to prospective players as a WOW private server; and (e) proceeds from the venture will be directed to a charity.

Contractual Prohibitions

The WOW Terms of Service (“TOS”) and WOW End User License Agreement (“EULA”) expressly prohibit copying, reverse engineering, and any establishment or use of private servers. For your reference the TOS includes the following:

You agree that you will not, under any circumstances: …

E. host, provide or develop matchmaking services for the Game or the Service, or intercept, emulate or redirect the communication protocols used by Blizzard in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;

F. facilitate, create or maintain any unauthorized connection to the Game or the Service, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Service; and (b) any connection using programs or tools not expressly approved by Blizzard;…

The EULA includes the following:

You agree that you will not, under any circumstances:

A. in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on the Game; provided, however, that you may make one (1) copy of the Game Client and the manuals that accompany it for archival purposes only;…

F. host, provide or develop matchmaking services for the Game or intercept, emulate or redirect the communication protocols used by Blizzard in any way, for any purpose, including without limitation unauthorized play over the internet, network play, or as part of content aggregation networks;

G. facilitate, create or maintain any unauthorized connection to the Game or the Service, including without limitation (a) any connection to any unauthorized server that emulates, or attempts to emulate, the Service; and (b) any connection using programs or tools not expressly approved by Blizzard;…

Blizzard even takes the precaution of addressing emulation servers specifically in its World of Warcraft "Legal Facts" Q & A in which it states:

Blizzard Entertainment® does not support or condone network play of its games anywhere but Battle.net®. Specifically, you may not host or provide matchmaking services for any of our games or emulate or redirect the communication protocols used by Blizzard Entertainment® in the network feature of its games, through protocol emulation, tunneling, modifying or adding components to the game(s), use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks without the prior written consent of Blizzard Entertainment®

Trade-mark Infringement

World of Warcraft is a registered trademark of Blizzard. Thus, any use of the trade-mark, or a confusingly similar trade-mark, in association with the sale, distribution or advertising of wares and services, would amount to a breach of the Trade-marks Act. Your plans to market the private server as a World of Warcraft private server would very likely amount to trade-mark infringement.

Copyright Infringement

To establish a claim of copyright infringement a plaintiff must prove that the defendant has taken a substantial part of a copyrighted work and that the copyrighted work was the source from which the allegedly infringing work was derived. There seems no doubt that your plans involve the reproduction of a substantial portion of WOW and that WOW is the source from which you will derive the infringing work.

As mentioned, penalties for copyright infringement include civil and criminal sanctions. While we see no need to exhaustively review the remedies which may be available to Blizzard pursuant to a breach of copyright under Canadian law, we thought it may be helpful to conclude our analysis by drawing your attention to section 42 of the Copyright Act which provides as follows with respect to criminal sanctions:

Every person who knowingly

(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,

(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,

(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,

(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or

(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists

is guilty of an offence and liable

(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or

(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

We hope this analysis has been helpful. Should you wish to discuss any of the above points further please don’t hesitate to contact me.

Regards,

Chris

TLDR - doesn't matter if a private server makes money or not - it's still a trademark/copyright violation and the person(s) running it are liable for both civil and criminal penalties.

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Wow. How terrible.

Though, has anyone really thought hosting a private server should be okay unless you make money, from the law point of view?

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40 minutes ago, Oakenlix said:

Wow. How terrible.

Though, has anyone really thought hosting a private server should be okay unless you make money, from the law point of view?

Quite a lot of people actually think that if you dont accept donations or have a payshop then you would be in the clear - I had originally thought that if we accepted donations or had a payshop but then donated said funds to charity that I would be in the clear.

Unfortunately, copyright and trademark infringement doesn't work that way and just the act of running the server violates said holdings by Blizzard.

As can be seen in the original private server shutdown by Blizzard of Alyson Reeves, operator of Scapegaming:

"The total award includes over $3 million in disgorged profits, $85.4 million in statutory damages and $64,000 in attorney's fees."

http://www.gamasutra.com/view/news/120740/Blizzard_Wins_88M_Judgment_Against_WoW_Private_Server_Owner.php

While she had a cash shop and Blizzard estimated her profits at $3 million, the bulk of the total monetary judgement against her was in statutory damages that Blizzard and their legal team most likely determined by:

(number of players on Scapegaming) x (nominal WoW sub fee of $15/month) x (total number of months Scapegaming operated)

Or at least something to that effect.

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It's actually not so black and white. Blizzard won a lawsuit in 2010  against Scapegaming but only for two reasons: 1)The emulator was a for profit site and, more importantly, 2) The defendant did not respond to the lawsuit resulting in a default judgement. When the defendant doesn't back away the outcome hasn't always been favorable for Blizzard:

http://massivelyop.com/2015/05/18/blizzard-loses-case-against-gold-seller/

Blizzard has no desire to defend their EULA in court. It costs them money. Furthermore the outcome isn't guaranteed. EULA's have been upheld in some cases and not in others. It depends a lot on the state and the individual case. Some have argued that bringing a case against a non-profit emulator running a version of a game no longer produced would result in a resounding loss for Blizzard. Others argue differently. One thing that can't be argued is that Blizzard doesn't want to go there. So they send a C&D (which anyone can do) and hope it satisfactorily intimidates the recipient.

We really have no idea whether there is anyone out there running a private server who's simply ignored a C&D and gone on about their business without anything further happening. No one running a private server would announce this since they have no desire to publicly tweak Blizzard's nose and force them into a corner and they don't want their players leaving. If I were a gambler I would bet there are at least one or two such cases.  But who knows.

As previously stated, this is legally muddy waters and changing all the time. 

https://www.theguardian.com/technology/2016/jul/21/digital-millennium-copyright-act-eff-supreme-court

" . . .If you buy something, it’s yours, and – you can modify, configure, or use it any way you’d like, even if the manufacturer would prefer that you didn’t. But the law forbids you from doing otherwise legal things if you have to tamper with the DRM to do them."

https://www.eff.org/victories?page=6

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11 hours ago, Theloras said:

While she had a cash shop and Blizzard estimated her profits at $3 million, the bulk of the total monetary judgement against her was in statutory damages that Blizzard and their legal team most likely determined by:

(number of players on Scapegaming) x (nominal WoW sub fee of $15/month) x (total number of months Scapegaming operated)

 

Two things about this cast though:

  • The defendant ignored the lawsuit resulting in a default judgement.
  • Blizzard hasn't seen a penny of this money.

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19 minutes ago, Pieper said:

Two things about this cast though:

  • The defendant ignored the lawsuit resulting in a default judgement.
  • Blizzard hasn't seen a penny of this money.

Yes, I was aware of both of those since she skipped out of the country before the trial began.

Unfortunately for her though is that she can never return to the US as she is now a fugitive.

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28 minutes ago, Pieper said:

It's actually not so black and white. Blizzard won a lawsuit in 2010  against Scapegaming but only for two reasons: 1)The emulator was a for profit site and, more importantly, 2) The defendant did not respond to the lawsuit resulting in a default judgement. When the defendant doesn't back away the outcome hasn't always been favorable for Blizzard:

http://massivelyop.com/2015/05/18/blizzard-loses-case-against-gold-seller/

Blizzard has no desire to defend their EULA in court. It costs them money. Furthermore the outcome isn't guaranteed. EULA's have been upheld in some cases and not in others. It depends a lot on the state and the individual case. Some have argued that bringing a case against a non-profit emulator running a version of a game no longer produced would result in a resounding loss for Blizzard. Others argue differently. One thing that can't be argued is that Blizzard doesn't want to go there. So they send a C&D (which anyone can do) and hope it satisfactorily intimidates the recipient.

We really have no idea whether there is anyone out there running a private server who's simply ignored a C&D and gone on about their business without anything further happening. No one running a private server would announce this since they have no desire to publicly tweak Blizzard's nose and force them into a corner and they don't want their players leaving. If I were a gambler I would bet there are at least one or two such cases.  But who knows.

As previously stated, this is legally muddy waters and changing all the time. 

https://www.theguardian.com/technology/2016/jul/21/digital-millennium-copyright-act-eff-supreme-court

" . . .If you buy something, it’s yours, and – you can modify, configure, or use it any way you’d like, even if the manufacturer would prefer that you didn’t. But the law forbids you from doing otherwise legal things if you have to tamper with the DRM to do them."

https://www.eff.org/victories?page=6

The Library of Congress a few years back changed the rules and allowed abandoned games to be modified/emulated but specifically left out network/server based games out of their ruling so WoW is still covered by the DMCA alas.

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1 hour ago, Theloras said:

The Library of Congress a few years back changed the rules and allowed abandoned games to be modified/emulated but specifically left out network/server based games out of their ruling so WoW is still covered by the DMCA alas.

Well, yeah that's the thing. And while Blizzard puts all their expansions under the umbrella of World of Warcraft, one still can't go to Blizzard's server and play, for instance, The Burning Crusade. That game - the one millions of people bought and signed the EULA to play - just doesn't exist anymore. 

Blizzard would definitely win a case against someone emulating Legion. Scapegaming was running a current version of WoW when they filed a suit against them, after all. And because of this they were awarded a monetary judgement. But past versions of a game that Blizzard no longer facilitates access to or maintains or makes money off of (nor do they ever intend to) is another thing. 

 

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From a software perspective, there is nothing wrong with coding and hosting an emulator of any server software. This does, however, come with caveats.

Most of these stem from the draconian provisions of the DMCA. 

The first concerns bypassing authentication and protection mechanisms intended to ensure only licensed users are able to use the software or services. It can be argued that emulating any kind of username/password scheme qualifies for this provision. Blizzard requires all players to have a valid subscription, and uses the authentication mechanisms present in the game to establish that the users are licensed and authorised to use the software and services. The DMCA language leaves this very open to interpretation.

The second major concern is inducing infringement per the inducement rule (and the still pending Inducing Infringement of Copyright Act). For this to apply, the first party must directly cause third parties to violate copyright. While the standard is based on file sharing, it can most likely be applied here given that users MUST violate copyright simply to play the game. 

A lesser concern is the use of client data files in establishing the server - including the extraction of vmaps, mmaps, and dbc files. This would be a lot harder to prove since for the most part dbc files are simply tables of data and not usually considered protectable copy. The server itself does not use any of the textures, models, etc, from the client beyond the map data.

Finally there is direct infringement of copyright and trademark by the commonplace display of Blizzard property marks such as "World of Warcraft"(tm). 

Edit:

It should be noted that prosecuting any kind of suit is an expensive process involving discovery, depositions, subpoenas, and more. While it's easy to show that at least in some way private servers are violating copyright law, Blizzard-Activision are only going to step in when doing so meets the cost/reward threshold they require, OR where the infringement and not prosecuting it risks diluting their brand or mark, or weakens the protections of those marks. In general it's not worth their while to go after a small non-profit p-server when they don't know who is running it, or where the operators are beyond easy reach.

Edit 2:

It should also be noted that simply receiving a DMCA take down or C&D doesn't mean that the cited grounds can be proven to the satisfaction of the court, or that further legal action would be taken. Many legal documents such as EULA's contain unenforceable language and constraints that if challenged in court would be negated or disregarded. The threat of legal action is often used to discourage undesired activity even if that activity were factually legal. 

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I don't understand how anyone thinks even non profit or 0 donations taken just magically makes copyright infringement go away. There's simply 0 way of getting around it. Blizzard is under the assumption people are taking money from them by making these servers... spoiler to them... most of us would happily pay for them of live blizzard realms.

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8 minutes ago, Ickus said:

I don't understand how anyone thinks even non profit or 0 donations taken just magically makes copyright infringement go away. There's simply 0 way of getting around it. Blizzard is under the assumption people are taking money from them by making these servers... spoiler to them... most of us would happily pay for them of live blizzard realms.

Not everyone is a lawyer and quite frankly there is a great deal of misinformation out there which says,

"Hey, if you don't take in money you're ok to to host a WoW server..."

Which is why I posted the legal finding that I obtained here in this forum in order to clear the waters and to help others understand the legal implications.

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Oh I wasn't directing that toward you. It was really informative. I would imagine you'd just need a skeleton team to upkeep servers and charge a sub for them. I coulda worded it better but blizzard just pisses me off 

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9 minutes ago, Ickus said:

blizzard just pisses me off 

So say we all!

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On 7/25/2017 at 2:09 PM, Ickus said:

I don't understand how anyone thinks even non profit or 0 donations taken just magically makes copyright infringement go away.

It might help to clarify that the owner is "legit" in their desire to run the server without any possible external influence/support, but in the eyes of the US copyright law it doesn't matter. The real question is, what countries do not care much about US copyright law? If you host there, there's less chance they will ask your hosting provider to take you offline (although, I understand that the place that hosts Elysium is in France, and they seem to be fine /fingers crossed)
And if you are a US citizen, never tell anyone who you really are, unless you want to be in a world of sh!t.

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4 hours ago, mbee said:

It might help to clarify that the owner is "legit" in their desire to run the server without any possible external influence/support, but in the eyes of the US copyright law it doesn't matter. The real question is, what countries do not care much about US copyright law? If you host there, there's less chance they will ask your hosting provider to take you offline (although, I understand that the place that hosts Elysium is in France, and they seem to be fine /fingers crossed)
And if you are a US citizen, never tell anyone who you really are, unless you want to be in a world of sh!t.

Me being Canadian = I'm in the same boat as a US citizen...

So my partners and I decided not to pursue the project any further at the time given the fact that we would have become liable for serious civil and possible criminal penalties.

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