Are so-called private servers “illegal”?

Recently, the GVU made headlines in the scene of private server operators, those who offer game servers outside the original provider, for online games.

The GVU, under the auspices of the Heidelberg public prosecutor’s office, searched the private residences of several people on the morning of September 14 on suspicion of operating two P-servers called for the MMORPG “Metin 2”, on which several 100,000 registered players were active. The defendants are accused of both illegally modifying the game for their own purposes and maintaining ongoing game operations on the servers. The associated websites were used to attract potential customers/players and enable them to enter the game.

The operators generated six-figure revenues by offering so-called in-game purchases analogous to the original game. For example, players could improve their combat strength by buying additional weapons, shields, etc. (so-called items). For this purpose, means of payment for the game (coins) could be purchased in exchange for real money (euros). The coins could be used to buy better armor or stronger swords in the game, for example. For example, on one of the servers (Cyperia) 270 of these items were available for purchase at prices ranging from 250 to 17,500 coins. The items greatly increased the combat power of one’s avatar (character), allowing for much faster advancement to the next higher game levels. At Cyperia, for example, 10 euros had to be paid in order to get 10,000 coins credited. For the most expensive items, but also the most effective in virtual combat, such as “Dragon God Shield” or “Sphinx Shield”, 17,500 coins, or 17.50 euros, had to be paid.

In order to obtain further evidence, the public prosecutor’s office confiscated computers, hard drives and various other storage media. Evaluations by the authorities on the nature, extent and sources of in-game purchases have been initiated. Corresponding investigations are ongoing.

Now the question arises: Is operating a P-Server illegal? By no means can this be stated so simply. And if you go by the GVU’s press release, they are not as sure as they claim either. The GVU itself does not even agree whether P-Server should stand for private server or for piracy server. I already think that these two words are a world of difference.

Actually, in most cases, the questions of whether operating a P-Server is illegal can be boiled down to questions of copyright law. If code, graphics or the like of the game developer or the game operator are used in the development of the server, there is a greatly increased probability of copyright infringement. If this server is then also operated commercially, as in the current case, one is quickly in the area of commercial copyright infringement and thus definitely in the area of responsibility of public prosecutors. Of course, problems of detail quickly arise here, and questions of territoriality (i.e. where was any copyright infringement committed, where does it have an impact, etc.) also arise with the way operator teams often organize themselves over the Internet today.

• If no code components are used, there is no copyright infringement. It is true that in certain cases the problem may arise as to whether interfaces and database structures are protected by copyright. However, this is often not likely to be the case and usually cannot be answered without a careful expert opinion.
• Copyright infringement, on the other hand, occurs when the so-called client, i.e. the manufacturer’s original software, is modified in order to function with the P-Server and this modified version is then also offered for download.
• It is not so clear, however, if only a patch for the client is offered (which itself must not contain any code of the client, of course) and the modification is done by the individual users. Then, under certain circumstances, the individual users could commit copyright infringement, but not the provider of the P-Server or the patch. The then ultimately only conceivable incitement to copyright infringement is subject to numerous other legal problems.
• In the case of the patch variant, issues of competition law may come into play, for example due to conceivable “obstruction” or “inducement to breach of contract”. Here too, however, there are numerous further problems, most of which have not yet been clarified by the highest courts. Moreover, we are then no longer in the realm of criminal law.

In summary, it can be said that even in the operation of P servers, in many cases there is no black and white, numerous crucial legal issues are disputed and unresolved and, as so often, it depends on many details of the facts. In case of doubt, you should obtain information from a knowledgeable lawyer beforehand