This is an archive post of a blog article from before 2018, from the website www.rahaertel.com. The set date does not correspond to the date of the original post

A complete summary of the legal dispute between Blizzard and Bossland is hardly possible, as a whole folder of documents has already been accumulated after the lawsuit and the statement of defense. Nevertheless, here is a short summary.

The Blizzard Entertainment Inc. filed a lawsuit with the Hamburg Regional Court on July 11, 2011 against Bossland GmbH and its managing director for unfair competition, trademark infringement, and copyright infringement. The bone of contention are the bots “Honorbuddy” and “Gatherbuddy” programmed by Bossland GmbH exclusively for use in World of Warcraft. These bots, according to Blizzard Entertainment Inc. are prohibited cheatbots, which may not be used by WoW users according to section III. 2. of the WoW Terms of Use.

Blizzard Entertainment Inc. makes the following 6 points in its favor:

1. by programming and offering for sale the bots “Honorbuddy” and “Gather-buddy”, Bossland GmbH induces WoW users to breach the contract.

2. the “cheatbots” would severely interfere with the game system of WoW, because individual players would gain an unfair advantage over honest players.

3. through the “cheatbots” WoW users would have “played through” the game faster and thus the subscription time is shortened.

4. furthermore, the “cheatbots” would be programmed in such a way that they would bypass WoW’s own protection mechanism against unfair software “wardens”.

5. that Bossland GmbH infringes the rights granted by Blizzard Entertainment Inc. protected brand names “World of Warcraft” and “WoW” by using their these names for its own products.

6. last but not least, the “cheatbots” would infringe the copyright of Blizzard Entertainment Inc. to their game “World of Warcraft” because the caching in the RAM of each player’s PC creates copies of the game that infringe copyright.

Although these copyright infringements were originally committed with the consent of the creator of the bots, Blizzard Entertainment Inc. As the programmer of the bots, Bossland GmbH is an accomplice or at least a participant in this process in the criminal law sense. Considering that Blizzard Entertainment Inc. is only the developer of World of Warcraft, while the parent company Activision Blizzard Inc. is the publisher of WoW, one must already have doubts about the right to sue of the subsidiary Blizzard Entertainment Inc. Although Blizzard Entertainment Inc. as the developer (author) of the work “computer game” initially holds all rights to its work, it can assign or sell these rights, e.g. to a publisher who then produces the work in series. If Activision Blizzard Inc. as the publisher had not been assigned the rights to the work by Blizzard Entertainment Inc. as the developer, Activision Blizzard Inc. would have committed an unlawful reproduction of the work against Blizzard Entertainment Inc. by each game in the store.

In addition, Activision Blizzard Inc. on its own homepage WoW as its own product. But only to the individual points:

1. inducing breach of contract Blizzard invokes the validity of its WoW terms of use. These Terms of Use have been incorporated by Blizzard into the contract between itself and the End User (Player) in the form of TOS. According to § 305 para. 2 No. 2 BGB, however, such GTC can only have been effectively included in the contract if the other party already had the opportunity to become aware of them prior to the conclusion of the contract. Here, the first question is at what point the player with Blizzard Entertainment Inc. concludes a contract. There are basically 2 options here: when purchasing the access code in the store or with the registration on the website of WoW. From Blizzard’s point of view, the contract with the player would only have to be concluded when the player registers on the website, because the WoW terms of use are only listed there. If, on the other hand, one assumes that the contract was concluded when the access code was purchased, then the purchaser could not have become aware of the GTC at that time. Consequently, the GTC would not have become part of the contracts between Blizzard and the players at all, so the use of cheats would no longer be excluded by the WoW terms of use. Thus, by using the bots, players would not be violating the contract with Blizzard Entertainment Inc. Consequently, the production and sale of the bots by Bossland GmbH can no longer be an inducement to breach the contract.

The assumption that the contract has already been made when the access code is purchased in the store is supported by the fact that the purchase of the access code is already subject to a charge, i.e. the player already provides at least part of the contractually owed service to Blizzard, or the retailer, by paying the money. Since presumably none of the buyers wanted to give Blizzard the money, Blizzard, for its part, must at least allow a performance obligation to arise, to which the player has a claim with the purchase of the access code. What other service than the use of the access code by the player is even conceivable? Apart from the packaging material, the player has also not obtained anything else at the time of purchase that is a service of Blizzard Entertainment Inc. could represent. However, none of the players will have bought the access code because of the colorful packaging. Blizzard’s obligation to perform cannot include a performance that would have been possible before the acquisition of the access code (e.g. access to the Internet site, which is in fact possible for anyone even without a code). However, if with the purchase of the access code on the part of Blizzard Entertainment Inc. the obligation to perform, i.e. the use of the access code on the WoW Internet site, has already arisen, then all necessary prerequisites for a contractual relationship are present (contracting parties, subject matter of the contract and price).

On the other hand, there is no reason to assume that the contract will only be concluded when the user registers on the website. Thus, the GTC have not been effectively incorporated into the contracts. Even the notice on the game’s packaging that it may only be used after agreeing to the GTC does not include the clauses of the GTC, so that at the time of concluding the contract the buyer is only aware of the existence of GTC, not of their content. However, the entire law on general terms and conditions is based on the assumption that the other party to the contract must be aware of all clauses of a contract, i.e. also each individual general terms and conditions, or should have been aware of them. A need to know can only exist if the lack of knowledge was not caused by gross negligence. The ignorance is never grossly negligent, if knowledge of the GTC by the user is impeded. In this case, the product and the terms and conditions are not available at the same time, so the player must merge the product and the terms and conditions themselves before taking note of them. However, this is the task of the user of the GTC and not the buyer.

2. sensitive intervention in the game system Cheat is the possibility of influencing the game in a computer game itself or through external programs in a way that does not correspond to the usual course of the game. Such a cheat represents a sensitive intervention in the game system. When using cheats, basic rules of the game are overridden. The bots developed by Bossland GmbH allow the player to have the bot perform individual actions automatically. Here the bot is limited to actions that the player could have done himself, e.g. collecting herbs, ores or clouds.

The bot does not provide the player with functions that would not be available to other players, nor does it provide functions that would normally only be available against payment. It only gives the player the option to have relatively inconsequential actions performed automatically. The bot does not find or collect the individual items any faster than a normal player. Rather, it gives players who have little time to spend playing WoW the chance to spend that little (and also expensively paid) time on exciting adventures instead of boring item hunting. Thus, the bots also do not interfere sensitively with the game system. In addition, the use of the multiboxing function (which the bots of Bosland GmbH cannot do right now) or special Logitech devices that actually give a player an advantage over other players is prohibited by Blizzard Entertainment Inc. have just not been objected to (or in some cases even advertised on their own homepage). Where does Blizzard Entertainment Inc. there a clear boundary?

3. shorter subscription time This assumes that WoW has a conditional linear progression, at the end of which the player has reached a goal. WoW includes a very large number of different adventures. Some of these adventures are not even manageable for the single player, he needs the support of other players (unless he uses the multiboxing function, an advantage that is not forbidden, as I said). In addition, a huge area has also been created by the landscape that offers the player close to always new possibilities. Therefore, the game has no real ending at all.

Even if a player should have experienced all the adventures and visited every nook and cranny of the vast lands, there is still the “end content” that has become the biggest draw for many players. Through the bots of Bossland GmbH, which are technically not able to participate themselves, the players can have the necessary equipment collected, so that this rather boring part of the game can be bridged. The individual player’s enjoyment of the game is thus increased and it takes longer for the game to lose its appeal for him. Bossland GmbH bots therefore do not shorten subscription times.

4. circumvention of “Warden” On the one hand, Blizzard Entertainment Inc. has, after numerous protests by privacy activists, on its own initiative severely restricted the functions of “Warden”, so that “Warden” no longer recognizes software other than that used by WoW, with a few exceptions. Secondly, “Warden” is not software that can prevent copying within the meaning of Section 95a of the German Copyright Act (UrhG).

5. use of the names “World of Warcraft” and “WoW” Bossland GmbH uses the names “World of Warcraft” and “WoW” only to describe its products. Since these are produced exclusively for use in connection with the game “World of Warcraft”, the exception of Article 12 c) of Council Regulation (EC) No. 207/2009, according to which the protected trademark may be used as an indication of the intended purpose of the goods, applies in this respect. In particular, the bots do not bear any of the protected designations in their names, nor are they to be found on a website marked with the designations. Anyone who visits the websites with the same names as the bots can also easily see that they are not created by Blizzard Entertainment Inc. are. In this respect, there is also no likelihood of confusion.

6. copyright infringements On the one hand, the general terms and conditions necessary for this claim have not been effectively included in the contract (see above), and on the other hand, according to § 69f UrhG, the author can only take action against the owner or possessor of the unlawful reproduction. However, since the offending copies are located on the RAMs of the individual players’ PCs, Bossland GmbH has at no time been the owner or possessor of the copies. These reproductions were also not made at the instigation of Bossland GmbH, but are subject to programming by Blizzard Entertainment Inc. itself. Conclusion: The lawsuit filed by Blizzard Entertainment Inc. is unfounded in our opinion. In particular, the accusation that the bots would reduce the revenues of Blizzard Entertainment Inc. are unfounded. Although the bots are aimed at the same clientele, they are not in competition with the game because Bossland GmbH’s bots can only be used in connection with the game “World of Warcraft”. Bossland GmbH therefore has no interest in Blizzard Entertainment Inc. any harm, after all, it can only gain its customers from active “World of Warcraft” players. It is therefore much more interested in gaining Blizzard Entertainment Inc. in the “World of Warcraft” area, because this increases their own sales market. This is basically an economic win-win situation. Thus, even if injunctive relief is available to Blizzard Entertainment Inc. would be accepted by the court, there is still a lack of mercantile damage that Blizzard Entertainment Inc. should have been inflicted by Bossland GmbH. The Blizzard Entertainment Inc. will damage itself with this lawsuit in any case.

Either it incurs costs for a lost lawsuit or it loses a supporter in the still economically interesting sales market of online role-playing.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.