Blizzard: StarCraft II tournaments are copyright infringement
Blizzard: StarCraft II tournaments are copyright infringement
Blizzard: StarCraft II tournaments are copyright infringement

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    Blizzard Entertainment has a history of making popular, well-regarded games, such as those in their long-running WarCraft, Diablo, and StarCraft franchises, and even games like The Lost Vikings back on Super NES. But Blizzard also has a recent history of expounding a rather broad theory of copyright liability, one which gives copyright owners wide discretion to unilaterally decide which of their customers’ should count as copyright infringement. The upcoming release of the much-anticipated StarCraft II, along with a recent change to the Terms of Use for, Blizzard’s online multiplayer service, has some people worried. After a brief review of Blizzard’s approach to copyright, I’ll describe how they might apply it to StarCraft II.

    Blizzard on Copyright 

    Some of Blizzard’s ideas on copyright are, to put it charitably, untenable. For example, the Terms of Use state that the “Game clients and the Service (including without limitation any titles, . . . character names, . . . catch phrases, concepts, . . . methods of operation, moral rights, . . . ) are copyrighted works owned by Blizzard and its licensors.” Why’s that untenable? For starters, the Copyright Act specifically provides that methods of operation and concepts aren’t copyrightable. Names, titles, and catchphrases aren’t protected by copyright either because they’re not considered “works of authorship”. As for moral rights, in the US at least they exist independently of copyright, they only apply to certain unique or limited-edition works of art, not to computer games that sell millions of copies–and how can a “right” be a “copyrighted work” anyway?

    But that’s not the truly worrisome part. As Blizzard would have it, in a case currently on appeal in the Ninth Circuit, when you pay cash for a copy of one of their games from a local retailer, you haven’t actually bought it. You don’t own that copy; it remains Blizzard’s property and it’s only with their explicit permission that you can install or play the game. So if you violate one of the provisions of the game’s “end-user license agreement” (“EULA”) or “terms of use” (“TOU”) and keep on playing, you’re liable not only for breach of contract in breaking the agreement, but also for copyright infringement.

    Breach of contract becomes copyright infringement, they argue, because you don’t “own” the copy of the game you bought. If you don’t own the copy, section 117 of the Copyright Act, which permits “owners” of software to actually run that software (i.e., copy it to RAM), doesn’t apply. And if section 117 doesn’t apply, you need permission from the copyright holder to make the RAM copies necessary to play the game. Of course, Blizzard, like many other software companies, places conditions on its grant of permission: do something they don’t like, and your permission is revoked, and you’re now an infringer if you keep playing. Every time you load their program from that point on, they say, you’re reproducing a copyrighted work without permission or a statutory exemption.

    The case that’s on appeal right now involves World of WarCraft (“WoW”), Blizzard’s immensely popular massively-multiplayer online RPG, and a program called Glider, which allows WoW players to automate certain tedious and repetitive aspects of the game. The use of such “automation software” is explicitly forbidden by WoW’s EULA–in Blizzard’s opinion, that means that not only can they ban you from their online servers (for breaking the rules), but you’re a copyright infringer as well. Secondary liability rules let them go after the people who made and sold Glider, suing them for the actions of their users. The District of Arizona agreed with Blizzard, but our fingers are crossed that it’ll be reversed on appeal.

    Perhaps the folks behind Glider aren’t the most sympathetic figures–cheating, after all, is bad–but the issues at stake in that case drive much deeper. Blizzard’s ideas about copyright infringement involve much more than how people grind for reputation or farm Borean leather scraps. To see why, consider StarCraft II, due to be released tomorrow.

    StarCraft and Multiplayer Gaming

    StarCraft II is the sequel to an immensely popular game that was released in 1998 and is still being played twelve years later–an eternity in the fast-paced world of computer games. Particularly in South Korea, StarCraft has become a veritable institution: there is a vibrant professional market, complete with televised matches, corporate sponsorships for teams, and cheating scandals; and the franchise is popular enough that characters even show up on bags of Doritos.

    But South Korea isn’t the only place where the game lives on, and professionals aren’t the only ones playing it. Both here in America and internationally, amateur StarCraft competition is, if anything, growing. Students from 74 colleges and universities in the US and Canada have fielded teams for the Collegiate Star League founded just last year, and Michigan State won the recent “Big 10” tournament. Meanwhile, a successful exhibition match between Princeton University and Beijing’s Tsinghua University led to the creation of an international intercollegiate StarCraft cup, which last year featured eight schools representing four countries. Of course, intracollegiate competition is thriving as well. All over the world, people like you and me are still playing StarCraft simply because it’s fun. And some of those people happen to be naturally competitive.

    In any activity where skill is involved, people enjoy trying to best one another. In that sense, StarCraft is no different from chess, ultimate frisbee, or nine-ball. But StarCraft is very different from those games in another sense: it’s copyrighted by Blizzard.

    And while StarCraft and StarCraft II are similar in some ways–they’re both real-time strategy games, revolving around the interactions (read: wars) of the fictional Terran, Zerg, and Protoss factions–there are some major differences as well. One is that, for the sequel, Blizzard has asserted exclusive control over multiplayer gaming. Blizzard has announced that, in StarCraft II, all multi-player gaming will have to take place via Blizzard’s centralized “” matchmaking service. In the original StarCraft, in contrast, was just one option for multiplayer play. The ability to play over a local area network (LAN) made for trouble-free play against friends, rivals, and strangers in such environments as computer labs, dormitories, and cyber cafes. (Games run faster and more smoothly when data doesn’t need to travel to a far-off central server before going from one player to another.) Indeed, the original StarCraft even included the option of a “spawn” copy: you could install a special multiplayer-only version of the game that was actually incapable of joining and could only be operated on a LAN. These features greatly simplified multiplayer play–and multiplayer play is, after all, what spurred StarCraft’s growth into a worldwide phenomenon.

    Competition as Infringement

    So Blizzard wants everyone to play their game on their servers. So what? The big deal is that the Terms of Use state that it is a violation of the agreement–and an infringement of Blizzard’s copyright in the underlying game–to “use the Service for any ‘e-sports’ or group competition sponsored, promoted or facilitated by any commercial or non-profit entity without Blizzard’s prior written consent”.

    In my freshman dormitory, we had ongoing competitions in various games. Super Mario Kart, Super Smash Bros., Counter-Strike–you name it, we kept a running tally of who the current champion was. StarCraft was no different. Multiplayer games were a key part of the social fabric of our environment. And every game we played or impromptu competition that was contested, from StarCraft to the foosball table in the EE lab, was “facilitated by [a] non-profit entity”, namely the school that brought us together, housed us together, and provided us with a network that allowed lag-free gaming. If we’d been forced to use, with its current terms of service, then in Blizzard’s opinion each such competition would have given rise to copyright infringement liability for us and for our alma mater.

    Blizzard claims ownership of each and every copy of software it sells. It uses that claimed ownership to define permissible uses of that software, and says that breaking the rules puts you on the hook for thousands of dollars in statutory damages, rather than just getting you suspended or banned from the online service. Maybe the folks at Blizzard won’t go after their fans for running non-preapproved tournaments, but customers shouldn’t have to rely on their good grace. What if they change their minds? In a world where movie studios and record companies have considered it worthwhile to sue individuals for copyright infringement, then offer to settle for a few thousand dollars, it’s not outside the realm of possibility that Blizzard could decide to take the same approach. Even if they benevolently grant every request for permission to run a tournament, or magnanimously forbear from suing the organizers of impromptu college dorm competitions, they will still be exploiting the lurking, ever-present threat of statutory damages: a copyright holder can recover tens of thousands of dollars in an infringement case without even having to prove they suffered any harm.

    There’s speculation that the “‘e-sports or group competition” provision is Blizzard’s attempt to go after a piece of the lucrative Korean professional market–speculation fueled by a recent exclusive license agreement with one of Korea’s pro leagues. Presumably any pro-gaming league–or amateur league, or college club–that organized an unauthorized tournament would be subject to massive secondary liability for willfully inducing copyright infringement. And that’s certainly troubling. But as Sherwin wrote two years ago, when the District Court in the Glider case issued a partial summary judgment in Blizzard’s favor, in cases like these it’s not the secondary liability that’s the most worrisome, “it’s that ordinary users can be subject to the harsh statutory penalties of copyright infringement just for using a piece of software in a way that the copyright holder dislikes.”