(This post was contributed by Kaylee Sauvey, a rising 3L at the Fowler School of Law and intern for Roger Quiles, Esq.)
Enforcement of copyright law is a very dense and subjective process, as seen in the Blizzard/Valve v. Lilith/uCool case, which is rooted in ownership of rights to the mod of Warcraft III called “Defense of the Ancients,” (“DotA”). In brief, teenage developer Eul created this mod and may have released his ownership of it on an online forum. He later sold his rights to Valve. DotA appeared to have been the basis several other popular mods, the rights of which were also sold to Valve and Blizzard by their “owners,” and eventually, two unlicensed smartphone apps were released by Lilith and uCool. One of the main issues in this case is whether the rights acquired by Valve and Blizzard are valid if the release of ownership was also valid.
Relevant Copyright Law
A copyright is created at the moment someone fixes something creative in tangible form. The second you take that picture or write down those song lyrics, you have a valid copyright. For example, as soon as you take a photo, you have an exclusive right to Photoshop, publish, sell copies of it, etc. Let’s say you Photoshop it and then save a copy. You have just created a derivative work. Someone sees your original and decides to Photoshop it and then publishes it as their own. While this is also a derivative work, it may be an infringement on your copyright because you hold the exclusive right to use your original. If, however, you no longer wanted to own the rights to your photo, you could abandon the copyright and anyone could use it without asking your permission; this requires “some overt act indicating an intention to abandon.”
Now let’s take a look at the Blizzard case.
2002: Blizzard releases “Warcraft III: Reign of Chaos,” which included the development program called “World Editor” for creating settings and other content to modify the game, but restricted use to non-commercial uses in its End User License Agreement (“EULA”). The EULA did not ensure that the rights to all intellectual property created using the World Editor would be retained by Blizzard. Eul developed DotA using the World Editor and then locked the mod to retain creative control.
2003: DotA: Allstars is created by a third party and the mod is not locked. Guinsoo builds off of Allstars and locks the mod.
2004: On September 23, Eul posts the following message on a gaming community forum:
“from this point forward, DotA is now open source. Whoever wishes to release a version of DotA may without my consent, I just ask for a nod in the credits to your map.”
2005: Guinsoo quits and Icefrog is enlisted to work on DotA.
2006: Icefrog is hired by S2 Games as a designer for “Heroes of Newerth.” Initially, Icefrog retains his intellectual property rights to his contributions to Heroes, but S2 later changes his contract to retain all rights.
2010: Icefrog and Eul sell their rights in DotA and Allstars to Valve. Guinsoo sells his rights in DotA and Allstars to Riot Games, which then sells them to Blizzard in 2011.
2013: Valve releases Dota 2.
2014: Lilith releases “DotA Legends” an app based on DotA. Six months later, uCool releases “Heroes Charge” – a similar app.
2015: Blizzard and Valve sue uCool and Lilith for copyright infringement.
Commercial Use? Open Source? Who Owns the Rights?
The second issue is whether Eul’s forum post was an actual abandonment of any rights to DotA or if the addition of his request to credit him would be considered a retention of some rights. If DotA is actually open source material, the case is strongly in favor of Lilith and uCool. If, however, Eul did retain some rights, the case is stronger for Eul that he had some rights to sell to Valve and Valve may actually own the rights to DotA.
What This Means for Game Developers
This problem could have been solved in favor of Blizzard at the outset if they had included a provision in their EULA for the World Editor in which they retained the intellectual property rights to any content created using the World Editor. In the aftermath of this lawsuit, programs like the World Editor, which may produce similar user-generated content, will likely include a provision retaining these rights for the developing company. This would make any content created by any user the automatic intellectual property of the development company and eliminate any legitimate, subsequent claims of authorship by other parties.
If the jury finds that Eul’s “open source” statement is actually an effective abandonment of his rights, despite his request for credit, then independent developers such as Eul would be encouraged to keep their mods locked and actively maintain them to strengthen their claim of ownership. Any permission given openly for use or distribution would also be deemed an abandonment of ownership. This may result in more mods being sold to other users for a price instead of encouraging free use and distribution.
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