We interview MDY vs. Blizzard Attorney, Connie Mableson about Blizzard new formalized design and distribution guidelines for ad
We recently reported that Blizzard Entertainment has formalized design and distribution guidelines for addons. There were a number of changes, including the fact that developers can no longer sell their addons. Since that time a great majority of the community have voiced their concerns with these new changes, so we decided to talk with a lawyer who's well-versed in such things. Connie Mableson played a role in the now famous MDY vs. Blizzard case and she has some interesting theories about what Blizzard is intending to do now that third party addon authors cannot sell their creations. "Based on all the changes Blizzard is making, I believe the Blizzard business model is to "Monetize" UI Mods/add-ons by developing them in house and offering them for sale to players " said Connie. Unfortunately when we approached Blizzard about this theory, they had no comment.
ZAM: Hello Connie, thank you for taking some time away from your practice to answer our questions about some of the legalities involved in Blizzard's most recent addon policy changes. I understand you're something of a WoW player yourself!
Connie Mableson: Yes, I play WoW almost daily. Probably too much . I use add-ons particularly for raiding, keeping track of players in raid, and for DKP. Our guild's main raid leader has over 100 mods he uses from time to time.
ZAM: Let's start by talking about the new policy that was announced by Blizzard Entertainment on Friday. Coming from a legal standpoint, what do you think of the policy overall?
Connie: Blizz recently changed the TOU, adopted a revised UI Mods policy as it relates to developers, and changed the terms of its Battle.net site. Blizz has the right to make these changes from a contractual viewpoint. Azeroth is their world and they have the right to control what happens in it and to it.
ZAM: On what legal ground could Blizzard prosecute an addon author for violating a portion of the policy?
Connie: I recently represented Public Knowledge in an important lawsuit, MDY v. Blizzard. MDY developed an add-on called "Glider"-a leveling mod. The court held that MDY, as an add-on developer, violated the terms of the license agreement in the TOU/EULA. This violation resulted in MDY violating Blizz's copyright to the game program and its components. Now, the case is a bit more complicated than that, but the court found that a violation of the Blizzard license by a party not in a contractual relationship with Blizzard is a copyright violation. Damages for copyright infringement can be huge-potentially a lot larger than damages for a breach of a license agreement.
ZAM: You'd be hard pressed to find many players in the World of Warcraft community that openly support programs like Glider; however, you've stated that you're very concerned about the case by saying "A violation of a license agreement should not (and is not) a violation of copyright law." Can you explain what you mean and how it relates to the new policies for those of us without a law degree?
Connie: Sure. A license is a contract. Blizz allows players to use its game code (and related components) as long as the player abides by the restrictions in the license agreement. The license is contained in the TOU/EULA. MDY is a company that owns a mod/add-on called Glider. The court found that the Glider mod/add-on violates the license agreement and the court found that this formed the basis for a copyright infringement and a tortuous interference case against MDY. MDY didn't sign the TOU/EULA. So, the court effectively ruled that someone who violates the TOU/EULA policies by creating an add-on that utilizes the Blizzard code the player is allowed to load into his or her computer is a violation of copyright. It is legally much more complicated than I described but that is the essence of it in a couple of sentences.
ZAM: If there is any litigation between commercialized addon authors and Blizzard, do you see the Glider case as a good example?
Connie: The MDY case is going to be appealed by MDY to the Ninth Circuit. Until the 9th Circuit rules on it, Blizzard will use the MDY case and its new policies as precedent to support shutting down the commercial add-on developers if they do not comply with the new Blizzard UI/add-on policies and the TOU/EULA.
ZAM: Why do you think this policy was created after so many years?
Connie: I believe the policy was always in the future plan of Blizzard but the MDY case gives Blizz a tenable reason to bring it to fruition now. This is pure speculation on my part but it makes sense to my way of reasoning.
ZAM: There are those in the addon community who argue Blizzard is merely trying to dictate how something completely out of their control is done. What legal benefits or protection do you see Blizzard gaining from exerting more control in this area?
Connie: Based on all the changes Blizzard is making, I believe the Blizzard business model is to "Monetize" UI Mods/add-ons by developing them in house and offering them for sale to players. "Monetization" is adapting non-revenue-generating assets to generate revenue. The "non-revenue" generating assets are those created by the add-on developers that interact with the Blizzard code to make the gaming experience more enjoyable or meaningful for the player.
Under the new policy, the add-on/mod developers must make their code available to the public (including Blizzard). Blizz can use this information to create something similar and can probably do so without violating copyright laws.
Under the new policy, developers cannot charge for UI add-ons/mods. Carbonite is a good example. The "quest" version of Carbonite is free. The "full" version costs $14.99/year and offers an extensive and very useful set of add-ons. Under the new policy, Carbonite must make the code for its free, "quest" version available to Blizz to review. Carbonite cannot sell its "full version" without violating the policy.
So, Blizz (and everyone else) gets to see the code, develop something similar for its exclusive use, create its own Curse.com style of add-on download & management (perhaps through its Battle.net website), and generate additional revenue while controlling the gaming environment. No more third party add-ons. Voilà
ZAM: Since the LUA programming language is open source and free to the public, doesn't that make it impossible to copyright? As such, doesn't this further the point that Blizzard is working outside the confines of the law with this new policy?
Connie: Open source means the program language Lua can be used without payment to the Lua owner as long as certain conditions are met. Blizzard owns the code it writes using the Lua language. Similarly, the developer owns the copyright to the applications and add-ons it builds using the Lua language. Here is the Lua license language: "Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions…." Open source software is fraught with legal issues.
ZAM: What if Microsoft decided to stop people charging for applications that help make Windows a more enjoyable experience? Wouldn't that essentially be the same thing we're seeing with this new policy?
Connie: Basically, yes. However, it's Blizzard's world and they can do what they please within it. I strongly support the rights of owners of Intellectual Property. That is what I do for a living. There needs to be a better balance between the rights of the consumers (such as add-on developers) and the rights of intellectual property owners. Blizzard showed up at 6 am (with its business representative and lawyer in tow) on the doorstep of MDY's owner with lawsuit in hand to persuade MDY to stop selling Glider. That type of strong arm tactic is excessive.
I love the fact that there are thousands of individuals and companies that are creating fresh and useful mods/add-ons. It would be a shame to see all of that creative energy and effort ganked by big business. But that is the reality of the real world.
ZAM: Thanks Connie. We definitely appreciate the time you spent answering our questions.
Connie: Thanks for the chance to comment on this important issue.
Connie J. Mableson, Esq., is a nationally recognized attorney with over 26 years of experience emphasizing Intellectual Property Law and Computer and Internet Law. Many of Connie's clients are the worldwide leaders in internet and web technologies and progressive business models. She was voted one of the top 10 IP lawyers in Arizona as "Best of the Bar." Connie made Internet history when she represented the very first business to commercialize the Internet, "Cybersell" (aka "Cantor & Siegel"). Connie was also the first lawyer in the world to open a law office in a virtual world, i.e., Second Life. If you'd like to know more about Connie Mableson and her practice, please visit her website.
Andrew "Tamat" Beegle