End of the mods? Cautionary tale for copyright holders active in an open source environment

Posted in Intellectual property

What’s a mod and modding?

A mod or modification is a term applied to public alterations to a video game. The modding of games is one of the most diverse and vibrant scenes in the gaming community, with a rich history of great games that have been tweaked by bedroom coders and professional developers alike. While mods once limited themselves to peripheral or purely aesthetic ends for example, changing how a candle flame looks, today’s mods are infinitely more involved and extensive. They can completely re-imagine a game, with modifications to the art, audio and animations, or even the skills of individual characters (these are known as total conversion mods).

Open environment of the gaming world

Supporting this popular hive of activity was the open culture within the online gaming community. Most end user license agreements allowed modders to build their own worlds and custom characters provided the products were not commercially exploited. Some publishers did not even explicitly assume complete ownership of modded products. This was the case for the popular game Warcraft III, for which the publisher Blizzard Entertainment also provided a program called the “World Editor,” encouraging players to develop further ideas in the form of new settings, characters, storylines, and rules for further sharing online with other Warcraft III fans. The fans may then take one of the available mods and add further layers of modding. The creation of new mods can often involve taking inspiration from other sources, such as other games and from collaborative efforts amongst other modders and coders on an ad hoc and informal basis. Over the years, Warcraft III led to different strains of popular mods, such as “DotA” (short for “Defense of the Ancients”) created by Eul, and its various derivatives such as, DotA Allstars. The creative leadership of these strains was passed in a relay-like fashion between a number of modders assuming imaginative aliases such as Guinsoo, Neichus and Icefrog.

Copyright ownership minefield in an open environment

As the gaming industry grew in scale generally, so too did the money at stake and complexity of the rights of different creators. Third parties emerged aiming to commercially exploit the DotA universe, contrary to the initial licence given by Blizzard which stated that modders should not commercially exploit the mods. With copyright ownership in different versions of the game dispersed among a number of developers, enforcement was far from straightforward. Cutting a very complicated story short, Blizzard first settled IP issues with Valve, another major gaming publisher, which began developing Dota 2, a stand-alone computer game based on DotA and DotA Allstars. Valve had hired Eul and Icefrog during the development process and had paid a handsome sum for the assignment of their copyright in DotA and DotA Allstars. Blizzard, also purchased Guinsoo’s rights in DotA and DotA Allstars, and later Blizzard and Valve gained Neichus’ rights. The pair then felt able to sue third parties (they did so in the US) relying on their copyrights in Warcraft games, DotA, DotA Allstars and Dota 2.

However, even though Valve and Blizzard between them, appear to have managed to gather rights from the leading developers of various key mod strains, the ownership issues were far from settled. The scope of the copyrights originally possessed by the developers were uncertain given that there were other developers which have contributed, and some of the features may have been taken from other independent works. Finally, there was a question of whether the developers that assigned their copyrights to Valve and Blizzard had validly done so (not only because the developers were not entitled to commercially exploit their mods in the first place). To add to the complications, Eul had at one point posted a declaration that his version of DotA was open source on a gaming community web forum.

Although this battle appears to have settled, the sort of issues faced by copyright owners are likely to resurface, not only in relation to popular video games, but also where protected works are developed in an open environment.

Blizzard changes its terms and conditions

Against this backdrop, it is entirely understandable that this experience should lead Blizzard to change the terms of their latest game, Warcraft 3: Reforged – which still comes with an editing program. The new terms assume complete ownership by Blizzard of any mods that come from it, and a waiver of moral rights, all without remuneration. The terms also require users to warrant that any modding activity is free of third party IP rights. Eyebrows are being raised within the community against this more restrictive policy, although it may not affect the vast majority of the Warcraft modders, who generally create mods for fun rather than for profit. Time will tell whether Blizzard’s decision will have a substantial negative impact on modding activity and knock on effect on other publishers’ decisions to incorporate similar language in their terms of use. Ironically, the success experienced in the gaming industry may have led to an end to an open and creative era which had supported its rapid growth.

Other authors: Ethan Dodd

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