Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Everyone else is talking about the Supreme Court, but I'm going to hold off on any further commentary until we have an actual decision to analyze. Instead, I want to bring your attention back to a suit filed by Blizzard in California, Blizzard v. VanKuipers, Simpson, and John Does 1-10 (aka the GameThreat.net case). This case seems to be the sequel of sorts to the "Glider" case from the not too distant past (Blizzard v. MDY Industries). In short, that case was about a World of WarCraft "autopilot" program called Glider. Glider circumvented Warden (the WoW cheat protection software). The short version of the result from that case is that MDY Industries, the maker of Glider, was held liable for contributory and vicarious copyright infringement for putting out Glider, which violated WoW's End User License Agreement and Terms of Service. The opinion also upheld Blizzard's right to sue over issues that diminished the player experience.

That brings us to the GameThreat.net case. Some of this should sound pretty familiar. GameThreat.net put out a series of StarCraft 2 hacks and cheats, which worked in multiplayer. These programs were available very shortly after the launch of StarCraft 2, and that, of course, irritated Blizzard, which sent a cease and desist of some sort. While it may have initially appeared the two were in compliance, Blizzard discovered they have re-distributed their source code to others, who have continued to make it available. As a result, Blizzard is suing on basically the same premise as Glider. As is often the case, the ideas here present a bit of a double-edged sword.

Anyone who has played PC games online knows cheating is a real, and at times rampant, problem. So much so that people are actually deterred from playing online at times. I remember back in the earlier days of Diablo and the original CounterStrike how the constant battle between cheating and patching kept everyone on their toes, but there were times when the games simply stopped being fun because it was impossible to find a legitimate game. Blizzard has unfortunately often been the target in these, with cheating issues appearing in many of its online games. Preventing cheaters from ruining the game experience for others is a great thing to do. It's the scope and method taken by Blizzard that gives me, and should give many gamers, reason to be concerned.

This is an instance where there are a lot of pieces to put in place, and one piece is the topic of the previous LGJ, which you should take a moment to read if you missed the discussion of AutoDesk as it relates to games. Blizzard's argument comes down to copyright infringement, and that infringement is based on, among other things, violation of the license agreement. Both Glider and AutoDesk uphold the idea of software being licensed, and are therefore subject to all the terms in the license, which in StarCraft 2 contains a complete bar on the player using "cheats, automation software, (bots), hacks, or any other unauthorized third-party software designed to modify the Game experience, including without limitation, mods that violate the terms of this License Agreement or the Terms of Use." This language is basically mirrored in the Battle.net Terms of Use. I completely understand the rationale behind the latter, but the former is where I'm not entirely clear.

Is there any real harm in using cheats in a single player context? Putting aside the philosophical debate about the nature of play, the answer seems clearly to be "no." You cheating on your own time doesn't harm Blizzard, and it doesn't harm the play experience for any other players. In fact, is there any real harm to having a multiplayer match where all parties knowingly consent to everyone cheating? No, and in fact, I've been involved in some local "cheating" matches of some games in the past that have been extremely entertaining. The issue was, and in my mind will always be, one of preventing cheating in matches where no one is supposed to be cheating, where you want to play the game as intended by the creator.

In a bit of an unusual way, the advancement of technology has created a bit of a rift in the law here. At least in my mind, the court need not only consider Glider, but also the much older Game Genie case. To quote a key part of the decision, "Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work." That case revolved around whether Game Genie violated copyright and created a "derivative work," that is a new game by use of the product. Not a small part of the decision revolved around the Game Genie's complete failure to modify the original game cartridge, never fixing a work but only creating something temporary, unlike previous cases involving speed up chips in arcade cabinets or a subsequent case of selling new levels for a PC game.

As cartridge technology has largely been left behind, other than the DS, the ability to create these temporary derivative works has largely fallen by the wayside. But do we really want to see cheating squashed entirely? Or, the better question is, if the developer fails to include these kinds of elements, for example the built in cheats that have always been a fun distraction in the Civilization series, should the player then be completely precluded from using something to modify the game on their own time, for their own entertainment, when no other players are being harmed?

It is fair to assume that Blizzard will be successful in this suit, and to the extent it protects legitimate multiplayer online, that is both in Blizzard's best interest and the StarCraft 2 player community's best interest. The more important question is how much further the use of copyright will be pushed to police player behavior. The easy answer is for developers to include robust game modification tools such that the only players who want or need to hack the game are those set on ruining the experience for others, but that may be easier said than done. And to the extent it's not done, I think the idea presented in Game Genie is pretty compelling, even if a technical copyright infringement may be taking place. Having paid the developer/publisher a fair return, the consumer should be able to reasonably experiment with the product and create new variations of play for personal enjoyment so long as it doesn't interfere with the game experience for other players.

[Image Credit: smgoller]


Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own.

Reach Mark at: lawofthegame [AAT] gmail [DAWT] com

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This article was originally published on Joystiq.