The Lawbringer: New Battle.net TOU
Welcome to The Lawbringer, WoW.com's weekly examination of the intersection of law and the World of Warcraft. I'm a new law school grad, acting as your tour guide when I manage to steal a few hours from my bar prep.
The times, they are achangin' ... Spring goes to summer, people graduate, and new patches come out. Sometimes, though, it's not just the code being updated. If you've logged onto Battle.net in the last few weeks, you have been greeted by banners announcing this change. This week, we'll be examining what has changed in the Battle.net TOU.
(Mea culpa -- I promised that this week we'd be looking at the MDY v. Blizzard arguments. I should be able to get to them next week, but finding linkable source material is proving difficult. If anyone from MDY or Blizzard is reading this, would you be so kind to post your appellate arguments online and send me a link?)
Changes to the License Limitations
Our first change comes in the second section, the Additional License Limitations with a new restriction on competitions:
The license granted to you in Section 1 is subject to the limitations set forth in Sections 1 and 2 (collectively, the "License Limitations"). Any use of the Service or any Game in violation of the License Limitations will be regarded as an infringement of Blizzard's copyrights in and to the Service and/or Game. You agree that you will not, under any circumstances:
...
3. 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;
The language of the first paragraph has not been changed in this most recent update, but I wanted to note it as it puts readers on notice of Blizzard's arguments in MDY v. Blizzard. This new restriction on competitions is interesting; I would imagine Blizzard is wanting to avoid unexpected strain on the servers and confusion by players who mistake a third party WoW, Warcraft, or StarCraft competition as one run by Blizzard.
Changes about Players who are Minors
Blizzard has moved and expanded their language about minors who play.
Subject to the laws of your country of residence, minor children may utilize an Account established by their parent or legal guardian with the approval of their parent or legal guardian. In the event that you permit your minor child or legal ward (collectively, your "child") to use an Account on the Service, you hereby agree to this Terms of Use Agreement on behalf of yourself and your child, and you understand and agree that you will be responsible for all uses of the Account by your child whether or not such uses were authorized by you, including, but not limited to, your minor child's acceptance of the EULA Games that are playable on the Service, or any Game-Specific Terms of Use.
This is not substantially different from the old TOU regarding minors, but having this be set out is a nice change. People are always wondering about kids and WoW, and this should help casual readers find the information they need.
Changes to Agreements about Updates
With an eye to the eventual outcomes of MDY v. Blizzard, UMG v. Augusto, and Vernor v. Autodesk, the new TOU includes new language about changes to the game and TOU. I have placed in brackets the old language.
1. Agreements.
Blizzard will update this Agreement as the Service and law evolves with new versions (each a "New TOU"). This Agreement will terminate immediately upon the introduction of a New TOU, and you will be given an opportunity to review and accept the New TOU. If you accept the New TOU, and if the Account registered to you remains in good standing, you will be able to continue using the Account subject to the terms of the New TOU. If you decline to accept the New TOU, or if you cannot comply with the terms of the New TOU for any reason, you will no longer be permitted to use the Account. Blizzard may change, modify, suspend, or discontinue any aspect of the Service at any time. Blizzard may also impose limits on certain features or restrict your access to parts or all of the Service without notice or liability. You have no interest, monetary or otherwise, in any feature or content contained in the Service or associated with the Account. [Blizzard may also revise other policies, including without limitation the Code of Conduct and other In Game Policies and the Privacy Policy, at any time, and the new versions will be available on the Website. If at any point you do not agree to any portion of the then-current version of this Agreement, the Code of Conduct the Privacy Policy, or any other Blizzard policy or agreement relating to your use of the Service, you must immediately stop using the Service.]
While much more explicit than the original, this is substantially similar to the old language. I also want to note the sentence "You have no interest, monetary or otherwise, in any feature or content ..." At oral argument a few weeks ago, MDY's attorney suggested that MDY had business interests in WoW with which Blizzard unfairly interfered by operating Warden. While obviously this TOU does not affect that case, Blizzard appears to be insulating themselves against this argument by including this language.
Real ID
As you know, Battle.net is adding a new feature that will allow players to communicate across servers, factions, and games.
6. Real Life Friends Feature and Identity Disclosure.
The Service allows you to disclose your identity to other users of the Service through the "Real Life Friends" feature. If you use the Real Life Friends feature and opt-in to a request to be "Real Life Friends" with another user, that user will be able to see your real name. Certain features, such as the Battle.net Voice Chat Client, are only available between users of the Service who have opted in to the Real Life Friends feature. IF YOU OPT-IN TO THE REAL LIFE FRIENDS FEATURE, THOSE PEOPLE YOU DESIGNATE AS "REAL LIFE FRIENDS" WILL BE ABLE TO SEE THE NAMES OF YOUR OTHER "REAL LIFE FRIENDS," AND YOUR NAME WILL BE VISIBLE BY THOSE PEOPLE THAT YOUR "REAL LIFE FRIENDS'" HAVE DESIGNATED USING THE SAME FEATURE. You may opt out of the Real Life Friends feature at any time by deleting all Real Life Friends from your Battle.net Account.Blue poster text.
The lines in all caps are rather interesting. Say I opt in and add a friend -- we'll call him Jimmy. I don't mind outing all my toons to James. Unfortunately, this hypothetical Jimmy is a friend collector and has scores of friends. According to this, all of those scores of friends can see that we're friends. Hopefully, there are no crazy jealous ex-girlfriends who will then harass me on my three servers and fifteen toons. Judging from this provision, players are going to need to be very cautious with whom they share this Real ID feature.
Third parties
Less well known are the new provisions that allow access to advertising and Facebook.
1. Massive.
Blizzard's Games and the Service may incorporate technology of Massive Incorporated ("Massive"), a wholly-owned subsidiary of Microsoft Corporation ("Microsoft"), that enables in-game advertising, and the display of other similar in-game objects, which are downloaded temporarily to your personal computer and replaced during online game play. As part of this process, Massive may collect some information about the game and the advertisements delivered to you, as well as standard information that is sent when your personal computer or game console connects to the Internet including your Internet protocol (IP) address. Massive will use this information to transmit and measure in-game advertising, as well as to improve the products and services of Massive and its affiliates. None of the information collected by Massive will be used to identify you. For additional details regarding Massive's in-game advertising practices, please see Massive's In-Game Advertising privacy statement at http://go.microsoft.com/fwlink/?LinkId=122085&clcid=0x409. The trademarks and copyrighted material contained in all in-game advertising are the property of the respective owners. Portions of the Service are © 2008 Massive Incorporated. All rights reserved.
2. Facebook.
If you have a registered "Facebook Account" you may opt-in to the "Facebook Friends" feature which will allow you to see which of your Facebook friends are registered on the Service. The "Facebook Account" is subject to separate terms and conditions provided by Facebook Inc. Note that if you have a Facebook account, your Facebook friends will be able to associate your screen name with your real name on the Service when they use the Facebook Friends feature. Facebook disclaims all liability it may otherwise incur as a result of this Agreement and/or your use of the Service..
What Hasn't Changed
A number of people have emailed me noting new provisions that forbid datamining. I'm sorry to disappoint you, but these provisions are part of the old TOU.
You agree that you will not (a) obtain or attempt to obtain any information from the Service or any Game using any method not expressly permitted by Blizzard; (b) intercept, examine or otherwise observe any proprietary communications protocol used by a client or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) use any third-party software to collect information from or through a Game client or the Service, including without limitation information about your character, any Account registered to you, virtual items, other players, or other Game data.
I hope you have a little better idea to what you will be agreeing to when the new patch drops.
This column is for entertainment only. If you have a real legal question, consult a real lawyer. For questions about law, law school or the joys of bar prep, you can email me at amy@wow.com, tweet me @wowlawbringer, or /whisper Patent <It Came From the Blog> on Zangarmarsh on Thursday nights.
