Tobold's Blog
Sunday, August 17, 2008
WoW and intellectual property

DeSlisser is asking a tricky question: Where is the border between good fanfiction and bad theft of intellectual property. He found an intentionally misspelled WaoW comic in a shop, which clearly was using Blizzard intellectual property in telling a funny story of a n00b in Westfall. But then Blizzard clearly allows and even promotes online fan comics and machinima.

And then Blizzard themselves aren't squeaky clean when it comes to intellectual property. Hands up everyone who believes Blizzard paid a license fee to the IOC for their Spirit of Competition Olympics event, with its fancy 4 colored intertwined rings logo! Hmmm, don't see any hands. So where exactly is the difference between Spirit of Competition and WaoW? Is World of Warcraft, like the Olympics, so much part of the general culture that you can make "cultural references" to it without breaking intellectual property laws?
As with a lot of things it is a question of who makes MONEY from the IP. Individuals/small endeavours are cut much less slack then large enterprises/institutions, which can offer mutual benefit and synergy.

If Joe Schmoe does something funny with one of Blizzards IPs and makes money in doing so, he is in big trouble. When Blizzard uses IOCs IP (in a positive way) there is no problem whatsoever.
I've always disliked the term "intellectual property". It's too vague to be used in evaluating the legality of something, and it implies that you can draw a direct parallel to property rights.

That aside, I think that both WaoW and the numerous real-life references in Warcraft are parodies and thus covered under fair use. Even if Blizzard wanted to ban those, they couldn't. I think that Blizzard has realized that all of the fan fiction out there is a great marketing tool and thus provides benefits for Blizzard at no cost. If someone likes a comic such as WaoW they either are WoW players already (and thus the comic improves customer retention) or are likely to try it out (and thus attracting new customers).

In a sense, it's not unlike a toy company producing a saturday-morning cartoon series to promote their new line of toys. Except in this case the toy company doesn't need to pay a dime for the cartoon.
I'd like to talk about a related topic: Private (non-licensed privately operated) WoW servers.

First the background. Someone has written a an emulator of Blizzard's WoW server software. At this moment there are dozens of private servers out there operrating without Blizzard's permission, allowing an alternative way to play WoW without paying Blizzard. Out of respect for Blizzard's IP, I won't cite any links here, but Google is your friend.

Unlike Blizzard's servers, these private servers are free to play on -- and supposedly that's what allows them to remain in a legal grey area. However, most generate revenue via a system of "donations" (ostensibly to pay for server maintanence and bandwidth costs). To encourage these donations, most private servers implement a form of RMT, where players may exchange real money for gold and powerful items.

In all evidence, the donation revenue is not chump change either. I recently played on one of the largest private servers, and there were 6000+ players concurrently online at peak times, and a signifcant percentage were buying items (~$20 for a legendary or custom item). The group operating the server has 3 other realms with similar user bases, and there are at least half a dozen other operations with similarly large stats. Overall, the total WoW private server user base can be conservatively esimated at 100-200k+ "customers".

The above numbers suggest that the larger private WoW operations are not only taking Blizzard's business, but generating a healthy profit from it. The big question is: why hasn't Blizzard done anything about it? Do they lack sufficiently powerful legal options? Or are they simply content to let this RMT-based WoW "experiment" to run in the wild for now, so that they may learn from it?

I'll continue this post later with some observations how different technical and business model constraints made private servers adopt game rulesets different from official Blizzard's WoW and what we may learn from it.
and it implies that you can draw a direct parallel to property rights.

Intellectual property is just a description of one type of property, nothing more. The actual legal term when dealing with the unauthorized use of anyones property is called "Trespass to Chattels", and occurs "when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization".

Blizzard has already sued a few people over this. Such as the maker of the Glider program, and then there was the person who was made to stop e-baying his strategy guide. Both are clear infringements on Blizz's IP rights.

Blizzard is very careful about what they put into the game however, with either altered spellings, descriptions, or design elements(the design of the olympic rings as Tobold mentions in the OP isnt even close to the IOC version).

I might be wrong, but I think most of this comes down to intent, and whether or not someone is purposefully using someones property for financial gain.
The big question is: why hasn't Blizzard done anything about it?

From what I understand Blizz could implement some very basic encrypted authentication protocols that would stop private servers, but that would not do much in terms of legacy emulation.

So players would just patch up to an earlier version and be done with it. That's not to say that we wont see this kind fix forthcoming(in WOTLK for example), but it all comes down to whether Blizzard considers this enough of a threat to actually spend the developement time in preventing it.
Continuing my post about private WoW servers:

From technical point of view, the current version of the WoW server software emulator used by private servers is far inerior to the real thing. The PvE game is severely broken: most scripted events simply do not work. Effectively that means that half of all quests are broken -- only Kill X of Y, Collect X of Y, and Kill NPC Z work well. Most Dungeon and Raid bosses don't go through thier scripted sequences, instead they are simply big tough auto-attacking mobs.

There are many other problems with mobs bugging, spawning, and NPCs not working correctly too numerous to detail. In short, the "classic" PvE experience is entirely unsatisfying and is similar in quality to an early beta.

That said, the private server software does a good job emulating the basic WoW world experience. Character abilities and combat mechanics, wandering mob combat, and travel all work reasonably well.

The above makes PvP the more attractive activity on private servers by far, as it works quite well in the current software implementation.

Another type of constraint is the business model: Since private servers do not generate revenue directly from ongoing subscriptions, they (for the most part) have no need to force players into long grinds designed to keep a customer playing for as long as possible. They do, however, experience the need to provide exclusive or premium options to players in order to encourage RMT.

Let's examine how the technical and business constraints have caused private server operators to modify the official WoW ruleset to cater to their specific user base:

The most 2 most common private server rulesets are Funserver and Blizz-like High Rate server.

A Funserver is a realm where all character start the game at their maximum level of 70. Money, skills, reputation, consumables, and other grindables are made easily and readily available without in-game or RMT cost via item mall NPCs. Low-tier Epic gear is typically also provided for free. However, best high-tier, legendary, or superior custom gear typically need to be earned via PvP, PvE raiding, or purchased via RMT donations. In essence, a Funserver provides an immediate shortcut the the "endgame". This is the most popular type of realm by far.

The other common type of private server is a Blizz-like High-Rate realm. These servers try to approximate the "classic" WoW progression experience, however there's a twist. All mob and quest experience, reputation, item drop rates, and most other grindables, are set at some multiple of the normal rate ranging from 3x to 50x+ depending on the server. Even with the experience and loot lost from broken quests, this provides the players with a much quicker leveling curve and faster access to the endgame. Conveniences like travel portals and shortcuts for class-specific ability quests (such as shaman totem quests) are also very common.

It's clear from the above that in the abscence of Blizzard's need to prolong subscriptions by forcing players into long progression grinds, the players themselves overwhelmingly prefer a grind-free experience and an option to skip to the endgame.

An interesting side effect of broken boss scripts and easy gear access is that raiding is rendered a much more straightforward, organizationally undemanding activity. Many people who would have never seen the high-end raiding content on official WoW servers are PUGing Black Temple and other "hardcore" content.

Moreover, there's a large number of players who play on private servers not for the lack of the ability or will to pay but because they prefer the greater accessibility and much more level playing field provided by the alternative private server rulesets. Many of these people are not averse to spending real money on exclusive in-game items to tilt the odds in their favor in PvP.

All things considered, we now really have to ask this question:

Is Blizzard losing money and allowing WoW to stagnate by refusing to implement (or even consider!) alternative gameplay and revenue models? If the success achieved by renegade private server is any indication, the answer is a resounding Yes!
One more thing about private WoW servers:

World PvP, long dead and much lamented by many on Blizzard's official servers, is a massively popular on private servers. In fact, it's the most common type of activity there! Instant level 70 and free epic gear has made world PvP a much more attractive affair than it normally is. In my opinion this serves as proof that massive unconsentual is very much desired by players -- provided that inequality barriers are lowered or removed.
It's a cultural reference.

Intellectual property is just a description of one type of property, nothing more. The actual legal term when dealing with the unauthorized use of anyones property is called "Trespass to Chattels", and occurs "when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization".

Thank you for illustrating the problem. Copyright infringement, unauthorized use of a trademark or a patent violation is not the same thing as "Trespass to Chattels". For example, there is no "fair use" rights when dealing with someone's house, nor does your ownership of the said house cease after a certain number of years.

As for private servers.. Blizzard did successfully shut down the bnetd project, but there's very little technology-wise that they can do. Blizzard could include the official servers' public key in the client, but they can't really prevent crackers from switching that key into a different one. Or they could remove the encryption layer altogether. Despite some attempts to do so (Warden), Blizzard cannot control what happens on their (non)clients' computers.
With WaoW being a parody, it falls under legal jurisdiction. Wikipedia's take on the subject:

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected from claims by the copyright owner of the original work under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. See Campbell v. Acuff-Rose Music, Inc.

In 2001, the United States Court of Appeals, 11th Circuit, in Suntrust v. Houghton Mifflin, upheld the right of Alice Randall to publish a parody of Gone with the Wind called The Wind Done Gone, which told the same story from the point of view of Scarlett O'Hara's slaves, who were glad to be rid of her.

Parodying music is legal in the U.K, United States, and Canada.

There is no border. All of WoW's content concepts are stolen so /shrug.
There is no cultural reference to the Olympics. Blizzard is obviously trading on the goodwill of the extremely valuable (and extremely trademarked) rings logo.

If some small firm put those same four rings on a cereal box with "Go for the gold!", they'd be smacked so hard by the IOC, it would be off the shelves in minutes.

Consider this: how many other products refer to the Olympics without the licensed logo?
Regarding cultural use of the WoW brand, I would say to Blizzard: You reap what you sow. Toyota commercials and South Park episodes are two examples of what have established WoW as a brand name for the mmorpg experience, much like Kleenex, Band-Aids, or Xerox.For Blizzard to exercise any control over the cultural usage of their brand at this point would be counter productive. Their time would be best spent ensuring the quality of their gameplay continues said dominance.
stop BSing Blizzard

u wish u worked there
Pretty much everything in the Warcraft universe is a rehash of fantasy/rpg themes that have been done to death in the past 30 years. Its in Blizzard's best interest to take a laissez faire approach because they're not as solid in the ip holdings as most companies would be.
stop BSing Blizzard

u wish u worked there

Oo, a fan. Could the real Shalkis please stand up?
funny since the IOC loves to sue people or at least have their lawyers send out threats. They even sued Improv Olympic - one of the most famous comedy clubs and training schools in the US (famous among comedians, that is). While I was there they finally gave in and officially changed the name to "IO".

Yes you can't use the word "olympic", and if you haven't been sent a cease and desist letter it's only because you're too small for them to notice.
the IOC loves to sue people or at least have their lawyers send out threats.

The burden of enforcing a trademark is on the trademark holder. If the trademark holder does not pursue enforcing it against infringement, then they risk losing the trademark. Trademark, unlike copyright, is only good for as long as you continue to use it exclusively. The presumption is if you don’t enforce your exclusive rights, then you are at right of losing it on the grounds of non-use. Trademark infringement is also not protected by punitive damages (i.e. Fines, Jail time) like copyright violation, so there is little risk beyond a cease-and-desist order to using a logo or brand.
The Spirit of Competition Tabard insignia isn't the Olympic symbol.
The Spirit of Competition Tabard insignia isn't the Olympic symbol.

Yes. And the WaoW symbol isn't the WoW symbol. But there just like the WaoW symbol very much resembles the WoW symbol, the Spirit of Competition symbol very much resembles the Olympic symbol. It just has 4 colored rings instead of 5, with the 4th being on top instead of at the side. Add the name "Spirit of Competition", and the fact that the event started on the same day as the Olympics, and who will believe you that the Blizzard event has absolutely nothing to do with the real Olympics?
Who will believe you that the Blizzard event has absolutely nothing to do with the real Olympics?
Of course it's about the Olympics. But it isn't an official Olympic event/tie-in/whatever, hence the differences.
There's some basic info about trademarks here, in an article I co-authored, that makes various gratuitous references to the Matrix:

The analysis and explanation is kind of long and boring, but, unfortunately, that's just the way law is.

Folks might be also interested to know that there is a special provision in the federal law that protects rights to the Olympic Rings -- this is NOT part of the trademark law. It's kind of its own little domain of intellectual property made just for the IOC.
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