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The Lawbringer: Buying precedent

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Running parallel to the games we love and enjoy is a world full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

The following is an opinion piece dealing with Blizzard's ongoing litigation. The opinions and views expressed are solely those of me, Mathew, the columnist.

You might have heard that Blizzard and its lawyers have recently started new litigation against three StarCraft 2 hackers in District Court. To a lot of people, this looks like another case of Blizzard going after more hackers for screwing with the online experience. To me, I see Blizzard's lawsuits as positive EULA-builders with huge benefit to the independent game market. It sounds crazy, but less so when you think about the concept of buying precedent.

First, what's this case all about? In the absolute simplest terms, Blizzard is suing three (potentially more) hackers for violating the limited use of the licenses granted by the software and Blizzard, and copyright infringement by changing copyrighted code. The written, physical code of video games and software can be copyrighted and is being messed with by hackers to change the game experience.

The legal system in the United States is mainly about precedent; judges, lawyers and everyone in between like to make decisions based on past decisions. It gives a sense of focus and predictability to the legal system. Lawyers then argue why something should look like this particular example or why it doesn't look like that specific example. If stealing fruit were illegal and I stole an apple, the opposing side would say I had committed the crime because I stole an apple. An apple is clearly a fruit, and presumably, there has been a case before that says an apple is a fruit. But if I had, say, stolen a tomato, and there was no case that said a tomato was a fruit, I could make the case that maybe, just maybe, the tomato was not a fruit but rather a vegetable.

Precedent is incredibly important. Big companies sometimes don't even want to go to court over cases that might set bad precedent for them. It's cheaper in the long run to pay someone off in a settlement than risk a court's putting it down officially that what that company was doing was bad, wrong or in any way adverse to the way it does business.

So what precedent is Blizzard trying set with the Glider case and, potentially, with these new hackers? The EULA is not a solid thing. End User License Agreements have been and will be on shaky legal ground for a while.

Two theories

EULAs are seen by courts as either enforceable or unenforceable. Some are seen as contracts of adhesion -- you have no choice but to agree. Contracts like that are no good, usually. Other courts see EULAs as valid and allow the provisions therein to be enforced.

Blizzard's cases tout the EULA as something of a foundation for many of the claims against hackers and, in Glider's case, the bot program that could play WoW for you. Blizzard actively seeks to strengthen the End User License Agreement through the courts. A strong, enforceable EULA is the not-so-secret weapon in combating hackers in a game like WoW.

Stronger EULAs -- good or bad?

On the one hand, strengthening the EULA is a good, even great, thing for the video game industry. We have no idea what is coming next in the virtual space, MMOs or video gaming in general. We will be taken by surprise constantly over the course of our lives. Having a strong EULA means that game companies can take risks with certain provisions in their EULAs as well as riskier types of games that have the potential to be taken advantage of. If games are licensed rather than owned, games can be said to be more protected. Developers and publishers will think less about the risk of piracy and loss and more about the potential reward.

On the other hand, do you ever read a EULA? Seriously? I've only read EULAs when I was assigned to. Nobody reads contracts -- judges know this, lawyers know this and you know this. This is why you can't put something too crazy in a EULA like the one you agree to when you play World of Warcraft. Everyone knows you aren't going to read it, so they can't make you give up your firstborn after you get banned from the servers. (Not only that, but infant swapping is definitely against the constitution somewhere ... maybe.) Strong EULAs potentially mean less freedom for consumers as to what they can or cannot do with the software that they have purchased.

Fighting an expensive fight

What this all comes down to is that Blizzard is fighting for its own purposes, sure, but also doing some interesting, collateral things for the gaming industry. Blizzard is funding precedent -- it has the time, money and resources to turn EULAs into strong building blocks of the gaming industry, as well as to further the acceptance of code copyrights and infractions into the American legal system. For the millionth time, lawsuits only happen when someone is angry enough to sue, and so angry that he is willing to shell out ridiculous amounts of money to fight about this. For Blizzard, this is not an expensive win for something that could prove incredibly important in the future for it and the video game industry in general -- strong EULA enforcement.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.

Filed under: Analysis / Opinion, The Lawbringer

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