Forensic Chronicles. Blizzard Entertainment

Many IT companies periodically make us happy with the launch of new services and the release of new high-quality products. We follow some of them with interest and read news about them. Their activities are well known to us by announcements and press releases, thematic conferences, professional competitions and reviews from critics and users. But invariably, the business activity of any company sooner or later begins to be accompanied by such type of activity as legal: disputes over exclusive rights to software, consumer complaints, attacks from patent trolls - this and much more is part of the life of companies.

In this article, the judicial chronicles tell about the judicial life of the well-known producer of the hits of the world of computer games - the company Blizzard Entertainment.

Of course, the material does not cover absolutely all court cases involving this company, only the most interesting and noteworthy were selected. A selection of cases is built on the chronological principle of filing lawsuits.

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v. Internet Gateway, Inc.

The first case in this compilation dates back to 1998, when in February 1998, Blizzard released its new game, Starcraft. A few months after this release, a student at the University of California at San Diego, Mark Baysinger, began working on reverse engineering of the protocol by which game users connected using their client software to the Battle.net game server.

The result of his work was successful, and Mark published his development on the Web - the StarHack emulator. After he made this publication, he almost immediately received a letter from Blizzard containing a written warning about the violation of her rights and the termination of such a violation. In response, Mark sent questions on what exactly his actions had violated the company's copyright. Having received no response to them, he decided to stop working on the project, but put the source code of his code on the Internet under the GPL license - and so the open source project BNETD appeared, which supported the functionality of the official Battle.net game server on the alternative multiplayer gaming server bnetd. org.

In 2002, Blizzard began beta testing its new product - the game "Warcraft III". And in 2003, based on an analysis of the beta version of this game by the company and the Battle.net company, a BNETD fork called Warforge appeared, which introduced support for the functionality of this game from Blizzard.

A few days after the release of Warforge, Internet Gateway, which provided hosting to the BNETD project, received a similar written warning (a so-called C & D letter) from Blizzard, the content of which was reduced to the fact that the creators of BNETD violated Blizzard’s rights to the gaming software it created .

Since, after receiving the warning, no action was taken to stop using the BNETD project, Blizzard decided to go to court.

Therefore, in 2002, Blizzard filed a lawsuit against the above hoster and Tim Jung. The latter was the president of Internet Gateway, one of the developers of the BNETD project and the system administrator of the domain bnetd.org (the number of respondents was later increased). Blizzard, in its lawsuit, in particular, argued that BNETD was a server program that emulated Battle.net service, but did not check the validity of the CD key to determine whether the client software was legally used to connect to the game server or not. In addition, fragments of code from Blizzard computer programs were illegally copied and included in the BNETD server code.

In general, Blizzard claimed infringement of its copyright, trademark rights (regarding Battle.net), as well as unfair competition from the defendants.

During the consideration of court claims in 2004, the court finally ruled in favor of the claimant, admitting that the defendants had violated the claimant’s copyright by reversing engineering of its software, as well as bypassing its copyright protection systems your server, the verification of the CD keys of the client programs of users).

The defendants decided to appeal the decision and filed an appeal. In 2005, the Eighth Court of Appeal upheld the decision of the court of first instance on both important positions, confirming the illegitimacy of reverse engineering and the absence of a CD key verification mechanism.

In general, the case with BNETD turned out to be very significant for the industry, since at that time online services were just beginning to become popular. At the same time, the trial became a kind of guide for software vendors on such issues and showed a very low level of tolerance towards such open-source projects.

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v. Daniel Mele and Blizzard Records, Inc.

In 2002, Blizzard received a lawsuit from Daniel Mele and Blizzard Records, Inc. in relation to the violation by the manufacturer of computer games of the rights to the BLIZZARD RECORDS trademark owned by the claimants.

According to the text of the lawsuit, Miles began to use the BLIZZARD RECORDS trademark in 1986 with regard to the promotion of musical performers and the distribution of their phonograms. The beginning of the use of the trademark was expressed in that the plaintiffs were engaged in the promotion of the rock group “Zillion”. In 1995, they started promoting another group, Chillin 'Sun, and in July 1997 they released the first album of this group under the label BLIZZARD RECORDS. In 1999, the plaintiffs began selling music phonograms from the site blizzardrecords.com. In 2000, Mile filed an application for registration of the name "BLIZZARD RECORDS" as a trademark for use in "computer online retail services for the sale of music on CDs and audio cassettes; promotion of performers phonograms through the global computer information network ". In November 2000, Mile licensed Blizzard Records, Inc. trademark "BLIZZARD RECORDS".

Igrodel Blizzard took up the position of the claim according to which its activities did not violate the rights of the claimant to the BLIZZARD RECORDS trademark. Moreover, Blizzard claimed that at the time of registration of their own trademarks “BLIZZARD” and “BLIZZARD ENTERTAINMENT” the plaintiffs did not use the “BLIZZARD RECORDS” trademark in any way.

During the trial, the court found the following:

In 1986, Miles registered a legal entity of the Blizzard Records Company in Buffalo, New York. In the same 1986, the plaintiffs started promoting the Zillion group. In 1987, the last performance of this group took place, in connection with which its promotion was stopped. In 1995, the plaintiffs resumed their activities: they began to promote the group "Chillin 'Sun", and in 1997 the label "BLIZZARD RECORDS" released the first album of this group. In 1999, the plaintiffs launched the label’s website at: blizzardrecords.com and started selling the soundtracks of various artists through it.

In turn, Blizzard began using the BLIZZARD and BLIZZARD ENTERTAINMENT trademarks in 1994 and filed appropriate applications for the registration of these trademarks with the United States Patent and Trademark Office regarding the class of computer software for video and computer games. and documentation implemented with the programs. ” This trademark registration did not cover classes such as music or soundtracks. For the first time, users of Blizzard products got access to game soundtracks outside the framework of the games themselves, created by the company, already in December 1995, and users were able to download soundtracks in 1998. In 2002, Blizzard filed an application with the aforementioned Bureau to expand the validity of its earlier rights to its trademarks in relation to new classes, including musical activities.

Therefore, the court to resolve the dispute between the parties was to determine:

• Did the claimants really stop using the BLIZZARD RECORDS trademark, and if so, how long did this discontinue use take place?
• Does Blizzard's rights in connection with the registration of the BLIZZARD and BLIZZARD ENTERTAINMENT trademarks in 1994 extend to the distribution of the company’s own game soundtracks by implementing CDs and downloads from corporate servers? And if so, from what point is it considered the beginning of such distribution: since 1994 (ie, since the period when Blizzard registered its trademarks, and the plaintiffs stopped using their trademark “BLIZZARD RECORDS”) or since 2002 (tons .e since the filing with Blizzard of an application to the Bureau for the expansion of the number of classes for which Blizzard trademarks will be used, and, obviously, after the plaintiffs resumed the use of the BLIZZARD RECORDS trademark)?
• Is there a violation of the rights of the plaintiffs caused by the aforementioned Blizzard distribution of its soundtracks separately from their games?

Determining whether a BLIZZARD RECORDS trademark was discontinued by the claimants was significant in the case, because according to US law (see the so-called Lanham Act), not using the trademark for three years in a row without the purpose of its subsequent use in the future presumption of refusal to use a trademark. If the person owning such a trademark does not prove the presumption is invalid, then it loses the right to it.

During the trial, the court concluded that the plaintiff’s use of the BLIZZARD RECORDS trademark was discontinued in 1987 due to the discontinuation of the Zilion group, and resumed only in August 1999, when the plaintiffs launched the blizzardrecords website. com. At the same time, the court examined the facts on the activities of the plaintiffs and the evidence they presented regarding the work with the Chillin 'Sun group and their promotion, but concluded that in the course of such cooperation with Chillin' Sun, the plaintiffs had their trademark did not use.

It should be noted that the plaintiffs in pritsnipe had serious problems with an evidence base throughout the entire judicial process: the distributed CD-disks of the groups promoted by them were not branded with their trademark, the label was not known to the public for almost the entire history of its existence, the plaintiffs did not have even corporate documentation containing the company's logo. Here is one example from the case: during the trial, it turned out that in 1985 (before cooperating with the plaintiffs) Zilion entered into an agreement to record and promote with another label, Ax Killer Records, therefore it was established that The public associated Zillion's promotion with Ax Killer Records2, not Blizzard Records.

As a result, in relation to Blizzard, the court ruled that in 1994, Blizzard did not receive legal protection for its trademarks in relation to such registration class as music, but received only those classes that were declared during the registration of their trademarks. Thus, the plaintiffs received rights for the class of music in relation to trademarks previously Blizzard.

However, in spite of the foregoing, the court concluded that Blizzard’s use of the BLIZZARD trademark does not violate the rights of the claimants with respect to their own trademark BLIZZARD RECORDS. Moreover, the parties' use of their own trademarks does not lead to the misleading of consumers of the products of both participants, since gamers are consumers of Blizzard products, i.e. people who are well-versed in relation to the producers of computer games and the music they produce for them. Due to their awareness, misleading them with the products of the parties to this legal process is not possible in reality.

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v. MDY Industries, LLC

In 2004, Blizzard created its cult game World of Warcraft. And shortly thereafter, Arizona-based MDY Industries created the Glider gaming bot for this game, allowing users to complete the initial levels of the game in a relatively short time, while under normal game conditions, users would need several weeks to complete. Sales of the bot began in 2005, and by the time the claim was filed with MDY, it had already sold more than 100,000 copies of its bot.

In 2006, Blizzard sent a claim to MDY that its activities violate the rights of the company, and if it does not stop, Blizzard will appeal to the court for the protection of their rights. MDY rejected the claims of igrodel and decided to get a judicial determination that the sale of Glider does not violate any rights of Blizzard, and the use of this bot expands the gaming experience for users. MDY positioned itself as an innovator, and considered Blizzard’s actions toward it to be unfounded.

In response, Blizzard filed a lawsuit in court for the existence of a number of violations committed by the actions of MDY: in particular, those indicated were copyright infringement, breach of contract terms, unjust enrichment, trademark infringement.

Following the review of all materials submitted by the parties, the court ruled in favor of Blizzard, recognizing MDY Industries violated the rights of the plaintiff. The court, in particular, determined that the bot users were not entitled to use it, because according to the terms of the “World of Warcraft” User License Agreement (EULA WoW), users are prohibited from using bots or other third-party software that modifies the WoW game world. Because users thus violated the terms of the licensing agreements between them and Blizzard due to the use of MDY software, MDY was found responsible for such violation of contractual relations. In addition, the provisions of the DMCA were violated, since the bot went around the Warden program, designed to protect the game server from unauthorized use.

MDY appealed to the appellate court, in which in 2010 the US Court of Appeals for the Ninth Circuit ruled that MDY was not held responsible for violations of the plaintiff’s copyright infringement, but MDY did violate the provisions of the DMCA using Warden protective measures.

This decision was also quite significant both for the industry and for judicial practice, since it dealt with rather ambiguous questions about the responsibility of the third-party software manufacturer for the copyright of the software manufacturer, as well as its contractual relations with its users, who simultaneously use both the original software and third-party software designed to interact with the original software.

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v. Scapegaming, LLC

In October 2009, Blizzard decided to sue Alison Rees, the owner of the game project Scapegaming, and the five individuals whose identity Blizzard hadn’t established by the time she filed the suit (but who, according to the plaintiff, were related to Scapegaming activities) .

Scapegaming, previously available at scapegaming.com, was a private game project created for commercial purposes and allowed its users to play a modified version of World of Warcraft on one of their five servers. This project was not under any management or control by Blizzard, and players paid for access to it (from $ 1 to $ 300) directly by Scapegaming, and not by Blizzard.

Blizzard claimed in its lawsuit that the defendants carried out their activities, fully aware that in this way Blizzard's rights were being violated. Blizzard counted Scapegaming actions:

• violating the regulations of the EULA WoW and ToU WoW,
• Blizzard’s copyright infringing on its own gaming software, which was subject to unauthorized modification and reverse engineering by the defendants (the results of which, in particular, made it possible to roll back to previous versions of the game to bypass the defense mechanisms embedded by Blizzard in new versions of client gaming software), also due to the fact that the Scapegaming servers did not check the launched copies of the game for their legality,
• unfair competition against Blizzard,
• deliberately obstructing the contractual relationship between Blizzard and its users.

By Blizzard's own estimate, Scapegaming has earned approximately $ 1.5 million through its portal.

Interestingly, Reese decided not to file an objection to the lawsuit (co-defendants whose identities were not established - naturally, too), so the court ruled in 2010 in favor of Blizzard as a plaintiff due to the lack of objections to the lawsuit by the defendants, awarding over 88 million US dollars as compensation in favor of Blizzard: $ 3,052,339 as lost income, $ 85,478,600 as compensation for losses incurred and $ 63,600 as incurred court costs.

Blizzard itself commented on the court’s decision as follows: “In addition to last year’s decision on the case against MDY Industries, the creator and distributor of cheat software, the decision regarding Scapegaming is another confirmation of our efforts to vigorously protect our intellectual property rights.”

True, the answer to the question whether Blizzard managed to ultimately recover the compensation awarded by the court from the defendants was not found in open sources.

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v. Benstar Limited and ANO "RSITS"

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v. Bossland GmbH

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v. Ceiling Fan Software, LLC

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v. Benjamin Bell and Christopher Spellman

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v. Worlds, Inc

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v. Via Vadis LLC and AC Technologies SA

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