BLIZZARD CONTINUES BATTLE WITH BOSSLAND IN COPYRIGHT ACTION

(This post was contributed by Alan Conklin, a third year law student at the Villanova University School of Law and intern for Roger Quiles, Esq.)

On March 14, 2017, Blizzard Entertainment (“Blizzard”), popular developer of games such as Overwatch and World of Warcraft, decided to move forward with its lawsuit against Bossland GmbH (“Bossland”), a company known for creating cheat engines for games, filing a motion for entry of default judgment.
 
Background
Last July, Blizzard filed a complaint in the Central District of California, accusing Bossland of contributory copyright infringement, unfair competition, and a number of other claims including a violation of an anti-circumvention provision in the Digital Millennium Copyright Act (“DMCA”) and a violation of its End User Licensing Agreement. For these claims, Blizzard sought to recover $8.5 million in damages. After the Court denied Bossland’s motion to dismiss for lack of jurisdiction, Bossland “elected to voluntarily default rather than defend [the] case on the merits.” The Court’s clerk entered the default on February 16, 2017, and  Blizzard subsequently filed its motion.
 
Bossland is a German-based company known for making several game cheat engines, including Watchover Tyrant, Honorbuddy, and Demonbuddy. Blizzard believes that these cheat engines are detrimental to its business because they are used by “cheaters, hackers, or others who seek to manipulate the game experience (either for their own personal gain or simply to disrupt and annoy others).” In turn, Blizzard thinks these manipulations have ruined the games for many legitimate players, causing millions of dollars in lost sales.
 
For years, Blizzard has been engaged in a battle against cheat software developers. Since July 2013, Bossland has sold approximately 118,939 units to consumers in the United States alone. Blizzard projects that 36% of these products were cheats for its games. As a result, Blizzard alleges that Bossland is guilty of 42,818 infringements and seeks to receive the minimum statutory copyright damages of $200 per infringement.
 
Blizzard’s main accusation is based on its belief that Bossland’s programs have been used solely for the purpose of circumventing Blizzard’s anti-cheat measures that it had put in place to effectively control access to its copyrighted work. Under copyright law, “[n]o person shall circumvent a technological measure that effectively controls access to a [protected work].”
 
Blizzard’s anti-cheat measure, a program named Warden, “prevents unauthorized access to the Blizzard Games, restricts users from loading unauthorized copies of the Blizzard Games, and otherwise monitors the game client and environment for malicious or unauthorized software processes.” The program is also used to detect any third-party programs that facilitate cheating or the modification of gameplay unauthorized by Blizzard. In this case, Blizzard alleges that Bossland has violated the law by creating a program that was designed to evade Warden’s detection capabilities and violates its intellectual property rights.
 
Will Blizzard Benefit?
Although Blizzard appears to make a solid argument, a judgment in the company’s favor may not actually benefit Blizzard much because the Central District of California may not be able to enforce the judgment over the German-based company. Bossland has stated many times that it has no ties to the United States because it does not have any offices or employees in the United States, and it does not advertise or do any business on the country’s soil. It also does not use any United States based companies for its transactions. These factors will make it hard for the court to actually enforce any action placed against Bossland, a company that holds most of its assets abroad.  To enforce its judgment, Blizzard would need to attempt to have the judgment localized in Germany, which would be difficult.
 
Nonetheless, a positive ruling can still have an impact on the on-going battle between cheat software programmers and game developers. Blizzard believes a ruling against Bossland will deter other third-party software developers by showing them that it will do whatever it takes to in order to protect its brand and the integrity of its games.
 
Legislative Protections for Game Developers
Given the substantial size of the gaming industry, countries are now starting to enact legislation to protect game developers from similar harms. South Korea, one of the most progressive countries in the esports industry, passed a bill last November that protects game developers from cheating programs similar to those created by Bossland. The bill prohibits the manufacturing and distribution of programs not permitted or provided by the game developer. Violators are subject to a fine of $43,000 USD (50 million KRW) and/or up to a maximum sentence of 5 years in prison.  
 
Currently the United States does not have any laws that specifically regulate cheating software issues similar to issues in Blizzard’s case; however, with the growth of esports, game developers, including Blizzard, may see more laws with similar protections being passed in the United States in order to maintain the integrity of their games.