Mark Brown and Rosalie Hayes
Over the past year, Bristows has been representing video game publisher and distributor Blizzard Entertainment in an industry-changing High Court case against the cheats and bots maker Bossland GmbH.
Blizzard, the company behind World of Warcraft, Overwatch and Diablo, instructed Bristows to start proceedings in the UK after successfully obtaining a German injunction against Bossland in 2016. Bossland, a German company, is a major global player in the cheats and bots market and had been selling software which enabled players of certain Blizzard games to gain an unfair advantage over other players. The bots allowed the user to automate play, whilst the cheats had various benefits such as showing the user where other players were located or providing them with game information that is usually hidden.
It was not possible to prove that Bossland were copying Blizzard's software code, so two alternative causes of action were argued. First, Blizzard claimed that Bossland were inducing breach of contract, namely the terms and conditions that all players have to agree to when buying Blizzard games. The T&Cs varied from game to game, but all contained clauses forbidding the use of unauthorised third party software designed to modify the gaming experience. It was Blizzard's case that Bossland had played an active role in making players breach those clauses. Evidence of this could be found on the Bossland support forums, where Bossland frequently encouraged use of their cheats and bots at the same time as warning users that doing so might infringe Blizzard's T&Cs. Bossland also put in place various countermeasures to avoid triggering Blizzard's anti-cheat software that stopped anyone playing their games if cheats or bots were detected.
The same evidence was used to support Blizzard's second cause of action: that Bossland had authorised users of their software to infringe Blizzard's copyright, and in doing so had infringed copyright law themselves. There was copyright in both the artistic works in Blizzard's games (elements like the imagery and music), and in the software itself. Blizzard argued that although players had a licence to use that copyright while playing the games, as soon as a player breached the licence (i.e., by using a cheat or bot), that licence came to an end. As a result, continuing to play would infringe the game's copyright from that moment onwards. Blizzard then argued that Bossland authorised this infringement by encouraging players to use their cheats, again evidenced by the forums and steps taken to avoid detection.
Very soon after starting proceedings in September 2016, Blizzard successfully applied for an injunction which prevented Bossland from selling or promoting any cheat or bot relating to the Overwatch game. It also forced Bossland to take all steps which lay within their power to prevent members of the public in the UK from buying an Overwatch cheat or hack, and from accessing the websites that sold and forums that discussed the products. Following a second hearing on the injunction application a few months later, the terms of the interim injunction were secured pending trial.
In March 2017, principally due to the strength of the causes of action in copyright infringement and inducing breach of contract, Bossland conceded the entirety of the main claim - not just in relation to Overwatch, but also to the World of Warcraft series, Diablo III, Hearthstone and Heroes of the Storm games. The High Court entered judgment and made a final order which extended the previous injunctions' terms to all five of the relevant Blizzard games. It also required Bossland to disclose details of its revenues, costs and margins relating to sales of its infringing products so that Blizzard could decide whether to elect for an account of profits or an inquiry as to damages, and to publish for six months a prominent notice on its website’s home page acknowledging its infringing activities and referring to the court order. The court further ordered Bossland to pay the large majority of Blizzard's legal costs.
This case is of real significance for the gaming world, because it is the first to show a clear legal pathway for preventing companies (irrespective of where in the world they are based) from promoting and selling cheats and bots in the UK. The two lines of attack - inducing breach of contract and copyright infringement - were highly effective even though the case did not proceed to trial: the court was willing to grant Blizzard's interim junction, following which Bossland was under enough pressure to agree to the injunction's terms and eventually admit all wrongdoing. Further, the unusually high costs award was a strong indication of the strength of Blizzard's arguments and the damage caused by Bossland's behaviour. As yet, it does not seem that bots and cheats manufacturers have been noticeably cowed by the success of Blizzard's case. However, all games manufacturers should be aware that there is now a tried and tested method of bringing these companies to account, as the same types of arguments could well be adapted and utilised in claims against other producers of cheats and bots.