Cynthia Zhang is an IP Intensive Student and a 3L JD Candidate at Osgoode Hall Law School.

American gaming company Wizards of the Coast (“WOTC”), a subsidiary of Hasbro, is perhaps best known for publishing Dungeons & Dragons {“D&D”), the tabletop role-playing game that has brought barbarians, beholders and basilisks to life for nearly five decades. Of course, D&D isn’t the only property that WOTC has acquired since its inception. Recently, the company has been over Star Frontiers: New Genesis, a proposed reimagining of a sci-fi tabletop RPG originally published in the 1980s. After a test copy of New Genesis was leaked online, WOTC took issue with development company TSR LLC’s use of their IP rights in the game. This is an interesting example of how intellectual property law can be utilized to smother the proliferation of harmful views. The context surrounding the litigation shows that protecting business interests is not trademark law’s sole function.��

Gaming enthusiasts were disturbed by the leaked game’s . The disclosure of this content follows an established record of publicly expressed homophobic, transphobic and racist views from the owners of TSR LLC.��

In light of this controversy, WOTC has filed a against TSR LLC to prevent publication and distribution of New Genesis. The company argues that since the game uses trademarks belonging to it, having WOTC associated with such “reprehensible content” will damage WOTC’s reputation, goodwill, and undermine the cause of embracing diversity in fantasy gaming. This motion represents the latest development in the greater claim and counterclaim between the two companies which was initiated in .��

TSR LLC’s position is that they are entitled to own and use both the word marks “TSR” (the name of the original company that published the first iteration of D&D) and “Star Frontiers”, since WOTC allowed registration in these marks to lapse in the 2000s. For its part, WOTC claims that it retains common law interest in these marks, on the basis that it has continued to use the marks since at least 2012. Since then, WOTC has licensed the marks to another company which sells older editions of both D&D and the original Star Frontiers. In its injunction motion, WOTC considers criteria based on the under US law. WOTC asserts that TSR LLC cannot register the marks in question because of factors such as proximity of goods, similarity of the marks, marketing channel convergence, and ultimately, consumer confusion.

In support of its injunction request, WOTC claims that it will suffer irreparable harm if New Genesis is released. WOTC states that it has built up significant goodwill in the marks at issue, which will be negatively affected by being associated with the views expressed in New Genesis. Moreover, WOTC notes that it has taken efforts to in its products, a directive which is squarely at odds with the apparent sentiments of TSR LLC.��

Compared to other practice areas, trademark law is often seen as purely a business mechanism. Because of how it functions, it can be easy to conclude that trademark law isn’t directly relevant to the cause of justice or societal progress. However, a proceeding like that between WOTC and TSR LLC can suggest otherwise. Forwarding more abstract values can indeed be accomplished through trademark law as well, and it doesn’t take a wizard or a warrior to do so. We will be following the outcome of this dispute as litigation continues.

The post Roll for Initiative! How Wizards of the Coast’s trademark dispute is helping to keep the nasties out of tabletop gaming appeared first on IPOsgoode.

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Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

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Over the past few years, there have been several novel legal issues in the gaming industry. For example, in early 2018, there was a . The PUBG Corporation claimed that PUBG was the first game to introduce a “battle royale” mode, therefore considered to be the first true entry in the genre, while Fortnite copied the concept and infringed on the PUBG Corporation's work. The legal battle was settled privately, but what could the results have been if the parties decided not to settle?

Around the early 2010s, there came a point where - due to the increasing prevalence of mobile gaming - various “clone” games popped up whenever a popular title was released. When Dong Nguyen’s Flappy Bird was released on the Apple Store in 2013, it was the absolute craze for mobile gamers to get as high as a score as they could. Nguyen’s game inspired an explosion of similar games to flood the mobile digital market, with names just screaming copyright infringement, such as Maverick Bird, Fall Out Bird, and Flappy Doge.

Essentially, if a game “looks and feels” like that of a similar game, .[1] The look and feel test was adopted in , where there was such substantial similarity between the visual expressions of the two games that this was akin to literal copying. Similarly, a court can use the , which would divide a game into pieces to find which elements are ideas and which elements are expressions of the idea.[2] The , who created a similar game to PUBG called Rules of Survival. However this was again settled out of court. The case between Epic Games and the PUBG Corporation differs, as Rules of Survival looked much more like PUBG in terms of visual and mechanical expression than Fortnite does. The Fortnite position , as the claim looked to give a monopoly to Epic Games on the battle royale game mode, and if successful, may have opened the gate for more speculative claims to be brought forth.

Along with clone games, recent copyright litigation in the video game industry includes issues of dance choreography. Most notably, Alfonso Ribeiro claims that his performance of the “Carlton dance,” in the Fresh Prince of Bel-Air �����ٳ��dz�’s Will’s Christmas Show episode, was being infringed by Fortnite selling an “emote” called Fresh, which enables a player to dance in a way that is pretty similar to the Carlton dance. While initially rejected by the Copyright Office, if claims are re-filed, a court can make the determination to whether the Carlton dance is sufficiently developed to be found as a protectable choreographic work.[3]

All in all, I have taken great pleasure in exploring the novel legal issues currently emerging in the gaming sector. As someone who has been impacted by the industry in such a personal and meaningful way, I look forward to seeing how the industry grows and analyzing how the law adapts to these changes, hopefully in a way that encourages innovation while also protecting creators.

Written by Daniel Bartolomucci, a third year JD Candidate at Osgoode Hall Law School

[1] Peter Lee & Madhavi Sunder, "The Law of Look and Feel" (2017) 90:3 S Cal L Rev 529 at 540.

[2] Nicholas M Lampros, "Leveling Pains: Clone Gaming and the Changing Dynamics of an Industry" (2013) 28:Annual Review Issue BTLJ 743 at 766.

[3] Ross Bagley, "You Stole My Dance Moves: Copyright Lawsuits over Choreography against Creators of Fortnite" (2020) 30:1 Intellectual Property Litigation 2.

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As previously mentioned, esports share many of the common elements found in traditional sports. There are professional leagues, teams, sponsorships, media deals, agents, and fans. However, unlike traditional sports, esports differ most significantly in the proprietary nature of the activity. Major League Baseball does not own baseball, the National Hockey League does not own hockey, the National Basketball Association does not own basketball, but in the Overwatch League (OWL), someone does own Overwatch. Overwatch is, therefore, eligible for copyright protection as an audiovisual work. In Canada, the does not identify video games as a specific category of work. However, the courts have recognized  video games to be protected by copyright, both as a whole and in its individual elements such as the soundtrack, voice acting, character design, and level design. For the most part, the owner of the copyright in a video game is the game’s producer.

Similarly to most copyright owners, game producers assert their exclusive rights by controlling reproductions, distributions, public performances, and creations of derivative works that involve or stem from their copyright-protected work. In esports, these exclusive rights provide game producers with significant power over the direction of the industry. Game producers possess the ability to dictate not only the use of their games in tournaments, but also the way the tournaments will function, and even who can participate in the tournaments. Game company Activision Blizzard’s recent decision to switch from a merit-based league to a franchised league for its game Call of Duty is one recent example of a producer exercising this control. This decision was ultimately met with criticism after the iconic Call of Duty World League (CWL) team backed out of the estimated $25 million franchise fee required to join the new franchise league. Their decision effectively concluded their participation in the game Call of Duty for the time being.

Given that tournament organizers, teams, players, broadcasters, spectators, and advertisers all rely on access to a publisher’s IP to participate in esports markets, there is a concern that a publisher’s behaviour could constitute anticompetitive IP exploitation. As one , a game publisher’s IP in a game effectively grants them a permissible monopoly, and publishers will rationally seek to minimize competitive pressure from other entities in the market through vertical integration of the downstream market. However, the issue of whether a single videogame could constitute a relevant market under competition law is unclear. Currently, there are many different esports leagues, numerous publishers, and countless current and emerging games, as opposed to just a single league with monopoly power. Moreover, it would be difficult for any would-be plaintiff to demonstrate that a publisher’s actions were anything not otherwise already afforded to them through federal IP protection. While it’s unlikely there would be any clear violations of competition law, those within the esports industry need to be cognizant of these issues, particularly in an era in which publishers are demanding franchise fees in the tens of millions of dollars for games yet to be released.

While publishers will often flex their IP muscle at the expense of tournament organizers, leagues, teams, advertisers, and broadcasters, there is one particular area where publishers typically turn a blind eye – streaming. When a user purchases a game, what they are buying, in addition to the physical copy, is a copyright licence to make use of the game subject to certain terms and conditions. Generally, streamers receive a “carte blanche” from publishers when it comes to streaming on services such as YouTube and Twitch because it makes commercial sense given the promotional value that streamers provide to the game.

The recent launch of the game Apex Legends is a testament to the influence that streamers have on the industry. Much of the game’s early success can be attributed to clever marketing on behalf of the publisher. s indicate that the game’s publisher, Electronic Arts Inc (EA), paid a number of streamers, including a reported $1 million to top streamer Tyler (Ninja) Blevins, to play the game for the week. The game was an instant success, the game generated over 25 million players, with nearly 64 million hours of live viewership on the streaming site Twitch. All this success occurred even though the game was not announced to the public until a day before it was actually released!

While the gaming community is certainly capable of giving a game life, it also possesses the power to take it away. In 2017, fans organized a of EA’s Star Wars Battlefront II to protest the game’s unfair use of “”. As a consequence of the boycott, EA failed to meet sales targets by roughly one million copies, their stock price fell, and their reputation was permanently damaged. Needless to say, the gaming community plays a significant role in this emerging industry, acting as a type of de-facto regulator in a mostly unregulated industry. 

From an outsider’s perspective, there often appears to be unbridled control on the part of game producers in the esports industry. Still, it should not be forgotten that a game’s real success depends on its reception in the gaming community. If a game producer chooses to deploy exploitative IP strategies, copystrike its players, or engage in manipulative profit-maximization, the community will be aware, and a game publisher will suffer.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

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This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,�� where�� it ��is�� seen�� as�� a ��mechanism�� for�� blocking ��out�� competition�� and ��censoring��criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

Tina Mirzaei��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

[5]��Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September ��11, ��2017), ��online:���� ��<https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

[9]��Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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Lohan’s complaint falls under the category of “right to publicity” cases, a��claim that is based on a person’s right to have control of where and who is able to depict them in public. ��The statutory basis for the complaint is , which states that liability may be found when "a��person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person."��Lohan that Lacey "incorporate[s] her image, likeness, clothing, outfits ... identical events to the Plaintiff's life ... making it unequivocal that the Plaintiff was the intended referent."

While many states have to New 91��ɫ’s Civil Rights Code Section 50, right to publicity case law is plentiful in California, where famous faces and movie-star mugs abound. involving video games arose in 2012 between NCAA college athletes and Electronic Arts (EA), the publisher of a game unsurprisingly titled NCAA Football. Although, like Lacey Jonas, the characters in NCAA Football didn’t share the names of the players upon whom they were allegedly based, they did share other vital characteristics, including age, weight, height, position, jersey number, college affiliation, hometown, and other, more subjective statistics including speed and strength. The fact that the real and virtual versions of the athletes in question were identical on many levels besides their names, when taken together with the similar contexts in which the real and virtual athletes existed (the football field), led the appeals courts to rule in the athletes’ favour using a transformative use test.

This test examined whether the use of the plaintiff's likeness was "transformative" in nature: whether it used creative and expressive elements beyond literal recreation of a real person in the game. In both NCAA cases, the courts found that since the virtual football players were almost identical to the plaintiffs except in name and were engaged in the same activity (football) in the same context (college athletics in real-life arenas), EA's use of the athletes' likenesses was not sufficiently transformative to form a defence. However, a previous case, , had the opposite outcome. In that case, Kirby, a professional singer, alleged that Sega had appropriated her likeness in a video game��character named Ulala. However, the Court of Appeal, Second Circuit found that there was sufficient difference between Kirby and Ulala for Ulala to constitute a transformative work. The court found differences in dress (retro 60s vs futuristic) and occupation (professional singer vs space-reporter) persuasive in making its decision.��Although the outcome of these cases were quite fact-specific, it is at least possible that a court will look to them for guidance, especially since the complaints in the previous cases and the current Grand Theft Auto V case each arose in a video game context.

On the above factors, it seems that Lacey Jonas falls somewhere between the realistic, near-literal depictions of college athletes in their real-life environment and with obvious attention paid to details such as height and weight, and the space age reporter Ulala, so different from Kirby (if she was even based on Kirby in the first place) as to be nearly unrecognizable. Lohan may have a difficult time showing that Lacey is meant to be an unequivocal reference to her, as the "blonde, vapid celebrity hounded by paparazzi" trope is well-established, and Lohan is not the only real-life example. Furthermore, although the setting of Grand Theft Auto V is clearly a city inspired by Los Angeles, the events that transpire during the game are plainly ludicrous, probably sufficiently so to bring them outside the realm of realistic football stadiums and into that of outer-space news agencies. The player can race a stolen supercar through traffic, fight aliens, orchestrate elaborate explosions, and more that many would consider outside the scope of "realistic" depictions of people and places.

Lindsay Lohan has likely never accepted the help of a stranger to escape the paparazzi by tearing through the streets of Hollywood in a stolen sports car. The question for the courts will be: is the depiction of her doing so transformative enough for Rockstar to avoid liability? Or could Lohan successfully argue it is close enough to her actual likeness to infringe her right to publicity?

Adam Chan is an IPilogue Editor and��graduate of the University of British Columbia Faculty of Law.

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The ValiantChaos MapHack, sold by the defendants in the suit, changes the gameplay of StarCraft II by allowing the player using the hack to see the whole play area. Under usual gameplay conditions, only a small portion of the play area is visible, with the rest of the map obscured by the��“fog of war”. The user of the ValiantChaos program thus gains an advantage over his opponent, unless that player is also using the hack. Due to the significant��difference in financial resources��available to��the two parties, it is unlikely that the case will ever see the inside of a courtroom. But what if it did?

Blizzard’s compliant consists of several counts, including direct, contributory, and vicarious copyright infringement, and claims that the distribution of the hack has caused irreparable damage to the game experience. Blizzard is seeking statutory damages, as well as a preliminary injunction against the creators of the hack that would prevent them from distributing it further.

MDY Industries v Blizzard Entertainment

This is not the first time that Blizzard has gone after programmers for modifying the game experience in one of its online multiplayer titles. In , Blizzard sued the developers of a World of Warcraft “botting” program, which allowed a user to automate the actions of her in-game character. She could thus reap the rewards of playing the game, such as in-game items or experience, without actually having to play. Blizzard was successful in obtaining a summary judgment against MDY for tortious interference with contract, contributory and vicarious copyright infringement, and violation of the (DMCA) provision prohibiting circumvention of technological protection measures (TPMs), which the Glider bot program did. On to the Court of Appeals for the Ninth Circuit, the court reversed the district court’s finding of liability for secondary (contributory) copyright infringement and part of its finding of liability under the DMCA. However, it upheld the judgment against MDY for trafficking in technologies that circumvent a TPM that “effectively controls access”��to a copyright-protected work [1].��Finally, the appeals court found that the tortious interference with contract count was inappropriate for summary judgment, and remanded it to the district court for reconsideration.

Will the results of the ValiantChaos MapHack case mirror those of MDY?

In MDY, Blizzard argued that because the users of the Glider program acted contrary to the terms of use and license agreement that they had agreed to upon installing the game, they exceeded the scope of the license they had been granted to reproduce the code of World of Warcraft and therefore infringed Blizzard’s copyright in the code. In its complaint in the current suit, Blizzard chose not to employ the same approach. Instead, it focused on direct infringement, arguing that the creators of the hack created an unauthorized derivative work of StarCraft II in the process of reverse engineering it in order to create a new program. Further, Blizzard contends that the hybrid program created by installing the ValiantChaos hack on top of the original StarCraft II code also creates an unauthorized derivative work.

Focusing solely on the counts of direct, contributory, and vicarious copyright infringement, the key consideration for the court will likely be whether the ValiantChaos hack is a derivative work under the Copyright Act. One of the more relevant cases on video game “mods” is , which involved a hardware modification called the Game Genie that allowed players to modify the gameplay of games played on the Nintendo Entertainment System. The district court in Galoob ruled in��the��"mod" developer's��favour, finding that the Game Genie did not create derivative works of games published by Nintendo. This judgment was by the Ninth Circuit. Crucial to the reasoning of both courts was the fact that the Game Genie “is useless by itself, it can only enhance, and cannot duplicate or recaste, a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges.”

The ValiantChaos hack shares these characteristics: it exists only to be used to supplement the StarCraft II experience and has no independent utility. Furthermore, use of the hack requires a copy of StarCraft II – the creators of the hack do not seek to supplant demand for Blizzard’s game. Indeed, if demand for StarCraft II did diminish, so would demand for their product. Moreover, the effect of the Game Genie is similar to that of the ValiantChaos hack in that it allows a player to make the game easier for herself. The fact that, as Blizzard mentions multiple times in its filing, the ValiantChaos hack is used in a multiplayer context, potentially harming the game experience for another player, is likely to be irrelevant in considering whether it is a derivative work.

However, in the Ninth Circuit qualified the conclusions it reached in Galoob. At issue in this case was whether MAP files – player-made files containing arrangements of pre-existing art and characters for the game Duke Nukem – were unauthorized derivative works. In the end, the Ninth Circuit distinguished the MAP files from the Game Genie by stating that they described the audiovisual displays of the game, and therefore were permanent and fixed, unlike the displays produced by the Game Genie. Because the MAP files used the art assets of the game, the Ninth Circuit held that they were derivative works in the same way sheet music of a copyright-protected melody would be.

There is certainly room for the creators of the ValiantChaos hack to argue that their program is closer in operation to the Game Genie than it is to a MAP file. Its operation is limited to revealing the in-game map for a player, a small change that does not provide a wholly different gameplay experience. Moreover, though the Micro Star court did not say so, the MAP files had the potential to supplant demand for the original game. New player-created MAP files, representing new gameplay experiences, may have decreased demand for a potential official expansion to Duke Nukem. The MAP files differ from the Game Genie in this small, but important, aspect. The ValiantChaos hack has no potential to supplant demand, though it alters the game by making it easier – it is somewhat akin to the ability to skip obstacles granted by the Game Genie.

In the end, the game may be over before it begins

However, this prognosticating over the legal arguments that might be made by either side in a potential court case is likely to be all sound and fury, signifying nothing. The creators of the ValiantChaos hack are just that, hackers. They do not have the resources for a drawn-out court case against one of the largest video game companies in the world. The overwhelming likelihood is that they fold in the face of the legal threat, which is probably just what Blizzard expects them to do.

[1] 17 USC §1201(a)(2).

Adam Chan is an IPilogue Editor and graduate of the University of British Columbia Faculty of Law.

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