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TOS explanation and myths

Discussion in 'Site Discussion' started by Paillan, Jan 29, 2020.

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  1. Paillan

    Paillan

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    So... here we are. Day 2 of... well you already know. For those who are fortunate enough to have avoided the mega rant of the discord server, I bring here a topic that has been brough back there and explained by me time and time again. I hope people can link this thread so we don't have to answer this a million times. Moving on.


    What is TOS?

    TOS or Terms of Services is best described as an adhesion contract people sign online when using certain online servives. It describes what the service is, what it isn't and were the legal problems will ne solved in case there are any.


    Is TOS legal?

    This is a tricky question. While some argue that there is no concent given in a click as one isn't really signing something with their personal sign, others argue that the forced nature of it all void the contract, while more conservative approach vide for the legality of some parts which are considered fair, for something needs to regulate the relation between company and customer in the internet.


    So what's with the new Warcraft 3 TOS that came out with Warcraft 3: Reforged?
    To be very concice and simple, this TOS establishes in one of it's clauses a rule that basically means the following: "Nobody can claim ownership of Warcraft 3 maps, they all belong to blizzard" (this is NOT a direct quote). You can read the entire paragraphs here if you so wish (courtesy of @
    deepstrasz)
    "Game Editors. Certain Games include editing software (hereafter referred as “Game Editor(s)”) that will allow you to create custom games, levels, maps, scenarios or other content (“Custom Games”). For purposes of this Agreement and any agreements referenced herein, “Custom Games” includes all content created using the Game Editor(s), including but not limited to all digital files associated with such Custom Games, as well as (1) all content contained within such files, including but not limited to player and non-player characters, audio and video elements, environments, objects, items, skins, and textures, (2) all titles, trademarks, trade names, character names, or other names and phrases associated with or included within the Custom Game, and (3) any other intellectual property rights contained within the Custom Game, including any and all content, game concepts, methods or ideas. A Custom Game may only be used with the Game’s engine that is associated with a particular Game Editor. The manner in which Custom Games can be used or exploited is set forth in the Custom Game Acceptable Use Policy, the terms of which are incorporated into this Agreement by this reference. Blizzard may modify, remove, disable, or delete Custom Games at any time in its sole and absolute discretion."

    and

    "Ownership Custom Games are and shall remain the sole and exclusive property of Blizzard. Without limiting the foregoing, you hereby assign to Blizzard all of your rights, title, and interest in and to all Custom Games, including but not limited to any copyrights in the content of any Custom Games. If for any reason you are prevented or restricted from assigning any rights in the Custom Games to Blizzard, you grant to Blizzard an exclusive, perpetual, worldwide, unconditional, royalty free, irrevocable license enabling Blizzard to fully exploit the Custom Games (or any component thereof) for any purpose and in any manner whatsoever. You further agree that should Blizzard decide that it is necessary, you will execute any future assignments and/or related documents promptly upon receiving such a request from Blizzard in order to effectuate the intent of this paragraph. To the extent you are prohibited from transferring or assigning your moral rights to Blizzard by applicable laws, to the utmost extent legally permitted, you waive any moral rights or similar rights you may have in all such Custom Games, without any remuneration. Without limiting Blizzard’s rights or ownership in the Custom Games, Blizzard reserves the right, in its sole and absolute discretion, to remove Custom Games from its systems and/or require that a Custom Game developer cease any and/or all development and distribution of a Custom Game. Please note that your Blizzard account can be subject to disciplinary action in event that you do not comply with Blizzard’s request or this Policy."


    Is this legal?
    If we go by european and even some of the most unreasonable consumer laws in south america, by any means this is an abusive clause that therefore is void. However the TOS itself states that the signer and the company will abide by US laws and all conflicts will be resolved by the college of legal arbiters of california. However, this clauses of legal alteration and submition to private jurisdiction can also be considered void for the same reason, abusive clause.
    It's a different story for american modders, but some basis for the same arguments could be found (I am not very versed on american laws saddly).


    How will this affect my map? What can I do?
    It won't. Here's how the simple flow chart goes:
    1. You make a map
    2. Your map becomes popular
    3. You decide to make a game about your map
    4 blizzard might approach you for comercial reasons and MAYBE tell you to stop
    5. You continue developing on your own.
    6. Blizzard MAY sue
    If blizzard wants to claim ownership of the game idea based on the TOS that gives them ownership of the map according to them, they first need to sue you, which is an active stance that requires blizzard to actively check maps. In a personal opinion, this is aimed at popular maps which blizzard might think have a chance of becoming a game (anyone remember DotA?). However if the Blizzard Dota 2 lawsuit is anything to go by, Blizzard has a large chance of loosing this legal battles after further information I have to apologise for this missinformation. As you can see in the comment section below someone pointed out that blizzard valve's lawsuit was resolved outside of court by a private agreement, making it a very bad example for the sake of this thread. For this reason we have no legal basis to say A or B and it's an open plainfield in cases of users vs blizzard.
    I still stand by my opinion that it's unlikely blizzard sues a user unless that user really annoys them and ignores their calls.


    I have been sued. What do I do?
    First, don't panic. Contact me and I'll try me best to help you for free as much as I can. Beware that many countries have free lawyers institutions for those who can't afford one. Be smart and inform yourself, and most importantly, don't drop the legal battle out of panic. I can only recommend you this however, you are free to do what you feel is best.


    Should I even make maps... I don't want to be sued even if I win and I don't want Blizzard to own my work...
    This is a more personal opinion again, but I think you absolutely should make maps. As I mentioned, this will mostly fly by you.


    I am a coder, modeller or skinner. Does this new TOS affect me?
    No. While blizzard said that all content used in maps is theirs, one has to distinguish:
    Models can have their own license, meaning that Blizzard can't just say they own the model just because it is being used in a map. Otherwise they are engaging in intelectual property theft. In this case one has two distinct properties: the model property, which belongs to however created it. The map property, which belongs too blizzard. It is recommended you license your models, there are open source free licences in the internet.
    You can find open source free licenses here: Choosing a Free License for Your 3D Project I am not responsible for any issues you might encounter trying to license your work or for licensing it.

    Skins share the same faith, as they can be licensed as images.

    Code is a bit fuzzy. If you use Jass I am sad to tell you that Yes, blizzard owns all Jass codes.

    Lua codes and others can be licensed as open source however, and thus protected from this TOS entirely (even if we already discussed that this TOS is not enforcable).


    I hope this thread has helped you understand the situation more. Any suggestions from any other lawyers or laws studends here in the hive would be greatly appreaciated, as well as any grammar help (I am not that well versed in english law language).

    Kudos, Paillan.

    PS: review your sombreros.
     
    Last edited: Feb 3, 2020
  2. deepstrasz

    deepstrasz

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    Well, now that maps won't probably be playable offline but online requiring you to upload them on their platform as with StarCraft II unless you play them directly via the editor, the company can just remove/ban your maps that they think are unlawful without needing to sue you.
     
  3. Paillan

    Paillan

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    Considering that a report buttom was added for maps, and the sheer volume of map content, I doubt they'll take down checking on upload, rather based on report.
    And map legality is something different from map ownership, which is the main discussion.
     
  4. Alexen

    Alexen

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    I really can't stand this. Why would this come up? I have question, if we used materials from other games such as icons, spell sounds, models too etc, can something bad happen now?
     
  5. Paillan

    Paillan

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    This is the topic of map legality. Maps with rips and copyrighted material were not targets of bans before, I don't see why now.
    I think the report button was made for them to more easily find maps they are not confortable with (aka porn, racism, apoligies to hatred, etc). RIP Caterparty
     
  6. Dr Super Good

    Dr Super Good

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    That has nothing at all to do with the ToU.

    The problem was that DotA as a term was trademarked by Valve. Hence Blizzard or anyone in the western world cannot use it on a product. This has nothing to do with the DotA Allstars map, as Blizzard was just trying to use the name like so many silly map developers had before. Blizzard DotA was what became Heroes of the Storm, and it shares nothing, like it did from the start, with DotA Allstars.

    The ToU does not stop map makers trademarking or copyrighting their ideas. Blizzard only owns the map however if Blizzard tried to enforce their ownership and deny the author then the author could remove the map's right to use their intellectual property and hence Blizzard could not use the map anymore.

    I suspect it is there so that maps are technically owned and that Blizzard legal team can enforce reasonable laws on custom maps. For example a map like "Nazi concentration camp simulator" can be legitimately pulled down from the servers.
    SC2 has operated the same ToU for 10 years now. No one has been sued.

    There were a few cease and desist orders sent. But that was for other reasons, usually involving copyright claims from Blizzard (was accidental, they thought they were really making a SC MMORPG and not a SC2 custom map) or copyright claims from other companies. I think some people trying to commercialize their map not through Blizzard may have been hit, but that is because allowing such unauthorized micro transactions would break the age rating up to 18 and make the game illegal in many countries.

    Keep making maps. Unless you do something spectacularly stupid or ethically incorrect then you will not be sued. Blizzard support map making, even if people like the topic creator are trying to make it sound like they do not.

    If your map is popular and Blizzard is interested in it then they will likely try to contact you to come to some form of commercial agreement. This includes profit share of any in game transactions. Desert Strike in SC2 is an example of this.

    You are also free to ask for donations in the map as long as they offer no advantage to gameplay. If they offer advantage to gameplay then that is effectively pay to win gameplay which runs fowl of some country laws which is why it cannot be permitted.

    Blizzard like custom map makers. They will not spontaneously take your map.
     
  7. DracoL1ch

    DracoL1ch

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    thats your mind, and not their. moreover, there were 0 dota-like projects for the past years, thats why we have no idea how blizzard may react.
     
  8. FeelsGoodMan

    FeelsGoodMan

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    This has been in place for a long time though, very little has changed. 99% of Warcraft 3 modders aren't trying to monetize their maps anyway, and not only Blizzard can steal your concept and monetize it, anyone who plays your map can also take your concept and re-create it in Unity or whatever else.

    If you're a serious game/map developer who wants to monetize your maps then Warcraft 3 isn't the platform to use.

    Not only Blizzard has rules like this, all social media platforms also "owns" peoples works. If you as a 3D designer or graphics designer post your work directly on Facebook they will own all rights to your content, and you are no longer allowed to monetize your own work. This is nothing new. It's a scummy practice sure, but nothing new so I don't understand the sudden outrage over this when there are 10000000 other things that has broken the game.
     
  9. DracoL1ch

    DracoL1ch

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    Doubt anyone here even thinks about monetization. It's about their ideas not being stolen right away if the shot is good. and it's cheaper to test an idea on wc3 AND then move on to Unity rather than vice versa
     
  10. FeelsGoodMan

    FeelsGoodMan

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    Anyone can do that though, not only Blizzard.
     
  11. DracoL1ch

    DracoL1ch

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    yeah, but blizzard will be behind the wall "you've seen the TOS, you've gifted this project to us"
     
  12. FeelsGoodMan

    FeelsGoodMan

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    To play the devils advocate a bit here, it is strictly speaking within their right to do so, which means (as also previously stated) that anyone who are serious about developing games should do so in other platforms, not Blizzards.

    One can argue that testing maps in Warcraft 3 is "cheaper", but nothing stops you from developing games offline and testing it there. If you want community/player feedback on a map then that concept is already up for grabs by anyone who might wish to create derivative works or near direct copies as one can't copyright a concept or idea. Blizzard just has more resources than most people and will be able to develop a working version faster.
     
  13. DracoL1ch

    DracoL1ch

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    did you just said 'offline'? blizzard would like to have your internet connection now
     
  14. FeelsGoodMan

    FeelsGoodMan

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    If for the sake of testing just use an older version.
     
  15. Paillan

    Paillan

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    I decided to add a bit of extra info to the 5th point, aka "How will this affect my map? What can I do?" For extra clarity sake's since some people seemed confused.

    I'd also like to point out that I never advocated stopping modding, in fact the very opposite.
     
  16. BlinkBoy

    BlinkBoy

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    You have one big mistake here. The DOTA issue wasn't a lawsuit. It was a trademark dispute which is different to copyright claims. Under their trademark dispute, Valve should have not been allowed to acquire the trademark for Defense of the Ancients(Dota) due to prior and continuous use of the trademark in question within Warcraft 3 and Starcraft 2. Normally when a company/person tries to acquire a trademark, the USPTO(United States Trademark and Patent Office) presents it to the public and a transition period is giving between the request of a trademark and its grating. In this period the public may present disputes which could void the original pursuer's claims. Under this situation, Blizzard's dispute could have avoided Valve from claiming ownership to the DOTA trademark. In order to prevent that, Valve and Blizzard settled Blizzard's dispute outside of court under the next simple terms: Valve would renounce claims for the trademark use within Blizzard's Warcraft 3 and Starcraft 2 and Blizzard would drop their dispute to the UPSTO. It was that simple,

    As a former Staff member, I ask you kindly to amend your message. Also for this kind of topics. It is better to coordinate with the rest of the Staff's members and try to stay as objective as possible. Rather than an FAQ, this felt more like "My opinion placed on official format".

    Dearly,

    Blinkboy.
     
  17. Ezekiel12

    Ezekiel12

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    I would like to know if the uproar about the TOS is justified in any way. That means I would like to know what actually changed from let's say 1.26 to now and if those changes warrant so much fuss.

    Would be good to have that in the OP.
     
  18. deepstrasz

    deepstrasz

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    Changed or not, this is the gripe

    "Game Editors. Certain Games include editing software (hereafter referred as “Game Editor(s)”) that will allow you to create custom games, levels, maps, scenarios or other content (“Custom Games”). For purposes of this Agreement and any agreements referenced herein, “Custom Games” includes all content created using the Game Editor(s), including but not limited to all digital files associated with such Custom Games, as well as (1) all content contained within such files, including but not limited to player and non-player characters, audio and video elements, environments, objects, items, skins, and textures, (2) all titles, trademarks, trade names, character names, or other names and phrases associated with or included within the Custom Game, and (3) any other intellectual property rights contained within the Custom Game, including any and all content, game concepts, methods or ideas. A Custom Game may only be used with the Game’s engine that is associated with a particular Game Editor. The manner in which Custom Games can be used or exploited is set forth in the Custom Game Acceptable Use Policy, the terms of which are incorporated into this Agreement by this reference. Blizzard may modify, remove, disable, or delete Custom Games at any time in its sole and absolute discretion."

    and

    "Ownership Custom Games are and shall remain the sole and exclusive property of Blizzard. Without limiting the foregoing, you hereby assign to Blizzard all of your rights, title, and interest in and to all Custom Games, including but not limited to any copyrights in the content of any Custom Games. If for any reason you are prevented or restricted from assigning any rights in the Custom Games to Blizzard, you grant to Blizzard an exclusive, perpetual, worldwide, unconditional, royalty free, irrevocable license enabling Blizzard to fully exploit the Custom Games (or any component thereof) for any purpose and in any manner whatsoever. You further agree that should Blizzard decide that it is necessary, you will execute any future assignments and/or related documents promptly upon receiving such a request from Blizzard in order to effectuate the intent of this paragraph. To the extent you are prohibited from transferring or assigning your moral rights to Blizzard by applicable laws, to the utmost extent legally permitted, you waive any moral rights or similar rights you may have in all such Custom Games, without any remuneration. Without limiting Blizzard’s rights or ownership in the Custom Games, Blizzard reserves the right, in its sole and absolute discretion, to remove Custom Games from its systems and/or require that a Custom Game developer cease any and/or all development and distribution of a Custom Game. Please note that your Blizzard account can be subject to disciplinary action in event that you do not comply with Blizzard’s request or this Policy."

    Blizzard End User License Agreement - Blizzard Legal
    Custom Game Acceptable Use Policy - Blizzard Legal
     
    Last edited: Jan 30, 2020
  19. Paillan

    Paillan

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    First, thanks on the feedback. I wasn't completely sure about the dota lawsuit, tho I knew it was because of name use. It was mostly meant as an example (but I have to agree that it's a bad example).

    I'd like to point out that I did this thread not as a staff member, but a modder with laws knowledge. Maybe I posted it in the wrong section, I wasn't really sure were to post this. If that's the case I would gladly have it moved somewhere else. I want to make it clear that this thread was NOT made as my position of reviewer, but as user.

    I like to point out that I tried to be as objective as possible, which I know is hard to self determine.

    I'll edit a bit more to remove some biases and add the info about dota lawsuit you just gave me.
     
  20. ThompZon

    ThompZon

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    So right now I started my WC3 editor to get the links to read the new documents.
    I didn't want to accept at this moment, so I right-clicked the process and clicked "Close Window". The TOS-window disappeared and the editor opened.
    I exited it and restarted it, no new TOS.

    I have never clicked accpet to any TOS and I noticed the formulation "you hereby assign to Blizzard ".
    Does this mean anything? You can bypass the TOS without accepting and, by the formulation "you hearby assign", NOT "by using the editor you assign ...".

    Great job with this thread btw