What would have been a fair profit/ownership sharing model?

[hexhound]

This thread is about business solutions, sorry if this is the wrong forum for it and feel free to move. I put it in Reforged discussion because here is where most of the talk about the new EULA is.

Me and my buddy had a chat about the EULA the other day, and we got to talking about what would have been a fair amount of ownership for Blizzard to have in your self-made custom map project, in order for you to feel like you still want to develop it on their platform, and them still feeling like they're not just breeding their own competition.

My suggestion would be something like:
*You still own your IP and self-invented mechanics (to the degree that it's unique and copyrightable to you)
*Blizzard retains exclusive rights to some significant percentage of eventual profits - say 20-40% for 2-5 ish years
*Gradually as years go by, Blizzard's slice of the pie is reduced in size, assuming you're still developing the project continually and they're a passive income earner at that point
*Blizzard has the right to choose to invest in marketing efforts on behalf of your project, and if they do so they retain the right to their original % slice of the pie for a longer time, in proportion to the amount of marketing they gave you.
*After X (5?) years of money coming in, you have the right to move your project off of their platform entirely, in exchange for a final payout to Blizzard of some amount that's reasonable in reference to P/E or similar numbers for existing publicly listed gaming companies at that time.

What do you think would be a reasonable solution? Is there one that's win/win enough for Blizzard to consider changing their EULA?

 

[deepstrasz]

I think they should only have the right to take down your map if it contains illegal stuff. They should not have any right to make profit out of it more than people buying their game to be able to play the map.
Any intellectual property (includes arts) belongs to the map author if it is original and not taken from somewhere else. What doesn't belong to the author is a risk for the author to have the map taken down.

This, if maps are to be uploaded on the company's database like with StarCraft II's Arcade. Otherwise, if it's like now, via offline and not always online play, they can't do anything about it and only the site that hosts such a map could do something like removing the map.

So, it should not be of concern what people do with Warcraft III in terms of legality. If you buy a knife and kill somebody, it's not the knife manufacturer's fault.

 

[MaoLi]

What do you think would be a reasonable solution?

The one that makes the most sense is Deepstrasz's here above. The company sells a tool, the user PAYS for it and then what the user makes with it is his or her thing.

Yours is plain USURY, but it has the "benefit" (lol!) of being a definite "win" for the company. Im very skeptikal it can be effectively be written in legal terms without being abusable
(I believe that, for the company, it's a can of worms made of potential future lawsuits over profits. Why bother with it if the company can seize everything for free with a donation codified in the EULA? If I was the company, I'd never accept your proposed deal over the current eula)

Is there one that's win/win enough for Blizzard to consider changing their EULA?

No. There can't be more win for the Company than it already exists with the current wording.

 

[Tommi Gustafsson]

But it is not a win, if people do not accept the EULA and move to other modding platforms.

 

[Hyperdrift]

I don't think the Custom Game Acceptable Use Policy will be accepted by the community until they remove this portion:

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.

I think the most they could get away with is requiring the user to grant Blizzard a non-exclusive license to their copyrights. Although at this point, the riot will be almost impossible to quell without major concessions.

 

[Cheezeman]

I really don't think that their EULA is enforcable. If someone with good lawyers challenged Blizzard's claim of ownership, Blizzard would lose.

 

[disruptive_]

The EULA is enforceable a priori as any contract is. Maybe some of you have consumer law rights that could apply on this context, specially actions to make certain abusive clauses have no effects (void). Maybe in your system judges can modify contracts that are too harmful for one party. But maybe not. Or maybe you try to do that and the judge determines that the clause is all right. Until a judge gets the case, the EULA is enforceable.

The clause you are all talking about is nothing new but the "DE FACTO ASSIGNMENT" interpretation you are all fearing is the weakest one and doesn't even apply. TL/DR: YOU HAVE YOUR IP.
1. Authors acquire copyrights by virtue of creating an eligible work (original expresion, fixated). The only exceptions one could note (please see your copyright law) are people that create works as virtue of a service o laboral relation/contract. On these cases the hirer/employer is the original titular of the copyrights. Other IP, like patents and trademark (industrial property) are acquired by registration.
2. All other people COULD become titulars only if THE AUTHOR makes an ASSIGNMENT of copyrights. The technical concept is ASSIGNMENT and not license. This concept also apply to industrial property.
3. What that clause in the end means is that Blizzard can force you (if they want) to make the copyright or IP ASSIGNMENT, any kind of ASSIGNMENT (all rights, some rights, one right). Regarding industrial property, Blizzard can only force you to make the assignment if you actually have a patent, trademark, etc (ie. you followed the registration proccess). Most of you guys will not even atempt to registrate an industrial property regarding a wc3 MOD, so realistically, copyright is the more problematic IP.
4. Before such ASSIGNMENT, that must be done with all due formalities that your copyright and IP system prescribes, the original titular (author) is the sole owner of the copyright.
5. Copyright and IP ASSIGNMENTS are hardly ever free of charge, and in some systems the original titular (author) has a express right to get a remuneration. In fact, the conditions of the ASSIGNMENT must be in fact negotiated, because the clause we are comenting doesn't contain anymore details. Here one must presume that Blizzard is the one interested in doing so.
6. Before the ASSIGNMENT is made, authors must just not make too much trouble:
6.1. If you make an ASSIGNMENT to a third party, specially a party that apperead after you accepted the EULA, then Blizzard can sue you for breach of the EULA (very easy, unless you say that that clause is abusive, not binding, etc) and maybe sue the third party for contract interference (very hard). Still, for the third party the EULA has no value (ie. is not binding). This is the old Icefrog, Blizzard, DOTA, Valve case, that Blizzard still remembers and that ended up in a settlement because the clause we are speaking of didn't exist.
6.2. If you began to commercially exploit your copyrights and IP, then you: a) give yourself visibility so Blizzard can exercise and force the ASSIGNMENT, and b) MAYBE breach another clause of the Custom Game Acceptable Use Policy (art. 5) that prohibites commercial use of the map (and presumably the IPs it may contain) other than with Blizzard.
7. Still, even if YOUR IP is not in a precarious position, some of you, MOST of you in fact, are probably still using assets or media (cinematics, models, icons, sounds), or anyother related IP of Blizzard (pieces of program code, characters, names) on your maps. Maybe you are expresselly making a "Custom Campaign of WC3" (a clear derivative work). Realistically, is very hard to purge a custom map from Blizzard copyright protected content, as the Editor is not a game engine.

 

[hexhound]

thanks for your replies, the legality/enforceability side of this is covered much more extensively in other threads which you'll no doubt find nearby.