In the first decision, the Higher Regional Court of Hamburg (docket no. 3 U 86/13) has confirmed the Regional Court’s order to the bot manufacturer to cease distribution of their software in Germany. According to the judges, automation bots destroyed the balance of the game, made honest players unhappy, and therefore unfairly hampered Blizzard’s commercial exploitation of its MMO. Under these circumstances, the court also found the use of the “World of Warcraft” name to advertise the bots to be an infringement of Blizzard’s trademark.
The court also made an interesting statement (albeit as an obiter dictum) regarding the game’s EULA: Even under the notoriously strict German rules on the enforceability of clauses in standard agreements, the ban on bots, cheats and hacks in the terms was neither surprising nor unfair to consumers and therefore enforceable.
In a second case, the Higher Regional Court of Dresden (docket no. 14 U 1127/14) confirmed a judgment against the managing director of the same bot manufacturer based on copyright law. Since neither he nor the company had any rights to use the copyrighted games for commercial purposes, they were not allowed to even play them for the purpsoe of developing, testing or supporting their bots – resulting in the managing director’s personal liability for damages under the German Copyright Act.
Again, the written reasons are a treasure trove, as they contain important clarifications on contractual usage rights for games distributed as boxed physical products: While the game EULA, containing the restriction of the license to personal use, was not validly concluded between the game operator and the customer upon purchase of the box in a store, it was validly agreed upon during installation and account registration. And while some rights have to be considered implicitly granted to any customer who buys a boxed game, these rights, by virtue of the applicable statute, were also restricted to playing for personal enjoyment.
The Dresden court also considered its decision securely rooted in settled case law – it expressly disallowed any appeal.
An appeal is however still possible in the Hamburg case. We will follow up!