No Bots Allowed – German Federal Court outlaws Commercial Bots in Online Games (2)

The German Federal Court of Justice (Bundesgerichtshof, BGH) has ruled that it may no longer be legal to commercially offer bots for online games (BGH, Urteil vom 6. Oktober 2016, I ZR 25/15 – World of Warcraft I).

Bots are automatic programs that can perform certain in-game tasks on their own without assistance by the human player being. In many online games bots can be employed to make certain things which could otherwise be tedious and time-consuming easier and quicker and more comfortable for the player, for example to farm supplies, level-up characters etc.

The BGH had to decide an appeals case in which the publisher of the two well-known massive multiplayer online roleplaying games (MMORPG) „World of Warcraft“ and „Diablo III“ sued a German company that developed and provided certain bots tailored for these games. For this purpose, said company had acquired a number of player accounts and sintalled the game client on its computers through which it employed its bots in the games.

The publisher argued that this was an infringement of the applicable End User License Agreement terms and conditions. These stipulate that the games are ‘for personal and non-commercial use only’, and the user must not use the games ‘commercially’ under any circumstances. Furthermore, the ‘use of any cheats, mods, or hacks, or any software created by a third party that alters the game experience’ was explicitly prohibited.

The BGH held that these terms and conditions are valid and in effect prohibit the way in which the defendant was using the game, so that his service constitutes a copyright infringement.

The BGH rejected the defendant’s main defense which revolved around section 69d subsection 3 of the German Copyright Act. This statutory provision is mandatory law and goes back to European Union legislation (originally EU Directive on the legal protection of computer programs, Council Directive 91/250/EEC of 14 May 1991, et. seq.), It allows any user of any software ‘to use a copy of a computer program […] without the rightholder’s authorisation, to observe, study or test the functioning of that program in order to determine the ideas and principles which underlie any element of the program if this occurs while performing any acts of loading, displaying, running, transmitting or storing the program which he is entitled to do’. The European Court of Justice had previously ruled that this applies in all cases, regardless whether such use is for private or for commercial purposes (EuGH, Urteil vom 2. Mai 2012, C-406/10, GRUR  2012,  814  Rn. 61 – SAS Institute/WPL), and the German Federal Court reaffirmed this principle.

However, the BGH cleverly argued that the computer games in question, in particular the client software as installed on the user’s computer, could not be considered merely simple ‘software’ in the terms of this law, but rather a complex work consisting of both software and audiovisual content and services which are protected by copyright, which as such do not fall under the said statutory software exception.

Consequently, the BGH decided, the actions of the bot provider constituted a copyright infringement, and the company was thus enjoined from continuing to operate and offer its bots for World of Warcraft and Diablo III, and ordered to pay damages etc.

Lawyer’s comment:

The German Federal Court has made a strong case against the use of non-authorized bots in online games.

Depending on circumstances, these may be considered a copyright infringement, which exposes those who offer and use such bots to the whole regime of cease and desists letters, injunctions and claims for damages.

Furthermore, though this was not expressly argued in the case at hand, under certain circumstances developing and using bots on a commercial basis might also be considered an act of unfair competition (under the aspect of unfair obstruction, which is called  impediment competition (Behinderungswettbewerb) in German, in the terms of section 4 subsection 4 of the German Act Against Unfair Competition), with similar legal consequences.

So, developing and operating bots to be used with someone else’s games is a questionable and high-risk business, and the game developers and game providers may have a strong defense against third party bots under German law.

If you have any questions please contact:

       Dr. Marcus Dittmann