Jury To Decide Whether Valve Actually Owns Dota 2

It probably does, but that hasn't stopped a US federal court from taking a closer look at the question. Two mobile developers, Lilith Games and uCool, have tried to make clones of Dota 2 for smartphones and been sued by Valve as a result.

Their games, Dota Legends and Heroes Charge respectively, are slimmed down MOBAs that are popular in China. As Ars Technica reported, in response to Valve's copyright claim against them, uCool has argued that the company doesn't actually own the source material that Dota is based on, make its claim illegitimate.

Dota started originally as a mod for Warcraft 3, making the question of who owns the rights a complicated one. Citing a forum post from 2004, uCool argued that because the original creator of the mod that would eventually evolve into Dota, Eul, had "released" it to the public, the lore and characters are fair game for anyone to use.

"I wish I could give you a last map that's playable, but I can't. Instead, from this point forward DOTA is now open source," Eul wrote back in 2004. "Whoever wishes to release a version of DOTA may without my consent, I just ask for a nod in the credits to your map." 

uCool's Heroes Charge uses characters straight from Dota 2.

In a court order this week denying uCool's motion for a summary dismissal of Valve's suet, Judge Charles Breyer decided that the question of "abandonment," whether Eul had relinquished his rights to the mod as a result of his forum post, would be reasonable for a jury to pursue given the vagueness of Eul's statement and the context surrounding it. As a result, the case will move forward.

But Breyer also raised some other interesting issues, like whether Blizzard's own EULA (End User Licence Agreement) prohibited Eul from having any rights to Dota in the first place, due to a clause that restricts mods from being distributed for commercial purposes. Valve and Blizzard came to an agreement Dota back in 2012, three years after the former had acquired the intellectual property rights to the content of the mod, but Breyer's reasoning in his recent court order casts some doubt on whether the company was in a position to purchase those rights to begin with,

"The EULAs did, however, make clear that players could not 'use or allow third parties to use the [World Editor or mods] created thereby for commercial purposes including, but not limited to, distribution of [mods] on a stand-alone basis or packaged with other software or hardware through any and all distribution channels, including, but not limited to, retail sales and on-line electronic distribution without the express written consent of Blizzard.' Id. ¶ 3.C.iii. Mods were for play, not pay." 

From here, the case will go before a jury to decide the question of who owns the rights to Dota and whether uCool and Lilith Games are in violation of those rights with their respective mobile clones.

[Ars Technica]


Comments

    I'm struggling to see how Blizzard can legitimately claim copyright to either the name "DOTA" or MOBAs generally, which as far as I can tell seems to be the primary basis of the claim, at least from media summaries.

    It seems unlikely that the art assets or any actual game code from Warcraft III have made it into any of the mobile versions, and the name DOTA wouldn't have been used at all by Blizzard until well after the mod was created. Calling both a name and a game mode derivative works seems a pretty big stretch when neither formed a fundamental part of any Blizzard game.

    Having said that, we know that US judges and juries are going to be more sympathetic to American companies than Chinese competitors, so no doubt Blizzard is just trying it on to see if they get lucky. Legal protection is, after all, only a right for those with the finances to aggressively defend themselves.

      I think you're missing the point. The court case is to see if Valve owns DOTA 2 nothing to do with blizzard

        Valve's case is based on whether Blizzard actually owned those rights originally in order to on-sell the rights to Valve.

      This specific court case has nothing to do with Blizzard?

      I don't think Blizzard is a party to this particular law suit: it is between Valve, and some other companies producing games with "Dota" in the name, and reusing some of the characters. One of their arguments is that Blizzard's EULA limited Eul's ownership rights to his mod. That seems a bit dubious though, since a restriction on commercial distribution is not the same as giving up copyright rights.

      The forum post about making Dota open source is more interesting though. That could be used in a promissory estoppel argument: that they relied on Eul's statement, so he should be held to it. That wouldn't stop Valve from "owning" Dota, but it would severely limit their ability to stop other people from reusing material from the original mod.

        Indeed, based on that statement you'd think it was reasonable to use any of the characters and settings established by Eul. Any *new* stuff created by Valve *might* be off limits since it's not included in the original work. Although even that may be open to challenge.

          I don't think anyone can argue that they have rights to use anything Valve developed after the Warcraft mod. The forum post that supposedly released the mod as open source was only asking for attribution from people who derived works from it.

          The term "open source" can mean different things to different people, but it does not generally imply reciprocal rights. There are open source licenses like the GPL and Creative Commons By-SA that require derivative works to be released under the same terms, but there are many that don't. So absent any other information, I think the only things we can assume is that Eul was giving permission to use, modify, and distribute his work as it existed at that point in time.

            Yeah that's why I was stressing "might" without knowing the exact details I'm not sure. Based on the small amount of info in the article I think you're right - any future IP isn't included. But without knowing exactly what was said at the time I'm not sure. Like you mention, I was thinking of some of the GPL/Creative Commons stuff that explicitly requires future content to be "open" as well.

        Fair enough, although ultimately Valve's case is based on whether Blizzard actually owned those rights originally in order to on-sell them to Valve.

        On another note, the Warcraft III EULA restricts commercial distribution of mods made with the game's World Editor. I would be fairly surprised if any of the current product had any code whatsoever made with the Warcraft III World Editor. Stretching that restriction to later products inspired by mods made with that editor seems several steps too far. Copyright protects against direct copying, not inspiration, a principle that has been repeatedly established in US case law (it's Zynga's entire business model, for example).

    Valve buys the rights to DOTA, Blizzard says "oh yeah, I'm fine with that". What's the issue. Valve owns the IP that is DOTA now. Anybody using any part of the DOTA IP is committing copyright infringement. It doesn't matter if the orginal mod went open source. Valve now owns the IP and can do whatever they want with it.

      It's complicated, because the person Valve bought those rights off of didn't originate the mod: they were just the current maintainer of the most popular variant of the mod.

      I don't think there is any question at this point that Valve has the right to distribute Dota 2: the question is whether they can stop other people distributing works that derive from the original Warcraft mod.

      Based on the forum post, the mod was released with a highly permissive licence (there was only one condition, attribution) before Valve hired or purchased anything. Everything in the mod at that point in time is freely available for anyone to use, which means Valve's rights are not exclusive and they won't be able to assert those rights over anything from DOTA up to 2004.

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