Germany’s supreme court ruling on online games and bots could affect entire EU

Computer games are a rising business branch, and in the scope of established law, a rather new one. Lawmakers haven’t given much thought about a highly agile industry with a significant worldwide reach and news ideas.

Court decisions are coming, albeit slowly, to a new area of “gaming law.” They are imminent, though.

On October 6, 2016 the German supreme court will hold a hearing regarding a legal battle between the World of Warcraft publisher Acitivision Blizzard and Bossland GmbH, which produces Honorbuddy. This software can automate movements and actions for characters in World of Warcraft. Bossland is not using the software on its own — it sells it to gamers, who then use it in World of Warcraft or Diablo III. Programs like Honorbuddy are known as bots, which handle actions and can play even entire matches for gamers, and many game publishers frown upon their use in their products.

Activision Blizzard tries to prevent the development and distribution of so-called bot software for many years and in various countries. While Activision Blizzard was able to successfully sue bot maker MDY Industries, LLC, in the United States, most notably for its Glider-Software, it fails to do the same in Germany. Bossland and Blizzard Entertainment Inc., as well as Blizzard Entertainment S.A.S (formerly Blizzard Entertainment Europe), are suing each other for last 6 years. Many court hearings later, some being successful for Bossland, some being in Blizzard’s favor, the supreme court now will decide upon several open legal questions in the German jurisdiction regarding one of the bots, Honorbody, for World of Warcraft.

Some of the questions that may come up during the hearing include:

1. Is the use of bot software harmful to the business of Blizzard, and if so, did it prove it successfully? Is it leading to financial damages for Blizzard? Or does it actually help in retaining users?
2. Is the development and distribution of such software against unfair competition legislation in Germany? Or is the use of third-party software in online games only a matter of the contractual relationships of a game publisher and its customers?
3. Are games sold in retail or online stores only meant for private use or can someone use them commercially? Is a publisher obliged to clearly state usage limitations?
4. Is Blizzard’s Terms of Service legally binding?

These questions have never been clearly discussed and decided by the German supreme court or even the European Court of Justice.

Additionally, the legal questions are pertinent to neighboring fields of business. The coming court ruling could eventually apply to open legal questions regarding the status of chat bot software in social networks and mobile apps. Additionally the court ruling will decide various questions regarding the responsibility of software development and software distribution vs. responsibility due to the usage of a software program. A similar question has come up around the increased use of ad-blocking software.

At the first glimpse, this decision is only relevant for Germany. Due to European law influencing German law, the question though might very well escalate to a European Union level. Additionally it raises interesting questions of global software distribution. Which laws apply to a company registered in Europe but with employees all over the world? Are German copyright and unfair competition laws, which favor the growth of competition, a threat or a blessing to the global publishing and distributed development business? If the supreme court decides in favor of Bossland GmbH, it could attract companies from all over the world to the already booming startup hotspots of Berlin and Hamburg.

Marian Härtel is an IT, new media, and gaming lawyer from Berlin, with 18 year of experience in legal matters and entrepreneurship in the gaming industry.