Lawful Neutral: Is it safe to play on City of Heroes’ inevitable rogue servers?

Hey gang! Welcome back for another thrilling adventure in Lawful Neutral, the column where I spend my evenings reading EULAs until my eyes bleed so that you don’t have to.

You know what’s the real bee’s knees right now? City of Heroes. Not bad for a game that’s been shut down for six and a half years. The amount of drama and articles generated over the last 72 hours about this game is pretty damn impressive. Also exhausting (just ask our Editor-in-Chief, who’s not getting much sleep right about now!). But yes, the source code, more or less, for CoH has been released to the wild. What that effectively means is that in a matter of weeks or months, gamers around the global could have a functioning – but rogue – CoH server available to play on.

But should you play on it is an entirely different question from can you play on it. Today we are going to explore the NCsoft EULA for City of Heroes as we try to answer the question: Can you play on a City of Heroes private server without getting in trouble? We’ll answer our question in a way the original Superhero, “Rhetoric Man” Socrates, would appreciate: by answering a series of other questions.

Before we start: Lawful Neutral is an opinion column, and my interpretations of the NCsoft EULA are just that, an opinion. I’m a law enthusiast; I am not a lawyer. Nothing here (or anywhere else on this website) should be treated as legal advice. And we don’t advocate that you do anything illegal. If you are concerned about the wrath of NCsoft, abstinence actually is the best policy.

For this article, I used the September 2011 version of the EULA found here. All references to sections can be found in that document.

Does the NCsoft EULA for City of Heroes even still apply if the game is dead?

This is a pretty easy question: Yes. Section 3(a) of the EULA states:

“Duration – Unless modified or amended by NCsoft, this agreement and its provisions shall remain in effect.”

Full stop. There’s no provision in here suggesting that “if the game dies,” or “if Cersei is really a bobcat stapled to a gopher in disguise,” the EULA no longer applies. The agreement is in effect until NCsoft says otherwise. The only other way that this agreement does not apply is if a judge steps in an explicitly says it doesn’t. That’s not going to happen any time soon, so NCsoft wins.

OK, but what if I never played City of Heroes when it was running and never agreed to the EULA?

Well, in such a case, you aren’t bound by the EULA, but playing the game would require you to acquire the client software in order to enjoy. It’s virtually impossible to legally acquire the client software now; the only way to get it without picking up ancient disks on Ebay involves copyright violation of some form. So you aren’t bound by the EULA, but you are in violation of copyright and IP law.

What does the EULA say about emulators, private servers, and what we’re now calling rogue servers?

Explicitly? Absolutely nothing. But don’t celebrate yet. Section 8 of the EULA, titled “PROHIBITED AND IRREPARABLY HARMFUL ACTIVITIES CONCERNING NCSOFT,” proceeds to list a whole bunch of things that running a private server violates. While the EULA doesn’t explicitly “you cannot create a private server,” it does say, “You may not, without signed written consent from a legally authorized representative of NCSoft do” a list of things, including “[u]se any NCsoft IP right except as permitted under this agreement” and “[u]se, or provide others with, any service related to the game.”

The whole section can interpreted such that player-run rogue servers violate pretty much all of it.

What if I’m just playing, not actually hosting the server?

Section 8 still applies. Most clauses contain both “Use” and “Provide” verbiage. That means that just by using the software, you are just as much in violation as if you set up the server yourself. It’s important to note again here that nothing in Section 8 explicitly calls out setting up or playing on a rogue server. However, the verbiage is written in such a way that running or playing on a rogue server meets the criteria here.

So level with me, is it legal to run or play on a rogue server?

In the strictest sense, no it’s not legal. Fundamentally both the players and those running the server are in violation of IP and copyright law because you have to use their code in some capacity for it to be a rogue server or private shard.

What’s unclear is whether this would hold up in court for a game that is otherwise entirely unplayable and taken offline by an overseas company. There’s no direct legal precedent for how this would be handled, and we have contradictory rulings. In November of 2018, a judge sided with Nintendo in a lawsuit against websites that offered their games as ROMs for download. You can see the full complaint from Nintendo here. While just a month earlier, the Library of Congress carved out a series DMCA exceptions for video game preservation making it easier to run game emulators that have been shutdown. Neither case would apply directly, but people running rogue servers are likely to cite the DMCA exceptions, and copyright holders are likely to cite the Nintendo case as precedent.

There are also a few cases like Blizzard v. Jung, where Blizzard successfully sued someone who was trying to reverse engineer Blizzard’s gaming service to provide a rogue server. It’s unclear how much cases like this would apply in today’s copyright landscape or how they could be applied to games that are currently offline. Still, it’s worth mentioning.

Second, it only matters if NCsoft decides to push the issue. Unless the company has something in the works for the CoH IP, it actually might make more sense for NCsoft to either ignore this or to explicitly release code from copyright and IP restrictions, similar to what TinySpeck did with its MMO Glitch. Otherwise, enforcing the copyright becomes more of a money drain and doesn’t really do anything for its bottom line.

But there’s an arbitration clause, right? So they’d have to bring me to arbitration?

Unfortunately, no. Arbitration is defined in Section 14(a) 14(b). Section 14(c) calls out pieces that are excluded from arbitration, which is… the entirety of Section 8. In short, the EULA is written in such a way that you could never sue NCsoft, but NCsoft could sue you.

OK for real, what’s the likelihood of NCsoft coming after me?

In reality, probably pretty small. Even if you decide to run your own server, NCsoft is going to start with a cease and desist notice, as Warner Brothers did with the Asheron’s Call emulator. If it sends you a C&D and you ignore it, it might escalate, or it might get bored and go home. It would be more trouble than it’s worth to bring a suit against any individuals playing on a server, and it’s something that would likely end up costing NCsoft money in the end. So it’s fairly safe to assume that if you’re playing on a rogue server, the worst that will happen is that NCsoft might break your heart again if it decides to try to shut the rogue server and your new toons down.

What will NCsoft do?

I think NCsoft would be pretty foolish to try to enforce its copyright and IP on the City of Heroes player-run servers. It would destroy the much-deserved goodwill it generated with the MMO community over how well it handled Wildstar’s longevity and sunset. Even people who weren’t affected are likely to get up in arms over it, just as they did when City of Heroes closed the first time. NCsoft would be within its legal rights to shut down rogue servers, but the PR headache it would cause would likely not make it worth it.

Plus, the company would score back some points with the community if it looks the other way (just look at how Daybreak intentionally ignores Star Wars Galaxies and Free Realms emulators). In fact, if NCsoft really wanted to pick up a huge PR win in the west, it’d find a way to lease or provision a rogue server to make this a real and sanctioned and legal thing – exactly as Daybreak has done with the player-run Project 1999 EverQuest server.

So what’s the verdict?

As always, use your own best judgment. When in doubt, opting out of the situation all together is the safest course of action. That being said, if you aren’t running the server yourself, it’s incredibly unlikely that NCsoft cares that you are playing on the server. If you are running the server and you get a C&D, it’s best to comply quickly.

Right now, this comes down to how NCsoft is going to respond. This has been enough of a kerfuffle over the last week to likely warrant some acknowledgement, even if that acknowledgement is an official “no comment” (as it has been so far). NCsoft trying to enforce EULA or copyright after not using it for six years (outside of MxM) doesn’t serve anyone, least of all NCsoft.

In a future column I’ll go more of the legal precedent that’s likely to affect rogue servers whenever they inevitably make it before a court. But that’s a larger topic that the space I have here.

Bonus questions

Can I play City of Heroes in public, like a cyber cafe?

According to Section 8(h)(ii) – use of Service, Content of Software an “internet cafe, cyber cafe, or computer gaming center” is prohibited because it makes you party to a commercial activity. So nope. No playing in public. Mom’s basement only. It’s there in the EULA.

Do I have to understand that there’s a difference between the virtual world and the real world to play City of Heroes?

According to Section 11(a)(i), you do indeed have to understand the difference between a virtual world and a real world to accept the agreement. This might be the most devastating requirement for us of all.

Catch up on all of our coverage of the City of Heroes rogue server situation to date: