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

    
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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.

'Shout' by Tears for Fears, released 1984

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?

If NCsoft really wanted to pick up a huge PR win in the west, it’d lease or provision a rogue server to make this legal, as Daybreak did with the P99 EverQuest server.
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.

Every other week, Andy McAdams braves the swarms of buzzwords and esoteric legalese of the genre to bring you Massively OP’s Lawful Neutral column, an in-depth analysis of the legal and business issues facing MMOs. Have a topic you want to see covered? Shoot him an email!

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

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Gail Booth

Yo ho, yo ho, a pirate’s life for me…

noneuklid
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noneuklid

So my first concern reading this as an analysis is that you keep using the word “illegal” to mean two different things. Obtaining someone else’s code or violating copyright are sometimes “illegal,” because they can be done by theft. Violating a EULA is never “illegal” in that sense; it’s simply not a criminal act merely to break a contract. We use the word “unlawful” for this type of behavior.

My next concern is that despite your claim in the article, EULAs don’t last forever. Different states within the US deal with EULAs differently, but in general, indefinite-term contracts are only valid for “a reasonable amount of time” under the UCC. Yeah, that’s frustrating, but it’s the law (usually). There’s also an open question as to whether or not the EULA even could apply here. You agree to a EULA by using or continuing to use the service it governs, and withdraw agreement by ceasing to use that service. Every player accessing a CoH private server has ceased to use NCSoft’s official server. Superclause (2) of the CoH EULA details what conditions govern acceptance and at present describes conditions that players don’t, won’t, and frankly simply cannot meet.

Finally, NCSoft implicitly waived every section about distribution when they failed to respond to the Icon/Paragon Chat services, which have been in public use (dare I say “open and notorious,” although that’s the wrong law) for five years.

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Fervor Bliss

Do laws only matter if they are enforced?

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IronSalamander8 .

I miss the game so much that I’m just going to play and if the server gets shut down I’ll deal with it. One thing I hate with a lot of modern (or modernish games in this case) is that it used to be when your bought a game, since it was a cartridge, cassette, of diskette, you could play it whenever you wanted; with MMOs and live services and now increasingly with other game types too, if they shut it down or discontinue it in other ways, you’re out of luck. When CoX was shut down I hadn’t logged in for awhile and had just cut my sub to start subbing to SWTOR (oh the irony), but the fact that it was gone and I couldn’t play it anymore was so bloody depressing.

If we can get some kind of official agreement or, as unlikely as it is, an actual official server, even in maintenance mode, I’ll gladly pay a monthly fee or buy the boxes again or whatever; I still have my CoH and CoV manuals and such laying around. I just want to be able to play it again. It was such a good game and had so many good ideas that other games copied, it should never have been shut down in the first place.

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Anton Mochalin

“MMO community” doesn’t care about City of Heroes which is basically an old game which isn’t going to receive any content updates. So it’s not going to be a PR disaster. But taking into account how many pirate servers there are for Lineage 2 I think NCSoft isn’t going to care either. The main problems for those who will play on these City of Heroes private servers are going to be very different: the servers can just disappear at any moment and the population is very likely to go south really quickly.

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MolleaFauss

What about GDPR? Joking, but not so much.

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Noyjitat

Why even do an article like this? Lots of emulators, stolen code and other servers for other games. This is needlessly drawing bad attention.

semugh
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semugh

maaaaan, these column names lol…. I really like them.

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styopa

Funny, I expected this was going to be about the (given the private desire to play clearly evinced by the fans) almost-inevitable crop of janky bait-servers mainly intended to farm credit card numbers, implant virii, and otherwise backdoor the “I get to play coh again” into something nefarious.

To which I’d say it’s like zombies: there is no “safe”, only degrees of “safer”.

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Anton Mochalin

I guess this is less likely to happen simply because City of Heroes isn’t such a well-known game, very much a niche one even when there were official servers. The only place where I hear about CoH recently is massivelyop.com. It’s just not worth the effort if you want to farm credit card numbers – one more Lineage 2 pirate server would be maybe more efficient.

However, I like your phrase about zombies.

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elenie

I love this column! Keep up the good work.
Kudos to MOP for breaking the story (saw it referenced and credited on RockPaperShotgun), hopefully some good can come of it (as opposed to death threats and harrassment).
I would love to try out CoH myself sometime as I’ve never played but have heard so much about it here :-).