Blizzard Entertainment SAS (a company incorporated in France) v Bossland GmbH (a company incorporated in Germany)
| Jurisdiction | England & Wales |
| Judge | Deputy Master Bowles |
| Judgment Date | 04 July 2019 |
| Neutral Citation | [2019] EWHC 1665 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC_2016-002774 |
| Date | 04 July 2019 |
[2019] EWHC 1665 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Deputy Master Bowles
Case No: HC_2016-002774
Michael Hicks (instructed by Bristows LLP) for the Claimants
Tom Moody Stuart QC (instructed by Boyes Turner LLP) for the Defendants
Hearing dates: 30 th and 31 st January 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 21 st March 2017, Mann J granted judgment, by consent, in favour of the Claimants, Blizzard Entertainments SAS and Blizzard Entertainment Inc. (to which, save where it is necessary to distinguish one Claimant from another, I will collectively refer as Blizzard), on their claim for infringement of copyright and inducement of breach of contract against the first Defendant, Bossland GmbH (Bossland) and against the second and third Defendants, Zwetan Letschew and Patrick Kirk (Mr Letschew and Mr Kirk). Mr Letschew and Mr Kirk were, at the material dates, both directors of Bossland and both shareholders in Bossland.
Blizzard is the creator and publisher of a number of well-known and extremely successful multi-player, online video games. The games relevant to this Claim are World of Warcraft, Diablo III, Hearthstone, Heroes of the Storm and Overwatch. I am told that these games are played by millions of players worldwide.
Bossland produces and sells software which is designed to enable users of these games to secure advantages as against other users of the games, contrary to the rules of the games and, more importantly, for current purposes, contrary to the end user licence agreements entered into by each player of Blizzard's games. Bossland's software is of two types, Cheats, which, as the name suggests, enables a player to cheat, within the given game, and Bots, which, again, contrary to the rules of the games and the end user licences entered into by players of Blizzard's games, automate the playing of aspects of the games, to the, apparent, advantage of the player using the Bot. The Bots relevant to this claim are Honorbuddy and Gatherbuddy, in respect of World of Warcraft, Demonbuddy, in respect of Diablo III, Hearthbuddy, in respect of Hearthstone and Stormbuddy, in respect of Heroes of the Storm. The Cheat, relevant to this Claim, is Watchover Tyrant, which is used with reference to Overwatch.
To meet, as I am told, the problem, if that is what it is, created by the use of Bots and Cheats, Blizzard has introduced software, designed to identify and expel users of Bossland's Bots. Bossland, in its turn, has created its own software, Tripwire, the purpose of which is to mitigate, or nullify, Blizzard's anti-cheating software. Both parties have, thereafter, in a way not inaptly described by Mr Moody-Stuart QC as an evolutionary arms race, engaged in a process of improvements and updates, intended on the one hand to nullify Bossland's software and, on the other, to secure the continued operation of that software.
The essence of the Claim brought against Bossland, Mr Kirk and Mr Letschew is that, in creating and marketing its software, the Bots, the Cheat and Tripwire, in licensing the use of its software to persons playing and taking part in Blizzard's games and in providing updates to that software to those using that software, Bossland, Mr Kirk and Mr Letschew procured and induced those users to act in breach of their contracts with Blizzard, arising from the end user licence entered into by each such user.
Additionally, because the use of Bossland's software, Bots, Cheat and Tripwire, by those playing the relevant games and using Blizzard's software in the playing of those games, was a breach of the licences under and pursuant to which users were allowed to make use of the software embodied in the games and, for the purpose of playing the games, to copy, at the least, substantial parts of the artwork and computer programs embodied in the games, those users, making use of Bossland's software, thereby infringed Blizzard's copyrights in the games. Correspondingly, in providing and licensing its software to those users, Bossland, Mr Kirk and Mr Letschew authorised those infringements and are liable therefor.
By way of recitals to the order of 21 st March 2017, Mann J recorded admissions made by Bossland, Mr Kirk and Mr Letschew in respect of the Claim.
Those admissions were as follows:
(a) That Bossland had ‘procured and induced users of its software to act in breach of the terms of their agreements with the Claimants, as alleged in the first sentence of paragraph 46 of the Particulars of Claim’;
(b) That Bossland had ‘authorised users to infringe the Claimants' copyright as alleged in the first sentence of paragraph 50 of the Particulars of Claim’;
(c) That Bossland had ‘acted pursuant to the common design with the users of its software to infringe’ in this instance, Blizzard Entertainment Inc.'s 'copyright, as alleged in the first sentence of paragraph 51 of the Particulars of Claim;
(d) That Mr Kirk and Mr Letschew were ‘jointly liable with’ Bossland ‘in respect of’ Bossland's ‘said acts …’
By paragraph 1 of his order, Mann J entered judgment against Bossland, Mr Kirk and Mr Letschew upon and in respect of those admissions. By paragraph 7, he gave directions as to disclosure such as to enable Blizzard to elect as between an inquiry as to damages and an account of profits. By paragraph 8, following that disclosure, the Claimants were given twenty eight days to elect, as between an inquiry as to damages, or an account of the profits resulting from the Defendants' acts.
The Claimants have elected for that account and this is the judgment pertaining to that account.
The scope of the account was further defined, by Mann J, in his Case Management Order, dated 22 nd November 2017.
By paragraph 1 of that order, he directed that there should be a trial of the account and, by paragraph 2, he defined the issues for determination within the account as being:
(a) The profits (if any) made by the Defendants in respect of which the Defendants should account to the Claimants arising out of the acts admitted by the Defendants in the recital to the order of 21 st March 2017;
(b) What interest (if any) should be paid on such sums;
(c) The liability for the costs of the taking of the account of profits (including any interest on costs).
As appears from the recitals to the 21 st March 2017 order, the acts admitted by the Defendants are further defined by reference to particular sentences in particular paragraphs of the Claimants' Particulars of Claim and the task of the court, pursuant to the order of 22 nd November 2017, is to ascertain the profits arising from those acts for which the Defendants should account to the Claimants.
The sentences and paragraphs in question are: the first sentence of paragraph 46 of the Particulars of Claim; the first sentence of paragraph 50 of the Particulars of Claim and the first sentence of paragraph 51 of the Particulars of Claim.
The first sentence of paragraph 46 alleges against Bossland that it procured and induced users of its software to act in breach of their agreements with Blizzard. Paragraph 46 then goes on to explain the acts undertaken by Bossland, which have, or which are said to have, procured and induced users of its software to breach their agreements with Blizzard. Those acts encompassed the advertisement and promotion of Bossland's software in the United Kingdom and the grant of licences to use its software in the United Kingdom; the control of access to its software; the taking of counter measures to hide the use of Bossland's software from Blizzard, including by means of Bossland's Tripwire software; and the provision, to users of Bossland's software, of updates to that software intended to allow use of the software, notwithstanding preventative measures taken by Blizzard.
The first sentence of paragraph 50 alleges that Bossland has infringed Blizzard's copyright by authorising the use of its (Bossland's) software by users of Blizzard's games. The paragraph goes on to allege that that authorisation has arisen by the grant by Bossland to users of Blizzard's games of licences to use its (Bossland's) software and, further, by reason of facts and matters set out in paragraph 45 of the Particulars of Claim.
The first sentence of paragraph 51 alleges that Bossland has procured and induced and acted, pursuant to a common design, with users of its software to infringe the second Claimant's copyright in its games by playing those games using Bossland's software. Blizzard supports that allegation by reference to Bossland's acts in granting licences to use its software to users of Blizzard's games and, again, by reference to the facts and matters set out in paragraph 45.
The facts and matters set out in paragraph 45 relate to the counter measures put in place by Bossland to circumvent the measures taken by Blizzard to prevent the use of Bossland's software by persons playing its games. Those measures include, as already stated, Bossland's Tripwire software, which works, apparently, by detecting Blizzard's own anti-Cheat/Bot software and, when that software is detected, stopping the relevant user's use of Bossland's Cheat/Bot software, so that that user's use of that software is not detected by Blizzard.
Bossland, as it is alleged in paragraph 45, frequently updates...
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