The third session of the OGN/MBC Game vs Blizzard was held today. Apparently, the case had a new set of judges, so the lawyers spent their time making their positions crystal clear. I'm also going to refer back to previous threads to draw some facts down. The next trial date is May 13th.
ThisIsGame summarized the positions for each of the sides as following. Please note that I will not be taking a literal translation but I'll try to interpret it since no matter how I try to make it literal it just comes out completely awkward.
MBC Game - OGN
- There is a need to confirm the boundaries of the protections offered by copyright law for the authors of the game. - Starcraft broadcasts are simply a performance of an audio/video merchandise - Blizzard has gained much from e-Sports up to now - Blizzard's demands are too much.
Blizzard - Gretech
- The intellectual property conflict surrounding Starcraft is different from other intellectual property conflicts - Starcraft broadcasts does not fall under performing an audio/video merchandise - The argument that this is for the growth of the e-Sports industry is a contradiction - OnGameNet had recognized the IP rights behind Starcraft and has made a license contract in the past.
Argument one: "We want to establish boundaries" vs "This is too different to draw similarities"
In normal intellectual property conflicts, the case is determined by drawing parallels to other similar cases to determine if there is a violation or not. Blizzard's argument is that the case is on a level beyond that, that there is a clear violation of intellectual property rights since the broadcasting stations simply rebroadcast the game screen in its entirety.
OGN/MBC takes a different angle, since they start by recognizing that Blizzard, as authors have the game, have rights over the game itself. They are however using this case as a precedence to see how much rights Blizzard has over broadcast materials, or derivative material.
Note that KeSPA/OGN/MBC has recognized Blizzard has some rights over broadcast materials in the past, since for most of the negotiations what was offered between Gretech/KeSPA was 50/50 ownership rights over the broadcasted materials. The negotiations broke down when Blizzard basically stated that if Blizzard does not get 100% ownership rights this negotiations would be impossible. So yes, this is a rather important point.
Argument two: "A broadcast of a merchandise on sale" vs "Nope"
Korea's intellectual property law has a clause in Article 29 that states that people are allowed to playing CDs and Videos that are for sale to an audience or to the masses as long as they are not reimbursed for that specific "performance". For example, a cafe is allowed to play CDs and DVDs that are privately owned, because they are simply playing the CDs and DVDs without being reimbursed.
The broadcasting stations argued that Starcraft broadcasts fall under this clause. The argument is that the Progamers are simply showing the games to the masses.
Blizzard's response to that is that because Starcraft's broadcast manufactures the game images, it does not fall under a performance of ingame video. Since there are also other elements included in the broadcasts such as commentating and Progamers, it is not just a performance of a purchasable merchandise. [Note: In this case do they really have 100% ownership rights of the game as they have claimed in the past?]
Argument three: "Blizzard gained a profit" vs "Broadcasts that violate IP rights and the Growth of industry is contradictory"
Article 28 of Korea's IP law states that intellectual property that are publicized can be used much like Fair Use clause. OGN and MBC argued that Starcraft Broadcasts can be interpreted as fair use under this article. Furthermore, they argued that even though Blizzard has gained a large profit through Korea's e-Sports market, Blizzard brought up violation of IP rights is because they have another purpose and that it is an abuse of their rights.
Blizzard responded to the argument stating that Starcraft Broadcasts are not for educational nor criticism, so they do not meet fair use. Furthermore, Blizzard argued against the idea that Starcraft Broadcasts promote and help the industry grow. The argument is that it is nonsense to violate IP rights to have the game market grow. Blizzard wondered what was the difference between MBC/OGN's argument and a movie channel playing movies without asking for permission.
Argument four: "Blizzard is demanding too much and interfering too much" vs "OGN has recognized rights before"
The last argument has to do with the negotiation attitudes. Both broadcasting stations have mentioned before that Blizzard is demanding things that goes beyond their rights. They pointed out that Blizzard has asked for not just for royalties, but also for fees to run tournaments and broadcasting fees. Furthermore, Blizzard wants to supervise broadcasts and even demands the right to audit the broadcasting stations.
Furthermore they pointed out that despite Blizzard giving exclusive rights to Gretech, Blizzard has both sued the broadcasting stations while also interfered with the negotiations and claimed that this was an abuse of their rights. OGN/MBC's lawyer questioned if Gretech did have an exclusive right to the game and ordered that only Gretech or Blizzard (and not both) be present in the courtroom and negotiations in the future.
Blizzard latched onto the fact that OGN has established an agreement before with Gretech for Korean Air OSL Season 2. Blizzard's lawyer argued that OGN, who recognized the rights then are not recognizing them now.
I find it difficult to believe that Blizzard actually "argued against the idea that Starcraft Broadcasts promote and help the industry grow." It doesn't make sense.
Also, just wondering, how come I can't see this article on the sidebar under Community News? Is it just me?
I really hate how they're using juvenile arguments like comparing esports to the movie/music industry. Esports is not an equivalent in any way. Broadcasting sc games is not like broadcasting movies and music without permission. If anything, letting people watch movies or listen to music without permission would be equivalent to letting people fully play sc for free. Letting people watch sc matches is like letting people look at other people listening to music, which is kinda dumb. Esports cannot be equated to conventional sports either because no conventional sport is copyrighted.
I'm fairly certain Blizzard is going to come out ahead in this. You can't broadcast copyrighted material without permisssion, even if it's just logos or trailers. For example, if I make a product and then that product shows up in a Justin Bieber music video, I am able to sue him, even if it's just product placement and not giving away the product. As the legal owner of the product, I have control over how the product is advertised or displayed in the media. Blizzard has full control over how their product is advertised and displayed on the media, regardless if they are profiting or not. I really think Blizzard should just let OGN/MBC do their thing since they're not getting harmed by it, but if they wish to sue, they are able to do it.
I think the outcome will probably be along the lines of OGN/MBC having to work with Blizz eventually but Blizz's demands being observed or at least required to be a lot more lenient than they were proposed to be last time.
A rather cursory look at how this is playing out, but definitely important. For the most part, it seems that MBC/OGN are putting up some rather bullshitty arguments (honestly, points 2 and 3 are just silly on MBC/OGN's side). The real battle in this case will end up being played out over 1 and 4, and those are the arguments that I'd like to closely track, especially 1, since the result of that will be important in how e-Sports cases will be handled in the future.
I really do hope that MBC/OGN win on those two points though. I would fear for the industry if they didn't.
If blizzard ever wanted total control over anyone who ran a tournament with sc / sc2 period that'd be daft and would in my opinion go beyond their IP rights. That'd be like the nike telling the NFL they had to pay them because the NFL player wore their shoes, when in fact it goes the other way around.
Can with sc2 blizzard shut down all tournaments they don't want to have happen, well yeah sure you have to play all games via battlenet.
Would that be smart? no not really...I think so long as blizzard is getting credit in the broadcasts for the game and the game is not being altered I don't see the issue...at least not until a station starts to make a profit...then I could see a reason for them to pay royalties on any profit made from broadcasting blizzards IP.
I've been taking some IP courses recently so this is very interesting. Based on the summaries alone, MBC/OGN's arguments aren't particularly convincing
Thanks as usual Milkis for keeping everybody updated <3
- The argument that this is for the growth of the e-Sports industry is a contradiction
Blizzard argued against the idea that Starcraft Broadcasts promote and help the industry grow.
That is such a joke. Without S.Korea having BW as a televized e-sport for a decade SC2 as an esport wouldn't be even half as big now, which translates into a lot of gained sales over the years.
I think if this was all about greed blizzard would be attacking other tournaments and shutting down online broadcasts of sc2. It seems that they are trying to ensure that there are no obstacles in place to control the growth for their esports scene.
If you guys remember Gretech/GOMTV used to run and broadcast very successful SCBW tournaments, but were basically shut down when Kespa/OGN/MBC banned players from attending these tournaments so their Esports monopoly in korea would remain intact.
It seems like a lot of what OGN/MBC is demanding is for the good of esports in korea, but we all know what they did in the past, so if I was blizzard I would probably take the same stance. Giving Kespa any controlling power over esports could be absolutely devastating.
On March 19 2011 04:28 Milkis wrote: The argument is that it is nonsense to violate IP rights to have the game market grow. Blizzard wondered what was the difference between MBC/OGN's argument and a movie channel playing movies without asking for permission.
How the hell can Blizzard actually be arguing this? Are their lawyers seriously that stupid? If I watch a movie on TV I'm going to be LESS inclined to go buy the movie; however if I see a game of BW on TV I'm going to be more likely to buy/play Broodwar. OGN/MBC are 100% completely correct in this case, and if TV broadcasts had never come along BW would never have sold as many copies as it did in Korea and elsewhere.
EPT
