Valve may make Dota 2 but who actually owns Dota? A jury trial may be called to decide who — if anyone — owns the copyright, Ars Technica report. Two mobile developers who are making Dota-y games and facing a legal attack from the combined forces of Valve and Blizzard have argued that the Dota copyright was abandoned so they’re free to use it, their logic rooted in Dota’s complicated origins in the Warcraft 3 mod scene. Given that Valve’s lawyers have previously fought the mighty Blizzard’s lawyers to a standstill in a trademark fight, I’d be surprised if this doesn’t go their way, but we’ll see!
Lilith Games and uCool, who respectively make the Dote-inspired games Dota Legends and Heroes Charge, are currently staring down the barrel of copyright claims from Valve. I’ve played a few minutes of Heroes Charge, discovering that it’s a party-based combat RPG whose characters look and function a whole lot like Dota (and DotA/Warcraft III) characters. It is not a good game. Dota Legends looks about the same. The developers have tried several defences that haven’t stuck but one might warrant a jury trial: that Valve can’t own Dota because its original creator abandoned rights to it. This calls for a history lesson.
Dota begin life, you may know, as the Warcraft III custom map Defense of the Ancients (known as DotA, as opposed to the modern Dota) made by Kyle ‘Eul’ Sommer. Eul initially protected the map file to stop other people editing it but in 2003 he went to university and invited others to make their own DotA. The court document shared by Ars quotes him as saying “[. . .] from this point forward, DotA is now open source. Whoever wishes to release a version of DotA may without my consent, I just ask for a nod in the credits to your map.”
Many versions of DotA followed, made by many people. One, known as DotA Allstars, combined elements of several to make a, y’know, Allstars version. DotA Allstars is the one really took off, over the years, control of this core version was passed between a chain of developers. The last of these is the pseudonymous IceFrog, who eventually teamed up with Valve to make Dota 2. Valve say Dota is theirs now.
Lilith and uCool argue that none of that matters because, in making DotA “open source”, Eul abandoned the rights 14 years ago. The judge reflected:
“And indeed, a reasonable jury could conclude that Eul’s 2004 online post was an ‘overt act’ indicating complete abandonment. [ . . .] It said, ‘Whoever wishes to release a version of DotA may without my consent,’ which might mean that anyone had permission to build their own versions of DotA on any platform—and to sell their versions of Eul’s creation. Or it might not. Eul’s post also asked ‘for a nod in the credits to your map.’ That suggests two things. First, the request for a ‘nod’ suggests that Eul wanted credit for creating DotA even after open-sourcing it, which cuts against abandonment. Second, and more importantly, the reference to a ‘map’—a synonym for ‘mod’—suggests that the post was in fact a limited license. Although Eul intended to let others build further DotA mods using the World Editor, he might not have intended to let them build stand-alone DotA games for sale.”
“See Micro Star, 154 F.3d at 1114 (holding, in a copyright case about video game mods, that ‘abandoning some rights is not the same as abandoning all rights’). uCool, the story goes, exceeded the scope of this license by building a smart-phone version of DotA and selling it [. . .] What is more, a reasonable jury could also conclude that the word ‘whoever’ referred only to the motley group of modders making up an informal DotA online community. Eul’s post, in other words, was aimed only at fellow teenagers building fantasy worlds for fun—not companies exploiting them for financial gain. So uCool was arguably no licensee at all.
“The upshot: the question of copyright abandonment must go to the jury.”
There’s only one way to settle this: 1v1 me mid.