This article continues the series “Avoiding Legal Minefields in the World of Minecraft“. Rather than produce one long entry, I decided to break the topics up into several segments.
Navigating the Minecraft EULA
When you visit a website or buy a product or create an account on the Internet, most likely you will need to agree to Terms of Service (or Terms of Use) and/or an End User License Agreement (“EULA”). You may also, as applicable, need to agree to privacy policies, Digital Millenium Copyright Act (“DMCA”) policies, and more.
Background and Definitions
At the moment, I want to focus on the Minecraft EULA which, as we will see, will incorporate other policies mentioned above. But, before we address the EULA, we should define the various parties and sites involved. In this way, you will understand to whom and what the EULA applies.
To begin with, Mojang AB (“Mojang”) is a subsidiary of Notch Development AB and Notch Enterprises that has also operated as Mojang Specifications. Mojang created the video game Minecraft. Mojang operates the websites at the domain names mojang.com and minecraft.net. Consequently, the policies found on the website mojang.com arguably apply to minecraft.net and control the relationship between users of Minecraft, on the one hand, and Mojang and Notch, on the other hand.
For example, clicking on “Terms of Use” on minecraft.net directs one to the Minecraft EULA on mojang.com. In its terms, the EULA incorporates the Terms of Use for the mojang.com website, a privacy policy, and guidelines for use of its brand (eg Minecraft) and assets (eg software, websites, etc.). (We will return to these later.) If you click through to the Terms of Use or Account Terms highlighted in the EULA, you will be directed to a very convenient page that summarizes key terms and conditions relating to the use of Minecraft and accounts associated with Mojang and Minecraft. It also includes tabs for the policies discussed above to which you agree when you purchase Minecraft and create a Mojang account. Note: the EULA is not included in the tabbed policies.
EULA
Returning to the EULA, a few general observations can be made. First, the EULA effectively conveys the informal personality of Mojang. Rather than use hyper-technical legal terms, the EULA speaks to its customers on an everyperson basis. Second, the EULA begins by explaining the need for terms to protect the company and the community of people playing Minecraft. In this sense, the EULA begins from a very good perspective and well written to accomplish its purpose.
Mojang also very clearly states that violation of the rules could result in banning an individual from playing Minecraft. And, in some circumstances, Mojang might be required to have its attorneys contact those violating the rules. Thus, while the EULA may be informal in its conversation with community participants, it should be taken seriously.
The Minecraft EULA also conveniently puts forth what Mojang considers to be the most important rule: Do Not Distribute Anything Mojang Has Made. It then explains what this means:
[You may not] give copies of the game away, make commercial use of, try to make money from, or let other people get access to our game and its parts in a way that is unfair or unreasonable.
It also explains that the EULA applies to client and server versions of Minecraft, modified versions of Minecraft, and anything else Mojang has made. This latter part is important as we will later see. Specifically, it applies to what Mojang has made. Implicitly, it would not apply to what someone else has made, assuming the “what someone else has made” does not violate the EULA.
Now, before proceeding further, we should define what client and server versions means. For many of you, this will be self explanatory. For others, a bit of clarification could help them understand the concepts a bit more. Client versions of software are typically the versions of software resident on a computer for use by one user. When you buy a copy of software, you typically buy a license to use a client version of the software. Sometimes, you may buy a multi-user pack that allows use by a certain number of individuals. But, typically, this means that the software can be installed on x number of computers to be used by x number of individuals. So, each individual uses their own license of the software. (Note: I understand that recent developments allow some applications to be used from the cloud and not installed directly on a computer. However, the same principle applies in that the use of the software is limited to one person per license.)
In contrast to a client version of software, the server version of software anticipates that multiple individuals will use or obtain access to the server version of the software. However, in the context of Minecraft, each user who accesses a Minecraft server (operating the server version of the software) must also have their own license to a client version of the software. So, someone purchasing a server version of the software may not distribute copies of the software to those people he or she wants to access the server. Rather, the server software will be operated from the server computer. Everyone who wants to access the server must have their own client version installed on their individual computer.
Before moving forward, a further distinction should be made between purchasing software as a product and purchasing a license to use software. Nowadays, nearly every software company sells licenses to use their software (hence, End User License Agreements). You are not actually buying the product itself. So, as Mojang states, if you violate the EULA, it can revoke your license to use the software. Though you may arguably still have it installed on your computer, Mojang could revoke your ability to use the software. Again, you are not buying a product. You are buying permission to use the software pursuant to the terms and conditions established by Mojang.
What does the EULA Major Rule Mean?
So, the Minecraft EULA spells out the One Major Rule. What is it and what does it mean? To begin with, you may not distribute Minecraft. This means that you cannot provide copies of the software to friends and family. You cannot sell or rent your copy. This also means that you cannot share, sell, or rent your username and password with friends and families to use. Each person who wants to simultaneously use Minecraft must have their own license (username and password).
Can you allow a friend to use your installed version of Minecraft while you watch? Yes. Can you both log onto separate computers and use the same username and password? No.
You also may not provide people access to anything Mojang makes by unreasonable or unfair means. This means that you cannot try and work around or circumvent the mechanism to validate versions or copies of the software. You may not cheat Mojang. You may not try to obtain a copy of the software for free. You may not modify the software to eliminate validation or confirmation of licenses. In other words, you cannot do anything or provide access to anything Mojang in a way intended to divert license fees from Mojang.
Now, after reading the foregoing, one might ask if I happen to represent Mojang. I do not. I would very much enjoy doing so. However, I do not. Rather, I want to help explain what one can and cannot do with Minecraft in a manner that elaborates on Minecraft’s otherwise clear EULA.
The foregoing happen to be the straightforward components of the Minecraft “One Major Rule.” The remaining two components are both very simply and very complex. On one hand, Mojang makes very clear that you cannot use Minecraft commercially or make money from Minecraft. In this sense, the component could not be simpler. However, this component involves several complex issues when it comes to running and operating Minecraft servers and/or creating content and mods included in those servers. (The next article will address Minecraft servers, mods, and the EULA.) In fact, Mojang itself arguably creates exceptions to this general premise.
Screenshots and Videos
Although Mojang states you cannot “make any commercial use of them,” Mojang allows you to create screenshots and videos of Minecraft play. It allows you to put videos and screenshots on sharing and streaming sites. And, while you cannot sell the videos or access to them, Mojang allows you to place ads on them. In this context, you do actually have the ability to use them for some commercial purposes. This affirms my position that the Mojang prohibition on commercial use actually happens to be more complex than first impressions would suggest.
Fair Use
Mojang recognizes use of its content and brands pursuant to doctrines of fair use, but only to the extent such doctrines allow. The term “fair use” is a strict legal concept. It does not simply mean what you or I consider fair. Consequently, do not presume that because it seems fair, it must be fair use. “Fairness” and “fair use” are distinct concepts. Moreover, because “fair use” can be a very complex legal doctrine, you should not presume that your use happens to be “fair use.” You should contact an attorney to discuss these issues.
That foregoing being said, I believe my use of the Minecraft and Mojang brands to be fair use in this blog article. I am not attempting to make money off of the use, though clearly the blog is associated with a commercial entereprise – my law firm. I am attributing the rights of the marks to the applicable parties. I am limiting my use of the terms to what is necessary to discuss the content herein.
Similarly, if someone operated a blog describing what they happened to be doing with Minecraft and included videos and screenshots, it might very well be fair use of the marks and content. However, if you started to sell access to the blog by subscription or sell access to Minecraft movies, this would clearly not be fair use.
Fair Use is a complex concept. Do not presume your use to be fair use. If you happen to be seeking to financially benefit from the use of another’s brands, products, or services, the use should be presumed not to be “fair use” to be safe.
Updates and Bugs
Under the EULA, Mojang has no obligation to maintain the software or produce upgrades. While it may do so, it can cease doing so at any time. So, you truly are purchasing a license to use the software as it exists at the time you purchase it with no promises of future upgrades or modifications. Additionally, if there are bugs in the software, you have no remedy. You purchase the license to use the software “as is” which means in its existing form with any defects or problems that may or may not exist.
Suggestions to Mojang
If you send suggestions to Mojang, they can use them without paying for them. Mojang is being reasonable in adopting this very standard policy. Indeed, there exist good reasons for this: (a) Mojang may have already thought of the idea and this avoids any dispute on who developed the idea; (b) Mojang most likely has been overwhelmed with suggestions, so it cannot be expected to pay for every suggestion; (c) it avoids any dispute as to what payment would be for a suggestion; (d) it makes very clear that Mojang retains ownership to all aspects of its software; and, (e) it avoids the need to negotiate contractual terms for suggestions it may not need.
(5) If you want to be paid for a suggestion, you need to tell them this before sending the suggestion (but, most likely, Mojang will decline interest or provide you with an agreement to sign before providing it with a suggestion that protects it from some of the issues in (4) above (you should then have an attorney review any such agreement).
This series of articles is intended to guide people in thinking about legal issues in using Minecraft. Notch Development and Mojang have been very reasonable in their business model. Our firm has respect for and appreciation of these entities in bringing this game to our world.
As a user of Minecraft (more in the Creative mode), and a father of children immersed in Minecraft legend and lore, I find it incredibly rewarding to represent young persons and others who operate Minecraft servers.
Minecraft is a registered trademark of Notch Development AB.