In case you somehow missed it, last month Blizzard filed a lawsuit against Turtle WoW, a prominent private server that offers a “legacy” World of Warcraft experience, beginning with WoW’s state prior to expansions. But from there, emulator operators expanded and released their own content and changes. They even boldly began marketing and advertising. That boldness has clearly backfired because the Eye of Sauron swung their way, and Blizzard came down on the player developers with a hefty lawsuit.

What makes it hefty? In addition to the expected and justified copyright infringement claims, Blizzard proposed RICO charges against Turtle WoW, which is a dramatic escalation over the usual IP lawsuits. The stage is set, so let’s dive in.

The boring stuff: IP allegations

The first four counts in the lawsuit are all about IP law and circumventing access controls. These aren’t particularly interesting because, of course, Turtle WoW is infringing on Blizzard’s IP. Private servers deployed this way are in fact copyright infringement under current US IP law. The legality here isn’t up for debate.

The spicy bits: The RICO stuff

But Blizzard’s attorneys veered from the IP infringement script in the Turtle WoW lawsuit and argued that Turtle WoW should additionally be prosecuted under the federal RICO Act. Why? Money and intimidation. RICO prosecutions ratchet up the financial damages, sometimes triple damages from a basic civil lawsuit. In fact, Blizzard says throughout the lawsuit that monetary damages are not sufficient for the wrongs it’s suffered, despite saying it is entitled to triple damages of a value it can’t define.

That triple damages could escalate quickly, given that Blizzard is claiming each download of the Turtle WoW client is a separate instance of copyright infringement, with up to $150,000 in damages – each. Private servers, rogue servers, and emulators are generally volunteer affairs that run on shoe-string or non-existent budget. Even the servers that openly solicit significant funds from players aren’t making that kind of cash. The prospect of being fined $450,000 for each person who plays on a server with many thousands of players is… daunting.

So does this RICO claim hold any water? The answer is maybe, but probably not. Blizzard has a huge burden of proof that it is unlikely to be able to meet. But let’s talk about it anyway.

RICO 101: Probably still just for Tony Soprano

The Racketeer Influenced and Corrupt Organizations Act (18 U.S.C ss 1951-1968), aka the RICO Act, was passed in 1970 to address organized crime – specifically, street gangs and Godfather-style organized crime. By alleging RICO violations, Blizzard wants the courts to believe that Turtle WoW is a criminal enterprise primarily intended to generate profit by using Blizzard’s copyright-protected assets – the graphics, client code, dialogue, etc. The RICO Act demands three criteria:

  1. There must be an “Enterprise” – as in a criminal enterprise
  2. There must be a “pattern of predicate (illegal) activity”
  3. There must be an interstate or foreign connection.

Of the three criteria, establishing an enterprise is the most important to RICO cases because the enterprise is the “organized” part of organized crime. It’s also the most difficult criterion to satisfy.

Criterion 1: The criminal enterprise (not the NC-1701)

Enterprise, as defined in the RICO legislation, is a formal or informal organization of people who collaborate towards a specific goal. Formal organization is an actual legal company. They would have things like official job titles and a hierarchy of leadership.

Informal organization doesn’t require a legal company or an explicit hierarchy. But it does require that there are different “roles” within the organization that collaborate to achieve the illegal activities. Blizzard spends several pages of the lawsuit naming individuals and the “roles” they filled to help justify this characterization.

Blizzard alleges that Turtle WoW is an “association-in-fact” (AIF) type of enterprise, which is an informal group of people who come together around a common purpose but don’t constitute a legal entity. Your raiding guild could be an association-in-fact because it’s a disparate group of people who come together to murder the biggest pixels you can find.

AIFs can be either easy or difficult to establish based on the particular court. The verbiage is intentionally broad and could have various interpretations. In Boyle v. United States, the Courts established three criteria (the courts really love threes) required to qualify as an AIF. It must have a purpose, members must have a relationship, and it must have longevity – that is, the group must have been associated long enough to achieve the purpose.

The purpose requirement is straightforward: The group must have a purpose. A purpose doesn’t need to be an illegal activity, but something sufficiently vague or broad, like “making money,” isn’t enough to satisfy the purpose requirement. The implied purpose of the Turtle WoW team is to create and provide Turtle WoW as a “legacy WoW experience.” This implied purpose is broad enough that it probably won’t satisfy the purpose requirement either.

Blizzard is alleging that the Turtle WoW team’s purpose is financial gain and that its illegal behavior is ultimately intended to generate financial enrichment, not to further the general purpose of providing a “Legacy WoW experience.” Further, even if Turtle WoW’s goal were to make money, that in and of itself still doesn’t satisfy the requirement. In Cisneros v. Petland, the court writes,

“Rather, where the participants’ ultimate purpose is to make money for themselves, a RICO plaintiff must plausibly allege that the participants shared the purpose of enriching themselves through a particular criminal course of conduct.”

The bar is even higher here because not only does Blizzard need to prove that Turtle WoW was out to make money, it has to prove Turtle WoW was out to make money explicitly through illegal activities.

Blizzard tries hard throughout the lawsuit to establish that Turtle WoW intended to profit from infringing on Blizzard’s copyright. The studio’s attorneys repeatedly reference the “sale” of Turtle WoW, trying to establish that this enterprise is for financial gain. But their argument is weakened by two facts here. First, the Turtle WoW cash shop is designed to look like donations for tokens rather than direct sales or subs. Second, there’s a disclaimer on the Turtle WoW website saying that “World of Warcraft remains the intellectual property of Blizzard Entertainment” – never a shield against litigation, of course, but it undermines the idea that Turtle WoW intended to infringe.

The second AIF criterion is that members of the enterprise must have a “relationship” that supports the purpose. “Individuals coming together to commit a crime” actually doesn’t satisfy the relationship requirement; they must have an organizational relationship. So Blizzard has to demonstrate that there was some sort of relationship among the named folks in the lawsuit to enrich themselves. Remember, Blizzard wants us to believe that the purpose of the Turtle WoW is to make money by ripping off the IP. The company needs to prove that the people of Turtle WoW came together specifically to make money through illegal activities (in a scene where a lot of people join up to emulate a game and the money comes only later if at all).

Finally, the AIF must have existed long enough to serve the stated purpose. Turtle WoW has been around since 2018, so whether its purpose is to provide a legacy WoW experience or to make money, it has at least met this criterion.

So we know that general goals are not enough to establish a “purpose.” The purpose must be more than just making money; it must be explicitly to make money through illegal activities. Given Turtle WoW’s clever donation structure, the “sale” argument may not stand either. Additionally, Turtle WoW gives no indications that its purpose is to profit through copyright infringement. The takeaway is that Blizzard has an uphill battle to establish a Turtle WoW as an association-in-fact under RICO jurisprudence.

But assuming Blizzard pulls off a legal miracle here, it still must establish a pattern of predicate activity.

Criterion 2: A pattern of predicate (illegal) activities

Predicate activities are a subset of illegal activities that qualify for RICO. RICO lawsuits are required to show a “pattern of predicate (illegal) activities.” The legal requirement is at least two predicate activities over the last 10 years. There are 30+ predicate activities, but there are only two in this lawsuit: 1) trafficking in goods or services bearing counterfeit marks and 2) criminal copyright infringement.

Trafficking in counterfeit marks

Blizzard alleges that Turtle traffics in goods or services bearing counterfeit marks. A counterfeit mark is an inauthentic mark that is substantially indistinguishable from a registered trademark in the U.S., that is used in connection with the same goods or services for which the mark was registered, and that is likely to confuse.

Blizzard has a stronger case here. Turtle WoW has used Blizzard’s and WoW’s marks; that’s indisputable. The counterfeit mark claim doesn’t require any kind of financial gain, as it applies to broad “distribution,” which would cover Turtle WoW’s “donation” approach. What’s going to be hard for Blizzard to prove is the substantial confusion, as it must prove that players thought they were interacting with a legitimate Blizzard company and not a fan-made server. But “fan-made” verbiage is prevalent on the website, and the website disclaimer states that Blizzard retains all IP ownership, which suggests that actual confusion is going to be a sticking point.

However, Turtle WoW retweeting Blizzard and WoW corporate accounts is likely to work against it, as that could reasonably create confusion about the legitimacy of the fan-made server, and that retweeting could be seen as evidence of a business relationship between Turtle WoW and Blizzard. It’s not a great connection, but it’s feasible.

Criminal copyright infringement

The second predicate act is going to be more difficult for Blizzard to prove because criminal infringement requires that the infringement occur “for purposes of commercial advantage or private financial gain.” As it did with the requirement for being an “enterprise,” Blizzard has the burden of proof to prove that Turtle WoW exists for the purpose of financial gain.

The purpose restriction is important because Turtle WoW runs a “donation” shop with rewards for those who “donate,” which legally counts as financial gain, which is defined as anything of value. Receiving financial gain isn’t enough to satisfy criminal copyright infringement, however; the purpose of the enterprise has to be to make money. Since Turtle WoW’s stated purpose is not to make money, Blizzard has a higher burden of proof to demonstrate that it is, in fact, the real purpose.

Criterion 3: Interstate or foreign connection

This is a gimme for Blizzard. Of course, Turtle WoW is a “foreign concern,” given the fact that its team is spread out across the globe, as is its playerbase. There’s not much more to say here other than yep, this checks out.

Where does this leave us?

The biggest hurdle in these RICO claims for Blizzard is demonstrating that Turtle WoW is a legal criminal enterprise, not just a group of people who collaborate on a software development project. Blizzard must show 1) that Turtle of WoW is a criminal enterprise that came together explicitly to make money through illegal activities 2) how this instance is substantially different from any other collaborative software project like basically anything that exists on Github. The courts will be wary of rulings with broad impacts across the entire software development discipline, so they’ll be looking for ways to differentiate why this project is substantively different from all the other “associations” of developers who come together to collaborate on a project.

OK, so what is Blizzard actually up to?

There have been cases in the past when RICO charges have been successfully used in IP cases, but general the courts have been very conservative when it comes to applying the RICO Act. In my estimation, Blizzard is likely just trying to scare Turtle WoW into capitulating and seeing what else it can make stick along the way. When we look at the filing in light of the Blizzard legal department’s other activities just this very week, it looks as if the company is actively trying to clear the playing field of rogue servers that could directly compete with the Classic+ offering we all know is surely coming.

And from Blizzard’s perspective, there’s not really much to lose – no, not even player goodwill. If it loses, oh well – it’s no worse off than it is right now. If it wins, some of those emulator players will turn into paying players for Classic+ – and the gamers they do alienate were likely not going to play Classic+ anyway.

• Lawful Neutral: Breaking down the Blizzard v. Turtle WoW lawsuit • Another World of Warcraft rogue server, Project Epoch, has been smacked with a Blizzard cease and desist • World of Warcraft rogue server Everlook will close its EU branch following reported Blizzard legal threat • Casually Classic: Private servers, OSRS, and the increasing pressure to make WoW Classic Plus • Blizzard files copyright infringement lawsuit against World of Warcraft rogue server Turtle WoW 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!