Last week, Marc Watson, Mojang’s Customer Support Manager, dropped a bit of a bomb on Twitter:
Mojang seems to think that their EULA gives them the authority to regulate anything related to Minecraft. It’s true that a well-worded EULA can confer tremendous power (in the U.S., at least), but that power is not unlimited.
Regardless of the legality of it, Watson’s interpretation is hostile to Mojang’s customers. It’s time for Mojang to do some soul-searching. What kind of company do they want to be?
The Minecraft Ecosystem
Minecraft is one of the most popular games in the world today. This isn’t because of a compelling single-player experience; the multi-player experience makes Minecraft. That’s only possible because of the work of both the modding community and server operators.
The modding community super-charged Minecraft’s early growth and continues to keep the game fresh. This, despite tacit hostility from the game’s creator. Mojang obfuscates the Minecraft code before compilation for release. That obfuscation costs modders countless hours at every release. They must reverse-engineer the new release to ensure that their mods still work. It’s something that Mojang could stop doing with no ill effects.
The fact that they haven’t (and likely never will) is incongruous with the common impression of Persson and Mojang. That’s far from the only head-butting Mojang has done with its customers, though.
Server operators have a set of worries distinct from those of modders. To say that the Minecraft server code is not performant is a dramatic understatement. The sheer brawn required of a server in order for even a dozen people to play on it concurrently is mind-boggling.
Operators of popular servers have to pay those bills somehow. Every possible solution to that problem exists in the wild already. There are kind benefactors funding their servers out of pocket. There are pay-for-slot schemes and pay-to-win servers. There are tons of servers funded only by voluntary donations.
Minecraft is even popular enough that markets have come to life around it. This includes server hosts, freelance builders, and proprietary management software.
Yet, despite having enormous revenue in 2013, Mojang seems uncomfortable with the thought that someone else might profit from Minecraft.
Enforcing the EULA
In the United States, the EULA exists at the intersection of copyright law and contract law. They’re contracts that govern the who can use the copyrighted software. Like other contracts, EULAs are not self-enforcing. Mojang has to either test their theory in court or intimidate a potential opponent into backing down. Saying something on Twitter does not make it true.
So, is Minecraft’s EULA enforceable against Watson has said it is? Yes, at least through the war-chest bullying method. In court, that’s a closer question. It’s not particularly common for courts to rule against the rights holders in EULA cases, but to reach a realistic prediction requires a more complicated legal analysis. Still, remember that a court will interpret ambiguous language against its drafter.
This means that Mojang does have an opportunity define every word or phrase they use in their EULA. To do that, though, they have to do it in the contract, not on Twitter after the fact.
Is There Ambiguity in Minecraft’s EULA?
Take a stroll around any thread on this topic, and you’ll find no shortage of people who unequivocally say no. They’ll argue that the EULA is pretty clear that it’s not okay to make money off of Minecraft without Mojang’s permission. They’ll say that selling access to a diamond sword on a private server is obviously making money off of Minecraft. This is a reasonable point of view.
But the question isn’t whether Mojang’s interpretation is reasonable. The question is whether there are differing points of view that are also reasonable. If there are, you have yourself some ambiguity.
The simplest place to look for this is in the difference between profit and revenue. Am I “making money” off of a lemonade stand if I spend $1 per glass making it and sell the lemonade for a quarter a glass? What if I’m selling the lemonade for $5 a glass? Or if I’m selling it for $5 a glass but I only sell one glass, despite buying enough resources to make 100 glasses?
…and that’s just two words of the Minecraft EULA. Is there ambiguity? Yeah, there’s plenty of it.
Mojang is Missing the Point
The first goal of almost all contracts is to avoid litigation in the case of a future disagreement. Good contracts do this in two ways. First, by putting all parties on notice of what behavior is expected. That reduces the odds that a disagreement will occur at all. Second, by making the outcome of any potential litigation obvious. This reduces the likelihood of litigation if there is a dispute.
Through that lens, the Minecraft ToS and EULA are atrocious and that’s bad for everyone.
Watson’s pronouncements appear to be arbitrary. According to him, it’s kosher to make money selling minecraft-specific hosting services. It’s also fine to get rich running a pure donation server. But don’t even think about offering someone an in-game incentive to contribute.
Mojang needs a new EULA and they need to start from scratch. But first, they need to sit down and decide what kind of company they’re going to be. Will they be like the NFL and their famously over-broad copyright notices? Or will they look more like Valve, who is content to let Counter Strike server operators sell VIP access?
That’s not a question that Mojang should punt on. Instead of leaving it to their own enforcement, they ought to be crystal clear, right now, about what is and is not permitted. That’s true especially if getting that clarity is difficult. If they can’t explain it in a ToS, it’s unlikely that they themselves really understand it.
The header image is a screenshot of the Creeper Courthouse by pin1197.