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Reply #315 on: May 08, 2010, 06:09:41 AM

Oh, that's just awesome. For realz.

Internet lawyer time: apart from the contact bit and having to answer the question, "Warhammer Alliance has been running for years, so why did you wait until now?" I'd say that Games Workshop probably has enough to run with. Warhammer is their trademarked IP and fair use on a fansite has generally appeared to be up the discretion of the IP holder (mainly because I'm guessing most fansites don't appear to have the resources to fight something like this).

But here's the thing: Games Workshop just killed all their MMO fansites for this and for the 40K title. Why would you create a Warhammer fansite when the threat of Games Workshop taking legal action against you hangs overhead? You wouldn't.


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Reply #316 on: May 08, 2010, 06:13:32 AM

Oh, that's just awesome. For realz.

Internet lawyer time: apart from the contact bit and having to answer the question, "Warhammer Alliance has been running for years, so why did you wait until now?" I'd say that Games Workshop probably has enough to run with. Warhammer is their trademarked IP and fair use on a fansite has generally appeared to be up the discretion of the IP holder (mainly because I'm guessing most fansites don't appear to have the resources to fight something like this).

But here's the thing: Games Workshop just killed all their MMO fansites for this and for the 40K title. Why would you create a Warhammer fansite when the threat of Games Workshop taking legal action against you hangs overhead? You wouldn't.



You can as long as you aren't making a commercial site using a GW trademark in the domain name.

Curse is a commercial network so they'd need to ask permission/pay GW to use the Warhammer name in one of their domains. Apparently they didn't (and yes, I know they bought WHA from the original admins after it had already been set up).

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Reply #317 on: May 08, 2010, 07:54:59 AM

You can [make a Warhammer fan site] as long as you aren't making a commercial site using a GW trademark in the domain name.

Is that the Law or GW policy?  I was under the impression that legally, that kind of thing was kind of irrelevant.  Copyright infringement is copyright infringement, whether you're charging $100 for a bootleg copy of Avatar or giving it away for free.  And 99% of the internet makes some kind of money, even f13 has those donation links up in the corner.  I don't visit WHA often, but what's the site doing that your average fansite wouldn't be doing, aside from being successful?

And regardless, I don't know that your average Warhammer fan is going to be making those kinds of distinctions.  If you're making a Warhammer fansite, you're not going to be looking at how to qualify as a non-profit site under act IV subclause 26 or whatever.  You're going to see the biggest Warhammer fan site on the web get hit with a mallet and think "that could be me."

And why fucking now?  If they'd tried this when WAR was fresh, I can see it as defending their brand, but suing a Warhammer fan site at this point seems kind of like trying to shoot a suicide jumper before he hits the ground.
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Reply #318 on: May 08, 2010, 08:18:11 AM

Hmm,

Let me go down my checklist.
  • Games Workshop has been aware of the site since 2005.
  • Warhammer Alliance has always been a commercial site with ads since 2005.
  • Games Workshops Licensing Manager helped promote the site in 2006.
  • Good luck proving damages. Let me show you the metrics how the site promoted the product.

http://www.warhammeralliance.com/forums/showthread.php?p=4666095#post4666095

Quote
Heya Folks,

For those of you whom do not know me, my name is Shelby Cardozo and arguably I'm the founder of Warhammer Alliance. I figured I'd pop out of the shadows and clear up some misinformation about the site, it's history, and my dealings with Games Workshop.

Lets rewind to 2004 and remember the old Warhammer Online that was canceled by Climax Entertainment. Well in late 2004, there was a Warhammer community that refused to die (WarhammerOnlineForums.com). Unfortunately however, the site admin for the WOF was on hiatus and slowly the site was having problems and the community was on the rocks.

Enter 2005 and Mythic Entertainment. It was early 2005, soon after my Imperator fansite was sunk that I offered to help out the WOFs. Specifically, I'd relaunch the site as Warhammer Alliance. The site was relaunched around August 2005 and believe it or not, the site had ads on it back then. Specifically, I knew that the site was going to get big and I knew that in order to keep the servers running when the site got big, that ad revenue would be required. So, the site was launched (with ads) and we all looked forward to a new Warhammer Online.

Things went fantastic. The community, the developers, we were all so excited. The site was growing and the community was having a blast getting excited all over again. Fast forward to late 2005 and an interesting phone and email conversation I had with Sanya Weathers of Mythic Entertainment and Erik Mogensen, the Licensing Manager for Games Workshop.

The topic of discussion, we didn't have a proper disclaimer at the bottom of the site. So, I worked with Sanya and Erik to ensure we met standards that all parties would be happy with. We settled on the same footer you see today. "This web site is completely unofficial and in no way endorsed by Games Workshop Limited or Mythic Entertainment." And an added a link to a longer disclaimer.

This footer and disclaimer was agreed to by Games Workshop, the Licensing Manager and Mythic Entertainment.

Things seemed to be going great. In fact Erik even registered here at the site and granted us a some interviews. Read that again. Games Workshop was helping promote the site by doing interviews with us back in 2006. Here is a link to Eriks first interview.

Now, fast forward to today.

Games Workshop is suing Warhammer Alliance. Now, I'm not a Rocket Surgeon, but this lawsuit smells like Greenskin dung to me. In the suit they allege that they just became aware of the site. But they were promoting it in 2006, 4 years ago?

You see folks, Warhammer Alliance, even today is a news site. The staff here do Warhammer news reporting, original news and commentary. In the same way that AppleInsider.com covers apple products, WarhammerAlliance.com covers Warhammer Online. This lawsuit is really just a gross perversion of trademark law and I hope that Curse puts up a fight.

But hey, that's just me. You guys are free to form your own opinions.
« Last Edit: May 08, 2010, 08:25:34 AM by garthilk »

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Reply #319 on: May 08, 2010, 08:20:35 AM

Hey!  It's THAT guy
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Reply #320 on: May 08, 2010, 08:31:29 AM

I guess someone muzzled Barnett so he couldn't do his damnedest to ruin the game, so Games Workshop had to pick up the slack.  We should be grateful, really.  The amount of entertainment we got for $100 million and maybe a box sale has been totally worth it.

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Reply #321 on: May 08, 2010, 08:52:34 AM

You can as long as you aren't making a commercial site using a GW trademark in the domain name.

Curse is a commercial network so they'd need to ask permission/pay GW to use the Warhammer name in one of their domains. Apparently they didn't (and yes, I know they bought WHA from the original admins after it had already been set up).

This is how I understand it as well. Though I'm with Lant and appreciative of the free entertainment, since either way we all win Popcorn
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Reply #322 on: May 08, 2010, 09:26:46 AM

But here's the thing: Games Workshop just killed all their MMO fansites for this and for the 40K title. Why would you create a Warhammer fansite when the threat of Games Workshop taking legal action against you hangs overhead? You wouldn't.

You can as long as you aren't making a commercial site using a GW trademark in the domain name.

Curse is a commercial network so they'd need to ask permission/pay GW to use the Warhammer name in one of their domains. Apparently they didn't (and yes, I know they bought WHA from the original admins after it had already been set up).

I know, but the problem if you want to link the site to your game of choice, you usually try to pick something that is close to it and often that will end up being a trademarked term.

You can be clever, of course - I'm aware of a Batman fan club that DC threatened at some point about using their registered characters (i.e. Batman) in their name. The group ended up calling themselves Battalion (googled and couldn't see them, which might mean they don't exist anymore) which was far enough away to satisfy DC.

Let's think about the WH 40K title. You want to make a fansite for it, ala WHAlliance. Anything "Warhammer" or "40K" is out - this fansite here is obviously concerned. So is "Space Marines" or "Blood Chapter" etc etc. Especially if GW goes the "40K is our IP and can't be used without our permission!". End result - fewer fansites because no-one wants to get a cease and desist letter. The larger networks will still go for it, but independent operators - especially those thinking they'll make some cash out of the site, or even make it revenue neutral - won't.

GW doing this to WAR is nothing, since the chapter is pretty much written on that title; my dark glee is that they've managed to blacken PR for their next MMO before it has even had its proper launch.

LinkedIn indicates that there is a new Head of Licensing at GW. That's probably where the change comes in.

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Reply #323 on: May 08, 2010, 09:38:11 AM

Wow is this ever a kick in the balls. Wonder if WAR was doing really well if this lawsuit would even be going forward. Guess they have to make up for lost coin somewhere. Not sure why you would cull any fansite that functioned as your "official" forums for so long. I am surprised....

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Reply #324 on: May 08, 2010, 09:57:50 AM

Nelson has been working in the licensing department for years now as Erik Mogenson's second in command. It's not a completely new guy taking a look around an unfamiliar landscape.

There are plenty of GW fansites around that use trademarked names such as The Warhammer Forum. Those guys aren't going to get a C&D letter because it's not a commercial site and no-one is making money off GW's IP without permission.

I'm sympathetic to the situation at WHA and it definitely sounds like someone somewhere has made a bad call but this isn't a crusade against fansites.

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Reply #325 on: May 08, 2010, 02:48:16 PM

Nelson has been working in the licensing department for years now as Erik Mogenson's second in command. It's not a completely new guy taking a look around an unfamiliar landscape.

There are plenty of GW fansites around that use trademarked names such as The Warhammer Forum. Those guys aren't going to get a C&D letter because it's not a commercial site and no-one is making money off GW's IP without permission.

I'm sympathetic to the situation at WHA and it definitely sounds like someone somewhere has made a bad call but this isn't a crusade against fansites.

I completely agree. I see the point of allowing one - allow all problems and trying to avoid them. I just find it appalling they choose NOW to do anything about it. Christ WHA has been around for what 6 years? What took so long?

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Reply #326 on: May 08, 2010, 02:59:24 PM

It's probably the fact that the business model for WHA has changed quite a lot since Shelby founded the site and since Erik Mogenson gave them that interview. A fan site supported by ads is a different thing to a fully commercial site operated by a for-profit corporation.

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Reply #327 on: May 08, 2010, 03:57:04 PM

It's probably the fact that the business model for WHA has changed quite a lot since Shelby founded the site and since Erik Mogenson gave them that interview. A fan site supported by ads is a different thing to a fully commercial site operated by a for-profit corporation.
In the US that makes no difference in terms of trademark infringement. In the US you can lose your trademark's protected status by not going after infringers regardless of whether or not the infringers are making money off the infringement. However given Shelby's post and assuming he still has emails and other documentation regarding the early history it seems pretty clear that the site had permission from GW to use the trademark(s) on the site. If the site's use of those trademarks has changed since then GW might have a case but a change in the business model of the site independent of trademark usage does not change whether or not trademarks are being infringed.
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Reply #328 on: May 08, 2010, 09:24:56 PM

Interestingly enough folks,

WHA isn't the only site reciving legal letters from GW in the past year. There are several Blood Bowl sites that haven't just gotten off the ground in the last year have had to shut down due to threats. Not to mention this pretty much chills out a lot of enthusiasm for any 40k Online fansites that might have been brewing. To say this is an isolated incident would be false.

Secondly, using a trademark in a domain name is not a violation of the trademark. There are sites like AppleInsider.com that operate, using a trademark, generate revenue for ads and is owned by a for profit company.

So lets look at this again,
  • WHA does not dilute GW, All forms of news reporting and news commentary are exempt.
  • Only commercial competitors can be engaged in "unfair competition."
  • WHA clearly enhances the trademark and has the metrics to prove it.
  • GW have abandoned the mark or acquiesced in its misuse, as they have been aware of it's use since 2005
  • Warhammer Alliance has Legitimate Interests in the trademark as a domain name as part of nominative use.
  • WHA falls under Non-competing or Non-confusing Use

Courts have found that non-misleading use of trademarks in URLs and domain names of critical websites is fair. (Bally Total Fitness Holding Corp. v. Faber, URL http://www.compupix.com/ballysucks; Bosley Medical Institute v. Kremer, domain name www.bosleymedical.com). Companies can get particularly annoyed about these uses because they may make your post appear in search results relating to the company, but that doesn't give them a right to stop you.

Sometimes, you might use a trademark without even knowing someone claims it as a trademark. That is permitted as long as you're not making commercial use in the same category of goods or services for which the trademark applies. Anyone can sell diesel fuel even though one company has trademarked DIESEL for jeans. Only holders of "famous" trademarks, like CocaCola, can stop use in all categori.

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Reply #329 on: May 09, 2010, 12:30:45 AM

Copyright infringement is copyright infringement

This isn't a copyright case, it is a trademark case. Different beast entirely.

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Reply #330 on: May 09, 2010, 05:15:31 AM

Interestingly enough folks,

WHA isn't the only site reciving legal letters from GW in the past year. There are several Blood Bowl sites that haven't just gotten off the ground in the last year have had to shut down due to threats. Not to mention this pretty much chills out a lot of enthusiasm for any 40k Online fansites that might have been brewing. To say this is an isolated incident would be false.

There's some editorialising going on here. FUMBBL was sent a cease and desist letter for offering online multiplayer Blood Bowl software. As Cyanide Studios have to pay GW licencing fees to do that then GW is pretty much obliged to act in that case. The other sites that have received C&D letters in recent times that I'm aware of are BoardGameGeek and LibrariumOnline both of which were repackaging GW assets and redistributing them as fan material. That's not quite the same thing as simply chasing down anyone with the word Warhammer in their domain name. There are a lot of fan-sites for GW products that use GW trademarks in their domain names who have clarified their situation with GW legal and been given an explicit green light, I participate in a number of them and I've been part of the discussions over GW policy with the admins and owners.

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Reply #331 on: May 09, 2010, 10:27:07 AM

It's probably the fact that the business model for WHA has changed quite a lot since Shelby founded the site and since Erik Mogenson gave them that interview. A fan site supported by ads is a different thing to a fully commercial site operated by a for-profit corporation.

That's true, but it doesn't look true to people who have always just logged in to Warhammer Alliance.

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Reply #332 on: May 09, 2010, 11:17:17 PM

Heh, so will GW start to 'license' the use of its trademarks in domain names, on rolling contracts to be revoked if they don't like what the site is saying about them?

I'd be surprised if WHA's tumultuous relationship with Mythic after WAR's launch didn't have much to do with this.
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Reply #333 on: May 10, 2010, 10:08:54 AM

I think the one thing that everyone  other than Iainc fails to realize in this situation is that the ORIGINAL holder of the permissions given for WHA  is NO LONGER the owner. The minute he SOLD ownership to Curse the permissions for use were no longer valid(at least every licensing agreement that I have ever seen has made provision for the revokation of the license if the company changes ownership). Then add to the fact that in 2009 Curse started pushing premium paid membership services and there is where you have the problem....

 If Curse had attempted to refresh their agreement with GW when they acquired the site things would be different. The minute they started tying the WHA site to their premium subscription system it became a commercial venture and they are in effect using the GW IP in an attempt to drive sales/memberships in their program. Its pretty cut and dry actually. They FORCED GW to act in this case. Its not them being bullies guys its just something GW had to do or as some of you mentioned they lose their property...

AGAIN the issue is previous permission to someone who no longer owns the site is not transferable and then when they added the sub thing that created the issue warranting the legal matters WHA is involved in now. Oh and the fact that curse took over in 2009 is why they are saying WHA came to be in 2009. Since the new company took over that version/owner/whatever you want to call it of WHA became a new entity in the eyes of the law.
« Last Edit: May 10, 2010, 10:15:46 AM by Kodan »
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Reply #334 on: May 10, 2010, 01:00:17 PM

The failure isn't that we don't realize the legalities of it... it's that it will have a chilling effect on the plebeians who don't -- all those people thinking of running or participating in a fan site, i.e. the people most interested in Games Workshops titles.

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Reply #335 on: May 10, 2010, 01:07:13 PM

The failure isn't that we don't realize the legalities of it... it's that it will have a chilling effect on the plebeians who don't -- all those people thinking of running or participating in a fan site, i.e. the people most interested in Games Workshops titles.

But that isn't correct AT ALL. Did you read the post above yours? it has nothing to do with the random people wanting to start up a fan site (like say, IGN or the countless others)

Part of the lawsuit has to do with Curse gaming selling premium memberships to the site starting in 2009. GW didn't care about WHA back in 2005 when it started, because they were not selling premium memberships and had gotten the OK from GW for their website.

Again, this does not deter fans from making fansites. It DOES deter fans from making fansites with the intent of selling 'premium' memberships using a GW IP without GW's approval.


HOWEVER, that isn't what a majority of this lawsuit is about. GW is more upset with the domain name and that Curse is cyber-squatting on it.
« Last Edit: May 10, 2010, 01:11:28 PM by waffel »
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Reply #336 on: May 10, 2010, 01:10:22 PM

what about making AdSense $ from traffic to a GW fansite?
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Reply #337 on: May 10, 2010, 04:27:09 PM

HOWEVER, that isn't what a majority of this lawsuit is about. GW is more upset with the domain name and that Curse is cyber-squatting on it.

We're not arguing (for the most part) about what the lawsuit is about.  We're not lawyers, we don't know or care.  We're arguing about what this means for the people in the bleachers.  I don't think most of the spectators are seeing this as GW bravely defending their good name, so much as GW bringing the sledgehammer of the law to bear on a fan site because they violated some technicality of trademark law.  There are things GW could have done before they brought the thing to court, discussed something with WHA, worked out some kind of deal.  And it's possible they tried, but the way it's being described here sounds more like a huge corporation bringing cannons to bear on people who should be their biggest fans.  That's not good.  It might be legal (probably is, since I can't imagine why you'd do this otherwise), but still looks nasty to anyone who's contemplating starting a fansite who doesn't know much about trademark law (I.E. most of them).
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Reply #338 on: May 10, 2010, 06:07:48 PM

They also could have done this when the premium account system went active.
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Reply #339 on: May 11, 2010, 03:27:11 AM

GW has toed a hard line with its intellectual properties for as long as I can remember. From a business standpoint, it makes perfect sense. Enforcing exclusive rights is a vital part of maintaining a healthy brand and protecting both the owner as well as authorized licensees.

I doubt anyone is suggesting GW should allow fansites to profit from rights violations without recourse. For many, the issue is not that GW is bringing down the law, but the manner in which it goes about doing it. For all their monetary clout, they have the PR finesse of a rutting rhinoceros. GW is like the school bully, towering over his whimpering peers and yelling, "Don't you play with my train set!" I wouldn't be surprised if they had a banner with "better to be feared than loved" emblazoned with fiery letters hanging on their big wall of business practices.

Not exactly the best way to win hearts and minds, but I guess GW is comfortable with taking a calculated PR hit.

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Reply #340 on: May 11, 2010, 06:46:53 AM

GW has toed a hard line with its intellectual properties for as long as I can remember. From a business standpoint, it makes perfect sense. Enforcing exclusive rights is a vital part of maintaining a healthy brand and protecting both the owner as well as authorized licensees.

I doubt anyone is suggesting GW should allow fansites to profit from rights violations without recourse. For many, the issue is not that GW is bringing down the law, but the manner in which it goes about doing it. For all their monetary clout, they have the PR finesse of a rutting rhinoceros. GW is like the school bully, towering over his whimpering peers and yelling, "Don't you play with my train set!" I wouldn't be surprised if they had a banner with "better to be feared than loved" emblazoned with fiery letters hanging on their big wall of business practices.

Not exactly the best way to win hearts and minds, but I guess GW is comfortable with taking a calculated PR hit.


Another nail in the proverbial coffin for WAR. I get it, the business plan changed on their fansites, but they have an entrenched die-hard WAR community - I just have to wonder who lunch this will actually end up eating - my vote is Mythic's. Doesn't GW make most of its coin from the TT stuff anyway and the MMO is just milk money?

edit: brain dead this morning...
« Last Edit: May 11, 2010, 07:35:51 AM by 01101010 »

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Reply #341 on: May 11, 2010, 07:25:53 AM

Another nail in the proverbial coffin for WAR. I get it, the business plan changed on there fansites, but they have an entrenched die-hard WAR community - I just have to wonder who lunch this will actually end up eating - my vote is Mythic's. Doesn't GW make most of its coin from the TT stuff anyway and the MMO is just milk money?

Yeah I highly doubt GW is making bank off of WHO licensing fees.
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Reply #342 on: May 11, 2010, 07:52:28 AM

Another nail in the proverbial coffin for WAR. I get it, the business plan changed on there fansites, but they have an entrenched die-hard WAR community - I just have to wonder who lunch this will actually end up eating - my vote is Mythic's. Doesn't GW make most of its coin from the TT stuff anyway and the MMO is just milk money?

Yeah I highly doubt GW is making bank off of WHO licensing fees.

They probably were making a significant amount. It depends on how the licencing structure worked - generally it's either a flat fee per month (unlikely for a project of this scale) or a per server cost. Subscriber numbers or even receipts aren't a big part of the total.

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Reply #343 on: May 11, 2010, 08:15:47 AM

NB: I see signs of the death of WAR in all things.

However, would this be the kind of thing that GW would pull if they knew WAR was closing in the near future? See if they can get some more $ out of a site and if it closes, no big loss?

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Reply #344 on: May 11, 2010, 08:22:51 AM

I think you're reading too much into it. I very much doubt that the situation with WAR is at all relevant to GW's decision, it's all about Curse.

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Reply #345 on: May 11, 2010, 08:51:30 AM

I'm pretty sure the powers that be at Games Workshop don't give two shits about the MMO properties, so long as the licensing fees keep coming in. It's not like they fronted the money to build the thing, or have any real stake in the game succeeding other than brand integrity. As long as the game is open, they get their fee.

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Reply #346 on: May 11, 2010, 06:54:24 PM

Part of the lawsuit has to do with Curse gaming selling premium memberships to the site starting in 2009. GW didn't care about WHA back in 2005 when it started, because they were not selling premium memberships and had gotten the OK from GW for their website. Again, this does not deter fans from making fansites. It DOES deter fans from making fansites with the intent of selling 'premium' memberships using a GW IP without GW's approval.
Again,

Completely inaccurate. WHA sold premium forum memberships back in 2007. The same year GW was still doing interviews with the site.

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Reply #347 on: May 12, 2010, 08:41:57 AM

They probably were making a significant amount. It depends on how the licencing structure worked - generally it's either a flat fee per month (unlikely for a project of this scale) or a per server cost. Subscriber numbers or even receipts aren't a big part of the total.

Well I meant in the grand scheme of GW's income, I don't really see Warhammer being that big compared to GW's other sources of revenue.

But I am curious.  How would a per server cost work?  Does that mean that EA would have to pay per physical server or per "shard"?  It seems you have more potential on subscriber royalties, or at least it makes more sense to me (someone who has no experience with these types of deals).
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Reply #348 on: May 12, 2010, 07:34:05 PM

I hope it isn't a per shard / server kind of deal, because that would see the closing of servers / shards as a money saving bonus. Or Mythic's early ramp-up on servers being something that looks increasingly poorly thought out.

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Reply #349 on: May 13, 2010, 06:59:58 AM

Typically it's per shard because the number of machines running a 'game server' is pretty mutable. Again, I don't know the specifics of the GW/Mythic deal, I'm simply speculating on licencing structures that I've seen in action elsewhere.

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