[MUD-Dev] Ebay bans character selling

[Paul Robinson]

<EdNote: Seriously odd quoting format fixed>

On Mon, 29 Jan 2001 16:29:58 -0800, on Information and Belief, it is
alleged that  Frank Crowell <frankc at maddog.com> expounded the
following::

>>rayzam wrote:

>> Out of curiosity or ignorance: does it truly, in a legal sense
>> violate intellectual property rights? would that stand up in a
>> court?  Or are those auction sites trying to avoid a mess?

As with the typical commercial organization, they have no spine.
They'll cave in at the first squeak from someone if it's related to a
customer, employee or any third party.  If it was something of theirs
they'd fight tooth-and-nail but when it comes to sticking up for
customers most organizations will "fold up faster than a gypsy roofing
company."

> Excellent question and one that a lot of the posters in the pro/con
> section of the website dealing with the law suit have missed.  There
> is clearly a lot of emotion and even some misinformation about the
> issue.  However, take a look at Paul Robinson's posting.  He is
> informed on commerce code and IP issues.

That was the part I was focusing on because that was the only part of
the issue I saw.  Besides, if you have to fight it in court, that is
the only form of argument the courts will listen to you.  That you
don't like it, or think it's unfair, or think they are being rude, or
other things will cut you exactly 0% slack as far as the judge is
concerned.  Arguing that there can be a property right in the
characters created by users will get a lot more mileage when trying to
argue it in front of a judge who probably doesn't know the difference
between a M.U.D. and a mud puddle.

> I wonder if his domain paul.washington.dc.us may be a tip that maybe
> he has spent more than 2 minutes thinking about these things.

I have it because I found a company that will do hosting on national
domains, and because if you use the .US domain, a domain registration
there is free and there is no renewal or maintenance fees as opposed
to the $35 a year that Network Solutions wanted when I got the
domain. As it turns out, no private registry is handling Washington,
DC so that can be registered for free.  (Some larger towns have
private registries handling those towns and they charge something.)  I
don't even live in Washington (I live just outside in Arlington, VA,
but I could have picked Bill, WY or Warfordsburg, PA if I wanted.)

> I am particular fascinated with the concept of "character
> ownership".  Think about that for a minute. Under current copyright
> laws, everything except raw data is subject to automatic copyright
> --even this email. So if I name a character, describe the character,
> and mold the character's abilities and skill levels, then can that
> be consider property convered by copyright law.

There are two questions that are raised: First, does the amount of
"effort" needed to create a character rise above what is called
"de-minimis" levels, in other words, is there some minimum
intellectual effort involved in creating the character?  Second, who
owns that character if it does rise to the level of a copyrightable
property?

As to the first issue, sometime back in the early 1900s, there was a
court case called "Pacific Telephone v. Leon", in which the court
ruled that the white pages of a telephone directory carried enough
intellectual effort to qualify for copyright protection.  Back around
1994, the whole standard changed when the U.S. Supreme court heard the
case of "Feist v. Rural Telephone", where Rural either wouldn't
license its phone books or wanted exorbitant amounts of money to do
so, Feist went ahead and copied their white pages in their collection
of directories.  Rural sued Feist and appeals followed.  The Supreme
Court ruled that since a white page directory is usually nothing more
than a computer-generated, automatic sorted listing of their database
of every published subscriber, the level of creativity did not rise
above "de-mimimis", thus there is no copyright protection in the mere
listing of people in the white pages of a telephone book.  So if there
is some effort to develop a character it's protectable.  If the item
is merely computer created and has no real "effort" to put something
in it it might not be copyrightable.

If it isn't copyrightable then the company that runs the service can't
claim ownership either.  Whether that means that there's no property
ownership is another issue. In theory the company can claim to own
everything developed on the service as their property.  Since people
are in fact paying for this it is arguable that what is created is
theirs in the same way that if you place an ad in a publication you
own the ad.  Some newspapers claim that when you put an ad in their
paper they own it and you have to pay them or get permission to use it
elsewhere. (A probably flimsy claim that might not stand up in court;
the newspaper is being paid to carry the ad, it can be presumed that
anything it does is on the level of "work for hire" as effectively an
employee of the advertiser and thus the newspaper should not obtain
any ownership in the ad.)

> http://www.gravityspot.com/classaction2/Pro.asp

> It that big block of text -- sort of hard to get through but worth
> reading.  Paul gets off the track a little bit in the middle, but I
> could help him with the details if he plans to get involved with
> this.

It's not my fault; I did format the text; the website discarded the
paragraph breaks.  I don't know why.

> Oh rayzam, the short answer: Ebay and Yahoo don't want trouble.
> They will go the path of least trouble.

They will cave in at the first squeak by a third party.  I would bet
that if someone claimed that selling a particular lawnmower violated
the lawnmower maker's copyright, eBay or Yahoo would bounce ads for
that product no matter how ridiculous the claim was.  I've heard the
Church of Scientolgoy has made such a claim with respect to their
"Hubbard E-Meter" device if someone tried to sell one, claiming some
copyright was violated even though there is no copyright issue in a
device any more than Garmin or Magellan has a copyright claim against
someone for reselling one of their GPS units even though they contain
copyrightable computer code, something that I don't even think the
Hubbard E-Meter has.

--
Paul Robinson <postmaster at paul.washington.dc.us>
"The lessons of history teach us - if the lessons of history teach us
anything - that no one ever learns the lessons that history teaches us."








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