Digital Property Law [was RE: [MUD-Dev] Selling training]

[Steve {Bloo} Daniels]

Joe Andrieu wrote:

> Steve (Bloo) Daniels wrote:
>> Joe Andrieu wrote:

> So, your premise is that digital property will only be handled by
> contract law?

Actually, my presumption is that "digital property" as you have
described it, is not property in any legally significant context.  I'm
open to evidence and opinions on the matter but that's the position I
start with.

>> You don't believe in integration clauses or the statute of frauds?
>> Interesting.

> Actually, I'm not sure what you mean by that.  I do think that the
> semantic interpretation of a written contract could vary
> significantly based on how the service is actually delivered, as
> such delivery could imply definitions in alternative ways.

Just FYI.  Integration clauses are often in contracts (and you'll find
them in the EULA's for UO, EQ, etc.) state that the written contract
is the *whole* of the contract.  Nothing is to be implied.  The
classic legal phrase is that a judge shouldn't look beyond the "Four
Corners" of the written contract for any terms (of course, there are
things you can't waive by contract and these clauses don't interfere
with such considerations).

Statute of Frauds is a catch-all term for laws that most states (and
countries) have that says for certain subjects, you *must* have a
written contract to have a court enforce it.  Particularly property.
These statutes essentially delimit their specified subjects from valid
verbal contracts.  There are variations amongs different states but
the most common subjects of SoFs in the US are: contracts for goods of
$500 or more, property (real estate), and services that will take
greater than a year to perform (cannot be performed in less than one
year).  Because intellectual property is federal (with the exception
of a few states with surviving trademark law), state SoFs don't always
speak to that subject.  But the same concerns that prompted the
creation of SoFs in the first place are addressed in copyright and
patent law (and trademark too, IIRC) with a "writing" requirement for
transfers or licenses of rights.


> Yes, I meant adhesion. And I must say your are probably right here.
> However, it seems that if the service is charging $1000 for the Mofo
> Sword From Hell, then it is a significant consumer expenditure.

It's not like buying a house.  These aren't equal factors.
Necessities is much more important, and there are other factors.  Even
if you somehow reach the conclusion that the game is a necessity, if
you can play it at all without buying the expensive sword, you're SOL
(Not an abbreviation for theSword of Lost Light in AC ;-).


> Ok, that may get rid of the implied terms in my example, but I'm not
> convinced it will set contract law above all other law in all
> situations.

Don't think of it as one type of law being placed 'over' another.
Think of it more as a judge looking for an 'out' to get the
sure-to-be-confusing case off of his docket.  If you like, think of
the contract law issues as a crutch that a judge can, and IMO will,
lean on to get the case out and over with ASAP.  And in all
likelihood, that will only come after a judge strenously urges the
parties to reach a deal and keep it out of his court room.


> I argue that if it doesn't already exist, then it will.  Property
> rights allow people to engage in transaction that they otherwise
> wouldn't.  Why pay $1000 for the Mofo Sword if I'm just going to get
> PK'd and lose it as soon as I leave the store?  I won't.  But give
> me property rights enforced in some way by the system and I will.

And you can do that with a contract that provides and exclusive
service, i.e., access, use of, return of, Item X (a
copyright-protected element of Game Y).

>> Well, I wouldn't say "regularly".  In the less than 10% of cases
>> that actual go to a judge or jury, liquidated damage clauses that
>> are found unfair, unreasonable, etc., are ignored.  That simply
>> means they aren't immune to judicial scrutiny.

> 10% is pretty regular to me.  I didn't say always.  If I had a 10%
> chance of losing $1 million, then I'm going to spend at least
> $100,000 if it will remove the risk.  My point was that liquidated
> damages are fully in the realm of Contract Law--which you seem to
> claim is the only reasonable forum for disputes of the type we are
> discussing--and yet, 10% of the time, they are overturned.

That isn't what I said.  They aren't overturned that often.  X Legal
Suits involving liquidated damage clauses Y = X/10 Y go to trial,
require judicial scrutiny Z < (Y/2) Z suits in which the clauses are
found to be unfair, etc.

No way to be precise on those, but there is no doubt Z is *much* less
than Y.


> p.s.  I will however agree that perhaps the right TOS could avoid
> most of these issues. MOST. Probably not all. But how many startup
> MUDs can really afford a good lawyer anyway?

And I think you could have a system that achieves the same result you
want without resorting to property law issues.

bloo

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