[MUD-Dev] Reality check ...(long) [was Re: Black Snow Revisited]

[Jeff Cole]

  Bent double, like beggars under sacks,
  Knock-knead, coughing like hags, we cursed through the sludge,
  Til on haunting flares we turned our backs
  And towards our distant rest began to trudge.
                    --Wilfred Owen, Dulce et Decorum Est.
                      (*not* a page from a developer's diary ;P)

(more than) A few thoughts:

How about a check on the extasy of ruinous rhetoric.  The vast
majority of posts a merely conclusory and provide no argument to
support such conclusions.  No "because A, B, and C, it follows that
L, M and O and therefore X, Y and Z; and, X, Y and Z are bad."

  From: Brad McQuaid
  
  > If the courts [rule] in Blacksnow's favor, games like EQ, UO,
  > DAoC, and AC would be ruined.  Period.  They would cease to
  > operate.  The stewards of the game... the developers, the
  > publishers, the game masters, etc. couldn't do their jobs
  > because they wouldn't have the right to... their activities
  > would violate the 'rights' of the players to control their
  > characters and their characters possessions.

  From: Derek Licciardi

  > I believe that a BSI victory will all but crush the market for
  > many years to come.  It doesn't matter how much money you have,
  > if a simple lawsuit can convert your IP to someone else's
  > property.  Aside from the depreciating infrastructure, and the
  > software code(also depreciating technology wise), your IP is
  > your only long-standing asset in the project/service.  It is the
  > major asset that allows you to make money.  If that IP can be
  > converted against your will, investors won't touch the genre.
  > Lets hope BSI doesn't win.

  From: Koster, Raph

  > If a court case was decided which determined that players owned
  > the virtual items generated in the process of playing an online
  > world, I suspect that many of the large
  > corporations--particularly those which make a living form
  > intellectual property--would immediately exit the market,
  > worried about liability issues and loss of their IP.

I am most surprised that Raph would take such a view.  Given Raph's
musical interests, I would think that he would recognize that his
argument echoes those made by the music industry with respect to
cassette tape, DAT, and now, mp3; echoes the movie industry's
concerns about video tape and DVD.  To a lesser extent, it also
echoes the argument against used CD's.

What people seem to forget is that *if* there is a market, then
someone will step up to supply such market.

Take music and movies. Because movies are expensive to create and
music is expensive to promote (both assume a mass-market target
audience), the market dictates that sufficient legal protections
will develop to create income streams that allow producing companies
to recoup, and profit from, their ventures.

Might such development profoundly *change* such industries and their
business models?  Sure.  But that is not a bad thing, *per se*.

The IP argument is a red herring.  No IP interest is being assailed
in such a case; no IP right degraded.

In a legal sense, the word "property" defines a system of
relationships among people with respect to "things," that is a
"bundle of rights" with respect to "things" that denote a person's
expectations for disposal of such "things."  Such "things" may be
real or personal, tangible or intangible.  Perhaps the most
important property "right" is the right to exclude others.

Within the context of these games, players are given, basically,
full property rights to the items they loot, trade or otherwise
acquire.  These player property rights are independent of a
company's IP interest.

Currently, the major IP interest of a company lies in the company's
right to exclude non-subscribing users from the gamespace.  There
are other IP interests, to be sure (i.e. the IP interest of the
company to prevent "hacking" of the gamespace).

Again, consider two transactions:

  Transaction #1: Player A gives Player B item X in exchange for
  item(s) Y (where item(s) Y are either game currency; some
  assortment of other game items; or, nothing).

  Transaction #2: Player A gives Player B item X in exchange for
  item(s) Y (where item(s) Y are either game currency; some
  assortment of other game items; or, nothing) *AND* some
  real-world, extra-game transaction for money, barter or service.

I do not see how transaction #2 would necessarilly degrade a
company's IP interest any more than transaction #1.  It is a huge
leap to infer that transaction #2 somehow, all of a sudden, extends
a player's property rights beyond the scope of the game.  In effect
collapses a company's entire IP interest.  To the extent that it
increases a company's liability, such concerns are more easily
addressed in the EULA than through the enforcement of property
rights.

I understand a company might have financial interests in such
extra-game transactions.  The question, though, should really be
about whether a company should have to internalize such interests or
whether they should be allowed to externalize some or all of such
interests and impose the costs associated with such interest on
society. (More below)

  From: Brad McQuaid
  
  > We need to remember that MMOGs are games.  They're not the
  > virtual worlds we read about in Snowcrash, etc. (Yet).  And
  > they're not supposed to be.  They're games that take place in a
  > virtual online environment.

  > One day ... [t]here will be Snowcrash virtual worlds, where
  > people really own a piece of cyber-property, and they can do
  > what they want with it, make their own rules, do social
  > experiments on the development of cyber-communities, etc.
  > That's cool, that's great, and I'm looking forward to it.

Perhaps the most obvious question, then, is where do we draw the
line between game and cyber-community?  Society can't rely on the
developing company's classification (why would a company ever
classify their product as a community, rather than a game, an incur
the added liabilities you imply?).

So we need criteria.

I would argue that a criterion is *not* whether or not the company
"allows" (assuming that they have a say) players to "sell" items for
real-world currency.

I would also argue that the question is very complex and would
depend on many factors such as: the extent to which real-world value
is created; the extent to which the company financially participates
in (profits from) these real-world ttransactions; etc.

  From: Brad McQuaid

  > [C]ongrats to the earlier Mud-dev poster for the Lego analogy --
  > it's the best one I've heard yet.  I don't care how long you
  > worked building your castle made of Legos in Legoland, nor how
  > much you paid to get into Legoland for your season pass, you're
  > not going to sell the castle, nor transfer 'ownership' of the
  > castle, nor charge other Legoland customers for access to your
  > castle.

  > And games have to have rules, and people who maintain those
  > rules.  If you go sign your kid up to play in a local soccer
  > club, he or she might have certain privileges, but he certainly
  > can't decide that the ball is suddenly his, or that he doesn't
  > like the fact that only the goalie can pick up the ball, and
  > that he, a defender, wants to put his hands on the ball too.
  > Were he able to, the game would fall apart.

These analogies are not appropriate.  Remember that, within the
context of the games, companies give players what amount to full
ownership rights of the items they loot or otherwise acquire.

If you want a more accurate analogy with respect to your soccer
game: if the league decided that, in the interest of the "purity"
and "integrity" of the game of soccer, it would not count goals
scored by children who had a parent-encouraged motive to score
(i.e. the parents of the child would reward the child, extra-game,
with money, toys, happymeals or whatever).

Your analogy involves children materially changing the rules of
gameplay (which is decidedly *not* the case with extra-game
transactions and on-line games).

  From: Brad McQuaid

  > Here's my major concern: If the courts ruled a player owned the
  > virtual property his avatar accumulated in-game, then the prices
  > associated with selling these items via Ebay and elsewhere could
  > be used to argue that these items truly have value.
  > Consequently, if the developers 'nerfed' the item, and its value
  > went down, they just damaged the value of someone else's
  > property, and could be held liable.  Or, let's say a bug caused
  > his item to disappear: whoops, now the developer owes the player
  > the 'value' of the item.  Heck, even indirect activity on the
  > part of the developer, especially in games focused on
  > player-driven economies, could alter the perceived value of said
  > item.  MUDflation could cause the in-game AND real world value
  > of the item to drop.  And then if a player could argue that the
  > developer then financially damaged him...

A good argument.  However, it assumes that allowing people to sell
game items for real-word currency automatically extends a player's
property rights to equal (or, at least, approach) those the player
enjoys with their real-world property.

Such is not the case.  Purchasing an game-item from an auction site
(or some other method) would not also give the purchaser the right
to access the game without having a subscription.  Neither does the
player acquire the rights to "use" the item in another game.
Clearly, there are some limitations on the bundle of rights that a
player acquires.

I would argue that a player who purchases game-items extra-game are
much more reasonably considered "on notice" that their use of the
items in game are subject to the game's EULA than the player who
sells the game-item in an extra-game market is "on notice" that such
conduct might be subject to the EULA.

I would also argue that liability management (with respect to any
supposed "damage" claims that might arise per Brad's concerns above)
is better handled in the EULA than is the extra-game conduct of
players.  If only because then the EULA deals solely with ingame
behaviour/activities (something in which a gaming company's interest
is more manifest).

I recognize the *potential* impact of and problems created by
selling game-items extra-game.  But I would argue that society
should impose a duty on a game company to internalize the cost of
solving the problems.

A game might be unbalanced such that a player "buying" gear in an
extra-game market might have a decided advantage over other players
and such an advantage might, reasonably, irritate those other
players to the extent that these other players might quit in
frustration.  In such a situation, the question is whether the
company should have the duty to address the balance issues,
suffering the consequences of not addressing them; or, whether the
company should be able to look to the legal system (imposing a cost
on society) to address a problem that the company is unwilling to
address (or, more accurately, a cost to solve a problem the company
is unwilling to incur).

I fall squarely on the Darwinian side of the fence.  It promotes
evolution rather than an in-bred, genetically shallow gene pool.

Ultimately, I think that a well-balanced game will that items will
necessarilly acquire extrinsic value.  Indeed, it is a good thing.
Further, I think that in a well-balanced game, such extrinsic
transactions will have little-to-no (i.e. negligible) impact on a
company's income stream.

Some company will release a game in which extrinsic value not
stifled and perhaps even implements a system whereby they can
particpiate in the revenue (i.e. providing an in-game mechanism
through which such deals are transacted with no risk that you are
not getting that for which you are paying) as a percentage of the
transaction.  It will become the state of the art and any sucessful
game will ahve to also embrace it.

It is an eventuality rather than a possiblity.

Yrs. Affcty,
Jeff Cole

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