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

[Koster]

From: Jeff Cole
> 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.

Er, let me make my personal position clear (I thought it was from
previous posts on the list, but just to be sure...). In addition,
this is most definitely MY thoughts on the matter, not that of any
company.

I stated that should this occur, many large corporations would exit
the market seeing it as too risky. Not that the genre would die, not
that others wouldn't step up to the plate, not that pigs would
fly. Yes, what I said echoes the arguments of the music and movie
industries--the large corporations ARE in at least one case exactly
that industry (and when they aren't one and the same, they certainly
have similar mentalities), and will flip out and freak out in
exactly the same ways as the music industry is now doing.

My *personal* take on what is going on is that the concept of
intellectual property has been gutshot, and just doesn't know it's
going to die just yet.  It's going to take many long and painful
years before the final demise, and it may yet be saved by ridiculous
extraordinary measures, but the prognosis is currently grim.

The law is a complete mess.

  - In Florida, a judge rules that a porno website does not violate
  local community standards because "cyberspace is a place." Yay,
  cyberspace has free expression, freedom of assembly, etc! Oh,
  wait. Maybe it isn't, cf
  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=97728.

  - Elsewhere, Harlan Ellison sues AOL and a bunch of ISP's because
  a user cut and pasted an entire story of his into a forum, and he
  regards the ISPs the story traveled through on the way as
  publishers. One of the ISP's settles.  Oops, wait, it's a
  publication venue. Now we're under different laws.

  - The various acts of Congress that are periodically struggled
  against by the open source/EFF/ALCU/etc crowd are still bearing
  the legacy of the early legislation stating that the Internet is a
  communications medium that falls under the purview of the
  FCC. Last I heard, your modem, router, firewall, computer, etc was
  a *telephone* under the law, which made it subject to wiretap law,
  different levels of expectation of privacy, different levels of
  rights. Consider that most of our users currently have
  expectations of privacy (though we do not guarantee them) and in
  many states it is illegal to tape (but maybe not log?) speech when
  said expectation exists unless consent is given by speakers, under
  wiretapping law. (Wiretapping law applies even to something as
  straightforward as taping a classroom lecture,
  btw--http://fyi.cnn.com/2001/fyi/teachers.ednews/02/28/recordingcharge.ap/in
  dex.html).

  - In the rest of the world, privacy law has rapidly grown so tight
  that you cannot even keep extensive records on your users'
  activity without explicit permission. Funny, that's what an RPG
  *is*. There's damn little difference between your activity in an
  online world as your credit report, and the differences will
  continue to grow less important as online spaces are used for
  wider purposes. Example where the line is already extremely
  blurry--muds and websites being used as educational
  institutions--accredited ones, no less, with the concomitant
  privacy laws.

  - Content companies are flopping like fish out of water trying to
  figure out how to monetize their IP in days when copies
  indistinguishable from the original can be made (anyone ready to
  subscribe to your CD collection?).  Congress is sending nasty
  letters to the companies over the notion of making CDs
  uncopyable. Heck, Sony Electronics is telling Sony Music they
  can't call uncopyable CDs "compact discs" because they don't fit
  the standard.

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

*In the eyes of the content IP holders,* the act of someone writing
a Kirk/Spock pr0n piece degrades the IP. You do know that when a
parent comes across one of these in their kids' bedroom, Paramount
gets the call, right?  You've also heard the stories about Disney
telling mom-and-pop daycare centers to take down their Mickey Mouse
paintings on the walls.

> 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.

Let's be candid: in a legal sense, the word "property" as it
pertains to content, is whatever the largest lobby gets lawmakers to
say it is. That's how we got software patents, that's how copyright
terms have been extended past all reason...

> 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.

"Within the context of these games" has no legal meaning
whatsoever. Whether it OUGHT to is a whole other debate, but
currently, there is no legal sense of "within the context of these
games."

Rightly or wrongly, the position taken by companies who are saying
to eBay, "take these items down" is very similar to the position
taken by a movie company when it asks eBay to take down bootleg VCDs
of its movies. It's an unauthorized sale of the company's
material. We can argue all we want about whether the fact that the
bits and bytes are moving within one database, between databases, or
being transferred on a solid medium makes a difference; but the
companies who own the content currently do NOT make such a
distinction (cf software piracy).
 
> 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.

As it happens, that is EXACTLY how ASCAP, BMI, SESAC, and the rest
of the performance rights organizations collect license money on
public performances of works owned by members. You can play it for
free. But if you choose to charge for it, you suddenly owe money to
the organization (ASCAP is literally a union; they track
performances and collect money and distribute it to the membership
as equitably as they can. Disclaimer: I'm a member).

Transaction #1: performer A gives audience member B a performance of
someone else's IP in exchange for say, a song swap or maybe nothing.

Transaction #1: oops, they charged money.

The questions are more like, "is the virtual sword analogous to
performance of a song?" "Does the venue in which the "give" happens
matter?" (It does in the case of musical performance, btw). And we
can't even define what the venue *is* under the law--there's
significant differences between singing over the telephone, over TV,
and recording the song.

There isn't even a common-sense definition of what is a private and
what is a public space in cyberspace.

  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=97728. 

> 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.

Um, as of right now, nobody knows if all the pieces of software
EULAs can hold up in court. That's a whole OTHER ball of wax that's
been interesting to follow. Most recently, a judge ruled that you
can unbundle software and resell it if you haven't installed it, on
the grounds that if the transaction has the form of a sale, it is a
sale. (cf http://www.linuxjournal.com/article.php?sid=5628).

So, after that lengthy preamble, what do I think?

The fact is that online worlds, by virtue of persistence, broadcast,
multiuser capabilities, digital reproduction, extensive user
tracking, and a host of other factors, do not fit into any of the
current pigeonholes in the law. Rather, they can be used *as*
publication venues, broadcast media, person-to-person
communications, places of assembly, records of activity, and
probably more things that I am not thinking of off the top of my
head.

I believe that it is inevitable that data like game objects acquire
value.  In fact, arguably, server-held data is the ONLY data that
will RETAIN value soon. The fight over who owns it has yet to really
begin, but it won't be pretty. When people talk about Project
Entropia, what I think of is "money laundering," fer crissake.

>From a game design perspective, this article seems like a harbinger
of the
future. http://www.msnbc.com/news/731369.asp?0na=x22177PE&cp1=1. The
idea that nerfing a character class might make MSNBC is alternately
thrilling and terrifying. The moment that someone's standing in an
online setting has significant value is more so. Let's take the
examples in Korea of professional gamers. Do you think that if
NCSoft, say, accidentally lost the character record for the top
ranked guy in the game and as a result he lost significant revenue
from endorsements, that he might not sue?

I think that the range of activities in online worlds is only going
to increase, not decrease. And therefore we will run into more of
these problems as time goes on. I think the real "reality check" is
that we're in for interesting times. Simply put, the law is already
showing major cracks and at some point will burst asunder.

-Raph
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