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

[Brian Bilek]

In the interest of making a specific argument, I am snipping eloquent
discussion which I feel addresses a secondary question.

Jeff Cole wrote:
> From: Brad McQuaid

(snip)

> 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.

I believe that you have made a false statement.  I direct you to the
following passage from Mythic's EULA:

  2. Other Rights and Limitations

    - This EULA does not grant you any rights in connection with any
    trademarks or service marks of Mythic.  We may amend this
    Agreement at any time in our sole discretion.  Amendments shall
    be communicated to you either a) at the time you log into your
    Account; b) through a conspicuous post on our website. Such
    amendments shall be effective upon entering or re-entering the
    Game.  If any such revision of this Agreement is unacceptable to
    you, you may terminate your membership as per Section 9.

    - We and our suppliers shall retain ownership of all
    intellectual property rights relating to or residing in the
    CD-ROM, the Software and the Game. The Software is a commercial
    item.

    - You acknowledge and agree that all characters created, and
    items acquired and developed as a result of game play are part
    of the Software and Game and are the sole property of
    Mythic. You acknowledge that: (i) the Software and the Service
    permit access to Content that is protected by copyrights,
    trademarks, and other proprietary rights owned by Mythic as
    covered in Section 3 below.

    - You acknowledge that: (i) the Software and the Service contain
    graphics, sound effects, music, animation-style video and text
    (collectively, "Content"), and (ii) Content may be provided
    under license by independent content providers, including text
    contributions from other Members. These independent content
    providers, including other Members, are referred to in this
    Agreement as "Content Providers". You, and any user of your
    Account, must evaluate, and bear the risk associated with, the
    accuracy, completeness or usefulness of any Content. Mythic does
    not pre-screen Content as a matter of policy, but Mythic has the
    right, but not the responsibility, to remove Content at any time
    which it deems to be harmful, offensive, or otherwise in
    violation of this Agreement.

You may argue that portions of the above clauses are unconscionable,
due to the content.  You can even argue that this is an adhesion
contract.  However, this argument needs to be made in court, thus
challenging the EULA, before you can state otherwise.  I believe
that until such a challenge is made, BSI and all other consumers of
Mythic's service must adhere to the EULA.

Assume, for a moment, that a challenge has been made as to the
"right" of Mythic to claim ownership of any and all items in the
game, manipulated by users or not.  I do not believe that precendent
has been set for such a challenge, and I would encourage you to
share any such decision with the list if you know of one.

> 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, I ask that you share the source of this information.  Has
legal precedent been set here?

(snip)

> 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.

Given that these games are a form of interactive entertainment, how
do you propose protecting such interactive games as businesses
should any such game be classified as a cyber-community?  With
in-game rights being granted to users, both users and the companies
that provide them with the entertainment are now governed by both
criminal and civil law.

Can we not simply give users the choice?  That is, declare the game
as an entertainment medium within the EULA and allow them to accept
or decline the agreement?  Or would this make the EULA
unconscionable?

>> [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.

Again, I must disagree with you here.  Please show me where, in the
full context of the EULA, Mythic grants players any sort of
ownership at all.

(snip)

>> 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.

And I would argue that since the particular EULA we are discussing
does in fact prohibit the extra-game sale of game objects, this
would be considered breach of contract.  Contracts commonly address
conduct outside of the good or service described within the
contract, or the transactions concerning such goods or services.

Looking at the law surrounding the game as only governing conduct
WITHIN the game is myopic.  By definition, a contract can be written
to govern any activity at all, given that the activity is legal.
Nowhere in contract law does it state that a contract describing a
service provided must be limited to transactions within the service
itself - that is an absurd notion!  In fact, few services are as
complex as an interactive game, where transactions happen within the
service itself.  EULAs do not, and should not, govern in-"game"
activity only.  Companies must be, and are, allowed to protect their
own interests by describing how end users can and cannot use said
service, including secondary commercial transactions based on said
service.

> 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 think this statement deserves further examination, but it is based
on the premise that users are granted ownership rights in-game, a
premise I believe is false.  So I will reserve comment until we have
discussed the ownership issue further.

> 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.

I would argue that our society has already made provisions for a
company to protect themselves from such potential problems by
limiting any activity they so desire through contract law - or the
EULA which the user must agree to in order to play the game.

> 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 am not sure I follow you here.  Are you assuming that a company
such as Mythic currently must take legal action to address balance
issues surrounding extra-game transactions involving real currency,
thus the "burden on society?"  If so, I would argue that there is no
burden on society, as Mythic addresses the problem by prohibiting
any extra-service sale of in-service objects.  Thus, the only burden
on society would be placed by those who seek to challenge this
agreement.  The company was not only willing to, but already has,
addressed the issue of extra-game transactions.

> 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.

I actually agree with you with all of the above, but I think that
there is a more important point than this to make.  Yes, the impact
of extrinsic value of in-game objects on a company's revenue stream
may be limited, but if that value is legally recognized, the medium
as a whole would change drastically.

I believe that no matter where a particular piece of data is being
stored, or how one accesses that data, should the data be given a
monetary value and the rights to that data be given to a particular
user, both civil and criminal law now protect the user's rights to
that data.  Regardless of whether or not that sword of vanquishing
has value when the server is turned off, that object is now worth X
amount of dollars, and should someone steal it in-game, that person
will be subject to the same laws that a person stealing a real sword
from a real owner would.  And the owners of the server might be held
liable because of this.

That isn't a stretch, or a "the sky is falling" argument.  It is a
very simple, real, and troubling conclusion.

> 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.

Perhaps, but see above - IMHO, companies will very much need to
protect themselves against in-game crimes because of this.

> It is an eventuality rather than a possiblity.

Isn't that a frightening thought, with regards to game development?

Cheers,

-Brian
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