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

[Jeff Cole]

From: Brian Bilek
> Jeff Cole wrote:

>> 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.

Within the context of the game, there are no restrictions (other
than those applied by the game mechanics) on the manner in which I
dispose of my loot.  I can use it, horde it, trade it, sell it (for
in-game currency) or give it away.

The "bundle of rights" that a player expects from acquiring loot is,
substantially, a fee simple, again, within the context of the game.

These "property rights" do not impinge the company's IP interests.

> 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.

One would not expect a precedent directly on point with respect to a
case of first impression.  There is conflicting authority with
respect to enforceability vis-a-vis shrinkwrap/clickwrap agreements.

Also, let me be clear that I am not predicting what a court would
hold.  I am arguing mostly in the abstract about the direction the
common law should take.

Were I arguing a similar case, I might indeed argue an
unconscionable contract of adhesion, but simply calling a contract
such is conclusory and one would need to support the conclusion.

Let me also be clear that I am arguing less specifically to
Mythic/BSI and more the general issue at this point.  I do not find
the fact pattern in Mythic/BSI interesting.

>> 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?

Where else do you propose the IP interest lies?  Sure, there are
some other IP interests, but, by far, the largest is Mythic's
interest in preventing non-subscribing users from the gamespace.  Of
course, by "major IP interest" I am assuming such interest is their
financial interest.

It's not an issue of precedent, but analysis.

> 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?

I think the distinction between game/cyber-community should not be
made with respect to the law.

> 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.

Users and the companies are governed by civil and criminal law based
upon their "citizenship," not the extent to which they are granted
rights.

> 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 do not entirely disagree.  I think there are extra-game activities
which should be the purview of the EULA.  Consider it like the
levels of scrutiny with respect to contitutional law.  Perhaps,
Mythic should have to prove a important purpose with an "undue
burden" requirement.

>> 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 am arguing that the company should have the duty to design the
game such that such glaring imbalances do not exist (internalizing
the costs) rather than relying on society to enforce balance through
contract law.  You can argue that in this specific case, the costs
associated are small, but, again, it is a question of the larger
policy considerations.

>> 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 have seen that conclusion many times on-list, but there is no
argument to support it.  I don't see it.

> 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.

Bleh.  There are *so* many assumptions and leaps in that argument.
Much more serious liabilities are managed everyday.  You assume that
they could not likewise be managed by this industry; so much so,
that you would implement a policy that powerlevels beyond
prophylactic straight to abstinent.

>> 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.

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

Not frightening at all.  I actually think the issue presented here
will not be adjudicated with respect to a similar fact pattern
because a company will raise the ante by releasing a cyber-community
such as I describe in the quote above.  The general policy will be
worked out with respect to much more significant issues.

Heh, I can only imagine the list is tired of my laissez faire
rhetoric, and this issue has been thoroughly mined (at least insofar
as on-topic-ocity) so perhaps we could take further discussion to
e-mail.

Yrs. Afftcy,
Jeff Cole

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