[MUD-Dev] Blacksnow revisted

[Jessica Mulligan]

On Mon, 25 Mar 2002 02:49:55 -0800, "Caliban Tiresias Darklock"
<caliban at darklock.com> wrote:

> But selling a service is not selling intellectual property, and a
> monopoly on a pure service is unprecedented. Blacksnow are selling
> > their time and effort in obtaining something you want and
> handing it to you, all of which they are perfectly licensed to do
> on DAoC. I > am allowed to go and get the item, I am allowed to
> give it to someone else, and the service of doing so is not
> Mythic's property.

> Whether the *item* is Mythic's property is really quite
> irrelevant, and whether I got paid for the service is also quite
> irrelevant.

Allow me to respectfully disagree.  They are specifically forbidden
to do it by the DAoC license, and always have been.  Transferring
characters or items for cash constitutes an unapproved sublicense to
use that account or item, and that has always been forbidden by the
DAoC license, as far as I know.  The fact that cash trades hands is
perfectly relevant, in that context.

Your statement also ignores the critical point that persistent,
online-only games are both a product *and* a service; they are
inextricably linked.  You can't use one without the other; without
both working in tandem and simultaneously, you have nothing.  You
can't provide a derivative service without using both the unique
property in the game and the unique service associated within it.
The unique product(s) are suitable for use *only* within that
service, not on the street or in other games by other vendors.  You
can't sell your 3rd party service without providing someone else's
unique, controllable intellectual property through their unique,
controllable service and store front.  That makes all the difference
in the world.  This isn't like someone buying a book and then
reselling it on the street corner; this is like someone standing at
the cash register and offering to fetch books off the shelf for a $5
fee, as long as the potential customer reads the book right there
and doesn't leave the store with it.  I think the store owner, the
author and the publisher would all have something to say about that.

For another analogy: If you buy a rake in my home supply store and
then walk door-to-door selling the service of raking the leaves off
lawns, that's one thing; I have no say in that and rightly so.
However, if you buy a rake in my store, advertise my $5 ball-peen
hammers for sale for a $5 service fee, then use the rake to reach up
to the higher shelves in my store, pull down the hammers and fulfill
your orders in the aisle, bypassing my cash registers, then I have
every right to kick you out of my shop and forbid you to ever enter
it again.  It doesn't matter that you had to expend some time and
sweat to get the hammers down off the shelf or that there is a
demand for $10 hammers from my patrons; your 'service' depends on
both being present at the service I provide by making the store
available and the products I make available in that store.  Without
both of those, used in conjunction, you have no 'service' to sell.
At the very least, you need my permission to do it on my property.

Beyond that, the law (in the US, anyway) has firmly established that
you have no inalienable right to use my service or my store.  I can
refuse to serve anyone I wish, as long as I don't refuse based on
such individual discriminatory, non-commercial factors as race,
gender, religion, creed, sexual orientation, national extraction,
marital status, political persuasion, etc..  Nowhere is there a law
that I know of that says I have to allow you to use my products and
service simply because you've found a way to make money off standing
in my store, selling my products.  The fact that individual players
are allowed to freely transfer items inside the game, within the
context of the game, does not open the door to commercial sales.  I
have a right to set the conditions of sale in my store, not you.  If
I set a condition that any patron can have a hammer at no cost by
personally walking the aisles of my store and touching every other
product on the shelves, it doesn't matter that some people like the
convenience of you doing it for them and paying you $10 for the
hammer; in my store, the condition is that you personally have to do
it, not your surrogate.  It is irrelevant that you can physically
perform the action and the buyers consider it a convenient service
to pay you $10 to hang out in Aisle 10 while you complete the
walk-through; if I catch you doing it, I have a right to boot you
out.

I also have the right to kick anyone out of my store who acquires
one of those hammers from you or to confiscate it and put it back on
the shelf, especially if they walk around the store bonking my other
patrons on the head with them or block access to the hammers by
legitimate patrons following the conditions I set in my shop.  Or if
you are particularly fast at touching all those products and I have
patrons lined up around the block waiting for their free hammer,
causing me a customer service nightmare, not to mention the expense
of laying on more customer service people to handle the load, and
the lost sales, broken reputation and the good will I've developed
from legitimate customers who can't acquire a hammer under the
conditions I've set for my store and go elsewhere.

In other words, any reasonable and responsible person would assume
that Black Snow doesn't get to determine how DAoC players access and
use the service/store front and intellectual property in conjunction
with one another, but rather that the right is reserved to
Mythic. Or Verant, or EA, for their products and services.

And at that point, market forces will determine whether or not it is
a good idea to allow it.  If publishers that don't allow it
experience a significant drop in subscriptions because they don't
allow it, they'll rethink the whole proposition.

-Jessica Mulligan




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