[MUD-Dev] Blacksnow revisted

[Jeff Cole]

 From: Jessica Mulligan

> 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.

For the record, I don't think Mythic should be able to remedy at
law, what they are unable remedy by design.  In other words, I think
Mythic should not be entitled to injunctive relief against E-bay and
the ilk (and indeed, they may not be, but I think it sad that E-bay
and the ilk should be exposed to suit by Mythic).  To the extent
that a company wants to provide a closed system and exercise strict
control on extra-system transactions, they should also be required
to police/enforce within those systems.

As bloo has pointed out, this is really a question of contract and
the EULA.  The idea that a Sword of Uber Banishment, or any item, is
somehow protected by copyright with respect to gameplay is not
supported in law.  There was a time not too long ago when the Law
was not sure whether ROM's were protected under copyright.  In many
ways, intellectual property (with respect to technology) is still
best protected through contract law.  [Note: I am assuming that the
items sold are acquired within the rules of the game (expressly not
the case with respect to BSI and AO) and not otherwise duped/hacked.
In such cases unauthorized "copies" might well invoke copyright
protection.]

If the question were one of property alone (ignoring the EULA) then
the analogies are to treasure trove.

> 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.

That analogy is not apt.  In the above analogy, the store owner is
(I assume) losing a sale (s)he would have otherwise made.

An appropriate analogy would be a type of "library" where patrons
"subscribe" for the right to rummage through unordered books looking
for book in which they are interested.  The store also awards "book
bucks" based upon the time you spend in the library.  The books are
required to be read on premises and once you have claimed a book,
the library provides a locker in which you can store your collection
of books.  You are completely free to trade books with other patrons
(for other books or book bucks) and otherwise exercise complete
control over a book in your possession.

When you subscribe, you sign an agreement that you will not sell the
books for cash.

I take out a classified in the local paper saying "Meet me on the
corner, outside of the library, and for $20 when we enter the
library, I will give you my copy of "Uber Rarity, A Critical Survey
of MUD Economies" [a book, that for some reason, is highly
coveted]."  The owner of the library sees the ad and calls the paper
and has the ad removed from subsequent editions.

[Of course, in the instant case, for the most part I would be
selling book bucks, and not the books themselves.]

> 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.

Again, the analogy doesn't apply.

BSI is not selling items which Mythic would otherwise sell.  Mythic
is not "losing" a sale.

Imagine the scenario whereby I give to a random player in the town
the Sword of Uber Banishment because he is a melee-based character
and I am a caster-based character and have no need for the item.
Mythic has no problem with that transaction.  I am acting fully
within my "rights" (whatever they are).  Now, imagine that, in the
real world, this player and I have agreed that pay me $20.  All of a
sudden, I am somehow not within my rights.  With respect to the game
and its mechanics, both transactions are identical.  In neither case
did Mythic "lose" with respect to their current business model.

Suppose I phrase the proposal as a "fee" for my time and incorporate
a require the player trade me the item that the Sword will replace.
That is, something like, "for $20 I will spend the time necessary to
acquire a Sword of Uber Banishment.  Once acquired, I will trade a
player the Sword of Banishment for the item that the Sword will
replace."  Such would seem not to violate the EULA.

What if (true story, though it happened with respect to EQ) my
neighbor's kid offers to mow my lawn for the summer if I
twink/powerlevel his character?  I didn't "sell" the items but,
rather, bartered.  As of the last time I looked, such a transaction
would not have violated the EULA.  His services were much more
valuable to me than any money for which I would have asked!

Further, consider this fact pattern: I run an ad offering my
powerlevelling services for a fee.  Presumably, this would not
violate the EULA.  If such a transaction doesn't violate the EULA,
then it is difficult to argue that I shouldn't be able to sell my
"time" in helping a player acquire an item.

> 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.

But, you see, the "sale" is not happening in Mythic's store.

> 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.

But if I do touch every item, take my free hammer, walk out of the
store and sell it to my neighbor for $10, are you suggesting you
have a legal right to prevent me from doing so?  Not in the real
world.  Or, more accurately, in America.

> 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.

But what about this case: my neighbor is tool-phobic (except for
hammers) and I have a tool fetish; one afternoon, as our families
are bbq-ing, my neighbor tells me how much he would like to get a
new hammer from your store, but is afraid to touch all of the other
tools.  I say, wow, I would do it for free, but he insists on giving
me $10.  That evening, we go to your store and he waits up front
talking with you as I proceed to touch each item.  He tells you
about our deal.  Unless your advertisement had quite the disclaimer,
you are going to be bound to give me the hammer.

> 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

Again, unless you had such a disclaimer in the offer, you most
definitely not be able to confiscate the hammer.

> 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.

Huh?  What does this have to do with the instant case?

> 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.

How is BSI determining access?  Transactions that but for an
external, extra-game interaction would be well within the players
rights are somehow no longer permitted as a consequence of that
extra-game interaction.

> 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.

The real shame is that this issue is not founded on a more
interesting fact pattern (housing in UO, uber-items in EQ).

It is significant that in DAoC, the only item that has any value are
gold pieces.  And only to lower level players.  This speaks to
design.  At higher levels, gold has no value.  At lower levels, the
economy is tight.  Very tight.

The real interesting questions have yet to even be touched on the
list.

Yrs Affty.,
Jeff Cole

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