[MUD-Dev] Blacksnow revisted

[Caliban Tiresias Darklock]

From: "Steve (Bloo) Daniels" <bloo at playnet.com>
> Caliban Tiresias Darklock wrote:
>> From: "Steve (Bloo) Daniels" <bloo at playnet.com>

>>> I'd be careful about accusing companies of deliberate
>>> misrepresentations in bad faith in a public setting.

>> I know. See the word "allegedly" in the quoted material above.

> [Missed allegedly there. Apologies, though, like chicken soup, it
> couldn't hurt]

"Well, I hardly think that's good enough! I should think it more
appropriate if the box bore a big red label, WARNING: LARK'S VOMIT!" 
;)

> Technically, there is some distinction between selling a service
> and licensing intellectual property.  This situation is the
> latter.

I don't agree. Look at the component parts of the process.

  - Player gives BSI money. Legal.
  - BSI logs onto game and hooks up with player. Legal.
  - BSI gives player a prearranged item. Legal.

That's what BSI is saying they do. Take the money, meet the player
online, give him what he bought. At *no* time does BSI transfer any
intellectual property; there's only a payment for services
rendered. To what exactly does Mythic object? Are players not
permitted to give each other money, not permitted to arrange offline
that they will hook up online, or not permitted to give one another
items?

It should be reasonably clear that this argument is not rigorously
logical, since it's essentially the fallacy of composition: doing
each of these things is okay, therefore doing all of them is
okay. There are any number of analogies which are similar but result
in a final activity that *isn't* okay. This isn't a rigorously
logical discussion, however, since it's about law.

> Under the EULA, one of the things you cannnot do is substitute
> someone else for yourself (if my recollection of the EULA is
> accurate from reading last month).

I'm deliberately avoiding the account question, because I think it's
pretty obvious that an account essentially represents a contract and
you can't sell your contract to someone else without the consent of
all other involved parties. In *that* sense, you're completely
correct in the assertion that this is a contract law case,
full-stop.

What I'm concerned with is the transfer of gold, inventory items,
and such like. Both of these issues have real world counterparts;
for the account question, you can't sell someone your job and/or
your family, which is pretty much what selling an account is:
transferring professional and personal context for a fee. Obviously,
the sale of accounts is reasonably indefensible. For the inventory
question, however, you *can* sell someone the things you're carrying
-- which *is* defensible, and it's getting lost behind other more
simplistic questions.

> Simplification is good.

Not always. The case has been oversimplified to "BSI sells things
that belong to Mythic", when in fact BSI merely *delivers* things
that belong to Mythic, within the boundaries Mythic has enforced,
and charges a delivery fee. This is not a complex idea, but if you
simplify it too much it becomes a whole different question.

Note that BSI works within *enforced* boundaries, not *established*
boundaries. Mythic has said from day one that you're not allowed to
sell accounts and items on auction sites, and BSI is clearly over
that line. One must naturally wonder how many other lines they cross
in the conduct of their business simply because "nobody was
looking".

> Does Blacksnow have a right to make promises it cannot deliver?
> There's a word for that.

Yes, but Blacksnow *does* have a right to make promises that it MAY
not deliver. It's called taking risks, and most businesses do it
every day.

> Ask this question: if Mythic's servers went down for a prolonged
> period of time (by choice or fate), could Blacksnow sue them for
> damages?

Of course not. Blacksnow is fundamentally a group of players, and
they could only sue to the extent that another subscriber could
sue. See below.

> Could the players who purchased the subscriptions sue Mythic?

Of course not. Mythic is very clear on the fact that the service
provided is not a "reliable" service, which is to say that maybe it
will not be available at certain times and if that happens then
tough.

I do, of course, expect that Mythic would not continue to charge
subscription fees while the servers are down. If they did that, hell
yeah the players could sue. You can't normally charge money for
something you aren't doing.

> A general principle of property transfer law, you can't transfer
> more rights to a property than you have.

But the only rights BSI transfers are the rights to use the item
within the game, and BSI theoretically has those rights (provided
the item has been obtained legitimately). With accounts, however,
BSI explicitly does *not* have the right to transfer them according
to the EULA -- so they're clearly over the line on that.

> I think you're correct about the guesswork.  But I also don't
> think the questions about property and such would *ever* be
> examined in a dispute of this sort, at least not in the face of a
> clear and thorough EULA.

One of my major concerns is that people will miss the two-sided
nature of the issue. You're talking primarily from the standpoint of
transferring accounts between players, and I'm talking primarily
from the standpoint of transferring items between characters. I'm
seriously worried that the courts will ONLY address the issue of
accounts, and completely ignore the issue of inventory. As I said
above, BSI is *clearly* not allowed to transfer accounts, so the
case is open and shut and you can't sell them. That's a seductively
easy question, as opposed to the question of whether BSI is allowed
to transfer items.

Basically, there are a lot of pitfalls in this case that could lead
to players losing rights that *should* be protected. So we can't
transfer accounts, fine. That's sensible. Doesn't really bother
me. But when you start dictating what I can do *outside* the game, I
start to get annoyed.

>>> Disclaimer: I am a lawyer, but I'm not your lawyer.

>> I love legal humor.

> Hehe.  I plead guilty to coming up with that one.

It actually takes a little legal training to really understand it,
and I just love that. The best jokes are understandable to everyone,
but particularly enjoyable to a select group.

> You know who comes up with all the lawyer jokes, right?  Lawyers
> do.  We've got an image to keep up.  ;-)

I always thought the paralegals came up with the jokes and left them
on the lawyers' desks. ;)

> Disclaimer: I'm still not your lawyer.

Good, I have enough pets. :P


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