[MUD-Dev] Re: Black Snow Revisited

[Jessica Mulligan]

On Wed, 27 Mar 2002 10:50:32 -0600, Jeff Cole wrote:

>> 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.

That's wishful thinking; there are always ways around design and
implementation, especially when cold, hard cash is on the line.
Just because someone finds a way around restrictions to make cash
does not make it legal or correct.  If someone finds a way to tap
into an oil pipeline, then advertises the oil for sale, what is the
court supposed to do, tell Exxon, "You should have designed the
pipeline better. Case dismissed."

Nor would the unlawful sales be allowed to be advertised, and you
can bet Exxon (and the local D.A.) would be calling the newspaper to
have the ads pulled.  The newspaper would cooperate fully, because
refusing to do so would make them accessories under the law.  In
this instance, Ebay and others have issued a policy of pulling
auction notices if there is an issue of copyright violation.  Mythic
was perfectly within its rights to notify Ebay there was an issue
and ask that the notices pulled.

The rest, below, all seems grounded in some Utopian notion that once
a for-pay game is available to the public, the people that spent
millions developing and maintaining it no longer have a reasonable
right to profit from that work.  That, somehow, their copyrighted
material, as acquired and used on their servers, using their
bandwidth and requiring their manpower to administer and service,
all of which costs money, is no longer theirs, as long as someone
finds a clever enough way to circumvent design and/or
implementation.

> 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.]

Since the Sword *is* copyrightable material and can only be used
with respect to gameplay in a specified place, it seems likely that
it is supported by law.

> 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.

As is Mythic or whoever, in the form of lost subscription revenue
from a customer who might otherwise have taken an extra month(s) or
even part of a month to acquire the item or build a character, thus
extending the subscription life of the individual player.  See below
for more on this.

> 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.]

If the 'library' charges a subscription fee for the service to
attract patrons in the "library," then nothing is changed by your
analogy.  What about potential patrons that might be attracted to
pay a subscription fee to gain access to that book but, as they
can't find it on the shelves or note that people are hoarding it for
sale, decide not to subscribe to the 'library?'  That's a lost sale,
and the law most certainly takes into account potential lost sales
in damage awards.

>> 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.

See above.  They *are* losing a sale; BSI is cutting into the
subscription revenue of Mythic.  If it would take an individual a
certain amount of play time to acquire an object or advance the
character to a certain level, then Mythic has lost some amount of
subscription revenue by having the object or character transferred
to a new individual via 'extra-game' means.  As BSI has more time to
play than the average individual - indeed, can bring to bear more
than one individual for a task, if necessary - this significantly
cuts the time required to obtain the object or build the character,
which costs Mythic subscription revenue.

In the case of the object, it is not being traded as part of the
in-game community or in the context of game play, which is a device
Mythic uses to help create social bonds, which tends to keep players
in the game and thus enhances revenue through longevity.  Transfer
of objects via BSI or other extra-game means cuts through that, a
direct damage to Mythic.

In the case of a character transfer, this is even more direct
damage.  Players are required to build up their own characters, and
that takes more time generally, i.e. more lost subscription revenue.

> 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.

Intent matters, I believe.  In the example above, if you represent
BSI and charge $20, then see the comments above.

> 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.

If you're BSI or similar, this just makes the scenario worse,
because you're damaging Mythic even more by acquiring an object
which you'll also subsequently sell.  If you're just two common
players playing within the meaning of the game, I don't really know
if the transfer of $20 breaks the EULA or not.  Again, intent
matters.

> 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!

If it doesn't violate the EULA, ToS or RoC, then who cares?  Last I
looked, EQ forbad twinking and banned accounts they found doing it.
Make of it what you will.

> 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.

That doesn't follow, for the reasons given above.

>> 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.

Oh, but yes, it is.  All the significant conditions required to
obtain and transfer the goods take place within Mythic's store and
are good for use *only* within Mythic's store.  In bypassing the
requirements for obtaining the item, Mythic is, again, losing
revenue.

>> 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.

Quite true; every analogy fails at some point, <g>.  However, that
also ignores the fact that, in this case, the 'hammer' in question
is only good for use in Mythic's 'store' and costs Mythic some
portion of revenue through direct and indirect means.

>> 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.

Since there *is* a disclaimer in this situation (the EULA), if I
object, I can certainly forbid the transfer.

>> 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.

Again, since the disclaimer exists, I most certainly can.

>> 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?

It's called 'lost revenue;' if BSI, by violating the EULA, causes
Mythic lost revenue in the form of increased customer service costs
and the loss of reputation and the good will of customers, they may
be held liable.

>> 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.

Exactly.  It is that 'intent' thing again.  The intent is to bypass
the requirement that play take place within context, and to allow
BSI to bring it's resources to bear to cut the time needed to
acquire objects and/or advance characters.  This controls access to
and use of game play by reducing the amount of time a third party
would need to do so, which reduces the subscription revenue Mythic
would see in the normal course of business.

>> 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).

For UO, the discussion is irrelevant, as EA has chosen to support
extra-game auctions of accounts and items (unless they changed their
stance since 2000).  And since one of BSI's apparent goals is to
take Verant into court, too, you may get your wish here, <g>.

> 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.

One problem all subscription games face is how to keep higher-level
players interested, longer.  For all we know, Mythic intended that
gold be tight for low-level characters to encourage longer play,
teaming and social bonds and removed the restriction at higher
levels to encourage other activities within those created social
bonds, such Realm vs. Realm conflict, to extend the play life of the
characters.

At that point, ignoring legalities, it becomes a question of whether
or not you like the design.  If you don't, you find some other game
to play.  If you do, you stick around.

-Jessica Mulligan


_______________________________________________
MUD-Dev mailing list
MUD-Dev at kanga.nu
https://www.kanga.nu/lists/listinfo/mud-dev