[MUD-Dev] Black Snow Revisited

[Brian Bilek]

"David H. Loeser Jr." wrote:

> I've been following this as much as I can (life is so hectic
> sometimes) and it seems to me that two sides are forming. Those
> that think BSI has the right to do what they are doing and those
> (me included) that think they do not.

You should include "those who do not have enough law training and/or
direct knowledge of the issues involved to have an opinion either
way."  i.e. Those who don't know.

> The question regarding who "owns" the character; seems to be the
> seed question and with an answer to this question could we then
> cascade it to other questions regarding ownership?

Is the question truly "who owns the character?"  It seems to me that
this issue might be becoming too complex when one tries to delve
into in-service ownership.  As the provider of a service, does
Mythic not have the right to state unequivocally that their license
grants the end user rights to USE that service (the game, and all
items within the game), but not to PROFIT commercially from the use
of their service?

An example - as a management consultant, I assisted a large
insurance company (I will call it "the Brotherhood") in solving
various problems.  Some of the techniques (and software) I used were
developed over years by my company, but used to benefit the
Brotherhood.  We encouraged the Brotherhood to use these techniques
(and software) internally, to share them throughout the company and
even with suppliers, but those techniques and the documents and
materials resulting from the use of the techniques were most
certainly protected by law.  If the Brotherhood had attempted to
sell the software, materials, or techniques to a company, even one
they would normally under the license agreement be allowed to share
it with free of charge, they would be in violation of the agreement
and could (and would) be sued for breach of contract and major
damages.

In addition, doesn't Mythic have the right to deny service to
anyone, for any reason other than those protected by law?  (Age,
race, and so forth) I am not familiar enough with the EULA and the
issue to comment on whether or not this is the true issue.  If it
is, the other arguments are academic, as in practice they would be
irrelevant.

> My own answer to who "owns" the character goes like this: If the
> character can exist when I shut down the game servers, the
> database servers, then I no longer own the character. Meaning the
> character is "alive" and if the character is "alive" then can
> anyone really "own" it?

> I heard a pretty cool quote from someone at GDC, sadly, I don't
> remember the name of the person, but here it goes. "If they want
> the character, copy it to a floppy disk, delete it from the server
> and send the disk to the owner."  Not much use for a floppy disk
> any more let alone a character that you can't do anything with.

As a consumer of a service, I do not own any portion of that
service.  Mythic is not licensing their product to us, as the
gamers.  They are licensing the USE of a service based on that
product, and they expressly forbid the use of their service for
commercial profit.  This seems like a cut and dry issue - I don't
believe there is any transfer of ownership at all.


> At any rate, we really need to be careful with all of this... What
> if a writer using MS Word was charged by MS for using Word to
> write his novel? That would suck. The difference here is that the
> writer could use a piece of paper and a pencil and still create
> the novel. The work stands on it's own out side of Word. Of
> course, here in America the writer would be sued by the pencil and
> paper manufactures alike so we really have a catch 22 :) Again, we
> really need to be careful when it comes to IP laws. Each instance
> will, unfortunately, have to defend itself - there are just too
> many variables involved in every case for there to exist a broad
> generalized rule/law.

There is a big difference from what is happening with Mythic's
product.  Microsoft is giving you license to use their product, MS
Word.  As such, they claim no ownership to the materials that result
from that use.  Microsoft can charge you for the software, they may
even provide support services for a fee.  They cannot charge you for
what results from the use of the software itself.

Mythic is providing a service based on their product.  You, as the
end user, are really buying playing time on their servers, using
their game, and objects which they created (which can be,
admittedly, manipulated by the end user).  You have no right to
profit from this.

Someone used legos as an example in the past.  What BSI has done
would be like buying a season's pass into LegoLand, taking some of
the lego setups in LegoLand and making new and interesting shapes
with them, and charging you to look at them or play with them on top
of the fee that LegoLand charged to you to get it.  It doesn't
matter if this transaction happened inside of LegoLand or outside -
this argument is completely irrelevant as to whether or not BSI can
charge you for manipulating the Legos for you!

Mythic has the right to state that no one will profit commercially
by use of their service.  It doesn't matter if the same "sub"
service (item gathering) can be done and given away for free.  The
argument is not if by charging money for their service BSI is
causing damage to Mythic - that is a separate issue, and one which
is more nebulous...and where "damages" are at stake with respect to
lawsuits.  The issue is whether or not BSI has the right to do
something which is forbidden by contract - and my understanding is,
without having read the actual complaint, that BSI is arguing that
Mythic does not have the right to forbid end users from using the
service for financial gain.

Unfortunately for BSI, this is something that is certainly protected
under law.

Outside of contract law, an argument can be made that BSI is indeed
causing damages to Mythic.  Consider this - Mythic spent untold
hundreds of thousands of dollars on development.  Included in this
cost is the cost of creating "game balance."  Essentially, Mythic
has created an economy, and by providing a service which alters this
economy, BSI is damaging the balance that Mythic spent a great deal
of money to acheive.  Again, it does not matter if the same thing
can happen if BSI were to do this for free.  What matters is that
BSI is profitting financially from an activity which is damaging the
result of many thousands of dollars of development.

In addition, presumably (and I do not profess to know this for sure)
Mythic is protected by copyright and trademark laws.  The game,
world, item, and place names should all be protected by law.  Using
an example from a closely related field - I can, for instance, write
a story involving Luke Skywalker, and Obi-Wan Kenobi.  I can use
these names and any other name or concept pulled from the Star Wars
universe if I so choose, as long as I do not attempt in any way to
profit from this commercially.  Even posting it on a web site to
draw people to my site could be considered a commercial use of my
story, and due to that, the trademarked names inside.

Simply put - many different laws protect BSI's right to use whatever
they gain from the use of Mythic's service for whatever purpose they
please, so long as it is not for commercial profit.  This is not
about intent, nor is it about out-of-game transactions.  It doesn't
matter where and when real money is given, the fact that it has
been, and someone is profitting by the use of a company's service
where such profit is not licensed by contract, they are wrong in
civil law at the very least, if not criminal.

-Brian



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