[MUD-Dev] Re: Black Snow Revisited

[ghovs]

On Thursday 28 March 2002 14:28, Jessica Mulligan responded to Jeff Cole:
> On Wed, 27 Mar 2002 10:50:32 -0600, Jeff Cole responded to Jessica Mulligan:

>> 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."

This is where a physical item which would otherwise have a direct
independent sellable potential is stolen. You take something out of
the intended environment, which is not effortlessly duplicated.

An in-game item can be created upon whim; it's just a switch to
flick. It's hard to assign a value to that, even harder to have it
exceed a cent. It is in this case not relevant that a _player_ can't
do this (when no bug of that kind exists). It isn't the players who
are 'robbed' here.

> 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.

iirc you're always free to ask anything at all. I'm not convinced
you could make it stick this is copyright infringing. The in-game
items are not removed from the game, nor is it something they would
be selling (even if it feels like selling, they don't own a physical
store of these items which is depleted as transactions are
completed), nor is it something you are not free to give to others.

The whole idea of a MMORPG deciding what I can do inside the game,
based on what I do outside of it, is a bit far-fetched. In fact, it
might strike a potential customer as infringing upon their personal
freedom.

What if a game were to have people roaming around the real world
trying to find non-complying players? Isn't this a pretty
far-reaching method of ensuring the safety and stability of a game?

> 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.

For me, I'm just trying to see where the line is, what it is that a
company may own, after all the work is done, and ongoing. I'm also
wondering how much a MMORPG can set conditions for being in the
game. I highly doubt if a game is allowed to decide to ban you
because of what you do outside it. How would you feel if your
favorite bar would deny you entry because you have done something
they don't like outside it, while you do not, inside the bar, act
differently from any other patron?

While I do agree that professional farmers are a nuisance, you need
a firm legal basis to kick them out on, not just resentment and a
LART-wish. That, or simply reserve the right to kick out anyone for
any reason at all, which strikes me as user-hostile.

> 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.

The sword is on the server, and remains on the server. Handing items
to other players is not against the EULA. Why does it matter
(legally) that real-world money was given to encourage some
transactions?

Is there perhaps a legal precedent 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.

It's hard to argue that a player would stop playing sooner if they
had a better entry point. It's even harder to argue that accounts at
a higher entry point sell worse, and cause an overall drop in sales
as well.

The only hope you'd seem to have is by showing that the professional
farmers are disrupting the game for others. With most MMORPGs, the
only disruption I see is camping. And I can't believe that ALL those
campers are in fact professional farmers. While, yes, they're part
of the problem, you would need to define the problem to exclude
other customers who aren't engaged in a professional level. And then
you're back to deciding what someone can or can't do outside the
game.

>> 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.

Where does it say that BSI isn't paying for its account while
acquiring stuff for sale? What's wrong with team play? Don't you
need something against the EULA happening inside the game in order
to be able to forbid it?

> 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.

That's a big stretch. Have they actual proof or is this just
consensus among MMORPG companies? You could just as well argue that
people want to be in the game because they can be more powerful than
people who would in real life be their superiors, or maybe to be
able to help people who they could normally not help at all. That
could create a social incentive as well, and also increase
longevity. Not to mention how some people simply enjoy helping the
little people up, from a high vantage point.

One could even stretch further to this side, claiming that BSI is
creating a market catering to lazy bastards, thus -increasing-
revenue.

> 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.

Again, where does it say that BSI isn't paying subscription while
creating these characters? What are they doing in-game that is so
fundamentally different from what non-professional players do?

>> 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.

So, the intent to perform an action inside the space of someone
else, which is -not- an action uncommon to that space (this
obviously does not count for character transfers), in exchange for
money which does not change hands inside that space, that intent is
a legal basis for that someone to forbid that action in their space?

>> 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.

That's a pretty difficult to make distinction. You're saying there's
a volume limit? That it matters what kinds of entities perform the
transactions? The intent in all cases covered in these nuances seems
to be taking money for in-game items (as prohibited by Mythic's
EULA).

>>> 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.

Are they bypassing them? If they are farming bugs to get their
stuff, yes they are. If they just play the game like everyone else,
nothing is bypassed.

> 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.

It seems difficult, to me, to hold liable a MMORPG company which
expressly forbids (be that enforcable or not) selling items and
characters for real money, for mishaps during (or resulting from)
such sales.

There is a certain amount of personal responsibility, which can't be
waived entirely. If you know it isn't okay, and you do it anyway,
you're obviously exposing yourself to the murky unprotected world of
illegality. Ofcourse, even if you -don't- know (by not knowing the
law, or the EULA you agreed to) you're stuck in that position.

Ofcourse, this does -not- contradict that character trade causes a
heavier customer service burden. Players stuck with a new character
with great abilities tend to be utterly lost on how to use those
properly, and those misguided individuals who really believe that
Mythic would be on their side in a character trade dispute are
annoying to say the least.

On the other hand -- how could you blame a third party for
uninformed and/or recalcitrant people becoming more bothersome than
usual?

>> 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.

Again, where is BSI's business model built around circumventing the
normal methods of acquiring things? That they give what they
acquired to someone else doesn't seem to change the fact that they
got those things within the same limits as any legitimate player
(insofar as they resist the temptation to farm bugs).

You're going to have to find something more credible than 'they
level faster' imo. That would be grounds to ban good players and
enforce mediocrity, too.


rgds,
ghovs
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