[MUD-Dev] BIZ: Who owns my sword?

[Ren Reynolds]

Just a new thoughts on EULAs as they have been referenced here and
there.

Statements of the form: 'blar blar swords, player-characters, etc
are our property' - are in my view pretty much meaningless. Sure
such things can be written down, but as virtual objects are not
property in a legal sense, assertions of right have no force.

What's more, statement of the form: 'it's our property so you can't
do x y z with it' also fail. Again, because if something is not your
(or anyone's property) then you cannot be telling people what they
can and cannot do with it.

EULAs can, and sometimes do, side step property claims. By having
clauses in the form: 'It's our game and if you play it \ use our
software, there is a bunch of things that we don't want you to do'.
These clauses are based firmly in a property right, the right of the
game owner to the game software (both server and client), and they
are neutral on the matter of ownership of virtual items as they
state what the software can be used for not swords etc.

However, whether such clauses are enforceable is moot. There are a
number of arguments that a player could mount. The first two, which
I think are legally very weak, are (1) that the object really is
their property - this would probably be a claim (in US law) of
unregistered trade mark, or rights of publicity; but both would have
to be very specific circumstances and we are on the edges of legal
theory here. (2) Restrain to trade - again I think the circumstances
would have to be pretty specific.

The action that I think has the best chance of winning is one based
on misuse of copyright. Now this would purely be proof of principle
(or an attack on a game company - depending on how you see it) as it
would not give a player any rights to trade or anything it would
just (if successful) cause a court to levy some kind of penalty
against the company.

The basis of this action is as follows: in the US there are certain
limits to contract law and its relationship with intellectual
property, one of these can be summed up by saying - you cannot use a
contract to extend rights of intellectual property beyond the limits
set in law (well in certain ways etc etc) and thru so doing attempt
to limit the action \ choice of an individual - which does not make
too much sense in abstract, so...

The classic case in this field is one of a company that tried to
form agreements with people over the use of their salt tablet
dispensing machines (the case is Morton Salt Co. v. G.S. Suppiger
Co. 314 U.S. 488 (1942) if you are really interested). The contract
that the company tried to enforce was on the basis that people could
only use their machines if they used salt tablets made by the same
company. Fair enough (or unfair enough) you might think, but the
judge in the case ruled that this was misuse of the company's patent
in trying to restrict the actions of individuals. There has been a
whole bunch of cases like this and applicability to copyright has
been established (see my paper if you want full case law details).

To me the there is a direct structural parallel between a contract
clause that says: 'we own copyright in this software so you cannot
do X with a virtual item (oh which we don't hold copyright in)' and
well established US case law. What is interesting is that a player
would not have to show any injury, as far as I am aware, anyone
could take an action at any time simply on the basis a EULA violates
the principle.


More generally, there are a number of reasons that I don't think we
should go down the property route. One is I like playing these games
and I don't want a set of US lawsuits destroying the underlying
economics of the business. I agree with Matt Mihaly that the
revenues could never cover the potential legal damages. What's more
MMOs would need to utilize banking-level secure architectures which
are way more expensive than regular secure ones especially as
security would need to go to the level of individual
transactions. I'm not sure that a company could use a EULA to escape
these responsibility as it is likely that there would be an
overriding duty of care that players could claim.

However I can see that most virtual objects will be property in the
near future. Law will follow practice some how. I'm more bother
about avatars but that's because of a whole set of reasons to do
with the commoditization of identity that I won't bore people with.

Ren
www.renreynolds.com
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