The Author as Autarch

MarloweIn their very interesting draft paper that Dan mentioned, Professors Bradley and Froomkin suggest that virtual worlds might be testbeds for legal rules. However, with regard to experimenting with intellectual property, they aren't so sure that virtual worlds are a good fit. They say:

Like zoning, intellectual property involves complex technical issues in the real world that a game could not test.

This may be true, but a bigger problem with using virtual worlds as testbeds for experimental intellectual property rules is that virtual worlds are intellectual property. Putting aside trademarks, patents, and other relevant forms of intellectual property, software is protected by copyright. The copyright is not just limited to a game's source code and object code, but also extends (to an unclear extent) to other salient aspects of the program.

With regard to intellectual property rights in avatars and MMORPGs, Ren Reynolds, Molly Stephens, and Dan Miller have all looked at the issue. And Joseph Beard has a funny and well-written piece that isn't directly on point, but is worth reading to understand the greater context of virtual property rights. I'm not going to foray into the legal issues here in a blog post -- I'll just say that IP issues in virtual worlds are very complicated and, as a practical matter, much depends on the language of click-wrap licenses and the degree to which those licenses might be enforced.

What I did want to say is that we should bear in mind how intellectual property issues and governance issues in game spaces overlap. T.L. Taylor has a very interesting article re ownership in Everquest, that demonstrates how governance and IP ownership issues can be intertwined. As Taylor and others have noted, it can be argued that the participants in MMORPGs are like actors who give life to the world. But even if that is true, huge investments of creativity (as well as money) are made by the designers (and corporations) who set the MMORPG stages for the actors, and then market, distribute, maintain and improve them.

Dan and I pointed out in our article that analogizing virtual worlds to real life legal regimes is problematic because we don't usually need to credit our elected officials with the authorship of our worlds, whereas we usually accept the fact that authors and artists "rule" absolutely the worlds they create. (Admittedly, some fan feedback websites to the contrary.) Therefore, seeing games as akin to governments, while it may be appealing at first glance (especially to players) is hard to reconcile with the rights of authors. Pavel Curtis suggested that in virtual worlds, dictatorship is inevitable. It will be interesting to see, therefore, to what degree democracy, authorship, and intellectual property can reach a market equililbrium as these environments continue to develop.


Comments on The Author as Autarch:

Dan Hunter says:

Pavel was the first of the developers who had to confront issues of legitimacy and ownership within worlds. That is, the conflict between the sense of being a member of a community while realizing that d4 m4n 0wnz j00.

It didn't help him (though it has, I think, done us all a huge long-term service) that his world was built to encourage community and novel governance forms. I don't think it's too much to say that the future of VWs is the history of lambdamoo.

As he reflected back on the experience, he made the obvious but difficult point:

"Deep in its very structure, LambdaMOO depends on the wizards and on the owner of its machine. These are not and cannot be purely technical considerations. Social policy permeates nearly every aspect of LambdaMOO's operations, and only the wizards can carry out those operations. As a result, the wizards were at every turn forced to make social decisions. Every time we made one, it seemed, someone took offense, someone believed that we had done the wrong thing, someone accused us of awful ulterior motives. It felt a bit like the laws of thermodynamics: you can't win, you can't even break even, and you can't get out of the game." http://www.techtv.com/screensavers/print/0,23102,3388608,00.html

A lovely last analogy that hasn't been lost on current commerical developers. Their approach will continue to from the "All Your Base Are Belong To Us" School of Democratic Governance:

"And now the fine print: As with all of your other contributions to our Web site, we own whatever you write. We can change it or delete it any time we feel like it, for any reason. And we can block you from access if you piss us off enough. So, don't. Thanks.” (From the TriadCity MUD Terms of Service)

Every one of my (business-law oriented) colleagues is convinced that a well-drafted terms of service contract is the complete answer to any problem that VWs present. One part of me says that they're probably right, and the other part of me says this is just an insufficient answer. I honestly believe that Terms of Service are the work of Satan, and that the lawyers who draft them will be spinning on the Rotissirie-Of-The-Endlessly-Tormented-Soul for all eternity in the Inferno.

As Greg knows I don't pretend to have an answer to his observations. It's early days yet, and I don't think we've thought about the implications of this enough.


Posted Sep 21, 2003 7:50:56 PM | link

DivineShadow says:

"Their approach will continue to from the "All Your Base Are Belong To Us" School of Democratic Governance"

Agreed. They will continue down this rickety path.

On one hand how can we not expect the game companies to try their hand at "all your base are belong to us" licensing when they get assaulted on all the legal fronts, from IP to Freedom of Speech.

On the other hand how can you not expect users to push back when they get the Draconinan treatment, are told nothing they do in there is really theirs, not even for an instant. What if they have a chat discussing a new invention of a Bird Diaper ( http://www.delphion.com/details?pn=US05934226__ ) and subsequently apply for a patent. Does this also belong to the game developer? How far does this go? Are you considering me your employee and the game is my workplace??

Evidently this field needs some clear-cut laws to afford users with a modicum of certainty against increasing abuse of EULAs as well as give game companies more freedom to focus on their games, not lawsuits.

Posted Sep 22, 2003 1:34:25 AM | link

Greg Lastowka says:

As you'll see from the trackback above (isn't trackback neat?), Professor Froomkin has disagreed with part of this post on his new blog:

"While it’s certainly right that there are some IP obstacles to using existing games as research tools, if one is setting up a set of parallel games to serve as testbeds for legal rules then rather than be subject to IP constraints one is actually aided by them. Our suggestion is not that experimenters should colonize existing versions of Ultima Online or something and run trials on them. The idea is to purchase the rights to an existing game engine, customize it, and then run parallel versions of the game, or perhaps to license some shards/facets of a game and customize them. Any serious attempt to use Virtual Worlds to test legal rules will require careful design, and a control group. The IP issues will get sorted as part of the design process."

First: In my pattern of "wow--people are reading this!" comments, it is wonderful to have Prof. Froomkin visiting Terranova.

But while Prof. Froomkin may disagree with me, I don't disagree with him. My discussion of governance wasn't my real concern about experimenting with IP in these environments. Actually, I did not say what my concern was, so here goes: IP already is virtual. A poem or other form of IP composed by an avatar is not a "virtual" poem -- it is a "real" poem. So there is a potential here for jurisdictional conflict, because, as the VW EULAs clearly indicate, real IP laws don't stop at the borders in this case.

And the EULAs, I also might observe, constitute an interesting "real life" experiment in the degree of participant investment you'll find under the "all your base" terms. It will be interesting to see if anyone might experiment with another approach.

Posted Sep 23, 2003 11:53:07 AM | link

Unggi Yoon says:

In connection with this subject, I summon the following articles.

#"Volunteer revolt" by Janelle Brown
http://dir.salon.com/tech/log/2000/09/21/ultima_volunteers/index.html


#"Gargamel's Revenge" by Misty "Former SRC Hamlet" Matonis
http://www.stratics.com/content/mmogweekly/mmog/vol39.shtml

I'm wondering what is happening with regard to this case.

Posted Oct 8, 2003 10:07:53 AM | link

Dave Rickey says:

It seems to have petered out, I remember a rumor that it had been settled, but can't find any confirmation. But the effect of the case (and the related AOL volunteers suit) was to pretty much close off volunteer programs as an option for US-based games. UO and AC have both shut theirs down, and no new game is making much use of volunteers. EQ may still be running their Guide program, and there are very small-scale player feedback organizations in AO and Camelot.

US labor law makes it very difficult (and potentially disastrous) for a commercial organization to use volunteers on any significant scale.

I get the impression that this is not the case in Asia?

Posted Oct 8, 2003 1:17:46 PM | link

Unggi Yoon says:

Somewhat related to this subject..

WEMADE vs. SANDA

A Korean gaming company,'WEMADE' sued a Chinese company,'Sanda'for copyright infringement/breach of licensing agreement in PEKING district court last month.

WEMADE that developed the Legend of Mir(a korean word means dragon)2. gave a license to SANDA for doing service the game in China.

As soon as the licensing term expired, the SANDA launched its MMORPG named . then conflict between two companies occurred.

Major issue is whether SANDA had stolen the player database(which contained character's status, record of item, etc.)of Legend of Mir to facilitate chinese playes' emigrating into its game.

There is a Korean proverb that says a shrimp is crushed in a battle between whales.

While each company claims rights of the player database respectively, the interests and privacy of players are ignored and untoched.

Background of the confict is as follows.

Unggi Yoon
----------------

KOREAN TIMES 12-10-2002

No Fair, China! Korea Will Tell on You!

Korean game developers are having a rough time gaining a foothold in the Chinese market because the Chinese are big fat cheaters:

As the situation is getting complicated, some game developers in Korea are even considering pulling out of the Chinese market - once and for all. The reason: Chinese partners cannot be trusted.

According to domestic game developers, some Chinese partners are forcing Korean firms to disclose source codes and handle all sorts of service glitches. In extreme cases, Chinese partners are refusing to pay licensing fees, dealing a blow to Korean game developers.

Among the downtrodden are Wemade Entertainment (Legend of Mir II) says that it is owed some 5 billion won by its Chinese partner Sanda, but hasn't received any payments in three months. In addition, Sanda has demanded that Wemade turn over its source code. Webzen has tried to get into China, but has experienced problems with payment systems. CCR has had some luck, but is delaying a new version of its game in China because the system is unstable. Hunh. Who'd have imagined that working in the world headquarters for software piracy would be so tough on game developers?

Posted Oct 28, 2003 7:51:06 AM | link