Question 3: Virtual Property

Instructions: this question is compulsory. It is worth 25 points. You should not spend more than 2 days on this question. Write legibly or points will be deducted. Answers including references to postmodernism will be ruthelessly penalized.

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"Many of you students have forsaken your MMOG of choice in order (temporarily) to play Oblivion. Oblivion now allows you to buy armor kits for your horse using real world currencies, in a way that is almost exactly the same as real money trades (RMTs) which have been occuring in MMOGs for years. In 1000 words or less, discuss whether either of these types of assets are property for the purposes of any legal systems, paying particular attention to why few people would think that the Oblivion armor kits are property, but the same is not true for virtual assets."

Comments

[Matt Mihaly]

Dan Hunter wrote:

paying particular attention to why few people would think that the Oblivion armor kits are property, but the same is not true for virtual assets."

Um, but the Oblivion armor kits are virtual assets...

--matt

[Richard Campbell]

Alienability. Without a way for me to transfer my horse armor to you, the horse armor is not property as we understand it.

[Krumpit]

Buying stuff with real money in online games is paying someone else to play the game for you.

Buying the horse kit off the makers of Oblivion is paying them to design an extra bit of stuff.

So that's 2 different types of service producing different products that legal minds greater than mine would get their teeth into. I'm just reassured that everyone is also playing Oblivion, thought it was just me.

[Matt Mihaly]

Richard Campbell wrote:

Alienability. Without a way for me to transfer my horse armor to you, the horse armor is not property as we understand it.

You can simply give or sell your Xbox 360 to someone else, fulfilling that requirement.

Krumpit wrote:

Buying stuff with real money in online games is paying someone else to play the game for you.

That's the case for secondary market RMT certainly, but not the case for primary market RMT action.

--matt

[ashok]

There are two questions involved in the more general topic of law and virtual/real assets:

1. How does, or how will, law treat such assets?
2. What do we make of popular perception?

You might want to say that there is a few/many distinction at play here, and you're absolutely right if you think that. The law will adapt via reasoning by analogy, which for Edward Levi was the key to legal realism. The armor kits, if stolen or hacked into or frauduently created, will not just be a real legal issue, but be treated just like any "real" piece of property around us, since the analogy isn't that much of a stretch: there's actually money paid for a service. To meddle with that in some less than ethical way will provoke the law.

If virtual assets aren't already being treated like real assets in terms of the law(the question is trickier as regards taxes, but just because you can't tax something directly doesn't mean it isn't an economic activity), they will be, esp. since some people's livelihoods are on the line.

Which leads into the next part of this discussion, popular perception. While people, through the legislature, technically make law - well, let's get serious. How many people do we know who take an active interest in the law? (Law & Order is a passive interest in the law.) The lack of activity as regards understanding/creating law means that harm must be done - someone must be aggrieved - in order for awareness of an issue to spread.

The thing about the Internet is that its appeal is its "virtualness" in part, a virtualness that makes the theory of "harm causing the development of law" tricky to wield. I've made a lot of acquaintances on here, but few real friends - people want proximity, they want the realness of those in the flesh. I find this place enchanting because I can relate to smart people through their writings and my own writings - I can love and be loved for the sake of the mind.

The Walrus Magazine article discussing Mr. Castronova's work seems to indicate something different for gamers, though. Gamers are people who understand a virtual world already, and are willing to subscribe to its rules - i.e. let it be real for them - for the sake of a persona, a virtual body and to some degree, a virtual mind. We always play various roles in life; in games, we perfect one or more of those roles. So gamers catch on quickly to virtual property being real because they have a very real interest at stake.

The kids on MySpace and the people debating at DailyKos and Little Green Footballs could care less about property. They don't really have a lot invested in here. This is a place to vent when one can't harass the people on C-Span by calling in, or to put up lots of glittery graphics while downloading free music and talking to one's friends. The difference is between the Internet being a tool, as it is for the people in this paragraph, and having one's identity and labors at stake, as it is for those in the above paragraph. The group of users described in this paragraph, as well as the public at large, probably have no clue about virtual assets or armor kits being paid for in real cash.

One thing to always keep in mind when discussing the Internet is the many who don't know vs. the few who sort of know vs. the few who do know. Exactly where is the question posed above situated?

So the point, finally, is that harm is different things for different users on here, but the closer the harm has to do with real money, the more likely popular perception about the armor kits will begin to match that of the virtual assets, and the status of virtual assets will grow.

This is analogous to a paid expansion introducing new content and features, like the Everquest expansions. In my opinion lacklustre content at that, which according to some, should have been included in the original game. Yes, that definitely reminds me of what I read about some of the paid expansions.

Good luck to the makers of Oblivion with this, but I expect most of the really interesting content to come from the modding community.

[Thomas Malaby]

Ashok wrote:

So the point, finally, is that harm is different things for different users on here, but the closer the harm has to do with real money, the more likely popular perception about the armor kits will begin to match that of the virtual assets, and the status of virtual assets will grow.

Excellent post, Ashok. I agree almost entirely. My only quibble is that what can (come to) be at stake in virtual worlds -- that the law will recognize as relevant to harm -- is not limited to real money, at least not directly. Harm to reputation (and symbolic assets, like a brand) is as I understand it legally recognized.

You're absolutely right, in my opinion, on two points: first, that the law will follow emerging popular consensus about virtual property (and the spaces in general); and second, that this transformation depends on the degree to which what is at stake (again, broadly defined) comes to increase for the increasing numbers of people involved with online communities.

Also, I think your assertion that gamers invest things of value (reputation, identity) into virtual worlds more readily than the population at large is correct, but this is almost certainly a relative and vanishing distinction.

[Andy Havens]

This is a red herring argument. When there aren't other players involved, the issue is moot. It's a transaction between customer and publisher/author. In no way does my purchase of version "B" of a game affect your playing of version "A." There are, what...? 209 versions of "The Sims" out now. Big whoop. Does anybody who doesn't own "The Sims: Livin' With Slightly More Pet Hair" feel cheated by them what has?

This is like discussing uniform colors in sports, or whether or not it's better to watch a game at home or at the park. Enjoy yourself however you like.

The RMT argument, however, is the equivalent of the discussion of steroids in sports, or any other kind of cheating. If we agree to rumble -- you know, my gang, the Jets, and your gang, the Sharks -- and we say, "Rocks, bricks, bats, chains, knives... but no guns..." and then, half way through the fight, you pull heat... that's cheating. RMT is bringing a gun to a knife fight.

[hmm]

RMT is bringing a gun to a knife fight.

Best quote ever!
(well pretty good anyway)

[Thomas Malaby]

Sure, but this assumes a shared and stable set of cultural conventions about what is allowed and what is disallowed in the game. To say that RMT is like bringing a gun to a knife fight is a political statement; it states what constraints you would like to have apply in a virtual world. It's only true in any given case to the extent that the code disallows it (usually not true), it is disallowed by contract (EULA) and enforced against (expensive!), or the shared expectations of the players apply enough pressure on other players to govern their actions and keep them from doing it.

[Nato Welch]

Armor kits are, and remain, property of the publisher. The charge is essentially a flat fee rental. They're services. Other virtual assets may not be treated that way.

While people are right to think some virtual assets are their property, the fact is that these armor kits are property - they're just not property of the PLAYERS.

[ashok]

Andy and I have the same instinct, I think - What are the relevant questions regarding these issues? Exactly what, if anything, in our notion of property is changing?

[Richard Campbell]

Matt wrote: "You can simply give or sell your Xbox 360 to someone else, fulfilling that requirement."

If I have to give or sell my Xbox 360 (or PC) away to transfer the horse, I'm not selling the horse any more. I'm selling the Xbox with a horse thrown in. The horse becomes like a custom paint job on a car.

[Chas]

I'll stick with the argument that all game assets are nothing but overglorified poker chips- only valuable within the context of the game they're played in.

Sometimes the chips are just "for fun" with no value beyond the poker table. Sometimes the chips have no value, but there's a fee to enter the game. Sometimes, the host doesn't want to put value on the chips, but the players (make side bets) add their own value.

Sometimes you "cash in" for chips at the start of a game and "cash out" at the end for real money. You may gain more in playing, or you may lose it all.

Any way, the chips are still the property of the host- the casino... unless the host gives you that right to "take the chips home."

----
How will the law see virtual assets and RMT taxation? Look at the casinos.

Is it "theft" when you win a $10 chip off another person in-game? No. Is it theft when you steal that same chip from them? Most likely- even though the casino technically may own the chip.

If you first win $10,000 then lose it in the same sitting, are you taxed on a $10,000 earning, or considered to have earned nothing?

[nashe]

If I use a Marxist theorist who has written on postmodernism, can I get partial credit?

[Andy Havens]

Thomas Malby said> To say that RMT is like bringing a gun to a knife fight is a political statement; it states what constraints you would like to have apply in a virtual world. It's only true... to the extent that the code disallows it... it is disallowed by contract... and enforced against... or the shared expectations of the players.

Right. You just defined the term "rules." And if everybody brings a gun to a knife fight, is it still a knife fight?

You can call fascism "National Socialism." You can call theft "redistribution of wealth." You can call the use of steroids in sports "leveling the playing field." You can call a plantain "a weird little banana." Actually, I think a plantain is a weird little banana... Anyway...

Here's a clarifying question for you: if real money was at stake -- if your money was at stake -- how would you feel about RMT in the game? IE, if you were playing for dough, either as a competitor in a professional league, or if you were placing your own money as a bet on a player or guild's performance? If real money was being won, lost, wagered or earned on the *gaming* aspects of a game... the controllers that you mention would come down on RMTers like a ton of cement overshoes. Why? Because you can't run the numbers succesfully if people are "buying up" the odds. Only the house gets the 15% vig. You want to win all the time? Open a casino. You want to play? You got to play it straight.

Take the above situation. Make a translation of money into time, attention, brand equity, fun and emotional attachment. Unless you completely devalue all of those elements of gameplay, RMT is just as much of a cheat when there is no money changing hands. Because some or all of those coins change hands for many players who want to play the game straight.

[kim pallister]

(these comments are mine alone, not my employers, and other disclaimer blah blah blah...)

I do not think they are property. It's a purchase of a promisory note of sorts. A promise of a service that will be delivered, in a certain way, under certain conditions.

At the end of the day, there are bits on a server somewhere, on a hard drive. And the hard drive still belongs to the owner of the physical device.

However, by offering a service (an MMO, virtual world, whatever) the provider has made a contract with the player. That service agreement had obligations from both sides. Part of the terms of which might include some detail about how people may or may not exchange such promisory notes with one another. The note is a negotiable instrument.

In other words, player 1 says to player 2 "you give me 100 of those 'gold coin' promises, and I'll give you 1 of these 'horse armor' promises."

Just as a dollar bill in the real world is promise from an institution that it will provide a certain value or perform a certain function, so to is the case here. In this case, the service provider (game owner) has an understanding of what functionality it will provide in the game software for a "gold coin promise" or a "horse armor promise".

That's my two cents worth (where 'cent' here is a promise of a very amateurish attempt at a legal point of view on the subject :-)

[Elrana]

Virtual assets or not? Good question but, IMHO, not the important one.

In MMO, you can buy expansions for more quest and/or items. You can RMT the uber axe of vanity, etc... Why? Mostly to be on par with others, showing off, or simply enjoy new content.

So, Bethseda is selling a simple "horse barding". For what purpose? It's is not a 5 hours quest to enjoy. You don't need it to parpicipate in a team raid. Showing off? Short of distributing screenshoot to friends, a bit moot in a solo game!

Virtual assets or not, "why buying it" is the basic question. Assets (virtual or not) is others knownledge of your property. To pick a "Strangelove" line, what's the point of a doomsday machine if no one else knowns about it?

Sorry, if I am off-topic.

[Ken Fox]

What distinguishes a virtual property from other common types of (legally recognized) intellectual property?

It seems pretty cut and dried here. The horse artwork and software are intellectual property owned by Oblivion. The player receives a copy of the property with limited rights -- perhaps not even the right of first sale. Probably the player is really screwed and does not even own the copy; most likely the player is granted a license to "use" the horse under certain conditions.

This really isn't different from any other game software.

A much more interesting situation occurs if a player uses a virtual world to create horse armor. The game company merely provides a tool. Are all new works created in the virtual world derived works owned by the game company?

The RMT issue with Oblivion's horse is boring. There's nothing legally interesting about stuff like this because game companies have been very careful to build contracts where the players don't own anything -- even if the software could be used to create something new, which it can't, the players still wouldn't own it.

[Ken Fox]

Sorry, that should have said "owned by Bethesda".

[Thomas Malaby]

Andy, it would be a different topic to get into a discussion about the definition of "cheating", and I'm not saying that RMT doesn't run against the intent of game designers and many players. My only point is that the extent to which it becomes seen as cheating is socially constructed (an issue of emergent [and changing] consensus about the boundaries) and not reducible to what the game designers intend, code, and write into the EULA. RMT as "against the rules" is not hard-wired into some transcendent definition of what "games" are by nature.

[Jim Purbrick]

The GDC roundtable on digital item sale business models touched on these business models and the legal status of digital item ownership. I thought Steve Jackson's thoughts on the legal ownership of digital items were particularly interesting.

[Artheos]

Well....

1) Buying the horse doesn't break the EULA
2) Oblivion is a single player game
3) The effect of buying the horse is isolated

In an MMO, typically

1) Buying the horse from a 3rd party breaks the EULA
2) The game is multiplayer
3) The effect is shared

note: The EULA isn't just an agreement between player and company in an MMO, it's an agreement between players by proxy as well.

[alan]

"RMT is bringing a gun to a knife fight."

No, it isn't.

RMT is more like being in a knife fight where some guys tediously labored to earn their knife and others bought them with stolen money. No one in that knife fight is going to care how you got your knife.

[csven]

What happens when the horse armor (or for a better example, the gun that knife fight) is fabricated? And as PLM software merges with videogames, will it be corporations and not "the people" that have laws passed?

[Psyae]

The key here is the distinction between "property" and "services." For example, I could manufacture a lawn mower and sell it. It's property, plain and simple. The fact that I manufactured it, and then went about selling it has nothing to do with services. However, if I owned a mower and offered to mow your lawn with it for a fee, that would be a service. I'm not selling you the mower. I'm not selling you "me" as a rental. I'm not selling you clipped bits of grass. I'm just modifying the state of being of your current grass, and when I'm done, you have received something of value (a nicely trimmed lawn, if I've done a good job), and I've received money as compensation.

The designers of Oblivion have done something similar, though there's an added bit that might throw people off at first. Oblivion initially sold you your lawn. Okay, great. They also told you that you could do pretty much whatever you want with it. So, when you first got it, it was nice. You could roll around on it, play some football on it. However, you noticed a few weeds. You created a chore for your kids to go pull weeds. That worked for a while, but the grass was growing too tall. So, you borrowed a mower from your neighbor, and set to cutting the grass. Well, you just don't have the time to keep that up as well as enjoy the grass. Then you hear that the original seller of the lawn is offering cuttings for a reasonable price. Well, you think, if anyone could do my lawn service, it'd be the company that installed the lawn in the first place, and so you give them money to come cut it, and they do. You're pleased, and you don't have to worry about cutting it yourself or getting someone else to.

Here is where it's easy to make the distinction between property and services. When you call up the company for lawn service, you cannot have them cut your lawn, and then somehow transfer that cutting to someone else for money, since it really doesn't exist in any tangible form. (As Richard Campbell nicely put, "Alienability.")

I think many people get confused about this issue because the service involves the manufacture and implementation of software code that eventually gets placed on the buyer's computer. If you want to make an analogy, imagine a someone having computer issues. This person's computer is running slower than it used to, so she calls the Geek Squad, who sends a geek to take a look. The geek determines that the initialization file that pre-loads programs is excessively voluminous. In order to tweak the file, the geek adds some simple code, and the computer now runs smoothly. The code is not property. It was not the property of the geek, and it is not now property of the computer user. It is merely a product of the service, as are the grass clippings. Even though the user could copy/paste the code and "sell" it to someone else, that use would probably still be considered a service, not property.

Armor kits are not armor kits. They are the product of a service in which a company adds code to a program for a fee.

Now to add some confusion to what's apparently straightforward. The armor kits are not property. Ever. However, despite my previous analogy, the code itself may be considered property. Intellectual property. This is the aspect covered by the EULA and Terms of Use agreements to which, merely to install the software, all users have agreed. The difference between intellectual property and most other property is that intellectual property can often be used by those who don't own it, but it generally cannot be transferred by those users to others. Therefore, just because an Oblivion player has purchased an armor kit does not mean that player has any rights to sell that armor kit to anyone else (if that were even possible). The reason why is because the kit is a subtle combination between a service and a bit of intellectual property code.

I've mentioned code in a service context thus far, but it can also be representative of virtual property, which, by its definition, is transferrable property. So, in Simple Life, I can purchase a bit of code for a bit of code that represents negotiable currency in my country. The difference here is that the code was created specifically for that purpose and is being sold as is (as code representing a virtual object or function). Armor kits, on the other hand, may on the face appear to be virtual property, but are in reality merely a result of a service.

(Law is so fun. I could write an argument expressing the exact opposite view, and it would still sound rational.)

(815 words)

[Psyae]

(*Edit: replace "Simple Life" with "Second Life". Add "doh")

[Jared Buckley]

Psyae,

Unfortunatly, I'd disagree: in your example, the Geek Squad code _is_ property. The code is a copyrighted work the instant the Geek Squad creates it and fixes it into tangible form. I'm not enough of a groklaw addict to tell you who's the owner of that property, but under our current IP system it is without a doubt legally the property of someone.

In the case of Oblivion's virtual barding you've (I'm assuming as I haven't done this myself) acquired a license to a copy of the copyrighted work created by Bethesda.

(Ken Fox's comments on first sale brings up some interesting questions with respect to EULAs and the right of first sale. Does the EULA you'd presumably have to sign when you buy the barding keep you from reselling it and thus voiding the first sale doctrine? Is that something that can be contracted away by a EULA?)

So to answer the original questions: (pardon the paraphrasing)

1) Are any or all of these works considered property in any jurisdiction? Yes, all virtual property, by virtue of being copyrighted works, are considered property in the US at least. I would assume this is true in any country that has ratified the WIPO treaty.

2) Is there a different perception of virtual assets as property between players of Bethesda's Oblivion and most MMOGs? Why or why not?

This is a trickier question to answer. From my perspective I see virtual assets as the property of the copyright holder and as the licensee of that content I have certain expectations about what I can do with that content, but I don't believe that I own the content as my own property. I suspect, however, that my viewpoint is in the minority.

Without being able to offer evidence I'd say that most players consider items acquired in an MMOG to be their own personal property while a cosmetic add-on purchased for a game like Oblivion is not. My best guess at explaining the contradiction is that in an MMOG the player has generally invested a substantial amount of resources (time, money, etc) in acquiring that item or even perhaps in creating it. Thus because of their equity in the item the players also perceive ownership.

The facade of the game also reinforces this idea. Players have the ability to transfer (sell, trade, gift) the item in the game at their own discrection. Likewise they have the ability to exclude or prohibit its use. (Their copy of it a least.)

So I guess I'd say that the player's own investment in MMOG items as well as the facade presented by the game itself lead to a perception of ownership in a copyrighted work that, in my opinion, would not be supported by current US law.

[Matt Mihaly]

Arethos wrote:

1) Buying the horse doesn't break the EULA
2) Oblivion is a single player game
3) The effect of buying the horse is isolated

Oblivion is not a single player game. No game that ties into the Gamerscore system on XBox Live is truly single player anymore. Some people do care about their Gamer score, and thus, buying something in Oblivion which may impact your game experience may impact Gamer scores, which is really no different from buying something in WoW and having it affect how you compare to other players in WoW.

--matt

--matt

[Chas York]

Matt: ...which is really no different from buying something in WoW and having it affect how you compare to other players in WoW.

... which is really no different from having a higher-level player 'twink' out your character with freebies. You're still getting an advantage from assets you didn't earn. Yet, people do that all the time- with minimal penalty.

RMT is just changing that "friend" to a "financially compensated distant aquaintance."

[Matt Mihaly]

Couldn't agree more Chas. I never hear the anti-RMT crowd call for banning friend-to-friend transactions when that friendship originated outside of "the magic circle" even though they are, as you point out, the same thing.

--matt

[lplimac]

I've seen posted on elderscrolls.com that people have posted links to the armor pack for others to download for free and have been asked to remove the links, so Bethseda thinks the content is property that is non-transferable.

I'm more interested in another issue though.
Say player A creates a mod for Oblivion and requests payment for it. As Bethseda is charging for its mods can a third party, not licensed by Bethseda charge as well? I'm sure that Bethseda would frown (to say the least) on this practice as it's not getting a cut. However could this lead to Bethseda setting up a place for third parties posting Mods that can be downloaded for a fee that both the developer and they get a cut of the fee?

And will asking two question get me a failing grade...

[Kim]

Psyae,

Two comments on your write-up:

- While a 'service' isn't transferable, a promisory note for a service is. (e.g. kid gives dad a home made coupon "good for one lawn mowing"). It has value, may or may not be transferrable depending on conditions agreed upon. ("dad! I didn't say you could give that to the owner of the football field!")

- Secondly, an MMO vendor doesn't sell you a lawn. They rent you a piece of theirs. And in the real world what they do is make a commitment to provide a service - providing the software and service to allow you to connect in a way that will make this fictional lawn "appear". So what is a physical object (lawn) in virtual space is a service (rendering of bits by server) in real space.

It occurs to me that there may be a translation between virtual/real spaces that's akin to how operations change in time vs frequency domains in mathematics (convolution in time domain == multiplication in frequency domain). But that's another discussion altogether :-)

[Artheos]

matt,

Sharing scores is quite different from competing for resources or competing on the battlefield...

[Thomas Malaby]

Matt's right, in my opinion, Artheos. The point is that as soon as those scores have a common and (increasingly) widely used forum for comparison, they are becoming socially meaningful, and therefore one has a stake in one's score beyond the single-player game; that is, there is an emergent status economy of scores. It's just like two players playing together (in turns) at a pinball machine: that's not a single player game anymore.

[randolfe_]

note: The EULA isn't just an agreement between player and company in an MMO, it's an agreement between players by proxy as well.

No it is not. A EULA is a legal construct in which the company asserts certain rights which the player passively (ok, semi-actively) agrees to abide by in order to be granted limited use of the product.

A better "note" would have been:

Note: Simply because a company makes assertions in a EULA (or any other contract for that matter) does not mean that those stipulations are legally binding, only that the company believes them to be legally enforceable. Violation of EULA terms does not constitute any specific failure on the part of the player until determined as such by a court (or arbitrator).

Many things in EULAs have been, and will continue to be in the future, ruled invalid and unenforceable by courts. All it takes are a couple of court rulings (or refusals to render rulings) to wipe out a whole lot of arm waving around person interest in virtual property and EULAs.

[Artheos]

Thomas,

I don't agree, but then that's because I don't see Oblivion as any type of competition.

randolfe,

I'm not sure what all that conversation about legality has to do with it. It may be in the form of a legal construct, but it is an agreement regardless.

Player agrees to EULA and knows that all other players must agree to EULA. By proxy, all players are agreeing on the same thing onces they enter the game world.

The player that breaks the EULA breaks the agreement with the company, and by proxy, the other players in the shared space.

[Andy Havens]

Comment solely on horses and scoring:

Slight change in opinion: I didn't realize that there was a public, common scoring system for "Oblivion." Inasmuch as the publisher is keeping such... yes, I think there should be some kind of indicator of player "twinks." I don't play the game, so I don't know -- does it currently indicate score based on level of difficulty? Do different tweaks to various system/game issues change difficult and thereby automatically change the score? I know that many games ("Civilization" comes to mind) adjust your score based on difficulty level. So, if that were put into place -- i.e., if you took the horse armor, making the game easier, thereby adjusting your scoring potential downward... it would automatically eliminate the issue. The "horse mod" would just be one among many sliders. As I said, though... I don't know about "Oblivion." My current box ain't buff enuff. ; ) And my Xbox only goes to 359.

[Andy Havens]

On RMT, cheating, EULA, guns, knives, etc.

Alan said: "RMT is more like being in a knife fight where some guys tediously labored to earn their knife and others bought them with stolen money." Yeah... that may be more accurate... but, geez, man. It ain't funny. I was going for at least a little funny. It's a metaphor. I'll get all long winded and s**t and totally unfunny now. Trust me. But I love to start off with a pithing contest ; )

Chas/Matt say: (RMT).. is really no different from having a higher-level player 'twink' out your character with freebies... You're still getting an advantage from assets you didn't earn.... I never hear the anti-RMT crowd call for banning friend-to-friend transactions when that friendship originated outside of "the magic circle" even though they are, as you point out, the same thing.

Ah... another in the long line of arguments as to why the cheatin' MEANS should not be called into question because there are very similar ENDS that can be had through seemingly similar, non-illegal means.

[Note: I gotta say, I just love the whole RMT debate. It's a buffet of ethical questions, boiled down and served sideways. Another reasons that the "virtualness" of virtual worlds is so fascinating.]

You don't hear the anti-RMT crowd (like me) calling for a ban on friendly transactions (as long as they don't violate other EULA restrictions) because -- ready for a big surprise? -- being friendly is part of roleplaying. Sometimes those friendships are formed inside the magic circle, sometimes outside. In the "old days" of pen-and-paper, it was always outside. The idea of "meeting someone inside the game" was insane. You might make a new friend at a convention or through a gaming group, but bumping into a "character" and then becoming friends... how very odd. Forming friendships in general, though, is one of the key joys of playing RPGs for many players.

You will also not hear me call for a ban on in-game economic transfers. I mean... duh. You earn your gold in WoW doing your character schtick. Your character mines, farms, hunts... whatever. In character... you trade. You make stuff. You swap. If the game, like WoW, has economics, guilds, stores, and a decent in-game eBay, even... go for it. It's a level playing field.

You want to hook up with a guild or a partner that will "twink you out/up/over and through?" Go for it. In game. You want to make the effort -- in game or out -- to knock-skulls with some buddies and form a guild, alliance, gang, club, etc. Knock thyself out. I never said (and will never say) that the magic circle ends at the limnus of the user interface; that it stops where the software stops. I will even go so far as to say that the publisher doesn't have (and can't have, and, if they are smart, shouldn't try to have) complete control over the magic circle. The imagination and participation of players should be allowed to extend far beyond the "walls" of the theatre. It's good for the players and good for the business. Web sites for fan fiction and fan art of players; sites for guilds to gather and discuss guild rules, strategy, recruiting, back-story, etc.; bulletin boards where issues are discussed -- these all contribute to the depth of the gaming experience of everyone who wants to participate in such.

But... the moment you bring your artificially, profesionally-leveled, paid-for, Level 60 WoW character with steroid-like weapon and armor enhancements into a situation where he/she is competing for resources of any kind -- including friendships -- with my "natural" character...

Whoops. That's not an "enhancement." It's a deceit; it's cheating. Rule-breaking. Agin' the law. Gun to a knife fight (or "paid for knife..." sure).

All the reasons that everyone gives for breaking rules and laws in RL get made in terms of RMT. Which totally cracks me up. Becasue, in real life, you actually have interesting *moral* grey areas to fall back on. "Would you steal the drugs from the pharmacy to save your daughter's life?" "How many innocent people should die to save the nation?" "Is free speech a right worth going to prison over?" You're balancing the moral, legal and ethical values of life vs. property vs. free speech vs. etc. etc.

But this is gaming. It is only *real* inasmuch as there are rules that are commonly followed. That's what a game is -- agreed upon rules, followed in order to test a set of skills and abilities, sometimes in the presence of random elements as well. The rules are what MAKES IT REAL AT ALL. If baseball players start playing with hockey sticks... it ain't baseball anymore. It's hockeyball. If you let football players keep running after the flag is tossed... you've got what? Goofball?

I'm not saying that there *aren't* legal issues involved. As soon as you have any system where more than one person is involved in a monetary transaction, you'll have contracts and lawyers and laws. I'm saying there *shouldn't* be. Can you imagine a pen-and-paper situation where a player says to his GM, "I'm taking that last set of rolls up with my lawyer!"

Making arguments pro and con RMT like you're arguing for and against some real-life moral issue... nope. It don't scan. It's a game. If doing something is against the rules, it's bad and wrong. Why? Because the rules are what make it a game. What makes *it* the game that it is. As soon as anyone(s) begin doing things outside the rules -- call the rules "magic circle" or "4th wall" if you like -- you begin to errode the whole reason for playing the game; the shared set of codes by which we test the skills, attributes and randomness upon which the system is based.

You want to argue RMT with me? Fine. First step -- own your sin. I, for example, speed. All the time. 77 in a 65mph zone is about standard for me. Nothing bizarro. Nothing "Autobahn." But it's speeding. Do I make the "It's not illegal because everyone does it" excuse. Nope. Do I make the, "It's not illegal because the law is predicated on bs facts," excuse. Nope. No excuses. I speed because I feel like it. If I get caught, I'll get a ticket. Too many tickets, they'll take away my license. No excuses.

You want to tell me that you sell RMT to make money, despite the fact that it's against the rules... fine. You do it because you're feeding the jones of many players who want to take an easier route to high-level fun and helping them out gives you a kick? Fine. You do it because it gives you a thrill to put your thumb in the eye of Sony or Blizzard? Fine. You do it because of the technical thrill? Fine. You do it to pit your wit against "the Man?" Fine.

But don't come at me with "the EULA is only enforceable inasmuch as... blah blah blah." Don't come at me with, "RMT is the same as friends trading stuff." Don't come at me with moral arguments based on their RL equivalent.

You want to tell me you do it because you simply flippin' feel like it? Fine. From there, we can start to have a conversation. I disagree with all those reasons, and think that they, in the long run, will do harm to most games and the whole MMO field in the aggregate, but at least we can get out of the "rules = laws = morals = ethics" illogic trap that plagues so many of these conversations.

It's a game. Games are defined by rules, not laws or ethics or morals. Breaking game rules is commonly referred to as cheating. If RMT is against the rules of a game (wherever... on the site, in the doc, in the EULA)... then it's cheating. Cheating is bad for the people who aren't doing it. I'd make the larger, philosophical argument that it is also bad for them what's doing it... but that's an Aesop's Fable for another day.

Now... you build RMT into the rules of a game? I'm all for it. I'm fascinated by the idea of the exchange of virtual goods. Do it in games like SL and Project Entropia.... Excellent. Have dedicated RMT servers? Coolio. But as long as it's done "back-channel," on the sly... through eBay, etc. As long as it's breaking the explicit rules of the game; it's bad. It HAS to be. By definition.

[Dan Hunter]

By now all of you will have received your grades. Well done. Thomas, please come and see me about your enrolment as there seems to be some sort of problem with faculty members of other schools being enrolled here.

For reference the best essay was submitted, as usual, by Penny Arcade. You just can't ride that shit through Ironforge.

[randolfe_]

The player that breaks the EULA breaks the agreement with the company, and by proxy, the other players in the shared space.

If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else. If the company disagrees, they can pursue the action in court or ban me from the game, allowing me to pursue it in court. The court decides what was an enforceable agreement and what wasn't, not abstract philosophy.

The proxy argument is purely an academic point anyway. The other players have no standing to pursue my "violation" of the EULA, only the company. They can be as upset about it as they want, but they have no claim against me nor I against them merely because I violated the EULA.

[Artheos]

"If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else."

Not true. You've simply lied when you clicked Agree.

[Andy Havens]

SATIRE ALERT:

randolfe says> If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else.

Andy> Ah. And if I semi-passively hit you with my car while drunk (me drunk, not you) in order to drive home after doing tequilla shooters all night, having no *intent* of abiding by legal restrictions on DWI, because I'm driving on a back country road and I believe those restrictions will be non-enforceable, then I have no agreement with either the police or by proxy with you or your next-of-kin.

randolfe> If the company disagrees, they can pursue the action in court or ban me from the game, allowing me to pursue it in court. The court decides what was an enforceable agreement and what wasn't, not abstract philosophy.

Andy> If your next-of-kin, or the police, disagree with my enjoyment of tooling around at 70mph while tight as a hospital sheet, they can pursue action and, if they find me out and convict me, ban me from driving. The court decides what is an enforceable agreement and what isn't, not abstract philosophy.

randolfe> The proxy argument is purely an academic point anyway. The other players have no standing to pursue my "violation" of the EULA, only the company. They can be as upset about it as they want, but they have no claim against me nor I against them merely because I violated the EULA.

Andy> Law and morals are purely academic points anyway. Other citizens, i.e., human beings, have no standing to pursue my "violation" of laws or moral behaviors. Only God (if He/She/It exists at all). They can be as upset about your death as they want, but they have no claim against me nor I against them merely because I violated drunk driving statutes.

END OF SATIRE... mostly

Your reasoning is, essentially, based on the "Anarchist's Guide to Doing Whatever The F**K I Want."

What is "semi-passively clicking away" anyways? Did you click on "I agree" or did your mama make you do it? Were you high? Hypnotized by aliens?

And, truly, you may be -- de jure -- correct. If that's the point you're trying to make; simply that, legally, the EULA isn't going to "solve" the RMT issue in court. Other players, indeed, can not sue you for a breach of the EULA. Just like a kid playing back-lot baseball can't sue when another kid bats out of order.

But if your actual argument is that it's OK to cheat simply because it is impossible or very difficult to *legally enforce* rule systems in MMOs... or that players have no responsibility towards each other besides what can be legally enforced... then you advocate anarchy for our genre.

Entertainment and games rely on a wide variety of shared "good behaviors" that go far beyond what is legally required. It's not illegal for me to stand outside a movie theatre and tell everyone on the way in, "Hey! Guess what! The butler did it!" But I'd be a giant prick to do that, eh? And it is probably highly "non-enforceable" to prosecute people who rip the last page out of mystery novels. But it would still be evil to do that. And for a gym teacher to put all the short kids on one side in a basketball scrimmage... again... bad behavior. Not illegal, no. But come on.

The law is the MINIMUM requirement for getting along. Not the maximum. Playing games isn't about not killing each other on the street, eminent domain, interstate commere, contracts for business agreements and economic enforceability. Gaming requires a much higher level of trust. Why? Because we are attempting something more ephemeral and metaphoric -- fun.

When we play something as simple as hide-n-seek, I trust that you will actually count to 100 while I hide. If you count by 10's... you're cheating. I can't sue you, but you've made it less fun for everyone. Even if you only "semi-passively" counted by 10's.

[Thomas Malaby]

That's all well and good Andy, but the point is not that people disagreeing with you are advocating anarchy, it's that you're pointing to the rules, the law, and an imagined consenus about the "magic circle" as if all of them were static and easily defined. Once we see them instead as always approximations then we have to confront the uncomfortable reality that governance (yes, even inside games) is a moving target. Consider, for example, the "tuck rule" controversy during the 2001-2002 playoffs. Here was a case where the rule was correctly interpreted and enforced, but it was the public's gut feeling that it wasn't right which led to ongoing controversy. The league is still struggling with finding a way to re-word the rule. So the point is that appealing to the rules, laws, or consensus as if that settles the issue is not realistic.

P.S.: In response to randolfe, you change the terms by moving from a civil dispute analogy to a criminal act analogy. Those laws are quite different in many relevant respects.

[Andy Havens]

To Thomas: Now we're cookin' with gas. You're at least talking about "games" and not laws, and bringing it back down to an interpretation of such and getting on my case for changing the terms... which I've been arguing for all along. I switched terms in a dramatic and (frankly) stupid way in order to draw attention to that difference; you have seen through my clever ruse.

I've been trying (vainly, I think) to stop the "RMT isn't illegal so it's OK" talk. I've also been trying to stop the "I don't like the rule, and so I don't have to abide by it" talk. Both of those arguments are anarchical.

Now... you make the REAL point and ask the real question: are anti-RMT rules GOOD RULES? Does RMT improve the play experience for a majority of players? Does it do so in a very small way for a majority.. but ruin the play abjectly for a significant minority? Or is it the reverse? These are very, very valid questions, and at the heart of... another discussion.

What needs to be established, first, though, I think, is that "disobedience" (anarchy, lawlessness, cheating... what have you) is not the manner in which we express dissatisfaction with a rule or law. If the general public is upset about the "tuck rule," or the designated hitter or free agency or the end of the "Attitude Era" in the WWE... there are a variety of ways to express those concerns that don't involve marching onto the field/rink/ring and expressly violating the rules.

Almost nobody liked Prohibition. It gave rise to two groups that did something about it; one group worked legally to pass the 21st Ammendment and get it repealed. Another group worked to provide alcohol on the sly across the country. We call the 2nd group "The Mob."

I got no beef with RMT per se. I said before... virtual property is cool. It is intriguing. But if you think that a game that currently does not have legal (or not even legal but "rules allowed") RMT should have it... work "within the system" to get the publisher to allow RMT. Or take your money and your time and your voice and your blog and "vote with your feet" for another system that gives you more of what you like.

In the example you site, the fans expressed (and still express) concern over a ruling. They, perhaps, desire a change. They make that desire known. But RMTers for games like WoW are advocating something like going in and... what? Forcing a redo of all football games where the rules don't match up with their ideals? I'm confused. Whose rules are we using now? Mine? Yours? Bill and Ted's excellent rules?

Fight to change rules you don't like. I'm 110% behind your right to do that. Advocate your point of view as strongly as you can. Try to get game publishers to offer alternative rule sets or RMT servers or whatever where you can play your way and I can play mine; more choice wins in almost every economic encounter.

Nobody is forcing *you* to play a game you don't like. But if you *force me* to play in a system where you have changed the rules without my consent... a game that I'm choosing to play based on the published rule set... where your use of RMT impinges on my gameplay experience... an experience that I pay for in time, money, attention and expectation... then you have done wrong. If you change the rules first... then you have done it the right way.

[Andy Havens]

PS: Yeah, I know the difference between civil and criminal law. I was making a satirical point. That's why it said "SATIRE" in big, capital letters.

[Thomas Malaby]

Andy wrote:

"disobedience" (anarchy, lawlessness, cheating... what have you) is not the manner in which we express dissatisfaction with a rule or law.

Yes, now we're cookin', Andy. Here is my main recurring concern. In the quote above and in other places in this post you basically chart out a position that says that social/legal/rule change is only legitimate if it is pursued within the context of already available and legitimate avenues for dissent. The problem with holding strictly to this is that if the laws/rules/consensus are themselves part of the problem, then what should you do? Presumably, Henry David Thoreau, Gandhi, and Martin Luther King are problems on this view. Now, no one says that RMT'rs have much in common with Gandhi (or, at least I hope not), but the point remains that holding to a formalist view of wherein legitimate change occurs has lots of problems when we think broadly about their potential for transformation. If the EULA, the code, the law (more broadly), and social convention start to be combined so as to support the creation of exclusive spaces for social networking (the NewGolf, "gated online communities" idea again) that are where traffic in real and broad influence take place, then do we think that only "legitimate" avenues of dissent will break them open?

Another point about the focus on law: Actually, the relevant thing about law is that it always has this element of following practice built-in; that's why (to me at least) pointing to it (beyond a formalist view--that is, warts and all) can be so helpful, and therefore why it always reappears in these debates.

[Andy Havens]

Thomas said>If the EULA, the code, the law (more broadly), and social convention start to be combined so as to support the creation of exclusive spaces for social networking (the NewGolf, "gated online communities" idea again) that are where traffic in real and broad influence take place, then do we think that only "legitimate" avenues of dissent will break them open?

MORE SATIRE:

"When, in the course of elvish events, it becomes necessary for one guild of RMTers to dissolve the EULA bonds which have connected it with others, and to assume among the publishers of the MMOs, the separate and equal station to which the laws of code and of the code's GMs entitle them, a decent respect to the opinions of elf-kind requires that they should declare the causes which impel them to the separation..."

END OF MORE SATIRE

For a second, I thought we were talking about rules again. But then you dropped back into moral and legal chatter.

If this was a discussion about how a publisher was keeping gay players or players of a particular ethnic group from playing, or was flouting the First Amendment within the surly bonds of the EULA... I'd be all over on your side. But it ain't. You keep flipping back to making moral and legalistic arguments for breaking rules. And it doesn't scan.

Yes -- there are times when one must "break the law of man in order to serve the law of God." Ghandi, MLK, Jesus, the Buddha, our Founding Fathers, Malcom X, Rosa Parks, etc. All good examples. There are thousands more.

None of which have any bearing on this discussion. Why? We are not talking about laws. We are not talking about morals. We are not talking about ethics. We are talking about rules.

There is nothing more or less ethical or lawful about a rook being able to move horizontally and vertically and a bishop being able to move diagonally. If you want to play chess differently than other people... you have that right. Morally, ethically, politically, emotionally, religiously. Nobody is disputing that. You and your friends can go play chess and use only pawns. You can have the queen only work on Tuesdays. You can decide, amongst yourselves, to change the rules every ten minutes, randomly if you like, if you are fans of randomness. You can play chess nude, with a 14lb wheel of cheese on your head while watching reruns of "Mr. Ed" and singing "Blue Moon," and count that as "winning."

But if you sit down to play with me, and we agree to play by the "standard rules of chess," and then you start moving your rook diagonally... that's a problem. You're either cheating or confused.

Games are not real life. The more virtual they get, the more we get confused. But they are just not real life. And we don't have "rights" in games beyond those granted by the rules. Same as on the ballfield, the board or the scrum.

You do not have an unalienable right to a diagonal rook move. God does not care (I don't think) about the infield fly rule. The element of "following practice" that is, as you rightly say, important to law... does not apply to rules, except inasmuch as it does to any form of entertainment. Smart companies change products and services based on customer feedback. That's what saying, "I don't like this feature" is. Customer feedback. It's not non-violent protest. It's not, "We shall overcome." It's not MLK, for the love of pete. If you don't like baseball, switch to cricket.

I'll say it again, as I have above: a game is DEFINED by its RULES. When you break those rules, you change the game. When you change the game for people who wanted to play it the way it was intended, you are doing them a disservice. If you don't like the game the way it was designed -- which includes the rules -- play something else.

This is not the same as a moral or legal argument about real-life issues like slavery, child labor, women's rights, etc. You can't tell a slave, "If you don't like being a slave, switch to another country." You can't tell a woman, "If you don't like the glass ceiling, be a man." Well, you could, but it would be a really dumb-ass thing to say.

As of yet, there is not "right to my kind of fun" built into any constitution or "Rights of Man" kind of political document I've ever heard of. In fact, many of the "rights" stop well short of "fun" and land on "the pursuit of fun." And then they start getting into all kinds of detail about what you can NOT do to pursue your fun while I am pursuing mine.

For example... you can NOT, as is stated above a couple times, willingly and knowingly enter into a contractual agreement with the express intention of violating said contract in full or in part, with the assumption that you can wiggle out of it later. That is called "promisory fraud." The law assumes that when you agree to a contract, you do so for the purpose of... go figure... agreeing to it. Not to just agree to the parts that are "most fun for you."

So... the only legal/moral issue here is that RMTers are, within the bounds of this discussion, breaking rules and committing fraud. In some cases interstate wire fraud on top of everything else, if they are doing so using the Internet to sell virtual goods/services against the express terms of the EULA to folks in other states/jurisdictions. Just so I don't get accused of trumping up that little bit of fun, here's the specific code:

WIRE FRAUD - 18 USC 1343, makes it a Federal crime or offense for anyone to use interstate wire communications facilities in carrying out a scheme to defraud. A person can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

First: That the person knowingly and willfully devised a scheme to defraud, or for obtaining money or property by means of false pretenses, representations or promises; and, Second: That the person knowingly transmitted or caused to be transmitted by wire in interstate commerce some sound for the purpose of executing the scheme to defraud.

As soon as you break the EULA with RMT, if it says you can't do it, you've done #1. If you use the Internet, you've got #2.

Now, to be fair: "9-43.100 Prosecution Policy Relating to Mail Fraud and Wire Fraud: Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct."

But are you getting my drift here? You're arguing for a change in rules. OK. Fine. Go to Sony or Blizzard or the publishers and say, "We want RMT. Here's a list of X thousand players who say they'll quit if we don't get it. Here's 12 white papers on how much more money you'll make if you organize and lead the effort. Here are the ways we think it will improve game play. Here are the other games we'll be playing in 3 weeks if you don't give us our RMT." Fine.

You are not arguing for a change in the moral fiber of our nation. You are arguing that breaking the rules, and a federal law in this case, is OK because... what? It makes the game more fun for some of the players.

The whole argument boils down to that: I want it my way. "I want my RMT." Fine. Go get it. But not by breaking the rules of a game that lots of other people got into expecting *not* to have it, and not by breaking actual laws.

It's a game. Games have rules. Games aren't real life. You can't make moral/legal arguments for something that is simply a change in gameplay (a rule change), and then try to beg forgiveness for ACTUAL moral and legal transgressions by saying, "We're fighting for our rights."

You don't have a right to anything besides your money back. And sometimes, not even that. If you don't like a game... go read a book.

I'm not in any way talking about rights, or making an argument for rights. All I'm doing is making an empirical argument about how rules, laws, and social convention change, whether we like it that way or not. Since you're making, effectively, a political argument, you are attributing one to me. I am just telling what we know about how social processes work. In short, formal systems only partially determine the human activity that takes place in relation to them. This is what process means.

you can NOT, as is stated above a couple times, willingly and knowingly enter into a contractual agreement with the express intention of violating said contract in full or in part, with the assumption that you can wiggle out of it later.

That, again, is not what I'm arguing. The fact is that any formal system, no matter how explicit and elaborated, is going to leave wiggle room, a space for practice to depart, sometimes significantly, from what the rules say. That's just the way it is: human life is too open-ended, complex, and contingent to be perfectly governed. So it's not about intent to defraud, or anything like that. It's about how commonly accepted practice (which changes!) is itself a player in what comes to be possible and legitimate. When that's the case, the laws (and the game rules!) will trail behind.

None of which have any bearing on this discussion. Why? We are not talking about laws. We are not talking about morals. We are not talking about ethics. We are talking about rules.

Rules are not immune to the contingencies of human practice. They deserve no special status beyond the degree to which they formalize (and serve as a focal point for) an already existing willingness to play by them. This is very well covered in John Rawls' ideas about "fair play", by the way.

Games are not real life. The more virtual they get, the more we get confused. But they are just not real life.

You can say this over and over but it doesn't make it true. The distinction between games and everyday life is relative. It is practical, not fundamental, and this is because games are never perfectly bounded and separate from everyday life.

a game is DEFINED by its RULES

This just isn't true. Games are, in my way of defining them, contrived spaces for contingency. The sources of contingency that games have (rolling dice, skill-based competence, information games) always include some that are outside of the rules' ability to dictate, like whether a racetrack is muddy, an old computer game runs at a different speed on a new processor, the power hitter for the Mets has just gone through an awful divorce, or the vagaries of internet network reliability. Games are not their rules, because they are supposed to be places where unexpected things happen, and because they're for human beings, who themselves are never perfectly isolated from their other experiences when playing a game.

You do not have an unalienable right to a diagonal rook move.

Of course I don't, because it's not about "human rights", it's about how games change, dynamically, always. The rules are an attempt to capture a game in some idealized form, but they never perfectly capture it, and they never capture the game in its entirety. There will always be issues that are governed by social convention and common practices, and these will most often not be explicit. They are, in a word, cultural, and therefore taken-for-granted and not questioned, but this doesn't mean they aren't changing all the time. They are.

The rules of games, which you would seek to elevate as determinative of them, often trail after practice. Consider "Texas 8-Ball" a form of 8-Ball where the 1 and 15 must each be made in a specific side pocket. This game appeared somewhere, at some time, as an improvisation. In the pool hall where it began a set of practices of what was appropriate grew up around the core idea, in practice, and then the rules formed around that, becoming more and more articulated until the game becomes included in official rulebooks, etc.

As of yet, there is not "right to my kind of fun" built into any constitution or "Rights of Man" kind of political document I've ever heard of.

This doesn't matter, because games are not in any inherent way about "fun". Games are played and used all over the world in ways that have nothing to do with fun. (By the way, I suppose one could make an argument for the "pursuit of happiness" as "fun" written into a constitution, but I won't, games are inherently about fun.) It is true that just because the above is true does not make it okay to jsut break rules whenever one wants to, but rules are broken, and sometimes, just sometimes, the other players see that and say, "Hey! Cool! Let's play it that way!"

[Thomas Malaby]

Oops. Um, that was me. :-)