There's been a lot of contract talk lately -- Bragg's suit is all about the Benja...er...EULAs, Eve is using a new kind of contract clause to penalize RMT, etc. But can we really create an economy based purely on contracts between games providers and games players?
I have to admit, I'm kind of a pro-contract sort of guy. But in talking to the media and colleagues about how much work EULAs can really do, I guess I'm coming to a different viewpoint.
Here's why -- for any rule of law to work, it has to create two kinds of social connections. First, it has to order relations between the sovereign and the citizen. In legal jargon that's called vertical privity. But it also has to create horizontal connections. This is where the EULAs fail. If one player harms another, what recourse do they have? On the one hand, we might say that this is where we kick things back to the common law, and let players have at it in a real world court. But that's not possible if players have no rights vis-a-vis each other. What rights would the players take to the courts?
This issue of lack of horizontal rights between players -- PvP rights, if you will -- is increasingly a dealkiller for me in considering whether we can leave virtual worlds to be governed solely by contracts regulating behavior between player and designer.
They do try: Terms of Service are meant to constrain players' activities towards each other. But that simply doesn't work: imagine if someone walks up and slugs you. The police decide not to prosecute. In the real world, you have other options -- there were horizontal rights running between the two of you. We simply do not run societies in which rights run only between citizen and sovereign.
Ok, so where am I going with this? I think that the entire range of common law rights needs to be viewed as applicable to virtual worlds -- property included. The thing about property rules is that they bind third parties who are not signatory to a particular contract. If someone steps on your land, it's trespass, regardless of whether you signed a contract with them or not.
In short, I don't oppose EULAs. They do a lot of good work, and should be enforceable according to their terms. But EULAs attempt too much -- they try and fail to regulate conduct between third parties, and that's something contracts, by their nature, don't do well.
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