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Jun 26, 2007

Comments

101.

Richard said: "What it comes down to is that if there are restrictions on the creativity of designers (for example by not allowing them to follow through a story arc because of the effect it would have on the value of players' in-game assets) then we simply won't get professional virtual worlds."

I disagree. My day-gig title is "Manager of Creative Services." Now, what my crew and I mostly create is marketing materials, though we do engage in the writing and design of some less mercenary pieces; reports, magazines, advocacy briefs, training films, etc. In many cases, our creativity needs to be balanced and level-set against the (if you can call it this) creativity of the product people, lawyers, accountants, etc. As a manager, I'm responsible (a bit more than my team, and a bit less than my director) for understanding and working within the various "pulls" of many internal and external forces. If I did not, my materials -- while possibly more creative and artistically interesting -- would fail miserably at their goals.

A designer -- of games or any collaborative, commercial enterprise -- creates within a field of forces that exert themselves on many levels, I believe. If a designer decides to ignore or devalue the input of others involved in the process in order to elevate his/her creative freedom, there could be trouble: in the long run, the canvas on which the work is created, for example, might disappear.

I'm in no way arguing for less creativity and no risk-taking. But imagine if your statement had read as follows: "Virtual world owners should have freedom of commercialism," or "Virtual world lawyers should have freedom of ass-covering."

Creative freedom is good, yes. But it isn't inherently any less important to the process than economic freedom, legal appropriateness, financial rigor, etc. Elevating one party's piece of the process without acknowledging the others seems, to me, to unfairly deemphasize the other parts of the pie.

Besides... having worked with designers, writers and artists my whole career (and being one, myself), I know right well that one designer's creative freedom and another's, if equally enabled, can cancel each other out. Your lovely art + my need for lovely negative space = ?

102.

On this topic... long-ass essay here.

103.

@ Thomas - Thank you for facilitating SC's correction of Article #2 of the Declaration. It's what the assembled group as a whole voted for and reflects the democratic nature of the proceedings and also AFAIK reflects the document that we all signed at the end. Thanks also for your excellent work in moderating the TN discussion on the Ludium generally. Even though I didn't vote for you, I can say in retrospect that the group definitely made the right choice for Speaker. BTW, I have blogged about the Ludium on Exabytes if you are still adding to the collection of links. You have probably already read my 2004 paper on FOS in virtual worlds, but in case you or anyone else hasn't yet and is interested, here is the link. If you or any of the Terranovans wants to provide a permanent link to it in the resources section of TN, please feel free to do so. I was considering adding something to the background section of the Ludium 2 wiki, but given that it is still blank I am wondering if others share my concern about whether open wiki drafting would be suitable for such a document. Instead, I will probably work on my own "Federalist Paper" and circulate it for comments at some point.

@Richard - I got a good chuckle from your remarks about the apparent irony of having to pay a gold coin to address the assembly when the final result included FOS for players as well as developers. However, courts in the U.S. have historically regarded small user fees, e.g. for parades, to be permissible constitutionally, so it's not inconsistent with the Ludium. I think that your point about developers leaving the U.S. if the Declaration is adopted is unrealistic. Article #6 of the Declaration explicitly recognizes that different treatment for different types of virtual worlds is appropriate. There is no presumption that any one article has priority over the others, so your "Escape from Colditz" game would be safe. The Declaration as a whole contains a balanced mix of pro-developer and pro-player items. Significantly, it does not even mention the pro-player virtual property concept, which is already well-established in some other jurisdictions. Anyway, I think I have almost reached the 400 word TN limit.

@everyone - Happy Independence Day!

104.

Here is the correct link for the paper.

105.

Mike Sellers>Richard, you're talking about a "fight" that doesn't exist and shows no signs of existing

OK, well if you're not worried about what the actual, real US government might do, why are you so concerned about what a bunch of mainly academics do?

>it's a matter instead of not jumping at imagined shadows and focusing on actually getting something done.

What does "focus" have to do with this? It's not as if events such as the Ludium are a major distraction for companies that would somehow prevent them from dealing with more practical matters - it's perfectly possible to be "getting something done" while also engaging with long-term policy-making events.

>Believe me, if government regulation or the like ever becomes even potentially a real issue, companies that have billions of dollars invested in developing and/or publishing virtual worlds ... will show up with their lawyers and lobbyists ready to go.

I'd hope they would, yes; and, thanks to talking shops like State of Play and the Ludium, they may even have their arguments worked out in advance and be able to present a united front to regulators.

For example, you and I share a similarly dim view of over-inclusive "player rights", and we can patiently explain to potential regulators why this would be a bad thing; if we didn't even know the issue was likely to be raised, though, we'd be caught off-balance by it. By thinking about things in advance, we can construct a coherent and consistent view of what it is virtual worlds are, the better to be able to explain why a proposed law is inadvisable, rather than simply saying "it won't work".

>don't mistake a weekend workshop for a representative "Congress"

Not being as au fait with American politics as, er, Americans, I don't know the full resonances of the word "congress" there. I agree, though, that while the format of the Ludium was based on some kind of 19th century model of something to do with congress, that was within the magic circle; you can't call the assembly itself a congress, as it wasn't one.

>or a lack of participation by developers in an early effort like this one for "sulking" or being unwilling to step up.

I wasn't saying that developers were sulking, I was saying that if things progress as they are doing then that would be one of the two main options facing them. I do think there's an air of complacency among developers, and I do think there's a danger of badly-made laws hurting the industry. If developers drag their feet, as comic book publishers did in the 1950s, then they could find themselves out-manoeuvred.

Like it or not, academics and other opinion-formers are pushing this issue. Are developers content to let them? If so, fine. If not, what are they going to do about it - sulk or act?

>It's just that, really, there's nothing yet to step up to.

How long would it take for them to step up if something did come along, though? If a bunch of crazies met through a WoW guild and decided to go out together and shoot up a shopping mall, could the industry react in time to avert a clampdown?

I don't haul myself across the Atlantic at my own expense to go to these events because I enjoy the convivial company (even though I do enjoy it); I go because decisions are made there which could have implications for the wider virtual world industry, and I want to do my best to make sure they're the right ones.

Richard

106.

Andy Havens>A designer -- of games or any collaborative, commercial enterprise -- creates within a field of forces that exert themselves on many levels, I believe.

That's right, but it's the designer's vision that people are working towards.

>If a designer decides to ignore or devalue the input of others involved in the process in order to elevate his/her creative freedom, there could be trouble

Yes indeed. This is why designers try to work with people whose creativity fits the designer's needs. For example, cinematography is an art, and if I were the director of a western I'd want a cinematographer whose art encompassed creating grand, sweeping vistas showing the wide open spaces that I want as my metaphor for "opportunity"; I wouldn't want the cinematographer whose art was in revealing in-depth emotions from close-cropped close-ups.

>But imagine if your statement had read as follows: "Virtual world owners should have freedom of commercialism," or "Virtual world lawyers should have freedom of ass-covering."

Those are generic statements that could apply to any business, and they're not freedom of expression issues. The one about designers is particular to virtual worlds. Sure, the employers of the designer might impose constraints for financial or business reasons (if you want a virtual world set in 1920s New England, the designer doesn't get to create it set in 1960s London, no matter what freedom of speech laws apply), but that's not the issue here. The point is that, unlike the case in related media, virtual worlds are organic - they evolve. An episode of a TV series, once made, stays pretty much the same. There may be edits for different territories, or for times of day, or for different formats, but these are derivatives: the original doesn't change. With virtual worlds, the original does change, which makes them different from most other arts. In part, it's an art of creating process. If laws were enacted which prevented the steering of virtual worlds through their evolution, then that would stop the art, which would therefore stop virtual worlds from being what they are.

Example: as part of my virtual world's ongoing expansion, I want to flood a valley and drown a village. The characters of some players own property in that village. They protest that this is property that has real-world value which I, as a designer, am destroying. If the law decided that their "property rights" trumped my freedom to design my world how I see fit, that would put an instant stop to all ongoing virtual world development. If you have to create virtual worlds in such a way that you can never patch them nor expand them, then you're not creating virtual worlds. Their evolution is part of what they are, and it must be paramount.

>Elevating one party's piece of the process without acknowledging the others seems, to me, to unfairly deemphasize the other parts of the pie.

This isn't about the names that appear in the list of credits. This is about whether attempts to protect the consumers of a work of art should be allowed to destroy the very work of art that the consumers are consuming. Of course there are many people involved, and some of them may have freedom-of-expression issues, but, like it or not, it all comes down to the freedom of the person whose vision is being enacted to create that vision. If they can't do it, all the other creative contributions (including those by the players) don't get to be made.

Richard

107.
In part, it's an art of creating process.

Love hearing you say that, Richard. I quite agree, as you know. I'm very interested in Andy's response as well.

@Peter: Wow, thank you so much for your kind words. I've added the link to your blog to the list below the OP, and it was great to be directed to your paper again. I share your intuition about the wiki -- we'll just have to see through what channels the development of these ideas takes place (actually, there's getting to be a fair amount of good stuff here).

108.

Ludium II was a volunteer, self-funded meeting. I felt it was time to get something down on paper, just to enable discussions like this one. I would not be opposed if someone were to hold a larger conference to revisit these issues and produce a modified platform. If such a conference were to be held, what should be the representation of:

A. Industry
B. Academics
C. Players

Three Estates, like Nobility, Clergy, and Commoners. Odd how patterns recur in history.

Perhaps each Estate should meet and draw up a platform separately, then differences could be hammered out in an Estates-General.

109.
Of course there are many people involved, and some of them may have freedom-of-expression issues, but, like it or not, it all comes down to the freedom of the person whose vision is being enacted to create that vision.

A virtual world is diferent from (e.g.) a novel because it's created collaboratively. The players are as much creators as the "game designer". Even if the VW doesn't allow building, the players' performances are just as much a part of the artistic content of the world as the scenery.

I think this makes "freedom of expression" rights quite tricky. It's easy to imagine situations where the players want to act out a story that the company that maintains the VW doesn't like, or where the game company wants to do something that will really annoy the players (like flooding their vilage to make a hydro-electric power plant, or whatever).

The EULA that players agree to often restricts what they can do. I can easily imagine a contract in which a game company also agrees not to do certain things. (The incentive to do this being that players will go elsewhere otherwise.) Or rather: the game company is contractually bound to provide a specified level of service.

110.

@Richard: I'm not in any way talking about who gets named in the credits. I've worked on hundreds of marketing projects where *nobody* gets personal credit, because it's an institutional/organizational act of creativity. Most advertising, product & packaging design, PR, documentation, etc. is done essentially anonymously by all parties involved. In the best cases, therefore, what gets the focus is the end product, not the rights or rewards of any person or group.

And I'm not downplaying the importance of designer creativity in the process of creating games. A smart publisher will give lots of creative room to good designers (just as is done in other media). But to enshrine freedom of expression for one group as a "right" implies that either; A) others don't have similar rights, or, B) that there aren't legitimate, reasonable, moral and commercial considerations that might take precedence over designers' creative freedom.

I also disagree with you that the role of game/world designers is "differently different" than that of folks creating for other media. A writer for a TV show or fictional series, for example, may be involved with creating a product that spans years or decades. But they may have to content with the economic or critical requirements of their owners. I think that if the writers of The Simpsons wanted to kill of Homer, they'd have a fight with management on their hands, for sure.

If the thing that makes world design different is the changing nature of it, then, as Susan says (above), it's player effort and involvement that may necessitate the changes.

If a designer doesn't heed the voices of other team-mates -- QA people, the legal team, the marketing folk, etc. etc -- before making creative changes, then the designer may be in as much danger of harming or killing the system as if he/she wasn't given enough creative space. Too much freedom is sometimes as bad an option as not enough.

111.

Agreed, Andy. The easiest analog in the realm of fine art, in my opinion, is orchestral music composition. There was a period of time when some composers tried to dictate, in the score, every single little interpretive moment of their pieces to the players-to-be, but it doesn't take but a moment's thinking to understand that pushing artistic authority that far, so that the composer's authority is inviolate, is contrary to what music played by a group is as a form of (processual!) art; music and some other art forms (dance, virtual worlds) are always in the process of becoming.

112.

Susan>A virtual world is diferent from (e.g.) a novel because it's created collaboratively.

Many expensive works of art are created collaboratively. Film directors and architects couldn't get their creations created without the creative efforts of others, either. Nevertheless, if you want a movie made you go to a director first, and if you want an office block built you go to an architect first.

>The players are as much creators as the "game designer".

No they're not, or at least they're not in the same frame. What the players create is within the context of what the designers create. Actors in a theatre can be exhibiting great creativity, but it's not the same creativity as the playwright exhibited.

>Even if the VW doesn't allow building, the players' performances are just as much a part of the artistic content of the world as the scenery.

In one sense you're right, in that the scenery is created by someone who specialises in creating world models, and that's not likely to be the designer either. However, if you're saying that the players' performances are equal or exceed the designer's contribution, I'd have to disagree. World of Warcraft isn't a success because of the players' creativity, it's a success because of its design and the realisation of that design. Players can indeed be creative, and they can indeed spend all their time performing, but that performance art is not the same art as the designer's art.

>I think this makes "freedom of expression" rights quite tricky. It's easy to imagine situations where the players want to act out a story that the company that maintains the VW doesn't like

It is indeed. It's also easy to imagine that the company should be able to stop them, especially if it's spoiling the game for everyone else, and especially if the virtual world was billed in advance of being a particular kind of world.

>or where the game company wants to do something that will really annoy the players (like flooding their vilage to make a hydro-electric power plant, or whatever).

As usual, I'll point out that if developers don't get to do this, they won't create their worlds. They'll be so hamstrung by competing and contradictory player wants that it'll be impossible for them to evolve their world.

>I can easily imagine a contract in which a game company also agrees not to do certain things.

Yes, this is fine. If a virtual world developer wants to forego some rights or covenant not to do something, that's up to them. They may well get more players that way.

Nevertheless, those designers who don't want to follow them shouldn't have to. Just because others don't want full freedom of expression, that doesn't mean they should also have to give it up.

Richard

113.

Andy Havens>But to enshrine freedom of expression for one group as a "right" implies that either; A) others don't have similar rights

Others do have similar rights, but when it comes to the virtual world they don't trump the designer's.

>B) that there aren't legitimate, reasonable, moral and commercial considerations that might take precedence over designers' creative freedom.

I wasn't saying this. If a designer is being paid by someone else, then the designer has to weigh their own rights of self-expression against their desire for a job. I wasn't suggesting that once a designer had been appointed they could do anything and their employers had no comeback!

>I think that if the writers of The Simpsons wanted to kill of Homer, they'd have a fight with management on their hands, for sure.

Yes indeed. But if the management OKed it, then Homer would die. The viewers would have no say in it whatsoever, no matter how much time they had invested in watching the series and no matter how much the emotional distress at seeing their favourite character crushed by a reversing cement mixer.

>If the thing that makes world design different is the changing nature of it, then, as Susan says (above), it's player effort and involvement that may necessitate the changes.

It may, yes, but that's for the developers or the designer to decide.

Besides, you're talking about "the players" as if they were some kind of hive mind that shares the same opinions, and the designers have to react to that. This is not the case. There are as many opinions as there are players, and these are often at odds with one another. As a designer, you can listen to the word on the street, but you rarely hear one, coherent voice. It's part of your skill as a designer to figure out which ones need to be addressed. In terms of design changes made in reaction to player actions, designers most often have to attend to a few aberrant players who are derailing the virtual world by engaging in exploits or misplays. In general, the players are happy with what the game is like, otherwise they wouldn't be playing. When they do complain or make suggestions, they're as likely to come up with a dud idea than a useful one - many more times so, in fact.

Richard

114.

@Richard: I'm not talking about the players in some sort of "hive mind" way. It's just the plural of the word, "player."

I wholeheartedly agree that player input can often be particularly unhelpful to the design process. This holds true in marketing/advertising when applied to the audience and (often) to non-marketing folks who believe that their consumption of advertising gives them some kind of professional knowledge of the subject. As a professor of mine once said: "The problem is that since everybody can write... everybody thinks they can write." My point has never been that some kind of collective will (or individual will) of players should trump good design.

And I'm not arguing against designers doing the right thing for their works. But if you've got a desire for a "Players' Bill of Rights" in the same declaration as a desire for "Designers Freedom of Expression," you've got inherent conflict. Because, even at some minor level, the players' rights are going to start bumping into designer freedom.

What I object to is not, again, the reality of best-practices in which the ability of designers to do their jobs, work their magic and create their art is upheld. What I object to is the idea that their design freedom be held up as specific and "differently different" than the freedoms of other participants.

It's another one of these areas where language that is too expansive is less than useful and may occlude underlying, much more specific and concrete issues. In the case of designer freedom, even if it was somehow valued in the way suggested, there are times when other factors trump it. As you point out, if your employer says, "The kids love gargantuan robots. Put in some of them big-ass robots," a you have a choice; put in the robots, or quit. If you are both the owner and designer, and a majority of your players indicate (somehow) that your new content is crashing their machines because it requires too much horsepower, you have a choice; freedom of design, or bankruptcy.

Freedom is never complete. And it is often found in discreet actions and reactions, not in an abstract.

Speaking only as one player, I would be less than completely happy to subscribe to a game/world where the designer put his creative freedom above all else.

115.

Andy Havens>if you've got a desire for a "Players' Bill of Rights" in the same declaration as a desire for "Designers Freedom of Expression," you've got inherent conflict.

Well, given more time we might have been able to come up with something along the lines of "Players and designers both have rights, and what those rights are depends on the virtual world". However, it would have taken some serious discussion to get that far, and I think some people may have held out against it indefinitely anyway. The statement we now have for players rights (which is NOT the one I thought I was signing up for) is already several steps too far for some virtual worlds.

>Because, even at some minor level, the players' rights are going to start bumping into designer freedom.

What they do is define the baseline. In my earlier example, I said a minimum bill of players' rights might be that they have the right to stop playing. Designers who don't want them to leave wouldn't be able to make them stay. Then again, in a virtual world set up for therapy, players might reasonably be obliged to spend a certain number of hours there every day. A virtual world set up as some kind of intense role-playing experience might want to be able to get players to sign a contract promising they won't leave "because drop-outs spoil the game for everyone else", say. If you know in advance that it's a game, and you want to commit to playing it, perhaps even the "if you don't like it, don't play" line might be up for negotiation?

Whatever the player rights are, the designers have to use those as a baseline. The issue is that some of these rights make it impractical to design a virtual world that would satisfy them. In that case, no matter how honest and well-meaning are such attempts to protect players from capricious designers, the effect would be to remove virtual worlds from the picture.

>What I object to is the idea that their design freedom be held up as specific and "differently different" than the freedoms of other participants.

Well, it is, in the sense that those freedoms of other participants don't even exist unless the designers have their freedoms guaranteed.

Suppose someone watching a baseball game was hit by a ball and injured. Should they not have the freedom to watch a baseball game without being hit by a ball and injured? Well put like that it sounds very reasonable, but in practice the changes to the laws of baseball or the layout of the stadium that would result from implementing this freedom would be so onerous and restrictive of the game that it would lose its appeal as a spectator sport. If the restrictions were too tight, then the result might be that there were no professional baseball games played for fear of being sued millions for injury. Then, people would still have no "freedom to watch a baseball game without being hit" because there would be no baseball games to watch.

>In the case of designer freedom, even if it was somehow valued in the way suggested, there are times when other factors trump it.

Yes indeed, but it's when the wrong "player rights" always trump it that concerns me.

>If you are both the owner and designer, and a majority of your players indicate (somehow) that your new content is crashing their machines because it requires too much horsepower, you have a choice; freedom of design, or bankruptcy.

Well, you have the freedom to shut the virtual world, too - unless that's something that players have rights about, too.

>Speaking only as one player, I would be less than completely happy to subscribe to a game/world where the designer put his creative freedom above all else.

No-one is making you play that designer's game. As it happens, there was an early virtual world called MIST which pretty well was run like that - the guy in charge would make changes capriciously, vindictively, randomly, whimsically, vengefully - and people played it because it was part of the game. They found it fun.

If you don't like the premise well the answer is simple: don't play. However, even if the vast majority of people don't want to play a certain kind of virtual world, that shouldn't mean those that do get a set of universal "player rights" dumped on them that mean no-one gets to play them. If the virtual worlds aren't in themselves harmful, what does it matter to you whether people play them, and why should the rights you want in the worlds you do play have any effect on the rights that players of other virtual worlds don't want in order to have fun?

Richard

116.

Richard: Whatever the player rights are, the designers have to use those as a baseline. The issue is that some of these rights make it impractical to design a virtual world that would satisfy them.

It is highly unlikely that anyone will try to enforce such "rights", except perhaps in terms of general privacy laws etc...

A more realistic alternative for the industry is to define a baseline EULA/TOS. A standardized EULA/TOS would mean that players would know what to expect from a world without having to read each and every EULA/TOS they encounter. The benefit for the industry is that a standardized EULA/TOS would stand better in court, over time, as it would represent well-tested "common practice". Most games could do well with a standardized EULA/TOS, and only games that really needed it would want to deviate from it if that meant an opening for frivolous lawsuits.

What good is an EULA/TOS for the player when the operator claims the right to change it whenever he feels like? Certainly, the player should have some rights?

117.

Ola Fosheim Grøstad>It is highly unlikely that anyone will try to enforce such "rights"

How unlikely is "highly unlikely"? Say, one in a hundred million? In that case, we can expect one fairly soon...

>A standardized EULA/TOS would mean that players would know what to expect from a world without having to read each and every EULA/TOS they encounter.

This does have its advantages, but it would have to be absolutely rock solid, because if it weren't then it would only take one person to find a loophole in one world for it to be broken for all of them.

>What good is an EULA/TOS for the player when the operator claims the right to change it whenever he feels like?

What good is it if the operator can't change it to plug some loophole?

Richard

118.

How unlikely is "highly unlikely"? Say, one in a hundred million? In that case, we can expect one fairly soon...

It's as highly unlikely as it is unlikely that a peaceful christian western country would volunteer for warfare in the islamic arabic region in the name of western democracy... oh wait...

What good is it if the operator can't change it to plug some loophole?

Yeah, I thought about that, which is why I posed it as a question. Plugging a loophole is different from changing what the user signed up for, though.

119.

"A. Industry
B. Academics
C. Players

Three Estates, like Nobility, Clergy, and Commoners. Odd how patterns recur in history."

I think you're right. Industry rules by Divine Right over the peasantry of players. Any chance I can buy an indulgence from an academic? ;)

120.

First off, I had exactly the same reaction Mike Sellers had. Make of that what you will.

Reading through the list of resolutions, I was very surprised to see nothing that speaks to the ownership rights of content creators as an important matter of public policy toward virtual worlds.

Was anything like the following proposed or debated?

"To promote the development of new virtual worlds, it shall be understood that these worlds are the sole property in principle and under law of their creator(s), and that terms of service allowing the usage of the ones and zeroes comprising their dynamic data do not constitute a transfer of ownership rights."

Please note that this is not just a statement supporting commercial rights -- it's also a recognition of artistic rights. I would think this would have been considered a necessary supporting plank along with "Fair use may apply in virtual worlds that enable amateur creation of original works".

Is it known whether a policy suggestion of this type was discussed?

--Bart

121.

Actually, Bart, that's been debated many, many times in many, many places. While I understand that virtual world developers have good reason to believe that adopting this would be straightforward or common sense, many others have differed, with the legal academics leading the way in showing that property rights surrounding virtual items do not (and, probably, should not) fall easily into an "access to use" model such as you describe. I'm guessing that at the Ludium most of the folks there knew this to be an outlook that would not receive broad support (though I could well be wrong).

Thanks to all again for all of the helpful comments. I'm endeavoring to improve the platform by adding explanatory paragraphs with the help of several people who are giving their time. I'll provide an update as soon as I have one.

122.

Thomas, I truly am not trying to stir up controversy, but I think the comments by Bart and by you highlight the incredible gap between the creators of virtual worlds and those who use them. To any developer, what Bart said is not only common sense, it's a statement of fact. I don't see any way it will change: if someone tries to force a policy on developers that isn't good for their business, those people will simply be ignored. If someone somehow managed to legislate this, developers would close down their worlds or move their operations offshore.

What amazes me though is that some academics and others -- users of the same virtual worlds that would not exist without the developers' efforts -- see this entirely differently, and see some rational basis for "access to use" being a mere temporary impediment to some other online-property-rights regime.

This is more than a well-worn debate. It may well be the crux of why developers don't take academics seriously and why the two communities often seem to be speaking different languages. It's difficult to say this without sounding haughty, but from the developers' POV, this sort of thing just moves academics into the "easily dismissed" pile. For developers, the academics and others who would assert some degree of ownership over a virtual world are merely the most recent in a long line of self-entitled groups to come along. Long before virtual worlds became an acceptable area of study, various groups from anti-violence or parental rights advocates, guilds that perceived themselves as powerful, right down to those who shout on the forums or who think their type of character is too weak, have all agitated for one kind of change or another.

I know that academics believe they have a deeper, more rational basis from which to argue, but again, from the POV of developers, users who propose to take away inherent rights (e.g., artistic rights as Bart outlined) are ultimately just irrelevant. I also know there's a lot of good information and knowledge that academic study of virtual worlds can bring. I want to see commercial and academic efforts grow closer, not grow the rift between them. Unfortunately, I don’t believe preemptory statements like the ones above help that effort.

And FWIW, if you're wondering why more developers haven't chimed in on this topic, if the discussions I've had are any guide it's because they've already dismissed this effort as something that won't affect what they do, and in the process reduced some of their interest in the academic POV and contribution overall. That’s not something I want to see happen in the virtual worlds industry – or even just here on Terra Nova.

123.

I'm not sure why you insist on rehearsing arguments that we have had times before (and in other channels), and again with the dismissive and demeaning tone, Mike. I'm sick of the broken record. On this topic, you pretend to be moved in response to reasoned argument, but then you're just...not, I guess. In some new post you reiterate everything that you started with. I'm not really interested in fleshing it out for you again. Suffice it to say that many academics have, to me, the patience of Job in dealing with people who think that property rights must always be simple, exclusive, and unitary, and who continue to deny the demonstrable truth that the law recognizes (in specific, contextual ways) how use shapes social expectations, which are after all what the law strives to reflect.

The deepest irony is that, on this issue, it is the academics who are being pragmatic, just like an open-minded practitioner would be, and it is (some) developers who are wedded to a theory, a transcendent model that they hope will prove the salvation for their interests. The world doesn't work like that.

124.

Oh, and by the way, Mike, your tiresome habit of claiming to speak for all developers is increasingly grating, in particular because you put it to the service of putting down all academics. You may note that I resist doing the same. I think that it's quite revealing that the broad generalizations of interests, the three-tone color scheme (academic/player/developer), the talk of group-wide irrelevance, etc, are all coming from you in this discussion. It's particularly ironic that you keep coming back to a discussion about an effort that you consistently claim has no prospects. And don't even bother to say that it's because you would like to see it succeed. The contradiction goes all the way down.

If all this is truly what you think, then you're the last person I would trust to speak for the industry-to-be, Mike, because it's so transparent that your interests are the established ones (which is why so many developers don't even count as developers to you -- to say nothing of the other content providers, institutions, etc, that are now involved [see above]). Go ahead, argue to turn every MMO into a truly Micky Mouse Operation, animated by a zealous commitment to control over all the toys, toys that users can temporarily play with but then must leave behind. You might even convince a judge or two along the way. I'm sure that folks will come flocking to spend time in those worlds (that's no sarcasm actually -- I really am sure they will), but they seem quite unlikely to be places where anything creative or interesting will happen, and eventually, I'm guessing, there will be fiddling while they burn.

125.

Thomas Malaby wrote:

You might even convince a judge or two along the way. I'm sure that folks will come flocking to spend time in those worlds (that's no sarcasm actually -- I really am sure they will), but they seem quite unlikely to be places where anything creative or interesting will happen, and eventually, I'm guessing, there will be fiddling while they burn.

Nothing interesting or creative can happen in worlds where the developers maintain they own the content in the world?

That is one heck of an odd claim given that nearly every single feature of virtual worlds as we know them today was invented in exactly that kind of world.

--matt

126.

Thomas: I'm not sure why you insist on rehearsing arguments that we have had times before (and in other channels), and again with the dismissive and demeaning tone, Mike. I'm sick of the broken record.

I'm sorry you've chosen to read my comments in that light. I tried particularly to be clear and in no way dismissive, hoping you (and others who share your POV) might see things a bit from the other side. Apparently I was unsuccessful. If the attitude you evidence in your comments above is representative of other academics and/or of others from the Ludium in your role as Speaker, I think you've only proved the points I was trying to make about the separation between developers and academia, and the ultimate irrelevance of many current academic efforts from a commercial POV.

The deepest irony is that, on this issue, it is the academics who are being pragmatic, just like an open-minded practitioner would be, and it is (some) developers who are wedded to a theory, a transcendent model that they hope will prove the salvation for their interests. The world doesn't work like that.

This again goes to the different points of view and different languages we're speaking. As long as you remain in that hard-line stance, all I can do is shrug and say, "call me when things change." To your later comment, it isn't commercial developers who have to convince "a judge or two" of anything. We're operating in the way things are now, not some hypothetical future.

Oh, and by the way, Mike, your tiresome habit of claiming to speak for all developers is increasingly grating, in particular because you put it to the service of putting down all academics.

You are mistaken; when I've talked about the opinions from the commercial POV, I have tried to write carefully to couch my comments in terms of my own observations and those of the developers with whom I have spoken. I don't represent anyone other than myself (and my company). That said, if you think I'm the only one maintaining this POV you're equally mistaken. Of those developers who do post here, I feel pretty safe in saying most if not all share the same POV in this matter (see Matt's post above for one); the rest aren't posting because they have long since dismissed academic involvement in or discussions of virtual worlds as a waste of time.

Now from your comments it may be that you may think there are a large number of commercial developers who disagree with the general points that I'm talking about. Okay. I don't know who they might be, and I don't think you do either (why aren't they posting here?), but best of luck with them.

If all this is truly what you think, then you're the last person I would trust to speak for the industry-to-be, Mike, because it's so transparent that your interests are the established ones (which is why so many developers don't even count as developers to you -- to say nothing of the other content providers, institutions, etc, that are now involved [see above]).

First, I'm not sure you have a clear understanding of what I think, or have read clearly what I've said, given your reaction here.

Nor am I trying to be the voice of industry; I'm just one of the very few left who are a) involved in the development of virtual worlds and b) find interactions with academia and discussions on places like Terra Nova remotely valuable. Matt and other developers who choose to post here can certainly speak for themselves. Speaking only personally, shrill responses like yours do nothing to enhance the viability of these discussions for me. I continue to not want to see Terra Nova become a purely academic outpost with little actual effect on virtual worlds, but perhaps I'm mistaken in that.

As to other "content providers, institutions, etc," they are important in various ways to the virtual worlds industry. But the industry that has grown from almost nothing a decade ago to a multi-billion dollar one now, the one that makes these worlds exist at all is definitely what I'm focused on in this discussion. These other groups -- ontent providers, etc. -- are in no way empowered to take away the rights of developers. They, like academics studying virtual worlds, are nowhere without a virtual world to work within.

I was hoping that my comments above could help bridge the gap between commercial developers and academia (as broad, not exclusive, groups). Clearly I haven't been successful. Here's the unfortunate bottom line that I see emerging from this discussion: the next time someone outside of commercial development, especially those who would take away the rights of developers, whines about not having greater access to virtual world data, being able to participate in virtual world design, etc., remember this item.

This item, sadly, shows why that is so often the case. It exemplifies much of what causes developers to roll their eyes at pronouncements from academia and get back to work.

127.

That is one heck of an odd claim given that nearly every single feature of virtual worlds as we know them today was invented in exactly that kind of world.

Which features? Chat? D&D? Eh?

128.

Give me a break, Mike. You don't want dialogue. You have your stance, and it is immutable. You want to see the virtual world community as if it were still 2001. No one has said "take rights away from developers," but of course that's how you see it when in your mind it's a zero-sum game. If this irrelevant effort keeps bothering you, then do a post about it somewhere, even here, but please stop saying the same things over and over in my thread.

And I don't think it's any surprise that I lost my patience with you, since it is incredibly frustrating to believe you've had a rational discussion with someone that has forged common ground only to see yet another statement driven more by defensiveness than reason (the pragmatic position is the "hard line" one? Are you reading what you're writing?). And it is laughable for you to suggest that you have been trying to be constructive, when all the while you've been arrogantly lobbing attacks at all academics. In short, I have no interest in running around and around the mulberry bush with someone who has his head buried in the sand (to create a very strange mixed metaphor).

After all, what your comments show is that you don't even respect the claims of academics about virtual worlds enough to counter them. You just point in a vague way at how crazy to you they are and say "See? It's no wonder no one listens to you." And you're surprised that I find that insulting?

129.

Well Thomas, I've tried in multiple posts now to bring up substantive points for discussion. You instead attack my tone, or say I'm looking backward. I see no point in operating at that level.

And really, I'm not being defensive; I'm not sure what makes you think that, but I have nothing to be defensive about here.

I'm trying to point out how the unilateral statements about virtual worlds put forward by academia in discussions like this one create increased distance between them and commercial developers. Clearly I'm not getting that message across.

You know, I have for some time been thinking about a few posts more related to design and development to add to the mix here, but I'm really not sure there's a point. Maybe Terra Nova is best left to academia and others who want to comment but who aren't actually creating new worlds. I have to give this some thought, as your reactions here have given me a new perspective: perhaps I was foolish to think there could be substantive bridges between developers and academics after all.

130.

That's funny, I was thinking the same thing. Then I remembered that I've had conversations with many developers -- commercial/non-commercial, large/medium/small, text-based/graphical -- who have stayed in touch with me and who seem quite comfortable embracing the different contributions to virtual worlds that their different constituencies make.

You haven't been bringing up substantive points for discussion; what points you've brought up have been to you non-negotiable. The exception is in the early going here, when I hoped that we had worked out some things that we agree upon. But as I said, you revert back to views that are closer to your position and interests.

The only unilateral statements I'm hearing are coming from your end, not mine. Most of the people I know are just trying to make sense of everything that's happening in virtual worlds in a way that recognizes the multiplicity of their contributors. Does that mean that the god-like makers' position is shifting? Probably. If CCP's shift to player oversight means anything, even as a symbolic gesture, it means that the terms of legitimate governance are changing. I'm sure some developers would rather not confront the implications, but, again, there are many (perhaps not "commercial" ones, for the most part) who will. I'm sorry you feel the way you do, Mike, and I wish we could have had a discussion, but as I said I'm just not willing to go through the same argument multiple times when you insist on insulting the academic point of view the way you do.

131.

No discussion is possible when anything other than agreement is seen as an insult.

132.

/Sigh

The point -- yet again -- is that you do not refute the counter points that have been made, time and time again, to the views to which you regularly return. Frequent flyer miles, for example, have come up in other contexts where we've had this discussion as deeply problematizing any straightforward "access to use" model of property rights in virtual worlds. The disagreement isn't the insult -- it's the dismissal of the claims as not even worth engaging, on top of the blanket claims about academia/industry, etc, etc.

133.

@Malaby and Sellers: FWIW, as one reader looking at the whole thread, I think the bold strokes here are that you have different opinions/perspectives on a major issue, and you aren't going to see things the same way on this issue any time soon. And for my two cents, I think you both have good points. I'm just looking at this as a man on the street, not a scholar or industry expert.

Mike's right that people who spend money creating virtual worlds (which means, mostly, games, so far) for profit are going to want to protect their investments and (usually) maximize profits. No surprise.

And Thomas is right that We The People (both as consumers/users and as part of the government) should try to promote justice and insure domestic tranquility.

No surprise so far. The synthesis of these two sometimes opposing viewpoints is possible. When the developers/investors have an "enlightened self-interest" to be just and fair, they will be encouraged to do so. Still no surprise... By some combination of getting the mindset of the governing to see that the People need some protecting and/or getting the People to vote with their dollars in terms of what they will put up with/accept from VW makers, a fair middle can be found. (Of course it's hard to do in practice...no surprise.)

134.

Tripp: By some combination of getting the mindset of the governing to see that the People need some protecting and/or getting the People to vote with their dollars in terms of what they will put up with/accept from VW makers, a fair middle can be found.

The latter will never happen as they already are buying, but the first might. Not in terms of virtual worlds, but increasing sales of digital assets and high impact online services will eventually bring about some kind of generic "fairness legislation" that probably will affect worlds. Because, at some point The People will be fed up with not owning a single copy of any work and having no essential rights when subscribing to an online service. Of course, lobbyists could succeed in getting entertainment excluded from such laws. My guess is that this is going to be the real long-term battle, to get commercial entertainment covered by the same future "digital rights laws" as other content/services.

135.

Ola wrote:

Which features? Chat? D&D? Eh?

In the context of virtual worlds, essentially every feature, from chat to movement to the ability for users to create content to digital asset sales to RMT to elaborate social constructs etc to 2d to 3d, etc. Almost every single feature that defines virtual worlds has come from the worlds that Thomas poo-poo'd. Further, they're really the only ones that matter in terms of the market given that well over 99% of people using virtual worlds are using these types of worlds.


If CCP's shift to player oversight means anything, even as a symbolic gesture, it means that the terms of legitimate governance are changing.

Player governance has happened in virtual worlds for the last 15 years, at least, and in -far- more substantive forms than the PR exercise that is CCP's "player oversight." Now granted, most of what I'm thinking of (LambdaMoo for instance) had much smaller playerbases than CCP but is there any good reason to view one developer's PR exercise as an example of a sea change (particularly given that in today's context, CCP represents barely more than a rounding error in virtual worlds), or are you seeing what you want to see and drawing conclusions from a single, small developer's actions?

Personally, what I see as pragmatic is simply understanding that developers/publishers will either continue to control the property they create (even in the case of something like Second Life, where Linden tells you you own your stuff until it's inconvenient for Linden to continue to maintain that stance) or most developers/publishers will move outside of the legal regime that's trying to make a grab for their art and property.

This is an entirely pragmatic viewpoint as far as I'm concerned, and history shows us that that's exactly what will happen. In fact, we've already discovered that putting undue burdens on game developers will result in those game developers relocating. See the industry that develops and publishes games upon which real money are wagered (called by some the 'gambling' industry).

I am not sure you understand the burden that giving players "ownership" (whatever that means to you) over things created by the developers (as opposed to IP created by players) would impose on almost all developers/publishers. Catastrophic consequences for us. I'm not particularly worried though as I think doing so makes little sense and I have at least some small amount of faith in the rationality of our justice system.

--matt

136.

Well, there you have it, Matt. The difference, of course, is that while I agree that there may be dire consequences for some virtual worlds, and more specifically some business models for them, I am not arguing for what ought to happen based upon the interests and position of only one party here. If many other "creative" industries have taught us anything of late, it is that there is room for something other than a top-down model of content delivery and access. Will some makers flee? Sure. Will smaller, more flexible, more innovative makers that develop worlds which take care of the makers' interests as well as its various contributors come along? Almost assuredly.

As for CCP, its policy change (whether just talk or not) is potentially a seachange precisely because it is a relatively large commercial world that has opened the door to a different basis for its legitimacy to act. Up until that point, LambdaMoo and the like struggled through very different principles of governance, as you say, but commercial worlds were assumed, by their nature, to operate under a different system of governance, one that was by fiat, essentially, with only the "market" as a constraint.

137.

Yikes Matt. Just about all these features have been taken from other contexts, many from open-sourced software (unices+++). Not a lot of creativity can be seen in the commercial virtual world sector (or the game sector currently). What virtual world creators have done well is to synthesize and polish concepts borrowed from nearby design-domains (multi-user systems, adventure games, roleplaying systems, trading cards etc), but this has happend in all kinds of MUD-like systems.

True creativity depends primarily on how much voice single individuals are given, not whether the system is open or closed. Smaller groups of influence makes the survival of truly creative efforts more likely, though. 1 person: "I can do this". 2 persons: "we might consider it". Many people: "that's not how it is supposed to be done".

While I don't agree with Thomas' position, it is possible that a well done creative system where players feel that they have ownership and where smaller subgroups of players are allowed to make substantial additions could enable more creative sub-systems. The problem is that nobody knows if such a system is possible without killing the overall system, making it a very hypothetical position at the moment.

Of course, the position of an anthropologist is easy to predict: creative efforts happenings as a cultural and evolutionary processes, rather than as grand ideas conceived by individuals. ;-)

138.

Two different points here.

First, CCP's "player oversight" is not a sea-change in how game worlds are governed. Yes, representatives are being elected by the players, but their sole function is to audit CCP's operations from time to time to make sure the company isn't cheating. That's it. This in no way changes the assumption that, as you say Thomas, commercial worlds by their nature operate "by fiat, essentially, with only the "market" as a constraint."

The only example I know of of a virtual world that does not operate entirely by fiat is A Tale in the Desert -- which has about 1500 players. Perhaps there are a few other games or worlds with a smattering of users, but they are in no way a force in the industry or virtual world community. So talk of content ownership by players, etc., as a current occurrence is baseless in the real world. You may believe that this will change. Okay, that's fine. It still has no effect on how virtual worlds are developed today, and does not demonstrate why anyone creating virtual worlds should care.

Second, there's the larger issue of how developers and academics (as broad-stroke groups) interact, if at all. I'll tilt at this windmill one last time.

Thomas, you said "I am not arguing for what ought to happen based upon the interests and position of only one party here." I disagree. I understand that you are sincere and do not see the perception that you -- and the "Congress" from the recent Ludium -- are doing precisely that. From your comments, you see that group as being diverse and at least somewhat representative of stakeholders in virtual worlds. I'm trying to tell you that from another important POV, that of commercial developers, that "diversity" is illusory. There is a broad-based perception, I feel safe in saying, from the POV of many developers that in many cases academics are the latest in a line of self-entitled groups making pronouncements about how virtual worlds should be without any standing to do so. Yes, that's dismissive and arrogant. It's also a common view. You can choose to disbelieve this, ignore it or kill the messenger, but that doesn't change the prevalent perception.

I'm not trying to speak for all developers by any means, but I'm 100% confident that what are seen as preemptory attitudes and statements in academics and other non-developers (rarely spoken outright, though a few such comments have poked through in this discussion) are the very ones that cause developers to dismiss academia as an impediment or an irrelevancy rather than seeing them as a potential resource (and, given this discussion, I'm closer to that feeling than I ever have been).

You're probably going to say this is revisiting the same old issues, that it's arrogant and insulting. So it goes. All I'm saying is that you really appear to be unaware of how academia is viewed by developers, and they are irrefutably the ones in the driver's seat. You may not like it, but that's the way things are.

139.

Context matters. If you expand the context far enough, Ola, than there is virtually nothing done that is particularly original. I mean, one could poo-poo the moon landing in the same way by saying, "What's the big deal? People have traveled from A to B before."

Within the context of virtual worlds, it's all pretty much been pioneered by the text and graphical virtual worlds (whether you want to call them MUDs, MMOs, virtual worlds, whatever) in which the devs are the owners.

--matt

140.

In light of the back-and-forth between Thomas and Mike, it strikes me that the "Declaration of Policy" might be better viewed as a set of "best practices" that a substantial subset of users would value.

I know that I am putting this debate through the lens of my own field of financial market regulation, but the parallel seems quite strong: in a frictionless world, firms would do all of the things their investors want, without regulation (full disclosure, good governance, etc.), because otherwise investors wouldn't give the firms their money. Mike's argument then becomes something along the lines of "game developers will do this only if there is a sufficient market for subscribers who want virtual worlds that meet these standards."

However, frictions typically arise that make corporations too unresponsive to their investors, and regulators feel they need to step in to demand that the firms do what the investors want. So Thomas's argument is akin to saying "I think the frictions are high enough to keep developers from doing the right thing."

So my question to Mike is: which items in the declaration do you believe actually would attract enough revenue for game developers that they would be willing to implement them? Which would not?

My question to Thomas is: what frictions do you see that would keep developers from adhering to these policies from simple self-interest?

As a final observation, academics often add value to government and industry by discovering new policies and practices that *could* be implemented. Naturally, academics don't have the power to impose them. But the good ideas either get taken by industry directly, or get imposed on them by governments that *do* have the power.


141.

Thomas Malaby wrote:

If many other "creative" industries have taught us anything of late, it is that there is room for something other than a top-down model of content delivery and access.

I presume you're pointing at the music and movie industry here? If so, I don't think there's much there to back your POV. It's pretty clear that the publishers and artists own that content and that they are able to use the legal system as a weapon to strike at people who steal it. Whether this is in the best interests of those industries is an entirely different question. I also don't see a lot of parallels there. Music, movies, etc are mainly products. Virtual worlds are mainly services.


Well, there you have it, Matt. The difference, of course, is that while I agree that there may be dire consequences for some virtual worlds, and more specifically some business models for them, I am not arguing for what ought to happen based upon the interests and position of only one party here.

I'm not arguing from the interests and position of one party either. I'm arguing for the interests of most virtual world users since it is in their interests to allow developers to make the sort of worlds that they enjoy.

Almost all virtual world users spend their leisure time enjoying virtual worlds where there is no serious dispute over who owns the service and the products of the service. I think it is, therefore, quite against the interests of almost all virtual world users to upset that balance and risk killing off the services they enjoy so much.

Most people are just looking for entertainment (as that's what virtual worlds are best at). The % of virtual world users whose interests are represented by anything other than allowing developers to continue to provide that entertainment is vanishingly small.

--matt

142.

Matt, I disagree. First of all, MUDs primarily evolved as open-sourced entities. Many with powerful building capabilities for users. Some player-run. Second of all, context is not the most critical factor when determining creativity. Function and form is what matters. Most of the features you see in MUDs have been seen in other systems, similar function and form. Putting Thomas' restictions on creators wouldn't have limited creativity or the feature-set in any way. It's not like society is in debt to world creators, which you seem to imply.

In the real world you cannot sell items to a customer and not assigning them any rights. I don't see why virtual world operators should be able to do that. This "mal-practice" is begging for legislation.

In the real world you cannot throw out a customer from your restaurant half-way through a meal for no reason. I don't see why virtual world operators should be able to do that.

The fact is that the game-industry is populated by infants of all kinds, on every level, operators don't want to acknowledge the responsibilities that comes with selling assets and services to customers. This will change, eventually. If not in the US, in other countries. If some countries start legal processes against virtual world operators, the pressure will increase in countries that does not.

There is also increasing pressure for IP-banning on the ISP level. This is already done with kiddie-porn sites. This might be done with gambling sites. The "we'll run our operations from abroad" is not really the best long-term option for big virtual world players. It will hurt their business and their brand. Besides, credit-card companies might want to impose national bans on business that are illegal in a local region. They already do this with gambling sites here, AFAIK. (You can't collect gambling debts)

I sincerely doubt that Matt and Mike represent all developers in this matter. While most developers probably think that the OP is going to far, I am sure that some business-people running mid-sized worlds see the benefit in having a commonly agreed upon standard for their service. Basically creating a border between the serious operators and the shady operators, establishing trust through commonly accepted standards.

The number of shady world operators is bound to grow in the coming years. If you aren't big, you want to look trust-worthy.

143.

I'm also interested in how Thomas and Mike might answer Robert's question.

144.

@Mike: You're missing the point about CCP, which I've made several times. You may disagree, but my point is that once CCP *does* this it changes the landscape of expectations for customers for virtual worlds. Certainly not entirely, and maybe in a way that ultimately goes nowhere. But the point is the conversation and (market) expectations are potentially different after they assert a different relationship of oversight with their players (pretty much irrespective of how much they follow through on it).

I'm also staggered again by the assertion that it is I who am arguing for what one party to virtual worlds wants. The statement from the Ludium is a testament to the fact that there were multiple points of view in evidence, if not all the ones you'd like (and, as I've said, they are not all things for which I voted, as we might expect). The lawyers had different things to recommend than I did, as did the designers, academics, activists (for lack of a better term), entrepreneurs, content creators, etc. I don't see how we can have a discussion when the world that matters to you divides itself into large-scale developers, academics (who are apparently irrelevant because they say things the developers don't want to hear), and players.

[The following is by way of beginning an answer to Robert's question.]

Should virtual world developers be able to make worlds where they control everything (when play time is over, everyone put down your toys)? They should -- they should be able to make all kinds of worlds that challenge their participants (and their participants should be able to challenge them). But as I see it the sticking point is that some makers seem to believe that this must be the default case; that if this isn't the starting point, then no worlds get built, etc. In fact, in my opinion it is the problem of assuming that this expectation is (or ought to be) reflected in all the participants' shared assumptions (or in a legal framework that surrounds them) that can get us into a real mess, given how those assumptions are changing all around us. Instead, makers, it seems to me, would be better served to be in a position where they explicitly make an understanding clear in each particular case (and this informs one of the planks -- about the EULA -- above). Of course, in my opinion they would also be wise to understand that the very persistence and open-endedness of these environments makes the emergence of social phenomena that exceed their anticipated controls not only possible but likely; sorting out the consequences of that can always get messy, and rewards a nuanced approach in many cases (compare Blizz's knee-jerk response to the gay-friendly guild recruitment).

I guess, in the end, it strikes me as a situation where some money has been made, some interests have been established, and -- as in throughout human history -- this leads to efforts that, if they aren't retrenchment, at least reflect a retreat from the taking of chances and trusting to innovation that marked pioneers of the past. I'm not surprised, really, as it's a very old story, but it seems to me that virtual worlds are better served by a more enlightened view, one which seeks to find a balance between the interests of those involved in them. As I've said (way above), this doesn't mean that the makers of these worlds are suddenly powerless. It's simply a pragmatic acknowledgment of a reality that things have changed to a certain degree. Virtual world makers will always have command of a distinctive art, and I don't doubt that the statements they make in and through their worlds will be the core influences in what happens in them for all time. It is the power of their art that should establish this influence, however, not a default understanding that shuts down certain uses and possibilities.

145.

Robert: So my question to Mike is: which items in the declaration do you believe actually would attract enough revenue for game developers that they would be willing to implement them? Which would not?

The ambiguous and contradictory nature of the Declaration statements makes your question difficult to answer, but I'll do what I can.

Here are the statements from the OP with my comments:

  • A self-governance group of virtual world stakeholders should be formed
    • I'm still not sure what this means, so it's difficult to speak to it in terms of best practices or revenue generation. If this is an industry body that has oversight on virtual world functions, my question would be what benefit does it confer to those who sign up to be part of it? If it's something else, like a player-based governance board to provide oversight on virtual worlds, it's a non-starter from the commercial POV. This statement could mean something else altogether too.
  • A players’ bill of rights should be drafted
    • Again, by whom, with what authority, and to what end? Without knowing those things, to say nothing of what such a BoR might say, it's difficult to respond to it in terms of commercial adoption. But, unless it was voluntary, spoke to customers "rights" in terms of customer relations like say JetBlue's does, and not in terms of legally binding property rights, it will be ignored by industry as being too intrusive and expensive. Unless there's a problem in the market that is perceived to be serious, I don't see any sort of "Player's Bill of Rights" as being relevant to or adopted by significant commercial worlds.
  • A universal age verification system should be created to support the individual rights of all users
    • As I said much earlier in this discussion, this is infeasible technologically and socially. You would need incredibly invasive technology to create universal age verification. That said, I believe industry would respond well to a universally accepted method of age verification that, while not foolproof, would be seen as sufficient and generally accepted (like "two forms of picture ID" level verification in the physical world). The reason this would likely be accepted is that it would allow virtual worlds to not have to worry about re-inventing the wheel, and would limit any potential liability since they had followed the generally accepted method.
  • Virtual world designers should have freedom of expression
    • Well sure. They have it now and there's no reason they should lose it (though they also deal with national constraints in places like Germany, Australia, and China, so they don't have complete freedom of expression).
  • Virtual worlds should include plain-language End-User License Agreements (EULA) to enable all individuals to understand their rights
    • I believe most if not all virtual worlds already have this as well. This is a good candidate for a "best practice" since some operators might think it's in their best interest to cloud their TOS with difficult language, but in general I think this is a pretty easy one.
  • There are different types of virtual worlds with different policy implications
    • My favorite of the bunch: it basically says, "all the other statements are moot." Of course industry will go along with something like this, since they can point to it and trump any other policy statement.
  • Access is critical to virtual worlds, so net neutrality must be maintained
    • I'm not sure commercial operators would support the first part of this, as it could open up regulation. Is access to virtual worlds critical in the same way that access to heat and electricity is? Do virtual world operators become liable for someone not having Internet access? The second part having to do with net neutrality is an easy and worthwhile one for industry to support.
  • Game developers shall not be liable for the actions taken by players
    • Well I'm pretty sure that's the case now, but yes, if it became likely to change I believe developers would fight for this.
  • Fair use may apply in virtual worlds that enable amateur creation of original works
    • A tough one so briefly worded, but in general I think commercial worlds would support this.
  • The government should provide a comprehensive package of funding for educational games research, development, and literacy
    • It'd be nice, but I'm not holding my breath. From a commercial POV, any time and money spent supporting this is time and money wasted; it's not a good bet for getting developers to campaign for something like this, but I'm sure most would like to reap its benefits!

I hope that answers your question, Robert.

Thomas said: ... it seems to me that virtual worlds are better served by a more enlightened view, one which seeks to find a balance between the interests of those involved in them.

What "more enlightened view" or balance do you imagine might exist? One bottom-line sort of answer could be along the lines of "it took $25M to make this game. Unfortunately it didn't sell well and you are one of only 10,000 players. This is your invoice for your balanced share of the cost. Please pay us $2,500." But I'm pretty sure that's not the kind of balance you're thinking about. Unfortunately, I don't see a balance point that requires developers to shoulder 100% of the risk and users an infinitesimal fraction of the cost, and still removes ownership rights from the developer.

As I've said (way above), this doesn't mean that the makers of these worlds are suddenly powerless. It's simply a pragmatic acknowledgment of a reality that things have changed to a certain degree.

What examples would you give of how reality has changed with regard to virtual worlds? I don't see any evidence of this at all.

146.

"Within the context of virtual worlds, it's all pretty much been pioneered by the text and graphical virtual worlds (whether you want to call them MUDs, MMOs, virtual worlds, whatever) in which the devs are the owners."

I didn't even know that the muds, mushes, etc were commercial enterprises with developers that owned stuff. I thought they were run on university computers and the universities were the real 'owners'. I clearly need to read some history.

147.
Unfortunately, I don't see a balance point that requires developers to shoulder 100% of the risk and users an infinitesimal fraction of the cost, and still removes ownership rights from the developer.

Right, Mike, sure. That's exactly what I was saying. /rolls eyes. You're basically raving at this point. Check my posts; this is not in any way what I have ever said. I can only think that you're just seeking to score cheap rhetorical points at this stage. Either that or you really can only see the virtual world landscape according to a few categories. I'm done trying to talk to you about this, since you're so willing to misrepresent what I'm saying just to conjure up some ridiculous strawman.

148.

I realize that I should at least try to count the ways that your paragraph misrepresents the issues and my position.

First, as I said far above, property rights are not unitary and exclusive. Just because *some* participants in *some* virtual worlds may have some complex property interests in certain things, doesn't mean that, *even in those virtual worlds*, the developers' property rights wouldn't exist.

Second, my comment to which you are referring included the important point that there are many different kinds of virtual worlds (also a plank), and that this would include worlds where a high degree of control is established by the makers (with important points about establishing these expectations and not assuming that this is the "default" legal or social assumption).

Third, players do invest in virtual worlds. They invest their time, at least, and this accumulates in objects, social relations, networks, competencies, etc. So, leaving any question of property interests *utterly aside* for a moment, it is an error to suggest that the failure of a world costs them nothing. So, players both expend costs in virtual worlds, beyond any fees, and bear some risk. The difference between how much risk participants and makers bear may be *gigantic*, or it may not. This depends on what kind of virtual world we're talking about.

149.

Thomas, setting aside the huffing and puffing:

What did you mean by "it seems to me that virtual worlds are better served by a more enlightened view, one which seeks to find a balance between the interests of those involved in them"?

You took me to task for my extreme example of one type of "balance" but didn't answer the question by providing a realistic example of what you meant.

Similarly, you said, As I've said (way above), this doesn't mean that the makers of these worlds are suddenly powerless. It's simply a pragmatic acknowledgment of a reality that things have changed to a certain degree.

And I then asked, What examples would you give of how reality has changed with regard to virtual worlds? I don't see any evidence of this at all.

In all your umbrage, I'm not sure you're really reading my posts. Unless I missed it, you're also not answering plain questions.

You also said, players do invest in virtual worlds. They invest their time, at least, and this accumulates in objects, social relations, networks, competencies, etc. So, leaving any question of property interests *utterly aside* for a moment, it is an error to suggest that the failure of a world costs them nothing.

Using this exact same reasoning, when I go to DisneyWorld with my family, I "invest" considerable time and effort (to say nothing of money!), and accumulate "objects, social relations, networks, competencies, etc."

And yet no one ever speaks of guests "investing in" Disney (other than on the stock market). Despite spending a great deal of money to get there and get in, there are no questions whatsoever of users of Disney's services owning anything they participate in there (e.g., shows where you can take part -- but get no reward for doing so other than the participation itself), nor any hint of ambiguities in "property rights" or the like.

DisneyWorld is a service that contains areas where users pay to have access to certain directed or undirected entertainment, educational, or business experiences. This corresponds to virtual worlds exactly, and there is no ambiguity in who has what rights -- you can have a great time at DisneyWorld, but they will throw you out instantly if you violate their Terms of Service, and you certainly won't get any of the considerable money you spent back.

Despite the misapprehensions of some users and observers of virtual worlds, I see no reasonable basis on which to agitate for changing law, and no reason to worry excessively about what future changes the law may bring. You spoke earlier of convincing "a judge or two" but that seems to be looking through the telescope from the wrong end -- no judges have been convinced to move away from the current, existing position of custom and law that entirely support the way virtual worlds work today.

I know, you're going to say that I'm thinking about only one sort of virtual world, and that's correct: I'm thinking about the kind that exists. Not some VW that might exist at some point and which we really can't define and which might potentially create unpredictable social relations. I'm certainly looking forward (it's truly laughable for you to suggest otherwise), but I'm also concerned primarily with what's real today and possible tomorrow, not some hazy undefinable future.

I wonder if that difference in outlook is perhaps the core of the yawning chasm between commercial developers of virtual worlds and those examining them from the outside.

150.

Alright, Mike, I'll try once again.

By "more enlightened view," I mean one that recognizes that as complex and persistent spaces, virtual worlds generate emergent social phenomena which include things like acts of creative cultural production (like machinima), social relations (like guilds), and market economies themselves, both inside and outside the game. What this means for makers is that a narrow "our toys" view *held as necessarily applying in any virtual world tout court* may both not be in the best interests of the genre as a whole (this is an opinion, which Matt referenced above), and may not be in the makers' own long-term best interests. Ola put many of the points in this vein quite well.

Disney World is a good example. Yes, they can kick you out of the parks, but they can't confiscate your film, or claim that the Goofy hat you bought with Disney Dollars must be returned to them (to say nothing of what you bought with real cash). Virtual worlds confound the analogy because, technically speaking, it is both imaginable and in many cases practically possible for a maker to claim ownership over all kinds of things that we would never expect Disney World to claim ownership over. What this should prompt for makers is not a "we own it all, until we say otherwise" stance, because that is both bad business in the long run and it denies the social expectations that users come into the games with. It seems to me that some makers want to project a particular, and narrow, interpretation of property law onto all virtual worlds as necessarily adhering, a priori, when there is no reason to expect that the courts see that as so natural. On the contrary, when they look at making new law (as we've discussed elsewhere) they are trying to square the expectations of the parties with what the terminological/logical system of the law demands.

What are some examples? I believe EvE Online is moving in that direction -- you apparently disagree. Linden Lab has been ambiguous in their claims about ownership in Second Life, and it has run them into a conundrum, to say the least. In that case, it seems to me, they sought to have it both ways -- both retaining ownership but also publicly claiming ownership resided with users. You mentioned ATITD yourself. I'm sure others can give many examples of non-commercial worlds. This is why pragmatically endeavoring to establish an understanding with users (of any of a number of different types, including yours), instead of believing it all to be automatically subsumed by a "maker owns it all" a priori assumption, would be an enlightened way to proceed. It is simply the recognition that there is no reasonable expectation that the average user comes to the situation in the same way as the makers have.

You say you see no reason "to agitate for changing law," and maybe this is part of the difficulty here (and part of why this is all so frustrating to me). On an email list you, me, and many others spent a long time sorting out how the law is a moving target, and is currently in the process of working these issues out. There is no "law" that exists in a particular state relative to these issues. The Bragg vs. Linden case is one among several that get the legal types 'round here so excited, precisely because they might map out new territory. This, again, is the pragmatic view (the hallmark of it, really): that fictions like a transcendent and largely unchanging (or, only internally changing) legal system are precisely what blind us to seeing the processes that surround us and make new law all the time.

I'll add that I've made a number of these points a number of times (and elsewhere). You have not refuted them anywhere by any argument more powerful than "those are exceptional cases." So perhaps this is something that you just refuse to see.

151.

There are different kinds of virtual worlds (as it says in the policy), and some are more "fictional" or "game-like" than others.

Take, for example, an on-line poker game. It's a game, of course, but not really fictional. There are lots of bad things the owner of a poker site could do (ranging from using inside knowledge of players' cards to cheat; to not paying people when they win; to making unauthorized use of customers' credit card numbers), and some of these might well be real-world criminal acts (like fraud, or violation of the laws that regulate casinos). The "freedom of expression" argument seems weak in this case.

On the other hand, a customer usually can't sue the writer of a novel or the makers of a film just because they didn't like the ending. By analogy with books or cinema, we might expect that a customer of a fictional VW doesn't have much recourse if they don't like the way the plot turns out.

What I find interesting is how tricky it can be to draw the line between the two cases. I suspect it isn't simply a binary distinction between "fictional" and "non-fictional" worlds: even in a world with strong fictional elements, there are probably some things the game company can't legally do (e.g. putting unauthorized charges on the customer's credit card - that's outside the fiction)

The "player's bill of rights" could be pretty useful in setting out either:
(a) Under U.S. law, what game companies are legally permitted to do to players
(b) What a particular contract between the player and the game company allows the game company to do

152.

Susan: On the other hand, a customer usually can't sue the writer of a novel or the makers of a film just because they didn't like the ending.

Well, they should be able to demand a full refund if the developers suddenly find out that they'll make you pay for another dozen sequels to find the ending. Or, if the developer promised armageddon-like gameplay and then realized it would be to difficult to implement and turned the game into an infinite grind instead. Or, if the operator bans you halfway through the work assuming that you are cheating by mere affiliation and with no substantial proof. All of these things has happend in some form, and operators do get away with it.

I disagree with the poker argument if you remove real money, though. I should be able to create a new game called Crazy-Joker-Poker where I do the things you mention and without telling the players explicitly what I do. Of course, if I promise real Poker I'll have to deliver that and not something else.

Money games would change the equation in my country since they are only legal if they are 100% skill based, which require full transparency, probably. Hence I consider money games and RMT to be nonissues. Players who depend on that to cash-out would break the law by playing with "real money" AFAIK. Clearly, developers can't be responsible for that, unless they are trying to make it possible.

153.

Thomas: Doesn't the maker does own all a priori? That is, until the maker takes some affirmative action to transfer "ownership" to a participant, maker owns all.

The issue, then, is what affirmative action(s) is (are) sufficient to transfer ownership? Some, it seems, argue that merely inviting participants is sufficient. Bragg seems to be about whether the maker's public statements of participant ownership are sufficient despite the EULA's provisions that the maker retains ownership.

That the judge in Bragg wrote of virtual "property" multiple times in the opening paragraph and without so much as a footnote indicates that the virtual-property-ain't-property argument is likely D.O.A. In the end, I imagine that Bragg will be decided on pretty vanilla well-established law, rather than some "new" law.

Regardless of which action(s) is (are) sufficient, it's going to be up to the maker to opt-in with respect to participant ownership. It's unlikely that the line will be anywhere close to the commercial MMO space. In other words, regardless of a WoW player's "expectation" or "investment," it's very unlikely that the law is going to threaten Blizzard's business model.

But, I don't understand how that in stifles innovation or otherwise prevents some maker from exploring more enlightened and nuanced environments.

154.

Ola wrote:

In the real world you cannot sell items to a customer and not assigning them any rights.

That's right. Instead, you provide customers a license to use something in a particular way. Hey, sounds like an MMO.


In the real world you cannot throw out a customer from your restaurant half-way through a meal for no reason.

In fact, yes you can in the US, I believe, as long as it's not because he's a particular race, religion, sex, or other "protected" category.

Similarly, you can be thrown out of a bar for any reason, and you have no legal recourse to recover the cost of the drinks you've already consumed.

There is no "right" to access a private service.


I don't see why virtual world operators should be able to do that.

Because service providers everywhere else can. AOL can cut off your account for any reason it wants minus the "protected" ones and at best you'll get a pro-rated credit if you've paid ahead already.

Why do you think an MMO is any different?

--matt

155.

Ola wrote:

If you aren't big, you want to look trust-worthy.

What does that have to do with the OP's post? My company is distinctly "not big" and yet our customers trust us with payment sizes far exceeding Blizzard, and so on.

One doesn't need some trumped up "bill of rights" to provide good service and build a reputation among your customers for such.

--matt

156.

That's right. Instead, you provide customers a license to use something in a particular way. Hey, sounds like an MMO.

I was trying to refer to "digital items", not a subscription. For the rest of the argument I'll pass as I don't know the specifics of US law. However, the ISP argument doesn't sit well. A MMO is not a generic service, it is a work which cannot be replaced by a competing service.

157.

@Jeff: I think we mostly agree. Where we differ, I guess, is in assessing what is a reasonable starting assumption for the maker of a virtual world. The example of Disney World is particularly useful because it shows that the people coming to these worlds, most of which are graphical and avatar-based, come to them with a set of social expectations, shaped at places like WDW, which quite understandably may differ significantly from what the makers assume must obtain as regards a whole bunch of things, including property (but also including governance, for example).

What I've taken from the legal scholars in this area (and I invite Greg or someone else whose done work in this to weigh in) is that any given judge, facing any given new case, such as Bragg v. Linden, may choose to rule in a way that takes into serious account the social expectations that the users brought to the space, irrespective of the makers' assumptions. (This is what I take to be the implication of the judge's reference to virtual property without a footnote -- for you to say that that is not new ground just after having remarked about its significance puzzles me. Of course law is never *entirely* new, but it is always in the process of becoming as it meets new circumstances, undeniably.) This possibility may strike many as unfair, and I can understand why, but it is demonstrably the way the law works. What I'm saying follows from this, pragmatically, is that makers should do a much better job establishing the expectations that surround a given virtual world and what rights users may have than they have done. To do otherwise is to hold to a retrenched position that essentially says: "Our expectations govern this space and trump all other expectations *implicitly*, full stop."

Does that mean that virtual world maker shouldn't be free to attempt to create worlds in which they retain an enormous amount of control? Of course not. But I see no valid argument yet as to why they should feel they can proceed as if this is an implicit *given* for any new space they create. After all, what we're saying is that everyone should be clear on the arrangement going in. Of course, and as I've said above, it would be hubris to believe that the makers of any given world will be able to anticipate all the possible emergent effects that it may generate, and the possible uses/interests that participants may develop within it. Things can always get messy, but it seems to me that holding onto an implicit assumption as necessarily trumping other understandings is just asking for trouble.

158.

Thomas Malaby wrote:

Third, players do invest in virtual worlds. They invest their time, at least, and this accumulates in objects,

To be clear, there are no objects being accumulated in MMOs. Data registers are going up and down. I realize you may be using the word 'object' in short-hand though, as we lack a convenient way to efficiently describe what you're really accumulating in an MMO.



Disney World is a good example. Yes, they can kick you out of the parks, but they can't confiscate your film, or claim that the Goofy hat you bought with Disney Dollars must be returned to them (to say nothing of what you bought with real cash).

Of course they can't confiscate your film, any more than Blizzard can confiscate my computer.

They can't confiscate the Goofy hat because their terms of service effectively say that they sold me that hat. If, instead, the terms of service said that all they were selling you was the right to use that Goofy hat inside the park, they could surely take the hat away when they kicked you out.

Just like in an MMO.

--matt

159.

(My profuse apologies about the length of this post. I've tried to respond to Thomas' points with context, hopefully without fisking, to keep things on track.)

Thomas: Disney World is a good example. Yes, they can kick you out of the parks, but they can't confiscate your film, or claim that the Goofy hat you bought with Disney Dollars must be returned to them (to say nothing of what you bought with real cash).

On the contrary, they can and will confiscate your film if you've used it in a prohibited area or manner. No, they can't take away your Goofy hat, but the analogy there is to, say, a real shirt you bought and had sent to you as an analogue of a virtual one your character wears in an online world -- the operators could take away the virtual shirt or kick you out, but they can't demand the physical shirt back. And Disney can toss you out and ban you from the parks entirely too; if you bought a fingerprint-keyed annual pass or a bunch of (now unusable) Disney Dollars, that's your loss.

None of this is controversial, and all of it translates to the status quo with virtual worlds.

Virtual worlds confound the analogy because, technically speaking, it is both imaginable and in many cases practically possible for a maker to claim ownership over all kinds of things that we would never expect Disney World to claim ownership over. What this should prompt for makers is not a "we own it all, until we say otherwise" stance, because that is both bad business in the long run and it denies the social expectations that users come into the games with.

So far that stance is the only one commercial operators have adopted (the thinness of Linden's much celebrated "user ownership" has always been evident in their EULA, and is made even more apparent in their recent court filing). Virtual worlds are now a global, multi-billion dollar business, based on this stance. How is it that it's bad for business?

Regarding users' social expectations, bluntly, those expectations may not really be the VW operator's problem. I know that doesn't sit well, sounds arrogant, etc. It's also the stance of every VW commercial developer I know.

To go back to the Disney analogy, people come to WDW with all sorts of unrealistic and inappropriate expectations too; it doesn't mean that they get fulfilled or that the lack of fulfillment is Disney's corporate problem. The kinds of expectations you're talking about comprise a sense of entitlement that is based on little or nothing external or rational: to my knowledge no examples exist in virtual worlds where such rights are in fact conferred; it's just the way some VW users think they should be -- which has little bearing on the reality of creating or operating a virtual world or which rights adhere to the operators or users.

It seems to me that some makers want to project a particular, and narrow, interpretation of property law onto all virtual worlds as necessarily adhering, a priori, when there is no reason to expect that the courts see that as so natural.

Except that they already do in cases involving Disney, movies, music, copyrights in general, etc. How is this a "narrow" view? There is little virtual world case law as yet, but especially considering similar situations like amusement parks, country clubs, or other areas where one pays to gain access to a particular experience, there's no reason to believe that suddenly logic would reverse itself and that virtual worlds would be seen completely differently.

From before:

You said, As I've said (way above), this doesn't mean that the makers of these worlds are suddenly powerless. It's simply a pragmatic acknowledgment of a reality that things have changed to a certain degree.

And I then asked, What examples would you give of how reality has changed with regard to virtual worlds? I don't see any evidence of this at all.

Above you said, What are some examples? I believe EvE Online is moving in that direction -- you apparently disagree.

Yes, I do. Can you be more specific? How have things changed in EVE to change the reality of how "things have changed to a certain degree"? If you're thinking of their "player oversight" committee, it's important to be clear: that committee will have audit access to make sure the company isn't cheating the players. They will have no effect on how the game is run, what players own, what rights they have, etc. Moreover, CCP is free to discontinue this committee whenever they wish. This is not a "sea-change" as you said earlier; it's really little more than a PR move ("come tour our factory!") that does not affect the legal or obligatory landscape in the slightest.

If you disagree, I think you'll have to do more than just point at "player elections" and describe how this change affects any deep underlying issues.

Linden Lab has been ambiguous in their claims about ownership in Second Life, and it has run them into a conundrum, to say the least.

The only collision is between their PR and what their legal agreement says. If you ignore the fluff and get right down to it there is no conundrum and never has been: Linden Labs does not claim IP ownership of what people create in Second Life, but the absolutely and in no uncertain terms retain complete ownership and control over the instantiation of anything created in Second Life. The same goes for "ownership" of their "currency" (which they define as not a currency too). Their EULA is painfully clear on these points, if broadly ignored by those who don't want to see the painful reality.

You mentioned ATITD yourself. I'm sure others can give many examples of non-commercial worlds.

Yes, I mentioned ATITD - which, at just under 1500 players, has fewer players than many college-based MUDs, or about 0.016% of World of Warcraft's player base, and perhaps 0.006% of the global VW playerbase. For all the forward-looking things Teppy has done, ATITD is hardly an example of "a changed reality."

The same goes for non-commercial worlds. They necessarily have different motivations and limitations. I could see a world owned by its users where they maintained individual ownership of what they create. I don't know that such a world exists, and even if it did it would have no bearing at all on a commercial world -- any more than a backyard fair my kids put on has much bearing on regulations for Disney World.

Overall, that's a pretty weak set of examples for your earlier statement. I see no basis at all for "a pragmatic acknowledgment" that "things have changed" -- there's no change, and not much pragmatic in your point.

It is simply the recognition that there is no reasonable expectation that the average user comes to the situation in the same way as the makers have.

Well that's true: users come to virtual worlds, as I said before, with many expectations that won't be fulfilled. My point is, that's really not the developer or operator's problem unless they choose to make it their problem. And, as anyone who has developed, operated, or (especially) worked in customer support can tell you, trying to fulfill all users' expectations is a fast losing game -- you lose your business, your customers, and likely some portion of your sanity.

The other point is, if a customer comes to a place for a service and has different expectations than the person who created the service, they have very little legal standing to change that no matter what expectations they bring. You can't make Disney change an attraction that you don't like; all you can do is take your dollars elsewhere.

The same is true with virtual worlds. Just because you think your rogue should backstab better or your cloak should have silver trim or that you should be able to take your character to a different server (much less a different game!) does not make it incumbent on the developer to fulfill these expectations. The ones who created the virtual world have the right to decide these things. You get to decide whether you want to spend your time and money there.

There is no "law" that exists in a particular state relative to these issues.

We see this differently. From my POV many observers and users of virtual worlds want to put them on a pedestal or set them apart from everything else in some way, but this is unnecessary. We have plenty of precedents in pay-for-access or pay-for-service businesses, Disney being a prime example (and don't forget, WDW has both educational and business access services too, so this isn't just entertainment), to say nothing of copy rights and intellectual property rights that easily cover the vast majority of situations that come up with regard to virtual worlds.

That to me is the pragmatic view: going with what exists, with applicable precedents, rather than somehow forgetting them in the light of a new shiny thing.

This goes right back to the common-sense view that Bart suggested above, and which you said "at the Ludium most of the folks there knew this to be an outlook that would not receive broad support". At the Ludium were observers and users of virtual worlds of various stripes, not those creating them. Whether coming from academia, law, software tools, or content creation, it is perhaps not surprising that those with their own expectations of virtual world developers would receive poorly a different view -- even a common-sense, well entrenched view (I note that Randy Farmer, I think the only person there with commercial VW creation experience, said he and a few others predicted a negative reaction from "industry").

My primary point through this discussion has been that there are different expectations held by creators and users (and observers) of virtual worlds. Given that, I can't think of any reason -- other than those driven by the market -- why the expectations of the users of a service would trump those of the creators of the service. Nor can I think of any analogous examples where that has been the case. Can you?

160.

Ola wrote:

I was trying to refer to "digital items", not a subscription.

I'm not sure there's really a difference. In both cases the publisher is selling limited access to a service isn't he?


However, the ISP argument doesn't sit well. A MMO is not a generic service, it is a work which cannot be replaced by a competing service.

AOL isn't a generic service either (it's not a straight-up ISP which is why I used it in my example). It's a community of users who can access specific content only through that service, just like a virtual world.

--matt

161.

Thomas: What I'm saying follows from this, pragmatically, is that makers should do a much better job establishing the expectations that surround a given virtual world and what rights users may have than they have done. To do otherwise is to hold to a retrenched position that essentially says: "Our expectations govern this space and trump all other expectations *implicitly*, full stop."

How is a detailed EULA or TOS not sufficient to set expectations? It seems to me there's very little in the way of "implicit" expectations from the VW operators; it's all there in writing.

Now I agree that a VW operator's public statements and TOS ought to agree; Linden Labs has entangled themselves legally due to the variance (at times contradiction) between those two, which is not something I support.

I see no valid argument yet as to why [developers] should feel they can proceed as if this is an implicit *given* for any new space they create. After all, what we're saying is that everyone should be clear on the arrangement going in.

I don't know that I or anyone else has been arguing for "implicit" developer rights beyond those already awarded (explicitly, but often treated colloquially as implicit) by law.

I agree that everyone should be clear on the arrangement going in, which is precisely what the TOS or EULA are for.

Of course, and as I've said above, it would be hubris to believe that the makers of any given world will be able to anticipate all the possible emergent effects that it may generate, and the possible uses/interests that participants may develop within it. Things can always get messy, but it seems to me that holding onto an implicit assumption as necessarily trumping other understandings is just asking for trouble.

Except that what you're calling "implicit assumptions" are those awarded in law and covered by existing situations. I may have the expectation to be able to be in a Disney park until their state closing time of 10pm, but if an emergent effect occurs that neither I nor Disney anticipated -- a much larger than usual crowd, a breakdown of services, etc. -- they are within their rights to close the park early and toss me out. Their expectations as the developer, owner, and operator necessarily trump mine as a licensed-access user.

Can you think of an example where this is not the case, where the expectations of a user of a service end up trumping those of the owner/operator?

162.

@Mike: Compare screenshots taken within a commercial MMO and used by an online guide to the game with the photos of the landmarks and characters at Disney that someone might take. The point is that no one going to the parks would accept that Disney has a right to your photos of its stuff, which someone might use in all kinds of (creative, non-commercial) ways, but an MMO maker is technically in a position to look at it quite differently, and proceed without taking account of how such shared expectations already govern where Disney's power begins and ends. I'm sure the legal types can weigh in with much better examples. Of course, the frequent flyer miles (again) are an important example of something that is "only a line item in a company-owned database" but which has a legal standing beyond that material reality.

Again, if all you're saying is that what happens in virtual worlds that aren't (large and) commercial doesn't matter going forward, then I'm not sure why you would even read this blog, for one thing. In the conference that generated the platform, the thinking was much broader. You may choose to see that broad view as irrelevant, but that is a matter of pure opinion, so it hardly counts as a refutation of what I've been talking about.

As far as EvE goes, time will tell. It's an important regulatory moment when a gaming environment, through the acknowledgment of its owners, or of governments looking at (as in the casinos in Nevada), comes to be seen as necessitating oversight of the actions of those previously assumed as unassailable and behind the curtain. Yes, EvE could disband the player oversight; yes, it could be for show, but all of these actions exist in something other than a vaccuum -- EvE was pushed to make that move because of the scandal that unfolded. For the same reasons, they can't simply take it back without expecting repercussions; there is no justification for asserting that because someone *could* do something that they are thereby without any constraint. And any one of these actions carries the potential of changing the parties' expectations of what's legitimate the next time around. Sometimes that leads to legal shifts. Sometimes it leads to a change in the market, as users vote with their pocketbooks. Sometimes it leads to player revolt.

163.

I think the judge's use and lack of footnote is significant simply because it shows that the judge did not choke on the concept of virtual property as property. So, the fight won't be there.

I, too, think we mostly agree. Certainly, makers should be clear about expectations. Is there any question that Blizzard has not been clear? Obviously, there is a question about Linden, heheh (although, IMO there really isn't and Linden clearly transferred ownership).

But, I don't see why the maker owns all default is at all limiting. Indeed, from the legal and market perspectives, I think it's liberating. Given the unpredictability of the emergent effects, don't you think a player-centric default would chill development of all but the safest worlds. I realize that you are not necessarily championing "player-centric" (are you?), but remember that in order to mitigate any potential chill, you are going to have to explicitly express whatever player-developer balance you might strike. It seems to me that ceding the maker-owns-all default is just asking for trouble.

Crap, I guess we don't mostly agree ... =P

164.

I don't see the backchannel TN discussions, so the thoughts in this post may already have been dealt with long ago. Still, I'd like to comment -- if nothing else, it's just another data point.

I think for me this is coming down to something like Richard's view that virtual world creators are gods.

Someone who creates a virtual world is expressing an artistic vision. They imagine a thing that does not exist, then bring it into existence using some aesthetic to determine its particular form.

And with the creation of a product of one's genius comes ownership of that thing. The creator may choose to assign their creation to someone else or to cede their rights entirely. Maybe we're even entering a time when our technology makes it worthwhile to consciously design our art to be modified by those who experience it.

But a thousand or so years of legal and cultural development in the West has found that it's socially beneficial to assert and defend the right of creators to make that design decision for themselves. That's not some "old media" aristocracy digging in to protect its perks against more enlightened democrats -- it's a recognition that the social utility of creative ownership is a fundamental rule that isn't altered by changes in technology.

So how does some new artistic creation being a virtual world exempt it from this rule of creative ownership, to the degree that some people claim to believe that a creator's world belongs in any part, legally or ethically, to the users of that world regardless of the creator's interests?

Should Stephen King be forced to allow anyone to change his books because he lets people read them?

Should U2 be required to allow anyone who listens to their music to change that music?

If not, then what makes virtual worlds different from these other forms of artistic expression?

If they're not different in kind, then what's the basis for policy toward virtual worlds that attempts to promote a concept of user ownership that diminishes the current concept of full creator ownership?

One of the proposed policies is that "Virtual world designers should have freedom of expression." That's a good thing. But of what use is a policy asserting "freedom of expression" for virtual world designers without also asserting the ownership right that's necessary to guarantee that freedom?

Without such a clear defense of artistic ownership, it's hard to see this collection of policies attracting general support from the people without whose creativity these virtual worlds would never exist in the first place.

...

I'm not averse to coming up with ideas for recommendations to policy-makers regarding virtual worlds. I'm just not sure about these proposed recommendations, some of which seem better suited to being suggestions to virtual world designers rather than to policy-makers.

I definitely don't think they should be described as a consensus view of the major interested parties.

But then very few things are perfect in their 1.0 implementation.

--Bart

165.
How is a detailed EULA or TOS not sufficient to set expectations? It seems to me there's very little in the way of "implicit" expectations from the VW operators; it's all there in writing.

It's not sufficient because it's largely opaque to most lay people, first of all (see plank about plain language EULAs/TOSs). Add to that the strange frankenstein's monster of the entity of "online service" and "game world" that has been created out of convenience (as Ola pointed toward), and you have a recipe for misconstruals.

Oh, and seeing your most recent post -- frequent flyer miles, though not a service, at least as far as I know, are a good example of something taking on a life of its own that then ends up constraining its makers in ways they didn't anticipate.

166.

@Jeff: I'm not arguing for a player-centric default, by any means. I'm really arguing for (and I think the congress, mroe importantly, found it important to argue for) a more flexible and explicit situation, where there is not one governing logic (the "service") that seeks to define the relationship between virtual world makers and players. Isn't it better for the market and everyone if people are free to experiment? Of course many users will want to get their WoW on even then, but why let an opaque and quixotic understanding of what that is limp along implicitly?

167.

Thomas: Compare screenshots taken within a commercial MMO and used by an online guide to the game with the photos of the landmarks and characters at Disney that someone might take. The point is that no one going to the parks would accept that Disney has a right to your photos of its stuff, which someone might use in all kinds of (creative, non-commercial) ways, but an MMO maker is technically in a position to look at it quite differently

Hold it, you slipped an apple for an orange. Disney has no rights to your snapshots and Blizzard can't take away your screenshots. But if you use snapshots you took at DisneyWorld for a travel guide or something similar (commercial or not), their lawyers will have very explicit things to say about that -- same as with Blizzard. I think you're making a difference where none exists.

Again, if all you're saying is that what happens in virtual worlds that aren't (large and) commercial doesn't matter going forward, then I'm not sure why you would even read this blog, for one thing.

Now who's being arrogant and dismissive? Are you trying to chase away anyone who's more than an observer of virtual worlds from reading and commenting here? (I hope not, and I really don't think you understand how many have already stopped reading here because of this kind of attitude -- or maybe you just don't care.)

Ask yourself this: if it were not for commercial virtual worlds, how many online worlds do you think would exist today? Do you know how tiny and fractured the MUD/MOO community was as recently as 1995? This blog and the study of virtual worlds exist entirely because of the success of commercial virtual worlds. If for whatever reason virtual worlds stopped being a viable commercial enterprise tomorrow, academic and other observer interest in them would also quickly dry up, if for no other reason than that would have no social currency (and thus would not generate any funding).

Randy goes back further into commercial VW history than I do, but I can tell you quite clearly that there was a time not that long ago when I could not get an academic to study virtual worlds if I paid them to do it. All this interest in them is from my POV a recent phenomenon. It strikes me as myopic hubris on your part to not understand the place that commercial virtual worlds play in the creation and sustenance of what many here now see as its own area of study.

Jeff and Bart, your questions and points are exactly the kind I'm interested in as well.

168.

@Bart: Once *again*, no one is suggesting that virtual worlds should be, in all cases, domains in which the creators have no more control than the participants. This seems to be a constant possible misreading. What we're talking about (and especially lately, here) is whether it ought to be made explicit just what the arrangement of ownership and control is going in, especially given that there are quite obviously more collaborative virtual worlds, and less collaborative ones. While the ideal of artistic purview informs the conventional assumptions (but then, it ought to be logically extendable to users, in certain circumstances), I guess, to me the more pernicious association here is a set of established interests which have latched onto a legal category (service) which serves them well enough but which is itself potentially constraining. It is a mistake to see it as "natural".

@Mike: I am trying very hard here to strike a middle ground between the "shiny new" and the "established". In classic conservatism (Edmund Burke), the key point is made that every action made must contend with what has come before, and that the past does constrain, to a certain degree (the conservative move he makes from here is that the established must be right or correct, by virtue of being established -- I don't agree with this). This is obviously true. But it is just as obvious that the past does not *determine* what will happen next. If one looks broadly, both at virtual worlds (beyond the commercial) and the parties involved in them (not just the three), one sees lots of new things at the edges, which is why this blog exists. To suggest that we must account for both the established and the emergent is not to utterly reject the past.

169.

Mike Sellers wrote:

Ask yourself this: if it were not for commercial virtual worlds, how many online worlds do you think would exist today?

To be fair, the answer would still be over a thousand virtual worlds. I mean, there are more than a thousand non-commercial virtual worlds in existence currently. Of course, most of them have literally almost no players (they may see 5 players online simultaneously if they're lucky, for the most part).

But yes, you're right: Almost all (but not all...see LambdaMoo back in the day) of the academic interest in virtual worlds is entirely a result of commercial efforts.

--matt

170.

@Mike: All I was trying to say -- and you've been forcing me to say it more and more explicitly -- is that when you attempt to counter my argument by saying that it doesn't matter because the world is too small, etc, you're the one being dismissive of innovation and the big picture of what virtual worlds are. If you think that the conversation here must be restricted to (large and) commercial worlds, then go ahead and think that, but it's not a valid counterclaim for when I point to something that acts differently than the conventional large worlds. That's not argument, that's trying to muscle out a set of possibilties that are real, however small.

Re: Disney -- I'm not a lawyer, and maybe Greg would like to weigh in on the best examples that complicate matters (but then, didn't you see them during the email list discussion? Why does he have to trot them out again?). The frequent flyer miles example is still there, however, and that's a pretty clear case of how a company creates database items that "take on a life of their own", as it were, because of how they are used and the expectations that grow up around them on the part of consumers.

171.

Thomas: [A EULAs is not] sufficient because it's largely opaque to most lay people, first of all (see plank about plain language EULAs/TOSs). Add to that the strange frankenstein's monster of the entity of "online service" and "game world" that has been created out of convenience (as Ola pointed toward), and you have a recipe for misconstruals.

Care to provide an example? I've read the Blizzard TOS and the SL one, along with many others. I haven't found any to be all that opaque (though maybe I've just read too many legal documents). Linden's is really pretty clear. The "misconstruals" come not because of opaque language but because of unfounded user expectations.

A "bad/unclear EULA" contest might be a worthwhile thing to explore.

Isn't it better for the market and everyone if people are free to experiment?

Yes -- but how is the situation limited now in ways in which the Declaration would relieve? If anything, the statements in the Declaration limit experimentation by supporting the creation of standards to which developers must adhere.

If a developer wants to create a virtual world in which users own everything, or every other thing, or some things on Wednesdays, there's nothing stopping anyone from doing just that -- excepting the resources to actually do it. But with a few rare exceptions, that takes us back to the commercial side of things again.

172.
The "misconstruals" come not because of opaque language but because of unfounded user expectations.

I don't see how these could possibly be different things, assuming we're talking about users actually having *read* them to begin with.

173.

@Bart
"Should Stephen King be forced to allow anyone to change his books because he lets people read them?"

I just did. I took an older copy of The Stand, and rewrote the end of the book. I may re-write the first paragraph as well. Let him try to enforce his ownership.

174.
4.2 Service Provider. You acknowledge that Linden is not a traditional game provider; instead Linden acts as a venue and a service provider that may allow people to interact virtually regarding almost any topic, at any time, from anywhere, in a variety of formats. In addition, the Service may allow some users to alter the gaming environment on a real-time basis. Linden is not involved in actual communications between users or even in users' interactions with the virtual world of the Service. As a result, Linden has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Service. – Second Life Terms of Service agreement, 1.2006

This snippet (old now) had me scratching my head when I read it a while ago. Do we really think that average joe user would find this clear?

175.

Matt, I don't know anything about marketing laws in the US. If you sell something in Norway you have to deliver what you call it, otherwise it would be misleading marketing. The consumer council used to be very strict about this, but I see them slipping now (for instance, you couldn't sell "citrus soda" if the flavouring was artificial; you would have to call your product "soda with taste of citrus").

So in relation to virtual worlds I think, according to what I am used to (but as I said my perception is that this is slipping) you'd have to sell some kind of ownership if you claim to sell an item. Likewise I would expect that a free-to-play virtual world has to be free, not only free-as-in-lock-in-baiting.

I'm quite shocked if you are right about the restaurant though. If a norwegian restaurant charged me for a full meal and only let me have half of it, I certainly would demand a refund. Similiarily if I purchased a streamed movie (roughly equivalent to a "linear" virtual world) and they only delivered 1/4 of it I would demand a full refund.

As I understand, by Norwegian law, I can demand a refund for any product if it has a major flaw and it isn't corrected in a satisfactory manner (and I can demand a new replacement for certain products too, rather than a repair). For most physical products this holds for 3 or 5 years (a "guarantee" mandated by law). Likewise I get to return any online purchase within 14 days of reception, even if it has no flaws. It doesn't have to be returned in its original wrapping. This is all by law. Unfortunately, I don't know how this translates into software products...

What is more relevant to this discussion is that the norwegian consumer council (which most people trust) have set forth a set of guidelines for internet shops which these businesses claim conformance to in order appear trustworthy. I think it works, because if they don't do this I ask myself if they know what they are doing and if I can trust them to not give me lots of grief...

I think this could work for smaller virtual worlds too, say if FCC or some other big government mandated organization that most consumers trust created a standard, even a standard TOS/EULA, wouldn't smaller operators be able open more wallets by claiming conformance? I think so. I think there is a possible win-win with such a "branded" standard. Of course, for this to work on the international level consumer councils would have to cooperate more than they do now

I certainly think that you need a preexisting heavy-weight consumer-rights organization to do this in cooperation with a least some of the virtual world companies. Nobody would trust the "The Ludium TOS", right? ;-)

176.

Ola wrote:

So in relation to virtual worlds I think, according to what I am used to (but as I said my perception is that this is slipping) you'd have to sell some kind of ownership if you claim to sell an item.

The issue here is, I think, complicated by the fact that you cannot sell an item in an MMO since there are no items to sell. We're all suffering here from lack of good terminology I think.


Likewise I would expect that a free-to-play virtual world has to be free, not only free-as-in-lock-in-baiting.

Free to play means just what it says. Free to play. Not "free to experience everything equally with all other users." Similarly, a neighborhood park is "free to play" but that doesn't mean that the hotdog vendor in it has to give you free hotdogs.


I'm quite shocked if you are right about the restaurant though. If a norwegian restaurant charged me for a full meal and only let me have half of it, I certainly would demand a refund.

Sure. If you had eaten your appetizer and then gotten kicked out halfway through your main course, seems quite reasonable that you'd get a refund for your main course. Of course, if I'm running a restaurant and you start a food fight in it I'd just kick you out and tell you to use the court system if you want your money back.


Similiarily if I purchased a streamed movie (roughly equivalent to a "linear" virtual world) and they only delivered 1/4 of it I would demand a full refund.

Yes, that's quite reasonable. Similarly, it'd be quite reasonable to demand a full refund if only 1/4 of the code for the WoW client was there when you purchased it at retail.

Of course, in no way are you purchasing the virtual world when you buy the client. You are buying the client, and that's it. When you pay a subscription to WoW you are not buying the world. You're paying for access to it for a fixed period of time. I think a pro-rata refund for the time you paid for but haven't used is reasonable as a refund if you're kicked out there, though again, as a VW operator if I kick you out for outrageous behavior I'm unlikely to give you the refund.

--matt

177.

@ Ola: http://static.flickr.com/75/164689931_05e6f2ade6.jpg

178.

@ Ola: http://static.flickr.com/75/164689931_05e6f2ade6.jpg

179.

Thomas: If one looks broadly, both at virtual worlds (beyond the commercial) and the parties involved in them (not just the three), one sees lots of new things at the edges, which is why this blog exists. To suggest that we must account for both the established and the emergent is not to utterly reject the past.

What non-commercial virtual worlds are you thinking of? In what way(s) are they important to the study of and furtherance of virtual worlds?

And when you talk about "the parties involved" in virtual worlds, you seem to be putting a number of disparate groups on equal footing with regard to investment in and/or ownership of virtual worlds -- this is a fundamental error, IMO.

We have people who just act as users. We have people who observe the people and the worlds themselves. Others who theorize about social, legal, and other aspects of what goes on in them. We have a few who create content associated with virtual worlds -- web pages, strategy/tour guides, and in a few (popular but relatively rare) cases, independent content to go in them. And there's a recent group of people who make some of the software that enables others to make virtual worlds more easily.

And then we have the people who actually make the worlds themselves.

Throughout this discussion, you've sought to blend the edges between these groups to the point that no distinctions survived. This is an essential, definitional mistake. I wonder if perhaps you (or other VW-observers like you) spent a year or so in the trenches with people actually creating these worlds, you might see how incredibly different these actually are.

From where I sit it appears that you aren't really aiming up the middle, but are taking as a given that virtual worlds will always be there, almost as a natural feature of the landscape, and that those who create them have no more claim on them than those who use them, study them, write about them, etc. I'm not saying that only developers matter, but any set of statements that suggests that somehow those who take on the phenomenal effort and risk of developing them have no essential trumping claim to them over those who use or observe them, is a myopic and ultimately uninformed view.

180.

as a VW operator if I kick you out for outrageous behavior I'm unlikely to give you the refund.

That's no different from being kicked out of a cinema for being noisy and disruptive. The fact is that some operators kick out users for no substantiated reason.

I also don't think the client argument holds as the EULA tends to state that the client can only be used with a particular service. Not getting access to that service would render it useless. If you bought them seperately with no restriction, using open standards for protocols, you might have a better case. Besides, many operators give away the client for free. Thus what you pay is in effect an entrance fee, not payment for software. At least morally, if not legally in the US. As long as the subscription entrance fee is bundled with the client software the user is incapable of reselling his now useless client. Do operators sell subscription only at a reduced price to players who already have the client? No.

181.

Thomas: I guess I don't understand how you think maker's aren't allowed or somehow restricted to experiment. I don't think there is any rule of law that would prevent a maker from alienating some or all if its rights.

Even if you could construct and efficiently express a different default, is it your position that a maker, through an EULA, should not be able to agree contractually with a participant to "rollback" to maker-owns-all? If so, yikes! If not, then wouldn't the first provision of any commercial MMO simply be something akin to:

1.0 Rollback to Developer owns all. Participant expressly agrees that notwithstanding Developer owns everything ...
It seems to me that makes it more, not less, opaque.
182.

Gah. Omit "notwithstanding."

183.
you cannot sell an item in an MMO since there are no items to sell. We're all suffering here from lack of good terminology I think.

Trying to send Dan Hunter back into therapy, Matt? ;-) As we discussed at length elsewhere, to suggest that digital stuff (like Word docs, cell phone wallpaper, frequent flyer miles, and MMO swords) cannot meaningfully and consequentially be objects (I think Mike alluded to this as well) to those that use them is to commit the materialist error -- believing that practice (and discourse) cannot also make things real, at least in all important senses. After all, the "service" category that is pointed to here and again is just as unreal.

184.

Thomas, re: the SL TOS snippet. It doesn't seem that difficult to me. No doubt some would not understand it -- and a really plain language FAQ would go a long way (I do agree with that statement above). Say as a first pass:

Second Life is not really a game. We don't provide game-play. We allow you and others to have access to a common online space. You and others may change what's here from time to time. We don't monitor what you or others say or do, and you agree not to hold us responsible in any way for what others say or do here. No Lifeguard On Duty. (But we will try to remove anything we see that is really offensive to us, and based on our sole discretion with or without explanation to you. You also understand that we can take away whatever you create whenever we want to.)
But even if the existing language is a bit dense (no more so than many paragraphs here), none of it is implicit. It's all right there, and it's not even in obfuscated legal jargon.

Ola: That's no different from being kicked out of a cinema for being noisy and disruptive. The fact is that some operators kick out users for no substantiated reason.

No doubt some booting and banning excesses do occur. But ask anyone who's done virtual world customer service: of those who are sanctioned in anyway and who scream about how unfair it is, how there's no evidence, no substantiation, how it's a violation of their due process rights, etc., the vast, vast majority of them are full of crap. The world operator has the last word, and with very good reason.

185.

I think non-commercial worlds are incredibly important for understanding virtual worlds. Anyone who wants to understand governance in virtual worlds must read Julian Dibbell's My Tiny Life, for example.

when you talk about "the parties involved" in virtual worlds, you seem to be putting a number of disparate groups on equal footing with regard to investment in and/or ownership of virtual worlds -- this is a fundamental error, IMO.

This is time and again what I have said that I am *not* doing. To be legitimate interested parties does not automatically grant everyone an equal stake in any given case. That just doesn't follow.

It is also illogical of you to assert that I want to blur all distinctions between those involved in virtual worlds. It's just patently untrue. All I have said is that your standard tripartite list is insufficient, at least now. Since you began to adopt the same qualifications I assumed you took the point. Now you want to take the subject and assert that I'm saying something I'm not.

Finally, yes, those who make virtual worlds do not have an *essential* trumping claim over them, at least they don't have any greater trumping claim than I have over a chair I build from scratch in my backyard. Such claims of control or ownership that would accrue to me in such an event do not issue forth, in some essential, intrinsic way, from the fact that I made a chair. They exist, to the extent they do (from one culture to the next this would vary considerably) because of a set of shared expectations, some realized in the law some not. This is, indeed, a social constructionist view, but I hasten to point out that it means *neither* that anything goes going forward, *nor* that the existing legal and social understandings are unchangeable and trump everything to come after. I alluded to this above, but this pragmatic view understands that talk of essential qualities is almost always a sign of mistaking the model for the reality.

186.

@Mike: I think at this point we're quibbling about the EULA/TOSs, and both agree that plainer language would go a long way to making things clearer (explicit, from the point of view of many users). Your first pass at an adjustment makes a huge difference, in my opinion. Of course it's different to look at one if you're in the legal or industrial bailiwick -- in a way that's part of the problem. You say, "everything's there," and suggest that somehow that means "implicit" is not a fitting word, but a group that uses an esoteric set of legal or technical terms to express an idea is going to leave a lot of that meaning out from the point of view of a non-specialist.

187.

Mike, the world operator has the last word, yes, because they know that very few people are going to take the cost of suing when all they get is a tiny refund if they win. No doubt operators do what they think benefit the community overall, but it is also true that some care less if they ban innocents in order to quickly reestablish their service.

I wish you would state more clearly why (or if) you don't believe in a standard that businesses can claim compliance to. It works in many other fields with the same level of diversity as MMOs. Some fields even have their own independent industry-created consumer-complaint handling organizations. Often created through cooperation with consumer-rights organizations.

188.

@Ola: Agreed.

@Jeff: What I'm saying is that the default assumption of "owning all" may not (a) reflect the expectations (explicit and implicit -- remember that culture is that which is taken for granted) of users, which could lead to problems down the line, and (b) the place where this relationship is supposed to be clarified and specified, the EULA/TOS, suffers in this role, in general, because users, if they read it at all, aren't even coming to it on the same terms as the developers (for example, I would say that most users have no idea what distinguishes, legally, an online "service" from other things they may buy). This creates potential problems. Subscribing to the "owning all" assumption as the default (one that, also, is largely unknown to most users, at least in where it begins and ends) compounds the potential difficulties, because it removes the incentive for all the parties to lay out what the limits of governance and ownership are. After all, if Blizzard tells me it owns everything, why wouldn't I fear for my screenshots? I don't see a reason why leaving something as a default assumption can possibly help things when instead an opportunity is there to be specific and explicit about where a particular world draws the line. This would *help* experimentation and innovation, because more would be imaginable as "up for grabs" from case to case.

189.

Thomas: "... to suggest that digital stuff ... cannot meaningfully and consequentially be objects ... to those that use them is to commit the materialist error -- believing that practice (and discourse) cannot also make things real, at least in all important senses.

The other error is to say that attaching value to virtual objects changes the rights of ownership attached to them: I may have certain rights attached to frequent flier miles, but that doesn't mean I own them. I may really like a sword in a MMOG, but that doesn't change the fact that the person who created it owns it. I may even really value a house I made in a world that allows me to make my own stuff, but if as part of gaining access to the world I agreed that "the company that made the world owns anything I might ever make here" then I gain no rights to it either. (This is where we could talk about contracts of adhesion and unconscionability, but I think that's a detour when talking about virtual worlds.)

I think non-commercial worlds are incredibly important for understanding virtual worlds. Anyone who wants to understand governance in virtual worlds must read Julian Dibbell's My Tiny Life, for example.

Okay, but that was how many years ago? 14? Pre-web, even. Yes, as Matt said earlier, non-commerical MUDs and MOOs were very important in their day -- all commercial VWs descend from them. And I hope that we'll see some interesting things happening from educational virtual worlds, like Ted's Arden project. But the old college-run games are ancient history, and the yet-to-be-born academic virtual worlds are at this point entirely unproven. It's difficult to over-estimate the driving force of commercial virtual worlds. To mirror your earlier comment to me, if you don't see them as important, I'm why are you even in this field?

I'm glad you agree that not all parties interested in virtual worlds have equal stakes in them. FWIW, I never asserted a "tripartite list." I mentioned stakeholders specifically stating that I was doing so in broad and not exclusive terms.

I do however think there's a pretty strong dividing line between those who create virtual worlds and those who use and observe them. The hybrid in this case would be those who create content for the world without creating the worlds themselves. Which could lead us back to a different tripartite formulation.

Finally, yes, those who make virtual worlds do not have an *essential* trumping claim over them,

Here we clearly disagree. Though you go on to moderate this statement in that what I call "essential" you may refer to as being merely enshrined in law. Disney owns Disneyworld by virtue of developing it. I cannot assert any degree of ownership over it no matter how often I visit. If I supply the lightbulbs to WDW but our agreement includes that I have sold the bulbs to them, I also lose all ownership over them after the sale. If I lend them some artwork to hang up, I have not relinquished any rights. There's really very little new ground here. I can't imagine the basis on which you would say that the creator of a virtual world loses some legal ownership or control over its creation that the creator does not explicitly cede to others of their own free will.


Ola: No doubt operators do what they think benefit the community overall, but it is also true that some care less if they ban innocents in order to quickly reestablish their service.

That's true. It stinks from an individual POV, but it's long been known that purging bad apples before they turn really rotten, even at the expense of some innocent bystanders, is better for the community (and the commercial enterprise) than slowly weeding out only the really bad ones. That's been proven time and again.

I wish you would state more clearly why (or if) you don't believe in a standard that businesses can claim compliance to. It works in many other fields with the same level of diversity as MMOs.

I'm note entirely opposed to a voluntary standard, even one given some teeth by the market. But I think this industry is so young that knowing what to put in that is a difficult thing at best to conceive. More particularly, I can't see how such a standard could be created without any involvement from the people creating the worlds. And most of all, it seems foolish in the extreme, even as a starting point, to create a highly formal Declaration of vague statements made by an official-sounding Congress that doesn't represent the creators of these worlds and then send it to politicians or expect it to have any sort of weight.

I don't know that we'll ever need or be able to agree on a set of standards for virtual world creation and operation. Maybe in five or ten years. I'm not saying that things are perfect the way they are -- far from it (our customer relationships are abysmal) -- but I don't believe a top-down statement is the way to fix anything, at least not at this point.

190.
I may have certain rights attached to frequent flier miles, but that doesn't mean I own them.

This is exactly correct. As Greg has said on several recent occasions, and I reiterated, property rights are not necessarily unitary nor exclusive. They can be quite complex, and involve layers of limited rights. This is one of the key points of this entire discussion, and I believe not remembering it leads to lots of misunderstandings of the point of view I'm proposing.

I have no idea why you would think that I don't believe commercial MMOs are important. It's not an either/or of course.

I can't imagine the basis on which you would say that the creator of a virtual world loses some legal ownership or control over its creation that the creator does not explicitly cede to others of their own free will.

Again, the frequent flyer miles example is the go-to one for me here, despite some of the differences. Hopefully Greg will have a moment to supply some from his end. In general, though, the argument against essentialism is an argument that, in a way, new ground can happen at any moment, even if it is quite unlikely to. This seems to be a point of difference, no question, but I hope you understood the broader point about all of these as social constructions (which, *again*, doesn't mean that nothing is real, anything goes, etc, etc).

Your last paragraphs suggest to me that what you said early in this discussion, where we hashed out all the stuff about a "starting point", etc, actually meant nothing to you, and that you're more interested, again, in scoring cheap contrarian points than in making anything better.

191.

Mike said: "I don't know that we'll ever need or be able to agree on a set of standards for virtual world creation and operation."

I agree... And it strikes me as odd to, at the same time, put forward a set of declarations, and have one of them be: "There are different types of virtual worlds with different policy implications."

If that one declaration is true, then can't we have different VW's where any of the other declarations ain't?

For example, if we move forward with the Players Bill of Rights, and there's a right in there that some developers don't want to adhere to... well, they're just "another kind of VW." There may be players who specifically flock to a world where a particular right is off-the-boards, or to worlds that use different rights altogether.

Same with the "designer creativity/freedom" plank. If a world is going to be inherently and substantially built by users -- from the prims and levels up, let's say -- then a declaration about users' rights that trump those of designers in that particular case make sense.

This reminds me a bit of public utility law, which I was marginally involved in back in my cellular days. The various attorneys general try to come up with utility law... but it's always a bit different from phones to water to 'lectricity. And in some cases, the differences are more pronounced than the similarities.

Just sayin'...

192.

Andy, a standard would be very high-level and probably mostly deal with access to information, basic rights that most serious operators could comply with and processes for handling customers, complaints and so on (resolution mechanisms etc).

Not everybody have to agree with it, it would be quite sufficient if a handfull of German operators of online services banded together with their consumer council in order to draft a standard. Once adopted there, the scandinavian consumer councils might say "Hey, that looks good. We'll use that." and so on. It's a snowball that somebody has to start making. So, OK, the first snow ball is square and won't roll, and Mike is right that it will take more time to make it roll without operators participating, BUT it doesn't have to start in the USA. It doesn't even have to start with proper virtual worlds.

At some point maybe virtual worlds operators will regret not tossing the first snowball, when they have to swallow the snowballs tossed by say dating-web-sites... ;-) Do you really think legislators will notice the difference? *evil grin*

193.

@Ola: LOL. Thanks for that -- I needed a good chuckle.

194.

Let me see if I can break up these arguments into easily refutable assertions, or if I'm just asking to get whacked once more with that "*again*" word. :P

I agree that there's nothing about a social construction that says it can't be changed if enough people with the power to change it agree to do so.

I agree that culture -- the set of beliefs about right behavior that are shared by a group of people over time -- is a social construction.

I further agree that laws, as cultural artifacts, are also social constructions. They didn't always exist, and in a living culture they can be changed.

But here's where I start to diverge with what I think I'm hearing.

Laws, by stating cultural beliefs explicitly, allow people to consciously decide whether they agree or disagree with those beliefs. So if a particular kind of law is around for long enough across multiple cultures, that suggests that it has special utility, that there's so much social benefit to it that many different people over many years have voluntarily agreed to constrain their actions according to that law.

"Private property" seems to be one of those concepts that's so effective at generating public value that it's been realized as law by multiple civilizations over thousands of years. And a new thing created by a corporate entity would seem to fit most definitions of "private property." So a lot of people have also held as a matter of law that creators own what they create as property, and as such have a right to determine how the products of their creativity may be used by others.

Certainly there have been exclusions to and limitations on the expression of that right. But it's still honored more than it's ignored because respecting it continues to have great social value.

True, as a social construction, there's nothing immutable about creative ownership. If we want, we could choose to ignore it, change it, or do away with it entirely.

The question is, why should we want to do any of those things? Where's the argument for weakening the right of creative ownership that's as powerful as the evidence of thousands of years of capital formation that strongly protecting creative ownership rights is a good idea?

We have the ability to change our culture for the better, and that's a wonderful strength. But choosing not to change some particular feature of our culture does not imply naivete, or fear, or ignorance -- sometimes what it means is that we're smart enough to recognize something that works, and know better than to accept changes that would weaken it... like forcing artists to cede some of their creative ownership rights merely because someone else wants them.

If some virtual world developer chooses to create a world that explicitly grants its users ownership rights over the ones and zeros, great! I sincerely favor the making of such worlds; I'm eager to see the cool things that users will be encouraged to develop when they're assured of owning what they create.

But why doesn't that also/still apply to the virtual world creators themselves?

If virtual world creators voluntarily choose to cede some amount of ownership of their creations, they should be free to do so. That might even be what most virtual worlds look like in the future if users say (through the free market) that it's what they want.

But I still have not seen anything remotely like a sufficient argument for why that creative ownership right should not be strongly endorsed as a matter of public policy.

A set of policy suggestions that fails to defend the right of virtual world creators to their creations, that winks at or even encourages user usurpation of creative ownership rights, is one that IMO will not represent a consensus view of good public policy toward virtual worlds. It will not adequately represent and communicate the most vital interests of the community of people interested in virtual worlds, and it should not be presented as a "full" convention of interested parties.

Of course, if most everybody decides tomorrow that private property was a pretty dumb idea after all, then all bets are off.

--Bart

195.

@Bart: I appreciate the very clear and helpful presentation of the common ground (at least as far as you're concerned -- I agree with it as well), as well as the sticking points, as you see them. My main response is that what I and others have said is not an all or nothing proposition; it's not a choice between a policy fundamentally biased toward the rights of players and one fundamentally biased toward the rights of virtual world makers. It's more about finding enough room for other approaches to be legitimate and, more importantly, for all of these possibilities to be fairly communicated to users.

Property rights can be multiple, layered, and complex, so none of this means the downfall of property as we know it. You're articulating a very reasonable Burkean (Edmund, not Tim) position here:

Where's the argument for weakening the right of creative ownership that's as powerful as the evidence of thousands of years of capital formation that strongly protecting creative ownership rights is a good idea?

But it's not all or nothing. Recognizing that virtual worlds have different potential stakeholders, and *in general* (but not in every case!) that they involve multiple participants in varying degrees of content creation as well as other activities that reflect the investment of effort in the worlds does not suddenly mean that the maker of any *specific* virtual world has less creative freedom. I guess you could say that this is a move from a one-flavor set of assumptions to one that would, ideally, allow for a multiplicity of different kinds of virtual worlds, with different kinds of contributions.

This is something that you acknowledge sounds good, too. So why should every virtual world maker begin by operating under a framework that doesn't reflect (or, more importantly, engage) the expectations of its users, but instead starts with an utter and non-negotiable rule by fiat? Wouldn't it be better, if people *are* interested in the "maker owns all" kinds of worlds (and they might win in the marketplace), if everyone had a clearer understanding of all the terms and could proceed to find the ones that suited them?

Ola does a great job of describing the virtues of something that is true in almost every industry (implemented under pressure by consumer groups, or self-created, or imposed by governments): a set of shared standards that don't simply and implicitly reflect the obvious and established interests of the largest makers of a product, but which inform consumers of the range of possibilities and indicate a shared commitment to, say, certain common guarantees and the like. Of course, some maker might choose to buck those efforts and go it alone -- that makes sense, if what we're after are better virtual worlds that are incented to innovate and reach new audiences.

All of this is under the context of everything you say about the law (and which Greg and others have been saying for a long time): it is a moving target, yes, and therefore while we must contend with what has come before, and recognize its contribution (such as protecting artistic expression in virtual worlds), we must also look ahead to see how best to forge an understanding of matters that encompasses the range of possibilities that virtual worlds, large and small, commercial and non-commercial, gamey and not, present.

196.

Matt Mihaly says:

Ola wrote:

In the real world you cannot sell items to a customer and not assigning them any rights.

That's right. Instead, you provide customers a license to use something in a particular way. Hey, sounds like an MMO.


In the real world you cannot throw out a customer from your restaurant half-way through a meal for no reason.

In fact, yes you can in the US, I believe, as long as it's not because he's a particular race, religion, sex, or other "protected" category.

Similarly, you can be thrown out of a bar for any reason, and you have no legal recourse to recover the cost of the drinks you've already consumed.

There is no "right" to access a private service.


I don't see why virtual world operators should be able to do that.

Because service providers everywhere else can. AOL can cut off your account for any reason it wants minus the "protected" ones and at best you'll get a pro-rated credit if you've paid ahead already.

Why do you think an MMO is any different?

--matt


@ matt : can you notice a difference between " ...for ANY reason.." and "... for NO reason" ? Only idiots or the machines acts for NO conscient reason.And pls ask a USA lawyer about what you may and may not do with your customers in your private owned restaurant , wich btw is a public space . Or you can keep dreaming.

197.

@ matt, lemme help you with this one : when you have the " ANY reason" provision, you must justify your actions token against the player by exactely mentioning that reason, whatever it might be ; and you must prove your informations and arguments to be accurate and legal . This is why the " ...for NO reason " provision is not only non-binding, but also illegal;at least outside of the USA.

198.

Bart, I believe the law usually is capable of distinguishing between different situations. The situation where a commercial business target personal (home) users is rather particular and at least in Norway, the law recognizes that such customers need more protection than professionals (business-to-business). If law can discriminate between artistic aspects and primarily commercial aspects of a work in other context (say taxation) I am pretty sure that they could do that kind of discrimination in the context of virtual worlds too. Not saying it is worth the hassle, as I don't think it is, but I believe it is doable.

I do share your concern about the pressure to deprive copyright-holders of their rights, but I don't think legislators want to create a mess out of copyright law in order to let users of virtual worlds steal the works of others rather than making their own. For instance, the distinction between amateurs and professionals can't work in the most general case (say, what happens to the works if an amateur turns into a professional?) We really don't need more national special case copyright-laws. We need copyright-laws and fair-use practices that are shared globally and that works in multiple contexts.

199.

I think some people need to get over the fact that the West Wing ended. It's hard I know but with strength and conviction we can fill the void it left.

200.

"We need copyright-laws and fair-use practices that are shared globally and that works in multiple contexts."

Those laws and practices are in place already. Are the international laws and practices of commerce. If we are talking about the so-called " commerce oriented virtual worlds " , actually those virtual worlds are nothing more than covered Amazons and e-bays and gambling and porn sites , packeged into a mixture called Virtual World.

A Company is selling services / products via internet, that's all. They wanna do commerce based on Californian laws but the same time wanna sell their stuff world wide , including in Norway. And they would like to have a special legal status , they would like to ignore the Norway customers already established legal rights.

The commerce-oriented virtual worlds , like SL and Entropia , already faces two major problems :

1- the govts and the financial institutions started to enforce their legal rights and interests , and to protect their citizens and customers . Is enough to mention the recent " SL child - porn " scandal in Germany.

2- the players are more and more perceiving that type of " games " to be online schemes , ponzies , where the Game Company is acting above the local laws , fair practices and common sense.

This perception is harmfull to all VWs.
It is in your interest to redefine your strategies , starting with the EULAs , before we migrate en-masse to YouTube and MySpace and WoW.

I see the " Declaration..." as an attempt : not to fix the issues but to cover them.

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