Anti-Social Contracts

Why do we let contracts govern virtual communities?  Contracts are private law.  Communities need public law.  Contracts are about helping two (or a few) people negotiate their preferences.  Communities are large numbers of people, who shift in and out of the community, and really don't have time for all that negotiation.  For communities to really thrive, as Greg Lastowka remarked to me recently, "we need to get beyond the EULA."   So I wrote an article about it.

Here's the gist.  Communities need legal relationships that run between every member of the community and every other member.  Some examples -- it turns out that everyone in the world is obligated not to hit you.  (Tort law.)  Similarly, everyone in the world is obligated to not walk on your land.  (Property law.)  They didn't sign any contract to say so, the law imposes those requirements on everyone.

Contract law cannot create those background, default rules, not without a lot of hassle -- and hassle is called inefficiency by the overeducated.  (Imagine creating the "no-hitting rule by contract -- walking down the street, saying to each person you meet: "Do you agree not to hit me? Sign here.")   In contract law, the basic idea is: "if you didn't sign it, you're not bound by it."  The problem is that virtual world EULAs, as they currently exist, eliminate and replace almost every other source of community, background, default laws -- tort law, criminal law, certainly property law, and even constitutional law.  EULAs attempt to replace those rules with contractual provisions.

A thought experiment: Let's say you and I agree that I will buy your watch.  We've made a contract.  That contract works because there is a background legal rule that says I own a property right that already binds the entire world. 

But here's an example of a contract that doesn't work: Let's say you and I agree that everyone else who reads this Blog has no property interest in their watches.  Private property in watches, you and I agree, doesn't exist.

Wait a minute -- we can't DO that.  And that's precisely the problem we're seeing with EULAs right now.  EULAs all over (except Linden's, SOE's Station Exchange, and a few others) eliminate private property in virtual property.  Another example: WoWGlider is getting sued based on Blizzard's pretty risible restriction stopping any third party software from interacting with WoW.  (Oooookay -- is Blizzard's next target Microsoft?  'Cause my operating system sure interacts with WoW.)

Ok, so that's the first point -- contracts can't create community-spanning obligations because communities are porous at the edges.  Even if you force everyone to sign contracts with the community service provider as they enter the world, players can't enforce those contracts against each other.  All those "Code of Conduct rules are completely unenforceable against other players because, of course, you didn't sign any contract with those other players, only with the community service provider.    Ever been harassed, and thought "wow, they signed a contract saying they wouldn't do that."?  Turns out they did, but they didn't sign it with you. And, of course, the contract doesn't bind parties outside of the world who never signed the contract -- which (according to their claims) comprises the majority of RMT middlemen.

Second point: if EULAs can't create the rules of the game, what should courts turn to?  Well, NFL employment contracts certainly don't create the rules of the game.  What does?  Community custom and practice. 

At first blush, this may sound nuts.  But think about it -- isn't the most important fact in the WoWGlider case the fact that *everyone* uses third-party software?  Can you imagine high-end raiding without CTRaid?  Should a judge really construe the contract between Blizzard and me to (1) bind MDY (makers of WoWGlider); and (2) eliminate third-party software?  Probably not. 

I'd love your comments -- sending me emails at jofairfi at indiana dot edu would be fantastic.  Constructive criticism is of course welcome -- and comments that help me support my arguments are even MORE welcome!


Comments on Anti-Social Contracts:

Chad O'Neil says:

I think you bring up some important points. I wonder were economics fits in. Might be interesting to think about how various currencies around the world as their values are impact by certain laws (tariffs for example) could be considered in your examples.

When faced with gold selling and other third party services blizzard often talk of how it is protecting the game (community?). Do you think they have a kind of public in mind? It is clear from the EULA that their interests take priority, but it seems a balance between public/commercial could be considered.

Posted Jul 26, 2007 12:18:34 PM | link

Lavant says:

Anti-social contracts seems to be a great way to look at the danger involved in virtual world regulation. But the fact that communities need public law points right to the need for a police force to govern once that law is in place. No doubt that "Communities need legal relationships that run between every member of the community and every other member," but how to form this relationship? My intuition is to let the players decide; in a transparent decision making process at the very least, whether or not the Bliz ultimately makes that decision unilaterally. Yet it seems to be the point of the EULA to create these legal relationships between players. Whether or not legally viable, the contracts could be working to create form this social contract. Perhaps we need to evaluate ways in which this is not the case. This is where I have been particularly interested in WoWGlider and those you actually use it, what they do with it adn what they do if banned. First of a ll a good deal of WoWGlider users are gold farmers and the RMT crowd, but a large portion are also members of raiding guilds that use the program to allow a more immersive experience by eliminating the grind. Yet they are in most cases ineveitably banned. At this point they return to the game after having bought a new activation key and continued subscription. In this way although these are contracts of adhesion, their anti-social nature is underlined by this system of exploitation. The anti-social part comes from the top down reliance upon what was once an adhoc agreement in order to cover developers backs. Perhaps liability need to be revisited. As long as developers are liable for the interaction of these communities we will see anti-social governance.

Posted Jul 26, 2007 1:14:51 PM | link

Timothy Dang says:

I'm not comfortable with your metaphors. If we think of a VW as like a nation, then the EULA could be considered something like an oath of citizenship or a Visa application, which could be considered contracts between an individual and a government. Part of that contract is that within the nation/game public law applies.

Now, most EULAs encode (hopefully benevolent) tyranny as the public law--there's strong guidelines, but essentially the law is don't piss off the service provider.

Anyway, I can't harass another player not because I have a "don't harass" contract with that player, but because I have a contract with the service provider saying I'll follow the rules, and the rules say I won't harass another player.

This is what I got out of much of your post, and the part relevant to VW's. If you're more interested in instances like the WoW EULA's enforceability versus WoWGlider or whatever, I don't see that as related to the community or VW aspect of things, it's simply a matter of the scope of EULA's which would be the same (And I Ain't No Lawyer) in single-user software?

Posted Jul 26, 2007 1:16:39 PM | link

Ola Fosheim Grøstad says:

Some examples -- it turns out that everyone in the world is obligated not to hit you. (Tort law.)
Similarly, everyone in the world is obligated to not walk on your land. (Property law.)

I get your point, but your examples are factually wrong, these are examples of local laws. E.g. In some countries you are allowed to beat up your wife and kids. In my country everyone are allowed to walk in my forest and I am not allowed to deny them access to the shoreline etc. There are very few "international" laws, and where they exist the local varients are like night and day (or at least morning and twilight).

What is needed in VW is something that works on the global level not just in the US.

Posted Jul 26, 2007 1:38:22 PM | link

Joshua_Fairfield says:

@Ola:

A different way of phrasing your point is that the US has overwhelmingly adopted private law (contract) as the governing law of virtual worlds. Other countries (notably, South Korea, to the extent of my knowledge) have used a more government-interventionist regime. So you're right to point out that different countries use different approaches, and that part of the problem is that we assume US hegemony over the internet will translate into US contract law governing all virtual worlds.

As for my examples, I'm comfortable with them. They're drawn from the common law, but they don't have to be universal to be accurate, and to make my point.

Posted Jul 26, 2007 1:48:28 PM | link

Ola Fosheim Grøstad says:

Uhm, I probably don't get your point and probably interpreted "world" differently from what you meant, but it is rather obvious that different local laws (or policy making practices) arise from different cultural expectations (and these expectations are even more different than the differing laws themselves might suggest). Since a global VW has to work in a crosscultural fashion the "Community custom and practice" approach is quite insufficient and probably contradictionary which is where a reasonable EULA can create a shared baseline. Unfortunately EULAs seem to be written with what you call the US hegemony in mind, so non-local (US) players might not bother to read them and assumes the operator claims ownership to your firstborn son, but realize that they can't get away with it and simply go for anarchy... *shrugs*

In effect they long-winded and very american EULA simply becomes the rules that governs the behaviour of the operator and not the behaviour of the players. Or?

Posted Jul 26, 2007 2:35:20 PM | link

Lavant says:

Ola said, "What is needed in VW is something that works on the global level not just in the US."

I think a lot of us here agree on that point, including Joshua. His point was not to argue for international application of US laws, but in fact encouraging the formation of local laws but customs in particular. He said, "EULAs can't create the rules of the game, what should courts turn to? Well, NFL employment contracts certainly don't create the rules of the game. What does? Community custom and practice. " These are contingent on the local environment. Similarly, I would love to see virtual worlds that offer a multiplicity of gaming environments, global on some levels and very local on others. We live in an interconnected world but still need local communities. Global communication and interaction utilities are key. Yet instancing seems to be the best solution we have to foster these local communities. Yet it seems the danger is the magic circle. If we clamor for locally isolated communities, we risk a whole host of other problems the most obvious being nationalism, isolationism and inherent tensions and social and economic repercussions.

Posted Jul 26, 2007 3:18:31 PM | link

Ola Fosheim Grøstad says:

Lavant, yep, I also thought about the magic circle thing, and if one think about it EULAs sometime destroys the magic circle too. Imagine a cruel fictional horror universe where you are supposed to act decently and civilized? OOC apologies just kills it.

The magic circle is about creating new spheres of new customs, if players were allowed to trumph the developer with customs they bring in from other games then all games would be the same. I assumed that we were talking about the SLish aspects (which also can be found in games which are more sports than fiction), otherwise the argument becomes very difficult to follow. Agreed.

Ok, if one tries to create multiple self-governed communities of the same game using instancing and keep the population low then it makes a lot more sense... I'd hate to be a game operator though. Or a judge in case someone decided to sue over a ban for indecent behaviour: "You see, on OUR SERVER kids looks like adults and adults look like kids, it's part of our fiction, so you see, on OUR SERVER this isn't pedophile roleplay. It is fictional romances between consenting adults!"

How small populations do you need in order to get customs and practices to converge? 1000? I guess that means 8000 instances with their own customs and practices... in the worst case. Or?

Posted Jul 26, 2007 3:49:17 PM | link

MrOsterman says:

Your case sounds good right up to the point where you talk about Rules for a Game being on the same page as Laws for a Society. They don't mesh.

Let's talk about your NFL analogy to WoW.

Football players can eat all kinds of things and take all kinds of drugs. If they get sick, they get antibiotics. If they get hurt they get pain killers to help them recover and rehab. They eat healthy diets to help them stay in shape; or they eat high fat/ high protien diets to stay beefy.

Now the NFL has rules which say that there are some things they cannot eat or take. They cannot take drugs which enhance their muscle mass growth artificially. What's the difference between a synthetic steroid and eating a lot of protien? One is permissable under the rules and the contract both, and one is not.

Surely no court would allow the NFL to perscribe a diet to all the players that was uniform, but that same court should recognize the contract law that specifies what a player can't take. Similarly the EULA of Blizzard (I'm wagering as a legal layman) allows them to permit some Mods and not others.

WoWGlider is to Synthetic Steroids as Other Mods are to Other Healthy dieting.

I was, frankly, in your camp of considering Virtual Worlds as needing a form of "Popular Consent" to be ruled by, right up to till the part where you revealed your essay as a thinly veiled defense of botting and cheating in an online game. Games have rules, often more restrictive then society at large (If the goal is to put the ball into a net, why can't I use my hands or invent a device to hit it harder? Oh, becuase we're playing the Game Soccer (Football) and therefore have more restrictions on our goal attainment).

In the context of Second Life and other free form VW's you may have a case. But for a game, there is always an arbitrary rules set, set down first by the Game Master, Dungeon Master, Game maker or Developer. If you don't like the rules you are free to not come over and play.

Posted Jul 26, 2007 4:04:52 PM | link

Benjamin Duranske (avatar 'Benjamin Noble') says:

I may be missing something here, but is your argument, essentially, that there should be a body of real life law -- call it "Game Law" -- that replaces EULAs for virtual worlds and MMO games, maybe protecting users' rights to property, free speech, and a handful of other things most people think are good?

Though I do think that courts are going to do this to some degree, especially regarding property clauses in EULAs, I don't see putting "Game Law" on the same level as "Tort Law" is a good thing over all, simply because there are an infinite number of possible game worlds, but only one real one. So game rules can differ wildly, and that will get sorted out by the market, whereas changing countries is pretty hard, and changing worlds -- if we end up with worldwide law at some point -- is currently impossible.

The NFL is actually a great example of this, but I'm not sure it supports your position. The NFL's "rules" (which, you are right, basically come from community expectations) seem to me actually be an almost perfect parallel for how virtual worlds EULAs work right now.

Starting at the highest level, the NFL is, of course, governed by a set of U.S. laws that *their* football rules have to work within (for example, they can't change their rules to allow the coach to try to shoot the opposing quarterback with a crossbow whenever he has the ball).

The second level is the agreement between the NFL and its players. And there, they essentially *do* have the equivalent of a EULA. It's a contract between the players and the NFL that includes a drug policy, some semi-arbitrary rules (e.g. no doing certain kinds of dances on the field or you'll have to pay a fine), and the game rules (e.g. your team loses 15 yards if you grab someone's facemask intentionally). Everybody who plays in the NFL agrees to these rules. I'd even bet that there's an actual document that gets signed by each player that spells all this out.

This all means that if I want to create a new league where there was no "fair catch" rule and the field was smaller (this was actually tried a couple years ago) I could, as long as it comports with first level of U.S. law (no killing each other, etc).

Similarly, right now, if I want to create a new virtual where griefing is allowed, I own everything you make, and you have to look exactly like me all the time, I could do that too. Whether people show up and sign my EULA is up to them.

Are you saying it would be sufficiently better if griefing, property, and free speech and such was standardized under an umbrella "Game Law" that it would make up for depriving consumers of choice? I'm not sure I see how that's true, and I'd be a little surprised if game designers wouldn't fight against such a move.

Posted Jul 26, 2007 4:10:26 PM | link

Andy Havens says:

Joshua: I'm going to disagree with you on several counts here...

You say, "Communities need legal relationships that run between every member of the community and every other member." They don't, really, need law any more than they need contracts. Just as it would be insane to ask everyone you meet to sign an "I won't hit you" contract before interacting with them, it's equally as insane to begin any community relationship with a review of the relevant or conflicting laws. There are assumptions in all relationships about behaviors, some of which are governed by law, some by contract, some by social construct and some by personal observation. If I see you acting like a drunken lout at a party, I won't invite you into my "Quiet, Polite Community" regardless of laws, contracts, etc.

Different relationships require different sets of guidelines, some of which need to be written down so that members aren't confused. If you have a theater group and post the rule, "Attendees will not be seated after the show starts," that's not a contract or law... but a rule made to clarify a particular situation.

Contracts are required between individuals as a means of solidifying rules that aren't necessarily law. You can give me your watch for free or pay, and that's legal. If I take it, and there isn't some kind of contract (written, verbal or implied) that's stealing.

Contracts among groups of people aren't in any way unusual. Many businesses have codes of conduct that they require their employees to adhere to, that are super-legal, and that help build community rather than knock it down. If everyone at my company knows, for example, that company rules allow or forbid some behaviors, it can make for a more comfortable community for those who choose to participate.

I think Benjamin's example of doping in sports is a great one. Taking steroids is, often, not illegal. I've taken certain kinds for migraines. But take them when you are participating in many organized sports... and though it's not illegal, you'll be kicked out.

Same for WoW. All players agree to abide by rules; these are, in some cases, community standards as well as legal requirements. For example, although it's generally ignored, the prohibition against creating character names that are famous, derogatory or racist is a "community standard." Would you have that be a law? How would you arbitrate it from game to game?

The thing about WOWGlider and other bots is just... well... justification of cheating. If you want to argue that "everyone does it," well I don't find it a compelling argument, as I played WoW without ever using a bot or buying gold.

How do you propose governing behavior in shared spaces where one party (the publisher) provides a service that allows thousands or millions of others to form communities? If there are no rules, then the lowest common denominator can (and probably will) win.

The only hassle that contracts provide is when they're badly written, when people don't understand them, or when they want to get around them. I signed a hugely complex contract with my mortgage bank after spending 30 minutes reading it over and determining that it was basically the legally required language that amounted to, "You pay for the house over time; if you don't, we take it away."

That's not hassle; it's clarity. And while my relationship with my bank may not constitute a community, mortgage contracts *allow for* community, in that owning houses wouldn't be as possible without them. So, I believe, do the EULAs and TOSs allow for community by providing mutual understandings of behaviors among those who want to participate...

... or, at least, those who want to obey the rules.

Posted Jul 26, 2007 5:17:40 PM | link

Lavant says:

MrOsterman said, "But for a game, there is always an arbitrary rules set, set down first by the Game Master, Dungeon Master, Game maker or Developer. If you don't like the rules you are free to not come over and play."

Underlying this argument is an assumption of a top down system of community standards and rule enforcement that does not account for the way value is created in and around games and in fact the way those very community standards are *jointly* created by *both* the community and developer. The developer is for sure a vital part of the community, the catalyst itself, but not the only part. They are crucial towards making and managing the game and to insure its continued functioning and support. But there is a certain amount of responsibility that comes with centralized power. Unfortunately, there are significant systems of exploitation involved in the WoWGlider case and this points to a great deal of malfeacent, non-transparent governance. Player communities have the right to know how the community is being run. This brings me to the comment that you are free to leave if you don't like the rules. This shallow argument fails to account for the high exit costs that developers attempt to impose on players and underlies Vivendi’s (Blizzards parent company) business strategies. If you don’t believe me see page 15 of their investor report which they attempted to have removed from the internet. See June 15th. Excerpt: “Advantages that accrue to highly successful MMORPGs... high consumer switching costs– the player has to leave their characters and friends!”

Now at first glance one might say defend this as a legitimate benefit that accrues to successful virtual worlds. But what about in the case of company towns? Jack Balkin has done great work on this. He notes, “When a business monopolizes control over the central modes of communication within a community, it must act as a fiduciary for the public interest and it must allow its property to be used for the free exchange of ideas.”

But how in the world WoWglider is used for the free exchange of ideas is besides the point: the developer must “act as a fiduciary for the public interest.” The bottom line is that people are significantly dependent upon these worlds for both community and commerce and are not free to leave willy nilly, even in the context of an privately owned entertainment space such as WoW. Given the worlds are becoming an extension of earthly reality, what is the public interest and who decides what is in the public interest on the synthetic frontier? First and foremost to protect the public interest means to defend a diverse group of individuals. Different members of the public are interested in different aspects of community life. Although one person may think an activity is cheating, it may not be to another. Furthermore, WoWGlider is not necessarily cheating under all circumstances contingent upon how it is actually used by large numbers of legitimate community base including raiding guilds and casual role players alike. Bright line rules are as evil as the magic circle. Not all community members share the same ideals as each other, nor the developer and vice versa. Where the law needs to step in is to provide those constitutional rights of the whole community. But the question becomes how to please everyone. I would suggest that segmentation and plurality is key.

Posted Jul 26, 2007 7:34:32 PM | link

MrOsterman says:

"Where the law needs to step in is to provide those constitutional rights of the whole community".

I understand the interest to protect certain rights within certain contexts, however I have never been comfortable with the sense of community ownership in virtual worlds as they have currently been implimented. The largest VW so far is WoW where the primary interaction is "play". Level up, get stuff, move on. But the entire time it is clear that you are playing in someone else's sand box.

Sure you might "create" something, but in the WoW context you're only creating what someone else has created, at least in the form of virtual goods. You may create a guild or a fellowship or a kinship, but those are more abstract creations and actually are transferable from one VW to the next. Many "clans" move from game to game over time as one MMO is mastered and they move to another.

But that does not change who owns the playground. I think of WoW as being in Blizzard's house. Now suppose I invited you to my house for a game of DnD. You create a character we play for a while then you start breaking some of the arbitrary rules I have set down for the game. Let's even say they're horribly arbitrary rules, ones you only reluctantly agreed to play by. So I throw you out of my house. It's my house, I have that right.

Now what of those "items" you created. Since they can't be taken with you, they're gone. The excepting being the intellectual property you created with your character's persona. Yes you might no longer have access to your friends. If you don't know them in any other context then my kicking you out, or your chosing to leave ends those friendships. From experience I've seen many a gamer take a lot of flak from a DM they didn't like becuase they liked the company of the gaming table. But when the dust settles: My house, my rules.

The case of WoWGlider cannot seem more clear cut to me. The people who run the game do not believe that it is in the best interest of the game for people to be able to "play" while not actually "playing". It is their sandbox; their rules. Your rights then include the right to know this rule before you pay for access to that sandbox, and the right to stop paying when you decide to leave. I fail to see where anyone has any rights beyond that, save the rights of the business to reasonably refuse to serve someone who violates the rules they set out for customers.

I would never tollerate a legal system that demands I let you come onto my property and then start calling my wife names. The real question is whose rights matter more? Your right to play the game as you chose, or their right to refuse you service?

Posted Jul 26, 2007 9:22:58 PM | link

Lavant says:

It doesn't seem like the right to play and the right to refuse service are mutually exclusive, given the capabilities of segmentation and the plurality of gaming environments possible. With the click of a button we can have new servers, new rules, new social order, new communities. It comes down to serving and *expanding* the entirety of the gaming community. Profit looms by expanding markets. But experimentation is a prerequisite, not to mention the goodwill it fosters. One might argue that there is no way in the world that wowglider creates goodwill for most players. In reality, most players don't know about wowglider and those who do 1.dont care or 2.are against it only if they know its against the terms of service and 3.hate it with every bone in their body. But what is the makeup fo this. When was the last time the player community was polled to find out??? The point I am trying to make is that players need more input as to how their communities are run. Vive Koster's inalienable rights of avatars!

Posted Jul 26, 2007 10:02:38 PM | link

Richard Bartle says:

Joshua Fairfield>Why do we let contracts govern virtual communities?

Because it makes sense for a developer and a player to have a contractual relationship with one another. What you mean is why do we ONLY let contracts govern virtual communities.

>Communities need public law.

Supposing they do, that doesn't mean different communities need the same public law. What works for WoW won't necessarily work for SL and won't necessarily work for Club Penguin. Those communities need bylaws specific to them.

>And that's precisely the problem we're seeing with EULAs right now. EULAs all over (except Linden's, SOE's Station Exchange, and a few others) eliminate private property in virtual property.

That's only a problem if the players WANT private property in virtual property.

Let's say that I and a bunch of my friends believe, crazy people that we are, that we'll have a better game experience if we play in a virtual world that explicitly does NOT have private property. Should we not be able to create such a virtual world? Should be not, as developers of that world, be able to tell people who come along with the expectation of having private property there that sorry, one of the conditions of playing in this world is that you give up any and all real and imagined rights to any property that may or may not exist in that world, in perpetuity? Why would that be a "problem"?

>Even if you force everyone to sign contracts with the community service provider as they enter the world, players can't enforce those contracts against each other.

I think we may have something that does allow for that under English law: covenants. I'm not sure of the details, but as I understand it people can sign a covenant which then allows other people to challenge them in court if they break it. For example, if you wanted to buy a Georgian house in a prestigious London street where all the houses are kept in immaculate condition and have the same, cream-coloured exterior paint, you would almost certainly have to sign a covenant that said you, too, would keep your house in immaculate condition and use the same, cream-coloured paint, and that when you sold it on to someone else then they'd have to sign the same covenant. This way, all the houses are the same, which gives the street its impressive look and makes them all worth more money than if people painted them whatever colour they liked and put in double-glazed bay windows. If you ignored the covenant and painted your house a nice pastel shade of blue, you would be taken to court by your neighbours and made to have it painted cream. No landlord or council would do it - it would be the neighbours who felt their property values affected.

Could something like that work for virtual worlds?

Richard

Posted Jul 27, 2007 3:59:36 AM | link

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Posted Jul 27, 2007 5:05:05 AM | link

Joshua_Fairfield says:

Wow, some great stuff. That language from the investor report is going straight into the paper, with my heartfelt thanks. I'd forgotten that they'd said it that cleanly.

@MrOsterman:

Whoah, there. I think botting is outside of the community consensus, for WoW. I wouldn't defend it for the world. (Although, of course, it's apparently fine for games like pre-NGE SWG. Moisture farming for the win!)

But if botting is BOTH a breach of the EULA, AND it is a breach of community norms, then how can we tell which is more important?

Well, the WoW EULA forbids third-party software. That's nuts. CTRaid is a violation of that provision, and we know that Blizzard loves CTRaid and uses it as a feature testbed.

So we KNOW that the EULA isn't what makes botting bad. What does? Community custom and practice. That's all I'm saying.

Posted Jul 27, 2007 9:24:30 AM | link

Andy Havens says:

Lavant said: "Underlying this argument is an assumption of a top down system of community standards and rule enforcement that does not account for the way value is created in and around games and in fact the way those very community standards are *jointly* created by *both* the community and developer."

Well, yes and no. I'd argue that *some* standards are top down, and some are player created. It's just that the player created standards have to happen within the bounds of those provided by the developers.

It's a case of, as I said before, where you want the lowest common denominator to be, and where to look for standards. For example, US law provides baseline standards for what constitutes harassment; companies can't say, "We'll ignore these; harass on!" But they *can* say, "We want even stricter standards."

In the same way, games like WoW provide very few rules about what players can/can't say in chat, how they can go about recruiting and forming guilds, how guild membership is structured (except for the software part), how people should/shouldn't treat the game fiction (RP issues), etc. Many of the community standards will be particular to a group or guild, or even a couple friends. If you're better than me, but don't ever want to wait for me to catch up to you, I may decide to find a slower partner for group raids. Blizzard has nothing to say about that, and you and I have everything to say.

But if there are not common, system-wide standards -- whether you call them rules, laws or covenants -- then where do you draw the line?

For example, suppose a group of players decide that they want, for the purposes of the way they play, to have indestructible characters? For them, the fun is in the art of movement, RP, dialog etc. Do you let them do so? And do you let them farm and hunt in areas where "mortal" characters are also compete for game resources?

The comparison to company towns is, I think, not valid. The difference between an employer restricting constitutional rights in a geographic area vs. the provider of a service dictating rules to customers is pretty huge.

Posted Jul 27, 2007 9:30:23 AM | link

Joshua_Fairfield says:

@Richard:

Yes - covenants are hybrid property / contract arrangements. What makes a covenant applicable by you against your neighbor is that you have a property interest attached to your land that (and so does your neighbor) that says you and she can and can't do certain things.

The key here is the property interest. If that property interest didn't exist, the two of you would have nothing but contracts with the subdeveloper. You could complain to the subdeveloper that your neighbor had too many lawn gnomes on the front lawn, but you couldn't do anything about it.

With a covenant, it's your property interest that lets you do something about it.

So -- I agree with you entirely, covenants are a key legal tool. But they rely on background, non-contractual law (in this case property, but other examples rely on other background law) in order to get the job done.

As you say -- the problem isn't contracts, the problem is using contracts alone.

Posted Jul 27, 2007 9:37:05 AM | link

aaron says:

you might interested in this article by one nicholas gervassis. he tackles something similar to your thesis and something along the lines of lastowka & hunter's cyborg proposal.

Posted Jul 27, 2007 10:13:33 AM | link

aaron says:

you might interested in this article by one nicholas gervassis. he tackles something similar to your thesis and something along the lines of lastowka & hunter's cyborg proposal.

Posted Jul 27, 2007 10:15:27 AM | link

aaron says:

oops, i apologise for the double-post

Posted Jul 27, 2007 10:16:13 AM | link

Richard Bartle says:

Joshua>What makes a covenant applicable by you against your neighbor is that you have a property interest attached to your land that (and so does your neighbor) that says you and she can and can't do certain things.

OK, well if covenants are tied to property then we can't use them as is, but that doesn't mean we can't argue for something similar to be provided, does it? Perhaps we should be asking for an equivalent of covenants that exists not for property rights but for play rights?

Richard

Posted Jul 27, 2007 12:37:30 PM | link

Joshua_Fairfield says:

@Richard

Absolutely. I think a covenant-modeled play right would be about perfect -- that's more or less what I'm suggesting, although I just call it a straight-up development in the common law of property.

By the way, though, you can't make such covenant-modeled play rights purely out of contract, because contracts can't bind third parties who haven't signed them.

To get what we want, I *think* you have to advance property law such that those rights are enforceable against third parties. (And, unsurprisingly, it's third parties (IGE, WoWGlider) that are at the center of a lot of this).

Or, another way of putting it -- you COULD do all of this purely by contract, if you made contracts enforceable against third parties who haven't signed them. As James will point out, the tort of intentional interference in fact does that, but I don't know that anyone thinks that's a good outcome.

So, even though I'm happy to meet in the middle, I don't want to be dishonest about my guess as to what will happen next. Courts would, I think, pretty promptly construe such covenant-modeled play rights as some form of property.

Posted Jul 27, 2007 1:47:34 PM | link

Indy says:

Joshua, I don't think you realize how CTRaid works. It's not actually a third-party program, rather it is code that is parsed and executed *by WoW*. You cannot compare it with the likes of Wowglider.

Indeed, CTRaid used to enable some gameplay automation that Blizzard did not like. Nobody was banned (much less sued) for it... WoW itself was patched with a changed macro language.

Posted Jul 27, 2007 2:37:48 PM | link

Mike Sellers says:

So, to ask the inevitable: why would a VW developer see any need to move beyond the EULA?

As it is currently, everyone who says they want to enter into the private space that is a virtual world agrees to the service operator's EULA. Third parties like IGE don't, but they can't do business without someone who has signed the EULA violating it (the same goes for WoWGlider, but not for other mods such as CTRaid that stay within the user's agreement with the VW operator). And the EULA covers interactions between people in that each of them has agreed with the service provider to do or not do certain things to or with other users.

These communities are enclosed, not porous at the edges as you said earlier: you're either a participant in the space (and signatory to the EULA) the VW operator has set up, or you're not. So, I'm left wondering why a VW developer would have any desire or incentive to move beyond the EULA, which seems to do what's needed.

Posted Jul 27, 2007 2:47:04 PM | link

Lavant says:

@ Indy

MDY Industries was the first to file suit, seeking declaratory judgement. Blizzard counter-sued months later in what seems like a witch-hunt to protect the "integrity of the game." I believe Blizzard is the least-cost avoider of the externalities associated with WoWGlider. Start a new server and banish all those who use it to that server. An innovative strategy that avoids courts and avoids systems of exploitation.

Posted Jul 27, 2007 5:27:14 PM | link

Lavant says:

Richard >> " Should we not be able to create such a virtual world?"

Why so binary Richard? I agree. Of course you should have the right to create that type of virtual world. But there is seldom just one virtual world within the larger framework of an MMO. In the case of WoW, you have over 100+ servers with entirely different populations of users yet homogenous play. It might help to look at this from the customer's perspective as they are the ones who pay the monthly subscription. The great majority of these users will like your narrow vision of how the virtual world should be played..Call it the standard server...Yet there exist additional demographics of players such that it would be foolish not to segment the market in order to maximize developer surplus. TN needs a graph drawing tool so I can explain more clearly.

Regardless, the limited nature of the current offering (no variants in server rules and regulations) circumvents the formation of significant markets never to avail themselves. Society is worse off and developers have less money in their pockets. Now this argument is not to say that implementation would be a walk in the park and would not require experimentation, investment and risk, but seeks to highlight how developers have room to expand MMO demographic segments by allowing for diverse and emergent play. This circumvention is generally formed on the basis of developers' preference as gamers-- which is where a great deal of MMO structure comes from in the first place. The MMO was born as your petri dish baby, no doubt, but there comes a day when you must let that child out into the world. Until now, the MMO niche market has been driven by gamer god's irrational exuberance.

As more casual and unfamiliar users flock to synthetic realms, game gods need to rethink their rational and the law needs to protect the right to play. However, there is no one type of play, no one type of gamer and there should not be only one type of community. MMOs are massive parallel universes and shards allow for separate communities to form within an overall larger framework. The danger of separate yet together logic needs to be considered, but why not allow for more diversity? Why not allow the users to decide the exact specifications of the community: players, quests, rules, you name it. And this is not to argue for user-created content à la SL, but to argue for more choices and input in our beloved MMORPGs. Yet the love is in the eye of the beholder. As operation costs fall, this will become more and more possible. As someone asked me at a recent conference, "Why can't I host my own server with a group of my closest friends, protecting the sanctity of what I view as the magic circle, be it RMT prohibition or what have you?" Technological constraints may seem to be an easy answer, so moving beyond these what do Terranovians think? Why not grant private communities the freedom to tinker? Even if created as someone else's intectual property. Perhaps it is important to remember the purpose of IP in the first place: to further the advancement of the useful arts and sciences. Once we have communities, it seems IP law needs to take that into consideration. Do the gains from granting these monopoly rights outweight the costs to society?

Posted Jul 27, 2007 5:35:30 PM | link

Matt Mihaly says:

Lavant wrote:

s someone asked me at a recent conference, "Why can't I host my own server with a group of my closest friends, protecting the sanctity of what I view as the magic circle, be it RMT prohibition or what have you?"

Is this a trick question? There are thousands of hobbyists doing exactly that. They've been doing it since the early 90s.

http://www.mudconnect.com currently lists 1515 virtual worlds, almost all of which are run by hobbyists who downloaded whole codebases for a virtual world, content included, and started altering from there.

--matt

Posted Jul 27, 2007 7:10:42 PM | link

Lavant says:

Yet that is prohibited according to law. So while you can, the law says differently. Not to mention what the Bliz would say.

Posted Jul 27, 2007 7:38:53 PM | link

Lavant says:

PS. Thanks for the link.

Posted Jul 27, 2007 7:41:21 PM | link

Amarilla says:

"..and the law needs to protect the right to play. "

But my dear, you already have the freedom to pay a subscription to my game, or to build your own game using your own money....your rights are in no danger , really. Did anybody prevented you to buy yourself an icecream, a DVD or to apply to a game ?!

"...but why not allow for more diversity? Why not allow the users to decide the exact specifications of the community: players, quests, rules, you name it."

Ummm....because it costed me few $billions to make my game , and i know better what's good and what's not for my game. So far my revenues are ok, thank you.

"Perhaps it is important to remember the purpose of IP in the first place: to further the advancement of the useful arts and sciences. "

Well, i'm glad you too see MY GAME as a masterpiece of art & science .

"Once we have communities, it seems IP law needs to take that into consideration."

We don't have communities, we have a bunch of anonymous strangers playing the same game online.

Posted Jul 27, 2007 7:45:02 PM | link

Lavant says:

@Amarilla, Ma Cherie, Glad your so sure that you know exactly what customers want. And when the next innovative MMO comes out that actually caters to this demand you will be left thinking wtf mate? And then you'll work to rethink the wheel already significantly behind the curve. Its only a matter of time until the next big MMO surplants your market power and puts your archaic way of thinking and regulation out of its misery.

Posted Jul 27, 2007 8:04:48 PM | link

Mike Sellers says:

Lavant said: "Why can't I host my own server with a group of my closest friends, protecting the sanctity of what I view as the magic circle, be it RMT prohibition or what have you?"

Given your response to Matt, I suspect you're not talking about setting up your own server of your own game (which as Matt rightly points out, is done all the time), but "your own" copy of WoW?

If that's your question, the answer should be fairly obvious: because it's not yours. Blizzard poured tens of millions of dollars into creating a world so they could make money on it, which they do by controlling (and charing for) access to it. The world software and data is their property, and you have no right to access or use it in ways they do not condone.

When you create your own huge graphical virtual world and have spent millions of dollars and years of your life doing so, then see how likely you'd be to just let other people set up a copy of it in their garage.

Why not allow the users to decide the exact specifications of the community: players, quests, rules, you name it.

Because players are not designers. If you want to do this sort of thing on a small scale, put up your own MUD server or NWN game. If you persist, you may get to something that others would enjoy. But it's stupefyingly more difficult than most players think it is to do this well.

Once we have communities, it seems IP law needs to take that into consideration. Do the gains from granting these monopoly rights outweight the costs to society?

You're seriously misunderstanding IP rights, community rights, and monopolies. No MMOG today is a monopoly. No community exists that could begin to claim any sort of eminent domain over the private works of a company that creates a virtual world. These are private, for-profit services every bit as much as restaurants, country clubs, amusement parks, etc. Your right to say how one is run extends only to the one you make. If you don't like how Blizzard or Sony or Linden run their service, don't pay for it -- and don't expect them to let you take their property and do what you like with it.

Posted Jul 27, 2007 8:15:34 PM | link

Lavant says:

@ Mike

Copyright, patent, trademark....these are monopoly rights created by law. The very concept of copyright and intellectual property are monopoly rights created to give producers the right incentives to create what could otherwise be freely taken. Given that a great deal of value of these games is not created by the developer, but freely by those who use it, perhaps we need to reconsider who has which bundle fo rights? Who expends what effort and what value is created? If I create an addon, modification or even a machinima clip the value of Blizzard's game increases. Should I not be able to sell that machinima clip solely because someone else created the tools I used to make it? RedvsBlue is a case in point. Its not a matter of substitute uses, but that of complementary escalation of value. As RvB became bigger and bigger, Halo players continue to multiply. Bungie has even added machinima tools built in to Halo 3. And Bungie has never protested that Rooster Teeth sell their product at substantial profit. Why? Halo is that much better because of the publicity it provides. The law must allow for this kind of symbiosis. Synergistic effects fuel the distraction-economy. My concern is this: when there is tremendous value in the cultural life of intellectual property: that which happens beyond the creation and maintenance of the vw; society at that point needs to fully weigh the costs and benefits of IP regimes.

That aside, my main point is that developers would want to provide features allowing for as many communities as possible regardless of IP law because it would be profitable to do so...cultural value flows two ways and everyone is better off. Frankly I don't think many developers consider network effects of community as much as they should. And administrators especially don’t consider the positive regulatory effects created by permitting, but restricting behavior such as RMT, botting, farming, and gliding. The argument that the problem would escalate if allowed at all (give an inch and lose a foot) is not what history has shown. It is easy to get wrapped up in bureaucratic systems of exploitation, banning users that will then return to the game, rather than getting to the heart of the problem: the grinding nature of repetitive monotony. And a great deal of this can be eliminated by offering more play spaces with a multiplicity of rules and options that cater to larger groups of potential buyers! Why be extremely exclusive when so much value comes to those as inclusive as possible? Do we want the law to prevent artistic creations? NO! But we certainly don’t want the law to prevent or define the culture that follows.

Posted Jul 27, 2007 9:55:25 PM | link

Andy Havens says:

Lavant said: "Regardless, the limited nature of the current offering (no variants in server rules and regulations) circumvents the formation of significant markets never to avail themselves. Society is worse off and developers have less money in their pockets."

Two things. One, you may be wrong on the face of those statements. Suppose developing multiple iterations/servers of the game costs much more per instance than the "standard" version. Complying with every, "We want XYZ-5" request, then, might cause the publisher to either not make money at all, or make significantly less... thus, arguably, driving away future investment in the company and thereby completely forestalling the development of entire future games which might have been much, much better than any of the happy little shards. Company loses, players lose... in the long run.

Now... assuming that there might be more money in the development of these shards, that still doesn't mean that the developer should make these changes just for the sake of current cash. The changes that some players might request could, conceivably, tarnish the brand image of the main version, allow for more illegal activity (thus putting the company at risk), or interfere with plans for future games.

It is the goal of most major service companies to balance the needs of the corporation (profit, legal issues, employee issues, etc.) with the requirements of customers. I've worked in several service industries, and nobody in management thinks to themselves, "Heh, heh, heh... We're the industry Gods... We can keep our customers from having fun, make less money, and put a stop to the development of future products. Mwa-ha-ha!"

It's exactly the opposite. If a company feels that it will get better returns from change, usually those changes will be made. But until there's a compelling market reason for a publisher to make the kind of changes your suggesting, it won't happen. It doesn't need to, there's no compelling legal argument, and so it just won't.

I like the idea of an RMT server. I think most non-RMT servers would still see lots of RMT, as I think many people don't use the service to level up to their raiding buddies, but to level up past the "normals." But if you could somehow sequester RMT to designated servers, that would be great. I'd love an RP server where anyone who mentions Paris Hilton in open chat gets booted permanently.

But these things will happen when, and only when, a publisher feels that doing them will be more profitable than not doing them. And that's fine. If you're right, then those companies that try the things you want will do better, and other publishers will either imitate them, or go bust.

Mike is right; these spaces are owned by the creators, and that's a good thing. They have incredibly more skin in the game than any individual or group of players. They are much more likely to be focused on keeping the majority of players happy than any single player, who is most interested in his/her own experience.

The law gives players a bunch of rights already. But it doesn't -- and I don't think it should -- give players the right to play games in ways that are expressly forbidden by the intent and regs that are legally put in place by consensual agreements. Publishers can't have illegal contracts, no. But as long as the rules aren't illegal... EULA is good. Most arguments I've seen for "players' rights" end up sounding like the whining of people who want to make money illegally, or use world-y methods to level up.

Now... in the case of a space like SL, it gets a bit stranger. Since they have in their EULA the bit about players "owning their own IP," that can be pretty icky; screen shots with multiple folks' stuff in it, for example. What's the rule? It's not clear. But that's the case of bad EULA, not that EULA should go away.

Posted Jul 27, 2007 9:59:07 PM | link

MrOsterman says:

"Its only a matter of time until the next big MMO surplants your market power and puts your archaic way of thinking and regulation out of its misery."

Mon Capitane, au contraire...

WoW has 9 million paying subscribers. (Now granted only a small fraction of that 9 million have the expansion so far) I would say that the current trend among consumers is still not gravitating towards player based ownership, but rather the belief, or faith if you will, that MMO designers and administrators know what's best for the game at large.

I also think that if you to ask the typical "person" if they feel it is appropriate for a program to play a game for them so they don't have to, the majority would agree that it is *some* form of cheating. Would they do it? Quite possibly, but without some study to say for sure, we can't. All we *do* have is the word of the game admins that they don't want it.

Something else to consider: In Real World Law, it is not just a matter of laws but of Prosecutors being willing to bring a case to trial. Let's say that I, in a jealous rage, kill my wife's extramarital lover. Now, the law might be on my side (crime of passion and all that) but the first choice is that of the District Attorney to prosecute the case (criminally; any moron can bring a civil wrongful death suit which just boggles my mind; what happened to protection from double jeapordy?). If the DA opts not to bring the case to trial then I'm a free man.

Same with CTRaid and WoWGlider. Even if we overlook that CTRaid is a UI mod, where WoWGlider is a seperate executable file (it is right?), there's the fact that the "court" (in this case the developers) is chosing to not prosecute CTRaid, but is going after WoWGlider. That's their right, really, going back to "Their playground, their rules." Heck if they want to, it's in there they can turn it off tomorrow and walk away.

But let's all hope none of them read Ayne Rand (or at least like the profits they make enough to overlook some of the ideas therein).

Posted Jul 27, 2007 10:09:34 PM | link

Mike Sellers says:

Lavant: Given that a great deal of value of these games is not created by the developer, but freely by those who use it...

First, that's not a given. How, precisely, do people add "a great deal of value" to MMOGs -- and in what way is this different from the "value" created by those who attend a movie, restaurant, or amusement park?

By playing an MMOG you are not investing or creating value: you are using a service. The added value is in the money you pay to the game operator. Your presence in a game without that does not represent significant value. (Yes, there are "eyeball" business models, but those presume that at some point free-riders are monetized.)

...perhaps we need to reconsider who has which bundle fo rights?

Consider away. But short of a drastic change in law that would reverberate across many service industries, you're living in a fantasy land (and not one with elves). Are you going to march up to Blizzard, Sony, or Disney and demand your "rights"? Good luck with that.

Should I not be able to sell that machinima clip solely because someone else created the tools I used to make it?

Yes, you shouldn't. If you use the art and animations that are owned by someone else, then you don't own them. Claiming you do is ultimately fraudulent. I'm at a loss to understand why this is such a difficult point. If you don't own the work, you don't own the work.

And Bungie has never protested that Rooster Teeth sell their product at substantial profit. Why? Halo is that much better because of the publicity it provides.

Are you sure of this or are you assuming? I'm willing to bet that the people who make RedvsBlue have a nice tight legal contract with Bungie. Companies like this do not let anyone use their IP as they please. Again: fantasy land.

That aside, my main point is that developers would want to provide features allowing for as many communities as possible regardless of IP law because it would be profitable to do so...cultural value flows two ways and everyone is better off.

No, the people who did no work and took no risk to create the original IP are better off. The actual owner of the IP are in no way better off. Losing control of your hard work is never a good idea for any profit-making institution.

Frankly I don't think many developers consider network effects of community as much as they should. And administrators especially don’t consider the positive regulatory effects created by permitting, but restricting behavior such as RMT, botting, farming, and gliding.

Frankly -- and I say this with all due respect -- I don't think you have the slightest idea what you're talking about. You're speaking as a MMOG player (and one representing a fringe interest at that), as someone who likes the shiny object that someone else slaved over, and you want to justify taking it for yourself. Letting others steal your hard work or ruin the value of the service you provide for others (e.g. by allowing botting and the like) corrodes the value of what the game developer has worked so hard to protect.

Why be extremely exclusive when so much value comes to those as inclusive as possible?

When you make your multi-million dollar game, be as inclusive as you like. Somewhere along the way, I think you'll realize what so many before you have, that that is a great way to go quickly out of business.

Andy said: But as long as the rules aren't illegal... EULA is good.

Yeah, exactly. Thus my "inevitable" (and thus far unanswered) question above.

Posted Jul 27, 2007 10:18:56 PM | link

Amarilla says:

"Given that a great deal of value of these games is not created by the developer, but freely by those who use it..."

Of any value-type you're talking about, you're deeply wrong : a game's value , any sort of value , is created only by the developer.

"..If I create an addon, modification or even a machinima clip the value of Blizzard's game increases. "

No, i'm Blizzard and i consider the value decreases . Who are you to tell me different ?

"Should I not be able to sell that machinima clip solely because someone else created the tools I used to make it? "

I've never sold a tool to you, dude.

"The law must allow for this kind of symbiosis."

It already does ; as you've said, " allow ", not " enforce ".

"Do we want the law to prevent artistic creations? NO! "

But, yes, we want , and the law does already prevent a lot of stuff called " artistic " by its " creators ".

" But we certainly don’t want the law to prevent or define the culture that follows."

Well...we want, we want...that's one of the law's purposes and meanings .

Lavant, really, no offense , but you need to spend more time in the real world and less time in SL/Entropia.

"Copyright, patent, trademark....these are monopoly rights created by law."

Wrong. Go back to school or to a Library.

Posted Jul 27, 2007 10:40:04 PM | link

Amarilla says:

"Anti-Social Contracts
Joshua Fairfield

Why do we let contracts govern virtual communities?"

I guess we don't have " anti"- social contracts , but " a- social " ones. Because we're not talking about societies but about online games. The only contracts we have are the EULA/ToS, wich- if one consider them to be antisocial , is free to sue the developer or to not subscribe to that game.

What you're calling " contracts " , are the basic rules of ( any ) game : you cannot play chess following Solitaire's rules.

"But here's an example of a contract that doesn't work: Let's say you and I agree that everyone else who reads this Blog has no property interest in their watches. Private property in watches, you and I agree, doesn't exist.
Wait a minute -- we can't DO that."

But yes we can : this is a blog on a server located in the USA , what you ( and i ) CAN'T do is to extend our agreement OUTSIDE the blog : you cannot take my watch away based on what Amarilla agreed uppon. And WE don't " agree " , on a blog ( or in a game ) , we dont agree about player's private property or rights , we PRETEND to . In a game - or, as you call it, " VIRTUAL community ", we can , may and is funny to agree on anything .

Remember ? : " .....free of consequences ". When what happends in game , between alts, have legal significant consequences to the player, that's called : Amazon, e-commerce, online-gambling, porn-site, online Banking .

So far, Blizzard/LL/Mindark are selling online games.

And we're talking about online games, so far . And again, the alts does NOT form communities , only the persons, the players, does. The alts can form - if that's what the developer meant - VIRTUAL anything , including " communities ".

"... Communities are large numbers of people, who..." , you wrote this . In games you dont have peoples, you have alts, avatars, wich all of them belongs to the game's developer : the same as the chess Quin belongs to the chess and cannot do anything else but to follow chess' rules. What the chess Quinn does in game , belongs to the game; how ME and YOU're using that piece of wood , during the chess-play ,( maybe i'd like to stick it into your eyes ) is a matter of EULA and a matter of Laws .

Posted Jul 28, 2007 5:51:46 AM | link

robusticus says:

Quite an impressive collection of mistaken impressions, here.

Funny thing is, I bet Michael Donnelly would happily explain how easy it is to defeat his own bot, via code-is-law.

Although I would think since there is this selectiveness in 3rd party tool acceptance, that would dismiss Blizzard's claims to all the money made prior to their highly unprofessional and wholly disavowed cease-and-desist notice.

Posted Jul 28, 2007 10:53:18 AM | link

Andy Havens says:

Amarilla makes the point about in-game/world vs. extra-game that I was making earlier; within a system, players are free to make rules and form relationships based on what is allowed within that system.

For example, Amarilla and I and many other readers could agree that we don't like posts about Club Penguin. We could make that known, and let the bloggers know, via comments, that we will no longer read nor comment on Club Penguin posts. To do so is entirely within our "rights" as players on the TN blog.

We can also have social interactions that are purely between players. Everyone may decide that a certain commenter is a pain/troll, and agree to never reply to his/her comments. Again... perfectly reasonable (or at least, allowable), on-blog, player-to-player, social contracts.

If, however, I decide that I want Richard to write a post all in iambic pentameter, and I make that known... he may or may not accede, depending on whether or not he feels it will benefit the space; not just the whacko who made the request. He may think it's a great idea, he may not. But because he's a dev of this space, that's his call. I can comment all day long, "Where's the iambs?!!" And... well... that's tough buns for me.

Demanding some kind of uber-law for games, or that something other than the EULA is needed is like telling the publisher(s) of a blog, "Hey. You don't get to be in charge, here. Anybody can post, and can do whatever they want in comment-land."

On my blog, I am God. I write what I want, and delete comments I don't like (rarely, but still). If you don't like them rules, and don't think the experience of reading what I wrote is worth giving up your right to do stuff on my blog... you can go elsewhere.

Thanks, Amarilla. Good metaphor.

Posted Jul 28, 2007 11:21:35 AM | link

Amarilla says:

Well, thank you, but i'm sure it was not my " fault " : i'm always amazed of how the intelligent peoples manages to find interesting things in my rants.

What i'd love to see , is some answers to the questions :

what do you call the situation when the EULA / ToS , themselves,are a sand-box / black- box / magic- circle ? Do you call it an old scheme or an emergent gameplay between the commerce-actor and the naive buyer ? Is it an attempting to scam or a smart business ? Is this a very old and undesirable social behavior , or do we want to mix Machiavelli with Orwell and with Vespassian :
" the money has no smell " ?

I'm not talking about the player's perception , i'm talking about developer's attitude toward it's own affair . We saw how Rosedale answered :

" ...I don't care what the loser believed / assummed / presummed / but in my book Virtual means "" it doesn't exist , it's not real , it's not true "" , so, Bragg, cry me a river ".

The only ( potential )anti-social activity i see , is comming from ( some ) developers .

From the very first momment when the game is allowed to be distributed and the operator/developer is allowed to act on market , it is in full charge and have the whole power over everything and anything happening in it's game. The developer have the full initiative and power to make the EULA and the game's rules , and the full power and instruments to controll , to condone, to endorse or to ban any behavior in game. It's own behavior and player's behavior.

From having and exercising those powers , i don't see any sort of accountability / liability / responsibility , assummed or enforced . This is antisocial. In a society , the money are tools; when for you the money are the meaning , you place yourself outside of that society and become a parasite / exploiter .

Be smart, don't kill the " golden goose ".

Posted Jul 29, 2007 7:29:30 AM | link

Andy Havens says:

@Amarilla: My son loves to go to Chuck E. Cheese. I manage to tolerate it because he loves it... but it is, for an adult of my particular bent, hell on earth.

Be that as it may... Mr. Cheese requires a number of "contractual" agreements when you go in, most of which are posted, some of which are dictated only after disobedience. For example, no child can be on the premises without adult supervision: period. This will cut down on both profit for the company, and social opportunities for kids... but it's a rule that the owner believes adds greater benefits overall. Also, grown-ups and kids, when they enter, get stamped w/ matching ultraviolet ink markers, so that, when leaving, employees can quickly tell that you're not taking out someone else's kid. A violation of privacy? Kinda Orwellian? Maybe. But as a parent I know that I wouldn't take my kid to a place like that if there weren't some kind of similar safe-guards.

Every social group operates under rules. At the most basic level, laws provide them. Similar to "if you don't like the TOS, quit the game," some Americans didn't like the war in Vietnam so much that they moved to Canada. Of course the latter is a much more serious piece of business; but it's similar in relationship, if not scope.

You and I and other members of a social group can't have a meaningful experience without some kind of guidelines. If I'm running a poetry blog or site or BBS, one assumed guideline is "this space is largely about poetry." Some writing sites I've used have lost members because of fights about politics and religion, which were teh *subjects* of essays or poems. Though that may be inevitable, a lack of clear-cut guidelines about the quality of content vs. the content itself ended up harming the social fabric of the site.

I think a VW completely run and governed by its users is an interesting concept, and probably inevitable. What I expect will come out of such a situation is a set of people or systems that end up dictating behaviors that look a lot like EULA/TOSs.

Posted Jul 29, 2007 11:15:20 AM | link

Thomas Malaby says:

Actually, Andy, if there is a more basic level to how social groups are governed, what you find there is not rules. There one finds brute physical conditions (environment, durable architecture) and social conventions. Laws are not a necessary component of social groups, as the ethnographic literature on societies around the world shows us. This is important, because we have a tendency to think governance = laws/rules. This is a recent and understandable fiction, but it's not even true in modern societies. Laws and rules are part of how most people are governed, but I take Josh's excellent point to be that it is a mistake to imagine that legal systems operate at a more fundamental level than social expectations and our concrete conditions.

In particular I take Josh to be saying that it doesn't make sense to ask of the particular branch of the law that is contract law that it do more, and do it alone, than it ever can do. If anything, it is the reverse. Now, you might agree, and point out that you're talking about social conventions too, and that to you, they are rules. But, they're not. Social conventions are shared expectations, and they are of a different order than rules, which constrain in a way that shared expectations do not. Social convention constrains, but not on the basis of an explicit set of "must"s and "must not"s. Instead, social expectations are what make up the set of good guesses about what actions are likely to shape what results.

Posted Jul 29, 2007 11:36:18 AM | link

Amarilla says:

@ Andy : my son loves to have a booze 5 times/day. He loves it :). I dont care the relationship between your son and Mr. Cheese, on this blog i'm talking games, MMORPGs.

Remember ? On-line - games ? We are not a social group in a blog, nor in an internet game. I dont enjoy your MMORPG to have a " meaningful experience ", nor to be teached democracy or the american nightmare - ops, dream. I enjoy your MMORPG to have fun and profit. You are in this business to make profit from my hard earned money, not for " guidelines ".

If you're running a poetry blog and your poe - tries are all about " muslims = bad, jews = gods ", you'll feel very lonely on your blog.

I think a VW ( does such a term even exist, afterall, or is it a bogus ?! Nah, it's a bogus, a lie, a hoax. ) completely run ---- or partially run, no matter how small that part might be ---- and governed by its users is an impossible and bullshit " pretended concept " and 100 % accurate impossible. The crowds does not possess the ability to self-governance.

What i expect is : some games developers will continue to exploit and to profit big bucks from their player-base. They will continue to bribe the mass-media and the lawmakers .

Posted Jul 29, 2007 11:55:13 AM | link

Thomas Malaby says:

Erk. In most recent post, "If anything, it is the reverse" belongs at end of first paragraph.

Posted Jul 29, 2007 11:57:38 AM | link

Andy Havens says:

Thomas: I agree with you completely; I was saying that laws are the most basic of written, coded agreements within society. Game rules, group rules, contracts, etc. -- other written codes -- cannot (usually) be illegal.

Social concerns top laws in many cases, clearly. I will drive 10-20 mph over the speed limit with my wife and many friends in the car. I will not do so with my mom in the car. ;-)

Amarilla: You said; "The developer have the full initiative and power to make the EULA and the game's rules , and the full power and instruments to controll , to condone, to endorse or to ban any behavior in game. It's own behavior and player's behavior."

My point was that there is precedent in non-game, RL spaces where the owner/operator of a "space" makes rules and can control/condone behavior, inasmuch as they can do so legally. To go nasty on game developers as if they're doing something different than what takes place in restaurants, theaters, private clubs, schools, etc. is at odds with commercial and social realities that predate online games by millenia.

Yes: Publishers have a right to define many of the things you can and cannot do with their property. Because it's their property. Same as the owners of a football franchise. Fans can't run onto the field and claim ownership simply because "their team" is incredibly important to them. They can't fire players. They can't change the rules. They can't sell team merchandise. This is not new stuff.

As to whether or not there will be a user-owned MMO or VW... well, I'd say that having the world's largest, most popular encyclopedia of all time created and edited by users, would have been seen as a bad bet up until a few years ago.

Posted Jul 29, 2007 5:13:24 PM | link

Amarilla says:

I cannot argue you or Thomas , on many grounds, because you're simply right . But cmon ! Popularity is THE measure of value and quality ?!
Do you really equal the term Encyclopedia to wikipedia ?!

Posted Jul 29, 2007 8:10:59 PM | link

Thomas Malaby says:

Yes, we agree, Andy, lol. Sorry if I read your claim as too broad. My only further concern is that we don't mistake the level of control that these various owners (football franchise owners, virtual world makers) have over the activity that takes place in their domains with *total* control. They are constrained, of course, not only by other rules/laws (such as those of governments), but also by market realities, physical conditions, and social expectations. This is why, while it looks like they have total freedom, in actuality they cannot, practically speaking, do whatever they want. This is too often forgotten in these discussions, in my opinion. :-)

Posted Jul 29, 2007 8:29:50 PM | link

Amarilla says:

They are constrained, obvious. It's not forgotten.
Nobody has *total* control on anything.

Practically speaking , they can " delay " and circumvent, a bit here , a bit there ....like : about child-porn, about gambling....about EULA...
Afterall, at TN, we're trying to find the good balance . It always has been a matter of attitude;
i don't believe in " we against them ", i do believe in " we together with them ".

I pledge for civility and civilization in the relationships between game-makers and players ; i hate the wild-west style in business , that's all.

Posted Jul 29, 2007 9:17:27 PM | link

Andy Havens says:

@Thomas: How much they are constrained, and in what ways, depends on which other games they are playing ;-)

Posted Jul 30, 2007 8:45:39 AM | link

dmx says:

Its interesting what happens when there is a 'do whatever the heck you like' type rule in place.

Eve-O (Yeah I know, I keep coming back to that one, its a crack pipe ok :) ) has an astonishingly libertarian 'social contract' with its players.

Basically its;-
Dont: Use code exploits, third party macros, RMT or sell characters for money, and try and lay off the sexual harassment and racism.

Do: Spy on each others teams, scam each others loot, concoct mind bogglingly nasty schemes to grief others out of the game... Whater floats your boat. The market (and perhaps concord space police) will deal with your sort. (Mercenary work to protect cute little miner corps pays rather handsomely)

The outcome makes for a pretty dramatic and emotional game. People get really wound up and freaked out over the huge wars and economic machinations and what not that go on in the game. Some might find it obnoxious, and really, it is obnoxious, and others like me find it just an amazing user created narrative.

The problem for governance comes when that social contract (or lack therof) "leaks" out of the game.

During pretty much all the big wars there have been incidents of Teamspeak spying, hacking, people actually turning up to team pub-meets under false identitys for information gathering, and more than a few tears.

A recent incident happened during the fall of "Lokta Volterra" when the Goon-fleet Intelligence Agency placed a deep cover agent inside "Fin-Fleet", a key corp inside the LV alliance. The agent then worked his way into the corp, right up to near management level, and at the critical injuncture at the war, walked off with the corps ingame assets , and offlined the sovereignty holding POS's. All the time he was relaying the GIA fleet movements from FinFleets out of game bulletin board.

This was generally held by the EVE community as within the broad narrative of the game and acceptable, if not somewhat underhanded, behavior.

The problem however, was some of "Finfleets" players did not see it that way, and pointed out that the out of game bulletin board was intellectual property of a holding association set up to manage the team in the real world. And they threatened to sue.

A similar reaction happened to "Band of Brothers" use of teamspeak spys to track movements of ASCN's forces during BOB's subjugation of ASCN space early this year.

The game community argued that players on EVE online accept that this is within the EULA of the game, and these people had no right to legal recourse. FinnFleet (and some ASCN members in the BOB incident) argued that these involved resources outside the game, and those are not covered by some other legal agreement.

Messy stuff. Fortunately cooler heads prevailed, and no silly lawsuits happened. Possibly because at the time Goonfleets CEO and 2IC where both lawyers, and yeah.. try and avoid legal threats at real lawyers, and more likely that a real judge wouldn't have the foggiest clue how to award damages in a situation where all parties agreed to play dirty and any real money damage (RMT value of stolen e-assets) was not applicable, because it all belongs to CCP who are cool with it , anyway. Finally, most EVE players do on at least some level acknowledge that its "Just a game" anyway.

The point I'm probing here is to throw the big curveball out there. How do these IN GAME social contracts interact with the real world, where actions really do have consequences.

And to throw a real curveball. What if RMT *WAS* permitted, and CCP had said "No, this stuff really does belong to you, but only on the terms of this game". If Goonfleet walked away with Finfleets assets to sell on ebay with CCP's nodding aproval, is it entirely likely that SOMEONE would get there ass sued to oblivion.

Posted Jul 30, 2007 9:22:22 AM | link

robusticus says:

I suppose you guys would argue that Blockbuster has the right to charge me $130 for a B movie that I "lost" because I felt like nobody should ever have to suffer through? And impugne my credit when I refuse to pay?

Well, certainly, but not only do I have the right to QQ, but spread the word about their greedy EULA and unethical business practices. I also have the right to found a competing company that eats their lunch. Funny thing is, WoW is NetFlix, but not enough, apparently.

Cell Phone EULAs, Bank Overdraft Fees too, need change.

When I was in school I would day dream about marketing some software that would generate your Algebra homework for you. Cheating? Maybe, but the way they taught Algebra at that school at that time really really sucked. Because it was a grindfest.

You know, we get all awe inspired because it's whoa a virtual world, with virtual rights and a virtual revolution and all that, but really, it just comes down to customer service. In the long run, worlds that do not carry botting as a requirement for people with lives other than the game, will win. You can bet on that.

Posted Jul 30, 2007 9:25:22 AM | link

Lavant says:

robusticus, "You know, we get all awe inspired because it's whoa a virtual world, with virtual rights and a virtual revolution and all that, but really, it just comes down to customer service. In the long run, worlds that do not carry botting as a requirement for people with lives other than the game, will win. You can bet on that."

Case in point! As virtual worlds become host to ordinary human interaction those that provide the best service will trump all. It is up to the law to provide the incentives and environment for this best to happen. When we blantely claim, "developer owns all, developer can do no evil, we risk losing sight of this cornerstone of humane social interaction which I believe coincides with longterm profitable business.

Posted Jul 30, 2007 6:23:26 PM | link

Thomas Malaby says:

Well said, Lavant.

Posted Jul 30, 2007 7:50:45 PM | link

Amarilla says:

Indeed, well said. I wont worry anymore for my family's shelter and food in Darfur : i can build them a whole island in SL. Wait....we don't have internet either, not even electicity . Actually yes, it just comes down to SERVICE.

Posted Jul 31, 2007 4:29:42 AM | link

Lavant says:

It doesn't *JUST* come down to service. I'm trying to avoid that sweeping abstraction. Service is one foundational component that allows for interaction to occur.

Posted Jul 31, 2007 7:43:03 PM | link

says:

Amarilla: What's yer friggin point?

Posted Aug 1, 2007 12:19:50 AM | link

Amarilla says:

My friggin point is : a service can be antisocial the same as an interaction can be. The way LL designed , ruled and marketed their service is antisocial. The feds have the same opinion , if you look at the recent happenings : the child-porn and the gambling thingie. Not to mention Bragg.

".. but really, it just comes down to customer service.."

"Case in point!"

"It doesn't *JUST* come down to service. I'm trying to avoid that sweeping abstraction "

@ Lavant, what's yer friggin opinion then ?! Does it or it doesn't ?!

Posted Aug 1, 2007 6:01:54 AM | link

Amarilla says:

"we risk losing sight of this cornerstone of humane social interaction which I believe coincides with longterm profitable business."

this so-called claim has been made many times and it's bogus ; compare the humane populace with the number of internet users , then the number of internet users with those paying to access a VW.
" cornerstone of humane social interraction " my arse. The only significant social interaction is that between RMT MMORPGs and their misleaded customers.

Posted Aug 1, 2007 6:13:25 AM | link

Lavant says:

@ Lavant, what's yer friggin opinion then ?! Does it or it doesn't ?!"

Now this may drive you mad, but my point: its not so simple that you can say VWs=service: it does or it does not. The metaverse is not binary despite its underlying code. Paradox reigns supreme. The point is virtual worlds are host to ordinary social interaction that occurs after the moment of creation. Under the current market structure this interaction cannot occur without ongoing service very much analogous to a communications medium such as the telephone or even the internet itself. MMO sphere is a commons, despite being offered by private corporations. Remember AOL? Now this is NOT to say that the law should not protect developer's rights to profit from their creations, especially in light of significant social costs: externalities resulting from RMT, boting and the like. What I guess I am asking for is balance and service that caters to the public good. Willingness to pay is not always equivalent. Yet this is no different than everyday tragedy of the commons and should be treated as such. Castronova has outlined a few ways to deal with these: regulation, segmentation, and prohibition. Yet it doesn’t seem the latter has a future despite resistence to the commodification of play. What must be considered however: the very "interactive" nature of these communities troubles our interpretations of these places as online amusement parks, films etc... They have become public spaces, a corporate community if you will...one in which the developer needs to balance public interests with its more entertainment qualities. The second you say it is *just* service, the next step is to reinstate developer can do no evil.

The point: Virtual World Service mimics a public good: ONE foundational component that allows for social interaction to occur within the global metaverse (not just SL) and thus merits protection to the extent that service continues uninterrupted. And this is the case on a micro level. The law needs to step in to eliminate the arbitrary threat to turn off service. When the only way two people can communicate is through Grindcraft online, it has become more than just a game, more than just a service, more than just entertainment. Developers must retain the right to profit to be sure, but users must retain the right to enter these worlds 5, 10, 20 and 30 years down the line.

Posted Aug 1, 2007 8:37:59 PM | link

Amarilla says:

"Now this may drive you mad.."

I doubt :)

"The metaverse is not binary despite its underlying ..."

Everything is binary , except God and Universe , but even these concepts are disputed.
But also everything has a " starting " point and a " tipping " point . Any evaluation of a VW starts with it's basic : it's a service. What's next and what's more, it's debatable.

" The law needs to step in to eliminate the arbitrary threat to turn off service. When the only way two people can communicate is through Grindcraft online, it has become more than just a game, more than just a service, more than just entertainment. Developers must retain the right to profit to be sure, but users must retain the right to enter these worlds 5, 10, 20 and 30 years down the line. "

Don't hold your breath on any of these ideeas, the lack of oxygen affect the brain's functions.

Posted Aug 1, 2007 9:05:44 PM | link

docstrange says:

Amarilla:

It seems to me that almost all you do is make simple, unsupported counter-assertions to others' supported, considered posts. Most of your posts don't contribute to reasoned discussion.

Posted Aug 2, 2007 9:26:50 AM | link

Amarilla says:

Ok, then post your opinion on this : as long as the EULA thingie is not legally resolved yet ( it's enough to mention Bragg for now ),

"...we need to get beyond the EULA." ?

My opinion is that " we " have already gone so much beyond the EULA that it became antisocial.

Make sure you can support your assertions , about your opinion and not about how reasoned-or not- are mines.

Posted Aug 3, 2007 6:31:34 AM | link

robusticus says:

@dmx, "... Eve Online ..."

I don't know how much it is about "unfair advantage" and liability rather than a perception that subscription monies are being lost. Observe the time code RMT trade. They don't care, as long as they are getting paid.

That extra value, is vapor, does not exist, if it is so easily taken with a simple solo bot. A bot that for the most part has nothing to do with RMT.

There was a case where a player won, versus the operator, for real monies lost as a result of being banned in an anti-RMT game. I can't remember where I heard about it, but I think it was in Asia somewhere. This doesn't mean Bragg has a chance in hell, but that courts are willing to ignore the EULA if the underlying case has merit.

Also, I've read a judge's opinion where they would give leeway to game designs that dependended upon breaking the law. For example, pick pockets.

And while I hate pro sports analogies, especially when they try to relate to solo MMOGlider on carebear servers, it seems like pro players sign a waiver not to sue each other for underhanded play. Else Bruce Bowen would be up to his ears in lawsuits right about now.

But yeah good point. Espionage and theft and betrayal, that's all good, par for the course. But if someone took out Goonfleet solo, well the digital tears would a river make and the wailing would bust eardrums all over Iceland.

So very tough to make claims based on rules when these people use double standards at every turn, every where you look. The last thread ended with Asimov. What about the Butlerian Jihad?

Posted Aug 3, 2007 10:54:28 AM | link

Andy Havens says:

@Amarilla: To say, "...the EULA thingie is not legally resolved yet," is an oversimplification, and one that isn't just about VWs/MMOs.

Many industries have fairly standard contracts. And, over time, they are changed because of new usages. Sometimes that happens "naturally," as the creators of the contracts adjust to market realities. Sometimes it happens because of litigation.

There's nothing really new in what's going on with SL and/or Bragg that hasn't happened in many other industries. A company provided a contract. A customer believed it meant something other than what the company did. After having violated the company's idea of what it meant, and being smacked, the customer then went to court to argue that his understanding of the contract is more correct than that of the company.

I repeat: this happens *all the time* in many, many areas of the law. Rental contracts are a classic example, as are non-disclosures or non-compete contracts.

As far as whether a EULA makes a VW/MMO or other social system "antisocial," that's a separate question. I would say that the *concept* of the EULA is the same as the concept of any contract; it's meant to solidify understanding between multiple parties about acceptable, unacceptable and required conduct.

A EULA may state, for example, that if you don't pay your monthly fee, you'll be kicked off without warning. That is, to some degree, antisocial. So what? If the company needs revenue to make the service, then punishing bad behavior may be "antisocial" but "pro-platform," or "pro-growth" or pro-lots-of-other-stuff. It's not like "good social stuff" is the only consideration in terms of metrics.

Now... a EULA that tends, on a regular basis, to stifle social interaction in a space that is meant to be, primarily, a social networking service... that's simply a bad contract. There's nothing inherently good/bad about contracts; it's their application in a specific situation.

In the case of a space like SL, having *n0* EULA would tend, I'd argue, to create a much less social space over time.

Posted Aug 3, 2007 1:34:30 PM | link

Amarilla says:

You are wrong , for two reasons :

- nobody said " SL should have no EULA ", but : " SL's EULA should comply with the established social norms / rules / laws because SL is a space where real citizens interracts , in a social manner ".

- the State is not the only social organization of human society. You confuse two terms : people with populace.

And the more important :

"..Many industries have fairly standard contracts. And, over time, they are changed because of new usages. Sometimes that happens "naturally," as the creators of the contracts adjust to market realities. Sometimes it happens because of litigation."

The point being : what's happening in VWs/SL is not some new, emergent " usage " . But is the old con-artists scheme , wich ofcourse happens naturally ; i can tell you an " international " point of view on what is social and what's not, in this matter : fairness and balance , accountability and liability.

.".. A company provided a contract. A customer believed it meant something other than what the company did. After having violated the company's idea of what it meant, and being smacked, the customer then went to court to argue that his understanding of the contract is more correct than that of the company.

I repeat: this happens *all the time* in many, many areas of the law. Rental contracts are a classic example, as are non-disclosures or non-compete contracts."

Wrong again : in the EULA's cases , we don't argue the personal/ subjective understanding of clauses , but the legality of EULA in itself : is it social or anti-social for such abusive contracts to even exist/ be allowed to operate, in the first place ?

The fact that " it happends " , is the very argument and reason and purpose of any social norm/rule/regulation : we don't want it to happend . And we, we are the players, those who pays your salary , income, mortgage , you name it.

While in RL a State could enforce it's will over and against it's citizens by police/military/ brute force , in VWs all you can do is to mislead/ misinform / manipulate the player , to make it give you its money.

So far, it seems the players'" social old common sense " won two times : SL's ban of child-porn and gambling.

@ Andy : "..A EULA may state, for example, that if you don't pay your monthly fee, you'll be kicked off without warning. That is, to some degree, antisocial." ROFL ! To what degree is that antisocial, in your academic mind, pretty please ?! Don't compare paying a fee for a MMORPG , to paying rent for a house .

Posted Aug 13, 2007 11:46:19 PM | link

Andy Havens says:

@Amarilla. The one thing I will ask, politely, that you recant is your labeling of my mind, "academic." Not that there's anything wrong with that... but I just ain't. I'm a marketer, a writer, and, when it comes to games/VWs, a player/customer.

On the other stuff... We're just going to have to disagree. Because, imho, you're contradicting yourself. You said, "SL's EULA should comply with the established social norms / rules / laws because SL is a space where real citizens interracts , in a social manner."

Right. I tried to give you examples of how the EULA is similar to other contracts, based in law and social norms. Could SL's EULA be better? Yes. Sure. Again... Most contracts change over time.

But you seem to be arguing that VW's EULAs should be more like those of public utilities. Is that a better comparison? That because these are "important social spaces," their governance needs to be more balanced on the side of the users than the providers? If that's your argument, then that's interesting. Having worked at a phone company, I know firsthand about how businesses in the utility sector are more constrained than those that are not. It is harder, for example, to turn off someone's phone than it is to stop providing lawn service. And harder still to turn off water and heat. As it should be.

On your last comment... I'm not sure what side you're coming down on. If VWs are a special case, and shouldn't be treated as a simple entertainment contract, then, yes... paying an MMORPG fee could be compared to paying rent. On the other hand, if you think that VWs/MMOs are just, well, trivial... than a EULA that makes it easy for the company to kick off subs for any reason is no big deal. I'm confused on that point.

I will argue that the ability of a provider to set limits and standards is not, in itself, antisocial. In fact, having standards may promote sociability, as many people may be unwilling to engage in an activity that is completely unsupervised and totally open. Kicking off people that don't pay helps improve the cost/benefit ratio of those who do; kicking off people who gank may improve the experience of many who don't; kicking off intolerant, racist members may mean that fewer people overall quit due to their behavior. These are all examples where being kicked off is, from a platform standpoint, highly social, in that they improve the overall social experience.

I'm also confused because at the top of your comment you state, "nobody said " SL should have no EULA ", but: "SL's EULA should comply with the established social norms / rules / laws." And then, later, you say, "we don't argue the personal/ subjective understanding of clauses , but the legality of EULA in itself : is it social or anti-social for such abusive contracts to even exist/ be allowed to operate, in the first place ?"

I tried to point out, again, how the EULA is very similar to many other kinds of contracts that have been around for a long time. If you think VWs need to be treated differently, please state why. If you believe that SL is a scam (which you seem to say quite often), I'd be curious as to how the scam operates. What I see is a company providing an interesting service, requiring a fairly standard contract (EULA) to do so, and reserving the right to remove people who abuse the social conditions, as defined by the contract, and agreed to by users.

Again, I think SL's EULA could be better, and that the confusion over ownership of IP is troubling. But that doesn't negate the whole ball of wax.

Posted Aug 14, 2007 10:24:18 AM | link

Amarilla says:

1- it was meant as a refference to the " academic way of thinking , of approach to some specific subjects " ; the way i've expressed was confusing indeed, my mistake, and i apologize to those to whom the term seems uncomfortable.

2- I will explain why and how i think ( i think = this is a personal , subjective opinion, and i don't say " burn , SL ", but " improve,LL " ) the whole concept of games like SL and Entropia is a scam :

first , take a look at this :
"...If anyone doubts the influence of drug company ads on patients and physicians — consider all those wasted billions of dollars for a pill that sells for more than six times as much as another drug that does the same thing, made by the same company.

http://www.msnbc.msn.com/id/20249591/ ".

What that company did , in the USA is considered " smart business " : you call a 3 % difference in efficiency as " significant ", you manipulate the scientific research results data , and you conduct an agressive marketing campaign based on false / unaccurate informations.

In the rest of the civilized world, that is considered false advertising . It is considered a scam .

The connection to LL/SL is - in my opinion - : LL did/does the same thing : false advertising , with the intent of confusing / misleading /inducing false expectations in its customers' minds. Ripp off. Scam. Commercial malpractice. You name it.

My point is : is in LL's best interest to reconsider its business plan and attitude toward its potential customers : if not because of the Bragg case , then because LL aims to customers worldwide . And because LL's actions have consequences over the whole gaming industry.

Lemme tell you what the gamer part of my mind says : " ....wtf ?! Rosedale said this and that, everything i read on newspapers and i saw at TV about it, says the same, and now they tell me it's not true ?! And wants me to sue them in California ?!Whatta scam ! They knew for almost a year that gambling in SL is illegal but let it happend and encouraged it all this time ?! What a scam ! "

Posted Aug 14, 2007 4:15:23 PM | link

Andy Havens says:

Amarilla. OK... So now it's the "false and misleading" advertising that's the problem, not the EULA. I agree that Linden's PR machine had some spin/fluff that comes close to misleading. I'm not aware of anything they've said that's patently false. And, just so we're clear, false advertising is illegal in the US, too. Misleading advertising? It depends on how easily you are misled, I guess. If you see an ad where a stringy, gangly teenage boy sprays Axe Body Cloud on hisself, and then gets chicks crawling all over him and think it'll happen to you... well, in the US, that's called "puffery" and it's in no way illegal. I can claim all day to have "the best ham sandwich in town," even if it sucks. "Best" is a relative claim. But if you claim to have "the biggest ham sandwich in town," and yours is half the size of your competitors'... that's false.

I've heard the Linden people (and others) talk about making money in SL as if it's easy to do and as if you can make big money. Well, "easy" and "big" are relative, subjective terms. You *can* make money in SL. It's not the main point, but there you go. If that's what you wanna do, go ahead. I've also heard that you own your own IP. Not sure if that applies to screen-shots or machinima... which are things I think should be clarified in the EULA.

But -- again -- if you think overblown, puffy, misleading or false advertising is unique to SL or VWs in general... it ain't.

So... 1) I haven't seen evidence that their advertising/pr is particularly noxious/false. 2) If it is, that still has nothing to do with the EULA. 3) If the EULA contradicts a less specific form of business communication (advertising/pr), the customer should be responsible for reading the dang contract.

If somebody told me, "Hey! I've got this perfect, sweet-smelling deal for you! Now... sign on the dotted line..." I'd read the contract rather than take the sweet for granted.

Posted Aug 14, 2007 9:02:26 PM | link

Amarilla says:

Why exclusive ? The false advertising just add to the EULA issue . I don't hear the fat lady's song in Bragg's case, yet.

Sure you " can " make money in SL. Also you " can " become president of the USA. I'm not going to enter the boring field of law theories , like the differences between " permisive " and " restrictive ". And you are right : it comes down to : "...the customer should be responsible for reading the dang contract." Wich in Europe is : the maker should be responsible too, for writting the dang contract.

But all these have already been discussed many times at TN . Me thinks : i dun wanna be in LL's shoes these days. They really did a nice thing, the SL . Too bad the greediness. It's disappointing , to put few hundred dollars in a " VW meant for doing biz " , and then to have to spend $10k to sue LL for they suddenly and for " no reason " and " without prior notice " sized / deleted your entire account. Sure, life sux.Everybody is after your money , ready to stabb you in your back, if you don't carefully read the small fineprint. What do you sugest ? To regulate the VW's starting with the EULAs , or just build another simulation into the existing simulation of a virtual regulation ?

I'm afraid , this time i've really derailed the topic ; my bad ; what was the questions , again ?

"Why do we let contracts govern virtual communities?"

"Second point: if EULAs can't create the rules of the game, what should courts turn to? "

I'd try : because the contracts are assuring the very existence of a community. Are natural necessities : community means communication / interreaction . 1000 cells are just that, 1000 cells; 1000 cells sharing the same code of communication ,the same set of values, forms an organ, a plant, an animal, a human, a community , a society ....

Given the reality in wich the VWs operates , the courts will always turn only on the existing laws ; wich laws, at this time, regulates only the EULAs.


Posted Aug 14, 2007 11:14:15 PM | link