WoW v. MDY: Copyright, EULAs, and Game Rules

We've been talking about TOS/EULAs for quite a long time here at Terra Nova.  Here's a fairly obvious theory about these agreements, borrowed from Jeremy Bentham's felicfic calculus:

1) If TOS/EULA provisions make both the designers and participants in virtual worlds on the whole better off (while making third parties no worse off), they're generally good, and we should support them.

2) If TOS/EULA terms make all collective interests generally worse off, they're bad, and we should oppose them.

So, here are the thoughts of Public Knowledge and the EFF on the copyright claims in the MDY case.  In short they seem to say: sure, cheating is bad, but using the power of copyright law to enforce TOS/EULA contractual agreements will lead to bad results for software users generally. 

This is indeed a very interesting case.


Comments on WoW v. MDY: Copyright, EULAs, and Game Rules:

出会い系 ランキング says:

頑張って下さい。記念カキコ

Posted May 5, 2008 11:30:46 PM | link

Adam Hyland says:

I'm deeply pessimistic about collective ability to fend of noxious NDA's, so take my complaints with a grain of salt.

In this case I see a few interesting things. First, Blizzard is by no means the first company to claim or litigate upon claims that their software is merely rented, not sold. Assault on the first sale doctrine is almost as old as digital media. Tellingly, Microsoft is in tax trouble in India for claiming to "sell" software there in order to skirt licensing taxes but forgetting to inform customers of this slight change. Auto-cad has sued a user for attempting to resell his copy of R14 on ebay. This seems (and forgive me if I'm wrong) that Blizzard is attempting to make the same claim in an unspeakably galling fashion. Hot on the heels of another RAM related judicial trainwreck (here claiming that the contents of RAM are subject to discovery.....http://www.eff.org/cases/columbia-pictures-industries-v-bunnell), this is an attempt to make the same old argument before another (presumably) technologically naive judge.

As for withholding support, I guess it is noble, or may serve some normative purpose, but I'm not sure that the overall impact of a holistic assessment of EULA's will do anything. We do, however, have the EULA/TOS of second life as an example in support of optimism, but I don't feel that many major software companies still in the business of selling software (and, in the case of VW's, selling services) will follow suit. I can see that you aren't claiming some new revolution against EULA's born of this post, of course. But even making a broad judgment about the net merits of a particular agreement borders on the superfluous. As long as VW makers can sell their services and software as they do now, the current bargaining arrangement will remain. As long as we enter VW's to do what we do in WoW, there isn't really a countervailing force against the current boilerplate. Blizzard et al will assert copyright over content in a blanket fashion as it is among the less kludgy legal strategies for combining the benefits of indemnification, ownership and reprisal all in one. Such an agreement would be toxic in SL, where ownership is one of the engines for creativity, but it is almost totally irrelevant for most of the market.

In light of that we have a hypothetical unpleasant choice. We can wish that the judge rule broadly and in favor of MDY, rejecting copyright claims as a means to enforce otherwise untenable EULA provisions and writing a thundering defense of the first sale doctrine. This is undesirable for a few reasons. First, it isn't going to happen. Second, if it DID happen, it would exonerate a company that arguably IS engaging in tortuous interference.

We can hope that the judge rule narrowly and technically in favor of blizzard, as Public Knowledge does. This would, presumably, send a message to other bot companies but not allow blizzard to leverage copyright law in order to settle contract disputes. This is likely to happen, but it probably won't (as the EFF seems to feel) result in a broader defense of the first sale doctrine. Of course, this will have some of the desired effect of continuing to allow interoperability. But the basic premise, that Blizzard (and like firms) may bring to bear copyright threats to establish contractual compliance, is unlikely to be touched.

I'll leave this thought unfinished as it is very late. :)

Posted May 6, 2008 12:55:08 AM | link

Adam Hyland says:

Grr. tortious. Bad spell checker. Bad. Also, commas belong in every sentence...at least twice.

Posted May 6, 2008 1:39:16 AM | link

Hendrik Wieduwilt says:

[Uhm, concerning spelling - I will make all of you feel better about that...]

Is there really any chance, that all breaches of TOS/EULA constitute copyright infringements according to US-Law as publicknowledge seems to say?
Under German Law the question if the breach of a TOS/EULA-provision affects the copyright of the software has to be answered applying a case-to-case approach: Not every breach leads to copyright infringement. But if the user, by breaking the rules of the EULA, establishes a substantially different exploitation method ("Nutzungsart"), it does constitute a copyright infringement. But the method must be clearly different from the one envisaged by the contract parties.
For the commercial use of Cheatbots (Goldfarming etc) this is imo true as this is by no means intended by Blizzard and perverts the whole game - in fact, the game becomes a working place. And the private use? I'm still not sure - in the end, it's not that private since the effects of cheating concern other gamers, too.
One thing is sure, though: According to this doctrine, naming my Orc "Britney Spears" would definitely not affect Blizzard's copyright.

Posted May 6, 2008 3:27:05 AM | link

Richard A. Bartle says:

This looks to me like an "ends justifies the means" argument from Blizzard. I agree with their aim - keeping the integrity of WoW intact - but using copyright law to do so is a bad idea. If loading copies of WoW into RAM is copyright infringement, so is switching on your vacuum cleaner (because the electricity company is sending you a stream of data in the form of electrons, which you are loading into an appliance and then - gasp! - changing by removing energy from them).

Bah!

If Blizzard wants to prevent people from selling software that's particularly intended to be used to help players of WoW cheat, yes, they should be able to do that. Whatever law, present or future, they need to employ to achieve this end, though, copyright isn't it...

Richard

Posted May 6, 2008 10:48:30 AM | link

greglas says:

Richard -- I agree with you, largely because of the collateral consequences this would have outside the MMORPG context.

However, there's a downside here w/r/t how this might play into concerns about the RMT that you, Ted, and others have expressed repeatedly. To put it very briefly, it may prove hard to effectively enforce anti-RMT provisions without a party capable of asserting a significant legal property interest.

Blizzard has other claims, but copyright may be the sharpest arrow in the quiver.

But again, I agree with what you've said. (Actually, I don't really get the vacuum cleaner bit, but I understand the general sentiment.)

Posted May 6, 2008 11:01:21 AM | link

Adam Hyland says:

Also, EULAs, not NDAs. If only there was some sort of method to preview my text before I entered it. :)

Also.

Richard> I agree partially that this is an ends justifies the means argument. But to me they have a choice of means, copyright being the most blunt. Especially if we are to ask judges to make some broad, binding decision on the subject.

Posted May 6, 2008 2:11:48 PM | link

greglas says:

Adam -- I'm sorry we don't have an editing feature here. We're really rather low tech.

I agree with your analysis, though I really don't know how the judge will rule on this one. There might be some of what you're looking for -- it's possible.


Posted May 6, 2008 2:18:05 PM | link

greglas says:

@Hendrik> No, we've basically got the same approach here in the U.S., at least in the 9th Circuit, where this Arizona case will fall. For a summary of how limited use software licenses generally relate to copyright protection, take a look here.

Posted May 6, 2008 2:24:59 PM | link

Adam Hyland says:

gregelas> Nothing wrong with the site. I was only making fun of myself for not utilizing the perfectly serviceable "preview" feature.

Posted May 6, 2008 2:50:35 PM | link

Peter Hanley says:

Not that the analogy holds together particularly well, but if it's possible to commit copyright infringement by executing software and doing something the software maker doesn't approve of, isn't it also possible to commit copyright infringement by engaging in oppositional readings of a book?

Or more apropos to Glider, if I need to write a book report and I pay someone to write it for me, have I committed copyright infringement?

also, @ greglas re: Jacobsen v. Katzer

Out of curiosity, I'm not clear how Jacobsen v. Katzer would apply, because in that case someone's open source code was used without attribution whereas I don't think Blizzard can reasonable claim that Glider makes use of their code in the same sense.

I actually can't really get my head around the copyright claim at all — it seems beyond unsupportable, more like fantastically ludicrous.

How does copyright come into it at all?

Posted May 6, 2008 4:48:45 PM | link

Adam Hyland says:

Peter> I'm not arguing that the logic is particularly convincing, but the copyright claim is the mechanism by which Blizzard intends to punish/enjoin third parties for actions taken in contravention to the EULA/TOS. Basically, they can't revoke MDY's license for the game because MDY never asked for one. Strictly speaking, no contract exists between them and blizzard.

What Blizzard is suggesting is that in order to perform the actions the glider software does, MDY has to call the WoW program data into memory and undertake operations on that data. Since MDY is not the licensee of that software, Blizzard is arguing that copying it into memory constitutes unlawful infringement.

"But, Hark!" you say,"I'm the owner. I installed glider and caused it to call wow data into memory." "Not so fast", says blizzard. "Even though the law says that would be ok if you were the owner, we say you aren't. You are leasing the privilege of having our bits and bytes on your computer. As such, your use of it conforms not to property law but to the constraints of our license agreement. And we say you can't use programs like glider."

Like I said, I'm not defending the strength of the argument. But as I understand it, that is their position. They can (and do) claim other positions, including tortious interference, but the proof for copyright infringement is much easier, assuming the judge buys the logic.

Posted May 6, 2008 8:01:36 PM | link

robusticus says:

I get the vacuum cleaner bit. It SUCKS, change it.

You know, the DMCA has a clause about interoperability.

That leaves a non-existant contract that a Harvard trained lawyer wouldn't understand because they aren't in a raid guild when they start to play.

Posted May 6, 2008 10:06:14 PM | link

Steven Chung says:

This in a way reminds me of the litigation between Nintendo and Galoob over 15 years ago over the Game Genie, a device which allowed players to manipulate the game code in order to cheat (infinite lives, invincibility, etc.) To make a long story short, Galoob won, because the court found that the Game Genie did not infringe Nintendo's copyrights or it amounted fair use. But that case was litigated before MMORPGs and the DMCA.

The PK post states that they are countering Blizzard's copyright infringement claim by stating that the user owns the software he or she purchased despite the license limitations stated on the EULA by looking at all of the facts and circumstances.

This argument may be troubling because if it is successful, then the IRS may use a similar argument to point out that users own their virtual items despite the EULA's limitations placed on them. This can be the IRS's tool to tax SL or WoW transactions.

Posted May 7, 2008 2:15:28 AM | link

Jeff Cole says:

Caveat emptor: I have only skimmed Blizzard's MSJ.

While it is certainly an interesting case, any holding could (should!) be drawn very narrowly.

After all, the WoW software can really be used *only* as an interface to Blizzard's servers--it's not a single-player game, a word processor, or other application.

I know for a fact that EQ2 gives away the client (because I have installed it for free twice). [fn1].

Every aspect of the relationship smacks of license rather than "ownership" (all the way through to the virtual property).

Greg, what collateral consequences are there from a narrow holding in this case?

[fn1] Maybe I should say "licenses for free," because "gives away" carries too much baggage and implies a transfer of ownership!

Posted May 7, 2008 8:55:44 AM | link

Keith M Ellis says:

Steven Chung, I'm not sure on what basis you think that outcome would be troubling, except from the perspective of someone who doesn't want to pay taxes. If VW trades like those in SL or WoW can have realworld financial realization, then they are properly understood as being within the domain of taxation, if the relevant authority so chooses (the ultimate authority, of course, should be the voters).

Posted May 9, 2008 3:18:41 AM | link

Cunzy1 1 says:

I must say I agree with Greg L entirely. You have been talking TOS for quite a long time at Terra Nova.

Posted May 9, 2008 8:48:12 AM | link

greglas says:

@Peter -- copyright comes into because the computer makes temporary RAM copies of certain elements of the software during the process of play. Hence, a license is required to make these copies.

http://digital-law-online.info/lpdi1.0/treatise20.html

@Jeff -- I'm a little torn about this case, actually, because the narrow ruling I'd like to see here is one that is tailored to protect the current and future interests of WoW players. As far as I can tell, those interests aren't really represented in the current pleadings, and I'm not sure the court will be able to get a handle on this without an advocate for the players. (Pretty much the same was true in the BNETD case.)

Personally, I think having an enforceable prohibition against Glider/RMT in a game world makes a great deal of sense -- as much sense as a prohibition against steroids in baseball, or using a bike in a footrace.

Posted May 9, 2008 1:55:40 PM | link

Matt Mihaly says:

Greg wrote:

I'm a little torn about this case, actually, because the narrow ruling I'd like to see here is one that is tailored to protect the current and future interests of WoW players.

Remember that the interests of current and future WoW players includes being able to engage in RMT. Someone engaging in RMT on WoW is as much of a player as someone who isn't. (And I completely fail to see how RMT in and of itself hurts a random other player any more than giving something in-game to your rl friend who also plays hurts another player.)

It sounds like you're arguing to protect the current and future interests of a sub-set of players who are opposed to RMT (because if their philosophical stance isn't being offended, I really fail to see how they're being harmed), which is fair enough but let's recognize that there's no such thing as a homogeneous "good" for all WoW players.

--matt

Posted May 9, 2008 6:17:16 PM | link

greglas says:

Hi Matt --

I disagree, based on what I've seen. If you can show me convincing evidence that the majority of WoW players prefer RMT, I promise I'll rethink this.

The question of harm is what I was getting at above with reference to footraces and steroid use. Are the interests of a rule-abiding baseball player harmed when another player uses steroids? Are the interests of rule-abiding footracers harmed when one of the racer takes a shortcut off the course?

Now, if we enforce a rule against cheating at games, you might tell me that cheaters are harmed. But that's what I was getting at with the felicfic calculus. I'm concerned about the net effect of enforcing a rule vs. not enforcing a rule. It strikes me that in baseball and footraces, enforcing a "no cheating" rule, even if cheaters don't like it, makes a great deal of sense.

Posted May 9, 2008 7:14:08 PM | link

greglas says:

p.s. And as you know, Matt, we've been mulling over this whole question about public sentiment toward RMT for a while too.

http://terranova.blogs.com/terra_nova/2007/08/attitudes-to-rm.html

Posted May 9, 2008 7:23:16 PM | link

Thomas Malaby says:

But Greg, I still don't get how the analogy to footraces and steroids applies. In most MMOGs, the competition between players is not direct, and even the indirect competition (First A'lar kill!!!11111!!eleven) is important to only a very small subset of players.

What is more, I don't think you've answered another aspect of Matt's objection: that there are many ways to achieve game objectives by dipping into resources beyond sheer personal competence and effort (such as advice, assistance, access, accessories, etc, from friends).

Posted May 9, 2008 8:48:57 PM | link

greglas says:

Hi Thomas --

What is direct vs. indirect competition in a game activity? You'll remember that Caillois was of the opinion that most solitary games were agonic, played with the imagination of a community of similarly situated players. Consider the work of the PlayOn folks on WoW players playing alone together, and ask yourself what's so appealing about that? (And we've talked before about how gear & imagined status plays into player efforts.)

Also, I doubt that the RMT matters to only a "very small subset" -- if that is so, I'd like to see it confirmed in a few independent surveys on a few different server types. Until we've got some good data on what people actually think about the rules of the game, we're left with competing anecdotes.

Finally, I would say taht when players play baseball and runners run in racers, they can rely on all sorts of resources beyond personal competence and effort. Some have superstitious rituals, some seek advice on nutritional and exercise regimens, some learn mental tricks from others, and no doubt once these things are learned they may be guarded as valuable secrets. But the fact that serious competitors often rely on extrinsic resources -- and social networks -- to achieve objectives does not mean that anything goes in game play. Much to the contrary.

Posted May 9, 2008 9:22:49 PM | link

Thomas Malaby says:

Greg-

I have to say that the reference to Caillois is entirely unconvincing to me, since it rests solely on an assertion about an imagining that "must" be going on in players' minds. Given that Caillois was subscribing to a narrowly agonistic picture of game-playing as a result of his anti-Marxism (which ironically reproduces certain assumptions of Marxism, btw; i.e., work vs play), this portrayal of what's going on in gamers' heads has always seemed more self-serving than useful, in my opinion. After all, it must brush aside the apparent non-competitive forms of game-playing as some kind of false consciousness, I guess (or denigrate them by associating them with children!).

Secondly, I was not talking about whether most players object to RMT -- they may report that they do for any of a number of familiar reasons (the ones that expose the limits of relying solely on survey, interviews, etc., in research). I was only asserting that most players of most MMOGs (yes, there are exceptions) do not see themselves as, primarily, directly competing with other players.

Lastly, I agree with the point that in games some external resources (to gloss it in a kind of shorthand) become allowed and some disallowed. But most objections to RMT seem to want to appeal to some transcendent reason for why it is wrong -- most frequently through an assertion that the difference amounts to that between personal (read, individual) accomplishment and cheating. Anyone who wants to object to RMT must instead, in my opinion, confront the fact that whether RMT is allowable or not is a situated question -- specific to a given gaming community.

I can certainly imagine a social group in an MMO (even, say, server-wide) arriving at an attitude that RMT is objectionable and finding ways to follow through on that objection through various mechanisms of social conventions (disapprobation and the like). That is, I have no problem with an objection to RMT as a shared social value. It is only that I am skeptical about how we would go about assessing the, ah, depth or integrity of statements of such objections. And I am even more skeptical that we can reason out some one size fits all foundation for claims against RMT.

Posted May 9, 2008 9:56:42 PM | link

greglas says:

Thomas --

As you know, I'm not the biggest fan of Caillois either (for a variety of reasons), but with regard to this particular observation, I think it is possible he is right, at least in the case of some "solo" games.

With regard to what most players say or think, if most players object to RMT and if they don't think they are primarily, directly, competing with each other -- okay. Then maybe this demonstrates that there was something to what Caillois was saying?

In any case, I don't understand how a rule of play is only legitimate in cases where competition is primary and direct -- it seems to me that certain game rules can be "indirect" yet legitimately enforced. Say a baseball player were to wear a cowboy hat or put a cabbage leaf on his head and others objected. Does the fact that this behavior is not directly related to direct competitive advantage make it illegitimate for other player to object and enforce the rule?

On the merits or demerits of certain transcendent universalist arguments against the RMT -- I'll have to take your word for that being the (flawed) majority philosophical position in the dominant anti-RMT camp. I really don't know.

But I do know that rule-making and politics are always a fairly messy business in terms of their accordance with clean theory. Yet despite this, societies seem comfortable establishing and legally enforcing certain rules when they are deemed legitimate (e.g. enacted by proper procedure and reflective of majority norms).

Posted May 9, 2008 10:45:39 PM | link

Thomas Malaby says:

There must be something I'm not getting in what you're saying about Caillois and "solo" style playing. Are you suggesting that because many people play WoW without developing any lasting social ties within the game that therefore Caillois was right? That they're there (and not playing solitaire) because the presence of all the other players is the realization of what they're imagining all the time any time they play a solo game? That doesn't wash. If so, no one would be playing solo games any more. We know that's not true. I'm sorry, but I can't see anything fruitful down a path that has to imagine and contort its portrayal of what is going in players' minds in order to get around the fact that their actions don't bear it out.

I didn't say that a rule of play is only legitimate when competition is direct. Far from it. I'm not sure how you can think that I said that. Social conventions arise for all sorts of reasons. And that's why I said that I can understand how a common attitude against RMT could develop somewhere; I wouldn't say that it was *illegitimate*. I was only saying that (a) I have trouble with the confidence we seem to have in relying on reported objections to RMT, and (b) I have trouble with attempts to develop an argument of RMT via an appeal to some reasoning that transcends specific circumstances.

As for laws, yes, I'm not saying that they serve no practical purpose. But it's folly to make the legal formalist mistake, as you well know.

Posted May 9, 2008 10:59:13 PM | link

greglas says:

Well, I certainly don't want us disagreeing about anything that you aren't saying...

It sounds like we agree, actually. Like I said originally in response to Matt, if players of an MMOG prefer an RMT-friendly environment, I would consider that important w/r/t enforcing a TOS that prohibits RMT in that environment -- I just don't think that's the case w/r/t WoW. I've never said (or thought) that there's a transcendent reason to prohibit all RMT in the abstract.

My point about Caillois is pretty simple: let's say you do daily crossword puzzles or sudoku solo (of course) but with the thought in your mind that you are working to improve your skill at these vis-a-vis many others who are doing the same puzzles. That seems quite plausible to me -- see Mia's Cheating where she discusses the idea of gamer capital. It seems to me that it's situating the construction of video game competence in the type of social space.

IIRC, Caillois argues that this is the reason many solo activities are done in the proximity of others working on improving the same skills. Perhaps he's wrong about that, perhaps not. But in any event, it strikes me that players construct models of what constitutes competency and legitimate status in MMOG play. It would not surprise me if they considered RMT within the game space to be an affront to their values. Again, fuller data on this would be nice.

Posted May 9, 2008 11:30:39 PM | link

Thomas Malaby says:

Greg -

Phew! For a second there I thought you had somehow decided to junk the legal realist dimension to your approach to things. I was going to write (to quote a wise legal-head I once heard): "What would Benjamin Cardozo think of you?" Luckily that's unnecessary. ;-)

As for Caillois, I don't think anyone would argue its plausibility in the thought experiment kind-of-way. Sure, to some degree when we play games, even alone, we may be at times motivated by a sense of our competence as compared to others. The trouble here (and it is huge trouble) is when this tissue-thin foundation becomes the basis for an approach to games as essentially competitive.

Not only does this (as I pointed out) fit in a self-serving way with Caillois' anti-Marxism, it turns gaming experience into a means to an end; that is, it assumes that we must be doing something (gaming) in order to do something else (comparing, competing), and the reason for this is simply an assertion that we need to. Such functionalism is vulnerable to the laundry list of objections to all such functionalist claims, beginning with their ahistoricity and ending with their tautology.

Forgive me if I get a bit testy about the persistence of the strand of thought about games that tries to turn them into essentially competitive, but to do so would be enormously unhelpful, since it would exclude a great portion of human experience surrounding games (or include it, again, under a logic that no matter what their actions, *or* their representations, people are doing something for this single, other reason). Are some games competitive? Sure. Can a competitive dimension creep in, even to games that are apparently solo activities? Absolutely. But none of this means that we can proceed *from* an assumption about games and competition whenever we examine games in context. To do so would shut down more avenues of inquiry than it would open up.

Beyond that, to invoke it here does, forgive me, strike me as just the kind of attempt to find a broad basis for an objection to RMT that, in the end, would overrun looking to social consensus in specific circumstances. It was that implication that got me riled up. :-)

Posted May 10, 2008 12:41:43 AM | link

greglas says:

Well I'm glad this ends with us agreeing.

I certainly don't see play/games as something inherently competitive. I also wouldn't want to define games (like Caillois does) according to an imposed formalism.

And I don't see play/games as instrumental either. You're probably as bothered as I am about some of the modern psychological literature that seeks (desperately) to find some way to either ground play in evolutionary adaptation or justify play as functionally necessary to cognitive/educational objectives. Why? (I'm not saying that neither is true, I simply don't understand why there's this felt need for play to be a means toward some utilitarian end -- as if, in the absence of that, there is nothing to say about it.)

As far as the RMT goes, my whole goal here is to understand the nature of the social consensus in specific circumstances.

Posted May 10, 2008 1:50:50 PM | link

Adam Hyland says:

I'm going to have to agree with Thomas here about the general applicability of games as internalized training devices/measures of skill. The compelling argument might be that otherwise (as you point out) 'solo' activities tend to be performed in proximity of those with the same skill level. Here I think that the question becomes, what causes sorting among players?

Even within MMO's we have substantial circumstantial evidence of sorting for many reasons. We see (in my opinion) more sorting in WoW across faction lines than earlier games (at least games I played), because the choice of faction was a real tradeoff (socially, not talking about gun skill or whatever). It isn't as bad as moving to a new city, but if you switch from horde to alliance you literally shift into a new social group, with no in-game mechanism to communicate with the old social group. That seems to me to be a much less trivial example of sorting (over social lines) by players than rough alignment by skill level (though some players argue that sorts along faction lines, too), and we didn't have to appeal to a different framework of thought on games to explain it.

It strikes me as more likely that people sort into "skill" based camps for social reasons. Players of equal skill level are liable to have a similar grasp of the lexicon and the etiquette. Assuming that skill converges on some internal threshold over time (you can only get so good), then like individuals would remain at the same level of skill (I'm not saying this is true. It also presumes some more unknowables than I would like).

But I agree with your last sentence (greg's) very much. Or rather, last thought/several sentences. :)

Posted May 10, 2008 2:26:28 PM | link

dmyers says:

“And I completely fail to see how RMT in and of itself hurts a random other player any more than giving something in-game to your rl friend who also plays hurts another player”

Let me start with that.

RMT, in this context, is representative of player behavior that takes place outside the context of the game and has an effect on players in the game. This class of behavior is harmful to the play function whenever it short circuits the mechanics available in the game to get from here to there, from one level to another, from poor to rich, etc. Or, in other words, whenever it prevents players from exploring the game fully – just as a diversionary canal prevents a river from exploring the terrain fully, or barbwire prevents cattle from exploring the prairie fully, or a new interstate highway prevents tourists from exploring those little towns ten miles off the nearest exit.

Whether the game is competitive or not doesn’t make much difference. While competitive play may indeed be the most efficient means of exploring a game space fully (according to free marketers, for instance), the “harm” being done is not at the level of the individual game player. Nor is it at the level of the game designer, whose intentions are just as vague and indeterminable and irrelevant as those of the mob rule mafias who would impose their particular cultural values (RMT-ish or otherwise) on anything and everything.

If the function of play is adaptive potentiation or some close variation thereof, then you will get less and less of that as you get more and more of the sort of supra-contextual behavior that, in the case of most (but not all) MMOs, RMT represents. Whether Blizzard makes a profit or whether glider is some sort of antichrist is then just OJSimpsonesque legalese piffle.

How play works, its relationship to the game system – which in increasingly broader contexts, becomes analogous to its relationship to the natural world – seems of more concern. From this point of view, WoW – all games really – are always in a sort of beta test mode, wherein the only consequential outcome and the only real value lies in the *information* play gains about the nature and working of the game system.

Now, the game system in question may, admittedly, suck; and knowledge gained from exploration of the game fully may reveal nothing more than the game’s derivative and repetitive suckiness -- which sort of brings us back to the WoW situation, about which I cannot see beyond the pifflety.

I will note, however, that over time, TN seems to defend both social play and RMT (even if only in a give-the-devil-his-due sort of way). This is apparently based on some notion of public good that is defined almost solely with reference to what the public thinks the public good is. Aside from the stickiness of deciding who exactly gets to be the public in such cases, this notion gets regularly stomped upon by natural forces about which the public has little knowledge and can basically do diddly: hurricanes, plauges, and/or the random economic downturn. Play as a natural force does a similar stomp.

If you ever have to bet on the Corps of Engineers or the hurricane, for instance… bet on the hurricane. Likewise, if you ever have to bet on the play or some social consensus about what the play should be, I would strongly recommend betting on the play.

Posted May 11, 2008 2:02:30 AM | link

Thomas Malaby says:

While I tend to agree that games are, in a way, fundamentally subversive spaces, where game practice can lead to surprising, even revolutionary outcomes, I don't see any reason to map this onto a functionalist (in this case, adaptationist) account of what play is. (So, for example, I see no reason to assume that there is a completionist drive in play, and certainly no reason then to charge that project of completion with a normative value.)

In any case, I agree that matters of policy are never easy to sort through, not the least because public opinion has its excesses, etc. It would in my opinion be far worse, however, to avoid that hard work by subscribing to the easy answer of a play "drive" that cannot be wrong.

Posted May 11, 2008 2:21:26 AM | link

greglas says:

"This is apparently based on some notion of public good that is defined almost solely with reference to what the public thinks the public good is."

Guilty as charged on that count -- with the weak caveat that sometimes the public does realize that the good it needs is slightly different than the good it wants.

Why? Maybe I'm just narrow-minded and bureaucratically indoctrinated, but I'm not sure how to situate discussions of TOS enforcement in a space apart from liberal democracy. (I don't think complex adaptive systems theory establishes a coherent politics.)

However, your thinking about this stuff does make me keenly aware of the limits in the framework. When I think of calculating social utility and enforcing rules in this context, I see the Twixtian underside of all this (majority/freedom + system knowledge), but I don't see any way to address that through social rule enforcement. In fact, from that perspective, rules derived from social consensus (rather than object structure) seem to be a part of the problem.

So if the question here doesn't excite you, I get that.

Posted May 11, 2008 4:09:29 AM | link

greglas says:

Cf.

Posted May 11, 2008 4:15:27 AM | link

Matt Mihaly says:

Greglas wrote:

I disagree, based on what I've seen. If you can show me convincing evidence that the majority of WoW players prefer RMT, I promise I'll rethink this.

A majority of players prefer either Horde or Alliance. Does that mean the opinions/likes/dislikes of players who prefer the less popular of the two factions don't count?


The question of harm is what I was getting at above with reference to footraces and steroid use. Are the interests of a rule-abiding baseball player harmed when another player uses steroids? Are the interests of rule-abiding footracers harmed when one of the racer takes a shortcut off the course?

Yes, they are. MMOs, however, are not an explicit competition to most players. I look at them as experiences rather than formal games (though they often contain formal games within the overall experience). To me, the appropriate analogy is asking whether the poor fellow in sub-Saharan Africa who has to walk a couple miles just to get fresh water is harmed when I spend more money than he'll ever see in his life to buy a house that lets me just turn on the tap to get water.

I would suggest not, because life is an experience not a competition. That's how I look at (and design and play) MUDs/MMOs.

Dmyers wrote:

RMT, in this context, is representative of player behavior that takes place outside the context of the game and has an effect on players in the game.

So does helping your real-life friends who happen to play WoW as well. Shall we outlaw giving your buddy a helping hand since it's representative of player behavior that takes place outside the context of the game and has an effect on players in the game?

I maintain there is absolutely no difference in game-terms between me giving my WoW-playing girlfriend a piece of equipment because she gives me friendship/love and me giving my WoW-playing girlfriend a piece of equipment because she gives me $5. In both cases, an item changes hands and in both cases the motivation for that item changing hands is completely opaque to other players. It is exactly the same action from the POV of a game player.


--matt

Posted May 11, 2008 12:56:57 PM | link

Thomas Malaby says:

Agreed, Matt. In game terms (and in social theory terms), the actions are in some sense the same.

I would say that that does not disallow, in my opinion, making a policy distinction between those two acts. The problem, as in all policy questions, becomes figuring out the basis of a *legitimate* claim for one policy or another. This, I take it, is the question that Greg is tacking toward.

Posted May 11, 2008 1:02:31 PM | link

Thomas Malaby says:

* toward which Greg is tacking. ;-)

Oh, and it probably makes sense to quote the old chestnut: Liberal democracy is the worst system of government in the world...except for all the others.

Posted May 11, 2008 1:31:54 PM | link

Unggi Yoon says:

I felt the dialogs between Greg and Thomas come down to issue of the identity of MMO, (I once argued MMO is not a magically circled game(in Huizinga or Caillois's terms) but a play association that open to player's culturla add-on(similar to that of D&D).

Relating to this, I earnestly recommned Vili Lehdonvirta's working paper recently presented at Breaking the Magic Circle, a seminar at the Game Research Lab at University of Tampere, Finland.

http://virtual-economy.org/blog/virtual_worlds_dont_exist

and a post which applying Jenkins's 'Fan Culture' to MMO sphere.

http://www.mixedrealities.com/?p=188

Posted May 11, 2008 6:00:35 PM | link

Thomas Malaby says:

Yes, Unggi, it's something a number of us have tried to hammer at (and I think Mia has something in the works too...). It might be helpful for Vili to be aware of that work (he only cites T L's book).

Posted May 11, 2008 6:20:57 PM | link

greglas says:

@Unggi

I actually agree with you. I've read Vili's paper as well, and am planning to give him some feedback on it soon. I do think he mischaracterizes my position a bit by suggesting I'm a legal version of Ted's separationist position. To the contrary, I see games as very real social institutions. However, I tend to see games as something rather different than typical contractual arrangements (and I think Josh Fairfield does too). I also see MMORPGs as something somewhat different still than many others games. But I suppose I should take that all up with Vili...

But, most importantly, I agree with your position -- that you have taken in your writing -- that players should have a significant voice in constructing the evolving rules of VW games. Which is why above, in reference to the OP, I kept stressing my concern here w/r/t to the WoWGlider suit is ensuring that the EULA/TOS is not understood by courts as setting forth the total scope of the social contract.

Posted May 11, 2008 9:01:06 PM | link

greglas says:

Matt -- I appreciate the fisking, but I think some of these comments are pretty wide of the mark. So just to explain what I'm saying:

Me: If you can show me convincing evidence that the majority of WoW players prefer RMT, I promise I'll rethink this.

MM: A majority of players prefer either Horde or Alliance. Does that mean the opinions/likes/dislikes of players who prefer the less popular of the two factions don't count?

These are two rather different things.

A disagreement about RMT is a disagreement about the game being played. By analogy, if the majority of players use a chess site to play checkers, that matters to me when the question is whether a "no checkers" rule is a good thing. It's not a good thing, I think, because most of the players prefer checkers to chess. (And Dave will disagree on this, I'm fairly certain.)

Otoh, a disagreement about Horde/Alliance is a disagreement about shirts/skins or black/red checkers. Both sides need the other side in order for there to be a conflict, and both sides would like there to be a conflict.

So I can't follow where you're going with this analogy.

MM: To me, the appropriate analogy is asking whether the poor fellow in sub-Saharan Africa who has to walk a couple miles just to get fresh water is harmed when I spend more money than he'll ever see in his life to buy a house that lets me just turn on the tap to get water. I would suggest not, because life is an experience not a competition. That's how I look at (and design and play) MUDs/MMOs.

Actually, I personally think people struggling to survive in developing countries suffer real harm from the level of energy and resource consumption in the United States. I think we have a moral (though not legal) obligation to consume less and that the best among us take this responsibility to heart.

Otoh, if I were playing chess with your poor fellow, I think neither he or I would think it would be legitimate for either of us to sell the other the right to capture our queens. If we did that, we wouldn't be playing chess anymore -- in fact, the one being offered the purchase would probably take it as an insult.

So again, I can't follow your train of thought here.

MM: I maintain there is absolutely no difference in game-terms between me giving my WoW-playing girlfriend a piece of equipment because she gives me friendship/love and me giving my WoW-playing girlfriend a piece of equipment because she gives me $5.

I maintain there is a difference. When I'm invited to someone's house, maybe I bring a dessert with me, or some small gift. Even if those things might have a market value of $10, I don't hand the host $10 -- and the host would be offended if I did. And taking offense to the cash would not be irrational, it would be perfectly justified and legitimate in our culture.

There are different types of economies of exchange, and gift economies are different than cash economies. People playing together socially often help each other out, but you can't just leap from that to claiming that a cash market is legitimate.

Posted May 11, 2008 9:27:57 PM | link

Adam Hyland says:

dmeyers: Forgive me for being innocent of what may be an important distinction, but I can't see how describing play as 'adaptive potentiation' creates some new reason to oppose RMT.

I guess I understand the notion that RMT allows players to short circuit what is intended to be the mechanism for learning/adaptation. I also understand that in making this claim you are explicitly not defending the remarkably barren learning prospects in solo MMO play. But it still, to me, comes back to declaring that RMT is bad because of some external, unknowable reason. Here it seems that RMT is bad by proxy of short circuiting being bad.

I respect the fact that you took a particularly hard question to answer (as it was kind of poorly worded), but I am not meeting you half way. The more I read and re-read your posting, the less sure I am that you are making a broad declaration, so perhaps I'm lost in the subtlety.

I'd also bet on the hurricane. :)

Posted May 11, 2008 10:15:39 PM | link

dmyers says:

“I maintain there is absolutely no difference in game-terms between me giving my WoW-playing girlfriend a piece of equipment because she gives me friendship/love and me giving my WoW-playing girlfriend a piece of equipment because she gives me $5.”

O, I wasn’t arguing that the two actions were dissimilar; I was arguing that they both represent supra-game activities that have game-relevant repercussions. And, yes, both are, for that reason, equally and similarly “harmful.”

In two respects.

First, as I argued earlier, these activities short-circuit the creativity, insight, blood, sweat, tears, and such that individual (and often isolated) players bring, in largely unpredictable and seemingly random ways, to a full exploration and understanding of the game system. In broader, though analogous circumstances, committees don’t seem capable of doing the great art thing; high-level tricked-out grey-bearded oldsters don’t come up with the mathematical magics; and social consensuses appear totally incapable of dealing with loads of stuff, including probabilities – and, by extension, realities.

Second, as I didn’t make quite so clear, these activities are harmful to the people who participate in them. These people – the gf, for instance – are put in a submissive, subservient, and dependent in-game position. How can they ever win? How can they ever even play?

As the gamer sociomeister, are you generous with the handouts, or do you withhold the handouts until some young man breaks away, steals a car, tries to run, and don’t get far? What’s the informational value of those two sociochoices? Which tells you more about the sociosystem and the sociomeisters who administer the sociovalues?

Supra-game activities denigrate the game and its players. They are, at root, anti-egalitarian. In general, they operate on the assumption that the game – or some part of the game --isn’t worth playing. And, sometimes, of course, it isn’t.

No doubt, some games deserve denigration. But, again, that decision of denigration is best made by the players themselves rather than by their bfs or their gfs or their parole officers.

Otherwise, who’s really gonna know?

***

re: http://www.wowwiki.com/Heart_of_Darkness

Hoho.
Heart of darkness.
Heart of light.


Posted May 12, 2008 12:54:50 AM | link

Vili Lehdonvirta says:

@Thomas: Thanks for the links. I ended up writing a rather long response to your comment at VERN. I won't reproduce it here since it's a bit off-topic, but you can find it here.

@Greg: Looking forward to your feedback :)

My plan is to produce a second iteration of that paper in the summer and submit it to e.g. Games and Culture.

Posted May 12, 2008 5:08:07 AM | link

shander says:

wow, how quickly this discussion slipped over to RMT propriety, and away from the legal issues themselves.

Despite the suit being based upon violation of copyright, what constitutes a violation seems to be the terms laid out in the EULA contract.

I really would like to see more legal discussion about the force and obligations possible in a one sided (is it called adhesion?) contract.

I know contracts that have consumers waive rights to sue and stuff are often not enforceable...a parking lot, school field trip, or ski resort owes parties standards of care and retains types of liablity regardless of what they get you to sign before the service/activity.

Is it up to the game operator to prove that botting is detrimental to game play, not only to ban it in the EUALA rules? (blizzard seems to have gone to a lot of trouble to prove this in their filing so I'm assuming that they think saying "why" they have a provision is relevant)

If the game operator needs to justify its EULA rules, do they also need to be consistent in what they punish? If they are banning bots because it is "cheating" do they need to prevent other types of cheating like players tranfering money to other characters or real life friends, or assisting friends to level quickly, bypassing the normal progression of the game?

If normal non botted players will spend 3 hours repetitively farming a spot while on the phone or watching tv, are employing a bot program or farming to sell the goods for rmt materially different sort of play if engaged in for the same as the player farming for his own?

Does the game need to prove the difference to keep the EULA condition valid?

Is it somehow legally important to enforce all EULA terms in an un-arbitrary way in order to keep specific terms valid?

Can EULA conditions that are too broad or that give an operator arbitrary subjective decision making be thrown out due to vagueness?

Basically, I am surprised that Blizzard felt they needed to legally prove the harm done by the specific activity

Is that only because they are seeking damages?

Would they be entitled to more discretionary enforcement if it was only a matter of deleting peoples accounts?

Posted May 12, 2008 4:55:13 PM | link

Adam Hyland says:

shander:

IANAL, so that's probably why I'm not prepared to suffer foot in mouth disease over the issue too much. Also, the part of the EULA controversy you mentioned doesn't seem to be the critical part. Blizzard already has the means to exercise its EULA against users who violate it: ban them. Here the critical question becomes how best to enjoin users not party to the EULA from harmful action.

But to be fair to the other posters, the title and substance of the original post lead us directly into the area of propriety. In order to come to some utilitarian enumeration of the net benefits we must examine what constitutes a benefit. We could have just as easily argued that the entire notion of Bentham's felicfic calculus was wrong, but we didn't. Partially because it is much, much more fun to talk about RMT but partly for the same reason most of us limited the depth in which we covered the legal aspects of the case: we aren't (most of us) lawyers.

to return to the question at hand, it will probably be instructive for you to read the Public Knowledge posting about the case. They law out the legal dimensions of what is at stake, and what the real problem is. In very short form, the problem isn't so much the goal as the means. We may, either provisionally or fully, accept glider as 'bad' but we then have to ask ourselves how much 'bad' blizzard should do in order to remove it. In this case, that new 'bad' introduced is the use of copyright laws to limit the end users ability to load a program into RAM on the basis that the end user is a licensee, not an owner.

Hope that helps.

Posted May 12, 2008 5:39:13 PM | link

shander says:

I did read the Public Knowledge site and did understand the issue they raised about how the case might also be a means to ban third party add-ons to internet explorer, adobe illustrator, etc.

There still seems the another issue about whether the terms of the EUALA are all binding on players. The EULAS define what is and isn't acceptable use of their license.

The way I understand it, the issue isn't whether you can load the program onto RAM... all users do that, the issue is whether you can load an altered or commingled version that violates a term of the EULA contract.

What is and isn't valid in the EULAS is a matter of contract law isn't it?

And you can't get a copyright violation unless you violate the license set out in the EULA contract?

Posted May 12, 2008 6:15:57 PM | link

greglas says:

Hi shander --

You're asking a ton of questions that, if answered right, would have very complicated, context-dependent, multi-paragraph answers. (And some of them are about what Blizzard's lawyers are thinking--which only they know.)

To really get this down, you'd need to spend 14 weeks during your first year of law school mastering contract basics, then take a few upper-level courses in IP and internet law, then spend some time doing legal research in the appropriate jurisdictions. It's almost, but not quite as bad as asking a neurobiologist to explain how learning works.

But, I think you're mostly wondering how a EULA/TOS provision might be held unenforceable. Here's an article that deals with that question. Link.

Posted May 12, 2008 9:09:51 PM | link

Adam Hyland says:

shander: I didn't mean to presume that you didn't know the basis of the case. Please accept my apologies if it seemed that way.

I do, however, disagree with your characterization of the RAM limitations. The standing law (as I understand it) means that owners of software may make any transformative or derivative copies as are necessary to run the software. In this case, the law seems clear to me: a software owner could run a third party mod that loads a program into ram and operates on that program's data without that constituting an infringement.

Where the rub comes in is that if the user isn't an owner, then the law providing protection no longer applies. I don't think that what glider does makes it more or less open to copyright infringement damages. Whether or not the purpose of glider is to allow the user to break the EULA is unimportant for the copyright claim. It is VERY important for the tortious interference but not for the copyright claim.

IMO, and in the opinion of PK and the EFF, the tortious interference claims should stick and are valid. Problem is, they don't offer enough monetary damages in order to stop bot writers. Copyright infringement does, in the nature of "per use" violations, which for a fan base like Blizzard's, is a lot.

As for the general validity of EULA's...sure, it is a matter for contract law. It isn't a totally settled manner, but it is mostly settled. I would suspect (again, IANAL) that blizzard's EULA would get upheld un the main were that the pertinent issue. It isn't.

As for your last question, I'm not sure what you mean.

Posted May 12, 2008 11:22:25 PM | link

shander says:

Thanks for the link greglas. It did come close to what I was curious about.

Perhaps it was "procedurally unconscionable" for me to ask such open ended questions! I'm shameless dilettante with complex issues sometimes.

Adam, thanks for the further explanations and emphasizing the aim to bring the higher damages associated with copyright into play.

I could rephrase my last question but I think I'll give it a break.

On the RMT and glider, I think many people have a place in their hearts for unexpected, organically flourishing , offshoots. I don't so much like the idea of cheating but I'm always fascinated by laws that empower individuals against larger entities attempts to limit things. Its probably some sort of Freudian complex.

Posted May 13, 2008 12:42:26 AM | link

Matt Nolin says:

Wow, quite a conversation going on here. Interesting to read through.

I find it interesting that it is so difficult for Blizzard to follow through with this. I'll refer back to that steroids in baseball analogy.

The MLB doesn't only punish the players who use steroids, they also go after the providers of steroids (I believe?)

How do they do this? and what makes it so different from the case here?

Posted May 13, 2008 10:24:08 AM | link

Adam Hyland says:

Partially for the same reason that the ESA labels games for content: the feds will do it for them if they don't. Baseball has (IIRC) an exemption from anti-trust laws that is offered on the basis that the league holds some characteristics of a natural monopoly. Tacitly, in exchange for that grant, baseball is supposed to provide a "balanced" game. If the game were fixed, then the federal government could (in theory), intervene to break up the league.

That is an extreme theory and I'm not 100% behind it, but it is the pretext for the congressional hearings on the Mitchell report.

Also, from a bargaining standpoint, going after players in baseball is fundamentally different from going after players in wow. Players in baseball are high visibility and have a lot to lose if they are thrown out of the league. Those players have a high motivation to sell out trainers who give steroids. Not true for wow players, even excluding the fact that they probably don't know the bot maker in person.

Also, and probably most importantly, there are laws banning the distribution of steroids for non-medical purposes. In that case, no interference claim is needed to go after trainers. The distribution is illegal on face.

Posted May 13, 2008 10:53:06 AM | link

robusticus says:

The steroids analogy is actually really bad for a number of reasons, but mostly because legal steroids are not banned outside of the MLB. A video game functions alot more like a sand lot than a retractable dome stadium.

The interesting tie between contract and copyright is the private server issue. People want to change the rules (as they are allowed in every other genre), but a private MMO server is true copyright infringement. There is no legit alternative to Blizzard servers so if you want to play WoW you are forced to agree to their rules and their terms.

More disagreeable is linking glider and RMT. I see glider as anti-RMT. A one time $15 versus an extra $50 or $100 per month. I can totally see how if you viewed WoW as Major League Baseball, i.e., you're making money on it, you would want a prohibition against Glider.

I don't suppose it makes much sense run Glider in a pay-by-the-minute Cyber Cafe.

Posted May 13, 2008 11:09:17 AM | link

robusticus says:

Oh, and while I'm at it... what's up with the 30 day refund if you disagree with the terms? 30 days only gets you the story game, which is not really a game. You don't get to the GAME within 30 days and you haven't formed a pattern until after 30 days. If these rules are to be so vigorously enforced, a full refund upon being banned would be the most equitable path.

Posted May 13, 2008 11:32:36 AM | link

Adam Hyland says:

I'm not sure about the steroids question. I think plenty are banned or controlled such that their use would constitute a crime regardless of the field. But I'm not sure about where every steroid used falls onto that continuum.

As for the private servers, I'm not sure that those represent the ultimate in copyright infringement. To me, copying the game would represent that. In a utilitarian sense they might represent some unique copyright threat due to the subscription model Blizzard uses (presumably making a cracked .exe worthless). But as I recall the EQ private servers required a good deal more reverse engineering to work with the client and model the server side behavior (that couldn't be extracted from the client) than just ripping an .iso. granted, this isn't clean room reverse engineering, no best practices are used to ensure that proprietary data is not used. But it is certainly more defensible (in my mind) than hosting the client as a torrent.

As far as the onerous terms for the EULA, this has (IMO) everything to do with bargaining power and incentives. Blizzard has no reason to offer refunds for people who get banned and every reason to deny a refund. For the contract terms, as long as blizzard can extract customers (and no game appears to siphon them off), they are free to offer whatever terms they wish. when bioware's MMO comes along, they may change their terms radically to keep customers who might otherwise defect (see EQ/EQ2 for great examples on the subject).

Posted May 13, 2008 12:49:20 PM | link

robusticus says:

Right. The steroids analogy. The whole thing mischaracterizes automation software, scripting engines, as bad for your health. When the reality of it is if you glide and use that time to go outside and get some excercize, your health will be better off.

But I was referring to the HGH type of enhancements. A ban on metal bats is a better example.

The client doesn't work without a server, so no sense in hosting it as a torrent if there is nothing to connect to.

Blizzard DOES offer a refund within 30 days of purchase if you disagree with the EULA. The point I was making is that 30 days isn't a long enough period of time to understand the ramifications of the rules, because of the way the game changes. Glider serves two primary uses, to level alts for greater flexibility in group make-up, and automating the min-max borefest people seem to think is worth a federal lawsuit over. Neither of those scenarios happen within 30 days.

No, click-through agreements exist to protect a company from liability should they decide to suspend service. They can not be allowed to be used to uphold a monopoly. And they certainly can not be used to establish the rules of any game.

Posted May 13, 2008 9:38:39 PM | link

Peter S. Jenkins says:

Applying copyright protection in the manner put forward by Blizzard would tend to have adverse consequences for other behaviors that are EULA violations, such as RMT. If Blizz prevails on the IP issue in the Glider case, one of two things could happen: 1) RMT could drastically be curtailed in all role-playing VWs, with the potential long-run effect of pressure from hundreds of millions of players to reform RW society to create similar "horizontal equity" (as Castronova puts it), or 2) all prohibitions on RMT would be removed by developers from their EULAs, so as to avoid scaring off potential customers concerned about being hit with a copyright suit.

Posted May 13, 2008 11:18:08 PM | link

Bryan Camp says:

Hi all,

I don't mean to be churlish here, but I take any assertion that the Blizzard TOS/EULA is a contract of adhesion with profound skepticism. Yeah, it's boilerplate. Yeah, it's presented as a "take-it-or-leave-it" proposition. So what? That's not adhesion, at least not in any U.S. jurisdiction that I know of. Putting aside all the legal mumbo-jumbo and the cut-out categorizations contained in the doctrinal sacrements, the heart of adhesion is "A" taking advantage of "B's" weak position in the market.

The key move in ANY adhesion analysis is the proper definition of the relevant "market." The cute game that Robrerno plays in the Bragg opinion is to narrow the market to a set of one. Hell, ANYTHING can become a contract of adhesion under his analysis. I don't think Blizzard holds sway over a set-of-one market. WoW competes with a bunch of other quest-and-conquer games (and even that is giving it a pretty narrow definition). So a gamer has alternatives. A player who does not like the EULA can say "sod off" (is that how one says it, Richard?) to Blizzard and can go play Ultima Online or whatever. Frankly, I'd argue the gamer can go play Pac-Man. But you see the point? Definition of relevant market drives the adhesion analysis. Most of the adhesion cases involve "rent-to-own" stores contracting with poor residents who, quite literally, do not have access to alternative furniture markets. Or landlords who hold the monopoly on rental properties within a geographic area.

To get an idea of how bizzare Robreno's holding in Bragg was, consider that the U.S. Supreme Court upheld a choice of forum boilerplate clause (similar to the arbitration clause) that was VERY unfair and printed in VERY small type on the bottom of the back of a cruise ship ticket. I forget the case name off the top of my head, but it is in many basic Civil Procedure casebooks (one of those first year law school courses). I go into some more detail in my article "The Play's the Thing: A Theory of Taxing Virtual Worlds."

I don't think you have to be a specialist to understand that the Blizzard EULA is not a contract of adhesion. Now, the adhesion doctrine is simply the common law way of regulating a market imperfection. So even if common law does not take action, perhaps one could make a case for government intervention---perhaps some law that would step in and regulate the relationship between Blizzard and its users even as the common law declines to do so. That is, I think, where Josh Fairfield wants to go. I'm also skeptical of that, but that's a different thread.

Again, I take no position on the Glider litigation itself. In fact, I think the Glider motion has more to it than the Blizzard motion, but I don't really know enough to conclude one way or the other. But certainly, Blizzard could put a new rule in its EULA that says "Thou Shall Not Use Glider" and it could enforce that rule against players who clicked through the EULA to play (after, of course, requiring a separate click-through for all established players---perhaps with a separate one-time email sign-in renewal just to emphasize the new clause). The clause would be strictly interpreted against Blizzard and it would be rather like RMT in being difficult to enforce. It seems logical to me that Blizzard would attack Glider this way rather than try to pick off each bloody player who uses it... Whether it succeeds depends on the mysteries of doctrinal divinations of which I am no acolyte.

Regards, -bryan

Posted May 13, 2008 11:44:09 PM | link

Adam Ruch says:

I'll add my two cents as a long-time WoW player and researcher of the same.

The question of whether RMT or Glider or such is 'cheating' comes around to the idea of a magic circle, whether that applies, and how players inside the game interpret the world around them.

An argument I made in discussing
ZT Online
(a Chinese MMO which functions by RMT exclusively) is that the RMT or Gliding in WoW harms the non-cheating player by diminishing his accomplishment. In WoW, RMT for gear amounts to walking on a football field, handing the referee a wad of bills in exchange for points on the board. Because WoW is endless, the gear is the thing. Gear represents one's accomplishments, one's place in a recognisable hierarchy of achievement(You have your Tier4 chest, Therefore you have taken down Magtheridon). The general population KNOWS this, and understands it. If a RMT or Glider player arrives at his keyboard loaded down with gear he didn't obtain himself, he still gets to enjoy the benefits of the rank which he's effectively bought in the hierarchy. This dilutes the meaning of the rank, which is simultaneously held by other players. Effectively this amounts to purchasing the World Cup trophy in a shop, rather than playing and winning to get it.

From a practical standpoint, as a guild leader, should I be forced to second-guess every applicant who has his or her T4 Chest? Can I rely on that person to have the experience one would associate with a raider of that level, or do I have to make sure that the player didn't buy it?

(I know you can't 'buy' your Tier gear, I wonder why that is... but that was the first thing that came to mind.)

-Adam.

Posted May 19, 2008 10:02:25 PM | link

Brian says:

I dont know of anyone who reads EULAs anyway

Britec - http://www.britec.org.uk

Posted May 22, 2008 6:48:25 AM | link

Scott says:

I really think that the whole RMT thing is now beside the point. If Blizzard is successful on the copyright infringement aspect, then activities I perform everyday in my job could become criminal. I frequently need to attach\monitor\modify running processes in memory, which in windows is actually a virtual copy of the actual RAM, not the actual RAM itself, in order to determine what is happening with that process and why is it affecting this other process and on and on and on.

This is no longer a game, it's scarey. If they win on that basis it will be a bad thing, and I still believe that it won't stop RMT at all. Although it may chase people away from playing some games as mentioned above. Similar to how DRM software chases away paying customers and doesn't slow down the pirates.

Posted May 22, 2008 9:14:23 AM | link

Phoebe says:

Under Dr. Castronova's direction, I and a couple of fellow grad students wrote a paper addressing the state of the law and virtual worlds.

Being wary of legal matters that attempt to define and/or rely on the interpretation of something as esoteric and subjective as GOOD, I completely disagree with your/Bentham's rationale.

Rather than attempting to define what is good or bad for other people, I'd rather see the virtual worlds community define the subject matter in which they actually have some expertise...virtual worlds!

Based on what the world-owners/builders define as the parameters of ethical interactions in their worlds, the law should use THAT as the basis of its definition. Based on Dr. Castronova's distinctions between open and closed worlds, we've extrapolated that to address the legal implications of TOS/EULAs for each world.

Apologies if this repeats what others said...didn't have the time to attend to the tomes beyond the initial post.

Posted May 23, 2008 12:25:22 PM | link

greglas says:

Phoebe, yes the notion of good is rather tricky, isn't it. But I'm not sure I get what you're saying on behalf of yourself and Ted's other grad students.

You say you'd rather not have *us* define what is good and bad for other people, but you'd rather see the *community* define virtual worlds? Isn't that the whole point of Bentham's calculus? Aren't we the community?

Next, somewhat discordantly, you suggest that world *owners/builders* (which seems to me somewhat distinction from the "community" which would include players) should create the rules.

But why? By analogy, perhaps airplane makers should make the rules that apply to airplanes and auto makers should create the rules that apply to autos? (You can see my cause for confusion, I trust.)

Perhaps the answers to my confusion are in your paper? Is it posted online somewhere?

Posted May 23, 2008 12:38:17 PM | link

Jeff Cole says:

See yesterdays Jacobsen v. Katzer (http://www.cafc.uscourts.gov/opinions/08-1001.pdf) for what I think is a better analysis of the underlying issue, though applied to different facts.

It's a case in which using the power of copyright law to enforce license conditions will lead to *good* results for software users generally.

Posted Aug 14, 2008 11:41:18 AM | link

Virtual worlds watcher says:

When you see how certain companies have been abusing their TOS and EULA to put everything in their advantage and leaving their users/ customers with nothing one could serious doubt legislation on these matters.

Posted Aug 31, 2008 5:41:44 PM | link