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Nov 18, 2003

Comments

1.

I find the concept of the courts mandating a game be turned back on to be absolutely facinating and demonstrative of some sort of disconnect with reality somewhere along the line. One of the big things we talk about as online game developers is how these things are services, not products. So, what happens to the service when the servants refuse to run it? Or, worse, run it in such a way to guarantee that players are guaranteed to be upset? This could be accomplished in my own game, Meridian 59, but adding a "return FALSE;" at the beginning of just one function, thereby removing combat entirely. Who's going to play a PvP game with no combat at all?

Giving the world to the players is not going to save the virtual world. I don't continue to run an online game for the boost it gives my ego; if I depended on my players to stroke my ego, I would have quit a LONG time ago. Many player-run shards of different games have completely fallen apart because the people in charge hated the mostly thankless task that is running a world. Plus there's the issues of knowledge and expertise required to keep these games running without too many hitches. Even the theoretical "experts" don't do the best job of this!

It'll be interesting to see how things go, I guess, if nothing else.

Kinda wished I could have made the conference, but a lack of funds and being on the wrong coast didn't help matters. ;) Looking forward to reading more thoughts on everything.

2.

What I found interesting about Jack Balkin's comment was his description of the dilemma that a failed virtual world potentially poses for U.S. courts.

The gist of the problem is that courts are empowered to keep a business running in order to allow people to liquidate any holdings that are enabled by that business. The main reason they have these powers relates to the banking industry, where a failed financial institution could be kept open artificially if that means a better price can be realised for its assets.

Jack's point was that virtual worlds can have objects within them that are worth thousands of dollars each on the open market. Closing the virtual world means that the "owners" of these assets would not be able to dispose of them, so a court might order that the virtual world should be kept open to allow disposal to take place. Unfortunately, though, these being virtual objects, they're ONLY worth money if the virtual world REMAINS open - you can't transfer your Sword of Mighty Cliche to some other virtual world. This means that any court electing to stop a virtual world from closing overnight would then be obliged to keep it running indefinitely.

The sensible thing to do - even if you concede that players can own virtual objects, which as yet only one commercial company does - would be to keep the virtual world closed. However, as the law stands, a creditor (ie. a player) could probably succeed in arguing for the virtual world to be kept open on the grouhds that they could then sell their stuff to someone else.

Richard

PS: If you think this is bad, wait until we have NPCs that have true artificial intelligence; they'd be even more upset if they were to learn that their virtual world were to be switched off...

3.

A player whose in-game items attain real-world value are not creditors of the developer. At least not with respect to the real-world value of any in-game item.

The player is a creditor of the developer to the extent that (s)he has already pre-paid the monthly subscription fee. But, the player is merely another unsecured creditor.

Creditors (especially unsecured) routinely receive, if anything, pennies on the dollar from a bankruptcy proceeding.

It is indeed a silly idea that a court would order servers kept running so that players could maintain and extract value--a value that doesn't accrue to the developer (and, therefore, its creditors). Such action would likely work to the detriment of creditors!

Jeff Cole

4.

Jeff Cole>A player whose in-game items attain real-world value are not creditors of the developer.

The way I understood it (which may be completely wrong, depending on it does on an interpretation of U.S. laws of which I know nothing), it wasn't that players were creditors that was the key point; rather, it was that the virtual world enabled players to access objects belonging to the players.

As an analogy off the top of my head, it would be similar to the situation that would pertain if a multi-storey car park (no idea what these are called in the U.S. - sorry!) were to go bankrupt. People whose cars were in the car park at the time would be able to insist that the building be re-opened in order that they can get their cars out, rather than demolished with their cars still inside.

Jack seemed to be suggesting that players might be able to use a similar argument to force a virtual world to be re-opened. He was pointing it out as an interesting anomaly, rather than anything that was necessarily a good or a bad thing.

The reference to creditors that I made was because I thought it was only permissible for creditors to request that the business be re-opened, but that players would be creditors even at the level of pennies. However, on reflection I don't believe Jack himself actually said that, it just cropped up in a conversation I had with some people afterwards. You can probably ignore the creditor bit <grin>.

Richard

5.

Richard, I think there is a very important distinction: the car-owners are taking their property from the garage, and their cars have value independent of the existence of the garage; the players are not taking their property from the game, and their items have no value independent of the game.

Every in-game item that a player acquires comes with a caveat similar to: "ownership subject to the servers running." Every (reasonable) player understands that. At this point, a player has no reasonable expectation otherwise.

I was not there for Jack's presentation, and he does not seem to have presented a paper, so I cannot comment directly. That said, it is I can not conceive a reasonably realistic situation in which any court would order that a game be kept running.

Jeff Cole

6.

"People whose cars were in the car park at the time would be able to insist that the building be re-opened in order that they can get their cars out, rather than demolished with their cars still inside."

From a business standpoint, I find this fascinating.
Assume:
Virtual objects are indeed property.
Subscribers have real-world rights to said property.
Said property is, in the real-world, 1s and 0s.
Virtual world A closes.
VW A recognizes property rights and allows subscribers to acquire a copy of the data for each object they own.

Pretty useless...
...unless Virtual World B comes up with a special Immigration mechanism.

I mean, heck, as long as we're hypothesizing, how about hypothesizing about immigration, too? And citizenship?

I would find the property rights debate much more ... uh, important, for lack of a better word, if the property was(again my mental dictionary fails me) portable/transferrable Out Of Context.

7.

My main problem with peoples perspective of virtual rights is that we're dealing truely with virtual property that, for the most part, can not exist outside it's virtual domain.

Imagine not that this is a multi-story parking garage (Bartles example) But more of a Coffee shop/Laser Tag Business. You would go in, lounge in the waiting room talking to friends and sipping coffee, then walk into the area to play a game with the stores equipment that they set aside for you. The equipment does nothing outside the store, it's not even compatable with the nearly identical store down the block, they won't even acknowledge your ranking in your shop at that shop.

Suddenly your store goes out of business. The one you visit and have membership in. Then what? You want your in game equipment? Well what will that do you? Not a whole hell of a lot. You'll have this non-functional, non-compatable, not-transferable, piece of gear that serves you no purpose. Your memories and photos/screenshots and real life relations outside of the game do more to you then any of that gear you have. Unless you want some as say, a collectors piece. Showing off to friends and family your once working piece of gear, ("Ya, this was the sword I got after we killed the Blue Dragon. Real nice piece of work it was.")

What's a virtual world going to offer you if they say they must hand over the equipment to you? A small dump of their database onto a floppy? A hex printout of your character information? It all doesn't make sence. It's not like you owned the gear to begin with. The store just gave you the rights to use the gear within their set rules.

If anything, players like myself pay (Or don't in the case of free muds) to be entertained and interact with each other. We're renters, not owners.

Tony Hoyt

8.

Tony, your coffeeshop+lasertag analogy deserves +1billion for insightfulness, I think. It's not perfect, but it's the best analogy I've read thus far.

9.

Re: warrior revolt in Everquest -- they started earlier than you mention. I think it was last Weds or Thursday, the Warriors on many servers stood around the portal to the Planes (known locally as the PoT stone) and blocked it off from access (at least without massive aerial aerobics, most folks could not get by).

http://groups.msn.com/mithrildaggers/randomstuff1.msnw?action=ShowPhoto&PhotoID=1739

Here is a screenshot of the protest. (I made the picture publicly viewable temporarily - later I will move it to our guild public forum and add a more 'permanent' link)

10.

Richard> "...it would be similar to the situation that would pertain if a multi-storey car park (no idea what these are called in the U.S. - sorry!)"

We call them parking garages...which is no less strange than the fact we iron pants, where suspenders to hold them up, and wear braces on our teeth. ;)

--Phin

11.

err...wear even. *sigh* My fingers often just pick a word that sounds close.

--Phin

12.

Qn for Dee Lacey:

The corpses at the foot of the warriors in your picture, are they poor saps who tried to pass by the blockade?

If so, it's about the most effective picket line I've ever seen...

13.

DuckiLama: I would find the property rights debate much more ... uh, important, for lack of a better word, if the property was(again my mental dictionary fails me) portable/transferrable Out Of Context.

Per Dave's comments on a different thread, what if your in world creation (say a table) is a design that you want to take out to the real world? Then having time to extract either screen shots or geometric data would be very valuable to you. Ditto for a texture that exists only in world.

So, in Tony's lasertag example, what about the case where I had spent a bunch of time playing and had come up with an amazingly popular arrangement of starting locations, walls, &c, that made playing the game really fun. That knowledge could be used at the location down the street, so I'd really like Tony's store to stay open long enough for me to get a photograph of my arrangement, or measure it out, or whatever. Alternately, if I had spent part of my time in world composing sonnets about my love of laser tag and had left them posted on the wall I'd really like to go in and get them.

"Shall I snipe thee, be true my aim?
Thou duck most quickly, my shot is errant:
Ricochets do shake the darling buds of May,
And headgear's face hath all to thin a shield" etc.

:-)!

Cory

14.

Poetry, corpses, a car park and laser tag. Sounds like a recipe for entertainment to me. ;)

The laser tag analogy looks good. I would add provisos such as "A participant can bring their own private, special gear and use it while playing. That gear is often traded or sold to other players." The whole issue is complicated by external valuation of internal items (that cannot be exported to other environments).

Really I just wanted to post my first two sentences.

15.

Jeff Cole>I can not conceive a reasonably realistic situation in which any court would order that a game be kept running.

I think what Jack was aiming to do was to show that if we make laws based on seemingly obvious conditions ("of course I own the sword, I bought it from another player!") then there may be unintended consequences that follow logically from them. We need to think things through before drawing any conclusions.

Personally, I think that it's a very bad idea to give players ownership rights over anything real-world in a virtual world without the consent of the virtual world's owners. To do so brings the virtual world into the real world, which is fine if you designed it that way but not fine otherwise. Other people (Dan Hunter being the most prominent at the conference) feel otherwise, however.

Richard

16.

Cory,

If such things were so important to a player, shouldn't the player maybe have "taken" them from the game earlier (e.g. the moment of creation, or shortly thereafter)?

I suppose you could posit a case in which the game world so suddenly shut down that some players might be unaware such closure was imminent, but is that really a reasonable case? I don't think so. I would think that a developer would at the very least notify players of the upcoming closure (via NPC's carrying end-of-the-world signs, heh) if player content is valuable to the player (beyond sentimental).

Before we start to make mountains from molehills, we need to find molehills.

Jeff Cole

17.

Richard,

Jack should know better, though (that is not to say he doesn't, I only know third hand--at best--his position).

Much like the frustrations you expressed not too long ago, the law has already addressed many of these same issues in the brick and mortar. Even Dan and Greg when looking for "virutal crime" have to disclaim their sometimes strong disagreement with the paper. Doesn't that suggest something?

What are the legal consequences in recognizing a legal ownership of in-game items? There are varying degrees of oqnership that the law long recognized. Do (can) the same principles not apply?

Great, you own the sword. Guess what, you own subject to (1) the terms of the EULA, and (2) our decision to keep the home-servers burning (which may be in fact covered by 1). Where's the danger? I don't see it.

The valuation of objects results not from any "official" developer recognition of the value, but from the time required to acquire such objects (of course balanced against the costs associated with finding a seller, etc.).

I just don't see the issues.

Jeff Cole

18.

Jeff,
IANAL, so I don't know the specifics of bankruptcy and whether there is a standard about "reasonable time to extract your stuff" before a company shuts down. I would say that there is a long and time honored tradition of game development companies being A-OK one afternoon and an empty, smoking crater the next day (ah, the great days of working for Acclaim Coin-Op . . . brings a tear to the eye) so I can easily imagine connecting to a persistent world one day and having it just be . . . gone. If you further imagine owned creations within that world that have real value, wouldn't the users turn to the courts?

Again, I'm not a lawyer, but it does seem like there is at least a molehill there.

Also, based on your reply to Richard, I think that you're focused on developer provided assets (Sword of Mighty Cliche) rather than true user created content inside a world that is flexible enough to allow it.

19.

Jeff Cole>Great, you own the sword. Guess what, you own subject to (1) the terms of the EULA, and (2) our decision to keep the home-servers burning (which may be in fact covered by 1). Where's the danger? I don't see it.

There are many dangers; indeed, the main reason I wanted to attend the conference was because I was fearful of the possibility that lawyers with no virtual world experience might recommend legal viewpoints that could be disastrous for virtual worlds were they to be adopted.

It might be, for example, that the EULA for virtual worlds would not be upheld because it violates rights that judges hold people to have under the real-world constitution of the country in which they live. It might be that judges decide that inter-character transactions can be taxed because the objects being transferred have real-world value (on eBay). It might be that players who identify with their characters in extremis could sue for the psychological harm endured when something awful happened to that character.

All these have a pretty obvious "right" answer as far as I'm concerned. I, however, am not a lawyer coming fresh to virtual worlds from Internet or new media law. It's all too easy to envisage how some judge might decide that the real and the virtual were the same thing and start making virtual property subject to divorce laws, or banking/insurance laws, or the wrong set of IP laws.

Fortunately, the lawyers at the conference did seem to have the "right" opinion (from my point of view) even though most were new to the field and few were actual games-players. I began to take heart during a talk by Yochai Benkler of Yale Law School, who gave a very good overview of the issues (if not any actual solutions). The turning point for me, though, was the talk by Susan Crawford of NYLS. In it, she discussed the notion of identity in virtual worlds, and asked whether people need a "law of identity" to protect these second selves from organisations (eg. VW companies) who can obliterate them at will. She came out against, which I would have stood up and cheered at if it weren't for my British reserve. Prof. Crawford's paper is at http://www.nyls.edu/docs/crawford(2.0).pdf, if you're interested.

>I just don't see the issues.

Hopefully, some day all lawyers will feel the same way.

Richard

20.

There's more than law here, there's politics. Groups of people who want things to happen often get their way, whatever barriers history or law or markets may erect against them.

21.

No, the corpses are not killed by the picketers. They're all of the same person, or actually I think frog-oid character

(The picture is taken in a place in Everquest where the code does not allow fighting, so there are few ways to die there. From a bug, from a lingering damage spell after you return there from somewhere more dangerous, or from a deliberate sacrifice for money or spell components. Maybe you can kill yourself here but I am not sure, haven't tried it.)

22.

I'm coming late to this thread so forgive me if I start a different tangent based on Ted's original post. I giggled when he wrote, "Imagine the following power transition: Conflict between owners and users gets ugly. User protests make such a mess of the world that the owners no longer find it profitable. They turn the world off. Courts or legislatures turn it back on again and hand it to the users. Or instead: owners, anticipating the final node of the decision tree, respond to user protests by giving them what they want."

I'd like to propose a different twist that has already played out as Virtual Worlds changed hands. I'll give an overview of examples and if it seems interesting to people, I'll try to dig up better documentation. The twist is when virtual worlds are abandoned by their original developers and a group of users purchase, rescue or steal the assets and restart the world. I know of four examples:

1997 - A group of designers called Circle of Fire band together to purchase the IP and assets of Active Worlds, Inc. (AlphaWorld). At the time, it was a new development. The result seems to be that they have been trying to make it a go as a business, but essentially, became very much like the corporation they replaced to the point of adopting their name.

1999(?) - Fujitsu sold their US rights to WorldsAway (now VZones) to the former Vice President. Soon after, the software running the world collapsed. It was mostly through the efforts of a group of community members (who also recruited one former developer) volunteering their time to reverse engineer a database recovery so they could restart the world with avatar identities and possessions intact.

2000 - When Communities.com shut their doors, their IP went into bankruptcy court and up for sale. I'm not a lawyer, but as a recent employee I kept getting the court notices. There were three significant pieces of IP that went on the block: The new virtual world technology developed in-house, OnLive Traveler (the talking heads voice tech) and The Palace. The in-house IP, I believe, was picked up by Randy Farmer, Chip Morningstar and Doug Crockford. But what happened to the other two is an interesting story:

OnLive Traveler was bought by Bruce Damer's Digital Space. The only machines that had functioning code on them seemed to be offline and locked up at a Colocation facility. I was told that once they rescued the server from a heap, they had to go about breaking into it in order to get the world back on line. (http://www.digitalspace.com/traveler/index.html)

Nobody bought The Palace IP as far as I know. Four month prior to shutting their doors, Communities.com had closed all of their Palaces and stopped distributing the client software. After the bankruptcy, users banded together, pulled out private copies of the "official" world, Mansion, and started hosting it themselves. They also started distributing clients and servers and offering support services much as Communities.com once had done. A visit to the current site (http://www.thepalace.com) offers a full set of support services and software as though Communities.com had never shut it down despite not being "owned" by anyone. I think this is the most interesting story because a group have taken IP that is in limbo and are running with it as fast as they can.

I realize this doesn't fit with the "court-ordered" discussion of virtual object property rights. I thought some might be interested in what is happening outside of courts as an instructive look at people's behavior with such worlds.

23.

Richard: "Fortunately, the lawyers at the conference did seem to have the "right" opinion (from my point of view) even though most were new to the field and few were actual games-players."

I hate to rain on your parade, Richard, but there is no right answer. As your post indicates, there are lawyers (and probably judges) who agree with you, and, I imagine, there will be lawyers and judges who won't. Your view is strongly in the developers' camp, which is unsurprising and understandable. Users may take a different view, and will launch actions to poke at the validity of the EULA in light of certain expectations they hold. A goodly number of the lawsuits that will eventuate will be about developer's interests against users' interests.

Here, Ted's point about politics becomes important. Because not only do the users have the political power of any community (however circumscribed) but they have the law, which is usually conceived of these days as comprising a political component.

You're neither wrong in your views, nor right. No doubt you'll have the opportunity to be an expert witness in the first case brought. But I'd cheerfully bet you a pint down your local that the first decision in this arena finds against the enforceability of the EULA and in favor of property interests of users.

24.

Dan: "I'd cheerfully bet you a pint down your local that the first decision in this arena finds against the enforceability of the EULA and in favor of property interests of users."

Are they mutually exclusive?

Can't the players enjoy their "property interests" subject to the conditions of the EULA?

Jeff Cole

25.

Richard,

Oh, there'll be plenty of lawyers and judges that get it wrong. But most will get it right. And the same basic principles of managing relationships generally apply.

Ultimately, it is the relationships, and not the space (physical or cyber), that will be determinative.

That players are "real" will always root the relationships in the physical, "real" world.

Jeff Cole

26.

Dan: "I'd cheerfully bet you a pint down your local that the first decision in this arena finds against the enforceability of the EULA and in favor of property interests of users."

Jeff Cole: "Are they mutually exclusive? Can't the players enjoy their "property interests" subject to the conditions of the EULA?"

No. Yes. But the bet is both that property interests will be recognized and that the EULA will be overturned.

I should say that I expect to lose this bet (it's actually just an excuse to have a beer with Richard). But I do expect that your (Jeff's) observation will be followed, and that property interests will be upheld, though in the end the EULA will rule. I don't think they will rule forever, and in contexts where the EULA doesn't apply (eg in property disputes among players, absent the involvement of the developers) the property interest aspect will be the most important. And interesting.

27.

The position I took at the State of Play conference was that (1) as more people spend more and more time and invest more and more resources in virtual worlds, when (2) those resources are treated as having real world market equivalents, (3) we can expect that courts and legislatures will start to protect these resources and investments as if they were property. We might even see the day when a bankruptcy trustee keeps a game going in order to dispose of virtual assets on the grounds that these assents are like bailments. (The game players are not, strictly speaking, creditors of the platform owner, but the platform owner has control over assets owned by others.). We are not there yet, because property rights in virtual assents have not yet been recognized by courts or been protected by legislatures. But if virtual worlds become as popular and ubiquitous as their designers hope they will be, we might someday.

Jeff Cole is entirely correct when he suggests that the first line of defense for platform owners is the EULA. Platform owners can limit the rights of game players by setting contract rights in advance. But that assumes that courts will enforce EULA's that place complete discretion in the hands of game owners to destroy investments in virtual assents by shutting down the game or otherwise eliminating these assents whenever they like. There is no guarantee that courts will not hold such agreements to be contracts of adhesion or otherwise contrary to public policy. (Remember, we are assuming that there will be a flourishing trade in these assets and lots of people are willing to pay good money for them.) Moreover, regardless of existing property and contract law, legislatures may well chime in to regulate EULA's if enough gamers feel cheated by what platform owners do and lobby for protection. I realize that this prospect sounds horrible to many people in the gaming community; but I am simply pointing out that legislatures often create and extend property rights that did not exist before. IP is a good example. Paracopyright did not exist before the DMCA. Now it does, much to the chagrin of many.

My basic message to the conference was that if you commodify virtual worlds and encourage people to treat elements in those world like property, and allow purchase of those assets in real world markets as if they were property, you shouldn't be at all surprised if courts and legislatures start treating these elements like property. That might be very bad for platform owners and gamers alike. If you think so, then you should think twice before you go down that road.

Jack Balkin

28.

"My basic message to the conference was that if you commodify virtual worlds and encourage people to treat elements in those world like property, and allow purchase of those assets in real world markets as if they were property, you shouldn't be at all surprised if courts and legislatures start treating these elements like property."

Given the current paradigm of the games we're discussing there doesn't seem to be much of a choice here. Even if a company goes out of it's way to ensure none of the things you mention happens (commoditization, markets, etc) it will still happen - it seems to be an emergent property of the model itself. At the end of the day will it matter if Verant went on a banning frenzy while EA did not? The commoditization, markets, etc will still be there (black, white, grey and all shades in between).
While the potential for further regulation doesn't seem to go away no matter what you do, I believe putting users on edge will only accelerate whatever nastiness (if any) may be headed your way.

29.

Is it absolutely impossible to stop eBaying? I don't think so. Identify the pressures that create the eBay market and bring them into the game, in a lore-consistent way.

30.

I have to agree. Black markets are a by-product of policy, and can be cleaned-up and brought back into any marketplace thats decides to allow open trade of assets.

31.

Which isn't necessarily the same thing as stopping eBaying, right, Bruce?

If what you mean by "stopping eBaying" is getting players to spend their dollars in a secure, in-game environment, then that's easily done. If on the other hand you mean getting players to stop trading dollars for virtual items altogether (which I'm guessing is what Ted is after), then I don't see how you do that without breaking your in-game economy.

32.

Thanks for the synopsis, Jack.

I dunno, though. The bailment analysis is very interesting: having thought about it, I, too, would argue that there is properly a bailment. Only, with the developer as bailor and the player as bailee; not vice versa. In fact, the developer/player relationship fits very nicely as a bailment: the developer/bailor, as owner, delivers personal property (the in-game item--notice it recognizes the "property" nature of the item) to the player/bailee, as a subsequent possessor, for the purpose of playing the game and with the contractual (EULA) understanding that when the purpose is completed (game ends, whether for a player--she quits--or in general--servers shut down), the property will be returned to the developer/bailor.

The only real rub is that a player can give the item to another player. But that can reasonably be explained as part of the purpose--playing the game--and the item will eventually be returned to the developer/bailor when the game ends (even though it may have ended long ago for the player/bailee).

Trying to shoehorn the player as the bailor just doesn't seem to work for me: the player/bailor is not a prior possessor who delivers the property to the developer/bailee. Most importantly, though, the player/bailor has no expectation that the property will be "returned" (how can the developer "return" what the player claims to own and over which she exercises dominion?). I don't think that mere extra-game value, without more, will legally support such player expectation.

In fact the developer-as-bailor analysis is very slick and clean. It treats items as property, but leaves title in the hands of developers. I like it.

I wouldn't hold my breath for legislatures to side with players on this issue. If anything, I would expect legislatures to make it easier for developers to capture some of that wealth.

Jeff Cole

33.

I only read the first... 8 comments or so, and skimmed the rest, but the talk of immigration and citizenship gave me the idea of treating virtual worlds as sovereign nations. (Mind you, I'm not really knowledgeable as to the specifics of what it means to be one..)

Two points to get from this:
(1) They aren't taxed by any government but their own.
(2) What would happen if you "closed down" a sovereign nation?

That said, there's a thornier issue of how you'd handle things like payment. It might be simpler than I think: I don't know much about sovereign nations. But seriously.. I think the idea has merit. We're creating worlds within the space of an office building.

34.

Dan Hunter>I hate to rain on your parade, Richard, but there is no right answer.

I didn't say there was a right answer. What I said was 'the lawyers at the conference did seem to have the "right" opinion (from my point of view)'.

All virtual worlds are embedded in reality because ultimately the hardware and the players are real. However, that doesn't mean they are all embedded to the same degree. In particular, there is a definite state-change line between virtual worlds that integrate their content with the real world and those that don't.

There, for example, integrates its economy into that of reality: you can formally buy Therebucks in RL and spend them in the virtual world. This makes There an adjunct to reality.

EverQuest, in contrast, does not integrate its economy into that of reality: you can't formally buy EQ currency any more than in a game of Monopoly you can buy Monopoly money. EQ places a veil between itself and reality. Lifting that veil stops it being the game it is.

Both these are reasonable positions to maintain. If you want to play a game where reality intrudes, OK, play There; if you don't, play EQ. What I object to is the suggestion that because some players decide to buy and sell EQ objects against the wishes of SOE, that makes EQ the same kind of VW as There. It doesn't. Both are pretend places, but There was designed to be part of reality whereas EQ was designed to be separate from reality. It doesn't matter that trade in EQ objects exceeds that of trade in There objects: it's the intention that counts.

As Ted described in his paper at the conference, there really is a tangible difference between the two forms of virtual world. We shouldn't need to have something as drastic as a formal Charter of Terration to protect the majority of virtual worlds from the kind of "it's real to me" arguments about virtual property that might otherwise drag them into reality. However, we may well have to do precisely that if people who can't see the difference between real-life and role-play persist in ramming their ideas against the battlements.

Jack describes the kind of future that we can expect if we follow the commodification path. A virtual world's developers ought to be allowed to make their own minds up as to whether they do want to follow said path or not. That's DEVELOPERS, not PLAYERS, because otherwise commodification can be imposed on a virtual world by a minority of players who commodify their in-world possessions against the wishes of the majority.

If developers want to take the commodification route, good luck to them, I hope they succeed. If developers don't want to take it, though, they shouldn't have to.

Richard

35.

"Is it absolutely impossible to stop eBaying? I don't think so. Identify the pressures that create the eBay market and bring them into the game, in a lore-consistent way."

Edward,

I would very *very* much like to see that road taken. It would mean a lot more fun and likely open up the market to a lot more people having fun. I can only think that either it's very hard to do, or our current designers are dumb and the companies have blinders on. I don't think anyone around here is dumb, so that's out of the question. Some cases of nearsightedness might be around, but the situation -when considered a problem- is still here because coming to a solution is not easy. Since we can't even agree on even having a problem, whatever root cause we find, and might subsequently fix, is likely to be controversial at best.

36.

Dee - The warriors' picket raises an interesting analogy about the grey area between blocking access and conveying information. You say that persons could get in through using some "acrobatics" (perhaps the virtual equivalent of diplomatically edging your way through a real world picket line) and that this was a no-kill zone (the corpses must have died from causes other than picket line violence) so it seems that the picketers may indeed have been occupying this grey area. If EverQuest pulled the plug on these picketers (strikebusting?) would they be guilty of denying the warriors their freedom of speech rights? There is a need to show state action, but this may be found in the fact that EverQuest is really running the equivalent of a "company town" and has stepped into the shoes of the state in setting it up. As avatars move from the world of games into that of commerce, this issue will become even more critical.

The apparently gruesome nature of the Warriors protest seems to parallel the early days of the Teamsters protests -let's hope that the Warriors do not need to make an unholy alliance with the equivalent of the Cosa Nostra (crackers) to get the muscle that they need to enforce their freedom of speech rights.


37.

I am very late to this party (and will remain out of the loop more or less in weeks to come) but I wanted to chime in on a few things:

1. Contra Jack Balkin and Ted, while I think developers can in some ways protect themselves by not monetizing the value of in-game assets, I doubt that they can entirely evade the consequences of being implicated in the social effects (if any!) of eBaying (which I'm using as a shorthand for any extra-game markets). The games create the economies that subvert the games.

The developers currently lack sufficient power, funds, and surveillance budgets to regulate these extra game markets, so if the law doesn't regulate them, they will be unregulated. While the law will certainly consider designer intentions when those intentions are relevant, they aren't always relevant. As Hemingway said: "Road to hell paved with unbought stuffed dogs. Not my fault."

2. I will buy Dan and Richard and the rest of the merry TN crew a pint because no one will win this debate. We will muddle through the messy issues (as we always have in cyberlaw) on a world-and-plaintiff-and-facts-specific "case-by-case basis." That said, I think the question of whether VWs are games or places is the big question, and I suspect the answer is "both." Yay.

3. Re property/no property: Whether the thing that looks like a duck and quacks like a duck really *is* a duck or is just *called* a duck by those whose opinion counts is arguably a question of no real import. I can cite to Jack Balkin, Julian Dibbell, Oliver Wendell Holmes, Ludwig Wittgenstein, Judith Butler, and countless others for the proposition that law can create true/false values all by itself.

38.

Divine Shadow>I would very *very* much like to see that road taken. It would mean a lot more fun and likely open up the market to a lot more people having fun. I can only think that either it's very hard to do, or our current designers are dumb and the companies have blinders on

It may be fun for you, but it's not fun for everyone by any means.

People who play virtual worlds as games tend to want to measure their performance relative to that of the other players. "I'm level 40, you're level 30, therefore I am a better player than you". This is how achievers think. However, this is completely undermined if anyone can spend a few dollars and raise themselves up. "Ha! Now I'm level 50 so I'M a better player than YOU!"

Suppose you're at college and you take a set of examinations at the end of your first year that will contribute to your final mark. It may be that you don't do as well as you hoped you would. Should you be able to buy the score of someone who did better? Personally, I don't think you should: the whole point of the examination system is to rate individuals' expertise relative to one another.

Many gamers see progress in virtual worlds like that. They are proud of their achievements, and furious when these are undermined by someone who has money rather than ability. They view the virtual world as a meritocracy, and don't like being disabused of this idea. What's more, people who sell their characters collude with this notion, because otherwise a L50 character is no more desirable than a L40 character - the gameplay is pretty much the same for both.

I'm not saying that opening up markets like this wouldn't be fun and wouldn't be a game. All I'm saying is that it would be different fun for a different game. Some people want the fun of the old game.

Richard

39.

Greg Lastowka>I think the question of whether VWs are games or places is the big question, and I suspect the answer is "both." Yay.

No, they're places in which you can (among other things) game.

Some people want to keep the game part separate from reality (as happens when people normally play games - you can't use real-life money to buy a house off someone in Monopoly then put it on one of your own Monopoly properties). Some people want to integrate the game with reality (as happens when you play poker for money instead of M&Ms). Both these positions are fine.

What isn't fine is when some players want to integrate the virtual world into reality when the developers and the rest of the players don't. There should be a defence against that which doesn't involve having to reprogram or redesign the game. If a player of, er, basebasket can be jailed for taking a bribe to throw a game, I don't see why virtual worlds can't use the law protect the integrity of their games, too.

>Whether the thing that looks like a duck and quacks like a duck really *is* a duck or is just *called* a duck by those whose opinion counts is arguably a question of no real import

It is if you own the cassowary that everyone is calling a duck and claiming to be theirs.

Richard

40.

http://home.mira.net/~areadman/casso.htm

Richard,

Re property: I'm generally with you on this--I think we've got various species of cassowari here which are not ducks, but might easily be mistaken for them. My point was that the duckness of cassowaries will be made true or false, or a muddled mess as cases slowly trickle in. The There/EQ distinction is one argument that needs to be made. I generally agree with you about how those cases should recognize the cassowary as a unique fine-feathered friend. But you and I can't win those cases preemptively by virtue of superior logic displayed on Terra Nova.

Re unbought stuffed dogs--if I invite 300,000 of my closest friends over my house to play baseball (or cricket!) and they proceed to buy, sell, gamble, and steal the bats, balls (or wickets!) that I'm leasing to them to the tune of several million dollars, law and society might not care if I say "But I intended this to be just a game!". In some situations the law cares about intent, but it won't care in others.

> If a player of, er, basebasket can be jailed for taking a bribe to throw a game, I don't see why virtual worlds can't use the law protect the integrity of their games, too.

As you might have noticed, I'm kind of curious about this concept too. But one notion (that I didn't get to in the presentation) is from the PGA Tours case. The rules of golf recognized by the Supreme Court in that case were not the rules that the PGA (the designers) said were the rules.

41.

Greg Lastowka>you and I can't win those cases preemptively by virtue of superior logic displayed on Terra Nova.

No, but by posting here we can make our arguments available to people who will have to fight the case. Some of those lawyers at the conference (including you!) could well be engaged to defend a developer were any of this ever to make it to court.

>The rules of golf recognized by the Supreme Court in that case were not the rules that the PGA (the designers) said were the rules.

I don't know this case. Is there a summary of it somewhere that a non-lawyer such as me is able to understand?

Richard

42.

"It may be fun for you, but it's not fun for everyone by any means."

Richard, you got what I said backwards.

Edward talked about identifying the pressures that bring eBay into the picture and bringing them into the system in a lore-consisten way, to which I replied that I'd love to see that road taken.
The market opening up I'm talking about is the multiplayer online game market, not the eBay market. Having eBay in the picture is not hard, it's already there and we know how to do it; the hard part I talk about is actually doing what Edward suggests.

43.

Divine Shadow>The market opening up I'm talking about is the multiplayer online game market, not the eBay market

OK, sorry, my mistake.

Richard

44.

Richard:
"People who play virtual worlds as games tend to want to measure their performance relative to that of the other players. "I'm level 40, you're level 30, therefore I am a better player than you". This is how achievers think. However, this is completely undermined if anyone can spend a few dollars and raise themselves up. "Ha! Now I'm level 50 so I'M a better player than YOU!""

This is a very good point. I am a reformed-achiever, so can relate to the concept that "If it was hard for me, it had better be hard for everyone else!" Which is why, if Sony decided to sell Lvl 50 characters for $X, I'd be at the front of the crowd chanting that this was horribly wrong.

The inevitable commodification of games does NOT extend, however, to the game owner selling property for profit. So long as the game runner can resist magically generating content for money, EBay, IMO, does nothing to devalue level 50 characters. SOMEONE had to work X hours to get that character. The current player might not have had to, but that is irrelevant. I never see the player. I see the avatar.

The monopoly example is also worth examining. The rules of monopoly, IIRC, allow the trading of property, houses, etc. Thus, it is clear that paying the banker RL cash to get a house would be in violation of the rules. However, within the game, there is nothing prohibitting me trading $1 game money for Boardwalk. This is clearly an unfair trade, and those watching would become suspicious and likely claim collusion. At this point we enter the yucky meta-game level. At most monopoly tables, it is assumed everyone will try to win for themselves. If two players decide to work together, they could sacrifice one of themselves to ensure the other won. Most groups I know would frown on this behaviour.

Another example is Blackjack. I was at a casino once with a friend playing Blackjack. He had 19 on the table, and because we see gambling as a chance to lose money, he said: "Hit me!" By some miracle, a 2 came up and he won. The person beside him was very upset - he explained in hush tones that one should never hit above 17. He further instructed us that because this is a low stakes table, he'd let it pass, but in a high stakes table such play could get one in a fight for having "ruined" the next persons cards. In all defiance of the independent nature of probability, improper play on a BlackJack table can be seen as griefing the other players.

So, what allows these meta rules to persist? I'd say they can only hold together in small groups. The rules are, by definition, not expressable in code or words. When you deal with 100k people, however, you only have code and words. I don't think there is anyway to get a common sense of understanding among that many people. Instead, it will be fractured into small groups of people who DO share a common understanding.

"What isn't fine is when some players want to integrate the virtual world into reality when the developers and the rest of the players don't."

The vast majority of players I have met swiftly integrate the virtual and real world. At least, they spend lots of time talking about real world stuff inside the virtual world, and vice-versa.

But that is to misread your quote. You are referring specifically to unrealistic internal transactions (I'll give you 1million gold for no apparent reason) which are backed by unrealistic external transactions (You'll give me $50 for no apparent reason) which, when integrated together, result in a sensible transaction.

What can be done about this? One can't code around it without disabling item transfer entirely (which seems counter productive) One could reduce the pain required to gain items. If gaining items is supposed to painful in the game, that isn't an option either. One could try and install an ethic on the user base so they will consider it a "cheap" tactic and avoid it. However, that would be impossible to do with 100k users - one wishes one could just install an ethic of "stop being mean to each other" long before something more contentious like this.

Currently, you can use the "I can ban anyone" justification to wipe out the most obvious cases and try and drive it underground. I can see why, seeing this being threatened by claims of: "It's an external contract which the developer should not care about", etc, one would become concerned.

Personally, I don't have much sympathy for the anti-Ebay viewpoint. In MMORPGs, I have infinitely more problems with anti-social griefers than I ever encounter due to EBaying.

- Brask Mumei

45.

Brask Mumei>SOMEONE had to work X hours to get that character. The current player might not have had to, but that is irrelevant.

It's not when they're the one lording it over you.

Actually, it could be several someones, each working in a production line getting characters of level N to level N+10 then passing them on to the next someone.

>I never see the player. I see the avatar.

That must take quite a serious effort of will on your part...

>When you deal with 100k people, however, you only have code and words. I don't think there is anyway to get a common sense of understanding among that many people.

You don't have to have only code and words, though. It's quite possible to legislate so you have the law, too. It's the law that stops me from photocopying textbooks and giving them to my students for free; the law could stop people from trading in virtual world objects if it put its mind to it.

I agree, though, that the law isn't likely to be all that effective when people out of its reach deliberately flout it. In that case, your observation that only small groups of people can share the same idea of what a game is could well come to the fore. Maybe the future is the virtual village rather than the virtual world, where everyone knows everyone else and people who spoil whatever each small society defines to be "the game" are far easier to stop?

Richard

46.

"It's not when they're the one lording it over you."

The real problem there is the anti-social behaviour of lording their "superiority" over me. I have a problem with ANYONE lording their lvl 50 character over me. I really don't care if they got it the hard way or not - I'm not going to react positively to me if they say "I am a better player cause I'm level 50". But, I should keep in mind that just because it does not bother me, it doesn't mean others won't be bothered.

"Maybe the future is the virtual village rather than the virtual world, where everyone knows everyone else and people who spoil whatever each small society defines to be "the game" are far easier to stop?"

Exactly. This is not to say that virtual village might not exist inside a virtual world.

I think the best comparison would be to those who try and "roleplay" inside these worlds. It is often argued that there should be "roleplay" servers. To my knowledge, at the massive scale, this is as effective as decreeing that there should be no out of game contracts. However, inside a virtual world one can often group with a large number of likeminded people and roleplay to your hearts content. You may have to ignore the people who wander by from the outside, but, when a jet flies overhead during a D&D session it doesn't ruin our ability to roleplay.

">I never see the player. I see the avatar.

That must take quite a serious effort of will on your part..."

Really? I think my statement must have been misleading if it seems difficult. In my mind, it is easiest to treat the other person as fully represented by their in game avatar. I usually follow a don't ask/don't tell policy regarding real life, and conversations thus tend to remain game related. When asked where I live, I usually cite Nujelm due to tax reasons.

I've never fully understood the claim of some roleplayers that people talking about real life ruins the immersion. I just implicitly filter most of it out most of the time, and people will naturally direct their conversation to the topics that ellicit a response.

- Brask Mumei

47.

Brask Mumei>In my mind, it is easiest to treat the other person as fully represented by their in game avatar. I usually follow a don't ask/don't tell policy regarding real life, and conversations thus tend to remain game related.

So if someone in a virtual world does or says something absolutely unacceptably obnoxious to you, then they quit and re-appear as a different character, you're quite prepared to treat that character as distinct from the one that just behaved abominably to you, even if it's obvious (eg. through the profane nickname they call you) that it's the same person?

This is, as you say, one of the problems that faces role-players: how to deal with people who don't want to role-play? That said, there are non-small virtual worlds that do a decent job of it (http://www.underlight.com/ springs to mind). Role-playing virtual worlds can be "walled gardens", as opposed to a bunch of people hanging out in a public park (which is more like what you describe).

Richard

48.

/me pants
Sorry I’m late…
IANAL

Value of assets in a _smoking-crater_ VW
==
If a VW dev company becomes a _smoking crater_ then I wonder about the value of assets in that world. Unless there is another company that looks likely to take the world over or a player base with the funds and skills would it not be the case that the relative value of in-game assets would go into immediate and terminal decline.

Or to put it another way, what is it that determines the relative value of any given virtual asset ?

Sure there are the in game factors of supply and demand which determine the moment by moment value, but what underlies this is what underlies all notion of value i.e. faith \ belief that that value has meaning. When a company goes into decline the break up value of the company is made up its tangible assets – building etc (which again don’t have intrinsic value but rather a more deeply entrenched set of social norms) and intangible ones such as good will, When we are talking about the virtual world (not the company and its PCs, servers etc) all we have is the faith of the players. So if a VW dies there is a good chance the the value of any items will evaporte just as the run on a stock can bring the value of a company to effectivly zero (well certainly below perceived _book value_).

The East of course puts a different spin on things. If ncsoft went under then one could see courts \ government steeping in on the basis the Lineage is so integral to the social and economic life of the country that it is much bigger than a single company. One option that might be taken here is that proposed by Stewart & Gil-Egui (of Temple University) of applying Public Trust doctrines to certain resources.


Bankrupt & Divorce issues
===
I think Jack’s points of what line courts might take is an interesting one and from my reading of things in these types of case courts will tend to take a pragmatic view of things, or Greg \ Dan’s is it a duck position,

Let’s assume that I have a LOT of assets in a VW (100s of thousands of euro (if eBay’ed)) and that that world is operational. And that other than these VW items I have hardly a penny to my name – I then go bankrupt or get divorced).

Does any one suppose for a moment that a court is going to ignore the fact that _if_ I traded all this stuff I would be worth a fortune ? Would my creditors \ ex-wife’s laywers not be saying – hay this guy is rich, EULA SMULA if we ebay this stuff we can in the very real world get our cash back. I’m kinda thinking that they would not be looking at the finer points of academic argument but ceasing these assets and forcing their sale.

Putting on my _evil_ren hat (again): If this is is not the case then why don’t I don’t I just run a scam, I’ll run up lots of debts, put all my money in virtual items, go bankrupt then trade all my virtual items back – and not one can touch me – right ?

In fact why don’t I just use VWs to launder money for my plan of drug fuelled world domination (written details available upon application) given their relative stability and legal greyness they are looking pretty attractive for that sort of thing right now.


Ren
www.renreynolds.com

49.

"So if someone in a virtual world does or says something absolutely unacceptably obnoxious to you, then they quit and re-appear as a different character, you're quite prepared to treat that character as distinct from the one that just behaved abominably to you, even if it's obvious (eg. through the profane nickname they call you) that it's the same person?"

My theory of online behaviour is that, given enough rope, people hang themselves. Thus, if a player wants to create a new Avatar to reset our relationship, they will either be reformed (in which case it is a good thing), or their true colours will swiftly show through. In the case you just positted, the latter has occured. I'm going to be prejudiced against people using said profane nickname regardless of whether they have the same player.

There is the possibility that some long-term enemy will want to pose as a friend to perform some crippling betrayal. However:
1) By definition, I am unlikely to find out before the betrayal occurs.
2) In my experience, the cases where previous enemies reform vastly outnumbers the cases where they betray.

Thus, if I happen to discover that Avatar B, who has been a helpful companion for the last month, is actually Avatar A, who was my dreaded enemy for the previous year, I'm not going to demand an explanation from Avatar B. I certainly will exercise more caution, but I'll work under the assumption that this represents a clean break until it is proven different.

So, in summary, I certainly do use player ownership if it becomes obvious. For example, I may know Avatar A is Player X who I know IRL, and thus Avatar A will inherit Player X's reputation. On the whole, however, I rarely seek this out, or pay it much attention when it is present.

In UO, the group I was in had an implicit game of "guess the alt", where it would be considered a faux pas to say: "My Alt is Z". Note this was NOT roleplaying motivated, it was instead merely a social norm. In a culture like this, it is a lot easier to treat the avatar as distinct from the player, as conversation tends to not bring the relationship up.

- Brask Mumei

50.

to Peter -

Yes, I meant acrobatics not aerobics. I noticed the mistake after I posted, so embarassing :)

51.

"In fact why don’t I just use VWs to launder money for my plan of drug fuelled world domination (written details available upon application) given their relative stability and legal greyness they are looking pretty attractive for that sort of thing right now."

I looked into this a bit. Not because I want to launder money, but at because I was interested in the legal implications of it all.

The MO I looked at was: Company in country A produces X, smuggles it into country B, sells X and now has cash. Cash is used in country B to run operations but is also needed in country A to produce more X. To get cash to A, a company in country B buys Y and ships it to country A, where it is later sold for cash completing the circle.

Succinctly:
A uses cash to produce X
A smuggles X to B
B sells X for Cash locally
Cash in B buys Y
Y ships legally to A
A sells Y for Cash locally

It doen't seem possible to do because the product "Y" of virtual worlds, while it can be exported quite easily, has no local demand in country A and no fully-local exchanges a'la PayPal, making the system unworkable.

I must admit I am far from a Laundromat expert. Were you thinking of another method?

52.

Richard said:

"People who play virtual worlds as games tend to want to measure their performance relative to that of the other players. "I'm level 40, you're level 30, therefore I am a better player than you". This is how achievers think. However, this is completely undermined if anyone can spend a few dollars and raise themselves up. "Ha! Now I'm level 50 so I'M a better player than YOU!""

Let's face it, most VW that are "achievement based" are just time sinks. You ARE trading one commodity for that "achievement": time. And frankly, I think it's a weak achievement model.

It is no more fair that a VM should be biased towards people who decide to drop 40-60 hours a week into the game at the exclusion of others.

Some people have time to burn, others money. Both have value. That many VMs are skewed towards one and not the other doesn't make much sense to me.

If designers think the time-sink treadmill is the best way to measure player advancement, it's time to tweak the designs, not bemoan eBay.

And the players who want to defend that treadmill are the very small minority of players who can afford to sink boatloads of time. That's a limited audience/market.

53.

Mr. Nosuch>If designers think the time-sink treadmill is the best way to measure player advancement, it's time to tweak the designs, not bemoan eBay.

If players don't like virtual worlds with time sinks they should go and play one that doesn't have them, or simply stop playing altogether. Otherwise, what incentive is there for designers to change their ways?

Although I realise that eBaying is a fact of life, I do think that developers ought to be able to protect their virtual worlds from it if they so wish. Suppose you found that there's a really good virtual world with no time sinks that suits you just fine, but that people still undermine it by eBaying information, say, rather than characters or kit. If the VW developers could stamp the activity out it might be your perfect online home, but if the law won't let them then your perfect world is just as doomed as the ones you decry.

Richard

54.

"If the VW developers could stamp the activity out it might be your perfect online home, but if the law won't let them then your perfect world is just as doomed as the ones you decry."

Even if the laws fully supported VW developers, the market will still be out there. Channel, control, evolve and adapt are the key words, not "stamp out"; that's as unreal as a "perfect" world.

To paraphrase you: "If the VW developers could channel, control, evolve and adapt the activity it might be closer to your vision of a perfect online home, but if the law won't let them, or their vision is lacking, then your near-perfect world is just as doomed as the ones you decry."

55.

http://www.ccdprog.com/wwwboard/messages/7022.html bowelsswitchboardturns

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