As an interesting compare/contrast with VW issues, see this re Joe Horn's inability to speak freely (as in "free beer") on a game field -- apparently the phone rates are about $30K per call. (Cell-phone bans are generally content-neutral btw, just like the DMCA supposedly is...)
Of course, despite Curt Schilling's proclivity for assassinating dwarven paladins named BingBong, I admit the connections between the EULAs of professional sports and virtual worlds are somewhat tenuous. E.g. Horn may be a football field rebel, but he is being paid to amuse people, not paying people to be amused.
(More sports/speech connections to ponder: Salt Lake Olympics zoning, Baseball and Iraq, columnist thoughts, and of course, the Mexico City 1968 Olympics.)
Greg >I admit the connections between the EULAs of professional sports and virtual worlds are somewhat tenuous
There are oodles of connections. In the Horn case you reference he was charged by the NFL for “unsportsmanlike conduct” (at least that is what the penalty was give for so I presume that was also the basis of the fine).
Many EULAs have appeals to some vague notion of playing the game and tend to reserve the right to for the game company to make up what this is at any time they want.
For example here is the one for SWG (fresh of the net a few moments ago at http://starwarsgalaxies.station.sony.com/content.jsp?page=Policies%20EULA – and I’m not picking on SOE here, in fact congrats for making it easily accessible):
6. We may terminate this Agreement and/or suspend your Account immediately and without notice:
…
(v) if you engage in game play, chat or any player activity whatsoever which we, in our discretion, determine is inappropriate and/or in violation of the spirit of the Game.
Which gets us into who bunches of complications – is stealing stuff when role playing a thief in the “spirit of the game”.
To cross threads, an interesting point is what the legitimate scope of this clause is. I take that that what a game company assume this means is: by virtue of playing our game we have the right to take your account away if you engage in any activity in any part of your life that we don’t like. Certainly in sports there is the idea of ‘brining the game into disrepute’ which can apply to any area of a players conduct on or off the field – and amusingly assume that many sports have some repute to dis in the first place.
My evidence for the broad scope of EULAs is cases like the Alphaville Herald – as it seems to me that this is the type of clause that Maxis might appeal to, after all did Peter do anything in-game that they could object to ?
Not sure what the US position is, but in Europe I cant see clauses like this surviving a challenge under the Unfair Conditions in Consumer Contracts directive.
A wider point is that there is a general tendency these days for private entities to attempt to control civil behaviour. As well as the widely discussed notion of the shrinking creative commons where through various types of IPR law private entities are succeeding in controlling many of the symbols and texts that form part of our common culture. Geographers and civil rights people argue about a widening privatisation of common space – for example, love em or loath em shopping malls are important communal spaces, yet rules of conduct tend to be defined and enforced (using private security, cctv etc etc) by commercial interests to further those interests.
So are VW’s communal spaces and should we really think of these in terms of rights such as free speech or do we concede that they are corporate spaces where speech and acts can be legitimately controlled and moreover that acts outside them can dictate access to theme and the community and bonds we form within them.
Ren
www.renreynolds.com
Posted by: ren | Dec 19, 2003 at 04:28
Ren,
I don't think it's anything as sinister as SW:G trying to control civil behavior.
The broad EULA conduct provisions simply put the burden on the player to manage the risks associated with her behavior.
It is because of persistence--of the community associated with the game more than the game itself--that the line between private and public blur. Because it's trivial for players to transcend the client and server, the community straddles the border of the real and virtual worlds.
The focus should be the community, not the client. Just because a player participates in the community extra-client (that is, through a website, IRC, etc.) doesn't get her off the hook with insofar as her contractual relationship with the developer. Nor should it--it still implicates the player-developer relationship.
The EULA manages that relationship to the fullest extent of its terms and within the limits of the applicable law. So, Maxis can terminate Peter's account, but they can't prevent him from posting on his site. They can discontinue his access to the game, and to that extent, his participation in the community; but, they cannot prevent his doing so extra-client.
But, there is quite a bit of value in participating in the community through the client and server and that gives the developer its leverage.
From another angle, where you see private entities leveraging public behavior, I see public relationship (cries of censorship, inflated sense of entitlement) leveraging a private relationship (the EULA). Again, the lines are blurred.
Greg: I am not sure the distinction between active and passive voices ("to amuse" v. "be amused") is the proper distinction. Or, that the connection is as much tenuous as it is subtle. Because, after all, with respect to pro sports, it is about those paying to be amused. Sony has the code to prevent Lord Inquisitor Seru from showing up to work, showing off and destroying customers' experience; the NFL, the collective bargaining agreement.
Jeff Cole
Posted by: Jeff Cole | Dec 19, 2003 at 05:32
Jeff> I don't think it's anything as sinister as SW:G trying to control civil behavior.
You mean by this that the NFL is less sinister than SOE?
Jeff > The broad EULA conduct provisions simply put the burden on the player to manage the risks associated with her behavior.
Well sort of, but as the boundaries are not defined it’s hard to manage the risk.
Jeff> It is because of persistence--of the community associated with the game more than the game itself--that the line between private and public blur.
It seems to me to be a policy choice on the part of the developers.
Jeff >The focus should be the community, not the client.
Agreed, but the developer is not the community, they are only one part of it.
Jeff > Just because a player participates in the community extra-client (that is, through a website, IRC, etc.) doesn't get her off the hook with insofar as her contractual relationship with the developer. Nor should it--it still implicates the player-developer relationship.
Mmm, not sure on this, again if we take the community to be the community then the argument is different from if we assume that the developer = the community. What’s more I’m not sure it does implication the player-developer relationship in a relevant way.
Jeff > From another angle, where you see private entities leveraging public behavior, I see public relationship (cries of censorship, inflated sense of entitlement) leveraging a private relationship (the EULA). Again, the lines are blurred.
I think I see both, in this thread I’m more worried about the former right now though.
Ren
www.renreynolds.com
Posted by: ren | Dec 19, 2003 at 07:35
Ren,
I don't understand from what in my community-as-gestalt argument you inferred that I equated community to developer.
The developer will certainly exert a strong gravity on the community--more more than any individual player. But, the history of such spaces is replete with examples where a number of players massed to exert their gravity on the community.
Also, the provision you cite is not the type of provision that the UCTD meant to address. I am no expert on Member State interpretation, but I would be surprised if it were found "unfair" under Article 3. If it is, the services simply won't be offered in such countries. That doesn't make much sense.
Ren: "Well sort of, but as the boundaries are not defined it’s hard to manage the risk."
Not for the vast majority of players. The ones for whom it is hard are precisely the ones that should have to internalize the costs (read: suffer the consequences) of their (mis)behavior.
The market will prevent the developer from acting randomly (or, more accurately, punish those that do). The developer has every incentive to try to correct the player's behavior.
If you, as a player, don't think you can behave within the spirit of the game, don't subscribe. It's your choice.
Jeff Cole
Posted by: Jeff Cole | Dec 22, 2003 at 23:23