Law is code

The rules of regular computer games are defined in code. If the game lets you do it, you can do it; if it doesn't, you can't. Want your RPG party members to fireball one another? Go ahead. Want to drive the wrong way round a racing circuit? If it lets you, sure, why not?

The rules of virtual worlds are also defined in code, but there are other rules beyond this that can't be coded: no profanity, no hate speech, no commodification, no [whatever]. These rules are defined in the EULA.

Because EULA rules aren't "part of the game", some players feel free to disregard them. The typical response to a violation is, "Hey, the program let me do it. If you didn't want me to do it, you should have coded it out".

Alternatively...

Let's take this "the only rules are those in code" argument further, and drop all EULA references to in-world activities. If the virtual world lets you do it, you really can do it. Swear your head off if you like - the code lets you, so it's OK. Spam players with URLs to Nazi web sites, macro to your heart's content... If the only rules are those in code, what's to stop you?

Here's what.

The designers specify that the code contain special commands that only certain character classes can use. Let's call these character classes "admins", and make them only available to people on the payroll. The commands are like very powerful spells; let's call the most powerful of them FOD ("finger of death"). If an admin FODs a character, that character is permanently dead and all their kit is garbage collected.

So now you call some player a cucking funt, and FOD! You're evaporated. "But the code let me do it!" you wail. "Yes", replies the all-seeing admin, "and the same code let me FOD you."

What would RL law have to say about that?

Richard

Comments

[Betsy Book]

1.

The community guidelines may exist as a separate document, however they are usually referenced right up front in the first or second paragraph of the TOS/EULA which lets players know that one of the terms they agree to is to abide by these guidelines. In other words, they *are* part of the social/legal code whether players see it that way or not.

I would hope that no virtual world admin would FOD someone just for one single use of profanity but only in extreme cases where profanity has been used to repeatedly harass another member or disrupt some kind of in-world event.

But in any case, the "code (programming code) let me do it" is an extremely silly and irrelevant argument to make, imo, whether it's being made by the player or the admin. The "I stole that because I could" argument wouldn't fly in RL court and unless stealing is an acknowledged part of the game it shouldn't fly in virtual worlds either.

[David Bolton]

2.

I don't quite get this. If you have a non EULA situation where the admins rule with God like power according to personal interpretation then they must make judgments whether or not a player has crossed the line. As courts amply demonstrate, judgements can vary enormously and perceptions of differences between Admins will arise. Depending on where you live in Engalnd the word 'Twat' can be as emotively powerful as 'Cunt' but in some parts its an almost affectionate greeting.

I had a mate who would say "Hiya Twat face". How do you safely judge whether this is an insult or a greeting?

OTOH You cannot have code identify 'phu-ck-ing cuh:nt' or one of millions of variations. Spam filters demonstrate this quite clearly.

Code can only be law when it is quantifiable or logical. And I think if you have Admins in games then the Code is Law argument is moot. Should an Admin be a policeman in the way you describe? Should a misdemeanour or trivial offence be punished by the death penalty?

[neven]

3.

Dangerous. This reminds me of the role-playing police. Some smaller mmorpgs used these to enforce role-playing in their games. Some players from the role-playing police (or admins for that sake) started abusing their powers (because they didn't like some characters, misunderstood them or started acting like in a virtual milgram experiment.

Better: Write it into the EULAs, make a "10-Things-You-Should-Never-Do-In-This-Game" list and make the players read it (and have the second pop-up every few days when logging into the game). If players still transgress, kick them. But at least they were warned in the real world.

[Alan]

4.

Analogizing to real world law illustrates the inherent fallacy of the "but the code let me do it" argument.

The real world has coding built into it, much like a virtual world. In the real world, we have not yet figured out how to do things such as close-to-lightspeed or faster-than-lightspeed travel, create a perpetual motion machine or a very efficient engine that approaches 100% efficiency (e.g. cold fusion), interstellar travel, and many more. These are all aspects of the real world that we consider to be "hard coded" to some degree or other. Some of these may be conquered once we figure them out, others may not. And we don't know, right now, which are necessarily which.

To get off the tangent I just followed and pull it back down to Earth, the FOD factor. Today, any person can do almost anything they want to within the above coding. E.g. You can play kickball; or you can steal from a department store, attempt to rob a bank or attempt to kill someone. But most people do not undertake these latter tasks (and I'm not going to go into the reasons behind that). However, should someone attempt to kill another person, they can expect agents of the law to start pointing a FOD or FOD-like device their way. The "code" lets people commit crimes but people have to expect to possibly face a controlling arm in response thereto. E.g. A very serious crime may warrant a FOD-like response.

Of course the differences between virtual worlds and the real world mean that a virtual FOD is less powerful or less compelling than a real FOD. Hence, VWs can get away with FODing (how many grammatical uses am I getting out of this acronym?) people for what might otherwise be considered non-FODable offenses in the RW. Plus, the RW makes use of a range of punishments ranging between community service and "the FOD." It's far more difficult to implement virtual analogs to community service or fines, especially if the VW is being operated as a business with paying customers. For all these reasons, and more, the virtual FOD is more prevalent but weaker than its real world counterpart.

Just think, if the next time an alleged criminal were arrested and he or she went before a jury/judge and made the "but the code let me do it" argument, how long would it take before the purported criminal would be held in contempt of court? Or sentenced to an institution?

[Tobold]

5.

If in Real Life somebody was swearing, and in response a policeman shot him, that would be wrong for two reasons: First the penalty is too harsh in comparison to the crime, and second it gives too much power to a law enforcement officer.

In virtual worlds the same applies. We wouldn't want our avatars to be permanently banned for saying a four-letter word once, and we wouldn't want a volunteer GM being able to wield that power. So what we need is a range of different punishments, starting with just muting somebody for some time. And we need a virtual court of law where people can protest against their punishment and be judged by a higher instance.

Other than that, the FOD system is okay, and that is actually what really happens in most virtual worlds right now. You are warned by the EULA, but it is the GMs that dish out the punishment.

[Detritus]

6.

As a Bad Guy® I am almost entirely in agreement with you all. I would, however, like to point out one large difference we have:

Betsy Book: But in any case, the "code (programming code) let me do it" is an extremely silly and irrelevant argument to make, imo, whether it's being made by the player or the admin. The "I stole that because I could" argument wouldn't fly in RL court and unless stealing is an acknowledged part of the game it shouldn't fly in virtual worlds either.

Property is often very hard to define in the VWs, whereas in RL we have many definitions/contracts that specify property rights quite clearly.

Example A (RL): If you place $500 on the ground, and I happen to pick it up... this is clearly theft of your property.

Example B (VW): If you place 500 Gold on the ground, and I happen to pick it up.... this is liberating/cleaning the landscape/etc.

The justifications for negligent property transfers are myriad in VWs, and most GMs will side with the Bad Guy®. Often simply because it is too hard to police, but also there aren't clear definitions of who owns what. In RL people have spent the last 6000+ years of civilization trying to define who owns what and now people have a very clear idea on what is and isn't theirs by rights.

The same can be said for scams. In RL Nigerians sending you phishing emails for your bank account info in an effort to make you extremely wealthy for helping out the prince are breaking many interesting laws. I have yet to encounter any VW with similar protections for it's citizens.

My point is that while it might be common sense that your VW gold is your VW gold, common sense does not carry the same weight that RL property rights do, because RL property rights have been forged acrossed eons of greed. It is the very nature of greed that compells both the gold owner and the Gold Liberation Front to claim possession, and unless the VW is supposed to be a Utopia of Marxist equality, greed in all of it's forms is an important part of the social contract and achievment in the VW.

I didn't steal it because I could... I stole it because it gives me an advantage in a competitive VW. And what about hacking or cheating? Those would give me an advantage... ah well you see those are actually definined in the EULA as not being kosher, your rights to any pixels as property are not.

[Paul "Phinehas" Schwanz]

7.

It seems to me that Richard's point wasn't so much to advocate FOD for bad language as to point out that "The code let me do it" seems a shaky foundation on which to build laws. Taking it to its logical conclusion, "The code let me do it" can protect the capricious Admin as easily as the anarchistic player.

In other words, are players sure that "The code let me do it" is an argument that is in their best interests in the long run? In that light, perhaps an EULA isn't such a terrible way to go when it comes to social contracts in an MMORPG.

Tobold> If in Real Life somebody was swearing, and in response a policeman shot him, that would be wrong for two reasons: First the penalty is too harsh in comparison to the crime, and second it gives too much power to a law enforcement officer.

Nevertheless, the "code" of the Real World let him do it. Its "coded" laws were not abrogated in any way by the policeman's shooting. The laws of physics and gravity were perfectly reflected in every action and reaction that resulted in the foul-mouthed person's death. Which again might suggestt that "coded" laws such as these are not necessarily ideal when it comes to discussing should and should not.

Or maybe I'm the one that's missing his whole point.

--Phin

[Kirk Job-Sluder]

8.

Wow, an issue near and dear to my heart.

For about 6 years in the early 90s I was a participant in an online network (ISCABBS if someone is curious) that evolved from "Dave is god, whatever he says goes" to a community (*) that started to evolve away from a space ruled by a bevevolent despot to a parlementary monarchy. In online social networks it might be helpful to think in terms of two forms of law. De jure laws exist in some document that such as an EULA or a Social Contract. On the other hand, de facto norms arise from the fact that people tend not to want to help or interact anti-social twits.

I don't use the word "community" lightly in talking about online spaces. ISCABBS qualified as a community in my mind not only for the depth of networking that went on, but also because of fairly explicit grass-roots attempts to define norms and government for the community.

The problem with "the code let me do it" (from both admins and players) is that it does not contain a vision of what the space could be like. It also is just a repitition of the age-old fallacy of seaching for technical solutions for social problems.

I think that the revolution in talking about online social spaces will come when we stop thinking about code, and start thinking about ethos. What kind of place do we want to build here? What kinds of behaviors do we wish to reward?

[Andres Ferraro]

9.

As Richard notes, the "Code let me do it" argument swings both ways.

Perhaps this argument springs into a players's mind by extending their experience in single-player games, where there are no rules beyond the coded ones. In multiplayer games the interactions between people can be so varied, there is simply no way to code them - even a simple deathmatch with a buddy will have a set of uncoded (and probably unwritten) rules you abide to.

[Flatfingers]

10.

We'll need an actual lawyer to answer Richard's last question, but maybe a non-lawyer can add a little something useful....

1. Admins can't be everywhere. By placing all rules in code, then saying that if the code lets you do it then it's OK to do it, you are in effect telling players that the 11th Commandment is all that matters: "Don't get caught." Is that kind of Hobbesian environment really what VWs should aspire to being?

2. Although you can control a *character's* actions in code, there are things a *player* can do outside the game which affect in-game assets that cannot be controlled by code. Therefore it is not possible to devise code that can perfectly prevent all "bad" actions related to playing a game while allowing all "good" actions; therefore a EULA -- that is, some rules external to code that attempt to govern out-of-game actions -- will always be necessary.

Only when the distinctions between player and character (that is, between VW and reality) blur to insignificance will it become possible/necessary to implement all law as code. We're not there yet... and frankly, as someone who was a programmer in a former life, I'm not sure I want to be there any time soon.

...

I have the impression that the goal of the original question is to support the argument that "EULAs are necessary" by showing how the counter-argument ("you can do it all in code") fails.

If I'm not mistaken, I'd say that goal seems likely to be achieved.

[Flatfingers]

11.

We'll need an actual lawyer to answer Richard's last question, but maybe a non-lawyer can add a little something useful....

1. Admins can't be everywhere. By placing all rules in code, then saying that if the code lets you do it then it's OK to do it, you are in effect telling players that the 11th Commandment is all that matters: "Don't get caught." Is that kind of Hobbesian environment really what VWs should aspire to being?

2. Although you can control a *character's* actions in code, there are things a *player* can do outside the game which affect in-game assets that cannot be controlled by code. Therefore it is not possible to devise code that can perfectly prevent all "bad" actions related to playing a game while allowing all "good" actions; therefore a EULA -- that is, some rules external to code that attempt to govern out-of-game actions -- will always be necessary.

Only when the distinctions between player and character (that is, between VW and reality) blur to insignificance will it become possible/necessary to implement all law as code. We're not there yet... and frankly, as someone who was a programmer in a former life, I'm not sure I want to be there any time soon.

...

I have the impression that the goal of the original question is to support the argument that "EULAs are necessary" by showing how the counter-argument ("you can do it all in code") fails.

If I'm not mistaken, I'd say that goal seems likely to be achieved.

[Russell Conner]

12.

Well, from my perspective there is 3 classes of rules in a Game:

1. Coded rules: these map to physical laws in RL. Like gravity, etc. Violating these in game is usually an exploit or bug.

2. EULA laws: These map to the justice system of a society. Break these and a higher power (GM, police, whatever) will decend on you with superior power granted to them by the society/game at large. RP rules, profanity, shouting fire in a crowded theater...

3. Social Mores: These are ones that mapable to "polite" behavior. Fluid and mutable, they define personal interactions between people and players. They might be informal and flexable, or be rigid and immutable. Failure to follow these "unwritten" rules results in not getting invited to the next cocktail party, Sunday football game, or party raid, depending on the context. Using the wrong spoon, ninja looting, and using the word "Yo" (works in both worlds) are all examples of "soft" rules.

That third class is to me the most interesting, as all sorts of weird "cultural" mores can evolve in a game. Some that I have seen:

Wispering to a player you have never met is rude.
Camping a corpse is rude or not.
Emoties being used or not used "in Chars" =) vrs. /em smiles.

[Richard Bartle]

13.

Betsy Book>The community guidelines may exist as a separate document

I'm not talking about community guidelines here. Rather, I'm hypothesising what a virtual world would be like with no EULA. Actually, it isn't even hypothesising: this exact argument was used back in MUD1, which didn't have an EULA (and still doesn't).

>I would hope that no virtual world admin would FOD someone just for one single use of profanity

Yes, you'd hope not, but actually they could do it on a whim if they wanted. The "game" is defined by its rules, its rules are embedded in the code, and the code lets an admin FOD people arbitrarily. Naturally, an admin would be foolish to do this (unless it was a sadistic or meta-game, like MIST), but nevertheless they could. It's this could that stops the players from doing what they could do.

>But in any case, the "code (programming code) let me do it" is an extremely silly and irrelevant argument to make

It's one that's made frequently, though, and not just by newbies (see Greg's comment at the start of the
Securing Digital Money thread, noting someone who has this view).

Richard

[Richard Bartle]

14.

David Bolton>Should an Admin be a policeman in the way you describe? Should a misdemeanour or trivial offence be punished by the death penalty?

It depends on the context. If you were playing as a prisoner in an "escape from a Nazi prisoner of war camp" virtual world, yes. If you were playing a pixie in a "things little children like" virtual world, perhaps not.

Neven>Better: Write it into the EULAs

Oh, certainly better in most cases. If you tell players in an EULA how you'll use your god-like powers, they'll know what to expect and where the boudaries are. Suppose, though, that a court struck down the EULA? Could the court then strike down a FOD executed from within the virtual world? That would mean the court was changing the rules of the game. This is fairly uncharted waters, particularly since the "rules" embodied in a piece of code are so complex that even the programmers can't be expected to predict every intraction between objects.

Richard

[Richard Bartle]

15.

Phinehas>It seems to me that Richard's point wasn't so much to advocate FOD for bad language as to point out that "The code let me do it" seems a shaky foundation on which to build laws.

My point certainly wasn't to advocate FODs for bad language (not that this has stopped people from thinking it was, sigh).

As for whether it was that "the code let me do it" was a shaky foundation for law-building or not, well, that's up for debate. It could be argued that it's a very strong foundation for law-building, because it puts all control in the hands of the law-builders. The only debate is in attempting to make the law-builder change their mind: rule is (in virtual world terms) literally Dei gratia.

>Taking it to its logical conclusion, "The code let me do it" can protect the capricious Admin as easily as the anarchistic player.

But perhaps it also protects the non-capricious admin from the capricious RL judge? (Hmm, maybe not: I don't think anything protects people from capricious RL judges!).

>In that light, perhaps an EULA isn't such a terrible way to go when it comes to social contracts in an MMORPG.

I think EULAs are the way to go, yes, but they're always backed up by that FOD ability. The developer, by producing an EULA, is saying, "Look, I can do whatever the hell I want here because I make the rules, but because I don't want you to think I'm a crazy person who will act arbitrarily and inconsistently, here are the boundaries of behaviour I'll accept. Look at these limits, and decide whether you want to play or not."

>Or maybe I'm the one that's missing his whole point.

No, you got it exactly.

Richard

[Kirk Job-Sluder]

16.

This is fairly uncharted waters, particularly since the "rules" embodied in a piece of code are so complex that even the programmers can't be expected to predict every intraction between objects.

In what way is this uncharted waters? There is about 30 years of experience in dealing with these kinds of issues.

I also think that a problem here is thinking in terms of interactions between objects rather than interactions between people. I agree that it is rather difficult to anticipate every interaction in advance, so what I see needs to happen is the development of an online system of jurisprudence, complete with an appeals process.

[ren]

17.

Russell Conner > Well, from my perspective there is 3 classes of rules in a Game

The terminology that Salen & Zimmerman use in Rules of Play for the three levels of rule is:

Constitutive – code
Operational – EULA
Implicit – social

Richard > What would RL law have to say about that?

Not a lot.

I think that all this comes down to contract law, which is always a matter of interpreting who agreed to what (and in part some of the circumstances to see if the terms that were agreed to are enforce, whether the person was aware that they agreed to them) so, in any given situation, we would have to look for whether there was a contract establish if so whether it was broken and whether there was any loss.

The case that you seem to be positing i.e. a system where there are no written rules: no EULA, no manual, no online help – just the raw functions that the game allows. Seems an interesting one as the rules are just Constitutive and Implicit. If a Day1 got FODed, then I can see grounds for complaint as they really can say that they did not know what they were agreeing to, but as most other games do have sets of written rules then what they did know was that they were potentially agreeing to any game rules that they happened to find – so the argument does not seem that powerful given the current context that the game would sit in.

But all in all I think that that law would have almost nothing to say about this at all – any lawyers in the house care to pitch in?

[Richard Bartle]

18.

Alan>The real world has coding built into it, much like a virtual world

Much, but not entirely.

In the real world, law-makers operate in the same physical reality as those their laws govern. Laws can be just, unjust, consistent, capricious, one-sided, even-handed... If the laws fit your personal system of morality, fine; if they don't, then what? Do you follow them anyway? Do you try to get them changed?

Real-life laws have teeth only because they're backed by an army. If the government makes a law I don't like, ultimately I have to follow it or they'll set their army on me. Even in a highly oppressive regime, though, if enough other people don't like the laws then they can create their own army, overthrow the government and install a new legal system (backed by their own army).

Virtual world laws aren't like that. The developers of virtual worlds can change the physics for different players. They can make it that even if you had every single player on your side, you couldn't overthrow their rule. What's more, they have this power whether they want it or not. They always have it within their power to change the code in their favour, even if they don't want to, whereas you never do.

The ancient Greeks may have elected their leaders, but they didn't elect their gods.

Richard

[Richard Bartle]

19.

Kirk Job-Sluder>In what way is this uncharted waters? There is about 30 years of experience in dealing with these kinds of issues.

The "uncharted waters" I was referring to concerned laws that govern rules of games. I know (from Greg & Dan's recent paper) that law sometimes interferes with the rules of sports (and sometimes doesn't), but I don't know if a judge has ever ordered a change to be made to the rules of a computer game, let alone a virtual world.

These waters may not be uncharted from our point of view, but they are from the law's, aren't they?

Richard

[Richard Bartle]

20.

Ren>If a Day1 got FODed, then I can see grounds for complaint as they really can say that they did not know what they were agreeing to

But the only way they ever could say they knew what they were agreeing to is if they were given the source code to look at. There may be many, many rules they wouldn't agree to if they knew about them in advance. However, knowing all the rules would spoil the fun. Basically, they have to take it on faith, reputation, experience or whatever that what they're paying for will meet or exceed their expectations.

Virtual worlds don't have written rules, except their EULAs. Most of their rules are implicit in the code, not explicit in a rule book. These are more like laws of nature than laws of the land.

>all in all I think that that law would have almost nothing to say about this

So a developer who doesn't provide an EULA can do pretty well anything within the context of their virtual world? Or are there "agreements" that players assume they have made when they start playing which the law is willing to support?

Richard

[Scott Moore]

21.

I think it's worth clarifying Ren's point.

Contract law has *everything* to say about this issue (at least in the US).

I am not a lawyer and I am basing this on my experience with writing EULA--specifically user behavior rules--for VWs and for message boards. It was drilled into my head that under contract law (in the US) anything that is not in the contract is unregulated with one exception. Behavior by the hosts of a VW (or a plain old website) can constitute an implied contract. Therefore, inconsistent action can be considered a breach of contract and actionable. For example, if the host consistently FODs people for an offense and there is a case where someone is not given the FOD, it could be actionable.

Then there are torts, which I am not familiar with, but are legal actions taken when damages occur regardless if there is a breech of contract, or in this case, no formal contract. I imagine that if someone were able to make money on selling VW items (remember, there's no contract forbidding this) and had their holdings destroyed, that person could bring a tort against the host/developer.

A key point in my assumption is that there is a service being provided. Most likely a free service or one that is fairly close-knit would not suffer from not having a EULA

BTW, being pedantic, EULAs contain a lot of other information aside from user behavior rules. Indemnity and liability protections are important parts (for example, protecting the developer from the fool who was scammed into downloading a trojan). Personally, I wouldn't work on a commercial service without a EULA.

[greglas]

22.

Richard> What would RL law have to say about that?

Are you asking whether a player can go to court because an admin arbitrarily FOD'd or toaded him/her in a game with no rules? Good lawyers are *very* creative, so I imagine that, if the facts were a little more detailed, there might be a way to claim something non-frivolous. But as a general matter, I don't see that a player FOD'd by an admin for mouthing off in a game with no rules has any real remedy at law. There's the issue of the loss of the player's virtual property, of course, but we've already been through that issue countless times...

On the larger issues, the game code = legal code idea is something we touched on in section 4 of the recent paper re "The Lawlessness of Computer Games" and that we also chatted about in the "To Kill an Avatar" paper. And, of couse, it evokes Lessig and the technorealists who pushed those ideas a lot in the late 90's, at times citing to VWs and LambdaMOO as examples. Julian also worked through plenty of law/code/policy issues in My Tiny Life -- e.g. the accounts of the Schmoo wars.

These are interesting questions and they aren't just limited to virtual worlds. Many legal scholars have been looking at the intersection of technological regulation and legal regulations -- the publications of Joel Reidenberg, esp. Lex Informatica (1998), are worth reading as a place to start.

[Chek Yang]

23.

Coincidentally, a month ago I was making reference to three levels of rules in the context of grief play for a paper I was writing for Other Players. In my writing though, I paraphrased the three levels as "Code is Law", "(Game) Rules in TOS/ROCs", and "Implicit/social rules", similar to what's been added here too.

My take of it then was that Game Rules exist in part because some types of defensive mechanisms are just too difficult to put into code, but they're desirabe for a conducive gaming environment nonetheless. I was in particular thinking of scamming and while you can put in secure player trading, it's harder to code ways to govern player trustworthiness. IMO, the rules in this context in some cases go one step further in regarding that role-playing is not an excuse to break such game rules or other fradulent behaviour.

[Richard Bartle]

24.

Scott Moore>For example, if the host consistently FODs people for an offense and there is a case where someone is not given the FOD, it could be actionable.

Is this the case whether the host knows offense has taken place or not? Also, is it the case even in games where inconsistency on the part of the host is part of the game (as with MIST)?

>I imagine that if someone were able to make money on selling VW items (remember, there's no contract forbidding this) and had their holdings destroyed, that person could bring a tort against the host/developer.

Hmm, so let's see... You're saying that without an EULA, a player could go up to a super-powerful mobile, get beaten up in the resulting fight, lose some kit, then sue the developers because that kit could have been sold on eBay? But with an EULA, they couldn't? Why's that?

Richard

[Richard Bartle]

25.

greglas>Are you asking whether a player can go to court because an admin arbitrarily FOD'd or toaded him/her in a game with no rules?

No, I'm asking whether a player can go to court because an admin arbitrarily FODded them in a game with rules (those rules being precisely defined by what the code allows).

The rules are the code, the code allows players with admin powers to FOD people, therefore admins can FOD people on a whim. I've seen this happen: "next newbie who appears whose name starts with a vowel gets FODded". Generally, admins don't do this because if they did they'd get no players, but that's not the point I'm trying to get at. Rather, I want to know what exactly a player is committing to when they sign up to play a game that they don't know the rules of, indeed which (without the source code) they could never know the rules of.

Richard

[Alan]

26.

Richard, a clarification -- The real world coding I was talking about was in relation to scientific principles and other such hardwired rules that we do not currently know how to violate. I did not intend to include real world laws, i.e. ones established by the controlling governmental entity.

Richard: I'm asking whether a player can go to court because an admin arbitrarily FODded them in a game with rules (those rules being precisely defined by what the code allows).

What's the injury? In order to sustain a cause of action in any field of law under pretty much any section of U.S. law, the plaintiff must have sustained (or, in very limited cases, must reasonably expect to sustain) an injury. So what's the injury here? If the player is paying in order to obtain access to and play the game, then there may be an economic injury. If the game company recognizes (and I'm not sure how that aspect would play out) the real world value of virtual items and the FOD results in the loss of a virtual item, that might be another type of economic injury. [Insert issues re valuation of virtual property, players' right to sell that property, ownership of it, etc.]

I just had a flashback to my Torts classes from 2 years ago. Breach, duty, cause, harm. If you're looking for a tortious cause of action, you need to fulfill those 4 elements and find the right pigeonhole. Conversion (what I understand to be the civil action form of theft) is a tort. So what duty does a game operator owe its players? How is this duty breached by the FOD? Does this cause the player harm? Does it result in some "theft" of the player's property or money?

I think part of the problem, and it's not really in the question, lies in the environment in which we're attempting to address those questions.

Richard: Rather, I want to know what exactly a player is committing to when they sign up to play a game that they don't know the rules of, indeed which (without the source code) they could never know the rules of.

It's difficult to divorce this from EULAs and other such contract provisions because the EULAs exist to insulate game companies from this question. Take away the EULA and it gets hairy because, as you state, the player is committing to something completely unknown. Especially in the commercial context of todays MMORPGs, the game companies would rather not hash out that issue every time it arises. Players' expectations may be different such that, without the EULA, some players might have a reasonable complaint against the game company for failure to deliver. (It's very difficult to find a concrete answer when there doesn't seem to be one.) Here, an ounce of prevention is worth the potential ton of cure.

[Richard Bartle]

27.

Alan>The real world coding I was talking about was in relation to scientific principles and other such hardwired rules that we do not currently know how to violate.

That's what I thought you meant - "laws of nature". What I was trying to say in my reply was that in RL "laws of the land" are laid on top of laws of nature, whereas in virtual worlds they are part of the laws of nature. This means that in RL you can change the laws of the land because they aren't embedded in the laws of nature; in VWs, you can't change the laws of the land because they are embedded in the laws of nature. This is an important difference between laws in RL and laws in VWs that I was trying (not very well!) to illustrate.

>In order to sustain a cause of action in any field of law under pretty much any section of U.S. law, the plaintiff must have sustained (or, in very limited cases, must reasonably expect to sustain) an injury.

People go into boxing matches reasonably expecting to sustain an injury, yet boxers aren't sued for beating one another up (if they keep within the rules of boxing).

In virtual worlds, the "rules of the game" can also cause injury. You paid for the sword, you got "killed", your corpse was looted, you no longer have the sword. Do you sue, or is that part of the "game"?

Players often complain that things the code doesn't support aren't "part of the game", but is there ever a point where things the code does support aren't part of the game? Who could ever decide that point, apart from the designer?

Richard

[Paul "Phinehas" Schwanz]

28.

Perhaps in claiming that, "The code let me do it," players are expressing a confusion grounded in the fact that so many laws of the land (but not all of them) are embedded into the laws of nature in VWs. Certainly that some laws of the land are coded into nature and some are not isn't particularly intuitive. Perhaps this confusion could be lessened if no laws of the land were coded, but only laws of nature. Then add laws of the land on top of the code via community administered consequences more in keeping with natural expectations.

--Phin

[Scott Moore]

29.

Scott Moore>For example, if the host consistently FODs people for an offense and there is a case where someone is not given the FOD, it could be actionable.

Richard>Is this the case whether the host knows offense has taken place or not?

I regret that I am not a lawyer so I can give you only my understanding. I was assuming the condition that the host has at some point acted in a consistent manner toward the given offense. In that case, I understand that if the host never knows, the host is in the clear. But, if the host is ever made aware of the offense (not sure if there is some 'statute of limitations' allowed) then the host should take action or they will have developed an inconsistency which can open them up for the liability.

Richard> Also, is it the case even in games where inconsistency on the part of the host is part of the game (as with MIST)?

Richard (in different reply)> No, I'm asking whether a player can go to court because an admin arbitrarily FODded them in a game with rules (those rules being precisely defined by what the code allows).

I guess in the case where inconsistency is part of the service provided, then the host would be best to be consistently inconsistent. And here's where the ounce of prevention offers a ton of cure as Alen nicely put it. For example, the EULA I have for the non-profit online community I support has a caveat that we have the "right but not the obligation" to monitor content and are "not obligated to enforce any of the" user behavior rules. That wording to allow us to be inconsistent in the enforcement of our EULA without exposing us to liability--as long as we *don't* monitor every piece of content because that create a duty that might be breeched someday. If that breech caused harm, we may be liable. (Thank you so much Alan for giving me the words I lacked.)

So in short, the rules that are in the code are not (as I understand it) the only rules. Even without a EULA, the host can imply a contract based on their behavior which then becomes the unwritten (but legally breechable) EULA. The case that comes to my mind (and I regret I do not have the exact case, I should look it up)is where Prodigy successfully sued Compuserve because Compuserve had built a reputation of consistently removing posts that *may* be libelous to companies--that provision was not in it EULA. At some point, someone posted nasty messages about Prodigy and Compuserve was very, very slow to respond. Prodigy won based on the idea that Compuserve's actions amounted to an implied contract and they had breeched that contract.

It's madness, I tell you. Madness.

Richard>Hmm, so let's see... You're saying that without an EULA, a player could go up to a super-powerful mobile, get beaten up in the resulting fight, lose some kit, then sue the developers because that kit could have been sold on eBay? But with an EULA, they couldn't? Why's that?

Well, that was the part about torts which Alan explained where I could not. As far as I understand, people can sue regardless if a EULA was agreed to. As Alan said, the EULA are used to prevent having to handle each instance separately. Also, having a EULA doesn't protect against the right to sure. At least in California, one can't sign away their right to file a suit.

Richard> In virtual worlds, the "rules of the game" can also cause injury. You paid for the sword, you got "killed", your corpse was looted, you no longer have the sword. Do you sue, or is that part of the "game"?

This is where I would want EULA to clarify for the player what rule were in the code. I guess you could build this into the code: "By agreeing to attack this mob, you understand that you make have your virtual ass kicked and lose all your posessions. Do you wish to attack this mob (y/n)?"

Richard> What I was trying to say in my reply was that in RL "laws of the land" are laid on top of laws of nature, whereas in virtual worlds they are part of the laws of nature.

Wouldn't that mean that players could not form local social norms and punishments? Sure, if the VW code is not robust, the amount of "laws of the land" you can lay on top are limited, but not completely out of the question.

As the code of VW allows a greater variety of actions, don't we increase the ability to build non-code laws on top of the code?

Or have I missed your point?

(and on preview, I think Phin is on to something.)

[Richard Bartle]

30.

Scott Moore>At some point, someone posted nasty messages about Prodigy and Compuserve was very, very slow to respond. Prodigy won based on the idea that Compuserve's actions amounted to an implied contract and they had breeched that contract.

Would this be the case even if Prodigy didn't have an account with CompuServe?

So if I generally stop to pick up hitch-hikers but one day there's a hitch-hiker who looks like a made axeman so I don't pick him up, he can sue me for having an implied contract with all hitch-hikers?

>It's madness, I tell you. Madness.
I certainly agree with you there!

>"By agreeing to attack this mob, you understand that you make have your virtual ass kicked and lose all your posessions. Do you wish to attack this mob (y/n)?"

The practice of making people click through the EULA each time they play does this for the whole virtual world. Yet isn't the act of playing a virtual world itself equivalent to having clicked through something saying "I agree that the rules of this VW are embedded in its code, and that anything its code does is therefore within the rules, so if I don't like it, well, I'll stop playing"?

This works fine for regular computer games. There are some things that aren't within the context of the game, that you don't agree to (I'd really want to know in advance that the penalty for insulting an in-game deity was that my hard drive would be cleaned); for everything else, well, you're buying "as is". The game is defined exactly by its code, in what it allows and doesn't allow.

>Wouldn't that mean that players could not form local social norms and punishments?

No, they can do that (at the character level). Characters can do anything that the virtual world allows them to do, so if one in-world country is ruled by despots then these people can be overthrown within that virtual world by other characters. The people who can't be overthrown are the characters of the admins, because these are all-powerful invincibles. That's what I meant when I said that the ancient Greeks elected their leaders but not their gods.

Richard

[Richard Bartle]

31.

Phinehas>Perhaps this confusion could be lessened if no laws of the land were coded, but only laws of nature. Then add laws of the land on top of the code via community administered consequences more in keeping with natural expectations.

But what makes something a law of the land or a law of nature? In RL, there's a fairly clear-cut distinction between the two, but in virtual worlds? Is the fact that a magic-user can't wear plate mail a law of nature or a law of the land? Is the fact that NPC dealers pay 250 coins for a shiny helmet a law of nature of a law of the land? Is the fact that city guards will attack you if you assault anyone within the city walls a law of nature of a law of the land? Is the fact that you were killed by a mage who attacked you simply because he didn't like the cut of your jib a law of nature or a law of the land? Is the fact that you were attacked for not paying the bandit's toll to cross the bridge a law of nature or a law of the land?

It would be very useful if we could separate these, but I don't think that in general we can except perhaps: anything the developer decrees is a law of nature; anything players decree is a law of the land.

Richard

[Nathan Combs]

32.

I wonder if this discussion reinforces the need for declarative game models(for a different angle on this topic, here).

In other words, rather than starting with process descriptions (game code) and *then* worrying about resulting game states, if we all the legal game states were declared up front (e.g. rules), could we then by fiat decide that anything outside was illegitimate (e.g. a bug, and non-binding)?

[Scott Moore]

33.

Richard> for everything else, well, you're buying "as is". The game is defined exactly by its code, in what it allows and doesn't allow.

I'm actually going to retreat on my previous points. Most of what I know applies to commercial services where EULAs seem to be a necessary evil (and can, legally, supercede anything in the code because as far as I know, US law still treats even online programming code as a product and not a contract). I don't think the point of your original post was to delve into the details of US consumer law. I think assuming that the world in question is non-commercial perhaps focuses on your original point.

What would real world law have to say about the recourse for players against capricuous admins in a non-commercial VW?

Honestly, I lack the legal background on this point. As far as I know, non-commercial services can get away with a lot. For example, the non-profit where I work offers a website to kids under the age of 13. Technically, we are not required to follow the very strict laws of the Child Online Privacy Protection Act. Legally, we could take private information we collect and turn around and sell it.

That's my only example on this point. I do not know how torts and Alan's four critera would apply to a non-commercial service. I know my non-commercial service operates with a EULA to limit liability and reduce the need to go to court to stave off claims that loading our website crashed someone's computer causing them damages (among other things including user conduct). At this stage in my experience, I have no desire to operate a public VW, website or other online service without the legal protections a EULA would offer me.

Crap, I think I just became part of the borg.

[Richard Bartle]

34.

Scott Moore>I don't think the point of your original post was to delve into the details of US consumer law.

You're right, although identifying consumer law as the branch that covers this stuff (and why) is fine.

>What would real world law have to say about the recourse for players against capricuous admins in a non-commercial VW?

Although this is one side of the argument, I'm also interested in the other side: what would real-world law say about the recourse of admins to defend their VW against players who were "spoiling the game"?

>At this stage in my experience, I have no desire to operate a public VW, website or other online service without the legal protections a EULA would offer me.

What would be your fall-back position if a judge struck down the general concept of EULAs (perhaps on the grounds that people click through them without reading them)?

>Crap, I think I just became part of the borg.

I'm more the "resistance is fertile" school myself (grin).

Richard

[Sal]

35.

Ok I'm a few days late, tacking on an extra comment here (mea culpa I haven't been reading Terra Nova every day!)

I'm very interested in the question of "What would real world law have to say about the recourse for players against capricuous admins" in a *commercial* VW.

Someone very early in the thread suggested players should have recourse to a mechanism of appeal against admin capriciousness, and I think this is a crucial idea in making publishers accountable for their actions.

Someone else asked where or what the injury or loss is, and we embarked on more conversation about virtual property. What I want to raise is the idea that part of what is lost is access to the social network the player was enmeshed in.

How many times have we seen the comment that social networks drive retention in MMOGs? In a subscription game, social networks in effect drive profit margins. They have economic value. So why dont we discuss the loss of access to a social network (which a player has built for a commercial publisher through their endless hours of participation and emotional investment)as something that is worth consideration in this debate?

I guess my general point is that in discussions of the law and MMOGs we tend to marginalise the social in favour of the more 'tangible' virtual property. And yet the social is vital to the economic well being of the publisher so it is not actually without value at all. Loss of access to a social network you may have been participating in for years, due to a capricious admin act, is something that to my mind, warrants some kind of recourse to an appeal mechanism. Something that holds the publisher accountable for its actions and which regards the loss of community as a significant loss - as much or even more so than the loss of virtual property.

[Paul "Phinehas" Schwanz]

36.

Richard> But what makes something a law of the land or a law of nature? In RL, there's a fairly clear-cut distinction between the two, but in virtual worlds?

I don't think it is so much about definition as it is about intuition. The fact that RL has a fairly clear-cut distinction is exactly my point. The VW that feels intuitive to players in this regard will be the one that more closely resembles RL.

Richard> Is the fact that a magic-user can't wear plate mail a law of nature or a law of the land? Is the fact that NPC dealers pay 250 coins for a shiny helmet a law of nature of a law of the land? Is the fact that city guards will attack you if you assault anyone within the city walls a law of nature of a law of the land? Is the fact that you were killed by a mage who attacked you simply because he didn't like the cut of your jib a law of nature or a law of the land? Is the fact that you were attacked for not paying the bandit's toll to cross the bridge a law of nature or a law of the land?

My intuition says nature, land, land, land, and land. With a little fudging that likens magic to physics, this is what I would expect in RL.

A player new to MUDs strolls through a scary forest. He sees a menacing skeleton and attacks it. He watches his sword hitting the skeleton and sees that he is rewarded with experience for killing the skeleton. He begins to understand how this world works. A bit later, he runs into a troll. He tries to attack, but cannot for some reason. The troll says, "what r u doing? u can only attack mobs. dumb newb." The player begins to understand a bit more about how this world works.

At this point in time, is it really so surprising that a player would think that the game won't let him do what the designers don't want him doing, or even that if the game does let him do something then it is OK for him to do it? The logic isn't flawless, but the conclusion isn't completely unexpected either, is it?

Richard> It would be very useful if we could separate these, but I don't think that in general we can except perhaps: anything the developer decrees is a law of nature; anything players decree is a law of the land.

While encoding/decreeing that players cannot attack other players (as in the illustration above) becomes a law of nature under your definition, I think the problem arises out of players believing that being able to swing a sword freely when their character is bound neither by physical chains nor magical ones is intuitively the true law of nature which the devs have chosen to controvert. Once they see devs overuling what are intuitively laws of nature in order to encode laws of the land, it isn't surprising that they assume all laws of the land are encoded, and that if what would intuitively be a law of the land isn't encoded, then perhaps it can be safely ignored.

--Phin

[greglas]

37.

Sal H> I guess my general point is that in discussions of the law and MMOGs we tend to marginalise the social in favour of the more 'tangible' virtual property.

That's a good point.

I said my bit about the law (or absence of law) already, but to shift the focus away from dev/player conflicts just a little, I think one way to query the significance of coded/written "rules" (not laws) is, much like Sal said, to look to the social impact.

I'm not sure what the average CSR/Admin coverage is, but I think it's probably around 1/1000 or so, give or take a factor of ten, right?

Imagine a conventional game (say baseball or basketball) with clearly defined rules and 1000 people playing -- and one ref to make all the calls and bear all the responsibility for policing.

Over years, how would such an arrangement affect the nature of game rules?

One thing Jeff Brown from EA said in Edinburgh (should have mentioned this earlier) was that the solution to social problems in games was self-help. In other words, if another player is making your life miserable in a game, either beat up the villain or run away. Sounds a bit like a prescription for anarchy, doesn't it? But maybe, in MMOGs, anarchy is more fun than law?

[Paul "Phinehas" Schwanz]

38.

Greg> One thing Jeff Brown from EA said in Edinburgh (should have mentioned this earlier) was that the solution to social problems in games was self-help. In other words, if another player is making your life miserable in a game, either beat up the villain or run away.

The trend has been toward restricting possible interaction, but it seems to me that the restrictions have the unintended side-effect of removing recourses for harassed players. Someone once said that a surprising amount of civility is based on the knowledge that others can punch me in the nose if I become too rude. It seems to me that griefers become quite adept at bunkering behind restrictions and exploiting the fact that other players have no recourse other than to report their behavior to that 1/1000 CSR.

Greg> Sounds a bit like a prescription for anarchy, doesn't it? But maybe, in MMOGs, anarchy is more fun than law?

Are there no other options? I think there are. Here is the one I find most interesting:

Establish communities where citizens are subject to community rules. Give communities real teeth for enforcing their rules, including in-game fines, property seizure, banning from the community, and even perma-character-execution. Allow players to choose citizenship in the community whose laws are to their liking. Give communities in-game incentives for attracting and retaining citizens. For instance, reaching certain population goals could result in additional options for building structures, hiring NPC trainers, establishing new government positions with greater prestige, etc.

Now have your CSR folks oversee the communities instead of the individual players.

--Phin

[Sal]

39.

Having read Greg and Dan's "Anarchy is more fun than law" I want to pick up on one further point. I think that we often use a discourse of 'consumer empowerment' through 'exit' strategies as the answer to making publishers like Sony accountable for their actions towards players. Greg and Dan say in their article:
"Because they are not held accountable to any democratic process, virtual worlds are dictatorships of the most absolute kind. Yet because their "subjects" are free to subscribe to a competitor's service at any time, these dictatorships do not pose the same problems as the traditional kind."

While I think that the publisher is indeed constrained to some extent by the threat of players leaving their game if they are treated too badly, I think we need to always keep in mind that the social networks that players are enmeshed in within the game also constrain their willingness to leave. Switching costs are very high for someone whose social life exists within the game. It's not like changing your brand of jeans.

Again, it is the value of the social that intersects with the economic and legal discourses here. Consumer empowerment through brand-switching in a competitive market is not really an adequate response to the issue of making publishers accountable for their actions towards players. If a publisher is going to ban a player from accessing their social world, there should be some mechanism of appeal for the player, and it should reside in the EULA. It strikes me that current EULAs are heavily biased in favour of the publisher (a point already made numerous times, including by Greg and Dan) and that one rationale for changing that is valuing and acknowledging the importance of the social aspects of the game - not just the economics.