Instructions: this question is compulsory. It is worth 25 points. You should not spend more than 2 days on this question. Write legibly or points will be deducted. Answers including references to postmodernism will be ruthelessly penalized.
"Many of you students have forsaken your MMOG of choice in order (temporarily) to play Oblivion. Oblivion now allows you to buy armor kits for your horse using real world currencies, in a way that is almost exactly the same as real money trades (RMTs) which have been occuring in MMOGs for years. In 1000 words or less, discuss whether either of these types of assets are property for the purposes of any legal systems, paying particular attention to why few people would think that the Oblivion armor kits are property, but the same is not true for virtual assets."
Dan Hunter wrote:
paying particular attention to why few people would think that the Oblivion armor kits are property, but the same is not true for virtual assets."
Um, but the Oblivion armor kits are virtual assets...
--matt
Posted by: Matt Mihaly | Apr 06, 2006 at 16:07
Alienability. Without a way for me to transfer my horse armor to you, the horse armor is not property as we understand it.
Posted by: Richard Campbell | Apr 06, 2006 at 16:15
Buying stuff with real money in online games is paying someone else to play the game for you.
Buying the horse kit off the makers of Oblivion is paying them to design an extra bit of stuff.
So that's 2 different types of service producing different products that legal minds greater than mine would get their teeth into. I'm just reassured that everyone is also playing Oblivion, thought it was just me.
Posted by: Krumpit | Apr 06, 2006 at 16:20
Richard Campbell wrote:
Alienability. Without a way for me to transfer my horse armor to you, the horse armor is not property as we understand it.
You can simply give or sell your Xbox 360 to someone else, fulfilling that requirement.
Krumpit wrote:
Buying stuff with real money in online games is paying someone else to play the game for you.
That's the case for secondary market RMT certainly, but not the case for primary market RMT action.
--matt
Posted by: Matt Mihaly | Apr 06, 2006 at 16:25
There are two questions involved in the more general topic of law and virtual/real assets:
1. How does, or how will, law treat such assets?
2. What do we make of popular perception?
You might want to say that there is a few/many distinction at play here, and you're absolutely right if you think that. The law will adapt via reasoning by analogy, which for Edward Levi was the key to legal realism. The armor kits, if stolen or hacked into or frauduently created, will not just be a real legal issue, but be treated just like any "real" piece of property around us, since the analogy isn't that much of a stretch: there's actually money paid for a service. To meddle with that in some less than ethical way will provoke the law.
If virtual assets aren't already being treated like real assets in terms of the law(the question is trickier as regards taxes, but just because you can't tax something directly doesn't mean it isn't an economic activity), they will be, esp. since some people's livelihoods are on the line.
Which leads into the next part of this discussion, popular perception. While people, through the legislature, technically make law - well, let's get serious. How many people do we know who take an active interest in the law? (Law & Order is a passive interest in the law.) The lack of activity as regards understanding/creating law means that harm must be done - someone must be aggrieved - in order for awareness of an issue to spread.
The thing about the Internet is that its appeal is its "virtualness" in part, a virtualness that makes the theory of "harm causing the development of law" tricky to wield. I've made a lot of acquaintances on here, but few real friends - people want proximity, they want the realness of those in the flesh. I find this place enchanting because I can relate to smart people through their writings and my own writings - I can love and be loved for the sake of the mind.
The Walrus Magazine article discussing Mr. Castronova's work seems to indicate something different for gamers, though. Gamers are people who understand a virtual world already, and are willing to subscribe to its rules - i.e. let it be real for them - for the sake of a persona, a virtual body and to some degree, a virtual mind. We always play various roles in life; in games, we perfect one or more of those roles. So gamers catch on quickly to virtual property being real because they have a very real interest at stake.
The kids on MySpace and the people debating at DailyKos and Little Green Footballs could care less about property. They don't really have a lot invested in here. This is a place to vent when one can't harass the people on C-Span by calling in, or to put up lots of glittery graphics while downloading free music and talking to one's friends. The difference is between the Internet being a tool, as it is for the people in this paragraph, and having one's identity and labors at stake, as it is for those in the above paragraph. The group of users described in this paragraph, as well as the public at large, probably have no clue about virtual assets or armor kits being paid for in real cash.
One thing to always keep in mind when discussing the Internet is the many who don't know vs. the few who sort of know vs. the few who do know. Exactly where is the question posed above situated?
So the point, finally, is that harm is different things for different users on here, but the closer the harm has to do with real money, the more likely popular perception about the armor kits will begin to match that of the virtual assets, and the status of virtual assets will grow.
Posted by: ashok | Apr 06, 2006 at 16:28
This is analogous to a paid expansion introducing new content and features, like the Everquest expansions. In my opinion lacklustre content at that, which according to some, should have been included in the original game. Yes, that definitely reminds me of what I read about some of the paid expansions.
Good luck to the makers of Oblivion with this, but I expect most of the really interesting content to come from the modding community.
Posted by: | Apr 06, 2006 at 16:28
Ashok wrote:
Excellent post, Ashok. I agree almost entirely. My only quibble is that what can (come to) be at stake in virtual worlds -- that the law will recognize as relevant to harm -- is not limited to real money, at least not directly. Harm to reputation (and symbolic assets, like a brand) is as I understand it legally recognized.
You're absolutely right, in my opinion, on two points: first, that the law will follow emerging popular consensus about virtual property (and the spaces in general); and second, that this transformation depends on the degree to which what is at stake (again, broadly defined) comes to increase for the increasing numbers of people involved with online communities.
Also, I think your assertion that gamers invest things of value (reputation, identity) into virtual worlds more readily than the population at large is correct, but this is almost certainly a relative and vanishing distinction.
Posted by: Thomas Malaby | Apr 06, 2006 at 16:38
This is a red herring argument. When there aren't other players involved, the issue is moot. It's a transaction between customer and publisher/author. In no way does my purchase of version "B" of a game affect your playing of version "A." There are, what...? 209 versions of "The Sims" out now. Big whoop. Does anybody who doesn't own "The Sims: Livin' With Slightly More Pet Hair" feel cheated by them what has?
This is like discussing uniform colors in sports, or whether or not it's better to watch a game at home or at the park. Enjoy yourself however you like.
The RMT argument, however, is the equivalent of the discussion of steroids in sports, or any other kind of cheating. If we agree to rumble -- you know, my gang, the Jets, and your gang, the Sharks -- and we say, "Rocks, bricks, bats, chains, knives... but no guns..." and then, half way through the fight, you pull heat... that's cheating. RMT is bringing a gun to a knife fight.
Posted by: Andy Havens | Apr 06, 2006 at 17:36
RMT is bringing a gun to a knife fight.
Best quote ever!
(well pretty good anyway)
Posted by: hmm | Apr 06, 2006 at 18:20
Sure, but this assumes a shared and stable set of cultural conventions about what is allowed and what is disallowed in the game. To say that RMT is like bringing a gun to a knife fight is a political statement; it states what constraints you would like to have apply in a virtual world. It's only true in any given case to the extent that the code disallows it (usually not true), it is disallowed by contract (EULA) and enforced against (expensive!), or the shared expectations of the players apply enough pressure on other players to govern their actions and keep them from doing it.
Posted by: Thomas Malaby | Apr 06, 2006 at 18:38
Armor kits are, and remain, property of the publisher. The charge is essentially a flat fee rental. They're services. Other virtual assets may not be treated that way.
While people are right to think some virtual assets are their property, the fact is that these armor kits are property - they're just not property of the PLAYERS.
Posted by: Nato Welch | Apr 06, 2006 at 19:15
Andy and I have the same instinct, I think - What are the relevant questions regarding these issues? Exactly what, if anything, in our notion of property is changing?
Posted by: ashok | Apr 06, 2006 at 20:28
Matt wrote: "You can simply give or sell your Xbox 360 to someone else, fulfilling that requirement."
If I have to give or sell my Xbox 360 (or PC) away to transfer the horse, I'm not selling the horse any more. I'm selling the Xbox with a horse thrown in. The horse becomes like a custom paint job on a car.
Posted by: Richard Campbell | Apr 06, 2006 at 20:30
I'll stick with the argument that all game assets are nothing but overglorified poker chips- only valuable within the context of the game they're played in.
Sometimes the chips are just "for fun" with no value beyond the poker table. Sometimes the chips have no value, but there's a fee to enter the game. Sometimes, the host doesn't want to put value on the chips, but the players (make side bets) add their own value.
Sometimes you "cash in" for chips at the start of a game and "cash out" at the end for real money. You may gain more in playing, or you may lose it all.
Any way, the chips are still the property of the host- the casino... unless the host gives you that right to "take the chips home."
----
How will the law see virtual assets and RMT taxation? Look at the casinos.
Is it "theft" when you win a $10 chip off another person in-game? No. Is it theft when you steal that same chip from them? Most likely- even though the casino technically may own the chip.
If you first win $10,000 then lose it in the same sitting, are you taxed on a $10,000 earning, or considered to have earned nothing?
Posted by: Chas | Apr 06, 2006 at 20:35
If I use a Marxist theorist who has written on postmodernism, can I get partial credit?
Posted by: nashe | Apr 06, 2006 at 20:44
Thomas Malby said> To say that RMT is like bringing a gun to a knife fight is a political statement; it states what constraints you would like to have apply in a virtual world. It's only true... to the extent that the code disallows it... it is disallowed by contract... and enforced against... or the shared expectations of the players.
Right. You just defined the term "rules." And if everybody brings a gun to a knife fight, is it still a knife fight?
You can call fascism "National Socialism." You can call theft "redistribution of wealth." You can call the use of steroids in sports "leveling the playing field." You can call a plantain "a weird little banana." Actually, I think a plantain is a weird little banana... Anyway...
Here's a clarifying question for you: if real money was at stake -- if your money was at stake -- how would you feel about RMT in the game? IE, if you were playing for dough, either as a competitor in a professional league, or if you were placing your own money as a bet on a player or guild's performance? If real money was being won, lost, wagered or earned on the *gaming* aspects of a game... the controllers that you mention would come down on RMTers like a ton of cement overshoes. Why? Because you can't run the numbers succesfully if people are "buying up" the odds. Only the house gets the 15% vig. You want to win all the time? Open a casino. You want to play? You got to play it straight.
Take the above situation. Make a translation of money into time, attention, brand equity, fun and emotional attachment. Unless you completely devalue all of those elements of gameplay, RMT is just as much of a cheat when there is no money changing hands. Because some or all of those coins change hands for many players who want to play the game straight.
Posted by: Andy Havens | Apr 07, 2006 at 00:16
(these comments are mine alone, not my employers, and other disclaimer blah blah blah...)
I do not think they are property. It's a purchase of a promisory note of sorts. A promise of a service that will be delivered, in a certain way, under certain conditions.
At the end of the day, there are bits on a server somewhere, on a hard drive. And the hard drive still belongs to the owner of the physical device.
However, by offering a service (an MMO, virtual world, whatever) the provider has made a contract with the player. That service agreement had obligations from both sides. Part of the terms of which might include some detail about how people may or may not exchange such promisory notes with one another. The note is a negotiable instrument.
In other words, player 1 says to player 2 "you give me 100 of those 'gold coin' promises, and I'll give you 1 of these 'horse armor' promises."
Just as a dollar bill in the real world is promise from an institution that it will provide a certain value or perform a certain function, so to is the case here. In this case, the service provider (game owner) has an understanding of what functionality it will provide in the game software for a "gold coin promise" or a "horse armor promise".
That's my two cents worth (where 'cent' here is a promise of a very amateurish attempt at a legal point of view on the subject :-)
Posted by: kim pallister | Apr 07, 2006 at 00:16
Virtual assets or not? Good question but, IMHO, not the important one.
In MMO, you can buy expansions for more quest and/or items. You can RMT the uber axe of vanity, etc... Why? Mostly to be on par with others, showing off, or simply enjoy new content.
So, Bethseda is selling a simple "horse barding". For what purpose? It's is not a 5 hours quest to enjoy. You don't need it to parpicipate in a team raid. Showing off? Short of distributing screenshoot to friends, a bit moot in a solo game!
Virtual assets or not, "why buying it" is the basic question. Assets (virtual or not) is others knownledge of your property. To pick a "Strangelove" line, what's the point of a doomsday machine if no one else knowns about it?
Sorry, if I am off-topic.
Posted by: Elrana | Apr 07, 2006 at 00:55
What distinguishes a virtual property from other common types of (legally recognized) intellectual property?
It seems pretty cut and dried here. The horse artwork and software are intellectual property owned by Oblivion. The player receives a copy of the property with limited rights -- perhaps not even the right of first sale. Probably the player is really screwed and does not even own the copy; most likely the player is granted a license to "use" the horse under certain conditions.
This really isn't different from any other game software.
A much more interesting situation occurs if a player uses a virtual world to create horse armor. The game company merely provides a tool. Are all new works created in the virtual world derived works owned by the game company?
The RMT issue with Oblivion's horse is boring. There's nothing legally interesting about stuff like this because game companies have been very careful to build contracts where the players don't own anything -- even if the software could be used to create something new, which it can't, the players still wouldn't own it.
Posted by: Ken Fox | Apr 07, 2006 at 01:02
Sorry, that should have said "owned by Bethesda".
Posted by: Ken Fox | Apr 07, 2006 at 01:10
Andy, it would be a different topic to get into a discussion about the definition of "cheating", and I'm not saying that RMT doesn't run against the intent of game designers and many players. My only point is that the extent to which it becomes seen as cheating is socially constructed (an issue of emergent [and changing] consensus about the boundaries) and not reducible to what the game designers intend, code, and write into the EULA. RMT as "against the rules" is not hard-wired into some transcendent definition of what "games" are by nature.
Posted by: Thomas Malaby | Apr 07, 2006 at 01:17
The GDC roundtable on digital item sale business models touched on these business models and the legal status of digital item ownership. I thought Steve Jackson's thoughts on the legal ownership of digital items were particularly interesting.
Posted by: Jim Purbrick | Apr 07, 2006 at 02:07
Well....
1) Buying the horse doesn't break the EULA
2) Oblivion is a single player game
3) The effect of buying the horse is isolated
In an MMO, typically
1) Buying the horse from a 3rd party breaks the EULA
2) The game is multiplayer
3) The effect is shared
note: The EULA isn't just an agreement between player and company in an MMO, it's an agreement between players by proxy as well.
Posted by: Artheos | Apr 07, 2006 at 05:38
"RMT is bringing a gun to a knife fight."
No, it isn't.
RMT is more like being in a knife fight where some guys tediously labored to earn their knife and others bought them with stolen money. No one in that knife fight is going to care how you got your knife.
Posted by: alan | Apr 07, 2006 at 08:47
What happens when the horse armor (or for a better example, the gun that knife fight) is fabricated? And as PLM software merges with videogames, will it be corporations and not "the people" that have laws passed?
Posted by: csven | Apr 07, 2006 at 08:49
The key here is the distinction between "property" and "services." For example, I could manufacture a lawn mower and sell it. It's property, plain and simple. The fact that I manufactured it, and then went about selling it has nothing to do with services. However, if I owned a mower and offered to mow your lawn with it for a fee, that would be a service. I'm not selling you the mower. I'm not selling you "me" as a rental. I'm not selling you clipped bits of grass. I'm just modifying the state of being of your current grass, and when I'm done, you have received something of value (a nicely trimmed lawn, if I've done a good job), and I've received money as compensation.
The designers of Oblivion have done something similar, though there's an added bit that might throw people off at first. Oblivion initially sold you your lawn. Okay, great. They also told you that you could do pretty much whatever you want with it. So, when you first got it, it was nice. You could roll around on it, play some football on it. However, you noticed a few weeds. You created a chore for your kids to go pull weeds. That worked for a while, but the grass was growing too tall. So, you borrowed a mower from your neighbor, and set to cutting the grass. Well, you just don't have the time to keep that up as well as enjoy the grass. Then you hear that the original seller of the lawn is offering cuttings for a reasonable price. Well, you think, if anyone could do my lawn service, it'd be the company that installed the lawn in the first place, and so you give them money to come cut it, and they do. You're pleased, and you don't have to worry about cutting it yourself or getting someone else to.
Here is where it's easy to make the distinction between property and services. When you call up the company for lawn service, you cannot have them cut your lawn, and then somehow transfer that cutting to someone else for money, since it really doesn't exist in any tangible form. (As Richard Campbell nicely put, "Alienability.")
I think many people get confused about this issue because the service involves the manufacture and implementation of software code that eventually gets placed on the buyer's computer. If you want to make an analogy, imagine a someone having computer issues. This person's computer is running slower than it used to, so she calls the Geek Squad, who sends a geek to take a look. The geek determines that the initialization file that pre-loads programs is excessively voluminous. In order to tweak the file, the geek adds some simple code, and the computer now runs smoothly. The code is not property. It was not the property of the geek, and it is not now property of the computer user. It is merely a product of the service, as are the grass clippings. Even though the user could copy/paste the code and "sell" it to someone else, that use would probably still be considered a service, not property.
Armor kits are not armor kits. They are the product of a service in which a company adds code to a program for a fee.
Now to add some confusion to what's apparently straightforward. The armor kits are not property. Ever. However, despite my previous analogy, the code itself may be considered property. Intellectual property. This is the aspect covered by the EULA and Terms of Use agreements to which, merely to install the software, all users have agreed. The difference between intellectual property and most other property is that intellectual property can often be used by those who don't own it, but it generally cannot be transferred by those users to others. Therefore, just because an Oblivion player has purchased an armor kit does not mean that player has any rights to sell that armor kit to anyone else (if that were even possible). The reason why is because the kit is a subtle combination between a service and a bit of intellectual property code.
I've mentioned code in a service context thus far, but it can also be representative of virtual property, which, by its definition, is transferrable property. So, in Simple Life, I can purchase a bit of code for a bit of code that represents negotiable currency in my country. The difference here is that the code was created specifically for that purpose and is being sold as is (as code representing a virtual object or function). Armor kits, on the other hand, may on the face appear to be virtual property, but are in reality merely a result of a service.
(Law is so fun. I could write an argument expressing the exact opposite view, and it would still sound rational.)
(815 words)
Posted by: Psyae | Apr 07, 2006 at 10:14
(*Edit: replace "Simple Life" with "Second Life". Add "doh")
Posted by: Psyae | Apr 07, 2006 at 10:53
Psyae,
Unfortunatly, I'd disagree: in your example, the Geek Squad code _is_ property. The code is a copyrighted work the instant the Geek Squad creates it and fixes it into tangible form. I'm not enough of a groklaw addict to tell you who's the owner of that property, but under our current IP system it is without a doubt legally the property of someone.
In the case of Oblivion's virtual barding you've (I'm assuming as I haven't done this myself) acquired a license to a copy of the copyrighted work created by Bethesda.
(Ken Fox's comments on first sale brings up some interesting questions with respect to EULAs and the right of first sale. Does the EULA you'd presumably have to sign when you buy the barding keep you from reselling it and thus voiding the first sale doctrine? Is that something that can be contracted away by a EULA?)
So to answer the original questions: (pardon the paraphrasing)
1) Are any or all of these works considered property in any jurisdiction? Yes, all virtual property, by virtue of being copyrighted works, are considered property in the US at least. I would assume this is true in any country that has ratified the WIPO treaty.
2) Is there a different perception of virtual assets as property between players of Bethesda's Oblivion and most MMOGs? Why or why not?
This is a trickier question to answer. From my perspective I see virtual assets as the property of the copyright holder and as the licensee of that content I have certain expectations about what I can do with that content, but I don't believe that I own the content as my own property. I suspect, however, that my viewpoint is in the minority.
Without being able to offer evidence I'd say that most players consider items acquired in an MMOG to be their own personal property while a cosmetic add-on purchased for a game like Oblivion is not. My best guess at explaining the contradiction is that in an MMOG the player has generally invested a substantial amount of resources (time, money, etc) in acquiring that item or even perhaps in creating it. Thus because of their equity in the item the players also perceive ownership.
The facade of the game also reinforces this idea. Players have the ability to transfer (sell, trade, gift) the item in the game at their own discrection. Likewise they have the ability to exclude or prohibit its use. (Their copy of it a least.)
So I guess I'd say that the player's own investment in MMOG items as well as the facade presented by the game itself lead to a perception of ownership in a copyrighted work that, in my opinion, would not be supported by current US law.
Posted by: Jared Buckley | Apr 07, 2006 at 13:14
Arethos wrote:
1) Buying the horse doesn't break the EULA
2) Oblivion is a single player game
3) The effect of buying the horse is isolated
Oblivion is not a single player game. No game that ties into the Gamerscore system on XBox Live is truly single player anymore. Some people do care about their Gamer score, and thus, buying something in Oblivion which may impact your game experience may impact Gamer scores, which is really no different from buying something in WoW and having it affect how you compare to other players in WoW.
--matt
--matt
Posted by: Matt Mihaly | Apr 07, 2006 at 14:31
Matt: ...which is really no different from buying something in WoW and having it affect how you compare to other players in WoW.
... which is really no different from having a higher-level player 'twink' out your character with freebies. You're still getting an advantage from assets you didn't earn. Yet, people do that all the time- with minimal penalty.
RMT is just changing that "friend" to a "financially compensated distant aquaintance."
Posted by: Chas York | Apr 07, 2006 at 15:01
Couldn't agree more Chas. I never hear the anti-RMT crowd call for banning friend-to-friend transactions when that friendship originated outside of "the magic circle" even though they are, as you point out, the same thing.
--matt
Posted by: Matt Mihaly | Apr 07, 2006 at 15:48
I've seen posted on elderscrolls.com that people have posted links to the armor pack for others to download for free and have been asked to remove the links, so Bethseda thinks the content is property that is non-transferable.
I'm more interested in another issue though.
Say player A creates a mod for Oblivion and requests payment for it. As Bethseda is charging for its mods can a third party, not licensed by Bethseda charge as well? I'm sure that Bethseda would frown (to say the least) on this practice as it's not getting a cut. However could this lead to Bethseda setting up a place for third parties posting Mods that can be downloaded for a fee that both the developer and they get a cut of the fee?
And will asking two question get me a failing grade...
Posted by: lplimac | Apr 07, 2006 at 16:47
Psyae,
Two comments on your write-up:
- While a 'service' isn't transferable, a promisory note for a service is. (e.g. kid gives dad a home made coupon "good for one lawn mowing"). It has value, may or may not be transferrable depending on conditions agreed upon. ("dad! I didn't say you could give that to the owner of the football field!")
- Secondly, an MMO vendor doesn't sell you a lawn. They rent you a piece of theirs. And in the real world what they do is make a commitment to provide a service - providing the software and service to allow you to connect in a way that will make this fictional lawn "appear". So what is a physical object (lawn) in virtual space is a service (rendering of bits by server) in real space.
It occurs to me that there may be a translation between virtual/real spaces that's akin to how operations change in time vs frequency domains in mathematics (convolution in time domain == multiplication in frequency domain). But that's another discussion altogether :-)
Posted by: Kim | Apr 07, 2006 at 17:28
matt,
Sharing scores is quite different from competing for resources or competing on the battlefield...
Posted by: Artheos | Apr 07, 2006 at 18:56
Matt's right, in my opinion, Artheos. The point is that as soon as those scores have a common and (increasingly) widely used forum for comparison, they are becoming socially meaningful, and therefore one has a stake in one's score beyond the single-player game; that is, there is an emergent status economy of scores. It's just like two players playing together (in turns) at a pinball machine: that's not a single player game anymore.
Posted by: Thomas Malaby | Apr 07, 2006 at 19:42
note: The EULA isn't just an agreement between player and company in an MMO, it's an agreement between players by proxy as well.
No it is not. A EULA is a legal construct in which the company asserts certain rights which the player passively (ok, semi-actively) agrees to abide by in order to be granted limited use of the product.
A better "note" would have been:
Note: Simply because a company makes assertions in a EULA (or any other contract for that matter) does not mean that those stipulations are legally binding, only that the company believes them to be legally enforceable. Violation of EULA terms does not constitute any specific failure on the part of the player until determined as such by a court (or arbitrator).
Many things in EULAs have been, and will continue to be in the future, ruled invalid and unenforceable by courts. All it takes are a couple of court rulings (or refusals to render rulings) to wipe out a whole lot of arm waving around person interest in virtual property and EULAs.
Posted by: randolfe_ | Apr 07, 2006 at 19:44
Thomas,
I don't agree, but then that's because I don't see Oblivion as any type of competition.
randolfe,
I'm not sure what all that conversation about legality has to do with it. It may be in the form of a legal construct, but it is an agreement regardless.
Player agrees to EULA and knows that all other players must agree to EULA. By proxy, all players are agreeing on the same thing onces they enter the game world.
The player that breaks the EULA breaks the agreement with the company, and by proxy, the other players in the shared space.
Posted by: Artheos | Apr 08, 2006 at 05:58
Comment solely on horses and scoring:
Slight change in opinion: I didn't realize that there was a public, common scoring system for "Oblivion." Inasmuch as the publisher is keeping such... yes, I think there should be some kind of indicator of player "twinks." I don't play the game, so I don't know -- does it currently indicate score based on level of difficulty? Do different tweaks to various system/game issues change difficult and thereby automatically change the score? I know that many games ("Civilization" comes to mind) adjust your score based on difficulty level. So, if that were put into place -- i.e., if you took the horse armor, making the game easier, thereby adjusting your scoring potential downward... it would automatically eliminate the issue. The "horse mod" would just be one among many sliders. As I said, though... I don't know about "Oblivion." My current box ain't buff enuff. ; ) And my Xbox only goes to 359.
Posted by: Andy Havens | Apr 08, 2006 at 09:06
On RMT, cheating, EULA, guns, knives, etc.
Alan said: "RMT is more like being in a knife fight where some guys tediously labored to earn their knife and others bought them with stolen money." Yeah... that may be more accurate... but, geez, man. It ain't funny. I was going for at least a little funny. It's a metaphor. I'll get all long winded and s**t and totally unfunny now. Trust me. But I love to start off with a pithing contest ; )
Chas/Matt say: (RMT).. is really no different from having a higher-level player 'twink' out your character with freebies... You're still getting an advantage from assets you didn't earn.... I never hear the anti-RMT crowd call for banning friend-to-friend transactions when that friendship originated outside of "the magic circle" even though they are, as you point out, the same thing.
Ah... another in the long line of arguments as to why the cheatin' MEANS should not be called into question because there are very similar ENDS that can be had through seemingly similar, non-illegal means.
[Note: I gotta say, I just love the whole RMT debate. It's a buffet of ethical questions, boiled down and served sideways. Another reasons that the "virtualness" of virtual worlds is so fascinating.]
You don't hear the anti-RMT crowd (like me) calling for a ban on friendly transactions (as long as they don't violate other EULA restrictions) because -- ready for a big surprise? -- being friendly is part of roleplaying. Sometimes those friendships are formed inside the magic circle, sometimes outside. In the "old days" of pen-and-paper, it was always outside. The idea of "meeting someone inside the game" was insane. You might make a new friend at a convention or through a gaming group, but bumping into a "character" and then becoming friends... how very odd. Forming friendships in general, though, is one of the key joys of playing RPGs for many players.
You will also not hear me call for a ban on in-game economic transfers. I mean... duh. You earn your gold in WoW doing your character schtick. Your character mines, farms, hunts... whatever. In character... you trade. You make stuff. You swap. If the game, like WoW, has economics, guilds, stores, and a decent in-game eBay, even... go for it. It's a level playing field.
You want to hook up with a guild or a partner that will "twink you out/up/over and through?" Go for it. In game. You want to make the effort -- in game or out -- to knock-skulls with some buddies and form a guild, alliance, gang, club, etc. Knock thyself out. I never said (and will never say) that the magic circle ends at the limnus of the user interface; that it stops where the software stops. I will even go so far as to say that the publisher doesn't have (and can't have, and, if they are smart, shouldn't try to have) complete control over the magic circle. The imagination and participation of players should be allowed to extend far beyond the "walls" of the theatre. It's good for the players and good for the business. Web sites for fan fiction and fan art of players; sites for guilds to gather and discuss guild rules, strategy, recruiting, back-story, etc.; bulletin boards where issues are discussed -- these all contribute to the depth of the gaming experience of everyone who wants to participate in such.
But... the moment you bring your artificially, profesionally-leveled, paid-for, Level 60 WoW character with steroid-like weapon and armor enhancements into a situation where he/she is competing for resources of any kind -- including friendships -- with my "natural" character...
Whoops. That's not an "enhancement." It's a deceit; it's cheating. Rule-breaking. Agin' the law. Gun to a knife fight (or "paid for knife..." sure).
All the reasons that everyone gives for breaking rules and laws in RL get made in terms of RMT. Which totally cracks me up. Becasue, in real life, you actually have interesting *moral* grey areas to fall back on. "Would you steal the drugs from the pharmacy to save your daughter's life?" "How many innocent people should die to save the nation?" "Is free speech a right worth going to prison over?" You're balancing the moral, legal and ethical values of life vs. property vs. free speech vs. etc. etc.
But this is gaming. It is only *real* inasmuch as there are rules that are commonly followed. That's what a game is -- agreed upon rules, followed in order to test a set of skills and abilities, sometimes in the presence of random elements as well. The rules are what MAKES IT REAL AT ALL. If baseball players start playing with hockey sticks... it ain't baseball anymore. It's hockeyball. If you let football players keep running after the flag is tossed... you've got what? Goofball?
I'm not saying that there *aren't* legal issues involved. As soon as you have any system where more than one person is involved in a monetary transaction, you'll have contracts and lawyers and laws. I'm saying there *shouldn't* be. Can you imagine a pen-and-paper situation where a player says to his GM, "I'm taking that last set of rolls up with my lawyer!"
Making arguments pro and con RMT like you're arguing for and against some real-life moral issue... nope. It don't scan. It's a game. If doing something is against the rules, it's bad and wrong. Why? Because the rules are what make it a game. What makes *it* the game that it is. As soon as anyone(s) begin doing things outside the rules -- call the rules "magic circle" or "4th wall" if you like -- you begin to errode the whole reason for playing the game; the shared set of codes by which we test the skills, attributes and randomness upon which the system is based.
You want to argue RMT with me? Fine. First step -- own your sin. I, for example, speed. All the time. 77 in a 65mph zone is about standard for me. Nothing bizarro. Nothing "Autobahn." But it's speeding. Do I make the "It's not illegal because everyone does it" excuse. Nope. Do I make the, "It's not illegal because the law is predicated on bs facts," excuse. Nope. No excuses. I speed because I feel like it. If I get caught, I'll get a ticket. Too many tickets, they'll take away my license. No excuses.
You want to tell me that you sell RMT to make money, despite the fact that it's against the rules... fine. You do it because you're feeding the jones of many players who want to take an easier route to high-level fun and helping them out gives you a kick? Fine. You do it because it gives you a thrill to put your thumb in the eye of Sony or Blizzard? Fine. You do it because of the technical thrill? Fine. You do it to pit your wit against "the Man?" Fine.
But don't come at me with "the EULA is only enforceable inasmuch as... blah blah blah." Don't come at me with, "RMT is the same as friends trading stuff." Don't come at me with moral arguments based on their RL equivalent.
You want to tell me you do it because you simply flippin' feel like it? Fine. From there, we can start to have a conversation. I disagree with all those reasons, and think that they, in the long run, will do harm to most games and the whole MMO field in the aggregate, but at least we can get out of the "rules = laws = morals = ethics" illogic trap that plagues so many of these conversations.
It's a game. Games are defined by rules, not laws or ethics or morals. Breaking game rules is commonly referred to as cheating. If RMT is against the rules of a game (wherever... on the site, in the doc, in the EULA)... then it's cheating. Cheating is bad for the people who aren't doing it. I'd make the larger, philosophical argument that it is also bad for them what's doing it... but that's an Aesop's Fable for another day.
Now... you build RMT into the rules of a game? I'm all for it. I'm fascinated by the idea of the exchange of virtual goods. Do it in games like SL and Project Entropia.... Excellent. Have dedicated RMT servers? Coolio. But as long as it's done "back-channel," on the sly... through eBay, etc. As long as it's breaking the explicit rules of the game; it's bad. It HAS to be. By definition.
Posted by: Andy Havens | Apr 08, 2006 at 11:54
By now all of you will have received your grades. Well done. Thomas, please come and see me about your enrolment as there seems to be some sort of problem with faculty members of other schools being enrolled here.
For reference the best essay was submitted, as usual, by Penny Arcade. You just can't ride that shit through Ironforge.
Posted by: Dan Hunter | Apr 08, 2006 at 16:38
The player that breaks the EULA breaks the agreement with the company, and by proxy, the other players in the shared space.
If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else. If the company disagrees, they can pursue the action in court or ban me from the game, allowing me to pursue it in court. The court decides what was an enforceable agreement and what wasn't, not abstract philosophy.
The proxy argument is purely an academic point anyway. The other players have no standing to pursue my "violation" of the EULA, only the company. They can be as upset about it as they want, but they have no claim against me nor I against them merely because I violated the EULA.
Posted by: randolfe_ | Apr 08, 2006 at 21:23
"If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else."
Not true. You've simply lied when you clicked Agree.
Posted by: Artheos | Apr 09, 2006 at 05:43
SATIRE ALERT:
randolfe says> If I semi-passively "click away" the EULA terms in order to play the game having no *intent* of abiding by RMT restrictions because I believe them non-enforceable, then I have no agreement with either the company or by proxy with anyone else.
Andy> Ah. And if I semi-passively hit you with my car while drunk (me drunk, not you) in order to drive home after doing tequilla shooters all night, having no *intent* of abiding by legal restrictions on DWI, because I'm driving on a back country road and I believe those restrictions will be non-enforceable, then I have no agreement with either the police or by proxy with you or your next-of-kin.
randolfe> If the company disagrees, they can pursue the action in court or ban me from the game, allowing me to pursue it in court. The court decides what was an enforceable agreement and what wasn't, not abstract philosophy.
Andy> If your next-of-kin, or the police, disagree with my enjoyment of tooling around at 70mph while tight as a hospital sheet, they can pursue action and, if they find me out and convict me, ban me from driving. The court decides what is an enforceable agreement and what isn't, not abstract philosophy.
randolfe> The proxy argument is purely an academic point anyway. The other players have no standing to pursue my "violation" of the EULA, only the company. They can be as upset about it as they want, but they have no claim against me nor I against them merely because I violated the EULA.
Andy> Law and morals are purely academic points anyway. Other citizens, i.e., human beings, have no standing to pursue my "violation" of laws or moral behaviors. Only God (if He/She/It exists at all). They can be as upset about your death as they want, but they have no claim against me nor I against them merely because I violated drunk driving statutes.
END OF SATIRE... mostly
Your reasoning is, essentially, based on the "Anarchist's Guide to Doing Whatever The F**K I Want."
What is "semi-passively clicking away" anyways? Did you click on "I agree" or did your mama make you do it? Were you high? Hypnotized by aliens?
And, truly, you may be -- de jure -- correct. If that's the point you're trying to make; simply that, legally, the EULA isn't going to "solve" the RMT issue in court. Other players, indeed, can not sue you for a breach of the EULA. Just like a kid playing back-lot baseball can't sue when another kid bats out of order.
But if your actual argument is that it's OK to cheat simply because it is impossible or very difficult to *legally enforce* rule systems in MMOs... or that players have no responsibility towards each other besides what can be legally enforced... then you advocate anarchy for our genre.
Entertainment and games rely on a wide variety of shared "good behaviors" that go far beyond what is legally required. It's not illegal for me to stand outside a movie theatre and tell everyone on the way in, "Hey! Guess what! The butler did it!" But I'd be a giant prick to do that, eh? And it is probably highly "non-enforceable" to prosecute people who rip the last page out of mystery novels. But it would still be evil to do that. And for a gym teacher to put all the short kids on one side in a basketball scrimmage... again... bad behavior. Not illegal, no. But come on.
The law is the MINIMUM requirement for getting along. Not the maximum. Playing games isn't about not killing each other on the street, eminent domain, interstate commere, contracts for business agreements and economic enforceability. Gaming requires a much higher level of trust. Why? Because we are attempting something more ephemeral and metaphoric -- fun.
When we play something as simple as hide-n-seek, I trust that you will actually count to 100 while I hide. If you count by 10's... you're cheating. I can't sue you, but you've made it less fun for everyone. Even if you only "semi-passively" counted by 10's.
Posted by: Andy Havens | Apr 09, 2006 at 12:25
That's all well and good Andy, but the point is not that people disagreeing with you are advocating anarchy, it's that you're pointing to the rules, the law, and an imagined consenus about the "magic circle" as if all of them were static and easily defined. Once we see them instead as always approximations then we have to confront the uncomfortable reality that governance (yes, even inside games) is a moving target. Consider, for example, the "tuck rule" controversy during the 2001-2002 playoffs. Here was a case where the rule was correctly interpreted and enforced, but it was the public's gut feeling that it wasn't right which led to ongoing controversy. The league is still struggling with finding a way to re-word the rule. So the point is that appealing to the rules, laws, or consensus as if that settles the issue is not realistic.
P.S.: In response to randolfe, you change the terms by moving from a civil dispute analogy to a criminal act analogy. Those laws are quite different in many relevant respects.
Posted by: Thomas Malaby | Apr 09, 2006 at 12:59
To Thomas: Now we're cookin' with gas. You're at least talking about "games" and not laws, and bringing it back down to an interpretation of such and getting on my case for changing the terms... which I've been arguing for all along. I switched terms in a dramatic and (frankly) stupid way in order to draw attention to that difference; you have seen through my clever ruse.
I've been trying (vainly, I think) to stop the "RMT isn't illegal so it's OK" talk. I've also been trying to stop the "I don't like the rule, and so I don't have to abide by it" talk. Both of those arguments are anarchical.
Now... you make the REAL point and ask the real question: are anti-RMT rules GOOD RULES? Does RMT improve the play experience for a majority of players? Does it do so in a very small way for a majority.. but ruin the play abjectly for a significant minority? Or is it the reverse? These are very, very valid questions, and at the heart of... another discussion.
What needs to be established, first, though, I think, is that "disobedience" (anarchy, lawlessness, cheating... what have you) is not the manner in which we express dissatisfaction with a rule or law. If the general public is upset about the "tuck rule," or the designated hitter or free agency or the end of the "Attitude Era" in the WWE... there are a variety of ways to express those concerns that don't involve marching onto the field/rink/ring and expressly violating the rules.
Almost nobody liked Prohibition. It gave rise to two groups that did something about it; one group worked legally to pass the 21st Ammendment and get it repealed. Another group worked to provide alcohol on the sly across the country. We call the 2nd group "The Mob."
I got no beef with RMT per se. I said before... virtual property is cool. It is intriguing. But if you think that a game that currently does not have legal (or not even legal but "rules allowed") RMT should have it... work "within the system" to get the publisher to allow RMT. Or take your money and your time and your voice and your blog and "vote with your feet" for another system that gives you more of what you like.
In the example you site, the fans expressed (and still express) concern over a ruling. They, perhaps, desire a change. They make that desire known. But RMTers for games like WoW are advocating something like going in and... what? Forcing a redo of all football games where the rules don't match up with their ideals? I'm confused. Whose rules are we using now? Mine? Yours? Bill and Ted's excellent rules?
Fight to change rules you don't like. I'm 110% behind your right to do that. Advocate your point of view as strongly as you can. Try to get game publishers to offer alternative rule sets or RMT servers or whatever where you can play your way and I can play mine; more choice wins in almost every economic encounter.
Nobody is forcing *you* to play a game you don't like. But if you *force me* to play in a system where you have changed the rules without my consent... a game that I'm choosing to play based on the published rule set... where your use of RMT impinges on my gameplay experience... an experience that I pay for in time, money, attention and expectation... then you have done wrong. If you change the rules first... then you have done it the right way.
Posted by: Andy Havens | Apr 09, 2006 at 13:56
PS: Yeah, I know the difference between civil and criminal law. I was making a satirical point. That's why it said "SATIRE" in big, capital letters.
Posted by: Andy Havens | Apr 09, 2006 at 13:57
Andy wrote:
Yes, now we're cookin', Andy. Here is my main recurring concern. In the quote above and in other places in this post you basically chart out a position that says that social/legal/rule change is only legitimate if it is pursued within the context of already available and legitimate avenues for dissent. The problem with holding strictly to this is that if the laws/rules/consensus are themselves part of the problem, then what should you do? Presumably, Henry David Thoreau, Gandhi, and Martin Luther King are problems on this view. Now, no one says that RMT'rs have much in common with Gandhi (or, at least I hope not), but the point remains that holding to a formalist view of wherein legitimate change occurs has lots of problems when we think broadly about their potential for transformation. If the EULA, the code, the law (more broadly), and social convention start to be combined so as to support the creation of exclusive spaces for social networking (the NewGolf, "gated online communities" idea again) that are where traffic in real and broad influence take place, then do we think that only "legitimate" avenues of dissent will break them open?
Another point about the focus on law: Actually, the relevant thing about law is that it always has this element of following practice built-in; that's why (to me at least) pointing to it (beyond a formalist view--that is, warts and all) can be so helpful, and therefore why it always reappears in these debates.
Posted by: Thomas Malaby | Apr 09, 2006 at 14:14
Thomas said>If the EULA, the code, the law (more broadly), and social convention start to be combined so as to support the creation of exclusive spaces for social networking (the NewGolf, "gated online communities" idea again) that are where traffic in real and broad influence take place, then do we think that only "legitimate" avenues of dissent will break them open?
MORE SATIRE:
"When, in the course of elvish events, it becomes necessary for one guild of RMTers to dissolve the EULA bonds which have connected it with others, and to assume among the publishers of the MMOs, the separate and equal station to which the laws of code and of the code's GMs entitle them, a decent respect to the opinions of elf-kind requires that they should declare the causes which impel them to the separation..."
END OF MORE SATIRE
For a second, I thought we were talking about rules again. But then you dropped back into moral and legal chatter.
If this was a discussion about how a publisher was keeping gay players or players of a particular ethnic group from playing, or was flouting the First Amendment within the surly bonds of the EULA... I'd be all over on your side. But it ain't. You keep flipping back to making moral and legalistic arguments for breaking rules. And it doesn't scan.
Yes -- there are times when one must "break the law of man in order to serve the law of God." Ghandi, MLK, Jesus, the Buddha, our Founding Fathers, Malcom X, Rosa Parks, etc. All good examples. There are thousands more.
None of which have any bearing on this discussion. Why? We are not talking about laws. We are not talking about morals. We are not talking about ethics. We are talking about rules.
There is nothing more or less ethical or lawful about a rook being able to move horizontally and vertically and a bishop being able to move diagonally. If you want to play chess differently than other people... you have that right. Morally, ethically, politically, emotionally, religiously. Nobody is disputing that. You and your friends can go play chess and use only pawns. You can have the queen only work on Tuesdays. You can decide, amongst yourselves, to change the rules every ten minutes, randomly if you like, if you are fans of randomness. You can play chess nude, with a 14lb wheel of cheese on your head while watching reruns of "Mr. Ed" and singing "Blue Moon," and count that as "winning."
But if you sit down to play with me, and we agree to play by the "standard rules of chess," and then you start moving your rook diagonally... that's a problem. You're either cheating or confused.
Games are not real life. The more virtual they get, the more we get confused. But they are just not real life. And we don't have "rights" in games beyond those granted by the rules. Same as on the ballfield, the board or the scrum.
You do not have an unalienable right to a diagonal rook move. God does not care (I don't think) about the infield fly rule. The element of "following practice" that is, as you rightly say, important to law... does not apply to rules, except inasmuch as it does to any form of entertainment. Smart companies change products and services based on customer feedback. That's what saying, "I don't like this feature" is. Customer feedback. It's not non-violent protest. It's not, "We shall overcome." It's not MLK, for the love of pete. If you don't like baseball, switch to cricket.
I'll say it again, as I have above: a game is DEFINED by its RULES. When you break those rules, you change the game. When you change the game for people who wanted to play it the way it was intended, you are doing them a disservice. If you don't like the game the way it was designed -- which includes the rules -- play something else.
This is not the same as a moral or legal argument about real-life issues like slavery, child labor, women's rights, etc. You can't tell a slave, "If you don't like being a slave, switch to another country." You can't tell a woman, "If you don't like the glass ceiling, be a man." Well, you could, but it would be a really dumb-ass thing to say.
As of yet, there is not "right to my kind of fun" built into any constitution or "Rights of Man" kind of political document I've ever heard of. In fact, many of the "rights" stop well short of "fun" and land on "the pursuit of fun." And then they start getting into all kinds of detail about what you can NOT do to pursue your fun while I am pursuing mine.
For example... you can NOT, as is stated above a couple times, willingly and knowingly enter into a contractual agreement with the express intention of violating said contract in full or in part, with the assumption that you can wiggle out of it later. That is called "promisory fraud." The law assumes that when you agree to a contract, you do so for the purpose of... go figure... agreeing to it. Not to just agree to the parts that are "most fun for you."
So... the only legal/moral issue here is that RMTers are, within the bounds of this discussion, breaking rules and committing fraud. In some cases interstate wire fraud on top of everything else, if they are doing so using the Internet to sell virtual goods/services against the express terms of the EULA to folks in other states/jurisdictions. Just so I don't get accused of trumping up that little bit of fun, here's the specific code:
WIRE FRAUD - 18 USC 1343, makes it a Federal crime or offense for anyone to use interstate wire communications facilities in carrying out a scheme to defraud. A person can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
First: That the person knowingly and willfully devised a scheme to defraud, or for obtaining money or property by means of false pretenses, representations or promises; and, Second: That the person knowingly transmitted or caused to be transmitted by wire in interstate commerce some sound for the purpose of executing the scheme to defraud.
As soon as you break the EULA with RMT, if it says you can't do it, you've done #1. If you use the Internet, you've got #2.
Now, to be fair: "9-43.100 Prosecution Policy Relating to Mail Fraud and Wire Fraud: Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct."
But are you getting my drift here? You're arguing for a change in rules. OK. Fine. Go to Sony or Blizzard or the publishers and say, "We want RMT. Here's a list of X thousand players who say they'll quit if we don't get it. Here's 12 white papers on how much more money you'll make if you organize and lead the effort. Here are the ways we think it will improve game play. Here are the other games we'll be playing in 3 weeks if you don't give us our RMT." Fine.
You are not arguing for a change in the moral fiber of our nation. You are arguing that breaking the rules, and a federal law in this case, is OK because... what? It makes the game more fun for some of the players.
The whole argument boils down to that: I want it my way. "I want my RMT." Fine. Go get it. But not by breaking the rules of a game that lots of other people got into expecting *not* to have it, and not by breaking actual laws.
It's a game. Games have rules. Games aren't real life. You can't make moral/legal arguments for something that is simply a change in gameplay (a rule change), and then try to beg forgiveness for ACTUAL moral and legal transgressions by saying, "We're fighting for our rights."
You don't have a right to anything besides your money back. And sometimes, not even that. If you don't like a game... go read a book.
Posted by: Andy Havens | Apr 09, 2006 at 18:19
I'm not in any way talking about rights, or making an argument for rights. All I'm doing is making an empirical argument about how rules, laws, and social convention change, whether we like it that way or not. Since you're making, effectively, a political argument, you are attributing one to me. I am just telling what we know about how social processes work. In short, formal systems only partially determine the human activity that takes place in relation to them. This is what process means.
That, again, is not what I'm arguing. The fact is that any formal system, no matter how explicit and elaborated, is going to leave wiggle room, a space for practice to depart, sometimes significantly, from what the rules say. That's just the way it is: human life is too open-ended, complex, and contingent to be perfectly governed. So it's not about intent to defraud, or anything like that. It's about how commonly accepted practice (which changes!) is itself a player in what comes to be possible and legitimate. When that's the case, the laws (and the game rules!) will trail behind.
Rules are not immune to the contingencies of human practice. They deserve no special status beyond the degree to which they formalize (and serve as a focal point for) an already existing willingness to play by them. This is very well covered in John Rawls' ideas about "fair play", by the way.
You can say this over and over but it doesn't make it true. The distinction between games and everyday life is relative. It is practical, not fundamental, and this is because games are never perfectly bounded and separate from everyday life.
This just isn't true. Games are, in my way of defining them, contrived spaces for contingency. The sources of contingency that games have (rolling dice, skill-based competence, information games) always include some that are outside of the rules' ability to dictate, like whether a racetrack is muddy, an old computer game runs at a different speed on a new processor, the power hitter for the Mets has just gone through an awful divorce, or the vagaries of internet network reliability. Games are not their rules, because they are supposed to be places where unexpected things happen, and because they're for human beings, who themselves are never perfectly isolated from their other experiences when playing a game.
Of course I don't, because it's not about "human rights", it's about how games change, dynamically, always. The rules are an attempt to capture a game in some idealized form, but they never perfectly capture it, and they never capture the game in its entirety. There will always be issues that are governed by social convention and common practices, and these will most often not be explicit. They are, in a word, cultural, and therefore taken-for-granted and not questioned, but this doesn't mean they aren't changing all the time. They are.
The rules of games, which you would seek to elevate as determinative of them, often trail after practice. Consider "Texas 8-Ball" a form of 8-Ball where the 1 and 15 must each be made in a specific side pocket. This game appeared somewhere, at some time, as an improvisation. In the pool hall where it began a set of practices of what was appropriate grew up around the core idea, in practice, and then the rules formed around that, becoming more and more articulated until the game becomes included in official rulebooks, etc.
This doesn't matter, because games are not in any inherent way about "fun". Games are played and used all over the world in ways that have nothing to do with fun. (By the way, I suppose one could make an argument for the "pursuit of happiness" as "fun" written into a constitution, but I won't, games are inherently about fun.) It is true that just because the above is true does not make it okay to jsut break rules whenever one wants to, but rules are broken, and sometimes, just sometimes, the other players see that and say, "Hey! Cool! Let's play it that way!"
Posted by: | Apr 09, 2006 at 19:46
Oops. Um, that was me. :-)
Posted by: Thomas Malaby | Apr 09, 2006 at 19:46
Thomas --
If you're arguing that games *do* change... well, of course they do. Everything does. The nature of all sorts of cultural, social and entertainment behaviors change. And if that change occurs because of deliberate outside influences, random factors, planned trial-and-error... whatever... OK. It's fact. Again; of course. And, again... what's your point?
It's not the change itself I have an issue with; it's the timing.
You say> The fact is that any formal system, no matter how explicit and elaborated, is going to leave wiggle room, a space for practice to depart, sometimes significantly, from what the rules say.
Games need a chance to change, yes. To improve. To grow and mature with their cultures, if necessary. But those changes should happen between instances of a game. Not during the game itself. Because when they happen during a game whose rules have already been set up... without an explicit agreement of some kind to change the rules... there's a problem.
Your change to 8-Ball didn't happen, I bet, all at once, in one game. The players didn't just all-of-a-sudden say, "Let's stop playing this particular game this way... and play it *this* way." And if they did, I bet my 8-ball that they all agreed to the new rules before they moved forward.
Again... I don't see how the argument that games and gaming, in general, change and mature and grow -- which happens, I agree -- applies to the argument that one set of players somehow has the right to cheat at one particular game and, in the process, break the law. It's not like game companies are unaware of the concept of RMT. These aren't brave new explorers bending the limits of game development.
About the only valid thing I can see in your argument is that some game companies might see the level of illegal RMT going on and say, "Hey. This is a cool idea. I'm going to build that into my game system as a legitimate feature." If that's what you're trying to say -- that real, legitimate features can come from anywhere -- including illegal, immoral, cheating behavior... then, sure. I'll give you that. Heck, the "God Father" movies are great movies.
But they don't legitimize crime...
And I don't think that the idea of RMT is solely the purview of the "blackhat" RMTers anymore. We all understand it now. So now that the idea is in the open, and some games are doing it legitimately, and there are spaces where we can get our legal RMT on... we can stop doing it in games where it's against the rules, right? Because the "we need this wiggle room" point has been made.
Or am I still not getting it...
Posted by: Andy Havens | Apr 09, 2006 at 21:47
Thomas,
"Games are not their rules, because they are supposed to be places where unexpected things happen..."
I contend that you are absolutely correct. Within the boundary of the game rules.
If you move past Go and collect $2,000 dollars when the rest of us have been collecting $200, you better believe that will be unexpected. But it will also be unwelcomed, because when we all sat down we were playing monopoly by rules x, y and z.
That is the point. If you've agreed to the rules (by clicking a big fat Agree or by saying deal me in), then human nature expects you to be good for your word so that we can all have fun in a world where the rules are consistent.
Sure, the results of the application of those rules and the conversations and activities that occur without bending those rules can often be unexpected, but the framework *should* be expected and relied upon.
Those that willfully break that framework are cheating. It's really that simple.
Posted by: Artheos | Apr 09, 2006 at 22:55
How do we tell the difference between those virtual spaces that are for gaming and those virtual spaces that serve as a marketplace, social network, or other non-game application? It seems clear to me that the law should protect individuals in a virtual space being used as a marketplace, but its not so clear to me which rules should govern our interactions in a game space. This becomes even more muddled as gaming takes place in non-game virtual spaces, and non-game functions are increasingly being carried out in game environments. Should the laws of the state control interaction in game spaces, or should the operators of virtual spaces be allowed to make the rules and suffer the economic consequences of unpopular decisions? It seems like the delineation between game and non-game might be important in determing how control of the rules in a virtual space should be divided.
Posted by: Alexander | Apr 10, 2006 at 00:32
Look, at this point (and leaving your sarcastic asides, well, aside) I don't really think you're interested in changing your mind. In the above you say "should" because you think it should be so--you're making a normative argument. But wanting it to be this way on moral grounds (Rawls again) doesn't make it work that way in real life. You seem to think that I'm arguing that anything goes. I'm not. Whether anyone's departure from what's expected in a game (either by rules or common practice) becomes a moment for penalty or other punishment or changes the way people think the game can be played is up to the situation. You seem to think that anything not explicitly permitted in games is verboten, but it's just not true, because no one could write down all the rules if it were. So new possibilities pop up, usually in the game (think about the first time someone dunked a basketball; suddenly the players scratch their heads, maybe call timeout, and say: Wait a second, can he do that? But his hand touched the rim in doing so, isn't that goaltending? But shouldn't that be allowed? Etc.)
I understand that much of this community is professionally and personally deeply committed to the sacredness of rules, and yes, they are very important in games; they provide for a means by which to articulate what is allowed and not allowed. But this articulation is never complete. It is always an imperfect shorthand, and new circumstances can always come up. Sometimes, they are very clearly seen as as against the rules, sometimes, they're very clearly seen as against consensus practice, and sometimes they change the game.
Posted by: Thomas Malaby | Apr 10, 2006 at 00:36
See this brief TIME article from 1967 on the changes in basketball rules that followed from individual players' innovations.
Posted by: Thomas Malaby | Apr 10, 2006 at 01:01
@Andy,
Thanks for the satire. Entertaining even if disingenuous. I study the economics and financial implications of RMT. Doing so requires an agnostic view towards moral interpretations. Of course we endeavor to pursue virtuous outcomes to debates like this. Those virtues are instilled, among other places, in the form of governing rules which ultimately reduce to enforceability which ultimately reduce to relevant laws. Within this context the market takes place and those who violate said laws are pursued and punished.
The direction of currently fuzzy law surrounding RMT is of paramount importance because it ultimately decides the constraints that will govern the RMT market and inform the resultant economy. Ignore this at your own idealistic peril.
In previous debates on this subject I have held that in smaller environments, MUDs for example, or in strictly local environments laws may not be necessary to control RMT behavior or markets. Simple norms and peer pressures may be enough. But, in the context of what is a highly liquid, global (spanning multiple legal jurisdictions), large scale commercial endeavor, self-imposed normative behavior will always revert to lowest-common-denominator (excuse the morally loaded term). Because at least one actor will be willing to revert to legality, everyone will have to exist within the [virtual] reality that creates. I wish that no one earned capital gains from tobacco equities, believing it immoral; but short of laws to regulate and restrict companies and investors involved in that endeavor, my wish will always go unrealized.
I truly applaud the idealism, though. I simply do not find it particularly useful as RMT grows beyond a USD 1bn global market. When things get this big this is just how it works.
@Artheos,
I have not lied anymore than when I sign a contract containing an unenforceable limitation of liability clause (common in things like rental agreements) or a non-compete agreement with a company (common in high-tech, but almost completely invalid in California). It is the folly of those companies for thinking they can make hollow assertions and bully people with cheap-talk.
Posted by: randolfe_ | Apr 10, 2006 at 01:27
If you move past Go and collect $2,000 dollars when the rest of us have been collecting $200, you better believe that will be unexpected. But it will also be unwelcomed, because when we all sat down we were playing monopoly by rules x, y and z.
[...]
Those that willfully break that framework are cheating. It's really that simple.
The day that these pure-entertainment multiplayer games moved into the realm of for-profit, commercial ventures they also moved beyond the simple "play by our rules" analogies. The companies earning profit from these games are asserting that players have no rights within these games except for those that the game operators decide to revocably bestow upon them. Some players disagree with this assertion, and at least some courts in some countries have already agreed with those players, meaning players have some rights and companies have some obligations if they wish to operate for-profit businesses in such a manner.
To your point, no, it's not really that simple.
In my opinion, what we should be seeking now is an informed debate about what broad laws and regulations should govern the industry. It's no longer a game; it's an industry. Probably the best solution for having the rules any way a particular group wants them is for them to be is to do so as a non-profit, closed enrollment endeavor. Then you don't have to deal with the messiness of commerce laws and lots of implied potential property interest rights.
Posted by: randolfe_ | Apr 10, 2006 at 02:05
"I have not lied anymore than when I sign a contract containing an unenforceable limitation of liability clause (common in things like rental agreements) or a non-compete agreement with a company (common in high-tech, but almost completely invalid in California).It is the folly of those companies for thinking they can make hollow assertions and bully people with cheap-talk."
There is no bullying, you have a choice to not accept the rules if you don't agree. There is no de facto need or right for you to play the game. You chose to say "I agree" when in fact you did not.
"The day that these pure-entertainment multiplayer games moved into the realm of for-profit, commercial ventures they also moved beyond the simple "play by our rules" analogies."
The play by our rules analogies mostly have a basis in commercial enterprises. Monopoly, baseball, and so forth. It is that simple. Either you play by the rules you agreed to, or you don't, for a game. If you don't like the rules of game a, you have the right to not pay for it and to play game b.
I fail to see the complexity.
Posted by: Artheos | Apr 10, 2006 at 05:25
Richard Campbell said:
>> Alienability. Without a way for me to transfer my horse armor to you, the horse armor is not property as we understand it.
Nah, inalienable property rights are not that uncommon. Since at least the Romans, there have been attempts to tie land in particular to individuals, through various forms of benifice, life-rent or even outright ownership where transfer is illegal. This often takes the form of a reaction to widespread debt crises.
And in modern terms, many software and music licenses grant you a right which you cannot then sell on, delegate or grant to others.
I could go on, but you get the point.
Posted by: Endie | Apr 10, 2006 at 06:57
Thomas/randolfe: Why should I be interested in changing my mind? I'm right ; ) And the satire (not sarcasm) was meant to be ingenuous, which is why I clearly labeled it that. I'll stop, if it's irritating. Just trying to change the rules a bit as we go, add some flavor, nuance the "game" of our conversation on this string... wiggle a bit...
Thomas>You seem to think that anything not explicitly permitted in games is verboten.
No, that's not what I said. I said that anything explicitly forbidden in the rules is verboten. That's different. The grey area of griefing, for example, is a whole other story. I don't care for lots of what passes for in-game bad behavior... but if it's done within the context of the game, and it's not clearly against the rules... I may have to put up with it as a "legal but irritating variation."
In WoW, high-level Paladins who camp out in low-level Horde areas, slaying newbies and generally being a pain... I don't find that to be realistic "role-playing" behavior within the "spirit" of RPG. It's not something I'd ever do. I think it's a juvenile waste of time. But I won't ever complain about it or ask the publishers to change it. Why? It's the Paladins' game, too. If that's how they want to play, they have the right. And my character then needs to react as if she/he has encountered a band of adolescent, yet powerful, enemies bent on the senseless destruction of his/her young. Which is what I do. There you go. Not how I'd ideally envision a fantasy RPG moving along a path... but it's a big VW.
But doing things that are *expressly* forbidden by the rules, and doing them over and over, while they continue to be considered illegal... that's not within the purview of legitimate "wiggle room." It's not the game evolving, it's a group of people wanting to play a different game using the same board and pieces as the original, at the same time that the folks who are trying to play the original are doing so. It's rushing the field. It's limited anarchy; it's cheating; it's crime.
randolfe>When things get this big this is just how it works.
Is it? Or is it just that when things get this big and a mechanism isn't in place to control it, this is "just how things work." For about 75 years, there was almost no film piracy, because it was ducedly hard to copy and show "black-market" films. And there was little profit in it. It was a technology issue. Black-market money is made where the costs/benefit analysis runs not to the contrary. Same as in legit biz, but the players put aside considerations of law. If your point is that "When there's lots of money on the table, many people will ignore the rules and laws," I'm not going to argue, of course. But, again, if you want to argue that that makes it OK... nope. If that's the case, you're arguing that crime, per se, is OK.
That RMT happens is, clearly, not being argued. That it will continue is not, either. I'm not a pie-in-the-sky-guy. I'm a marketing bastard in real life, and I look at the bottom line. When people talk about "brand" in a warm-n-fuzzy way, I want to ask, "Yes, but why? For what profit?"
Right now, though, RMT is doing 2 main "bad things" that are -- in my mind -- bottom line, wrong and illegal and that don't justify the "let's just keep doing this because it's improving the game:"
1. Fraudulently making money for RMT traders who are selling the copyrighted, intellectual property of the publishers.
2. Denying the players who do not wish to participate in RMT -- and that includes enounters with RMT enhanced characters -- the right to play the game as advertised.
When you play many MMOs, you do not "own" any of what you play. Period. It *feels* like you do, because you associate with your character. But you are, essentially, renting the right to participate in a shared environment, owned by the publisher. Selling bits-n-pieces of it... making money off the experience at all... is like running a business out of a domestic rental property or stealing and selling office supplies from work. It *feels* like your chair, 'cause you sit in it all day long, but you can't sell it on eBay and make a tidy sum.
This is well established law, here. You can't take pictures in a movie theater of a film and sell them. You can't photocopy books and sell the pages. You can't tape-record a concert and sell the bootlegs. You can't use trademarked characters in derrivative works without the consent of the owner of the mark. You aren't treading new ground here. The click-wrap EULA is specific and binding. The fact that it's easy to get around is a technological and social issue (hard to stop, no will to enforce), not a moral or gameplay one.
randolfe>It's no longer a game; it's an industry.
Right. I agree with you completely. Well, it's both. But look what happens in Vegas -- where Black Jack is an industry more than a game -- when you cheat. The "publishers" in Vegas -- the casino owners -- are some of the most lethal enforcers of rules in the history of man. They *start* with their legal rights to enforce the rules. If Vegas ever gets its hands on MMOs... I think lots of RMTers would do well to think twice...
"It says right here you clicked on the EULA. Isn't that your click, right there? And here we find you trading on eBay in Wands of Ultimate HoyFalloy... tsk, tsk, tsk... Such a shame..."
Posted by: Andy Havens | Apr 10, 2006 at 08:42
Andy wrote:
No argument here! I'm glad that you see the distinction. :-) Because it would be a big mistake to lump all variations from what the rules try to delimit in games as fundamentally illegitimate tout court, which was your earlier position when you diallowed variations as wrong by definition. After all, "things that are *expressly* forbidden by the rules, and [done] over and over, [which] continue to be considered illegal" (note the qualifications) is, in my opinion, a pretty small set by comparison. Of course, if within that set is RMT (in a specific case), then rail against it as much as you like. All I ask is that you not rely on a misprepresentation of games (as reducible to their "rules") in order to do so.
Posted by: Thomas Malaby | Apr 10, 2006 at 08:52
Yeah, RMT really sucks. Good thing I have kids that can level my toon for free.
By the way, what does all this RMT talk have to do with the OP? Buying horse armor is legal. The question concerns the item, not the transaction.
Posted by: Ken Fox | Apr 10, 2006 at 09:42
Artheos: The play by our rules analogies mostly have a basis in commercial enterprises. Monopoly, baseball, and so forth. It is that simple. Either you play by the rules you agreed to, or you don't, for a game. If you don't like the rules of game a, you have the right to not pay for it and to play game b.
I fail to see the complexity
There is no binding obligation between the players and the publishers to "play Monopoly by the rules", only to not pirate, violate copyrights, etc. In fact, when I purchase Monopoly I have the right to modify, augment or completely ignore the rules. This is why this analogy is irrelevant and invalid.
You fail to see the complexity because you don't want it to exist. Let me try to provide a simple example: When you rent an apartment you sign a lease agreement, which is a legally binding contract. Many commercial landlords put clauses in there that say they are to be completely held harmless of any and all "bad things" that might happen, like the roof falling in and killing your family. You signed this, so I guess if the roof falls in, say because the landlord is too cheap to maintain it properly, or maybe he just forgets, then tough for you. You wouldn't want to be a liar, or to risk raising everyone else's rents since they all signed the same agreement so you must have a "proxy agreement" with all them too (perhaps this "proxy" has the effect of keeping everyone's rent low).
Now I move in to the apartment complex too. I sign the agreement too. But I happen to know, or believe I know, that liability laws won't allow the landlord to escape negligence despite having willingly signed it away in the lease. Let's say this hasn't been directly tested in court yet, but it has been established in similar arenas. Now the roof falls in, kills my family and I take the landlord to court. Win or lose this will potentially have the effect of raising everyone's rent.
In your analysis I should never have moved into that particular apartment complex because I didn't want to play by their rules (the rules all other tenants agreed to follow). You fail to see that the result of this would be for all landlords to do the same thing, because otherwise they'd have no tenants (their rents would be higher). Fortunately though, the system doesn't work this way and we, the subscribing actors, have recourse to assert our rights regardless of anything the providing actors assert. More succinctly, I have rights despite anyone's self-proclaimed rules. This debate is about what those should be, and are likely to be in practice.
Posted by: randolfe_ | Apr 10, 2006 at 12:25
"There is no binding obligation between the players and the publishers to "play Monopoly by the rules", only to not pirate, violate copyrights, etc. In fact, when I purchase Monopoly I have the right to modify, augment or completely ignore the rules. This is why this analogy is irrelevant and invalid."
You have the right to ignore the rules, however, if you ignore the rules when you are playing with other people, and you've agreed to not ignore the rules... then you are cheating and/or being disingenous, wouldn't you agree?
"More succinctly, I have rights despite anyone's self-proclaimed rules."
That's certainly true. But that doesn't mean your preferences hold true despite anyone's rules.
Let me ask you this, where does any law or constitution give anyone the right to engage in RMT for a game they don't have to play in the first place?
You are arguing about rights, yet you've not presented any rights that are being violated by the EULA's in question.
But again, I'm not talking about legality, I'm talking about cheating against other players. If you and they have both agreed not to engage in RMT, and if you or they engage in RMT despite that agreement, then you or they are cheating and being disingenous.
Your example ties back to the Constitutional right of life, engaging in RMT does not. You are attempting to introduce complexity on a simple topic. We are talking about playing a game, not choosing an apartment.
Posted by: Artheos | Apr 10, 2006 at 12:38
Andy,
Interesting you bring up Vegas Blackjack. Counting cards is legal (or rather not illegal). It is against the self-proclaimed rules of every casino. Card counters have been taken to court by casinos in attempts to recover their "ill-gained" winnings. Those cases have failed. Casinos have the right to remove card counters, and I might add not on the grounds that they are card counters, but because Casinos have the right to remove anyone for any reason (aside from protected discrimination). But card counters are also free to enter any Casino that will allow them access, and they have a right to card count, win and keep their winnings up until the point where they are detected and expelled from the game.
This is exactly the source of such complexity. Each actor has rights, and these rights are in conflict. This entire situation is entirely unaffected by big signs that read "No Counting Cards". Just because the Casino says so doesn't make it so. If I can count cards undetected, then I am perfectly within my rights to do so.
Posted by: randolfe_ | Apr 10, 2006 at 12:40
Artheos,
Your example ties back to the Constitutional right of life, engaging in RMT does not. You are attempting to introduce complexity on a simple topic. We are talking about playing a game, not choosing an apartment.
My example has nothing to do with the Constitution directly, nor any right of life. It involves the very complex area of torts, negligence and liability.
I suggest that commercial obligations are equally or more complex than these torts.
When I pay to play the game I am conferred a large number of rights, many of which are yet to be discovered in the course of the development of the MMOG industry. I am simply saying one of those rights may well be some form of limited interest in the property/value I create.
If Microsoft put in the MS Word EULA that they own a copyright on everything produced with Word I would be well within my own ethical prerogative to ignore this and proceed to write a novel using Word, fully intending to deny that Microsoft owns an interest in my novel. This holds true even if everyone else agrees to willingly play by MS' rules.
Let me ask you this, where does any law or constitution give anyone the right to engage in RMT for a game they don't have to play in the first place?
This is the argument. Do players, because they have paid a fee to access "game resources", have an interest in the value they may create using those resources? This is undecided. You must acknowledge that just because the companies and some players say no doesn't make it so. This is a complex legal question yet to be resolved.
Just because it is a game is irrelevant in this context. It is a question of commercial business interest versus consumer interest. The courts will decide where equity lies therein. In fact, the looming threat of taxation suggests that other governing agencies also view this industry very differently than you apparently do. Again, ignore this reality at your own peril.
You should know that I am a strong proponent for marginalizing RMT. But, the path to this is not through idealistic hand-wringing. The answer is a costly, difficult, perhaps unpleasant series of deep design changes to MMOGs/VWs and operation of these games. As it stands now, these operators are getting away with having their cake and eating it too. If they wished to retake control of RMT and marginalize the profit opportunity they could do so. It's just that it will be hard and cost a lot to do.
Posted by: randolfe_ | Apr 10, 2006 at 12:56
Endie wrote:
"Nah, inalienable property rights are not that uncommon. Since at least the Romans, there have been attempts to tie land in particular to individuals, through various forms of benifice, life-rent or even outright ownership where transfer is illegal."
While this is true, 1) all of these forms tend to be temporary, and 2) public policy disfavors restrictions on alienability. Freedom to alienate underlies, for example, the rule against perpetuities.
Endie wrote:
"And in modern terms, many software and music licenses grant you a right which you cannot then sell on, delegate or grant to others."
Physical music CDs can't restrict the right to sell the actual CD (first sale doctrine, etc., etc.).
For software, again, the property you own is the CD. The license, yes, restricts heavily what you can do with the software...to a point that I feel is inconsistent with owning the software (and Bethesda would agree with me on that if you look at the EULA).
Posted by: Richard Campbell | Apr 10, 2006 at 13:10
Thomas: I begin to suspect that we aren't really arguing. Which is one of the things about real-life I prefer over email/IM/comment discussions... much easier to do the, "That's exactly what *I* was saying," thing.
It is, indeed, a great good thing to bring a new skill, angle, upgrade, feature... whatever to a game or system. To be the guy who tries passing in football for the first time, only to get the, "Can you *do* that?" reaction from the other players and crowd. Yes. By all means. Let's test the boundaries, try new things, spin the old moves in a new way, put some English on the cue, dunk and count cards. I'm all for it. Change is necessary, good and right. Chaos is part of the universe and denying its part in the creative process is... er... bad and wrong.
And there will be times when there is real space to argue over whether or not a "move" is a "variation" (new, strange, liked/disliked... but allowable) or truly a "broken rule." And that discussion may happen during an itteration of a game, or between seasons, or in court.
My point has been (and is) that... well... you know my point. So I'll shut up.
Playing "weird" is good. Playing "differently" is good, too. We agree on that it seems. But breaking a rule on purpose -- one that you know is a rule, and that your actions clearly violate -- a rule that many/most others (including the owners of the game) are expecting to be kept... that's what I'm arguing against.
Posted by: Andy Havens | Apr 10, 2006 at 13:17
Well, we're not arguing *now*. ;-)
Posted by: Thomas Malaby | Apr 10, 2006 at 14:20
Andy,
I think Thomas and Randolfe's point is that, "Ok, so you call someone a cheater. So what?"
If all you're looking for is a way to feel righteous and call someone else a cheater, by all means, do it, but again, so what? I'd like to think that we can discuss something more substantive than whether you are legitimately calling someone a cheater or not. I can call you a cheater with equal ease and my calling you a cheater has exactly the same effect as you calling someone engaging in P2P RMT a cheater: None. So why bother even bringing it up?
--matt
Posted by: Matt Mihaly | Apr 10, 2006 at 16:36
Matt: I'm not looking for a way to feel righteous at all. I don't think I ever called upon myself as a bastion of goodness and light.
And I'm not calling "someone else" -- anyone else in particular -- a cheater. I am calling a class of behavior "cheating" and those who take part in it, by definition, "cheaters." You can call me a "cheater" with equal ease, yes. You can also call me a cheetah. Or a bag of Cheetos. You can call me Ray...
You can type into the comment box anything your heart desires with, as you say, "the equal ease" with which I label a certain kind of MMO behavior that I find to be expressly against most rules and detrimental to the industry that this blog was set up to discuss -- "cheating."
And if we are looking for an effect as in, "What effect does my calling RMT cheating?" have, the answer is clearly, on the surface: none. I am not a game publisher, major player in the game-o-sphere, Attorney General looking to prosecute people for wire-fraud, etc., my opinion on RMT means exactly that in terms of "real effect:" nothing. I play games. That's it.
But part of the question as asked above was:
"Oblivion now allows you to buy armor kits for your horse using real world currencies, in a way that is almost exactly the same as real money trades (RMTs) which have been occuring in MMOGs for years."
Part of my answer was to say that inasmuch as I feel that RMT is cheating and fraud, and purchasing additional, sanctioned content from the publisher is not... and that most RMT involves multiple players in games where the effects of the behavior are spread to other players... therefore the above statement is, in fact, not correct. "...in a way that is almost exactly the same as RMTs..." may describe the action, but not the effect.
You say: "I'd like to think that we can discuss something more substantive than whether you are legitimately calling someone a cheater or not."
Yes. I'd like to think so, too. Once we all agree on basic terms, we can begin to discuss other questions like why RMT occurs, and how to incorporate it legally into games where people want to do it. But before "more substantive" discussions can occur, we must agree on definitions. If your goal is to have dinner, and mine is to see a movie... "going out" must be defined before we decide where we're going.
Does your statement mean that you admit that I am legitimately calling RMT cheating? That it is, in effect, wrong? It sounds like Thomas and I have (after a bit of back-and-forth, which is another one of the neat objects of blogs/comments) found each other's position out more clearly on this field. I am glad of having had his views expressed as clearly as he has done. And he has helped clarify my thinking on the subject and has, in fact, possibly helped to move my thoughts in new directions. He hasn't changed my mind on my core belief on the subject... but I am now more likely to be "less broad" in my communications on the subject, as he has rightly pointed out some of the areas in which my former language was a bit too coarse. Ah, the joys of argument.
So, in fact, there was a point to bringing "it up at all."
Andy said: RMT is cheating because it's against the rules and rules define the game and so RMT is bad.
Thomas said: More than rules define the game.
Andy said: blah blah blah cheating blah blah blah.
Thomas said: Not everything that makes a game good is defined by the rules.
Andy said: Oh. Now I get you. Yes. I agree. My original statement was, in fact, either incorrect or unclear. But RMT, if defined expressly as breaking the rules, is still bad.
Thomas said. Right.
So we had this neat exchange of ideas, where my thinking was clarified. There was a purpose. Thomas' words had an effect on me. A positive one.
Have my words had any effect? I have no idea. But I maintain that "clarifying thoughts" is the main purpose of spaces like this blog.
And so, "Why bother bringing it up at all?"
Well... we must agree on terms. If one set of people continue to describe RMT as a legitimate form of "playing the game," and give all kinds of reasons for that, and another set believe that it is "cheating," then we have not even agreed on the definition of "game." We cannot discuss anything more substantive on the subject.
If there's nobody else on this particular string who's going to give argument to that... If all else in the hall say, "Aye," to my contention that RMT, unless expressly allowed by the EULA of a game, is cheating and (often) illegal and bad for the game, the players and the industry... we can move on to other bidness.
Posted by: Andy Havens | Apr 11, 2006 at 04:49
Andy,
I think you meant to say, "RMT, if expressly disallowed by the EULA of a game, is cheating and (often) illegal and bad for the game, the players and the industry."
Posted by: Artheos | Apr 11, 2006 at 05:32
Arethos (laughing at myself, for real and true, for not paying attention to what I'd just long-windedly said),
Mea culpa. That's exactly what I meant to say... thanks.
Posted by: Andy Havens | Apr 11, 2006 at 05:38
Rules against RMT are not game rules though. If Monopoly comes with a shrink-wrap license requiring me to play with official Monopoly money, am I cheating if I play a game with real money and keep the winnings?
I think randolfe first pointed out that these external rules are subject to external social and legal forces -- some rules may be illegal or practically unenforceable. Do these rules remain a part of the game? Do they only remain a part of the game for players in locations where the rules are enforceable?
My comment about having my kids level my character may have been a lame joke, but it also shows that behavior can be legal for one person and not for another. I am not cheating, but if someone else were to have my kids level their character, they would be cheating. (Sharing an account is frequently (always?) allowed between a minor and his or her guardian.)
Posted by: Ken Fox | Apr 11, 2006 at 08:23
I agree with Ken here. Yes, Andy, we've sorted a lot out (and I've enjoyed the back and forth) but I still, to be honest, see a tendency to slip back into formalism in your most recent post. Suddenly, all the qualifications about rule-ending/breaking behavior, where it's not just breaking the rules, but "doing them over and over, while they continue to be considered illegal," are gone, and we're back at "RMT, if defined expressly as breaking the rules, is still bad." Hence Ken's comment about kids levelling his characters [Thomas is now heard muttering, "Come on, Julian, grow up already, or at least grow up enough to level my WoW toons!"] is a reminder that "cheating" is to a certain extent in the eye of the beholder .
Posted by: Thomas Malaby | Apr 11, 2006 at 10:06
Endie wrote:
"Nah, inalienable property rights are not that uncommon. Since at least the Romans, there have been attempts.. [snip]"
Richard said:
>> While this is true, 1) all of these forms tend to be temporary, and 2) public policy disfavors restrictions on alienability.
You're not a lawyer, are you? ;) "Temporary" is only true if you count periods of centuries as temporary (some of the Byzantine land reforms, for instance). And these are almost always attempts at land reform, even into the last century or so, driven by ill-advised public policy. It is private behaviour that they are intended to deal with, and private behaviour that always defeats them.
Endie wrote:
"And in modern terms, many software and music licenses grant you a right which you cannot then sell on, delegate or grant to others."
Richard replied:
>> Physical music CDs can't restrict the right to sell the actual CD (first sale doctrine, etc., etc.)... For software, again, the property you own is the CD."
You're mixing up physical objects with the idea of property. I can absolutely own non-physical property. Conversely, I can sell you a physical object and place restrictions on your ability to sell it on. Non-assignable rights can be property too.
In the simplest form, I can contract with you to provide you with the right to play an MMO for a month, and state that you may not assign that right to anyone else, despite the fact that it is your property. If you want non-assignable property rights, I suspect (without bothering to check in detail myself) that you look at the contractual terms for Steam or iTunes. But you will undoubtedly gain exercisable - if non-alienable - rights to use your property.
If you believe that a right or possesion is not property unless you can alienate it then you are welcome to your opinion. But you don't agree with current western contract law.
Posted by: Endie | Apr 11, 2006 at 10:11
Ken and (I presume) Thomas: How are rules against RMT in the EULA not "game rules?" They aren't "code based rules," but they are rules, and they are related to "the game." In the case of most EULAs, they are very specific to the game, it's publisher, players, network, etc. Pages and pages of text to scroll past... Lots of rules. About the game.
Not "play based," no. Environment based.
There are rules that come with Monopoly that aren't printed on the inside of the game box. Like, "You aren't allowed to run a gambling den in most states using this game as the basis." Because the rule of law supercedes the rule of any game. "You can't kill your kid on purpose by choking them with the little green and red hotel and house pieces," will never be found written anywhere. But it's a rule. Right?
Again... I guess we're back to definitions. And, in my mind, the EULA is a set of rules that says that you, as a player, agree to do certain things and not certain other things while in the process of playing this game. That, to me, sounds like a pretty good definition of game rules.
Of course you can't break "code rules," like "My toon can't hold a sword in his teeth." If you do, it's a "hack." Which is also breaking most EULAs. But just because a rule isn't related to *play* doesn't make it any less a rule.
In fact, I will invoke the inverse of Thomas' Rule that says, "A game is not always defined by its rules," and claim that, "Rules are not always defined solely by what's printed on the inside of the box."
I contend that "law" certainly supercedes "rule" in almost every case, and, certainly, where the rules have been explicit in saying, "These laws apply." I know that there are instances -- body-checking in hockey is not an assault, whereas checking me on the street into an oncoming bus probably is -- where a rule in a game may "trump" a law... but in the absence of *allowing* particular behavior, I would assume (in playing any game with any person), that legal behavior is going to apply.
I would also assume that, generally, moral and ethical behavior would apply above-and-beyond the rules. I do love to role-play thieves, but that doesn't make it OK for me to steal your D&D figurines while I'm playing with you. When I game, I assume "good will," as well. That, because this is an "entertainment" or "sporting" event, that other players will not take offense if I play the game well and win; that they will respect smart/good play moves on my part without endless grousing to authority; that they will afford me whatever courtesies are built into the system...
and that they will play by whatever rules we have agreed to. Be those "play-based" rules (the bishop moves diagonally; only collect $200 when passing "Go"); legal rules (don't kill me with the pieces or steal my board); social rules (be nice); or ones that we agree to specifically for a given event (let's try to finish by 5pm, as I'm expected elsewhere).
There is no "rule" anywhere that says you have to be "nice," as I've suggested above. But if, every time you jump a piece in checkers, you do a little dance and point and me and yell, "You suck!" soon, you will have no partner for play. You would be, I contend, breaking a fundamental rule of all game play; that everyone be allowed equal opportunity to enjoy the game.
I think RMT (when expressly forbidden by the EULA) meets the criteria for breaking the rules on almost every count.
I am now being officially less formal (that was a joke). I am suggesting that, by a less formal interpretation of the idea of "rules," RMT is still (and in addition), breaking them. More of them, in fact. And, to my mind, more important rules than many of those laid out in the actual programming code.
Posted by: Andy Havens | Apr 11, 2006 at 11:58
The terms and conditions in the EULA aren't game rules for the same reason that drug and gambling policies aren't rules of baseball. If you need to step outside the game to verify a rule, then it's not a game rule.
Posted by: Ken Fox | Apr 11, 2006 at 13:17
Artheos,
I think you meant to say, "RMT, if expressly disallowed by the EULA of a game, is cheating and (often) illegal and bad for the game, the players and the industry."
Continually saying it is illegal does not make it so. You are mixing value judgements, like what is cheating or bad for the game and players, with an explicit legal assertion. If, after providing numerous examples of why EULA assertions, or assertions of any contract for that matter, may not be legally binding you still must resort to this argument, then I'm afraid we are at impasse.
Also, casual use of "illegal" strongly implies criminal behavior. Breaking or challenging a contract is not criminal behavior in and of itself; it is a civil issue. There is a very big difference in the US legal system. It is perhaps just as likely that the software publisher has had players agreeing to an "illegal" EULA contract, to be consistent with your usage.
Posted by: randolfe_ | Apr 11, 2006 at 14:26
randolf,
I was rewording someone else's sentence to be in line with what they really meant based on the context of their post.
However, to the point of your comment. We are at an impasse, you appear to tightly couple legality with agreement about game play rules.
You think it matters that the agreement is quantified as legal, and I agree, if the agreement extends past the game and interacting with the game. But when talking about game play, I don't think it matters if the agreement is legal or not. Who debates if the rules printed inside the box cover of Monopoly are legal? And if someone does, who listens?
If an individual does not like the game rules, they can save money and avoid being disingenous and click No, I don't agree. This is no different than simply not playing poker with your buddies because you think Jokers should be in and wild and they don't. What most folks don't do is play anyway and then toss in the Joker card out of your sleeve pocket and say, I won!
Posted by: Artheos | Apr 11, 2006 at 16:16
Artheos,
However, to the point of your comment. We are at an impasse, you appear to tightly couple legality with agreement about game play rules.
Just to clarify, I view normative rules as different from legal constraints and rights. My primary point is that normative rules are not sufficient means by which to effectively govern these "games" anymore, and that this is simply a practical reality. Your poker and Monopoly examples lack a critical attribute that causes the problem in MMOGs and VWs: the existence of a market for RMT. Normative forces are rarely (many contend never) sufficient to effectively regulate and guide markets because markets are driven by economic forces within legal constraints. Because there exists a market for RMT -- regardless of whether this market *should* exist -- and this market is not illegal or regulated, questions about legality become critical. If RMT is ever ruled explicitly illegal, then we shall have no argument with one another. Until such time, it is in the interest of game designers and publishers to recognize the existence of this market and take steps to control it on their terms. That is if they wish to have complete control over the practical use and meaning of their internal game rules.
Posted by: randolfe_ | Apr 11, 2006 at 16:46
Is the potential double standard with RMT relevant? If Blizzard starts selling level 60s, but maintains the EULA to prevent individuals from doing so, is the eBay black marketeer still cheating? Seems to me that's a situation where people would break the EULA, but not cheat by anyone's definition (except Blizzard's perhaps).
Posted by: Ken Fox | Apr 11, 2006 at 18:13
Endie wrote:
>> You're not a lawyer, are you? ;)
Are you?
Endie wrote:
>> "Temporary" is only true if you count periods of centuries as temporary (some of the Byzantine land reforms, for instance).
I wasn't considering Byzantine concepts of property to be applicable to the modern day. "Temporary" responds to life estates and the like.
Endie wrote:
>> In the simplest form, I can contract with you to provide you with the right to play an MMO for a month, and state that you may not assign that right to anyone else, despite the fact that it is your property.
That right is not a piece of property; it is a license. Again, if you look at EULAs, you'll see that you have no rights in the underlying intellectual property you are using other than a license to use.
Endie wrote:
>> If you believe that a right or possesion is not property unless you can alienate it then you are welcome to your opinion. But you don't agree with current western contract law.
Citing the Byzantine system in support of your argument doesn't jive with current western law of any sort.
Harvard law prof Joseph Singer, in his "Introduction to Property Law" book:
"It is a fundamental tenet of the property law system that property should be 'alienable', meaning that it should be transferable from one person to another." (page 10 of the 2nd edition).
If you believe that alienability is not a core tenet of property then you are welcome to your opinion. But you don't agree with current western property law.
Posted by: Richard Campbell | Apr 11, 2006 at 18:57
Ken> If Blizzard starts selling level 60s, but maintains the EULA to prevent individuals from doing so, is the eBay black marketeer still cheating? Seems to me that's a situation where people would break the EULA, but not cheat by anyone's definition (except Blizzard's perhaps).
Depends on your definition of cheating. If you buy into the idea that someone other than Blizzard (i.e., RMTers) can make up rules or break them with impunity, then why can't Blizzard? If you don't, and you say that the rules are the ones provided by the company, then Blizzard has the right to do what it likes with its intellectual property. In fact, one of the reasons they might decide to start offering its own paid leveling service (according to the "normative rule" argument above) would be simply because there is a market for it. So, frankly, if Blizzard did it, it would (IMHO) make the RMT for that game *less* of a rule-breaking issue, because one of the understood "rule making bodies" had santioned it. That, however, wouldn't make it any more/less illegal.
It would be, though, bad form. Highly... unsportsmanlike. Against the "spirit" of the rules, unless some kind of mitigation was taken into account; i.e., setting up paid-for 60th level servers. Because while it would not be "cheating" per-se, it would be (again, in my opinon only, on this micro-subject), against the spirit of a game where much of the point and play balance has been created to match players against/with similarly leveled and experienced folk. It would be akin to the NFL sanctioning a Raiders vs. Junior High game.
Posted by: Andy Havens | Apr 11, 2006 at 21:57
Certainly alienability is essential to the American property system, but merely because a product is sold does not make it property. If I sell my kidney, in America, the buyer can claim no property rights in the kidney after the transaction, because kidneys are not property that can be bought and sold. Decisions like this are based on American social policy. Even though I may consider my kidney "mine" and even though my kidney enjoys many of the legal protections afforded to real property, American policy dictates that I still may not sell my kidney, nor may you buy it.
The question of whether or not in-game virtual property should be treated as real property is not a strictly legal one. It is appropriately a question of legal policy. Who is best equipped to protect the rights of virtual property holders? What infrastructural ramifications will there be from granting virtual property real property rights?
I think one possible solution is to enforce the EULA's in gaming environments, but to grant property rights in non-gaming environments. Considering the division amongst gamers as to whether or not RMT's should be allowed, it would seem that there are economically viable markets for game worlds that alternatively support and prohibit RMT's. In non-game environments, it seems inevitable and important to treat virtual property as real property. For an in-depth discussion of the reasons for treating virtual property as real property, see Prof. Josh Fairfield's "Virtual Property" BU Law Review '05.
Posted by: Alexander Musz | Apr 11, 2006 at 22:13
Randolfe,
Let me see if I understand your agrument. Seriously; no satire/sarcasm here. I'm the kinda guy has to repeat things in my own yakkity-yak to see if I get it. So...
The publisher can't make up (and certainly can't enforce -- we already agree on that much) the rules, because the MMO is too complex, huge, weird, whatever. Neither "game rules," nor "normative rules" apply, because those concepts have been superceded by the size/scope of the games.
We need case law (perhaps backed up by actual, successful penalties -- in order to prove enforceability) to confirm/deny/clarify the legality of various contractual stipulations related to RMT, because those issues are at stake on a higher (or at least "different") level than that of stated rules, normative rules, or (until tried and enforced) current law.
In other words... RMT isn't really "cheating" because it *can't be* (yet... if ever) because there has been no appropriate body willing to address the issue in a court/venue where the result would be meaningful. In that absence, players have to make do playing the game with others who hold various interpretations of various definitions of rules at various levels (depending on what is "normative" for them).
Is that close?
Posted by: Andy Havens | Apr 11, 2006 at 22:21
That sounds good to me. :-) (Nitpicks: I wouldn't choose the word "level," and there is a little too much of a suggestion of law as the "ultimate" arbiter here--to me it's just one mode of governance, but one that happens to have governmental force behind it.)
Posted by: Thomas Malaby | Apr 12, 2006 at 00:57
Andy,
I am comfortable with that description.
I would add that it need not be public policy or case law that ultimately decides this issue, although it seems to be heading that way. It is my own opinion that there is a closing window of opportunity for game publishers, designers and operators to self-regulate effectively enough so as to perhaps head off looming legal intervention. IANAL, so I could be wrong in this thinking.
Short of a compelling argument that policy and courts will enter the debate regardless, I would recommend that the game folks undertake some deep design changes to address the broken aspects of their economies so as to enable them to, along with other technical and operational techniques, retake control over the most critical portion of the RMT market. This need not involve publishers offering their own RMT solution, but it certainly could. It does require that they think more seriously about the long-run economic models contained in their virtual realities.
Posted by: randolfe | Apr 12, 2006 at 02:09
Endie wrote:
>> You're not a lawyer, are you? ;)
Richard asked the obvious question:
> Are you?
My first degree is, since you ask, LLB (Hons) Edin., so yes. That said, I went on to better things.
Endie
Posted by: Endie | Apr 12, 2006 at 07:29
Endie wrote:
>>My first degree is, since you ask, LLB (Hons) Edin., so yes.
My JD will be completed in 1 month, so almost.
Posted by: | Apr 12, 2006 at 09:35
Stupid non-name-requiring comment form...
Posted by: Richard Campbell | Apr 12, 2006 at 09:36
OK. I am...
convinced.
Of something. Not sure to what degree yet. But I have thought deeply about this over the past few days. I don't know that it matters to anyone else what I think on this subject, but I spent a lot of time blabbing on it, and so I felt as if I should put a fork in my comments here, now that they're done.
I would like to thank Randolphe, Thomas and the other kind folk here (and of course, the ever-gracious publishers of TN) for their thoughts on this subject. It's a tense one, and often prone to vitriol. This forum is often a good place to find intelligent and well-mannered, game-wise folk. Well, it happened again.
Let me be clear on something -- I still think that RMT, when it is forbidden by the EULA in an MMO, is "bad." That, in general, its use -- unless explicit to the system -- shows poor sportsmanship and is detrimental to those elements of play that make MMORPGs so unique and interesting a form of entertainment.
But -- and this is a major change of perspective for me -- I now feel that Randolfe and Thomas are right:
1.If the controlers of the game cannot provide a reasonable assurance that RMT rules will be followed;
2. If enough players feel that an alternate pro-RMT way of playing than those stated in the EULA brings benefit;
3. If enough other players don't care enough about the ill effects of RMT to quit, make a stink, start a counter-RMT movement, etc;
then RMT can't really be said to be "against the rules." It's puffery.
Upon much reflection, the analogy that finally pushed me over the edge on this subject was a strange one -- pool fences. Many jurisdictions require that you put up a fence of a certain height if you own an in-ground swimming pool. Why? So that neighborhood kids don't wander into your yard and drown. The privilege of owning a pool and playing in it is mitigated by the responsibility of maintaining a high enough fence. If a kid still manages to climb the fence and drown, you are covered; you did what was reasonably required by the rules. If you don't... well, the laws of both nature and man proved that the danger of your owning a pool outweighed your right to do so... without an 8' fence.
Right now, it seems, we have MMO pools with only 3' RMT fencing. Or no fence at all. Or a big sign that says, "Free candy and booze after dark by the open, un-monitored pool."
It's a shame that we should need tighter rules, more laws, more "police," tighter code, etc. etc. etc. Yeah, and it's a shame I can't eat what I want without getting heartburn, too. But until the publishers build a reasonably high fence...
Anybody up for a game of Monopoly?
Posted by: Andy Havens | Apr 12, 2006 at 20:40
Lol. What a great (and gracious) post, Andy. Pool fences...brilliant.
Posted by: Thomas Malaby | Apr 12, 2006 at 21:10
Andy,
Thomas said it already, but very gracious and insightful post. I hope you don't mind if I borrow that analogy. It is the best I've heard for this subject yet. You obviously thought deeply about it. And I also echo your thanks to TN for providing a forum where we can all learn from one another.
And I'd be happy to play Monopoly with you anytime, but only if we play by the rules :)
Posted by: randolfe_ | Apr 13, 2006 at 01:04
Endie wrote:
>>My first degree is, since you ask, LLB (Hons) Edin., so yes.
Richard replied
>My JD will be completed in 1 month, so almost.
In which case, congratulations and, on my part, as gracious a concession as possible. Unless it's not a juris doctorate but a Jack Daniels, of course...
Endie
Posted by: Endie | Apr 13, 2006 at 04:19
Endie wrote:
>In which case, congratulations
Thank you.
Endie wrote:
>and, on my part, as gracious a concession as possible.
We were focused a bit too narrowly, I think. That is, we're both right.
Endie wrote:
> Unless it's not a juris doctorate but a Jack Daniels, of course...
Lord knows the Jack Daniels would have been a lot faster to acquire, I assure you.
Posted by: Richard Campbell | Apr 13, 2006 at 10:33
Having worked with lawyers for 4 years in the legal marketing field, I assure you that the two forms of "JD" mentioned above are not mutually exclusive ; )
Posted by: Andy Havens | Apr 13, 2006 at 11:45
Monopoly and pool fences. Both worth remembering.
Posted by: csven | Apr 13, 2006 at 15:02
re: pool analogy.
Ok. I'll bite: what exactly (or inexactly) would constitute a "reasonably high fence"? Everyone seems to agree that such a fence, if even possible, would be prohibitively expensive. It seems to me that you all have tautologically agreed that: "Until RMT is against the rules, it is not against the rules" with the only guidance being EULA's are not sufficient to make RMT against the rules.
If an EULA says RMT is against the rules, it seems to me it is against the rules until some RMT'er prevails in some more authoritative forum.
On a side note, it always strikes me as odd that so many people who participate in this blog can, in one breath, worship at the altar of the social network; and, in the next breath, desecrate that altar by equating RMT to friend-to-friend transfer. At best, RMT does no harm; at worst, F2F does no good.
Jeff Cole
Posted by: Jeff Cole | Apr 13, 2006 at 16:01
Automated B2C RMT is unremarkable. For many successful Korean games, it is the only revenue stream.
Automated C2C RMT a la StationExchange -- now that's interesting.
Posted by: Mike | Apr 15, 2006 at 23:36