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Oct 23, 2006



How do you figure out what/which common law? Common law derives much of its validity by being situated in- and with reference to- a specific sociocultural context. I'm guessing that in many cases that context is radically different in WoW than in SL, and again radically different in Florida than in WoW. (Not to mention China!) It seems to me we will need some way to evolve a game-specific common law if we're to argue that a common law should apply to in-game intra-player relationships.


Luis --

I could not possibly agree more. My beef is with only importing *parts* of the common law online. The common law of contract made the jump online pretty effortlessly because everyone could see the sense of text governing a text-based medium. But somewhere along the way we decided to not apply the law of places and spaces to a space-based medium.

Do I think the common law online need look like the common law offline? No way. But do I think the common law of contract needs to be counterbalanced by the other traditional elements of the common law (torts, property, etc.) -- I guess I do.


The disconnect in these EULA situations generally tends to be that the EULAs for most MMORPGs are quasi-legal* documents largely constructed to define what rights the customer does not have while using their service -- limitations on the nature and content of speech and behavior, the total curtailment of property rights, assertions that the provider of the service has no responsibilities to their customers, stipulations that all arbitration will be administered by the developer, etc.

For an enfranchised citizen of a liberal democracy, these restrictions are completely counter-intuitive in my mind. The customer may be aware of the restrictions, but in my experience either don't take them too seriously or actively oppose them -- with the exception of RMT prohibitions, curiously enough (and in fairness, many people follow common sense rules about chat channel decorum, but I think that's because those rules follow cultural norms, not that people simply accept arbitrary restrictions of their speech because it's "the rules.").

What's interesting to me is I think most players have very strong feelings of property rights in game, but there is a wider spread of opinions as to whether or not those property rights extend to the wider world beyond the shard/server.

*To my knowledge, none of the issues I talk about have been tested in court, and I've seen good arguments as to why large parts of EULAs might not only be unenforceable, but in some cases even illegal.


Josh: oh, that makes perfectly good sense, and I'm not generally disagreeing- just seeking clarification.

My sense (and I'm just a 1L, so take with large grains of salt) is that contract requires less cultural context than most common law, since in the end you're dealing with (typically) an explicit agreement between two parties. There are all kinds of details around language, default rules, etc., but in the end, two people have come to an agreement. The use of common law around that agreement is primarily to clarify the details. [This is why GPL works so well, by the way, in transnational software products- you've opted into that social contract when you use GPL code, as well as to the legal details of the license, so everyone is on the same page, even if their respective native legal systems are on different pages. I think there is a really good paper to be written there.]

In contrast, in tort there is no such intraparty agreement. We fake it by saying 'social contract' and waving our hands, but there isn't much there there. So adjudicating between two parties who share no common social contract/society/culture/etc. is hard.

Real, exclusive property probably falls closer to contract- the personal role is more direct, the intuitions about it are more global, and the clarifying role less necessary. IP is probably more like torts- fewer common intuitions, less direct interaction between parties, and more necessary clarification.

To maybe put it slightly differently: my intuition is that there is a continuum here that you could lay the various branches of the common law along that contract is at one end of, which explains why it has been imported more readily into virtual worlds.

Real, exclusive property probably falls closer to contract- the personal role is more direct, the intuitions about it are more global, and the clarifying role less necessary. IP is probably more like torts- fewer common intuitions, less direct interaction between parties, and more necessary clarification.

Here's a big legal question regarding property (maybe unanswerable): Can a EULA really override property rights?

My philosophical intuition regarding property in a virtual space would say that anything I make/acquire is in game is my property, i.e. I have a reasonable presumption not be possible for that to be removed from me (my avatar) without a pre-defined system of recourse.

Usually this is pretty well defined between players. Either players can steal from each other and take revenge (PVP systems) or they can't (carebear/blue systems), and anything else (cons, etc.) need to be remedied by a GM if possible.

But under most EULAs, GMs can do basically whatever they choose with no system of redress for the player (this varies from game to game of course, but it seems to be the industry standard).

I feel like this is almost an over-simplified question, but is that legal? I realize that some view the EULA as a binding contract, but my understanding is that EULAs are not fully legitimate as contracts in the legal sense -- and it seems incredulous that a EULA could override common legal conceptions of property in the normal sense.


It's hard. Can contract law require a party to transfer property rights? Sure. I can contract away my property rights in something by selling it to you. And, in the area of secured transactions, I can tie my property rights to my contractual obligations -- if I don't pay back my loan to you, you can reposess my property.

But what I really don't know is if contract law can *uncreate* property rights. Surely all that the EULAs say is that property rights in the virtual property are deemed transferred to the game designer.


EULAs are weak. In some countries (e.g. Germany) the MMOG provider can introduce all kind of EULA terms - the court will only pick and accept those regulations which are reasonable from a consumer's perspective.

The code of the MMOG regulates the world. That's the essential. E.g., Blizzard doesn't like the use of evil words - thus, if you type in "shit", the others read "%&§!" instead. That's the real and absolute power to govern the behaviour between the players.

Regarding the in-game aspects, the EULA can only explain what the MMOG provider is expecting from the users, and what the users can expect if they don't behave.

Within the game/code, the MMOG provider is the ultimate power to enforce the EULA, e.g. "don't protest with your undressed avatar in the middle of Ironforge". Outside the game/code, the state is the ultimate power to enforce the EULA, e.g. piracy aspects.


Sorry for second post, but just a question back to you, illovich: If you play monopoly, who owns the little houses, hotels and cards you are playing with? Very likely the person who owns the game. I think that's why EULAs don't override property rights.


At common law a contract consists of: Offer, Acceptance and Consideration.

Also at common law, property law is an amalgam of contract (title, lease, etc) and tort law (harm, etc.) and civil procedure, that provides a system of redress for property owners.

EULA's I suppose are only leagal insofar as the reach of current law allows. Game companies are offering you a service, players are accepting that service (and the terms contained therin) in consideration for a fee (monthly or one time).

Since the current law does not encompass virtual property rights, but does encompass ownership of resources (servers, storage, bandwidth, physical resources required) the burden I would imagine is always going to be in the players to prove "ownership" of the bits/pixels. and not that they are "borrowing" them for use as part of the EULA.

Players provide consideration for using the service, and participation. They are "buying" increased service where they purchase say a new shirt for thier avatar in SL etc. This is not going to be to hard for a judge to decide (law favors the property owners always, in this case the game company). Where you get into issues in the future is where you are able to port the avatar and its belongings between VW's.


Josh said: But what I really don't know is if contract law can *uncreate* property rights. Surely all that the EULAs say is that property rights in the virtual property are deemed transferred to the game designer.

Josh, you seem to be proceeding from the assumption that objects in a virtual world are property to which users a priori have some legal rights, and thus that such rights must be transferred to the game developer. On what do you base this? It seems to me to be a mighty strange construction: the game developer conceives, creates, transmits, and stores a virtual object -- but somehow it's not inherently theirs?

To my knowledge your assertion that players inherently have rights to in-game virtual objects as property hasn't been remotely legally demonstrated, and yet it seems most arguments about players' rights to virtual objects proceed from this unexamined basis. IMO there is little rational or legal basis for this argument other than "it's what players want." Can you explain your basis for assuming that players have property rights to something they did not create, develop, or buy, and which they do not even possess?


Surely a 'sweat of the brow' justification would have some merit in that context, Mike? i.e., I put in the hours or possibly paid some real money, 'earned' it in some way, so now it is 'mine'? That would certainly seem to be the justification for the player's intuition of ownership, and I think has at least some moral justification.


Luis Villa wrote:

Surely a 'sweat of the brow' justification would have some merit in that context, Mike? i.e., I put in the hours or possibly paid some real money, 'earned' it in some way, so now it is 'mine'? That would certainly seem to be the justification for the player's intuition of ownership, and I think has at least some moral justification.

Only if you believe that because you played Pac-Man for four hours you own the little dots your Pac-Man avatar "acquired."


I don't start playing a game of PacMan with the intent (and possibility) of playing for years on end, though.

I'm not saying it is justified, but I think there is some intuition there that bears exploring.


I can think of two reasons (and for a more in-depth examination, see my Virtual Property piece on SSRN).

1. *All* "property" consists of resources that humans exchange for value. So your argument proves too much. There's no "there" there for property interests in land -- no laserbeams cutting off one person's plot of land from another. Stocks in Microsoft don't exist either -- they're just rights in resources. What matters is that humans wish to trade the resources, and are willing to make gainful trades for value.

This doesn't mean that the resources should be a priori allocated to players -- in fact Coase seems to indicate that we shouldn't care, if transaction costs are low.

2. Not to be snide, but if there is no "there" there, then what legal right does the game designer have to prevent people from selling nothing?


BUT -- I should add. I didn't write this about property, or even particularly about RMT, although I'll admit to having a point of view. I've flogged that horse, I suspect, to death. I'm writing about this from the point of view of contract. Vertical contracts between designer and players cannot create sustainable horizontal rights between players, and nothing I've seen written here solves that problem.

We've all felt this frustration when another player violates the TOS in a flagrant manner, yet the designer does nothing. We simply cannot enforce obligations horizontally, and are left to complain to the designer, who has no economic incentive to enforce the rules.


The gravity of the thread seems to be heading back to whether there is or should be such a thing as virtual property -- Josh has an article on that issue (linked to on the right sidebar) where he explains why he sees it as desirable.

Josh, I think whether or not you are right about the need to "fix" the power of the dev-written EULA w/r/t to virtual property issues depends on how much the state believes is at stake in virtual worlds.

If you believe that there are high social stakes in the way the EULA is written, I could see a failure of contract law as an adequate form of regulations.

But one might also argue that all the property-like "things" within a virtual world consist merely of symbols and communication, so the virtual world in toto is simply a glorified chat room. (I mention this as a regulatory "speech" framework in the Planes of Power paper linked to at right.) A dev-written EULA could fail even under this viewpoint, but only at more or less at the same places where it would fail as the EULA of a subscription-based chat room. Actually, I think this is where Yochai Benkler comes out -- Warcraft is nothing but a massive & rich communication tool.

But I take it that you think there is (or should be) something more at stake in the "PvP rules" of VWs than there is in the PvP rules of chatrooms -- and, reading into the article at right, I think you're basing that on the level of economic activity in VWs related to property trading.

Is that right?

p.s. Just saw your last two posts. Off the cuff, do you think there might be contractual arguments for players as third party beneficiary plaintiffs re certain TOS rules?


Vertical contracts between designer and players cannot create sustainable horizontal rights between players, and nothing I've seen written here solves that problem.

I mostly agree. I'm not sure it's been proved out yet. I believe it may be possible for the developer to create the building blocks for effective horizontal contracts within the construct of the vertical contract. This has been done in limited form, but not enough to prove one way or another. Much more work to do there in developing effective world-systems.

But what I was responding to earlier was your statement that "Surely all that the EULAs say is that property rights in the virtual property are deemed transferred to the game designer."

My response was not that there was "no there there," as you said above, but that there is no exchange of resources relative to the game objects: the resources (data, art, anything to which copy or other rights might be attached) belong solely and completely to the developer. The user has at most a limited license (granted by the developer based on payment by the user) to access and use these objects, but nothing else. Familiarity, longevity of use, or similarly cited criteria do not confer ownership (you can have access to a private club for fifty years and still not own or have any rights to the chair you habitually sit in). The user has no rights to in-game objects that are inherently theirs but which are then transferred to the developer via the EULA. That idea still strikes me as nonsensical -- and again seems to be at the root of much of the call for greater if rarely defined "player rights."


Greg --

I'm not an expert on 3PB law, but I had thought that you needed to be an intended beneficiary (usually a named beneficiary), rather than an incidental beneficiary, to enforce a contract as a third party. Moreover, the interests must vest in the third party based on some sort of reliance (although that can be in the form of filing a lawsuit, oddly enough).

My sense is that other players would be incidental beneficiaries of the good behavior of another player -- they're not named in the contract, and have no differentiated interest from any other player.

It's a theory worth trying, but my sense is that courts will apply the common law directly to transactions between players before they'll use a 3PB contract theory. I can imagine PVP fraud cases as a tort, for example, quite easily.


You're probably right (I ought to go grab Farnsworth or Corbin) but if the contract says "don't gank the noobs!," there would seem to be an argument that the noobs are intended beneficiaries of the TOS agreement. (It would all depend on the TOS terms.)

OTOH, re tort law, if the EULA/TOS says "you must gank the noobs!" -- it would seem to me that the "contract" in the VW, aka the game rules, might have a tendency to displace much of tort at least w/r/t property interests (via whatever theory does the trick for the sports injury cases: e.g. assumption of risk). That's more or less where Dan and I came out in our Virtual Crime article.

However, we have some cases and laws in the sports context (see the "game framework" piece of the Planes of Power paper) that, without much hesitation, restructure PvP game rules to reflect the interests of the state. So, again, I'm back to the original issue I was wondering about: what's really at stake here?


Further to this post, In my article 'A Quest for the Legal Identity of MMORPGs - From a Computer Game, Back to a Play Association' I suggested platform(exactly, Articles of Association in legal terms) as an alternative to EULA.


At least within most countries of the European Union, performance to a third party may be agreed by contract with the effect that the third party immediately acquires the right to demand the performance. In the absence of a specific provision it is to be assumed from the circumstances, in particular from the purpose of the contract, whether the third party is to acquire the right, whether the third partys right comes about immediately or only under certain conditions. Thus, it's very easy to create rights between players also via EULA's.

I think it's a great idea to use Articles of Association. However, I am not sure whether the players are fond about that, as such an entity can be easily sued. On the other hand, it could also represent the players against the game provider.


You guys need to link to all these interesting sounding papers when you talk about them... don't leave us hanging :)


I just added a link to Ung-gi's paper on the right.

I'm faily sympathetic to where Ung-gi is going with the player association concept -- though it obviously suggests there is something more here than the chat subscription that I described above.

Just a thought: if you buy the need for something more, might the law of condominiums and community associations be a good analogy to pursue? The idea being that you have a formal private associaton recognized explicitly by the state regulatory system where private property rights are handled in a different manner pursuant to a private "contract-plus" arrangement. (There are plenty of shortcomings in that analogy, I realize.)


AFAIK, only intended 3PBs can enforce contract rights. It seems to me that EULAs and licensing agreements are too powerful across the board in the software industry, not just the virtual world/game industry. IMO, one of the main problems lies in the fact that VWs/games are packaged as software and not "something else." I have no idea what the "something else" might be, but when billed as software, courts seem all too eager to allow a ton of wiggle room in EULA drafting because "making software is hard."

What I find more interesting is whether VWs that bill themselves as "Make cash here!" and then tell you none of your virtual stuff has any value are engaging in deceptive or unfair business practices that would attract the attention of the FTC. I'm guessing that they don't, if only because the EULA would give notice of the reality of the situation, but it still seems shady at best.


Josh: if we did import the full range of common law into a VW, how would you see it evolving? Distinctly from real-world common law? If so, distinct per-VW? Shared in some way? Would this method apply to non-VW online communities in some way?


I refuse to believe that we've exhausted the possibilities of designing worlds with better checks and balances built into the world (and code) to manage people interacting with people, or that all our customer service is a failure.

Anyway, common law that applied to all MMOs and VWs would be a dire mistake to my mind - it would almost certainly nearly legislate homogenous worlds. That might be ok for some people who want to force everyone everywhere to play like them (this seems to be a common theme when you get PVP games), but would most likely stifle innovation, development and variety.

Why are we making the presupposition that you can't take lawyers, judges, juries and put them into virtual worlds, before we decide to take them out and start sueing 15 year old kids for ganking you?


The evolution I see will be based on the general common law, and it will start from the basis of the basic torts, contracts, and quasi-contractual causes of action.

The heavy lifting will be done by the concept of consent -- I consent to be torted in a boxing match; I consent to be defrauded (within bounds -- "bluffing").

Rules of the game will become important. EULAs are not the place for the rules. EULAs are allocational documents, not organizational ones. Courts may end up making that distinction explicit.

In the end, I don't think we need more than the basic common law and a developed theory of consent to abide by the rules of the game. And if one player sues another for a contract concluded ingame; or if one player sues another for libel (slander? hoboy) ingame, that's precisely the approach I would expect courts to take.


That may be right -- I could see, for instance, reasons related to administrative efficiency and norms of jurisprudence that might point toward courts applying common law rather than wrestling with the EULA as an organizational document. (Judge Kozinski would be on board, for sure.) And actually, I think common law evolution describes much of what we have seen so far with cyberlaw generally. Defamation online is fundamentally just defamation offline with a few minor caselaw twists.

The wrinkle here, of course, is what role the virtual environment and the assets therein play in making this more than rich IM. The question of virtual property gets tangled up in the question of whether contract + consent can do all the work in this setting.

I'm thinking of what Richard might say w/r/t this: I'm pretty sure he'd think the model of common law + consent + virtual property "doing all the work" leads to a form of ordering that puts impermissible (from his vantage point) constraints on virtual world designers. Hence the need for what he and Balkin and Ted have argued for: special statutory protections for designer freedoms to wall these spaces off from normal legal ordering.

I have been rather skeptical of this as a pragmatic political possibility -- I've seen public choice theory in action on IP issues. But perhaps I have too little faith in Congress -- I would not have predicted the JEC would have been out ahead of the virtual tax question. If this might boil down to something that looks like a unified and profitable game industry vs. a disaggregated interest in consumer protection, I guess it wouldn't be too surprising to see the legislature side with the former despite the predilection of some courts to side with the latter.


The problem with walling off spaces from the law is that you can't. If people break the law using the communications medium of a virtual world, then enforcement will follow -- that's on the criminal side. On the civil side, if you hurt another person, and they've got a coherent theory to take to a judge, the judge will listen. A true universal "safe harbor" from the law doesn't exist -- the best game designers can do is get themselves out of lawsuits between other people (as, for example, ISPs do under the DMCA).

But these ideas of "interration" are, in fact, pretty cool -- they'll come in under the doctrine of consent. Parties consent to a range of activities under the rules of the game. The "rules" are, in fact, the negotiated range of consent of the players. Activity outside of the rules is therefore subject to the usual enforcement. Activity inside the rules is consented-to, and thus inactionable.


Yes, I agree that you can't competely wall-out law, the question is when the law decides it will constrain itself. Or, less abstractly, how the state decides to limit its own powers.

I guess I just am unsure whether "consent to the rules" + common law really can work without the EULA/TOS or some other formal legal mechanism of private ordering (iteration/player association/the condo analogy). In a way, this goes back to the Casey Martin case -- who decides what the rules of the game are? The problem with fixing that via player consent is that the person offering the game wants to make the rules, and one of the rules that person wants to make is "abide by the EULA."

I could imagine many jurists not missing a beat in saying that the provider of the game should have the freedom to do that. (Easterbrook & Scalia, of course, but probably plenty of others)

OTOH, I could see the state or certain jurists, in some instances, actually saying that the game writers don't get to make the rules (see the Martin case again) because the rules are contrary to society's interest -- they don't protect, e.g., the PvP interests you focused on in the OP. Perhaps that will happen, but I think they'll need to be convinced that there's something significant at stake in order to do that.

I guess the thing we haven't seen yet is the exact thing you're concerned about here: the PvP lawsuit (at least *I* haven't seen them, have you? I have heard rumors that there have been some filed in small claims courts). Without the devs in the proceedings, my hunch is that courts might well ignore (effectively) the role of the EULA/TOS. But my sense is that we won't see these until the player stakes get much larger -- and even then the devs have incentives to make them disappear when possible.


A vw is not another state. A vw is a media tool with specific characteristics. All regular rules and regulations continue to be valid for the users. It would be helpful to work with examples or scenarios to check whether there is indeed a legal gap or the need to regulate a PvP situation.

How are conflicts handled in professional sports? If Tiger Woods is ready to put for a birdie to win the Masters, but misses because his flight partner Ernie Els intentionally sneezes very loud and hefty at the very moment - can Tiger sue Ernie? We could argue that Ernie has destroyed Tiger's in-game position worth millions.


How are conflicts handled in professional sports?

The argument against EULA's is that they act as very one-sided contracts. Very often they are unreasonable and as an example in one of Mike Sellers' posts in the Blacksnow article illustrated, that's when they (usually) get ruled against. Professional sports operate on much clearer contracts between the athlete's representative(s) and the league or sanctioning body they play within.


Of course, instead of trying to pick one's way through a means (if any such means exist) of enforcing in-world contracts in real-world courts, one could institute an in-world nation state, with its own, in-world legal system and in-world powers of enforcement (banishing people who fail to comply with court orders from the whole nation, for example, meaning that they lose access to all of their land in that nation) to enforce in-world contracts.

Indeed, that is already being done: see here: http://slbusinessmag.com/edition/viewtopic.php?t=80&sid=e4ab598f827133d2506824fdda3c2d7b (look at p. 80) for details.


So how is that going, Ashcroft? Passed?


Sorry, I’m on a bit of a social construction bender at the moment. I think I agree with Josh. My ideal view has for along time been that we need to start at the VW user and work out the kinds of benefits and harms that we want to promote / prevent in the wider social context of use, taking into account the economics of VWs (I talk about this in some of my AoIR papers). To prevent the one-law-to-rule-them-all I’ve suggested a taxonomy (see The Four World Theory stuff). But we need to go further than that, we need to settle on the conceptual frames, or range of frames, that we use to consider these matters (see early discussion on whether SL is a ‘china shop’ or a ‘sand pit’).

The problem is that the pragmatics of public policy and lawmaking seem to make any kind of clean break creation of laws impossible and all we end up doing is finding the nearest set of analogies that kinda work (Dan’s stuff on Analogy is really good) and bend them out of shape to fit.

I’m not loosing hope. I think we just have to be advocates for the fact that there are a much wider ranges of possible use of VWs that most realize, that one model does not fit all and that rights and the waving of rights in the pursuit of fun is something to be taken equally seriously.



I don't start playing a game of PacMan with the intent (and possibility) of playing for years on end, though.
I am not saying it is justified, but I think there is some intuition there that bears exploring.
Valentine's Day Poems


The whole idea of "virtual property rights" might turn on this:

On one hand, there are no player rights. None at all. Nothing belongs to the player. Players rent time & service on the equipment & IP that belong entirely to the developer and/or management team.

On the other hand, these virtual worlds willfully create the illusion for players that they are indeed accumulating wealth and power, as expressed in the growth of their avatar and their store of "virtual items". The human mind is wired this way, and many people play in virtual worlds, for the same reasons we earn-play in the real world, to amass stuff.

This is what motivates humans to toil at tedious skinnerbox-like tasks, whether in the real or virtual space. The lure of success, wealth, power, prestige.

It would be interesting if some judge ruled that EULAs are fine as is, with developers and managers as sovereign or pharoah-esque quasi-diety, _but_ at the same time ruled that these games need to declare themselves as they truly are.

So, for example, whenever you would level up, it would say: "Congratulations, the pixels that the developer is allowing you to enjoy, but that can be taken away at any time, for any reason, without recourse, has just gained a level."

Similar messages when you open "your" bank or wield "your" mighty blade, gleefully reminding you that none of it, in any way, shape, or form, is yours at all.

How much fun would the game be then?

Even if a judge makes no such ruling, eventually this knowledge will seep down to the playerbase. It will hit them not as theory, not as some intangible EULA, but as fact. When that happens, the party will be over.


Seems to me this thread just barely skirts the notion of distinguishing a capital-c Common Law, akin to the idea of natural law or universal law. Ultimately I suspect blackrazor's comments about who owns the servers and under what conditions folks are permitted to use them will trump, especially as I understand the current strength of eulas in the present court climate (essentially that eulas win, consumers lose.) There also seems to be a touch of recursion here: Some view *all* notions of property as illusory, so a virtual version of that illusion would be what?

I'm new to TN; a real pleasure to have found y'all.

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