Law & VWs Update

WoWGlider litigation and more...

Just a few quick bullet points about law and virtual worlds:

• When Thomas blogged about the FBI looking at Second Life casinos last week, I wanted to chime in to say, based on my impressions, Second Life has good reason to be worried about the casinos.  Most gambling regulations don't cover only wagers of currency, but talk about games of chance involving something of value.  But I hesitated to comment because casino law is not my area and I hadn't even read the recently passed Unlawful Internet Gambling Enforcement Act.
  
  So many thanks to Professor Anita Ramasastry for actually reading the UIGEA and doing a thoughtful analysis of the Second Life casinos issue for FindLaw.  See her column and conclusions here:
  
  Could Second Life Be In Serious Trouble? The Risk of Real-Life Legal Consequences for Hosting Virtual Gambling
  
  (In summary: yes, there is good reason for concern.)

• On the legal scholarship front, people often raise the question of who owns the rights to player-created works in virtual worlds.  Erez Reuveni, currently clerking for the Chief Judge of the District of Massachusetts, has a recent article about that exact issue in the Indiana Law Journal.  It can be found here.  It's a very thoughtful analysis of the issues.
   
  
• Not really law, but something that I think IP lawyers in this space might want to consider: Jason Craft's 200+ page PhD thesis, "Fiction Networks: The Emergence of Proprietary, Persistent, Large-Scale Popular Fictions." It's an interesting analysis that draws on Star Wars Galaxies and comic books to come up with a critical theory of virtual worlds and other proprietary fictional universes.  It includes references to Wookies, Michel de Certeau, Harry Potter, Espen Aarseth, and Larry Lessig.

• The most interesting new VW case being litigated today (barring Bragg v. Linden, which is still live in the Eastern District of Pennsylvania but bogged down in a variety of procedural matters) is Blizzard's suit against the makers of WoWGlider.  Gamasutra covered the story developments back in February. TN friend Matt Mihaly has been following the case on his blog (see here e.g.) and takes a pretty dim view of the Blizzard's claims.  Others folks, including commenters on Matt's blog, are supportive of Blizzard.
  
  If you're interested in the case documents, the original declaratory judgment Complaint is here.  Counterclaims are here.  A proposed joint case management plan can be found here.  The case management plan is an interesting document for non-lawyers to read, since it offers brief and readable statements by both sides of the facts of the case and the nature of the legal claims.   
  
  I don't want to explain and hash out the merits of Blizzard's DMCA, contributory copyright infringement, unjust enrichment and tortious interference claims in this post (that would take a while), but I did find one aspect of the case very interesting.  Part of Blizzard's damages theory is that WoWGlider is a gold farming tool that ruins the in-game economy and destroys the desired and optimal game balance, making players cancel subscriptions when they otherwise would continue playing.  For example, Blizzard's lawyers say in their statement:
  
  
  • The MDY parties are also fully aware that WoWGlider users rely on the program to acquire large quantities of WoW virtual property with little effort, and then sell that virtual property for real money in unauthorized third-party exchanges. These sales have a ruinous effect on WoW's in-game economy.  The MDY Parties' sale of WoWGlider has caused a loss of goodwill among WoW players by devaluing the game experience, forced Blizzard to divert resources to preventing access to WoWGlider users, and decreased Blizzard's revenues from WoW players who stop playing out of frustration with the devalued game and from WoWGlider users that Blizzard is forced to terminate to protect the overall integrity of the game.
     
    
  So here's a discussion question: Who do readers think ought to win this lawsuit?

Comments

[Jesse]

1.

While I believe that Blizzard has an inherent right to defend it's product. I truly believe that MDY has done nothing wrong. Blizzard's claim is about as just as Random House suing Xerox because they make Photocopiers, because Xerox knew that said photocopiers could be used to photocopy books published by Random House. Yes, WoWGlider does nothing good for wow's econ and it is 'cheating' but Legally they've done nothing wrong. Ban the users and be done with it. Or do like UO and embrace it and let it happen. Or even better, don't base your game design around systems like that. One quick and dirty way of fixing this would be to degrade 'drop value' and XP gained from Mobs after a certain point. So you grind for 2 hours for the full effect, after that, you'll see diminished returns. I doubt many players would complain if they did away with long term 'farming'. I think it might perhaps be more interesting to look at it from the perspective that Blizzard may actually want people to Buy Gold and Farm etc. I don't have concrete arguement for this view, but more just a gut instinct. By suing MDY they are publicly asserting that they are trying to kill 'Cheaters' but why have they not done IP Tracing and removed non-North American IPs from having the ability to log in? That would blanketly protect against cheap labour markets being able to farm, then resell the currency. The fix is easy, cheep, and could be maintained at almost no real cost. Certainly not nearly as expensive as retaining Lawyers to fight against MDY. A systems admin could implement the change in about 20 lines of code, and the total negatively-effected user base would be FAR less then 1% imho.

Anyways just some thoughts.

-Jess

[dmyers]

2.

Well, there's a million robots that turn into something. And this is a building that turns into a robot. So what's so fun about playing with a building? That's not any fun!

[Javad]

3.

In contrast to Jesse's comments, I think there actually is a violation of the DMCA. Blizzard will probably win the case if only because of the its anti-circumvention provisions, which WoWGlider is almost certainly in violation of. While this often overabused provision of the DMCA has many problems inherent in it, I think in this case it will prove an excellent tool to prevent the negative impact the program will have on the experience of non-abusing players.

The intent of MDY here is purely to exploit those of Blizzard's customers who are too lazy to achieve in-game objectives on their own. It ruins the economy, diminishes the experiences of people who really work for the same objectives, and generally hurts the whole world (of warcraft). As a non-party to the EULA, Blizzard has very limited means via which to stop MDY distributing WoWGlider. Law aside, they should have soe sort of means to protect their game, and without getting at MDY, trying to stop every instance of use of its program over an indefinite period of time just seems unreasonable.

As for the photocopier analogy, its not quite the same thing, because a photocopier is capable of substantial non-infringing uses, whereas WoWGlider seems to have only one use, that of helping players violate the terms of their EULA.

[Amarilla]

4.

@Javad, how come :Blizzard is not exploiting the lazy customers willing to have fun online instead of going out there to a beach or restaurant or a date ....but MDY's intent is purely to exploit the poor lazy players , those willing to save some of their precious time and to have fun at a higher level....for cheaper; and about EULAs, let violate them all , as a revenge :) must be fun doing so, and even profitable ;afterall, is their game, their rules,their software, their EULAs. Who tf asked them to make those weak and stupid ,in the first place ?!

[Andy Havens]

5.

In this case, unless you believe that Blizzard's EULA/TOU are flat-out wrong, and that a software company doesn't have the right to its own IP, and to prevent unauthorized uses of its product... I think Blizzard is in the right here.

1. Loss of goodwill.

This is the loss of goodwill rendered unto *NON* users of Glider *BY* the users of the product. One of Blizzard's main contentions is that the use of the product harms regular players' experience by putting annoying bots into the game and screwing with the economy, both in-game and through RMT. So the loss of goodwill isn't with the Glider users... its with other players who might say, "Sheesh. These Blizzard guys can't keep these crappy Glider-bots off of my server. I don't want to play this game anymore."

2. Diversion of Blizzard resources.

Blizzard wants its resources to go to fixing problems that come about due to its own issues; not ones that somebody else foists on them. Yes, it is a service company's responsibility to provide good service. But if that has to be done in addition to cleaning up messes that are made by people who are making money on the outside of the circle... well, put it this way. Why should I, as a non-Glider WoW player, have to be on hold longer for customer service in order to pay Glider's makers' their profits? If another player has a problem that's generated by Blizzard or the game itself... yeah, I gotta get in line. But if the problem stems from an outside agency... how's that fair to me? Or to Blizzard?

3. Loss of revenue from terminated users.

This covers both the situation I mentioned above (users who terminate because they're pissed about bots in the game), and users who are terminated because they themselves use Glider.

Now... you can say, "That's dumb! Blizzard terminated them! How can they sue a guy for losses that are their fault, since they're the ones doing the terminating?"

Well, that's a bit of a Catch-22 for companies looking to protect both IP and the validity of a contract. If they don't make all of the above claims, they run the risk of establishing that they don't intend to honor their contracts. So if they want to claim that the EULA/TOU is a binding document, then they *have* to terminate people when they violate it by using something like Glider... which means that the entity that provided it to them could be (depends on what the court says) liable for that breach.

And that's where you get into the real nub of this whole case. The wonderful world of "tortious interference with contract." Which basically means that it is a crime to knowingly do anything that causes another party to breach a contract.

In the paperwork that's been published on the 'net on this case, the Glider people have admitted that, yeah... their product interferes with the EULA/TOU. They simply maintain that it's not a legit contract. That's going to be up to the court to decide.

Which is why I started all this off with, "Unless you believe..."

The big guy isn't always, or even often, right. I'm a bleeding heart liberal most days. In this case? Again... unless the EULA/TOU isn't ruled a contract... my opinion is that Blizzard's gonna win.

[Ace Albion]

6.

Will they be able to sue griefers for causing loss of goodwill and cancelled subscriptions also?

[Wolfe]

7.

Personally I think both parties are smoking crack.

Blizzard knows that their game will be subjected to attacks of all sorts and needs to expect defensive measures to protect their integrity. Going after WoWGlider is an attempt to scare the bazillion other attackers from daring to mess with Blizzard and it will not help anyone if you resort to scare tactics.

WoWGlider is an unhealthy symptom caused by design desicions Blizzard has made. A mmorpg developer either think about what to design and work towards reducing bad things which cause unpleasant symptoms, or spend a large effort on hiding ugly things that emerge from the design.

I think none of the involved parties should win this conflict, both should pay for it and then go back to do their own things.

Blizzard should go back and think about what they can do to their product to reduce the demand for botting, or make botting harder, or make botting easier to auto detect and punish swiftly. The punishment side is really where Blizzard is lacking most obviously at this time, the same bots are crawling over the game world for months and months before Blizzards big "batch of bancan" kills many of them simultaneously. This batched type of anti-exploit measure is too slow so the botters still benefit from setting up new bots as they become profitable in about 2 weeks of activity.

WoWGlider should try to figure out how to stay in business if Blizzard does what Blizzard should, and it should not be a lucurative business either.

Blizzard has a bigger problem with this type of thing than other mmorpg devs because WoW is a more successful game. They can not expect to get away with low quality integrity the way games like AO or SWG can. The amount of people involved as users of WoW is so large that critical mass of exploiters, farmers, cheaters and dorks will be surpassed by a big factor. This fact alone makes WoW need stronger defences than what Blizzard can attempt to find from older or similar mmorpgs.

[Wolfe]

8.

Or maybe its easier to just say:

- WoWGlider is an emergent part of WoW.

Chris Crawfords definition of emergence: "Emergence is a property of a complex system that strikes when the designer of the system writes code that operates at a higher level of abstraction than the designer understands."

Once emergence surface it becomes relatively easy to understand the phenomenon and act accordingly, this is where Blizzard has failed.

[Andy Havens]

9.

@ Wolfe: If WoWGlider can be considered an emergent part of WoW, then why can't the lawsuit?

[Kathy]

10.

"WoWGlider is an emergent part of WoW"

In the same sense that the 1919 Black Sox are a naturally emergent part of major league baseball.

Whether it's through copyright or through some other means, game companies, just as sports leagues, have a right to enforce rules.

[greglas]

11.

Actually, I'm not that confident in the strength of Blizzard's DMCA case, since I'm not clear what the TPM is here. But like I said originally, I'm too lazy to delve into legal arcana. Generally speaking, I'm highly critical of the DMCA (see this and this), but whatever I think the doctrine should be, as I explain in the second paper, courts regularly interpret the DMCA in ways that I think they shouldn't. And, most recently, they did so in favor of Blizzard in the BNETD
case.

So that's why I'm more curious about who folks think *should* win in this particular case, not in predictions about the way the copyright doctrine will play out.

Here's my reason for asking: In the BNETD case and the Marvel v. NCSoft case, I was pretty confident that players didn't mind either a free Battlenet host or the ability to make superheroes that looked a bit like Wolverine. The player interests (non-parties to the litigation) were pretty clear. The IP rights asserted in both cases threatened, at least in the short term, less freedom for the players.

In the WoWGlider case, my personal feelings about the doctrinal issues have to be put in the context of my feelings about the DMCA and copyright liability generally. But in the MMORPG context, I wonder where the majority of WoW players stand in terms of what a ruling here would mean for their own interests?

Putting aside the interests of the two parties (who have lawyers to represent their stakes) is it more important for most WoW *players* to have the freedom to automate play via software like WoWGlider or more important to give Blizzard the ability to prevent others from automating play via WoWGlider?

Kathy's comment above and practically all the comments so far seem to suggest that the player interests in this particular case are more aligned with Blizzard. Is that correct?

[Andy Havens]

12.

@greglas: Yup.

If I have to choose between the company I have chosen to buy a game from being in charge of my game experience, or any/all outside entities being able to do bloody-well what they want with my experience, I will side with the publisher.

If the original purchase decision had been, as it was in my choice to subscribe to SL, one that included a whole lotta outside shakin' goin' on, that's a different story. But I didn't subscribe to WoW to be pestered by bots. I subscribed to be pestered by 13 year olds.

[randolfe_]

13.

Should MySpace be allowed to arbitrarily restrict what their users link to, based on the same arguments, including click-through EULAs and ToS?

If so do you still hold that position if MySpace then begins charging other sites for the privilege of not being blocked?

If so do you still hold that position if MySpace then begins applying moral judgments beyond obvious obscenity, but say to things they "feel disrupts their community experience", say perhaps user links to Planned Parenthood or The Nature Conservancy?

Assume there exists a substantial barrier to entry for new competitors (which is increasingly true due to copyright compliance and content licensing restrictions, not to mention the emerging defacto two-speed internet courtesy of at&t).

[Prokofy Neva]

14.

Good round-up Greg, thanks for doing that chore of outlining all the existing cases.

For all the scary title, Professor Anita Ramasastry doesn't seem to conclude that LL *is* in trouble. Because perhaps it can't block payments to/from legal offshore gambling -- or for that matter, legal gambling that might be in a Las Vegas or a Reno, Nevada or a Mohegun Sun in Connecticut.

I remember at SOP II, one of the panelists, suggested that the best thing to regular SL would be a state gaming commission.

[Andy Havens]

15.

@randolfe: Check the MySpace T&Cs page.. They do "arbitrarily" restrict what their users (not just members with pages, but folks just visiting the site) can do there. For example...

"Your MySpace.com profile may not include the following items: telephone numbers, street addresses, last names, and any photographs containing nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter."

and...

"The MySpace Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by MySpace.com... Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the MySpace Services."

Hmmmm... You see any commercial use on MySpace recently? I do. You think if what company do you know that doesn't have a MySpace page? At this point they're not doing anything about it, but they've reserved the right to do so, haven't they?

and...

"Content/Activity Prohibited. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MySpace Services... [edited much for brevity] offensive, racist, bigoted, promotes harm, advocates harassment, sexually exploitative, offensive (again), links to adult material, nudity, personal info (phone numbers, addresses, URLs [???]), false information, illegal activities, threats, obscenity, defamation, libel, copyright infringement, junk mail, chain letters, spimming, spamming, password-only access / hidden page access to other sites, criminal activity (varieties), solicitation of personal info, commercial activities without MySpace's written consent (including contests, barter, advertising), photos of another person without that person's consent."

Read the whole thing. There's all KINDS of stuff you can't do on MySpace. Arbitrary? Depends on how you want to slice that loaf of bread. They probably paid some really good lawyers some fine dough to come up with that list. That's not arbitrary; it's hyper-specific.

And, yes -- if I provide a service that says, specifically, "Here's a tool that will let you collect passwords, post nude pictures, do gambling, make chain letters, and put spam on your MySpace page," then I am guilty of tortious interference with contract. Because I am encouraging people to break the contract they have with MySpace.

I'm not sure what your point is here beyond that... Companies don't have a right to establish contracts with their customers? Publishers don't have a right to have some safeguards on their IP? Customers who play by the rules don't have a right to an experience that's untainted by "entrepreneurs?"

What legal precedent or basic rule of common sense or just fairness are we looking at that says Company B has the right to screw around with Company A's product, customers and profits just because they can?

If I pay my $7.50 to see a Star Wars movie, I expect to be able to sit through it with a modicum of peace and quiet. I expect, maybe, a baby or two crying, some whispering, soda slurping, etc. Part of the experience. But if you want to come into the theater and sell Star Wars paraphernalia throughout the entire picture, making noise ["Wanna by a Yoda doll? Hey! Anybody for a Luke lunch-box!"] and disrupting the experience for me... how is that OK? Even if 10% or 20% of the people there buy something?

If I decide to quit WoW on the sole reason that a WoWGlider bot pissed me off, will the Glider people refund my money? If one of those bots is banging away in an area and I reaaallly want just one crack at a resource and can't start a conversation with the damned bot... can I call the Glider people's support staff and ask them to call off the bot so I can play the game? If it was a person/player, I could at least have a chance of making my case... to whom do I apply in the case of a 3rd party with whom I, as a non-Glider player, have NO RELATIONSHIP?

If I go to MySpace as a reader or user... I buy into whatever rules they set up. Fine. If I want no rules, I can do exactly what I do for my blog; get a Web service provider, rent some space, buy a URL and do my own damned thing. Screw MySpace's rules about lists, law, nudity, etc. etc. Andy's space is his own.

You wanna eat in my kitchen, you eat my food. You wanna eat your food in my kitchen, you still gotta wait for me to say grace. Thems the rules in Casa del Huevos.

[Markee Dragon]

16.

Quote from Jesse: "why have they not done IP Tracing and removed non-North American IPs from having the ability to log in?"

Many of the Asian farms have US IPs. They set up proxies through US based connections that look very normal.

[randolfe_]

17.

@andy

My point was it is *not* that clear cut. Categorically, no, companies cannot forge any contract they wish with their customers. They have wide flexibility, but not unlimited flexibility. Since 1890 with the Sherman Antitrust Act the US has established and variously judged and enforced equity within competitive markets. Companies cannot engage in anti-competitive behavior.

A court could well decide that the commercial activity occurring in the market, even if it depends upon the services established by other companies, is beneficial and deserving competitive protections. For example, Microsoft has the flexibility to demand in their license agreement that licensees of its OS agree to not run certain "non approved" applications. In fact, other OS manufacturers did so and weren't punished. But MSFT would have been because of the HSR Act and its measure of their market power.

So no, companies do not have carte blanche. And if RMT grows anywhere near the size Mr. Castronova predicts in the next couple of years, then it falls easily within the domain of all the assorted complex laws governing competitive protections and limitations on market power. In the US it is *not* against the law to be a monopoly (despite common perception). It is illegal to use monopoly power to suppress direct or indirect competition resulting in harm to consumers.

I don't disagree with your practical arguments that RMT is an intrusion as it exists today in prohibited environments. My point is don't be so sure it is clearly and easily "against the rules" of the larger framework. By that definition, just about everything that's happened in Telecom has been "against the rules" in the past 35 years. I was at Ameritech years ago when they considered pre-empting IP telephony, but didn't because their lawyers told them if they forced a customer agreement to not use non sanctioned IP telephony over their networks they'd be in the FTC's office the following week.

[Andy Havens]

18.

@randolfe: Gotcha.

I worked in telco for 10 years myself; a scary country. The Ma Bell break-up did a bunch of things, including lowering the cost of the average long-distance call by an order of magnitude. But it also made things much more complicated, eh?

I agree with you -- publishers/providers certainly do *not* have carte blanche. An illegal contract is unenforceable. That's pretty basic. And legal behavior that occurs "next to" illegal behavior (or bad-faith, non-contractually binding behavior, anyway) might be legal, too. So... sure. Certain RMT activities that are now considered illegal or in breach of contract might soon be seen to be otherwise.

For example, I wouldn't be surprised if we found out that selling/transferring of game/world accounts (on a 1-to-1 basis) turns out to be almost impossible to stop from a legal standpoint. I can't figure out a reasonable legal parallel whereby someone can't transfer title or property or the benefits of a previously purchased/subscribed product or service. If I pay anything for something, that almost always gives me some kind of right to assign it to someone else. I can see courts upholding all kinds of "you can't do *this* nor *that*" rules with the IP... but simple transfer?

Yeah, yeah. I know. If I play WoW, I'm officially not "owning" anything. So I don't have anything to transfer. I'm paying for the right to interact with the service, not the right to control any part of it beyond my personal interaction. It is, essentially, like a NetFlix rental. I can watch the video as long as I keep paying for it. When I stop, it goes back to the nest.

But I believe that at some point, a court will rule that game "tokens" of any kind -- experience, armor, weapons, skills, characters, etc. -- if they are improved with input from the player, are, after some fashion, IP that the player has realized some interest in. And, as such, has some reasonable right to transfer.

I'm pretty sure also, though, that what WoWGlider is doing isn't reasonable, until/unless the EULA/TOS is deemed "not a contract."

[Lavant]

19.

Andy said, "Yeah, yeah. I know. If I play WoW, I'm officially not "owning" anything. So I don't have anything to transfer. I'm paying for the right to interact with the service, not the right to control any part of it beyond my personal interaction."

Yet Blizzard expressly acknowledges the right to transfer accounts in the EULA:

Section 3. Ownership
B. "You may permanently transfer all of your rights and obligations under the License Agreement to another by physically transferring the original media (e.g., the CD-ROM or DVD you purchased), all original packaging, and all Manuals or other documentation distributed with the Game; provided, however, that you permanently delete all copies and installations of the Game in your possession or control, and that the recipient agrees to the terms of this License Agreement. The transferor (i.e., you), and not Blizzard, agrees to be solely responsible for any taxes, fees, charges, duties, withholdings, assessments, and the like, together with any interest, penalties, and additions imposed in connection with such transfer."

On another note, I think an interesting question concerning the case involves the extent to which Blizzard actually suffers financially from WoWGlider. Mihaly has explored it at the above link and I have explored it here. As Julian has said,“everything that is solid melts into digital air.” And it should, including the burden of grinding.

[Andy Havens]

20.

@Lavant: Which EULA are you looking at? The one at:

http://www.worldofwarcraft.com/legal/termsofuse.html

Says:

"Ownership: All rights and title in and to the Program and the Service (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, "applets" incorporated into the Program, transcripts of the chat rooms, character profile information, recordings of games played on the Program, and the Program client and server software) are owned by Blizzard or its licensors. The Program and the Service are protected by United States and international laws. The Program and the Service may contain certain licensed materials, and Blizzard's licensors may enforce their rights in the event of any violation of this Agreement.

and... under section 3, "Establishing an Account:"

"Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall forever be owned by and inure to the benefit of Blizzard."

and... all of section:

8. Ownership/Selling of the Account or Virtual Items:
Blizzard does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that appears in the Program. You agree that you have no right or title in or to any such content, including the virtual goods or currency appearing or originating in the Game, or any other attributes associated with the Account or stored on the Service. Blizzard does not recognize any virtual property transfers executed outside of the Game or the purported sale, gift or trade in the "real world" of anything related to the Game. Accordingly, you may not sell items for "real" money or otherwise exchange items for value outside of the Game."

I'm guessing that the EULA you're pulling from is the one that comes with the disks. Yeah. You can re-sell or give away the disks. You can't stop someone from doing that... once they've cancelled an account. But the account doesn't travel with the disks.

Section 4b is the one that applies to WoWGlider:

"You agree that you will not (i) modify or cause to be modified any files that are a part of the Program or the Service; (ii) create or use cheats, bots, "mods", and/or hacks, or any other third-party software designed to modify the World of Warcraft experience; or (iii) use any third-party software that intercepts, "mines", or otherwise collects information from or through the Program or the Service..."

That's quite clear. And, again, unless a court finds the EULA to be unenforceable, I don't see how the Glider people have a prim to stand on. And, frankly, I don't see an argument to the contrary. Other than, "I don't like the Big Guy," and "I like things that let me do what I want."

Again... I am ALL FOR CREATIVITY. Read my blog (pimp cough...). I love the Open Source movement. Mad props to Cory Doctorow. I'm writing my novel in the open. I use Open Office and love it. I love the free form, madcap weirdness of SL (most days).

But that's not what Blizzard built WoW to be. And they have a right to say, "This belongs to us, and to our customers in whatever ways we, and they, have agreed to."

There have to be lines between sandbox, playground, theme park, theater, cafeteria, mall, office and prison. When you're in the sandbox, yeah... no lines. That's great. But if I, as a user, am *confused* every time I enter a space as to what level of privacy, protection from hacking, adult material, gamey/worldy stuff, etc. etc. I'm going to experience... that's not cool.

In SL... flying penii. Furries. Jedi. Educational opportunities. Disco. Gambling. Business oppos. Logos. French politics. S&M. Underwater parties. Some level of unexpected, unexplainable foo. Bears on skates. I read the sign on the way in. All cool.

In WoW... I'm paying for a particular game. Not a chance to be hacked and botted by every code monkey looking to make a buck off WoW's success and some players' desire to play a *different game* than the one Blizzard designed and I signed up for.

[randolfe_]

21.

@andy

Our finding ourselves in increasingly in agreement is a trend which must be reversed, lest the underworld be soon to open ski resorts.

I generally agree that the WoWGlider folks don't have any argument to stand on without appealing to a broader set of arguments. Thus your statement:

And, frankly, I don't see an argument to the contrary. Other than, "I don't like the Big Guy," and "I like things that let me do what I want."

The problem is, those arguments rephrased and carefully invoking the right acts, regs, and case law can carry serious merit. That's because "the Big Guy" is always under suspicion of misusing his monopoly power to restrict other would-be commercial activity, and because free market assumptions do allow some degree of freedom to "let me do what I want".

To be clear, I don't think RMT is significant enough yet economically for this approach to work. But, it is growing very fast, as are these games and virtual worlds, and the local expert here predicted $7bnUSD by 2009 in the FT a year or so ago, if I recall correctly. (Or was that 9bn by 07...)

When $7bn USD are on the table courts could well start to grant merit to the arguments that "the Big Guy" isn't letting me "do what I want", and therefore denying me my right to try to earn a buck. And the dominant players in the MMOG market by market share do strongly resemble an oligopolistic structure. It just so happens they probably aren't trying to legally "collude" by signaling one another yet -- or maybe they are and that's what this is all about.

[Lavant]

22.

@Andy
The EULA I cited was last updated Feb 2, 2007 Section 3.B and it does not just refer to exchange of disks once the account is closed. As stated, "You may permanently transfer all of your rights and obligations under the License Agreement to another by physically transferring the original media." Yet this was a side point, NOT directly related to the case at hand. It can be seen here. The reason for bringing it up was in response to your comments about RMT, and "I'm officially not "owning" anything. So I don't have anything to transfer" According to the EULA, regardless of this lack of ownership you still have something to transfer. After all, the first sale doctrine gives you this right.

---

Randolfe said, The problem is, those arguments rephrased and carefully invoking the right acts, regs, and case law can carry serious merit. That's because "the Big Guy" is always under suspicion of misusing his monopoly power to restrict other would-be commercial activity, and because free market assumptions do allow some degree of freedom to "let me do what I want".

With over 50% market share, to what degree does this case represent just such misuse?Who really benefits from the elimination of Glider? Blizzard, Players, both or neither? While I believe that Blizzard's EULA is overreaching and adhesive, thus undermining many of their claims, one must, regardless of its validity, consider the damage actually being done to Blizzard (financially) and to the WoW gaming community. To what degree are gamers ACTUALLY being turned away by gliders' degredation of play? This is the question I am most interested in as the information produced by this trial will start to make the picture clearer with actual evidence and numbers, rather than mere speculation that we love to do here on Terra Nova. Its not as black and white as Blizzard would make it seem. As explained in the joint management proposal, Glider users are routinely banned and then return to the game after having bought a new subscription and continue to subscribe if but under another name . This results in a continuous flow of revenue to Blizzard. Yet MDY is just as guilty of exploitation. An interesting question is raised: do either Blizzard or MDY really have the WoW gaming community in mind here? Probably not. But then who will see after their interests in this matter? The courts?

[Amarilla]

23.

@Lavant, lemme rephrase it , the EULA, specially for you : "...you may transfer all your rights;you have no rights." You click " i accept ". I'm with Andy. Some things are just that, black and white. It seems , ppls like Andy are an " endangered species". I'd like Blizzard to win, but they wont;the Courts and the the majority of players are the decisional factor.Because are no longer games, but business.

[Andy Havens]

24.

@Lavant: Amarilla beat me to it. "You may permanently transfer all of your rights and obligations under the License Agreement." Yeah. You can transfer your rights... to own the disks and connect to the servers and have one account... all the rights the EULA/TOS gave you originally. None of which -- as written, and if the courts uphold all kinds of stuff -- give you the right to transfer a character, items, gold, etc.

@Randolfe: I like agreeing with you; you're an incredibly smart dude. It makes me look good when you and I agree. ;-)

As to this issue of monopoly or oligarchy or some kind of control over a specific "market" that's implied by that kind of language. What market/service are we talking about here?

In the case of a clear-cut, historic monopoly (let's use AT&T pre Judge Green), the idea is that one company is keeping users from a choice of providers of a service, and/or other businesses from providing similar services in that market. That's where all kinds of neat anti-monopolistic, free-trade legislation comes in handy. Fun stuff. I'm all for it. Monopolies are almost always bad.

But, let us say for a moment, that there was only one reeaallly good, reeally popular MMO out there. Call it... Planet of our Fightcraft. PooF. Let's say that by dint of good design, fine graphics, good writing, good marketing, etc. etc., PooF garners more players than any other MMO ever, to the point of millions of players leaving other competing MMOs and flocking to PooF. There are others still out there, yes... but their numbers are two or three orders-of-mag smaller. Let's say PooF uses its market dominance (no problem calling it that) to further improve its product, create add-ons, do more marketing, etc. etc. More players come in, more people leave competing MMOs, more other MMOs shut their doors, etc. etc.

Let's take it to a hyperbolic conclusion. Let's say that all the other MMOs shut their doors. The game is just too dang good. There are some who don't want to play it, sure... but not enough to provide a coherent player base for even a minor, successful MMO. So it's PooF, or nothing.

Is PooF, in my wee thought experiment, a monopoly? I would argue that it's not. Because an MMO is not "service," per se, but content. It's not like telephony, where you can say, "A phone call is *this* kind of thing." It's an experience.

Which is not to say that the company couldn't be guilty of unfair trade practices. Any company can use its size and/or position to do bad/illegal things to leverage smaller, "weaker" companies or individuals out of business. But that can happen in a non-monopolistic market, too. I can collude and price-fix and be all kinds of naughty in a very competitive space.

One could also make the argument, in fact, that Blizzard is as much in competition with non MMO forms of entertainment as it is with other MMOs; PS2 games, movies, books, YouTube, MySpace, etc. All kinds of stuff. I'm trying to figure out where the consumer's "right to MMOs" bumps up against a publisher's right to make and control a product. Seriously... I'm not sure I have this in my head straight yet.

I also understand that if lots of people are making money in a new way, that that is something that courts will consider seriously. And if the volume of trade in RMT is significantly greater than the claimed lost revenue by the publishers... well... as long as people are paying taxes, courts like that kind of thing in some cases.

[Lavant]

25.

Andy said, Is PooF, in my wee thought experiment, a monopoly? I would argue that it's not. Because an MMO is not "service," per se, but content. It's not like telephony, where you can say, "A phone call is *this* kind of thing." It's an experience.

Since when are MMOs neither a service nor an experience? I don't buy that claim, especially as one finds very relevant "telephony" services in MMOs such as email, instant messaging and rather real interaction itself. WoW has yet to expand their messaging service to the greater IM community as rumored earlier this year. However, MMOs greatly resemble communication services as manifested by voice over chat which is becoming increasingly integrated into MMOs. Although third party services such as ventrilo are independent, they act as complements to the service WoW offers as part of the larger platform of the internet. And since when is there only one type of gamer--namely passive consumers of content? Like telephone or instant messaging “its an experience” and treated as such by game companies...As for types of gamers, let us not go down Bartle’s well trodden line of explorers, adventurers, killers and most of all socializers. An MMO is such precisely because it transcends content. A raid for example is so much more than story-- but a competitive, interactive experience more akin to sports that requires the MMO service in order to make the EXPERIENCE possible. MMOS are the playing field where the experience takes place. Again, an “experience” is not only content. Also, to tear down the distinction between different forms of entertainments (film, games, books, Youtube, myspace, facebook, etc) is counterproductive. One can make very meaningful judgements of anti-competitive practices considering the MMO market alone. That’s like telling people back in the AT&T monopoly days that they could write letters instead of using their service–which AT&T did. True, there are different MMOS, but what if everyone’s friends played one in particular? What if everyone significant to the person in question is inside of World of Monopolycraft? It would then be pointless to switch as the cost would be too high. MMOs were born as a communications medium and remain that today, despite what adventurous and entertaining abstractions are mapped over this backbone.

[Amarilla]

26.

@Lavant,you have this weird habit to confuse the content with the recipient , and to twist - may i say " blure " ? rofl -the words and the meanings.Since when are MMOs neither a service nor an experience? I don't buy that claim ; yet you are " selling it ". You dont need the MMOGs for anything vital to any significant social or individual " needs " .You can have fun using your telephone , but that does not make the telephone an entertainment . If you don't see the difference, that's the probe that i am wrong . I mean, the telephone is a form of entertainment to you, and it is part of your natural /social/imperative vital needs. Maybe soaps too.

[Lavant]

27.

@amarilla

"the medium is the message"
I was merely saying that content is only part of the MMO experience....a service that Blizzard, SOE and the like provide! There are different uses of an MMO and communication tools are a vital part of it. However, without the content there is no game--- but without these tools no one will want to play the game. On the same note, Wow is more of a process-- a grind if you will in which users stop paying attention to the content and mechanically proceed from quest to quest until level 70 is reached at which point they proceed to do the same mechanical process to complete raid after raid in hopes of leet drops. And not immersively, but fully cognizant of the process. It is an addiction. Its not called World of Warcrack for nothing...The ultimate goal is to grind the most efficiently and as much as possible. Now to a large extent this is fun---but how much of it is content and how much of it is form? Although it is commonly perceived as cheating because it subverts this addictive process, what degree does WoWglider allow users to enjoy content rather than a mechanical ballet of repetition? What would users be willing to pay if Blizzard were to provide this service?

[Hellinar]

28.

@Randolfe & Levant.

The “monopoly is bad” argument is undermined to the extent that WoW is a game. I do want Blizzard to have a monopoly, at least on deciding and enforcing the rules of the game. This is what WoWGlider is very deliberately trying to undermine. Which is why I would like to see Blizzard win this one.

I’d agree that market assumptions do include “I can do what I want, provided I pay for it”. But that clashes with one trait common in games, where I agree to abide by the rules of the game. An analogy to WoWGlider might be bringing a double size tennis racket to a tennis game, because it makes it easier to hit the balls. Its clearly against the rules. Yes, you can argue that “I own the racket, so I can buy any size I want”, but it is still against the rules. Arguing that “I own the computer, so I can run any code I want” is entirely beside the point. While you are playing the game, you have agreed to abide by the rules of the game. One glance at the WoWGlider forums tells you that both WoWGlider and the people using it know they are breaking the rules.

Having said that, I don’t think Blizzard are without fault. The basic driver for botting is the linear reward system. Two hundred hours of month of “playing” is rewarded with ten times as much experience twenty hours a month. So the game becomes tuned to two hundred hours a month play. And “botting”, with or without software assistance, becomes the optimum strategy. To really get rid of bots, Blizzard would have to deter both the human and software versions. Which means a non-linear reward system.

[Andy Havens]

29.

@Lavant: My grammar was unclear. I meant to say that WoW *is* an experience.

You can make the claim that any manufacturer or any product, or any creator of any piece of content is in a monopoly position of that product/IP. For example, what if, like in the Stephen King book, "Misery," an author decides to discontinue a beloved character/series? Does that give a fan/fans the right to hijack the material that he/she has created and do whatever they wish with it? Well, right now we have copyright law (some of which I do NOT agree with) that says, "For a certain amount of time, the author controls many aspects of the IP."

Same with a product. If a company makes a toy that I love, and they hold the patent, and they discontinue it for marketing/brand reasons that make sense to them and their shareholders, I can't go out and manufacture the product just because I love it and miss it. And you can argue that the company "has a monopoly on that toy" and you'd be right. Because they do. Because they can. Because it's their product, not an entire industry or service. Which was my point about WoW.

WoW is not a service "in the main." It is not a "class of behavior." It is not "a mammal," it is "a stoat." Or maybe, because of its size, it is "an hippo." The ontology of this is important.

A company has a right to protect its products/services from interference, but does NOT have the right to do so to the detriment of other, similar products in the same industry, using various unfair, anti-competitive practices. For example, if it were shown that Blizzard routinely lowered prices right after the launch of another, similar game. Or if they often made specific efforts to hire key coders or artists away from other competitive titles. Those actions could get them in trouble. Those are bad things.

But you can't make the claim that just because lots of people like WoW, and they want to do something with it that Blizzard doesn't want them to, and nobody else makes WoW, therefore it's not fair. I may want to see strip shows at Disney World. Lots of people might want to. It ain't gonna happen. And if I try to set one up, Walt's peeps are gonna bust a cap in my ass. Disney gets to say what happens at Disney.

And when I take my kid to Disney, I don't want BambiGlider people farting around with our experience. I came for Disney, not for Glider. Same with WoW. And companies have the right -- and to their shareholders and many of their customers, the responsibility -- to protect their trademarks, IP and profits.

[robusticus]

30.

Ah, a strawfest!

You can not be pro-RMT and anti-Bot. That is an untenable position, like saying that paperboys have a right to a job and judges and juries should strike down all online news sites.

Blizzard will not ban players on the consumer side of RMT. Therefore, they have no case. Those consumers, when told that instead of spending $5000 or more for their stuff, could instead spend $25, I'm sure would be very pro-Glider at that point. I've known several people who paid that much for gold, and more. One would think, if it were competitive, they shouldn't be allowed to do that. But since it's not, more power to them, as long as they group with me. My thought isn't about balance, but rather how to avoid my friends being gouged.

However, there ARE a good number of irrate players who are both anti-RMT and anti-bot. They also think PvE is competetive somehow. See the sports analogies? PvE is co-op, not competitive. Should tupperware parties be governed like professional sports? Besides, very few people get paid to play WoW in the same way people get paid to play sports. There is a different standard when you are the one paying for the privilege. I.E. when you pay, it isn't good business for the provider to determine what is cheating and what isn't.

Even if WoW PvP arenas are considered a sport that requires complete balance, Glider in no way affects that aspect of the game. The people engaged in that for money will have the top end gear that can not be obtained with a bot. At least not one as simple as Glider.

The double-standard people are the ones truly living in a fantasy world: they forget that this bot is not open source from the third world, it is not free to download, people actually pay real money for it. Win lose or draw nothing will change in Azeroth until the design of the system is changed.

Besides, this isn't going to trial for another year, by that time WoW will probably be in huge decline because of the real reason people quit playing any game: they're bored of it.

I was curious to see if any TN experts would comment on the relationship between money supply and prices. The more I think about it, the more sketchy it seems to me that more money would increase prices. Raising interest rates tends not to affect the price of energy one whit. The supply and demand of the coveted items do not change with botting, after all. Sure, the price of currency goes down, but like I said, the consumers would favor that.

Astute to tie in the casino aspect. If Vivendi is so adamant about supporting the virtual money tree casino economy... well, then perhaps we SHOULD be talking about governing these places as casinos. I know my son's school administrators would be in favor of such a discussion (minors aren't allowed in casinos, in case you didn't get that).

Value of the WoW experience, my aching arse. Irritating, is what that language is.

I guess my vote doesn't count, though, eh? I won't play games where it is possible to inadvertently break the EULA. Banned myself, if you will.

[Andy Havens]

31.

Robusticus: You've confusicated me...

In the case of WoW, I am both anti-RMT and anti-bot, as they are both prohibited by the publisher and, I believe, both inimical to the long-term good of the game for the majority of the players.

There are though, I think, cases where you could be pro-RMT and anti-bot, though; cases where RMT is allowed by the publisher, but where bots are not. A bot doesn't just plough through the grind for the benefit of the player using it; as I pointed out before, other players in the game at the time of the bot are then reduced to treated the player/bot as if it were an NPC, essentially. That is not in the nature of what makes an MMO what it is. And so, even if RMT were part-and-parcel of the allowed rule-set for a game, and if I came to the game understanding that some folks (maybe even I) were going to use RMT as part of the game... a bot that grinds, fights, mines, etc. within the game might be very disruptive and a pain in my virtual kiester.

As to inadvertently breaking the EULA... people do things all the time that break contracts that they haven't read. I find it hard to believe, though, that anyone using Glider doesn't know that they are busting EULA, especially when the Glider FAQ says...

Q: Is using Glider cause for suspension/ban?

A: Yes, Glider is against the Terms of Service as provided by Blizzard for World of Warcraft. If you are detected using Glider, your account will be suspended for 72 hours and very likely banned completely. While Glider does not violate any of the terms listed under Blizzard's "Client/Server Manipulation Policy", it is still a third-party program and their Terms of Service are very open in what falls under that definition, meaning they can find you in violation for pretty much anything they want.

I do find it amusing that they throw in that, "they can find you in violation for pretty much anything they want." Well, yeah. Anything that directly conflicts with the contract you agreed to when you entered into it with them. The can't, however, find you in violation for all kinds of things that are on *your* side of the law when it comes to consumer protection. They can't kick you off for being stupid, for not playing consistently, for calling their service line every day, for filling the forums with garbage/lies about the product (unless those lies become actionable). They can't kick you off for playing their game 24 hours a day. They can't kick you off for only playing 1 hour a day. They can't kick you off for offering a training service that would teach people how to play the game better, as long as you don't step on their IP while doing so. They can't kick you off for using non RP language on an RP server... lord knows they can't.

Because it "feels" like a world, and uses the word "world" in the title, we want it to be like a world. We want to have "rights" within the game, and we want our toons to be people, much more so that is really appropriate.

Nope. Not the case. Not yet, and, I hope, not ever.

[At some point, Prok and I should agree, ahead of time, to the rules of engagement for a civil, sustained debate about avatar rights. Not user rights, which are well outlined in the various societies in which players live. But the rights of avatars themselves. 'Cause I think Prok thinks that avatars should have 'em. And I really, really think they shouldn't.]

Anyway... when you subscribe to WoW, according to the contract, it's pretty simple, despite all the legal language that is there to keep people from trying to do non-simple things:

1. You pay Blizzard some certain money every month.
2. You, one person, get to play the game

Similar to how it works when I buy a ticket to a movie. One ticket, one seat, one person, one movie. I don't get to have my girlfriend (don't tell my wife) sit in my lap. I'm not paying for "one seat," and can't make that argument. I'm not paying for one entry to the theater, and so can't hop from movie-to-movie all night long. I *can* give my ticket to someone else. Depending on the state, I may be able to sell it.

But just because I can do something with a service I've bought or subscribed to, and just because it seems logical or sensible to me... doesn't make it either OK or legal.

What if Blizzard supplied something like Glider? Well, that would be different. Because then, when I subscribed to the game, I'd have a choice (probably). Play on a "bot enabled" server or not, perhaps. Or (per character) enable "bot-player" combat. Things such as. Or, even if they enabled it just like the product is now... I'd have the choice, when I subscribed to the game, to decide, "Geez. This Glider feature is annoying. I'll pass on the game, and ask Blizzard to not enable that in their next game." Right now... who do I make that request to? The Glider people? "Hey, please stop making your product. You're pissing me off."

There is no remedy for Glider-haters, because they are not under the umbrella of the game/rules/EULA, whatever. Same with RMT. Who do I go to complain? Where do I seek remedy? How do I ask for improvements to the RMT system?

The game suffers when extra-system "features" are implemented that aren't part of the grid. If the platform is designed from the get-go to be more "freewheeling," that can be part of the rule-set, yes. But when there are specific rules that many (most?) players are abiding by... well, although Thomas convinced me last year that it can't be called "cheating," it may still be called "bad."

[Lavant]

32.

Andy said, "What if Blizzard supplied something like Glider? Well, that would be different. Because then, when I subscribed to the game, I'd have a choice (probably). Play on a "bot enabled" server or not, perhaps. Or (per character) enable "bot-player" combat.

And when you consider that with the click of a finger Blizzard could create this seperate server and thus fix a lot (not all) Glider and RMT problems, one starts to wonder why they haven't done this. Why have they chosen litigation instead? Its hard to believe they are losing money....Is there some other reason besides it hurts game play and is causing users to leave (laugh)? What do people here honestly think of that choice? If you could stop your neighbor's dog from coming in your yard, just by closing the gate wouldn't you do it? Seems like the least cost avoider if you ask me. Something the court should be very interested in.

[Amarilla]

33.

Oh, robusticus, but i am pro-RMT and anti-bot, yes i can and yes i am : usually, the virtual coins are related to $ /euro , and i'm happy enough with the income i make playing myself / having fun , because my income/month is $48/month.
So,fair-playing the game , i can sustain my gameplay and also i pay the related expenses , like the electrical bill and ISP . I'm aint gonna be rich playing a game , but for sure i can play it for free , and also i can buy myself an icecream from the RMT.

@Lavant ,you are not entitled , you have no rights toward Blizzard or any other game : because you dont need " that " game or " the other one ". You dont need any of them. Nobody forces you to go there. You can live without them.You can do business without them. You can have fun without them. You are basically telling : " woah, i've heard Hollywood wanna shut down for good and forever ! The Courts should intervene , because are SO many ppls loving the Hollywood movies ! Also the Courts should put in jail W&B , because their films are really a monopoly , when they hire Bruce Willis ! ". And about dogs : to be honest, first i'd tell to my neighbor : " dude, keep your dirty animal home " , then i'll shot him. Actually, both the dog and it's owner.It's called " trespassing ".It only cost a bullet ( ok, maybe 2 ). :P

[Lavant]

34.

@ Amarilla

Court intervention is the last thing I would want...The market can fend for itself...well maybe...I didn't follow the hollywood argument. Shoot your neighbors dog and you might find yourself in court....a costly alternative to simply closing the gate. The court may rule you were liable for leaving the gate open...which Blizzard is doing by not permanetely banning WowGliders, but unofficially inviting them back at the cost of another activation key and continued subscription. No they don't have to come back, but the reality of the matter is that they do..and in droves. What do you think of this? THey say they are protecting the sanctity of play, but they allow those harmful players to come back?

[randolfe_]

35.

@Amarilla

@Lavant ,you are not entitled , you have no rights toward Blizzard or any other game : because you dont need " that " game or " the other one ".

You don't *need* your cell phone. People have lived without them for a long time. Do you have any *rights* toward the company that sold it to you? What if they cancel your service because they find out you're using Google's Gmail Java/j2me downloadable version instead of their quirky mail-phone-browser-thingy? I mean you don't *need* the damned phone at all, right? And who the hell is Google to dare to violate the company's wish to keep foreign mail programs off of their network?

[Amarilla]

36.

@randolfe , " gotcha " ( to quote a living classic ): as long as the weird clause is there in the legal contract i have with the Company , what's your problem ?! In your country there is an authority supervising such contracts , right ?!I mean, an economic entity cannot just make a contract having weirdo clauses in it and jump on the market, can it ?! Now i wonder, how come , in your country , your govt approved the distribution , the commerce of a product/service /whatever , having the EULA/TOS' clauses ?! Afterall, your own govt , to whom you pay taxes , protect your " phone " ( phony ? ) rights , right ? How civilized is a country where your phone company " reserves the right to...." force you to use only and only Google ?! randolfe, if you have some oil there , i promise we'll bring you freedom , democracy and justice and our rules of commerce . But for that , you need more than 7 million oil molecules; or players .This is why the USA can ban some foreign illegal online gambling , and China can ban the online porn and the alike.This is why LL/Blizzard can operate in the USA's economy/market providing a " legally undefined yet activity , service, product, platform , web 139," we dont know what that is , it's a frontier/pioneering thing ". Because of the doctrine : " shot the damn dog first , then we'll meet in court ".

@Lavant , what " they say " is irrelevant ; what the contract says , matter.What Blizzard unoficially does , is the same with what LL unoficially does : unoficially statements/promises . But as i've said above, nobody knows if EULA is a contract or not...you know, for the Law a contract is or it is not ,and it takes a very short time to figure it, but the Bragg's case take so long exactely because of this : the Court have no clue if EULA/TOS are contracts or not, after 2 years of debate. This is the politic : let the thing happend , let see what emerges from there , let see what / how significant the influences are , then we'll decide accordingly to our politic interest. So, the Court can decide to put you in jail for " abusing " a pet , but to let you walk free for you killed a " trespassing " human. The govt cannot let the phone company have the sort of EULA Blizard /LL have. As simply as that. I dont need to be a lawyer , to see the facts.I cannot fully understand the govt's reasons. But if someone is not happy with its phone company's approved legal contract , anybody is free to use another phone company.Or to vote for another govt.Or to make a revolution. Or none at all . The Courts spread the Justice , the Ethic and the Morality , they dont practice those. They cannot judge the a 50k players game ,the same with a 6ml players one. If the phone company mess with its customers , that's something of general interest and politic. If the game company do the same , that's news for magazines and a hot story for TN. Nobody can "...think ought to win this lawsuit " yet, not even the Court : the Court is awaiting the " input ", the " feedback " from Press , playerbase and other interests involved.

[robusticus]

37.

@Andy - I didn't mean the people who are botting inadvertently breaking the EULA. I meant people like Amarilla who are making $48/month selling gold, and people like me who are paying an extra $48/month for gold. We are, both of us, breaking the EULA. And while I can't speak for Amarilla, I know that for myself, the first time I bought gold I had no idea it was a violation. I honestly thought it was part of the game. When I learned it was cheating, I stopped, and the game pretty much sucked at that point so I quit. Not to mention an extra $48/month is alot of money for a game. A $25 one time fee would be alot more palatable.

While I agree bot obstruction sucks, the broader issue is contested PvE... with or without bots (or players who don't speak your language), contested PvE just sucks for the majority of people who view PvE as co-op rather than a competition. You will be obstructed wether it is by a bot or by these so called "legit farmers".

Yes, it is a world. A world that allows the possibility of "golem magic", the art of animating stone. The tack to make things fair (if that is truly the goal) is the one China has taken - limit the time rewards can be had. Anything else is simple protectionism.

This case is truly a double standard. You and they are saying cheating is ok as long as it is done fair and square. Not according to their EULA, however.

The thought might be well it's unofficially sanctioned to avoid casino governance and the IRS. That's fine and good (well not really), but don't send 3 kinds of thugs to someone's house unannounced threatening their livlihood because you haven't unofficially sanctioned their method.

I'm actually surprised pistols weren't drawn there - this would be a whole different kind of a controversy, in that case, eh?

[Amarilla]

38.

@robusticus, the $ 48 are my salary/month. I work hard for that money. A real job in the real world.I mean : my job, what i do for a living , not the game. The game is extra fun and extra work and extra income. As long as i earn the gold obeying the game's rules and investing my time and work, as long as a player from a richer country pays me -pair to pair-for my hard earned gold in game , after hours and hours of clicks , that's our own business , as long as i dont exploit/abuse the official rules or the fair play . Blizzard and any other company is free to interpret and enforce their EULA the way the see fits. A phones company may not kick me out for the reason that i used too much or too less their online service.In the phone company's case, i have a case. In game's case, i have no case. Because the game company reserve the right to balance /adjust/conduct the in-game rules . I totally agree with that . Blizzard is free to kick me out whenever they wish , just telling me : Amarilla, we have no longer a place for you on our servers, so, bye-bye.We give you back the % of your unused subscription for this month.I have no problem with that. And i dont have problems with the double standards ; this is how things are; my shirt is closer to my skin , than my coat is. In the very specific Blizzard's /WoW case, from my pov, the Theatre may end the movie at any time for any reason , as long as they pay back to me the unused % of my ticket , and as long as the movie there is exactely what they advertised / sold to me.Also,Blizzard is free and entitled to deny access in their theatre , to those willing to take screenshots and sell the illegal copies of the movie , or to do any other " business " exploiting Blizzard's work and investment. Things are a bit different when the phone company chose to end my conversation during my conversation and to reinburse my credits . Protectionism ...well, that's a good thing .Afterall, China is free to make it's own destiny and future , including in the matter of internet. We could learn from China's experience in the matter of social interactions- afterall, at the times when China has Universities , social doctrines ,centuries of civilization , we, the Americans and the Europeans were lurking in underground caves .

[randolfe_]

39.

@Andy and others, but especially Andy given your tenure on the Eighth Plane of Hell (also known as telco):

In light of these discussions, I'm wondering what your position is on "Net Neutrality"? Not the politics du jour. But on the level we're discussing here.

[Amarilla]

40.

You must be kidding me. " Net Neutrality ". Maybe the involved hardware , but even that, it's not so sure. On the level we are discussing here, there is no such thing - and never was - like " neutrality " when about MMOs . Massive.Online.Conspiracy theories.Verizon.The Patriotic Act.The feds/the Company. The regulations.The " we need to be able to ID the player , for player's own safety and happiness ".
The " we need to controll what our great nation's populace may see/post on internet , for it's own good and protection against addiction and porn ".
And why would i be neutral , as player or as dev, to anything/anybody at all ?! I promote my own interest and i express my povs , that doesn't sound neutral to me.Oh, but maybe you was referring to " equal chances , fair /leveled playfield " ? Ignoring " la politique " is not the best approach .I'm not talking Party and ideologies. I'm talking commercial and social politics. Any gamehouse CEO have a policy . And the MMOs became a significant phenomen , enough to attract attention and concerns from govt's policies. You must be kidding me ....Net Neutrality sounds to me like " Justice's Neutrality " ....or was that " Justine " ?! Welcome back to the real world , are you skilled enough for the task ?

[randolfe_]

41.

Amarilla

Calm down. Wiki is helpful in these situations: http://en.wikipedia.org/wiki/Net_neutrality

[Andy Havens]

42.

@randolfe: Hey! I resent that... telco people get the Fourth Circle of hell. Show some respect... We'd never hang out with no Eighth Circle losers. Geez.

I don't really know enough about net neutrality to have a good, informed opinion. Anything I say would just be me blowing gas.

[Amarilla]

43.

randolfe

worse than an idiot ( no pun intended ) is a semidoct ; worse than a semidoct is a biased semidoct having a purpose; worse than a biased semidoct is a biased semidoct pretending it knows everything ;wiki is a nice collection. Sorbona said " ...travelling with train at 15 mph would mean instant death by asfixion " . The ancients knew the Earth is round ( Aristotle, Pitagora & comp , not to mention the Egiptians ), but centuries of " Wiki"s told everybody that the Earth is plate. But after a 2nd thought, i think :the players are the real winners of the lawsuit.

[randolfe_]

44.

@Andy

I'm not so sure telco hasn't been demoted (promoted depending upon your perspective) the past few years.

I raise the question because I've found that many of those who champion the rights of game publishers and other producers of software to enforce behaviors and uses of their product networks also make arguments against telecoms doing the same thing with their network products. There are of course some distinctions, namely the fact that telco is still a legacy regulated industry whereas MMOGs, OS' and application software are not. But telco is almost completely deregulated now.

You see where I'm going with this. There are a lot of very powerful arguments vis-a-vis economic benefits, market fairness, and appropriate levels of control and competition that are applied by those championing network neutrality. I wonder if their willingness to then argue the opposite side when it comes to RMT and MMOGs isn't more a reflection of their own wishes than it is any real fairness or rightness principles.

@Amarilla

Ok. From this point forward I'll assume you're some kind of postmodernist essay generation bot.

[Andy Havens]

45.

@randolfe: Well... I'm not sure I see the provision of WoW or other MMOs/VWs as the use of *a* network. I see the playing of a game, the reading of a book, seeing of a movie, listening of a song, etc. etc. as participating (to one degree or another) in a content experience which *requires* a network or networks. But Blizzard doesn't own the network(s) on which WoW is played. If it did, and mandated that only AT&T or Verizon customers could play, then we'd be having a very different conversation.

Again... I think we have ontological issues at stake here. Telephony is a class of service; and it's a type of another service, regulated generally as "utilities." The government (in the US, anyways) does a lot more regulation of utilities than many other types of industries, because of an underlying assumption that they are (as the name implies) "useful" as opposed to "wanted" or just, well, fun. There has also been another set of assumptions that the entrance costs to provide many types of utilities (energy, communications, transportation, postal service, etc.) is so high, and the initial risks also so great, that monopolies or semi-monopolies are almost a necessity in order to entice players into what would otherwise be a phenomenally bad business play.

[Amarilla]

46.

the fairness and the rightness principles are - exactely like the NN is - goals, utopias , the ever moving target. The reflection of the many and of the experts ,the reflection of their wishes , is called democracy . We decide, because if we are wrong , then we pay the price. Blizzard ? They decide, is their money and business. Telephony ? We mandated the govt to take care of it. MMOs ? Not yet. Until then, as Andy said, it's a game. A leisure. Not " just " a game, but still a game.You dont do business there ; or if you do, you must obey the " WoW Constitution ". Dont like doing business on Blizzard's game , dont like their rules ? Go elswhere .What WoWGlider does is parasitism , and afterall, no matter what it is, Blizzard should be entirely free to decide who and what can do in and with their game. randolfe, i'm amazed how come you dont see the differences between a game and a telephony service, but you are pushing in the unsignificant similarities. Now please, answer me this question, please : who would you like to win the lawsuit ? Oh, and thank you for the "essay " part, i take it as a compliment :-)

[greglas]

47.

For those interested, it looks like the Bragg documents can be found here

[greglas]

48.

A couple paragraphs from Blizzard's complaint (linked to above):

46. Users must pay MDY $25 for the product key. Users may also upgrade to an “elite” version of WoWGlider to get extra features, such as background operation and additional protection from game detection software. The elite version is sold as a subscription service for $5 per month.

47. On information and belief, MDY has sold well over 25,000 product keys for WoWGlider and reaped substantial profits from such sale.

If true, $25 x 25K = $625K...

[robusticus]

49.

I read somwhere WoW has generated $471+ million in revenue. And that they deleted 12 million in gold (or was it billion?). Deleted.

I would have thought WoW would generate a billion. But I think I do not understand currency exchange quite like I should, I suppose.

50.

The courts rule that Bots must be allowed to coexist with Avatars.

Bots are legally required to identify themselves as such to other Bots and Avatars.

Furthermore, Bots are required to follow certain laws.

1. A bot may not injure an avatar or, through inaction, allow an avatar to come to harm.

2. A bot must obey the orders given it by an avatar, except where such orders would conflict with the First Law.

3. A bot must protect its own existence, as long as such protection does not conflict with either the First or the Second Law

Apologies to Isaac Asimov, and pretty much to the rest of you as well.

[CherryBomb]

51.

Andy, I would *love* to see Blizzard create a "bot-enabled" server. I'm willing to bet that very few botters would use it. They would keep sneaking their bots onto the normal servers, exposing their hypocrisy when they say things like "I'm not hurting anybody, I just want to play my own way."

[Lavant]

52.

While we're on the topic of creating specialized servers...why not create one where players act as the governing body with little to no intervention on the part of developers (with regard to governance where such governance would vary from server to server depending on the consent of the governed. Perhaps a reward system to induce voting and participation..100Gold subsidy for yearly elections of officials and polls to create or amend laws....Guess thats too idealistic, but perhaps if games gave players more actual power (rather than self-enforcing norms) then we could see something...what happened to the good old party vote back à la Counterstrike.

[illovich]

53.

Backing up a layer (I'm not going to touch the virtual property argument), I'm going to argue that WoWGider to a certain extent is also a case about an end-user being able to modify the way a software package operates on their own system, and whether or not a vendor has the right to restrict that ability through a EULA (because they often will).

In this light, I hope that WoWGlider prevails, because I feel that a user should be able to use utilities to enhance their use of a piece of software. Not so much for gold farming (but of course if a need exists, an entrepreneur will create a business that answers it), but more because a person has the right (morally, not necessarily legally) to work and play in the way that they like.

Many games are unusable for people who have special needs for a variety of reasons. I remember a couple occasions where a game would be changed and I'd be surprised by the number of people who would complain about not being able to play anymore because they can't mash keys because of (fill in the condition).

Of course, if Wowglider was a program that accommodated people with motor disabilities and carpal tunnel, Blizzard probably wouldn't be litigating.

But it could be used for that, couldn't it?