Series Info...Biting The Hand #19:

I 0Wn Y0o, d00d

by Jessica Mulligan
February 19, 2002

Today’s (mostly) irrelevant philosophy questions:

  1. How many angels can dance on the head of a pin?
  2. Do humans have free will or is the Universe deterministic?
  3. Who owns the character and its item inventory in an online game, the consumer or the publisher or the developer?

OK, Number Three is more than an irrelevant, pseudo-philosophical question; it is something that can be - and may be — settled in a court of law. In today’s digital world of eBay and other online auction sites, persistent world game characters and their inventories, or parts thereof, have been sold for multiple hundreds and thousands of dollars. The question of whether the consumer or the publisher and/or developer owns the character and the character’s inventory thus becomes of interest to those who wish to make such a sale.

This is not a new phenomenon. People have been selling accounts, characters and items in online role-playing games for real world cash for at least thirteen years, which is when, as GEnie’s Game Product Manager, I first came across the sale of a GEnie account with access to over 400 products strictly for the purpose of transferring a character in a game, Simutronics’ Gemstone II. I suspect the activity goes back to at least 1983 or 1984, when online RPGs British Legends and Islands of Kesmai were available as commercial enterprises on CompuServe. In those days, we handled account transfers on a case-by-case basis; we knew money was changing hands in some cases, but we were mainly concerned with whether the new owner had any outstanding bills with the company. Under the $5 per hour rate structure of the time, some players would rack up thousands of dollars of time charges playing a game, default on the credit card payments and be locked off the system, then buy someone else’s account for a couple hundred dollars (or other favors of a more personal nature, but that’s a whole other column) to continue playing with their buddies. Of course, in 1989, GEnie as a whole had fewer total accounts for all 400+ of its products than Ultima Online has today for one game; it was fairly easy to handle things that way. Our service agreement generally prohibited account transfers, but the online gamers spent an average of $156 a month with us; we didn’t want to lose them as long as they weren’t trying to get avoid paying the piper.

Since 1997, when Ultima Online opened up the Internet to persistent world games in a big way, this activity has become a cottage industry. Some UO accounts and items have been sold for over $3,000 US on eBay, which is a lot of dead presidents to part with to own a house you can’t physically trash and a horse you can’t ride to MacDonald’s. Electronic Arts generally approved and supported those sales, which caused the creation of more than one company that did nothing but build up characters for sale. On the other hand, some games, such as Sony Online’s EverQuest and Mythic’s Dark Age of Camelot, have prohibited such sales in their End User License Agreements (EULA, for short). Sony, especially, has been diligent in working with eBay to close down sales of EQ accounts and items. This has caused some controversy and heated words, as the people who built up businesses around selling virtual game stuff objected. In one sense, I can hardly blame them; it beats most dull, everyday jobs. This has always been a gray area of the online world and, as far as I know, remained untested in the courts.

Until now. It was bound to happen that some person or company that makes money this way was going to sue a developer or publisher that restricts such sales. Enter BlackSnow Interactive, a company of seven people who do nothing, apparently, but play online games and then sell characters and items, including Mythic’s Dark Age of Camelot. Mythic went to eBay and had them shut down more than one of BSI’s auctions on copyright violation grounds and, apparently, sent BSI a cease and desist notice. BSI forthwith filed suit against Mythic in a Federal Court in California for "various anti-trust, copyright and anti-competitive issues.".

It could as easily have been any game, I suppose, but Mythic’s Camelot is the hot ticket in the industry right now and is likely to remain so for a while, at least until the highly anticipated The Sims Online and Star Wars: Galaxies ship later this year. Besides, if you sue over, say, EverQuest restrictions, you have to face Sony, which has thousands of employees and more money than God, and will use it to hire lawyers, guns and money… and more lawyers. So much easier, is it not, to sue a private developer like Mythic which, despite being categorized in the court filing as a "software giant", doesn’t have all that many more employees than BSI (at least, when compared to Sony or EA).

Let’s get this specific situation out of the way, then, and then look at the broader issues. The argument that BSI is trying to make is one I’ve heard a number of times that past three or four years, mainly from individuals trying to sell a game account or rare game items, usually after having camped the area and denied access to other players: They aren’t selling ‘items’ or ‘characters,’ they are selling the time it took to acquire them. As BSI’s Director of Sales, Lee Caldwell, was quoted as saying in the press release, "What it comes down to is, does a MMORPG player have rights to his time, or does Mythic own that player’s time? It is unfair of Mythic to stop those who wish to sell their items, currency or even their own accounts, which were created with their own time. Mythic, in my opinion, and hopefully the court’s, does not have the copyright ownership to regulate what a player does with his or her own time or to determine how much that time is worth on the free market."

Come, let us reason together. Beyond being self-serving, as you’d expect from the party bringing suit, Caldwell’s statement begs the question of whether you, as a player, are buying a product or licensing a service. This is not an unimportant distinction; if you’re buying a product, then the doctrine of First Sale probably comes into play, whereas licensing a service is, basically, renting something for a while. You buy a product, you pay to use a service for a while. It isn’t an investment, or, as John Taylor used to say at Kesmai, "You invest in AT&T; you pay to play our games." Seems pretty clear-cut, doesn’t it?

Now, let us look at a section from Mythic’s EULA for Camelot:

You acknowledge and agree that all characters created, and items acquired and developed as a result of game play are part of the Software and Game and are the sole property of Mythic. You acknowledge that: (i) the Software and the Service permit access to Content that is protected by copyrights, trademarks, and other proprietary rights owned by Mythic as covered in Section 3 below.

From 2. Other Rights and Limitations, Dark Age of Camelot End User License Agreement.

In this specific case, it seems cut and dried. To play the game, you have to agree to the EULA. If you agree to the EULA to get access to the game, Mythic owns the characters and items, you get to use them for a while, end of story. If you don’t agree to the EULA, you don’t get to play. It seems pretty self-serving to come back later, when you’ve been violating that same EULA and making money off of what could rightly be termed a derivative work and say, "Just kidding!" I really don’t see how a court could rule against Mythic, but I’m not a lawyer and, of course, strange things can happen in the US court system. Like $4 million jury awards for being scalded with no permanent injury by a cup of hot coffee at McDonald’s. Personally, I didn’t like the way the cheese was staring at me the last time I was at Burger King, it made me all paranoid n’ stuff and I almost dropped my tinfoil hat; time to call a lawyer.

OK, so given that this is a gray area, and that this may be moot, anyway, given that this particular suit may or may not actually go to trial (BSI is already asking for donations to a legal fund), what does it all really mean?

First, the issue of restricting such sales and account transfers is always going to be controversial. The online gamers are split about it, coming down on both sides of the issues fairly equally. A good thread to check out in that regards is one at Slashdot . The thread is fairly balanced between pro- and con- sales. I doubt anyone will be convinced to change views (this is close to a religious discussion, after all), but you can find both sides there.

Second, whether you like or dislike such restrictions, there are legitimate customer service reasons not to allow it. This mainly boils down to bunches of emails from jilted buyers who purchased a character or item that was not delivered, or was delivered in a condition other than advertised. Who do you think spends money and man-hours answering these inquiries and rants? Certainly not the good folks at BSI and like companies; these mails get sent to the publisher and take up time and resources. Should companies like BSI be allowed to dictate how customer service resources will be used at Verant, Mythic, EA, Funcom, et al? Of course not. For all that EA and OSI Marketing folks were very open about allowing and even supporting such sales, they didn’t bother to talk to the folks down in the trenches before they announced support, and we cursed them soundly for it. After all, they weren’t the people who had to answer the irate emails from those cheated or shorted in an auction.

Third, most of the players I know could care less one way or the other; they won’t sell their account, characters or items because this makes up who they are in the game world. On the other hand, they’d be tempted to buy items, so see Second, above.

Fourth, if you ask most players or even just browse various forums and newsgroups, you’ll find many players don’t approve of such activity. They consider that it violates the spirit and meaning of the game and would rather it not happen. Plus, allowing it means having to police the game to make sure the cottage industry folks doesn’t take over spawn points for rare items and deny access to legitimate gamers, such as happened in EverQuest and which may have been the reason SOE came down so hard on the practice. This is more than just an inconvenience; in achievement-oriented games, acquiring certain rare items is mandatory to completing quests and missions. If for-profit companies have a vested interested in mining these rare items for sale and in restricting their availability to other players to increase the real-world cash price… you get the picture.

Fifth, this is a perfect example of a time when market forces should determine the viability of products in a niche. If enough people don’t like some restriction, if it ticks them off to the point where they just can’t stand it anymore, they’ll go elsewhere. At present and with several games in competition, the bare evidence would suggest by a score of an estimated 545,000 to 320,000 paying subscribers that the more popular persistent world games feature a no-sell rule. Ok, that’s a somewhat bogus comparison, as it doesn’t attempt to work in first-mover advantage, interface styles, etc., etc., etc., but you get the picture.

Personally, I think the point is moot. If an online game doesn’t hold my attention for a week or two, I just stop playing. There is no character or item that can be purchased to replace the pure joy of playing a game I like to play. For research purposes, I might be tempted to buy a character, if only to save me weeks of leveling up to check out the elder game, but I’d rather earn my way through the process and feel that sense of accomplishment. Look, Maw, that’s me!

Having been an MMORPG player for longer than I like to admit, I suspect a lot of players feel the same way, which is why they get irked by ‘pros’ that camp spawns to prevent them from acquiring the object… oh, and from playing the game, too.

Recent Discussions on Biting the Hand:

jump new