Series Info...Biting The Hand #22:

I 0Wn Y0u, d0Od! Part Deux

by Jessica Mulligan
April 2, 2002

The partisan arguments surrounding the Black Snow Interactive vs. Mythic Entertainment suit grow to religious proportions.

The debate has moved beyond the whole “Hey, I’m just selling as a service the time I took to acquire the object or character, not the actual object or character itself,” which seems to be BSI’s argument (which, to my mind, ignores the license agreement which would seem to specifically forbid this without prior permission). Now the discussion tends to center around whether players ‘own’ the characters they play or whether they are licensing the use of them.

An example given in one of the mailing lists I’m a member of tried to make a distinction between activities that take place outside the game and those that take place inside the game, i.e. a sale that takes place out of the game, but is fulfilled inside the game. Here’s a piece of my response to that:

Your statement also ignores the critical point that persistent, online-only games are both a product *and* a service; they are inextricably linked. You can't use one without the other; without both working in tandem and simultaneously, you have nothing. You can't provide a derivative service without using both the unique property in the game and the unique service associated within it. The unique product(s) are suitable for use *only* within that service, not on the street or in other games by other vendors. You can't sell your 3rd party service without providing someone else's unique, controllable intellectual property through their unique, controllable service and store front. That makes all the difference in the world. This isn't like someone buying a book and then reselling it on the street corner; this is like someone standing at the cash register and offering to fetch books off the shelf for a $5 fee, as long as the potential customer reads the book right there and doesn't leave the store with it. I think the store owner, the author and the publisher would all have something to say about that.

For another analogy: If you buy a rake in my home supply store and then walk door-to-door selling the service of raking the leaves off lawns, that's one thing; I have no say in that and rightly so. However, if you buy a rake in my store, advertise my $5 ball-peen hammers for sale for a $5 service fee, then use the rake to reach up to the higher shelves in my store, pull down the hammers and fulfill your orders in the aisle, bypassing my cash registers, then I have every right to kick you out of my shop and forbid you to ever enter it again. It doesn't matter that you had to expend some time and sweat to get the hammers down off the shelf or that there is a demand for $10 hammers from my patrons; your 'service' depends on both being present at the service I provide by making the store available and the products I make available in that store. Without both of those, used in conjunction, you have no 'service' to sell. At the very least, you need my permission to do it on my property.

Beyond that, the law (in the US, anyway) has firmly established that you have no inalienable right to use my service. I can refuse to serve anyone I wish, as long as I don't refuse based on such individual discriminatory, non-commercial factors as race, gender, religion, creed, sexual orientation, national extraction, marital status, political persuasion, etc.. Nowhere is there a law that I know of that says I have to allow you to use my products and service simply because you've found a way to make money off standing in my store, selling my products. The fact that individual players are allowed to freely transfer items inside the game, within the context of the game, does not open the door to commercial sales. I have a right to set the conditions of sale in my store, not you. If I set a condition that any patron can have a hammer at no cost by personally walking the aisles of my store and touching every other product on the shelves, it doesn't matter that some people like the convenience of you doing it for them and paying you $10 for the hammer; in my store, the condition is that you personally have to do it, not your surrogate. It is irrelevant that you can physically perform the action and the buyers consider it a convenient service to pay you $10 to hang out in Aisle 10 while you complete the walk-through; if I catch you doing it, I have a right to boot you out.

I also have the right to kick anyone out of my store who acquires one of those hammers from you or to confiscate it and put it back on the shelf, especially if they walk around the store bonking my other patrons on the head with them or block access to the hammers by legitimate patrons following the conditions I set in my shop. Or if you are particularly fast at touching all those products and I have patrons lined up around the block waiting for their free hammer, causing me a customer service nightmare, not to mention the expense of laying on more customer service people to handle the load, and the lost sales, broken reputation and the good will I've developed from legitimate customers who can't acquire a hammer under the conditions I've set for my store and go elsewhere.

In other words, any reasonable and responsible person would assume that Black Snow doesn't get to determine how DAoC players access and use the service/store front and intellectual property in conjunction with one another, but rather that the right is reserved to Mythic. Or Verant, or EA or whoever.

And at that point, market forces will determine whether or not it is a good idea to allow it. If publishers that don't allow it experience a significant drop in subscriptions because they don't allow it, they'll rethink the whole proposition.

Every analogy has its flaws, of course, but I think this one holds up fairly well. The point is, when you play online, online game publishers aren’t selling goods, they are licensing use of the game. Make of it what you will. The debate is even getting jingoistic, with some of the few adherents to the “player owns the character, not the company” concept accusing the other side of the argument of being “anti-American.” It shouldn’t be long now before the “Nazi” card is played.

There is another, equally serious issue that needs to be addressed in this situation: the ramifications of what would happen if the courts were, indeed, to rule that the individual MMOG player didn’t just license the use of his/her character and inventory, but owned them outright and could dispose of them as they wished.

It would be the death of for-pay online games, and probably the free ones, too.

The questions such a situation brings to mind are legion. Imagine: If the player owns the character, does that mean the company can’t ever shut down the account? How about if a player is banned for hacking the software, which is unlawful pretty much everywhere? What if that player then buys a second account from BSI and I found out about it? Can I ban the second account, or do I have to let that account stay active? How about if the player acquires an object in the game by exploiting a bug? Can I delete that object, or am I forbidden to do so because it is ‘owned?’ What if the player then sells that ‘bugged’ object to another player?

How about if a player is harassing other players and driving them from the game? Does player ownership forbid me from banning that account, even if the player if costing me customers, bad word of mouth that keeps other potential customers away and some loss of my reputation and good will? What if the player maintains two or three accounts and uses one specifically for this kind of thing? Am I allowed to ban all his accounts, or just the one he is using to harass?

Or how about someone hacking into a personal computer with a Trojan Horse delivered by file attachment through email, stealing someone’s password to a game and then trashing the characters or stealing all the items in the inventory, which happens occasionally in these games? Am I, as the company, now liable to the trashed player for his ‘loss,’ even though I didn’t send the email or have anything to do with the loss? What if it is something as simple as someone exploiting a bug to beat the crap out of my level 44 Warrior until his stats are useless and everything in my inventory has been looted? It took months to build up Jim-Bob the Barbarian and I love him; can I now sue the company for failing to provide reasonable protection against this sort of thing? Can I collect damages for both physical loss and my severe emotional pain?

What about the servers: do they have to be kept functioning as long as one person has a valid account? Closing down the server would cause the ‘owner’ harm, right? Someone might want to buy that account; you never know, and what good is the ‘property’ if the mean old corporation shuts down the servers? If not one player, how about 200 or 500, or at whatever population level it becomes a money-losing exercise to operate the servers? Under this scenario, it doesn’t matter that the company is losing money by continuing to operate the servers; what matters is that some ‘owners’ might want to keep playing, whether it costs the company money or not. Are we going to get into a modern-day version of Atlas Shrugged, where the government passes laws that make an industry unprofitable, then requires that unprofitable industry to continue operation at the expense of the company?

I mean, get real; what company is going to invest upwards of $10 million to build a commercial online game, spend another $5 million marketing it and another $3 to $5 million to launch it, if they have to go through any of that? They won’t, of course, and any for-pay games currently running would be closed down post-haste. Can you imagine LucasArts being willing to let Star Wars: Galaxies go live if it meant losing control over elements of the Star Wars universe? I don’t, and it is ridiculous to believe they would allow it. The free ones will probably be closed, too; what enthusiast is going to risk being required to maintain a free MUD for the rest of his natural life a MUD he or she started as a training or creative exercise? Or opening themselves to potential lawsuits over ownership issues?

And it ignores the other side of the coin; if the character or item is the property of the player, doesn’t that make the player legally accountable for the characters actions? What if someone uses the “N” word in the game; can that player be charged with a hate crime by another player? If a player is following me around in the game and making it impossible for me to enjoy myself, can I sue that player in court for preventing me from using my property as I wish?

Personally, I don’t see the courts ruling this way. Yeah, I know that some strange things have happened in American courts before, but I just don’t see it. The whole “I’m selling my time as a service” issue is bogus in this situation, in my opinion, since end use requires transfer of someone else’s property without their permission and outside the meaning of the license. Just because transfer of game items is allowed within the game, when done within the context of the game, doesn’t automatically open the door for any kind of transfer.

I doubt that will stem the debate. It is enough to make your brain hurt, I tell you.

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