Online Games & The Law, Part Four: Community Rules
by Shannon Appelcline
Last year I wrote a short series of articles concerning legal issues that online game companies should probably know about. I concentrated on intellectual property law in that original series:
I've long had other topics that I wanted to talk about--other areas of the law that you should probably know about, and that I've learned of in my last decade of the work in the gaming field. This week I'm going to cover one of them: community law. In other words, what do you need to worry about when you get a whole bunch of people together, talking? It's more of a legal landmine than you might expect. Specific areas of concern include COPPA, Copyright, and TOSes, each of which I'll cover in this article.
As before, I'm not a lawyer. What follows is my layman's understanding of these legal issues.
COPPA stands for the Children Online Privacy Protection Act. It's a US law that went into effect in April of 2000 and immediately had a chilling effect on online communities. Because of its difficult requirements & stringent penalties, it's one of the first things that you need to worry about if you're creating an online community of any type, and that includes any game.
The whole law can be found here. Basically it says that online sites can't collect personal information from children under 13--which can include basic contact info like an email address--without verifiable parental consent. It also goes further to state ways that web sites must report back to parents about what they've collected, if requested, and makes violating COPPA "a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B))".
The immediate effect of COPPA was to send some children-oriented web sites out of business and to cause many other to institute of minimum age of 13 for participation. At the time that COPPA became a law our minimum age at Skotos was 18, which we've since reduced to 15, so we weren't directly affected. However, because of the high administrative cost of the law, tied with potential dire penalties, we've also decided to steer the safest course, and thus I can't foresee us ever dropping our age requirement at either Skotos or RPGnet under 13.
If we were a children-oriented site COPPA would still cause us huge problems; however as a more adult-oriented site we can presume that our members are not children unless we learn otherwise. When we first talked to a lawyer about COPPA, back in 2000, she said that the best way to ensure compliance was to ask potential members for an age or birthdate in a blank forum (e.g., "fill in the following blank with your age") rather than a simple button (e.g., "I am over 13", "I am under 13"). That's how we've done account creation for our games.
Coupled with this is the legal requirement that if we have a good reason to suspect that someone is under 13 we have to remove their information immediately and/or immediately get parental consent. We opt for the former.
If you do want to allow children under 13 to participate in your site, it's dangerous ground and you probably need to consult with a lawyer to figure out how to bring your site into compliance with COPPA. At a minimum you should make sure that your "verifiable parental consent" is in a permanent form, most likely a signed fax that you've received from the parent. You'll also need to understand enough about the law to make sure you know when you have to respond to parental requests for information and how quickly.
One other note: in actually reading over the COPPA language, it looks to me like it only applies to commercial sites, which apaprently can include even selling banner ads, and that it specifically excludes legal nonprofits. If you're not commercial you might be able to avoid the issue of COPPA, but again it's an area where you probably want to talk to a lawyer to make sure you get it right.
COPPA is one of those classic laws that protects a class of people (here, children under 13) by notably reducing their rights (here, by forcing many web sites to exclude them). Nonetheless, it needs to be one of your first considerations when creating an online community.
One final caveat: no one under the age of 18 can sign binding contracts. They instead can revoke them at any time. Thus, even if you avoid COPPA, allowing people aged 13-18 into your service can be an issue if you really need them to sign any type of contract. At Skotos we require full contracts when players decide to create games, and in those cases we've been forced to disallow people under 18 as a result.
I've already talked about copyright pretty extensively in previous columns. However, when you're setting up a community site you're going to have to think about copyright in some different ways than you normally would. Specifically, you're going to have to figure out how to deal with user-submitted contributions, since that could make up a notable amount of online content (particularly in a user-dominated community, such as a forum).
Licensing Copyright. We found this to be one of our largest challenges at Skotos, since we give members not just the ability to contribute to the forums, but also to contribute real content to games, and even to create their own. As such we introduced the idea of "Participatory Content" which we described as such in our TOS:
Participatory Content. As part of our interactive approach, Skotos provides you with certain opportunities to submit your own ideas, text, graphics, plots, characters, feedback and other materials while you participate in the Games, bulletin boards, chat rooms and other activities in the Site or Services (collectively, "Participatory Content"). By submitting any Participatory Content, you represent and warrant that you are the owner of or have the right to post your Participatory Content, and your Participatory Content does not infringe the rights of any third party. You hereby grant Skotos a perpetual, irrevocable, non-exclusive, sub-licensable, worldwide, royalty-free license to use, reproduce, modify, adapt, publish, distribute, publicly display and perform any and all of your Participatory Content in all media now known or later developed. You, and not Skotos, are entirely responsible for all of your Participatory Content that you upload, post, email or otherwise transmit via the Site, Services or Games.
Our main concern here was that someone couldn't leave the service and say, and I want you to purge everything I've ever created in the game. In addition, because we're a commercial company, and thus we could someday have to think about a merger or a buy-out, we had to make sure we owned a full license to all our content; thus Participatory Content.
(We also recognize a second type of content, called Public Content, which is stuff that's less integral to our games, and which a user can revoke our rights to if they wanted; it's primarily for when they create their own web pages, their own games, etc.)
A non-commercial oriented company might make use of a more open license, such as Creative Commons, which I've previously discussed. This is exactly what we did over at RPGnet when we recently introduced a Wiki under the by-sa Creative Commons license. We have rights to make use of the material, even commercially, but so does everyone else.
Collection Copyright. Another aspect of copyright law of particular note to community creators is "collection copyright". Basically, this says that even if you don't copyright the individual elements of a collection, you can still copyright the whole.
For example, you may not claim copyright on the individual posts on a bulletin board, but you can still claim copyright on how they're all put together, and thus if someone tries to exactly duplicate your forum, they're violating your copyright.
Phone books used to claim this type of copyright but that protection fell in Feist Publications v. Rural Telephone Service (1991). The courts said that collections must be creative, which a phone directory was not. Publishers are still trying to get around this ruling by hiding behind various WTO-related tricks. Short story collections are a more clear example of what is currently allowed as a collection copyright.
Safe Harbors. Of course the danger of accepting original content from your members is that they might submit material which violates someone else's copyright (or trademark or patent or whatever). Fortunately this is one of the few places where modern governments have gotten IP law right.
The Digital Millennium Copyright Act is the main copyright law that you'll need to deal with if you're an online game company operating out of the United States. It includes a Safe Harbor for ISPs in copyright violations.
The Wikipedia article that I linked to has an excellent overview. Basically, you can qualify for the safe harbor if you don't know what material your users are submitting to your community (meaning that you don't do any type of pre-editing or approval) and if you take down infringing material if you're told by a copyright holder that it's infringing (and the holder actually includes all the information required by the DMCA, which apparently most take-down requests don't). You also need to register an official contact with the copyright office.
I've talked about a couple of important legal considerations for online games (or for online communities of any type). However, they all come together in one critical document: your Terms of Service (or TOS).
Theoretically a TOS is the document that defines the terms which a user should understand and agree to before he uses your web site. It's essentially a license. Practically most users don't read most TOSes, and instead a TOS serves as a legal shield for you, the community owner.
Overall, you should make sure that a TOS serves both purposes.
First, make sure it includes a list of all the dos and don'ts of your community. Even if it isn't immediately read it'll be a great reference later.
Second, make sure that your TOS contains all of the legalistic issues related to your web site. This should include everything I've talked about here, including age issues and copyright issues. It should include a statement that service can be terminated at your discretion, so that you don't end up in a legal dispute as to whether someone violated a TOS or not. In this era where virtual property is becoming increasingly valuable, it should also include a statement that you're not responsible for the loss of the same, as we all know that machines go down somtimes. It also needs to include a lot of stupid legal disclaimers so that you don't end up responsible for anything you shouldn't be.
Looking at the Skotos TOS, here's what it contains: definitions (s.1); age requirement (s.2); access requirements, a/k/a we don't pay for your web access (s.3); registration requirements (s.4); clear statement of license (s.5); user restrictions, which is what will be important to most players (s.6); content info, including copyright agreements, a statement of game rating, and that we don't control content of remote sites (s.7); idea submission policy, which is again about IP (s.8); account liability notice (s.9); privacy notes (s.10); charges for services (s.12); international CYA (s.13); we own Skotos not you (s.14); disclaimers, limitations, and other CYAs (s.15-18); termination at any time (s.19); how to ammend this TOS (s.20); etc.
A lot of that is legal ridiculousness, but unfortunately the sort of thing that you need in our current overly legalistic society. We had a lawyer draft the first version of this TOS, and I think that's an absolute requirement if you're going to be at all serious in creating an online community.
Ultimately your TOS is going to be a two-step process. First, you fill in a lot of the blanks that I've discussed here about copyright and usage. Then your attorney does the rest.
As with any area in our modern society, there are legal issues that need to be dealt with in the creation of any online community. You'll need to personally make sure that you're complying with COPPA and you'll also need to figure out how you want to resolve community copyright issues. You can probably do both of these on your own (unless you're specifically a child-oriented game, in which case you'll need help on COPPA). After that, however, when you put together your initial TOS you'll need help from a lawyer.
Such is life.
I've got at least a few other topics that I want to cover on the legal side of games, including privacy, libel, slander, and worker issues. We'll get back to them in some future column.