Over the past several years many journalists, game developers and gamers themselves have tried their hand at drawing up a document that definitively catalogs players’ rights. Reactions against DRM, including the recent Amazon review-bomb against Spore, comprise the majority of those arguments currently on the average gamer’s radar, but older documents, including Raph Koster’s Declaration of the Rights of Avatars, have been around for years now. They’re hardly new concepts, but what is new is the force with which some disenfranchised gamers have responded to the perceived infringement of their right to game.
Vigilante Justice
[A] report out of China tells the story of a 41-year-old man who stabbed an acquaintance who stole his “Dragon Saber” in the MMO Legend of Mir III and sold it for approximately $1,000. Initially, the injured individual sought the assistance of the police, but was told that the theft was not a crime, since virtual property is not covered as a protectable asset. Thereafter, the individual attacked the alleged thief at his residence.– Sean F. Kane, “Virtual Property, Real Law”, Settlers of the New Virtual Worlds
The above case is notable not just because of the player’s extreme response to the theft of his sword, but also for the Chinese government’s attention to it. China, like the U.S., has its own share of moral crusaders fearful of the influence of computer games on its youth (perhaps not surprising when you consider the number of deaths that have occurred in direct relation to Chinese gaming). But in this case, because of the player’s initial attempt to seek a legal, nonviolent resolution to his problem, the consequence of gaming activities outside the current structures of law were thrown into sharp focus.
From a game development standpoint, part of the cautionary tale here is the ease with which Legends of Mir could have resolved this situation. Had they created a policy system whereby the player could report the breach of his account and reacquire the missing weapon, this entire incident could have been avoided.
Were they obligated to do so? Of course not. But the inability or unwillingness of current worlds to resolve conflicts like these will inevitably pressure meatspace legal systems to seek resolution for them.
This isn’t necessarily a bad thing. Resolving civil disputes is one of the primary functions of meatspace law. But eventually these incidents will turn the legislative Eye of Sauron upon the online world in question, and maybe even other online worlds with a foothold in that country. Given the stakes (and the fact that, unlike a real sword, a virtual sword can usually be restored with a one-line console command), it doesn’t make much sense from a business perspective to allow incidents like these to happen.
On the other hand, meatspace legal systems will probably eventually need to deal with a person predisposed to lethal violence. But in order to parse the full details of this crime, the legal system needs to analyze the precise causal chain wherein this individual sought (and was denied) lawful recourse. Though there is no justification for the attacker’s actions, there is clear cause and effect at work that can be addressed at an institutional level. This was the case in China; the Chinese court system now defends virtual goods as legitimate property, eligible for grievance resolution through the judicial system.
A common response to situations like this by both Western gamers and developers is “man, China is a weird place.” But the differences between China and the West in this case have more to do with scale than cultural norms. So many people play online games in Asia – and play them so intensely – that social problems in meatspace society inevitably emerge in virtual worlds as well. Richard Bartle is fond of reminding us in the context of massive online games that one in every 100,000 people is a psychopath. (He actually underestimates the figure; the FBI and criminal psychologists estimate it could be closer to one in 100.) Currently 10.7 million people play World of Warcraft. You do the math.
The general consensus, therefore, is that paradigm shifts like the ones that have already occurred in Asia will inevitably come to the West, and with them, the need for legislative scaffolding that keeps us all from killing each other.
Owning the Unownable
China’s decision to recognize virtual property as a protectable asset is noteworthy because of its following decision to mediate directly between the end-users of virtual property without the facilitation of the online service provider. The idea that virtual goods belong to the subscriber represents a major difference between the jurisdiction of the Chinese legal system as opposed to that of the U.S. But China’s response to the Legend of Mir incident could potentially have unintended and widespread effects throughout online worlds and the companies that maintain them.
Most EULAs (end-user license agreements) in the U.S. contain a clause preventing what’s known as “third party jurisdiction.” This means that if I have a grievance against another player in an online world, I can’t sue or attack him or her directly; my contract is only with the service provider. Because there is no direct contract between individuals, an aggrieved player must make a complaint to the service provider, which can then exercise its contractual rights against the offending player. The problem that increasingly arises is that service providers, as many players have experienced, don’t always have the resources to effectively serve as judge, jury and executioner, and they certainly don’t have the massive legal infrastructure to deal with the myriad variations of conflict resolution that governments usually have. Worse still, sometimes the contract between provider and player isn’t always legally fair.
Asia isn’t the only region beginning to protect what most developers still assert doesn’t belong to the player in the first place. In November 2007, a teenager in Amsterdam was arrested for stealing Habbo Hotel furniture valued at approximately $5,500. This sets legal precedent for the ownership of virtual goods that directly contradicts what is expressed in the EULA – how, after all, can you steal and sell something that doesn’t belong to you? If all virtual property belongs to the developer, there should never be a change in ownership. But many court systems are finding (excluding that of the U.S., which has generally avoided this issue so far) that because of the investment of time and money made in the pursuit of virtual goods and the injury that results from their theft, some kind of crime is clearly occurring for which the victims are entitled to resolution and legal mediation.
U.S. companies in particular avoid anything having to do with virtual goods ownership for a variety of reasons, but primarily to prevent the opening of the perceived Pandora’s box of RMT (“real-money transactions,” the trade of virtual goods for actual money). U.S. companies also perceive an erosion of the ownership of their IP if players are granted rights to what they create using the game platform.
Dr. Andreas Lober was one of two legal experts who presented at a session called “Virtual Worlds: Real Disputes Around the World” at this year’s ION Conference. At the time Lober said that Blizzard was on a huge anti-RMT binge, banning thousands of accounts suspected of engaging in RMT. But if the banned individual got a lawyer and wrote a letter to Blizzard, the accounts were almost always reinstated. “They’re enforcing these policies, but they are reluctant to have the EULAs tested in court,” he said. With good reason …
Unconscionable Contracts
Fortunately for gamers and other end-users of software, legal systems generally functions to protect those who become the collateral damage of unfair contracts – as some EULAs have been determined to be.
The most significant recent case in this area, now a household name among virtual law junkies, is Bragg v. Linden. Steve Augustino described the case at the aforementioned “Virtual Worlds: Real Disputes Around the World” presentation. In Second Life, Bragg found a way of buying property at a very cheap rate. Linden determined that it was an exploit and shut him down – banning Bragg’s account, and, Bragg’s lawyer asserted, illegally denying him access to thousands of dollars worth of virtual property. “The main issue,” Augustino said, “was the enforceability of the arbitration clause in the Terms of Service.” What the clause said was that all disputes had to be arbitrated, and they all had to be arbitrated in San Francisco. By California law, this was determined an unconscionable contract. “That’s the legal term,” he said, “that it’s too unfair.”
Linden claimed it was a contract of adhesion, that “there is no negotiation of the individual terms of service.” (“Contract of adhesion” is another of those onerous yet commonplace legal terms in the online space.) “That’s something that weighs against the enforceability of these EULAs. … The court was concerned that the arbitration was too costly, and it was such a deterrent to bringing any kinds of claims against Linden Lab that essentially they could do whatever they wanted.”
The judge decided that this ability to do whatever they wanted to the player – even though the player had, through the EULA, theoretically signed away any right to contest – was unfair. As with any EULA, the company holds the advantage because they write the contract; but if the contract itself is unconscionable, it may be indefensible in court, so companies have to exercise extreme caution not to balance their EULAs too far to their own advantage against the player.
Change Comes to Pixeltown
So what does this have to do with players declaring their rights?
When it comes to DRM, it’s unlikely that a company losing money to piracy (as difficult as that is to gauge) will alter their behavior on the basis their customers’ arbitrary declarations. Bigger fish than any current game company have dominated these waters for some time, employing DRM for limited use licenses, clickwrap agreements and a host of other creative legal responses to the ultimate problem of manufacturing scarcity where none exists. Because a change in a company’s bottom line can be the difference between survival and bankruptcy, the notion of end-user rights may seem like a luxury most cannot afford.
But as the concept of ownership becomes hazier – and companies more insistent on maintaining it by punishing their paying customers in the process – so are end-user rights more worthy of attention as a mass expression of consumer desire. A clickwrap agreement cannot supersede the basic tenets of property ownership. The tighter DRM grasps, the more legitimate customers will turn to piracy or other means of subverting oppressive license agreements. And the further DRM reaches into a consumer’s fair use of a purchased product, the more likely a judge is to support the end-user and not the software company.
What’s clear in all of this – in a field that is about as clear as pea soup – is that these issues aren’t going away. Whether interpreted as a manifestation of player desires, or inalienable rights that form the bedrock of our online pursuit of happiness, these impassioned assertions are proof that games (and gamers) are evolving in fascinating ways. The declaration of rights has never been without conflict in human history. Games are no exception – and the stakes might be higher than you think.
Erin Hoffman is a professional game designer, freelance writer, and hobbyist troublemaker. She moderates Gamewatch.org and fights crime on the streets by night.
