Lucious the Luscious; Sabrina the Sorceress; Paul Philbaum, Crombie, PA, acct.; Rena Tsolitias, adm. asst to Mr. Philbaum; Larry Goldberg, CPA; Crombie, PA. (All names totally fictional, for the purposes of illustration)
 
Maybe your teammates figure out that you’re an accountant, too.  After all, if your friends all go by their real name and you’re simply “Grandmaster G”; you go from part of a club to “that guy”.  No one wants to be “that guy”.  We want to be “that group”.
 
If you opt out when all else are “opting in”, you go from being cool to being an insider trying to be an outsider. More after the jump…

Photo courtesy of Flickr; http://www.flickr.com/photos/katclay/4449231084/, Creative Commons, attribution required.

An outstandingly thought-out article about Blizzard’s plan to use RealID for Starcraft MMO. (From Networkworld)

Another incisive guess (or discovery) from a Harvard law student’s blog about WHY this Blizzard game makes RealID necessary. (Korea?)

A gamer’s blog with a decidedly even-handed description of why RealID is a bad idea. (Epic Slant) My absolute favorite quote, “The internet is full of cowards. These cowards delight in forums and message boards because they can say terrible things with little to no consequence”

A gaming blog’s listing of reasons why it is a good idea, from MMOsite.com, Celkie’s blog. (Total disagreement; but the logic is impeccable, that’s why it’s included)

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Other blogs giving their opinion on the debate, (including an incident with the de-privatization of an executive’s identity, and an about-face by Blizzard[perhaps] on this being a firm rule). These presented without comment.

http://www.gamingunion.net/news/blizzards-community-manager-the-first-victim-of-real-id–2141.html

http://arstechnica.com/gaming/news/2010/07/esrbs-privacy-badge-all-about-best-practices-not-anonymity.ars

http://kotaku.com/5585451/people-complaining-about-blizzards-real-id-have-their-email-addresses-exposed

http://www.digitalsociety.org/2010/07/is-world-of-warcraft-headed-into-privacy-troubles/
 
http://news.bbc.co.uk/2/hi/technology/8806623.stm
 
http://content.usatoday.com/communities/gamehunters/post/2010/07/blizzard-backs-down-from-real-name-requirement-on-its-forums/1
 
http://www.strategyinformer.com/news/8551/battlenet-removes-veil-of-anonymity-on-forums-real-names-used

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Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

An article on Skewed and Reviewed with ECA president Hal Halpin. I’m not familiar with this Website but the article seemed to be balanced and informative.

Nearly a Million X-box users banned from X-box Live, according to an article on Redorbit.com

Excellent article about a Facebook group advocating the Gamer’s Voice

Is Easy Play an Entitlement? asks Game by Night.

Please feel free to contribute any other articles on this subject via comment.

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

Believe it or not, this seemingly simple question is too big for one post. In fact, it covers many, many professionally-written articles in sophisticated law journals. Today, I’m just going to break down the classification of “thievery” so that whatever question you may have in your mind, you can at least narrow the issues.

One distinction of a theft while not being an ingame theft is the “stealing of code”. That is the actual plagiarism, or use without permission, of a piece of code within the game to serve as a part of the engine of another game (without the programmer/publisher’s permission). This is not an actual in-game theft as it is a robbery of the delivery mechanism, the framework of the portrait of the actual game. Although this is actionable in it’s own right, its not a part of this discussion, and definitely can be counted as a non-game theft.

Two articles can hopefully help you make a decision. They are in my opinon, the best written on this subject.

The first article, Competing Lockean Claims to Virtual Property (cite as Harvard Journal of Law and Technology, Vol. 20, 2007) is a very indepth examination of Lockean property theory as applied to the virtual world. Yes, it sounds complicated… but you want your gold back, right? From the excellent summary…”The inquiry above suggests that, if we respect the EULAs of the virtual worlds, users do not have strong claims to virtual property that they may assert against operators. If users wish to marshal Lockean labor-based arguments so as to defeat the EULAs or to protect virtual property rights in worlds that do not prohibit user claims, users will have to confront the competing claims of operators. Operators have strong labor-based claims to the resources of the virtual worlds, and these claims undermine most attempts to justify user rights. Users may have stronger claims than operators to a limited set of products, specifically those produced entirely with unownedraw material — usually code to which operators have no property right. This is the exception, however. Concerning the vast majority of products in virtual worlds, operators have a stronger Lockean claim to virtual property rights than users do.”

Long story short; it’s a lot more the developer’s gold than the player’s gold. But that’s just one way of looking at the problem.

The article entitled “The Magic Circle” (cite as Vanderbilt Journal of Entertainment and Technology Law, 2009 OR Washington & Lee Legal Studies Paper No. 2008-45) details some of the differences between ingame theft and real-world. Fairfield’s article states “Under the old conception of the magic circle, this current state of the law makes no sense: either virtual property is “virtual,” and interests in it are utterly unprotected by law, or it is “real,” and fully protected against all comers. Under the new conception, players in virtual worlds are real, the actions are real, and even the digital objects of their actions are real. Thus, the critical question is not whether the action is real or not, but whether a given act is outside the scope of consent of the players.” His argument centers around the idea that the extent of the consent given by the player determines whether the theft is “permissible”, aka actionable outside the game in a court of law.

To wrap up: we don’t know yet. It is on a case-by-case basis currently, and unfortunately gamer’s rights haven’t been too clearly defined as they are suing (if they choose to sue) against multinational corporations with lawyers on staff. But the very few class-action suits that have been filed show that some gamers are beginning to believe the developers have a duty to defend their property. Only time and the decisions of the courts on these important issues will tell.

I know these papers seem a bit stuffy and maybe a bit of lawyerese. But these aren’t easy decisions for a court, and the choice made by a judge in a game populated by 12-year-olds raising horses for racing might be a lot different than for a massive online game about using your treachery and scheming to conquer the world. Send me your comments about what you think of gold theft… is it legit and people should just stop whining, or is it a plague upon online gaming and the administrators should “get tough” with the rules?

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

There is a very interesting article on The reticule that talks about this concept. Personally, I loved the idea that “The main tenet of their design is not playability but profit and, while this is true of most every game now, they do very little to hide this. The level grind, the uninspired quests, the ludicrously hard boss fights, it all comes together to make you shell out more money for less gratification. In fact, given that most endgames require large groups of players, your input becomes invisible amongst the unbridled throng of spells and people shouting about DPS.”

That article was not alone. A blogger in The Escapist said “the level of mystery around the games industry is still rather shocking. There remains a layer of secrecy cast over everything that goes on in gaming, something we attempt to maintain by keeping the real creators voiceless and trotting out PR men and producers to be the faces of our games, lest anyone catch a glimpse of Oz behind the curtain.”

He notes another key point, “while wholescale rip-offs do occur, the amount of sameness that plagues the games industry is not a result of outright copying – rather, it’s a more insidious process whereby one example becomes law. Only games that look like they will sell will be commissioned; only games that are similar to what’s already out look like they will sell; therefore only games that look like what’s already out there will ever get made.”

And if this leads you to a pessimistic view of the future of gaming, you are not alone. An article in the ominously titled Player vs Developer the writer states “MMORPG’s are not a democracy, and we wouldn’t want them to be – we have seen what happens when you let players make the design choices.” He is commenting on a rather frank quote from a game executive. He brashly states, “We’re not interested in developing under a system where we have to get community buy-off for our decisions. We don’t think that will ultimately lead to a strong design. I don’t mean for that to sound harsh. I’m just trying to steer you away from logic that ends up where we have to justify every decision we make or you can somehow get us to make the decisions you want if you just find the right knobs to turn.”

He is talking about feedback in the gaming industry. Lawyers, customer service professionals, marketing people are used to feedback. But I’m talking about FEEDBACK (all caps intentional). Let me give you a very recent example. Infinity Ward recently announced that Modern Warfare 2 would work not be available on “dedicated servers”.

An article on EL33TOnline says that “an online petition (which has nearly reached 120 000 signatures) seeking to convince Infinity Ward to reconsider the implementation of IWNET for the developer’s upcoming Call of Duty: Modern Warfare 2, and re-allow the running of dedicated servers for the hardcore online crowd, and enable players to run custom game mods, maps, and organise private matches more easily.” If you want to read the specifics about the pros and cons of a dedicated server, read that very interesting article. But for the purposes of this discussion; consider, 100,000 signatures plus in a week about what type of server an online game will run in, “once it is released.” Now that is feedback.

You should consider this article an “awakening call” to those who feel that gamers rights is an emerging field. The game companies are digging in their heels as far as their decisions being law, and maybe the gamers rights consist only of a decision whether or not to buy a game. Or maybe this is a perfectly justifiable decision. Is it a symptom of gamers being “too into their games”, or is it a symptom of a greedy game industry? Or is it somewhere in the middle? Is fairness off limits to being influenced by the players’ decisions, or are game companies too insulated from the millions who make the money for them? As for me, personally, the best sign is that the burgeoning games industry faces parallel questions to the movie industry during each of its difficult growing periods. But that’s another whole discussion. So, reader, should game companies have such absolute control over multiplayer once release has been made? Comments?

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

So does that mean “security” in the sense that the playing field is level? Is that the utmost goal in security you wish?  No cheats, bots, account-sharing (I know that dude hasn’t slept in 3 days, he’s creaming me), gold-buying from third-parties, or mysteriously-appearing floating islands that are incredibly “bought up” before your pathetic little avatar can run on her short legs to get there?  Well? What about second-level?  Does that mean security in the sense that the money you’ve put in your online bank has disappeared?  All your hard-earned dollars transferred to virtual dollars, and then trounced by a virtual run on the virtual bank?  Or the sword that you so carefully saved from your RL savings account is bought, only to see that every Tom, Dick, and Leif from Europe has bought it for half the cost? And now the serious part, third-level?  Have you ever had your credit-card hacked from your online ongoing subscription account?  Have you been overcharged by a 3rd-party goods dealer within the game that took $200 for a $20 scarf (these 3rd-parties are not sanctioned, sorry).  Have you ever gotten an in-game email asking for confidential information?  (It’s not us, we’d never ask for that information… didn’t you read the 14-page EULA that you clicked on?).

           First off, the very basic act of your MMO that you are playing being defrauded.  An interesting article from 2008 talks about how easy it is for some users to defraud MMOs with stolen credit cards, fake user information, and other stolen items. Now you may feel that this is the problem of the MMO alone, but if a substantial percentage of your compatriots on the game are using “other people’s money” to buy virtual goods, upgrade their armor, increase their levels… then where does that leave the honest player?  Exactly.  Does it rise to a legal duty; probably not… but then again from an economic standpoint word gets around and in time your “personal investment” is worthless once the looters have started in on a “vunerable world.”  Another related whitepaper from Information Week (download requires registration) talks about how easy it is for bots, illegal scripts, and unscrupulous characters to overwhelm an online game that is soft on security.

       Secondly,  the example of Entropia being licensed for an in-game bank (in Sweden) may fall in the second AND third category.  If you’ve real money invested, then it could be a real money loss, as well.  There’s another groundbreaking article on How Security Breaches ruin it for all of us  by ruining the illusion of a common playing field.  If you’ve fought the long fight for that “special sword”, and then seen it “reproduced” in a hundred other hands… how does that make you feel?  Is it a security breach, or just a peace of mind breach?

        Thirdly, and probably the only category that will (eventually) bring ground-breaking legal judgments, is the real-world loss of money.  Credit-card thefts, in-game robberies of online banks (with RL assets), these are few and far between.  The only examples I am aware of so far are the Eve bank from last year, and the PSN incident from this year (which really didn’t count because only passwords were compromised, not credit cards).

       The best link I have found so far in keeping up with security issues is Play No Evil  which is written by a security expert, but with the subject of video games.

Jay Moffitt is a TN attorney.  The statements made are not legal advice, and no attorney/client privilege is created.  He claims no certification in the subject matter listed, and TN does not offer certification in this subject matter.  Comments are welcome and will be responded to with courtesy and timeliness. Copyright September 27, 2009.



Copy of the public record lawsuit, Eros v Linden Labs, may be found here.
I know to most followers of virtual worlds a lawsuit within Second Life is not news, it’s a huge world, and it is the most litigious by far of the MMOs. (Massivelly Multiplayer Online games)But this one is a class action by Eros, a company that already has two judgments against other in-game players.

Patent Arcade has a short note about the classification of the interests that are claimed for the lawsuit.
Just a little background; for those of you not familiar with Second Life and its litigious history, you may want to review Virtually Blind.  As a fundamental foundation,  the Terms of Service of Second Life give some limited copyright protection to innovators in its virtual world. Uniquely, the Second Life content is almost all user-created, and thus a climate for disagreement over ownership would and could often become a fact.

Well, on to the alleged facts of the case (and pack a lunch). Eros is a provider within Second Life of certain erotic articles for sale. The complaint lays out how the plaintiff alleges the Defendant, Linden Labs (administrator/owner) of Second Life is not protecting plaintiff’s property rights within the game. (Note in the above paragraph hos Second Life TOS does allow some limited property rights, in distinct contravention to most terms of service in MMOs.) The problem is best summarized in a quote from an incredibly on-point article about virtual worlds:, p. 416 “Where the provider does not enforce the contract against a breaching user, it falls to third-party users who have been harmed to attempt to enforce the breaching user’s agreement with the provider–a contract to which the harmed user is not a party due to the hub and spoke nature of multiple separate user agreements with a single provider.” Risch, Michael, Virtual Third Parties, Santa Clara Computer and High Technology Law Journal, Vol. 25, p. 415, 2009.

So the plaintiff, after having in the past sued its fellow players, has resorted to suing the actual service provider. Is this practical legal advice, or going after the “deep pockets”? Opinions vary.

Massively (Daily News About MMOs) has an indepth interview with the CEO of Eros in which he outlines the various prongs of the lawsuit. Filing in California, it uses certain California state law issues, as well as Lanham Act and Trademark Act infringement allegations. The key part of their allegations state “Despite Linden Lab’s actual knowledge of such widespread activity, it has taken no substantive action to prevent, limit, or prohibit such widespread infringement.”

Gameslaw also devotes a short section to the case. It notes as well that it is a further bringing of real-world law into the virtual world, and references an earlier case that first “pierced the veil” on anonymous game players. I agree with its assertion that the primary legal importance of this is its nature as a class-action against the world administrator, rather than an individual against individual case for infringement.

Metaverse Journal takes a conciliatory view and sides partially with Linden Labs. They quote CEO Alderman of Eros, LLC, as saying that Linden Labs is doing 1.2 million per day in virtual transactions. He states that the problem is systemic.

The last article outlining the case, ironically, is New World Notes, a newspaper within Second Life. According to their information, “previous to his career as a virtual adult content entrepreneur, as he relayed in a recent documentary, Kevin Alderman was a plumber. As Stroker Serpentine, however, according to MediaPost, he’s grossed over $1 million dollars in content sales.) Or to put it another way, if Linden Lab had not managed to develop a successful virtual economy, he would probably not have the money to sue Linden Lab. ”

Just a couple of random tidbits to keep you “in the loop” about the scope of such lawsuits:
Roughly 12 percent of Americans, or more than one in 10, have bought a virtual item at some point in the last 12 months, according to a new (July) study by analyst firm Frank N. Magid Associates and commissioned by virtual currency provider PlaySpan., according to Virtual Economies; and directly from Linden Labs: “Now at nearly USD$50 million each month in user-to-user transactions, the Second Life economy is on an annual run rate of more than a half billion US dollars,” from an article by Virtual World News.

This lawsuit should be of interest both from the class-action standpoint and from the virtual-goods standpoint. It will be focused on by legal scholars for years to come.

Jay Moffitt is a TN attorney. His statements do not constitute legal advice, and no attorney-client relationship is created. Jay Moffitt claims no certification in the subject matter, and TN does not offer a certification in the subject matter. Post copyright September 25, 2009.

The three main avenues are public/peer/media pressure, legislation, and the efforts of game publishers, distributers, retailers, or developers. Today’s discussion is informal and formal pressure from gamer’s rights groups, media outcries, and peer pressure among gamers to force change.

The first I ever heard of a “movement” was when I started writing a professional paper about a gamers’ bill of rights. First quick search, “Gamer’s Bill of Rights”, found something right on point. Another called, “Bill of Player Rights”, with similar though not identical content. And an actual organization calling for the Fight for Gamer’s Rights with the Entertainment Consumers Association (ECA)

In quick order, a midsize software company, a blogger, and a nonprofit organization. So where are the masses rising up to protest the state of PC and online gaming? We’ll talk about legislation later, but for a quick look, go toJoystiq for a listing of significant political legislation in the news the last half-decade.

Why should the game-makers of PC games have an obligation more specifically than console-game makers? It is pointed out by blog The Age that it is an idea whose time has come, specifically because console makers act as “gatekeepers”. The software designers have development kits and minimum standards of playability and honesty in publishing the games, in PC games it is simply “caveat emptor”. The purchaser of software must know their brand of computer, processor type, processor speed, video card type, video card capacity, hard drive remaining space….. and the specs on the box could simply be WRONG. There is no punishment for the publisher for this, most stores will not take even an exchange for a different game…. because the BUYER MUST BEWARE. What other purchase is simply a license? Which? That, my friend, is why gamers simply clamor for their rights, because no other form of merchandise in the consumer world is so narrowly discriminated against as to be prohibited from exchange or refund. This is why the cry for truth in advertising and “specs-on-the-box” is so loud.

The one that lately causes a lot of pressure from industry groups is the “activation” phase of computer software. As pointed out in a great discussion at Glide Underground many software packages now not only require activation from the internet for first play, but require a constant internet connection in order to function. Unfortunately, there is no warning for most software packages, and many of us have one or more computers that we play games on that are not connected to the internet. In fact, many of us have a “stripped-down” machine that is not using resources for networking, instant messaging, just for that reason.

I really, really thought this would be a longer post. Thought I would have so, so many complaints, outrages, consumer organizations to list, that I would have to break this up… no such luck. Let me list just one more really, really great article by Mia Garlick in the Yale Law Journal that outlines rights for the online game player. It is from several years ago, but the principles hold true today, and are relevant for PC games as well.

Here’s a short list of blogs listing their different perspectives on Gamer’s rights:
Beefjack; One listing from China, a very vigorous protest , and a statement by a software company that described how all of their products will comply with the Gamers Bill of Rights.

If there is some conclusion to be drawn, it would be that these “pressure groups” or “online petition groups” are young, but there is a sentiment growing. The difference now from 10 years ago is that the choice you make as far as your online gaming is something you are tied to for years and years, rather than a couple of months. If people are not informed in the beginning about the expectation of the life-span of the online world they are investing hundreds of hours in, or the software they will be playing on their home computer for the next 9-12 months, then people’s displeasure will rise in accordance with the amount of their own lives they have invested.

Jay Moffitt is a TN attorney. This blog does not consitute legal advice, and no attorney-client relationship is established. Jay Moffitt does not claim certification in the subject matter, and no subject matter certification is listed in TN for this subject.