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Quick commentary.  I don’t recall a lawsuit of this type being successful.  Maybe my readers can update my knowledge.  But one of the compelling arguments, the “real estate” argument, does remind one that in property law there is “real property” law and then all the other types of law.  I’m not going to get into that (RE law being one of the reasons I’m a big-city and not a small-town lawyer), but I’m interested in seeing how this lawsuit rolls out.  Read the complaint and I’ll be really looking forward to seeing if any of my readers think it is different than the previous ones, or if this one may be successful.

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.

A full story from PC Mag says report claims adult content still viewable by children, despite precautions. Notably, “It is far too easy for children and young teens to access explicit content in some of these virtual worlds,” FTC Chairman Jon Leibowitz said in a statement. ”

One short thing to note in the virtual worlds’ defense, in the reports’ Footnote 26: “In visiting each online virtual world studied, the Commission’s researchers did not put themselves in 45. the place of an average virtual world user. Instead, the researchers were specifically instructed to search for as many different types of explicit content as possible in the time allotted, performing key word searches using explicit terms, looking for explicitly-themed discussion forums and chat rooms, and observing explicit avatar chat.” I only have an opinion as an attorney, not a researcher, but that kind of testing would seem much beyond the pale of unbiased researcher and would go towards “ghost hunting”(i.e. if you go looking for ghosts you’re going to find them).

From Ypulse, a Website focused on youth worlds, “The FTC report brings to light the challenges facing companies trying to cash in on the virtual world phenomenon.Unlike traditional pre-packaged products, online virtual worlds are driven partially (and sometimes primarily) by user-generated content.”

A family-friendly Website, Netfamily news says “This is a great start. As purely user-driven media, virtual worlds are a frontier for research on online behavior.”

A social games Website article notes “Given important First Amendment considerations, the Commission supports virtual world operators’ self-regulatory efforts to implement these recommendations.”

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Here is a representative sample of the many Websites attacking the content or methodology of the Study.

Ars Technicais critical of the FTC study. It says “That’s on top of the fact that the biggest threat to kids online is… other kids. According to a 2009 report by Harvard’s Berkman Center for Internet and Society, the percentage of children being sexually targeted by adults online is very low compared to kids targeting other kids

Massively (features on Massive Multiplayer Online games) reported the results were to be expected. They pointed out ” some elements of the study’s methodology are a bit questionable, especially as their list of explicit material included words common to anyone with a history of playing video games. (Or cable television.)”

PlayNoEvil, predomimnatly a developer and security Website, talks about the difficulty of the type of age verification proposed in the government report. ” One suggestion that is solid is to use an “Age Neutral” request for a new user’s age – e.g. “Enter your birthdate” rather than “Are you under 13″.The other is to tag a computer as being used by a minor if they try to login again with a different age.”

A difficulty that’s not discussed is online access through simple devices, Nintendo DSi, Iphones, and other platforms that aren’t really computers but allow net acess. I would predict that to be a “hot point” of the next government report following up on this report.

Last note: one recommendation by the report would seem to be unanimous to both sides of the argument. “The report recommends that parents and children become better educated about online virtual worlds, and affirms the FTC’s commitment to ensuring that parents have the informationthey need to make informed choices. A consumer alert, Virtual Worlds and Kids: Mapping the Risks, is available at www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt038.shtm.

As always; a couple of intellectual discussions which further the brief discussion above, for those wishing to inform themselves:

Protecting Children in Virtual Worlds, cited as Protecting Children in Virtual Worlds Without Undermining Their Economic, Educational and Social Benefits, Benjamin Duranske, Pillsbury Winthrop LLP, Robert J. Bloomfield, Cornell University – Samuel Curtis Johnson Graduate School of Management, October 13, 2009
Washington and Lee Law Review, Vol. 66, 2009

Social Networking and Age Verification, cite as Thierer, Adam D., Social Networking and Age Verification: Many Hard Questions; No Easy Solutions (March 21, 2007). Progress & Freedom Foundation Progress on Point Paper No. 14.5. Available at SSRN: http://ssrn.com/abstract=976936

A related but interestingly similar argument: a Supreme Court case related to delivery of another contraband, tobacco products, to a minor, and the expectation that online delivery measure up to the standards of actual in-person delivery of product.

I encourage comments upon this topic, pro or con, as I consider this one of the most important issues facing online games.

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.

To me the biggest single question in the analysis. Every question in this division (and I say it is a FIRM DIVIDE, or FD) should focus first on that question. The article is great, you should read it, allow me to be egotistical enough to give my thoughts on a couple of outstanding points in the article.

“First, because the characteristics of online spaces and online conduct will often make it inappropriate to apply the rules governing “similar” conduct offline.” That’s why every videogame lawsuit, or every virtual worlds lawsuit, should clearly delineate that there SHOULD BE AND MUST BE a recognition of that gulf between real-world conduct and “in-world” conduct (what I will refer to forever as IWC)

“Second, thinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents.” My friends in the legal community know I personally get enraged when this is not a primary question. Jurisdiction. It influences which law will apply, where it will go to court, which locality has a claim to “community standards” as is so important in U.S. constitutional law, and also crucial in non-U.S. law.

To me the best part of the article is the authors reach a conclusion or at least a mission statement. “Sovereigns should allow their citizens who wish to travel to online spaces and, while there, to be governed by the rules applicable there, provided that those rules don’t allow the online spaces to become havens for actions causing substantial harm to outsiders.” That seems a very worthwhile goal and perhaps one that can be universally agreed upon.

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The reason this article is so important at this time is that Call of Duty, Modern Warfare 2 came out this week and made $310 million the first 24 hours.

The story in the NY Daily News said in the first line “A bloody video game made more money in one day than any movie ever has.” In fact, “the largest opening in movie history was Warner Brothers’ “The Dark Knight,” which grossed a measly $158.3million over its first three days.”

For an opposing viewpoint to purchasing the game, read Opposition: an Army of Women. Personally, I hope the article was written at least partially as sarcasm.

And finally, the quote: “Go Big Or Go Home!”. Why? Well, this game made headlines, but consider these facts.
In 2008, Videogame Sales topped 21 billion. Full story from Reuters.

Contrast that to films. Last year, according to the MPAA, “The worldwide box office revenues increased by 5.2 per cent in 2008, reaching an all-time high of $28.1 billion.”

I think you would agree that the two main forms of entertainment are becoming very close in popularity. But can you name a single voice actor from Halo? What about the illustrator/developer for the Mario games? Who is the producer for the Playstation Network? I believe, as do many industry insiders, that gamers rights is a clarion call that many are starting to hear, and that games are becoming more popular because developers are responsive to the needs of their gamer buyers. Is that why the industry is growing so quickly? Or is the lack of this a reason it is not growing even faster? From a legal standpoint, what do you feel will be next “cause” litigated in the courts? Identity theft? Rights to participate in forums? Virtual property theft? Shutdown of longtime games you’ve invested time in money in?

I hope you feel free to comment on these topics. I will reply as quickly as I can to any and all 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.

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.

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.