Gamers Rights Law » virtual worlds

New lawsuits update

jaymoffitt — Tue, 04 May 2010 05:19:14 +0000

Infinity Ward Developers sue Activision (for unpaid royalties)

From Lawsuits and Settlements Web site (talking about the California state law factor) ; and story from the Vancouver Sun.

A slightly different take…The Lawsuit and Public Relations, from Gamasutra. Other lawsuits, after the jump….

Linden Lab “land-owners” sue for the change in Terms of Service over the years

In California… AGAIN… article here at this online mag.

The story from Virtual Worlds News… ; From the Los Angeles Times Business blog; the always dependable Massively

Linux Users sue for loss of that capability on PS3 (via the latest PSN update “killing” any Linux installation).

Gamespot article here….; and from Kotaku.

All of these lawsuits are very complicated, and interesting, and I hope to discuss them in full, at a later date.

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.

Update on articles about virtual worlds

jaymoffitt — Mon, 08 Feb 2010 16:35:45 +0000

I am currently “shopping around” for online and local forums that would like to hear me speak about Gamer’s Rights and how it is changing the conceptions of license agreements and forums rules.

Meanwhile, today’s post centers on the great work that other lawyer-bloggers are doing, as well as a few professional papers I recommend you MUST read.

The one you absolutely must study is The Global EULA, by the lawyers at Sheppard Mullin. I really felt like breaking down the article or doing my own synopsis, but instead, go there, read it, consider it. Beautifully done.

Other great articles I have found after the jump……

Recently I posted about the separation of work and play. Great article about hiring practices entitled “Facebook and Privacy” in the Minneapolis Tribune. It discusses pre-employment checks of Facebook pages by employers. My favorite quote: “35 percent found something that caused them to not hire the candidate.” In my mind this is a soon-to-be-exploding area of practice, based on disappointed job-seekers.

Mumbo Jumbo games won a victory over casual game-manufacturer Popcap Games in a lawsuit. Here is the link to the original complaint, (via Courthouse News), and the full story on Gamer/Law(UK). (note: I read almost a dozen summaries of the case, and this British one was the best by far). My favorite quote: “a jury… agreed that PopCap breached the contract when it went behind MumboJumbo’s back and decided to market and sell its games on its own.” (from the MumboJumbo PRNewswire Story). Popcap vehemently denies the claim, and by all indications may choose to appeal.

Yale School of Medicine receives a large grant to make a vide0-game/simulation for children 9-14. Full story here… usually I would save this for my education/grants posting, but $3.9 million is just too large a number to postpone posting this, it is reportedly a game to teach children how to avoid HIV-causing behaviors(sex/drugs/alcohol). Follow-ups posted here as the national news catches up.

As far as important scholarly papers go, I would like to mention The Fair Labor Standards Act in Cyberspace. Please cite as Cherry, Miriam A., Working for (Virtually) Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace (November 4, 2009). Alabama Law Review, Vol. 60, No. 5, pp. 1077-1110, 2009. Available at SSRN: http://ssrn.com/abstract=1499823.

Lump of Coal(for some MMOs)

jaymoffitt — Tue, 22 Dec 2009 22:55:34 +0000

This is the best definition of “Griefing” that I have found. Buy Mortal Gold calls it ” the act of chronically causing grief to other members of an online community, or rather, intentionally disrupting the immersion of another player in their gameplay.”

There aren’t any lawsuits for griefing, or glitches, or general screwball hatefulness that goes on in MMOs or online worlds. But I’m always taking emails if you’ve found one or know of one. Here’s a list of the different types of Griefing articles I’ve found lately.

Pixels and Policy has a very interesting article about antisocial gaming.

Ten Ton Hammer discussesThe Seven Types of Spies, Like the Seven Habits of Highly Successful People, but for internet sociopaths.

Play No Evil discusses the Ten Ton Hammer article along with its own persepctive on dissension.

Not quite an other-gamer issue with fun, but a game-based complaint. The blog In Between the RPG has a great article about the disappointment of an MMO. Not a rant, but a thoughtfully written interesting article that you should read for perspective and hopefully your feedback on your disappointments of the past year.

Offline play really stinks in the MMO world(From Anyway Games Blog).

Griefing for Academia; Univ. of Loyola professor reviled in City of Heroes Older article, but still one of the best in-depth pieces on Griefing. And ironically, it’s told from the “Griefer’s” Standpoint.

And finally, a currently hilarious article in Destructoid Magazine about The Five Stages of Griefing.

Lost Garden discusses Games as Government, the surrogacy that each online world must project and administer.

More serious lumps of coal:

Metaplace is closing down. Official letter can be found here. Key points, ” over the last few months it has become apparent that Metaplace as a consumer UGC service is not gaining enough traction to be a viable product, requiring a strategic shift for our company. We’re sorry to announce today that Metaplace.com will be closing to the public at 11:59pm on January 1st, 2010. ”

Personal note: I have an account on Metaplace.com, and I also subscribe to Raph Koster’s blog (for about 2 years). I love open-form MMOs/Games (no rules) and it’s a shame to see it close.

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Below the fold, the indepth viewpoints:

An Avatar’s Day in Court: A Proposal for Obtaining Relief and Resolving Disputes in Virtual World Games
by Farnaz Alemi, cite as 2007 UCLA J.L. & Tech. 6. You really should read this to see her suggestions on alternative in-game courts sytems for expedited relief.

Virtual Parentalism: (In a way criticizing too much energy used on becoming a “virtual parent” instead of a games publisher/administrator). Cite as Fairfield, Joshua, Virtual Parentalism (September 30, 2009). Washington & Lee Legal Studies Paper No. 2009-08. Available at SSRN: http://ssrn.com/abstract=1480701

As always, any suggestions, comments, or ideas for upcoming articles are welcome.

Your avatar and your identity?

jaymoffitt — Fri, 20 Nov 2009 04:14:07 +0000

A lot of thoughts lately from various sites about the role of your avatar and your identity.

From Pixels and Policy, a great article about the attractiveness of avatars, and how it influences your popularity in virtual worlds.

From a site focusing on gender, gender equality, and other issues, a great article entitled “Real World Beauty Pressures in Second Life.”

A great article on body-concept in Second Life, with a long string of comments.

And another worry (or perhaps laugh?), Virtual Worlds Forum reports that gender swaps are common for online gaming. A tongue-in-cheek article in the Guardian claims to have a reasoning as to why men play as a female avatar in online games. As a related worrying development, it is rumored some games may have gender self-identification systems in the game, article at Destructoid; warning, probably NSFW.

Now I will probably cover these topics a little more as cases are filed, but for now it is probably someone will at some point declare that this would be none of the game publisher’s business, or some player might declare that this is “shocking, just shocking.”

Visually-impaired gamer sues Sony

jaymoffitt — Wed, 11 Nov 2009 14:06:34 +0000

Sony is being sued again, this time it is a visually-impaired gamer who does not feel he is getting proper support from the gaming company. You can also read a report at Gamepolitics.Here are a couple of articles with different viewpoints of the case.

From the Website Ablegamers (for challenged gamers of all types)

This comment on Gamertell thinks it may be a bit frivolous…

Just a personal note: a gaming environment is an ideal environment for people with challenges of all types to lift themselves up and gain valuable experience in life and also in work environments.

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Here are some representative articles covering the same subject.

Please read this article in the Jerusalem Post about the “White Cane” for a blind person. The most remarkable quote about the software is “Users can can feel tension beneath their fingertips through the joystick as they navigate around a virtual environment. The joystick stiffens when the user meets a virtual wall or barrier.”

Audio game maker is The Audio Game Maker is “part of Game Accessibility.com, a series of activities conducted by the Accessibility foundation in order to improve the accessibility of computer games for players with impairments.”

Gaming with a Physical Disability (Blindness)

From Metaverse Journal, an article about amputees and gaming.

A very good Journal article (beware, large pdf) which talks about health issues in Second Life and other virtual worlds. The top 5 groups that were found were

(1) Support for Healing 899 members (Mental health and other issues)
(2) Transgender Resource Center 845 members (Gender identity issues.)
(3) Positive Mental Health 763 members
(4) Wheelies 565 members. (Disabilities themed nightclub.)
(5) Depression Support Group 427 members issues.

And some Second Life links to groups for individuals challenged in different ways.

Second Life for the Visually Impaired
Alternate viewers (that may assist the visually impaired, as well as others).. be sure to check the Second Life blog to make certain the viewer is allowable under their Terms of Service.
Second Life accessibility hasn’t been updated in a while but the links page is great.

I’d invite any SL’ers reading this column to contribute their group relevant to this discussion in the comments.

Developers Corner (Facebook Social games and fraud)

jaymoffitt — Mon, 09 Nov 2009 13:30:02 +0000

Facebook is facing up to the veiled and sometimes direct accusations of fraud and deception in some of their games.

Here is the response from the Facebook developer’s blog. The main notable quote for me is that “In addition to steps we’ve taken to build teams and technologies devoted to this issue and continual outreach to work with members of the ecosystem on ways to improve their practices, it is the responsibility of both developers and ad networks to make sure the content running in third-party applications is appropriate.” Also surprising to some people might be that ” more than 70% of our(Facebook) 300 million active users engage with applications each month.” There’s a lot more in the article and if you use Facebook and use applications in Facebook you should read the article.

The whispering that started and turned into a roar is from an article by Techcrunch. Besides the tabloid-worthy headline, the story tells of the many complaints now being received about some applications in Facebook. From the story, “Major media can’t stop applauding the companies long enough to understand what’s really going on with these games. The real story isn’t the business success of these startups. It’s the completely unethical way that they are going about achieving that success.”

The story continues to tell of the different ways that consumers are deceived. It says, “Zynga may be spending $50 million a year on Facebook advertising alone, fueled partially by lead gen scams. Wonder how Facebook got to profitability way ahead of schedule? It was a surge in this kind of advertising. The money looks clean – it’s from Zynga, Playfish, Playdom and others. But a large portion of it is coming from users who’ve been tricked into one scam or another.”

You should read through the full list of accusations to see if you believe it holds water. The question of course is, who is responsible, Facebook, the developers, or the advertising networks? Just a little note regarding “they should be checking it” statements… if you look at TV programs that have the disclaimer, “This is a commercial programs and the programmer and the network has not responsibility”…. these came about because at some time in the past someone did think “If it’s on TV, it must be OK.” Its getting to the point Facebook has to look at the number of people who are saying (rightly or foolishly) “if it’s on Facebook it has to be OK.”

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Here are some other stories along similar lines.

An article from Pixels and Policy about “Cybercrime booms in the Virtual World”. One of the best points “With no standardization between worlds, there is no way of knowing whether one source is making and cashing out Linden Dollars, Warcraft Gold, or any other in-game currency. This makes tracking accusations of money laundering extremely difficult.” It’s a wide-ranging article discussing potential fraud ranging from money-laundering to identity theft to even terrorism. Well worth your time if you have any interest at all in the subject.

Here is an older, yet very well read article about Second Life. Its been attacked by many in SL, but it raises some very cogent viewpoints about attempts to make money in a market unregulated by monetary police. My favorite quote is ” Put simply, you can seldom trust those with whom you’re doing business in SecondLife. Even supposedly well established, well regarded business citizens are prone to defaulting on any obligations which prove inconvenient. Whole banks will disappear over night, along with your L$ (LindenLabdollars) balance.”

And as in any self-respecting article about cybercrime, I MUST, I SIMPLY MUST say something about jurisdiction. In the article “Cybercrime leaves Cybercops in the Dust” it is discussing jurisdictional issues and other complications. The article states “Online fraud perpetrators are also finding clever ways to launder their money, using non-bank payment services, such as e-gold, to make it harder for investigators to “follow the money.” They also set up accounts with their proceeds and have associates in another part of the world withdraw the money as profit or reinvest it in other criminal activities or spam campaigns.” There’s also some fairly depressing statements in the article, which echo advice I have to unfortunately give out to many prospective clients with small (but large to them) losses in online arenas. “In the courts, where penalties are traditionally imposed based on damages, the extent of damage caused by cybercrime is hard to assess, and it’s tough to get victims involved. Individuals often don’t realize what’s happened, and businesses — breach disclosure laws notwithstanding — are generally reluctant to go to court.”

So apparently, the losses are much larger than reported, as the damage to a business’ reputation, well, they perceive that to be a bigger hit than any possible reward by taking the matter to court. As a lawyer focused on this type of case, I’m hoping that this will change.

3 for the B

#1 Know who you’re dealing with. If it’s a brick-and-mortar company, there’s always somewhere to complain to. But if you are paying real-life (or even simulated) dollars, have a backup physical address when you’re dealing with large transactions.

#2 Don’t react slowly. Note everything down while it’s fresh in your mind, complain profusely and even annoyingly to any and all authorities, and then keep these emails in a dedicated folder for this particular issue. Use dates, names, tracking numbers, all these resources in your complaints as you will have difficulty tracking that down later should it ever reach the point of going to court.

#3 Do not, ever, take what “they” say for granted. 5 years ago, domain name theft or trademark hijacking were rampant and “they” said it was a cost of doing business. Now, there are dozens of cases that indisputedly show a trademark may be used as a basis for recovering a domain name if certain things are proven. Don’t believe that it is hopeless, document like there’s no tomorrow and then protect your rights in any and all ways possible.

Stop, Thief

jaymoffitt — Sat, 07 Nov 2009 00:01:34 +0000

Someone stole my gold! Can I sue them? Number 1 question I see and hear about virtual property. Number 1 Answer, it depends!

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?

October links

jaymoffitt — Fri, 30 Oct 2009 16:07:40 +0000

October Roundup

Part I: Important Papers

Journal of Virtual Worlds Research; don’t make me pick just one article.
If you were to FORCE me to, though, check out Piracy vs. Control: Models of Virtual World Governance and Their Impact on Player and User Experience, Melissa de Zwart, University of South Australia. It follows the extremely relevant question of what if the control of virtual worlds is too much; let the players play! Read the whole article, it makes great points and raises good questions.

Protecting Children in Virtual Worlds Without Undermining Their Economic, Educational, and Social Benefits, by Robert J Bloomfield, Benjamin Duranske; in Washington and Lee Law Review, Vol. 66, 2009. It covers the latest regulations and of course the “balancing act” between fun and societal control. My favorite quote, “As children spend more of their time in virtual worlds—for endeavors like work, education, and engagement with social, cultural and civic affairs— they are bound to find opportunities to develop romantic attachments that carry our society to the next generation.” It has many facets of the regulations protecting children, and wisely does not just focus on the more salacious aspects, as a mainstream media article often does.

And outside the States, but still important, Virtual Consumption OK, I admit I’ve just skimmed it, but it is longer than Catcher in the Rye (248 pages). It’s meticulously written, and with a detailed table of contents, so this is a good primer for why real people buy virtual goods. Citation listed as Vili Lehdonvirta (2009). Virtual Consumption. Publications of the Turku School of Economics, A-11:2009, Turku.

Part II Important posts I found this month that couldn’t fit a definite topic:

Iowa State Study finds high volume video gamers have more difficulty staying attentive. A study relating ADD and high volume video game players.

Born to Rhun is a great thought piece about mods, developers, and Tolkien’s Middle Earth. And it is also focused on one of my favorite underrated topics concerning games; FUN!

AR Wave: Layers and Channels of Social Augmented Experiences; great article and interview. My favorite quote is “Having these invisible aspects of the world made visible would create ways to improve sustainability, social equity, urban management, energy efficiency, public health, and allow communities to understand and become active participants in the ecosystems and infrastructure of their neighborhoods.” It seems a very good goal, but is Google, and the rest of the augmented reality industry, further marginalizing the contributions or opinions of those not plugged in to the internet?

5 Ways to Know You’re in a Virtual World

Sociology and Virtual Worlds, talking about digital anthropology.

Part III: Cool tools

Frenzoo is a new free avatar creator that can be customized, a little cooler than any I’ve seen.

Game Crafters (Like Cafe Press, except for Board Game ideas)

This is a tool to get copyright info for photo citations.

Free to Play Model (Developer’s Corner)

jaymoffitt — Tue, 20 Oct 2009 18:22:38 +0000

Free to play is the newest model for income-producing games. Here are some authoritative articles to help familiarize you with this new game model. No cases, since free-to-play is so new, especially to the North American model.

Game design as marketing: How game mechanics create demand for virtual goods, download link: Cite as: Int. Journal of Business Science and Applied Management, Volume 5, Issue 1, 2010, Juho Hamari and Vili Lehdonvirta

The most notable quote, “they also suggest a radically new perspective to marketers of ordinary goods and services: viewing marketing as a form of game design”.

“Conclusion: Based on the findings, we assert that game designers, by creating and modifying the rules and mechanics of the game, SNS or other online hangout, have an essential, but sometimes unrecognised role in planning the marketing of virtual goods.”

Here is an oldie but a classic of game design: I Have No Words & I Must Design:Toward a Critical Vocabulary for Games, by Greg Costikyan.

A notable thought is “A game’s structure creates its own meanings. The meaning grows out of the structure; it is caused by the structure; it is endogenous to the structure.” The article is worthy of a full read, but for my purpose let me give you his conclusion. “But your changes of getting that beautiful, wonderful, superb game will be much higher if you begin with intentionality, begin by thinking about the experiences you want your players to have, understand what makes a game, and understand what pleasures people find in them.”

This is the best article I’ve found by far about a detailed model for free-to-play. It is by Matthew Warneford, permission granted to share. (By the way, you should read some of his other ideas, too).

Free-to-play on Apple’s Iphone?

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And a couple of dissenting voices, and warnings of challenges, amid all this harmony.

Top 10 free to play growth killers

The Power of Free to Play: a recap of Adrian Crook’s presentation at the GDC (Gamer Development Conference) Most importantly, he notes the pink elephant in the room. “First, there are virtual property challenges. At some point that’s going to be decided by the courts.”

Shuttering Free-to-Play Servers Most shocking quote; “Nexon is pulling its disappointing ZerA and taking an unexpected road: repaying the people who purchased virtual items for real money”

MMO billing headaches, covering billing issues of free-to-play versus subscription based games.
The most important quote about the metrics of free-to-play is “And although it is much more difficult to calculate the average customer’s lifetime value using this model, Hoffman points out another way to measure the financial success of a free-to-play game.”"Another good approximation of the revenue success of a FTP model is charting the growth in average revenue per player, per month -– this would also account for the players who pay nothing,” he says.”

Finally, some notes about free-to-play from Asian, and also European markets, where free-to-play is more prevalent because of more extensively implemented broadband networks (among other factors).

Download link: Game Design on Item-selling Based Payment Model in Korean Online Games Gyuhwan Oh and Taiyoung Ryu Situated Play, Proceedings of DiGRA 2007 Conference © 2007 Authors & Digital Games Research Association (DiGRA)

The most surprising and important quote, “Finally, we discuss game design issues to efficiently accommodate item-selling based payment model in online games: how to balance betweenitems obtained by game-money and items purchased by realmoney, how to abstract the function of such items, and how to strength events and communities.”

A great slideshow (and transcript) about the European model of free-to-play games

Virtual worlds for Education

jaymoffitt — Sat, 17 Oct 2009 14:01:18 +0000

A good starting point for understanding Virtual Worlds in Education is this NPR interview that is found at Gamepolitics.

The funding money is beginning to be there. It was recently announced that the University of Texas will be using 16 disciplines in Second Life. The details are that “A new, one-year project will set the bar for virtual educational tools as the University of Texas brings 16 campuses into the Second Life world with its Transforming Undergraduate Education system. This plan by researcher and educator Dr. Leslie Jarmon (SL: Bluewave Ogee), recently received a grant to fund the project for a year.” The Linden Lab press release claims “the first statewide rollout of a virtual learning environment in the world.” The release continues to describe the environment as “the initiation of a pioneering statewide virtual learning community of students, faculty, researchers and administrators in Second Life, that offers an innovative, low-cost approach to undergraduate instruction”.

Comments?

Here are some other groundbreaking educational uses for virtual worlds

Autism resources in Virtual Worlds

Swine Flu in Virtual Worlds; Swine Flu Game

QWag changes name to Teleplace; has interactive technology and database integration

US Government resources in Second Life; including Medical resources

Jay Moffitt is a TN attorney. The statements here are not legal advice, and no attorney/client relationship is created. Jay Moffitt claims no certification in this specialty, and TN does not offer a certification in this area of law. Copyright, Jay Moffitt, 2009. Comments are welcomed and will be answered promptly and courteously.