[MUD-Dev] BIZ: Who owns my sword?

Ren Reynolds ren at aldermangroup.com
Fri Oct 3 22:41:52 New Zealand Daylight Time 2003


Amanda

First off let me re-state that I am not arguing that virtual items
or avatars should be property. All I'm doing at the moment is trying
to see how current laws apply to them. Where I started was looking
at the applicability of copyright.

Currently I think that copyright is probably held by a games company
by virtue of the rules about collections - though I think this is
still a little grey because of nature of the legal tests and whether
'collection' applies only to the database in total and not a part
i.e.  an avatar or item.

However I'm not sure that copyright gives a games company the right
to prevent buying and selling of these things. In conversations I
have had about this people have suggested that it does not and that
these transaction would he held valid under the notion of 'private
ordering'.

What laws we should have is a very different matter. My position on
that is that I think we should build the laws for items and avatars
(separately) based on the values that we hold in respect of them -
by _we_ I mean: games companies, players and society generally.


However to address your specific points:

Amanda Walker wrote:
> On Oct 2, 2003, at 5:58 AM, Ren Reynolds wrote:

>> In a number of classic cases companies have tried to say in their
>> contracts that the customer can only use the companies _thing_ on
>> the

>> basis user does not perform certain other actions - these have
>> included using different salt tablets with a dispenser machine,
>> different film with a projector etc.

> There is a critical difference here, though: an avatar (or an in-
> game item) can by its very nature only be used within a context
> provided by the company.

I don't see how this is a critical difference. The cases do not go
into the physical nature of things or their context of use. They
simple note that the companies in question have used an Intellectual
Property Right to attempt to prevent (though contract) their
customers from performing acts that the companies IPR does not
extend to. And in the cases I cite, this has been ruled to be a
misuse of the companies IPR.

> If your copier company goes out of business, you still have a
> copier.

Not sure about this. If you have rented the copier and the rental
company goes out of business, I would assume that the asset is the
property of the creditors. Under a lease agreement for a copier its
never yours (though the paper you put in it and the copies you get
out of it might be, though if the copies are of copyrighted material
this would not be affected).

> They turn off the server, it's gone.  Poof.  ...  Because that
> item, and its use, "exist" solely by means of the game company's
> physical assets.

You have a number of points here all of which I think fall under
what I tend to term the 13th floor fallacy.

Let's assume that I own a lease to an apartment on the 13th floor of
a building. The existence of that flat depends on the physical
reality of the 12 floor, which in turn etc etc. What's more my lease
hold is dependent on the nature of the freehold and the whole
building existing.  Lastly my lease is not for ever but only for a
limited amount of time.

The fact that the existence of my flat is utterly dependent on the
physical reality of other things such as the floors below, and is
only really mine through some limited time to use does not prevent
me from selling the lease.

So the fact that an avatar is dependent on a server running seems
neither here nor there.

Now one might argue that with avatars we are talking about virtual \
digital items so the analogy does not hold. Fine, let's talk about
my bank account. It is a set of database entries on a server. If the
bank turns the server off, has my money gone ? If not what's the
difference (in these respects) between avatars and money ?

One difference one might want to posit is that money can be taken
out of the bank, it can have a physical form. It has a further
_reality_ (yuck I hate that word). But so can virtual gold or
avatars. Physical money is simply a token that represents some idea
of value in a socially recognised form. There is no reason why an
avatar cannot simply be printed out in an old D&D style character
sheet. There is no reason why that cannot be a widely recognised
form if only in the MMO world (but may items that are traded only
have value within a very small group of people - take trading cards
etc).

One might further argue that this print out is no use if the servers
are not running. But what's that got to do with it, we are talking
the notion of value here, the print out could be used as a token of
value just as much as any other, different games my recognise it and
provide a character of a similar level upon receipt of such a
document.

> Physical objects have inherent usefulness because all they depend
> on is the physical universe

Well some physical object I happen to find useful, I grant that
there may be some use for all physical objects. But this does not in
any way detract from the social usefulness of virtual objects or
constructs.

Again I invite you to think about a company - it has no physical
reality what so ever, it is a purely abstract legal concept - but
it's very useful.

> which isn't going anywhere (well, not on a timescale we have to
> worry about in this discussion).

Again for time scale see the time limit on a lease hold

> Virtual items are not, because they depend entirely upon the
> ability to use the infrastructure in which they are implemented.

OK, let's extend this argument. Game servers run on operating
systems.  How many game companies own the operating system they are
on ? Let's go further, what about the server hosting - does the game
company own the hosting centre, or the bandwidth (probably even the
ISP does not own the dark fibre).

So if you have to actually own everything that supports a virtual
thing, like totally and for ever then not a network based games
company in the world owns their game.

Which is not the case.

It's a matter of degree. The question is whether the virtual world
is stable enough for the kind of rights and values we are talking
about here to have meaning. That I think is a matter for the market,
and the market has decided. They all know that a game could be shut
off at any time, just as a games company knows the hosting company
could go under or the internet (which no one company owns) could
suddenly stop - but everyone thinks this sufficiently unlikely to
ascribe value to things and shell out real cash.

> That right, which the infrastructure owners grants to you under
> specific and limited terms, is not inherently transferable or
> salable, unless your contract with the owner allows it.

Well this is where I become unsure. As noted in other posts, I'm
really not sure about the enforceability of this type of clause. In
the examples of copyright misuse that I gave, the contracts were
perfectly clear about what users could or could not do, and those
users signed up to those contracts of their own free will. But the
terms were still not enforceable. So just because its written and
agreed to does not obviously mean that it has any legal force what
so ever - right now I just don't know.

>>  So certainly, if the company has the right to tell customers
>>  what they can do in this respect, then they are free to reserve
>>  it, at the moment I'm genuinely not sure if companies have it.

> Sure they do.  If Sony turns off EQ today, all they owe anyone is
> any money that's already been collected for October's access.

I'm not saying that they don't. This is a different point. I'm
arguing that Sony might not have the right to tell people if they
can sell EQ characters or not. What's more if Sony killed an account
on this basis, _they_ might be in breach. If however they shut down
the severs coz they killed the game, then I agree with you, they are
free to do this (well at the moment they are).

> That's it. All the avatars, magic swords, platinum, and whatnot
> are irrelevant--no player can count them as a loss, because they
> never owned them in the first place--all of the players' ability
> to control and transfer them was contingent on something that no
> longer exists.

I agree with all this, I grant all this in my arguments. It just not
an argument against the points I'm making, it does not prove that
items cannot have real value, and it does not prove that games
companies can control their sale, what it suggests is that games
companies do not have liability for the items, but I'm not arguing
that they do.

Ren
www.renreynolds.com
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