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

Ren Reynolds ren at aldermangroup.com
Mon Oct 6 23:11:46 New Zealand Daylight Time 2003


Amanda,

I think we agree that many (if not all) of these issues are ones of
contract law. Where I think we disagree is on the arguments about
why property does or does not come into it.

On 04 October 2003 20:04 Amanda Walker wrote:
> On Friday, October 3, 2003, at 05:41 PM, Ren Reynolds wrote:

>> 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.

> The critical difference is that those acts in the physical world
> do not

> depend on acts of the company.

Of course they do. To take the film projector case, the company in
question invented, built and owned the projector - you can't get
much more dependent than that. And they said to their customers they
the projectors could only be used to project film stock created by
them, even if the customers had agreed to this contract the judge
still ruled it to be a misuse of the company's intellectual property
rights.

> In a virtual world they do--those acts are only possible, and only
> have meaning, on the company's servers and in the context
> provided, maintained, and mediated by the company.

I don't understand the relevance to the law and test cases I'm
referencing here. Dependence in the sense that a company owns
intellectual property rights in something and in the cases that I
have referenced actually own the objects its pretty much a
requirement for this area of law to get off the ground.

In the case of a game a games company owns the copyright to a piece
of software and then tries to use this to tell individual what they
can and can't do, can and can't sell. The fact that the software is
needed to give the acts meaning is what I'm predicating my
suggestion that this might be misuse of copyright upon.

>>  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.

> Well, yes, but in that case you've never own it in the first
> place.  What you may or may not do with it isn't an issue of
> property rights, it's a contract matter between you and the rental
> company.  Contracts specify anything that both sides agree to.

Well kind of. This area of contract law is based on property law.
Contracts tend to say 'we own this bit of property and your renting
it and these are the things that you agree you can and can't do' my
point is that not all contract terms are enforceable, and
specifically there are a set that extend intellectual property
rights beyond their statutory scope - these terms have been found
not to hold.

>>  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.

> On the other hand (at least in the US), your ability to sell your
> lease or sublease your flat *does* depend on the terms of your
> lease with the property owner

Hold on, this is a different argument. You were arguing that there
cannot be property right in virtual items in virtue of their
dependence on a games company's servers. This argument is about
contract, it's got nothing to do with that.

Do you now agree that the physical dependence argument does not
hold?

> --it is a right granted by contract, not a property right.

Just because a right is grated by contract does not mean that it's
not a property right. One of the things about property is that in
some cases its transferable under contract.

So are you stating that a lease is not a property right under US
law?


>>  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 ?

> A very large difference.  Game companies create avatars and items;
> banks do not create money, they only hold it in trust.  A closer
> analogy might be holding a bond issued by a store that closes.

This is not a difference in the respect that we are discussing. And
it's wrong.

Again I was addressing your argument about dependence and saying
that dependence on a server does not in-and-of itself make something
property or not. Property rights in that stem from the origin of
that thing is a different argument. So again, are you now agreeing
with me on the physical dependence argument i.e. that a putative
item of property can depend for its existence on something other
than the natural world (with no human intervention) and still be
property ?

As to your second point. Game companies do not create many of the
avatars and items we are talking about. This is back to an old
argument.  When I buy some game software, there is no avatar in the
box, I create it through my actions, I give it a name a choose its
type etc. Similarly in-game I construct things, I bring into
existence now tokens of pre-existing types. Game companies create
the type (or type sets) not the tokens.

A question is whether these action confer property rights. I think
that they might, I think that these rights are transferred to the
game company and I think that they have little to do with whether
games companies can prevent the trade in items, as that I think is a
matter of contract law not property.

>>  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).

> Certainly

Yay we agree

>>  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.

> Exactly.  We're not talking about inherent value, we're talking
> about contingent value.

All value is contingent (at least in the strong sense (by this I am
drawing the philosophical difference between necessary and
contingent from modal logic), and here in a weak sense also (here I
mean that the value of anything for humans above base needs for food
etc can be seen as contingent))

>>  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.

> Indeed.  All of those things are commodities--the game context is
> not.

> The value of an avatar is not contingent on which hosting facility
> is being used, or which wires your bits travel on to get there.
> It *is* contingent on the pieces provided by the game company.

Again this is a different point. I was discussing the same point
reference above twice, that of dependency. I hope you will now agree
that physical dependency does not come into to it in whether
something can be property or not.

Right, now were talking about value. And I don't get your point at
all.  Back to the lease example, the value of my flat is, in your
word 'contingent' upon lots of things such as the type of building
it is in, the area, the view. None of these are in my control. Where
I live the government decided to run a railway past some houses a
few miles away, some had to be destroyed, the value of others
dropped like a stone, but the houses were still property. Value
dependency does not alter whether something can or cannot be
property either. It may alter whether people would be wise to trade
in something or not, but again that is a different matter.

>>  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.

> Well, the last time I rented a house, the lease specified that I
> would not sublease it.  If I had, my own lease would have been
> terminated for

> breach of contract.  Under Virginia law, this was perfectly
> enforceable.  How is this different from a game provider saying
> you can't sell your avatar, under your analogy?

The difference is that while a lease and a contract (a software
licence) are both licences to use, a lease is based on the law of
'real property' a software licence is based on the law of
'intellectual property'. There are critical differences in the two
areas of law. The cases I referenced are ones that demonstrate the
limits of contract law when predicated on intellectual property
law. In this respect I am not making any general claims I am making
very specific claims based on specific case law. I was using the
lease hold as a analogy to help with the general discussion about
property, not limits of contract. What much of this boils down to is
whether the contractual clause of non-transferability of items and
avatars (for money) is enforceable in law and in practice. As
transfer of items is fundamental to most of these games, then I
think that trying go enforce this in practice and have a game that
people want to play is looking pretty difficult.  Transfer of
avatars \ player-characters probably is practically enforceable at
this point, but if that was my trade why would I not get potential
customers to get the account, then I would play it (level it) then
hand it back - no transfer at all has gone one, unless you are gona
put retinal scanners in palace or really track source IP or
something I don't see this happening either. OK you might crack down
on the big brokers but it seems a lot of effort and ultimately it
will hit the bottom line so it would have to be a business decision.

Ren
www.renreynolds.com
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