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

Marian Griffith gryphon at iaehv.nl
Wed Oct 8 21:51:49 New Zealand Daylight Time 2003


In <URL:/archives/meow?group+local.muddev> on Mon 06 Oct, Ren Reynolds wrote:

> 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.

I think there is a slight difference between this case, where the
projector was perfectly capable to show other film stock (and the
prohibition was only intended to limit the customer's choice) and a
game where characters literally are part of the product.  It is more
the projector light, being part of the projector, and not a separate
part to be used in combination with it. A judge is unlikely going
to force a game company to allow characters from other games to be
imported into their product.  Nor would that be technically possible
I think.

>> 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.

This is quite simple. If I use my character to hit your character I
have not committed a crime. At least not one that I can be pro-
secuted for by a real court.  Also, my character can not hit
*you*. It only exists in the game, and its actions are limited to
the context of the game. I can not move it out of the game, and in
fact anything I make my character do are *part* of the game itself.
They only affect the state of the game, on the server maintained by
the game publisher.  I can not make my character do anything that is
not already coded into the game by its creators. I can not actually
own the game character because I can not technically separate it
from the game that it belongs to.

In that you could reasonably argue that I merely have leased the
exclusive right to control a game piece.  Such lease contract may
certainly stipulate that I can not pass it on to somebody else, and
that any attempt to do so voids the contract (and the game
character). Lease contracts for cars certainly have such a clause
and if you rent an appartment the contract you sign most likely will
have a similar prohibition.

> 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.

This first assumes that game server and game characters are sepa-
rable and second that you actually own the character that you are
playing with. Both are contestable I think.  Also I wish you good
luck trying to force Microsoft to allow you to read your word do-
cuments with another program.  In fact the DMCA says that you are
not allowed to even attempt to decode those documents, regardless
that you did actually write them.

Also, copyrights should not come into play at all in this whole
discussion, as that has to do with control over reproduction of an
original work of art. Sale of game characters is not reproduc-
tion. Nor are they works of art any more than painting by numbers
is.  And even if you can argue that your particular interpretation
of the paint by numbers is unique (i.e. original) that still does
not extend your copyright to other paintings using the same basic
canvas.  Since game characters are in essence just a number of
choices in a basic set, there is no way you can enforce others from
making the exact same choices (and thus creating a character that
has the exact same look and abilities).  This does work the other
way around as well. By releasing a game with the ability to create
characters using a number of choices out of a set provided by the
game, the company can not claim any copyright to the results of
those choices, any more than a paint by numbers company can lay
claim to the painting you create by using their canvas.  Another,
more pragmatic, reason for avoiding copyrights is that that law
requires interpretation.  Contract law is fairly clear, whereas
copyright always requires somebody to interpret what is original art
and what is derivative work (and what is fair use, though the latest
IP laws seem to aim at entirely removing that concept from the
books)

You are right though, that copyright to a game server does not
automatically grant copyright to what is done with that program, but
this should not really be a consideration anyway.  A legally
interesting grey area is publishing 'movies' created from within a
game.

>> 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.

But it has got everything to do with that. At its most basic the
question is whether or not characters are owned by the player or by
the game company. If you assume the former then your argument that
physical dependency on the game server does not exclude the right to
(re)sell it holds. On the other hand, if you assume the character is
owned by the game company and the player only rents it, then we are
dealing with contracts and not with property law and the other
argument holds.


Marian
--
Yes - at last - You. I Choose you. Out of all the world,
out of all the seeking, I have found you, young sister of
my heart! You are mine and I am yours - and never again
will there be loneliness ...

Rolan Choosing Talia,
Arrows of the Queen, by Mercedes Lackey
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