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On MMOs, EULAs, Other Legal Shenanigans
Garthilk writes "In an interesting Q&A over at Okratas.com, they pose some questions for MMO-related lawyer Don Shelkey. Don is a lawyer with Buchanan Ingersoll PC, one of the largest 110 law firms in the nation, who represent many videogame developers on legal matters. Don explains what exactly Technology Transactions are, how EULAs protect the developers, virtual property law and a little about his work with Sigil Games regarding Vanguard: Saga of Heroes." Shelkey, himself a rabid online gamer, argues of MMOs: "EULAs [End User License Agreements attached when you buy a game] are enforceable contracts and there is nothing to indicate that a clause prohibiting the sale of online goods wouldn't be enforced. So, courts should enforce the EULA in the company's favor based on a breach of contract if the company were to proceed to trial on the matter."
First, how is it a contract if I didn't sign it? This sounds a lot like a Contract of Adhesion.
Also, I'm a minor, how can I legally "sign" a contract? I'm guessing plenty of kids play games. Hell, you could even get your 4 year old daughter to click through the EULA for you.
This is basically the "same old" stuff. There are laws protecting the consumer from signing away their rights.
A EULA is not a contract, it is a license. It sez so right in the frickin' acronym for crying out loud: End User LICENSE Agreement. Grrrrr...
Oh, and IANAL, but I read about them once on TV.
"Lawyers are for sucks."
- Doug McKenzie
You know, 50 or 100 years from now, there'll be legal precedents, court rulings, and/or laws establishing what does or doesn't happen in the courts when someone steals your castle or your magic sword, who pays real world taxes on what, etc. For better or for worse. But somehow, I like the era where mostly the courts and the legislators and the police haven't even noticed the idea of "virtual property law" yet. When you might just say "Well, how do I want my game to work" and try and get away with it. It leaves us developers a little more elbow room to try and do that "innovation" thing. Hopefully, in the long run, we'll end up with laws that do more good than harm. But I like the whole "settling the wild cyberspace frontier" feel in the current marketplace.
Furcadia - A free online game with user created content, DragonSpeak scripting, & more.
Which should tell you all you need to know about why this guy strongly believes in the power of EULAs: he's paid to.
Whether or not they are technically enforceable is mostly irrelevant, because when a company brings out the lawyers most people choose to cave in rather than deal with the 5+ digit lawsuit costs and associated headaches. So maybe they can be considered enforceable by the fact few can put up a defense (enforceability by fiat?)
(I am not a lawyer; this is not intended as advice in any way, shape, or form)
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
Why don't the game companies simply join in selling items? It's not as if duplicate items would cost them anyhing to produce.
A pizza of radius z and thickness a has a volume of pi z z a
(I have, however, heard of lawyers being rabid.)
Those who sacrifice security to condemn liberty deserve to repeat history or something. - Benjamin Santayana
So, they aren't in the top 100 but they are close enough to feel the need to give a ranking range? Why not just say "107th largest law firm" or some such nonsense. How large, anyway? Is that revenue, number of lawyers, lawsuits handled, what?!
This is only one person's, or law firm's, opinion regarding the legality of EULA's and how well they will hold up in court. What we need is a case to actually, you know, go to court. That way this whole mess will be worked out and the law will be intepreted one way or the other. This being in limbo, with companies thinking you have signed away all right just by breaking the seal on a shrinkwrapped box and consumers not even reading said contract, needs to end before someone makes a terrible mistake...
In my rush to post this before anyone else, I neglected to hit "Preview". "hear" should be "heard". Sorry.
(And yes, I see the irony in omitting a letter in a post making fun of someone else for omitting a letter.)
Those who sacrifice security to condemn liberty deserve to repeat history or something. - Benjamin Santayana
...the user agrees to it at the time of purchase. A publisher can't put a little surprise in the box and expect it to be enforced.
Basic contract law.
As far as I've heard, there's not a single case in the entire WORLD where a EULA has held up in a case of virtual property disputes.
China and Korea have actually passed laws saying that virtual items can and DO have values. All lawsuits brought to court in the US have so far been thrown out in favor of the virtual property seller or...in one case...dissappeared because of the defendant harvesting cheap illegal labor in other countries (*cough* blacksnow inc. *cough*)
There are those of us that have been following VR property laws for some time and our predictions are that slow as the US might be, they will eventually adopt the same general laws as China/Korea in the matters of VR property (legal and a valid form of commerce).
Just a matter of time.
For those of you intellectually stimulated enough to want to delve more into the world of MMOGs, join the blog at http://terranova.blogs.com/ and the many links from their site.
These are GAMES. They are designed for ENTERTAINMENT PURPOSES ONLY. Where else but in a country run by lawyers would people argue about the legal precedents set in a game. I know, this is a popular rant, but the ridiculous amount of litigation in this country is driving me up a wall. Oh no, my +5 sword of dark elf-slaying disappeared. Oh no, it took me 15 hours of playing to get it. Know what? It's STILL a game! It's designed to entertain, not to be your life. If you can't find anything better to do than bitch about how all of your "hard work" just went down the drain because a virtual item is gone, just remember that all of your "hard work" was in a game, and therefore wasn't really work at all. It was play. Granted, EULAs serve a purpose by telling people not to pirate games, but anything beyond that strikes me as a little extraneous. As a very wise bard once said, "The first thing we do, let's kill all the lawyers." Oh crap... is that like that "Kill the Haitians" thing? Am I going to get in trouble for that?
This sig has been stolen. Return it to its original user for a reward.
I beg to differ, sir. Here in the Shire we think eleventy is far more important than a hundred.
p.s. Please don't call me a troll. That would upset uncle Gamgee.
When playing an MMORPG, you're renting an account on someone's
:)
server. I don't see how you can *own* anything in virtual space
then. If the server closes down, everything's gone. The company
running the servers don't owe you anything for 'lost property'.
You were using other people's resources to maintain that virtual
castle.
I think MMOs should have ways to trade property in-game, though.
Passing along a deed, DAoC-styles, works nicely for medieval games,
and some sort of vendor would work for a more modern world. But
when people start trading in-game housing for real-world money, it's
up to the server maintainers how they want to treat it. No real-world
laws should be necessary for virtual property. Or perhaps MMOs
should allow a 'lawyer' profession, in addition to the usual warrior/
rogue/mage/priest choices
On page 2 he argues against ebayers... sort of.
I am an ebayer. Not a big one, but I botted in D2 over a summer and made $3k to split with my friends. I want to do it again in another game when I find some time.
This guy makes the argument that selling virtual items can not only get you banned (which is fine, they can do whatever they want) -- but get you sued as well. I don't really believe the guy, for a lot of reasons. And then he sort of counters his own argument by saying that companies are unlikely to litigate in any case.
He points out drawbacks to selling items. "The more liquid virtual property becomes, the more likely it is to be taxed." Unless I'm missing something, I think that is bullshit (you tax people when they convert it into real money, not when it spawns). It is retarded to expect any government to monitor a game's every item drop.
He also says "the more real world value items have, the more likely a court may decide that players have a property interest in the virtual property." I agree with this -- however, it can only be a good thing for the players, because it forces accountability on the companies for the items that players have spent serious time acquiring. How is this supposed to disincent me from selling items? I can see how it is bad for game developers, but IMO it is bad in the "we can no longer delete your items randomly" way.
Perhaps I am misinterpreting this article. It in no way convinces me of anything. Am I supposed to feel sorry for the game developers because of this horrible plight? It won't change their profitability much, and as an ebayer I do not care about the game developers' profitability in any case.
My suggestion would be you have an in game court, whose decisions you can under certain conditions appeal at a non-virtual court, and you would have virtual police and bounty hunters who would make it harder, but not impossible for an outlaw to act in the game.
I'm still trying to figure out what people mean by 'social skills' here.
If the company gives a +100 sword of carnage out to too many people by a bug, spell, or misjudgement, and then decides to pull that sword from them or render it otherwise useless, then the players could argue that the company stole something of real value from them, since using the sword they could make money selling the powerful items they get from their kills.
So the company would be faced with the choice of either leaving their game unbalanced and non-fun, or paying millions to the players.
I'm still trying to figure out what people mean by 'social skills' here.
Once youve bought a game, and agreed to the licence, and your licence is revoked because of EULA violations, woulnt you have legal grounds to claim youre using the software just under the copyright from when you bought the game?