Journal of Information, Law and Technology
In Search of the Value of Online Electronic Personae:
Commercial MMORPGs and the Terms of
Participation in Virtual CommunitiesAbstract
Nicholas J. Gervassis
Doctoral Candidate, Faculty of Law, University of Edinburgh
antilexikon@hotmail.com
This is a refereed article published on: 15 December 2004.
Citation: Gervassis, ‘In Search of the Value of Online Electronic
Personae:Commercial MMORPGs and the Terms of Participation in Virtual
Communities', 2004 (3) The Journal of Information, Law and Technology (JILT).
< http://www2.warwick.ac.uk/fac/soc/law2/elj/jilt/2004_3/gervassis/>
Abstract
The formation of online, or virtual, communities has been a feature of the Internet
since its public inception. Mass participation and access to permanently stored online
content have allowed for the development of the network structure into a prolific
venue for sharing knowledge and common interests, and, just as the operational
capabilities of the network expands, so too does the role, and potential, of the online
community. The variety of ways in which users have established, developed and
contributed to online communities is as diverse as culture itself, and as such, to try
and map the sum of online geographies would prove rather redundant. In general
however, there exist two core models of 'virtual community', within which subsist
Electronic Personae.
The first community, the intellectual virtual community, can be characterised on the
basis of a shared (intellectual) interest, for example, members of a political
organisation, or a Lords of the Rings fan club. The second, the functional virtual
community, can be defined as a group of users participating on a single application
platform, for example, an online game such as Ultima Online.[1] To understand the
difference as well as the potential for operational conflict between the two, one might
draw upon the contrast between nations and states. Where states constitute regionally
limited legal formations, nations are broader in their geographical manifestations and
are decided upon shared cultural characteristics that distinguish ethnical groups.[2]
Functional communities resemble states: pinpointing their online locus at specific IP
addresses, they submit to fundamental operational rules, set in the launching
software’s computer code.[3] Similarly, intellectual communities resemble nations.
Although group members rely upon a functional community as a means of gaining
network access (citizenship), they adhere to collective basic characteristics, tastes and
intellectual qualities that define their shared bond beyond the procedural mechanisms
of limited online geographies (nationality).
Within these virtual communities there exist Electronic Personae, that is, the
individual online identity that someone adopts when participating in virtual
communities. The human intellect enters the electronic environment and selects a
unique digitised appearance[4] to reflect its stature and to personify communications
with the setting. Concisely, the EP is encapsulated in every type of Internet service
user account (e.g. yahoo!, msn or online game accounts), where digital 'bodies' are
provided as either onscreen textual indicators, like nicknames and descriptions, or
graphical representations (avatars). This article makes use of the concept of the EP,
within the context of Massively Multiplayer Online Roleplaying Games
(MMORPGs), to explore the potential conflicts between intellectual and functional
communities alluded to above.
Keywords: Virtual communities, electronic personae, Massively Multiplayer Online
Roleplaying Games (MMORPGs).
1. Introduction - Understanding Online Games
1.1 MMORPG Morphology and Function
MMORPGs belong to the broader Internet entertainment genre of massively
multiplayer online games (MMOGs).[5] Gamers create and adopt personalities of
fictional characters in persistent artificial worlds, more like in the tradition of pen and
paper role-playing games such as the best-selling Dungeons & Dragons.
Appropriately, the prearranged virtual settings borrow elements from the genres of
fantasy or science fiction literature. Action centres on solving puzzles, battling with
computer generated creatures and collecting valuables.
Exceeding by far the limited modules of interactivity that conventional video gaming
has to offer, MMORPGs turn into electronic allegories of real life. Game characters
'grow up' gradually through upgrading their game attributes and building personal
reputation across the hosting platform. Advanced interactivity within the functional
game community’s confines and context consists of developing societies,
economies[6] and power hierarchies amongst players.
From the players’ perspective, game characters crystallise the EP concept beyond its
simple onscreen identificatory purposes. Experiencing a rather naturalistic
understanding of their persistent involvement and personal time-investment in the
game, users pretend to intimate intellectual and psychological connections with their
game accounts and related online accomplishments.[7] Moreover, entertainment
platforms perform quite commonly as additional communications lines between real
persons masking as characters and seeking out off-platform associations, mixing up
game identity with off-line existence. Unsurprisingly, most modern age MMORPGs
are commercial.[8] The amount of required expenses for setting up, organising and
maintaining an online service of proportionate complexity (and even improving it) is
such that can be only retrieved through consumer market mechanisms. Hence, in their
majority these game platforms require preconditional purchase and installation of the
appropriate software on home systems. With the exception of few free servers, game
participation is usually provided in exchange for additional monthly fees.
A Game Character Example
A hypothetical game character example will assist in developing better understanding
of the general MMORPG context and side elements as being referred to in this
discussion. Therefore, 'Doonkan', as named by his player, is a fictional game
character. Doonkan participates in a fantasy game setting, an artificial world like
EverQuest or Ultima Online which takes up on representing medieval environments
enriched with mythical elements.[9]
He is a level 27 'dwarf fighter', where level in game terms pinpoints experience
progress; when a character kills computer generated monsters he gains automatically
points that improve gradually the appropriate level score. Hence, by Doonkan’s level
we may assume that his player has spent a respectable amount of time participating in
the game. Game statistics, on the other hand, are parameters representing the
character’s personal attributes and skills, like strength, dexterity, constitution and
intelligence. They are expected to change as the character develops through
gameplaying.
Doonkan is equipped with two unique 'magical' items, the 'Armour of Dragon Fire'
and the 'Axe of the Thousand Gods'. These may come into possession during play
either as a reward when eliminating virtual adversaries or through trade practices
taking place in appropriately set virtual bazaars. He also 'owns' in-game real-estate
property: 1 castle, 2 inns and 7 horses. Finally, he keeps in his game 'bank account'
the astonishing amount of 3,700,000 world currency units. Doonkan is indeed a welldeveloped character.
1.2 Legal Background
The premises of contractual freedom have emerged as the most logically applicable
legal methodology for game companies to ascertain their control over the virtual
world and ensure their further protection. Entrance to MMORPGs is regulated by
online End-User Licence Agreements (EULAs), which through exhaustive
enumeration of Terms of Service (ToS) pronounce the host’s ownership and
intellectual property claims over both game content, like characters or items, and
activity.
Although EULAs play an important role in building trust across the commercial
market by stipulating standards and articulating in detail the contracting parties’ rights
and responsibilities, they have received fierce criticism on the high-handed
disposition of ToS. Violation of terms does not automatically invoke imposition of
real-world legal measures, unless the prescribed content repeats relevant laws.[10]
However, agreements provide game companies with a direct right to suspend or
terminate the contractual relationship according to their interpretation of what
constitute their legitimate entitlements or infringing occurrences of breach. Hence,
exclusion from the virtual setting becomes at the owners’ disposal a de facto
punishment measure.
The one-sidedly determined functional participation, conditioned on the instrumental
support of EULAs, may interfere effectively with further online user involvement; the
potential for challenging judicial reviews against bans is diminished when agreeing to
the contract’s offered ToS. In the face of contractual regimes of indirect sovereignty,
three questions of general concerns unfold regarding the proportionality of attitudes
promoted as such from the private sector’s part:
(i) Are private game owners entitled to impose full restrictions at their own discretion
against what players consider to be their justifiably exercised moral rights?
(ii) Has the same law that enables game companies to maintain and uninhibitedly
operate their enterprises restricting counter-effects on their sanctioned proprietary
rights as players contend to expand participation in intellectual virtual communities
over functional groups (or closed games in this respect)?
(iii) Finally, are the functionally assessed confines over online personae fairly
balanced with the users’ moral requests for expanding their hosted intellect across the
web?To develop convincing answers to these questions, the following analysis tests at
first the compliance of the EULA model with general legal principles of private and
commercial law and then its consistency in rationalising legitimately the claims of
online entertainment corporations.
In more than one ways, those of the examined issues that seemingly diverge from the
given in the introduction theme become essentially relevant to the EP discourse.
Identity is perceived and acquired through participation in the two different modules,
the introvert functional and the efferent intellectual. The human being online is
subjected to personifications developed in private spaces and under the authority of
hosts. By visiting commonly discussed areas of online contracts in disputing the
effectiveness of EULAs or by recognising relative influence of law into the game's
pseudo-reality, we reach to the point where the EP turns from a psychologically
appraised ideal into a legally appreciated quality for galvanising instances of absolute
ISP control over personal development of individuals. The value of the EP lies within
its inherent connection to the person: as long as hosts can 'threaten' termination of
identity, user behaviour, both in and out of virtual world, is controllable.
2. 'Law in the Box': Analysis of Regulation under the EULA
2.1 Limiting Liability and the Unfairness Doctrine
Internet enterprises that launch online commercial operations are naturally concerned
with the regulatory scrutiny that they invite from foreign jurisdictions. The practice of
typing on home installation software packages regional restrictions against connecting
with the game can be used to set out a safe market policy against unwelcome state
regulation.[11] Such tactics, however, would have effectively diminished the
commercial power of the product, which in the case of MMORPGs is the online
service per se, not the installation software on retail; large masses of international
consumers would have been eventually excluded.
For these reasons, game companies take prominent –for their standards- risks in
engaging with multiple jurisdictions, which might not be as tolerant of their
contractually declared limitations of personal freedoms and liability. EULAs adhere
to the 'click-wrap' licensing model. Its enforceability was first contested in
U.S. courts, adjudicating on 'shrink-wrap' agreements[12] on software purchases.[13]
Later, when online 'click-wrap' agreements came into judicial focus, successive
U.S. decisions approved of their validity. [14] The principles of commercial and
contractual freedom in U.S. legal doctrine allow for parties to include in their
agreements and put into force between them any terms or conditions that adhere to
legitimate private law restrictions.[15]
Thus, appropriate limitations of liability may become acceptable:
'In no event shall we, our parent, our affiliates or our suppliers be liable to you or to
any third party for any lost profits or special, incidental, indirect or consequential
damages (however arising, including negligence) arising out of or in connection with
the possession, use, or malfunction of the software, your account, the game, the
software or this agreement. Our liability to you or any third parties is limited to $100.
'[16]
Implying almost total exclusion from any possibly arising obligations, the conditional
text closes in a different tone, probably in view of markets governed by state
protectionism:
'Some states do not allow the foregoing limitations of liability, so they may not apply
to you.'
On the other hand, 'click-wrap' licences consist of extensive collections of terms with
content that is non-negotiable by individual clients. In favour of consumer protection,
the 1993 EC Directive on the Unfair Terms in Consumer Contracts prescribes scrutiny
of such agreements in view of 'significant imbalance in the parties’ rights and
obligations' and under the general concept of 'good faith' -omnipresent in Civil Law.[17] The limitations of liability in the previous EULA example overlook this
protective regime; consumers do not have any say at all in the formation of ToS.
However, the agreement’s inter partes effect is partly compromised in the highlighted
final clause, which guarantees the service’s legal compatibility with similarly
regulated markets.Another example portrays more vividly the grounds that have given
rise to attacks against unilaterally submitted ToS:
'You further agree that any material breach of the EULA, the Dark Age of Camelot
rules of conduct or unauthorized access or use of the system by you or any other user
of any of your accounts, shall entitle Mythic, at Mythic’s election, in addition to and
not in limitation of any other remedy or right which may be available to Mythic, to
immediately and without notice discontinue access to the system through your
account, and any and all other accounts that share the name, phone number, e-mail
address, Internet protocol address or credit card number with the discontinued
account, and to direct any person that is assisting in the performance of the contract
to discontinue its performance.'[18]
Here the EULA reserves for the owner the authority to simultaneously terminate
related game accounts. According to these terms, Mythic would be promiscuously
entitled to ban from the game an Iowa high-school student, on the ground that his
brother’s account operating in aSan Diego college has been terminated, since both
game registrations are paid through a parent’s credit card. Unfairness of EULA
contractual provisions has not been tested exclusively within consumer protection
frameworks. The Court in the U.S. Hotmail case[19] held that termination takes place
only when deemed necessary. In practice, game companies feel entitled to ban
accounts under any subjectively apprehended occurrence of breach. Private law,
though, empowers excluded users with the right to debate in court the circumstances
that led the agreement to its end and whether the owner acted in a rightful manner or
not, as in any other online or off-line contractual discharge.
In reality, however, litigation against corporations is hardly affordable. Moreover,
EULAs localise jurisdiction in favour of the game company[20] rather than pertaining
to a more flexible system of 'forum-shopping', which would potentially expose
owners to scattered legal attacks and drag them through tremendous court expenses.
Where the disposition and effect of unfair terms appear theoretically reversible by
court authorities, practical inequalities emerging from the agreements per se have
discouraged users so far from contesting such a precedent. Furthermore, the generally
manifested across the online entertainment industry unilateral selection of forums
could have been found inappropriate.[21]
2.2 ToS Deployment in Regard to Virtual Property and Off-Game Activities
The property issue has recently introduced a different path for the EULA discourse
and turned game characters into the actual bone of contention. Their legal identity
moves into focus and is accordingly questioned, either establishing the game
companies’ exclusive property or instituting a product of collaborative authorship
with gamers.
This dispute was at first put on the map when players began selling developed game
accounts and game goods for real-world money through off-game online auction
markets. For example, Doonkan’s user sells on the auctioning venue eBay[22] the
Armour of Dragon Fire for $250 and the castle for $1700 to other game subscribers,
who prefer an easier way for acquiring game 'prizes' to fighting their way through
endless puzzles and battles with digitised monsters. The online off-game market has
blossomed spectacularly, and newly established Internet entrepreneurs make a fortune
by simply distributing virtual assets.[23] Game owners disputed in the open the
potential inflicted damage on the games’ integrity while off stage they grew weary of
the uncontrollable dissemination of profits that derives from their enterprises without
their given consent.
An overview of the short history of MMORPGs reveals how the current writing of
ToS has taken gradually shape as EULAs kept on incorporating standard viewpoints
over ownership and intellectual property into progressively developed contractual
frameworks. The tangible results of this reorientation reveal the apparent haste with
which private measures were adopted and weak points in the phrasing of offered ToS
that, as the following discussion and examples will indicate, could be attacked as
either inconsistently written or as proposing set-ups vulnerable to the unfairness
doctrine.
Hence, three points should be taken into consideration while reading through EULA
texts: (a) where do hosts confuse in contracts their real-world legal entitlements with
pure game pretence, (b) where property claims become unduly inseparable to
intellectual property rights and (c) when companies formulate their entitlements by
broadening significantly the scope of protection, and maybe against self-evident
moral principles.
Introducing Game Pretence Into Real-World Contractual Statements
An example might be helpful to illustrate the topic developed under this header: In
early 2000, Sony Online Entertainment (SOE) proceeded in conjunction with eBay
into banning [24] from the leading auctioning website the trading of characters and
game goods of their best selling game EverQuest.[25] SOE updated accordingly their
EULA standard:
'We and our suppliers shall retain all rights, title and interest, including, without
limitation, ownership of all intellectual property rights relating to or residing in the
CD-ROM, the software and the game, all copies thereof, and all game character data
in connection therewith. You acknowledge and agree that you have not and will not
acquire or obtain any intellectual property or other rights, of any kind in or to the
CD-ROM the software or the game, including, without limitation, in any character(s),
item(s), coin(s) or other material or property, and that all such property, material and
items are exclusively owned by us.'[26]
This passage exemplifies the problem that ToS face and only unconvincingly resolve:
On the one hand, there is tangible real world behaviour, people and physical objects
necessary to play the games. On the other hand, there are 'game pretence objects' like
game coins and data. In failing to distinguish between the two, ToS risks becoming
either to far (protecting something incapable of legal recognition), or too narrow (not
preventing the 'sale' of 'game coins' in auctions).
Apparently, when the EULA mentions 'coins' it implies 'computer code data
generating in-game representation of coins', if anything else. However, in this specific
phrasing exhaustive legal jargon is blended with actual in-game pretence. Under these
circumstances the agreement’s functional real-world identity as a binding contract
becomes partly nebulous. It would be fair to suggest that in view of the services’
unique nature and the implied intention of parties, the slightly inappropriate
arrangement of words and expressions should be 'forgiven' if ever disputed in court
and in favour of the offeror. Interestingly, though, companies with explicit interest in
drawing clear lines between game and reality[27] expose the virtual independence of
game worlds to directed interpretations. A hypothetical scrutiny on textual loopholes
carries the potential for reversing the desired isolating effect of EULAs as incoherent
and as factually inviting real-world regulation to read into the rules of game conduct.
Claims Combining Property and Intellectual Property
A parallel and commonly observed feeble wording marks out the second of the
underlined points. Here, EULA’s attempts to regulate self-evidently generated
practices of acquisition and distribution between players lead to notional paradoxes, at
least from a purely linguistic legal perspective. Therefore, Mythic in the DAoC EULA
emphasises that:
'(i)n addition to violating the EUALA and the rules, selling and buying of individual
characters, character attributes, items, objects and/or currency constitute an
unauthorized modification of the data comprising the accounts involved in the
transaction, an unauthorized modification of proprietary game content, an
unauthorized use of the system, and violates Mythic’s intellectual property rights.'
The challenge is set upon translating virtual worlds into the earthly disposition of
laws. Traditionally exercised property rights over game items and accounts are
presumably conflated with intellectual property claims, while game material, like
avatars, is alternately acknowledged as either sets of electronic data found on the
access server or owned ideas that have been transformed into computer code.
It should be noted that amongst the applied EULA frameworks of MMORPGs that
had pre-existed the introduction of off-site trading practices and were later amended,
the above extract shows comparative consistency. In general, game companies seem
hesitant to pick up a decisive position on classifying of the diversity in 'game content'
under either the property or the intellectual property domain. Instead, this question is
resolved for the specific circumstances under consideration.[28] This allows ToS to
move from one legal area to the other, or indeed as in this quote to combine them both
in producing concrete legal qualities with the use of exhaustive descriptions. This
definitional instability materialises a teleological approach in expressing the game
industry’s logical aspirations to cover every possible content related dispute that
might arise.
Plausibly, one might question the purposes behind importing into EULAs a
supplementary intellectual property rule next to the all too clear property set-up, as
related to game material. In effect, players have answered to the companies’ absolute
ownership assertions with counter-challenges claiming moral and personality rights
that emerge from their active involvement with developing game characters. Varying
from co-authorship [29] in utilising computer code and game interfaces as 'raw
material' for fleshing out ideas and reshaping the virtual world to broadened
conceptions of identity and personal sphere, their understanding of game content was
in practice externalised through overlooking imposed behaviour restrictions and
adhering to distribution of items rather than through open debates. Thus was called
the accordingly expanded deployment of ToS in search of legal efficiency beyond the
premises of traditional property.
Newer EULAs discarded the discussed ambiguities with accurate writing and
balanced transition from property to intellectual property, wherever this is deemed as
appropriate.[30] However, in its entirety the gaming sector, based exactly on these
equivocally mixed rationales, refuses to appoint even a minimum of moral
entitlements to users, apart from what is strictly designated for the 'subscribed
customer' status.
Expanding Protection Over Off-Game Interaction
Following on from this point, the exhibited contractual policies accreted sharpened
legal arguments in literature against the legitimacy of statements that declare
indirectly private online sovereigns. As the expansion of property claims reached its
climax when intellectual property was utilised to control off-game patterns of players’
behaviour other than selling items. First, a look at the relevant legal background might
shed some light on prescribed liberties, which motivated the further shaping of the
private initiative’s interference with out-of-game online conducts.
Protection of intellectual property has turned into the most booming legal trend of
recent years, providing even for commensurable penalisation. [31] The introduction of
the WIPO Treaty back in 1996 initiated a global legislative chain-reaction that gave
birth to statutes such as the U.S. Digital Millennium Copyright Act (1998) and the
Copyright Directive 2001/29/EC of the European Parliament. [32] These new laws
have played a key role in the development of modern industry and economies,[33]
and their protected value seemingly has overshadowed other large areas of private and
public law.
Game companies, based on the legal priority given to this framework for
strengthening the mechanisms of commerce, promoted their interests through multiple
references to intellectual property rights. In 2000, a player was banned from
EverQuest for posting to an unofficial and non-commercial fan-site a short story,
inspired by her in-game developed character.[34] The game company, originally
arguing negative impact on the gaming community due to relating disturbing
descriptions of violence to the game, commenced later on the matter by referring to
the use of intellectual property protection beyond the functional community’s
restricted operational boundaries in pursue of their rights to ideas, characters and
derivative works.[35]
Although no similar incidents have followed the reported exclusion, EULAs have
made steps forward into regulating off-game appearances of fan-fiction and fan-art.
The phrasing in the following extracts pictures with blanket terms the online diversity
in derivative works and determines various user practices as instances of indisputable
breach, even though they are unlikely to infringe commercial interests: [36]'
You may not copy, distribute, rent, lease, loan, modify or create derivative works,
adapt, translate, perform, display, sublicense or transfer any information accessible
through the system…''Any attempt to engage in any of these prohibited activities,
whether successful or not, shall constitute a material breach of the EUALA and will
result in sanctions...'[37]
The incentive behind the underlined protected value affirms the online dimensions of
the private sector’s general tendency to overrate brand ownership. References to
copyrighted material or registered trademarks without prior authorisation are
prohibited.
However, the free distribution of commercial symbols, like trademarks or slogans,
through the media and towards the masses has constituted an important factor in the
development of post-modern culture.[38] Online fan-fiction conveys an intimate
creative passion, which is born within this cultural superstructure, is recreating the
personalised effect of entertainment and shares it informally with same-minded users.
Such activity can be interpreted under the combined scope of human rights to develop
one’s personality and participate in 'the cultural life of the community'.[39] Although
of frequently debatable quality, this amateur textual or graphic material and the nature
of its dissemination pose negligible harm to the credibility of marketed services and
brands. Primarily, they bear little relevance – if not at all –with the called in rationales
for applying hard-core intellectual property protection. Centred on the three discussed
points, the examination of the EULA model leads to a few preliminary conclusions.
First, unstable in-game values can not fully support the legally binding effect of an
agreement. Beyond the inner core of the MMORPG service, game pretence
constitutes an incomprehensible and flexible to alterations setting; its interference
with the contract outset may deprive the latter of its compliance with laws reflecting
solely real-world standards. Second, ToS dispute extensively the legal identity of
game content by mixing references to property and intellectual property, without
providing though for the appropriate references to authorities for ensuring their
foundations in law.
Finally, game companies disproportionately put forward intellectual property rights as
a sufficient justification basis for regulating further involvement of registered players
with wider Internet communities. These presumptions offer ground to attack the
compatibility of EULAs of this type with general legal requirements for contracts and
also to dispute their validity under the already discussed unfairness doctrine.
Therefore, as the present analysis takes a turning to previously mentioned topics, the
case study will focus on the EP concept while giving answers to the posed questions
regarding functional limitations of intellectual conduct on the Internet.
3. Questions Revisited: Assessing Private Authority
3.1 On Hosts Imposing Full Restrictions at Their Own Discretion Against
Players’ Moral Rights
Termination of game accounts as a measure against breach of the EULA externalises
the hosts’ ultimate entitlement that derives from both the premises of property law
and the principles of contractual freedom. However, from what has been discussed so
far, game companies outline very broadly their margins for deciding against their
customers.
The apparent status of 'independent customer service states' that virtual worlds attain
to, elevates the exclusively commercial dimensions of private law, while overlooking
all other human aspects, which have been intentionally included in the same context
as balancing guarantees between economic prosperity and just social development.
Either through counterpoising obscurely described claims against established
individual freedoms or through enabling companies to monitor the players’ personal
sphere for evaluating relevant off-game demeanours and conditioning thereupon
access, EULAs presumably suggest the one-sided manipulation of contract law.
However the assumed contractual inequalities and extensive paternalism EULAs may
demonstrate, players essentially are not compelled to prolong their participation in
specific MMORPGs. Entrance, in the end, involves free choice; or does it? Despite
the increasing numbers of new virtual worlds, behind the illusionary predicaments of
free market competition naturally developed monopolies have emerged. A few
entertainment giants guarantee hundreds of thousands of co-participants and frequent
content improvements; thus unrivalled, they concentrate consumers’ preference. On
the other hand, players with established reputations, social circles, and virtual
'personal belongings' would more than reluctantly abstain from identified game
settings. Regarding gaming as a leading recreational trend across electronically
educated populations, exit and not-entrance are, therefore, not always optional.
An additional argument opposes the appreciation of contractual freedom as sufficient
for justifying full restrictive effects on user activity. Game worlds are property that
acquires a uniquely assessed public character by providing specialised online services.
They belong to a special category of private spaces that, directed towards and utilised
by the community, are eventually deemed 'common callings'. Regardless of selfisolating ToS, the public character of these environments invokes the society’s active
interest in disapproving through legal means of any exclusion or refusal to access the
game if this is justified by irrelevant group-based characteristics and arbitrary
assumptions. [40] When game companies suggest exit as an alternative to their
unconditional full control over game worlds, or when resorting to termination of
accounts in response to what they equivocally interpret as instances of EULA breach,
they overlook the extend to which the disposition of the game as property constitutes
in rem restrictions on their own powers.[41]
Hence, the game companies’ freedom as practised in overextending entitlements
through contractual terms faces certain limits, found in the capacity to overturn
superior law and also in de jure demands for achieving balance between contravening
rights. Although property and contractual freedom are indeed protected within
constitutional and international conventional frameworks,[42] user participation in the
wider online setting involves a great deal of actively exercised human rights, like
rights to associate and assemble, freedom to impart and access information, freedom
of expression etc.
However, dealing realistically with the prospect of formulating the discussed limits in
respect of sufficiently contestable in-game generated moral rights requires proof of
the predefined user protection, which surrounds contract formation, as continuing
within the confines of virtual worlds. The challenge is decided upon the adopted game
identities of users; the individual’s 'material' transfiguration into the digitised body
does not identify with change to the source intellect.
Therefore, when, for example, a person joins a private club, she commits to internal
regulations and voluntarily renounces certain personal liberties; however, there is a
barrier set against these restrictions, conveying jus cogens norms which may not be
overstepped by any contractual claim. Similar to club identity, personalised game
characters allow a small number of users’ rights to transpire in the game world as
reflecting a minimum of the legally protected and unchangeable intellect. As a result,
hosts are obliged, despite their rightfully acquired ownership power over game
content, to respect certain aspects of game character freedom as solidly attached to the
real-world person. Hence, criteria perceived according to game character activity for
terminating game accounts are substantially constrained in view of considerable
infringements against basic human liberties, independently of the latter’s civil,
political, cultural or socially determined in law nature.
3.2 On the Restricting Counter-Effect of Law Against Legitimately Formulated
Private
The above analysis also answers implicitly the second question. Including previously
stretched out concerns towards unilaterally appointed liabilities in EULAs, ToS which
are contrary to public policy laws may be declared simply void or ineffective as
unfair.[43] For the benefit of the private initiative and of commerce in general,
though, any remaining clauses should be accepted as valid.
Similarly, the potential for suggesting proprietary rights against conducted
involvement with the online intellectual superstructure is viewed with rational
scepticism. Explicit threats of imminent exclusion from the game for ambiguous,
subjectively formulated reasons regarding off-game behaviour, extend unfairly the
contract’s sphere of effect beyond its pursued objectives. Unless found reasonable,
ToS of this type promote plainly unfairness and are thus ineffective.
The issues surrounding auctions of virtual property have raised a plethora of
arguments, focusing on similarly exhibited policies of banning accounts as a
countermeasure against off-game transactions. However, the endangered value as put
forward from the game companies’ perspective seems to be more relevant to the
essence of inner MMORPG activity,[44] and therefore lies within the EULAs’
pragmatically designated goals. Conceding to appointing users with absolute property
rights over game material would radically deprive private hosts of their basic
entitlements to data ownership. Therefore (giving though credit to voices disputing
vigorously in literature the efficiency of as such imposed exclusions) in this case
application of the unfairness doctrine lacks of comparative appropriateness.[45]
Gamers’ claims over game assets, however, appeal to an alternative legal reasoning,
seeking protection opposite to limits of liability that EULAs confer. In late 2003, a
Chinese court ruled that a game owner should restore a player’s lost virtual property
(game weapons), finding the Arctic Ice company 'liable because of loopholes in the
server programmes that made it easy for hackers to break in'.[46] The court diagnosed
'player controlled game resources as private virtual property', [47] discovering into the
EULA provisions limited user entitlements to both utilisation of game content and
unhindered participation, which the game company couldn’t safeguard against third
parties. Thus, instead of giving official consent to unilaterally exploited tools for
creating contractual inequalities, the first case in the world to address game assets
underlined the 'click-wrap' licence’s qualification as a guarantee for expediting fair
commerce.State regulation might intervene ex officio with game worlds and limit
various of the game companies’ self-determined powers, without being required to
adjudicate on the validity of either disputed EULAs or ToS. The examples in the
following paragraphs picture hypothetically made legislative adjustments in view of
protecting general public policies. Whether the specific incident of legally established
intrusion should reach beyond the game’s exterior contractual set-up into its playing
core is a matter that has to be assessed contextually, under the running circumstances
and the appreciated capacities of states to extent their authority in such manner.
Therefore, the market status of MMORPGs as commercially offered services or
products suggests evaluation of consumer standards in setting responsibilities upon
manufacturers and retailers, which might be enforced by law[48] and reconfigure the
deployment of liabilities.
Tax law could reconstruct the isolated game reality by formulating claim on content
related activities. On-line auctions of game items might provide users with alternative
sources of income.[49] States, whose citizens are massively involved into selling
game properties,[50] might seek out lost national revenues, despite the apparent
difficulties in enforcing efficient monitoring systems or in establishing jurisdictional
control, as the parallel case of online gambling has already demonstrated.
Interestingly, ratified taxability of profit made from game acquisitions would imply
indirect recognition of players’ proprietary rights over tradable virtual qualities and
undermine related host absolute rights.[51]
Finally, a different possibility is to conceptualise MMORPGs strictly under their
function as games. Even though sports have acquired partial independence through
privatisation, loose state control mechanisms have been set up in domestic legislation,
assessing the factual significant intersection of gaming events with societies and
politics.[52] Varying from providing assistance in organising events to actual –though
mild- regulatory interference to ascertain fair play, similar measures could find their
way to the MMORPG 'reality' through the states’ jurisdictional authority over game
companies registered with their domestic company records.
3.3 On the Fairness of Functionally Assessed Confines Against Intellectual
Online Interaction
The verdict on third of the identified problems is in the form of some general
conclusive remarks, reaching across the separate parts of this paper. In its smaller though more concretely demonstrated- scale the MMORPG example portrays sharply
the wider issue of intersecting functional and intellectual communities. To analyse
terms and conditions in the EULA models as underlying the game companies’ grip on
virtual material and online relationships, projects general ISP attitudes towards the
utilisation of disseminated services by the community of users. Respectively, EP
freedoms are revealed in game characters and restrictions over off-game conduct.
The importance of persistent virtual environments is gradually growing. In these
artificial worlds users define their EP as straightforward reflections of themselves.
Online identities represent more than names on screen or pre-set interface operations.
They reflect individual user consciousness and how persons understand their intellect
becoming integrated with the gathering of infinite communicants and information.
Through their EP users reinstate in digital terms their existence and, plausibly, pursue
its further development. However, the available means towards fulfilling these goals
are conditionally provided and owned by hosts.
Privately imposed restrictions on function and communications provoke user counteraction in search of self-determination; or, in reverse, attempts to establish partial EP
independence end up against counter-measures. Eventually, principles of social
involvement and activity collide with the almost absolute control that private hosts
maintain on the Internet. The extent to which ISPs may exert control over users has
been a hot topic since the AOL case.[53] Berman, cited by Lastowka and Hunter,
argues heavily that there are inherent community values, which precede the enforced
will of ISPs in private spaces.[54]
As the economical significance of intellectual property rights grows in modern
commerce, their adequate protection has become the requested standard in the writing
of ToS. Basic guarantees towards respect of public values however have been
ignored. As contractual agreements spread uncontrolled across the Internet, bringing
together participants from different jurisdictions, modern legal trends, as Brownsword
observes, adhere to regulating 'the bargaining procedure instead of the bargain per
se'.[55]
Functional communities may explicitly demand abstinence from particular activities,
conditioning access to their virtual premises according to their off-site
communications standards. Wherever a functional community renounces or restricts
fundamental freedoms outside its confines, especially when it performs as an access
point, it is due to its already discussed public character and therefore within the
public’s interest to inspect whether disposition of terms and thereafter exclusion
exhibit high-handedly abuse of its online role.
4. Conclusion
The call for revisiting the needs and priorities of current online structure might sound
as a morally motivated deontology. However, the need to realise that online
participants are not just market percentages or interacting monetary opportunities is
imminent and pressing. Sooner than expected, the exhibited ISP standards and
interests may be brought into question and exterior interference might be placed upon
the operation of private spaces in many different forms. In such a case, state action
could be enforced against both the space owners’ and users’ interests, in manners
more authoritative and harmful than commercial libertarians in the private sector have
so far surmised.
Notes and References
[1] Ultima Online main page at http://www.uo.com/. Note that functional groups do
not necessarily reflect an absolute closed networking model, since the relevant
software might enable access to distant external platforms e.g. via e-mail
communications.
[2] The distinction between the state of Israel and the Jewish nation provides a useful
example in this regard.
[3]Under this logic, hosts and operators of these virtual states, regardless their
appointed position as 'ISPs', 'virtual space owners', 'game owners' etc., are
apprehended in effect as the rightful rulers of private spaces. However, whether their
absolute rule goes unchallenged and consequently valid is thoroughly analysed in the
following paragraphs.
[4] Descriptively, the user utilises prearranged parameters in software to give shape to
her electronic vessel, deciding on his/her/its name, appearance and distinctive
features. For simplicity, the neutral gender will be from now on used when referring
to the EP.
[5] MMOGs involve the 'creation of persistent online universes where playing
acquires a continuous character regardless the presence or not of the individual
player.' From Wikipedia, at http://en.wikipedia.rg/wiki/MMOG .
[6] Castronova, E. (2002), 'On Virtual Economies', available online at
http://www.gamestudies.org/0302/castronova/ .
[7] The manifested potency of personality traits on avatars suggests for swifter
transfer of limited human rights protection into a structure apparently regulated under
a narrow private law scope; furthermore it latently justifies players’ intellectual
property claims over the owners’ preceding rights on game content. However, it
formulates more like a subtle moral background against unquestioned deprivation of
in-game privileges rather than an appropriately set up legal basis against EULAs and
supporting legislation. There is no space for mistakenly granted assumptions: players
are not endowed with particular legal sapience. Their justifications are de facto
expressed through their continuing online interaction, which to their knowledge or
not, in its practice it eventually defies the owners’ authority. Their understanding of
personal connections to the EP is purely instinctive and simplistic; it is not assessed
on any complex substratum of traditional legal science. What players do receive from
their involvement with the game world is a 'naturalistic' perception on possessing and
distributing the available sets of unrestrained information, similarly to what the wider
online community had had in mind regarding the shared MP3 files on the Napster
platform (before the court decision that changed radically its status). Especially since
participation in commercial MMORPGs is offered in exchange for payment, they feel
encouraged to practise rather boldly their standing attitude.
[8] There should be set a clear line between 21st century games that represent
exceptionally constructed 3D graphical realities and their static textual predecessors,
like MUDs and MOOs. MUDs (Multi-User Dungeons) are text based interactive
adventure games that were introduced on the Internet back in 1979. Through
descriptions, virtual locations are presented where players that 'move' around and
interact in a similar way to chat-rooms. MUDs included every element that made
adventure games popular, like puzzles and combats with monsters. An object oriented
MUD, which enables more sophisticated character representations, is called a MOO.
A list of MUD sites is available at www.mudconnect.com . [Penguin]. The reasons
behind the success of MUDs and MOOs are vividly described by J. Dibbell in his
famous across the Internet community book My tiny life (1998).
[9] The term fantasy defines a literature genre developed through works like
J.R.Tolkien’s Lord of the Rings, R.E.Howards’s Conan the Barbarian and
M.Moorcock’s Elric of Melnibone.
[10] Parallel to copyright related EULA breaches, copyright law penalises
infringements, see below 31 and 32.
[11] For example, if Origin Systems had opted out the French jurisdiction they should
have added a clause like 'not for selling, distribution and online connection in France'
on the retail package of Ultima Online. Appropriately rephrased, the same condition
would have included only desirable jurisdictions, e.g. 'for selling, distribution and
running only in U.S., U.K. and the Republic of Ireland'. This practice has been widely
adopted for the selling of home software, music and other multimedia products.
However, the already existing models function more like exclusionary policies against
the distribution of physical containers on specific regional markets rather than strict
measures against accessing online media content from different global regions. Few
EULAs pinpoint to this direction: the EULA of Asheron’s Call makes extended
references to export restrictions, although within the spirit of policies subject to the
Wasenaar Arrangement on Export Control for Conventional Arms and Dual-Use
Goods and Technologies, (http://www.wassenaar.org ). The desired effect is
indifferently set upon accessing the online service, as implied below under the term
'Restricted Components': …’You agree that you will not export or re-export the
SOFTWARE PRODUCT, any part thereof, or any process or service that is the direct
product of the SOFTWARE PRODUCT (the foregoing collectively referred to as the
'Restricted Components'),’ text available online at
http://www.fuzeqna.com/asheronscall/consumer/kbdetail.asp?kbid=307.
[12] The term derives from the act of tearing a plastic seal on the opening of software
packages. The licence, which described terms of use, was either on the box or inside
it. On the seal there was an indication that by tearing it (the plastic seal) the consumer
was expressing his full consent to the sum of included terms.
[13] In the landmark case of ProCD v Zeidenberg, 86 F 3d 1447 (7th Cir. 1996), the
court disputed the enforceability of licences only where the prescribed terms and
conditions become objectionable within the generic contract law context.
[14] In Compuserve v Patterson, 89 F 3d 1257 (6th Cir. 1996) it was agreed that the
manifested intent to comply with the terms of an online offer constitutes an
enforceable contract. Specifically regarding the 'click-wrap' model, the Court in
Hotmail Corp. v Van Money Pie, Inc., 1998 WL 388389 (N.D.Cal.), held that
violating terms of accepted online agreements entitle contracting parties to claim
breach. Moreover, service providers are entitled to proceed in terminating accounts if
such actions are included in the list of ToS and are estimated as necessary.
[15] As such are limitations to civil rights and freedoms like expression, movement
etc. For example, in employment contracts employees are usually held liable even
after the termination of their work relationship with employing companies, for
revealing trade secrets to market competitors. However, contractual freedom does not
cover 'excessive' arrangements, e.g. contractor’s consent to murder.
[16] Sony Online Entertainment (SOE) EverQuest EULA, par. 14.
[17] Council Directive 93/13/EEC, Art. 3(1).
[18] Mythic’s Dark Age of Camelot (DaoC) EULA.
[19] Supra 14.
[20] Par. 14 of the SOE Star Wars Galaxies EULA: 'This Agreement is governed in
all respects by the laws of the State of California as such laws are applied to
agreements entered into and to be performed entirely within California between
California residents. The UN Convention on Contracts for the International Sale of
Goods is expressly disclaimed. You and SOE all submit to personal jurisdiction in
California and further agree that any cause of action relating to this Agreement, your
Account and/or the Game shall be brought and maintained in a court in San Diego
County, California or, at SOE's option, in the state courts located within the County
of Marin, State of California or the federal courts of the Northern District of
California, and you waive any claim that either such forum is inconvenient. If any
provision of this Agreement is held to be invalid or unenforceable under the laws of
your jurisdiction, such provision shall be struck and the remaining provisions shall be
enforced – nothing herein is intended to interfere with your statutory rights except to
the extent permitted under applicable law. Our failure to act with respect to a breach
by you or others does not waive our right to act with respect to subsequent or similar
breaches. You may not assign or transfer this Agreement or your rights hereunder,
and any attempt to the contrary is void. This Agreement sets forth the entire
understanding and agreement between you and SOE with respect to the subject matter
hereof. Except as provided herein, this Agreement may not be amended except in a
writing signed by both parties.'
[21] The U.S. Uniform Computer Information Transaction Act (UCITA) s.109-110
accepts forum selection clauses in 'click-wrap' agreements as enforceable, unless they
are unreasonable and unjust. Therefore, courts could find grounds for invalidating
abusive terms.
[22]eBay’s Category 1654 (Internet games) can be found online at
http://listings.ebay.com/pool3/plistings/list/all/category1654/index.html?from=R11
For a more innovative exchange system provides the quite new GamingOpenMarket
(at http://www.gamingopenmarket.com/ ), which allows players to buy and sell the
'currencies used in the different game worlds' (BBC News online, Virtual Cash
exchange goes live, 7 January 2004 at
http://news.bbc.co.uk/1/hi/technology/3368633.stm )
[23] In a time period of 5 months (January through May 2004) an estimated amount
of 700,000 game items auctions took place only on eBay, for a total of
$11,302,491.58 (Figures from Proskenion, E. Castronova’s website at
http://business.fullerton.edu/ecastronova/ ) It has to be noted that following the events
below, in note 24 and the accompanying text, sales of items from EverQuest, the most
popular MMORPG in the western market, are not included in the above given
numbers.
[24] CNet news line, 10 April 2000, Sony to ban sale of online characters from its
popular gaming sites, available online at http://news.com.com/2100-1017239052.html?legacy=cnet.
[25] However, at the time of this paper’s writing, virtual assets of Star Wars Galaxies,
another SOE game, were being widely traded on eBay; exclusions, though, from the
specific game world, disputed on grounds of unauthorised auctioning conducted in
breach of the appropriate EULA, have already been reported. On
terranova.blogs.com, user B. Kiblinger describes on 2/11/03 how SOE banned his
SWG accounts and e-mailed him the following:
'Your Star Wars Galaxies account with the station name of ‘X’, has been suspended
for up to 10 days with review for further action, for violations of our Terms of Service
Agreement: specifically, the sale of in game credits on Ebay. At the end of the
suspension, we will determine if further disciplinary action needs to be taken, and
contact you with our decision. If there is further change in status to your account, you
will be contacted at this email address. If you have any question regarding the station
of your account please email SWGSupport@soe.sony.com.'
[26] Par. 8 of SOE’s EverQuest EULA.
[27] Sharing his opinions with other game-designers in an online special feature, B.
McQuaid, co-designer of EverQuest and both president and CEO of Sigil Games
Online, Inc., commenced on the proprietary issue that '[t]he whole concept of who
owns virtual property has to be nailed down […] in favor of the
developer/publisher/host. The stewards of the game have GOT to be able to tweak the
game to maintain its health without worrying whether their decisions are affecting
someone's real property. That would handicap them to the point where, literally,
there'd be no need to even make these games. For example, if the ref in a soccer game
can't make a judgment call, say 'red card' a player, removing him from the game,
because that player has played so long he somehow owns the field or the ball or some
other element of the GAME, then there is NO game. It ceases to be a game.' (from
The Future of Massively Multiplayer Gaming, special extended feature on the gaming
website GameSpy, September through November 2003 - available online at
http://archive.gamespy.com/amdmmog/week8/index4.shtml)
[28] Hence, the same game quality complies with legal analysis from either a property
or an intellectual property perspective. The term 'representation', for example,
combines both scopes in defining game items or characters, according to the way they
are being perceived on screen. First, it pertains to loose 'tangibility' when objects in
the virtual environment interact with each other and produce digital results, e.g.
Doonkan picks up a knife and permanently destroys it, or when they are being sold on
eBay. On the other hand, the onscreen 'representation' under intellectual property
rationales denotes a unique (patented) visualisation style in designing and depicting
computer graphics which has been adopted for distinctively externalising the running
fiction theme of the game.
On different grounds, the functions of real-world bank accounts are simulated on the
game system, which stores the acquired or developed virtual assets in personally
assigned spaces as property for safe-keeping and further utilisation by the rightful
user. However, the stored content in the account may be differently perceived as an
interactive 'chapter' of digital literature, similar to interpretations of software in law.
[29] Lastowka G. & HunterD. (2004), ‘The Laws of the Virtual Worlds’, California
Law Review, Vol. 92, No. 1, p. 39, p.61, note 324, citing Williams Electronics, Inc. v.
Artic International, Inc., 685 F.2d 870 (3d Cir.1982): 'Defendant also apparently
contends that ... the player becomes a co-authorof what appears on the screen'.
[30] The EULA of City of Heroes in 2004 (available online at
http://www.plaync.com/help/eula_coh.html ) utilised more accurate descriptions and
terminology.
[31] Title 17 of the U.S.code, after the introduction of the DMCA, in Chapter 12:
Copyright Protection and Management Systems -§ 1204:'Criminal offenses and
penalties (a) In General. — Any person who violates section 1201 or 1202 willfully
and for purposes of commercial advantage or private financial gain — (1) shall be
fined not more than $500,000 or imprisoned for not more than 5 years, or both, for
the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for
not more than 10 years, or both, for any subsequent offense…' while Title 18, Part I,
Chapter 113: Criminal Infringement of a Copyright - §2319 provides for
imprisonment penalties.
[32] More controversial and strict against infringements appears to be the new
Directive 2004/48/EC of the European Parliament and of the Council on the
enforcement of intellectual property rights (available online at http://europa.eu.int/eurlex/en/refdoc/L_157/L_2004157EN_1.pdf ) Earlier intense criticism against the
Directive argues that it 'gives intellectual property holders broad new subpoena
powers' and characterises it as 'the DMCA on steroids'. (source P2Pnet.net, EU's
Intellectual Property Enforcement Directive, online at
http://www.p2pnet.net/article/7396 )
[33] Economies that centre upon exploiting extensively the uninterrupted assimilation
of branded technologies in various fields of social elevation, like health treatment,
communications and transportation, are expected to pursue stabilised and dominant
legal protection for ensuring their status.
[34] What is fan fiction? 'Fan fiction (commonly abbreviated to 'fanfic') is fiction
written by people who enjoy a film, novel, television show or other dramatic or
literary work, using the characters and situations developed in it and developing new
plots in which to use these characters. (As a matter of historical interest, it should be
noted that in the pre-1965 era, the term 'fan fiction' was used in science fiction
fandom to designate science fiction written by members of fandom and published in
fanzines, as distinguished from fiction professionally published; this usage is now
obsolete.). Fan fiction has come to the fore especially since the rise of the Internet,
where it flourishes despite the possibility that it infringes the copyright of the film,
book, TV show, or other media on which it is based.' From Wikipedia, online at
http://en.wikipedia.org/wiki/Fan_fiction.
[35] The events surrounding the incident were vividly narrated by online reporter S.
Brundage in EverQuest Strips the Dark from 'Dark Elf', now available online at
http://www.gamegirladvance.com/mmog/archives/2002/10/21/stripping_the_dark_fro
m_dark_elf_in_eq.html .
[36]Accordingly, MMORPGs EULAs prescribe absolute ownership over fan-fiction
that has been sent in good faith to any Internet sites operated by the game owner: 'We
may take any action with respect to your content if we believe it may create liability
for us or may cause us to lose (in whole or in part) the services of our ISPs or other
suppliers. You hereby grant to us a worldwide, perpetual, irrevocable, royalty-free,
sublicenseable (through multiple tiers) right to exercise all intellectual property
rights, in any media now known or not currently known, associated with your
content.' (emphasis added).
[37] DAoC EULA.
[38] Where Andy Warhol’s 'portrait' of a Campbell’s soup can indicated artistic
expression, constant cross-references to icons or brands like Marlboro and Coca-Cola
in literature, audio-visual works and -most importantly- in daily social activities,
clearly underline a trend turning into a living part of our civilisation.
[39] Articles 29§1 and 27§1 of the Universal Declaration of Human Rights,
respectively.
[40] Reichman, A., ‘Property Rights, Public Policy and Limits of Legal Power to
Discriminate’, p. 251 from Friedman & Barak-Erez [eds] (2001), Human Rights in
Private Law.
[41] Ibid. p. 255. Reichman analyses property rights, as applied to commercial
grounds, through a conception of reciprocally expressed respect. Property claims form
demands against the society to respect the right-holder’s sovereignty. However, the
same society that endorses the right-holder with these rights expects him to show
equal respect towards the entire line of its protected values. Therefore, in rem rights,
as Reichman puts it, by becoming ipso facto selective on their exhibition of power
(e.g. proprietor’s choices on who gains access to her land) show disrespect to the very
community from which they demand approval. Limits to the private right holder’s
exercise of power could be sought out against interference with the integrity of the
community, e.g. exemptions based on religion, political beliefs etc. In other words, 'in
putting forward a claim against the entire community, the owner has to respect the
community in its entirety'. Although it is difficult, close to impossible, to imagine
companies refusing entrance to game worlds on discriminating criteria such as colour,
political identity etc., there are groups emerging from the Internet subculture which
constitute lively parts of an online digitised ethnography. Therefore, discrimination
could be inquired on different levels of functional or intellectual group identity e.g.
the e-mail domain or server of origin, allegations of participation in specific online
newsgroups etc.
[42] Protection of property as a human right (Art. 17 of the U.N. Declaration) is quite
frequently overlooked.
[43] The previously discussed Council Directive 93/13/EEC, and under UK law the
Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts
Regulations 1999.
[44] In May 2004, Turbine Entertainment Software Corp. 'notified eBay to remove
auction listings for the sale of Asheron’s Call accounts/character and in game
housing'. Turbine’s decision pinpointed virtual material being reserved for auctions
while players were prevented from participating in the in-game mechanisms of
property acquisition. In other words, players were deprived of their virtual winnings,
the rewarding stage of the game. From this perspective, it is the intellectual
community which leaves its negative impact upon the narrower functional. Off-site
brokers exploit the game structure and 'isolate' parts of it, similarly to building walls
in the middle of a football pitch.
[45] Instead, users’ entitlements to their EP would construct a more suitable defence.
However, it is debated whether claims to alleged digital personality rights are
sufficient challenging when users breach fairly set up ToS and leave hosts with no
further options than terminating game accounts. There lies further controversy
regarding the lightly touched upon in this paper issue of the actual legal nature of
contested game characters: can there be defined clear connections to users under a
predicament of co-authorship or do game companies rightfully contest full authority
over game content, as long as applied EULAs pursue fairly such an objective?
[46] ‘Online game company taken back to court for virtual theft’, China View
11/02/2004, available online at http://news.xinhuanet.com/english/200402/11/content_1310083.htm - ‘Gamer Wins Lawsuit in Chinese Court Over Stolen
Virtual Winnings’, TechNewsWorld, 19/12/2003, available online at
http://www.technewsworld.com/story/32441.html - ‘Court Grants Online Chinese
Gamer Virtual Property’, ChinaTechNews, 21/12/2003, available online at
http://www.chinatechnews.com/index.php?action=show&type=news&id=540 .
[47] ‘Online Gamer Wins Virtual Theft Suit’, BigKid.com.au, 22/12/03 available
online at
http://www.bigkid.com.au/2003/12/22/online_gamer_wins_virtual_theft_suit/.
[48] The impact of online games can not be assessed on similar parameters to e.g. cars
that do not fulfil safety requirements or food products with damaging effects on
health. However it is evaluated according to logically outlined standards like software
conveying virus from its manufacturing source or the quality of offered ToS and
compulsory formalities.
[49] J. Dibbel, ‘The Unreal Estate Boom’, Wired magazine, Issue 11.1, January 2003,
available online at http://www.wired.com/wired/archive/11.01/gaming.html.
[50] Author and journalist Julian Dibbell decided to test the current U.S. revenue
system by reporting his income for the year 2003 as deriving exclusively from the sale
of virtual assets. At the time of this paper’s writing, the Internal Revenue Service
hasn’t yet replied to his statement, while the online community anticipates with great
interest the final outcome of what Dibbell addressed as 'a dubious proposal'. Dibbell’s
website available online at http://www.juliandibbell.com/playmoney/index.html .
Additional reports from Wired, ‘But Will IRS Accept Virtual Cash?’ 24/03/04 at
http://www.wired.com/news/games/0,2101,62738,00.html and ‘Virtual Trader Barely
Misses Goal’ 16/04/04 at http://www.wired.com/news/games/0,2101,63083,00.html from Guardian, ‘Real profits from play money’ 15/04/04 at
http://www.guardian.co.uk/computergames/story/0,11500,1191852,00.html - and
from BBC, ‘Making money from virtually nothing’, 11/08/04 at
http://news.bbc.co.uk/1/hi/technology/3135247.stm.
[51] Assuming that the gamer status became a taxable personal quality, under the
predicament that it constitutes alternative online business, the law would have to
recognise an equal number of rights and responsibilities for users in respect of their
income earning practices, going even that far into 'measuring' game-world
interactivity. Bearing two-edged results, such an outcome would institute the basis for
further players’ personality claims against game owners but would equally disrupt the
game pretence and ruin permanently the entertainment purposes and operation of
MMORPGS.
[52] Not to forget the Heysel disaster of 29 May, 1985, which led to the deaths of 39
Italian and Belgian fans, hundreds of injured, and a five-year blanket ban on English
clubs in European football.
[53] AOL in Cyber Promotions v. America Online, Inc., 948 F. Supp 436 (E.D. Pa
1996).
[54] Supra 29, p. 60: '…whether AOL is public or private, there are certain values that
we hold as a community, values that AOL may be threatening'.
[55] Brownsword, R. ‘Freedom of Contract, Human Rights and Human Dignity’, p.
186 from Friedman & Barak-Erez (2001), supra 40