INTELLECTUAL PROPERTY RIGHTS IN COMMUNITY BASED VIDEO GAMES
INTELLECTUAL PROPERTY RIGHTS IN COMMUNITY
BASED VIDEO GAMES
By Ren Reynolds
phone +44(0)7778285273
email ren@aldermangroup.com
web: www.renreynolds.com
[abstract]
Ownership of player-characters in Massively Multiplayer Online Role Play games is a
highly contentious issue. This paper explores the applicability of property rights from
the point of view of current law and legal philosophy. The paper concludes that
player-characters have an ontological status separate from either ideas or physical
objects thus the implicit ontology of law would need to be expanded and codified to
accommodate them. But that there is also a strong extension of self argument to
suggest that property law is inappropriate for settling such disputes. Thus there is a
pressing need to examine the expansion of human rights not property rights.
[keywords]
computer game, MMORPG, virtual, intellectual property law, ontology.
1
Introduction
When we use a computer network it often seems as if we have entered a virtual world.
We commonly talk as if we and other people exist within some virtual realm that is at
once immaterial and very real. But transactions conducted on computer networks are
intrinsically mediated, so what does it mean to say ‘I am on-line’?
In this paper I will address this broad question by looking specifically at virtual
environments know as Massively Multiplayer Online Role Play Games (MMORPGs)
and issues surrounding the ownership of game characters. I will examine current legal
practice and apply Locke’s schema of private property ownership to assess whether
this classic approach to property rights has any currency within the virtual realm and
whether it can illuminate broader issues.
This approach to questions of virtual identity and property has been adopted for two
reasons. First, game spaces and the player-characters that inhabit them, are most fully
realized instantiations of what is popularly known as cyberspace (Gibson, 1984). Thus
they are a good indication of the future of on-line mediated interactions. Second,
player-characters are highly valued. Their ownership is an area of current dispute
between players and game developer-publishers. More broadly this approach forces
us to examine the law’s implicit ontological stance and whether this is adequate to
deal with entities such as game characters.
Section 2 of this paper provides an overview of MMORPGs, section 3 examines the
nature of player-characters, section 4 provides an overview of current law, section 5
dealing specifically with the application Intellectual Property law to MMORPGs,
section 6 is a Lockean analysis of property rights in MMORPGs and section 7
concludes.
2
MMORPG 101
MMORPGs are online virtual world based games that have their origins in traditional
role-play games such as Dungeons and Dragons, and early community computing
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projects such as Multi-User Dungeons (MUD’s). Popular contemporary MMORPGs
like EverQuest, Ashron’s Call, Ultima Online, Anarchy Online and Lineage all
operate on a roughly similar model. A player purchases software for their computer,
with this software they connect to a server to play the game.
The ostensible point of an MMORPG is character progression i.e. to complete quests
and to increase a player-character’s level and in-game power of ones character
(Oliver, 2002). While character progression is the intended purpose of an MMOPRG
they are in fact used by the millions of registered player \ participants for a wide
variety of purposes. For some they are virtual communities (Rheingold, 1993) much
akin to chat rooms, for others they are spaces to create works of art (Stern, 2000) or
commercial spaces (Brundage, 2000; Cartner, 2002; Castronova, 2001).
2.1 Controversies
Whilst technically accurate the above description of MMORPGs fails to convey the
emotional value that participation in the game has for players and the economic value
that the game represents to game developer-publishers. The passion and cash
generated by MMORPGs has lead to a host of controversies both between players and
developer-publishers, and among players themselves. A number of these
controversies have gained media attention, a smaller number have gone to court. The
following case studies illustrate the kind of issues that are under contest and the forms
of legal remedy that are applied in an attempt to resolve them.
Selling characters
MMORPGs are designed such that it should take many hours of effort to build a
character to a high level. A market for high-level characters has developed around the
most popular games (Castronova, 2001; Muldoon,1999; Morris, 2002) where players
develop characters to high levels for the express purpose of selling them to other
players. In April of 2000 EverQuest’s publisher Sony On-line Entertainment (SOE)
and developer Verant Interactive (a division of SOE) formed an agreement with
online auctioneers eBay and Yahoo! preventing the auction of EverQuest characters
(Taylor, 2000). Up to this point there was a thriving trade in both characters and ingame artefacts such as swords, fishbone earrings and magic capes earning prices of up
to $1400 per item (Sandoval, 2000). Edward Castronova recently calculated that if
EverQuest’s game-world Norrath were a country, then the real world trading of
characters, artefacts and services would make its GDP 77th in the world putting it
between Russia and Bulgaria (Castronova, 2001; Lichtarowicz, 2002).
SOE banned individual players from EverQuest for alleged acts such as Item Farming
(Asher, 2000). There has subsequently been a general (but not unanimous (Taylor,
2002)) reaction against SOEs actions. Including the launch, then mysterious
disappearance, of a class action against SOE, Verant, eBay et al. The text of the class
action argued that banning the sale of player-characters was in fact a constraint of the
right to trade “time for money” (Anon, 2001) thus constituted an unlawful restriction
of trade.
Fan Fiction
One of the many fringe phenomena that have gained popularity through the cultural
development of the Internet is Fan Fiction a.k.a. FanFic, and its bizarre sub-genre
Slash Fiction (which deals exclusively with gay relationship between characters). Fan
Fiction is the creation of literature by either individuals or groups, based on characters
and settings derived from existing popular works. Fan fiction is most notable in media
genres with active fan bases e.g. Science Fiction and Fantasy. Television series such
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as Star Trek, Buffy the Vampire Slayer and Xena appear to be most popular loci of
FanFic, though literary sources such as Harry Potter are also prominent. The name
‘Slash Fiction’ is derived from the way that the original Star Trek based Slash stories
were denoted as “Kirk \ Spock” pronounced ‘Kirk slash Spock’ (Stentz, 1998).
Examples of Slash can be found in almost any genre e.g. pop music - specifically ‘boy
bands’, and ‘cult’ television such as Big Brother.
MMORGs also serve as the inspiration for, and setting of, FanFic. Recently a player
who’s character name was ‘Mystere’ was banned from EverQuest for posting a piece
of EverQuest FanFic that included references to rape (Taylor, 2002). Moreover SOE
caused the story to be removed from the web site on which it was posed even though
this was not a SOE or Sony owned site. SOE asserted that these acts were within its
rights because, as Andrew Zaffron, general council for SEO, stated “[SOE has] the
exclusive right to permit or disallow the outside use of our intellectual property”
(Mulligan, 2000; see also Smedley, 2000).
In both of these cases intellectual property rights have been asserted in order to
control some aspect of an MMORPG – what the rest of this paper will explore is the
validity of such assertions.
3
What is a player-character ?
The above case studies demonstrate MMORPGs are more than a fictional battleground. Since the inception of MMORPGs there has been a continual struggle over
who controls the virtual world. Although these disputes are often couched in terms of
property, the issue that they expose is that there is uncertainty about what MMORPGs
and the elements of which they comprise actually are. For example, in the case of
selling players-characters, SOE asserts that player-characters are their property as
they are components of a game they own. Whereas players assert that playercharacters, while existing within the game world, are in some sense separate from it
and in fact are the player’s own creation, or at the very least SOE and players are
equal participants in the creation of an on-going game \ narrative (Mactavish, 2002).
The specific question that underlies this dispute is – what is a player-character ? After
this has been clarified one can then ask whether the assumption of both game creators
and players that property rights can be vested in player-characters is valid and if so,
who the rightful owner is.
3.1 Simple Categories
Player-characters are no exception from the problems of Reduction and Relativity that
plague all ontological analysis (Dejnožka, 1996). Thus taking into the account the
purpose of this paper, it is sufficient to derive player-characters’ ontological states by
identifying each of the levels of abstraction in which they are constructed and operate,
just so long as each state is self consistent within its level of abstraction.
Ostensibly player-characters exist within the virtual world of the game. From an
instrumentalist point of view they are an interface into that world. At a ‘logical’ level
they subsist as underlying database records (i.e. structure and attributes), and a matrix
of application algorithms. At a physical level they have instantiation in electrical
impulses and patterns of ferromagnetic material. Moving in the opposite metaphysical
direction; socially, player-characters exist as entities within a complex web of social
relationships formed through performance (Laurel, 1990) and are essential in the
construction of the player \ player-character nexus that surrounds the game world.
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3.2 Player-character as self
Recent models of self have broken away from the essentially Cartesian view that has
dominated modernist thought. Such models are particularly instructive when we seek
to understand our relationship with the virtual in general and player-characters in
particular - because they highlight the cybernetic relationship i.e. one of mutualfeedback (both mental and physical) that we have with virtuality. Enabling us to
understand the virtual as a very connected ‘prosthetic, reality’ (Simmons, 1995)
rather than the separated other that the Cartesian model forces upon us.
For example, Poster has noted that in the case of using a computer to write - “the
screen-object and the writing-subject merge into an unsettling simulation of unity”
and more strongly that “Identity is dispersed in the electronic network of
communications and computer storage systems”(Poster, 1990). Similarly Turkle has
employed ideas derived from theorists such as Lecan and Foucault to emphasise the
very real physiological states behind the idea of a ‘decentred subject’ (Turkle, 1995)
particular in reference to the use of online communities.
But as Žižek has pointed out, some of these arguments may be taken too far since we
can fall into the metaphysical trap of asserting “there is no external reality. RL is just
another window” (Žižek, 1997).
In the case of computer assisted writing, what is it that we really ‘merge into’ ?
(Poster, 1990). Is it the computer itself, the word processor, or the words ? If we assert
that through the act or writing we share an identity with a program such as Microsoft
Word and attempt to act upon this assertion - then we might soon end up in court with
Microsoft. Also, when we use Word the program remains largely unchanged. So it
cannot be with this that we are merging. No, Word is clearly a tool though which we
generate text, and it is with this text that our identity merges.
Applying this model to an MMORPGs we have a strong argument for playercharacters to have the additional ontological state of being an extension of self, that is
they share the identity of a person with the player. What’s more they are clearly
separate form the game world in which they exist. Under Žižek’s schema playercharacters are an example of the “many person outside a single body” model (Žižek,
1997).
We can now examine in detail the legal mechanisms available for settling disputes
over player-characters in the light of the ontological categories established in this
section. In this way we can potentially judge the applicability and adequacy of current
laws when dealing with the cases at hand.
4
Law
Law is a codification of a set traditions and principles many of which stretch back for
centuries. Thus there is a constant tension between the historic applicability of law
and contemporaneous practices and technologies. Digital technology in particular has
raised many questions about the adequacy of current legal thought. However, even
though the law may not explicitly keep pace with technological changes this is not an
argument in itself to clutter legal ontology with strange creatures that may prove
either to be weak bearers of legal principle or strong but ephemeral entities that are
rapidly left behind by further technological advances.
The question that this section of the paper addresses is: what ways, if any, are playercharacters recognised in law and is the present law adequate to produce sensible
outcomes when used to resolve the type of issues raised in the case studies above ?
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4.1 Databases
One recent advance in law, at least in the EU, is the recognition of a database i.e. the
EU Database directive (Directive 96/9/EC). As one of the states ascribed to a playercharacter is that of a database it seems that player-characters are clearly defined in
law. However if one inspects details of the directive it soon becomes clear that playercharacters evade its definition and do not enjoy its protection.
That is, if we take the super-set of all player-characters to be the ‘database’ and apply
the Directive, we find under Paragraph 15 that “the selection or the arrangement of
the contents of the database” must be “the author's own intellectual creation”. But as
the individual contents i.e. the player-characters that make up the database, exist as
entries by virtue of individuals choosing to play the game, there is no database
Author.
Similarly, if the ‘database’ is taken to be the set of attributes of a given playercharacter, there again fails to be a legal Author as database records are generated
while successfully performing certain tasks within a game, which does not constitute
either selection or arrangement.
Thus we are returned to traditional areas of law to seek definitions of the status of
player-characters.
5
Intellectual Property Law
The area of law most cited in the case studies above is Intellectual Property Law. Both
sides of each dispute assume that player-characters are potential items of property and
specifically intellectual property. This section examines the validity of these claims.
In summary, Intellectual Property Law codifies the ownership of products of the
human mind. Intellectual Property law includes familiar legal instruments such as
Copyright, Patent and Trade Mark, and less familiar instruments such as the so called.
Moral Rights and Rights of Publicity.
To put this in context, broadly speaking there are two areas of property law: general
property law, which deals with physical things such as land or cars or clothes; and
intellectual property law, which deals with ideas. To cast this into Token-Type
language one can say that property law deals with types for which there is only one
token, and intellectual property law deals with types for which there can be multiple
tokens. Though it should be noted that this distinction is one of application. That is,
for an idea to be covered by intellectual property law it must have at least one
expression. For example, the idea for a novel must actually be written down. But
when the novel is written down it becomes instantiated in a particular physical object
to which general property law apples. Thus if I am the Author of a novel and you steal
a copy of that work from my bookshelf you have stolen my book not my novel. If
then you reprint the work with your name as author, you have stolen my novel.
As we have established above that at the level of abstraction with which we are
concerned, player-characters do not have a physical instantiation, and the case studies
at hand specifically cite intellectual property law; so I shall deal herein with the
applicability of each area of intellectual property law to player-characters.
5.1 Patent and Trade Mark
Patents are the legal instruments used to protect inventions. They grant a form of
monopoly to an inventor for the exploitation of that invention. Under English law an
invention is patentable if: it is new; it involves and ‘inventive step’; it is industrially
applicable and it is not excluded by virtue of, in the specific case of English law, the
Patents Act 1977(Philipps & Firth, 2001). Now as industrial application requires a
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patent to be directly usable in the creation of a product, that is a physical object we
can exclude patents from our discussion because player-characters are not something
that have, in this sense, industrial application.
Trade Mark law provides protection for badges of trade such as a name (trading,
brand of company) or logo. Thus as a player-character is not a name or a logo it
cannot by protected by Trade Mark. However attributes of a player-character can. A
name for instance could be Trade Marked and applied to a player-character, similarly
issues may arise where pre-Trade Marked names are applied to player-characters. If
for instance a player with a grudge against the publishers of EverQuest named their
character ‘IhateSOE’ then SOE would be likely to have a claim under Trade Mark
law. Similarly the physical appearance of character could be incorporate Trade
Marked logos wherein the same type of issue would pertain.
5.2 Copyright & Moral Rights
Copyright and so-called Moral Rights are both based on the concepts of an ‘Author’
and a ‘Work’. Copyright is an odd legal entity, it is a legal right to exercise legal
rights of property on certain Works. In effect it is a grant of limited monopoly that an
Author can use to prevent other from making copies of the Work. Importantly while
Copyright originates with an Author, it can be traded (Philipps & Firth, 2001).
Moral Rights on the other hand pertain directly to the Author of a work, they provide
for example for the Author to be recognized as the Author; for the Author to
determining whether a work is complete, whether and how it should be made
available and that it should retain its integrity as a Work.
Thus Copyright and Moral Rights are well understood when one can clearly identify
an Author and a Work. But Copyright has its origins in the world of print where
Authors and Works were simple to identify and categorise. As technology has
changed Copyright has sprinted to keep up. At present there is good precedent for the
protection of works such as literary works, broadcasts and performance, however
there are many grey areas in the digital field most of which come down to an
understanding or either what is a work and who (if anyone) is the Author is (or both).
Author & Work
The legal definition of these two terms is best taken in reverse order. A Work is a
product of human endeavour that is original, recorded and has an identifiable Author.
An Author is one who creates a Work. Thus for Copyright and \ or Moral Rights to
apply to player-characters there must be an identified Work and an associated Author.
In the case studies above it’s assumed that a player-character is a Work and either the
player or the developer-publisher is the Author of that Work. However there is
another way to interpret the state of affairs in property rights terms. If a playercharacter is an extension of self, then potentially the player \ player-character is the
Author and the Work, if any, is not the player-character but, for example, its
performance.
Developer-publisher as Author
So is there a legal argument to support the position a developer-publisher as the
Author of a player-character Work ? This position can be explored through an
examination of Fan Fiction. Just as in the case of Mystere, many authors, publishers
or broadcasters have attempted to assert their rights of Copyright to restrict or prohibit
Fan Fiction. In practice the weight and expense of lawyers tends to be on the side of
the company rather than the individual FanFic creator. However some legal theories
have challenged the prevailing notion that copyright in ‘original work’ extends to
FanFic. For example Rebecca Tushnet argues that Fan Fiction is a transformative use
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of a Work that takes time and effort; that they are not duplications of an original text;
that where FanFic is parody or departs greatly from the tone of the primary text
clearly separates itself from that work (i.e. there is no claim of substitution to be
made); that Moral Rights of Authors who’s works are for the mass media do not enjoy
the same extent of rights, specifically that characters in some way belong to the
audience; moreover that unless a character ‘constitutes’ the story being told (in a
copyrighted literary or similar work) they are within the scope of that copyright
(Tushnet, 1997) - thus Copyright is likely to reside with the Author or Authors of the
piece of Fan Fiction.
Moreover, in the specific case of EverQuest, Taylor has pointed out SOEs position as
definitive Author is problematic as EverQuest itself draws not only on the estate of
Tolkien in its use of “orcs and “halflings” but also has a command structure that is
“strikingly similar to a flavour of MUD called DIKU’ (Taylor, 2002). What’s more
the very essence of Role Play Games from the point of view of the developerpublisher and a large number of the player \ participants is the generation of
community fictions. A position that seems to defeat the developer-publisher’s own
claims of authoritative Authorship, a claim that the arguments above render tenuous at
best.
Player as Author
The alternative position – that of Player as Author, is similarly difficult to sustain. If
one is to assert that a player is the Author of a player-character, then under the present
codification of Intellectual Property law, the player characters must be a Work.
Player-characters require human endeavour in the their creation and development, but
while endeavour is a necessary condition of a Work, it is not sufficient. A Work must
also be original and recorded in an appropriate form.
But the originality of any player-character is difficult to sustain because while playercharacters do have unique elements e.g., their name. Other elements are simply field
with a set and finite range of values, such that it is more than likely that for any give
character there exists a digital-doppelganger in all but name.
Thus there seems no defence in law for the position of a player as the Author of a
player-character as player-characters are not Works.
Player-character as Author
What then if we attempt to establish the player-character as Author ? It may appear
that this would flow directly the assertion that a player-character is an extension of
self. But the legal status of Author is not a metaphysical claim. Rather it is the narrow
claim that something is the identified creator of a Work. Thus for a player-character to
be an Author we must be able to identify a corresponding work. As we have
established that a player-character is not itself a Work, we cannot make some self
referential claim for Authorial status (though this would be legally dubious anyway as
while many artists have claimed that they are living works of art (Jahn, 1989) this has
no status in law as a Work has to be recorded and a person is not recognised as a
legitimate recording device).
Two candidates for a Work are any form of art created by the player-character in the
virtual world the performance of the player-character itself. The first of these – works
of art, seems to pass the recording test as we could take a screen shot or photograph of
the work Also given the permutations of virtual-object and arrangement there should
be no problem with the test of originality. The only issue that remains is one of labour
i.e. is a player-character something that can perform labour ? Here we are thrown
back to metaphysics as players certainly can perform labour. Thus if we make the
strong claim that a player \ player-character is a single person then it seems we can
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establish Author status for art Works within the game-world – though in practice this
would likely generate a secondary dispute over copy right in the art work. Deriving
Author status from performance gives us the same argument but with a slightly
weaker claim as forms of recording a performance may be moot.
5.3 IPR Summary
The arguments above demonstrate that under current Intellectual Property Law (the
law applied most often in disputes over player-characters) player-character are not a
Work, are not subject to property rights and are thus not owned by either the
developer-publisher of a game or any individual player.
What we can demonstrate however is that there is an argument to support the view
that the status of Author may accrue to player-characters, but only in the case where
there are Works i.e. original, recorded, products of labour.
This raises the issue of whether property law in general and intellectual property law
in particular is the appropriate forum for settling disputes over player-characters. But
the fact that the current codification of Intellectual Property law does not
accommodate player-characters is not sufficient justification to abandon this area of
law completely. Rather we should look to the philosophical underpinnings of property
\ intellectual property law to discover whether a coherent property based argument
can be established around player-characters that could provide a guide to the further
development of law in practice.
6
Labour Theory
There are commonly thought to be four areas of theoretical thought underlying
Intellectual Property law (Fisher, 2001). These are: Utilitarianism (Landes & Posner,
1989); Labour Theory (Shiffrin, 2001); Personality Theory (Hughes, 1988), and
Social Planning Theory (Netanel, 1996). For considerations of space on Labour
theory will be examined here.
The reason for selecting Labour theory is that labour most cited motivation for
player’s challenge to the property claims of developer-publishers. Moreover there is
currently an active debate about the scope and applicability of Locke to contemporary
Intellectual Property law.
6.1 Labour theory 101
Locke’s theory is predicated on a state of nature where all is held in common until
labour is applied to it. Then, within certain limits, things may become private
exclusive property in virtue of an extension of self-ownership argument.
The theory assumes a world where physical labour is being applied to physical
objects. Player-characters, at least at the level of abstraction with which we are
dealing, are non-physical. Thus, to find a theoretical underpinning for their status as
property, we need to seek areas of theory that apply across the physical and nonphysical or at least good theoretical parallels which can be applied to the nonphysical.
Hence, in the following section Locke’s labour theory shall be applied a generic
MMORPG at a single level of abstraction where we have a Game, Player-characters,
a game Developer-publisher and Players.
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6.2 The common
A perennial issue with the application of Locke to the ownership of non-physical
items is the concept of the ‘common’ i.e. the state of the world or some part therein
before labour is applied.
Sean Valentine Shiffrin defines the three possible states of the ‘initial intellectual
common’ as: (a) underlying ideas are in the initial common but not works, (b) the
common is empty, and (c) all intellectual works are in the initial common (Shiffrin,
2001). For the moment we shall assume that the intellectual common is the same as
the non-physical common i.e. the set of non-physical items of putative property is the
same as the set of intellectual items.
So applying these states to the question of whether player-characters are potential
items of property we get: (a’) if underlying ideas are in common but not works, then
the status of a player-character must be a work i.e. a work distinct from the game
itself; (b’) if the common is empty then again a player-character must be a work
distinct from the game itself and (c’) if all intellectual works are in common then for a
player-character to be privately owned it must have at least one unique property from
other products of intellectual work.
6.3 (a) Underlying ideas are initial common but not works
Shiffrin’s first state of the initial intellectual common is that ideas are common but
works are not i.e. there is some Platonic realm of ideas e.g. 2 + 2 = 4 or the very
notion of number and addition, which is common, but products and potentially
combinations of these ideas e.g. the idea of a calculator, are not. And thus can be
owned. Applying this to our generic MMORPG we have four possible states (i) game
and player-characters are common, (ii) game is common but player-characters are not,
(iii) player-characters are common but the game is not, and (iv) game and playercharacters are not common.
(a) (i & ii) The Game is Common
Assuming the Game is common, does Locke’s theory provide support for noncommon status of player-characters and thus a basis for their private, exclusive
ownership ? Applying Locke’s theory we have:
Mixing of Labour argument
Locke’s first condition of property is “Whatsoever then he removes of the State that
Nature hath provided, and life in, he hath mixed his Labour with, and joined to it
something that is his own, and thereby makes it his property”. In the original ’state of
nature’ of an MMORPG, player-characters do not exist. Rather they enjoy a neoPlatonic state, where every possible character is defined by the finite set of potential
states established by the game rules and configuration. Actual characters are only
called into existence through an individual player obtaining a copy of the Game and
creating a character through their labour. Hence there is an argument, parallel to of
Locke’s example of picking an acorn, that player-characters meet Locke’s first basic
requirement of property.
Spoil Limit
Locke applies boundary conditions to property ownership. The first of these is that
property can be private if and only if the putative owner takes “As much as any one
can make use of to any advantage of life before it spoils.” Obliviously digital artefacts
do not literally rot. However Locke’s condition is still applicable in the digital world
as many digital things can have time based qualities e.g. the URL
www.worldcup2002.com would in a sense ‘spoil’ if it were not utilized during 2002
as after this time its utility (and value) would be markedly reduced.
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In the case of a game player-character the notion of spoiling exists in so much as, if a
character is created and not used by a player during the lifetime of a game then it has
been underused and the resources of the system have been squandered. What’s more a
player-characters must have a unique name, thus every character depletes the finite
name space associated with that game. If not used then that area of name space has
gone to waste.
‘enough, and as good’ Limit
Locke’s next test is that something may only be private property if there is “enough,
and as good left ”. This rule can also be applied to player-characters as the creation of
a character uses both system resources and, as noted above, a unique name. Naming
depletes the name space and leaves a finite amount remaining. This does not appear to
be a relevant issue because with 26 standards letters, number and symbols, even
restricting character names to 6 alphanumerics would produce a name space larger
than number of players that a current MMORPG could technically sustain. But this
assumes that a name spaces are value-neutral. They are not.
Name spaces are highly contoured in terms of utility and value. For instance if a
player John Smith wanted to name the character after themself they would have a
number of options: John, Smith, John Smith, John_Smith, Jon etc. Again, there seems
to be no problem, but as anyone one who has tried to create an AOL identity recently
will know, it is certainly conceivable that all of these options will have been depleted.
Similarly, ignoring for a moment trademark rights, one would have to be a very early
user of just about any game system to be able get the character names Xena or Frodo.
Thus enough and as good is a meaningful limit in any system with a finite name space
where each instance of name must be unique within that space. This again adds
weight to the Lockean justification of player-characters as capable of being items of
property.
Locke’s minimal criteria & intellect vs non-physical property
On a first pass analysis, and given the assumptions: (a) ideas are common but works
are not, and, that the state of the common is such that the game is common (i & ii). It
seems that Locke’s tests make sense when applied to an MMORPG and that playercharacters pass them. However, what this argument actually demonstrates is that with
the given assumptions, player-characters pass Locke’s maximal limit tests. But one
argument against Locke’s support of Intellectual Property is that all ideas pass these
maximal tests. As, by their metaphysical nature they cannot either waste or be
depleted. What we further have to demonstrate is that player-characters also pass the
minimal test, i.e. it must be explicitly demonstrated that player-characters are not
common. Or to put this in Platonic terms they are created not discovered.
In fact the necessary argument is implicit in the discussion of the limit tests above.
MMORPGs rely on name spaces with discrete unique elements i.e. character names.
So just like other name space elements e.g. IP addresses or domain names, it is
intrinsic to the being and functioning of player-characters that they have some
necessary element of exclusivity. Now it might be argued that brands exist within a
brand name spaces i.e. that no two brands can have the same name. But separate
products with the same names have existed at the same time, moreover the expression
of a brand name on a physical product is distinct from the brand itself. Playercharacters differ from this by virtue of the state in which they exist. Virtual name
spaces are simplistic. They are comprised only of the set of potential attributes that
their members can have. Thus, in a name space, whether two things have the same
attributes is in fact an identity criteria i.e. if they do they are the very same thing.
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Hence, player-characters can be demonstrated not to be part of the intellectual
common as they require some particular, though virtual, existence.
The stark conclusion that we must draw from this is that while player-characters are
not physical, neither are they pure ideas. That is, we find that in terms of property, the
virtual world shares characteristics with both the physical and non-physical worlds – a
point that I shall return to in the conclusion.
Exclusive Ownership
Player-characters meet Locke’s basic test for ownership criteria, and the maximal and
minimal tests. For completeness it remains to be demonstrated explicitly that Locke
supports their private ownership as this is not a necessary a corollary of the limit test.
Support for exclusive ownership can be derived by recognizing that Locke’s argument
for private and exclusive ownership is largely pragmatic rather than principled. This is
demonstrated by Locke’s example of an apple. His main line of argument is that by
mixing labour with an item such as an apple it becomes exclusive property because
one is ‘self owning’ and has a duty to self preservation, thus one has a duty to use the
apple to this end i.e. in the most basic form - gather and eat the apple. To fulfil this
purpose the apple must be exclusively owned – as obviously the very same apple
cannot be digested by ones own stomach and another’s.
But what if the apple is cut in half, and half again, and again. Logically the apple
could be divided such that all held the tiniest fraction of it. In this way it would it
seem become common again. But practically speaking at some point the apple would
cease to have nutritional value. Thus one can interpret Locke’s underlying motivation
as the wish to ascribe exclusive rights in the smallest unit of a thing that retains
practical value. Given our level of abstraction, player-characters are the smallest unit
to bear practical value then we can temporarily conclude that under the given
assumptions Locke does indeed provide support for their private exclusive ownership.
6.4
(a) (iii & iv) The Game is not Common, (b) The Common is empty &(c) All
intellectual works are in initial common
If we now return to Shiffrins schema and retain the assumption (a) ideas are common
but works are not, but now assume (iii & iv) that the state of the common is such that
the game is not common, we in fact have no impact on the arguments above for the
status of player-characters as putative items of property. What is altered is the weight
of argument for players being the owners of player-characters (see below).
Next, if we assume state (b), that the common is empty, this resolves into assumption
(iv) above i.e. nether the Game or player-characters are common, hence the argument
in the above can be applied.
Lastly we can now discount the applicability of argument (c) as we have
demonstrated that a player-character is not part of either the intellectual common or
some wider non-physical common.
6.5 Ownership
Would the rightful owner please stand up ?
Thus far we seem to have a Lockean justification for player-characters as potential
items of private exclusive ownership, but no conclusive view as to owner.
What the above illuminates is that the property arguments of developer-publishers
stem from dependency rather than identity. That is, the arguments demonstrate that
player-characters are in a strong sense distinct from the game world although they are
dependent upon it.
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But ownership does not flow from dependency. To illustrate, take the example of an
apartment on the 13th floor of a building. It and the 11 apartments below are not
owned by the ground floor in virtue of the fact that it must exist to support all the
floors above it.
Hence it seems that there are Lockean justifications for both the status of a playercharacter as an item of property and the player as the owner apply whether the Game
is common or not i.e. in all cases.
6.6 Ownership vs Identity
The arguments above seem to provide a conclusive Lockean justification for the
private, exclusive ownership of player-characters by players. One of this argument’s
predicates is that player-characters are not pure intellectual objects in either legal or
metaphysical terms, indeed this dichotomy has been forced upon us by the
metaphysical assumptions of law and property which were formed before the creation
of virtual worlds. But we have also argued that player-characters are aspects of self.
Returning to Locke we discover that his fundamental motivation for the existence of
property is also, in a sense, based on an extension of self argument i.e. “he hath mixed
his Labour with, and joyned to it something this his own, and there by makes it his
Property”.
This raises two further issues. First, the concept of self that Locke’s theory is based
upon (Mackie, 1976) is very different from the decentred self we have from Poster,
Turkle et al as Locke recognized a separation between the self and ones property i.e.
after ‘mixing’ there is separation. Moreover it is fundamental a player-character that
is it s work in progress. So it is not the case the player “hath mixed” their labour but
they are continually in a state of mixing. Second, as Shiffrin notes, it is not clear that
using strong self-identity claims can “sensibly be extended to extend protect
individual’s ability to disperse aspects of themselves into the public domain while
simultaneously retaining complete control over them.” (Shiffrin, 2001)
Hence making a strong self-identity claim for player-characters undermines much of
the previous argument for their status as property.
7
Conclusion – Duties and EULAs
Intellectual Property law does not currently provide protection for player-characters
because metaphysically they are outside the idea \ object \ Cartesian-self ontology on
which it is based. To integrate player-characters and other non-physical \ virtual
objects into law its ontology wound need to be expanded, and the nature of these
objects codified. But, taking seriously the idea of a player-character as an extension of
self such a modification of law would be inappropriate. Because selling a playercharacter would literally mean selling oneself –which is disallowed under most legal
jurisdictions and is metaphysically problematic at best.
This renders much of the argument in the case studies above meaningless, because
property law is an inappropriate vehicle for settling such disputes. What’s more the
developer-publishers’ End User Licensing Agreement (EULA) that is often cited as
the basis of their property claim is, in this respect of property rights over playercharacters, invalidated. This is because, although property rights may be altered by
the application of contract law, basic rights cannot i.e. it is not possible for example to
form a legal contract to either buy or kill someone.
The extension of self argument has a number of further pertinent consequences. First
it effectively negates the trade in player-characters (unless these are created by bots or
some other automated means where Locke’s argument may apply due to the lack of
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an identified self). Similarly as developer-publishers do not and cannot own playercharacters it is questionable whether they would be entitled to sell their game world
(Scheurer, 2002). As far from having rights over player-characters, developerpublishers in fact have (probably unexpected) duties. For example a developerpublisher should have some duty of care over player-characters i.e. just as the owner
of a fun fair may intend to create a space for innocent fun in fact they must abide by
stringent rules of maintenance and safety. An idea that has significant implications for
the development and maintenance any virtual environment be it a game world,
community space or part of a wider system such as a banking network – in fact any
virtual space where a strong self identity claim can be made on virtual entities.
This conclusion raises more questions than it answers. It demonstrates that taking
seriously the notion of a decentred self and an online entity as an aspect of that self
(for which there exists sound argument) exposes wide gaps in the law. Fundamentally,
the extension of and codification of human rights into the virtual is far from science
fiction but an issue that should be of pressing and immediate concern.
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Acknowledgements
I wish to thank: K Conroy, L Dubbeld and V Scheurer for their help in the
development of this paper.
References
Anon. (2001), Everquest class action threat over auction spat, online at
http://www.theregister.co.uk/content/6/16355.html accessed on 10.07.2002.
Asher, M. (2000), Two Players Banned for EverQuest Auctions, online at
http://www.gamecenter.com/News/Item/0,3,0-4036,00.html?st.gc.fd.lgn.gn accessed on 28.01.2001.
Beard. J. J., (2001), Clones, Bones and Twilight Zones: Protecting the digital persona of the quick, the
dead and the imaginary, Berkeley Technology Law Journal, 16:3.
Brundage, S (2000), Making EverQuest Easier to Play: Cheating or Not?, gamers.com, available online
at http://www.gamers.com/news/322928, accessed on 15.07.2002.
Carter, G. (2002), It’s My Time and I’ll Sell if I Want To, The Adrenalin Vault, available online at
http://www.avault.com/articles/getarticle.asp?name=mmogsell, accessed on 15.07.2002.
Castronova, E. (2001), Virtual worlds: A first-hand account of market and society on the cyberian
frontier, Gruter Institute Working Papers on Law, Economics, and Evolutionary Biology, Volume 2.
Dejnožka, J (1996), The ontology of the analytic traditions and its origins, Littleford Adams Books.
Dibble, J. (1993), A Rape in Cyberspace, The Village Voice, December 21 1996. p36-42.
Fisher, W. (2001), Theories of Intellectual Property, in Munzer (ed), New Essays in the legal and
political theory of property, Cambridge.
Gibson, W (1984), Nuromancer, HarperCollins.
Hughes, J.(1988), The Philosophy of Intellectual Property, The Georgetown Law Review , Vol. 77,
287-366.
Harris, J.W. (1997), Legal Philosophies, Butterworths, p64-82.
Jahn, W. (1989), The Art of Gilbert and George, Thames and Hudson.
Laurel, B (1990), Computers as theatre, The Art of Human-Computer Interface Design, Adison-Wesley
Landes, W.M & Posner R.A. (1989), Economic Analysis of Copyright Law, Journal of Legal Studies,
18.
Locke, J (1988), Two Treaties of Government, Laslett, P. (ed) Cambridge
Lyon, D.(1997), Cyberspace sociality, in Loader, B. D. (ed), The Governance of Cyberspace,
Routledge, p 23-37.
Lichtarowicz, A. (2002), Virtual kingdom richer than Bulgaria, online at
http://news.bbc.co.uk/hi/english/sci/tech/newsid_1899000/1899420.stm accessed 10.07.2002.
Mackie, J. L. (1967), The Problems from Locke, Oxford.
Mactavish, A. (2002), Technological Pleasure: The Performance and Narrative of Technology in HalfLife and other High-Tech Video Games, in (Forthcoming) King, G and Krzywinska, T (eds),
Screenplay: Cinema/ Videogames/ Interfaces. Wallflower
Morris, C. (2002), Imaginary worlds. Real cash, online at
http://money.cnn.com/2002/01/16/technology/column_gaming/ accessed on 10.07.2002.
Muldoon, M. (1999), They got game, online at
http://www.salon.com/tech/feature/1999/07/13/ultima_ebay/index.html accessed on 10.07.2002.
Mulligan, J, (2000), Mommy, she talked dirty!, happypuppy.com, online at
http://www.happypuppy.com/features/bth/bth-vol9-28.html accessed on 15.07.2002.
Netanel, N. W. (1996), Copyright and a Democratic Civil Society, 106 Yale Law Journal 283.
Oliver, J. H. (2002), The similar eye: Proxy life and public spaces in MMORPG, CGDC Conference
Proceedings, Tampere University Press, p171-184.
Phillips, J. & Firth, A. (2001), Introduction to Intellectual Property Law, Butterworths, 4th ed.
Poster, M. (1990), The mode of information, Polity, p99-128
Rheingold, H. (1993), The Virtual Community: Homesteading on the Electronic Frontier, AddisonWesley p1-10.
Sandoval, G. (2000), Sony Bans EverQuest Auctions, gamecenter.com, online at
http://www.gamecenter.com/News/Item/0,3,0-4036,00.html?st.gc.fd.lgn.gn access on 28.01.2001.
Scheurer, . (2002), For Sale – the concept of ownership of an online community, Developer Magazine.
Shiffrin S.V., (2001), Lockean Arguments for Private Intellectual Property, in Munzer (ed), New
Essays in the legal and political theory of property, Cambridge.
Simmons, J. Sade and Cybersapce (1995) in: Brook, J, Boal, I. A. (eds), Resisting the virtual life: The
culture and Politics of Information, Brook and Boal,145-159.
© Ren Reynolds 2002
Page 14 of 15
www.renreynolds.com
+44 (0) 7778 285 273
INTELLECTUAL PROPERTY RIGHTS IN COMMUNITY BASED VIDEO GAMES
Smedley, J. (2000), Posting on eqvault.com, online at http://eqvault.ign.com/archive/arc73.shtml access
on 15.07.2002.
Stentz, Z. (1998), Vulcan Love Slave, metroactive.com, available online at
http://www.metroactive.com/papers/metro/05.07.98/tv-9818.html accessed on 15.07.2002.
Stern, E (2000), Summons to Surrender, available online at http://www.summonstosurrender.com
accessed on 15.07.2002.
Taylor, T.L. (2002), “Whose game is this anyway?”: Negotiating corporate ownership in a virtual
world, CGDC Conference Proceedings, Tampere University Press, p227-242.
Turkle, S. (1995), Life on the Screen : Identity in the Age of the Internet, Simon and Schuster.
Tushnet, R. (1997), Legal Fictions: Copyright, Fan Fiction, and a New Common Law, Loyola of Los
Angeles Entertainment Law Journal, (17 Loy. L.A. Ent. L.J. 651)
Žižek, S. (1997), The plague of Fantasies, Verso, p127-167.
Wrinn, G (2000) post on EverQuest game forum
(http://eq.castersrealm.com/viewarticle.asp?Article=1613)
© Ren Reynolds 2002
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