LGJ: The new meaning of 'player vs player'

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Terra Nova recently posted a note about a Craigslist case that could have some impact on the gaming space. It relates to theories about how players could sue other players, which is something that briefly came up in a World of Warcraft suit two years ago (which settled before going to court). The result of the case was, in no uncertain terms, that a lawsuit under a third-party beneficiary theory could be entirely blocked by a well written Terms of Use. That's not to say that all cases involving third parties are barred, as another World of Warcraft legal battle, the Glider case, was successful; though primarily based on tortious interference. So, while some potential sources of player-versus-player lawsuits may be now foreclosed, I still think there's a range of potential suits that could become prevalent.

Of course, this theorizing requires a basic understanding of third party-beneficiaries, and that goes all the way back to the basics of contracts. In a simple contract, there are generally two parties. A basic sales transaction is probably the simplest contract. Say you go to GameStop to purchase inFAMOUS: You give the clerk your $59.99 plus tax, and he gives you the game and a receipt. That was a basic contract for the sale of goods, and the receipt is evidence of some additional terms of the contract for sale, such as the return policy.
So what makes up the contract? Well, consider this paragraph the shortest contract law course ever: First, there has to be an offer and an acceptance. Gamestop offers the game for $59.99 plus tax, and you accept that offer. Then, there has to be consideration, meaning both sides must offer something of value, in this case inFAMOUS and the cash payment, respectively. Both parties must have the capacity to enter into a contract (which is generally not an issue for retail sales) and the intent to enter into the contract. Finally, the contract must be legal.

Of course, not every contract is quite so simple. Let's say you went to GameStop.com and pre-ordered Kingdom Hearts 358/2 Days for yourself and Professor Layton & the Diabolical Box to be shipped to a friend for his birthday. Your purchase for you is basically no different than your in-store purchase, except you've agreed to a transaction on a future date with terms for cancellation.

So, can players sue each other? Of course they can.

The Professor Layton order, however, is different. It's a contract between you and GameStop for the benefit of someone else, your friend. In this case, your friend is the intended third-party beneficiary because the contract explicitly contemplates his benefit in the transaction. There's also something called an incidental third-party beneficiary, where the contract isn't designed to benefit the third party though the third party will benefit anyway. So, if you promised to buy your friend Professor Layton, but never went through with it, GameStop would be the incidental third party.

So, what does it mean if you're a third-party beneficiary? In short, you have the right to sue to enforce the contract. So, if GameStop refused to ship Professor Layton, and for whatever reason you decide not to act to enforce the contract, then your friend could bring suit. This only applies to intended third parties, not incidental ones, generally speaking. So, in the above example, GameStop could not sue as the incidental third party.

So where does that put cases like the Glider and World of Warcraft ones? Glider involved tortious interference, but was still a contract between Blizzard and the user governing the behavior of MDY. It's hard to say whether it would have been as successful if it was framed as Blizzard suing as a third party to the MDY and user's contract for sale of Glider. The World of Warcraft suit was a more cut and dry third-party beneficiary situation, but the case never went to court so its outcome is difficult to apply.

So, can players sue each other? Of course they can. As the old saying goes, anyone with $20 and a typewriter can file a lawsuit. The more important question is whether players can successfully sue each other, and to that end, I think the options are slimmer. First, this presumes that the Terms of Use are well drafted and contain provisions such as a complaint procedure to the service provider. In short, this assumes that the lawyers hired by the game company did their jobs reasonably well. So, barring a traditional third-party complaint through those means (as was the result in the Craigslist case), there are a few other possible avenues.

In a game like Second Life, there are the potential suits between players when intellectual property is being infringed, like we've seen in the Eros cases. In all games that have online components, however, there are some other possible actions, though I will admit these are only theoretical. Civil remedies are also going to vary by jurisdiction, and I'm not speaking to criminal allegations, results of hacking, or other interactions outside the normal scope of the game. Harassment would be a possible claim if there was systematic harassment to a pretty extreme level, or something like cyber-stalking. Libel and slander would also be possible, especially if the content moves from being in-game to also being outside the game on, say, YouTube. Right of publicity suits are possible, though they would likely depend on the ability to greatly alter game assets like Second Life. Even tortious interference between players is possible in games that allow for real-money based transactions between players.

If you're looking for the theoretical line, things that the game provider can't control are the most likely things for players to sue players over. The Craigslist opinion seems to say that even if the game provider isn't choosing to enforce their Terms of Use to their fullest based on your complaints to them, that's in their discretion. If, on the other hand, the player is doing something that either the game company cannot control, or that the game company has been unable to control, then you might have grounds to move forward. To be honest, I can't see many player-versus-player suits coming up other than those that mirror the ones that have already come up. The exception being harassment and libel, which I am not aware of any active cases on, but I would expect that there will be suits of this nature before too long. The closest I've seen are the suits involving students' use of Facebook to satirize school officials. It's likely just a matter of time, though, until "player versus player" takes on this new dimension.

[Image Credit: Pentadact]

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with Munck Carter, LLP, and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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This article was originally published on Joystiq.