AGDC08: On avatar rights and virtual property
If you're anything like the average MMO gamer, you click through that 'shrinkwrap license' without even batting an eyelash. The End User License Agreement, or EULA, is just a speedbump in the logon process for game players. For game companies, though, they're extraordinarily important documents. They require legal consultation, careful thought, and even more careful wording. They do exactly what the name says, spelling out the rights a player has in an online world.
Noting that he really enjoys it when panel participants argue and disagree, Erik Bethke brought together a group of people to debate and discuss the issue of user rights. Along with Bethke, author Erin Hoffman, legal representative Greg Boyd, startup VP Scott Hartsman, and noted industry designer and analyst Raph Koster filled out the panel. Read on for notes from their fascinating discussion, which covered everything from government intervention in online worlds to the 'ownership' of virtual property.
Bethke begins by discussing a talk he and folks like Min Kim and Daniel James gave at Standford. He and the panelists had a 'geek out' moment about property, but even James had a harsh attitude about player ownership of virtual items. The entire virtual world industry is based on the false preconception that players 'own' their avatars and their equipment. Developers and publishers want players to think they have ownership, when a great deal of money is spent making that legally untrue.
Asian titles and ventures like Koster's Metaplace are so different from the 'norm' ... do they even touch base with the standard EULA idea? Why can't a player loot a sword from an enemy and then declare it 'his'? Boyd offers up the 'unpopular publisher idea': developers want to be benevolent dictators. They don't want to own up to that sword having value or the concept that they might have to 'pay' players when that sword becomes less valuable.
Hartsman continued that discussion, noting that 'real economies are not fun'. Players often go into virtual worlds to escape the problems of economic disparity; ultimately its about player expectations, matching their wants with the reality. Raph notes that it's even more iffy than that. The sword: "Whatever", but the character would not be what the character is without the player's participation. That's a record of the player's activity. "Anywhere but gaming, your quest log would fall under privacy laws." Given the level of user contribution that now permeates entertainment, blanket statements are rapidly becoming no longer intellectually honest.
Hoffman concluded this element of the conversation by noting the disparity between the concept of 'game' and the control MMO publishers have over player actions. "It's okay if I give my friend a sword, but not okay if he gives me a dollar?" Controlling out-of-game actions is a very grey area.
Bethke sees having a better EULA as an inducement for people to become more invested. "I think WoW is a big failure when it comes to this element. Why do they only have 10 million players?" If players felt that their time spent in game was worth something, if there were guaranteed human rights for players of the game, wouldn't there be more players?
"It's up to the people on that side of the fence to make their case," said Boyd. Pretty much every MMO has used a traditional EULA; since loose EULAs are so uncommon, it's hard to know how they'll work. You'll increase infrastructure costs, increase liability ... in the long term with that balance out with the average revenue per user (ARPU)? Hartsman believes that it is possible, but that the economics and ideas won't scale. Chances are that a thousand people will be willing to abide by the rules and make a community work. Huge communities are unwieldy, and at scale it falls flat. When you have 5000 gold farmers, you have to rely on some technology interaction to determine 'guilt.'
Raph notes that the Second Life choice to 'give users rights over virtual property' as an example of 'intention of space.' What is the virtual world intended to do? "No sane entrepreneur would go into a world to do 'work' with a traditional EULA." The gaming folks are setting the bar for virtual worlds used for medical records, education, and many other completely different environments. Eventually, because of these elements, Raph feels that EULAs will have to just adopt the real world standards for property ownership.
Bethke asks Raph what kind of thinking Metaplace has done to deal with these issues. Fostering entrepreneurship is actually hanging on their wall, and as a result they have boilerplate terms of service and end user agreements to pass on to users. "What are the rights and responsibilities we see with the worldbuilders, and what are the rights and responsibilities that worldbuilders have to players?" It's a two-tier system.
Raph offers up the Metaplace terms of service as an example. They're actually going to use the 'rights of users' he proposed some years back, they allow builders to own their content, they're not going to spy on them, and they're going to be allowed to develop their own TOS. Additionally, there's a whole additional layer for the players, that guarantees many of the same rights to players. "The final part is basically a part that says 'don't break the law in every country in the world', because you don't know where they're connecting from."
Bethke notes that most commercial games, with restrictive EULAs, don't even follow them themselves. SOE, for example, often replaced items lost to other players via fraud; that's something generally barred in the company's own Terms of Service. Erik is frustrated simply because companies don't even follow the hard-lines they have; he wonders aloud if it's just American litigious culture. Scott Hartsman jumped in to offer, "We don't want to be the million+ user game success story, with a EULA that will allow players to do these sort of things. We just can't afford to do something like that."
He continues, clarifying that on a wide scale gold farming is essentially institutional in nature at this point. When the 'next generation' of games comes about, companies are just going to be pushed to selling gold directly to players because its the path of least resistance. Raph chimes in with the reality that virtual objects are quickly approaching the complexity and transactional history of 'real' virtual money. Better, almost, because everything is virtual every step of the way.
The ultimate question, Bethke asks, is have these contracts been tested? Can a EULA protect a company in court? Boyd states that there are examples on both sides, but ultimately the question is about customer service. "How bad do you have to screw up in order for someone to read your EULA?" Raph and Boyd joke that cutting and pasting from Blizzard's TOS is now the industry standard. The legal expert notes that its much better to individually tailor these documents, and the majority of situations sees them holding up.
Bethke asks about Creative Commons, asking if we can move to that. "No," Boyd says flat out. That kind of solution just doesn't scale. "After 30 years of MUDS, we are starting to know what evil lurks in the hearts of men." He wishes that there was more understandable language, but it's really about that extremely rare test in court. Legal framing, arcane phrasing, is something that needs to be followed in order to ensure the job is done right.
Hoffman asks it this way: "Is there a better way? They seem really esoteric, couldn't we base these documents on existing legal standards?" She mentions comparisons to landlords and leasing information. Hartsman responds that it depends on the product. "Would I want to try that in a game where 500 farmers have to be removed in one fell swoop? No." Ultimately it's hard, he says, to compare these elements because everything is virtual and academic. You can't be kicked out of the real world, but existing online is entirely ephemeral.
Boyd concludes, "It's about having something to lean on. It's great to write something like the declaration of independence, but it's a lot harder to live up to that."
