For the past year or so, I’ve devoted substantial efforts to arguing that many terms within standard Massively Multiplayer Online Game license agreements should be found unconscionable.
For those of you who don’t know, I’m spending the summer as a Summer Fellow with the Stanford Law Center for Internet & Society. CIS hosts many events for practitioners, the most recent of which was the Legal Frontiers in Digital Media conference which I was able to attend.
The last talk was entitled “The Developing Law of Virtual Realities and Online Games,” which piqued my interest for obvious reasons. As it turned out, the panel was lead by counsel for some large MMOs, two of whom argued that control over “virtual property” was necessary to maintain their game economies. In my opinion, that’s an extraordinarily weak argument. That’s like the US government saying that we can’t have any rights in our money because they may have to “tweak the economy.” Additionally, they have a god-like ability to stop, limit, or increase the flow of resources into and out of their world, so they have significantly more control over the economy than any economist in the real world. So what are they really trying to say? They’re really trying to say that if they mess up, they want the right to divest you of your flaming swords or gold pieces.
So that’s my crisis. Is that necessarily a bad thing? Not necessarily, but tell us that. Be straight with your users. Don’t feed users some line about wanting to protect the game economy when really you want to protect your investment. In my opinion, the latter is a reasonable excuse to maintain control over your virtual property while the former is not. Of course companies have a right to, and should, protect their own investment. So long as they can do it without being completely unreasonable (e.g. it’s not at its face procedurally unconscionable) then more power to them.
Let’s stop talking about how you’re protecting the user with these terms, though, and let’s start talking about the real reason they’re implemented. That’s the only way this dialogue is ever going to turn up anything useful.
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{ 7 comments… read them below or add one }
I’m curious as to what terms you feel are unconscionable. I’ll admit I don’t play many games (I discovered my addiction years ago, have been on the wagon since) so I’m not sure what sort of terms could be incorporated that would be materially unfair to a user. Clearly the contract is one of adhesion, especially since the parties are not bargaining at equal degrees of strength, but that doesn’t necessarily make it unconscionable.
Do companies need to disclose the true reason for their terms? I mean, as long as the other party consents to them without a presence of duress or fraud, can there be much argument had? We’re not talking about essential services like a utility company–this is gaming and purely of entertainment value.
While I agree that the way certain business/consumer contracts just seem plainly unfair, especially in today’s digital realm (99% of the reason I’m back in school for the 3rd time), I’m not sure I can disagree with their motives or lack of exposing them. The MMO’s do rely upon their subscribers, but that doesn’t necessarily make it a psuedo-socialist entity where the users have property and chattle rights that would dictate a public policy change.
Either way, this brief interlude from my contracts final studying was helpful and interesting.
Well, to give you one brief example, the Bragg case was discussed at the conference (and also within my Comment). In Bragg, the court found that the compelled arbitration clause from the Second Life EULA was unconscionable (even though a lawyer brought the suit!). This is the only relevant case that I’m aware of so far, but it definitely has the EULA attorneys on their feet.
Other questionable terms include forum selection clauses, choice of venue/law clauses, and unilateral rights to cancel accounts — the last one may seem silly, but when you’re marketing your game as a replacement for real life and people are spending over 40 hours per week in your virtual world, at what point does the argument that the user as actually been divested of something stop being silly?
While a company may not have any legal duty to discuss why they elected to go a certain route, transparency is the new black. Plus, if they seriously haven’t figured out that strict control over user-possessed virtual property isn’t necessary to maintain a functioning economy, perhaps academic discussion could help them out.
Interesting. I can see the venue, forum and arbitration clauses being questioned–those are always targets.
If I were to question a EULA such as in these MMO’s you refer to, I’d look into anti-restitution and rescission clauses. These companies must be getting more than just subscription fees out of this arrangement and I’d argue that collection of usage data and habit profiling is additional consideration to the agreement which has value and can be sued upon.
Very interesting. This isn’t something I’ve given a lot of thought to, so pardon my naivete, but I wonder (1) why we should assume that the U.S. govt doesn’t currently deprive some owners of their property rights (or at least of its value) in order to “tweak the economy” – particularly given the current intervention. Maybe these MMOs are just being true to life? (2) also whether the more appropriate analogy is contract or sovereignty?
I’m late to the party on this comment — sorry about that.
As to (1), the government doesn’t come into my house and take my stuff away. They may do things behind the scenes which values or devalues my stuff, but to my knowledge they can’t walk into my house and take my stuff or my money away, which is essentially what these companies want.
As to (2), could you elaborate a bit?
(1) the U.S. is fairly reverent of individual property rights but it still allows exceptions (albeit limited) for the public interest (eminent domain, necessity, etc., and of course illicit property – drugs, weapons, etc); as to value, isn’t that a pretty important aspect of ‘stuff’? a monetary policy that leads to hyperinflation could have an indistinguishable effect on someone with a pile of cash. I would guess the risk of user-actions that disrupt the economy is more prominent in the MMO counsel’s fears. In other words, they might anticipate the necessity of acting to protect the interests of the common user against someone able to ‘game the system’. Users might also have an interest in an environment with that kind of oversight. The market then becomes the level of trust which an environment can engender in prospective users to balance those potentially competing ends – protecting the investment users make vs. seizing control to ‘protect’ the market. Why wouldn’t we contractually allow for that commitment from both ends? I suppose disclosure is where the rubber meets the road.
(2) it’s tempting to extend the ‘virtual’ analogy to treat the MMO as a contractual ‘sovereign’ able to impose whatever terms it likes on willing participants. Why burden the creators with ‘real-world’ contractual limitations?
Takings is an interesting point that I hadn’t thought about; I’ll have to ponder that. As to the part about developers being afraid of people gaming the system: wouldn’t a reasonable compromise be to make users agree that if they break the game rules, they forfeit right in their virtual property? Why do I have to buy the argument that they need absolute right in all virtual property in order to run their game to balance out the relatively small percentage of cases where that may be the case?
There are also other ways to control the economy rather than taking things away from people. For instance, World of Warcraft essentially taxes sale of goods in-game now where it never did before. There’s a perfectly reasonable way to limit the input of gold into the world without taking anything away from the users.
As to the notion of goods being only worth their economic value, I’d say not only is that not necessarily true in real life, but it’s less true in an MMO. A crazy powerful sword can still be used for killing stuff even if it’s not worth any gold or even trades.