ah, now you see, i’ve let myself get out of the loop on this one and wouldn’t you know it, soon as i do, there’s some movement.
as you may recall, i’ve been something of a lone voice in the wilderness in relation to support for the secondary market and looking further ahead to the many benefits that a confrontation in the courts would bring not only to gaming, but to the matter of consumer rights regarding intellectual property online.
as it stands, in gaming particularly, the consumer HAS no right. they don’t even have the right of access if you pay attention to what all the terms of service and end user license agreements would have you believe.
the deck is well and truly stacked in the favor of the corporations, with every possible aspect of responsibility to the consumer neatly shoved to the corner and kept there using the binding arbitration clause (meaning even if you have a case, you’re already agreeing not to go to court, to go instead to a mediation that has no effect on law).
these companies are very well aware that getting into court on the matter of guarantees in relation to your virtual property means they have to be responsible TO YOU for the things you acquire as you enjoy their products. you damn skippy they don’t want to touch that one with a ten foot pole.
so, for the most part, they ban players and accounts when they catch them, especially if/when they’re big enough to engender media attention. and the rest of the time, they bite their tongue about it all because they’re not really losing revenue on their games, they’re just losing out on developing the secondary market for themselves.
interestingly, a fellow in orlando has recently taken it upon himself to file a class action suit against long time secondary market behemoth IGE, Ltd. in what seems to be an attempt to stop them from farming and selling gold in the game World of Warcraft, operated by Blizzard Online Entertainment.
the thrust of the suit (igecomplaint.pdf) is that IGE is unfairly manipulating the economy of the game for their own advantage AND forcing an unwanted change from time invested as the sole means of acquiring wealth and property in the game by making gold available for real world dollars and thus, opening the avenue by which player who have more money than time to spend playing may enjoy the same rewards.
it is obvious that this fellow (and his attorney) are hopeful of support from Blizzard and the industry in general, though personally, i think that’s being a bit optimistic.
they’re walking a very fine line by trying to sue IGE as individuals, and using the class action system to introduce a precedent that says, in essence, no one is allowed to make money via the intellectual property of another company.
while it is one thing to feel the need to push one’s opinions about what is or isn’t ‘cheating’ into the court, and while the fellow in florida is certainly entitled to his opinion, i suspect they have not thought about the ramifications.
first and foremost, that this very suit could as well and likely much more appropriately been brought against Blizzard Online Entertainment itself for their profound failure to adequately protect their customers from IGE.
the many assertions of the suit as filed could just as easily be applied to Blizzard. i suspect this fellow and his attorney didn’t consider this and thus, will likely be surprised when Blizzard doesn’t leap to support them.
secondly, many of the claims asserted in the suit demonstrate profound inaccuracies in relation to how the game operates and also the degree to which the presence of IGE results in the claimed disadvantage.
thirdly, a number of the assertions are factually incorrect. the most glaring error being the assertion that IGE engages in spam mail practices. there are a host of gold farming companies that do engage in chat and mail spam… but IGE is not among the number.
(these two previous paragraphs… i would just love to list out all the specifics… but frankly, i rather like the notion of them being in the court room caught with their pants down.)
fourth, that IGE is ‘interfering’ in a business relationship between subscribers and Blizzard when it is easily and instantly demonstrable that Blizzard offers no such competing service to be interfered with, and subscribers choosing to engage in secondary market transactions are not members of a dichotomy in which there Blizzard and the game rests on one side and IGE and the secondary market rests upon the other.
succinctly, IGE is active because Blizzard permits it.
fifth, that a class action suit is the only way to attempt to approach this matter. as previously stated, Blizzard bears far greater responsibility for allowing the presence of IGE in its game than IGE bears to the non-participating subscribers. of course, this fellow wouldn’t dare sue Blizzard because he would be cut off from his game until and unless he won.
sixthly (!) while it may well be true there are a number of people who disapprove of the secondary market, the notion of the secondary market as a valid economical vehicle is historically sound and the real bone of contention is not whether or not IGE is ‘ruining’ a non-participating subscriber’s experience, it is a three fold question that game companies, including Blizzard, have been ducking and will continue to duck because of the ramifications it will bring:
(1) do subscribers have a right to the security of access to virtual property?
(2) does that virtual property right mandate reasonable, proactive measures on the part of the provider to protect both it and the subscriber to whom it belongs?
(3) if so, why hasn’t the game industry taken reasonable, proactive measures to provide this protection again companies like IGE?
and of course, the reason they have not is quite clear. it is uncomfortably close to admitting something they do not wish to admit…. for all it is the white elephant sitting in the living room. (psst! if we’re liable for that, what else should we be rightly liable for?)
of course there are a number of other reasons that this particular suit is dangerous in ways this fellow and his attorney obviously have not considered. to wit:
(1) by introducing inter-state commerce and indeed, global commerce as a relevant aspect of their suit, they open the suit itself to failure for the state’s prohibition against binding law that affects national or international commerce.
(2) the possibility of a precedent requiring companies to compensate subscribers who have not suffered an actual loss, but instead, a possible loss. (do i really need to point out why that is a problem?)
(3) the possibility of setting a precedent that virtual currency has a real world value and as such, may be adjudicated as the same under law. (hello — can you say sue that ninja looter, sue the guild who took your epic spawn, how about ‘gee, you should pay taxes on that virtual property?’ etc.?)
(4) the possibility of setting a precedent that supports a consistently non-responsible stance by these companies as ‘beneficial’ to their subscribers by alleging that existing EULA and ToS agreements are contracts intended to benefit subscribers rather than protect themselves against any legal action a subscriber may wish to take. (can you really have it both ways?)
(5) that breach of contract may be defined well outside the arena of either parties knowledge. (personally, i like this one, because it means you can get by arbitration. however, i suspect Blizzard will take a decidedly dimmer view of it.)
(6) with regard to tortuous interference: how exactly has IGE interfered with the plaintiff’s business relationship if the plaintiff has not done business with IGE?
the allegation seems to be that IGE’s presence farming gold means the plaintiff could not access things, but anyone who has actually played the game knows this is an outright fallcy. the materials in the game reoccur. they are designed to reoccur at specific intervals precisely so everyone can gain them should they so wish.
the allegation implies this plaintiff could NOT gain resources because they were being gained instead by IGE. perhaps the plaintiff is unaware that resources respawn, mob/creeps also respawn, and the only thing keeping him from gaining them for himself is how long he can stay awake and play.
one may as well sue a raiding guild for not letting them join it, or sue Blizzard for not giving them what they want when they want it.
but oh, wait… it’s ok when other players do it, or when Blizzard designs it so you can’t have it until or unless you wait for it, grind for it, or lose sleep for it…. it’s only when IGE is present that it becomes tortuous interference.
do i have that right? (rolls eyes)
this suit alleges that the plaintiff has suffered damages. what damages? show me a single damage this plaintiff has directly suffered. let me see their armory profile. are they not in gear appropriate for their level? do they not have a bank filled with items? what is their tradeskill level? have they lost access to any ability provided by the game, found themselves unable to advance?
and if they have…. can they prove it was an IGE player that caused it? maybe it was just some jackass ninja’ing the node.
prove it. i don’t think you can.
suffice to say i doubt seriously that this suit will be much more than a small squeaky cog in an otherwise much larger and more intractable machine. my personal opinion is that the attorney is a fool with overly high hopes of rolling IGE on its back and thus, making a name for himself. his utter lack of understanding as to the game, its mechanics, and how the industry works, combined with his zeal (likely instilled by the fervent righteousness of his client) will be both their undoings.
Blizzard won’t care. the industry won’t care. IGE will either settle or pick the suit apart more thoroughly than i have, here, and life will go on. the fated change to IP law will some day come, but it won’t be by this suit.
i keep waiting for someone to toss a suit like this at Blizzard. you’re the ones who say it’s wrong… so why aren’t you doing more to stop it? (i already know the answer… they don’t want to be in the defensive stance. it costs too much.)
were anyone in this industry smarter, they’d have rolled IGE by out IGEing them by now. how they cannot understand this is the only real solution boggles the mind.
the matter of liability is going to fall upon them eventually regardless what happens with the secondary market. but if they get this in place now, a good bit of that thinking and planning will be in place and the liability, when it comes, will be much easier to shoulder… as opposed to putting them out of business.
the only question remaining is — can they see beyond the end of their noses?