Vivendi/Blizzard sicks the lawyers on virtual sellers

[SirBruce]

Gamersloot has received a Cease & Desist letter from Vivendi's laywers for their buying and selling of virtual property in WoW.  You can read about the story on TerraNova.

Bruce

[Krakrok]

Legal disclaimer: The entire contents of my post are an opinion.


See this $50 Vivendi? It's still in my pocket. You can keep your candy covered crack pipe slot machine.

--

They picked the smallest "item sales" site they could find in the hopes that they can rape them into the ground and therefore cow everyone else into submission. :)

IANAL, however as far as I know one can selectively enforce a copyright which allows them to tell site X to stop using their box art etc.  while allowing fansite Y to continue to do so.

The holder of the "World of Warcraft" trademark is Davidson & Associates, Inc.. The filer of the trademark was Rod A. Rigole and Rod A. Rigole sent the cease and desist. He is also the same hero persueing bnetd.

Davidson & Associates, Inc. is doing business as Blizzard Enterainment.

[geldonyetich]

"On quick reflection (this isn't my considered opinion since all the analysis was done while my son was climbing on my head and insisting on being tickled) I actually think that Blizzard's position is remarkably weak on the copyright and trademark claims. No copying of the works/marks is ever done, and since Blizzard retains control of the assets (they are in its database after all) they have a weak claim on the primary infringement side. And on the secondary infringement side I think it's screwed."

Blizzard seems to think they have a case.   Selling virtual property within a MMORPG is somewhat like scalping tickets.   You're not hosting the event, but you find a way to charge other people for attending it.   Ultimately you're both undermining the enjoyment of the event while finding a way to selling something which technically does not belong to you.

[Righ]

Davidson & Associates, Inc. is doing business as Blizzard Enterainment.

They bought Blizzard in '94. Since then there's been CUC and Cendant. Then Havas and now Vivendi. Magnifique!

[Riley]

It will be interesting to see if they actually go beyond the threatening to sue phase and bring the lawsuits at these guys.  I garuntee IGE isn't going to roll over for a letter like this and disclose their earnings to Blizzard :)

[HaemishM]

YAY! Finally, someone with the balls, or the stupidity to put the ownership of virtual assets to the test. This is going to be great... unless of course, this web site just rolls over and can't afford to fight this.

Which is, I'm sure, precisely what Vivendi/Blizzard wants them to do. Or at least, it's what they SHOULD want them to do.

If Blizzard wins the case, it should have a chilling effect of MMOG development and the willingness of players to create fan sites that give out spoilers, hints, or make stories with the game engine. However, if they LOSE, it means that the players own their characters and probably by extension, their items. At which point, character wipes, item losses due to bugs, as well as anything that interferes with a player making money off of their character (since it is virtual property) is now a liability issue for Blizzard. Which means THEY ARE FUCKED as are any other MMOG's that would fall under the same category.

If this goes to court and gets a precedent, things will change, and probably not for the better. CONGRATS, FUCKNUTS.

[Riley]

If this goes to court and gets a precedent, things will change, and probably not for the better. CONGRATS, FUCKNUTS.

Of course, chances are highly likely that this will be "settled" out of court and things will remain the same.  This is probably the outcome Blizzard is really going for, but it will be interesting to see how agressive they are in their settlement demands.

[eldaec]

However, if they LOSE, it means that the players own their characters and probably by extension, their items. At which point, character wipes, item losses due to bugs, as well as anything that interferes with a player making money off of their character (since it is virtual property) is now a liability issue for Blizzard. Which means THEY ARE FUCKED as are any other MMOG's that would fall under the same category.

Or it could mean that we'll have a ruling that Vivendi's property rights cannot be enforced inside a game, becuase nobody is deprived of the use of their asset. Meaning nobody can sue anyone, but that Vivendi can wipe anything they object to. Which would probably be as good an ending as we could hope for.

I suspect the site will fold before then ofc.

[Krakrok]

Yup, the website will fold. If they haven't already. Even on the day that the story came out there was no gold listed for sale for WoW on their website. Plenty listed for DAOC though.

IGE.com gets 93 times more traffic than Gamersloot.com.

[Riley]

Sometimes I wonder if IGE pays off the gaming companies to take out their competition :)

I can't see IGE ever backing anyone else in a lawsuit unless it directly threatens them - simply because each time someone is shut down, it just gives them a bigger marketshare.

[sinij]

This is really bad news, if Blizzard looses this case they will set precedent that players indeed own virtual assets within games.  I don't think I need to spell out consiquences of that.

[MrHat]

This is really bad news, if Blizzard looses this case they will set precedent that players indeed own virtual assets within games.  I don't think I need to spell out consiquences of that.

Or anything for that matter.

[Roac]

They can't lose this case.  They own the box, and everything on it - well, almost.  If somehow you were able to get IP stuff saved on their disks, the most that could happen is the IP owner asks them to remove it, in which case Blizzard just erases that portion of their disk, and retains the rights to everything else on it.

So either way, if the courts actually decided you did indeed own the rights to "virtual property", Blizzard could just erase your data.  Wouldn't want to be accused of copyright violations or anytying.  The Bliz lawyers would have to be craptastic failures to lose this argument, since even if virtual rights haven't been argued in court, similar issues have.  

Which by the way, that means everyone who's ever sold virtual property is guilty of fraud.  You can't sell what you don't own.  Unless, I suppose, you're only selling virtual rights, and since "virtual" means "imaginary", you're only pretending to sell something that doesn't exist, and someone else is taking you up on the offer with real money.

Plat 4 sale.

[Riley]

By this argument, my landlord has could do whatever he wanted because I am a tenet living in his building.  But this is not the case in the realworld where the tenet still has many rights that the landlord cannot interfere with.  

It is a complicated relationship to be sure, but it is definitely not cut and dry.  No MMORPG EULA or digital property rights have ever been tested in court - until they are and precedents are established, this is a pretty grey area.  

The fact that there are so many issues with digital property rights and no company has had the guts to take it to court yet should tell you something... these guys employ teams of lawyers to advise them on these things and will press any advantage they have.  If it were an open and shut case, they'd drag IGE into court tommorow and be done with all this mess.  But its not, and the fact that they could lose is such a huge risk to them that they don't press the issue.  Instead they resort to tactics like are mentioned in this post - threatening small sites with litigation and legalese - doing what they can while avoiding the courts where real law would be discussed.

[Krakrok]

Shrinkwrap EULA's just got tossed out on their collective asses in California.

[HaemishM]

Wow, that's a big one. I know that from as far back as 1991, most EB's were told to only accept opened package returns if the customer really protested hard. Places like Wal-Mart and others just plain won't take stuff back that's been opened.

[Roac]

By this argument, my landlord has could do whatever he wanted because I am a tenet living in his building. But this is not the case in the realworld where the tenet still has many rights that the landlord cannot interfere with.

Only because there are laws specifically designed to cater to landlord-tenant relationships.  Those laws are specific to that relationship, and does not carry over to any other type.

No MMORPG EULA or digital property rights have ever been tested in court

Untrue.  There are prescedents regarding EULAs.  Unware of whether MMOG EULAs have been in court, but the concept of a EULA has more than once, and they are generally upheld.  The earliest I am aware of, and they probably go further back, is 97, where the courts declared that shrink wrap EULAs are enforcable only if, among other things, the product can be returned.  Meaning, the line that reads "by opening this product you agree..." is not contractual, since you can't agree to something without knowing about it.  But, it can still be binding.

That doesn't mean it always is.  There are bad EULAs just as there are paper contracts that can be voided.  Probably most relevant to this discussion though, is the nature of ownership.  The data is stored on a computer owned by Blizzard.  If the data is understood to be IP, then Blizzard does not own it and can delete it.  If it is not, then Blizzard owns the data, though maybe not the IP rights.  Either way you're screwed, because all that means is that either the data resides on their computers and is their property, or the data is regarded as IP and Blizzard deletes the data.  You can't force Blizzard to provide a service.

Oh, and about the tenant relationship?  The landlord can end his service to the tenant too.  The law just slows the process down, so that he can't throw you out on the street on a whim, but evictions DO occur.

[Righ]

By this argument, my landlord

No, that's just silly. Pick any other form of property other than a let abode if you want to try a comparison. The peculiar safeguards for tenancy are there because rented houses are the places in which those tenants live.

[Roac]

Shrinkwrap EULA's just got tossed out on their collective asses in California.

Read it again, because no they didn't.  First off, this was a settlement, not a court decision.  That means there is zero legal precedent.  Second, the notion that you cannot put a consumer into a catch-22 situation with shrink wrap EULA has been addressed years ago, in favor of the consumer; you get to return any such package.  Had the court gone to a decision, it would have more than likely ruled the consumer was entitled to a refund, because that's precedent.

[Riley]

By this argument, my landlord has could do whatever he wanted because I am a tenet living in his building. But this is not the case in the realworld where the tenet still has many rights that the landlord cannot interfere with.

Only because there are laws specifically designed to cater to landlord-tenant relationships.  Those laws are specific to that relationship, and does not carry over to any other type.

My whole point (which you missed entirely) was that the legal relationship bewteen the two garuntees some rights to both parties involved even though the landlord is unquestionably the owner of the property.  The same thing will be true of in the MMORPG world.  Those rights will certainly be different, but they will likely have some similarities.  Just because Blizzard owns the server does not mean the customer does not have any rights.

No MMORPG EULA or digital property rights have ever been tested in court

Untrue.  There are prescedents regarding EULAs.  Unware of whether MMOG EULAs have been in court, but the concept of a EULA has more than once, and they are generally upheld.  The earliest I am aware of, and they probably go further back, is 97, where the courts declared that shrink wrap EULAs are enforcable only if, among other things, the product can be returned.  Meaning, the line that reads "by opening this product you agree..." is not contractual, since you can't agree to something without knowing about it.  But, it can still be binding.

Your example there does not show my statement to be wrong and is not really related at all.  I'm not saying that EULAs don't mean anything - but until they go to court to test the limits of what they can enforce, you cannot say anything for certain.  Gaming companies know full well that the agreements they make you "sign" are more of an intimidation factor than a legaly binding agreement which is why you never see them in court enforcing them even though a huge number of people regularly break their EULAs.

That doesn't mean it always is.  There are bad EULAs just as there are paper contracts that can be voided.  Probably most relevant to this discussion though, is the nature of ownership.  The data is stored on a computer owned by Blizzard.  If the data is understood to be IP, then Blizzard does not own it and can delete it.  If it is not, then Blizzard owns the data, though maybe not the IP rights.  Either way you're screwed, because all that means is that either the data resides on their computers and is their property, or the data is regarded as IP and Blizzard deletes the data.  You can't force Blizzard to provide a service.

Does the nature of the ownership really matter?  The IGEs of the world are never claiming to own the items they sell - they specifically state that you are not buying the property but the time it took to obtain the items and transfer them.  It may sound like a techinicality, but I think it is one that will make a difference in the legal outcome.  Yes, Blizzard still owns all the property in their game, but they cannot dictate the value of a person's time.

Oh, and about the tenant relationship?  The landlord can end his service to the tenant too.  The law just slows the process down, so that he can't throw you out on the street on a whim, but evictions DO occur.

Did you have a point here besides pointing out the obvious?  Of course both parties have certain rights.

[Righ]

My whole point (which you missed entirely) was that the legal relationship bewteen the two garuntees some rights to both parties involved even though the landlord is unquestionably the owner of the property.  The same thing will be true of in the MMORPG world.  Those rights will certainly be different, but they will likely have some similarities.  Just because Blizzard owns the server does not mean the customer does not have any rights.

No. The law WRT tenants is peculiar, because it deals with their abode. When you are ejected from a night club, or when you are ejected from an MMORPG, there is no chance of you becoming derelict. For that reason alone, the same protections are not afforded to people leasing the use of property other than their declared residence.

[Riley]

My whole point (which you missed entirely) was that the legal relationship bewteen the two garuntees some rights to both parties involved even though the landlord is unquestionably the owner of the property.  The same thing will be true of in the MMORPG world.  Those rights will certainly be different, but they will likely have some similarities.  Just because Blizzard owns the server does not mean the customer does not have any rights.

No. The law WRT tenants is peculiar, because it deals with their abode. When you are ejected from a night club, or when you are ejected from an MMORPG, there is no chance of you becoming derelict. For that reason alone, the same protections are not afforded to people leasing the use of property other than their declared residence.

Tenets who are renting a building without using it as their abode still have legal rights as well.  Why is this such a hard thing for you to understand - BOTH parties will have legal rights irregardless of who is the actual owner.  Of course in different situations the exact nature of those rights will be different.  In MMORPGs - they have not been defined because they have never been tested in court.

[HaemishM]

If rights are upheld or delineated for those occupying an MMOG, it will be more along the lines of the rights you have in a mall. It will be considered a public place, and thus rights will derive out of that.

[sidereal]

The virtual world is really screwing with your minds here.
Get the virtual objects idea out of your head and think about the objects as bits.  You use a custom client to send commands to a server, which results in predictable modifications of a server-side data set.  The idea that the modifications I so caused are in any way 'mine' is as absurd as thinking that I own a song because I called a radio station and requested that it be played.

[HaemishM]

Your song needs more cowbell.

[Roac]

My whole point (which you missed entirely) was that the legal relationship bewteen the two garuntees some rights to both parties involved even though the landlord is unquestionably the owner of the property. The same thing will be true of in the MMORPG world. Those rights will certainly be different, but they will likely have some similarities. Just because Blizzard owns the server does not mean the customer does not have any rights.

The whole reason that relationship is protected is because of the special nature of having a place to live.  Almost all other contractual relationships do not enjoy that level of protection, to include MMOGs.  You picked the most unique and protected type of relationship and are trying to draw correlations to every other type.  The stupid in that thought is physically painful.

In MMORPGs - they have not been defined because they have never been tested in court.

This has nothing to do with court tests.  The courts don't grant tenants special rights, the laws do.  So until there are laws to specifically protect MMOG customers, they'll have the same type of protection (lack thereof) that you get as a customer of a cleaning service.

but until they go to court to test the limits of what they can enforce, you cannot say anything for certain

EULAs have been beaten on in court.

Does the nature of the ownership really matter?

Absolutely.  If MMOG companies own the virtual items (they do), they can do anything they like to those items unless they agree to limits within a contract.  They didn't, so they still can.  Meaning they can tell you that in order to access their service, you have to agree not to "sell" the virtual property, or else service can be mangled or terminated.  It's the same reason that scalping tickets is illegal.  Yeah, a lot of people do it, but the stadium can still call the cops on you.  It doesn't matter that you spent time in line.  It doesn't matter how you word it - "I'm selling the cost of my time in line" - because people aren't that stupid.  People try the same sort of backhand arguments in all sorts of civil and criminal cases, and it flat doesn't work.

[UD_Delt]

There's some sort of comment to make about the comparison of an MMORPG to a basic human necessity (food, water, clothing, shelter) but I'll leave that for someone else...

[Mesozoic]

The potential implications boggle the mind.  Server downtime?  See you in court.  Nerf something?  Lawsuit.  Boost a class's abilities?  Lawsuit by the other classes who weaken in comparison.  Shit, a single dupe bug could result in a class-action.  And fixing it would get you sued by the exploiters.  

Facing all this would make a company shut down every MMO game for the liability - of course that would represent the ultimate destruction of property.

[sinij]

Server downtime? See you in court.  

This should be the case. A lot of developers take unexpected server-downs as an acceptable thing.

[SirBruce]

I see nothing wrong, in theory, with saying the virutal property is property, but that doesn't mean you get access to it in perpetuity within their game.  You want your item?  Here, these are the bits (sans graphics).  Do whatever you want with them, but you still can't play with it here.

Bruce

[Koyasha]

Personally, I'm starting to think that going after the sellers is the wrong approach to this.  Why go after the people selling the items when you can go after the ones buying them?  Sure, the companies selling the stuff are willing to go to court if they're big enough and making enough money off this...but if instead, Blizzard (and other MMOG companies) cracked down on anyone buying items, the market would dry up very fast.  Who wants to spend money buying an item/account/cash, when there's a reasonable chance they're going to get banned, suspended, or the item/cash/account deleted?

Make *buying* cash/items in game a much riskier proposition, and the market will almost dissappear, I'd wager.  Supply and demand...cutting off the supply is pretty hard - cutting off the demand, however, seems much easier.

[MahrinSkel]

I'm surprised everyone has missed the elephant in the room here.  One guy came close, talking about how the "items" are just bits of data in Blizzard's database, but he missed the obvious implication: What, exactly, is Blizzard trying to get people to stop doing?

These "items" are bits of data in Blizzard's database.  These bits of data are interpreted by the game code as being under the control of a character, which is yet more data.  "Items" (data) are passed by means of the explicit functionality of the game code from one "character" (more data) to another.  From the viewpoint of *Blizzard's* system, there is no distinction between the data being moved around as an ordinary course of the play of the game, and the data being moved around as a result of an out of context transaction.  Now, exactly what IP rights of Blizzard's are being compromised?  Either way, the data is always on their system.

Where is Blizzard's standing to regulate the out of context transaction?  I know what the EULA says, the question is, is it relevant?  The EULA cannot bind a third party.  And since the "items" (data) are always under Blizzard's control, in fact are completely meaningless outside of that control, how can the DMCA apply?  Blizzard's IP isn't being exchanged, because it's always right where it belongs: On their servers.

--Dave

[WindupAtheist]

Bliz better win.  Because if they lose, and retards own their leet items, and can sue when there's a rollback or whatever, well... that's pretty much the end of the MMOG.  No company is going to want to deal with catasses suing them over hardware failures.

[SirBruce]

While you're somewhat correct, Mahrin, I think it is clear that in current IP law that there is a concept that you don't simply own X, but control how X is distributed and exchanged.  So I still see a big reason why Blizzard could still win such broad IP protections.  My point was simply that there are ways of resolving this conflict whereby players can still have the right to sell what they own in game, without it spelling doom and gloom for the game maker.

The best analogy I can think of is, for example, an art class.  Let's say you go to an art class where all the materials and instruction are provided.  At the end of the class, the instructor keeps your painting.  What rights, if any, does the artist have?  Even if he can't take the painting home with him, can he insist that it not be sold?  Or not be sold without being credited?  If all of this should be determined solely by the nature of the agreement signed when the person entered the class (that is, the "EULA") then it would seem to me that the artist can't turn around and sell that painting to someone else in the class, and even if they could, the fellow classmate still wouldn't be able to take it home.

Bruce

[Numtini]

I think there's a secondary argument that a company can make that the rules of a game are arbitrary and that they have the right to set those rules how they see fit.

Clearly in an achiever game, the buying and selling of property is having a deleterious effect on the fairness of the game.