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AGDC: Property Rights In Online Games - Who Owns What?

In an AGDC panel, Raph Koster from Areae, Scott Hartsman of Ohai, game lawyer S. Gregory Boyd, author Erin Hoffman, and moderator Erik Bethke of GoPets discuss how to improve the end-user license agreement for all, with fascinating results.

Brandon Sheffield, Contributor

September 16, 2008

5 Min Read

The end user license agreement, or EULA, is essentially what protects an online game from players – but not necessarily the reverse. In this panel, Raph Koster from Areae, Scott Hartsman of Ohai, game lawyer S. Gregory Boyd, author Erin Hoffman, and moderator Erik Bethke of GoPets discuss how to improve the EULA for all – with significant conversational travel into real money trading (RMT) territory. As part of the session, Koster revealed that the Metaplace EULA and terms of service (TOS) will be an exceptionally wide-ranging document including freedom of speech and IP ownership aspects. Erik Bethke started thinking about EULAs during a talk he gave with some other folks at Stanford about virtual items. The talk covered the gap between what is owned by whom in virtual worlds – and in general, nothing is owned by the player. “We have a lot of models now that don’t fit within the existing EULAs,” proposes Bethke. Why can’t users just sell your own sword, in a game, if it’s described as “theirs?” S. Gregory Boyd: “Couple of reasons. The first is liability. If I want to cancel someone’s account, I don’t want to have to pay the person the value of that sword. Second I don’t want to compensate them or own up to anything when I nerf that sword for balancing reasons.” Scott Hartsman: “Once you get into what brings people into some of these certain environments, back when Everquest introduced (item trading) I was the voice of anti-RMT in the office. … We are still at the point online where some people come to this world to escape the real world, and the real world economy. When people come to escape, everybody wants to be winners.” When we’re keeping the game to be as fun for everyone as possible, I think it’s preferred (not to have that).” Raph Koster: “All of these things are ultimately just bits and bytes in the database. I’ve often maintained that the best way to look at them is that way. So in that way, I’m just fine with saying ‘yeah, that’s SOE’s sword. Damn straight!’ Where it starts getting a little weirder is that those databases are all a log of a player’s experience. In any place but gaming, something like your quest log should be protected by privacy laws.” “In a world where there’s so much user contribution on so many levels, it’s not that I think everyone should own their sword, but I do think it’s getting very hazy.” Erin Hoffman: “My main problem came down to two things. One came down to the intellectual honesty. If it’s not their sword, we shouldn’t call it their sword.” The other problem Hoffman posed was commerce - large virtual worlds need commerce, and a restrictive EULA slows down those transactions. Players want to know, regardless of RMT, that they own their accounts. Erik Bethke: “In some ways I think WoW might be one of the biggest failures in this regard. It’s such an entertaining product, but why does it have 10 million players, and not 50 million? Not 100 million? I wonder if it wouldn’t be better if they had better property rights. Could we be making more money I we had a better EULA?” S. Gregory Boyd: When you look at any online game, they all have basically the same EULA, says Boyd, sort of a copy and paste from World of Warcraft’s. “It all comes down to this – when you loosen the EULA, and give things like property rights, you’re going to increase liability, and increase revenue costs…and does it affect your average revenue per user? The jury’s still out on that.” Raph Koster: “There is one glaring example of having a more open EULA, and that’s Second Life. The difference in user activity and contributions changed dramatically from the instant that they said users would own their IP.” “To some degree you have to look at what the intent of the space is. If it is a pure entertainment space, then I tend to agree with you. It’s like what is your pain threshold. Accidentally banning people leads to bad PR, which leads to more people leaving, depending on how bad it is. In a space about something else, I think the question is not as easy as that. If in second life the aim is encouraging entrepreneurship, the whole EULA needs to be different.” “We (at Areae) actually have hanging on the wall that fostering entrepreneurship is one of the goals. We went into it saying if people go into it to build virtual worlds, they’re not going to know how to make a EULA. We have to give them a boilerplate, terms of service, and a EULA.” In Areae’s Metaplace, companies can have freedom of expression, ownership, including earning money & running their own world, Areae won’t spy on the company, and it can develop their own TOS if they want. Users have the following rights: Freedom of speech & assembly, privacy. Rule of law and due process. Ownership of IP. The responsibility of both creators and users is not to break the law, but Koster cautions that this basically means don’t break any law, all over the world, since you never know where anyone will be logging in from. “Every one of these had to have an exception for minors,” he says, “and what you can display to minors, and every one had to have an exception for gambling.” Erik Bethke: “So what about Creative Commons? Can we move to that?” S. Gregory Boyd: “No. I wish we could! You could probably do a FAQ associated with your EULA, but the problem is scale. Now that we have hundreds of MUDs, and millions of players, we have a pretty good idea of the badness people can do. By the time I’ve gotten to writing all the normal bad things people can do, I’m on page 7. It takes a long time before you can even get to malpractice.” Erik Bethke: “How does this scale worldwide?” S. Gregory Boyd: “It’s worse than you can imagine.” Raph Koster: “If you really want to know what’s the cutting edge of this, I’d look at China. Because their government has stepped in and said ‘I don’t care what your EULA is, here are the new rules.’” “If we’re going to become the greatest form of entertainment and blah blah – we’re going to have to look at Asia, where it’s already happening.”

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About the Author(s)

Brandon Sheffield


Brandon Sheffield is creative director of Necrosoft Games, former editor of Game Developer magazine and gamasutra.com, and advisor for GDC, DICE, and other conferences. He frequently participates in game charity bundles and events.

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