Journal of Information, Law and Technology

In Search of the Value of Online Electronic Personae:

Commercial MMORPGs and the Terms of Participation in Virtual CommunitiesAbstract

Nicholas J. Gervassis
Doctoral Candidate, Faculty of Law, University of Edinburgh

This is a refereed article published on: 15 December 2004.
Citation: Gervassis, ‘In Search of the Value of Online Electronic Personae:Commercial MMORPGs and the Terms of Participation in Virtual Communities',2004 (3)The Journal of Information, Law and Technology (JILT).

Abstract

The formation of online, or virtual, communities has been a feature of the Internet since its public inception. Mass participation and access to permanently stored online content have allowed for the development of the network structure into a prolific venue for sharing knowledge and common interests, and, just as the operational capabilities of the network expands, so too does the role, and potential, of the online community. The variety of ways in which users have established, developed and contributed to online communities is as diverse as culture itself, and as such, to try and map the sum of online geographies would prove rather redundant. In general however, there exist two core models of 'virtual community', within which subsist Electronic Personae.
The first community, the intellectual virtual community, can be characterised on the basis of a shared (intellectual) interest, for example, members of a political organisation, or a Lords of the Rings fan club. The second, the functional virtual community, can be defined as a group of users participating on a single application platform, for example, an online game such as Ultima Online.[1] To understand the difference as well as the potential for operational conflict between the two, one might draw upon the contrast between nations and states. Where states constitute regionally limited legal formations, nations are broader in their geographical manifestations and are decided upon shared cultural characteristics that distinguish ethnical groups.[2] Functional communities resemble states: pinpointing their online locus at specific IP addresses, they submit to fundamental operational rules, set in the launching software’s computer code.[3] Similarly, intellectual communities resemble nations. Although group members rely upon a functional community as a means of gaining network access (citizenship), they adhere to collective basic characteristics, tastes and intellectual qualities that define their shared bond beyond the procedural mechanisms of limited online geographies (nationality).
Within these virtual communities there exist Electronic Personae, that is, the individual online identity that someone adopts when participating in virtual communities. The human intellect enters the electronic environment and selects a unique digitised appearance[4] to reflect its stature and to personify communications with the setting. Concisely, the EP is encapsulated in every type of Internet service user account (e.g. yahoo!, msn or online game accounts), where digital 'bodies' are provided as either onscreen textual indicators, like nicknames and descriptions, or graphical representations (avatars). This article makes use of the concept of the EP, within the context of Massively Multiplayer Online Roleplaying Games (MMORPGs), to explore the potential conflicts between intellectual and functional communities alluded to above.

Keywords: Virtual communities, electronic personae, Massively Multiplayer OnlineRoleplaying Games (MMORPGs).

1. Introduction - Understanding Online Games

1.1 MMORPG Morphology and Function

MMORPGs belong to the broader Internet entertainment genre of massively multiplayer online games (MMOGs).[5] Gamers create and adopt personalities of fictional characters in persistent artificial worlds, more like in the tradition of pen and paper role-playing games such as the best-selling Dungeons & Dragons. Appropriately, the prearranged virtual settings borrow elements from the genres of fantasy or science fiction literature. Action centres on solving puzzles, battling with computer generated creatures and collecting valuables.
Exceeding by far the limited modules of interactivity that conventional video gaming has to offer, MMORPGs turn into electronic allegories of real life. Game characters 'grow up' gradually through upgrading their game attributes and building personal reputation across the hosting platform. Advanced interactivity within the functional game community’s confines and context consists of developing societies, economies[6] and power hierarchies amongst players.
From the players’ perspective, game characters crystallise the EP concept beyond its simple onscreen identificatory purposes. Experiencing a rather naturalistic understanding of their persistent involvement and personal time-investment in the game, users pretend to intimate intellectual and psychological connections with their game accounts and related online accomplishments.[7] Moreover, entertainment platforms perform quite commonly as additional communications lines between real persons masking as characters and seeking out off-platform associations, mixing up game identity with off-line existence. Unsurprisingly, most modern age MMORPGs are commercial.[8] The amount of required expenses for setting up, organising and maintaining an online service of proportionate complexity (and even improving it) is such that can be only retrieved through consumer market mechanisms. Hence, in their majority these game platforms require preconditional purchase and installation of the appropriate software on home systems. With the exception of few free servers, game participation is usually provided in exchange for additional monthly fees.

A Game Character Example
A hypothetical game character example will assist in developing better understanding of the general MMORPG context and side elements as being referred to in this discussion. Therefore, 'Doonkan', as named by his player, is a fictional game character. Doonkan participates in a fantasy game setting, an artificial world like EverQuest or UltimaOnline which takes up on representing medieval environments enriched with mythical elements.[9]
He is a level 27 'dwarf fighter', where level in game terms pinpoints experience progress; when a character kills computer generated monsters he gains automatically points that improve gradually the appropriate level score. Hence, by Doonkan’s level we may assume that his player has spent a respectable amount of time participating in the game. Game statistics, on the other hand, are parameters representing the character’s personal attributes and skills, like strength, dexterity, constitution and intelligence. They are expected to change as the character develops through gameplaying.
Doonkan is equipped with two unique 'magical' items, the 'Armour of Dragon Fire' and the 'Axe of the Thousand Gods'. These may come into possession during play either as a reward when eliminating virtual adversaries or through trade practices taking place in appropriately set virtual bazaars. He also 'owns' in-game real-estate property: 1 castle, 2 inns and 7 horses. Finally, he keeps in his game 'bank account' the astonishing amount of 3,700,000 world currency units. Doonkan is indeed a well-developed character.

1.2 Legal Background

The premises of contractual freedom have emerged as the most logically applicable legal methodology for game companies to ascertain their control over the virtual world and ensure their further protection. Entrance to MMORPGs is regulated by online End-User Licence Agreements (EULAs), which through exhaustive enumeration of Terms of Service (ToS) pronounce the host’s ownership and intellectual property claims over both game content, like characters or items, and activity.

Although EULAs play an important role in building trust across the commercial market by stipulating standards and articulating in detail the contracting parties’ rights and responsibilities, they have received fierce criticism on the high-handed disposition of ToS. Violation of terms does not automatically invoke imposition of real-world legal measures, unless the prescribed content repeats relevant laws.[10] However, agreements provide game companies with a direct right to suspend or terminate the contractual relationship according to their interpretation of what constitute their legitimate entitlements or infringing occurrences of breach. Hence, exclusion from the virtual setting becomes at the owners’ disposal a de facto punishment measure.
The one-sidedly determined functional participation, conditioned on the instrumental support of EULAs, may interfere effectively with further online user involvement; the potential for challenging judicial reviews against bans is diminished when agreeing to the contract’s offered ToS. In the face of contractual regimes of indirect sovereignty, three questions of general concerns unfold regarding the proportionality of attitudes promoted as such from the private sector’s part:
(i) Are private game owners entitled to impose full restrictions at their own discretion against what players consider to be their justifiably exercised moral rights?
(ii) Has the same law that enables game companies to maintain and uninhibitedly operate their enterprises restricting counter-effects on their sanctioned proprietary rights as players contend to expand participation in intellectual virtual communities over functional groups (or closed games in this respect)?
(iii) Finally, are the functionally assessed confines over online personae fairly balanced with the users’ moral requests for expanding their hosted intellect across the web?To develop convincing answers to these questions, the following analysis tests at first the compliance of the EULA model with general legal principles of private and commercial law and then its consistency in rationalising legitimately the claims of online entertainment corporations.
In more than one ways, those of the examined issues that seemingly diverge from the given in the introduction theme become essentially relevant to the EP discourse. Identity is perceived and acquired through participation in the two different modules, the introvert functional and the efferent intellectual. The human being online is subjected to personifications developed in private spaces and under the authority of hosts. By visiting commonly discussed areas of online contracts in disputing the effectiveness of EULAs or by recognising relative influence of law into the game's pseudo-reality, we reach to the point where the EP turns from a psychologically appraised ideal into a legally appreciated quality for galvanising instances of absolute ISP control over personal development of individuals. The value of the EP lies within its inherent connection to the person: as long as hosts can 'threaten' termination of identity, user behaviour, both in and out of virtual world, is controllable.

2. 'Law in the Box': Analysis of Regulation under the EULA

2.1 Limiting Liability and the Unfairness Doctrine
Internet enterprises that launch online commercial operations are naturally concerned with the regulatory scrutiny that they invite from foreign jurisdictions. The practice of typing on home installation software packages regional restrictions against connecting with the game can be used to set out a safe market policy against unwelcome state regulation.[11] Such tactics, however, would have effectively diminished the commercial power of the product, which in the case of MMORPGs is the online service per se, not the installation software on retail; large masses of international consumers would have been eventually excluded.
For these reasons, game companies take prominent –for their standards- risks in engaging with multiple jurisdictions, which might not be as tolerant of their contractually declared limitations of personal freedoms and liability. EULAs adhere to the 'click-wrap' licensing model. Its enforceability was first contested in U.S.courts, adjudicating on 'shrink-wrap' agreements[12] on software purchases.[13] Later, when online 'click-wrap' agreements came into judicial focus, successive U.S.decisions approved of their validity. [14] The principles of commercial and contractual freedom in U.S.legal doctrine allow for parties to include in their agreements and put into force between them any terms or conditions that adhere to legitimate private law restrictions.[15]
Thus, appropriate limitations of liability may become acceptable:

'In no event shall we, our parent, our affiliates or our suppliers be liable to you or to any third party for any lost profits or special, incidental, indirect or consequential damages (however arising, including negligence) arising out of or in connection with the possession, use, or malfunction of the software, your account, the game, the software or this agreement. Our liability to you or any third parties is limited to $100. '[16]

Implying almost total exclusion from any possibly arising obligations, the conditional text closes in a different tone, probably in view of markets governed by state protectionism:

'Some states do not allow the foregoing limitations of liability, so they may not apply to you.'

On the other hand, 'click-wrap' licences consist of extensive collections of terms with content that is non-negotiable by individual clients. In favour of consumer protection, the 1993 EC Directive on the Unfair Terms in Consumer Contracts prescribes scrutiny of such agreements in view of 'significant imbalance in the parties’ rights and obligations' and under the general concept of 'good faith' -omnipresent in Civil Law-.[17] The limitations of liability in the previous EULA example overlook this protective regime; consumers do not have any say at all in the formation of ToS. However, the agreement’s inter partes effect is partly compromised in the highlighted final clause, which guarantees the service’s legal compatibility with similarly regulated markets.Another example portrays more vividly the grounds that have given rise to attacks against unilaterally submitted ToS:

'You further agree that any material breach of the EULA, the Dark Age of Camelot rules of conduct or unauthorized access or use of the system by you or any other user of any of your accounts, shall entitle Mythic, at Mythic’s election, in addition to and not in limitation of any other remedy or right which may be available to Mythic, to immediately and without notice discontinue access to the system through your account, and any and all other accounts that share the name, phone number, e-mail address, Internet protocol address or credit card number with the discontinued account, and to direct any person that is assisting in the performance of the contract to discontinue its performance.'[18]

Here the EULA reserves for the owner the authority to simultaneously terminate related game accounts. According to these terms, Mythic would be promiscuously entitled to ban from the game an Iowa high-school student, on the ground that his brother’s account operating in aSan Diego college has been terminated, since both game registrations are paid through a parent’s credit card. Unfairness of EULA contractual provisions has not been tested exclusively within consumer protection frameworks. The Court in the U.S.Hotmail case[19] held that termination takes place only when deemed necessary. In practice, game companies feel entitled to ban accounts under any subjectively apprehended occurrence of breach. Private law, though, empowers excluded users with the right to debate in court the circumstances that led the agreement to its end and whether the owner acted in a rightful manner or not, as in any other online or off-line contractual discharge.
In reality, however, litigation against corporations is hardly affordable. Moreover, EULAs localise jurisdiction in favour of the game company[20] rather than pertaining to a more flexible system of 'forum-shopping', which would potentially expose owners to scattered legal attacks and drag them through tremendous court expenses. Where the disposition and effect of unfair terms appear theoretically reversible by court authorities, practical inequalities emerging from the agreements per se have discouraged users so far from contesting such a precedent. Furthermore, the generally manifested across the online entertainment industry unilateral selection of forums could have been found inappropriate.[21]

2.2 ToS Deployment in Regard to Virtual Property and Off-Game Activities
The property issue has recently introduced a different path for the EULA discourse and turned game characters into the actual bone of contention. Their legal identity moves into focus and is accordingly questioned, either establishing the game companies’ exclusive property or instituting a product of collaborative authorship with gamers.
This dispute was at first put on the map when players began selling developed game accounts and game goods for real-world money through off-game online auction markets. For example, Doonkan’s user sells on the auctioning venue eBay[22] the Armour of Dragon Fire for $250 and the castle for $1700 to other game subscribers, who prefer an easier way for acquiring game 'prizes' to fighting their way through endless puzzles and battles with digitised monsters. The online off-game market has blossomed spectacularly, and newly established Internet entrepreneurs make a fortune by simply distributing virtual assets.[23] Game owners disputed in the open the potential inflicted damage on the games’ integrity while off stage they grew weary of the uncontrollable dissemination of profits that derives from their enterprises without their given consent.
An overview of the short history of MMORPGs reveals how the current writing of ToS has taken gradually shape as EULAs kept on incorporating standard viewpoints over ownership and intellectual property into progressively developed contractual frameworks. The tangible results of this reorientation reveal the apparent haste with which private measures were adopted and weak points in the phrasing of offered ToS that, as the following discussion and examples will indicate, could be attacked as either inconsistently written or as proposing set-ups vulnerable to the unfairness doctrine.
Hence, three points should be taken into consideration while reading through EULA texts: (a) where do hosts confuse in contracts their real-world legal entitlements with pure game pretence, (b) where property claims become unduly inseparable to intellectual property rights and (c) when companies formulate their entitlements by broadening significantly the scope of protection, and maybe against self-evident moral principles.