Future of Video Game Litigation

[29 September 2008]

By L.B. Jeffries

PopMatters Associate Multimedia Editor

I’m going to start this blog of by saying two things.

One, I am in no way a qualified legal expert and you should consult a licensed attorney if you have further questions. Actually, it would be awesome if you didn’t even mention me. Two, all the opinions stated here are conjecture. I am simply making guesses about the future.

There, now that all that noise is out of the way, let’s talk about something that doesn’t often come up with video games: the law. More specifically, the potential lawsuits and rights that people are going to start fighting for as the internet develops. Up until this point, video game litigation hasn’t exactly been a page turner. A lot of patent, copyright, and intellectual property disputes make up the bulk of the legal questions that have gone to court. Is Donkey Kong ripping off King Kong? Nope. Does Game Genie violate Nintendo’s Intended Use policy? Nope. A couple of inventive companies have started patenting game designs…which might lead to some interesting exchanges, but given the millions it would cost to declare these illegal, most companies will just tweak their own games to not violate the patent. I could go into video game violence cases but these won’t go anywhere until quantifiable proof that games (as opposed to bad parenting, drugs, or boredom) caused the violence. But with the growing market of MMORPG’s and online services, a whole new breed of virtual lawsuit is on the horizon.

Griefing is when someone in an online game or community disrupts someone who is taking it seriously or having fun for the sake of getting them to lighten up. Whether it’s by screwing with an online match or hacking Second Life, playing pranks with people online can be pretty funny. I can honestly say that back when I was first getting used to internet culture, the first time I made a fool of myself by spazzing online was both humbling and helpful. You have a couple of beers, realize it’s not that big of a deal, and become a better person for it. Nor is there much to discuss in terms of legal issues. The general reaction of most courts to “they said mean things to me” is to recommend the person grow a thick skin. Short of being able to show quantifiable damage (therapy bills or worse), there isn’t really a law (depending on where the lawsuit is filed) to base a legal claim on.

What’s becoming tricky is that people ARE starting to need therapy. This is usually a little clause in the average insurance contract which explains that in the event you make a damage claim caused by someone else, the company can sue that person to get their money back. So when someone hands their insurance company a massive therapy bill for a destructive prank pulled online, the company doesn’t pay the Piper. They find the townsfolk who ticked him off. Most of this trauma is coming from MMORPG’s, where people invest years of their life into property and characters within the game. Erin Hoffman explains in an article for The Escapist the extreme trauma one player went through from losing her character and items due to pirates. We’re a long way from players buying insurance for their virtual lives, but they can certainly be traumatized by the loss at this point.

Another reality is that property with genuine economic value is now at risk in-game. A recent article in Wired points out that a lot of these online games are starting to have in-game items that are worth real world money. 20 million game dollars and a fully trained technician on EVE can get you 150 dollars on Ebay, which is chump-change when you factor in Player-controlled Empires that can get into the tens of thousands in value and have hundreds of people working for them. The culture of griefing may be relatively harmless in something like Second Life or online competitions, but costing someone real money is another issue entirely. That’s a quantifiable loss you’ve inflicted. Micro-transactions make this more complicated. If the person spent real money on that starship and you just blew it up…how is that different from blowing up their car? The main defense the griefers use is a sound one: the in-game policy you’ve agreed to clearly states that it isn’t your property. The thing is, none of those companies are going to defend this once some enraged player files a class action lawsuit. This is an amateurish guess, but why would the company not merrily hand out the ID of any player someone has a claim against? Why would they spend money defending your right to make their clients miserable? The alternative is start doling out items to anyone claiming a loss, which would work fine except once these things have an economic value the company can no longer just print more money when things go sour. Other players will cry foul when their own hard earned battlecruisers are suddenly worth less.

Which brings us to the inevitable debate of whether anyone owns the virtual stuff in those video games anyways. As a blog post at tobolds explains, the heart of the issue is whether you really want to own stuff in an online world. The author isn’t a lawyer but the conversation in the comments properly highlights most of the problems from the gamer’s perspective. An expansion pack devalues your virtual property, but does that mean we sue over it? If it becomes recognized as property, does that mean I can be taxed for my Level 70 Paladin? What if I’m selling him? Does the company get a cut of that? If you want to get technical, the game company handed me a Level 1 Paladin and I invested hundreds of hours making him into an epic Level 70 Warlord. Who gets to keep those improvements to the property? Virtual Property rights are hardly a simple “Make it like Real life” situation. A completely different set of laws and conduct need to be established and accepted by people in the real and the virtual community.

Griefers are hardly a unified club or sect, as the Wired article mentioned above notes many are just having fun. But like any good party or fun joke, eventually someone is going to take it way, way too far. California’s reaction to such a tragedy is already setting a precedent for the Federal level, Congress is looking at drafts of a cyber bully law as I write this. Nor does allowing a company to completely own their virtual property make sense after a certain point. A lot of those games are, quite frankly, worthy of a place in history. World of Warcraft has over ten million users and changed the entire economic model of video games. Once that game stops being economically viable…what’s to keep them from just shutting it down? How do we ensure people will have an accurate understanding of the names and places of the game world? Should a historical preservation society step in, create servers, and keep the game running? Is it really all that different from preserving a piece of land? It’s hard to say where the hammer is going to come down in all this, only that it has to eventually.

Published at: http://www.popmatters.com/pm/post/future-of-video-game-litigation/