Fun and Games?

By Peter Blumberg
     
Game players used to settle accusations of "Cheater!" on an obscure corner of the playground. Today, however, as millions of adults gather on the Web to play fantasy games against one another, the opportunity to trade online assets for real-world cash has upped the ante. Not able to duke it out in a virtual schoolyard, players of Massively Multiplayer Online Games (MMOGs) are heading to court to settle their recreational disputes.
      It begs the question: Whatever happened to fun and games?
      "Any time you have a very competitive environment?whether [in] games or things you think of as more serious?there is a lot of pressure to do well," says James Grimmelmann, associate professor at New York Law School (NYLS). "People are going to push the boundaries of what they are allowed to do." Currently, at least two lawsuits accuse parties of pushing too far in World of Warcraft (WoW), a popular MMOG made by Irvine-based Blizzard Entertainment, a division of Vivendi Games.
      Antonio Hernandez, who shells out $15 monthly to play WoW, is the lead plaintiff in a Florida class action against a company that facilitates "gold farming" via its black market. In gold farming, those without the time or inclination to rack up their own points can buy them, or weapons or other such virtual assets thought of as "gold," from other players. Hernandez, represented by an Orlando-based personal injury specialist, claims that by promoting "real-money trade" such as gold farming, IGE (a Hong Kong affiliate of Internet Gaming Entertainment) is causing "substantial economic damages" to players while destroying "the enjoyment and fantasy subscribers pay for."
      In an Arizona federal court, meanwhile, Blizzard is suing MDY Industries, which markets software to automate certain WoW tasks. WoWGlider, as the software is called, essentially helps players advance more quickly by playing WoW when gamers themselves don't have the time to play.
      The two lawsuits hinge on a variety of arguments, but both contend that rogue profiteers are violating the agreements that codify game rules as outlined in WoW's end-user licensing agreement and terms of use (TOU)?basically the governing laws in the context of MMOGs. But experts say there's no guarantee judges will uphold either agreement, and MMOG makers are watching to see how WoW's governing documents stand up in court.
      Blizzard's claim that WoWGlider "enables users to cheat" may not be enough to shut down the software?even if it's found to have breached the contractual relationship in the TOU, which says players will not "use cheats" designed to modify the WoW experience. Jason Schultz, a staff attorney at the Electronic Frontier Foundation (EFF), a cyber-liberties advocacy group in San Francisco, suggests that WoWGlider is simply a tool for players to customize their gaming experience, just as Trivial Pursuit players might invent their own rules.
      "California has a pretty broad public policy in favor of competition, and one could argue that WoWGlider is offering an after-market product for software,' Schultz says.
      Hernandez's suit also hinges on Blizzard's TOU, arguing that IGE helps players violate the agreement, which states that WoW users "may not sell items for 'real' money or otherwise exchange items for value outside" the game. But players and IGE have no contractual agreements between them, so the argument may be challenged.
      "Using consumer-protection statutes raises issues of whether the players are really the kind of beneficiaries the statute is intended to protect,' says NYLS's Grimmelmann. "You have a player saying that Blizzard is being insufficiently vigilant [against gold farming], so we as damaged players should be allowed to [take action]."
      There may be a practical solution to such problems, says Seth Steinberg, until recently general counsel at Lucas Arts but now in private practice. Game-makers, he says, can create "segregated" sections of each game with different styles and rules of play, as Sony Online Entertainment has done with its EverQuest MMOG. In such an arrangement, novices and amateurs can have pure fun in one section, while another allows a more rough-and-tumble crowd to engage in a free-for-all, with no restrictions on profit-minded activities.
      But ultimately, the courts may be the wrong place to settle such playtime disputes. "The legal approach raises questions of public policy about competition and control,' the EFF's Schultz says. "That's where the danger lies."
     

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