The Myth of Ownership in Games

A recent post by Tobold on virtual property rights was interesting to me because it’s a very common player perception. His argument, roughly, is that it would be great if the courts could rule on virtual property, so we know whether we “own” what our characters own, or if game companies do. If a character is worth $10,000, should we be allowed to sell it regardless of what the game companies want? The courts should rule on this.

Well, actually, that’s a terrible idea — given the level of knowledge the courts have, they couldn’t possibly make an informed and nuanced decision. Hell, we as an industry can’t do it because the rules are changing all the time, and forming a meaningful question is impossible.

But the interesting thing to me is that this argument exists only because of how successful MMOs have been at veiling their true nature. By tying into concepts players are already familiar with, they hide the game.

“Virtual property is property. It’s my stuff. Shouldn’t I be allowed to keep it regardless of what the game company wants? Virtual land is land, so somebody owns it — and if I paid for it with virtual currency, why should the game company be able to take it away?” These are the questions of someone who has bought hook, line, and sinker into the fiction of the virtual world.

Game companies reject these questions at a more base level than these players can even see! From a game company point of view, it’s like a FPS player demanding that they should be able to keep the shotgun from the map they just played, because they “own” it and the game company shouldn’t be able to take it away. It’s so illogical to game companies that it doesn’t mean anything at all: players are effectively talking nonsense.

Suppose that the company had instead chosen to make an epic single-player RPG. But the storyline has a tragic twist (not unlike the one in Ultima 6 or Final Fantasy 7): about 100 hours into the game, one of your most powerful characters dies. Did the company take away something you owned? Can you sue? Most gamers instinctively know the answer is “no” — they no more own the character’s possessions than they own their favorite character on Lost. They are playing through a story told by the game developers. If Mr. Eko dies, you might feel sad, but you didn’t suffer material loss.

But what if you were about to sell your copy of the game, along with your save file? You could have sold it for $100 yesterday on eBay, but now that you’ve overwritten your save game, you lost your most powerful character and your account is now only worth $70. Does the company owe you $30? Again, most people understand that the answer is “no”: even though you found a sucker who would have paid you $30 more for your old save games, that value was tangential on something you didn’t actually control. (Leaving aside your idiocy for overwriting your saved game; or perhaps the game only has one save slot, like Nethack.)

What if the answer was “yes”? Well, then games could never have bad things happen. If the value of your saved game can only go up as you play it, then there can be no losing. This would destroy games as we know them.

From a game company’s point of view, you don’t own your character any more than you own Aeris in Final Fantasy 7. You license a copy of the game in order to enjoy it, but you don’t own what happens in the story.

The neat thing is that players think they do own their characters. The sense of identity is so strong, and the open-endedness of MMO games is so broad, that they perceive things differently. They aren’t in a story, they are in a virtual world where they (the player, not the character) should have rights not unlike those in the real world. Nevermind that those rights would have devastating effects on all of gaming. It just feels like players are being abused unfairly. This is a case of MMO companies being too successful for their own good. If only games weren’t so open-ended, if only the character wasn’t so customizable and nameable, then they wouldn’t have this problem. The very illusion of open-endedness is what creates the belief of ownership.

In fact, the very open-endedness causes some people to feel that it needs a new categorization. “It’s not a game,” some argue — “It’s a virtual world, and should have different laws to protect it!” That argument is hard to defend because nobody can agree on when a game becomes a world. Final Fantasy 12 was a single-player virtual world, and had very similar mechanics to an MMO. It was just offline. Or would you argue that a virtual world can only happen when a LAN cable is connected to your box? What makes MMOs more of a virtual world than FPSes? Is it the persistence of your character? Okay, fine, let’s make an MMO that resets every three months. Is it still a virtual world? How about an MMO that resets every week? When does it stop being a world? These and other questions are very hard to answer because we don’t have enough concepts and definitions to even pose particularly meaningful questions, let alone get answers to them.

The very worst thing that could happen would be for a judge to step in and try to rule on virtual property, because they’d have to define what that means. First off, they would have to distinguish virtual worlds from games somehow. Next, they would have to distinguish designer intent from game player intent. Finally, they would have to rule on how much control game developers have over their own game rules. Imagine Parker Brothers having this trouble with Monopoly and you can see why game companies fight this tooth and nail: they are unwilling to give up any aspect of creative control.

Are there questions a judge might usefully rule on? Sure, someday. For instance, at some point we might need a clearer picture of who owns the rights to player-created content. But questions about player-created content are a million miles away from questions about who owns your level 70 Troll Shaman with all epic gear. The game developers made every aspect of your character and allowed you to license it.

Maybe after twenty or thirty more years of game creation, the distinctions will be clearer, and we might see our way to asking more meaningful questions. Right now, there aren’t any questions that a judge could usefully answer.

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15 Responses to The Myth of Ownership in Games

  1. Pingback: Pulling Off the Bandaid of Virtual Value | Random Battle

  2. BobSugar says:

    While I agree with the thrust of your argument, I think the argument gets much more muddied as soon as the game developer participates in the sale of virtual goods. Sony Exchange puts them in this tricky situation – by facilitating and skimming off the top of a $100 transaction, they’re (at least slightly) implying agreement that the server data is worth that much money.

    An even more dangerous case is that free-to-play MMOs that charge you for in-game goods or property. If Linden Labs *sold* you that land for $100, then you have a *much* stronger argument that they can’t delete it, or ban your account, without at least refunding your money. The terms of the sale could say that you’re only renting the service to access the data, and can be revoked at any time, blah blah blah, but that may not hold up in court.

    So I agree with your argument, under the caveat that the developer stay as far as they can from implicitly agreeing to a valuation of the server-stored data.

  3. Loredena says:

    The other area where the comparison falls down is this: in a single player game, I own the disks and the save games, and if they can be exported to other games, the saved characters. I could hand all that to a friend and let him play my copy of the game, with my saves, and my characters. But owners of MMOs say that letting my friend play my character (or create his own) on my account is grounds for banning. I say I should be able to give my account to a friend when I’m done with it, or ‘export’/transfer my character to his account….

  4. Platinumstorm says:

    I’ve been meaning to make a post on this, but limited on time still so before a new blog goes up I really think the chasm of differentiating opinion between players and game companies comes underneath the license category more than any other area, and not so much the attatchment or masking. People simply don’t like software licenses because it makes people feel like they are being scammed and having rights violated, even when people “agree,” aka click I accept, to the license agreement. On the software side of things Microsoft especially has disenfranchised the masses with licensing, there are websites dedicated to analyzing the Vista license and its validity. Bioshock, although an incredible game, got into hot water over its license agreement as well. I do not participate in trading my game assets for real money, and likely never will (nor do I support it except for perhaps gold for game time like CCP and EVE), but I disagree largely with what EULA’s have to say regarding my involvement and ownership of the game.

    What players can say they own are the knowledge of the access of an account, as well as say they are selling the time dedicated to an account, whether this is leveling or accumulating assets.

    Companies can compensate for this by just blanket banning account trade, but the end user feels that his or her rights are being violated.

    Companies leave room to change the EULA, but the paying customers cannot influence this, and then you are in a common struggle between citizens and corporations; feelings of resentment and distrust arise, and then alternative means of trade are searched for.

  5. Swift Voyager says:

    Bravo! I’ve tried to make the guys over at Tera Nova understand you point several times. They just keep getting stuck in the illusion that the VW is actually “special software” because of its special properties. The notion that the owners of the software and the servers and the license and the intellectual property and the copy rights and the trade marks, etc, etc…should not have total control over every aspect is absurd. The license states this explicitely. End of story. You don’t own anything in the MMO. It says so in the license. End of story. If the company didn’t create it, you wouldn’t have it. If you didn’t agree to the part of the license that says they own it all, without question, then you wouldn’t have it. Even if they are charging for extra content (which someone above erroneously called “virtual property” or “virtual items”), charging for extra content or bonus features (like a new hat for your avatar) doesn’t mean that you “own any rights” to the feature you just paid extra to get access to. When Sony charges a service fee to transfer items from one account to another, they are charging for a service. That doesn’t imply in any way that the data they are moving is “owned” by anyone but Sony. You just sold your access to some of Sony’s game content to another user. Sony still “owns” it. There are tens of thousands of pages of law in regard to contracts, copy rights, property rights, taxes, etc. Those laws already apply to every situation you can think of in regard to this topic. The only thing open to discussion is “interpretation of existing terminology” as in the Blizzard case against Glide. Blizzard is trying to use a very questionable interpretation of the copy right act, but it’s an interpretation that has been used before successfully in certain situations. The laws themselves are already written. We’re only waiting for clarification under special circumstances where existing precedents may or may not apply.

  6. Babs says:

    /nod to Swift Voyager.

    This was an interesting part of a comment above – “feelings of resentment and distrust arise, and then alternative means of trade are searched for.” Circumventing the rules because they don’t like them is never going to get players a day in court to test their very shaky theory. The IP still belongs to the company, the only entity entitled to feel any resentment and distrust because the rights being violated are theirs. A frustrated and angry burglar is still a burglar when it comes right down to it.

  7. David says:

    I like Swift’s comments about license control, but he lost me when trying to dodge out of propery valuation and sale. There I have to agree more with BobSugar. Sony is validating the concept of a valid sale by skimming off the transaction. A transfer fee legitimizes the item as property, just like an EVE Time Code is considered taxable owned property, just like an electronic concert ticket, or the monthly cable bill.

    Also remember that in order to enforce sales taxes, laws typically take a broad view. For example, in many states car leases are taxed on the full valuation of the car as if it was sold, despite the fact that it is a ‘right to use’ contract. It’s sensible to understand why, without broad view of what ‘sale’ and ‘property’ are, sales taxes would be unenforcable — as everyone could just write non-terminating right to use contracts.

    I can believe a fixed price transfer fee is legitimizing the item as property, and in that case it may limit what a supplier can do to take that item away from you in the eyes of the court. (though it would have to be worth a court battle). Further, charging a percentage transfer fee sounds quite a bit like the actual value is being legitimized, and I can imagine this running right into interesting property ownership and taxation laws. Several states are going after itunes for sales tax on music downloads, that lvl 80 sword a couple years from now could be next.

  8. Polecat says:

    I stumbled over this from another blog, and I must agree with your arguements. However let me point out a “game” that doesn’t exactly fit what you’re going on about and takes the elements of digital rights in a very strange direction: Second Life.

    As a user of Second Life, I know that it’s basically a world where everything is user created content. From the shape of your avatar, what clothing it wears, and the stuff you carry. Another user, somewhere, figured out the system and created it themselves. Photo-shopping for clothing, sitting in hours in the script or build interface to create a program or item respectively, or (as I sell in Second Life) working with an animation program to make new animations avatars can use to modify their visual behaviors.

    By my records, I made $1000 worth of cash last year off Second Life. Not in game cash, REAL cash. Second Life ties their in game “virtual” money to the dollar in the real world. It even has an exchange rate, like any currency. For comparison, if I trade in close to 100K of their in game cash, I can make about $500 dollars US. So this takes the whole idea of virtual property in a new direction. Now, I’m not only creating original work via a provided interface, but I’m making real world money off it. This is more of a dilemma then I would have if I just kept playing my Warlock in WoW (In which all items and customizations are provided by Blizzard).

    Just some food for thought.

    - Polecat

  9. Babs says:

    Actually, a transfer fee does not legitimize “the item as property” for purposes of establishing ownership. Your ability to FedEx a Picasso to your pal in China does not establish that you or your pal own the Picasso even though FedEx carried it for you. You’d have to establish ownership independently of your right to transit it.

    Sony wouldn’t be the only company providing a specialized service for which it charges a fee. Most MMOs are willing to move your character from where you put it to where you want it for a fee because the fee covers the cost of the service provided. It neither establishes nor refutes ownership in the same way that FedEx does not establish or refute ownership of the Picasso.

    And sales tax has nothing to do with establishing anything; the government uses the term “sales tax” to cover both item and service sales. It’s not a good basis for determining ownership. My brother may buy a car and I may pay the sales tax for him, but that doesn’t make me the owner of the car.

    In my mind, if you’re going to try to make a game character the intellectual property of the player, you’re going to have to prove that everything (and I mean everything) about that character originated in the mind of the player; that it was neither inspired by nor fettered by limitations imposed by the game system; that the same character can be transfered between mediums to those exact specifications; that you have established ownership via legal registration (trademarking, copyrighting) or a bill of sale; that when the game company goes out of business you are still in possession of your game character; that you can license the use of your game character however you see fit to whomever you see fit. If these proofs of property rights cannot be applied, then you don’t own it.

  10. Boosie says:

    Well, first and for most I’m most definently on the side of the game designers on this one, they spent far more hours creating the content then you did playing it to get your snazzy level 70 shaman. that note aside I think what most people do is make the mistake of taking the argument down the line of its “virtual property”. if you look at it in the way of if I am selling an account lets say “random MMO here”. if you go with I’m selling my time I spent creating and playing this toon, or I’m selling this gold as time I spent farming it in place of them spending there time, so that others can buy there in game items, not the actual selling of the gold but the man hours, just as man hours was but into the game to create then you start to have your self a real debate, then it comes down to whats being sold. if you came done to you can only sell materials or in our case “virtual content” then people like cleaning companies, athletes, or really anyone who preform a service would be out of a job, so in a sense, if you really think about it companies like blizzard and sony and the like, when they ban account for gold trade or account shearing or something to that effect are only hurting themselves. who cares if some 18 year old who doesn’t have a real job sits around wasting his life away to make his 2000 gold and 3 level 70 characters a month to sell for a sum a money, the game companies are still getting there subs, if they ban those accounts… no more subs, I mean if the game is new enough they might have to buy a new box, but hey they just made 600$ for the account they just sold to some sucker, so its all good in their eyes. in a sense it might be a good idea for the game companies to let us do this, I mean specifically the US, given the ecinomic times, I mean tax free transactions privately that do not take away profits from a major corporation all the sudden alot of slackers out of high school have a new job.

    that being said, there really isn’t any one can say or do about it, even if some clearly stated rules and laws were laid out, what would happen, fines? treated like a 80′s hacker? jail time? lock you up with rapists and murders cause you sold someone a SoJ (old school). what are the game companies really gaining, or loosing from then disallowing this behavior, I think its a waste of time and money on the grander scale, how much do you think is spent on lawyers fees just to write that agreement that hardly anyone ever reads cause they all read the same in their minds, how much time is used of the supreme court sys discussing these and other cases just like it.

    now like I said I am on the side of the game companies to get what they made, but I don’t think they should get greedy either I want them to make a money, I want them to make millions actually, why so they can hire more people and make more games, if we could get blizzard and activision and EA and sony to make more money but turn around and use those profits to make more games so we give them more money holy crap its a circle and everyone is happy, now as far as subscription based games having content traded amongst players, if blizzard or sony is saying that my time is not worth anything, well then I am grossly over paid to do what I do, and some one should talk to my employer . here is a great example its like some one who goes out and finds that rusty old car from the junk yard buys it for 100$ takes it home restores it pays ohhh lets say 10 grand in parts and paint and the like, to its former glory lets say a white 70′ dodge challenger (hehe) and sells it to a private buyer for 50 grand. now is he selling the car, or is he selling the parts or his time. can the owners of the junk yard come back to him and say hey we sold you that car, how about the owners before that, how about dodge can they come back and say no no you made money off our product that we spent building almost 40 years ago, even though that guy had to spend 10 grand on parts most likely from dodge themselves.

    anyways Im done playing devils advocate, I really hope that didnt come off as some poor forum gamer rant

  11. Mellon says:

    As a roleplayer I often build up a certain amount of story around my character. Some of this story leaves digital impressions on my account, like kept letters, questrewards, titles and hard-to-get loot for example. Other are more temporary or intangible, such as conversationlogs that quickly fade away, or feelings and ideas only left in my mind, and possibly the mind of the other people involved in the creation.

    All these conversations a work of art that belongs to the creator(s), regardless of who provided the means used for the creation.

    And I similarly claim that all conversation I’ve had are my intellectual property. The people providing the means for the conversation does not have any rights to it. For example: I have a conversation in a café: The owner of the building, the proprietor of the café, the fella serving us the beer that make us talk or the creator of he napkin that we jot down our idéas on have _no_ right at all to any income I could make from selling the stories/ideas that I construct during the talk. And they definitely have no right to take my ideas and say “Hey you wrote that while sitting at our café, so your creation belong to us.” I already paid them for the service to being able to sociably interact in a “room” created by thm.

    But if I play up a nice bit of story in an online game, then I am forbidden to make money out of it, at least according to the terms of service. I have no idea at all if this has ever been tried in a court anywhere in the world, but it sure would be interesting to see. Compare with writing something in microsoft word, talking about something over a phone network, drawing something with a certain brand of crayons, creating music on a very specific brand of instrument etc…

    Of course there is the problem about using intellectual property that is created or invented by someone else, and making money from it. So if I made a story that included certain copyrighted names, for example “Illidan” or “Conan” then I would have a problem. But, at least in Sweden, you are allowed to use other IPs names and copyrights if you do it with sufficiently artistic, satirical and/or journalistic intents and results. I imagine something similar is true in most contries/states around the world. See Andy Warhols classical pop-art for a prime example, he uses known trademarks and adds artistic value to them.

    So, I say that my character is my intellectual property. Not as it is in the shape of stats and equipment, honour points or similar, but in the stories that I have created using it as a mean and a focus for. The online presentations can be a (necessary?) part of my work of art, and I only claim to have used them for creating something that holds a significant artistic value. What I would like to own is the right to my creation.

    /Mellon

    PS: Talking about the value of intellectual property in online forums might not be a good way of pleasing the crowd :-) But I’m a writer and musician and I like to make my living by those fields, so they are close to my heart.

  12. Asherett says:

    Curious. Not much marxist theory baggage here, to be sure. Personally, I was raised with the central idea that you have the right to what you have earned, and you (generally) earn stuff through work. Expenditure of time and effort.

    You say “The game developers made every aspect of your character and allowed you to license it.”. This of this in the terms of the real word. Your nation printed/minted the money in your wallet, and allowed you to licence it. All of RL economy is based around the same principle of “licencing” you use to argue that virtual property is not really “owned”.

    Even though the work you do in a game/virtual world (I would like to see you argue the difference, and I don’t mean that sarcastically) is done within a “licensed” framework, and operates with “values produced” by someone else, it’s still work done by you. Heck, if you RL-work at an office, with all probability you didn’t make the office building yourself, you didn’t make the computer, etc etc. The framework in which you do your work is owned by someone else and “licensed” to you (via a near-infinite chain of sub-licensing).

    If you’re attempting to define “virtual” as “immaterial” or “not actually there in the real world” I believe you’ll run into difficulties. VISA does not possess billions of dollar bills that they quickly ship around the world. Representation, virtualization of wealth (property) is ubiquitous. I think you’re looking for a line in the sand that isn’t there.

  13. Eric says:

    Asherett — a very good example. Just as governments own your money, game companies own your character. Governments get to decide what you can and can’t do with your money (for instance, in China these restrictions are very tight and it is not easy for money to leave the country). Governments can and do have restrictions on everything from how you can use your money (don’t send it in the mail, it’s a felony) to exporting (don’t send it to Cuba, it’s a felony).

    I’m not sure what the point you’re trying to make is, but in the end, the company owns your character in much the same way. If a company wants to give you the right to change your virtual goods for real-world money, then that is a right they have. If they choose to close their borders entirely, then that too is a right they have.

    There’s also the very real legal problem of “work”. Games are intended to be entertainment. The money generated by most games such as World of Warcraft is incidental and not an intended aspect of the gameplay. There’s a reason the EULA doesn’t include a work-for-hire agreement, and that’s because there’s no “work” involved. The time spent in a game is play, and this is reinforced by the fact that you pay for the privilege in most games.

  14. Bart Stewart says:

    Playing a game isn’t “work,” and as such isn’t subject to Marxian desires to redistribute power.

    Playing a MMOG is equivalent to renting an ATV — in these and similar cases, what you’re actually purchasing is the time-limited opportunity to enjoy an entertainment experience delivered by a product someone else owns. There’s no rational basis for believing that rental usage of the ones and zeros in a game operator’s database creates a right of ownership over those objects, any more than you get to keep a rented ATV after you’re done riding it.

    That it’s a MMORPG is irrelevant. Whether some of the ones and zeros are associated with the inventory of an in-game character makes no difference — it’s still just part of the entertainment experience, which is all you’re paying for.

    Nor does virtuality matter. Suppose I’m playing a character in a real-world Alternate Reality Game of your devising. As the operator of that ARG, you’ve bought a bunch of props to hand out to the people playing your game. Let’s say that one of those props is a hammer, which you assign to my character for use as part of the game. If I then assert that because you let me use that hammer, I now own it, how would you respond?

    More pointedly, suppose in your game you buy a hammer, some nails and some boards, and you assign those items to my character as props. If I have my character build a birdhouse out of those items, do I-the-player own the birdhouse even though you supplied the materials?

    If I don’t, why doesn’t that argument also apply to computer games?

    IANAL, but it seems to me that making this case to a judge would be a simple application of basic and long-established lease law. Then again, given the willingness of some judges to substitute their personal notions of “social justice” or suchlike stuff for actual law, I can see why publishers might be a little skittish about putting their assets on the line….

  15. Asherett says:

    Thanks for the insightful replies guys!

    The main point of contention (should you desire to continue the debate, hehe) is that I maintain that the difference between work and play is “artificial” and purely mental. The difference is simply that a company specifies a certain environment as “play” and thus (usually) prohibit you from owning what you create within the environment. I believe trying to separate incidental and intended effects is a bit of a fallacy – effort and resources equals work no matter what is really intended. Think about art – where do you draw the line between “intended as work” and “intended as play” there? And yet, art in all forms is at the core of the copyright debate. If you create a work of art in a legit copy of 3D studio, you’re the owner (it is considered “work”). If you create the same in a pirated copy, it can only be considered “play”. It’s all in the implicit/explicit agreements (EULAs etc).

    So basically… Like Swift Voyager said, it’s all about the agreements. And superior legislative bodies have the powers to render certain agreements void (you can’t sell yourself to slavery in most countries, even if you try). So all it takes is a little change in perspective, and you could own your MMO characters. I guess I’m just suggesting there’s nothing inherently absurd about the idea of owning the produce of your time and effort in any area of life, not even MMOs.