In Search of the Value of Online Electronic Personae:Commercial MMORPGs and the Terms of Participation in Virtual Communities

 

Nicholas J. Gervassis
Doctoral Candidate, Faculty of Law, University of Edinburgh
antilexikon@hotmail.com

 

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 Online Roleplaying Games (MMORPGs).

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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).< http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_3/gervassis/>

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 Ultima Online 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.

Introducing Game Pretence Into Real-World Contractual Statements

An example might be helpful to illustrate the topic developed under this header: In early 2000, Sony Online Entertainment (SOE) proceeded in conjunction with eBay into banning [24] from the leading auctioning website the trading of characters and game goods of their best selling game EverQuest .[25] SOE updated accordingly their EULA standard:

'We and our suppliers shall retain all rights, title and interest, including, without limitation, ownership of all intellectual property rights relating to or residing in the CD-ROM, the software and the game, all copies thereof, and all game character data in connection therewith. You acknowledge and agree that you have not and will not acquire or obtain any intellectual property or other rights, of any kind in or to the CD-ROM the software or the game, including, without limitation, in any character(s), item(s), coin(s) or other material or property, and that all such property, material and items are exclusively owned by us.'[26]

This passage exemplifies the problem that ToS face and only unconvincingly resolve: On the one hand, there is tangible real world behaviour, people and physical objects necessary to play the games. On the other hand, there are 'game pretence objects' like game coins and data. In failing to distinguish between the two, ToS risks becoming either to far (protecting something incapable of legal recognition), or too narrow (not preventing the 'sale' of 'game coins' in auctions).

Apparently, when the EULA mentions 'coins' it implies 'computer code data generating in-game representation of coins', if anything else. However, in this specific phrasing exhaustive legal jargon is blended with actual in-game pretence. Under these circumstances the agreement’s functional real-world identity as a binding contract becomes partly nebulous. It would be fair to suggest that in view of the services’ unique nature and the implied intention of parties, the slightly inappropriate arrangement of words and expressions should be 'forgiven' if ever disputed in court and in favour of the offeror. Interestingly, though, companies with explicit interest in drawing clear lines between game and reality [27] expose the virtual independence of game worlds to directed interpretations. A hypothetical scrutiny on textual loopholes carries the potential for reversing the desired isolating effect of EULAs as incoherent and as factually inviting real-world regulation to read into the rules of game conduct. 

Claims Combining Property and Intellectual Property

A parallel and commonly observed feeble wording marks out the second of the underlined points. Here, EULA’s attempts to regulate self-evidently generated practices of acquisition and distribution between players lead to notional paradoxes, at least from a purely linguistic legal perspective. Therefore, Mythic in the DAoC EULA emphasises that:

'(i)n addition to violating the EUALA and the rules, selling and buying of individual characters, character attributes, items, objects and/or currency constitute an unauthorized modification of the data comprising the accounts involved in the transaction, an unauthorized modification of proprietary game content, an unauthorized use of the system, and violates Mythic’s intellectual property rights.'

The challenge is set upon translating virtual worlds into the earthly disposition of laws. Traditionally exercised property rights over game items and accounts are presumably conflated with intellectual property claims, while game material, like avatars, is alternately acknowledged as either sets of electronic data found on the access server or owned ideas that have been transformed into computer code.

It should be noted that amongst the applied EULA frameworks of MMORPGs that had pre-existed the introduction of off-site trading practices and were later amended, the above extract shows comparative consistency. In general, game companies seem hesitant to pick up a decisive position on classifying of the diversity in 'game content' under either the property or the intellectual property domain. Instead, this question is resolved for the specific circumstances under consideration.[28] This allows ToS to move from one legal area to the other, or indeed as in this quote to combine them both in producing concrete legal qualities with the use of exhaustive descriptions. This definitional instability materialises a teleological approach in expressing the game industry’s logical aspirations to cover every possible content related dispute that might arise.

Plausibly, one might question the purposes behind importing into EULAs a supplementary intellectual property rule next to the all too clear property set-up, as related to game material. In effect, players have answered to the companies’ absolute ownership assertions with counter-challenges claiming moral and personality rights that emerge from their active involvement with developing game characters. Varying from co-authorship [29] in utilising computer code and game interfaces as 'raw material' for fleshing out ideas and reshaping the virtual world to broadened conceptions of identity and personal sphere, their understanding of game content was in practice externalised through overlooking imposed behaviour restrictions and adhering to distribution of items rather than through open debates. Thus was called the accordingly expanded deployment of ToS in search of legal efficiency beyond the premises of traditional property.

Newer EULAs discarded the discussed ambiguities with accurate writing and balanced transition from property to intellectual property, wherever this is deemed as appropriate.[30] However, in its entirety the gaming sector, based exactly on these equivocally mixed rationales, refuses to appoint even a minimum of moral entitlements to users, apart from what is strictly designated for the 'subscribed customer' status.

Expanding Protection Over Off-Game Interaction

Following on from this point, the exhibited contractual policies accreted sharpened legal arguments in literature against the legitimacy of statements that declare indirectly private online sovereigns. As the expansion of property claims reached its climax when intellectual property was utilised to control off-game patterns of players’ behaviour other than selling items. First, a look at the relevant legal background might shed some light on prescribed liberties, which motivated the further shaping of the private initiative’s interference with out-of-game online conducts.

Protection of intellectual property has turned into the most booming legal trend of recent years, providing even for commensurable penalisation. [31] The introduction of the WIPO Treaty back in 1996 initiated a global legislative chain-reaction that gave birth to statutes such as the U.S. Digital Millennium Copyright Act (1998) and the Copyright Directive 2001/29/EC of the European Parliament. [32] These new laws have played a key role in the development of modern industry and economies,[33] and their protected value seemingly has overshadowed other large areas of private and public law.

Game companies, based on the legal priority given to this framework for strengthening the mechanisms of commerce, promoted their interests through multiple references to intellectual property rights. In 2000, a player was banned from EverQuest for posting to an unofficial and non-commercial fan-site a short story, inspired by her in-game developed character.[34] The game company, originally arguing negative impact on the gaming community due to relating disturbing descriptions of violence to the game, commenced later on the matter by referring to the use of intellectual property protection beyond the functional community’s restricted operational boundaries in pursue of their rights to ideas, characters and derivative works.[35]

Although no similar incidents have followed the reported exclusion, EULAs have made steps forward into regulating off-game appearances of fan-fiction and fan-art. The phrasing in the following extracts pictures with blanket terms the online diversity in derivative works and determines various user practices as instances of indisputable breach, even though they are unlikely to infringe commercial interests: [36]'

You may not copy, distribute, rent, lease, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer any information accessible through the system…''Any attempt to engage in any of these prohibited activities, whether successful or not, shall constitute a material breach of the EUALA and will result in sanctions...'[37]

The incentive behind the underlined protected value affirms the online dimensions of the private sector’s general tendency to overrate brand ownership. References to copyrighted material or registered trademarks without prior authorisation are prohibited.

However, the free distribution of commercial symbols, like trademarks or slogans, through the media and towards the masses has constituted an important factor in the development of post-modern culture.[38] Online fan-fiction conveys an intimate creative passion, which is born within this cultural superstructure, is recreating the personalised effect of entertainment and shares it informally with same-minded users. Such activity can be interpreted under the combined scope of human rights to develop one’s personality and participate in 'the cultural life of the community'.[39] Although of frequently debatable quality, this amateur textual or graphic material and the nature of its dissemination pose negligible harm to the credibility of marketed services and brands. Primarily, they bear little relevance – if not at all –with the called in rationales for applying hard-core intellectual property protection. Centred on the three discussed points, the examination of the EULA model leads to a few preliminary conclusions.

First, unstable in-game values can not fully support the legally binding effect of an agreement. Beyond the inner core of the MMORPG service, game pretence constitutes an incomprehensible and flexible to alterations setting; its interference with the contract outset may deprive the latter of its compliance with laws reflecting solely real-world standards. Second, ToS dispute extensively the legal identity of game content by mixing references to property and intellectual property, without providing though for the appropriate references to authorities for ensuring their foundations in law.

Finally, game companies disproportionately put forward intellectual property rights as a sufficient justification basis for regulating further involvement of registered players with wider Internet communities. These presumptions offer ground to attack the compatibility of EULAs of this type with general legal requirements for contracts and also to dispute their validity under the already discussed unfairness doctrine. Therefore, as the present analysis takes a turning to previously mentioned topics, the case study will focus on the EP concept while giving answers to the posed questions regarding functional limitations of intellectual conduct on the Internet.

3. Questions Revisited: Assessing Private Authority

3.1 On Hosts Imposing Full Restrictions at Their Own Discretion Against Players’ Moral Rights

Termination of game accounts as a measure against breach of the EULA externalises the hosts’ ultimate entitlement that derives from both the premises of property law and the principles of contractual freedom. However, from what has been discussed so far, game companies outline very broadly their margins for deciding against their customers.

The apparent status of 'independent customer service states' that virtual worlds attain to, elevates the exclusively commercial dimensions of private law, while overlooking all other human aspects, which have been intentionally included in the same context as balancing guarantees between economic prosperity and just social development. Either through counterpoising obscurely described claims against established individual freedoms or through enabling companies to monitor the players’ personal sphere for evaluating relevant off-game demeanours and conditioning thereupon access, EULAs presumably suggest the one-sided manipulation of contract law.

However the assumed contractual inequalities and extensive paternalism EULAs may demonstrate, players essentially are not compelled to prolong their participation in specific MMORPGs. Entrance, in the end, involves free choice; or does it? Despite the increasing numbers of new virtual worlds, behind the illusionary predicaments of free market competition naturally developed monopolies have emerged. A few entertainment giants guarantee hundreds of thousands of co-participants and frequent content improvements; thus unrivalled, they concentrate consumers’ preference. On the other hand, players with established reputations, social circles, and virtual 'personal belongings' would more than reluctantly abstain from identified game settings. Regarding gaming as a leading recreational trend across electronically educated populations, exit and not-entrance are, therefore, not always optional.

An additional argument opposes the appreciation of contractual freedom as sufficient for justifying full restrictive effects on user activity. Game worlds are property that acquires a uniquely assessed public character by providing specialised online services. They belong to a special category of private spaces that, directed towards and utilised by the community, are eventually deemed 'common callings'. Regardless of self-isolating ToS, the public character of these environments invokes the society’s active interest in disapproving through legal means of any exclusion or refusal to access the game if this is justified by irrelevant group-based characteristics and arbitrary assumptions. [40] When game companies suggest exit as an alternative to their unconditional full control over game worlds, or when resorting to termination of accounts in response to what they equivocally interpret as instances of EULA breach, they overlook the extend to which the disposition of the game as property constitutes in rem restrictions on their own powers.[41]

Hence, the game companies’ freedom as practised in overextending entitlements through contractual terms faces certain limits, found in the capacity to overturn superior law and also in de jure demands for achieving balance between contravening rights. Although property and contractual freedom are indeed protected within constitutional and international conventional frameworks,[42] user participation in the wider online setting involves a great deal of actively exercised human rights, like rights to associate and assemble, freedom to impart and access information, freedom of expression etc.

However, dealing realistically with the prospect of formulating the discussed limits in respect of sufficiently contestable in-game generated moral rights requires proof of the predefined user protection, which surrounds contract formation, as continuing within the confines of virtual worlds. The challenge is decided upon the adopted game identities of users; the individual’s 'material' transfiguration into the digitised body does not identify with change to the source intellect.

Therefore, when, for example, a person joins a private club, she commits to internal regulations and voluntarily renounces certain personal liberties; however, there is a barrier set against these restrictions, conveying jus cogens norms which may not be overstepped by any contractual claim. Similar to club identity, personalised game characters allow a small number of users’ rights to transpire in the game world as reflecting a minimum of the legally protected and unchangeable intellect. As a result, hosts are obliged, despite their rightfully acquired ownership power over game content, to respect certain aspects of game character freedom as solidly attached to the real-world person. Hence, criteria perceived according to game character activity for terminating game accounts are substantially constrained in view of considerable infringements against basic human liberties, independently of the latter’s civil, political, cultural or socially determined in law nature.

3.2 On the Restricting Counter-Effect of Law Against Legitimately Formulated Private

The above analysis also answers implicitly the second question. Including previously stretched out concerns towards unilaterally appointed liabilities in EULAs, ToS which are contrary to public policy laws may be declared simply void or ineffective as unfair.[43] For the benefit of the private initiative and of commerce in general, though, any remaining clauses should be accepted as valid. 

Similarly, the potential for suggesting proprietary rights against conducted involvement with the online intellectual superstructure is viewed with rational scepticism. Explicit threats of imminent exclusion from the game for ambiguous, subjectively formulated reasons regarding off-game behaviour, extend unfairly the contract’s sphere of effect beyond its pursued objectives. Unless found reasonable, ToS of this type promote plainly unfairness and are thus ineffective.

The issues surrounding auctions of virtual property have raised a plethora of arguments, focusing on similarly exhibited policies of banning accounts as a countermeasure against off-game transactions. However, the endangered value as put forward from the game companies’ perspective seems to be more relevant to the essence of inner MMORPG activity,[44] and therefore lies within the EULAs’ pragmatically designated goals. Conceding to appointing users with absolute property rights over game material would radically deprive private hosts of their basic entitlements to data ownership. Therefore (giving though credit to voices disputing vigorously in literature the efficiency of as such imposed exclusions) in this case application of the unfairness doctrine lacks of comparative appropriateness.[45]

Gamers’ claims over game assets, however, appeal to an alternative legal reasoning, seeking protection opposite to limits of liability that EULAs confer. In late 2003, a Chinese court ruled that a game owner should restore a player’s lost virtual property (game weapons), finding the Arctic Ice company  'liable because of loopholes in the server programmes that made it easy for hackers to break in'.[46] The court diagnosed 'player controlled game resources as private virtual property', [47] discovering into the EULA provisions limited user entitlements to both utilisation of game content and unhindered participation, which the game company couldn’t safeguard against third parties. Thus, instead of giving official consent to unilaterally exploited tools for creating contractual inequalities, the first case in the world to address game assets underlined the 'click-wrap' licence’s qualification as a guarantee for expediting fair commerce.State regulation might intervene ex officio with game worlds and limit various of the game companies’ self-determined powers, without being required to adjudicate on the validity of either disputed EULAs or ToS.  The examples in the following paragraphs picture hypothetically made legislative adjustments in view of protecting general public policies. Whether the specific incident of legally established intrusion should reach beyond the game’s exterior contractual set-up into its playing core is a matter that has to be assessed contextually, under the running circumstances and the appreciated capacities of states to extent their authority in such manner.
Therefore, the market status of MMORPGs as commercially offered services or products suggests evaluation of consumer standards in setting responsibilities upon manufacturers and retailers, which might be enforced by law [48] and reconfigure the deployment of liabilities.

Tax law could reconstruct the isolated game reality by formulating claim on content related activities. On-line auctions of game items might provide users with alternative sources of income.[49] States, whose citizens are massively involved into selling game properties,[50] might seek out lost national revenues, despite the apparent difficulties in enforcing efficient monitoring systems or in establishing jurisdictional control, as the parallel case of online gambling has already demonstrated. Interestingly, ratified taxability of profit made from game acquisitions would imply indirect recognition of players’ proprietary rights over tradable virtual qualities and undermine related host absolute rights.[51]

Finally, a different possibility is to conceptualise MMORPGs strictly under their function as games. Even though sports have acquired partial independence through privatisation, loose state control mechanisms have been set up in domestic legislation, assessing the factual significant intersection of gaming events with societies and politics.[52] Varying from providing assistance in organising events to actual –though mild- regulatory interference to ascertain fair play, similar measures could find their way to the MMORPG 'reality' through the states’ jurisdictional authority over game companies registered with their domestic company records.

3.3 On the Fairness of Functionally Assessed Confines Against Intellectual Online Interaction

The verdict on third of the identified problems is in the form of some general conclusive remarks, reaching across the separate parts of this paper. In its smaller - though more concretely demonstrated- scale the MMORPG example portrays sharply the wider issue of intersecting functional and intellectual communities. To analyse terms and conditions in the EULA models as underlying the game companies’ grip on virtual material and online relationships, projects general ISP attitudes towards the utilisation of disseminated services by the community of users. Respectively, EP freedoms are revealed in game characters and restrictions over off-game conduct.

The importance of persistent virtual environments is gradually growing. In these artificial worlds users define their EP as straightforward reflections of themselves. Online identities represent more than names on screen or pre-set interface operations. They reflect individual user consciousness and how persons understand their intellect becoming integrated with the gathering of infinite communicants and information. Through their EP users reinstate in digital terms their existence and, plausibly, pursue its further development. However, the available means towards fulfilling these goals are conditionally provided and owned by hosts.

Privately imposed restrictions on function and communications provoke user counter-action in search of self-determination; or, in reverse, attempts to establish partial EP independence end up against counter-measures. Eventually, principles of social involvement and activity collide with the almost absolute control that private hosts maintain on the Internet. The extent to which ISPs may exert control over users has been a hot topic since the AOL case.[53] Berman, cited by Lastowka and Hunter, argues heavily that there are inherent community values, which precede the enforced will of ISPs in private spaces.[54]

As the economical significance of intellectual property rights grows in modern commerce, their adequate protection has become the requested standard in the writing of ToS. Basic guarantees towards respect of public values however have been ignored. As contractual agreements spread uncontrolled across the Internet, bringing together participants from different jurisdictions, modern legal trends, as Brownsword observes, adhere to regulating 'the bargaining procedure instead of the bargain per se '.[55]

Functional communities may explicitly demand abstinence from particular activities, conditioning access to their virtual premises according to their off-site communications standards. Wherever a functional community renounces or restricts fundamental freedoms outside its confines, especially when it performs as an access point, it is due to its already discussed public character and therefore within the public’s interest to inspect whether disposition of terms and thereafter exclusion exhibit high-handedly abuse of its online role.

4. Conclusion

The call for revisiting the needs and priorities of current online structure might sound as a morally motivated deontology. However, the need to realise that online participants are not just market percentages or interacting monetary opportunities is imminent and pressing. Sooner than expected, the exhibited ISP standards and interests may be brought into question and exterior interference might be placed upon the operation of private spaces in many different forms. In such a case, state action could be enforced against both the space owners’ and users’ interests, in manners more authoritative and harmful than commercial libertarians in the private sector have so far surmised.

Notes and References


[1] Ultima Online main page at http://www.uo.com/.  Note that functional groups do not necessarily reflect an absolute closed networking model, since the relevant software might enable access to distant external platforms e.g. via e-mail communications.