Copyright and MMO communities

With CCP's announcement that they intend to licence apps and websites related to their product Eve Online there has been a lot of concern about who will have to pay them $99 a year to continue to operate. Other MMOs may follow of course, this is an industry where everyone watches the competition obsessively.

Let's look at some of the legal background.

1) News is not copyright. If I report here that in Eve Online Goons got blown up by some rivals that's news not a copyright violation.

2) You are allowed under fair dealing to excerpt short portions of a work for criticism or review. You are allowed to do this even if you are commercial. This is why publishers are allowed to publish books of literary or musical criticism. So if you want to talk about Eve's nullsec system you are allowed to do so. Criticism does not have to be balanced fair or objectively right. If I say Eve sucks and everyone who plays it is a massive doodoohead that's possibly defamation but certainly not copyright infringement.

3) You acquire copyright in works you create. This is legally quite fascinating. If you make up an original story set in someone else's IP who has copyright? It's a legal grey area, in other words you wouldn't know until someone goes to court over this. I wrote some derivative fiction recently and was careful to pick something public domain. In the Eve community the contents of people's blogs and software utilities are quite possibly intellectual property both of the creator and of the owner of the game. It's worth noting that MMO companies don't seem to have realised this, WoW for instance has always cheerfully stolen the best ideas of its addon community and co-opted them into the standard game.

4) There's no copyright in ideas. So if WoW took the idea of instant quest text from an addon creator they can't be sued. There can be copyright in method. If Blizzard looked at the lua script for an addon and stole the method of programming for use in WoW that's probably copyright theft. There is a defence if it's the only or the logical way to program it. So for instance if the addon were programmed in a highly idiosyncratic way, perhaps it has spelling mistakes, and Blizzard's software added later also showed the same idiosyncracies and mistakes it's fairly obviously plagiarised. If however the programming language supports one obvious way to program a particular function and an addon maker used it first then Blizzard used it, it's not plagiarism, it's just what anyone using the language would do.

5) Certain things are not normally enforced. If Eve asked for $99 from anyone who has ever mentioned them on the internet it would simply not be practical. Enforcement requires a legal process which is fairly expensive. For Blizzard to cease and desist people they've generally done so when they've been fairly sure the person is making significant income.

6) As far as I'm aware a EULA is not enforceable for actions outside the game. Although I've accepted a EULA when I play Eve I don't think it's binding on me when I'm not playing Eve.

7) Isk isn't money. You don't pay tax on isk income. For CCP to argue that sites that receive isk are commercial they would have to prove that isk is real world money which opens up a world of pain for them (for a start the Icelandic government might take it amiss that someone is operating a private mint). Performing real world services for isk is non-commercial gameplay.

8) The law around addons and apps is very sketchy. Eve for instance could be considered an addon for Windows. You have your basic Windows it's a bit dull, but by installing this software your Windows program is modified into a space game that's marginally less dull. You're still in Windows. Yet Eve doesn't need to pay a licence to Microsoft for permission to operate in Windows. So why should Evemon pay a licence to CCP for permission to operate in Eve? Very little of this has been tested in court.

9) Declaratory judgments in US law are held in the jurisdiction of whoever files the suit first. (I don't know how they work in Icelandic law). In other words if CCP sends a US citizen a Cease & Desist and he decides to fight it he can file a case in his locality and they will have to find a US legal firm to represent them and fight it near where he lives. The US also suffers from the peculiar practice of each side paying its own costs so even if they won they may have incurred more expense winning than they are able to reclaim from the defendant. (In most of the world loser pays both costs). They can outflank that by always filing a case before each c&d letter but in practice that's too expensive. People rarely fight Cease & Desist letters. It is a problem for them and a possible workaround for the players. If I don't fancy fighting a court case against them in the UK where they'd probably win I can ask my guildie who lives in a remote Chinese village to host my opinions on his blog for me. Good luck finding a law firm in Tibet, CCP!

10) Most law falls under one of two types: civil and criminal. Criminal law deals with that which is morally wrong. Civil law which would apply to most of the situations here usually looks only at monetary gain and loss. So if I make an addon that is adjudged a violation of CCP's intellectual property the court would look at how much money I made. If I made something like £2.50 the judge would be really pissed off that he had to spend an afternoon sorting this out and could refuse to award costs to CCP. So they might spend £10,000 to claim £2.50 from me. If I made more but offered a reasonable settlement then the judge would also take a dim view of them forcing a court case when there could have been a settlement. Say I made £250. They sue me. I offer to settle for £150 and they tell me to get stuffed, they want their day in court. The judge would feel they should have accepted, it costs a lot of taxpayer money to run a court service and it's not for egomaniacs to prance about in. So effectively because this is civil law you can generally buy your way out. "Sorry, have some money" isn't acceptable in murder cases any more but it should still be good for commercial copyright infringements.

Patent infringements are even worse from an operational point of view. The alleged infringer can choose the jurisdiction and venue.

Conclusion: This is what I think will happen.

- most likely of all is that CCP will to some extent back down in the face of player outrage.

- if they don't several prominent apps and fansites will simply close well before getting any cease & desist letter. They won't want the hassle and stress of possibly getting sued.

- nothing will ever reach a court. If it does CCP would probably lose unless they tackled the most blatantly commercial of sites. I would have loved to have seen more of the Blizzard cases go to court as I think they would have lost several of them. The two most famous court cases involved absolutely blatant abuse and even then Blizzard are only clear winners in one of them. They won against Scapegaming who were charging for a private WoW server (well duh). They lost the copyright part of their appeal against Glider, a bot program, but were saved by the DCMA (a catchall Act that makes almost everything online illegal). In both cases there is a common sense moral case for the game developer, one was clear piracy, the other cheating. It's much less clear that something like Evemon violates the public good which is an aspect judges consider. You see courts don't really work like games, nor even like TV court dramas. The judge applies his sense and wisdom to the law. You get occasional situations where the judge has to allow an injustice because the law clearly supports the wrong side but that's incredibly rare. So if something did get to court put it somewhere central and get dozens of Eve fans to come and support you. Call them all as witnesses. Can you see why CCP would not want this to occur in front of an eighty year old judge in some random foreign country?

- we will probably see some game advantage addons being aggressively marketed. Eve could really use a Fleet Commander addon. Or a Deadly Boss Mods style fleet pvp addon with WARP OUT NOW! plastered in big letters across the screen at appropriate moments. There are some very rich players in Eve and there's potential for people to spend lots of money. We will see some quite game-breaking addons and have to decide whether to pay for them or whether to just buy new ships after losing to people who use them.

- we will see much fewer addons. People will worry that CCP may ban their accounts. Eve being Eve some players will Give Money to an innocent addon maker then report them for secretly charging for their addons to get them banned (lulz!). It's simply less of a headache to just not contribute.

- if I owned a popular Eve addon what I personally would do would be to continue to make it available (even if I thought I was in the wrong) until I received a cease and desist letter and then immediately take it down (even if I thought I was in the right). I would also keep meticulous records of any revenue received.

- I'm still going to blog about Eve. Even if I write for a site that pays me. So neer!

(Disclaimer: I'm not a lawyer, this is just opinion and if you get into a legal mess after reading this it's not my fault. No course of action is recommended here, text that may seem to indicate such is mere literary hyberbole).