[MUD-Dev] BlackSnow sues Mythic for online property rights

[Steve {Bloo} Daniels]

Rudy Fink wrote:

> Well constructed EULAs should effectively limit liability.  The
> user is purchasing a service and that service is provided under
> the stated terms.

IMAL Disclaimer: I'm a lawyer but I'm not *your* lawyer.

This case is all about the EULA.  I gave it a look-see.  It's pretty
well-constructed.  If the EULA is determined to be valid, I think it
is fairly clear that Mythic would win a summary judgment motion and
BSI would be SOL.

There are some potentially very strong counter-arguments for Mythic.
It could be argued that BSI has taken a business opportunity of
Mythic's.  BSI's assertion of ME's 'monopoly' don't amount to much.
If there is a monopoly it flows from intellectual property and is a
'natural' monopoly.

> I have felt a legal challenge to this coming for a while.  Users
> invest a huge amount of time and in some cases personality in
> their online characters.  Under most commercial EULAs users have
> no rights to anything related to their avatars.  Regardless of the
> contract they recognized many feel it is their property and/or
> identity.  The loss of 0 - 4000 + hrs of time does not come easily
> for some.
 
> I would be quite surprised if ME looses.  In the long run I would
> expect growing rights for avatars from legal or market forces.

Perhaps in the market forces.  But I think there are too many
difficulties to exand customers's right, even if you wanted to.  The
customer has no property rights.  The customer has only a license.
Intellectual property transactions are fairly rigid things.  There
are even 'magic' words, such as "hereby", which open and shut doors,
faster than the speed of though.  IMHO, mostly because it is easier
for judges to focus on the contract and license aspects than the IP
aspects because the former are *extremely* well understood practices
in the legal field and have an extensive body of jurisprudential
history (if I may be allowed to go pentasyllabic).  Also, there is
probably some fear, in addition to the ever present loathing of,
uncertainty regarding who owns what.

What's the hypothetical worst case?

  Mythic makes a movie based around my character Almanzor (28th
  level scout) that makes Jackson's Hobbit moves a forgotten
  bystander on the clearance video racks.  And I don't get anything.
  I played under the license.  Without the license, I can't play
  and/or create.

Though, I'd still hire a power lawyer and try to get a settlement
out of ME. Or, at least, I'd think about.  [;-)]

Which points to optimal solution for this hypothetical: Don't make
the movie until you the player to sign a separate license and throw
him a bone or two, when you do.  Rule of Thumb: Don't develop any IP
that involves the use of anything from players.

There are probably more troublesome hypotheticals.  What if I write
a story on paper then transmit it through a game's chat system on a
non-restricted channel and the game's EULA is the most restrictive,
i.e., anything you display/publish/create through the game service
immediately becomes the game company's property?

My copyright attached when I wrote the story down.  I
displayed/published it, under the terms of a license, on the game
service.  Would the license satisfy the writing requirement for
transfers of copyright?

  If so, I gave my copyright away.

  If not, I still have the copyright, but . . .

    - have I breached the EULA?

    - has I licensed the work to the game service?

The hypotheticals can get nastier, especially when you add third
parties into the mix.

The golden rule of IP is still the best: Keep it to yourself until
you've got a contract.

-bloo


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