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  1. #61
    Quote Originally Posted by Nevski View Post
    That's correct, and that's the way it works, but that's not analogous to this situation. You need to create a situation in which someone has a right to access Product X while at Company X. In accessing the product, he derives benefit (personal enjoyment) from using the product, then wishes to transfer that right of access to someone else.
    So let's say I pay to go see a movie at a movie theater. And I enjoy it. Then, I buy a ticket for another showing for $8. Would it be legal for me to sell it to someone else for $100 (assuming they are willing to pay), even though the movie theater says "you can't resell)? Kind of like scalping concert tix, or sports events.

    Would that be more analogous? I'm just trying to get things into layman terms I can understand better. Thanks.

  2. #62
    Quote Originally Posted by Nevski View Post
    Granted, I'm just a silly 3rd Year law student. But it seems a lot like a good deal of WoW's "these characters are not your property but ours" shpiel would fall on its face in a majority of states because the EULA is an adhesion contract?
    EULA's have generally done quite well in court, and I wouldn't expect WoW's to founder on this point. There are exceptions, of course, but adhesion isn't the relevant test - you are generally going to have to deal with either "unconscionability" or a consumer's "reasonable expectations."

    I think you'd be hard-pressed to get a court to find either situation over a video game.

  3. #63
    Quote Originally Posted by yjmark View Post
    So let's say I pay to go see a movie at a movie theater. And I enjoy it. Then, I buy a ticket for another showing for $8. Would it be legal for me to sell it to someone else for $100 (assuming they are willing to pay), even though the movie theater says "you can't resell)? Kind of like scalping concert tix, or sports events.

    Would that be more analogous? I'm just trying to get things into layman terms I can understand better. Thanks.
    Closer, but still not right with the scalping factor. The sharpest analogy would be the person trying to sell the ticket at the same price (which in the case of concert/sporting tickets, some places will say that you can't sell them at a higher value but may resell at cost, or maybe they'll say that you can't sell them at more than double the cost, etc.).

  4. #64
    Quote Originally Posted by yjmark View Post
    So let's say I pay to go see a movie at a movie theater. And I enjoy it. Then, I buy a ticket for another showing for $8. Would it be legal for me to sell it to someone else for $100 (assuming they are willing to pay), even though the movie theater says "you can't resell)? Kind of like scalping concert tix, or sports events.

    Would that be more analogous? I'm just trying to get things into layman terms I can understand better. Thanks.
    Unfortunately, most analogies are going to have lots of holes. Re-selling tickets has a whole bunch of weird layers to it, and both individuals and states do a lot of game-playing to set up and get around rules relating to it. So it really wouldn't help your understanding of what Nevski is trying to get at.

    What he's basically asking is whether Blizzard is within its contractual rights to terminate your account if you transfer it. It isn't really about "whether it is legal to re-sell an account."

    Here's about the simplest I can make it: Selling your WoW account isn't "illegal." You don't go to jail or pay a fine or anything. But if Blizzard finds out about it, they will cancel their contract with you (essentially, wiping out your account). Nevski is suggesting this might be illegal activity on the part of Blizzard.

  5. #65
    Perhaps you overlooked the whole "I spent 5 seconds Googling" part of my post. I fully admit I'm not a lawyer, but to have you impugn the decision because it's only the 9th Circuit (which, by the way, has a significant volume more cases than the rest, so it shouldn't be surprising that it's also overturned more) seems a bit bad form.

    I'd really like to see an argument for why my emotional investment in my online character translates into legal rights for someone else's copyrighted product, however. And not just here - if you have an actual case where someone did this, and have an argument for why the clause is unconscionable that goes beyond "Because someone might think it's unconscionable" then I'd like to see it.

    The unconscionable argument seems to fall rather flatly - people buy these things with these licenses all the time, and honestly you're the first person I've seen question whether it's conscionable or not to deny the ability to sell the access to the account that you're licensing. If it were unconscionable, wouldn't there be...you know...people who are upset by it? Who aren't creative law students looking for holes in things?

  6. #66
    Quote Originally Posted by Pogopon View Post
    EULA's have generally done quite well in court, and I wouldn't expect WoW's to founder on this point. There are exceptions, of course, but adhesion isn't the relevant test - you are generally going to have to deal with either "unconscionability" or a consumer's "reasonable expectations."

    I think you'd be hard-pressed to get a court to find either situation over a video game.
    I LOVE YOU SO MUCH FOR KNOWING THE ACTUAL ISSUE: (1) it's not whether the EULA would apply - it would; but (2) whether the clause therein is unconsionable

    I think the contrary. I think it's a solid argument to say, "This account has 3 characters with over 1,224 hours of game play by me, so it is unconscionable for me not to be able to get something back in light of all that time." That distinguishes it from a normal video game, say one with 15-30 hours of play time to "beat" and does not keep going.

    In short, the 51 days of playtime over my 3 main characters distorts the very notion that those three characters are not my own.

  7. #67
    Quote Originally Posted by Nevski View Post
    Closer, but still not right with the scalping factor. The sharpest analogy would be the person trying to sell the ticket at the same price (which in the case of concert/sporting tickets, some places will say that you can't sell them at a higher value but may resell at cost, or maybe they'll say that you can't sell them at more than double the cost, etc.).
    That would still be poor analogy.

    The better one is this scenario: Your friend buys an airline ticket that is (according to the fine print) non-refundable and non-transferable, but then cannot use it. He sells it to you at its face value, and without violating any laws. When you get to the airport, the airline refuses to honor it, because you aren't the original purchaser, citing the non-transferability of the ticket. Do you have a cause of action?

    Hint: No.



    Quote Originally Posted by Nevski View Post
    I think the contrary. I think it's a solid argument to say, "This account has 3 characters with over 1,224 hours of game play by me, so it is unconscionable for me not to be able to get something back in light of all that time." That distinguishes it from a normal video game, say one with 15-30 hours of play time to "beat" and does not keep going. In short, the 51 days of playtime over my 3 main characters distorts the very notion that those three characters are not my own.
    You are, of course, welcome to think and even argue your position. But as a law student, you would do well to step back from your feelings of personal investment or passion for video games.

    Blizzard's legal theory is that you are paying to play their game during a certain period of time. Not unlike a movie ticket entitles you to watch a movie once (and only once) and only at a certain time. Your passion for your characters does not, in their mind, create a transferable property interest any more than your love of Star Wars does. Your argument is particularly weak with regards to transferability, since now all you are really arguing is that you should be able to receive compensation for the time you spent playing the game (since, by transferring your account, it is clear you wish to divest yourself of it).

    I mean, have at it, but I would talk this through with your contracts professor before getting too excited.
    Last edited by Pogopon; 2013-02-21 at 08:37 PM.

  8. #68
    Quote Originally Posted by Blapis View Post
    Their EULA means nothing in my country. WoW account is mine. I bought it and I can do anything I want with it.
    Good luck throwing huge amount of time and money after the lawyers you hire to battle with Blizzard.

  9. #69
    Quote Originally Posted by Dreyo View Post
    I'd really like to see an argument for why my emotional investment in my online character translates into legal rights for someone else's copyrighted product, however. And not just here - if you have an actual case where someone did this, and have an argument for why the clause is unconscionable that goes beyond "Because someone might think it's unconscionable" then I'd like to see it.
    This is the point of my post. Because I'm not aware (and have been unable to find) any. There has been some litigation on it in other MMOs that ultimately settled (e.g. $8,000 equivalent of some Second Life property), so there is not really even a low court's ruling on it to look at. What you say I should "go beyond" is precisely what I'm saying is the theoretical argument I am discussing. "Because someone might think it is unconscionable" is the very thing the court would consider, in context of both (1) the individual--i.e. subjective component; and (2) a reasonable person in the individual's position--i.e. objective component. My OP is basically what you say here in different words. I'm saying "This seems like a sound argument, couldn't this work? I can't find anything on point." The blog that someone linked earlier was very helpful, but only led me to the settled cases.

    Quote Originally Posted by Dreyo View Post
    The unconscionable argument seems to fall rather flatly - people buy these things with these licenses all the time, and honestly you're the first person I've seen question whether it's conscionable or not to deny the ability to sell the access to the account that you're licensing. If it were unconscionable, wouldn't there be...you know...people who are upset by it? Who aren't creative law students looking for holes in things?
    I don't think so. My friend that sold his account just went to one of the many well-established websites to conduct that type of transaction and did it. No questions asked. Why would they ask when they can just do it? Especially when they're trying to sell it, indicating they don't want to ever come back. Why would a person think they need to sue Blizzard and seek injunctive relief before being able to conduct the transaction? More specifically, even being aware of the no-transfer clause, why would they pay the court fees to do this and have to undergo expensive litigation against a big company to maybe get $500? Conducting their transaction without the injunction exposes them to 0 criminal liability and, at worst, they lose an account they don't want.

  10. #70
    Quote Originally Posted by Nevski View Post
    I LOVE YOU SO MUCH FOR KNOWING THE ACTUAL ISSUE: (1) it's not whether the EULA would apply - it would; but (2) whether the clause therein is unconsionable

    I think the contrary. I think it's a solid argument to say, "This account has 3 characters with over 1,224 hours of game play by me, so it is unconscionable for me not to be able to get something back in light of all that time." That distinguishes it from a normal video game, say one with 15-30 hours of play time to "beat" and does not keep going.

    In short, the 51 days of playtime over my 3 main characters distorts the very notion that those three characters are not my own.
    You got something back in light of all that time. You got 1,224 hours of entertainment.

  11. #71
    Quote Originally Posted by Nevski View Post
    That's correct, and that's the way it works, but that's not analogous to this situation. You need to create a situation in which someone has a right to access Product X while at Company X. In accessing the product, he derives benefit (personal enjoyment) from using the product, then wishes to transfer that right of access to someone else.

    ---------- Post added 2013-02-21 at 12:38 PM ----------



    I left out a very important suffix: voidable.

    In a voidable adhesion contract (e.g. EULA), the party without bargaining parity may void the contract at their discretion.
    So how does this help? Either you take the contract as is and abide by the terms or void the contract and lose all rights?

  12. #72
    Quote Originally Posted by Pogopon View Post
    I mean, have at it, but I would talk this through with your contracts professor before getting too excited.
    I'm not getting excited. It's a discussion. I don't want to talk to my contracts professor. I want to talk to other lawyerly gamers about it. (Which is why I should've found a better outlet for the discussion than MMO-C forums )

  13. #73
    Quote Originally Posted by Nevski View Post
    I think it's a solid argument to say, "This account has 3 characters with over 1,224 hours of game play by me, so it is unconscionable for me not to be able to get something back in light of all that time."
    How can you claim that you didn't get anything back? You got over 1,224 hours of entertainment. That is way more than you get from most standard games. So, if anything, wouldn't it be claimed that Blizz has actually given you a lot more than others?

  14. #74
    It's not and adhesion contract... if YOU want to play the game, they let you play the game thanks to the EULA... you can stop playing the game the moment you decide to do so...

  15. #75
    Quote Originally Posted by ct67 View Post
    So how does this help? Either you take the contract as is and abide by the terms or void the contract and lose all rights?
    Voidable means one party (not necessarily either) can escape the contract, so their decision to deem it void removes all rights/duties owed between the parties

    If they do not escape, however, it is a procedural acknowledgement that the contract exists between them. That's a necessary precursor to challenging any terms within the contract.

    So it only would come up in the context of a player not doing something that they had to do in their contract with Blizzard. Because it's a pay-then-play (rather than play-then-pay) system, I guess it doesn't really help address the issue at all. It would only arise if the player were to not fulfill some promise owed to Blizzard, then Blizzard tried to make them fulfill their promise, then the player argued that they didn't have to anyway because their non-performance was their manifestation of deeming the contract void.

  16. #76
    Quote Originally Posted by Nevski View Post
    This is the point of my post.
    I recommend you do some reading on property law rights in virtual worlds/virtual goods. Start with Castronova's writings and subsequent law review articles on this topic. This line of thinking has been well-explored.

  17. #77
    Quote Originally Posted by yjmark View Post
    How can you claim that you didn't get anything back? You got over 1,224 hours of entertainment. That is way more than you get from most standard games. So, if anything, wouldn't it be claimed that Blizz has actually given you a lot more than others?
    That is specifically the argument Blizzard would make! And it's a good one! But it would be considered alongside a player's feelings that the character's are "theirs." I mean, look at basic dialogue between people. They say "My warrior" or "My shaman" or "My deathknight" and so on. Did you just "get access to" a new 1-hand wep, or do you say "I just won a 1-hand"? The feelings we associate with our characters belies the very nature of Blizzard's full retention of the property. That is what could potentially make the clause unconscionable and therefore unenforceable.

    ---------- Post added 2013-02-21 at 03:07 PM ----------

    Quote Originally Posted by Pogopon View Post
    I recommend you do some reading on property law rights in virtual worlds/virtual goods. Start with Castronova's writings and subsequent law review articles on this topic. This line of thinking has been well-explored.
    Thank you for the direction! <3 this gives me something to do later today =)

  18. #78
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    Quote Originally Posted by Nevski View Post
    That is specifically the argument Blizzard would make! And it's a good one! But it would be considered alongside a player's feelings that the character's are "theirs." I mean, look at basic dialogue between people. They say "My warrior" or "My shaman" or "My deathknight" and so on. Did you just "get access to" a new 1-hand wep, or do you say "I just won a 1-hand"? The feelings we associate with our characters belies the very nature of Blizzard's full retention of the property. That is what could potentially make the clause unconscionable and therefore unenforceable.

    So Blizzard could mail you a zip file with all your character data, clean out your account, and then you can resell the game license, and everything would be good?

  19. #79
    Quote Originally Posted by Nevski View Post
    It would only arise if the player were to not fulfill some promise owed to Blizzard, then Blizzard tried to make them fulfill their promise, then the player argued that they didn't have to anyway because their non-performance was their manifestation of deeming the contract void.
    Re-read the Blizzard EULA and re-think your point.

    The sequence goes like this:

    1. Blizzard grants you a non-transferable license to play their game for 30 days in exchange for $15;
    2. You attempt to transfer your rights under the license to a third party, breaking its terms;
    3. Blizzard revokes their license.

    You would need to assert that either (a) Blizzard does not have the right to revoke the license because the term you breached is non-enforceable (a losing argument); or (b) that Blizzard must compensate you for the value of a thing you created during the terms of your license (also a losing argument, but a more interesting one).

    ---------- Post added 2013-02-21 at 04:15 PM ----------

    Quote Originally Posted by DieFichte View Post
    So Blizzard could mail you a zip file with all your character data, clean out your account, and then you can resell the game license, and everything would be good?
    Blizzard's position would be that you are not entitled to any of those things.

    When City of Heroes went offline in November, players got nothing - because there was nothing to get. Their imaginary superheros had no existence outside of the servers that are no longer running. And they had no rights to the underlying source code or hardware that made them functional.

    "Your World of Warcraft Character" has no physical existence. It is a string of data running within Blizzard software and on Blizzard hardware. They can't "mail it to you," though they could probably do some amusing things like "send you a string of binary characters that represent the variables composing your character data" that would have absolutely no practical value.

  20. #80
    Quote Originally Posted by Moinaldo View Post
    It's not and adhesion contract... if YOU want to play the game, they let you play the game thanks to the EULA... you can stop playing the game the moment you decide to do so...
    Regurgitating past posts I already addressed. Just because you can decide to not play the game doesn't mean it's not an adhesion contract. An adhesion contract is one in which only one side has bargaining power. An adhesion contract is not per se unenforceable. It merely indicates that one party has all the power so the court will more carefully scrutinize the terms than if both parties had equal bargaining power.

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