Welcome to the Lawbringer, your weekly tour of the intersection between law and Warcraft. I am a third year law student specializing in intellectual property law acting as your crossing guard, trying desperately not to get run over myself.
So last week we engaged in some speculation about how WoW might change if Blizzard permitted gold sales. Personally, I think that the damage to the game economy and culture would be far more damaging than any legal issues that might develop, but it's worth noting that legal issues could easily develop. As for the here and now, certain facts about gold selling remain:
- Gold selling is against the terms of both the North American and European EULA and TOU.
- Gold selling is performed by a number of companies, many of them located outside the Unites States.
- Gold sellers acquire their gold through obnoxious farming behaviors and account hacking.
- Gold sellers exist because of gold buyers.
The basic idea is simple: if you induce someone to break a contract with someone else, you are liable for any damages inflicted on that someone else. (Unless you're breaking someone up from their fiance -- the dumped guy or girl can't sue you for the wedding deposits. Some states do allow the divorced husband or wife to sue the cheating lover for the closely related tort of "alienation of affection," so avoid falling in love with someone else's spouse in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, or Utah.)
For a basic example, let's pretend I hire a neighborhood kid to mow my yard all summer. In mid July, a lawn care company convinces me to go with them. In this scenario, the kid could sue the company for inducing me to break our contract.
To establish the tort or "thing you sue someone over" of interference in contract, you have to prove four things. We'll use MDY v. Blizzard, aka "the Glider case," to demonstrate this process. First, Blizzard had to prove that a valid contractual relationship existed between its customers and itself. Guess what guys, players have a valid contracts with Blizzard! Next, they had to prove that MDY knew about players' contracts with Blizzard. Considering that a contract is necessary to play, proving that knowing someone who played also meant knowing the player had a contract with Blizzard was pretty easy. Third, Blizzard had to prove that MDY intentionally and improperly interfered, causing a breach of contract. Again, the Glider guys knew that using the program would cause a breach of the contract, yet offered their product to players who used it to breach their contracts anyway. Finally, Blizzard had to prove it was harmed by it. Blizzard gave testimony that they spent $1 billion in combating bots and gold farmers in 2007.
[Edit: It has come to my attention that I occasionally can't read my own sources. That should read $1 million.]
"Aha!" You may be thinking. "Blizzard can just sue these pesky gold farmers for tortious interference in contract!" Elements one, two, and four are certainly there, but we have to look at element three. Does selling gold induce players to breach their contracts? EULA and TOU time.
2. Additional License Limitations.
... You agree that you will not, under any circumstances:
C. exploit the Game or any of its parts, including without limitation the Game Client, for any commercial purpose, including without limitation ... (b) for gathering in-game currency, items or resources for sale outside the Game;
Some of you of a more lawyerly (read devious) bent might notice something -- selling is clearly prohibited. Buying is not. This omission is especially obvious when compared to the European TOU: [emphasis mine]11. Ownership/Selling of the Account or Virtual Items.
... Blizzard does not recognize any purported transfers of virtual property executed outside of the Game, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Game. Accordingly, you may not sell in-game items or currency for "real" money, or exchange those items or currency for value outside of the Game.
Now, I don't know why a prohibition against buying gold was left out of the North American EULA and TOU. Remember that Blizzard can ban your account at any time for any or no reason, so it's not like they need that provision to ban gold and account buyers. However, given that the provision was included in the European license, the absence of a gold buying prohibition in the North American license strongly suggests the omission was deliberate. If so, then Blizzard made a conscious decision that buying gold is not a breach of the contract between Blizzard and the North American gold buyer. If it's not a breach, Blizzard cannot sue any gold companies for interference in contract. (Obviously, this can be fixed at any time by changing the EULA/TOU. Come on, Ghostcrawler, it's got to be easier than a moose!)IX. Selling of Items
....Blizzard Entertainment does not recognize any property claims outside of World of Warcraft or the purported sale, gift or trade in the "real world" of anything related to World of Warcraft. Accordingly, you may not sell or purchase virtual items for "real" money or exchange items outside of World of Warcraft.
So Blizzard is out of luck trying to sue gold sellers under that theory. There is, however, another aspect of tortious interference in contract -- third party beneficiary. Let's go back to our lawn mowing example. I hire the neighborhood kid to mow my yard for the summer. Mid July the lawn care company comes around, but I tell them that I'm sticking with the kid. To convince to me to ditch the kid, the company start throwing sticks in my yard, planting kudzu, blowing dandelion seeds, and generally making mowing my lawn as difficult as possible for the kid. He can sue the company for interfering in a contract with a third person (me) by making his performance more expensive or burdensome.
What about the gold sellers? A third party beneficiary (TPB) claim is somewhat similar to a regular interference in contract claim, except that instead of looking at the contract between Blizzard and gold buying morons, we examine the contract between Blizzard and us contract abiding players. Is there a valid contract between us and Blizzard? Check. Do gold sellers know about it? Check. Do gold sellers make Blizzard's performance of the contract, namely creating a fantastical immersing world more expensive or burdensome? Considering the lengthy waits to talk to a GM, the ever increasing restrictions on how one can transfer gold, the spammers that have to be banned, the hacked accounts that have to be restored, I think it's fair to say gold sellers make running Azeroth more burdensome. Finally, we can show damages -- that $1 billion Blizzard spends every year dealing with these pricks is clearly damages.
Does the idea of players suing gold farmers just seem too bizarre to be true? Well, it has happened -- Hernandez v. IGE. Hernandez was a fellow WoW-er sick of IGE spam, so he did something about it and sued. He launched a class action lawsuit on behalf of all World of Warcraft players against IGE US, which he thought was the operator of IGE.com, a gold selling site. Unfortunately, it turned out that IGE US had quietly sold IGE.com to Affinity Media and had sold the real money transaction business to Atlas Technology Group. Hernandez didn't find out in time to add these companies to the complaint, and so Hernandez settled with IGE US out of court, dropping the lawsuit with prejudice (so he couldn't file another complaint against them) in exchange for IGE US promising to not sell gold for five years, starting Aug 26, 2008. Of course, since IGE US had just sold the RMT business, it's mostly a promise not to do what they weren't going to do anyway.
What's the takeaway from all this? Using a third party beneficiary theory of tortious interference in contract, we as players might be able to win lawsuits against gold selling companies. While monetary damage compensation would be nice, simply forcing slimy companies like IGE and their ilk to stop selling gold would be an awesome victory.
Next week, we'll be shifting gears a bit and examining the one permissible situation in which to share accounts: parent and a minor child.
This column is for your entertainment and is not legal advice. If you have a real legal question, ask a real lawyer. If you have general questions about law or law school, you can email me at firstname.lastname@example.org or tweet me @wowlawbringer. Now if you'll excuse me, I have a pally to level. Hammer of the Righteous!
Filed under: The Lawbringer