PAX East 2011: Law In Games panel hits home for WoW
by Mathew McCurley 
Mar 15th 2011 at 8:00PM
EULA discusses are always hot, considering how important the license is and whether or not a stronger EULA benefits players or just the companies that produce and publish games. The lawyers on the panel, Greg Boyd, Ross Dannenberg, and Seth Krauss, Dan Rosenthal and Tom Buscaglia, all believe that a strong EULA is necessary due to the nature of protections that video games require. The panelists tried to drive home the point that the majority of game players and buyers never really interact or are effected by EULA provisions, which is usually the case.
I've talked about WoW's EULA and Blizzard's own push for a stronger EULA with MDY Glider v. Blizzard. The big thing to take away from the EULA discussion for World of Warcraft is that the EULA's enforceability is not always based on what the provisions say but the company's ability to enforce those agreed-upon provisions. Whether or not a stronger EULA is good for the playerbase or not isn't so much the question when the issue is stopping the misuse of the game world and, essentially, cheating.
One audience member asked a question about one day blending tort law into offenses that happen online, using the Eve Online Titan ship debacle as an example. Eve Online has a currency system that allows for money to move in and out of the game world, and after one very famous Titan-class ship was sabotaged and destroyed, a lot of people lost a lot of time, effort, and money that could potentially be exchanged for real dollars.
The biggest problem with tort law being applicable to online worlds, the panelists commented, is that some kind of harm must be proven against the plaintiff, which is somewhat of a more difficult proposition when you're discussing spaceships and armor on an orc. Combined with the fact that players enter a world where these types of actions are essentially fair play, it is somewhat hard to paint that picture. Nonetheless, one day we will see it happen. It's just a matter of when.
Another audience member wanted to know whether the ESRB was doing a good job as a ratings board to keep video games properly categorized to keep mature games out of children's hands. The panelists thought the ESRB was doing a great job a majority of the time but occasionally will make a mistake. As for the alternative to self-regulation, no one in the industry really wants the government saying how it should be.
World of Warcraft is in a unique position with the ESRB, and the panelists indeed copped to the fact that the online nature of MMOs and other online-centric games have a bit of a loophole when it comes to ratings. The disclaimer, even present in WoW, is that the rating and content may change based on online play. Games like WoW are judged and rated based on their content in the box, not what people could potentially say or do with their avatars online, free from content restrictions.
With the Supreme Court currently looking at Schwarzenegger v. EMA, video games are hot in legal circles right now. PAX East was very lucky to have these great minds available to discuss some of these issues. It's safe to say that video games are in safe hands -- it's always a treat to see these types of minds as gamers first.
Reader Comments (Page 1 of 2)
jealouspirate Mar 15th 2011 8:35PM
I am nothing but a rank amateur at law, but aren`t there a lot of legal issues about the enforcibility of EULAs? It was my understanding that they`re not necessarily legally binding, depending on where you`re from or what it contains.
The stuff they have in EULAs for games is just so ridiculous that I can`t imagine any judge would uphold it. Publishers are trying to treat games as a service now instead of a product, but then go ahead and say that the service may or may not exist and can be terminated at any time for any reason without any compensation. Aren`t service agreements there to establish rules for BOTH parties? These agreements are so lopsided it boggles my mind.
jealouspirate Mar 15th 2011 8:38PM
And of course, people who want to pirate games or do stuff that is ''against the rules'' will continue to find ways as they always have and the paying customer is treated like crap.
Sky Mar 15th 2011 10:06PM
Whether or not the EULA is binding or not depends on your location. In the province of Ontario, as soon as you click on 'I accept' you are legally bound by the EULA.
Xsinthis Mar 16th 2011 12:36AM
@Sky
Really? Huh good to know, I thought in Ontario we would be able to squeeze through all kinds of loopholes from our american friends :P
Cyrus Mar 16th 2011 9:48AM
In general I think you're right, EULAs are sort of like after-the-fact contracts and so they are unenforceable, or at least it looks to me like they should be. However, MMORPGs, like, for example, the game we all play here, are an exception to that. The game box and the copy of the EULA you get in it is just the first of many steps with World of Warcraft. After you open the box and install the game, then you have to recertify that you agree with the EULA and then you have to log on and then you have to pay a monthly subscription fee. Not only that, they make you "read" and "sign off" on the EULA every time they release a patch or expansion.
The point is, it's easy to make the argument that you should be able to ignore the EULA of a game played entirely on your own computer, because you didn't have a chance to read the contract before you "signed" it. But if you installed WoW and didn't want to agree to the EULA, why did you pay the subscription fee? By the time you get a character to the maximum level worth arguing about and allegedly violating the EULA with, you've had plenty of chances to say "Hey, no, I don't like what I'm being asked to commit to here." If you didn't, that kinda sorta DOES mean you've agreed to it.
Hollow Leviathan Mar 15th 2011 8:38PM
The ESRB and MPAA ratings systems are both wreathed in mystery, money, and nonstandardization. Hot Coffee and Oblivion user mods earns an M? Orgazmo earns an NC-17 for little more than what was shown in Titanic?
They need overhaul.
...at least we're not under the auspices of the Australian game ratings board.
Eddy Mar 15th 2011 9:10PM
Ugh, you're right there. I'm so bothered with the way that a little sex will often push a movie into NC-17 territory whereas a huge amount of graphic violence is usually an R. I'm bothered by the implication that it's more socially acceptable to maim human bodies than to embrace them.
This Film Is Not Yet Rated is a great look at the problems with the MPAA, I'd love to see a similar piece done for the ESRB, where I imagine the problem is even worse.
Leliana Mar 15th 2011 9:27PM
"...at least we're not under the auspices of the Australian game ratings board."
Don't remind me...
*looks over at Left 4 Dead 2* *cries*
Amaxe Mar 15th 2011 9:39PM
It isn't only sex however.
RoboCop was originally given an "X" rating (this was pre-NC17). 11 edits had to be made before they could finally get an R rating. There is less than a minute's difference between the cut and uncut version.
http://en.wikipedia.org/wiki/RoboCop#Rating
Some of John Woo's earlier films had to be edited due to violence (Hard Target for example). (And you should look at his Hong Kong works like The Killer and Hard Boiled which are far more violent compared to his US works such as Face/Off)
I think the X for sexuality is more famous, but it would be false to say movies never had to be censored for violence.
Tirrimas Mar 15th 2011 10:42PM
"I'm bothered by the implication that it's more socially acceptable to maim human bodies than to embrace them. "
Quote of the day, right there.
Xsinthis Mar 16th 2011 12:38AM
"I'm bothered by the implication that it's more socially acceptable to maim human bodies than to embrace them. "
I'm totally filing this one away :P
loop_not_defined Mar 16th 2011 10:12AM
Hot Coffee was never a mod, and I'm fairly certain Oblivion models/textures did originally feature some detailed nudity. Oblivion was corrected after-the-fact in a patch, and then required mods to import nude textures.
I wish I could verify the Oblivion thing - I'm at work and don't want to risk Googling "nudity" - but I'm pretty sure that was the case. I spent a fair amount of time on the official modding boards and vaguely remember Bethesda making a statement about the change.
I'm not arguing about censoring sexuality - just clarifying facts. Please don't misinterpret my intent.
loop_not_defined Mar 16th 2011 10:22AM
Also, while I've never seen the Titanic, I'm having a hard time believing it featured no less content than Orgazmo. In a strictly-visible-skin context, perhaps, but the MPAA takes more into account than just how much skin is shown. I can see how that could receive some clarification (the definition of an NC-17 rating is a single paragraph), but I think demanding an overhaul is quite an over-reaction.
Besides, I don't think spelling out "rules" for ratings could ever be useful, considering their purpose is to define material that is abstract by definition. Nevermind the allowance of numerous loopholes and the lengths people would go to game them.
loop_not_defined Mar 16th 2011 10:53AM
I also have to challenge the quote - it misrepresents our society. I do find it unacceptable that our society pushes sex (the very mechanic that ensures our existance) farther out than violence and destruction. However, the repeated quote regards:
-Maiming, a single act of which will instantly place a title in R-territory.
-Embracing, which wouldn't push a title outside of G even if the entire movie was nothing *but* embracing.
Hollow Leviathan Mar 16th 2011 5:37PM
You seem very intent on misinterpreting. What needs overhaul is the cloak and daggers manner in which the ratings are given, not the ratings themselves. There are no rules for how movies arrive at these ratings, only how the board of 45-60 year olds feel about these movies. That process should be transparent, knowable, logical, instead of movie/game studios self-censoring because they're afraid of the ratings, and don't/can't know how to comply to them.
And obviously embrace was not meant to mean cuddle or hug, but the kind of embrace that is rated more harshly than dismemberment. Star Wars Phantom Menace is PG and features a man clearly cut in half after impaling another man through his liver.
And Oblivion did not "feature nudity". The art files were on the disc, but completely inaccessible without a mod. Games often include unused assets that are not used in the final game. You needed a third party mod to see that skin, which should not be covered by the ratings board.
loop_not_defined Mar 16th 2011 9:01PM
Misinterpret? I clearly addressed why I believe rating decisions ought to be made by a board of people, not strict rules that can be gamed. I didn't misinterpret a single word of what you said.
I know what was meant by "embrace", but embrace is a G-word. What was actually meant was "fucking". If the quote used the word "fucking" instead of "embrace" I don't think it would have gotten as many props as it did. That was my only point.
Finally, Oblivion was sold with nudity contained in the actual product. "Unused assets" that still exist on the final product tend to count towards the rating, as manipulation (even without mods) is frequently possible. You're essentially arguing that the board should make decisions completely ignorant to the reality of video games. The only content that should not be judged is that which is strictly provided by third parties. This content was not.
loop_not_defined Mar 16th 2011 9:14PM
Your argument also ignores the core concept behind a rating system. It's merely to identify the level of mature content so that users will be better informed with their decisions. It doesn't matter if a movie doesn't feature strong four-letter words, and doesn't show skin - if it is a movie about sex and gets a G rating, the rating system has fundamentally failed it's job.
Hollow Leviathan Mar 17th 2011 9:44AM
Absolutely not - the ratings board is not supposed to judge the intent of a game, only the content. PEGI has rated the adult sexy party game We Dare 'PEGI 12', and defended the rating - the game does not contain terribly racy content, and PEGI does not rate what goes on in the minds of the players.
If boards were supposed to rate games based on what people will think about the games, or what people will do to subvert the content in games, unless they strictly prevent players from teabagging corpses &c, everything would be AO.
And there's no real way to circumvent clear rules intelligently enforced by a board, outside of the current way, which is money. Orgazmo, again, was NC-17, but X-Men is PG-13 with a completely nude blue woman on-screen constantly.
Monion Mar 15th 2011 8:42PM
Playing WoW is effected by accepting the EULA. Most gamers aren't affected by the terms in the EULA.
pinteresque Mar 15th 2011 9:29PM
I was at that panel.
The problem with the EULA question was that it missed the mark - nobody ever said EULAs were unnecessary, but the panel got defensive, fast. The point was raised that a EULA isn't any more complicated or intricate than, say, the lease on the questioner's apartment, but the question that should have been asked of the panel and wasn't was if the agreement involved with purchasing a game should be as legally weighty as a lease.
The industry is really of two minds here: either leasing software is a serious legal decision requiring a careful read-through and understanding of the rights of both parties, or it's something that can be safely ignored to make an impulse purchase on, say, the iTunes app store, a dollar a time. Devs want it both ways (impulse buys are good, but so are their rights as developers) but it's sort of impossible - the last time I bought an app from the iTunes mobile store, it made me agree to a EULA 35 pages long as displayed on my iPod screen, a process it makes me go through every time the store software is updated.
And, really, there are 2 other problems here:
1. A contract is an agreement between parties, but if I get the software home, open it, go to install it, hit the EULA, read it and decide I don't agree with the terms, I'm out of luck because it isn't returnable to the retailer opened.
and
2. EULAs really, REALLY need DIFFs - I agree to the WoW EULA every time the game is patched or the EULA is updated, but there's no way of easily knowing what's changed since the last time I agreed.
And, of course, there's the fact that the music on a CD I buy is licensed, too, but I've never had to agree to a EULA before hitting "Play."
My point, I guess, was that the panel was too short, and too loaded towards the industry to answer any tricky questions. As my girlfriend noted earlier tonight, a representative from the EFF on the panel would've been AMAZING.