Plaintiff's Attorney in Player-IGE Lawsuit Speaks to The Escapist

[Joe]

Plaintiff's Attorney in Player-IGE Lawsuit Speaks to The Escapist

Richard Newsome is the plaintiff's attorney in Hernandez v. IGE [http://www.escapistmagazine.com/news/view/72346-IGE-Sued-By-World-Of-Warcraft-Player], a lawsuit recently filed against the notorious real-money trade company. The Escapist's own Alexander Macris, a Harvard-trained lawyer who's written on virtual reality law, spent some time on the phone yesterday with attorney Newsome discussing the lawsuit.

The Escapist: What's your background, Richard?

Richard Newsome: I was a federal prosecutor and then worked for a civil litigation law firm. I defended DuPont, Ford Motor Company and other large corporations. Eventually I decided my heart was on the other side, and that I wanted to represent consumers. I've been doing that ever since. My firm represents consumers in complex litigation on a contingency fee basis. We've done product liability, class action, multi-district litigation. RMT [real-money trade] seemed like an area that none of the consumer lawyers had waded into. It seemed like a worthy cause and we decided to jump in and see if we could help out.

TE: So what is the actual lawsuit - in layman's terms?

RN: The actual lawsuit is Hernandez v. IGE. We filed it in Miami, where IGE has offices. In layman's terms, the core of the complaint is a consumer class action for unfair trade practices. Guys like Tony [Hernandez, the plaintiff] have paid their $15 for some entertainment, and IGE is polluting that entertainment. It's kind of like, if someone pays for a ticket to go see a movie, and if someone else comes in behind them and kicks their seat, you can get them to stop doing that. We're just trying to get IGE to stop kicking the seats. This is not unlike other consumer complaints where someone has paid for a service, and someone else is interfering with it. It's really very simple.

TE: What do you hope to achieve with this lawsuit?

RN: We want to make IGE stop kicking the seat - stop polluting the service that's been paid for. We're going to get an injunction. We pleaded for money damages, but the No. 1 goal that we really want is to make them stop. And that's obviously going to be an intense fight.

TE: No doubt about it. What makes you think this will work?

RN: Oftentimes, to me, it seems like the best cases in the court are when an injustice is being done - when somebody isn't playing by the rules. And that's what's happening here. There are clear provisions in the terms of use that everybody agrees to, and IGE is just violating those rules.

TE: So then why haven't the industry firms or other consumer law firms done this?
RN: That's a very good question. I think the consumer law firms are simply unaware of the problem. And I think, with respect to the industry, there are pros and cons of filing a lawsuit when your business model could be affected by the outcome, and the uncertainty of that is causing them pause.

TE: That being the case, do you expect the industry to get involved? And if so, as an ally or as an enemy? Or not at all?

RN: I am obviously hopeful that the industry will get involved one way or another as an ally. What I'd like to do is reach out to them to see if we can't get some support, even if it's behind the scenes. But publicly it'd be nice to know that Blizzard was behind us. Clearly their resources are getting gobbled up by this. The time CS has to spend chasing down gold farmers, banning accounts and dealing with angry customers - those are huge resources. And to the extent this action can lessen those problems, we'd like them to support us. Our clients love the game and love Blizzard.

TE: Even if you get no help from Blizzard, do you have the resources to win this?

RN: Yes, we do. The bulk of my practice is handling complex litigation for catastrophically injured people. We handle class actions and complex product liability, and we go to trial. The folks on the other side of us on these cases know this. We don't think twice about putting a million dollars in costs and thousands of hours of attorney time on a contingency fee basis. So if we can't work out some deal to the benefit of players, we are prepared to go to the mat. And even if we lose, they will spend a ton of dough fighting us.

TE: What if they want to settle, pay you off?

RN: Well, if there's a way that we can resolve this case quickly so that players have a way to play in a pollution-free environment, then that's really what we want. If IGE said, "We're going to agree to stay out of WoW," then that'd be great. We're not in this for a settlement that's only about money. This is about them needing to be a good public citizen.

But if they make us go to trial, then we will collect. A consumer case takes money. My client doesn't have the money to pay for this. We're spending our own money and time on this. We'd like to see some of that money recovered, and if they make us go the distance, let's recover the damages.

TE: How can you enforce this against a Hong Kong company?

RN: You follow the money. Everything goes through the pipeline of Paypal and credit card companies. They have to go through legitimate institutions to further their conspiracy. So we can hit them in the pocketbook. We would take our injunction and enforce it against the payment companies so they can't do business. That's a real means to get them where it hurts. If we win, it's Armageddon for them.

And IGE will try to claim they aren't liable, that they are just facilitators. But as a former Federal prosecutor, I've handled this before. We had drug dealers say, "Hey, I never touched the drugs, so you can't touch me!" Although it's usually used by prosecutors in the criminal context, civil conspiracy is a recognized cause of action that lets us get past the shell game. IGE facilitates gold farming, and that's the conspiracy. And we think the evidence will prove to a jury that they're liable for it.

TE: So you feel you have precedent on your side?

RN: There's no other case that's been filed like this with respect to gold farming, but there is a ton of precedent with consumer protection law that has been created to protect consumers from illegal conduct. The law says you have to be fair and follow the rules, and when you don't, and you adversely affect other consumers, you're subject to a law suit being filed against you. It's very straightforward consumer protection law.

All of the lawyers who've approached this have looked at RMT from the jurisprudence of intellectual property. That's not what this is about. This is about a consumer who makes $8 an hour and for whom $15 a month is his whole entertainment budget. It's for guys like him that we're bringing this suit.

TE: What do you think the ramifications of winning this suit would be for the MMOG business overall? Does it introduce concerns over taxes, property ownership, EULAs?

RN: As I said, we are approaching this from a consumer protection standpoint. I don't have an opinion on IP or tax jurisprudence. For me to give a legal opinion on those issues, I'd have to study them. But from a consumer protection standpoint, we think we can demonstrate that if you're paying your subscription fee, you have a right to enjoy that experience unpolluted by people who are breaking the rules. I think that's something everyone can feel good about. I think the players of these games will support us, because this is for them.

Permalink

 

[a2SkinneeJ [deprecated]]

I have little experience with it, but have a question for WoW players.



Do the goldfarmers and IGE prevent WoW from being fun, or prevent the game from running its course as it was intended by the developers at Blizzard?



Just from personal experience in observing my roommate, WoW in itself is more of an addictive, grind-it-out game than it is about being simply fun. If the best, or most fun, in-game features occur with a high-level, well-equipped character, then isn't IGE actually providing a more fun experience for the casual WoW player with disposable income?



Correct me if I'm wrong, or if IGE is ruining your WoW experience.

 

[Landslide]

Gold farmers inhibit fun for some people. People strongly morally opposed to it. People trying to make money off the economy as it stands, in-game. People who've dumped thousands of hours into the game, who are then out shined by people who spend money to get the items they camped for weeks to acquire.

All in all, there's not a significant, palpable negative impact for the average player.

Now, in terms of "Are their actions taking place within the 'intended' gameplay of the game itself?" No, they're not. And while they do certainly affect the economy, it is gradual enough to be relatively transparent.

Your statement could easily be considered valid. I stopped playing WoW, because every level I gained, I still felt just as far from the top as before. I hit 40, and I was still referred to as a newbie, because 60 is the level when you actually get to play the game, as opposed to working it. Having said that, I can see the other side too - as I used to play a game, where I played my way to the top, and players who bought their way to the top, always irritated me.

 

[Russ Pitts]

Just from personal experience in observing my roommate, WoW in itself is more of an addictive, grind-it-out game than it is about being simply fun. If the best, or most fun, in-game features occur with a high-level, well-equipped character, then isn't IGE actually providing a more fun experience for the casual WoW player with disposable income?

That would be personal observation, not experience. The difference is in the level of your understanding. For example, you really don't know why your roommates have fun playing WoW, you're just guessing. Do they enjoy the grind? The social experience? The higher level encounters? Who knows. They may not even be able to put it into words. I don't play either, so I can't even begin to understand. But that doesn't change the central issue here: that IGE is facilitating a mass violation of the ToS.

Should people with more money than time be allowed to spend that money to gain an advantage over those who don't, or shortcut to the fun parts of the game? If that was allowed in the rules, then I'd say "yes." But it isn't. Hence the lawsuit. Whatever you get out of the game - or don't - it's really that simple.

Beyond that, to where the existence of people in the game space who have used money or influence to short cut their way to where most other folks have to work to get, and how that effects the play experiences of the people who can't afford or don't choose to play that way, I can't say. I can understand how they'd feel cheated and put at a disadvantage, but I don't know how much less "fun" their experience is.

Maybe the root of this issue is that since so much of our real world operates that way, offering favors and shortcuts to people who can pay for them, that folks who spend money to escape into a game feel like their play world, their escape world, should maybe cut them some slack on that front. And on that score, I'd have to agree.

 

[a2SkinneeJ [deprecated]]

That would be personal observation, not experience.

Is observation not experiential? I didn't know it wasn't...apparently neither did Merriam-Webster...
EXPERIENCE
Main Entry: ex·pe·ri·ence
Pronunciation: ik-'spir-E-&n(t)s
Function: noun
Etymology: Middle English, from Anglo-French, from Latin experientia act of trying, from experient-, experiens, present participle of experiri to try, from ex- + -periri (akin to periculum attempt) -- more at FEAR
1 a : direct observation of or participation in events as a basis of knowledge b : the fact or state of having been affected by or gained knowledge through direct observation or participation

I'm directly observing my roomate and his mood, actions, and vocalization during his WoW sessions. I know he enjoys the comraderie of WoW because he plays with his brother and sister-in-law who live in another state. He doesn't laugh, he doesn't smile, he doesn't give off an air of happiness. He just spends hours and hours and hours at his PC directing his group. I can only guess that he gets satisfaction in his escape-world leadership post that he lacks in the real world.

And as far as saying they feel cheated, I think that's the wrong word. How were they cheated? IGE does not practice discriminatory sales practices. If you want it, you can buy it. Maybe it's their in-game hubris or sense entitlement that makes them think that, because they put in the man hours, they're better than the IGE-purchased character. Maybe it's because they can't personally afford to pay a service like IGE.

Either way, I think a lawsuit on the basis of IGE "ruining" the playing experience is a waste of our judicial system's time and resources.

 

[Russ Pitts]

Right. My mistake. Your observation equals direct experience, if you wish. I disagree, but it doesn't change the fact that since neitehr you nor I actually play, our opinion of what makes the game fun pales in comparison to that of those who do.

As to IGE, they provide a service that is illegal according to the rules of the game. I'm not going to debate the relative merits of capitalist society. I can see where your opinion would lead you in that debate, so suffice to say, here, again, we disagree.

But it doesn't matter. IGE is breaking the rules, they're getting sued. The courts' time is wasted on any number of things at any given time, but the beauty of our system is that any person, no matter how rich or poor, right or wrong they are, can file a suit. They can't always fight it through, but they can file, and the court decides if its time has been wasted.

 

[Archon]

Given that the lawsuit ultimately speaks to the legality of a multimillion dollar business and the validity of EULAs to control in-game behavior, I simply can't accept that it's a "waste of judicial system's time and resources".

Whether or not the plaintiff class has been harmed is for the courts to determine. Making this determination is why we have courts. Using courts for their intended purpose is hardly a waste of them.

 

[Myan]

Using courts for their intended purpose is hardly a waste of them.

Agreed.

 

[a2SkinneeJ [deprecated]]

Right. My mistake. Your observation equals direct experience, if you wish. I disagree, but it doesn't change the fact that since neitehr you nor I actually play, our opinion of what makes the game fun pales in comparison to that of those who do.

When did I ever qualify my experience as direct? I defined it as personal experience in direct observance of another...never direct experience.

 

[Russ Pitts]

Right. My mistake. Your observation equals direct experience, if you wish. I disagree, but it doesn't change the fact that since neitehr you nor I actually play, our opinion of what makes the game fun pales in comparison to that of those who do.

When did I ever qualify my experience as direct? I defined it as personal experience in direct observance of another...never direct experience.

You're absolutely right. You did not say that. Again, my mistake. I still disagree with you.

 

[Eggs [deprecated]]

My first impression is that there is no legitimacy to the claim that it's "immoral" to sell fake money to people who want it. That's just silly. It's immoral to scam people out of something that they want, but this is called bartering and it's pretty much the staple of civilization. Like it or not.

As far as 'they facilitate breaking rules' well so do the Goons of SA. They coordinate violations of the TOS on a regular basis, and have a grand time doing it. Is the population of Mal'Ganis going to start a class action against lowtax because they like to have fun in their game? I would venture to guess that anyone who's ever played the game for more than 10 minutes has violated the TOS. I know everyone i've ever played with sure has. Is this justification for someone with too much time on their hands to sue me? I should hope not.

The people who complain about the economy fail to realize that the more gold IGE sells, the better business is for EVERYBODY. There's more money in the economy, so crafters can sell their goods for higher prices. The average player can sell their BOE drops for more, and everybody wins.

If you're going to go on a witch hunt because of people collecting gold, then distributing it as they see fit, why not go for the guild masters? They have guild banks. These guild banks distribute money, items, etc. The difference? None at all, really. If you just consider that the guild mates are working at minimum wage for the time they spend raiding. So 20 hours raiding a week, they get X amount of stuff from the guild bank. They obviously aren't all this simple, but it's the basic idea, guildies work for the guild master. IGE customers work for another company. Both the guild masters and IGE distribute money based on the hours of work dedicated to the respective entity.

If it's just a matter of breaking the rules, then how many guilds have members that share accounts? We need a tank, Frank is out of town, John logs into franks account to act as tank. This isn't an uncommon occurance. Is this worth a lawsuit? Frankly, if IGE is worth one, then this definitely is. Breaking rules is breaking rules. In this line, what about people who swear in a public channel? Should the FCC jump in and file suits against these individuals for breaking the TOS? They're not just facilitating, they're actually COMMITING the act.

Finally, anyone who's ever played wow knows that you can't buy the best gear in game. It's all BOP. So unless you're buying an account, that's a non-issue. On the same note, how many gold farmers are involved in raiding guilds? I'm going out on a limb when i say virtually none. Here you're talking about individuals who are selling their accounts to IGE to sell to someone else. If you're going to blame IGE, you have to blame the original account owner. And hell, you may as well blame the guild who let them get all the epic gear, because they clearly facilitated the whole thing.

In conclusion, this is not a moral issue. This will at some point be an IRS issue. What this is NOT is a justice department problem. This is the internet, we have moderators and GMs, and admins to deal with people who are breaking the rules. This is a TOS, not a bloody constitution. And by Mr. Pitt's logic, it'd be okay for me to start making characters on RP servers, then filing suit against everybody who broke my immersion. That's against the rules after all. What comes next? Squad cars rolling around azeroth looking for jaywalkers? They can just tack the fine onto your account billing.

 

[Sardu [deprecated]]

In my experience playing MMOs, WoW included, gold farmers are extremely disruptive to the normal gameplay experience. Even though a lot of farming in WoW can be done within instanced dungeons a major portion of it is done in open-world zones. Harvestable materials will be next to impossible to obtain in some regions, semi-rare drops of stackable items used in crafting will be perma-camped etc.

So access to certain aspects of gameplay are hindered. To go a step further, most gold farmers will do all in their power to force you out of their chosen 'farming area'. They will spam you in chat / spam you with group or raid invites / spam your in game mail etc.

It's also common practice for many farmers to use third party programs to run "bots" to do their farming or fairly commonly to provide their "powerleveling services".

All of the above are violations of the ToS / EULA for nearly all MMOs in the US currently. This is the basis for the vast numbers of accounts that are closed / banned. If a company's EULA was not binding to that degree then someone like IGE could have sued Blizzard for each of their gold farmer's accounts that were closed but they have not because they have no grounds to do so, as the services they provide are based off of illegal activities etc.

I will be watching this case closely, and hope that the gaming industry does indeed show their support in one form or another.

 

[Blaxton]

WoW, for me, had so many little botherances that saying gold farming was a _major_ problem would be a tough call. It certainly was a problem. It's very frustrating to have a quest lengthened because someone is farming the MOBs you need to kill to get your drop.

They also affect the in game economy. Essentially their actions inflate the entire system, so those of us that wanted to play within the rules were at a disadvantage at the auction house. There are professions that are good for making money and others that aren't, so things don't balance out if you're in one of the more self-improvement oriented (as opposed to money making) professions.

If it is a wider problem that I think (more farmers that I would guess) then we run into server load issues. People that play the game to make money in a game where making money is illegal then the servers are being stressed because of illegal activity. Personally I'd doubt it has that big of an impact, but it's possible.

RMT definitely had an impact on my experience in some ways, and for more hardcore players it might have a more drastic impact. I have a lot more problems with the fact that World PVP was light at best, fighting rogues in PVP was frustrating with my Warlock, and getting the best gear (in order to have a chance in PVP) required giving up a day a week, every week, in order to raid a dungeon for the slight chance that the boss mob would drop my set peice (not to mention the odds of getting it over the other warlocks in the raid). Raiding is probably fun for a lot of people, but if you aren't the most hardcore player its an experience you won't be able to enjoy (and it will probably anger people around you if you screw up a pull or something like that). RMT was a problem, but only a slight problem for me, a mostly casual player.

 

[Echolocating]

I can't see Hernandez winning this lawsuit simply by the fact that the process of farming the gold falls well within the rules of the game. The act of camping spawn points or any other method of obtaining gold is what the game's about. If IGE isn't farming the gold, it's a million other players. Nothing will change with IGE out of the picture.

Richard, Hernandez's lawyer, uses the analogy of kicking the back of a moviegoer's seat. Um, yeah. Sure. Can I get a court injunction against all griefers and players in my way then? ;-)

IGE does the same thing that any other individual player does in the game at one point of another... so it must be because they are a large organized body that makes it worse, right? Guilds, anyone? Oh, right, it's about the money. So it's okay to camp a spawn point and ruin someone else's game as long as your not earning real money for it. That doesn't sound convincing enough to me. Am I missing something here?

Yes, IGE is breaking the licensing agreement with Blizzard, but that's with Blizzard, not Hernandez. I think Blizzard is not suing IGE for reasons that Hernandez's lawyer doesn't understand... or won't admit.

I have never played WoW, but I'm familiar enough with a variety of MMOs to understand that it's impossible to achieve an online utopia. Hernandez needs to have an intervention... there's more to life than WoW.

 

[Echolocating]

Great links, Cheeze!

You make very valid points. I read the case document from the previous article. A small fraction of it is simply because of the licensing agreement breach by which IGE is making their money. The other 80% of the claim is about the disadvantage "honest players" are subjected to and the annoyances caused by IGE within the game. If the annoyances Hernandez "suffers" at the hands of IGE are a factor in this case, I'll be amazed.

I think the reason why Blizzard doesn't want to sue IGE is that a good portion of their player base deals with ill-gotten gains. Shut that down and people may have to progress in an "honest" fashion. Translation: not very many people have the time to actually earn the items in WoW, so they'll feel discouraged by their lack of progress with their "insignificant" 20 hours invested each week and they'll quit.

If Blizzard backs Hernandez, the case has merit... if Blizzard doesn't, then they are basically condoning IGE's actions and Hernandez's "pain and suffering" will look like a minor grievance... which I think it is.

 

[RDirump [deprecated]]

They are disruptive to other players in WoW.

First the game has always had spamming. They create a new account, and begin flooding tells to people until the GM bans them. It got so bad recently, people were having their screens filled with spam four times an hour, and not just one tell, they would have their screen filled with junk. It got progressively worse, and Blizzard was forced to code in anti-spam features.

That's not as bad as account hacking. The gold sellers became desperate after long-time gold-farming employees were banned repeatedly. So now they'll post nefarious webpage links in the forums, people will follow them and be hit with Keyloggers. Accounts are hacked, they'll sell all of people's things and mail out the gold, then they'll take the compromised account and use it to post the bad webpage on the forums again. LOTS of people were affected by this.

As Blizzard took tougher actions against the gold farmers, they became increasingly disruptive to normal players.