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

[Kesash]

/cheer! \o/

Finally someone has the coconuts to take on IGE and hit them where it hurts the most: The pocket book!

I play both WoW and EVE. EVE has a very effective way of dealing with ISKsellers: Players can kill the in-game characters that are ISK sellers and there is usually a rush to do so when one rears his ugly mug. So what if you get a security ding (I do it on an alt), the satisfaction of seeing one of these slimeballs go up in smoke is worth it. Known ISK farmers and spammers rarely set foot outside stations because they know they are immediate targets.

WoW is a different story: After filing literally over 200 petitions (10 - 15 in a 4 hour time frame per day over several weeks!) against Gold Farmer Spammers in WoW, and not having Blizzard/VU do anything about it, I just threw up my hands and gave up.

Blizzard created their own worst nightmare by allowing "trial accounts" which are handed out like candy on websites and magazines. Free 14 day accounts are the prime tools which the Gold Spammers use. Shutting down one of these trial accounts does nothing but delay the Spammers momentarily because they have a stack of trial account numbers that they can use sitting right there. Blizzard won't do away with the trial accounts because the marketing geeks won't let them.

One action I didn't hear Blizzard taking was to go after the Gold Sites' hosting ISP's and file FUA (Fair Usage Complaints) against the spammers' sites. Hit their hosting, take down their sites, make the farmers spend their money on setting up new ones.

A welcome addition to WoW would be to let players set their own filters. Examples: No PM's (Private Messages) from players under lvl 10 unless they are in your guild or on your friends list, no raid invites from players under lvl 10 (same parameters), no PM's from trial accounts, just to name a few. Ignore doesn't work because the spammers are actually smart enough to use different gibberish names every time! (I know that's a shock for some folks!)

But kudos to Blizzard for implementing the new Spammer reporting system in this latest patch. I have actually gone several days without GF spams since the last patch. Although now you get /s (say) spammers standing next to the mailbox and auction house but you can report just as easily and quickly with this new system.

As for Gold Farmers ruining my gaming experience, I have one word example for WoW Veterans: Felwood (stop rolling your eyes!). Prior to Burning Crusade, the NW corner of Felwood was literally owned by Farmers on any server you went to. If you weren't a member of the resident farmer clan, you had mobs trained on you, you were kill stole, you had constant raid/group invites, trades, etc thrown at you in attempt to drive you out of that area, and that was on a PvE server. Lord help you if you were on a PvP server. On PvP servers unguilded toons of the opposing faction would appear and you would be mass ganked as soon as you set foot (or hoof) in that area.

I do recognize one fact: Blizzard/VU has gone through great lengths to plan out zones to be as Gold Farmer "unfriendly" as possible in Burning Crusade (Outland). Let's see some GF run a auto-target gold farming bot in Hellfire... Bing! Targeting Fel Reaver... WHAP! *Fel Reaver train whistle sound* *sound of GF being squished*... /laugh from all witnesses.

I hope Mr. Hernandez and his lawyer hang IGE out to dry and all that's left of IGE and their operation is a dried husk that will blow away in the next hurricane to hit Miami. It's companies like IGE that drive the Gold Farmer industry, and if you remove one of the major drivers, you may just get the message through to the other Gold Farmers and then maybe normal (?) players like myself can sit down and enjoy playing a game without the pain and agony of continual gold farmer spam or having to compete with Farmbois for spawns you need for quests and game enjoyment.

 

[den010 [deprecated]]

Kesash:
Are the gold farmers REALLY hurting your gameplay? I thought not.

All of these complaints against people that buy gold/items for real life money only stem from jealousy. Boohoo, they have better stuffs than I have.

Dude, grow a pair and stop being jealous. If you want that stuff then pony up and buy it or work for it ingame.

Stop being a wuss

 

[CaelanPaige [deprecated]]

The law concerning intended third party beneficiary has elements that are required to be met for a party claiming TPB status to enforce a contract between two other parties. Although it is not necessary for a TPB to be directly mentioned in the contract, a direct and clearly expressed intent to benefit a third party or class must be in the contract. (and of course, it must be a valid contract, which is not at issue here)

So in our Painter hypo, if the contract stated, "The painter promises to paint the house of Cheeze Pavilion in exchange for $500 due at completion of the service." Under this contract, the neighbor would not be able to sue the painter to enforce the contract. Here, Neighbor is an incidental third party beneficiary. If the contract read, "The painter promises to paint the house of Cheeze Pavilion, so that Neighbor may enjoy the freshly painted house of Cheeze Pavilion, in exchange for $500 due at the completion of the service." Then the neighbor would have a valid cause of action to sue the painter for specific performance because the contract expressly and clearly identified the third party beneficiary.

I have reproduced the pertinent language of the Terms of Use contract so that we may determine whether or not Mr. Hernandez is an intended third party beneficiary.
__
Ownership/Selling of the Account or Virtual Items.
Blizzard does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that appears in the Program. You agree that you have no right or title in or to any such content, including the virtual goods or currency appearing or originating in the Game, or any other attributes associated with the Account or stored on the Service. Blizzard does not recognize any virtual property transfers executed outside of the Game or the purported sale, gift or trade in the "real world" of anything related to the Game. Accordingly, you may not sell items for "real" money or otherwise exchange items for value outside of the Game.
___
This language is pretty simple, and contains no indication that the purpose behind the prohibition on transfer of accounts or virtual goods or currency is to benefit a third party. In fact, the purpose behind the prohibition is clearly indicated, the purpose is to protect the property rights of Blizzard in the virtual goods, currency, and other content which it retains ownership of in this contract.

The burden of proof is on Mr. Hernandez to show that Blizzard had included a direct and clear intent to benefit him and his class into this clause of the contract.

As to the other claims that Mr. Hernandez is making concerning tortuous interference of business relationship and unfair trade practices, the filing is not sufficiently clear to determine how exactly the facts of Mr. Hernandez's case fit into the law here. Mr. Hernandez does not make specific claims, and he does not illustrate the law with cases. He simply alleges the violation of these statutes.

Your arguments concerning his injury being a breach of contract go back to the issue of whether he is an intended third party beneficiary. A breach of contract is a concrete and particularized invasion of a legally protected interest; however, only parties to a contract or intended third party beneficiaries have a legally protected interest there to be protected. Without a better argument that Mr. Hernandez is an intended third party beneficiary, his injury in fact argument based on breach of contract is not valid.

Your last point concerning damages, regarding the violation of a restrictive covenant, also brings us back to whether or not Mr. Hernandez is an intended third party beneficiary. Restrictive covenants, such as non-compete agreements, or agreements not to transfer virtual goods or currency, are still contracts that may only be enforced by parties to the contract, or intended third party beneficiaries.

Depending on how the Florida statutes are interpreted, the unfair trade practices may be the only claim that Mr. Hernandez can continue under, unfortunately, without more specific allegations, I'm not sure it's possible to analyze his arguments under those statutes.

 

[den010 [deprecated]]

CaelanPaige:
"Depending on how the Florida statutes are interpreted, "

Unfortunately, for me, Florida is a backwoods state. I know because I live in FL.

Law does not apply in Florida. It is just a bunch of good ole' boys making crap up as they go. (see Jeb Bush) (Now we have the homosexual Charlie Crisp as Gov.)

Florida does have good beaches though.

 

[thal001 [deprecated]]

Just a note. The Law Firm responsible for this is providing a form online for anyone wanting to join the suit [http://www.productsliability.net/resources/ige-class-action-consumer-information-sheet/].

I'm no lawyer but I don't think this firm would have picked this suit up if they didn't think they had a good chance us succeeding or gaining something, and even if they do settle out of court it'd make a huge positive statement for the MMO community. Companies like IGE think they're untouchable but even an out of court settlement would prove they are not.

 

[Echolocating]

Great points, Caelan.

It leads me to wonder if Blizzard purposely left out (and wants it to remain so) clauses that protect third party beneficiaries. You know, opening a can of worms and such.

 

[den010 [deprecated]]

thal001:

Glad you could join the conversation Richard.

This case will be dismissed very quickly based on the absurdness it is based on. oops, I forgot, this will be tried in Florida. We can't even vote right and this case might make a precedent? LOL

 

[Kesash]

Kesash:
Are the gold farmers REALLY hurting your gameplay? I thought not.

All of these complaints against people that buy gold/items for real life money only stem from jealousy. Boohoo, they have better stuffs than I have.

Dude, grow a pair and stop being jealous. If you want that stuff then pony up and buy it or work for it ingame.

Stop being a wuss

*flashes my Thunderfury that I ->*worked*<- 10 months to get. It was my butt in the seat getting the 100 Arcane Crystals in Ungoro racing farmers to get to the Rich Thorium Veins, running MC and BWL to get the bindings and ores with 39 other folks, mind you... I was in tier 2 gear when BC hit and that stuff isn't handed to you. I had help from my friends and my guild, but it was ME in the seat, not some Farmboi.

You're the wuss. You're probably one of these kids that come into WoW with Power Leveled Characters that don't know that they can SHEEP beasts with a lvl 63 mage and that have gear that they would normally have no freaking skill to get to begin with.

I'm not jealous at all. I have 4 toons (two at lvl 70...) in Outland, working on my epic flying mount for my main (2K gold to go!) Oh, I've been playing WoW for about 2 1/2 years and I have EARNED and WORKED FOR every thing that I have, I have a FULL TIME JOB, Family (oh, my wife plays WoW too) and I still have time to be the Guild Lead of a 30+ account guild. It's the little "I want it, I want it now, but I don't want to work for it" wussies like you (I call people like that "Veruca Salts") who throw their money (or is it Mommy's money?) at a Gold Farmer or Power Leveler that ruins this game. Go play "Teh Sims". It's more your style and level of mentality. You probably wouldn't know MC from STV.

PWND!

Yes, the Gold Farmers do hurt my game play. They hurt it when they make me waste my playing time trying to break their camps on spawns so I can advance my level or job skill. They hurt it when they drive up prices in the AH to outrageous heights. They hurt by wasting my playing time when I have to sit there and petition when they spam. They hurt my game play when they come up and harass me for Food and Water on my mage. They hurt my game play when they disrupt raids and instances with their spam. They hurt my game play when somehow they get invited to raids or instances and they Ninja Loot items to sell in the AH. (all of these have personally happened to me!)

 

[thal001 [deprecated]]

thal001:

Glad you could join the conversation Richard.

This case will be dismissed very quickly based on the absurdness it is based on. oops, I forgot, this will be tried in Florida. We can't even vote right and this case might make a precedent? LOL

You my friend are a nut who spends to much time on forums.

 

[den010 [deprecated]]

*reels in the catch*

 

[thal001 [deprecated]]

*irrelevant nonsense caused by terminal immaturity*

I'm not interested in a flamewar. I just want to see us finally get some satisfaction by seeing companies like IGE and their ilk get what they deserve. I've seen the gold farming trend get progressively worse since it started in EQ. They don't hesitate to use cheats and exploits to help them get ahead. Now couple that with their ability to offer huge amounts of gold that wouldn't normally be in the economy and their ninja'ing resources from players who just are trying to have fun and play the game the way the developers intended and I think there's little doubt that companies like IGE and those that support them DO have a negative impact on legitimate players gaming experience.

If someone says this doesn't bother their gameplay either directly or indirectly then they're either a farmer or a buyer. I see no inbetween.

So, yeah I'll promote that lawyer's site and would love to see anyone from WoW that's had enough of IGE and the gold farmer crap to join the suit.

 

[Joe]

If someone says this doesn't bother their gameplay either directly or indirectly then they're either a farmer or a buyer. I see no inbetween.

It's rhetoric like that why I can't take this side of the argument seriously.

 

[thal001 [deprecated]]

If someone says this doesn't bother their gameplay either directly or indirectly then they're either a farmer or a buyer. I see no inbetween.

It's rhetoric like that why I can't take this side of the argument seriously.

*nods* That's certainly your prerogative, and perhaps I should have added 'or they're in denial' but regardless it doesn't change my opinion. Goldselling/buying and anything associated with it has been bringing MMOs that prohibit it down for years and it's extremely difficult for me to believe it hasn't negatively effected every MMO'ers gameplay either directly or indirectly at one point or another.

Also,

It's easier for you to take the opposite side seriously with statements like this:

All of these complaints against people that buy gold/items for real life money only stem from jealousy. Boohoo, they have better stuffs than I have.

Dude, grow a pair and stop being jealous. If you want that stuff then pony up and buy it or work for it ingame.

Stop being a wuss

as opposed to what I said? If so, I'm sorry but I have to chuckle.

 

[Joe]

More at length from me on this later, but while he was childish, he didn't drop the "you're with me or you're against me" ultimatum. I'm all about wiggle room.

 

[CaelanPaige [deprecated]]

Right, but you missed section 5: Rules of Conduct, C: Rules Related to Game Play

--------
Game play is what World of Warcraft is all about, and Blizzard strictly enforces the rules that govern game play. Blizzard considers most conduct to be part of the Game, and not harassment...Nonetheless, certain acts go beyond what is "fair" and are considered serious violations of these Terms of Use. Those acts include, but are not necessarily limited to, the following:

2. Conduct prohibited by the EULA or these Terms of Use, including without limitation that conduct prohibited by Section 2(C); and
3. Anything that Blizzard considers contrary to the "essence" of the Program.
----------
To me, it seems pretty certain that Blizzard considers any violation of the EULA and ToU to be 'unfair' and "harrassment." This seems to be a pretty clear and express incorporation of violations of the ToU into a section that pretty clearly and expressly is meant to benefit the third-party players. I mean, that's a pretty weak argument: rules designed to protect game play are not designed to benefit the people playing the game?

I'm not sure where you are finding within the language of this clause a clear and express intent to benefit third party players. Clear and express intent has a distinct legal meaning, that the contract directly states it in unmistakable terms.

Look carefully at the language of the contract, "Blizzard strictly enforces the rules..." "Blizzard considers most conduct...," "Anything that Blizzard considers...." Blizzard, here, is retaining for itself and itself alone the causes of action created by the breach of this contract.

What Blizzard considers a violation of the EULA or ToU, or what Blizzard considers to be "unfair" or "harassment" is not an issue here. Here, Mr. Hernandez is suing over what he believes to be unfair or harassment. But the EULA or ToU does not vest within Mr. Hernandez the right to make that determination or the right to seek a legal remedy even if Blizzard made that determination. Again, because Mr. Hernandez is not a party or third party beneficiary to the contract, he cannot sue under it.

If Blizzard had intended to create a third party beneficiary relationship between and among its players that agree to the EULA and ToU, Blizzard would have put language into the contract that explicitly creates rights and duties between players. I'm sure you realize by now, that such a contract would invite litigation that is not in Blizzard's best interest to create. If gold-farmers and IGE can be sued for the breach of this contract, any guild who violates the EULA or ToU can be sued as well. I am not going to take the time to research the law on this specific issue, but I would imagine such a contract would be void to begin with because it would expose the player to possible suit from hundreds of thousands of other players should he decide to breach that contract.

I mean, that's a pretty weak argument: rules designed to protect game play are not designed to benefit the people playing the game?

Here you are confusing the purpose of the rules of the game with the purpose of the contract. The rules of the game are arguably created to benefit the players, granted. The purpose of the contract however is to protect the legal interests of Blizzard so that they may run the game in a manner they see fit.

Blizzard arguably creates this confusion by introducing its game rules into its contract, but a careful reading of the contract shows what Blizzard's intent is here. Blizzard is essentially saying, "If you do A, B or C, I may terminate your account, and you can't sue me for breach of contract, because by doing A, B, or C you have already breached the contract."

The purpose of the prohibitions against A, B, or C are irrelevant in this context, because it is the purpose of the contract that must be interpreted. Furthermore, even by the wildest stretch of the imagination, this cannot be considered clear and express intent. Divining the purpose behind prohibitions that are included as breaches is conjecture at best, no matter how certain we are of the purpose behind the prohibitions.

While that may seem to be semantics to a non-lawyer, it is a distinction that will keep the complaints of environmental harm, such as those made by Kesash and others, out of this suit, because they are irrelevant to the legal issues involved. I sympathize with your frustration regarding people you believe to be ruining the game, but this suit won't provide you with a remedy to that frustration.

 

[Kesash]

*reels in the catch*

I smell a troll... Forum Troll. (or a IGE Farmboi)