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

[Tenebris [deprecated]]

I can see this turning into an argument over game design moreso than over my rights as a paying subscriber. If I'm not mistaken, Blizzard has just as much culpability in this as do the players who agree to the EULA. The game design itself should be carefully examined here, as the often referred to term of "emergent gameplay' come into mind. Playing the game as intended quickly turns into shades of gray when this is taken into consideration. In many parts of the world RMT is seen as an emergent type of gameplay which is embraced and adopted by player cultures of other countries. If the game design allows for such activity to take place, then I can see how the argument can be made that Blizzard should be responsible for changing those elements to fall in line with the good faith principles of the binding provisions of the EULA and TOS.

I play WoW exclusively, and enjoy the game to the point of having over 200 hours on my main character, and I hate the farmers as much as the next player. But if I quit the game over the farmers and botters ruining my playing experience, am I quitting because IGE has somehow facilitated this? Or, am I quitting because Blizzard hasnt made enough changes in the game to prevent these activities from being possible? Either way, the game design is as important to my enjoyment of the game as it is to the next player, regardless of the EULA and TOS language.

 

[Kesash]

I can see this turning into an argument over game design moreso than over my rights as a paying subscriber. If I'm not mistaken, Blizzard has just as much culpability in this as do the players who agree to the EULA. The game design itself should be carefully examined here, as the often referred to term of "emergent gameplay' come into mind. Playing the game as intended quickly turns into shades of gray when this is taken into consideration. In many parts of the world RMT is seen as an emergent type of gameplay which is embraced and adopted by player cultures of other countries. If the game design allows for such activity to take place, then I can see how the argument can be made that Blizzard should be responsible for changing those elements to fall in line with the good faith principles of the binding provisions of the EULA and TOS.

I play WoW exclusively, and enjoy the game to the point of having over 200 hours on my main character, and I hate the farmers as much as the next player. But if I quit the game over the farmers and botters ruining my playing experience, am I quitting because IGE has somehow facilitated this? Or, am I quitting because Blizzard hasnt made enough changes in the game to prevent these activities from being possible? Either way, the game design is as important to my enjoyment of the game as it is to the next player, regardless of the EULA and TOS language.

Your version of enjoyment of the game may not be mine or the next players. Some folks love to PvP, some don't. Some folks are Raid Rats, others solo. But what Blizzard has not intended with their game is for it to be used as a cash cow for a third party (I know I'd want to keep as much money as I could in-house).

I know of players having their accounts banned for using Power Leveling services. What cracks me up is that there are people who throw away their (or Mommy's) money only to have their accounts banned and no recourse against the levelers who skip away with a fat wad of cash in their pockets.

EBay and several other online auction sites stopped the buying and selling of MMORPG accounts recently because of so many problems with them.

It's a problem of Gold Farmers, Power Levelers, and "Veruca Salts" exploiting a game for their own greed and egos and disrupting the game play of "regular" players. It's high time that Blizzard (and other MMORPG game companies) finally did something about it. The problem should have been squashed before it ballooned into this monstrosity. This IGE lawsuit should have happened a LONG time ago, with all the major MMORPG companies that IGE syphons Gold/ISK/Credits from and resells for real world cash (are they paying taxes?!?), joining together and slamming these scumbags and putting them out of business. But that would require a miracle like the Palestinians and the Israelis making peace.

 

[Tenebris [deprecated]]

Your version of enjoyment of the game may not be mine or the next players. Some folks love to PvP, some don't. Some folks are Raid Rats, others solo. But what Blizzard has not intended with their game is for it to be used as a cash cow for a third party (I know I'd want to keep as much money as I could in-house).

Intended or not, bad game design is just that. Blizzard may not have designed WoW to allow for a 3rd party to make money off of their IP, but the fact that the design does in fact allow it places a good portion of the culpability on them as developers of the game. The lawsuit in question is targeting the 3rd party(IGE) as the offending party based purely on the perception that his enjoyment of the game is lessened due to their activities.

But as I stated above, RMT is widely embraced and adopted by gamer cultures around the globe. WoW is a global game, so the morality of a precedent set in the US will do little to change this perception elsewhere. WoW is not the game to use for this type of legal case in my opinion due to it's design, and these localization and cultural differences. Gamers should really take a step back and ask themselves if they want to deal with the fallout of a decision in IGE's favor in this case.

 

[CaelanPaige [deprecated]]

Well, first, I'm sorry, but, that's not how contracts work. The intent of the party who wrote the contract is only one piece of the puzzle. Remember, Mr. Hernandez's intent is just as important, and he thinks the section that incorporated section 5: Rules of Conduct, C: Rules Related to Game Play also incorporated the purpose of the rules. Working on the assumption that Mr. Hernandez is unsophisticated when it comes to legal matters, this was a 'take it or leave it' contract, and Blizzard is a corporation, Mr. Hernandez's intent is a very important part of determining what the terms of this contract mean: http://en.wikipedia.org/wiki/Standard_form_contract

The intention of both parties entering into a contract is important, granted. However, Mr. Hernandez's intent is not important, because he is not a party entering into the contract that he is suing under. (or alternatively, the people he is suing were not parties to the contract that he agreed to).

The contract (K1: H & B) that Mr. Hernandez and Blizzard agreed to are between themselves, and if Mr. Hernandez believes there is a breach of that contract, his only recourse is against Blizzard. The contract (K2: GF & B) between the gold farmers and Blizzard only creates causes of action between the gold farmers and Blizzard (and IGE, because IGE was conspiring with the gold farmers to breach the contract). Because the Gold farmers were not a party to Mr. Hernandez's contract (K1), and because IGE was not conspiring with Blizzard to breach Mr. Hernandez's contract, Mr. Hernandez has no standing to sue IGE or the gold farmers under the contract he agreed to with Blizzard. Furthermore, because Mr. Hernandez was not a party (or third party beneficiary) to K2, he has no standing to sue under it either.

Second, the Terms of Use state "[n]onetheless, certain acts go beyond what is "fair" and are considered serious violations of these Terms of Use." If "fair" play isn't intended to benefit one's fellow players, then, who is it intended to benefit? "Fair" play isn't just clearly and expressly *intended* by the contract, it's clearly and expressly *stated* in the terms of the contract. I really can't see a court coming to the conclusion that running a fair game was never intended to benefit the players of a game.

Here you are misunderstanding the law regarding third party beneficiaries, I think. The relationship between player who is agreeing to the contract and the third party beneficiary must be clear and expressly stated. The fact that certain actions are considered unfair or violations, and that the purpose of having actions considered unfair or a violation is to benefit third parties is an inference. An inference can never be a clear and express statement. Inferences only create incidental third party beneficiaries, who have no standing to sue for breach. If Blizzard wanted to create an intended third party beneficiary, language similar to this would appear in the contract: "Customer agrees to assume a duty to create a fair playing atmosphere for other customers by not violating the Terms of Use. A violation of this duty will create a cause of action in breach of this contract against the customer by Blizzard or other customers." That is a clear and express statement that creates an intended third party beneficiary relationship between customers. Only language which is unmistakable can create an intended third party beneficiary. The burden is on Mr. Hernandez to establish that the contract clearly and expressly states that he is a third party beneficiary, and that burden is extremely high.

Sorry, but that logic is like saying that because only referees can call a penalty in a sport, a foul is only intended to benefit the referee and the league, and not the players. I looked around for some law on that but couldn't find any. Maybe you have--if so, you should share: I think that's the best analogy in this situation. Maybe even better than the whole 'pooping in moonwells' thing. :-D

I also like this analogy, but we are going to need to change your hypothetical somewhat to create a set of facts similar to this case. If Major League Baseball has a contract with each baseball player that states, "We may terminate your employment contract if you test positive for human growth hormone." Barry Bonds tests positive for human growth hormone, but Major League Baseball decides not to terminate Mr. Bonds. Alex Rodriguez, who also signed an identical contract with Major League Baseball sues Mr. Bonds for breach of third party beneficiary.

To analyze whether this is a breach of a third party beneficiary relationship between Mr. Bonds and Mr. Rodriguez, we need to establish that such a relationship exists. Here, because the contract does not state that Mr. Bonds has a duty to his fellow players to play fairly by not using human growth hormone, it is not clearly and expressly stated that a third party beneficiary relationship exists between Mr. Bonds and Mr. Rodriguez. Furthermore, it is under Major League Baseball's discretion to terminate, or not to terminate Mr. Bonds? employment. "MLB *may* terminate..." The purpose of the prohibition against human growth hormone is arguably to benefit fellow players by creating a fair game, but it is also arguable that the purpose of the prohibition clause in this contract is to protect the public integrity of Major League Baseball, or to create a cause for termination that cannot be challenged. Because it is not unmistakable that this language creates a third party beneficiary relationship between Mr. Bonds and Mr. Rodriguez, Mr. Rodriguez does not have standing to sue here for a breach of a third party beneficiary relationship.

This is essentially the same claim that Mr. Hernandez is making (although, in the hypo above, Mr. Rodriguez would also be suing Balco or other conspiracy to provide Mr. Bonds with HGH, but that is only relevant for the claims in Tort).

 

[CaelanPaige [deprecated]]

I think maybe you're confusing a tort or a statutory cause of action with a breach of contract. Remember, all Mr. Hernandez has to prove about the contract under the third theory is that IGE unjustifiably interfered with that business relationship. And the whole contract issue isn't even of central importance to the theory of this being an unfair trade practice.

The reason I haven?t focused as much on the claims in tort is because there is not enough information in the complaint to do a full legal analysis on those claims. While, for the claims in contract, we have all the information we need to resolve the issue. It will take some bit of speculation to analyze the claims in tort, and will necessarily have less predictive value.

As I have stated before, I don't think Mr. Hernandez can demonstrate a valid injury in fact because he continues to play, and arguably enjoy the game (to the entertainment value of 15 dollars a month) despite the actions of IGE. Remember, we do not even need to get to the merits of the case if the plaintiff fails to have standing.

Let's look at the tortuous interference claim, because we probably know enough about these circumstances to do a little better analysis on that than the Unfair Trade actions.
To state a cause of action for tortuous interference with a business relationship, the aggrieved party must show: (1) the existence of a business relationship with another; (2) the defendant's knowledge of that relationship; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) that the aggrieved party was damaged as a result of the defendant's interference. Marquez v. PanAmerican Bank, 943 So.2d 284 (Fla. App. 2006).

I think we can agree that a business relationship existed between Mr. Hernandez and Blizzard, and just for the sake of argument, let's assume that the defendant's knowledge of other subscribers satisfies the knowledge of the relationship element.
The elements that are at issue here is whether IGE and the gold farmers actions constituted an intentional and unjustified interference with that relationship, and whether Mr. Hernandez can show damage as a result. The complaint alleges that element three was violated because the defendants sold gold in violation of the EULA and ToU. The complaint also alleges that the damages caused were the loss of the fees paid to Blizzard in satisfaction of element four.

(3) Intentional and Unjustified interference

A cause of action for tortuous interference requires a showing of both an intent to damage the business relationship and a lack of justification to take the action which caused the damage. Networkip, LLC v. Spread Enterprises, Inc., 922 So.2d 355 (Fla. App. 2006)
The complaint does not allege that IGE intended to damage the business relationship of Mr. Hernandez, only that IGE intended to breach the contract its gold farmers had agreed to with Blizzard.

Imbedded within the elements of a tortuous interference claim is the requirement that the plaintiff establish that the defendant's conduct caused or induced the breach that resulted in the plaintiff's damages. Chicago Title Ins. Co. v. Alday-Donalson Title Co. of Florida, Inc., 832 So.2d 810 (Fla. App. 2002).

Here, like the plaintiffs in Chicago Title, Mr. Hernandez does not claim that the breach in K2 caused by the gold farmers resulted in a breach of K1.

Though a showing of malice or ill will is necessary, there is no requirement that the interference was intended to secure a business advantage over the plaintiff. The supreme court concluded there is "no logical reason why one who damages another in his business relationships should escape liability because his motive is malice rather than greed." The interference however must be both direct and intentional. Rockledge Mall Associates, Ltd. v. Custom Fences of South Brevard, Inc., 779 So.2d 554 (Fla.App. 2001).

Here, Mr. Hernandez is not alleging that the gold farmers or IGE had malice or ill will towards other customers, only that they intended to secure competitive advantages in the game for certain customers by breaching K2. Their main motivation was profit, and it could be argued that IGE had no malice or ill will whatsoever against the plaintiff. Also, it is difficult to establish that IGE's actions directly resulted in Mr. Hernandez's harm. Mr. Hernandez is claiming that he lost the value of his fees because he was at a competitive disadvantage in the game, but that competitive disadvantage was not the direct result IGE's activities, it was, arguably, however, an indirect result of IGE's activities.

Well... I'm sure you get the idea. Mr. Hernandez's tortuous interference claim is probably going to fail on element three, and will probably fail on element four as well. Assuming, of course that he has standing to sue in the first place, which is questionable because it will be very difficult for him to prove an injury in fact.

 

[Joe]

And, since my editorial, "On Behalf of the Chair Kickers [http://www.escapistmagazine.com/news/view/72522-On-Behalf-of-the-Chair-Kickers]," has its comments getting piped into this discussion, here's an excerpt!

It's just not feasible to achieve hardcore gamers' goals in WoW without repetitive gaming, to the point that if you identify as a hardcore gamer, you're probably a farmer, too. I'm sure Molten Core is a great instance, but after the 30th run, that glazed expression you're wearing is very familiar to an RMT farmer's an hour before quitting time. And that, I think, is why the people who take their time to become part of a gaming community are so vocal about farming. They run into farmers more than casual players because they're trying to farm, too, only they call it "grinding," a simple change in nomenclature that's enough to create a gaming Red Scare.

 

[Echolocating]

I don't know. The whole thing smells of pocket protectors and zit cream.

I don't know, that's kinda weird logic to me. It's not nerdy to play the game, but it is nerdy to sue someone who has no interest in the game except to make a profit off it while disrupting the gameplay experience?

The rules of the nerd are clear. You may partake of nerd customs as long as you keep the nerd behavior within the nerd kingdom.

In that case, isn't it nerdy to argue over something that's nerdy? On the internet no less? ;-)

The Escapist falls within nerd boundaries. Did you not get a rulebook explaining all this when you became a nerd, Cheeze? I'll lend you one of mine. Chapter 7 has an interesting read on different levels of nerd; yes, it's possible to be too nerdy... even for nerds.

-----

If this thing even gets to trial, we'll see who's right and who's wrong on this issue. ;-)

 

[Echolocating]

Cheeze, Cheeze, Cheeze... what am I going to do with you? ;-)

You've taken an extreme moral stance against IGE. That's fine, but why? You've never played MMOs before. You understand that Hernandez is simply a hardcore WoW addict with too much time on his hands, right? The law firm backing Hernandez isn't really in it to save the integrity of WoW, right? In fact, there's no morality to this issue at all.

Hernandez thinks he can be a bigger top dog in WoW if IGE is out of the picture (and garner acclaim from his WoW peers as a savior) and the law firm wants to make a quick and hefty buck... all on the hope of a small technicality interpreted in their favor. That's right, the EULA. Somehow this document that protects Blizzard from being sued is treated as some form of civil rights for all end users that bleeds into the real world. I don't think so. In the EULA, the end user is never mentioned as a protected party (as Caelan pointed out). Legal mumbo jumbo is a very precise science and is always overly wordy, but extremely purposeful with its statements... yet strangely enough, the end user is not mentioned as a protected party.

If Blizzard wanted to, they could rewrite the EULA and include the end user under its protection (and have everybody click a button to sign it to keep playing), but they won't for very specific reasons... so to infer that players are protected is wishful thinking. The EULA is for Blizzard's best interests... end users are not protected for Blizzard's best interests.

 

[Archon]

At least insofar as I gathered during the interview, the lawsuit seems aimed primarily at injunctive relief, not damages. I don't think they're going to see big punitives or anything.

 

[Echolocating]

If you truly want me to reply to any of your comments and questions, all I ask is that you refrain from chopping up my 3-paragraph post into 11 separate quotes of single and half-sentences. All context is lost in the matter. Looking back at my previous post I see 3 major points of debate: 1.) I think you believe that this lawsuit has some moral ground to stand on. I obviously don't. 2.) I believe the whole lawsuit hinges on if Hernandez is legally protected by Blizzard's EULA. Anything else is irrelevant to the case. 3.) I believe Blizzard doesn't want users to have the legal right to sue other players based on their EULA. I think Blizzard wants to govern their own game... and I think they should.

The problem with our discussion, Cheeze, is that you don't speak "friendly jerk". I'm fluent in many forms of dialect ranging from "confused, uncool older guy" to "stubborn asshole". ;-)

 

[Kesash]

And, since my editorial, "On Behalf of the Chair Kickers [http://www.escapistmagazine.com/news/view/72522-On-Behalf-of-the-Chair-Kickers]," has its comments getting piped into this discussion, here's an excerpt!

It's just not feasible to achieve hardcore gamers' goals in WoW without repetitive gaming, to the point that if you identify as a hardcore gamer, you're probably a farmer, too. I'm sure Molten Core is a great instance, but after the 30th run, that glazed expression you're wearing is very familiar to an RMT farmer's an hour before quitting time. And that, I think, is why the people who take their time to become part of a gaming community are so vocal about farming. They run into farmers more than casual players because they're trying to farm, too, only they call it "grinding," a simple change in nomenclature that's enough to create a gaming Red Scare.

Joe, I have to disagree with you about the way Blizzard handles instances.

1. Many instances, especially in Burning Crusade, now require keys or attunement quest chains before you can access them.
2. They instances are NOT created on the fly, nor are they created when you want them to. You give the impression that they poof out of thin air. As you know, and as many readers may know, the instances themselves are hosted on separate servers on the invididual Server clusters (just explaining to the less technically informed folks). Blizzard has now put a limit on how many times you may access an instance. That limit is now 5 times in 24 hour period just to keep the Farmboi Rogues from accessing places like Upper Blackrock Spire (UBRS) so they can pick pocket the sleeping orcs over and over and over.

As the US Government amends the Constitution to cover unforseen problems and circumstances, so Blizzard makes rule and gameplay changes. Nobody in their right mind could have predicted the popularity of this game. Nobody in their right mind could have predicted the outright greed and laziness of the human animal when it came to this game as well, from the point of the Farmbois and the Veruca Salts.

The Human Animal, by nature, exerts the least amount of effort to achieve it's desired end result (hence the invention of invention). This is evident by players kill stealing, cheating, and the subject in question: Gold Farming. If we had nothing but honest, law abiding human beings on this planet, rules would not be broken, and we wouldn't be having this discussion. But with the Human Animal being the greedy, lazy ape that it is... It's a matter of smacking the lazier, greedier ones and doing the same to the scum that caters to them and letting them know that this is not acceptable behavior within the TOS and EULA of World of Warcraft and society in general.