Posts are running rampant about how the judge agreed with Smallwood on the addiction claim and is allowing the case to proceed. That’s true enough, but misses the far more important aspects of this decision. First, the judge found that the End User License Agreement (EULA) was valid. The impact of this? The provision that limits NCSoft’s liability to $65 for contract violations and negligence are fully enforceable. That means even if Smallwood can prove NCSoft breached its promise to run a “fair and square” game, or took three months of Smallwood’s money, all he gets back is $65. Second, the only way Smallwood can cash in big on this case is to prove that NCSoft was grossly negligent in not warning him that Lineage II is addictive. THAT will be an incredibly tall order, since Smallwood will have to prove both that Lineage II is addictive (whatever that is), and that NCSoft knew it was addictive and chose not to warn subscribers of this defect in the game.

(Obvious disclaimer: I currently work for NCsoft and cannot comment on this case.)

Irked that World of Warcraft makes you do that every patch, even though the turgid legalese that actual humans are discouraged from reading hasn’t changed since 2005?

Well, Warhammer Online makes you do it EVERY TIME YOU CONNECT.

Get knocked off the server for whatever reason? You get to read the EULA again!

Oh, and there’s two. A EULA *AND* a Code of Conduct. So the installing this game means you actually own my computer is in the first dialog, and the forbidding you to have children until you get realm rank 17 is in the second dialog. And you have to scroll down, then click accept *every time you log in*.

No, really. This is a feature!

This is intentional for legal reasons. Each time you play WAR, you’re actively using a service and must therefore agree to the terms of that service. Adhering to the EULA and COC is not a once-off flare; it is a continuous commitment. So why not make the procedure of accepting these terms more user-friendly, such as having the ‘agree’ box checked by default? One answer to this is that the less effort required to agree to something, the less is its juridical weight.

 

Whereas being annoyed about this feature is understandable, it may be useful to put things into perspective. It takes me some two seconds to scroll down, check the box and press the button. Repeating this for both the EULA and COC is a five second procedure. Repeating this a couple of times a day and even crashing a few times still only adds up to half a minute of your day. A small price for hours and hours of glorious WAR I’d say.

Personally, I thought my subscription fee was a small price to pay for hours and hours of glorious WAR.

In most enterprises open to the public, since the public contains Bad Actors by definition, there is a constant war between security and usability. Password security is a good example of this. If you have no password policy set, your accountant upstairs will keep using “sexy” as his password, never change it, and then three years and five unamused secretaries later, someone will clean out your bank accounts. If you have the Bastard Operator From Hell managing your servers, you have a password security policy that requires it to be at least 16 characters long, contains mixed-case letters, at least three numbers, and at least two punctuation characters, thus ensuring that the only way you can actually get a valid password is using BOfH’s secure password generator keyfob that he ordered from ThinkGeek along with the Darth Maul nerf light saber, and also neatly insuring that no one ever logs into the servers (thus saving the BOfH a lot of time better used playing with his new light saber).

The point being that when you institute a policy clearly concieved and approved by lawyers, you forget that the purpose of your product isn’t to make your company safe for lawyers, but to actually deliver a fun experience for your customers. Forcing 100% of your customers to suffer continued poke-in-the-eye level inconveniences like wrestling with a ha-ha-made-you-scroll EULA boxes every time they connect to your servers on the off chance that when the one pinhead who thinks he can unleash his brother the patent lawyer to litigate back your Cloudsong from that ninja looter comes calling, you’ll have 23% more chance to quash his frivolous lawsuit? That’s just bad math. And bad service.

Although not as bad as EA’s current poke-me-in-the-eye annoyance of sticking ad banners in games without even bothering to disclose it any more. Mercenaries 2, I’m looking at you. I’m pretty sure Venezuela does NOT have a cult of personality revolving around the latest Al Pacino flick, but you wouldn’t know it from turning a corner in Caracas and seeing 5 billboards for the same identical movie. Luckily, in Mercenaries 2 I can blow up those billboards with my tank. To date, I have not been able to burn Warhammer’s EULA with my Bright Wizard.

Update: “Hey, let’s only poke the customer in the eye ONCE.”

First, let’s start with a change to our Code of Conduct. After reviewing the CoC, we’ve decided that it is not necessary to have you click through it every time you enter the game. However, you will need to continue to scroll through the EUALA for the foreseeable future. While we are making it easier to do that it will remain as it is. I’m truly sorry that it is necessary but for now, due to legal reasons, it will still need to be scrolled through and accepted when you enter the game.

Emphasis in the original. Clearly, the law treats EA Mythic MMOs different from Blizzard MMOs, and due to those very real legal reasons, you will continue to have to pretend to read the EUALALALA every time you pretend to kill orcs.

Also, apparently I am a whinybutt.

When Blizzard released WoW in late 2004, Donnelly became an avid player of WoW. Like many others who play WoW, Donnelly became frustrated with the amount of time it took to advance his character in WoW. Inspired by his desire to advance his character‘s level to the same level several of his friends had reached, Donnelly searched online for any available programs that would help him speed up the time it took to level his character up to where his friends were. After searching and being unsuccessful in locating a software program to meet his needs, Donnelly decided to write software code to assist him in catching up with his friends in the game without having to be physically playing WoW. Between March 2005 and May, 2005, Donnelly developed a software program that became known as WoWGlider (“Glider”)…

…MDY has only marketed the game as an alternate method to reduce the time it takes to level a character to 60 or 70. Although a person can use Glider (inefficiently) as a tool to help WoW licensees to “farm gold” within the WoW game, MDY has never marketed the program for that purpose and actively discourages persons from using Glider as a gold farming tool…

…Although Blizzard‘s acts of detecting Glider and banning Glider users‘ accounts led Donnelly to believe that Blizzard considered Glider an unauthorized third-party software program under its EULA and TOU, Donnelly did not agree with how Blizzard interpreted its agreements. Donnelly believed that Blizzard had no right to control MDY’s efforts to sell Glider because he had no contractual relationship with Blizzard. In addition, Blizzard‘s EULA did not originally prohibit “bots.”

Well, since it didn’t say the word “bot” anywhere, it must be OK! Allow Blizzard to retort:

While legitimate players eat, sleep, and attend school or work, MDY’s customers use Glider to shortcut the advancement of their in-game characters and loot scarce game assets. As shown herein, Glider use severely harms he WoW gaming experience for other players by altering the balance of play, disrupting the social and immersive aspects of the game, and undermining the in-game economy…

…Perhaps most significantly, MDY invests great effort to prevent Blizzard from enforcing its rights against Glider users by enabling them to circumvent Blizzard’s technological access controls and conceal their infringements from Blizzard and other players determined to report them. MDY has willfully persisted in this endeavor despite knowing that the overwhelming majority of WoW players despise the presence of Glider bots in WoW, and that Blizzard is being forced to divert significant human and financial resources from game development and support to efforts to stop Glider. Indeed, MDY’s stated goal is to drive up Blizzard’s cost of combating Glider to the point it ultimately abandons efforts to block it, an option that Blizzard’s rule-abiding customers, who have filed over 465,000 formal complaints and voiced their continued displeasure with Glider on Blizzard’s forums, have made clear is unacceptable.

Of special interest is the ‘expert report’ filed in support of Blizzard’s case by Terra Novan Dr. Edward Castronova. He takes the controversial position that cheating is bad.

Glider bots destroy this design, distorting the economy for the average player in two specific ways. When a Glider bot “farms” an area, it picks up not only experience points for its owner, discussed above, but also the “loot” that is dropped by the mobs killed by the bot. Because Glider can run constantly, it kills far more mobs than anticipated by WoW’s designers, thus creating a large surplus of goods and currency, flooding the economy with gold pieces and loot like the Essence of Water. This surplus distorts the economy in a specific way.

When bots gather key resources, they gather them in abundance. Owners of bots usually sell these resources to other players for gold, which inevitably deflates their price. Blizzard’s design intent is for the resources to command a certain high value, so that average players, who might get one or two of the resources in an average amount of play time, may obtain a decent amount of gold from selling them. But because characters controlled by bots flood the market with those resources, the market value of these resources is far less than Blizzard intended, and the average player realizes only a fraction of the intended value from the resources s/he finds. The deflated value of key resources presents a critical problem for ordinary players trying to enjoy the game. Blizzard’s game systems assume that players will be earning a certain amount of gold per hour, and many systems, such as repairs and travel, force players to make fixed payments of gold into WoW’s systems. Buying a horse, for example, costs a certain amount of gold. That pnce IS set by the game designers based on the assumption that normal players will accumulate gold at a certain rate, and that some of their gold will come from the value of resources that they harvest and sell. When the value of those resources plummets because of Glider, the amount of time it takes to accumulate the gold required for in-game expenditures like the horse skyrockets. This skews the economy, frustrates players, and, as a result of a less-satisfied user base, damages Blizzard.

So, it probably comes as no surprise that I come down on Blizzard’s side in all this, being that I work on MMOs, dislike cheating, and all that entails. Still, no matter which way the rulings go in this case, the repercussions are going to be interesting:

• WowGlider/MDY is arguing, essentially, that they have a right to run a business based on third party tools for automating World of Warcraft because the EULA didn’t expressly forbid it, and anyway, who reads EULAs, ya know? It’s just another form of playing the game. Also, Blizzard’s a bunch of Nazis who came knocking on a poor bot writer’s door. With lawyers. (For some reason, I don’t see this argument holding a lot of water in court, but who knows.) So if MDY’s case is taken as written, we’ll have legal precedent that botting is an accepted part of MMO play. Also, EULAs will suffer a serious challenge. This will result in, to put it mildly, quite a few more court cases (“Were YOU banned for gold farming? Take it to court!”)
• Blizzard is arguing that WowGlider harms the gameplay of WoW players, is explicity forbidden in the clickthrough TOS/EULA, and thus they have a right and duty to stop WowGlider and similar programs by any means necessary, up to and including polymorphic rootkit-style access control programs and lawyering bot writers TO DEATH. If Blizzard gets a ruling in their favor, that will give them a strong leg to stand on vs. other legal challenges to Warden, their EULA, and will also have a precedent vs. botting/exploiting on the books.

I strongly suspect that, like most lawsuits, this will eventually settle out of court. But even if it doesn’t, we certainly live in interesting times when a game design discussion doc ends up as a court filing.

Paperwork for your own backyard unfrozen caveman lawyering:

MDY’s Motion for Summary Judgment (MDY v Blizzard)
MDY’s Statement of Facts (MDY v Blizzard)
Blizzard’s Motion for Summary Judgement (MDY v Blizzard)
Blizzard’s Statement of Facts (MDY v Blizzard)
Effects of Botting on World of Warcraft, Edward Castronova, PhD. (MDY v Blizzard)