I don’t play EVE, but I have been following the developing story of Erotica 1 (E1) with a particular interest this past week. The drama itself is interesting enough, but the entire episode asks a lot of compelling questions on the nature of games, social interactions outside of the game but still concerning the game, and the role (if any) of the developers.
EVE, as you might already know, is just about the most hand-off MMO on the market. Scams, extortion, and piracy are not only allowed, they are encouraged. “Be the villain,” and all that. One such scammer took things to another level though. Basically, the deal was that E1 ran an ISK-doubling scam that actually did pay out occasionally, such that it was ambiguous as to whether you could make a bunch of money. After passing the first tests, there was a “Bonus Room” in which you could quintuple your winnings again. The catch? You had to hand over 100% of your in-game assets and then jump onto a Teamspeak server for hours (!) of recorded humiliation.
You can read the full breakdown of what transpired in this particular Bonus Room on Jester’s Trek. In fact, the two hour, seventeen minute SoundCloud file is also linked. The victim has a speech impediment which is fully exploited, and when he finally snaps, E1 and his crew drive the victim’s wife (who showed up to ask what was going on) into a panic attack.
I doubt this is what CCP envisioned with their “EVE is real” campaign.
The reactions to this incident have ran the gamut. I was first made aware of it at all by this post on Greedy Goblin. Gevlon’s take? I’ll give you three guesses and the first two don’t count. Spoiler: Gevlon blames the victim. And in a certain light, it is something you can almost get behind – why didn’t the guy just turn the computer off? Well, for one thing, he had already given away 100% of his in-game assets at that point. And for another, it doesn’t fucking matter. The only truly relevant point (for CCP) is whether or not someone like E1 is worth having in your game.
And indeed, CCP, perhaps finally realizing the potential media shitstorm brewing, came out and issued a statement:
While the content of online interactions between players cannot realistically be gated within our game worlds, CCP strongly disapproves of clear and extraordinary levels of real life harassment against our players in the outside world.
CCP, in collaboration with the CSM, have agreed and would like to state in the strongest possible terms and in accordance with our existing Terms of Service and End User License Agreement, that real life harassment is morally reprehensible, and verifiable examples of such behavior will be met with disciplinary action against game accounts in accordance with our Terms of Service.
While they didn’t announce anything specific, we know from other sources that E1 was permanently banned. I don’t actually recommend going to that second link there unless you’re a fan of sadism, or want to see a rather frightening example of the sort of players EVE’s mostly hands-off policy attracts.
Still, I feel like there were some arguments surrounding this incident worth deconstructing. Gevlon and a lot of other commenters argue that this issue could be solved by not falling for the scam in the first place. Plus, they argue, what’s really the difference between a prank and a bully? Given how tomorrow is April Fools Day, it’s even somewhat topical.
My response would be: there really isn’t one. The difference between assault and a scuffle is someone filing a police report. The prank example that was offered was blocking someone’s door with phone books. Prank or bully? That’s two different questions. First, it’s entirely reasonable to suggest it wasn’t a prank at all, but rather harassment – again, with the difference being simply the victim’s decision. As to whether someone is a bully for doing that depends on their intentions. We can imagine a scenario in which a guy constantly “pranks” people who shrug it off when, in fact, he derives pleasure from the misery he creates. As I mentioned in the comments on his post, someone is a liar regardless of whether anyone believes them.¹
Gevlon then claims that we cannot prosecute people like E1 with intention-based arguments because no one can prove intention. Except the courts do it all the time via mens rea. There is a rather instructive scenario outlined in a related Wiki article:
For example, suppose that A, a jealous wife, discovers that her husband is having a sexual affair with B. Wishing only to drive B away from the neighbourhood, she goes to B’s house one night, pours petrol on and sets fire to the front door. B dies in the resulting fire. A is shocked and horrified. It did not occur to her that B might be physically in danger and there was no conscious plan in her mind to injure B when the fire began. But when A’s behaviour is analysed, B’s death must be intentional. If A had genuinely wished to avoid any possibility of injury to B, she would not have started the fire. Or, if verbally warning B to leave was not an option, she should have waited until B was seen to leave the house before starting the fire. As it was, she waited until night when it was more likely that B would be at home and there would be fewer people around to raise the alarm.
The Bonus Round victim could have turned off the computer at any time. So too could E1. And this is besides the point that there isn’t a jury in the world that would say the outcome was not exactly what E1 and company were intending to occur.
Where things get really amusing is when people argue that E1 can’t get punished because it’s not against the EULA. Except the EULA includes the ToS, of which the very first goddamn entry might be instructive. Or that E1 shouldn’t get punished because it sets a “chilling precedent.” Or the line is too ambiguous, as Gevlon states. Or it somehow would obligate CCP to start banning all such offenders. Or that it opens the doors to nefarious individuals impersonating people and getting others banned. And a number of similar armchair philosopher attempts at rules lawyering.
That sort of nonsense might work on religions and in college electives, but it doesn’t pass muster in the real world. Items #25 and #26 in the ToS give CCP carte blanche to permaban anyone for any reason. Arguments towards precedent and a nebulous obligation to do a full crusade sort of remind me of the Buridan’s ass paradox. On paper, it “makes sense” that a donkey inbetween two equally distant piles of food would starve to death because it can’t decide between them. In the actual real world, people have the ability to make arbitrary decisions and judgment calls. Just because E1 is banned does not necessarily mean CCP has to, by some mysterious logical mechanism, ban the EVE guild that threatens to blow your ship up unless you sing to them on their chat channel. So very few people understand the Slippery Slope is actually a fallacy; it’s entirely possibly to (subjectively!) determine that one is a more egregious example than the other and stop on the slope.
Then again, hey, that singing extortion thing is pretty fucking weird and exploitative and maybe they shouldn’t be doing that either. If these are the sort of examples people point to concerning how “EVE is real,” perhaps it’s time to re-examine whether that tagline actually relates a positive quality. We don’t have to abandon every game in which someone’s feelings might get hurt, but how about we aim for, as Jester points out, the ballpark figure of “your mother can listen to this without thinking you’re a psychopath.”
¹ Gevlon’s counter-argument to this is that a liar no one believes is an actor or comedian. Err… no. Those professions do not rely on untruth to scam or exploit out of wealth, power, or security; the intent is to amuse, surprise, and entertain. It’s a nonsensical argument akin to suggesting a torturer and a dentist are similar because they both hurt you.
(This is followup to my In Defense of Used Games post.)
I believe that eventually we will see the resell of game licenses. Given how our present trajectory is clearly in favor of restrictive limited licenses, games-as-services, and exclusive accounts everywhere, from whence does this optimism spring? Basically, it springs from what I imagine to be an inevitable reconciliation between what is legal and what consumers see as reasonable and/or how they play games in the real world.
I am going to divide this model into roughly two parts: the Practical and the Legal.
The Practical Disconnect
There is an incredible disconnect between what companies write in their ToS/EULAs and how people actually use the products in question. In fact, even the question of what amounts to game piracy is not as clear-cut as you might think. If you download the Tomb Raider reboot off of Pirate Bay, that is clearly piracy, sure. But suppose you let your little brother play the copy that you legally purchased. Is that piracy? Instead of it being a family member, suppose you let a friend come over and play it. Is that (still) piracy? What if you let a complete stranger play your copy of the game?
Now suppose this copy of Tomb Raider in question was purchased on Steam. Does that change anything at the family/friend/stranger level? It does:
“When you complete Steam’s registration process, you create a Steam account (“Account”). Your Account may also include billing information you provide to Valve for the purchase of Subscriptions. You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal, share or otherwise allow others to use your password or Account. You agree that you are personally responsible for the use of your password and Account and for all of the communication and activity on Steam that results from use of your login name and password. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any Subscriptions other than if and as expressly permitted by this Agreement (including any Subscription Terms or Rules of Use).”
In our all-digital future, everything is tied to accounts. Ostensively, account-sharing is a bannable offense. In fact, if Valve suspects you shared or sold a given Steam account, it will ban all accounts in your possession, even if nothing untoward was happening in the others. And yet the problem with account-sharing is that it shouldn’t actually be any company’s business who is sitting in the chair, behind the keyboard/controller. I mean, it is technically their business – because they say it is – but it shouldn’t be.
I am not playing WoW right now, despite having multiple level-capped characters and a large sum of gold doing no good to anyone. If I resubscribed and started playing again, Blizzard would be happy. If I resubscribed and let a friend play my character, Blizzard would still be happy… up until the moment they realized what I was doing. But provided we did not alternate log-ins from multiple IP addresses or whatever, there is really no way for Blizzard to tell the difference between us. And yet that is “illegal.” Why? Because presumably the threat of account closure is supposed to induce the friend to purchase their own account/expansions/etc and work their way from scratch.
If letting friends and family members play your games does not count as piracy, neither should letting them log onto your account(s). Indeed, the only way the company would be able to ascertain a difference between users is with intrusive biometric privacy measures like… an always-on IR camera powerful enough to measure your heart rate via body heat to ensure only the True Owner ™ utilizes the account. Otherwise, these measures simply fail unless you attempt to log in from two places simultaneously. These companies are writing rules and contractual terms they have no means of enforcing outside the most heinous of nightmare scenarios. Or, I guess the Honor System.
Perhaps you do believe that your little brother playing your copy of Tomb Raider counts as piracy. In which case I have two questions: 1) why haven’t you turned yourself in, and 2) how far does that really go? Is it piracy for him to watch you play? Or is the crime committed only when he touches the controller? What if it is a strategy game in which he tells you what moves to make, and you simply act as his inputs? Still probably worth a $150,000 fine, wouldn’t you agree?
If companies could go this far, they would. That is the copyright endgame: the limitation of the experience to a single, paying mind. Thankfully, they lack the ability to dictate what happens in the privacy of our homes. Except, you know, for all the times that they can.
The Legal Aspect
“Notably, the ReDigi case turned in large part on the same phrase at issue in Kirtsaeng—whether the copies at issue were “lawfully made” under [the Copyright Act]. In ReDigi, the court held they were not. “The first sale doctrine does not protect ReDigi’s distribution of Capitol’s copyrighted works,” Sullivan held, because the files at issue are “unlawful reproductions” and therefore not “lawfully made.” And, also like Kirtsaeng, the court said the proper venue to decide the core issue—whether buyers of digital products can resell them—is Congress.
“ReDigi effectively requests that the Court amend the [the Copyright Act] to achieve ReDigi’s broader policy goals—goals that happen to advance ReDigi’s economic interests,” Sullivan observed, adding that “amendment of the Copyright Act in line with ReDigi’s proposal is a legislative prerogative that courts are unauthorized and ill-suited to attempt.”
The hinge of the case was that even though ReDigi’s process involved removing the music file from the original computer, technically ReDigi was still “creating” a copy on their own servers by virtue of the transfer process. That was the entire hang-up, or more accurately, the technicality. Even Google tried to get involved in the case by coming to the defense of ReDigi, arguing a judgment against ReDigi “would put the entire cloud computing industry, worth an estimated 41 billion dollars, at risk.”
Incidentally, as pointed out in the concluding paragraphs of the same article:
To make his point, Sullivan stressed that the first sale doctrine does still protect the ability to resell digital music—you can still sell your “computer hard disk, iPod, or other memory device” onto which the file was originally downloaded, he wrote. While conceding that practice might prove to be “onerous,” he suggested there may also be reasons why such “physical limitations” are desirable. “It is left to Congress, and not this Court,” he concluded “to deem them outmoded.”
In other words, you can resell your digital music, as long as you originally downloaded them onto, I dunno, say a $6 MicroSD card. Or a $2-$5 USB stick (which are 1gb in size… Jesus, time flies). Preferably we could cut the bullshit and just print the CD/DVDs ourselves, but I imagine there is no direct-to-CD argument that can be made, else they would have made it.
The salient point here is that the current system is, at best, untenable. As more and more aspects of our lives migrate more fully into the digital realm, Congress will revisit this subject again. Honestly, they really should not have to – it would be better for everyone involved if companies came to this voluntarily. Hell, I have been shitting on the Xbox One pretty often, but Microsoft is apparently putting in a “used digital game” framework, in some murky form or another. It would be the height of irony if Microsoft ended up starting a revolution in the same way that Steam made digital games mainstream. Both Apple and Amazon have patented second-hand digital marketplaces, by the way, but have yet to actually do anything with them.
Some people get the impression that I am anti-IP, or that I am antagonistic to copyright. That is not really the case, although I do believe “life of author + 70 years” is absurd welfare for corporate rent-seekers rather than to the actual benefit of society, e.g. the entire original purpose of copyright. I mean, are there really artists out there that would look at something like Life + 5 years and go “fuck it, I’m not going to bother”? Give me a break.
Anyway, what I desire is for the designers to partner with consumers, for all of us to cooperate for the common good. I don’t like GameStop any more than game designers do – they really are just parasitic middleman – but only one of those two parties actually make efforts to improve consumer surplus, even if it’s just by accident. And if there was any enduring message that came out of the wild internet heyday, it is that you Can’t Stop the Signal. Revenue models are going to have to change, whether you like it or not. If game designers want a piece of the the new paradigm, they have every opportunity to get aboard the train.