Here come de judge, here come de judge, order in the courtroom, here come de judge

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Today’s not-so-mysterious guest columnist is James Dunstan, attorney-at-law and total geek like us.  He and I went to law school together and unfortunately, the pull of the dark side was too much for him.  Luckily though, he has maintained a sense of humor, love for gaming and has been involved in both my previous companies (AUSI & Mythic) from day one.  He has spent more than 25 years providing legal services to high technology, communications, and computer game law clients. He has been involved in almost every aspect of the digital revolution, from representing the true “fathers” of the Internet, to cable, telecommunication and media giants, to assisting computer game startups mature to profitable enterprises.  Jim has been an active “coder” since the early 1980s when he wrote computer games while in law school. Among the titles he’s provided most of the coding for include Lunar Eclipse Software’s “Return to the Moon” and “Mission: Planet Earth,” as well as writing the motion code for the first PC-based motionbased video arcade game, New Luna’s “Lunar Defense.”  He is the founder of Mobius Legal Group and he can be contacted at jdunstan@mobiuslegal.com.

So, without further ado, I present:

Warning: Do Not Use This MMO To Trim Your Hedge, And Other Happenings In CyberLaw – By James Dunstan

While the dog days of summer come to an end and we look forward to Fall’s changing colors, courts haven’t taken a lot of vacations. Two important decisions came down during August that remind us again that the real world can be a silly place to live.

We begin with the case of Craig Smallwood versus NCSoft. It seems that Mr. Smallwood launched a lawsuit in late 2009 in Hawaii, after his Lineage II accounts were banned. He accused NCSoft of all manner of heinous acts, including taking his money, not conducting a “fair and square” game, not uniformly enforcing its no botting and no gold farming rules, and the one that has hit the blogosphere, not warning him that Lineage II can be addictive. In short, a disgruntled subscriber run amok. The judge threw out the case once, but because he was proceeding pro se (without benefit of an attorney), the judge allowed him to amend his complaint. He refiled, this time doing a much better job, too good a job in fact, as NCSoft argued that the amended complaint had been ghostwritten by a lawyer, who actually showed up at the hearing. The judge agreed, smacked the lawyer, and then moved on to discuss the merits of the case.

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.

For those of you who have heard me speak at various industry conferences know how hard I stress the importance of crafting an enforceable EULA. My 2007 LOGIN presentation “It’s All in the EULA” stemmed from the 2003 case Black Snow Enterprises v. Mythic Entertainment, the first virtual property case that I litigated. There, all plaintiff’s claims against Mythic’s Dark Age of Camelot were short-circuited when the judge agreed that the EULA was enforceable, and we were able to dismiss the case and turn it over to arbitration. Faced with very clear language in the EULA that banned all forms of gold farming and item selling, the case evaporated in a heartbeat. While my “stock” EULA does not use the term “addictive,” it has clear language urging players to take frequent breaks from the game, and that prolonged playing may trigger all manner of ills, including triggering dormant photosensitivity and halitosis (ok, maybe not halitosis). Depending on how good NCSoft’s EULA is (I haven’t gone back to read it, so it may or may not be fully enforceable), chances are Mr. Smallwood now faces a similar fate. While others in the blogosphere may scream about the silliness of placing these types of warnings on games (hence the apocryphal reference to warning labels on lawn mowers to not use them as hedge trimmers), I urge all game designers to spend the time and legal budget to craft a EULA that protects themselves against frivolous claims.

Our second summer reading exercise comes to us from Mississippi, where local television anchor Toni Miles sued Raycom Media, her former employer and owner of WLOX in Biloxi. Her claim was that Raycom was guilty of “cyber libel” for allowing viewers of its website to post comments in response to an article reporting that Ms. Miles was arrested for cocaine possession. The judge found that the article itself was true (she was arrested but the charges were later dropped), and that Raycom was protected by the Communications Decency Act (CDA) as a web publisher from libel allegations related to the posts by readers. This is another huge win in a line of cases where courts have applied this immunity to websites that host third party forums. Those who lose sleep at night wondering if all the flame wars conducted in their user forums can come back to bite them can sleep a little easier.

Now, before folks start flaming Mr. Smallwood about his suit against NCSoft after reading the paragraph above, do remember that the CDA does not protect individual posters against libel. You may have to answer to Mr. Smallwood and Casper the Friendly Ghostlawyer.

James Dunstan

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So, thanks to Jim for this guest column.  Opinions expressed by my guest columnist are theirs alone and if you have any questions feel free to comment on this post or look it up in your Funk and Wagnalls.

Mark

Thank you – Bite sized, chunky peanut butter version

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Assorted thank yous, bite-size and gathered together for tasty goodness.

Mike Crossmire – Mike was a friend of mine before he worked a day for me at Mythic.  Mike was one of the earliest members of Old Mythic (pre-DAoC) and I’ve known him forever.  Mike is a very talented artist, a hard and loyal worker and somebody who doesn’t come into work with an agenda other than helping to make great art.  Well, other than trying desperately to survive in the lan-based shooters we played at OM, when Brian “The Assassin” Axelson would frag poor Mike repeatedly and the howls would shake the building.  So, unless a team needs a talented artist who is also a killer at the latest and greatest FPS, Mike would be a great fit. And even if being that good at an FPS is a requirement, Mike is worth an exception. 🙂

Scott Jennings – We hired Scott at the perfect time.  He really needed a job and we really needed a DB programmer who could code fast, code well, code cheap and who wanted to take a chance with a small barely funded team in Fairfax Virginia.  He came in, saved our bacon (on more than one occasion) and I was proud that I hired him.  Over the years we have certainly have at times wanted to express our opinions of what the other was doing rather, ahem, forcefully but he really came through for us when we needed him so many years ago.  Much kudos to him for that.

Mark Gagne – After we did the deal with TA Associates, Mark came on-board as our CFO (the first true CFO we ever had).  Even though he came in through TA (which of course made us sort of suspicious), Mark (and TA) proved that he was there for one reason only, to help us become a better company.  I’m proud to say that I also considered Mark a friend and he did a heck of a job for us over the years.  After the EA acquisition his job was done and he started his own company.  He’s a very smart and talented guy and I still miss going out to lunch with him and talking sports and life (he was a die-hard Red Sox fan but nobody’s perfect).

TA Associates – After the success of DAoC, a number of VCs wanted a piece of Mythic as they loved the subscriber model and our ability to do a MMORPG for only 2.5M.  TA was the best fit of any of those companies so we did a $32M deal with them.  They got seats on our board and I got to know two of their people very well, John Meeks and Bruce Johnston.  While investor/developer relations are never perfect, they were as good as their word when it came to their promise not to interfere in Mythic’s operations.  They are a bright bunch and I learned many things from them.

Missy Castro – Missy was one of the first artists we hired and was part of the Old Mythic crew.  She was (and I assume still is) talented, a fast worker and one of those people who is a joy to have in an office.  She also had a really great dog who she would bring into the office.  When she had to move (though for a happy reason) it was a sad day for me and everyone else at Mythic.

Richard Aihoshi – ‘Jonric’ – I’ve known a lot of writers/journalists over the years and I always considered Richard one of the best in the industry.  Not only was he a great writer but Richard always treated us professionally and fairly.  By this I mean that he didn’t look to score points by being a jackass while at the same time, he was also willing to speak critically about our games.  One of the other things about Richard was that he never, ever broke an embargo (when journalists are shown things before they are ready for release at shows like E3, promo events, etc.) and when we spoke  off the record about things, he never used any of those discussions in any way for his (or our) advantage.  On a personal level, he is also a great guy and one of those people I looked forward to getting together with at E3, Mythic, etc.  I definitely miss getting together with him.

Mark

Squish

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So, I had another piece almost ready to go up when in came this email:

[Mark,

It’s good to see you back. I was wondering how you were doing since you fell off the radar. I’ve always loved how involved you were with the community, but at times I wondered – were you TOO involved? One thing Blizzard does well is make you feel like you are yelling into an abyss. People don’t really know where to direct their anger there. I kind of felt like you stepped into the line of fire unnecessarily. At least your CMs can honestly say, “It’s not my fault!” and people will agree. I think it will be better for your health in any future endeavors LOL

Kind words for me removed for brevity’s sake.

All The Best,

Aikau]

And this got me to thinking whether Aikau was right or not.  Now, Aikau isn’t the first person in the world to tell me the EXACT SAME THING but my response was usually either “But if I jump in I can talk about things that the CM can’t and quickly calm things down” or “I don’t want my CMs taking abuse.” I do think that what Aikau says is absolutely correct at some level, I do know that by being there I both put myself in the cross-hairs and that my presence, at times, made things worse.  I do also know that the opposite is true as well and for extra goodness, I also know that early in the development process by talking to the general player base that I helped build a fairly large number of people wherever I spent a lot of time talking about the game(s).  We’ve seen the same sort of phenomenon with sites like Myspace, Facebook,etc. for other people in different industries as well.   What I need to figure out was which was the better system for my company, my enjoyment and of course, my stress levels/quality of life/etc.

Over the years (and especially over the last 15 months), I’ve looked at issues like this one to see where I made mistakes and how I should avoid making them going forward.  While I have figured out a lot of things, this is one issue I’m still not sure which is the right way to go (and some people I have talked to have, of course, completely different opinions).  While there might be a middle ground, anytime I think of trying to walk down the middle of a path, the wisdom of Mr. Miyagi comes to mind “Walk on road, hm? Walk left side, safe. Walk right side, safe. Walk middle, sooner or later… get squish just like grape.”  OTOH, maybe you get squished anyway no matter where you walk?  Maybe there really is a truly no-win scenario. Sorry, just watched Star Trek last night for like the 12th time, I love that movie. 🙂

No matter what though, thanks for the note Aikau, it is certainly something to continue thinking about, a lot.

Mark

Sunday, Sunday, Sunday – August 29th

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As usual for this Sunday feature, a whole bunch of quick thoughts:

1) The J-E-T-S are not looking good right now.  A really disappointing showing against the ‘Skins, Calvin Pace hurt (and it looks like a minimum of 4 weeks according to published reports) and his replacement, Jason Taylor, taking more contact in Dancing With The Stars than he has had in the preseason.   Not what RR wanted to see from his team, I’m sure (this week’s episode of Hard Knocks should be full of more colorful language I’m sure).  OTOH, still no reason to push the panic button but not a great way to essentially end the preseason.  I’m hoping that when the season starts the offense (once it starts using its real game plan) will step up and the defense’s prodigal son will return.

2) The Jets cut Laveranues Coles today.  When they drafted him it was considered by many to be a controversial pick as he had some issues in college.  Once he got to the pros, he was a hell of a football player, a great teammate (by all accounts) and a standup guy.  Smart pick, smart guy and if his career is really over (and I hope it’s not and that the Jets pick him up after the season starts), a most excellent career.  Best of luck to him.

3) I’m intrigued to see how Guild Wars 2 Dynamic Event System works.  I’ve seen some stuff on the ‘Net where people have said it is just Public Quests renamed or just improved upon and the GW2 guys have been criticized by some people.  In interviews I did regarding PQs during WAR’s development, I said I expected it to be one of the most important features in WAR and I also expected it to be used/improved on by developers more than any other feature of the game.  All of our games are derivative from what went before us at some level anyway, so if other devs use and improve upon PQs, fabulous.  If the DES is derived in any way from PQs, I’m thrilled and I hope more devs use PQ/DES/etc. going forward.  If it isn’t derived from PQs, that’s great too and I hope it brings a new element to the MMO periodic table.  Gaming (MMO or otherwise) needs all the innovation it can get so wherever it comes from, I hope it works out great for them.

4) Here’s to GW2 and Final Fantasy XIV both being smash hits.  The MMO industry (and especially PC gaming) could use some good news other than Cataclysm (which will sell a ton of copies obviously).  Hopefully there will be some real spacing between the release of these titles otherwise, well, it will be interesting to see what happens.

5) What an awful summer movie season it has been.  I go to the movies a lot but this summer there seemed to be far fewer interesting/enjoyable movies to see.  Hopefully the Fall/Winter season will have some surprise hits and the big films that are scheduled to be released then won’t disappoint.

6) More pain resulting from the NYC WTC mosque controversy with a recent stabbing and destruction of property inside a mosque.  What didn’t get enough attention, at least on the national level, is how long it has taken all the parties involved to agree what to do with the WTC site itself.  The NY papers have taken the usual suspects to task over it as the years have gone by but the fact that it took almost ten years to get something moving there is ridiculous (story here).  Now even though it seems everyone is in agreement, the real question is how long will it take to get done.  At the pace they are going we may have flown to Mars and back by the time the new WTC site is finished.  I’m reminded of the wonderful, though historically inaccurate, portrayal of the NY legislature in the play/film 1776.  The delegate from NY were always abstaining because, according to the film, that in the New York legislature “They speak very fast and very loud, and nobody listens to anybody else, with the result that nothing ever gets done.”  Ten years, unbelievable.

Mark

Thank you to my friends/foes/etc. at the IGN Vault

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Well, I’m pretty sure that the title of this post will surprise some people but hey, what the heck, I’ve wanted to say some things for quite a while and now I can (well pretty much anyway). Over the past decade, I have spent a considerable amount of time at the IGN Vault listening, talking and having tons of rotten fruit thrown my way there. To say it has been a love/hate relationship is a great understatement but there are a few things I would to make clear:

1) The guys there have at times, been truly important to both DAoC and WAR. One of the reasons I decided to go back to the Vault during the development of WAR was that I believed the Vault had a lot of players who would end up being better testers than any QA team we could hire (internal or external).  With so many of them truly caring so much about games, I believed they could really contribute to WAR on an ongoing basis. While its role in DAoC was also to help create buzz for the game (as well as feedback), by the time we went back to the Vault for WAR the buzz was building nicely and we had lots of other ways to promote the game.

2) During the WAR days, I wish I could tell you how many conversations I had with the team at Mythic that went like this:

Me: The guys on the Vault said XXXX
Team: That’s impossible.
Me: Check it out anyway (sometimes there was an intermediate step of denial/wait for another report)
Team: Okay but…
Hours/days later, the majority of time what was said there turned out to be true.

Whether it was crash bugs, design problems, leveling curves, balance issues, etc. so much good stuff came out of the Vault that I lost my temper a few times with my people (I wasn’t a joy to be around when certain things posted on the Vault turned out true contrary to our internal tests). This wasn’t because my team wasn’t good at their jobs (even good people make mistakes and tools made by people are fallible), it was because the Vault had people who were not only really, really good at playing games (and had so much experience with MMOs including DAoC) and who were also good at finding issues/bugs but they also put in lots and lots of time in WAR. For WAR, I even had a trusted group of Vault testers who I knew I could count on to tell me the truth and I always relayed what they told me to the team.

3) I loved the passion displayed by the players there. Now, this passion could turn real ugly but during its best days, the forum was filled with people who really wanted the games to succeed and that was great. Even during the ugliest of days, I knew that many of the people who were upset were not upset because they wanted us to fail, it was because they wanted us to succeed and they could see us doing things that would damage our chance to succeed (and if/when I forgot that, during the DAoC days, Sanya was there to remind me). In all fairness though, there were also players there who were pissed because our changes made it harder for them to succeed even when we made things better for the vast majority of people and there also were the guys who were just causing trouble for a variety of reasons.

4) It’s not all love though and I remain steadfast in my belief that people shouldn’t throw nasty words/phrases, threats, accusations, vulgarity, etc. around casually and expect there to be no consequences. The nonsense that Sanya had to put up with during the DAoC days upset me greatly and that’s why I decided to scale back Mythic’s presence from the Vault. She was strong and could take it but I didn’t think it was right/necessary for her to do so any longer (FYI, as I’ve said before, she argued against the move). In hindsight, maybe I should have handled it differently and insisted that the Vault ban lots of posters for the kinds of vulgarity and harassment she had to go through but I didn’t want to do that. I had never asked the guys there to ban anyone and I didn’t want to set that precedent. I too was bothered by the hate, threats, etc. directed to myself (or my family) by a minority of posters. Maybe my skin should have been thicker and I shouldn’t let anything said bother me but I’ve never claimed perfection and never will. And like some of the people there who I have spoken to over the years, I too said a few things in anger that I shouldn’t have. Like I said, nobody is perfect.

5) When I first posted this entry I forgot to mention the moderators at the Vault so I am now correcting that oversight.  While we didn’t always agree on things either, they tried very hard to do their jobs and walk a very fine line at the same time.  I appreciate their efforts as both players of DAoC/WAR and as members of the IGN Vault.  They also cared about the game and their IGN community, not an easy and very rarely appreciated job.

So, to all the inhabitants of the Vault who contributed so much to DAoC and WAR, thank you very much. I truly do appreciate it.

Mark

P.S. I don’t expect this post to change a single thing if I ever reappear there. This is something I have wanted to get off my chest for a while and that’s good enough for me. 🙂

Update: I wanted to make a couple of quick corrections and an additional clarification or two. Also, I wanted to say  (since I got an email on the subject) please don’t ask me what things I am referring to in terms of bugs/issues found from the Vault folks, I’m not saying anything other than sometimes they were big things and sometimes they were small things and many times they were things that were sent to me privately in email by either the trusted player-testers and/or simply players.

Update #2: Added the bit about the Vault moderators.

Fan Mail From Some Flounder

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Well, time to fire up another R&B special feature, Fan Mail from Some Flounder.

Jeremy writes  “Wow…Mary Kate and Ashley Online? Sometimes I wonder what goes through peoples heads. Not only would it have been a bane on the mmo industry as a whole, I cant even begin to imagine the fallout after people realized it would have been a candy store for sexual predators. That aside, I’m SO glad you helped talk them out of that. No one would have ever taken MMOs seriously at that point. Side note: Welcome Back Mr. Jacobs. I look forward to hearing about your future projects. Glad to see you back in the swing of things.” You nailed it in one my man.  The whole “sexual predator” bit was something I brought up to them at the meeting.  As to the side note, well, I’m not back in the swing of things yet (this blog is a just a warm up I hope) but I expect to be.  I ain’t the shy and retiring type.

Robert writes “Marry Kate and Ashely – The MMO!  ROFL!  You should keep track of the moron that thought that was a good idea. Make sure that if he’s gone to another company, and has been put into a position of power, that you avoid that company like the plague!” LOL, I don’t need to do that, the “old” Acclaim went bankrupt and as far as I know, the guys who wanted us to do MKAO are no longer in the industry.  Unfortunately, they took a lot of jobs with them when they imploded.

James writes “I hope subscriptions in mmo’s aren’t dead. I really don’t like the micro transactions. The trends I am starting to see in mmo’s as player is adding more linear flow to them like a single player rpg’s and a move to low the difficulty so everyone can play. I personally can’t say I like either but oh well.” I truly don’t think that sub games are dead but they are not the “Take cash, add team, bake in oven, release game and make GIANT BAGS OF PHAT LOOT” that some investors thought that they were (and some think social networking games are now).  A few years ago I sat on a panel where I argued that RMT games weren’t the future any more than subscription games weren’t the future, there’s room for all types of games and there isn’t a silver bullet out there.  I hate silver bullets (unless you are killing werewolves) and I always get a chuckle out of people who think that the “Next Big Thing” will be the “Ultimate Big Thing”. That’s one advantage of having been around the block a few times, you’ve seen and heard this type of stuff many times before.

Alexis Muhly writes “I still get teary eyed when I think about all the good times I had playing Island of Kesmai via Compuserve on my Apple //c over 1200 baud at $6/hr. My first introduction to the world of MMORPG’s(well not so massively but still). I wonder what happened to Snafu? Probably the first real online addict lol. I was a total AW junkie myself. I played some of the other games too but Kesmai really had their mojo going great guns back in the early days. And when you consider the hoops we had to jump through to make a game work on those services (and from what I was told, CServe was even tougher to write games for than GEnie), man oh man, it’s a miracle that anything got done.

Silverel writes “Oh you beautiful genius of a man. Looking forward to following your blog for any bits of wisdom and inspiration that fall upon your path. Mythic is a win in my book under your leadership and it really is their loss that you’ve been thrown under the bus. Kudos sir, I wish you the best and thank you for all you’ve brought the MMO community.” As to being thrown under the bus, obviously I have no comment on that other than to thank you for the kind thoughts about myself and Mythic. We did some pretty great stuff together over the years but one of the things I am proud of is that we never did anything with malice aforethought. Stupid, yes, epically STOOPID, yes but never out of malice towards the players. And as always, success or failure depends on many people getting things right or even getting things wrong and it was always a team effort at Mythic. Like anyone involved in the creative process especially as CEO/GM, I made a lot of choices. Some of my choices/design elements worked, some didn’t but as anybody who worked on DAoC/WAR can tell you, lots of creative/design authority was delegated to a wide range of people as it is in every MMO. It’s why I’ve never taken all the credit for DAoC/WAR and never will (even if I do another MMO) but it’s also why I never have thrown any of my guys/gals under the bus publicly, even when they screwed up truly epically. I’d rather the community hate on me, blame me for every bug, bad design choice, coding error, poor communication, etc. than some team member(s) who was trying to do the best they could but still screwed up. That’s actually one of the few good things about no longer being at Mythic, I don’t have to be mocked, screamed at, etc. when I tell something to the community that was told to me and then it turns out to be wrong. Makes things a lot more relaxing to be me or to be around me. 🙂

TWM – The Mother of All Bad Ideas!

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It’s late 1999, money is running out fast and we’re scrambling to find a development deal or sell the studio.  We entertained a few offers one of which was from old Acclaim.  During our many discussions with their leadership, we talked about the kind of games we could do for them.  I pushed hard on doing online games (including variants on our current games such as Silent Death Online) and even MMOs.  Unfortunately, their CEO didn’t think much of SDO and even went as far as to say “Why would we want to do that, we were making those type of games 10 years ago?”  I pointed out that as far I knew Acclaim wasn’t making online games that long ago (I don’t think he enjoyed that retort) and also explained how low our budget was for it and all but one of our other games (our highest budget prior to DAoC was 450K for Aliens Online (with an essentially an expansion) with the rest being well below 100K). They listened politely to what I said and replied “But We have a better idea!” Expecting a merely bad idea to come out of their mouths, I told myself no matter what they say, don’t be an ass**** when I respond.  “Let’s do an online game” they said “based on Mary Kate and Ashley. Now, that would be great!” They told us how hot they were commercially and that we could make a ton of money if we could do an online game/MMO based on them.  At that moment all sorts of thoughts went through my head.  Is this a sign of the coming apocalypse in 2000 perhaps? How bad would it really be to go back and work in fast food?  What constitutes justifiable homicide?  Which countries don’t have extradition treaties for capital crimes with the US?  However, we needed a deal desperately so I politely pointed out what that would be a bad idea and why MMOs like EQ would be a much better idea.  They didn’t agree but we continued to talk about other, smaller budget games going forward.  Like the vast majority of publishers, they didn’t believe that there was much future in those MMO things.  After many months of negotiations I desperately wanted to walk away from the deal.  Truth is I didn’t trust them at all and the deal terms weren’t all that exciting.  IMHO, I’d rather go belly up than take a bad deal especially since we would have to stay and work for them.  So, we walked away and a couple of months later we did the deal with Abandon for DAoC, things could not have worked out better for us and the world was saved from perhaps one of the worst ideas for an MMO EVER.

Mark

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