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


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

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


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.


Thank you Kesmai, I still miss AW damnit!


Over the years I have thanked the guys at Kesmai for many things.  I thanked them for creating my favorite MOG of all time, Air Warrior (whose three country setup directly led to the decision to create DAoC’s three realm RvR), I thanked them for allowing Mythic and I to be part of Gamestorm, I thanked them for development deals and of course I thanked some of them for the friendships that grew out of a rather inauspicious first meeting.  What I will thank them for now, is on behalf of the entire online games industry (players and companies alike)  because if it wasn’t for them, I doubt that the online game space would be what it is today.

I won’t go into detail about their studio’s development history because that isn’t necessary here.  What is necessary is to remind people that if the guys at Kesmai hadn’t been working so hard on creating the earliest and most successful of online games (they were one of the few companies that even predated me in making pay-for-play online games), I doubt anybody else would have until much later down the road.  At a point in time where almost nobody believed (maybe a handful of people worldwide) in online games, the guys at Kesmai were creating games that were going to influence, teach, train, infect, addict, etc. a generation of gamers (albeit a small group) who would later go on to either create their own games or support the creation of such games.  Now, there were other developers who were around at the same time but Kesmai’s creations had more impact than any other developer based solely on their games’ numbers, presence on multiple networks (Compuserve, GEnie, AOL, etc.) and envelope-pushing features.  And when they came out with their masterpiece, the Air Warrior series , they proved that you could play a 3D flight simulator over very slow dial-up modems and slow networks and it still be a lot of fun.  That technical achievement ranks as one of the most important events in the history of online games.  Yes, it was simplistic by today’s standards but at the time, it was an eye-opening revelation to those who doubted there would be a future for online games.  While the debut and the success of AW didn’t immediately lead to giant sacks of cash pouring into the industry, what it did lead to was that many people began to believe that an interesting future was at hand.

So, thanks to all the many talented and hard-working people at Kesmai, from two of the founders who I got to know well, John Taylor and Kelton Flinn, to guys like Gordon Walton, Jonathan Baron (still miss flying with ya buddy),  Rich Lawrence (who coined the phrase, don’t trust the client software), Jeff Hanna, etc., you also have my thanks.  Kesmai, and its contributions to the industry should never be forgotten and certainly deserve better than this pathetic wikipedia entry (  As I have done so in the past and will do so until I stop talking, I will remind people of what you and the earliest online developers meant to this industry.


Thank you to the Communities, not just the communities



Over the years decades (what a thought), I have always tried to express my appreciation for the support of the Community in my State of the Game/Mea Culpa messages.  While some have thought of it as disingenuous, anyone who worked closely with me at Mythic or back in my AUSI days knows just how much I care about the players who play in and pay for the games I have had a hand in creating.  Publicly I have always talked about the difference between Community and community and even when some communities were mad at me/Mythic, I was always grateful for their support.  While at times I could get frustrated with members of a community  when things got especially personal and nasty (being human and all that), I always remembered that it was the players who make up the Community who were paying to play our games.  Back when I was designing and coding my own games (Galaxy and Aradath) I pioneered the twin concepts of “Suggest and Win” and “Bug Hunt and Win” to reward the community for helping to improve my games.  I knew the importance of doing such things then as I still do to this day.  That being said, it’s a really good time to once again thank you all, especially now when I don’t have a paying/playing Community anymore.

My thanks go out to all the players who have come through the doors of the games I have been privileged to help create over the years.  The run that started with Galaxy and Aradath/Dragon’s Gate, passed through Aliens Online, Silent Death, Godzilla Online and grew to Dark Age of Camelot and ended with WAR was made possible with your support and I’ve never forgotten that and I never will.  I have always been and will always be a believer of not treating the players as nothing more than walking and talking wallets and I have and will always maintain that belief even if/when it comes at a personal cost.

So, a special shout-out to all the communities, fan sites and forums out there whether or not I’ve been roasted, toasted and posted there, you may never know just how important you really were to me and to my games but maybe one day you will.


All Things Must Come to an End


After 15 years of leading Mythic Entertainment, my time with the studio (and EA of course) I co-founded with Rob Denton has come to an end.  Early in May, Electronic Arts let me know that they wanted to make some changes within the Games Label and as a result of those changes I have been out of the office (and out of touch with the team, game, etc.) since that day.  So, please accept my apologies if you have tried to reach me over the last couple of months but please know I wasn’t ignoring you. Well, unless you were a gold seller making me an offer I couldn’t refuse in which case my email automatically deletes your message (would be nice if it could do that wouldn’t it?).

To describe these past two months as difficult would be a great understatement as change is almost never easy.  I have helped shepherd Mythic through good times and bad, through near bankruptcy and through our many successes.  During my tenure there my duties have run the gamut from being CEO/GM to doing some of our legal work to acting as lead designer and even using my personal credit cards/credit to pay for the phones we used when we launched DAoC back in 2001.  While I will miss doing those things (well, some of them anyway) for the studio, what I will really miss are the people at Mythic.  While some of the team has changed over the years, we have always had a great team at Mythic and seeing, talking, protecting and sharing with that team is what I will both treasure and miss the most.  Mythic is, as always, more than simply the senior leadership there, it is the programmers, artists, designers, marketing, IT, operations, facilities, finance, community management, HR, customer service, quality assurance, etc. who make Mythic what is was and is today.  It is those people, most of whom whose efforts aren’t usually publicly recognized, that deserve so much credit for the success of DAoC and Warhammer.  I wish that team nothing but the best of fortune going forward as my respect and love for them runs deep and I hope, is well known by them.  I will never forget the effort made by those teammates during both the development of DAoC and Warhammer.  Whether it was the extra late night and/or weekend efforts or simply the passion so many of you showed for our games, your level of commitment is something I will never forget.  I will have a lot more to say about this over the next few weeks and I will try, and I’m sure fail, to adequately express my thanks and deepest gratitude to many of the team members. While I always tried to show my gratitude either through the tools available to me as CEO of Mythic or GM of EA Mythic as well as with some personal touches, I will never be able to thank you enough.

Over the next few weeks I will be using this blog to thank certain people and companies for their efforts over the years.  There will be a lot of praise, a couple of mea culpas (I wouldn’t be me if I didn’t deliver some of those) and maybe a couple of surprise shout outs.  So, I expect this space to be pretty busy for a while.  However, if you are looking or expecting me to damn EA or anyone there, you will be sorely disappointed.  Over my 23 years of making games professionally I have refrained from attacking the competition, former and/or current partners, other game developers, etc. except on a few very rare instances.  I have no intention of breaking with tradition at the present time and I hope my track record in this regard remains unchanged for the rest of my career.  During my time at EA I was privileged to get to know a number of very fine professionals and I have some fond memories of working with them.  As always EA has my thanks for their interest in acquiring Mythic and in supporting the development of Warhammer.

For those looking to contact me, the best way to reach me currently is through Facebook.  So, friend me there but if I don’t know your name, please enclose some details in your friend request as a courtesy.


Fan Mail From Some Flounder


Folks, just another long night but hey, since the Yankees are actually winning tonight I’ll take some time off and catch up on some mail,

Grunkaz says “Just curious, how’s the relationship with Games Workshop going right now just before release? Do you see any changes a year down the track? I for one am a HUGE GW fan so being able to get the collector’s edition with an awesome looking miniture was great marketing idea. I hope to see more WAR -> GW minis. Keep up the awesome work with WAR (and this blog) and don’t burn yourself out” Couldn’t be better. I love working with GW professionally and on a personal basis, I consider them good fellows and good friends and I don’t throw either term around lightly. As to changes, I hope that the relationship continues to deepen and strengthen because working with and getting to know the guys at GW has been one of the absolute highlights of my professional career.

Brian R says “Firstly, the trend in the MMO playerbase as of late is what I refer to as the ‘WoW test’ where any title slated for release in the MMORPG market is excruciatingly compared to WoW’s current state. My question is this, What is your opinion on the subject. Do you feel that its fair to new titles to be compared to the behemoth that WoW has become in its current form or should new titles be compared more relistically to what WoW at tis initial release state?” It is not only fair but realistic. If you are going wade into shark-infested waters you can’t whine when you get bit. When we created DAoC we knew we would be compared to EQ so we tried to play up our strengths (RvR). Different day, same tune.

Brian R says “How do you feel micro-transaction MMO’s inpact the subscription based MMO model?” Badly in most cases (free-to-do-nothing-fun-games) but in the right hands and the right country, it can be a successful model. As long as the MMORPG is just not a “Quarter Sucking the Life out of its Players” model, some of them will do well I’m sure.

Brian R says “thanks for taking the time to communicate with the community Mark, it really is refreshing to see a development company who’s employee’s deal directly with the players in so many ways. In 20 years of gaming I can’t recall a single company that talks to the players in such a straightfoward down to earth manner as Paul, Josh and youself.” Oh no, not you again! Don’t forget Jeff “the” Hickman and everyone else at Mythic who are creating WAR who make this part of our jobs easier. If we were ducking rotten fruit and lettuce all the time it would be a lot harder for us to talk to the players through our sealed survival suits.

Ccoa says “So, as an aspiring game developer I wanted to ask you what do you think it would take to become a next-gen MMORPG game developer.” If you mean by next-gen MMORPG game developer someone who starts their own company, I would say a ton of money, 2-3 years out of your life, a ton more money, lots and lots of aspirin, another 2 years to correct the errors you made in the beginning and a ton more money. If you meant how do you break into the MMORPG industry, there are lots of ways depending on what you do. Lots of developers at Mythic and other devs have come through our CS program, internships and by continually asking for jobs. The bad thing about MMORPGs is that they take a lot of time and money to make. The nice thing about them is that we are always looking for talented people.

SteveE says “If you’re ever looking for topics, I’d love to hear the thoughts/history/poop on Aliens Online. First MMO I ever played, and still quite a forward-thinking game.” I should do a piece on it and probably will. It was one of my favorite designs of all time and I loved to play that game.

Tom says “I’m sure it’s been asked before, but since we’re on the topic of questions… What class are you going to play MJ? Is there a side you favor, or are both destruction and order your beloved children?” I personally favor destro (Suddenly the Net lit up, Mythic Devs favor Destro, Order become red-haired stepchildren, news at 11!) but I’ll play both I’m sure.

Bael says “I had three questions: given the goals and objectives you had when you first set out to build WAR, how close do you think you’ve come to fulfilling them all? What are the biggest regrets you have about cuts made to the game, and what element are you proudest of?” LOL, WAR will never fulfill my goals and objectives because I’ll never be truly happy with the way it comes out just as DAoC. I’ll always think about what we could have done differently. Biggest regrets about the cuts is the loss of the Choppa and the other cities, I really wanted to see those cities come to life but that’s the nice thing about a MMORPG, time. I’m proudest of the PQ concept. Of all of my design elements for the game, this is the one that is going to have the most effect on MMORPG design going forward.

Teljair says “Hey Mark, nice blog so far! If you would ever consider giving us a bit of your time for an Interview over at let me know! We would love it!“ Love to.

Scarybooster says “Nice start on a blog Noob. Jk” Why just kidding? When it comes to blogging, I’m a total noob. Now, when it comes to writing or talking to people online, well, I’ve been doing that since the BBS days so I expect I’ll get the hang of this someday.

Myrdo says “On the subject of DAoC… knowing what you know now, what’s one or two of the big things you would change, decision wise, if you could go back? I’ve been a sub since basically release, so I saw the ups and downs… and I’m interested, from the BMOC’s standpoint, what changes you would make with hindsight being 20/20.” The easy answer is ToA but if I could make another change, I would have insisted that we had better metrics and survey tools for Mythic back in the day it would have saved us a lot of grief. Other guys like Dave Rickey also thought we needed them but we always had something else to do that sucked up time. Lesson learned.

Sunny says “Will you be miring yourself further in people’s comments or be keeping this blog more for your personal musings? Cause I loved the post on the success/failure of WAR as it relates to the market and want more, more, more.” Love the name, it was the handle of someone very special. As to what I’m going to do, well, a bit of everything I hope.

Melissa says “Seriously, you guys are the best – thanks for making a girl’s weekend!” OMG, I should frame this. Usually we get the “Thanks for taking my friend/boyfriend/husband out of my life because of the game. Damn you Mythic!!!” I do appreciate the kind words, I hope we make you feel that way for a long, long time.

Seb says “Please never do a ToA like expansion in WAR ! ” I think I’d rather shoot myself in the head than do another ToA.

Matth says “I’d love to hear your thoughts on these MMOs (eg: Darkfall) that are trying to bring the sandbox PVP model back into the genre, and are really trying to take the genre into new directions.” I’d love to see more sandbox PVP MMORPGs out there. I love PvP, RvR, SNL and I hope that developers bring different MMORPGs out into the marketplace, we need it badly.

Don says “And I lied, I really also want to know why you guys decided to go monthly sub instead of free2play+pay2win and what it says about the future of WAR. I also thank God you chose monthly sub ” Free2Player + Pay2Win = DesignToLose in NA I think and Europe as well I hope for MMORPGs.

Capt Caveman says “I loved DAoC and I’m hoping I’ll love WAR. I have my OB key and my bottle of CabSav so I’m a happy bunny. If I win the 92 million in the Euro lottery tonight I might even hire you to make my own mpog.” Well, I didn’t get your offer in the mail so I guess you didn’t win, sorry about that Cap. Well, on the plus side, making MMORPGs are a quick way to make a multimillionaire into a stark raving mad poor man so don’t feel too badly.

James says “I’m just wondering on how you came to this industry ?” In a reed-covered boat floating down the Hudson River in NYC. And if you believe that, well, the oceanfront property is still available! In truth, it all started with a FORTRAN Monrobot, a paper tape roll and a nice hack or two. I think I have my next column…

Well, that may do it for the night. Time to watch “The Shield” and then call it a night. Gad, I’m going to miss that show when it goes off the air.