What Can Games Teach Us About Law?

I had the good fortune to get a column published over at Kill Screen. It's a relatively new webzine that is exploring the range of topics for games. I always manage to find a new angle that surprises me there.

The column is about the inherent knowledge gamers develop about systems and how this approach applies out into the real world. A lot of these ideas are in the gamificaiton series, but I tackled some relevant issues instead of getting bogged down into theory.

Here's hoping the gaming generation keeps getting bigger.

MMO Judiciary - Functions and Solutions

In the United States we are used to a court system whose focus centers on rule elaboration and enforcing public norms by handing down rulings. Joanne Scott, in her essay Courts as Catalysts, discusses the changing role of courts by focusing on their capacity to share information, fact check, and test the authenticity of government decisions by weighing their evidence. It’s a new model meant to reflect the role the courts may play in a steadily de-centralizing government. She inadvertently presents a potential template for resolving the conflict between Coding Authority and player.

The basic idea in Scott’s paper is that courts can serve to check the evidence of the governing authority while still fulfilling important obligations in the community. It’s a kind of PR, a government institution separate from the authority who handles disputes in the system. The institution does not have the power to make new rules, only legitimize or overturn existing ones. Scott’s vision of a system where, “courts become a source of communicating ideas and experience, without being the source of their creation, and without being specifically prescriptive in relation to any particular form” may find its most useful application in virtual space rather than reality.

The necessity for this kind of system, as noted in the previous essay, crops up when you have the strange type of tyranny that’s possible in an MMO. All laws are automatically enforced, traditional methods of feedback are cut-off and players are often forced to quit. It’s unlikely any developer would actually do this on purpose, it’s just inevitably going to happen in any system of rules. An essay by Leslie Green on the causes of Judicial Decisions reminds one that rules are indeterminate, not merely in dramatic or marginal cases, but in most cases, because indeterminacy flows not only from vagueness but also from pervasive unresolved conflicts among the laws of the system. There is always an unintended consequence or unexpected application stemming from the rules of conduct or the code itself.

Application of this will vary from game to game. You probably do not want the judiciary to have any authority over the actual design such as nerfing items. A more debatable issue, such as perching in Asheron’s call, duplication, hording or some other in-game strategy, is more ideal because it’s allowed by the Coding Authority. It just has the unintended consequence of disrupting the entire game for players. Rather than have the designers fret over financial impacts or disrupting the economy, you just have a hearing where people make their case. Evidence is drawn from the servers and personal accounts. The dispute gets resolved quickly, transparently, and with player involvement occurring throughout.

It’s important to remember that in many cases transparency just means communicating your reasons for acting clearly. Most concerns about the language of a judiciary becoming unwieldly aren’t really necessary. As Peter M. Tiersma notes in his book Parchment, Paper, Pixels, the reason the modern legal system is so wordy and difficult to understand is because the language is meant to only have one meaning. In America we practice common law, meaning each court ruling is binding on all future rulings. To avoid multiple interpretations of a contract, bill, or law you have to phrase it a manner that’s very alien to most people.

That’s especially true today where the internet has enabled rapid communication. People write like they talk now and it’s understood in the same manner. Unless the judicial system wanted to impose some kind of common law model, precision in the writing to that degree would be unnecessary. You just ask the judge for clarification. You can already see an example of this practice with Xbox Live’s Why Was I Banned? forums. Having a clear explanation from another person helps give authority and clarity to the rules of the Xbox Live service. The average person should be able to understand everything going on but having a model for dealing with people always helps.

The same goes for pleading a complaint: if they can form a complete sentence then there’s no reason they couldn’t make a complaint. Lawyers exist because just one part of the legal system takes months or even years of study to understand. It got this way because the bigger the population, the more rules you need to protect all those competing interests. An MMO is not ever going to become large enough that the average player does not already know everything they need to when crafting a complaint.

Diversity in judicial opinion, both between judges and their views vs the Coding Authority, should also not be taken as a huge problem. Uniformity must occur in the results of rules, but not necessarily in the way those results are reached. A textualist approach, where the Judge reads everything literally, may have various uses and appeals depending on the game. Alternatively a Judge who discusses the issue with the Coding Authority and adds weight to the views might be more favorable. A great Judge would be able to juggle multiple perspectives to get a result satisfactory to all. As Lawrence B. Solum explains, “Good judges are clever in using the resources within existing law to solve the legal problems that come before them. The very best judges are experts at avoiding originality. And the very worst judges may be the most original. Very bad judges may use the cases that come before them as the vehicles for changing the law, transforming the rules laid down into the rules that the judges prefer.”

At the end of the day, the existence of a judicial system would ultimately be derived from the Coding Authority, who is in turn controlled by the Developer, Publisher, and their shareholders. While mounting arbitration costs and threats from the outside world are a good reason for creating a means of resolving disputes in-game, perhaps the best reason of all is simply advertising. In his guide to building a successful MMO Raph Koster explains that the key is ownership of something in the game. Whether it’s buildings, characters, or a job the player needs to, “feel a sense of responsibility to something that cannot be removed from the game.”

Examples of MMOs violating this sense of ownership are everywhere. Despite the strong sales of the latest WoW expansion, players quitting the game by the thousands. The anger at the expansion varies from being being too short to stripping the game of all complexity for newplayers. One scathing comment explains, “Cataclysm is the end result of an MMO design by numbers philosophy inspired the wishes of accountants and avarice of shareholders. This is one picnic basket of childish quests and facile gameplay expressly designed to appeal to the lowest common denominator out there.” These complaints have nowhere to go and no one who will listen to them. And while the expansion might make money in the long term, it’s also costing them the veteran players who have stuck with the game for years.

At other times it’s problems that arise from a GM acting carelessly. A huge controversy arose in a Bioware forum when a moderator closed a thread because a group was debating homosexuality in the Star Wars universe. Such blank and total censorship generated massive amounts of negative PR even though the forum moderator was only attempting to prevent a flamewar. A similar example was the removal of Nazi soldier’s name from an in-game badge. No discussion, no explanation, and nothing but negative PR for the game for operating in a totalitarian manner.

The benefits of this will vary depending on the game, there is no one model for every MMO. A judicial branch mediates the conflicts that arise between the hard laws, the social standards and the general strangeness of humanity. All of these things clash and overlap in constantly changing ways, creating indeterminacy for the outcome of disputes. Introducing a third party relieves the Coding Authority from assuming a totalitarian approach to all conflicts, gives transparency to the process, and creates a more legitimate avenue for conflict resolution outside of enforcing the EULA.

Judith Williamson, in her seminal text on Decoding Advertising, explains that an ad is essentially the transference of human qualities and characteristics to consumer products. Concepts like fairness, loyalty and safety are generated and projected onto the game. An internal MMO judiciary represents a concentrated effort to form that connection with the player as a kind of background association. First and foremost, they should be enjoying the game and having fun. But if things go wrong, they can know they won’t need to deal with an expensive legal system or negotiate a EULA. Their problems can be resolved in-game, fairly and transparently.

MMO Judiciary - The Balance of Power

A model for resolving internal MMO disputes should be built around the perspective of the player. A player primarily understands the parts of the game that affect them directly so any breakdown of authority begins with recognizing those forces. The first and most profound authority in an MMO is the Coding Authority.  John William Nelson in his breakdown of virtual property writes, “Code affects transaction costs because all transaction involving virtual resources are regulated by code at some point. Purely internal transactions clearly rely upon the code regulating trade among users. Partially external transaction rely in part upon external regulation, but they all inevitably return to the virtual world and its code-based regulation to complete the transaction.” All value, all rights, all methods of exchange boil down to what the designers have permitted in the game. So, from the perspective of the player, an MMO judiciary begins by putting the Coding Authority at the top.

What this means in principle is that the rights given in the game are the only rights you’re entitled to. An example of this would be Ultima Online’s thief skill. It is possible to steal things from people by looting their corpse or picking their pocket. When a player complained about being robbed, the thief was not punished because the Coding Authority allowed this kind of conduct. A massive Ponzi scheme was permitted in EVE Online because financial corruption is a way you can play the game. In this sense the Coding Authority shapes the culture of a game because it controls how people interact, resulting in an authoritarian power dynamic.

There are limitations to this model. Video game code is a unique kind of rule system because it has enforcement automatically built into it. I can’t jump over that cliff because an invisible wall exists that stops all progress. Even if I got past it, the game does not support the existence of the space and will probably crash. There’s no concern about police, tickets, courts, or all the other mechanisms that come with enforcing a rule. Nor can people just break the rule or ignore it. While this is handy in terms of costs, the problem is that costs are an essential form of feedback in a rule system. The more a rule costs to enforce, the more likely it isn’t favored by the population. People cannot express their discontent by breaking the rules in an MMO, their only option is to complain or quit the game.

In an ideal MMO, a judicial system would represent the bridge between these two forces. The players are given a way to express their grievances with the absolute power of the Coding Authority that makes them feel empowered. The power of the Coding Authority is not superseded or changed, but their relationship with their players becomes a more hospitable one. It is not the court’s job, when a dispute comes before them, to invent a new rule saying how it should be resolved. It’s the court’s job to say how the pre-existing rule should be enforced. The greatest virtue of this branch is their ability to explain the decisions of the Coding Authority. Andras Jakab explains in his paper Concept and Function of Principles the criteria for a legal system as, “(1) the greatest number of legal phenomena can be explained (2) coherently (3) with the highest possible degree of simplicity and (4) political and ideological factors can also play a role.”

For example, a bug or design imbalance is up to the Coding Authority to fix, in our model the Judicial system would not have the authority to change it. How the court system empowers the user is giving them the ability to complain about an imbalance and have it declared as one. A duplication bug is brought to someone’s attention because of a complaint. A ruling is issued explaining why the bug is unfair and why a person has had their account wiped. The action was introduced by a user, the results were made public, and the logic was clearly explained with references to social rules and the Coding Authority. Actual enforcement powers would not really go beyond what a GM already possesses. Nor is this any different than the Dev Blogs many games already operate or Xbox Live’s user forums. What’s different is the transparency of the action and the empowerment this provides for players by giving them an official forum to act in.

Making a model like this successful means delegating priority to various complaints from the players. You would want to avoid lumping everything together: personal feuds, bugs, balance problems, property disputes, not everything can be resolved effectively under the general ticket system with a GM. Nor does having a single individual resolve them on the fly always cause social discontent. A GM pulling me out of a wall I glitched into is not really on the same level as a player claiming a character is using a bug to mass duplicate gold. The key to a sound judicial system is recognizing the problems that users are concerned about and giving their resolution as much transparency as possible. The day to day issues that need to be resolved speedily can be explained with rules of conduct and quick references. More complex issues can be separated on the basis that they will affect the entire game or some other criteria.

While one justification for an MMO judiciary is that the Coding Authority needs an agency to bridge itself with the players, it is equally important that the players have a means of organized communication. The frothing rage of the forums is not a viable means of feedback because it’s just too knee-jerk and unfiltered. Traditionally this is the role an elected official would play in a system of governance, in this case selecting judges by popular election. The delays in election keep people from throwing them out on a whim while the electoral process also filters unqualified participants out. The issue here would be impartiality. As Raph Koster points out in a basic outline of MMO laws, the playerbase is rarely ready or willing to police itself. They signed up to play a fun game, not engage with politics, and they may not be willing to separate the two.

Various MMOs have experimented with elected officials with varying results. EVE Online maintains an elected council to give feedback on the game by airing grievances. The council is currently mounting a PR war because of the company’s failure to expand the game in ways the council desires. On some levels a thing like this can only exist in EVE because it only has one shard. It is not broken down into multiple spaces consisting of smaller, easier to govern populations. The council also has an inherent authority problem because after airing their grievances, the makers of EVE Online decided to ignore them. A judicial system, then, offers a means of self-governance that doesn’t necessarily have to put the Coding Authority in direct conflict with popularly elected officials.

A prime example of an MMO that features popularly elected Judges is Nexus TK. Note that page highlights their activity levels and rank in the game, you can already see unspoken criteria for what constitutes a good judge in public information. The game features extensive self-governance. A post on gamedev.net by a disgruntled player highlights the issues that formed. Top tier players formed cliques that controlled everything in the game. Developer appointed players had extensive powers to silence or blacklist people who spoke out against them. Actual trials simulated the actual real world process: a player could accuse someone of stealing and all you needed was two witnesses to get a conviction. This exacerbated the control of one clique in the game. This, in turn, drove away players.

The point of these two examples is that players are inevitably influenced by their relationship with the game in ways that does not make them the best choice for being a judge. The impulse to operate like an elected official influencing Coding decisions, as in EVE Online, can lead to challenges to the Coding Authority which they might not be able to resolve peacefully. On the other hand Judges are susceptible to corruption and influence just like anyone else. Like most GMs today, a member of the judicial system would be someone disconnected from the game. That disconnect can be ensured through monitoring, transparency, and establishing a clear relationship with the Coding Authority.

In this discussion we’ve gone over who has the authority and how one may go about delegating communication with that authority in a way that leads to what players perceive as fair resolutions. Such a broad goal has to be approached by remembering that fairness itself is a social value, it changes from group to group. Saying someone has a keen sense of fairness does not necessarily make them a good judge, just that they do what’s popular. In an essay on judge selection Lawrence B. Solum comments that people often mistake impartiality with meaning a person does not care or understand a person’s complaint. He writes, “the impartial judge is not indifferent to the parties that come before her. Rather, the virtue of impartiality requires even-handed sympathy for all the parties to a dispute.”

It is impartiality that the judicial system must offer if people are to rely on it for resolving their grievances. A fair chance for both the player to be heard and the Coding Authority to present its side of the dilemma. Whether or not it achieves this objective comes from the perceptions of the players.


Link to Part 3

MMO Judiciary - Why Even Create One?

With the growing buzz around Diablo 3’s in-game auction system comes several tricky questions about how the virtual world and the real world should interact. Issues like taxation, property rights or possible litigation between players become legitimate once money enters the system. Each MMO will have their own unique ways of addressing these problems as they draw the line between seriousness and play. Maintaining that division means making sure the play world can resolve its own disputes to the satisfaction of players and developers.

Let’s start with why our current legal system should be kept out. For most MMOs you don’t have any property rights and until recently you could not even sell the items legitimately for money. The game needs this because anytime the designers need to nerf an item or character it will lose value on the market. This could very easily cost thousands of people money. Considering they’re already unhappy because their in-game prowess is reduced they will be all the more upset that their wallets are being hit. Expansions and updates are the lifeblood of an MMO and the only way to make them possible is by keeping ownership of the items strictly in-game. The developer can’t be concerned with legal liability if it’s going to maintain the game.

It’s also unlikely our current legal system would be any help for resolving in-game disputes. Picture the following e-mail going out:

I have this Elvish Bane Sword in Diablo 3 but unfortunately my account has been banned. If you just give me the password to your account, I can get the sword. Of course I would be happy to give you a small cut of the profits from the sale.

Someone falls for it, gets stripped of their possessions and wants their cash value back. First, if the person lives in another state or country you have massive jurisdiction problems for even bringing the lawsuit. A person outside your own nation does not have to obey your laws or care about a claim brought against them. Second, if you don’t have any property rights to the item then you don’t have any grounds for suing them anyways. Even if the EULA or ToS contains some clause about theft it won’t help you get your money. The contract is between you and the game company, not the person robbing you. Third, if the person turns out to be a minor it’s debatable whether they are bound by the contract anyways.

The thing that keeps all of these issues out of the game is the EULA. It’s not that the courts don’t recognize the potential for property rights, it’s that everyone playing them signs a contract agreeing that they don’t own anything in-game. For the most part this creates an effective legal barrier that has survived several lawsuits for different games. The problem is that, as with any click-wrap contract, they contain the litigation by insisting you resolve your problems with arbitration. This has been an effective deterrence to litigation because of the expense and the fact that business wins 96.8% of the time. It takes extraordinary circumstances for a court to rule that an arbitration agreement is unfair.

While the solution may be effective, it obviously has a couple of problems even if it keeps working. Presuming that the addition of real world auctions increases litigation, defending the EULA will cut into the game’s profits. The EULA isn’t going to protect player versus player property disputes. Furthermore, EULAs are increasingly viewed negatively by consumers as companies use them to change their contract terms, fostering distrust and negative perceptions.

What could potentially threaten a EULA is if the courts decide a person has been forced into an unfair bargaining position. The hypothetical scenario would be someone accumulating a large amount of virtual wealth and then being forced to agree to new terms in a EULA which damages them. They can’t transfer the money out of the game and they don’t have any kind of recourse inside of the game either. It’s a question of options given to the player, do they have an alternative besides signing a contract that hurts them? If they do not, then the courts may step in and take matters into their own hands.

Preventing this from happening means taking a long, critical look at how MMO’s resolve their own internal disputes and considering alternative ways of distributing authority and enforcement in the virtual community. There is no one solution, every game has its own needs and community surrounding it.

The majority of MMOs practice a kind of authoritarian approach to governance. They own everything, they resolve all disputes on their own, and they decide how to design the game on their own. Input is evaluated from the players but no real authority is granted to them. Enforcement occurs either automatically or through GMs. Both of these methods of enforcement are problematic. Automatic enforcement means the developer is often acting without proper feedback because there are no immediate costs to their rules. Nor can players break the rules like they do in real life: invisible walls and code law are final. It’s arbitrary and often leaves the player feeling powerless when bold changes come out for the game. 

GMs, on the other hand, can be inconsistent. A forum thread on GMs in World of Warcraft at MMO-Champions gives a pretty common example of how this gets expressed. One player thinks the community rule about no swearing should be more heavily enforced, so they constantly report these players to GMs. Others don’t see it as a big deal while several others didn’t even know it was against the rules since the game self-censors. A thread on rpg.net points out that GMs must deal with everything from code issues, gold farmers to social conflicts and harassment. Results vary depending on the GM’s background even though they are all lumped together. Another thread allakhazam complains that they feel increasingly like a subscriber rather than a customer. There are so many complaints that GMs can’t attend to them all and the issues go unresolved.

Greg Lastowka in his book Virtual Justice points out that the biggest problem with GMs is their inconsistency. You can just hassle a different one until you get the result you want by filing complaints over and over. This kind of conflict resolution may suffice in the current MMO system, but as real money enters the system many players are not going to take arbitrary decisions lightly. As Lastowka explains, “When virtual worlds empower users with a wide range of creative freedom and encourage them to take economic ownership in their productions, those worlds are more likely to attract lawsuits from all directions. Large scale financial stakes and uncertain rules are a dangerous mixture.”

So the reason one should at least consider overhauling their current MMO dispute methods are two-fold. One, if you don’t create something the players believe is fair the real world courts may be tempted to do it for you. Two, a fair and transparent judicial system could make your players happier and improve their overall experience. The knee-jerk response that lawyers, property rights, and all of the costs and expenses associated with these things is neither an inevitability nor really necessary. As John William Nelson points out in his essay The Virtual Property Problem, “Virtual property is a solution looking for a problem.” Perhaps we should keep it that way.

Link to Part 2