Legal Considerations and Challenges

[Victoria Victrix]

Your math is a little off. $1,000,000 (1 million dollars) is one thousand $1,000, not one thousand $100,000.

It would take 1000 people contributing $1000 each. It would take $10,000 contributing $100 each.

That's to raise a million, though. Which is a good starting point.

If you've got figures to back your estimates of $1 million for "just the code" and $10 million for "the whole thing plus a reduced staff," I'd be interested in hearing them. Because they sound suspiciously close to my "bare guess" figures, and I don't trust those. I am looking for more solid figures.

I'm basing the $10 million figure on the figures the troll posted on how much it takes to run a studio and cut them in half, for a reduced studio, plus the amounts for the servers, which are NOT cheap (assuming the old servers are bought).  No matter what happens, running a studio and support staff costs money, and you need that up front, or you won't be able to hire people.

As for $1 million for the code, if it were purchasable at any cheaper rate, we would already have heard from Brian Clayton by now.  So I am assuming it is somewhere up in the stratosphere.

[dwturducken]

I'm basing the $10 million figure on the figures the troll posted on how much it takes to run a studio and cut them in half, for a reduced studio, plus the amounts for the servers, which are NOT cheap (assuming the old servers are bought).  No matter what happens, running a studio and support staff costs money, and you need that up front, or you won't be able to hire people.

He meant your figure of 100,000 of us putting in $1000 to get $1,000,000. If 100,000 of us put in $1000, that's $100,000,000, since that kind of math is strictly about the total number of zeros being discussed.  Your point was well taken, but we want to be sure the less math-inclined don't get discouraged by a misplaced decimal point.

[StarRanger4]

$100,000,000?  Gee, that's about the price of a Ragnarok proc...

[Victoria Victrix]

He meant your figure of 100,000 of us putting in $1000 to get $1,000,000. If 100,000 of us put in $1000, that's $100,000,000, since that kind of math is strictly about the total number of zeros being discussed.  Your point was well taken, but we want to be sure the less math-inclined don't get discouraged by a misplaced decimal point.

This is why I always use a calculator when I actually have to work with numbers.  Words good, numbers bad.

[epawtows]

This is why I always use a calculator when I actually have to work with numbers.  Words good, numbers bad.

King Azaz would be proud of you.  The Mathemagician, not so much.

[Enson Red Shirt]

http://www.gamepolitics.com/2010/05/10/real-lawsuit-over-virtual-property
http://articles.latimes.com/2010/apr/30/business/la-fi-lazarus-20100430
http://articles.cnn.com/2010-05-10/tech/virtual.property.second.life_1_linden-lab-virtual-land-second-life?_s=PM:TECH
http://www.law360.com/newyork/articles/5280/can-virtual-property-gain-legal-protection-
http://www.rivkinradler.com/publications.cfm?id=230
http://www.virtualjudgment.com/index.php?option=com_mojo&Itemid=26&cat=24

[Olantern]

[links redacted]

Those are all interesting examples of law being applied, or attempts to apply it, to online interactions.  I don't think they're helpful to our current predicament in a legal sense, though.

For those who haven't read the linked materials, the majority of them involve suits against the producers of Second Life by customers who purchased "virtual land" or other in-game materials in the game.  (I followed up some of the cases mentioned in the articles in legal databases to check on precisely what the plaintiffs alleged in each one.)  While the precise facts of the cases varied a little, all of them relied on some variation of a false advertising claim to seek recovery.

"False advertising" is a kind of action created by statutes, notably the Lanham Act (which governs trademarks) and various state laws.  For the purposes of this thread, it's pretty similar to fraud, which I discussed above.  The fundamental concepts are that the plaintiff alleges that the defendant made some material misrepresentation of fact, that it intended to deceive the plaintiff by doing so, and that the plaintiff suffered damages in consequence.

In the cases discussed in the links, Second Life players alleged, based on Terms of Service agreements and public statements by Linden developers, that they'd been told players had property rights in things they created within Second Life.  Later, Linden Labs changed the terms of its contract with players to say that it never intended to sell them such rights.  The plaintiffs alleged that this change constituted false advertising.

In those cases, the plaintiffs are at least arguably correct.  (The courts seem to agree; the plaintiffs in those cases won a number of motions and appear to have successfully settled some of the cases.)  Linden very clearly stated one thing ("you own X"), then changed to another ("not only don't you own X, but you never did").

In our situation, in contrast, NCSoft never stated that we held any property rights at all in anything in-game- not costumes, not text, not AE arcs, not items purchased with Paragon Points, etc.  On the contrary, it's consistently stated from the very beginning of the game that players never owned any of those things.  It's always claimed they were property of NCSoft.  Any belief otherwise comes from players themselves.  Thus, I don't see the potential for recovery on the same theory as those cases used.

Now, this isn't to say that players of an MMO shouldn't have some kind of right in things they create in a game.  An MMO isn't like a book or a movie.  In theory, at least, you can see it as a mutual creation by player and rights-holder.  But notice that I say "in theory."  There's a huge gap between theory and reality in law.  No court has even considered the idea I'm maundering on about, and I don't believe most courts would take it seriously.  I'm not saying that courts are right to think that way.

I'm not saying that people are wrong to feel betrayed by NCSoft, or even to feel that something was taken from us.  I am saying that no one has yet recognized even a hint of the idea that there's any "something" there to be taken.

[Victoria Victrix]

Olantern is correct here, and the problem is that any legal action would be precedent setting action.  And that sort of lawsuit tends to be...expensive.  And long.  And go through a lot of appeals if the eventual ruling is in favor of the guy with the least money to burn. 

Short form: you could definitely pursue it, but it would be time consuming, very expensive, and drawn out. 

Since NCSoft is handing out refunds instead of time-on-another-game, that pretty much rules out the fraud or bait-and-switch (shorter, simpler, with lots of precedent) actions I had postulated in another thread.

You could also pursue another tactic--proving in court that all the time and effort you have spent in creating and leveling characters and buiding SGs and bases is actually worth something monetarily.  This, again, would be precedent-setting and thus time consuming, very expensive, and drawn out.

Face it, anyone with enough money can sue anyone for anything.  The question becomes how much you want to pour into it and when you start hitting the law of diminishing returns.  IMHO, you hit that pretty quick with either of these scenarios.

[QuantumHero]

I think we need to be more focused on what paths we want to avoid for legal reasons and where we may have a fighting shot of the law acting as our shield.  We know we are going to savve this game.  We would prefer not to have tp sue anyone and don't really want NcSoft sueing us.  We hope to reach  some sort of amicable agreement with them....and if not we may very well end up in barely defined areas of law where they will either look the other way  and avoid potentially groundbreaking legislation...or we may have to defend ourselves.  Shields not swords.  Because swords are expensive and cut both ways...shields that can shelter our path through a world of grey is what I seak.

To put this another way, if it comes to legal action we want to be in a possition where it costs NCsoft less to throw us a bone then pursue litigation

[ukaserex]

Kudos to Mantic and Olantern, in no particular order.

Call me a pessimist - or a jerk.
The main thing I got out of the multi-page thread, aside from a brief overview of contracts and such, is that it is ...less than wise to think that any collection of personnel assembled - even the latest dev team - would be able to recreate the CoH MMO as a different MMO without stepping on NCSoft's property.

A different mechanic for defense, resistance, Tohit, accuracy, etc ...

(unless allowed for by the purchase or lease of multiple "sticks". )

In the end - the post makes me ask this question - why bother? If it's not going to be "the same" or very close to it - (painfully assuming Paragon Studios is unsuccessful in the negotiations - if they are in fact in negotiations) - then there's really not much point to the rest of it, is there?

It's been stated that it's the community that's so awesome, not necessarily the game - but for me, the two go hand in hand. One does me no good without the other. And, if it's a "new/different" game - why jump through all those hoops when there are other games already available?

I don't ask to be a gloomy gus - but for more insight - did I miss something?
If the end result is likely to be so drastically different from what we're trying to save - why are we trying to save it? (beyond trying for the game in its entirety)

[Victoria Victrix]

Honestly I think everyone wants the goal to be saving the game in its entirety, which means SOMEONE acquiring IP/Code and rights.

[Olantern]

Ukase's question is a worthwhile one.  A lot of the analysis in this thread points to unhappy, or at least unsatisfying, conclusions.

VV is right.  The ideal is to have someone buy the entire IP.  Much of this thread is devoted to explaining what "the IP" is and who the "someone" could be, given the strong player interest in buying the IP for ourselves.  And I think giving people some background on the contractual issues helps explain why things are happening the way they are.

To the extent that that isn't possible, another purpose of this thread is to warn players about the dangers of replicating CoH exactly without those IP rights.  Those dangers being the risk of getting sued successfully.  (Or trying a suit to change or set new precedent.  As VV explained, those cases are long, hard, and expensive, with particularly questionable chances of success.)

And a final purpose is to acknowledge that something like the Plan Z being discussed in City Sunset would indeed be "a new game developed by former CoH players," not "CoH reborn."

To a large extent, this information isn't here to provide answers so much as it is to get people thinking about what questions they need to ask and then answer themselves.

[RogerWilco]

I haven't read the whole tread yet, but I want to add a precedent that I know of. When Activision decided to discontinue the Call to Power series, the allowed the fansite Apolyton to take over the code base and continue to support and patch the game. This happened in 2003 and they have at least maintained the code until 2011.

It's not open source, but it would accomplish exactly what we need if a similar arrangement could be made about CoH. Activision still owns the CtP code, but Allos the fans to maintain it for non commercial use.

See http://apolyton.net/showthread.php/139275-GENERAL-CtP2-Source-Code-Project-FAQ-%28v3%29?postid=4038268#post4038268

http://apolyton.net/showthread.php/139275-GENERAL-CtP2-Source-Code-Project-FAQ-%28v3%29

[Olantern]

I haven't read the whole tread yet, but I want to add a precedent that I know of. When Activision decided to discontinue the Call to Power series, the allowed the fansite Apolyton to take over the code base and continue to support and patch the game. This happened in 2003 and they have at least maintained the code until 2011.

It's not open source, but it would accomplish exactly what we need if a similar arrangement could be made about CoH. Activision still owns the CtP code, but Allos the fans to maintain it for non commercial use.

That would certainly be one option.  It does depend on two things, though.

First, NCSoft has to be willing to sell or give away its rights.  That's entirely at NCSoft's option.

Second, that sale or gift of rights needs to include what the recipient wants.  NCSoft not only doesn't have to give its rights away; it doesn't have to give away any more than it wants to.  It can also attach conditions to the sale, like the "only blue houses with six rooms."  Remember the "bundle of sticks" idea from the first page.  In the CtP example, Activision gave away (i.e., sold for $0) the right to maintain the game, but with the limitation that the maintenance be for noncommercial use.  It's impossible for any of us to know whether that could happen here.  It's anyone's guess what, if anything, NCSoft is willing to put on the table.

[Olantern]

In the "State of the Titan" thread, someone asked why negotiations for the sale of CoH were taking so long.  I posted this:

The parties' goals are clear.  NCSoft wants to wash its hands of the game entirely and not have the hassle and responsibility of running it any more while getting the highest possible price for the property.  Paragon wants the right to develop the game on its own terms without NCSoft's interference while paying the lowest possible cost.

Those simple goals turn hydralike when you start thinking through things that could happen in the future.  This is what contracts are about- covering contingencies.  If I had to guess, and I do, things the parties need to decide include:

- How much is this thing really worth, anyway?  I don't see Blue Book values for MMO's quoted very often.
- Once the parties agree on a value, is it calculated in dollars or won?  What if the exchange rate fluctuates violently once agreement is reached?
- How long does Paragon have to pay?  If it pays over time, does NCSoft retain a mortgage-like interest in the property?
- If "all rights" to the game are sold, can NCSoft still mention it in non-CoH advertising (e.g., "We sponsored the development of the innovative City of Heroes in 2004" in a Blade & Soul ad)?
- How long does NCSoft have to get rid of all references to and mentions of CoH in its websites and other materials (many are gone, but what about those pictures of Statesman)?
- Since the "new" Paragon hasn't formed yet, what happens if the parties agree to a sale, then it never forms?  Does the IP revert to NCSoft?  To all the potential devs as a collection of individuals?  Somewhere else?
- If someone sues Paragon and/or NCSoft about CoH, who defends the case?  If the plaintiff wins, who pays?  Does the kind of claim matter?  (This is one reason I'm so touchy about people saying they want to sue.  No one wants to buy a lawsuit.)
- What if Paragon wants to develop a new game based on the CoH property, either the game code (e.g., it's a game about zombie hunters, but it uses the CoH character progression system) or the story elements (e.g., a totally new fantasy MMO set in Oranbega at its height)?  Can it do so free and clear?  Or does it have to pay NCSoft a royalty?  Or can it not do that at all?
- How can NCSoft be sure its ex-employees aren't using proprietary information in maintaining an NCSoft-less CoH?  And if it can't, how much more should it charge to release the IP?  (This is the issue Segev raised.)
- If either party breaches the contract, what should the damages be?  In what forum should disputes be resolved (an especially sticky issue in an international negotiation like this)?

... and so on.  Every one of those terms (plus a zillion others, I'm sure) affects the price of the property and one or both parties' willingness to deal.  Of course, on top of all that, there are still the usual hassles of any negotiation, like the cultural issues others have already mentioned, too.  I don't envy the people working on this.  It looks simple to us from the outside, but there are as many potential issues as there are potential problems going forward.  That's why I'm being extremely patient and hoping both parties can get what they want.  That is the way that we will get what we want, too.

All that is out of our hands.  The best thing we can do is to continue to demonstrate that the game has a dedicated fan base that makes it both worth selling and a good buy.  Keep it up, everyone!

[Segev]

I'll just put a link to my response to it in that thread here. ^_^

[Enson Red Shirt]

So i quess the PLAY FREE FOREVER is not false advertising?

[Aggelakis]

No, it's not. It's basically puffery.

[TimtheEnchanter]

No, it's not. It's basically puffery.

A little off-topic, I've always wanted to do what Will Ferrel did in Elf when he saw the "Best Cup of Coffee" sign.

CONGRATULATIONS!!! YOU'VE DONE IT!!!

[chaparralshrub]

Olantern is correct here, and the problem is that any legal action would be precedent setting action.  And that sort of lawsuit tends to be...expensive.  And long.  And go through a lot of appeals if the eventual ruling is in favor of the guy with the least money to burn. 

Short form: you could definitely pursue it, but it would be time consuming, very expensive, and drawn out. 

Since NCSoft is handing out refunds instead of time-on-another-game, that pretty much rules out the fraud or bait-and-switch (shorter, simpler, with lots of precedent) actions I had postulated in another thread.

You could also pursue another tactic--proving in court that all the time and effort you have spent in creating and leveling characters and buiding SGs and bases is actually worth something monetarily.  This, again, would be precedent-setting and thus time consuming, very expensive, and drawn out.

Face it, anyone with enough money can sue anyone for anything.  The question becomes how much you want to pour into it and when you start hitting the law of diminishing returns.  IMHO, you hit that pretty quick with either of these scenarios.

Waaaiit a sec... I thought I remember you saying that the player-created content, that is the players' characters and the AE story arcs that they create, belong to the player and not to NCSoft (although NCSoft has an irrevocable but non-exclusive right to use them). Is this not true?