Legal Considerations and Challenges

[Olantern]

A Future without NCSoft?  Legal Considerations and Challenges

Introduction

This thread is designed to deal with potential legal issues that the community needs to consider in its efforts to sustain City of Heroes.

There has been a great deal of discussion in the past several days of how players might sustain the game.  Some have emphasized the possibility of convincing NCSoft to change its mind.  More have focused on options for keeping the game alive in the hands of some other party, whether it be players or another studio.  Much of the discussion has involved transferring "the rights" to the game, though few have discussed what that really means.

In particular, I've seen a lot of discussion of how players might go about recreating CoH systems and about potential player funded efforts.  In my opinion, those discussions, while valuable, put the cart before the horse.  If we are to keep CoH alive, we need to ensure two things.  First, we need to ensure that our actions are not opening anyone up to potential lawsuits.  Second, we need to ensure that the potential new game ownership structure is secure.  This thread contains my observations on what players need to consider in attempting to keep CoH alive in a post-NCSoft world.

Before I go into detail, I have three preliminary caveats.  First, while I'm an attorney, intellectual property ("IP") and transactional matters are not my field.  I am not representing anyone or anything, and my comments are not intended as offers of representation or as legal advice.  Rather, they are meant as starting points for brainstorming and discussion.

Second, these comments may seem mostly negative and defeatist.  Let me assure you that they are not intended that way.  At this point in the process of attempting to save the game, no one is yet ready to provide answers.  My concern is that people are not even asking the necessary questions.  This thread is a series of questions and explanations, not a how-to guide on rescuing a slain MMO.
Imagine the effort to save the game as drawing a route (the plan to save the game) across a landscape (the law and facts we face).  We can't plot out a route until we have at least a vague idea of what the terrain ahead looks like.  There are a lot of misconceptions out there about that terrain, let alone how to plot a route.  Hopefully, this thread will get people thinking about what both routes and terrain mean.

Third, I'm restricting my observations in this thread to the way the law actually exists.  You may not agree with the way intellectual property rights or business associations work under current law.  You are entitled to your opinion.  However, the attempt to revive CoH is not the place to challenge or change existing law.  Changing laws requires litigation or legislative change, both of which are outside the scope of what we all want to accomplish.  We face enough obstacles to our goal without adding sweeping legal change to them.  Committed as you may be to pushing the frontiers of copyright (or whatever), this is not the time and place to do it.  We need to be Crey here, not the Freakshow.

I'll try to keep this thread updated and post further observations as time goes on.  Feel free to ask questions and make other contributions.

[Olantern]

What Does "The Rights to CoH" mean?

Before we start talking challenges and options, we need to define our terms.  As I noted above, I've seen a lot of discussion of "the rights to CoH," which NCSoft currently holds.  Technically, NCSoft holds copyrights and trademarks in the material that makes up what we call "CoH."  But what does that mean to hold the intellectual property rights to something?

The classic metaphor for property rights (not just IP rights) is "a bundle of sticks."  Imagine you own a vacant lot.  You have the right to keep other people off your lot if you want.  If they won't leave, you can sue them.  You can sell the plot of land to someone else, free and clear, forever.  That's like selling the entire bundle of sticks.

But you can also sell just one stick.  You can less than the entire plot of land.  You can subdivide your land and sell just a portion of it (one stick).  Or you could sell someone the right to walk across your plot of land without allowing him to do anything else (a different stick).  Or you could rent your land to someone else for a week, a month, a year, etc. (another stick).  Or you could sell someone the right to build a house on your land (yet another stick).  You could even sell someone the right to build a house on your land, but only if the house has six rooms and is painted blue.  The point here is that owning property, real or intellectual, isn't owning one big lump of something; it's owning the rights to do particular things with that something.

NCSoft's IP rights in what we call "City of Heroes" are the same.  NCSoft owns the right to use of the name "City of Heroes," the right to run an MMO with that name, the right to use the game's engine (which it previously bought from Cryptic), the rights to all of the character likenesses in the game (including our player characters), the right to all the game systems, and more.  If it hadn't shut the game down, it could have sold the right to develop a CoH MMO to an independent studio (one stick) while retaining the right to publish that MMO (a different stick).  It can sell someone the right to "walk across" its game by selling him advertising space (another stick), as it tried a few years back.  Most importantly for players, it can rent the right to use its servers to make characters (another stick).  And just as you can tell your potential buyer in the vacant lot example that you'll only sell him the right to build if the house has six rooms and is blue, NCSoft can impose limits on what someone using any of these rights can do.  You've agreed to the blue six room house scenario every time you've logged in, even if you haven't known it.  Our version of "build a house" is "play the game," and our version of "blue with six rooms" is called the EULA.

Why do we care who owns what?  Because, as you can tell other people to stay off your lot without your permission, NCSoft can metaphorically tell people to get off its IP rights.  That means that even if the ongoing player efforts to engineer a non-NCSoft server are successful, NCSoft can still sue players for using its rights to operate a CoH-type server.  This is true even if the game background looks nothing like existing CoH.  Remember, NCSoft owns the game structure as well as the game story.

This is why, as I stated above, recreating the code alone and rebuilding CoH in our collective basement, while valuable, isn't enough.  Doing that just opens us up to a lawsuit from NCSoft, a lawsuit they would win (and rightly so).  Remember our goals from the Introduction.  We need a stable structure to hold the resurrected CoH, and we also need to ensure that the resurrected game can't be shut down by another property holder.
This means that if someone, we the players or another publisher, wants to keep CoH alive in its current form, that someone needs to buy most, maybe all, of the sticks in NCSoft's bundle.  The safest route would be to purchase all of NCSoft's rights.  This means that any future decision to shut down the game would rest solely in the hands of the new rights holder.  However, buying all the sticks in NCSoft's bundle is bound to be more expensive than just buying some of them.

A more realistic option might be to buy or lease the rights to sell and develop a CoH MMO from NCSoft.  This is likely to be cheaper, but it leaves some power in the hands of NCSoft.  NCSoft is unlikely to sell any of its rights unless it has a guarantee that the resurrected CoH does not harm NCSoft financially.  Thus, NCSoft is likely to negotiate for terms along the lines of, "We grant you a nonexclusive license to make, maintain, and operate a CoH MMO, but we may terminate your license at any time if we choose to make a new CoH MMO of our own."  This option may be better than nothing, but it's important to recognize the limitations it entails.

This discussion also bears on the idea of an independently player-developed "spiritual successor" to CoH, what I've seen called "Plan Z."  As others have pointed out, we probably don't run too much legal risk by creating a new superhero MMO.  Concepts like caped crimefighters, Nazi spy rings, alien invaders, supernatural menaces, and the like are all generic enough to be used in a new setting without infringing NCSoft's rights to restrict anyone from using Statesman, the Fifth Column, the Rikti, and the Circle of Thorns.  Where we run into potential problems is in the mechanics of the game.  NCSoft holds rights to them just as firmly as it does to any story element.  If we duplicate the game system "feel" of CoH in a Plan Z scenario without NCSoft's permission, we run the risk of a lawsuit, just as we would if we called the game "City of Heroes Two" and featured all the existing lore.

With all that in mind, the real challenge in acquiring the rights to CoH is convincing NCSoft that selling the largest possible bundle of rights is in its best interest.

[Olantern]

What's All This "We" Stuff, Anyway?: Entity Choice

There's been a lot of interesting discussion about potential buyers for the rights discussed above.  The simplest scenario for us as players would be for another publisher to purchase the rights from NCSoft in full.

But what if no other publishers want to take the risk of buying?  This leaves us with two options.  Both have been discussed.  One is a nonstarter.  The other is merely very difficult, but it requires some planning that I haven't seen anyone consider yet.

The nonstarter is "make the code publicly available."  The idea of releasing creative tools like game code into the public domain has been a dream of geekdom since at least the 1980's, with the rise of the cyberpunk literary movement and its freely distributed Turkey City Lexicon of writers' terms.  However, the idea of releasing the game's code publicly for all to use has been categorically rejected (by NCSoft speaking through CoH community manager Andy "Zwillinger" Belford) as recently as today.  Why?

Consider things from NCSoft's point of view.  Right now, you (=NCSoft) own the rights to develop and run a CoH MMO, as well as the right to authorize derivative works like other games and books.  Even though you've decided the game's existing operations aren't worth the money they are costing you to run, the rights to do those things have some value even if you're not exercising them.  What if there's a superhero boom in Korean culture three years from now, and you want to create an MMO to capitalize on it?  Don't give your rights away, or you won't be the only one developing it.  What if a famous author approaches you, wanting to write a CoH book?  If you give your rights away, you funded all those years of development that he's now using for his book for nothing.  If nothing else, sitting on your rights ensures that no one else competes with your other MMO offerings.  (Remember the vacant lot and your right to exclude people from it.)  It's unrealistic to expect NCSoft to give up its rights without getting something in return.

That leaves us with the second option, the one's that's "really, really difficult" rather than "impossible."  That option is for us, the players, to buy the rights to CoH.  I've seen this discussed a lot.  There's even been a lot of talk about how to generate the funding to make it happen.  But if we're doing the buying, what do we mean by "we?"

NCSoft can't negotiate with "the players."  We are an amorphous group.  We have a social identity, created through our shared interest in the game, but we don't have a legal one.  Who speaks for us?  Who holds the money that people have been talking about generating?  What if there's excess money (unlikely, I know)?  Who's responsible if we go ahead with making Plan Z without NCSoft's permission and they successfully sue us?  (You may not be thinking about it right now, but it's better to be safe than sorry.)

Simply put, the amorphous group of players needs to form some kind of business entity to hold the rights we want to purchase.  There are lots of options; I'll just describe a few here in broad strokes.  Note that this isn't intended as a thorough or exclusive list.  Nor are the descriptions intended to be precise or to serve as legal advice.  If a player entity ends up being formed, it will probably require an attorney specialized in this area.  One thing that needs to be done before we get to the point of gathering funds is to determine which of these options to take.  (Or for that matter, whether all the options present so many problems that the better course is to let CoH die quietly.)

All of these options are what lawyers call "business associations" or "business organizations" or "entities."  Like a person, all of them can hold property rights.  All of them also require some legal forms to be fulfilled, things like registering with the state.  That means that if the players end up trying to buy the IP rights, the entity will probably need a lawyer, who will probably need to be paid (though we may be able to get someone to take on the matter pro bono).

First, the players might form a partnership.  Players contribute money to the partnership, which its partners then use to operate it, by doing things like buying the CoH IP, hiring people to run the MMO once it's ready, and the like.  Partnerships have a major drawback.  The partners are individually liable for the entire amount of any judgment against it.  For example, say that Matt, Melissa, and Sean form Hero Partners and each contributes $10,000.  The partnership infringes someone's IP rights, and the rights holder gets a judgment of $50,000 in damages.  The rights holder can try to collect that $50,000 from Matt or Melissa or Sean or any combination of the three, up to the total of $50,000.  Thus, this is a risky proposition for the partners.

Second, the players might form a corporation.  Those of you who only deal with corporations from the outside are probably used to thinking of them as the real world counterparts of Crey, soulless, greedy monsters run by "the suits."  But in legal terms, a corporation is an entity formed by people usually called "stockholders," who contribute money that the entity uses in exchange for a stake in owning it. Like a human, a corporation can hold property rights and take legal actions.  The corporation is like an imaginary person and can do most of the same things a person can do under the law.  Corporations act through their officers, such as CEO's, Treasurers, and the like, and are policed by their boards of directors, who are supposed to ensure that the officers don't misuse the stockholders' money.

The major advantage of a corporation, and the reason it's such a popular form of business organization for large businesses, is that liability in a corporation is limited.  Returning to our example, say that Matt, Melissa, and Sean form Hero Corporation, Inc., to which each contributes $10,000.  Again, a rights holder successfully sues the corporation for $50,000. First, the rights holder will try to collect from the assets of the corporation.  If it isn't paid in full by doing that, it can still try to collect more from any combination of Matt, Melissa, and Sean.  However, each of the three stockholders' liability is limited to the amount they initially contributed.  Thus, it's a "safer" form of entity than a partnership.

There are also other kinds of entities, called things like limited liability companies, limited liability partnerships, and the like, which combine aspects of the two forms of entity I described above.  State law, which governs this kind of thing, varies a fair amount from state to state on what kind of entities people can form, what's required to do so, and how far stakeholders are exposed to liability.  Again, this is something that would have to be examined in much more detail if player efforts to purchase the CoH IP rights end up going forward.

Once someone settles on the type of entity, there are still more legal issues to consider.  For example, while everyone's enthused about the idea of a player-owned game, how is the entity going fund itself in the future?  Will there be a subscription-like arrangement?  Something more like a microtransaction model?  Will the game be entirely free to play?  Something else?  I have no idea how to answer these questions, but they need to be considered.

(As an aside, an idea I find really interesting would be to have the subscribers "buy into" the entity running the game through their subscriptions or other payments.  Rather than renting the use of the entity's rights in the game, as we do with NCSoft, players would actually purchase a small interest in the entity holding those rights, much as some corporations are owned by their employees.  This model presents lots of problems (is the corporation constantly issuing new stock? what, exactly, does a new player own? etc.), but someone with a better grounding in corporate law than me may be able to think of ways around them.  For those who want to "liberate" the game and "give it to the people," this is the kind of arrangement that can do it.  For all my caution, I do believe creativity can do great things.)

Before leaving the subject of fundraising and business structure, I want to make one final point.  I suspect a lot of players are uncomfortable with the idea of treating a player-run, grassroots effort as a business/moneymaking operation.  The bitter truth, though, is that that is what it has to be in order to succeed.  Crowdfunding structures are great, but they aren't charities.  They are means of investment.  Players need to see a potential player-funded operation as an entity holding the contributors' money in trust (in the abstract, not the legal, sense of that term), not as the monetary equivalent of a petition drive.

The main point I want to make in this section on entity choice is that simply raising the money isn't enough.  Before money starts coming in, someone needs to decide what kind of entity is going to hold the money, what that entity's powers are, how it's going to be governed and organized, and the like.  This is not a simple matter, and those running the effort to save CoH need to start at least considering it.

That's all for tonight.  As I said above, I'll try to update the thread as more issues occur to me.

[Vulpy]

I'd like to be the first to thank you for this valuable insight, Olantern. I won't even make a lawyer joke!

[dwturducken]

I like the "subscriptions as shares" notion. I know I'm oversimplifying what you said, but you get the idea.  I've been rolling an idea around in my head that I wanted to get more research on before presenting it, but it's not going to hurt to get some community input.  Also, it's still too early to know where the current talks between Paragon and NCSoft have ended up.

What about a PBS-type model, only without the support of the National Endowment for the Arts?  Maybe more along the lines of Wikimedia.  It would be extremely difficult to gain 501(c) status, but none of us are doing this to make money from it.  PBS and NPR have been making a go of it for years, but, again, good luck convincing the good folks at the NEA that something like this is a project "exhibiting artistic excellence." :)

[castorcorvus]

Olantern, if you were here I would kiss ya! This is exactly what has been running through my head, but I lacked the legal terms needed to put them into words. Thing is that if we are going to form a business of any kind, our best option is to lay the ground work for it ASAP. Well before the November deadline. I hear a lot of people telling us that "it may not be needed". You're right, it may not. But I'd rather have a plan and not need it, than need a plan and not have it. Just because we have a formal business plan typed up, does not mean we have to use it right off the bat. Now, excuse me. I need to return to my copy of "small business for complete idiots."

castorcorvus, out.

[JustJane]

Wow, really great info. Thanks so much for posting it! I look forward to what else might come to mind. This is all part of being as realistic and prepared as we can be.

And on a side note, that did not seem negative at all. It was very respectful and neutral.

[Thirty-Seven]

So, assuming there is any latitude at all for NCSoft to sell... we need to form (for example) Titan Group, LLC and use it as the entity all the funds from something like IndieGoGo are pooled into.  Then, each player would be a form of stockholder through their monthly subscription fee.  That entity would purchase CoH's rights... allowing it (and with a lesser amount of liability) those who formed the LLC to operate the game.

Sounds way easier than it is, I assume.  And lots of big ifs in there!

[Codewalker]

I've been thinking about this in the back of my mind, and since I didn't see it mentioned about, wanted to float the idea of a nonprofit foundation to hold the assets and administer the game in the event that a fan buyout looks possible.

[laufeyjarson]

Interesting.  The last I'd heard is that rules to a game system, and the systems themselves are not copyrightable.  Graphic elements of them can be, but the rules themselves, just like recipes, can't be copyrighted.  The US Copyright office seems to agree.  See: http://www.copyright.gov/fls/fl108.html which seems pretty clear about rules for a game.

Patents are a different story.  Has NCsoft got patents on any of the elements of the system used in City of Heroes?

It doesn't mean that a too-close copy wouldn't have NCsoft suing, wether or not they'd win.  Lawsuits are expensive and destroy a group regardless of the outcome of the suit; we really don't want NCsoft to sue.

It's also very likely true that by changing some of the inner workings you can get a system which feels similar enough in play but has a different set of constructs behind it.  They'd be hard pressed to win a suit for a new system developed by the players.  Again, this doesn't they won't sue.

[castorcorvus]

Darn it all people, lets get started. As olantern said, we need a plan, this link ( http://www.sba.gov/ ) tells us what info we need to form that plan. We need to find someone who has already formed a business, get them to help us avoid the pitfalls. I know some people, perhaps they'll give me a few pointers, I suggest you all do the same. We need someone or several somones to step-up and get this underway. Olantern, if you know anyone who can help in corporate law, now would be the time to tell us. We also need accountants, marketing experts, and we either need the Titan Network to step up its game and form a virtual workspace for this company or we need to take it somewhere else. We also need to do some digging and find out for sure just how many of the "sticks" in this bundle that NCsoft owns lock, stock, and barrel. This is happening folks. I'll post again in 24 hours, those onboard had best say so. Keep in mind all, this may be unneeded, or it may be our last chance. But no matter what we need to have the outline done well before November if we are to stand a ghost of a chance if all else falls through.

castorcorvus, out. :D

[dwturducken]

While we're tossing legal questions about, Cryptic licensed the engine and some other sticks to NCSoft. It's in perpetuity, but is it exclusive?  Does NCSoft have the rights permission to "sublet" their sticks? Do they have the right to just sit on the sticks for the balance of "perpetuity?"

I don't expect anyone to pipe up with answers, but IANAL, as it were.  Just thought they bore adding to the questions being asked.

[Mantic]

Best, most valuable thread here so far. Kudos, Olantern!

Part of the problem with "charting a course," however, is the law itself. Walls are up to prevent us seeing the true landscape. Paragon Studios employees are gagged, unable to tell us what it looks like.


Also, I like Codewalker's suggestion of forming a nonprofit trustee of some sort, rather than a corporate commercial entity. That would make the prospect of a collective purchase attempt a little more palatable.

[Golden Girl]

On a side note related to the hopefully never-needed Plan Z, while quite a few people have suggested the name Phoenix City, which not only has nice symbolism, but also keeps the "PC" shortening of the name like Paragon City, I'm now leaning more towards "Titan City" as the name of the project and the setting of the game - not just because any attempt to get it off the ground would very likely be organized here, but because it has a dynamic, powerful ring to it, references the Greek mythology that forms such a big part of the CoH lore, and just generally brings to mind the idea of larger-than-life characters and battles, as in "a titanic struggle", "a clash of the titans", and so on.
So whatever kind of company we set up to take care of funding, we should also register the name of the game as a trademark, and register it as a domain name too - even though it would be a totally fan made and run effort, we'd still need to protect it from outside trouble.
I think we should probably do it soon, too - even thought we're all going to fight NCSoft all the way, we're also going to need to be ready to swing into action with Plan Z as soon as possible, if it's needed, just to give some hope to the wider CoH community and help recruit the help we're going to need to get it off the ground.

[Mister Bison]

Interesting.  The last I'd heard is that rules to a game system, and the systems themselves are not copyrightable.  Graphic elements of them can be, but the rules themselves, just like recipes, can't be copyrighted.  The US Copyright office seems to agree.  See: http://www.copyright.gov/fls/fl108.html which seems pretty clear about rules for a game.

Patents are a different story.  Has NCsoft got patents on any of the elements of the system used in City of Heroes?

It doesn't mean that a too-close copy wouldn't have NCsoft suing, wether or not they'd win.  Lawsuits are expensive and destroy a group regardless of the outcome of the suit; we really don't want NCsoft to sue.

It's also very likely true that by changing some of the inner workings you can get a system which feels similar enough in play but has a different set of constructs behind it.  They'd be hard pressed to win a suit for a new system developed by the players.  Again, this doesn't they won't sue.

NCSoft hesn't got patents for what they used in CoH, but Worlds, Inc. has tried to sue them in 2008 for patent infringement identical to what they presently sue Blizzard/Activision for, last April (news link)

Though I kinda find it silly to patent "system and method for enabling users to interact in a virtual space" >_>

[WanderingAries]

I whole heartedly agree with the completely new name concept as nomatter what, this will be a rebuilding. Even if we do manage to acquire all of the current assets, it's still going to FEEL like a new city. While I like the concept of the Phoenix, Titan makes more sense (for probably the same reason this site chose said name :-p). Since we already have this Titan group setup, then I'd be willing to bet that it'd be that much easier to step into the light so to speak as an official company. As for the type of company, while LLCs might look interesting, an actual Corp or the Non-Profit entities have me at an empass. Both have merit, but we'd need to take a long hard look into What we want to be. At this stage in the game there is so much going on that I'm willing to bet we also need to save up for a nursemaid for TonyV.  :-p

[Vulpy]

Thing is that if we are going to form a business of any kind, our best option is to lay the ground work for it ASAP. Well before the November deadline.

As much as I hate to admit it, you make a very good point. Can we be sure that any efforts to lay groundwork for business and legal proceedings won't detract from other efforts to save the game outright? There's only so much time and energy any one person can give, after all. If we had a team of lawyers and business types whose time would be better used there than in collecting testimonials, that's one thing; if this comes at the expense of pressuring NCsoft, that's another.

[jacknomind]

Excellent, excellent post, Olantern.  I've been gesturing at the same sorts of concepts, and I feel a bit like a caveman pointing at a car and going, "URGH!  MAKE GO!" in comparison.

Of course, from my primitive point of view, I don't really see the challenges that others do, other than the fundamental and primordial one of, well, convincing NCSoft to sell to us.  We have the basis for our corporation already; as Codewalker said, we will likely want to incorporate as a nonprofit foundation to hold the intellectual properties of CoH.  In exchange for a zero-charge license to use said property, we will require a perpetual license to any and all assets developed for it by whichever for-profit studio(s) maintain and continue it.

This is... subsequent to resolving that primordial issue I mentioned above.  NCSoft might give us something very very limited, like a nonspecific-duration continuation of the game on their terms and restoration of part of Paragon Studios.  I think I would probably try to continue working with interested parties at that point to establish a new CoH-like property, but it would end the current movement.

[Olantern]

I'm glad to see people are making use of this thread.

Darn it all people, lets get started. As olantern said, we need a plan, this link ( http://www.sba.gov/ ) tells us what info we need to form that plan. We need to find someone who has already formed a business, get them to help us avoid the pitfalls. I know some people, perhaps they'll give me a few pointers, I suggest you all do the same. We need someone or several somones to step-up and get this underway. Olantern, if you know anyone who can help in corporate law, now would be the time to tell us. We also need accountants, marketing experts, and we either need the Titan Network to step up its game and form a virtual workspace for this company or we need to take it somewhere else. We also need to do some digging and find out for sure just how many of the "sticks" in this bundle that NCsoft owns lock, stock, and barrel. This is happening folks. I'll post again in 24 hours, those onboard had best say so. Keep in mind all, this may be unneeded, or it may be our last chance. But no matter what we need to have the outline done well before November if we are to stand a ghost of a chance if all else falls through.

In a nutshell, this what needs to be done.  Notice all the different steps that ultimately need to be taken.  My concern is that new businesses normally don't start up with less than three months of planning.  We are trying to do something on an expedited timetable here, and I'm not sure how successful we can be at that.  Regardless, we need to start scouting the ground, if not laying groundwork, now.  As Castorcorvus pointed out, ideally, we need someone with business formation and administration experience to pitch in here.  (Don't look at me; I've only ever worked for the government and for academic institutions.)

I strongly recommend that everyone take a look at the SBA website linked in Castorcorvus's post.  One set-up I saw mentioned there that I hadn't even considered is the idea of running something as a cooperative.  I wouldn't normally even think of that kind of organization, which is rarely even mentioned in law school business courses, but it does get around one problem I mentioned in my post on entity choice.  As I noted there, one problem with a "subscribers own the game" structure run as a corporation is that the corporation is constantly having to issue new stock for each new stockholder who joins.  This creates the potential for a lot of organizational problems, since ultimate control of a corporation is apportioned by the amount of stock held.

A co-op removes that issue, since it involves owner-customers by definition.  Most cooperatives out there sell things like food or physical goods (CostCo and Sam's Club being the best-known examples) or services (like credit unions).  I've never heard of anyone even considering running an MMO that way, probably because it would be hard to pay the tremendous start-up costs of an MMO under that system.  There are certainly problems with running a co-op.  Being organized essentially as a democracy of members makes it difficult to make decisions; when have you ever seen even the forums, a tiny subset of the player population, come close to a reasoned consensus on anything controversial?  I shudder to think what would happen if a major balance nerf were required in a game run as a co-op.  But, like other organizational forms, it's worth considering.

With regard to help with starting up, choosing a business form, etc., while it's possible to do these things without having representation, it might be necessary for the planned entity, whatever it is, to have lawyers, especially since we're talking about a business that's expressly set up to buy (or develop a successor to) someone else's IP.  Of course, legal representation is expensive.  However, it might be possible to get around the cost issue, and get some much-needed counseling on entity choice and possibly IP issues, if the planned entity goes to a legal clinic for representation.

Law clinics are a bit like medical clinics.  Normally run through law schools, they involve students, working under the supervision of a professor licensed to practice law, representing actual clients drawn from the public.   I used to be one of those professors, supervising in a clinic handling tax disputes.  (That clinic was ultimately shut down, and now I teach only "regular" law school classes.)  While most clinics are like mine and handle actual disputes, there are also clinics out there that do transactional work, such as starting up small businesses or nonprofits, and the like.  Some even do IP work as well.  The major advantage of these operations is that they're generally free to the client.  While having a student-attorney as your attorney may seem like a bargain-basement option, I can tell you from experience with my own students that they'll usually provide representation at least as good as a regular attorney, partly because they really want the experience (and the grade) and partly because they have more time to work cases than lawyers in practice usually do.  Anyway, that may be an option.  However, it would require the Undetermined Player Entity to have a locality where it wants to be based in mind.  Clinics generally represent "local" groups.  Anyway, it's a possibility.

Before even considering anything like that, though, we need to know what this Undetermined Player Entity will do.  It does need to be something more than "negotiate with NCSoft"; what happens otherwise if those negotiations are unsuccessful, or if NCSoft isn't interested in negotiating?  Developing this kind of plan is a critical, critical thing.  We can't do much with regard to law and form until we know how we want to use them.

In an unrelated matter, I am willing to contribute $10 toward the Nursemaid for TonyV position.  ;D

[Olantern]

On a side note related to the hopefully never-needed Plan Z, while quite a few people have suggested the name Phoenix City, which not only has nice symbolism, but also keeps the "PC" shortening of the name like Paragon City, I'm now leaning more towards "Titan City" as the name of the project and the setting of the game - not just because any attempt to get it off the ground would very likely be organized here, but because it has a dynamic, powerful ring to it, references the Greek mythology that forms such a big part of the CoH lore, and just generally brings to mind the idea of larger-than-life characters and battles, as in "a titanic struggle", "a clash of the titans", and so on.
So whatever kind of company we set up to take care of funding, we should also register the name of the game as a trademark, and register it as a domain name too - even though it would be a totally fan made and run effort, we'd still need to protect it from outside trouble.
I think we should probably do it soon, too - even thought we're all going to fight NCSoft all the way, we're also going to need to be ready to swing into action with Plan Z as soon as possible, if it's needed, just to give some hope to the wider CoH community and help recruit the help we're going to need to get it off the ground.

This post got me to thinking of a number of things.

First, while it's awfully early to start thinking about the specifics of a potential new setting, GG is right that it's a good idea to secure things like domain names as soon as possible.  I caution against using either "Phoenix" or "Titan," though.  While both are great names, for all the reasons GG stated, both are also strongly associated with characters of major comics publishers.  I think a cease and desist letter from DC (Titan) or Marvel (Phoenix) is likely as soon as either name goes into use.  It's a bitter pill to swallow, but these are the kinds of pitfalls we need to avoid, especially at very early stages.  I'm pretty confident that the community that came up with eight and a half years of character names is more than up to the challenge of thinking up something both punchy and original.

Second, I'm not sure about registering the trademark.  Trademarks often are not registered until a good or service has been in use for a while because registration is helpful, but not critical, to establishing that a mark is valid in trademark litigation.  There are two reasons I'd suggest holding off, at least for now, on registration.  First, while I don't know what trademark is like, in the world of copyright, registration at an early stage often opens the registrant up to getting bombarded with a bunch of scams.  Second and more importantly, before registering a trademark, there needs to be some kind of entity to hold it.

Finally, and getting off the subject of this thread slightly, if any of the efforts for a post-NCSoft, player-started operation (whether it's a reborn CoH or Plan Z) go ahead, the players doing the starting need to go into doing so with their eyes open.  This is a risky, risky venture, even with the solid base of goodwill from present CoH players.  As those who follow games news know, most new MMO's fail, and as our experience in the past week shows, even successful ones can have trouble staying in operation.  We have to realize that this is just like starting up any other kind of business or nonprofit foundation.  It's likely that nothing will come of any of our efforts.  The first step in ensuring that the squalling infant of the Undetermined Player Entity survives and grows up to thrives is to recognize the dangers it faces from the instant it's born.  Our faith is strong, but we will need wits and luck, too!  :)

For a more thorough assessment of issues related to my last point there, I recommend taking a look at some of the threads on crowdfunding and Superhobo's recent thread about venture capital issues.