Light A Fire: Contact Consumer Interest/Consumer Protection Groups

[Victoria Victrix]

This is the second of my "Light a fire under NCSoft's tail" posts.

We have a couple of very interesting threads that cropped up in the past couple of days.  The White Paper, and the employee reviews of NCSoft West at Glassdoor.com.

Both of these make good fodder for consumer interest/consumer protection posts because they indicate two things.  NCSoft in specific, and extra-US companies in general, cannot be counted on to protect the interests of US consumers--and NCSoft in specific, and extra-US companies in general, cannot be counted on to continue a profitable US product produced by a US firm under their umbrella if it is not profitable enough, or profitable in their geographical sphere (Korea in this case).

Why should this matter to Consumer Protection groups?

Because companies operating outside the US are buying up US companies all the time (as NCSoft did when it bought Paragon from Cryptic).  What if the product was a medicine, or a therapeutic device, or even something as simple as someone's favorite brand of (fill in the blank)? This example can hit home with anyone.

Because companies operating outside the US are NOT subject to the same consumer protection laws as those operating within the US (as we saw with the recent pet-food poisonings and lead-painted childrens' toys scandals).

Time to bend to the keyboard and start posting our story--pointing these things out--on consumer protection boards. 

It is also worth pointing out the substantial time-and-effort investment we put in these games.  This isn't like a single player game with a known endpoint that you work to, or movie that you buy knowing you will watch it to the end, maybe a couple more times, then it goes on the shelf.  This is more like an investment in a set of golf clubs, knowing you will improve, knowing you will get different experiences on different courses, knowing you will be paying more fees to play golf, and suddenly being told that you have to give back the clubs and all the pictures and golf instruction videos, and any prizes or memorabilia you have collected and will never play golf nor see golf again.  You could point out that in some games, that time-and-effort has accumulated to the point that the players could sell their accounts for a substantial amount of money, as a player recognition for the fact that effort+time=money in the game world, just as in the real world.

Why does this matter?

Because a significant number of people will go and sign our petition.  An equally significant number of people will complain on our behalf to NCSoft.  And a small but interesting percentage will complain to their lawmakers, or the Consumer Protection Agency.

This will all reflect badly on NCSoft.  NCSoft particularly does NOT want the attention of foreign lawmakers.  These are the people who make international trade treaties, one of which is being negotiated right now.  The government of Korea might even take a (negative) interest.   

At the very least this puts more negative public opinion pressure on NCSoft at a time when they are about to debut yet another craptastic grindfest in this country.

[Segev]

Again, we really don't want to set this up as oppositional. NCSoft may not be acting as we'd like, but painting them as bad guys makes them have the options of "looking weak" and "looking evil." Most high-powered Eastern corporate types don't fear the latter as much as the former (it's a cultural thing; "evil" is relative, while "weak" is piranha-bait), and will take vindictive action just to prove they're NOT weak if you try to ultimatum them like this.

[Osborn]

Again, we really don't want to set this up as oppositional. NCSoft may not be acting as we'd like, but painting them as bad guys makes them have the options of "looking weak" and "looking evil." Most high-powered Eastern corporate types don't fear the latter as much as the former (it's a cultural thing; "evil" is relative, while "weak" is piranha-bait), and will take vindictive action just to prove they're NOT weak if you try to ultimatum them like this.

Wouldn't you also come off weak if you kept spending money for a company that's known to be "evil" though? The piranha-bait argument does go both ways.

I mean, I'm not saying we should start up litigation until the Paragon Studios staff has completely dissolved and there's no chance of saving the game, but it shouldn't be entirely off the wall.

I'd personally rather see the game saved by it being sold to somebody who will manage it, than all my money spent on it (which I'm sure doesn't stand up to some of you guys' here, but is still an considerable amount for a 'child's hobby') returned.

[DrakeGrimm]

I'm a proponent of the "Blue Side" philosophy when it comes to this movement. We stand our ground, we don't give an inch, and we use positive energy to spread the word and produce media attention.

What VV proposes is still within that purview. The wording of the individual messages will come down to those who submit them. We will be civil, we will be courteous, and we will let the media and assorted interest groups draw their own conclusions.



...and if, ultimately, they choose to treat us as piranha bait, they'll find out that some of us are Red Siders at heart, and we got teeth.

Again, however, it is better to handle this with a 'Blue Side' mindset, and to embrace positive energy and outlooks. For now.

[Segev]

Wouldn't you also come off weak if you kept spending money for a company that's known to be "evil" though? The piranha-bait argument does go both ways.

I mean, I'm not saying we should start up litigation until the Paragon Studios staff has completely dissolved and there's no chance of saving the game, but it shouldn't be entirely off the wall.

I'd personally rather see the game saved by it being sold to somebody who will manage it, than all my money spent on it (which I'm sure doesn't stand up to some of you guys' here, but is still an considerable amount for a 'child's hobby') returned.

You're mistaking me. I'm not saying we shouldn't be striving to get NCSoft to do exactly as you propose. What I'm saying is we'll fail if we try to set them up to be the monster. What we need to do is make sure that whatever pressure we put on them, we leave an "out" wherein they save face and come out looking like heroes. And we need that "out" to be doing what we want. We need it to look like THEIR victory when we get what we want, because that way they're on our side in the end.

That's all I'm saying.

[Codewalker]

I have to wonder, given the amount of player-created content in a game world like this, if there isn't some possibility of legal recourse. Costumes, bios, supergroup bases, and most of all, player-created arcs in the Architect system. Though they may require the base IP, these derived works are still subject to copyright law and belong to their authors. Correct me if I'm wrong, but I believe that in the US at least, copyright cannot be legally transferred without a signed contract with certain requirements on it -- no matter what clickwrap licenses try to tell you.

If it comes down to it, and we get to the point where the community is making a reasonable offer to either buy out or indefinitely license the IP (and I do realize that the word 'reasonable' is the tricky part here), and we find that NCSoft won't budge, I wonder if there might be an option to pursue legal action to force a sale on the basis that the authors are unable to access their copyrighted works -- denied access despite good faith attempts to pay the license (subscription) fees.

Given the jurisdictional issues, it's possible that such a decision may be unenforceable. However if they don't cooperate, a court could threaten to nullify the copyright altogether, returning it to the public domain. While I don't realistically see that happening, the threat alone could be a useful bargaining chip.

Is there any precedent for an action like that?

[Victoria Victrix]

I have to wonder, given the amount of player-created content in a game world like this, if there isn't some possibility of legal recourse. Costumes, bios, supergroup bases, and most of all, player-created arcs in the Architect system. Though they may require the base IP, these derived works are still subject to copyright law and belong to their authors. Correct me if I'm wrong, but I believe that in the US at least, copyright cannot be legally transferred without a signed contract with certain requirements on it -- no matter what clickwrap licenses try to tell you.

If it comes down to it, and we get to the point where the community is making a reasonable offer to either buy out or indefinitely license the IP (and I do realize that the word 'reasonable' is the tricky part here), and we find that NCSoft won't budge, I wonder if there might be an option to pursue legal action to force a sale on the basis that the authors are unable to access their copyrighted works -- denied access despite good faith attempts to pay the license (subscription) fees.

Given the jurisdictional issues, it's possible that such a decision may be unenforceable. However if they don't cooperate, a court could threaten to nullify the copyright altogether, returning it to the public domain. While I don't realistically see that happening, the threat alone could be a useful bargaining chip.

Is there any precedent for an action like that?

I'm going to go on written-word precedent here, because that is all the courts would be able to go by.

When a written work goes out of print or becomes otherwise inaccessible, the rights revert automatically to the author, at a date that is specified in the contract; usually about 3-5 years.*  Since there is no contract with the authors of the work in City, it is reasonable to assume the rights revert immediately.

HOWEVER

Most (if not all) courts will rule that it was your responsibility to keep a copy of your "work" (and indeed, you have, it will be in the City of Heroes folder even after you published it).  Therefore there is nothing to sue for.


*A sad little story in which I am going to withhold names to protect the dead.  A critically acclaimed SF novel was functionally inaccessible for years for the average reader, because the author had quarreled fatally with the publisher/editor, who in revenge, had a special printing of just 100 books every year, which were warehoused.  Thus, the book was technically still in print, and the author could not get the rights reverted and have it printed elsewhere.  The publisher/editor is now dead, the book is now accessible again.

[dwturducken]

I'm going to go on written-word precedent here, because that is all the courts would be able to go by.

When a written work goes out of print or becomes otherwise inaccessible, the rights revert automatically to the author, at a date that is specified in the contract; usually about 3-5 years.*  Since there is no contract with the authors of the work in City, it is reasonable to assume the rights revert immediately.

HOWEVER

Most (if not all) courts will rule that it was your responsibility to keep a copy of your "work" (and indeed, you have, it will be in the City of Heroes folder even after you published it).  Therefore there is nothing to sue for.


*A sad little story in which I am going to withhold names to protect the dead.  A critically acclaimed SF novel was functionally inaccessible for years for the average reader, because the author had quarreled fatally with the publisher/editor, who in revenge, had a special printing of just 100 books every year, which were warehoused.  Thus, the book was technically still in print, and the author could not get the rights reverted and have it printed elsewhere.  The publisher/editor is now dead, the book is now accessible again.

I'd like Piers Anthony for 500, Alex. 

[SithRose]

I'd like Piers Anthony for 500, Alex. 

And unless my memory fails me, the book in question was Mute. I *could* be misremembering, I'm in the middle of migraine-fog right now.

[dwturducken]

I don't know who she means, but Piers Anthony is a known, well, curmudgeon.  I like his stuff, and read quite a bit as a teen.  I have a sort of allegory to his novel Ghost when it comes to his stuff, though the last books I read with my 10year old were the first three Xanth books.

ANYWAY, he had some issues with the industry which he details rather entertainingly in But What Of Earth?. As a result, he's my goto whenever someone mentions a writer having issues with a publisher, because it's just so damned plausible.

[StarRanger4]

This also sounds like something we should point out to the various "Better Business Bureau"s of Mountain View, CA and Seattle.  Someone also mentioned Austin, but from what I understand NC Austin is blameless; they strictly feed water and massage the actual Server hardware.  Which, if I'm right (and I'm lucky if that happens more than 50% of the time) the only thing the Austin people are guilty of is being employed by the real villians of the piece

[Horror-Frost]

I think that if we start adopting this measure and actions like it, we need to admit two things:

-City of Heroes is indeed lost and will be shut down November 30th
-This movement now exists to bring some measure of justice for what has transpired.

[laufeyjarson]

I have to wonder, given the amount of player-created content in a game world like this, if there isn't some possibility of legal recourse. Costumes, bios, supergroup bases, and most of all, player-created arcs in the Architect system. Though they may require the base IP, these derived works are still subject to copyright law and belong to their authors. Correct me if I'm wrong, but I believe that in the US at least, copyright cannot be legally transferred without a signed contract with certain requirements on it -- no matter what clickwrap licenses try to tell you.

If it comes down to it, and we get to the point where the community is making a reasonable offer to either buy out or indefinitely license the IP (and I do realize that the word 'reasonable' is the tricky part here), and we find that NCSoft won't budge, I wonder if there might be an option to pursue legal action to force a sale on the basis that the authors are unable to access their copyrighted works -- denied access despite good faith attempts to pay the license (subscription) fees.

Given the jurisdictional issues, it's possible that such a decision may be unenforceable. However if they don't cooperate, a court could threaten to nullify the copyright altogether, returning it to the public domain. While I don't realistically see that happening, the threat alone could be a useful bargaining chip.

Is there any precedent for an action like that?

You don't own your material.  You gave it all to NCSoft when you put it in the game.  That's pretty clear in the EULA.  Foo.

[Codewalker]

You don't own your material.  You gave it all to NCSoft when you put it in the game.  That's pretty clear in the EULA.  Foo.

US Copyright law disagrees:

http://www.copyright.gov/title17/92chap2.html#204

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

(emphasis mine)

IOW, by accepting the EULA you agree to give NCSoft a permanent, nonexclusive license to use your characters and stories, which are automatically copyrighted by you just by creating them. However, they don't own them; you still retain all your rights as well. You can't simply click those away even if you wanted to.

Lawyers put all kinds of unenforceable BS in EULAs to try and see what sticks (or fool people who don't know their rights).

Hell, EULAs in general are only semi-enforceable to begin with. In non-UCITA states (all except for Virginia and Maryland), the court record for EULA enforcement is spotty. Some upheld, some overturned, but it's always on a case-by-case basis.

[Victoria Victrix]

I'd like Piers Anthony for 500, Alex. 

*insert fail-soundbyte*

You will probably never guess who it was, because it was kept VERY quiet and VERY private.

[Victoria Victrix]

US Copyright law disagrees:

http://www.copyright.gov/title17/92chap2.html#204
(emphasis mine)

IOW, by accepting the EULA you agree to give NCSoft a permanent, nonexclusive license to use your characters and stories, which are automatically copyrighted by you just by creating them. However, they don't own them; you still retain all your rights as well. You can't simply click those away even if you wanted to.

Lawyers put all kinds of unenforceable BS in EULAs to try and see what sticks (or fool people who don't know their rights).

Hell, EULAs in general are only semi-enforceable to begin with. In non-UCITA states (all except for Virginia and Maryland), the court record for EULA enforcement is spotty. Some upheld, some overturned, but it's always on a case-by-case basis.

Codewalker is correct

[Victoria Victrix]

NCSoft has an unlimited license to use your work, but the copyright remains with you.

However the onus is on you to keep a copy of your work.  So if it vanishes with the game, and you don't have a copy of it, you cannot go after NCSoft because you don't have a copy of it.

[Enson Red Shirt]

there is actual legal precedent where a court ruled in favor of a plaintiff that virtual property purchased with real money is the users in a vid game i think it was with second life i will find it and post it