Legal push for the release of the IP

[Joshex]

NCSoft does not own our individual character creations, I have read the Terms before the game was shut down.

could actions be taken to force them to release the IP due to our ownership of the Characters we created?

aka a "we own ##% of the game in accordance that we own the rights to the characters we created and they total ##% of the content of the game, therefore NCSoft has no rights to shut down our portion of the game especially seeing as we are a majority. we call for a release of the IP on the grounds that we as a community own ##% of it"

if this fails we can always individually sue on the grounds that they took down our characters with the game and had no right over our individual characters, thus no right to shut them down"

cause enough financial pain over our IP's until they want to get rid of the IP

[McCreed]

NCSoft does not own our individual character creations, I have read the Terms before the game was shut down.

I'm pretty sure NCSoft does own everything created in their game.  Does anyone have a link or a file containing the ToS?  Just out of curiosity, I'd like to see it for myself, but I'm almost positive you're wrong on this.  First of all, no offense but unless you are a lawyer it is easy to misunderstand legalese.  (That's why lawyers make so much money.  People need them to interpret what other lawyers put into agreements.)  Second, even if there is nothing explicit in the ToS, there are other ways in which a company can protect its IP.  The relevant IP laws themselves grant NCSoft rights in every single piece that is used in the costume creator, every bit of code that is used to execute movement, powers and other game interactions.  Third, just look at it from a common sense business perspective: no software company with enough cash to hire better-than-totally-incompetent legal counsel would leave itself open to this sort of challenge.  They'd be open to IP challenges every time they made a change that altered a player's "original" content.  Not a good legal foundation for a business.  Sorry, I wish you were right, but you aren't.

[Lucretia MacEvil]

just look at it from a common sense business perspective:

Another aspect of common-sense business: who'd want to purchase an IP that comes with legal headaches?  Yes, a purchaser could change the ToS, but would they want to offer ANY services to such an obnoxious playerbase?

I'm not saying we shouldn't poke at NCsoft, but we need to be VERY clear about our message ("we want our game back" rather than "NCsoft must Die!").

[Colette]

"...would they want to offer ANY services to such an obnoxious playerbase?"

Lucretia, I'm sure you didn't intend that the way I'm taking it, but just to be clear... we are not an obnoxious playerbase!

The CoH community was very welcoming of new players, answered the "help" channel, caused no problems for NCSoft until the announcement, and enjoyed warm, friendly relations with the developers.

When Paragon closed down, we bought the devs a nice dinner. We didn't have to do that.

If I may speak for everyone here, NCSoft infuriated us not by the simple action of closing the game... we're grownup enough to understand fiscal realities. It was the brutal, sudden, premature way they closed it. It was the number of new items they put up for sale right before the closure announcement, the way those with lapsed accounts were locked out of content forever, NCSoft's wall of silence, the way they bum-rushed the devs out like a Gestapo raid, the way they're hoarding the IP, and any number of other greivances... those transformed us from a loyal and forthcoming playerbase to a pitchforks-and-torches-wielding mob.

"...we need to be VERY clear about our message ('we want our game back' rather than 'NCsoft must Die!')."

I'm perfectly comfortable with both messages. Of course we want our game back. And NCSoft has behaved abominably. For the good of our fellow players, other MMO providers need to be put on notice that if they behave as NCSoft has, there will be consequences.

And any potential buyers need to understand we will be loyal patrons, or vindictive foes, depending upon how we are treated.

[HEATSTROKE]

I dont believe there is one legal leg to stand on with this premise and I dont know one lawyer that would touch it.

[WildFire15]

I don't think there's a legal right either way. After all, what good is it to NCSoft to chase me down for remaking one of my CoH characters in Champs, if they even had that sort of power? Some companies are really protective of their own properties (see Marvel getting uppity over CoH in the first place), but I think that's a fairly grey area. After all, they could go after all the cosplayers if they really wanted to.

[McCreed]

I don't think there's a legal right either way. After all, what good is it to NCSoft to chase me down for remaking one of my CoH characters in Champs, if they even had that sort of power?

I'm not sure that's using the word "character" in the same sense intended by the OP.  If you simply mean a user's concept, backstory, name and general design concept cooked up in the character creator, it isn't 100% clear (without further evidence of all of their documentation) that NCSoft has reserved all rights for itself along those lines, but I would be quite surprised to learn that they have not done so.  Still, could/would they sue you for making a knock-off of one of your own CoX toons in another game?  Doubtful.

Meanwhile, I took the OP's sense of the word to mean the actual in-game avatars that inhabited Paragon City, and I'd say it's virtually 100% certain that NCSoft has a legal right to do what they wish with our characters.  Could we sue them for killing those avatars along with every other digital inhabitant of that game world?  Almost certainly not.

[JaguarX]

Another aspect of common-sense business: who'd want to purchase an IP that comes with legal headaches?  Yes, a purchaser could change the ToS, but would they want to offer ANY services to such an obnoxious playerbase?

I'm not saying we shouldn't poke at NCsoft, but we need to be VERY clear about our message ("we want our game back" rather than "NCsoft must Die!").

yes.

[Knight Light]

I never went to seek out the legal wording in the ToS but I was informed that NCSoft did indeed own our characters by someone by who's information was always reliable. I believed him but never worried about it because, knowing that CoH had something special above all other games, I never expected NCSoft to close City of Heroes.

Certainly not in the disrespectful, traitorous manner that they did close it.

Suing on the grounds that you are stating would never be possible, I don't think.

However,

given my feelings about the world I've been waking into for the past 63 days; I have been asking myself what are the possibilities of successfully mounting a class action lawsuit against NCSoft for intentional infliction of emotional distress or something off that vein. I'd even throw in something along the lines of wilful performance of actions with potential to harm the MMO industry. The economy is in rough enough shape as it is, it requires protecting; no one needs these clowns going around creating customer distrust in as lucrative an industry as gaming. Everyone knows this was a frivolous game shutdown.

frivolous. 1 -Silly, especially at an inappropriate time or in an inappropriate manner.


Of course, my legal knowledge is limited to what you can see on tv, so it's exceedingly difficult to credibly play this out in my head.

It would be my hope that if such a thing were possible, even in loss, that NCSoft might have to present their logic in shutting the game down.

I, hereby, hold NCSoft wrongfully responsible for what they claim is the unprofitability of Paragon Studios.

                                             Signed, Francisco Lucio Fernandez

Kindly excuse me now, I have a pit of unending sorrow to return to.

[WildFire15]

I'm not sure that's using the word "character" in the same sense intended by the OP.  If you simply mean a user's concept, backstory, name and general design concept cooked up in the character creator, it isn't 100% clear (without further evidence of all of their documentation) that NCSoft has reserved all rights for itself along those lines, but I would be quite surprised to learn that they have not done so.  Still, could/would they sue you for making a knock-off of one of your own CoX toons in another game?  Doubtful.

Meanwhile, I took the OP's sense of the word to mean the actual in-game avatars that inhabited Paragon City, and I'd say it's virtually 100% certain that NCSoft has a legal right to do what they wish with our characters.  Could we sue them for killing those avatars along with every other digital inhabitant of that game world?  Almost certainly not.

Yeah, that was sort of what I was thinking but when someone says 'character', I'd think of the name and general concept. The avatar itself, on the other hand, NCsoft own it just as you say.

[McCreed]

given my feelings about the world I've been waking into for the past 63 days; I have been asking myself what are the possibilities of successfully mounting a class action lawsuit against NCSoft for intentional infliction of emotional distress or something off that vein

Forgive me if this post comes off a little preachy.  Please bear in mind that my intentions are good.

While I completely understand the depths of frustration and other feelings that are behind sentiments like those above, I hope that nobody will spend any money investigating or pursuing any sort of legal action against NCSoft.  You'll be wasting your time, energy, money and good intentions.

I don't know if anyone in this community has more legal training than I do.  I did my LL.B. in the early nineties, was called to the bar in my jurisdiction in '95 and practiced a year as an articling student (essentially an apprentice lawyer) before going back to school and pursuing other studies that led me to my current vocation.  I am not a practicing lawyer, and so there may be "real" lawyers reading these boards who can correct me if they think I'm wrong, but I am definitely more than a layperson on legal matters so I hope you'll take what I say here seriously.

So far as I can see, there is zero, none, absolutely no legal recourse for CoH players who want to force NCSoft to sell, release or otherwise enable someone to run their server code without fear of legal repercussions.  Moreover, there is no cause of action for breach of contract, there is no cause of action for violation of property rights, there is no cause of action for negligence, and there is no cause of action of any other sort recognized by American courts that flows out of NCSoft's decision to discontinue its game.  And here's my most important point: Any lawyer who tells you that you have a case to bring against NCSoft is almost certainly a shyster looking to run up bills for pointless legal work.  Unless they're offering to handle your case for free, or on a contingency basis, please don't hire someone to move forward with anything like this.  Even if it costs you nothing in terms of cash, it will still almost certainly cost you time and emotional investment that will lead you nowhere terribly good.

Again, as a devoted fan of the game, nothing would please me better than to have an experienced, practicing lawyer tell me that I'm dead wrong.  However, I would only give weight to such a legal opinion if it were being rendered free of charge and without any possible hope of future billing as a result of offering such an opinion.

I realize that nobody here is talking about actually going ahead with any sort of real legal steps.  I just want to give my advice here and now to make sure that this sort of talk doesn't turn into some well-intentioned Quixotic mishap that ends up leading to real legal bills for somebody, somewhere down the road.

[Triplash]

I'm sure you didn't intend that the way I'm taking it, but just to be clear... we are not an obnoxious playerbase!

We haven't been one so far, no. Far from it for the most part (which I'm genuinely proud to say). But to sue them because we're sad over losing our characters? To actually believe that the law would side with us because our hurt feelings are just that important? We'd become an obnoxious playerbase the moment we tried something like that. And any "good will" value we might have gathered up to that point, would be lost through that one action.

To believe you're so important that rules don't apply to you... to think the only thing that matters is getting what you want... that's about as obnoxious as it gets. We can't be that kind of player if we want to use the quality of our playerbase as a point in our favor.

[Colette]

Oh! As to the OP's question:

"...could actions be taken to force them to release the IP due to our ownership of the characters we created?"

No.

The EULA's carefully worded. When we bought our copy of the game at Best Buy or whatever, we're only buying in the right to sign in. Considering this was my first MMO, I felt kinda bait-'n-switched, but that's how the MMO game works, it seems.

S'why I won't be wasting my hard-earned on any other MMOs.

[Noyjitat]

I wish I could sue them for emotional distress.

My argument being:

Stress relief
Happiness

I'm sure I could name others that feel the same way.

[JaguarX]

I wish I could sue them for emotional distress.

My argument being:

Stress relief
Happiness

I'm sure I could name others that feel the same way.

Well I'm not lawyer but I do not think it works that way.

Given that I'm no lawyer, go ahead and try to see what happens. Worse that can happen if you manage to ge ta lawyer to take the case is a large legal bill for nothing. The best that can happen, you win and single handedly change how business of products do business. Or NCSoft counter sues for it being frivolous. But I say go ahead and go for it. You never know. Hell, a dude successfully sued McDonalds for getting fat.

[Blondeshell]

I don't have anything to add to this discussion, except to provide this for reference to anyone who's curious:

EULA as of Issue 21

[Kaiser Tarantula]

I don't have anything to add to this discussion, except to provide this for reference to anyone who's curious:

EULA as of Issue 21

The important part is Term 6, article B:

(b) You acknowledge, and further agree, that You have no IP right related to any Account ID, any NCsoft Message Board ID, any communication or information on any NCsoft Message Board provided by You or anyone else, any information, feedback or communication related to the Game, any Character ID or characteristics related to a Character ID, any combination of the foregoing or parts thereof, or any combination of the foregoing with any Service, Content, Software, or parts thereof. To the extent You may claim any such IP right(s), You hereby grant NCsoft a worldwide, non-exclusive, no-charge, royalty-free, sub-licensable, perpetual and irrevocable license and full authorization to exercise all rights of any kind or nature associated with such IP right(s), and all ancillary and subsidiary rights thereto, in any languages and media now known or not currently known. Your license to NCsoft includes, but is not limited to, all necessary trademark licenses, all copyright licenses needed to reproduce, display, publicly perform, distribute and prepare derivative works of any such IP right, and all patent licenses needed to make, have made or otherwise transfer, use, offer to sell, sell, export and import related to such IP right(s). In addition to the provisions of Section 13 below, You further agree to defend, indemnify and hold harmless NCsoft with respect to any claim by third-parties that any such license to any such IP right(s) misappropriates, violates or infringes any third-party IP right or other proprietary right.

Specifically,

You acknowledge, and further agree, that You have no IP right related to any ... Character ID or characteristics related to a Character ID.

Translated from legalese: You do not have the rights to your character names or the characters attached to those names.

To the extent You may claim any such IP right(s), You hereby grant NCsoft a worldwide, non-exclusive, no-charge, royalty-free, sub-licensable, perpetual and irrevocable license and full authorization to exercise all rights of any kind or nature associated with such IP right(s), and all ancillary and subsidiary rights thereto, in any languages and media now known or not currently known.

Translated from legalese: If somehow you claim any intellectual property rights to the characters or content you've made, you grant NCsoft carte blanche to do whatever the hell they want with the IPs used in this game, via whatever media they choose to do so, whenever and however they choose to do so.

In addition to the provisions of Section 13 below, You further agree to defend, indemnify and hold harmless NCsoft with respect to any claim by third-parties that any such license to any such IP right(s) misappropriates, violates or infringes any third-party IP right or other proprietary right.

Translated from legalese: You can't sue NCsoft for what they do with those IP rights, either.  If somehow NCsoft gets in legal trouble for using IPs you've submitted to the game, they can ask you to foot the legal bills.

Now, admittedly, I've seen legal argument made that EULAs are ToS 'agreements' such as these aren't enforceable, as it's impossible to provide physical documentation that the user has both seen them in their entirety and agreed to them.  But if a judge determines this EULA is lawful and enforceable, than anyone trying to sue for their IP doesn't have a leg to stand on.

Keep in mind, I'm no lawyer nor judge nor am I pretending to be either.

[Blue Pulsar]

NCSoft does not own our individual character creations, I have read the Terms before the game was shut down.

Actually, if you read the EULA, they do specifically own everything about our characters. Right down to any stories we put in the "info" screen.

[McCreed]

Now, admittedly, I've seen legal argument made that EULAs are ToS 'agreements' such as these aren't enforceable, as it's impossible to provide physical documentation that the user has both seen them in their entirety and agreed to them.  But if a judge determines this EULA is lawful and enforceable, than anyone trying to sue for their IP doesn't have a leg to stand on.

When you say that you've seen legal argument made that EULAs etc may not be enforceable, what sort of legal argument are you speaking of?  There's about as much evidence that a user has read and agreed to the entirety of a EULA like this as there is evidence that a typical home buyer has read and agreed to the entirety of an Agreement of Purchase and Sale.  The necessary act of clicking "I agree" on a EULA is the functional equivalent of a party's signature on a paper contract.  A court would have to find the fine print of the EULA so outlandish as to run contrary to any reasonable expectations of the buyer (for example, if the EULA indemnified NCSoft against damage caused by a virus hidden in their client code).  Nothing in this EULA seems terribly surprising, so I doubt any court would hesitate to hold the licensee to the letter of it.

[Blue Pulsar]

"...would they want to offer ANY services to such an obnoxious playerbase?"

Lucretia, I'm sure you didn't intend that the way I'm taking it, but just to be clear... we are not an obnoxious playerbase!

You misunderstood him/her, probably because you didn't also read the first post in it's entirety. If you did, you missed the part where he said we should sue the pants off of NCSoft for the IP. She was referring to any playerbase that would (try to) cause a truckload of legal issues for a company. Such an action by a broad group of people would actually cause potential buyers of the IP to back away slowly from any sale for fear of the same thing happening to them.

"...we need to be VERY clear about our message ('we want our game back' rather than 'NCsoft must Die!')."

I'm perfectly comfortable with both messages. Of course we want our game back. And NCSoft has behaved abominably. For the good of our fellow players, other MMO providers need to be put on notice that if they behave as NCSoft has, there will be consequences.

That would be one way to look at it, or you could look at it from a company's standpoint and do as I mentioned before. Think to yourself, or board members for that matter, "Wow, these CoXers are all a bunch of madcaps. I don't think I want to inherit all of those players as customers."

And any potential buyers need to understand we will be loyal patrons, or vindictive foes, depending upon how we are treated.

If we appear as though there is a good chance of the second, we might as well throw in the towel now. No company is going to risk bad image and potentially losing face along with many millions of dollars when they may only be adding 5% to their bottom line. Let's be honest here. CoX made good money, but it was not a cash cow.

Basically, it would seem that you have no problem with the message, "Hey [big time software company here], come buy our game and you can make a little more money. Just don't turn our game off, or we'll reek havoc on you. " But it will not, I repeat, NOT make us more appealing to another company.