The Ancient and Mystical Language of the Lawyers

SOE has taken dramatic action against plat sellers in the last week, including action that I predicted earlier that they would not.

Last week, the SOE team completed a sweep of plat sellers and multi-boxing bots using some new tools (presumably these were in the form of statistical software), to ferret these people out. It appears that they took their time and followed the chain of connections between characters, since the day after the crackdown, many servers did not have plat for sale on the IGE website.

Since I said before that I thought the group platbots were within the Terms Of Service, though just barely, I dug into the TOS to see what justification they might have used to shut down the actual bots. Remember when you read this that I am not only not a lawyer, I'm a fictional character!

Anyway, selling accounts or items or plat, for real-world money is less a clear violation of TOS than I thought. Two clauses seem to apply. Clause 7 says

7. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-transferable, revocable license to use the Software solely in connection with playing the Game via an authorized and fully-paid Account. You may not copy (except to make one necessary back-up copy), distribute, sell, auction, rent, lease, loan, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer all or any portion of the Software...

As an aside, I know of retail locations that offer "lan party" services, where customers can come in and play Everquest 2, or Quake or whatever on very-well equipped computers owned by the operator. I presume that these operators have permission from Sony, since it appears to be regulated in the TOS. Although interestingly enough, the operator of such sites may never have clicked through the TOS themselves, so that contract may not be binding.

But the prohibition against sublicense probably covers selling your account name and password to someone else. But does it prohibit selling plat for real-world money? Not that I can see.

The main bulwark against plat selling appears to be in clause 8.

8. We and our suppliers shall retain all rights, title and interest, including, without limitation, ownership of all intellectual property rights relating to or residing in the CD-ROM, the Software and the Game, all copies thereof, and all game character data in connection therewith. You acknowledge and agree that you have not and will not acquire or obtain any intellectual property or other rights, including any right of exploitation, of any kind in or to the CD-ROM, the Software or the Game, including, without limitation, in any artwork, music, character(s), item(s), coin(s) or other material or property, and/or any compilation or copyrightable arrangement of any of the above (collectively, “Rights”), and that all such property, material, items and Rights are exclusively owned by us.

By the great Marr! Was that written in the Ancient Language of Magic? This poor Illusionist didn't know, among other things, what a "right of exploitation" might be, so I used my scrying device (also known as Google) to do some research.

It turns out that "right of exploitation" is a term of art used to describe how someone might use something for profit that isn't necessarily theirs. For example, the ocean does not belong to an individual fisherman, it is typically owned (within the 12 mile limit) by a government. But, assuming he's done the proper paper work, the fisherman can still fish in the ocean, and aquire ownership of the fish he pulls aboard his boat. This is a right of exploitation.

In intellectual property, the situation is analagous. A right of exploitation is the ability to use something for profitable activity. So, by clicking through the TOS, you have agreed that just because you've paid for your account, that doesn't give you any right to try to make some money off of it. (Hmm, probably I should contact SOE if I ever want to sell advertising on this blog.) Coin is mentioned specifically. Now that's what we're talking about!

Violation of copyright in and of itself is somewhat weak in the case of plat selling, since the assertion that coin, in particular platinum coin, is a unique creation of SOE seems a bit weak to my poor, non-lawyered, red and extremely well-coiffed head. But explicit denial of any right of exploitation seems pretty specific and on-target. Once I decipherd the Ancient and Mystical Language of the Lawyers, that is.

So, they have a pretty clear field to go against the accounts that sell plat. And if they take their time, they can trace transaction patterns and find not just the "bagman" accounts, but roll up a whole network. Presumably they are using statistical methods to analyze transaction size and frequency and other behaviors, since every communication and every transaction is recorded, or can be recorded and reviewed by SOE. Reports are that dedicated vendor accounts were closed as well, along with the 6-character farming groups. Under what clause of the TOS were these accounts closed?

Clause 9 addresses "botting" among other things:

9. You may not use any software to modify the Software to change Game play. You may not create, facilitate, host, link to or provide any other means through which the Game may be played by others, such as through server emulators. You may not decrypt or modify any data transmitted between client and server and you may not use, post, host or distribute macros, “bots” or other programs which would allow unattended game play or which otherwise impact game play...

The phrase "otherwise impact game play" is somewhat elastic, but I don't think that's what they used to justify the action. As I mentioned earlier, one of the trouble with the bot hunting groups is that they will hunt in specific areas, train other players, and generally behave in an anti-social manner. Still the multi-boxed bots are only questionably covered by this clause, since the linking of them is done entirely through means of hardware, e.g., wireless keyboards.

So, I think in the end they must rely on clause 6:

6. We may terminate this Agreement (including your Software license and your Account) and/or suspend your Account immediately and without notice: (i) if you violate any provision of this Agreement; (ii) infringe any third party intellectual property rights; (iii) if we are unable to verify or authenticate any information you provide to us; (iv) upon gameplay, chat or any player activity whatsoever which we, in our sole discretion, determine is inappropriate and/or in violation of the spirit of the Game; or (v) upon any violation of the Station Terms of Service and/or the Game Rules of Conduct – both of which are posted at a hotlink at www.everquest2.com.

Moorguard's comments on the message boards supports this. He said that the plat-farming groups caused all sorts of problem with their anti-social play. They monopolized areas, and generally made a nuisance of themselves.

Apparently, many seller-only accounts were banned as well, under the same grounds. Plat sellers have a clear mandate to try to monopolize markets in game so as to drive up prices, making the plat they sell more valuable in game. The driving reason Sony has to fight them is to keep the game accessible to new players, and players that don't play that often. If you have to stop playing for three weeks because of a crunch at work, or because your spouse is sick and you need to deal with the children or whatever, it's pretty discouraging to come back and find that the prices of everything have doubled.

That leads to unhappy players, cancelled accounts, and loss of revenue for Sony. The Everquest 2 continues to show a marked willingness to take action for the long-term benefit to the game, even when it might ruffle some feathers. Highly creative people , such as the Everquest 2 team, often find it difficult to mount a sustained, consistent program, since well, it's kinda boring. The first big sweep isn't boring, but after that it may become boring. Here's hoping that SOE can implement "the miracle of 'and'"; bringing us both highly creative game content and mount a consistent program against players who, for whatever reason, make the game less enjoyable.