To sum up: Ubisoft’s Assassin’s Creed Unity was released with numerous glitches. To “apologize” for the crappy launch they are giving away free bonus content for all owners and also a free game to players who agreed to buy all bonus content upfront. However, people have discovered that to receive your free game you have to agree to a waiver of liability for all issues relating to the AC: Unity launch.
From a contract perspective there is probably nothing wrong with what Ubisoft is doing. In fact, they may even be overcompensating because the season pass was only worth $30, whereas the game is worth about $60.
However, it seems quite sneaky to offer the game as an apology but also to bury the waiver of liability in it. So then the question is are they really trying to apologize for the game’s issues or are they more concerned about protecting themselves? There was also no mention of the waiver despite the FAQ containing a full block of capitalized terms regarding the free game offer.
I don’t know if the waiver was necessary. Is it really likely they were going to get sued from this? Perhaps their lawyers were worried due to a judge recently allowing a lawsuit against Sony for Killzone: Shadowfall’s graphics to proceed. I just feel like the legal risk they may have eliminated is probably far outweighed by the further damage to their brand.
Finally, reading about this reminded me about our course. We have seen publishers aggressively use EULAs and TOUs to control numerous aspects of games like preventing otherwise legal activities (reverse engineering) and even preventing ownership (games are licensed, not sold).
A great take from Cory Doctorow in Wired magazine. The increasingly reality, as dystopian as it is, of modern day HAL 9000’s telling us in various ways “I can’t let you do that, Dave” is haunting. That we have arrived or almost arrived at that point is frightening. Worth a read: How Laws Restricting Tech Actually Expose Us to Greater Harm | WIRED.
It was truly a great honour to very recently be profiled as part of “Team Open” by Creative Commons . There are many reasons why, but most obviously because it has everything to do with the collaborative efforts around modeling the Video Game Law course in an open way. I understand that my inclusion relates almost entirely to initiatives which are due to the contributions and support of so very many students, guest speakers, colleagues, staff and administration at both UBC’s Faculty of Law and at the Centre for Digital Media, as well as the unflinching efforts of the UBC Centre for Teaching, Learning & Technology.For some perspectives about the open pedagogic design of the course click on: http://videogame.law.ubc.ca/about-2/communityparticipate/
Finally it is impossible not to be mindful of the incredible contributions to world made Creative Commons as an organization and by its founders including Professor Lawrence Lessig and Aaron Swartz (of blessed memory). The vision and focus of the rest of Team Open is a humbling reminder of both what is possible and what is left to be done. To read about all of the Team Open click here http://teamopen.cc/all/ To read my bio, click here http://teamopen.cc/jon/
Don’t forget to donate to creative Commons if you are able.
This is a wonderful talk given December 2, 2014 through the Berkman Center for Internet & Society. Though not directly about video-game creators it is an empirically driven look at how creators understand and implement intellectual property law and strategies. It illustrates many of the issues discussed in the course, particularly the misalignments between creative values (+ value) and intellectual property law as it currently functions. Look out in the 31st minute for a cameo appearance by “moral rights” as a useful mechanism.
A topic I considered for my paper, but later abandoned, was whether your online character (such as in an MMORPG) could be defamed. In certain games, your reputation is quite important and the goodwill you have accumulated in the community can directly affect your ability to enjoy, succeed, and even profit from the game. For example, one could imagine that if you have a reputation for fraud in EVE Online, other players may not want to trade with you or associate with you. Or in Second Life, where you can actually sell virtual property, people might not want to engage in financial transactions with you if you have a reputation of a crook.
So can anything be done if someone defames your online character?
Since a considerable amount of communication in online games is still done through typing, we would probably be dealing with libel. But if voice chat was used, it would be slander.
A libel plaintiff has a cause of action if the words complained of:
1. Are capable of being defamatory
2. Refer to the plaintiff
3. Are published to a third party
a. Malice is presumed upon proof of publication
Thus, the question is, when someone speaks in a defamatory manner towards an online character, are they referring to the plaintiff? I’m unsure what the correct answer to this. On the one hand, the online character is often a different personality than the real person, but on the other hand, it is the plaintiff sitting behind the computer screen playing the game. Can the real person legally be separated from the online character?
I guess the closest non-video game analog of this would be with a pen name for a book. If someone became famous under a pen name, but then later that name was defamed, could the actual author sue?
An interesting idea came to me while writing my paper, which I think could be spun off into a topic all it’s own. When considering the problem of online harassment and privacy protection, I began to wonder: could there be a cause of action arising from damage to a reputation that is not linked to a real-world identity? To put it another way, is it possible to defame a person who remains anonymous?
Pseudonyms are very common in the gaming world, and many (if not most) lets-players market themselves under a username, rather than their real names. If such a person wished to remain anonymous, could they still protect their reputation from libel or slander? Would the law even recognize that there was anything to protect? Does defamation require that the reputation be tied to a specific person in meatspace? Does freedom of expression include the right to communicate anonymously?
While I can’t think of a gaming personality whose identity is not publicly known, I can think of at least one person who fits the description of “Anonymous Celebrity”: the British graffiti artist known as “Banksy“. Despite the fact that he is a world-renowned artist and academy award-nominated film director, the public and the press are completely unaware of Banksy’s true identity, or even if he is a “he”. As more people become famous entirely through their online persona, isn’t it logical to assume that we will start seeing more people like Banksy cropping up in the next few years?
Let’s assume that the law would recognize Banksy’s reputation as something worthy of legal protection. Would he have to abandon anonymity in order to exercise that legal right? If we assume that a person’s reputation does not have to tie to a meatspace human being, what would happen if an entirely fictitious celebrity were defamed? As an example, what woudl happen if the creators of the virtual band Gorillaz, or the virtual idol Hatsune Miku decided to sue on behalf of their creation?
This seems like a really interesting topic, and I almost wish it was October again, so I could write this paper instead. As it is, I think I’ll see if I can shoehorn in a paragraph or two about it, and leave the rest to some future student taking this class.
Edit: I should have mentioned the possibility of legal personhood. Certainly, if an anonymous or fictitious person were to incorporate, they could protect their reputation that way, but I’m talking specifically about unincorporated identities. Even if an anonymous person were to incorporate, it would be strange to see a corporation defending its reputation against very person-specific claims (“McDonalds doesn’t pay child-support!” “Hewlett-Packard was seen leaving Nicki Minaj’s hotel room!”)
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