Good day.

When I arrived at the courthouse I was approached by a woman who sought my counsel for legal advice. I had an hour to kill so we sat in an open room in the courthouse at which point she told me about a deceptive trade practices act claim she has against a local mechanic. This peeked my interest since that is an area of law I am familiar with. Making a rookie mistake, I told her I would represent her in the matter. I then discovered that this wasn't an original case before the court, but a de novo appellate hearing...in 30 minutes. My stomach sank. Now, it is really hard for me to begin to "freak out" but this was enough to cause it. I needed time, time I didn't have, to review the case, the issues, the facts, do legal research. The whole nine yards. This, by the way, was a DTPA claim with damages that amount to $27,000+, with, depending on the facts, a trebling of economic and mental anguish damages, possibly pushing the final judgment into the 6 digit range.

I quickly learned the procedural history of the case from the various papers my client gave me. My client had attempted to represent herself in the original hearing against another attorney. She however, was unaware of the importance of laying a foundation to introduce evidence. Thus, the lower court asked my client to refile her case, however, he also sent both parties a letter of final judgment. That "final judgment" unfortunately bars my client from refiling, and thus the other attorney filed a motion of res judicata (double jeopardy) to dismiss the second filing. The lower court judge overruled his motion, so the attorney appealed that decision to Judge Sinz's County Court at Law.

Thus here I am, having heard this person's plight. I knew if I withdrew she would have no chance and Judge Sinz would have no option but to overrule the lower judge's decision. So I stood my ground in the face of a proverbial oncoming procedural train. It was my belief that the final judgment entered was a mistake on the lower court's part, and the intent was not to enter a judgment, but to no suit the case (dismiss it without a finding on the merits). That is what I argued and requested that time be given both parties to submit a writing to Judge Sinz regarding the res judicata issue. My plan worked beautifully.

Had we had a trial on the merits then and there, we likely would have lost because I was not familiar with her case, facts, and had not been able to research legal principles to apply.

Had Judge Sinz ruled to overrule the lower court and grant the motion for res judicata, that would have been the end of my clients case.

Instead, I found a third option. Buy time for my client to get the lower court judge to weigh in and hopefully vacate what I can only assume is an incorrect letter stating the case was dismissed on it's merits.

Unfortunately for my client, even though she has what seems to be a solid case, she is in a procedural nightmare. On top of that, my first hearing with a court reporter in the court room turns out to be an appellate issue, for which I have 30 minutes to prepare, I manage to avoid a trial de novo for which I had no time to prepare, revisit the issue of res judicata to correct the erroneous procedural matter that could be used to appeal any decision from a de novo hearing had it been had, and buy time in hopes that the letter sent saying it was a final judgment is incorrect and we go back to square one.

There were other issues involved, but due to confidentiality I can not mention them here. However, I will say that with the given facts, I would love to try this case. I could have avoided this, but I felt truly sorry for this woman who, despite seeking justice be served, became a victim of her own folly and the sword that she committed sepiku with was the system itself. The rules of procedure are not intended to be a shield for ne'er-do-wells to hide behind, but rather to create a level playing field for anyone that would seek the justice our legal system affords.

I would be a poor excuse for an attorney if I didn't care and I would be nearly as bad if after having heard this woman's ordeal, to have stepped back and let her get destroyed in the courtroom. I could not, and would not allow that to happen. Even if she loses and her claim is forever barred, I hope that she remembers that someone did stand up for her rights as a litigant and what happened to her is not what our legal system and MY profession is about.

I found that a humorous coincidence and perhaps a good omen.

Many people I have met over the years seem to have forgotten that principle that our criminal justice system is based on. This rule and various protections aren't in place to let guilty people go free, they are there because it is BETTER that a guilty person go free than one innocent person be wrongfully convicted.

So while I represent specific clients, whenever I stand with them in court, I am standing there for that person, for you, and for the ideals our country was founded on.

Now, I don't think any sources deny that the purchaser of the game does not own the disc. However, you really can't transfer the disc when dealing with most MMOs. To play the MMO itself requires a key on the software to activate your account. This key allows you to create a single account capable of playing different characters on different servers that the game publisher owns.

Since this disc with its own unique key is tied to an account; and the ToS & EULA restrict transfer of characters; it makes it useless to transfer the disc. With a unique key there can only be one account and selling/buying/transfer of account or characters on that account is a violation of the ToS/EULA.

Now, keeping in mind the pixelated[sic] form of the character you create is stored on the game publishers servers, whose property is it? Some say that you are buying the disc, but the virtual/pixelated characters/items/etc. are still property of the game publisher. The most common reason I hear is that because the virtual representation of these sets of 1's and 0's are stored on the game publishers servers, they remain the property of the game publisher. I would refute this claim with the fact there is court precedent (or, at least dicta) that says that the location of storage of media is not determinative of who owns it. If we think about the storage of virtual material we can see that a rule in which location of storage creating an ownership interest would cause many problems for many people. Those pictures you took last Christmas? Upload them to Picasa, Tinypic, Photobucket, etc., and they are no longer yours, or alternatively, a joint ownership of the property is created between the companies that run those hosting servers and the people that upload them. In other words, hosting can't possibly create property rights in digital media, because to do so would create too many property owners in the media in question.

An argument for the player that should be made with respect to the question of "whose gold is it anyway?" is the old "I put time and value into this property therefore, it's increased value belongs to me", infra "time, toil, talent, and effort". Now, it's important to keep in mind that the EULA/ToS doesn't preclude transfer of the disc itself, but rather the property created under that account, namely characters and their possessions. However; if not for the original purchaser/player putting time into the account from its inception; the account tied to the unique key would have no value but the cost of the disc itself. In other words, original purchasers would only desire to transfer the account if there was added value to the account that comes in the form of lots of in game currency on the characters, or a high level character with valuable items. Now, back to the time, toil, effort, and talent argument. The game publisher certainly doesn't play the characters you create for you. In fact, when you create an account, there is nothing on the account. You must create, name, and choose your own characters skin, face, hair color, etc. Then that character starts off with nothing. You must venture out into the virtual world and complete objectives to build wealth and acquire items. Thus, 100% of the time, toil, talent, and effort of the newly created value of the account lies solely with the purchaser. This ttt&e that is put into the character is no small amount of time either. It takes months, usually over a year to create a valuable enough character or account that others would be interested in purchasing from the original purchaser.

Well, just a single argument against the transfer of ones account; a counter to that argument, and an argument supporting ones right to transfer their account. I think that's all for today. Comment if you have any opinions below, and thanks for reading.

Author's note: The 1 at the end of the exclamation marks in the title is not a typo but rather an internet joke known among gamers.

This line of games owes its existence to the table top roleplaying franchise in which players would create characters to act and react to a world created by another player, the game master. Players would choose acts and go into places created by the gamemaster. These players acted in an imaginary world all their own, hence "roleplaying". While in the early 80s there were quite a few lesser known role playing games for basic computing systems, Nintendo came onto the scene with its new fangled device that gave video game creators a platform to develop more elaborate games of the genre, Final Fantasy probably being the powerhouse of the video game role playing genre.

Then came the internet. The web/networking existed before the prevalence of the internet as we know it today, very few remember what the net was like before the .com bubble; i.e. usenet groups, Prodigy, etc., but I digress. MMOs actually existed well before the prevalence of the average home user being connected to the big WWW. They began in text form and older gamers will remember these as MUDs, which stood for Multi-User Dungeons. The predecessor to these was a game actually on ARPANET, developed by some MIT geeks. ARPANET was the grandfather of the internet, btw, ran by the Department of Defense and used by University's for research. Yeah, people were using government equipment to play what amounts to Dungeons and Dragons during the cold-war era.

Anyway, point being, MMOs were pretty well known by the die-hard geeks before the commercial blockbuster, Ultima Online. Then came Everquest, which topped UO subscribers, then a few other smaller titles, and then World of Warcraft. I believe WoW just came along at the right time, during a massive cultural and economic explosion of the web and the slow societal transition to the point where being a geek became the new James Dean. Thats right, instead of the leather jacket, slicked back hair, and cigs rolled into the sleeve, the James Dean of the new millennium sported Buddy Holly glasses, corduroy pants, and usually some t-shirt with a reference most people would not have gotten in the 90s (my fav being "Choose Your Weapon" featuring a set of multisided dice).

So that explains the birth and popularity of the MMO, but what problems has this caused in the virtual world of the net?

Well, one doesn't have to read far to figure out that the concept of "imaginary/abstract" property has become more prevalent than "hard" property. Property taking on a shape over your computer that in reality is just a bunch of 1s and 0s. I don't think anyone denies that programmers hold intellectual property rights to their work, but it has been very difficult for legal scholars and courts to exactly determine where the line should be drawn between the creators rights and the users rights.

This turned into a much longer post than I thought, but I thought it a good idea to give some background into where this phenom came from and to understand the cultural force behind it; so for today, I will leave you with a brief problem and the readers thoughts.

The problem occurs when you go to a store and pay real money for a game that allows you to act in a virtual world. The developers of this software understandably wish to protect their rights in a lucrative game such as WoW. Thus, they include what is called an "End User License Agreement" which for simplicity's sake, I will call a contract between the person using the software and the company that you will refrain from certain acts if you use the game. You must agree to this EULA to play the game. Thus, the first question to ponder is, how much of a right is being transferred when you purchase a game such as this. Many people don't look at game purchases in this light, but it is tantamount to someone telling you that if you purchase a car, you are restricted to certain uses. This already disagrees with old property law; as a buyer of property is imbued with the "4 sticks", the right to use, the right to exclude others, the right of transference, and the right of destruction. Those terms are pretty self-explanatory. However, modern EULAs have altered this basic concepts of property law, restricting, and sometimes all together eliminating one or more of these "four sticks". Thus, the question I pose is, what ARE you buying when you purchase a disc containing a bunch of 1s and 0s?

The second question springs from the first. In your opinion, assuming that you hold a certain set of rights in this newly acquired property, how does a "virtual" world; where millions of people interact and create a self sustaining economy that exists on hardware owned by the company that makes the game change the ownership or the "4 sticks" while inside that virtual world?