Game Studies

Norrath: New Forms, Old Institutions

Abstract:

In a knowledge-based economy, where intellectual property and creative innovation are key sources of value and wealth, social interactive environments such as EverQuest destabilise notions of property and ownership. They force us to redefine what content is, who produces it, who owns it, and who controls access to it. EverQuest is not only a publication, it is an ongoing service as well. Players are not only consumers or end-users but producers and co-creators as well. As online applications like EverQuest become more widespread the instabilities and uncertainties that arise from the creation of these hybrid publication/service applications become more apparent. Institutional and legal practices that hold for a publication may not be appropriate for a service. This paper explores some of the issues raised by games such as EverQuest around intellectual property, contracts, rights and obligations, governance and labour.

Keywords: MMOGs, Intellectual Property, Contracts, Governance, Labour

Introduction

Publication in interactive online environments has become increasingly sophisticated in the past decade, and EverQuest represents an interesting and successful example. Interesting not only because EverQuest is engaging to play, but also because it challenges some of the more firmly held beliefs and practices of the publishing industry itself. In a knowledge-based economy, where intellectual property and creative innovation are key sources of value and wealth, social interactive environments such as EverQuest destabilise notions of property and ownership. They force us to redefine what content is, who produces it, who owns it and who controls access to it. EverQuest is not only a publication, it’s an ongoing service as well: players are not only consumers or end-users but producers and co-creators as well. As online applications like EverQuest become more widespread, the instabilities and uncertainties that arise from the creation of these hybrid publication/ service applications become more apparent. Institutional and legal practices that hold for a publication may not be appropriate for a service. EverQuest is not just a piece of intellectual property to be managed through a set of distribution rights and licences. It is also a series of communities embodying social networks and peoples’ online identities. The terms of control of massively multiplayer online games (MMOGs) like EverQuest are managed through intellectual property and contract law and this is problematic. The publication industry finds itself in the role of community manager in these environments. Who they should be accountable to and for what reasons, are issues very much unresolved. The rights, obligations and responsibilities of players are similarly unresolved. This paper explores these issues based on ethnographic research, interviews and textual analysis carried out between 2002 and 2005. The popularity of EverQuest has waned since then, but the issues described here pertain to many online interactive social environments, including World of Warcraft and some of the increasingly ubiquitous social networking sites where users are similarly involved in co-creation of content and generating social networks within the confines of proprietary spaces, and where intellectual property and contract law are similarly part of the mix in determining the shape of social and cultural relations.

How EverQuest is Different from Other “Conventional” Publications

Production Cycles

Conventional publications - products like books, television programs, movies and music - take a particular form. They are finished texts that are distributed to audiences via a number of different media and under a variety of legal conditions. Publishers often manage the rights to these finished texts - rights that deal with distribution and reproduction. Consumers encounter these texts and actively interpret them, but generally are not involved in changing them. They might (or might not) create derivative works from the initial text (and culture proceeds on the basis that every piece of creativity to some extent relies on other works for its genesis), but generally speaking texts managed by publishers are “fixed” in form (a fixed expression of ideas). There is a reasonably linear progression from author(s) or creator(s), who create a text, which is then published and distributed to audiences or consumers. The distinctions between producers and consumers is clear and the differentiation of their roles, agency and power in the generation of cultural forms is the basis of much of the media research that has been conducted over the past three decades. Political economists have focused on the relations of production (e.g., Miller et al, 2001; Garnham, 2000) and cultural studies theorists have focused rather heavily on reception/ audience studies and consumption practices (e.g., Hall, 1980; Fiske 1989; Hartley 1999). EverQuest and other MMOGs follow a different production cycle and, in doing so, undermine a number of institutions, practices and conventions which underpin the functioning of publication regimes as well as traditional approaches to researching media. The new formations found in games like EverQuest represent a convergence not only of media but of roles, agency and power relations such that the models through which we view such media need to be reconsidered. The work of Potts, Cunningham, Hartley and Omerod (2008) which suggests new models based on social network markets, and work done by Banks and myself (2008) which attempts to apply such new models to games production, represent some possible new ways of thinking about the emergent forms we are witnessing.

When EverQuest was published in 1999 it was in no way a “finished” text. The game being played years later has been modified, tweaked, added to and deleted from. The code has changed, the rules have changed, the images and words have changed. It has been populated with communities. It changes with every player keystroke and action. It changes with every new relationship - be it a friendship, a romance or a rivalry. It changes with every interaction between players. Thus it could not sensibly be defined as a finished text at the point of publication in 1999, nor a “fixed expression of ideas”- a term which underpins much intellectual property and copyright law.

Equally as important as the mutable nature of the text is the process through which it is changed. Certainly the developer/ publisher Sony Online Entertainment (SOE) are responsible for the changes in code and expansion pack additions. But many other changes are wrought by the player population through their engagements with the game, the publisher, the development team, the customer service team and each other. The model for production has shifted from the linear processes that are deployed with more conventional media outlined above, to a networked process. In a networked model of production, publication occurs continuously, and production is shared between developers and players, often through the mediations of the customer service teams.

What is Produced? Defining Content

There is a danger in allowing existing legal definitions and understandings of “content” to drive what is understood by content in the new interactive social environments. Such definitions are derived from how content has been defined in relation to books, movies, television, performance, music and so on. Existing copyright and intellectual property law has some quite finely granulated definitions of content - down to what proportions of works may be copied under what circumstances, who owns which part of a piece of work and how the rights to that piece may or may not be used and reproduced (Rimmer, 2005: 42).

A very different definition of content is arrived at if the constraints of legal definitions and their cumbersome histories are put to one side and an MMOG like EverQuest is analysed from the perspective of the player engaging with content in the game environment. When players log into EverQuest, what content do they engage with? There is of course, the game interface. A player will slip on an avatar and enter Norrath. He or she will manipulate the user interface, travel through spatial representations, encounter images and interact with NPCs and objects in the environment. They will encounter rules and goals. To this extent he or she is engaging with content created by the developer. But if this was all a player engaged with, Norrath would be a relatively tedious place to visit.

Because the whole point of a multiplayer game is its multiplayer-ness. Players log into Norrath, and they start talking to their friends. They find their guild mates and go raiding. They hook up with their online partners, their offline partners, their family who is playing in the room next to them, or across the country from them, their friends they’ve never met in the flesh or their friends they went to school with. When players are taking down a mob, they’re using the code and the environment created by the developer, and the rules and all those other defining parameters so painstakingly built up by the developers. But they are usually taking down the mob with other players. The challenges of working as a team, playing different roles according to class and level, co-operating to achieve a particular goal, are also content, created by the other players. The conversations that make it fun, or interesting or dull, come from the other players. What the player writes and performs is content other players engage with. Without this player-created content, Norrath is dull. It’s possible to solo EverQuest, but it’s not really the point.

Show EverQuest to intellectual property and copyright lawyers and they will tell you players are creating nothing in terms of intellectual property (except perhaps the chat logs under some circumstances). According to legal definitions, player created content in this world is not important. It’s not important because it falls outside the narrow and legalistic definitions, derived from other media, of what counts as content.

It’s important to notice here, that although player-created content, which is generally of a social and affective nature, does not fall under the rubric of intellectual property, this does not mean it is without economic value. A subscription-based game such as EverQuest, where the publishers have implemented a business plan reliant on long-term engagement of players, gains its economic value in part from the social networks that bind players into the game long after they have mastered it. Developers and publishers are fully aware that strong social networks must be facilitated, encouraged and embedded into the game as core design (Herz, 2002; Pearce, 2002). Single player games, with their point-of-sale economic returns, don’t need to retain players over long periods for further economic gain. A player masters the single player game and moves on to the next game. But players who master the MMOG stays because their friends are in the game, and they are to some extent conducting their social life within the game. All that content and engagement from other players is what keeps their subscription rolling in each month.

There are two issues raised by these observations about content definition. Firstly, it is a good thing not to define the emotional and social interactions of the in-game communities as property. The commodification of social and emotional processes is not really a desirable course of action to most of us (Coombe, 2003). The framing of all interaction in virtual worlds in terms of the market and intellectual property is something that we should be wary of (Herman, Coombe et al, 2006). However, the second issue it raises is that, in terms of control of the environment and access to it, ownership does matter. And if the only content that matters and can be owned, in the eyes of the law, is the content created by the developers, then players end up with very little power when it comes to issues of access. I will not deal in this paper with the in-game economy and secondary market in game objects and the legal debate as to who should be able to own in-game objects where the code and artwork has been created by the developer, but the player feels their investment of time and money in accumulating such goods should give them the right to trade such objects. Castronova (2001; 2003), Hunter and Lastowka (2003) and Dibbell (2004) have written extensively on these issues, but they are in many ways tangential to the issues addressed here.

The Changed Role of “Consumers”

One of the key things implied by the discussion of player-created content in EverQuest and other interactive social environments, is that players are much more than consumers. Understanding EverQuest as a networked production where players produce content (even if that content is not currently understood as content as defined by intellectual property law), means players no longer occupy the position at the end of the linear value chain as audiences do in other media models. They are not the “end users,” they are co-creators. Yet they are most often characterised as consumers rather than producers.

The discourse of the consumer - and more pertinently the “empowered consumer” - locates the agency and power of consumers in their ability to choose between products, and to “exit” from services they are not happy with. This power to exit is supposedly the thing that will moderate publisher behaviour towards their players. If a publisher is too reckless in its handling of its in-game communities, players will leave and the game will cease to be viable.

However in the context of a product like EverQuest, where players invest a great deal of time and emotion and create substantial social networks within the game, the switching costs of changing product are very high. Exercising their “exit power” means leaving behind relationships, social status, identity built into their characters and inventory accumulated over sometimes years of play. The value of their productive investments in the game are ignored by arguments that characterise them as consumers. They are in fact, producers, and their ability to exercise “exit power” is constrained by the high cost of switching that their productiveness implies. Even though, as we have seen in recent years, some guilds will move en masse from game to game, the cultural capital built within a game, and the reputation within that world must be left behind. Such exit strategies assume that there will be a willingness from all the players in a particular network to move, and this is not always the case.

Neo-liberal discourses that insist the market will adequately regulate the behaviour of producers and consumers miss the complexity of the interplay here between players and publishers, developers and customer service teams in the networked production process.

Players and Affective Labour

It is interesting to destabilise the discourse of the players as consumers, by characterising them as labourers instead. The point of such an exercise is not to argue for the monetisation of player productivity, but rather to find a way to acknowledge and validate the productive role of players in the process of publishing EverQuest and other MMOGs. This might suggest other avenues for empowerment than those offered by the discourse of the consumer. Understanding EverQuest as a media product defined by intellectual property serves to erase much of what is of value in the game. Broadening that understanding to encompass the social networks and the affective labour involved in producing those networks affords us some insights into how the system actually works (rather than erasing aspects of production because they do not fit the intellectual property model) and how the power is distributed within such a system.

One of the pitfalls to employing the concept of labour in relation to players is that using the term “labour” or the concept of “work” threatens to drain the importance of pleasure from the medium, to override the activity of play in favour of some more serious and “meaningful” activity known as labour. In order to proceed without invoking this unwarranted seriousness, or perhaps erasing the pleasures involved, I want to suggest that pleasure and work are not mutually exclusive activities, and that pleasure and seriousness are also able to coincide. Huizinga commented:

… the consciousness of play being “only a pretend” does not by any means prevent it from proceeding with the utmost seriousness, with an absorption, a devotion that passes into rapture and, temporarily at least, completely abolishes that troublesome “only” feeling. … The contrast between play and seriousness is always fluid. … Play turns into seriousness and seriousness to play. (Huizinga, 1950 [1938]:8)

The work of Terranova (2000) and Ross (2000, 2003) strongly and eloquently describes the ways in which knowledge work in the networked economy, where value is produced through immaterial, intellectual and creative endeavour, has blurred the boundaries between leisure and work. It is difficult to determine when someone is working and when they are not-working when their labour is intellectual or affective.

Kline et al (2003) also conceptualise a paradoxical phenomenon of work-as-play and play-as-work in the games industry. The work-as-play ethic is one that creates a “hip” work environment for young workers who are exploited through appallingly long work hours (typical of games development companies (IGDA, 2004)) but are seduced by the “playful” environment of the workplace. The play-as-work ethic is one used to capture the productivity of players (Kline et al., 2003:202). Thus we can note there already exists a troubling of the boundary between work and play, and to characterize players productive activity as work does not necessarily imply there is no pleasure involved in the activity. It is more a way of labelling it as activity with productive value.

In the discussions above, I have established the production of cultural or social value as being a valid and essential part of where the general and economic value of an MMOG like EverQuest lies. Malaby (2006) also talks of this, using Bourdieu’s work to construct a framework that includes the generation of market capital, social capital and cultural capital within synthetic worlds such as MMOGs. The point of understanding the social networks and the creation of those networks as part of the labour involved in producing EverQuest is that it is social and emotional investments, or affective and immaterial labour, which produce socio-cultural outcomes - intangible but nonetheless vital and economic. Thus it is not just that people invest affective labour into the system, it is that there are social and cultural outcomes from that investment that are of value too. And, as Malaby suggests, that value can be parlayed into market value in a variety of ways. A conventional economist might understand value as arising from the process of exchange (Baneria, 1999: 304), but increasingly value resides in the intangible and immaterial processes of networked production. Relationships have taken a central role in determining value.

Hardt and Negri (2000) define immaterial labour as being “…labour that produces an immaterial good, such as a service, a cultural product, knowledge, or communication” (290). They identify affective labour as being one aspect of immaterial labour (the other being the work involved in problem identifying and problem solving and so on).

What affective labor produces are social networks, forms of community, biopower. Here one might recognize once again that the instrumental action of economic production has been united with the communicative action of human relations... (Hardt and Negri, 2000:293)

One of the aspects Hardt and Negri identify in relation to communication networks where much affective labour is harnessed, is that these networks aren’t just conduits for goods and services, they are the goods and services. They go on to say:

Our economic and social reality is defined less by material objects that are made and consumed than by co-produced services and relationships. Producing increasingly means constructing cooperation and communicative commonalities. (Hardt and Negri, 2000: 302)

Hardt and Negri make these comments in the context of a much larger argument about the global relations of capital and labour. Their observations of the nature of labour in a networked knowledge-based economy are useful for pinpointing the value of social networks. They offer a way of understanding player-created networks such as those in EverQuest as both valuable and a product of player labour.

The social, affective and cultural aspects to the value of an MMOG are often erased in discussions which focus on property, or debates about economics that rely on a concept of value residing in exchange. The refusal of those debates to encompass the immaterial aspects of cultural production - the knowledge, social and emotional elements - is increasingly untenable, as the economy becomes more and more reliant on such things for its success. Writers like Hardt and Negri go on to observe that the conceptual crisis this may bring about for private property “…does not become a crisis in practice, and instead the regime of private expropriation has tended to be applied universally. … Private property, despite its juridical powers, cannot help becoming an ever more abstract and transcendental concept and thus ever more detached from reality” (Hardt and Negri, 2000: 302).

Capitalism has a long history of ignoring the value of unpaid and affective forms of labour whilst relying heavily on them. The dismissal of affective labour as part of economic production can, in part, be traced historically to gender. Emotional and affective labour has most often been the domain of women. Feminised work is often underpaid or unpaid and undervalued (Vosko, 2000). The writing of code for open source software is considered to be labour, but being a volunteer for AOL and facilitating community interaction through chatting is often not. These are heavily gendered activities - much of the OSS movement being male, much of the community facilitation being female - and OSS work is legitimated more readily than community relations work.

In a network economy based on knowledge work and a cultural turn, the centrality of affect to the business model is increasingly recognised. In network economics, businesses are often reliant on branding and customer loyalty for their success (Jarrett, 2003). Industry literature is very aware of the value of customer networks and loyalty, and actively strategises to use the value produced by consumers through their affective labour. In a network economy, with the non-rival nature of information goods, the increasing returns gained through widespread networking are recognised, and community elements and social engagements are seen to increase brand loyalty.

In a web environment they are seen to increase site “stickiness” and raise the “switching costs” - a phenomenon very clear in EverQuest.

“The crucial feature of network economies then, is that value resides in the web of relationships a company fosters rather than its internal logic or its assets” (Kelly, 1998:26). This necessarily places the consumer, and specifically the affective connections of that consumer, at the core of any commercial enterprise operating in the network economy (Jarrett, 2003:340).

Community and loyalty are both things that have affect at their core. This means that in the neo-liberal discourse of the consumer in the marketplace, not only must the consumer be conceived as a “rational and self-interested individual,” but also as an emotional and social agent vitally concerned with relationships. Status and social relations become an important part of online consumption - for instance, the peer ratings in online auction houses and the customer reviews at Amazon.com. The building of social status within EverQuest is an aspect of play important to many players. Being part of an über guild for instance, and displaying the guild tag as a symbol of status is an important part of EQ identity for many players (and identified by Malaby as one marker of cultural capital (Malaby, 2006:157)).

Another key aspect of the network economy Jarrett identifies is the emergence of the “experiential good.” This is something also referred to by Rifkin (2000) [1]. The aspect of an experiential good interesting to note here is that it requires consumers to participate and create, in some measure, the experience they are consuming. Mostly that participation can be identified as affective.

It seems clear that affective labour is becoming more and more central to the network economy. It is no longer about the social reproduction of the labour force; it has moved into a new area. Affective labour is now a part of the value of the product itself. To continue to ignore it in discussions of media like MMOGs is to create a very partial and incomplete picture of how the system works. I am not arguing for monetising the value of affective labour - it would be ridiculous to suggest the productiveness of players as something the publishers should pay for or that players would want payment for (see Benkler’s discussion on the non-fungible aspects of social and financial reward systems (Benkler, 2006:96)). We would see the end of MMOGs very quickly. But as businesses escalate their use of affective labour, their responsibility towards that affective labour force might need to be interrogated. As there is an increase in the use of affective labour should there perhaps be an increase in the protections afforded that labour? Rather than relying on the marketplace-based notion of consumers and their exit power, a social accounting framework would suggest that a system of mutual obligation would be appropriate and should become more central to how business practice in this area is conducted. Thus, the current focus of economists and the legal profession on intellectual property and value generated through market exchange could be broadened to encompass the new centrality of affect to business models and what rights, obligations and responsibilities might be involved for each of the stakeholders in such a production network.

End User Licence Agreements (discussed below) could be used as a defining document of the obligations and rights of each participant, rather than, as is currently the case, a tool for publishers to claim everything always, regardless of whether they are legally within their rights to do so.

The emergent structures of ‘social network markets’ (see Potts, Cunningham, et al, 2008), where monetised and social economies co-exist in the same environment, and amateur and professional labour co-exist in a not always seamless fashion, produce a number of areas of friction. While Jenkins (2006) is rather celebratory in his characterisation of these new formations, it is necessary to balance such euphoria with an analysis of the power relations and consequences of the increasing reach of intellectual property law and contractual obligations into our social and cultural lives.

Changed Role of Publishers

The role of the publisher in a network model of production is very different from conventional publishers’ roles. Book publishers have never had to manage the ongoing reading practices of their customers, integrate reader contributions into their texts, resolve conflicts between reader interpretations, fix books when the type rearranges itself into a random pattern on the page for an unknown technical reason ten days after release or try and resolve which book-club should have access to page 103 first. The MMOG has given rise to a whole new set of interactions with “consumers” and demands on the publisher.

The active management of the communities within EverQuest is part of the service provision that is required of the publisher of any MMOG. Service provision does not just consist of keeping the technical side running smoothly. Service provision in a social environment also requires facilitating community interactions. Some publishers outsource the community management to other companies, some, like EverQuest, maintain their own customer service team. Publishing often involves three different entities - the publisher, the developer and the customer service team and they are not homogenous in their outlook and their relative power changes in relation to each other and the players. In this section I look at the community management required through the publication of an MMOG like EverQuest. Ultimately the publisher is responsible for the community management, whether it does it from an in-house team or an outsourced company.

Communities of course, are to a greater or lesser extent self-governing. Publishers cannot wholly determine every norm within the game through code and policing (Humphreys, 2008). Any social group will have ways of establishing and policing community norms. Regulation of conduct can be enforced through any number of social mechanisms. The public shaming of cheats can be a means of enforcing certain norms. Raiding groups can use add-on software that implements a kind of coveillance where players monitor each other’s contributions to raids (Taylor, 2006).

Group norms vary across the different communities found within EverQuest. Some guilds are very hierarchical, others more like a wild and unruly party of equals. Some work towards cohesive team actions, some run like a primetime soap opera. Some groups may establish roleplaying norms and others ridicule them. Clashes between groups with differing norms may cause more widespread discontent within the game.

Publishers have a great deal of latitude in how they choose to intervene in the communities. Decision making with regard to community governance can rest to a great extent with the players if that is how the game is designed. The MMOG A Tale in the Desert was an example of a game where players were able to suggest and vote on in-game rules and government up to a point. The balance of power can shift according to the game, but to some extent will be reliant on the nature of the game itself and whether, for instance, having player populations vote on rule-making in the game actually fits with the themes of the game.

In EverQuest not much power is accorded to the players when it comes to rules and decision making with regard to disciplining of players. The customer service team is the enforcer of the law laid down in the End User Licence Agreement (EULA) and Rules of Conduct. The customer service team in EverQuest seems quite stretched. At the 2003 Chicago Fan Faire the customer service sessions highlighted the difficulties of maintaining coverage of 50 servers which operate 24 hours a day, 7 days a week, with a customer service team of slightly over 50 who work 8 hours a day, 5 days a week. The heavy reliance on the volunteer guides to handle the first level of “investigation” and response to petitions and sometimes minor dispute resolution was plain. The use of the free labour of volunteers in this context is slightly more complex than an outright and obvious exploitation. Although it clearly saves SOE a lot of money to use volunteers, the volunteers themselves are not duped or unaware of their value to SOE. Some have used it as a pathway into customer service paid employment. Others enjoy the status it gives them in-game. Some do it out of a sense of service to the community. Others do it for the “free” account it gains them (in return for about 6 hours a week work). The volunteers work to a set of guidelines laid down by SOE and operate with limited autonomy. One guide, when interviewed in the course of my research, said, “I feel that, even though I don’t work for Sony, I am a representative of Sony. When a customer comes up to me, I represent the game.”

Using volunteer guides is also obviously a way for SOE to garner hundreds of hours a week of labour for very little cost. The reliance on volunteerism is becoming more familiar to us in the broader context of neo-liberalism, where as Andrew Ross points out, ‘… the service ideal invites, if it does not vindicate, the manipulation of inexpensive labor…’ (Ross, 2000: 26). How much and for how long publishers like SOE can rely on this form of outsourcing their customer service functions depends presumably on how well they manage that workforce. It seems that more recent and larger games such as World of Warcraft are far less reliant on this form of labour.

In a series of interviews conducted in 2003, I encountered a variety of attitudes towards the role and conduct of customer service among players. Some were adamant they would rather seek their own solutions to in-game disputes - be they at the personal or the broader guild and inter-guild level. They did not want any external, customer service-based intervention in disputes. Others said they were quick to report to customer service what they perceived to be bad behaviour, or violations of codes of conduct. Most had had dealings with customer service over bugs and technical glitches. I encountered a number of players who had stories about the perceived inconsistencies in the decisions meted out by customer service. Several told stories of being very confused as to what actually constituted an “exploit.” Trouble seemed to arise around the finer points of when play is actually cheating and what is just clever, expert play from someone who knows the game inside out. I heard stories of players who had had warnings placed on their accounts or who had been banned for acts they considered to be perfectly reasonable or to have been misinterpreted by the customer service team.

The key issue here is not whether the player was right and the customer service team wrong, but that there is no dispute resolution system in place that can hold the customer service team accountable for its decisions. If a player feels their account has been banned unfairly, where do they go to appeal the decision? If there is a misunderstanding about the rules, or differing interpretations of the rules, where can this be argued?

It is at this point, where there is uncertainty or ambiguity about the governance of the community, that the role of the publisher as responsible for community management (either directly or through an outsourced arrangement) most obviously becomes problematic. Given the level of investment some players have in the game, and given the value that their investments add to the game for the publisher, is it enough to say, “Well, there are other games in the market, they can just move on to one of them instead?” If the neo-liberal discourse of the empowered consumer in the marketplace is the only solution on offer, does that mean that access to administrative justice is no longer important? Should a player be expected to wear the high cost of a poor decision made by a possibly overworked customer service team, or should they have access to a system of appeal?

Players may be significantly empowered on a personal level through their playing of EverQuest. I conducted one interview in the course of my research with a woman whom I had encountered inside the game. She was a guild leader in a guild with several hundred members. She played about 40 hours a week. She knew just about everything there was to know about EverQuest. Other guild members turned to her for advice and sought her expertise on many aspects of the game. She organised raids and led them a number of times a week. She had a range of characters, all of whom had “partners” online - some were married, others were strategic alliances, and others she characterised as mere flirtations. She held considerable status amongst her peers and was seen as competent and capable. When I travelled to meet this woman and interview her, she turned out to be disabled, limited in her mobility and unable to get work outside the home. She lived in a basement flat with her husband and two children. She was financially and physically dependent upon her husband (she could not, for instance, tie her own shoelaces due to her disability).

For her, EverQuest was a place where she could access social status, and recognition for her leadership abilities and enjoy romance, and friendships, that were unavailable to her in her offline life. That EverQuest was a source of empowerment for her could not be in doubt. There is, however, a difference between this kind of personal empowerment and the structural power relationship that exists between her and the publisher through its service management structures. In this relationship, the publisher holds the power to deny her access to EverQuest. All the positive empowering aspects of creating and engaging with online social activities and social networks mean nothing if you can’t actually access them. Thus I want to make clear the distinction between the kinds of power players may develop within the game, and the kinds of power involved structurally between players and publishers around the issue of access.

It is here that the importance of the terms of the End User Licence Agreement becomes apparent.

The End User Licence Agreement

We may terminate this Agreement (including your Software license and your Account) and/or suspend your Account immediately and without notice if you breach this Agreement or repeatedly infringe any third party intellectual property rights, or if we are unable to verify or authenticate any information you provide to us, or 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 as set forth in the Game player rules of conduct, which are posted at a hotlink at www.everquestlive.com. (extract from the EverQuest EULA, emphasis added)

The above paragraph is taken from the EverQuest EULA that all players click through each time they log into Norrath. The agreement is some 7 pages long, and if the player wants to understand particular terms, they must consult the EverQuest website (for instance, the Rules of Conduct they agree to in the EULA are only found on the website, and consist of a further 8 pages of text). It seems doubtful that many players read through the entire document. The contract is not negotiable. It is a manifestly one-sided contract which works in favour of the publisher and to the detriment of the players. Its terms may be changed without notice or negotiation at any time, it lays claim to all player-created content, and it allows the publisher to disclose information about players to government agencies and other private entities at its own discretion.

The EULA represents the point where contract law intersects with a number of other areas of law and renegotiates the boundaries. The right to determine what conditions of governance will exist in a particular game world are premised on ownership of that world by the publisher or developer. Taylor has noted:

We increasingly live in a world in which opting out of technological systems is becoming more and more difficult … and yet participation within them pushes us to accept structures we might oppose. (Taylor, 2002:233)

As shown above, in the EverQuest EULA, SOE reserve the right to ban players’ accounts (and therefore access to the game) on a number of grounds, including if the player plays “against the spirit of the game.” Such a catchall term, in effect, gives SOE the right to terminate the service for pretty much any reason it wants. There is no system for appealing such a decision and the contract legitimises this state of affairs.

This is the case with many other games and online environments, including various AOL, EA and MSN services, more recent games such as World of Warcraft and social networking sites such as Facebook and MySpace.

[I]t is disturbing to learn that online intermediaries (the companies who create online spaces - currently, games, but in the future, private internets) now have “ownership” of online identities. These providers may not be very accountable or transparent, and their rules may be effectively unreviewable by any terrestrial court or legislature. This means online intermediaries will be handing out “law”, whether we like it or not. Online intermediaries are a different source of law than those we are used to (such as courts and legislatures). (Crawford, 2004: 219)

It is clear that publishers need to have a means for banning players from their games if they are cheating, causing major disruption and/ or interfering with the service to other players in the game. There are “griefers” who cause disruptions which affect the broader communities in the game, although defining grief play is a movable feast (Foo, 2004). But there is no guarantee that all publisher/ customer service decisions on this will be fair or right.

A private online intermediary has no particular legal requirement to be neutral as to viewpoints or actions of users. Courts will defer to extraordinarily broad (and ever-changing) terms of service for these online worlds. So the law of identity online is private, contractual law. The use of force online - the removal of identity - has been handed over to private parties. (Crawford, 2004:221)

What Crawford is getting at, and what again raises the issues of the interface between ownership, value and affect, is that in effect, part of a player’s identity becomes the property of the publisher through this contract. On the one hand, because intellectual property law erases the affective, and ignores the emotional and social aspects of this medium, the publisher can define the avatar that represents a person’s identity within the game as code and image, and therefore legally belonging to the publisher. And on the other hand it can control the access to that avatar and all the identity a player may have bound up in it, through the contract which allows it to terminate the account at its sole discretion.

With the advent of online virtual worlds, we see an increase in the number of people conducting their community life and social relationships within proprietary spaces. The publishers wield power over players through both intellectual property and contract law. The power they exert has the capacity to limit the access people have to their own electronic identities and their communities. This power is based on, as Hardt and Negri point out, an increasingly abstracted concept of private property, coupled with contract law which is able to re-set the terms of engagement between the parties. Contracts are able to get individuals to waive their rights, and courts are increasingly allowing this to occur.

For instance, in many EULAs, users contract away their entitlements under copyright law. The legality or enforceability of such moves is not clear or particularly well tested at this time. Jankowich (2006) identifies a number of areas where speech is restricted in MMOGs, mostly through practices legitimated by the EULA. However, the “abandonment of constitutional protections” (2006: 28) that Jankowich examines should be understood partly in relation to the “gameness” of MMOGs. By their very nature, games involve artificial restrictions and constraints in order to create their field of play. However, some EULAs encompass behaviour external to the game: for example, they attempt to forbid public critique of the publisher. Whether such terms are legal is untested, but they can produce a chilling effect on speech.

It is worthwhile highlighting here how contract law can individualise an arrangement, and thus override the collective rights that may be protected by law focused on a more “universal” public good. However, as parts of our lives are increasingly conducted in proprietary spaces, those spaces take on the characteristics of a public commons, and the role of the publisher begins to resemble that of a state. If the corporate world is to usurp the state and its powers by redefining law through private contracts, perhaps it is time for the state to intervene and regulate what the terms of those contracts might be. In fact many laws address unfair contracts (Clapperton and Corones, 2007), but it seems that the difficulties of cross-jurisdiction and enforcement may impede their implementation in relation to these games. Leaving this regulation to the market-place does not seem like an adequate solution, given the lack of real interest the marketplace has in equity and justice (Herman et al, 2006).

The contracts we are addressing here are much more extensive in their reach than those associated with other media and are also more extensive in reach than is necessary for the adequate functioning of the game. They deal with much more than the reproduction and distribution rights of media property. They deal with the conduct of peoples’ social lives and the terms of access to their increasingly important electronic identities. They deal with the rights of privacy accorded players and their electronic data. They are written from a position which assumes all value and ownership resides with the publisher and which ignores the very evident ways in which players themselves contribute value to the “product.” It is apparent from discussions with some developers that they wish these contracts were not in place but their lawyers have insisted on the most risk averse approach possible. The responsibilities of the legal profession in the shaping of contracts is an area worthy of further investigation as these rules in turn come to have an impact on the shape of culture and communities.

Conclusion

EverQuest was an important and successful game, a precursor to the runaway success of World of Warcraft. Hundreds of thousands of players chose to spend significant proportions of their leisure time playing it. It’s been successful technically, economically and socially. It has done many things well. In this paper I have explored some of the aspects of EverQuest and its success that make it new and different from other media applications and teased out the implications of those differences.

Understanding EverQuest in its capacity as a piece of social interactive software requires two major shifts in how we think about it as a medium. Firstly, players need to be framed as productive. This means stepping beyond the discourse of players as consumers. The discourse of the consumer implies a certain passivity when it comes to media consumption, and a certain locus of power when it comes to their positioning in the marketplace. Neither of these seems appropriate for describing the active, productive player, invested in the game and tied to it through social networks, accumulated status and emotional relationships with other players.

Secondly, games such as EverQuest need to be framed as much more than intellectual property. The legal discourse of intellectual property relies on a linear production process rather than a networked one. It is based on a conception of the Romantic author, rather than distributed production, and relies on the “fixed expression of an Idea” - a finished piece of work - for which it prescribes regulations for distribution and reproduction. EverQuest, other MMOGs and other social software are never really finished, or “fixed.” Some aspects - source code and artwork - may be relatively fixed (although with the constant process of publication over many years, these things also change). However these things are only part of what constitutes the content of the game. The rest is mutable, performative, intangible, co-produced by the players and of great economic value to the game. It is a mistake to circumscribe discussion and restrict argument to who should own particular bits of property within it. As Benkler suggests, we need to move beyond arguments about the ownership of the virtual spoon (Benkler, 2004).

Media ownership has become more concentrated, and large multinational media corporations have become the publishers of MMOGs. There is a danger that these publishers, who publish many different forms of more conventional media - music, movies, books and so on - will be tempted to treat the MMOGs they publish as just another in their stable of media properties. What has been highlighted here, is that an MMOG is not just a property. It involves far more than the publication of more conventional media properties. What it does encompass - the management of communities as well as properties - requires much more attention than it currently receives. As we move into the “age of access” as Rifkin (2000) has characterised it, where service provision becomes as important, if not more important than property ownership, we need to consider the terms of those services and whether they are just and equitable. The control of access to elements of a person’s identity by a third party requires us to interrogate the terms of access, to understand the privatisation of rights and law through contract, and to decide whether these developments are acceptable or in need of regulation.

Notes:

[1] Rifkin tends to rate commoditised experience as somehow inauthentic or lacking in a trustbased dynamic that would make it authentic. I think this invocation of inauthenticity is a misreading of the nature of online communities.

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