Games of Life

Every so often, the news out of Pittsburgh overlaps with my professional interests in the legal system.  Today is one of those days:  Game maker declares war in federal court.

The PG story there talks about a lawsuit recently filed against a local man and a partner who are allegedly abusing the rules of play that govern a massive online game called Evony.  Evony is free to play, at least for the basic game and initial levels.  The defendants in the lawsuit are accused to developing and supplying "maps" to the online world that they sell to game players, who use them to navigate Evony's world(s) more quickly and seamlessly than they would be able to otherwise.  The PG story makes standard journo/rhetorical moves:  Is this about "theft"?  Is this about the mismatch between modern technology and outdated intellectual property laws?

The answer is really "no" in both cases, but the episode in this corner of cyberspace teaches an interesting lesson.  The problems here are not with the laws of intellectual property, but with the laws of economics.

First, as to the IP, and a quick aside about the lawsuit and the game, about which I know only a little more than Rich Lord reports in the PG.  Evony apparently is owned and run by a group in Australia that has a record of acting particularly aggressively toward anyone who would criticize the game or how it is operated.  The current lawsuit reported in the PG is, it appears, not inconsistent with that pattern, though the specific character of the claim may have been emboldened by a recent court ruling by the Ninth Circuit Court of Appeals in MDY v. Blizzard, involving botting in the World of Warcraft environment.  Blizzard, the rights holder there, won a DMCA claim but lost a copyright claim.  Here, I don't know the specifics of Evony's IP arguments, but I imagine that it's possible for the company to thread the eye of the needle of a successful copyright, or DMCA, or terms-of-service based legal claim.  I imagine that it's also possible for the defendants to block that effort, or to thread the eye of a needle themselves.

Second, as to the laws of economics, the fact that there might be a plausible legal claim doesn't mean that what the company is really complaining about is "theft."  Because nothing has been stolen.  I just looked at the Evony site, and everything seems intact.  Did the defendants in the case go in and do something that upsets the game-makers -- who make the game and game-play available for free -- and that might upset game-players who are paying money to play advanced versions of the game?  Maybe.  But the case is economics, not ethics.

Here's the better analogy -- and one that tests your ethics even if it doesn't really test the legal system.  I'm borrowing the story from my antitrust law professor, William Baxter (those with long memories will remember that he was responsible for overhauling federal antitrust policy in the first Reagan Administration).  He didn't come up with the story, but I have always associated it with him:

You go shopping for stereo speakers.  You want high quality speakers, but you don't want to pay an arm and a leg.  The discount stereo store has a pretty good selection of high end and low end speakers, but it doesn't have a listening room where you can try out different options.  So, you go over to the high end stereo store, which carries only the best stuff, at high prices, and which has a great listening room.  In fact, the reason that the high end store can afford to offer a listening room, and to pay service staff who will work with customers who want to use the listening room, is that the high end store charges premium prices for its speakers.  Those extra revenues mean extra service and extra features at the store.  But you don't care about the business model that the high end store uses.  You just care about your speakers.  So you go over to the high end store, sit in the listening room for a while and try out different speakers, then leave.  You've made your choice.  Now you go back to the discount stereo store -- and buy those same speakers there, for less.

Have you broken any laws?  No laws of the legal system.  How about "laws" of ethics?  I don't think so, but I'll bet that some people will disagree.  (I shop in stores all the time and don't buy stuff -- and then buy the same or similar stuff elsewhere, for less.  I'll bet that most people do the same, or try to.)  How about laws of economics?  Look around.  How many high end stereo stores with listening rooms do you know of today?

That doesn't mean that I do or don't  have a ton of nostalgia or sympathy for high end stereo stores, or for audiophiles who valued them, or for Evony, or for anything else that could be plugged in to that story by analogy.  Some things are more worth preserving than others.  Things change, expectations are unsettled, and people sometimes suffer disappointment, and worse, as a result.

There is no such thing as a free lunch.


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Pittsblog 2.0 is written by Mike Madison, a law professor at the University of Pittsburgh. Send email to michael.j.madison[at] Mike also blogs at, on law and technology. Chris Briem of Null Space drops by from time to time.

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