Sunday, March 30, 2014

Predators And The EULA

"I want to briefly address four more tangents that are being used to attempt to throw the discussion off track..."

"Fourth one: 'CCP needs to find a EULA/TOS violation if they want to justify banning Erotica 1.' I assure you that this is not the case. It's convenient, certainly. But at the end of the day, the EULA clearly states that CCP owns Erotica 1's account and everything associated with it. CCP can close his accounts, seize all items associated with them, and simply refuse to take this man's money ever again. They have the right not to want this person as part of their community.

"But yes, I think it would be nice if the TOS were modified to state that you can't hunt for victims in CCP's game and then take them out of the game to torture them."



CSM 9 Vice-Chairman Ripard Teg, Reserve the Right

One way to ensure I write about a topic in EVE Online is to have a member of its player advisory body, the Council of Stellar Management, state that the game's End User License Agreement, Terms of Service, and other various policies that make up the rules of conduct for the game are "convenient" if they agree with what he wants CCP to do, but unimportant if they get in the way.  But the subject, the efforts of video game companies to protect their customers from online predators, is a serious one.


Google searches quickly show that the online predators most feared are those who target children.  While MMORPG like World of Warcraft have stories of adults targeting children for sex, a lot of attention is falling on Microsoft's Xbox and Sony's Playstation platforms.  If online game companies cannot police the problem themselves, pressure will build for governments to step in.  In the United States, law enforcement agencies are already conducting sting operations on gaming networks.  In 2012, the state of New York entered into an agreement with Microsoft, Sony, Electronic Arts, Warner Brothers, Disney Interactive Media Group, Blizzard Entertainment, and Apple to purge its customer base of all registered sex offenders living in New York.  The Attorney-General's office provides the companies an updated list every week.

Fortunately, despite the inflammatory rhetoric used by some in the EVE community, the actions of Erotica 1 and his cohorts do not rise anywhere close to that level of conduct.  On the other hand, the person behind the character of Erotica 1 and several alt characters is a predator.  He engages in a scam called ISK doubling and when he finds what he thinks is a suitable candidate he promises not a doubling of ISK, but a quintupling of ISK if they follow him to an out-of-game voice channel.  Once there, he convinces the mark to hand over all of his/her possessions in EVE to him.

People outside the EVE player base will find that part of the scam shocking.  But the really troubling aspect of this story is what happens next.  Following the stripping of all of the mark's in-game possessions, the group then toys with the mark, giving him the hope of getting all of this stuff back.  Erotica 1 and his team will swap out members to keep them fresh while subjecting the mark to psychological pressure in the form of performing more and more tasks in order to embarass the mark and finally get the mark to rage quit.  On The Funky Bacon Show Friday night/Saturday morning, Erotica 1 and his associates disclosed that these sessions typically last five hours, with one lasting twelve hours.  These sessions are recorded, edited, and posted on the web for the enjoyment for the group and their fans.  How many?  When FunkyBacon posed the question, Erotica 1 was vague, claiming they all ran together in his mind, but stated 100 and perhaps as many as 200 people were subjected to the experience over the past year.  Jita has proven a fertile hunting ground.

So, is Ripard correct about the current state of the EULA and ToS and what their ability to protect players from predators?  I believe the answer is no.  His understanding of the rules is, regretfully for someone in his position, pretty bad.  Here's why.

First, Ripard is incorrect in his assumption that the EULA gives players no rights whatsoever.  Section 5B of the EULA deals with the conditions under which CCP may suspend or ban an account.  In subsection 1, the EULA lists two conditions that could result in account suspension:
  • (i) a breach of the EULA (including the Rules of Conduct) by you or any user under your Account.
  • (ii) unauthorized access to the System or use of the Game by you or any user under your Account.
In subsection 2, the EULA states four reasons for terminating a player's EULA, effectively banning the player's account.
  • (i) you fail to pay the fees when due.
  • (ii) CCP is unable to verify or authenticate any information you provide.
  • (iii) you or anyone using any of your Accounts materially breaches the EULA, makes any unauthorized use of the System or Software, or infringes the rights of CCP or any third party.
  • (iv) CCP becomes aware of game play, chat or player activity under your Account that is, in CCP's discretion, inappropriate, offensive, or in violation of the Rules of Conduct.
Some might highlight points 25 and 26 of the Terms of Service as justification as to why CCP can just ban a person's accounts.
25.  CCP reserves the right to close, temporarily or permanently, any user’s account without advance notice as we deem necessary. Furthermore, we reserve the right to delete all user accounts or inventory of characters as warranted.

26.  We reserve the right to ban any user from the game without refund or compensation.
Taken out of context, these two points seem to indicate that CCP can ban and delete an account any time they want.  Taken in context, the meaning is a little different.  In point 25, what CCP is stating is that the company can ban any account without notice, not that it can ban any account it wants, for any reason.  This point states in advance that CCP is not going to inform a player before a ban is issued.

In point 26, the reader should not place the emphasis on the phrase, "We reserve the right to ban any user..."  Instead place the emphasis on, "without refund or compensation."  Often, a banned user will want a refund for the remaining play time left on an account.  Point 26 basically tells players in advance, "No!"


If a player follows the rules, CCP by their own rules cannot ban a player's accounts.  So does Erotica 1's conduct fall within the "Rules of Conduct"?  Or did he cross one of the complicated rules and fail CCP's own version of "the bonus room"?  Ripard claims that no language exists in any of CCP's policies stating that Erotica 1 violated any rules. 

Thanks to the input of other players1, I've found two places where I believe Erotica 1's actions allows CCP to terminate the EULA for all of Erotica 1's accounts under Section 5, Paragraph B2 of the EULA. The first was pointed out to me by CSM 8 member Ali Aras.  Section 6, Paragraph A5 reads:
"You may not submit any content to any chat room or other public forum within the Game that is harassing, abusive, threatening, harmful, obscene, libelous or defamatory, encourages conduct that could constitute a criminal offense or give rise to civil liabilities, or is unlawful in any other way, including without limitation the submission of content that infringes on a third-party’s intellectual property rights." [emphasis mine]
Ali pointed out that "could constitute" doesn't mean a conviction is necessary, just that a proceeding could arise that might entangle CCP in a legal dispute.  Expanding out from Ali's initial point,  "Encourages conduct" in this case would involve the use of the chat function to persuade a player to go to an out-of-game site where activities that could lead to CCP becoming involved in the dispute.  I believe that the phrase "could constitute a criminal offense or give rise to civil liabilities" is written in such a way to indicate that CCP is concerned, at least in the U.S., with the cost and effort of complying with any subpoenas issued in a case during the discovery phase, even if the company is not a party to the case.  What civil liability, you ask?  If Erotica 1, or an imitator, were to cause someone such distress that the mark required medical attention (i.e. heart attack, stroke, etc) I can see CCP becoming involved, if only to supply the defendent's real life information.  The plaintiff's attorneys might even wish to review any relevant logs.  I hear that a suit where a lawyer can add intentional infliction of emotional distress to the charges can net a plaintiff a lot more money.

The second place, located in the Terms of Service, is a more obvious place to look:
1.  You may not abuse, harass or threaten another player or authorized representative of CCP, including customer service personnel and volunteers. This includes, but is not limited to: filing support tickets with false information in an attempt to gain from it or have someone else suffer from it; sending excessive e-mails, EVE-mails or support tickets; obstructing CCP Employees from doing their jobs; refusal to follow the instructions of a CCP Employee; or implying favoritism by a CCP Employee. [emphasis mine]
Because the examples include out-of-game examples, CCP theoretically could add an example of players abusing or harassing other characters on out-of-game comms.  Because the point includes "but is not limited to," CCP would not even have to change the language.  Some might argue that point 5 in the ToS argues against CCP enforcing point 1 against out-of-game activity:
5.  You will report out-of-game issues regarding harassment, such as threatening phone calls or correspondence, to your local law enforcement officials or Internet provider. CCP will not reveal personal information about its subscribers to unauthorized individuals. We are not responsible for actions taken by our subscribers that occur outside the jurisdiction of our game servers or web site. [emphasis mine]
My reading of this part is that CCP realizes it does not have the people or the power to enforce all the rules on all the players at all times outside the company's infrastructure and is telling players how to handle such a situation.  However, point 5 does not contain any language stating that CCP will not take action if it so chooses.  The language does suggest, however, if CCP does start trying to police the player base that such policing would necessarily prove very selective.

At this point, I should add that while I disagree with FunkyBacon about whether the EULA/ToS allows CCP to ban Erotica 1, I share a lot of the concerns he has.  If CCP rules that Erotica 1's activities violate point 1 of the ToS, I can only imagine the nightmare for CCP's customer service people as players submit a flood of tickets trying to figure out the limits of the new interpretation of the ToS.  Also, given the EVE community, how many players will try to manufacture evidence of EULA/ToS violations against their in-game enemies?  If CCP changes the historical interpretation of point 1, then I think that CCP needs to clarify exactly what point 1 covers.  Realistically, that would require a new, updated Terms of Service agreement.

If CCP does impose a suspension or ban on Erotica 1,2 I hope it uses Section 6, Paragraph A5 of the EULA as the justification and not point 1 of the ToS.  Using the EULA violation would result in a very limited, targeted action against someone who lures someone from the in-game client to an out-of-game site.  Using the logic gives a precedent for CCP on how to handle others who wish to prey upon their player base that not only does not require a change to the existing EULA, but should not cause even the players wearing the biggest tin-foil hats to worry that one misspoken word on a private Mumble channel could result in a ban.

UPDATE: I pressed the publish button without setting the schedule for this post.  As a result, I missed adding this statement from CCP Falcon, the Community Manager for EVE Online, in the original version of the post.  I believe it relevant:
"In terms of hard data based on player age, we have an extremely mature community.

"It's quite clear that we also have an extremely intelligent community, even if sometimes the content posted on these forums is to the contrary. I think that playing EVE requires a certain level of intelligence, thickness of skin, and ability to deal with your fellow man in circumstances that are sometimes not to your favor.

"However, there's a line as to how severe those circumstances should get, and I'll paraphrase Mynxee by saying that this line needs to be drawn at the point where the alleged victim starts to lose emotional control. We can't set an arbirarty line for this, as this is different for everyone, and every situation. There must be a willingness by those involved to recognise when that point has been reached and realize, with positive community spirit in mind, that they should stop and honor that line with humaine and decent behaviour.

"In the same respect, there must also be a level of responsibility held by CCP to ensure that we have the wellbeing of our community and each of our players at the forefront of our minds during the decision making process when an issue like this comes up.

"It may be regarded as an 'arbitrary' decision from the outside, but generally issues of this nature are investigated by multiple teams within CCP for a number of weeks before any action is taken and due to our privacy policy, we aren't going to release information on individual cases.

"We have done this only once in the past, and this was due to the fact that the individual involved was the chairman of the Council of Stellar Management, which put us in an extraordinary position in terms of clariflying the situation.

"In the end, scam, AWOX and betray each other as much as you like. Steal from each other as much as you like. Gank, pod and sabotage each other as much as you like. These are the stories that drive gameplay in EVE, and we are not looking to re-define the sandbox. We do however need to make it clear that in the, end every sandbox has edges just the same as EVE has limits, and those limits are built on a basic level of empathy, understanding and humaine behavior."  


NOTES:

1.  FunkyBacon was very helpful in shooting down various thoughts and keeping me from looking exceedingly stupid.

2.  Erotica 1 claims to be banned.  If so, as far as I can tell the ban for that character, if one was issued, is not permanent.  Also, I am reluctant to trust the word of a notorious scam artist.

28 comments:

  1. Thank you for your thoughtful, well-written post. You disagree with Ripard and criticize his argument respectfully. That is in contrast to the polarizing attacks throughout the community, including in FunkyBacon's blog posts.

    ReplyDelete
  2. (iv) CCP becomes aware of game play, chat or player activity under your Account that is, in CCP's discretion, inappropriate, offensive, or in violation of the Rules of Conduct.

    Note the above leaves whether something is inappropriate or offensive to CCP's discretion, *regardless of whether it's covered by the rules of conduct or not. IOW, if they don't like something they can ban you for it.

    Besides it's CCP's game, they can pretty much do whatever they want.

    It's not like any EULA is a legal document that would stand up under a court challenge with money behind it either. Half the crap in EULAs is not only unenforceable, it's illegal in most countries.

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    Replies
    1. Perhaps. But if CCP wants the document treated seriously in court, then they must live up to their obligations under it.

      Delete
    2. I sincerely doubt Erotica 1 or other bullies would try their case in Icelandic court. Too many costs up front and they are highly unlikely to win.

      Delete
  3. Lovely writeup Nosy. It's been fun bouncing ideas on the ban back and forth last couple of days. Looks like you've come up with fairly plausible results thanks to research.

    I'm also curious, with E1 posting a link to the recording on Eve-O that was revealed on The GRN show today, what are your thoughts with how that relates? I'm thinking that if CCP determines this is covered as harassment, by bringing it right into Eve via the forums, he exposed himself in this case.

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    1. I think you're absolutely correct. Once content is brought into a CCP-owned website, the rules change drastically.

      Delete
    2. I think that can be readily inferred from the CCP sticky and CCP Falcon's subsequent posts.

      What they haven't made clear is whether posting a link on a public website is enough.

      The relevant part of the sticky is:
      CCP, in collaboration with the CSM, have agreed and would like to state in the strongest possible terms and in accordance with our existing Terms of Service and End User License Agreement, that real life harassment is morally reprehensible, and verifiable examples of such behavior will be met with disciplinary action against game accounts in accordance with our Terms of Service.

      In this case, one could argue that posting links to the audio of the bonus rooms on minerbumping.com is only slightly less verifiable than posting the link on the eve forums.

      Delete
  4. Rulez Shmulez.

    CCP can choose who they do business with. They do not need to justify it. If a player thinks CCP has been unreasonable, the player can choose to not do business with CCP. That's how the world (and capitalism) works.

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    1. It appears you didn't read the post.

      The whole point is that the EULA is an agreement between two parties which specifies conditions under which the business relationship can be terminated.

      Delete
    2. "specifies conditions under which the business relationship can be terminated."

      D- must try harder.

      The EULA specifies the conditions which you, the client, need to satisfy for CCP to consider doing business with you. Break the EULA and CCP will possibly consider not doing business with you.

      However it is NOT binding both ways. If you do not break the EULA, CCP can still choose not to do business with you and they don't have to tell you why either.

      I hope this is clear to you now as you appear to be very confused about what the EULA is.

      Delete
  5. Actually, clause 5 in the tos and in particular the part you bolded is probably for ccp's protection in case something untoward happens and they end up the potential target of a lawsuit.

    There's a strong business case for ccp to be extra vigilant regarding harassment and related issues given the relative freedom of the sandbox. From reading Falcon's statements, I think they're pretty good at actually administering that part of their business, but are pretty poor at communicating their viewpoint and at educating the players on what the limits are.

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  6. While I agree that the ToS and EULA have several part which are not entirely clear in regard to this situation, they do lead me to believe that third party services are not covered. And their lack of clarity is a huge part of the problem. If the rules are clear, great! If they are not, people have no way to know where the jurisdiction of CCP ends. And with the measure of harassment being "when the other player gets upset", how far to you have to go to ensure that you never make another eve player have a sad?

    Further to that, previously players have submitted tickets for harassment that happened outside of the game and the official response from the GMs has been this:
    "Thank you for contacting Customer Support. There is nothing we can do with out-of-game activities. We can only offer assistance or take a further look when all the correspondences or conversations happened within EVE. We are not able to take anything from any third parties as evidences to accuse any players."

    So victims of harassment are being denied based on what? Just because they don;t have a CSM member stiring up the vocal minority into a frenzy? Seems awfully unfair.

    ReplyDelete
    Replies
    1. Well, first, GMs are not a Borg. It's possible for two people to file essentially the same ticket to two different GMs and get two different outcomes. CCP tries to prevent that, but when the job requires you to make judgment calls, it's impossible to eliminate the problem.

      The Bonus Rooms are not more "out of game" than any standard comms, in the sense that at least the principles who are on comms are also in game, and the assets at issue are CCP-owned assets. That line is pretty clear. It would be a lot trickier if, say, there was a real-world fight between members of two EVE corps unrelated to anything in game (e.g., one or more of them is an angry drunk).

      The problem of visibility is really difficult to solve. CCP depends on community reporting for enforcement, and they're quite vocal about that, so yes, somebody does have to raise hell to get their attention. If that someone is Ripard Teg, that more or less guarantees their attention (if not the outcome). The alternative would be to have CCP hugely increase its GM staff and have them actively monitoring all kinds of third-party sites, which would blow up into a thorny and intractable and expensive problem almost immediately.

      The last thorny issue, third-party sites, you can deal with two ways in this particular case. First, Erotica 1 has been at this long enough that some of his early efforts are apparently preserved faithfully in the in-game chat logs. Second, because the Bonus Room requires the mark and Erotica 1 and frequently his alt to be logged in to EVE, CCP has an objective, if not complete, account of what happened in the game logs, complete with all trades, contracts, PLEX purchases, poddings, etc. They aren't wholly reliant on third parties for their information, and they can use the information they have to verify the third-party account, again, in this particular case.

      Delete
  7. Do you not think item 4 of the TOS was also relevant to what happened in the Bonus Room (and, to some degree, what is posted as a follow up on minerbumping website)?

    "4. You may not use “role-playing” as an excuse to violate these rules. While EVE Online is a persistent world, fantasy role-playing game, the claim of role-playing is not an acceptable defense for anti-social behavior. Role-playing is encouraged, but not at the expense of other player. You may not create or participate in a corporation or group that habitually violates this policy."

    ReplyDelete
    Replies
    1. I don't think it is relevant in cases like this because I don't think the people are credibly role playing. I also think for the role playing item to come into play, there have to be other violations first.

      Delete
  8. You've suggested that the as-necessary clause is somehow trumped by other bits, and that selective emphasis could support that view, but I don't think you've made the case. The invocation of CCP's "own rules" furthermore comes off as obfuscation; these are CCP's rules *for us*, that *we* agree to.

    I am a fan of your blog, but this OP is in danger of disappearing up its own navel. "CCP reserves the right" is the operational and overriding terminology, and amateur lawyers are never going to persuade any authority, much less CCP itself, that CCP can or should be restrained from acting accordingly.

    The case of Erotica 1's outing himself is an extraordinary one, like unto that of the Mittani, in that the evidence is out there is the wild, foolishly provided by the offenders, searchable by anyone, and indelibly associated with CCP's trademarks. CCP was going to need ("as needed") to disengage from it; one ban (so far, and as far as we know may not even be permanent) doesn't seem excessive or hasty.

    It certainly doesn't violate some rule that customers have invented for CCP using bits of the EULA. Save claims like that for cases where the evidence isn't right there for us to smell, and where CCP's image isn't endangered.

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    1. I didn't write this post to specifically address the Erotica 1 situation. I just used it as an example. I could as easily have used an example of someone using a chat channel to entice someone to private voice comms, then "selling" the person ISK with payment via a credit card, and then the person taking the credit card information and ringing up a huge bill. Things like that involving RMT actually happen.

      My purpose in writing this post was not to address the easy case of Erotica 1, but those cases in the future that will be harder due to less evidence.

      Delete
  9. Erotica1 posted audio of the bonus round to an official Eve Online forum. At that point the out-of-game defence evaporates.

    Moreover, EULA terms are regularly set aside by the courts.

    One of the leading cases is Bragg v Linden Labs where a Second Life user was banned and then sought relief in the Pennsylvania courts. Linden Labs pleaded the choice of forum and choice of law clauses in its EULA which purported to to restrict the forum to the San Francisco District Court and the law to the laws of California. The court ruled against Linden Lab on both counts and the company then settled. Almost all EULA cases run that way, with EULA-based pleadings being rejected by the courts.

    Depending on where Erotica1 and Sohkar live one or both of their jurisdictions may criminalise cyber bullying (and contrary to most claims these statutes are not restricted to children as either perpetrators or victims). There is also likely to be a cause of action, as you have already noted, for the intentional infliction of emotional distress.

    EULA terms were never going to prevent CCP becoming potentially involved in criminal or civil proceedings, even if only, as you note in discovery. You simply cannot plead a contractual term as a defence to any criminal proceedings and it it is by no means an automatic defence in civil proceedings.

    The question then, is whether Erotica1's right to conduct bonus rounds is sufficiently important for CCP to risk significant criminal and civil liability. I think thats a really, really easy question.

    ReplyDelete
  10. What this really comes down to is a conflict between PR and the health of the company, if one wants to look at the issue from a purely business standpoint. On the one hand, does CCP want the kind of PR this incident (and others) is generating? Any press is good press, after all, goes one school of thought. On the other hand, if CCP becomes known for fostering a community where this kind of thing is the norm and is encouraged, will they grow their business? Will investors continue to invest in the face of the potential backlash?

    When push comes to shove, CCP will do what's best for the survival of the company and no TOS or EULA can prevent it. In fact, as Mox has already pointed out, those kinds of documents aren't worth the paper they're printed on in many jurisdictions, and they certainly do not constitute a business suicide pact.

    ReplyDelete
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    1. So basically the argument is whether CCP leaves the EULA as/is and explains to everyone that it forbids the kinds of actions the Erotica 1 engaged in, or they modify the EULA/ToS to explicitly ban the practice.

      I have to say this again. You and Mox may not believe that the EULA has any legal standing, but CCP must act like it does in order for it to have any standing at all.

      Delete
    2. I guess what I'm saying, and where we seem to disagree, is that CCP has inserted a standard version of "other duties as required" into the EULA which gives them total freedom to do whatever they deem necessary in order to protect the company.

      Like I said, the EULA is not a suicide pact.

      Delete
  11. Hello! All this legalese is giving me a headache. Let me know if you'd like to discuss matters further with me. I'm very open to it! FunkyBacon should know how to reach me.

    xoxo

    -Ero

    ReplyDelete
    Replies
    1. You're bad for business... think how much you've cost CCP not only in lost players/revenue but in legal fees.

      Delete
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