Wednesday, February 3, 2021

New Eden Law - The Rushlock Kerfuffle

I first gained notice in EVE Online for my blogging about botting and real money trading. Writing about those subjects used to require knowing about the EULA and the Terms of Service. The main period of my "legal" writing stretched from the first Somerblink RMT scandal in October 2013 to the end of approved player-run gambling in October 2016. Despite the return of gambling to the EVE client in December 2019, I managed to refrain from returning to the subject. But I saw a kerfuffle arise today on the EVE Online sub-Reddit I thought was an interesting case study in RMT allegations.

In November 2020, CCP announced its new partnership program. I don't have direct knowledge of how the program works because my blog is too small to qualify. Okay, I lied. Having seen how these programs work, I wouldn't join even if I did qualify. I didn't join the previous incarnation of the program. And the following tale might, in part, explain why.

On the EVE sub-Reddit, a place with more sodium chloride than the Dead Sea, someone decided to complain about the Partnership Program. Of course, the OP decided to weaponize RMT activity, which drew my attention. The relevant segment of the post is below:

Now it's time we take a closer look at how the Eve Partnership Program is currently being ran. Eve partner Rushlock has every CCP supplied scope skins behind a level 5 hypetrain paywall on Twitch ( . This means he's requiring about $40-$50+ of monetary gain to release a skin into the community which CCP supplied to boost Eve activity across platforms. Other Eve Partner streamers have advised that CCP gave them permission to give skins directly to contributors on their platform, this includes monetary donations apparently. So streamers can set monetary values for people to directly receive skins without moderation from CCP.

Rushlock, a Twitch streamer, has the unfortunate practice of using the term "paywall" during his streams.

A streamer putting content behind a paywall, especially when the content is a givaway, is strictly forbidden. But is Rushlock's "paywall" a paywall for the purposes of the EVE Online Content Creation Terms of Use? First, we need to review exactly how the "hype train paywall" works.

According to Twitch...

Hype Train incoming! Hype Train is a super-sized celebration when community members unite to support a streamer they love. It challenges the community to reach epic levels of hype and rewards participants for keeping the train on track. A Hype Train will kick off when there’s a spike in support events (such as subscriptions, or use of Bits or Sub Tokens) from different viewers in a channel, based on a threshold set by each Streamer. This activates a countdown, during which all participants earn emote rewards for supporting the channel.

One of the important items to note is that a single account cannot initiate a hype train...

A Hype Train is kicked off when there is a spike in Bits or Subscription activity in a channel coming from different viewers within a specific time frame. Once kicked off everyone in chat can help fill the Hype-o-Meter by using Bits, subscribing, gifting subs, subscribing with Prime on web, or using sub tokens on iOS.

However, I heard Rushlock on the stream say something about triggering a hype train using alt accounts. So there is that.

So basically, a drawing doesn't occur unless the hype train feature hits level 5. Hitting level 5 requires the expenditure of real world currency. However, reaching hype level 5 doesn't hand players an in-game item.

Before continuing, I need to describe the item. The prize is a SKIN designed specifically for the Partnership Program.

To help you draw attention to your work and engage with your audience, we’ve developed a new line of SKINs which will be available only through our partners. Every month we’ll give you a big bundle of SKINs to use for giveaways, contests, or other creative ways of rewarding your audience while hopefully encouraging more people to check out what you make. Our initial lineup has a SKIN for a different hull every month to keep things fresh and to keep people coming back!

So, Rushlock has an in-game item that he gives away once a certain amount of real world currency is paid to trigger a drawing. But, contributing to the hype train effort is not required to win. Also, I checked with Rushlock and the drawing is not restricted to subscribers. As far as I can tell, there is no restriction to who can win.

With the background set, let's go through the EVE Online Content Creation Terms of Service. Four conditions will determine whether Rushlock is breaking any rules.

Non-Commercial - your content must be available free of charge to everyone and cannot be blocked behind a paywall or premium subscription. You also cannot receive direct profits from sales of said content or its ownership unless you receive prior written permission from CCP. Ultimately, this is still our stuff that you are looking to use; we need you to get creative.

Rushlock fulfills all of the conditions for this set of checks. His Twitch stream is available for all viewers. The giveaway is not locked so that only subscribers can enter the drawing. Anyone with an EVE account can win. Technically, people without EVE accounts can also win, but they won't have the ability to accept the prize. The fact that viewers have to contribute a certain amount of money for the drawing to take place is not covered under this block of conditions.

Monetization – you can monetize the content by generating revenue through appropriate passive advertisement, e.g., pre-roll video ads, website ads, sponsor ad overlays. Soliciting personal donations or offering subscription-based content is also permissible, as long as a) this does not interfere with everyone’s ability to view the content, b) is in line with the terms of use of the platform used, and c) features unique content created by you in the form of commentary, gameplay, graphics, animations, or cosplay.

As far as I can tell, Rushlock's promotion does not violate any of the monetization rules. All viewers still have the capability of viewing the content, the hype train feature is a Twitch feature, and Rushlock plays EVE throughout the stream.

Giveaways – if any in-game assets are used in giveaways to promote the popularity of your content or brand, there must be full parity between users who are viewing the content for free and those who are subscribed, and all viewers of content must have the same access to giveaways and the same chance to win prizes regardless of any subscription fees paid. In situations when CCP have sponsored the rewards (digital or physical), you must, in addition to the above, disclose this information conspicuously to all participants by adding a relevant description to your videos, stream titles, or other places it makes sense.

Once again, Rushlock's promotion follows all of the rules in the Giveaways section. All viewers, subscribers and non-subscribers alike, have the same chance of winning. The only quibble I have is whether Rushlock adequately announces that the SKINs were donated by CCP. But that's a judgement call for the community team to make and doesn't really have any bearing on whether RMT is involved.

Terms of Use – CCP Content cannot be used in any way that violates our general Terms of Service. It must also be in line with the terms of use of any third-party platform your content is created for.

I call this section the SomerBlink rule. From 2010-2013, Somerset Mahm used his casino, SomerBlink, to launder at least $135,000, and possibly as much as $175,000, in ISK using his status as an affiliate of a Game Time Code reseller. Somerset's actions violated the EULA, but the Game Time Code reseller's agreement overrode the EULA. CCP reversed course and changed the GTC reseller's agreement so that players could no longer take actions that violated the EULA, with the change taking effect the first week of November 2013.

Looking at the Terms of Service, I see one condition Rushlock's promotion violates.

7. You may not violate any local, state, national or international laws or regulations.

I'm afraid that, due to the presence of money, some jurisdictions, particularly those in Europe that have banned lootboxes, would consider Rushlock's scheme a form of gambling. Of particular note is the situation in the United Kingdom. Politicians across all political parties are in favor of changing the Gambling Act of 2005 to make loot boxes illegal. The UK legal firm of White & Case explained how the concept of "money's worth" needed to change.

The Report examined the gambling regulatory framework, namely the Gambling Act 2005 (the "Act"). The Act states that a regulated form of gambling means playing a game of chance for a prize which means "money or money's worth" and includes both a prize provided by a person organising gaming and winnings of money staked. The UK Gambling Commission provided evidence to DCMSC that the Act in its current form does not apply to loot boxes, as in game items have no real world monetary value, and therefore do not fall within the meaning of "money's worth" in the Act. Whilst the Report acknowledged that the Act was not neatly applicable to the economics of the gaming industry, it concluded that loot boxes should in future be considered as games of chance played for "money's worth", and recommended that the Government should specifically bring loot boxes into section 6 of the Act through new regulations or commission research to counter the Report's view. [emphasis mine]

If the contents of a loot box become "money's worth", then so would the custom SKINs CCP gives to the content creators in the Partnership Program. In addition, back in 2017 the U.K. Gambling Commission issued a paper that suggested that third party RMT could make a virtual item money's worth.

“3.17 The payment of a stake (key) for the opportunity to win a prize (in-game items) determined (or presented as determined) at random bears a close resemblance, for instance, to the playing of a gaming machine. Where there are readily accessible opportunities to cash in or exchange those awarded in-game items for money or money’s worth those elements of the game are likely to be considered licensable gambling activities.”

The 2017 paper also stated that if third parties convert a social gaming activity to gambling, then the developers of the game do bear responsibility. The paper stated in paragraph 3.16:

“However, we are strongly of the view that the video games industry should not be, or perceived to be, passive to the exploitation of their player community by predatory third parties. The significant risk of harm posed by these unregulated gambling websites, whilst unintended, is nonetheless a by-product of the manner in which games have been developed and in-game economies incorporated for commercial benefit.”

I suspect that two countries that have banned loot boxes, Belgium and Netherlands, might look askance at Rushlock's giveaway. And the situation will become worse as time goes on and more countries take action against video game associated gambling.

Now, I have to admit, if Rushlock were some random streamer, I wouldn't have spent the time and effort to write this post. But, he belongs to CCP's Partner Program and is giving out unique SKINs provided by the developers. While not as egregious a situation as the SomerBlink scandal involving Gold Magnates and Guardian Vexors, the fact someone approved by CCP is using giveaways to make money in the real world isn't sitting well with people as they find out about the situation.

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