Online multiplayer games: a virtual space for intellectual property debates? more

........................................................................................................................................................................................................................................................ new media & society Copyright © 2006 SAGE Publications London, Thousand Oaks, CA and New Delhi Vol8(6):969–990 [DOI: 10.1177/1461444806069651] ARTICLE Online multiplayer games: a virtual space for intellectual property debates? ............................................................................................................................................................................................................................................ SARA M. GRIMES Simon Fraser University, Canada ............................................................................................................................................................................................................................................ Abstract This article explores how online multiplayer digital games are used as a venue for the negotiation of intellectual property rights. Recent disputes between players and creators are contributing to both a shift in contemporary notions about the nature and limits of copyright and a growing relationship between virtual leisure and real-world economics. A brief overview of the debate as it has been portrayed in both academic literature and the popular press will provide the context for this analysis. The focus then shifts to the ways in which existing laws and understandings about intellectual property are transforming to accommodate the unique characteristics of online multiplayer games. The contentious issue of labor within online gaming is discussed through a consideration of shifting social conceptualizations of play and the confounding of leisure and labor. The underlying usevalue–exchange-value relationship is also explored within the theoretical framework of a political economic perspective. Key words copyright • digital play • intellectual property • internet • labor • online games 969 New Media & Society 8(6) INTRODUCTION With the continued proliferation of information and communication technologies (ICTs) and the increasing primacy of information in social systems as diverse as economics, health and even culture, the question of how the newly-digitized society will address and incorporate human rights has become a matter of global urgency. The emergent ‘internet culture’ (Castells, 2001) has presented us with an opportunity to express and share a plural and extensive array of cultural products and artifacts. As long as the digital cultural landscape continues to escape the commodifying reach of the transnational corporate giants, the emergent world information society will retain its potential to include the voices of innumerable cultures, independent filmmakers, amateur animators, local musicians, artists and grassroots organizations. In stark contrast to previous media and technological innovations, the internet and other new ICTs provide users with access to both the means of cultural production (through software and programs that are easy to use and are relatively affordable or even free) and potential mass distribution (primarily through the world wide web). This enables new media users to participate – albeit in varying degrees – in the construction and evolution of online culture, through both the creation of content (such as websites or digital video clips) and their contributions to multi-user online environments (such as games or social networking sites). The fact remains, however, that the most popular websites, online environments and games are commercially owned and operated (Lastowka and Hunter, 2004; Nielson/Netratings, 2004), responding primarily (if not solely) to corporate and shareholder interests. Since the advent of the internet, a number of factors and developments have contributed to its encroachment by the growing online presence of transnational cultural industries and accompanying consumer discourses. As the rest of the globe slowly gains access to the technologies, conventions and interactions of the digitized society, corporate entities strive to establish themselves as the primary gatekeepers of cyberspace. Corporate fervor to dominate the internet is motivated by the very nature of digitization which, as Hamelink suggests, reinforces a social process in which the production and distribution of information evolves into the most important economic activity in a society, in which information technology begins to function as the key infrastructure for all industrial production and service provision and in which information itself becomes a commodity tradable on a global scale. (1995: 73) At the center of this process lies the contentious issue of intellectual property and the expansionary forces of copyright laws – both in terms of their application and enforcement. In his comprehensive analysis of the growing influence of copyright on cultural production and distribution, Bettig (1996) argues that copyright and patent laws provide the legal 970 Grimes: Online multiplayer games grounding and support for the appropriation and commodification of an ever-expanding breadth of intellectual and artistic products. This is particularly true in the USA, for example, where the tendency for copyright laws to be monopolistic is amplified further by the oligopolistic nature of American cultural industries. Within global commercial culture, the US Government also plays an important role in the enactment and enforcement of copyright laws both nationally and abroad, resulting in the legitimization of ‘the concentration of ownership of inventions, art and literature in the hands of the expanding capitalist class’ (Bettig, 1996: 17). The ideological foundations of existing copyright laws have been the topic of significant debate, as it is often argued that contemporary copyright systems are not operating according to the underlying principles or ideals of intellectual property – namely, to serve as a way of rewarding creators and inventors and encouraging them to share their works with the rest of society (Boyle, 1996). A number of crucial problems have been identified with the way in which copyright law is interpreted and enforced, many of which stem from the fact that its basic premises were formulated in the early stages of the Industrial Revolution. At that time, creative production was a far simpler process, often involving a single author and a single publishing house. However, in the early 21st century, many creative works involve the contribution and participation of a number of creators, sub-contractors and offshore production studios working in a post-Fordist system that has alienated many creators from ‘authorship’ of the final product. As a result, Bettig argues, ‘Ownership of copyrights increasingly rests with the capitalists who have the machinery and capital to manufacture and distribute them’ (1996: 7–8). Furthermore, as the international cultural environment becomes increasingly entangled within restrictive copyright systems, new ICTs are increasingly conceived and defined within the confines of the commercial framework. In conjunction with the broad commercialization of new media formats, increasing debate and controversy has arisen over the encroachment of corporate interests on the online activities of internet users. The fundamental conflict of interest that exists between the culture industries and internet users was first brought to public awareness in the late 1990s. An example of this is the music industry’s highly publicized pursuit of legal actions to obstruct online file-sharing activities through popular programs such as Napster and KaZaa!, which led to widespread public debate and a number of important corporate and legal developments. More recently, media (Dibbell, 2003; Thompson, 2004) and academic (Lastowka and Hunter, 2004; Taylor, 2002) attention has shifted to the realm of online multiplayer games, a massively popular internet activity (Entertainment Software Association (ESA), 2004; Jones, 2003) at the center of numerous 971 New Media & Society 8(6) legal, economic and ethical debates that have the potential to impact significantly upon the future of the global information society. This article seeks to examine how online digital game players and creators are contributing to a shift in both contemporary notions about the nature and limits of intellectual property rights, as well as the growing relationship between virtual leisure activities and real-world economics. A brief overview of the debate as it has been portrayed in both academic literature and the popular press will provide the context for this analysis. The focus will then shift to an examination of the ways in which existing laws and widelyaccepted understandings about intellectual property are transforming to accommodate and incorporate the changing characteristics of new media technologies. The argumentation and theoretical perspective applied to this analysis draws from the political economy of communication framework formulated by Mosco (1996), and seeks to incorporate a Marxian analysis to the issues surrounding intellectual property within online games. A VIABLE MARKET FOR MAGIC WANDS? The concept of intellectual property – what it means, what it should include and how it should be articulated in legal documents and trade agreements – has remained an important point of contestation and debate since its first appearance in pre-Industrial England. Historically, ‘ideas’ in themselves were considered beyond the scope of copyright and intellectual property law – at the turn of the 20th century, it was widely understood that ideas and facts were decisively part of the public domain (Boyle, 2002). In recent years, however, these ‘Long-standing limits on the reach of intellectual property – the anti-erosion walls around the public domain – [have been] eaten away’ (Boyle, 2002: 15–16). Copyright and patent laws are continuously expanding to include ‘ideas’ and ‘concepts’ which, only 20 years ago, would have been considered outside the realm of intellectual property ownership, including recent campaigns in the USA to apply copyright to raw compilations of facts and data (through database rights, for example). With the continued global proliferation of digital ICTs, intellectual property debates have become increasingly heated. Much controversy has stemmed from the fact that digitization has drastically altered the nature of information, which now can be reproduced infinitely and distributed to ‘countless people simultaneously without mutual interference or destruction of the shared resource works’ (Boyle, 2002: 17). The digital ‘commons’ and intellectual properties of the 21st century are vastly different from the plots of land and printed texts that the original definitions of property and copyright were intended to protect. As Vaidhyanathan (2001) argues, since copyright was fundamentally designed to regulate unauthorized ‘copying’ of a work (not the audience’s right to read or share works), new technologies 972 Grimes: Online multiplayer games have presented copyright policymakers with a difficult challenge. In essence, digitization has caused a collapse or merger between previously distinct activities, such as accessing, using and copying (Vaidhyanathan, 2001). Furthermore, ICTs and online cultural environments are highly interactive, calling for a level of participation and contribution from users and audiences that is much more active and involved than previously thought possible. Boyle (2004) highlights that one of the key challenges that ICTs present to the World Intellectual Property Organization (WIPO) is that intellectual property laws now have a much more direct impact upon individual citizens than they previously did. Whereas intellectual property rights were once primarily the ‘preserve of major industrial concerns’, Boyle argues, the WIPO is now called upon to implement a ‘set of laws that regulate the citizen-publishers of cyberspace as well as protecting traditional publishers from competitors in the same industry’ (2004: 4). However, while these two groups may be subject to the same laws, they do not always have access to the same legal knowledge and resources, nor do they benefit from the same level of representation within domestic and international councils (Boyle, 2004). Nonetheless, individuals are increasingly confronted with intellectual property issues and laws relating to personal privacy, freedom of expression and access to information and culture. It is, therefore, not surprising that users of new technologies are becoming concurrently entangled in legal disputes and ethical conflicts, in terms of the extent and nature of their participation in commercially-owned and operated programs, games and sites. Nowhere have the tensions between user and corporate interests more clearly manifested than within the realm of online gaming. Unlike the ongoing conflicts surrounding music file-sharing software (including Napster and KaZaa!), cases involving online multiplayer games (most often involving Massively Multiplayer Online Games [MMOGs] such as EverQuest, SimsOnline and World of Warcraft) illustrate how the interactive and collaborative nature of many internet applications problematizes traditional notions of authorship. Online multiplayer games consist of ongoing cultural productions, the result of the combined efforts and participation of both corporate employees (designers, programmers, customer support agents, etc.) and the games’ players. The collaborative and often symbiotic aspects of these shared production processes are presenting new challenges to legal concepts such as intellectual property and ownership. The emerging debates have the potential both to significantly alter the structure of the internet and to redefine future articulations and treatments of intellectual property issues worldwide. Thus, while file-sharing cases may effectively demonstrate the conflict between corporate interests and the notion of a cultural commons, online multiplayer games present a unique venue for a critical investigation of how online environments and 973 New Media & Society 8(6) communities are redefining social conceptualizations of cultural work, digital copyright and intellectual property. Lastowka and Hunter (2004: 50) identify Blacksnow Interactive v. Mythic Interactive as the ‘first dispute over virtual property to make it to the realworld court system’. The owners of Blacksnow Interactive had set up a ‘point-and-click sweatshop’ in Tijuana, Mexico, where employees were paid a substandard hourly wage (under $3.74 per hour) to play the online multiplayer game Dark Age of Camelot in order to build up characters and acquire rare (in-game) items to then sell to other players over the internet (Dibbell, 2003). When the game’s developers, Mythic Interactive, found out about the outfit, they demanded that operations cease on the grounds that Blacksnow was infringing upon Mythic’s intellectual property. Blacksnow responded with a countersuit, claiming that Mythic was engaging in ‘unfair business practices’ and had their lawyer publicly state, ‘What it comes down to is, does a . . . player have rights to his time, or does Mythic own that player’s time?’ (‘Blacksnow Sues Mythic for Online Property Rights’, 2002). Although the Blacksnow Interactive v. Mythic Interactive lawsuit was eventually dropped, early legal actions of this kind mark an important shift in both legal and public perceptions of the nature of virtual copyright and the problems spawned by the commercialization of online interaction and play. The conflict over virtual assets and intellectual property in the context of online games has not been limited to inter-corporation disputes. As Taylor (2002) describes, in 2000 Sony Entertainment secured the cooperation of popular online auction sites including eBay and Yahoo! in order to prevent EverQuest players from selling game characters and other in-game items for real-world profit. She explains, ‘Up until that time a sort of “cottage industry” had sprung up in which users were turning their online labor into offline cash’ (2002: 231). The online auction market for EverQuest goods, such as virtual armor, weapons, magic wands and even entire characters, had developed into a $5 million industry. Although Sony succeeded more or less in putting an end to EverQuest commerce on eBay and Yahoo!, the prohibition has been largely ineffective, as auctions and sales continue to flourish on less compliant, less traceable websites (Lastowka and Hunter, 2004), generating somewhere between US$200 and US$400 million a year in sales (Dibbell, 2003; Leupold, 2005). The reasons behind the heavy-handedness of the corporation’s reaction to these activities are twofold, the most obvious being the real economic repercussions that unsanctioned trade can have on corporate profits. As Taylor argues, the main problem that companies have with allowing players to buy and sell their accounts and items is that ‘it short-circuits the economic model that is the lifeblood of many commercial virtual environments – subscriptions’ (2002: 231). In order to participate effectively and ‘succeed’ in these games, players must gain substantial ‘experience’ 974 Grimes: Online multiplayer games through participation in quests and battles, each of which require a considerable amount of time and effort to complete. This process is bypassed significantly when items and ‘pre-leveled’ characters (previously-played avatars with high levels of experience) can be simply bought in an auction, as the time usually required to attain the more desirable features of gameplay – as well as the accompanying subscription fees a player would pay while working towards those features – is removed from the equation. Since some items and ‘experience’ levels can take months to acquire, the accumulative loss accrued can be substantial (Taylor, 2002). If players are able to bypass the amount of play-time typically required to earn an especially rare sword, for example, the incentive to dedicate extraneous subscription time toward the attainment of such a sword may be lost. If this practice becomes sufficiently widespread, the subscription-based economic model of many online games could be threatened – an outcome that some game developers are attempting to avoid by authorizing a more limited, company-run version of the player-auctions within the official game site, such as Ultima Online’s ‘Advanced Character Service’ or EverQuest II’s ‘Station Exchange’, although players are encouraged to use this service to purchase an ‘additional character on an existing account [or if the player is] already familiar with the development process’ (‘Support’, 2004). The later part of Ultima Online’s recommendation highlights another important aspect of offline trade, namely the impact that ‘pre-leveling’ or ‘by-passing’ can have on the content and context of the game. In the case of EverQuest, for the implementation of a ban on offline auctioning to be effective, the game developers were required to commence regulating certain in-game practices which, when left to the discretion of the players, were used to conduct unsanctioned trade. The game owner’s interest in preserving the game’s structure also relates to issues of authorship, such as respecting the artistic expressions of the scriptwriters and programmers who developed the game software, or ensuring that control of the corporate image is maximized. The fact that offline sales of items bypass the rules of the game also has a potentially negative effect on other players, who may consider these practices unfair or disruptive and see their enjoyment of the game diminished as a result. The vested interests of the players and the corporate owners of games have provided sufficient justification for some states to intervene in cases of ‘unjust’ game or play practices. In South Korea, for example, the police ‘actively prosecute people who hack into games and they give more weight to cases in which valuable game items are destroyed or transferred’ (Castronova, 2003: 4). State involvement is rationalized by the fact that ingame assets take time to acquire or build, can be observably bought and sold on real-world markets and that players are manifestly distressed by the ‘unfair’ loss or theft of their game items (Castronova, 2003). In a country 975 New Media & Society 8(6) where an online game, Lineage, was recently reported to be more popular than television (King, 2002), the growing influence of online gaming on social, economic and political life is unmistakable. However, it is argued that many of these disputes and developments can be traced to the fact that most online multiplayer games revolve around a common central theme – property-based economics. Lastowka and Hunter (2004) have identified a number of commonalities within online game structures that relate directly to commercial discourse, including exclusive ownership, the transfer of goods and a currency system to support (or even necessitate) trade. Even in those games set in the most fantastical of settings, such as the medieval, Tolkienesque worlds of EverQuest or among the anthropomorphized creatures of Neopia, the world of Neopets (www.neopets.com), gameplay incorporates a virtual economy that faithfully reproduces the western capitalist system (Lastowka and Hunter, 2004). Furthermore, the very design and layout of many online games often emphasizes or privileges commercial and economic features above other, extra-economic activities. In Neopets, for example, the primary activity of caring for a cyberpet (a virtual, online version of the Tamagotchi) necessitates a near-daily purchase of ‘food’ and other goods in order to maintain the cyberpet’s health and well-being. Without continuous participation in the commerce and trade systems of Neopets, players see their cyberpets wither away, starving from malnourishment and neglect. That online worlds conform to western capitalism and consumer ideology is not all that remarkable when one considers their place and function within predominantly American culture industries. As Lastowka and Hunter (2004) describe, the most popular online games are often those produced, owned and operated by private US-based corporations. However, what is surprising is the sheer volume of trade and commerce that takes place within virtual worlds through the actions and interactions of the players themselves. The economies of some online games are so massive and refined that economists such as Castronova (2002) are able to analyze them using the same methods applied to the analysis of real national economies. Castronova calculates that the average hourly income of a character in EverQuest is $3.42, while the gross national product (GNP) of Norrath is estimated at around $135 million (Dibbell, 2003). Even in cases where virtual worlds start off with no property-based market system, it can be argued that the players themselves actively reproduce and impose capitalist economies onto the game environment through both their in-game and offline trade practices. Thus the question becomes whether these transactions are legitimate – are virtual assets truly equivalent to real-world commodities? Lastowka and Hunter (2004) suggest that by both descriptive and normative accounts, virtual property is the legal equivalent of real-world property. They argue that because the ‘development of Western property law 976 Grimes: Online multiplayer games and property systems over the last 200 years has been characterized by a shift from tangible to the intangible’ (2004: 40), any objection to the legitimacy of virtual property based on its intangibility is unfounded. Furthermore, they conclude that virtual property is justified by three of the major accounts of property that have informed legal decision-making in the western world since the industrial era – Bentham’s utilitarian theory, Locke’s labor-desert theory and Hegel’s personality theories. Their analysis shows that, in principle, all three theories support with qualification the claim that virtual entities and assets count as legitimate and real property. However, as Castronova points out, the results of this analysis do not confirm that virtual items must be treated as equivalent to real-world items – they simply show that ‘there are no prima facie grounds for dismissing the putative property rights of people who believe they own magic wands’ (2003: 4). Yet the intellectual property debates taking place within the context of online gaming are resolved only partially by the conclusion that, theoretically, virtual assets can be understood as legitimate property. The more complex issue is that of ownership – the players’ and industry’s conflicting claims over who actually ‘owns’ these assets and who should benefit from their real-world exchange value. Is the owner and operator of an online game also the owner of the characters and objects that the players spend months (perhaps even years) creating within the space of the game environment? Even among US legal experts, the world’s leaders in stringent, corporate-driven copyright and intellectual property laws, opinions are divided when it comes to determining which party can rightfully claim ownership of avatars. On the one hand, players argue that their in-game characters and other virtual assets become their property through the amount of time, effort and creativity that they are required to put into them. On the other hand, the owners and authors of the games claim that because they own the software, as well as maintain and operate the sites and game designs, any activities that occur within the confines of the game fall under their legitimate copyright. Their claims are supported further by the existence of End-User License Agreements (EULAs; also called Terms of Service [TOS] and Terms of Use [TOU] contracts), which explicitly warn players that by agreeing to the terms of the site, they are in essence forfeiting their rights and any future claims of ownership or authorship. Both sides of this compelling conflict will now be examined, as the arguments presented by each represent important challenges to contemporary legal and social conceptualizations of intellectual property. PLAYER INTERESTS VERSUS INDUSTRY INTERESTS While the subject of these conflicts, namely games and gameplay, may appear to be a somewhat playful and perhaps even trivial topic for such a heated dispute, Taylor (2002) maintains that with the advent of multiplayer 977 New Media & Society 8(6) capabilities, online games have become much more than ‘just a game’. She argues that online games are also spaces in which individuals invest a significant amount of time congregating, occupying the virtual space, creating avatars, producing cultures and communities, sharing in leisure activities and reproducing economies. In terms of the characters and items that players acquire and create through the process of gameplay, Taylor writes that players are at the very least the collaborative authors (and hence partial owners) of any cultural artifacts that result from their efforts: It takes a player to create a character and it takes the time of the player to develop the character. Through their labor they imbue it with qualities, status, accomplishments. Indeed, while the owners of a game provide the raw materials through which users can participate in a space, it is in large part only through the labor of the players that dynamic identities and characters are created, that culture and community come to grow. (2002: 232) The focus of this line of argument is on the meaning of culture and community, which require collective participation and formulation in order to produce shared and cohesive social meanings. If the average EverQuest or World of Warcraft player is dedicating 20 hours a week to the construction of a character and participation in the game community (Castronova, 2002), are they not entitled to some level of recognition for their roles as game ‘citizens’ and productive members of the game society? Players contribute to various features of the gameplay not only through the creation of characters or avatars but also through the customization of items such as costumes, houses and weaponry. Part of what makes a game attractive to other players (and potential subscribers) is its ability to offer a well-developed social dynamic, a feature that would not exist without the continued efforts and participation of regular players. On the one hand, games such as EverQuest often use their large user-base (or population) as a key selling point in advertisements and press releases. On the other hand, online games that do not attract a minimum number of players often fail miserably, as the design and gameplay are dependent to a certain degree upon player interactions and contributions to make the game worthwhile. A further, more explicit, way in which players contribute to the construction of online game environments is through participatory design and market research. Kline et al. (2003) describe how the makers of the first-person shooter game Doom are able to exploit players’ ideas and programming skills directly by releasing parts of the game’s source code on the internet for players to modify and refine. In so doing, the company ‘turned every player into a potential programmer who could create his or her own levels of the game . . . opening an ever-expanding vista of worlds created by other players’ (Kline et al., 2003: 204). As Postigo (2003) explains, the practice of modifying game code (also called ‘modding’) 978 Grimes: Online multiplayer games operates essentially as a ‘gift economy’ among hobbyist game programmers and hackers (known as ‘modders’). However, in appropriating the works of modders (‘mods’), game companies convert these gifts into commodities, resulting in ‘the circumvention of the initial investment risk for the commercial developers as the development work is transferred to the fan base where costs are negligible’ (Postigo, 2003: 597). From a labor theory approach, Postigo argues, modders add a considerable amount of value to commercial games, [contributing] six to twenty-four months of additional time, developing additions to the original code that can range from thousands to millions of lines of code and earn no salary for their work. (2003: 602) While the exceptional case of ‘modders’ lies somewhat beyond the scope of the current discussion of common player practices, the special role of ‘mods’ within game development highlights how the game industry does recognize certain forms of unpaid labor put forth by players. Players’ activities and interactions, both within and outside of the game world, have also provided inspiration for new product development and informed marketing strategies. The online game/community There.com (www.there.com) for example, used the organic commerce that cropped up from the EverQuest eBay auctions as a model for their own commercialized game design (Lastowka and Hunter, 2004). Children’s game website Neopets, on the other hand, compiles and sells detailed youth market studies based on data collected from surveys, gameplay and the interactions that players contribute while participating in the site (Grimes and Shade, 2005). Although these types of practice are by no means limited to the world of online gaming, they remain highly relevant to the intellectual property debate, as the determination of authorship is crucial to any claim of ownership of intellectual or cultural products. In addition, digital games have attracted a significant online fan community, wherein fans (presumably players) of particular games create websites, form discussion groups and exchange game-related information and add-ons (Nutt and Railton, 2003). As with traditional media fan subcultures, the industry has tapped into this fan base for ideas and fostered further community development by hosting fan-generated websites and maintaining discussion forums. As Postigo explains, these fans add value to the games by contributing ‘large amounts of the content for these sites making them valuable resources for gamers, which serve as, amongst other things, a ready-made “tech-support” group for other gamers’ (2003: 595). In the case of The Sims, Nutt and Railton describe how the online fan community is encouraged by Electronic Arts (the game’s production company) to produce ‘detailed and complex artworks and fictional narratives’ (2003: 578) about their avatars and gameplay experiences. Rehak 979 New Media & Society 8(6) (2003) notes that the massive online fan base dedicated to video game heroine Lara Croft has played a significant role in the character’s elevation from pixilated avatar to full-fledged virtual celebrity. Rehak also suggests that while a great deal of the online content dedicated to Lara Croft is ‘generated by fans, for fans’, the majority is surprisingly ‘always in line with the interests of Eidos and Core Design’ (2003: 489; emphasis in original). A similar set of producer–creator relationships is found within recent studies of online science fiction fan communities, such as Consalvo’s (2003) examination of fan websites dedicated to the Buffy the Vampire Slayer and Star Trek television series. Traditionally, studies of fan subcultures and communities have tended to emphasize the ‘interpretative tension between popular culture’s producers and consumers, who vie for authority over textual meanings’ (Rehak, 2003: 482; emphasis in original). Fans of science fiction and fantasy television, for example, have continuously negotiated and reappropriated copyrighted media texts, characters and images in their production of ‘fan fiction’, zines and artwork, often coming into direct conflict with television networks and producers (Bacon-Smith, 1992; Radway, 1984) in a practice that De Certeau (1984) and Jenkins (1992) term ‘textual poaching’. As Consalvo (2003: 74) describes, within the context of the internet, fan communities have discovered a ‘preeminent publishing opportunity’ to reach a potentially international audience, as well as greater access to media texts and materials for creative appropriation. In response, television networks and producers have threatened many fan-sites with lawsuits, often resulting in the removal of unauthorized materials and the closure of a number of offending sites. In the case of Buffy the Vampire Slayer, the Warner Brothers network attempted to incorporate fan activities by offering fans a space for their sites on the network server and granting them access to a limited selection of officially sanctioned images and content (Consalvo, 2003). Consalvo (2003: 76) suggests, however, that while fans’ online activities challenge the centrality of corporate ownership, the ‘corporate-produced media product’ remains the focal point or nexus of most fan activities. Thus, while fan communities may be engaged in a type of conflict or negotiation with media producers, the producers have the distinct advantage based on their greater level of control over the content and availability of the media texts. The discussion of authorship and intellectual property within online games is compounded by the ‘peculiar characteristics’ of virtual assets and game environments (Lastowka and Hunter, 2004). After all, no matter how vividly players identify with their avatars or treasure their special, customized swords, the swords, chairs, princesses and dungeons of EverQuest are first and foremost the manifestations of strings and strings of code. As Stephens (2002) argues, virtual ‘assets’ are entries in a database which resides on a server, which transmits data to the player’s computer monitor, which then 980 Grimes: Online multiplayer games displays one of a finite number of possible images already programmed into the software. Although opportunities for user-customization are becoming increasingly intricate and frequent, many of the current ‘player creations’ are simply an amalgamation of choices made from a limited selection of possible characteristics. In fact, the decisions about what options are included, how many and where these selections and other set features of the gameplay appear, are made and implemented by the game designers and developers. The Entertainment Software Association (ESA), a digital game trade association, reports that the digital games industry directly employs 90,000 workers, many of which are in highly skilled positions (Kline et al., 2003). Game development is ‘a synthesis of narrative, aesthetic and technological skills to conceive, plot and program virtual worlds, deploying the combined expertise of digital coders, graphics designers, software testers, scriptwriters, animators, sound technicians and musicians’ (Kline et al., 2003: 199). Production, which is often done in studios by teams of six to 50, can take up to two years to complete, with many projects cancelled or thrown out before completion (Kline et al., 2003). Although players may claim that their actions and interactions are what make a game enjoyable, it is apparent that the game parameters and the structure of the content are both imagined and realized through the work, knowledge and artistry of its creators. The collaborative nature of the authorship of games is also hard to dispute, although player contributions may be quite minimal when compared to the combined, highly skilled labor of the design and development teams. At the center of the industry’s claim to intellectual property ownership is the controversial issue of EULAs. EULAs are virtual contracts that players must agree to before entering a game environment, by clicking an affirmation that they have read and accepted the terms and conditions outlined in the EULA. By clicking, the user agrees to waive a number of significant rights, such as the ‘rights to own the fruits of labor, rights to assemble, rights to free speech’ (Castronova, 2003: 8). For example, Blizzard Entertainment Inc.’s Terms of Use (2003–2006) agreement for World of Warcraft includes the following stipulations: All title, ownership rights and intellectual property rights in and to World of Warcraft (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, any related documentation, “applets” incorporated into World of Warcraft, transcripts of the chat rooms, character profile information, recordings of games played on World of Warcraft, and the World of Warcraft client and server software) are owned by Blizzard Entertainment or its licensors. 981 New Media & Society 8(6) Miller (2003) supports the legitimacy of these claims to complete ownership and suggests that the eventual allocation of property rights will depend largely on EULAs, as per the terms demarcated within them. Furthermore, the fact remains that online game spaces are not only private and explicitly profit-driven, but users willingly accept these terms and conditions when they voluntarily agree to the EULA (Taylor, 2002). However, other scholars and economists argue that it remains unclear whether the EULAs in their current form will prove strong enough to survive the growing challenge posed by players and other opposing parties (Castronova, 2003; Lastowka and Hunter, 2004). Castronova argues that game owners cannot prevent fair and equal treatment of individuals and virtual property just because they have a EULA that says so. He writes: ‘Synthetic worlds are being treated as special cases, but no law has defined when and how this special treatment should apply’ (2003: 9). Lastowka and Hunter also conclude that as more people come to inhabit ‘virtual worlds’, users will seek to protect the fundamental rights that EULAs currently contract away. Furthermore, it is likely that a large number of suits will be filed as users attempt to circumvent or attack EULA restrictions in pursuit of profit and other economic incentives (Lastowka and Hunter, 2004). On the other hand, game owners and producers might anticipate an eventual shift in players’ acceptance of EULA terms and modify their approach. For example, during a 2003 conference on legal issues in online gaming (called ‘State of Play’, held by the New York Law School), Linden Lab announced that it was changing the TOS for its online multiplayer game Second Life, and granting players full intellectual property ownership of any in-game content that they created, ‘including characters, clothing, scripts, textures and objects’ (Calvert, 2003: 1). As the debate over EULAs and intellectual property in online multiplayer gaming gains prominence within public discourse, it is possible that other companies will either follow Linden Lab’s example, or devise alternative strategies for accommodating player demands. Play versus labor While players’ claims to intellectual property necessarily imply a concurrent claim of (at least partial) authorship, the exact extent and nature of the ‘work’ that they contribute remains ambiguous and largely undocumented. Although participation in online multiplayer games is voluntary and presumably motivated by the pursuit of leisure and fun, the intellectual property debates seem to have resulted in a confusion or loss of distinction between the concepts of labor and play. For example, Taylor (2002) argues for the development of broader social conceptualizations of cultural production and ownership, as well as the recognition of collective authorship that includes the contributions of the players. This perspective is supported in part by Terranova, who contends that the ‘acknowledgement of the 982 Grimes: Online multiplayer games collective aspect of labor implies a rejection of the equivalence between labor and employment . . . Labor is not equivalent to waged labor’ (2000: 14). This confusion of play with work is a reversal of McRobbie’s (2002) notion of the ‘cultural turn’, wherein both society and the economy are seen as increasingly assuming a cultural dimension. Here, it is culture that is seen to be assuming additional social and especially economic characteristics. By equating play activities with work (and all the rights and claims that accompany the role of worker), the real labor of the programmers who create the software and the factory workers who assemble the hardware becomes lost in translation. As Willis suggests, ‘the abstraction of labor . . . is not something we as consumers can directly grasp, rather it enters our daily life experience as the inability to apprehend fully or even imagine nonfetishized use values’ (2001: 338). Within the context of online gaming, the resulting confusion may be caused at least partially by the digital game industry’s own attempts to blur the boundaries between work and play within media and public relations campaigns. Within media discourse, as Kline et al. describe, making games is itself shown as play – work as fun . . . so that not only consuming games but also producing them is represented as a continuum of endless fun [which] is a part of the interactive game industry’s hip self-image. (2003: 197) In reality, the labor that goes into digital game production spans across many years and several continents. In addition to the intense work ethic of predominantly male game development companies and the immense creativity essential to high-quality software development, digital games are also the product of the painstaking efforts of a primarily female labor force that constructs game consoles and cartridges within the enterprise zones of the developing world. Underpaid and working in arduous conditions, the young women who assemble semiconductors and other components of game hardware are often ‘subjected to ferocious work discipline under conditions that destroy health within a matter of years’ (Kline et al., 2003: 205). While players often associate their contributions and participation in online multiplayer games with the labor performed by game designers and programmers, little mention is made of the more explicitly laborious, manual work that goes into manufacturing game hardware. Although the crux of the players’ argument lies in demonstrating how gameplay can be experienced and understood as a form of cultural work, this oversight is relevant in that it demonstrates a fairly limited and highly particular interpretation of labor and labor processes. The position that voluntary, leisure-driven activities should be seen as a type of labor – while crucial elements of game and information communication technology (ICT) 983 New Media & Society 8(6) production remain ignored and unrecognized – thus jeopardizes our ability to comprehend fully the multifaceted and often abstracted labor processes involved in the global digital game industry. However, it is not only our understanding of ‘labor’ that is at risk here but also our notion of play. A number of the leading theorists in this area (Castronova, 2003; Lastowka and Hunter, 2004; Taylor, 2002) argue that ultimately, the possibility of an economic valuation of play will depend on whether online multiplayer games are granted the legal status of either a ‘game’ or ‘not game’. In a widely-cited definition of the term ‘game’, Huizinga (1950[1938]) suggests that the key criteria that an activity must meet in order to be considered as a game is that it has no moral consequence. As Castronova explains, ‘Whatever is happening, if it really matters in an ethical or moral sense, it cannot be a game. Rather, games are place [sic] where we only act as if something matters’ (2003: 2; emphasis in original). Taylor suggests that within the context of games such as EverQuest and SimsOnline, where the game has certainly come to matter a great deal for members involved in intellectual property disputes, the environments are described more accurately as ‘dynamic communities’ than simple games. For Taylor, the unique characteristics of multiplayer online games have transformed gameplay itself into just ‘one of many activities users engage in and play is in turn made up of a complicated mix of social and instrumental actions’ (2002: 228). There are numerous examples of ‘offline’ games that are viewed in a similar manner and accepted as important social and political events, including the Olympic Games and a number of large-scale spectator sports. Castronova observes that games produce real moral and tangible consequences as the result of a ‘self-confirming social consensus: if all society says that the World Series matters, then it does’ (2003: 3). It is through society’s shared agreement that certain games (such as the Olympics or the Stanley Cup) are important and meaningful that the consequences of these games come to be understood as serious and relevant. On the one hand, if it is decided that online games are not merely ‘games’, then these online spaces are not only important sites of social and cultural activity but must also answer to real-world laws and state intervention. On the other hand, if online games are defined legally as ‘games’, while they may remain important sites of social and cultural activity, they will operate outside the confines of the law and real-world economics (Castronova, 2003). Castronova further warns that the more realworld meaning permeates online play spaces, the more likely it is that their status as games will erode and that they will be opened to the laws, expectations and norms of capitalist society. He calls instead for the preservation of play spaces as a fundamental human right. The right to play, to a cultural life and leisure activities, he argues, is addressed implicitly 984 Grimes: Online multiplayer games within two separate articles of the Universal Declaration of Human Rights, Article 27 (‘Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’) and Article 24 (‘Everyone has the right to rest and leisure’). By allowing economic imperatives to encroach upon the newly-formed play spaces of online multiplayer games, we risk our greater – and arguably more important – rights to enjoyment, leisure and escape from the broad commercialization of the outside world. Although the right to play may be recognized as fundamental by scholars such as Castronova, its articulation remains absent from the various trade agreements and laws that currently regulate global commerce and ICTs. Although EULAs may be interpreted as ‘contracts that restrict the ability of individuals to erode the play-ness of the space’ (Castronova, 2003: 10), in order for a declaration of ‘play space’ to be effective and just, first it must be formulated and regulated by government. In addition, for a play space to retain its special status as a ‘game’, it would have to ‘maintain strict separation of its economy from the economy of the outside world’ (Castronova, 2003: 12). Although Castronova’s ‘call to action’ may be both idealistic and naive given the current political and economic climate that pervades the western world, it is useful nonetheless in considering how play might be defined and preserved, as well as envisioning a viable (although perhaps unlikely) alternative to the current commercial model. USE VALUE VERSUS EXCHANGE VALUE The online gaming debates can also be understood in terms of Marx’s theory of the use-value–exchange-value relationship. As Jhally (1987: 27) suggests, ‘The relation between use value and exchange value is central to Marx’s concept of the fetishism of commodities.’ Mosco (1996) defines the process of commodification as follows: use-value is determined by a product’s ability to meet individual and social needs, whereas exchangevalue is determined by what a product can bring to the marketplace. Commodification occurs when use-value is transformed into exchangevalue. In Marx’s discussion of this relationship, he describes use-value as ultimately subordinate to exchange-value – that the true disjuncture of ‘commodity flows’ is how the exchange-values of commodities seem to ‘have value inherent in them when in fact value is produced by humans’ (Jhally, 1987: 29). For Marx, commodities are the ‘embodiment of human labor in the abstract’ (Willis, 2001: 338) and therefore the only way to undermine the fetishism of commodities is to understand the process of exchange-value and reclaim human labor. In discussing the intellectual property in online gaming debates within a Marxian context, it becomes clear that both players and industry are contributing to the same 985 New Media & Society 8(6) commodifying process and that the resulting confusion between play and labor is understood better as a confusion of use-value and exchange-value. Although this line of argumentation may seem to support the players’ claims to collaborative authorship and limited ownership, Willis (2001) emphasizes the dialectical role of use-value which – although it often goes unnoticed and unidentified – is recovered in ‘daily-life social practices’ and the individual ways that we appropriate, use and understand commodities and goods. In the context of online games, use-value might be seen as the value which players derive from experiencing the many facets of the game environment, from the enjoyment and effort put into acquiring a new item, even from finding ways to cheat or break the rules of the game. However, the arguments supporting the players’ claim of ownership over their in-game contributions position use-value as a justification for (as opposed to resistance to) further commodification. For example, in her study of EverQuest players, Taylor (2002) describes how one respondent perceives her game avatar as a personal ‘creation’ or ‘product’ – imbued with the meanings and personality traits that she has bestowed upon it. By interpreting gameplay and in-game interaction (use-value) as a form of cultural labor and by claiming ownership over the fetishized cultural artifact (exchange-value), the players commodify their own gaming experience. While the players have become aware of the exchange-value of their participation, however, it seems that use-value has remained unaccounted for within the intellectual property debates of online games. Of course, the players’ use-value is also commodified by the game owners, who use the players’ pleasure, personal investment and social gratification to compel them to continue to purchase monthly subscriptions and software upgrades. The possibility for players to participate in the creation of a gaming experience and storyline is also a key selling point of online multiplayer games. This trait is reflective of a greater trend that pervades the cultural economy, particularly in relation to digital media formats such as the internet. As Terranova argues, ‘the internet is about the extraction of value out of continuous, updateable work and it is extremely labor intensive. It is not enough to produce a good Web site, you need to update it continuously’ (2000: 16). Thus, it would seem that the very aspects that allow players to reclaim the use-value of online games, such as high levels of interactivity and the opportunity to play and communicate with other players, are often the same features that make online games a profitable market commodity. In many ways, this discussion is reminiscent of Smythe’s (1981) treatise on the television audience-as-commodity proposed 25 years ago. Smythe describes the audience’s relationship and interaction with the media as a continuum, which departs from the audience’s entertainment and eventually becomes an advertiser’s commodity. He writes: 986 Grimes: Online multiplayer games In economic terms, the audience commodity is a non-durable producers’ good which is bought and used in the marketing of the advertiser’s product. The work which audience members perform for the advertiser to whom they have been sold is learning to buy goods and to spend their income accordingly . . . In short, they work to create the demand for advertised goods which is the purpose of the monopoly-capitalist advertisers. (1981: 222) Perhaps the relationship between players and the game industry can be described in similar terms. The players’ participation in online gaming is commodified and marketed as both a paid-for leisure experience (through gameplay) and as a key selling point of the games themselves (as a community of other players). Through these processes, the ‘audience’ and ‘audience commodity’ are created. Thus within the narrative and aesthetic frameworks of the game designs, as well as the commercial frameworks constructed by the presence of EULAs, the players’ gameplay (or unpaid labor) is channeled through a commodifying economic lens. Through their shared interpretation of the gameplay experience and the products of gameplay as potential intellectual property, both the players and the game owners engaged in the current debate legitimate and contribute to the commodification of the players’ participation. CONCLUSION In seeking to explore online gaming as a potential space for the evolution of concepts of intellectual property and cultural ownership, this article has attempted to include the arguments and perspectives of two main perspectives that seem to predominate in the conflict and surrounding debates. The recent developments examined herein, in conjunction with the growing visibility of this topic throughout academic and legal discourse, are evidence of its significance to changing social and legal conceptualizations of intellectual property and virtual assets. However, although players may eventually contribute in meaningful ways to new formulations of intellectual property, they remain highly disadvantaged in their fight for ownership rights. The corporate game owners have access to a plethora of resources that individual players do not, including the financial means to delay legal proceedings and settle disputes out of court, or simply ban the player from the game altogether. As Taylor suggests, ‘The battle over user autonomy would not be nearly as worrisome if users were operating on a level playing field with the corporate owners they are wrangling with’ (2002: 233). Although the outcome of this conflict remains to be seen, it is important to remember the superior vantage point from which the corporations are operating and their subsequent role in a decision-making process which, ultimately, could affect all current and future users of ICTs. However, the more significant threat to players’ rights and enjoyment of online gaming activities is the lack of a truly oppositional perspective within 987 New Media & Society 8(6) this debate. While the players and game owners compete for the right to claim ownership over game content, an alternative to the continued expansion of intellectual property laws across cultural forms and forums has yet to be adequately articulated. While Castronova’s (2003) ‘right to play’ argument offers an interesting starting point for thinking about this issue from a human rights perspective, the proposition that games could exist beyond the scope of law or commerce is problematic at best. Meanwhile, player resistance to the corporate appropriation of online game culture has consisted of little other than the internalization and legitimization of the processes of commodification. It thus seems that there is only limited space within capitalist discourse to seriously consider extra-economic, noncommodified use-value as an important and valid aspect of daily social life. Taking a Marxian perspective, which argues that use-value is made subordinate to exchange-value within the capitalist system, it is likely that as long as no other recourse is available to them, players will continue to participate in their own commodification. While online games may present an interesting and compelling forum for discussions on the future of intellectual property and virtual assets, as well as how ownership and authorship are to be determined, the debate thus far has been limited severely by the commercial context from which it stems. As the current discourse operates primarily within the confines of this framework of commodification, both the players and the online gaming industry can be seen as promoting the extension of intellectual property to emerging forms of virtual leisure, as well as confirming the pre-eminence of exchange-value in online play. Acknowledgements The study was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). The author would like to thank Yuezhi Zhao, Andrew Feenberg, Anil Narine and the anonymous reviewers for the valuable comments and feedback. References Bacon-Smith, C. (1992) Enterprising Women: Television Fandom and the Creation of Popular Myth. Philadelphia, PA: University of Pennsylvania Press. Bettig, R.V. (1996) Copyrighting Culture: The Political Economy of Intellectual Property. 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Kellner (eds) Media and Cultural Studies: Key Works, pp. 334–50. Malden, MA: Blackwell Publishing. ‘World of Warcraft® Terms of Use Agreement’ (2003–2006) Blizzard Entertainment Inc. URL (consulted September 2006): http://www.worldofwarcraft.com/legal/ termsofuse.html SARA M. GRIMES is a graduate student in the School of Communication, Simon Fraser University. Her research explores the legal and ethical issues surrounding children’s use of new media technologies, with a special focus on digital games. Address: Applied Communication and Technology Lab, School of Communication, Simon Fraser University, 3520-515 West Hastings Street, Vancouver BC, V6B 5K3, Canada. [email: smgrimes@sfu.ca] 990