Of course, this theorizing requires a basic understanding of third party-beneficiaries, and that goes all the way back to the basics of contracts. In a simple contract, there are generally two parties. A basic sales transaction is probably the simplest contract. Say you go to GameStop to purchase inFAMOUS: You give the clerk your $59.99 plus tax, and he gives you the game and a receipt. That was a basic contract for the sale of goods, and the receipt is evidence of some additional terms of the contract for sale, such as the return policy.
So what makes up the contract? Well, consider this paragraph the shortest contract law course ever: First, there has to be an offer and an acceptance. Gamestop offers the game for $59.99 plus tax, and you accept that offer. Then, there has to be consideration, meaning both sides must offer something of value, in this case inFAMOUS and the cash payment, respectively. Both parties must have the capacity to enter into a contract (which is generally not an issue for retail sales) and the intent to enter into the contract. Finally, the contract must be legal.
Of course, not every contract is quite so simple. Let's say you went to GameStop.com and pre-ordered Kingdom Hearts 358/2 Days for yourself and Professor Layton & the Diabolical Box to be shipped to a friend for his birthday. Your purchase for you is basically no different than your in-store purchase, except you've agreed to a transaction on a future date with terms for cancellation.
So, can players sue each other? Of course they can. |
So, what does it mean if you're a third-party beneficiary? In short, you have the right to sue to enforce the contract. So, if GameStop refused to ship Professor Layton, and for whatever reason you decide not to act to enforce the contract, then your friend could bring suit. This only applies to intended third parties, not incidental ones, generally speaking. So, in the above example, GameStop could not sue as the incidental third party.
So where does that put cases like the Glider and World of Warcraft ones? Glider involved tortious interference, but was still a contract between Blizzard and the user governing the behavior of MDY. It's hard to say whether it would have been as successful if it was framed as Blizzard suing as a third party to the MDY and user's contract for sale of Glider. The World of Warcraft suit was a more cut and dry third-party beneficiary situation, but the case never went to court so its outcome is difficult to apply.
So, can players sue each other? Of course they can. As the old saying goes, anyone with $20 and a typewriter can file a lawsuit. The more important question is whether players can successfully sue each other, and to that end, I think the options are slimmer. First, this presumes that the Terms of Use are well drafted and contain provisions such as a complaint procedure to the service provider. In short, this assumes that the lawyers hired by the game company did their jobs reasonably well. So, barring a traditional third-party complaint through those means (as was the result in the Craigslist case), there are a few other possible avenues.
In a game like Second Life, there are the potential suits between players when intellectual property is being infringed, like we've seen in the Eros cases. In all games that have online components, however, there are some other possible actions, though I will admit these are only theoretical. Civil remedies are also going to vary by jurisdiction, and I'm not speaking to criminal allegations, results of hacking, or other interactions outside the normal scope of the game. Harassment would be a possible claim if there was systematic harassment to a pretty extreme level, or something like cyber-stalking. Libel and slander would also be possible, especially if the content moves from being in-game to also being outside the game on, say, YouTube. Right of publicity suits are possible, though they would likely depend on the ability to greatly alter game assets like Second Life. Even tortious interference between players is possible in games that allow for real-money based transactions between players.
If you're looking for the theoretical line, things that the game provider can't control are the most likely things for players to sue players over. The Craigslist opinion seems to say that even if the game provider isn't choosing to enforce their Terms of Use to their fullest based on your complaints to them, that's in their discretion. If, on the other hand, the player is doing something that either the game company cannot control, or that the game company has been unable to control, then you might have grounds to move forward. To be honest, I can't see many player-versus-player suits coming up other than those that mirror the ones that have already come up. The exception being harassment and libel, which I am not aware of any active cases on, but I would expect that there will be suits of this nature before too long. The closest I've seen are the suits involving students' use of Facebook to satirize school officials. It's likely just a matter of time, though, until "player versus player" takes on this new dimension.
[Image Credit: Pentadact]
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with Munck Carter, LLP, and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or Munck Carter, LLP. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
