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.
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.
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.
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