June 25th, 2008 by Benjamin Duranske
IGE has filed a brief (.pdf) in opposition to last month’s motion for class certification in Hernandez v. IGE. IGE also filed exhibits (.zip) which feature excerpts from the deposition (an out of court proceeding where someone has to answer questions under oath) of plaintiff Hernandez.
IGE’s chief argument is that Hernandez does not have standing to sue because the World of Warcraft “End User License Agreement states that World of Warcraft players ‘have no interest, monetary or otherwise, in any feature or content contained in the Game.’” IGE argues:
[T]he very agreements upon which Hernandez relies foreclose him from bringing suit. Hernandez insists that the EULA and TOU prohibit IGE U.S. from engaging in RMT, yet it is undisputable that he has no right to enforce those agreements – let alone a cognizable interest in World of Warcraft or any aspect of its game play. In short, Hernandez has not been legally injured, and has waived the right to pursue such injury in any event.
IGE also argues that the class should not be certified because it includes both gold buyers and non-gold buyers, and because different potential class members were subject to different versions of the EULA and TOS.
VB does not typically comment on active lawsuits (and notably, the following comments do not go to the general merits of this case) but I cannot resist pointing out a couple of things here.
Second, I personally dislike IGE’s underlying tactic here (though I recognize that it may be a smart one) of pushing the idea in briefing that World of Warcraft is “just a game” and therefore not worthy of all this lawsuit nonsense. IGE says, for example, “[t]hough it may not be clear from the grave tone of the Amended Complaint, World of Warcraft is nothing more than a game…” and “Hernandez has not attempted to explain how his alleged injury – an injury, it must be remembered, purportedly sustained by playing a video game – is ‘irreparable.’” IGE even takes some cheap shots at plaintiff Hernandez, who, like many players, is a full-time student carrying a full course load who finds time to play lots of World of Warcraft — as in this passage:
Hernandez is what some people would call a “hard core” gamer. He considers himself an “expert” World of Warcraft player. He spends “most of his free time” playing the game, which he estimates to be about “35-plus to 40-plus” hours each week, sometimes more. He attends class and studies for about twenty hours each week. He is not currently employed. In all, Hernandez has devoted close to a full year of his life – some 7,000 hours – to playing World of Warcraft.
The tactic may end up resonating with the judge — it would certainly resonate with some judges I have appeared before — but it seems a disingenuous argument for a virtual property company to be making and if this goes to a jury, it could play very poorly. I suspect it is not the argument IGE would be making if it found itself having to sue a subcontractor who failed to deliver virtual inventory he had been paid for, and indeed, in the lawsuit between IGE’s founders, Brock Pierce made a great deal of noise about how Alan Debonneville’s attorney had allegedly been overpaid for virtual goods in exchange for personal benefits — hardly a point you could legitimately make if this was, indeed, “just a game” and all this stuff had no value.
The fact that the contract Hernandez is suing under is a contract for an entertainment product does not render it instantly too trivial for courts to address. There are certainly fair critiques of the Hernandez action, but this isn’t one of them. I hope that responsive briefing makes it clear that IGE’s alleged actions fall completely outside of the “magic circle” and that as such, the “it’s just a game” defense is a red herring.
Notably, nothing prohibits a company taking completely opposite positions in different cases, so IGE would be free to argue that virtual items do have value if it needed to later, but I still don’t like the tactic.
In any case, readers who were sad to see the IGE founders’ fight called in the eighth round due to settlement will rejoice to learn that the always entertaining Brock Pierce himself is scheduled for deposition in this case on July 10-11; excerpts are sure to appear in later briefing.
Plaintiff was granted an extension of time to reply to IGE’s brief regarding class certification until after Pierce’s deposition. Plaintiff’s reply is now due July 18.
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