After such an interesting guest speaker last week who talked a bit about in-game purchases, I got to thinking a lot about virtual property – the acquisition of it, the sale of it, the theft of it – and how the rise of virtual property might change the face of the law.
Consider the following article:
Now consider the ownership rights of that property……
There really aren’t any. (not in North America anyway)
Virtual property created in virtual worlds has yet to be formally recognized by law in Canada or the United States despite the fact that property obtained in the realm of video games is often given real-world, monetary value. This is corroborated by the fact that there are countless examples of the sale of virtual property in the real-world marketplace. My question is, since virtual property is being bought and sold in the real world, shouldn’t there be real-world legal implications for the theft of it?
I feel like North American courts and judges have consistently showed disrespect towards the gaming community, over-emphasizing violence and undermining and even belittling the importance of video games to many people’s lives (fodder for another blog post at a later time). This lack of respect towards gamers and their subsequent virtual property, has led to injustices that, currently, cannot be remedied by law.
Presently, ownership rights are determined by contract – which is an underlying theme of the course, often in the form of an end-user license agreement. While the specific terms of this agreement vary, most of them place virtual property rights with the developers, not the gamers who acquire the property. I looked up the World of Warcraft end user license agreement out of curiosity and sure enough, under the title “Ownership”:
All title, ownership rights and intellectual property rights in and to the Game and all copies thereof (including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, and any related documentation) are owned or licensed by Blizzard.
It is important to mention that there are signs of other countries beginning to recognize virtual property rights as per the case in our class text about Li Hongchen (p 158-159) whose stolen virtually property was actual restored.
While this discussion is much too large for a simple blog post, my intention is to provoke a discussion of virtual property, mainly, should virtual property be legally protected? Who should be the owner of virtual property? Should gamers be allowed to sell their virtual property for real money? (Indeed, some end-user license agreements restrict this) And finally, how can the law adapt to issues surrounding virtual property? Should it?
5 responses to “Buying, Selling and Stealing Virtual Property – Does the current law protect or disrespect? by Michela Fiorido”
I like the idea of expanding property law to somehow encompass “virtual” property, and perhaps we are just getting to the transition point where such an expansion would be justified. As virtual spaces become more …’concrete’ applying some of the principles of traditional property law may allow users to invest in virtual real estate.
The problem with applying property principles, instead of dealing with it all through contracts (which I think is probably sufficient at the current time), is it’s NOT material space. The value of the virtual real estate is entirely dependent on the willingness for consumers to focus their attention within the “space”. Sort of like buying a slot of advertising time on a television network; it’d be absurd to lobby for traditional property rights for the time slot. What are you going to do, pass it down to your grandchildren? What happens to the “property” when 2 years after you’ve paid for it the network/video game becomes unpopular? Are we going to send demand letters to put old servers back up because “My client had a virtual HOUSE on that land!” …
I envisage a virtual world of growing permanence, of infinite space and dimension. Where travel is instant, and the physical barriers of the ‘real world’ are not present. There are no highway billboards advertising Viagra – because highways are unnecessary. The virtual worlds of the past were modeled on restrictions of the world we know; but that comfort has to compete against the fact that it’s free to literally own an entire universe worth of “digital property” – valueless if you’re the only one attending on it.
I foresee a fiduciary argument coming to light when a virtual “space” becomes so popular, buying advertisement space will literally impact the world’s zeitgeist. What do you put on the banner a billion people will see in passing while going about their virtual business? What ideas are even permissible? What happens when you have 1/4 of the world’s attention in one pretty virtual space; do we even want an “owner” to such a thing? I feel like being kicked out [virtual graffiti charges] of the top rated “Virtual Times Square” [owned and operated by BoysClub Inc.] would raise immigration/constitutional issues. Estoppel anyone? Alright, I’m stopping.
Great response Tyler – To follow up with your post, I’d like to suggest a few ideas:
1) Your comment on passing down the property to your grandchildren – do you think that buying storage space “in the cloud” and then, in your will, bequeathing your passwords and access to this storage to your grandkids, constitutes the transfer of virtual property? I would argue that it does, and I struggle to find the difference in passing on virtual weapons to passing on cloud storage space – your thoughts?
2) Your comment about advertising – I can think of tons of games that have product placement. The current game that I am playing – Splinter Cell Chaos Theory has advertisements for Axe body spray and Nokia phones among others. Do you envision virtual advertising to go even further than this?
Great post Michela. Thoughtful reply Tyler.
Parts of this will come up Wednesday as we start introducing in earnest with what the contractual regime has done to relationships in virtual space. Ironically the conundrums become deeper as we step towards true virtual reality worlds and what video games might eventually become per Tyler’s first post on the Blog and the discussion there.
There is so much to say, but for now let me throw a couple of resources out there:
1.”The Applicability of Property Law in New Contexts: From Cells to Cyberspace” by Lyria Moses
2. Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D.Penn. 2007)
3. The works of Edward Castronova (http://mypage.iu.edu/~castro/home.html) & Vili Lehdonvirta http://vili.lehdonvirta.com)
My short take for what it’s worth is that money now that it has been disconnected from gold is as virtual as the virtual goods we are discussing. Since we treat money as all too “real”, in principle we should be able to find legal space outside contract law for all virtual property. The rubber is beginning to hit the road on taxation of the sale of virtual goods. If something is real enough to tax, presumably it should be real enough for all other purposes.
Bequeathing your passwords I should think would definitely require an expansion of the law. For example, I sign up for a hotmail account, click the “I agree” to the end user license agreement that describes how I may use the service. I die, and leave my password/account to someone that wasn’t privy to the contract… If they don’t use the service correctly (as they perhaps don’t know how the services may be used), or if Hotmail decides to close the account (perhaps they received notice the user had passed on..and they cared.. Facebook is probably a better example…); what can my heir do? Of course, such a thing could be accounted for in the original contract! Having some other right beyond contract though, do we allow legal recourse should Microsoft terminate their services/go bankrupt? MSN Messenger is being discontinued next month isn’t it; should we take this to be an expropriation?
I know it seems like I’ve conflated something, but a provided service or access to a service is what’s important. Not the arbitrary hard drive space that is essentially transient.
Perhaps a more concrete example. Blizzard’s Diablo 3 has both a “virtual gold” currency and a real world dollar value auction house. I put in $300 Canadian into the game, buy a virtual weapon (a real estate investment of sorts!); Blizzard understandably updates the game making my $300 dollar weapon useless by adding harder levels where you can easily find weapons that are better than the one I threw all my money into. Worse, Blizzard might have rebalanced the game and simply changed the stats of my weapon – sort of like getting permission to build an 8 story building, and then patch 2.0 comes out and the government tells you “now you have to take it down”. Worse still, it’s all rendered moot because the game will be obsolete in a matter of a couple years!
Storage space is the same deal. Go back fifteen years. Does all the digital information you own fit on a few floppy disks? Five years later it all fit onto a couple CDs, now we’re measuring it in terrabyte hard drives… The technology is moving too fast to attach property rights to cloud space that will be obsolete by the time the case is heard in court. There’ll be a moment when Google’s Fiberhoods reach a threshold, I don’t know what point it is, but I’m sure it’s akin to the transition point where dial up became highspeed internet – “space” won’t really mean anything anymore. Because storage won’t mean anything. We won’t be worrying about making sure we make a back up copy of our favorite 200 TB video game (“Real World Simulator 4.0”), if you’re connected to the internet, you can obtain access to the information instantaneously. Access can be dealt with through contract though…
Hmmmm, while typing I may have changed my mind. As what “we” are becomes more dependent on this online/digital presence, it seems like a good idea to impose fiduciary concepts on companies like Google/Microsoft that are shaping the future. It’d be a little too Orwellian 1984-ish to have a company having the ability to destroy your digital (which is tied to your financial, personal credibility etc) identity by closing an account for breaking their end-user license. Losing your digital presence may be a worse punishment than jail time; when that’s the case we should probably relieve these companies of the power we’ve constitutionally given to our democratic government! Mmm Paper topic: “Tech Corporations Imposing Criminal Punishment on a Whim” / “How a 14 Year Old Hacker Overthrew the First World” …
Just want to re-quote Tyler’s last provocative last paragraph. Would be cool to have a polling widget on this blog. Anyone want to take this on?
“Hmmmm, while typing I may have changed my mind. As what “we” are becomes more dependent on this online/digital presence, it seems like a good idea to impose fiduciary concepts on companies like Google/Microsoft that are shaping the future. It’d be a little too Orwellian 1984-ish to have a company having the ability to destroy your digital (which is tied to your financial, personal credibility etc) identity by closing an account for breaking their end-user license. Losing your digital presence may be a worse punishment than jail time; when that’s the case we should probably relieve these companies of the power we’ve constitutionally given to our democratic government! Mmm Paper topic: “Tech Corporations Imposing Criminal Punishment on a Whim” / “How a 14 Year Old Hacker Overthrew the First World” …”
Topic for Wednesday….