One interesting angle on this issue is the difficulty posed to recognizing rights in virtual property that arises due to the ephemeral nature of video-game worlds. Evolving technology, capricious consumers, the game-makers’ efforts to keep their products fresh, and ultimately the success of the game over time all ensure that no virtual world is likely to last forever, and this becomes problematic to the case for recognizing virtual property rights, EULA’s aside.
We discussed briefly in an earlier class whether game-makers could be obligated to maintain a game or server because a user has virtual property in the game that would otherwise cease to exist, which Tyler Dennis touched on in a post last semester: http://videogame.law.ubc.ca/2013/01/25/buying-selling-and-stealing-virtual-property-does-the-current-law-protect-or-disrespect-by-michela-fiorido/
From one point of view, the answer to this is that by the time games are wound up, the property may no longer have “market value” – if people aren’t playing the game, then no one is likely to pay for digital assets in the game. However, the fact that something has little or no market value doesn’t usually relieve an owner of their property rights in that thing, although it may limit the remedy they are entitled to if the thing is converted.
From another point of view an analogy could be drawn between virtual property and shares in a company that become worthless when a company declares bankruptcy. While directors might make the decision to declare bankruptcy (or wind up an unprofitable game), in the absence of gross negligence they are not liable for the devaluation of the shares; it is a result of business decisions, which courts usually don’t second guess, and market forces.
On the other hand, game-makers are certainly responsible for property devaluation that they incur by making changes to the game, such as making items more available or introducing more difficult enemies. Here the game-makers’ right to make changes to improve the game for all players seems like it would trump the rights of individual virtual property owners. EULA’s seem to effectively address this issue for the time being.
It is possible to envision situations where EULA’s might fall short, however: for example, a creator’s moral rights in an in-game product of their own creation if the product was found to be copyrightable. It’s sounding like moral rights will come up again later in the course, but as I understand it, an author’s moral rights in copyright are inalienable, unlike their commercial rights, and include the author’s right to not have the work destroyed or disfigured in a way that is prejudicial to the author’s reputation. The game-maker might own the commercial rights to the virtual property based on the EULA, but be prohibited from destroying it based on the author’s moral rights. This would again pose an issue upon the “winding up” of a game, even if the property is valueless at that point, if the author can argue that their reputation would be prejudiced.
And all of this concerns the gamer’s rights in virtual property as against the game-maker/service provider. Rights in virtual property as against other players is a whole different scenario.