Virtual Property Lines in the Sand

Today Rock, Paper, Shotgun as an article on ownership of games, especially on the Steam platform. It’s a good one for anybody holding a virtual library of games on the many available platforms. The simple fact is that we [probably] do not own our games. There’s a lot of uncertainty as discussed by a lawyer that commented within the article, but the issue of a EULA creating a license over property is largely untried.

One reason I like MMOs, is I know that I am a guest from the outset. I don’t own anything in the game. It seems to make things clearer, yet the war over virtual items bound by a license as property is becoming ever more prominent. If virtual items were seen as “owned property” the liability of the MMO developer could be on the bankruptcy level. Niche MMO games could cease to exist overnight at the thought of owing someone thousands of dollars because of a server glitch.

Massively commented that in a criminal case the Dutch Supreme Court decided that Runescape virtual items were in fact “goods” which could be stolen. It is very important to note that Runescape was not a party in the criminal case (although they may have submitted an amicus curiae to the court). I am not happy with this ruling. I would have preferred that the Dutch Supreme Court hung their hat on the thieves affecting the use of the license. A license is property, and just like me stealing the seats in your car, if I can affect the enjoyment of your license there can be criminal and civil consequences.

The coming of Diablo 3 is also one of great interest on this front. Whereas with, for example, EVE Online, where one can use money to buy PLEX to sell for ISK to buy a ship, in Diablo 3 I could theoretically buy someone’s sword for straight up cash. It moves the Dutch thought of “time and energy to acquire” equals property and bring its right back to money to acquire equals property. At the very least the Dutch defendants could not have claimed Diablo 3 items had no tangible value. The cash-driven auction house already been dropped as a feature in the Korean release of Diablo 3, apparently.

It will be interesting to see if any game licensers, MMO or otherwise, change their EULA’s and business practices within the Netherlands based on this ruling. Once Diablo 3 launches it could really redraw the lines in the sand as well.



14 thoughts on “Virtual Property Lines in the Sand”

  1. The Massively article is a little misleading. They tried to rob the kid IRL. ‘What’ they were trying to steal becomes somewhat unimportant. It only came up because the defense lawyer tried (and failed) to argue that since they held someone up with a knife over ‘fake’ stuff like MMO loot, it’s not actually holding someone up with a knife…

    1. Well no it becomes what the defendant is prosecuted for, i.e., you can’t charge someone with murder if no one died, and you can’t charge someone with theft if nothing was stolen. The fact of assault and battery is not the issue.

  2. I’m waiting for the D3 case where someone is banned from the game – and sue’s for the RL value of whatever they have on the character – because there will be a RL value to the items.

    It doesn’t have to be much – and small claims cost 50 bucks to file and get resolved at your local court house.

    Lots of these types of cases could mean big trouble.

    1. I would bet more than $50 that the license to play D3 includes a mediation and/or jurisdiction clause that would significantly increase the cost of suing Blizzard. Those have been largely upheld as proper contractual clauses for click-through contracts without some extenuating circumstances.

      1. Many small claims court rules allow you to bring a small claim where you live – the system is actually intended as a civil remedy setup for people who otherwise couldn’t afford justice.

        Depending on the local laws – it doesn’t matter what the EULA states about jurisdiction when you are under the 2 grand small claims cap. :)

        1. Incorrect. Jurisdiction and alternative dispute resolution clauses (like mediation or arbitration) bind the small claims courts as well. Small claims courts cannot disregard contractually binding clauses just because the claim is small!

          1. However, he’s right in so far as it matters where you live. Parts of the EULA could well be void under local law (they often are, depending on the locality). Then it’s just a question of how to make sure local law applies…

          2. Perhaps I presented the idea wrong – however you can’t give up rights protected under local law – even if you sign a contract.

            That’s why Warranty language has that clause that ‘some of these statements may not apply…’

            Same thing with the EULA – some places do not allow you to sign away your right to sue from your hometown. I could also be wrong but I seem to recall that this type of language was being challenged in multiple districts (to various results) and it wouldn’t surprise me to see the issue hit the Supreme’s within a decade or more.

            Companies have taken this ‘you can’t sue us unless you do it where we are’ language and put it in *everything* recently… it’s not just EULA’s and so the issue comes up outside of the software industry – which has ramifications on how valid those statements are.

            That’s the fun thing about EULA’s – they are based on contract law – which does have a history of saying even if you sign in good faith… that some things can’t be given away.

            MMO’s for the most part have a big leg to stand on by keeping the items/characters worth no cash and thus 100% the property of the company… however (IMO) Bliz is opening a big can of worms letting you sell the items… which gives them a real world money value – and it lets you keep the cash… which assigns implied ownership of said items to you.

            At that point a ban or glitch on their system makes them liable for damage on your part. How much so… well I don’t claim to know – I think it will end up in court. I even suspect someone will make a big enough run at a ‘diablo business’ that they might have enough money to make a *real* run at the court system. I could be wrong but usually when money starts to change hands people get much more invested in the outcome of these types of situations.

            Courts also take a much different view over items with assigned real money value… Just like the recent Dutch court decision.

            1. I’d love to see a U.S. case where someone “knowingly” signed a contract with a forum selection clause to do business and the local laws nulled the forum clause. I am not aware of such a case, and I’d love to see how a court balanced it out. Of all the cases I read long ago the only time I remember a forum selection clause being nulled was when the contract was already borderline egregious and the court read the contract against the favor of the contract writer. Take in to account powerful things like Commerce Clause, UCITA, and the UCC, and it could be quite an interesting Supreme Court case.

            2. Some examples:

              The two-factor theory was set forth in Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005). The court found that a contract clause becomes unconscionable when it is both part of a consumer contract of adhesion and it involves small amounts of damages. Under such conditions the party with superior bargaining power can deliberately cheated numerous consumers out of small sums of money with impunity. When these two conditions are met, certain clauses, such as foreign jurisdiction clauses, become an exculpatory clause that protects the wrongdoer and prevents consumers from employing the most effective method of redress.

              Similarly, a California Court of Appeals for the Second Appellate District found that the forum selection clause in defendant EarthLink, Inc.’s membership contract to be unconscionable. In particular, the court found the contract to be one of adhesion and it found that some California consumers travel 2,000 miles to Georgia in order to recover claims of about $50. See Aral v. Earthlink, Inc., 134 Cal. App. 4th 544 (2005).

              Note that specifically the contracts in these cases were found unconscionable because of the small amount of money involved and large costs associated with the change of venue which basically made the company immune to litigation. This sounds familiar to me regarding the small amounts of money most people would be found using in Diablo… thus why I think it will be an issue :)

            3. Discover Bank v. Superior Court has been overruled by the Supreme Court last year in AT&T Mobility v. Concepcion

    1. So long as I can pay my taxes (real and virtual) in game gold or isk then I’m quite happy for them to do so.

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