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Aug 15, 2004

Comments

1.

Where do you draw the line between "legal" and "illegal" cyber crime? I can follow the argument that if UO allows stealing of items in game, that makes theft of virtual items legal.

But what about scams? One could assume that a completely in-game scam would be as legal as in-game theft. But what about buying virtual currency via PayPal, and then charging the money back? Scamming somebody of virtual property, but via ICQ, AIM, and e-mail? "Phishing" somebodies game password with e-mail and a fake website? At what point does the use of out-of-game means create a cyber crime?

2.

As we point out in the paper, the big question with regard to player complaints of out-of-game fraud is the question of damage. You can say, in essence, "You stole my simoleans -- I was ripped off!" -- but if all you lost was your simoleans or isk, exactly what would you propose a small claims court should do about the situation? The conclusion of the paper is that it is unlikely (in most situations) that a court will hand you back the value of your virtual assets in dollars converted at eBay exchange rates. This is due to 1) EULAs, and 2) game rules. From the standpoint of policy, this shifts the responsibility back to the designers/owners to deal with and police the conflicts created by virtual property.

On the other hand, if you pay real dollars for some performance relevant to virtual property and the other side defrauds you or breaches the contract, you may have a claim and perhaps a crime -- but it will probably be tough (and impractical) in most cases for players to get justice from the legal system. Even if you can determine the identity of the scammer and get jurisdiction, the stakes are just too small for legal process to be worthwhile.

Still, we're seeing interesting things happening in Asia with regard to virtual property crime. It's possible similar developments will occur here in the West.

3.

Tobold>At what point does the use of out-of-game means create a cyber crime?

When it's out-of game?

Character A wants to exchange a Sword of This for a Sword of That. Character B wants to exchange a Sword of That for a Sword of This. They meet up, character A gives Character B the Sword of This, then character B runs away laughing. Character A has been scammed.

If this is allowed within the context of the game (bearing in mind that not all virtual worlds would allow it), then it's fine. If it were gold pieces rather than a Sword of This, it would still be fine. If it were dollars rather than gold pieces, that would bring it into the real world.

Real-world communication would probably be OK to set up and support an in-world scam, except in those virtual worlds that explicitly prohibit this kind of thing (as some do). So long as the context remains that of the game, talk is just talk.

It's not as if scamming is unique to virtual worlds anyway. The board game Diplomacy, for example, is built around the concept of forging and breaking alliances; people make promises all the time that they have no intention of keeping. It would only break the magic circle if it involved real-life pressure ("attack Trieste or I'll tell your wife about your affrair") rather than in-game pressure ("attack Trieste or I won't support your army in Bulgaria next time").

Hacks, phishing and anything else that the virtual world engine can know nothing about are outside the context of the virtual world. You could say they were still part of some game, but you'd probably have to write the rules of that game down somewhere if you didn't want to lay yourself open to charges of fraud.

Richard

4.

Hi Greg,

Very interesting paper, and the footnotes are great.

This is a bit off the topic of the paper, but I have always wondered to what extent do you think VW operators can legalize what might otherwise be illegal outside the VW. You site Hackbart v. Cincinnati Bengals, Inc., and PGA Tour, Inc. v. Martin, as two examples where RL law and Game rules conflict and how courts are forced to walk a very fine line.

Your paper seemed to suggest, at least to me, that there may be a competitive advantage to integrating a 'game' into a VW as a way to facilitate one more layer to the core value of a VWs magic circle. I'm making a few leaps here, but if a infer that the only way to circumvent RL law is to do so in the 'name of the game', then that leads me to think that RL laws may not be circumventable without such a game. And as such, members of solely community based VWs, would be responsible for following RL laws, much like they are when they visit other privately run public places.

At the same time, like in the example of PGA Tour, Inc. v. Martin, I'm also wondering if some things within VWs with games may someday be deemed illegal. For example, while thievery may be used to gain a game advantage, there may be some question as to whether it could be used simple to steal 'rare' items with little or no tactical advantage simply for the purpose of fencing.

Any thoughts?

And again, very interesting paper.

-bruce

5.

Bruce,

Thanks!

I doubt anyone would want to mold a non-game VW into a game just inorder to secure the potential advantages of legal leeway accorded to game rules. To some degree, all virtual worlds are "game like" even if they aren't games. (The Mr. Bungle collective clearly approached LambdaMOO as a game.) In any event, contract rules (EULAs) are surely the stronger line of defense for designers.

I think that exploring the legal status of games is a good way to approach the legal status of VWs and to explore the policy issues VWs raise, but as the PGA case demonstrates, the law will not always respect private orderings. Interestingly, I think the other major type of social ordering where you see the law flexing to respect complex rule-governed private structures is in the case of religion...

I don't know exactly how or why law-makers might be interested in intervening in VWs in order to establish ground-rules and regulate behaviors. I think it's unlikely it will happen any time soon. But maybe Jack Balkin and Peter Jenkins are right in thinking that eBaying will push increased legal conflict and regulation.

It's interesting to me that the most intense eBay markets and highest prices for virtual property seem to occur in the most competitive game-like worlds. You can point to various reasons for this, but that's why Dan and I focused on games in this. I feel kind of bad that Second Life and There are basically relegated to footnote 86 -- in a way, the legal issues they raise are more interesting.

6.

Great read - I am looking forward to really sitting down and reading this. I can think of two odd situations where I have been involved with the investigation of a cybercrime in a virtual world.

The first was regarding the sale of a castle on UO. Apparently the buyer paid thousands of dollars via PayPal. Immediately after the castle was transferred, he contacted PayPal and said they never got the item. Because of PayPal's awful loophole regarding intangible items, they pulled the money from the seller's account and returned it to the buyer. The buyer kept the money and pulled off a real world scam for a VW item.

The second is one we are dealing with now in Lineage 2. I probably shouldn't go into specifics right now (most of you will be able to figure it out) but basically it involves a large coordinated group of players to monopolize the hunting in certain areas of the game world. They often use some shady tactics (and some at times which are downright illegal) to do this, and the end result is simply to take the results of their hunts and turn it into a real world profit.

Were it simply a coordinated assault to prevent other clans from entering a dungeon, that would be ok. But these guys make no bones about what their intent is - they are there to cross into the real world and make real money off of this, which makes it a little different.

As Greg said, it is quite interesting to see how much more intense this activity is on an item-driven PvP game. Lineage 2 is pure competition and this is rampant in the L2 community... City of Heroes falls on the opposite side of the spectrum, and there are no problems with it.

This is good stuff to me. I am doubly lucky because I am fascinated by it and get to work around it all day long. I hope some of you all are able to make it to Austin for the Austin Game Conference. I would love to swap ideas and stories about all of this. :)

7.

Will -- I know who you are and what you do! :-) And I'm really happy to have your feedback here.

I'm actually going to miss Ted's keynote because I'll be teaching during the Austin Conference -- but I do hope you can make it to the State of Play conference in New York in late October. I'd really like to talk with you and get your thoughts on all of this.

8.

Richard:

Character A wants to exchange a Sword of This for a Sword of That. Character B wants to exchange a Sword of That for a Sword of This. They meet up, character A gives Character B the Sword of This, then character B runs away laughing. Character A has been scammed.

If this is allowed within the context of the game (bearing in mind that not all virtual worlds would allow it), then it's fine. If it were gold pieces rather than a Sword of This, it would still be fine. If it were dollars rather than gold pieces, that would bring it into the real world.

As far as the law is concerned, what brings it into the real world is the fact that there are two real people transacting--independently of subject matter of the transaction.

You contemplate three transactions:

  1. That for This
  2. That for gold pieces
  3. That for dollars

Consider each transaction as a contract. Generally, contract law is not concerned with the "adequacy of consideration" (i.e. the relative value of the "things" exchanged), so all three transactions are equally contracts. The real difference in the three will be the amount of Character A's damages.

Transaction 3 is easy: Character A recovers the amount of dollars she paid to Character B.

Transactions 1 and 2 are not so easy. Character A will almost definitely not recover the price on E-bay (or similar site) of a single (or couple) Sword This or That. More likely, Character A will be entitled to receive the lesser value (based on subscription price) of (1) time required to acquire a Sword of This, and (2) time required to acquire a Sword of That.

Now for the real juice: in Texas, Character A will be entitled to recover a reasonable attorney fees as the prevailing party in a breach of contract suit. This, of course, is a perfect example of Rule #1: lawyers are teh win! Which inevitably leads to cries to nerf lawyers.

Jeff Cole

9.

Jeff,

Suppose you, I, and Richard are playing a three-person game of world domination (like Risk_ and I say to you that if you attack Richard in Asia, I'll pull out of Europe. You attack Richard, but I then fail to pull out.

Assuming that my promise within the game was a binding legal contract, do you really think that you're now entitled to get damages from me? In my hypo, what would the damages be? Would you be entitled to be recompensed at your hourly rate for the time it will take you, while continuing to play a game, to force my armies out of Europe? Relatedly, how can you "lose" the time you spent acquiring a virtual item simply by virtue of losing a virtual item?

It seems you're saying it is legitimate for parties to sue each other in civil court for deprivations of virtual property because it took time to acquire the virtual property. Just curious how you'd sell that to a judge. Fwiw, "I have a right to my time spent playing" was essentially what Black Snow was saying in the suit against Mythic.

10.

Greg,

I am saying that it is legitimate Character A to sue Character B for breach of contract because (1) they agreed to an exchange, (2) A performed, (3) B did not perform, and (4) A suffered damages (at the very least, some portion of the monthly fee). Period. The law isn't going to look at whether the items were virtual swords or not.

Then it becomes a question of damages.

In Richard's third hypo (That for dollars), damages are easy: it is the amount of dollars that A paid.

In either of the first two hypos, A might well ask for the e-Bay value of This or the gold pieces. But she won't get it.

If I am B's lawyer, I am gonna argue: no way, A has a duty to mitigate. I know it would reasonably take X hours for A to acquire That (or, alternatively This or the gold pieces). Character A pays $10/month and usually plays Y hours a month. Therefore, A is damaged only $10 * X/Y. Character A, do you have change for a $5?

Assuming that my promise within the game was a binding legal contract, do you really think that you're now entitled to get damages from me?
Assuming the promise is a legal binding contract, I win on summary judgment if I can prove any foreseeable damage (an element of BoK in Texas). Of course, in your hypo it is very unlikely I can prove any damages ...

My position does not imply that Character A has any right to her time playing, or that it implies any unfettered ownership of This or the gold pieces. My position merely recognizes that by giving to B the This or gold pieces, A suffered a legal detriment that constitutes consideration.

Jeff

ps. For the record, I have yet to see any good argument why the developer/player relationship vis-a-vis virtual items (at least as currently implemented in any major, commercial MMO*) is anything other than a bailment with developer as bailor and the player a bailee, and in which the developer gives the player possession (but not title) of the items for the purpose of playing the game. Such a position is entirely consistent with my position above.

11.

Greglas: The conclusion of the paper is that it is unlikely (in most situations) that a court will hand you back the value of your virtual assets in dollars converted at eBay exchange rates.

Doesn't your interpretation create a paradox? Two players agree on a deal, a virtual sword against $10 via Paypal. They agree, and maybe are supported by EBay prices, that the virtual sword is worth $10, so the exchange is perfectly symmetrical and fair.

Now you are saying that if the seller of the virtual sword would take the $10 and not deliver the sword, he would have commited an out-of-game fraud. But if the buyer took the virtual sword but did not pay the $10 it would be only an in-game fraud, and out-of-game legal?

I know that this is the way PayPal sees it, but it still seems strange to me to give such a strong legal advantage to one side in a symmetrical deal.

12.

Jeff> "For the record, I have yet to see any good argument why the developer/player relationship vis-a-vis virtual items (at least as currently implemented in any major, commercial MMO*) is anything other than a bailment with developer as bailor and the player a bailee, and in which the developer gives the player possession (but not title) of the items for the purpose of playing the game. Such a position is entirely consistent with my position above."

Very interesting! I think this is also consistent with how I view the economics within these same Virtual Worlds.

This also brings up some interesting questions. Mainly, how do these relations usually work, in a legal sense. And, while my examples may be a bit messy, my curiosity begs that more questions be asked.

This morning, I was trying to think what I could relate these relationships to so that I could explore a few more questions here. One thought was to view these agreements as similar to a membership to a country club. Maybe a membership that included say 3 rounds of golf monthly at a cost of $100/mo.

One question I came up with is what happens if the country club uses the wrong fertilizer one month and needs to close the course for 30-days? Can I request a $100 refund for the lost game time?

What happens if the fertilizer is spread by a 3rd party not hired by the country club, say some neighborhood kids, but the result is the same, do I still have the right to a refund since the course is not accessible? Does the country club then have cause to go after the kids, not just for the cost to repair the lawn, but also for lost club dues? Or would members seek damages for lost dues directly from the kids themselves?

Again, not sure if these questions even apply to a bailor/bailee relationship, but again, I'm very curious about any possible applicability here.

-bruce

13.

Bruce,

A bailment basically works like this:

Abel has a Thing. Abel, the bailor, give to Baker, the bailee, the Thing for a specific Purpose and with the understanding that when the Purpose is fulfilled, Baker will return to Abel the Thing.
Abel gives Baker only possession, not title. The classic examples are a coat check (you give your coat to the restaurant for the purpose of holding it while you eat), valet parking garage (you give your car to the valet for the purpose of parking it while you shop, eat, whatever), or any repair service (you give the dealer possession of your car for the purpose of repairing it).

I am not sure how your questions apply to a bailment situation. Very generally, one person can recover from another only if the second person owes the first an obligation imposed by either an agreement between the parties (contract), or law (tort--e.g. negligence law). So when considering who is liable to whom, you first need to look for an obligation ...

So, in a This for That transacation (which I assume is completely within any rule, EULA, etc.), does it even matter if This and That are property, or who owns them? I don't think so. There is no question that the two players' license agreements with the developer afford each player the 'right' to log in, access, use, and dispose of their respective This and That. By agreeing to the exchange, they are exchanging those rights, independently of the property/ownership status of This and That. I don't know (and would be very surprised to find) a US jurisdiction in which relinquishing such license rights would not constitute consideration. If one player can prove an agreement to exchange, her performance of the agreement, the other player's non-performance, and can prove a reasonable measure of damages, then that player can recover for breach of contract.

Greg's hypo doesn't advance the argument. Two issues. First, it's basically:

Assume a game in which a large part of gameplay is deception, doublecrossing, and intrigue. Despite that component of gameplay, assume an agreement (if I attack Richard, he'll retreat) legally sufficient to establish a contract ...
Well, the tension lies more in the assumptions than in any analysis.

Second, damages. Of course I am not entitled to my bill rate ... But what is an approriate measure of damages, if there even is one?

He expressly asks: "Assuming that my promise within the game was a binding legal contract, do you really think that you're now entitled to get damages from me?" The answer to that is, if he breached the agreement, yes. Period. Unfortunately, he sets it up with based on a situation in which a binding legal contract is unreasonable, and then follows it up with a measure of damages that is also unreasonable.

To bring it back home, my position is not that Character A has a right to recover because "[she has] a right to [her] time spent playing." My position is she has a right to recover because Character B breached the agreement to exchange, and the value of her time spent playing (measured as a portion of the subscription fee) is an appropriate measure of the value she lost. My position is very different than that of Blacksnow.

Jeff Cole

14.

Jeff> My position is... the value of her time spent playing (measured as a portion of the subscription fee) is an appropriate measure of the value she lost.

You really think that? How did she lose the time spent playing--where did it go?

Isn't the value of play the playing itself?

15.

Greg,

Of course I really think that. Character A didn't lose the time--she lost a license right (to access, use, and dispose of This). Indeed, her ability to play for the sake of play has been injured: to replace This, she has to re-consume content she has already consumed (and paid to consume); or, to acquire That, she has to consume content that she bargained not to consume (and, making such a bargain is exactly part of playing for the sake of play).

As for "the value of play [being] the playing itself," in my mind our positions are not at odds: my position is that one can put a reasonable value to that time (that is not the unreasonable e-bay market price). To the extent you position is

value of play = playing itself = $0, per se
well, then maybe our positions are at odds.

Jeff

16.

Jeff> Character A didn't lose the time--she lost a license right (to access, use, and dispose of This).

By what means did she acquire that license "right" and from whom did she acquire it?

Jeff> Indeed, her ability to play for the sake of play has been injured: to replace This, she has to re-consume content she has already consumed (and paid to consume)

I don't get "ability to play for the sake of play," but who is forcing her to re-consume content--can't she just decide not to re-consume the content and appreciate the value of her past content consumption? If she's going to re-consume content, won't she be re-acquiring additional value? Where's the damage?

I'm not saying that play is without value -- obviously people pay to play. The value of play is, for most people, the enjoyment of playing -- but you're essentially saying that the value of playing is the acquisition of a license right to use a "This" and that the value of the time spent playing and acquiring the "This" is somehow wasted when the "This" is lost. That sounds conspicuously like a "players own virtual property" argument recast with a thin veneer of time and value talk.

17.

Tobold> Doesn't your interpretation create a paradox?

Well, I wouldn't call it a paradox, I'd call it an interesting situation which is worthy of note. :-)

18.

Greg,

She acquired it from the developer, by paying her monthly subscription and playing within the rules of the game. By doing so, she acquired the right to log in, access, use, or dispose of This. Richard did not posit (and I have been careful not to cast) any aspect of the exchange of This for That that is in anyway inappropriate or untoward given current rules/EULAs/etc.

Keep in mind that I in no way imply this right is absolute or gives the player any claim whatever over developer. It is a right that is contingent upon the her continued performance under the game license.

She and B agreed, of their own free will, to exchange their respective rights to That and This (rights, which we assume were obtained within the rules of the game). It is from this agreement that her claim against B arises--not forom any inherent right to the value of her time invested. If B doesn't breach their agreement, then she doesn't have a claim. Period.

So, assuming her and B's agreement constitutes an enforceable contract, and that B breached, where are we? At damages. I think the approach that I put forth is reasonable--you seem to agree when you acknowledge there is some value because people pay to play. I am not really sure where you think we disagree.

Sure, by re-acquiring This she is re-acquiring value. And she may choose to do so. But that doesn't change the fact that if B had performed, she would have both This and That. She is still down value.

I am not claiming that any right stems from any measure of the value. The claim arises from a mutual meeting of the minds between she and B. I do not assert that she has any claim against the developer. How is this a "players own virutal property" argument?

My position is clearly that players do not "own" items. The whole point of the bailment relationship is that players have possession but not title. How do you get from measuring damages in a breach of contract case to ownership?

If you admit that there is indeed value, and you have a breach, then she recovers. So, I infer (and have suspected) that your argument is really with the adequacy of consideration and her license right to access, use, and dispose of This
cannot be consideration for the purposes of contract law.

If it reasonably would take her 20 hours to acquire This, she averages 10 hours a month playing Game, and she pays $10 a month to subscribe to Game, then why isn't $20 (2 months) a reasonable measure of her damages?

Jeff

19.

Jeff> If it reasonably would take her 20 hours to acquire This, she averages 10 hours a month playing Game, and she pays $10 a month to subscribe to Game, then why isn't $20 (2 months) a reasonable measure of her damages?

Because she hasn't lost those two months of play time by losing This. She paid to play the game for two months and she played it. What has she lost? She has lost only This.

The only way you turn the loss of "This" into a form of damage is by saying, as you do:

Jeff> By [paying the developer], she acquired the right to log in, access, use, or dispose of This.

By paying to subscribe, she pays to play. As long as she continues to pay, she can continue to play. But the EULAs I've read say she doesn't own rights to "use and dispose of This" or are completely silent on the issue of "This".

20.

Again, not sure if this relates, but who knows.

CoH> http://www.plaync.com/help/eula_coh.html

6. CONTENT AND MEMBER CONDUCT
(a) Content. You acknowledge that by using the Software and the Service you will have access to graphics, sound effects, music, animation-style video, content, layout, design, files, data, characters (and items and attributes associated with characters), game objects and text (collectively, "Game Content"). NC Interactive does not pre-screen Game Content as a matter of policy. NC Interactive has the right, but not the obligation, to remove Game Content at any time which it deems to be harmful, offensive, or otherwise in violation of this Agreement.

(b) Rights in Content. You acknowledge that NC Interactive and its related Game Content Providers have rights in their respective Game Content under copyright and other applicable laws, and that you accept full responsibility and liability for your use of any Game Content in violation of any such rights. NC Interactive and its related Game Content Providers grant to Members the right to use the Game Content for noncommercial, personal purposes, including in connection with creating noncommercial fan fiction or fan web sites regarding the same. However, you acknowledge and agree that you shall not reproduce, prepare derivative works based upon, distribute, publicly perform, or transmit any Game Content for commercial uses without first obtaining the express written consent of NC Interactive.

-bruce

21.

Hmmm. Ok.

Assume that Character A possesses This, Character B possesses That, and each acquired their respective item within the Rules (EULAs, game, etc.).

Do we agree that if A and B (1) have paid and continue to pay, their subscription fees, and (2) have played and continute to play, the game according the Rules, then each has a certain bundle of contractual rights vis-a-vis the developer?

Do we agree that whatever else those contractual rights ecompass, they include at least enough rights for A and B: (1) to transact to exchange This and That in accordance with the Rules; and (2) to use This and That to play the game in accordance with the Rules?

If so, let's assume that: (1) A and B agree to exchange This for That in accordance with their contractual right to do so; (2) there is sufficient evidence legally to establish offer and acceptance; (3) A gives This to B; and (4) B does not give That to A.

Having set that up, I think there are two questions relevant to this discussion (I have previously framed it only in the context of the single issue of damages):

  1. Was there a contract between A and B (i.e. does the the contractual right to use This or That (as evidenced by possession) constitute consideration)?
  2. If so, can A recover for B's breach (i.e. did A suffer any damages)?

My position is that the answer to both is, "Yes."

Both turn on whether or not the players' specific contractual rights vis-a-vis the developer have "value." The difference between the two questions is that, for question 1, the existence of value ends the inquiry: Bam! there is consideration; however, for question #2, it is only the beginning: now you must quantify the value. Non-lawyers keep in mind that, in most cases, their is no objectively obvious answer to the question, "What are the Plaintiff's damages?" Both sides argue to establish an amount, and the trier of fact awards an amount.

Greg's position is that: (1) A paid to play, (2) she got to play (she got what she expected to get), and (3) therefore, she suffered no injury, her damages are $0. And that analysis is perfectly correct ... with respect to A's contractual relationship with the developer. But, nobody has alleged any breach of A's contract with the developer.

That analysis is not correct for A's contract with B. A's expectation with respect to her contract with B is to acquire That so that she can use That in accordance with her contract with the developer.

B's liability to A for his breach arises from B's agreement to incur the obligation, not from the value of This or That to A. If B didn't want to be liable to A for the value of A's time spent playing the game (or any other value of That), then B should have either (1) performed, or (2) not agreed to the exchange in the first place.

Jeff

22.

I'm not agreeing with you on (1), because I'm not certain that we can be so sure that, within the context of a computer game, you can distinguish between legal contract and play which appears to be contract. Remember that, e.g., in Ultima Online, theft is legal.

But let's let that issue drop -- what I keep pushing on is (2). You seem to agree that A has no protected interest in This vis-a-vis the contract with the developer. But you then use the contract with the developer as a basis for claiming A has incurred damages via B's failure to perform. Again, I'm interested in how you claim A's lack of This as a result of B's actions can be translated into ascertainable damages at law.

When you attempt to put a value on This, isn't a judge likely to have this kind of reaction?

23.

This was not an actual crime, but is related to the topic. I remember a case in UO where the game was involved in an actual divorce settlement. Sometime before the separation, the man, afte a fight with his wife, had logged on and deleted her characters. She was upset ebough to make it part of the agreement, and she was awarded custody of his account and in-game property.

Another case involved a guild dispute where some of the in-game property was taken. One of the members was so upset that he filed a charge with the police, and ultimately we discovered that it was his roommate that was responsible. I don't know if any charges were pressed (hacking/cracking would have been the most appropriate in that case) but still the police had to get involved to settle the matter.

Because of what's required in MMO games, people are often willing to go to any extent for justice/revenge/etc when something happens to their online persona by another character. They often go to the company directly first, but those companies can't release private information of other players directly to victims (can't release real names, IP addresses, etc... all protected with privacy policy and privacy laws).

However, companies certainly can provide that info local and state police, FBI, and other investigating authorities. It's only logical to assume that more and more of this will happen in the future as the number of games and players increase.

24.

Thanks Will! I know these kind of issues are arising on a regular basis, but are very hard for a researcher to track (if you're not a lawyer for a game company) since they're almost always confined to small claims or law enforcement. In Asia, incidents seem to get more press, but the source documents are not in English and the law is not always analogous. (22,000 reported online gaming crimes a year in South Korea!?)

But the legal disputes are occurring, obviously -- that's why I was (just a little) surprised when Jeff Brown implied that the property issues in EA's games weren't a big deal. By contrast, Bing Walton (from UO, then with EA, now with Sony) had said just last year that legal issues were number 2 on the list of reasons *not to build* an MMORPG. (And #1 was cost, which is kind of obvious...)

http://archive.gamespy.com/gdc2003/top10mmog/index2.shtml

2: There are Lots of Legal Issues

Speaking from experience, Walton shared with the audience that Ultima Online was getting sued in small claims court 8-12 times a year! Players always bring up frivolous lawsuits, and hacking/cheating will always cause an uproar that may play out in a courtroom. Moreover, any massively multiplayer game that relies on volunteers to support other customers or run events is opening itself up for huge lawsuits. And on top of THAT is the thorny issue of "who owns the virtual stuff?" one that can boil over if not managed properly.

The only solution is to retain good lawyers, and lawyers are expensive. "Is there any upside here? NO," Walton grunts. It's simply a necessary (and frustrating) expense.

Without a financial upside, one can see why the companies would not be keen on publicizing the legal issues or looking for precedent. Searching for UO on LEXIS, e.g., only brings up Reab v. Elec. Arts, Inc., 2002 U.S. Dist LEXIS 26374 (D. Co. Sept. 24, 2002).

25.

Jeff> The whole point of the bailment relationship is that players have possession but not title.

This illustrates one of the major points where you're going beyond what I would assume to be clear cut. I'm not certain that players, pusuant to standard EULAs or even just EULA-less logic, acquire any rights to claim even "possession" of any items in most MMOs.

I'm not saying one can't argue why virtual property is a species of thing that can be possessed (and Dan and I have argued that courts may very well approach virutal property that way) -- but that's an argument that can be made in my opinion, not a clear-cut conclusion.

Thanks for your thoughts. It's really interesting to see an opinion that a failure to exchange in-game items following a promise to do so can lead to an award of monetary damages.

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