Why not qualify the taking away of virtual objects as theft?

As a coincidence, on the same day I gave an in-company course on Law & Virtual worlds, a Dutch 17 year old boy[1] was arrested for ‘stealing’ items from the Habbo Hotel.[2] Both the producers of Habbo and the kids that lost their virtual items turned to the police. The producers reported hacking, the kids reported theft.

Whether virtual items can be stolen is an often recurring issue, which core is the status of virtual objects. In the 1980s and 1990s, the Dutch Supreme Court decided that computer data cannot be stolen. The element of “taking away” was considered problematic: one can obtain computer data after copying them, but the original owner still has possession of the same data.

This ‘multiple character’ (identical computer data being at different locations) is no longer prominent in case of most virtual objects.

You can take them away, like physical objects, and the original owner will no longer have control. To my surprise, many Dutch scholars and practitioners are sceptical with regard to the concept of stealing virtual goods. One could argue that the article on theft in the Criminal Code is not necessary, for a possible case of theft is always preceded by unlawful hacking. Also, people log on to someone else’s account, so from an in game perspective, there is just an avatar handing over goods to some other avatar.

In game it is just a transfer of virtual property as any other transfer. The crux is of course that one of the avatars is controlled by someone who is not the owner of the avatar, and does so without permission. So from an IRL perspective, the possession of the virtual objects does move from one person to the other. This can be compared to the stealing from someone’s bank account when using his bank card and/or secret code. There is a broad range of Dutch case law considering this as theft.

So what is the difference? One difference is that in case of the Habbo Hotel it is – according to the Habbo terms - not possible to get money out of the game. You need to violate the TOS to realize this (RMT). Is it relevant for the qualification as theft whether the stolen fortune stays officially in game? Well, not to me. I see no reason for distinguishing between virtual and physical theft. The original owners of the stolen Habbo furniture obtained the items after they bought credits with real money, and do attach value to those items. As long as the original owner looses something of value (such as virtual items) due to the act of another individual who gains possession over the item, it should in my opinion be qualified as theft, no matter whether the locus delicti is in the physical or the virtual world.

 

[1] See the item in a News show on November 13, 2007,http://www.youtube.com/watch?v=D7l8VBLe14U

[2] BBC News, http://news.bbc.co.uk/2/hi/technology/7094764.stm. See also e.g.http://virtuallyblind.com/2007/11/14/habbo-theft/, http://www.technovelgy.com/ct/Science-Fiction-News.asp?NewsNum=1310