… but that’s ok.
And, I said, and said again that this would NOT be decided by an IP lawyer or case but something else, probably divorce of or something where a judge would look at what was happening and what people valued and not obsess about IP law.
My general thesis is that looking at virtual items as IP wrapped in contract is just wrong. Much of the argument about this has been framed by IP and contract law which I’ve always objected to as it’s simply an application of the principle that if you have a hammer everything looks like a nail, and IP / Contract law is a very good legal hammer. As I’ll get into below just because two things share some properties e.g. being physical and portable or intangible and non- rivalrous, does not mean they have the same legal or specially property related attributes.
Those following all of my recent posts will start to see a pattern here – last post on play was about primacy of meaning, this post is about what the meaning of virtual items in games is, see where I’m going here…
So, this shift from IP / Contract interpretation actually started to happen almost immediately with: Li Hongchen v. Beijing Arctic Ice Technology Development Co. Ltd., where a company was ordered to return virtual items that were taken from a player’s account through hacking.
TN had some commentary at the time:
However I’m not sure if people read the judgment or just the western news reports as there was commentary that the case was more about Duty of Care than property. Arctic Ice was found to have a Duty of Care but the judgment also orders them to do a ‘return of property’ (google translation) or ‘return of belongings’ (bablefish). There is a summary of the case and the full judgment over on the Virtual Property Network: http://www.virtualpolicy.net/arcticice (tVPN is looking for native speakers of a few Asian languages to aid with research – contact me if you are interested (there’s no $ on offer at the moment, sorry)).
Following the Arctic Ice case there have been a bunch dealing with variously aspects of virtual items, in particular a 2008 case that found that a particular act of taking virtual items taken in RuneScape constituted theft under Article 312 of the Dutch Criminal Code.
We now have a UK case where someone taking virtual items and being found guilty of theft: http://www.develop-online.net/news/36921/Zynga-hacker-faces-jail-after-12m-theft thanks Jas http://www.gamerlaw.co.uk/ for the link. Here someone ‘hacked’ into Zynga (I wonder if in fact it was individual user accounts the news item is not clear) and transferred ‘virtual poker chips’ he then sold them to players on the ‘black market’. The old school way of dealing with this is to say: nothing happened here the IP is not owned by the players, the contract say these things can’t be bought and sold so you are all in trouble, and if there is anything bad it’s hacking. But no, judge said it was theft.
So, it looks like virtual items are something that more jurisdictions are seeing as capable of being stolen. This is an interesting move as it changes one characterise of virtual items. It might be seen as a perilous one as if items can be stolen does this mean that other attributes must be applied to them i.e. if they are stolen do the have the kind of value that requires a particular Duty of Care, specially does virtual currency become so currency like that virtual world providers have to take MindArc’s lead and become a bank?
This is a possibility but not a necessity.
What policy makers will need to be reminded of is that the word ‘property’ applies not to things but to a set of socially agreed characterises that we attribute to things (both physical and intangible) what’s more and what’s critical is that we don’t apply exactly the same attributes to all things that we might term property (or at least property like).
To illustrate this here is a table of some properties and how the variously apply to things (this is mainly under UK law by the way, so we have odd things about Organ Donation which has to be a gratuitous gift – hence the odd attributes of being Alienable in the sense of transfer of certain rights, but not for money).
This is a very quickly drawn and, I’m sure, far from 100% accurate table of ‘things’ and the kinds of legal attributes that have in a property-stylee
What I think is interesting to note in this table is the range of attributes that are applied to things that have the same or similar attributes looked at from an abstract perspective e.g. human organs and chairs are both objects that are portable, but we treat them very differently. Of course we do, you might say. But there is no ‘of course’ about it, the table above has been negotiated over many years and is still shifting.
There is not room to go into it in detail here but laws in respect of the human body and parts thereof are fascinating and labyrinthine. In this area whether there is property in something, who’s property that is and what rights are granted depends on a huge range of factors such as: what the thing is - body, re-generative part (blood), non-regenerative (heart), reproductive (sperm); who the actors are and how they stand in relation to each other - individual, institution, parent, other genetic relative; and, what they want to do - give, use, buy, experiment, commercially exploit products of research etc.
Added to this there are odd cases e.g. Mark Quinn’s work ‘self’ which is a sculpture of the artists’ head made from his own blood, which while being a Human Tissue was still sold as an art-work. Then there is the famous HeLa cell line case.
It’s not just squishy stuff that is weird – see: rights in actor’s digital motion capture and the Robert Patrick, Terminator 2 / Jurassic Park case.
The point that I’m ramming home here is that the way one should look at legal attributes of a thing is not to look at some material or other factors then on the basis of them look at the closest other thing and go ‘right, it’s another one of them’ – as we have with much virtual stuff. Rather one needs to look at the social role a thing plays and what the rights, duties, and potential harms to people are – then work out the set of attributes that balance these.
Another thing to not is the relationship between the legal attributes of a thing and the regulation of those attributes. Law of course is a regulatory force but it’s worth noting that there is a wide variety of statutory and non-statutory regulatory bodies that are involved in creating and enforcing laws and other rules.
Back to the squishy stuff – regulation of what can be done to the body or parts thereof falls to, among other things, the criminal law, sporting bodies, special bodies such as The Human Fertilisation and Embryology Authority.
So, is this what things look like now in MMORPGs in most jurisdictions?
I will spare you, good reader, a line-by-line, jurisdiction-by-jurisdiction analysis of this table (there some of this already over on tVPN, see tVPN White Paper on Virtual Items and Public Policy and tVPN Global Policy Updates). A little explanation might help though. I’m suggesting that Avatars, for example, are an are not Rivalrous because at a certain level they can simply be re-produced but at another level one cannot have items in a given name space e.g. multiple simultaneous instances of the same character name on an MMO server. I have also said that things like Virtual Currency have mixed regulation because virtual currencies are regulated in virtue of them being Intellectual Property and being on a server somewhere, however that’s not really regulation at the level of ‘currency’ whereas in places such as China Virtual Currency is regulated qua currency.
There will be a growing weight of cases that will increase the person-property like nature of virtual items. The EULA will matter less and less. The liabilities of providers will start to be questioned as the gap between the Duty of Care forced upon them by courts increases and the gap with the EULA gets greater. Government will seek to regulate both virtual currency and virtual items with greater force - requiring publishers to become more and more bank like. I do lots of blog posts titled ‘I told you so part n’.
There is an alterative.
Non-state regulation of virtual items!
The details of this, the why and how is what Dr de Zwart and I will be presenting at The Game Behind the Game. But before we stand up and do that, I wonder if anyone is on the same page or is there something I’m missing?