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Apr 18, 2011

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1.

5 Appendix I: A history of disputes, cases and statue

Here is a quick run down of the relevant major disputes, cases and statue involving video games and virtual items.

1982 Atari v. North American Philips Consumer Elecs., 672 F.2d 607. (infringement)
1982 Williams Electronics v. Artic International, 685 F.2d 870 (3d Cir. 1982) (play as co-authorship)
1983 Apple v. Franklin, 714 F.2d 1240 (3d Cir. 1983) (copyright in code)
1996 National Basketball Association v. Motorola, 105 F.3d 841 (2d Cir. 1996) (play as authorship)
2002 Blacksnow Interactive
2002 Ashcroft v. Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389 (2002) (virtual child porn)
2003 Hongchen vs Beijing Arctic Ice Technology Co Ltd – theft of virtual goods
2003 Kremen vs. Cohen (property in domain names)
2003 Intel v. Hamidi (trespass on chattels)
2003 Taiwan – clarifies Criminal Code making it illegal to steal virtual items (possibly illegal before the clarification also)
2005 Sony Station Exchange Launched
2005 Marvel vs NC Soft
2006 Kopp v Vivendi (game guide)
2006 Bragg v Linden
2006 Korean Game Industry Protection act
2007 Korea bans gains from ‘abnormal play’
2007 Eros LLC v. Volkov Catteneo
2007 WoW v. Peons for Hire
2007 Hernandez v. Internet Gaming Entertainment ltd (anti-gold farming class action)
2007 Korea applies 10% VAT to virtual currency sales – but only to a limit (akin to prize fighting?)
2007 Linden bans ‘gambling’
2008 Habbo & RuneScape item thefts in Holland (theft under 312 Dutch Criminal Code)
2008 Linden ‘bans’ banking
2008 Blizzard vs WoW Glider
2008 Blizzard v. In Game Dollar LLC
2009 Bank ‘theft’ in EvE online
2009 China ‘bans’ the use of virtual currency outside game
2009 Korean supreme court clarifies Game Industry Protection act – in case of players selling virtual currency
2010 Stern v. Sony (disability / accommodation)
2010 Blizzard vs WoW Glider (9th C decision)
2011 Zinga poker chips case (
2011 Meguerian et al v. Apple Inc. allowing children to purchase in-game items

2.

An interesting and compelling read. Thanks Ryan.

It seems very suitable, as it would be capable of adapting to each individual game, such as EVE Online where scamming is allowed/encouraged (EVE definition for the difference between scamming/exploits can be found here). The existence of such a body would probably protect players who defraud others, as they would protect boxers from being charged with assault.

3.

One additional thing I think that needs to be made clear is that statute should somehow approve of the rules that the sport has. After all, the kind of framework you describe could be set up around cockfighting, but even if all the processes and procedures are followed scrupulously statute in most countries is going to pay no attention to that at all.

With virtual worlds, we're OK in the "no real humans were harmed in the making of this level 50 warrior" category, but if government thinks this is some kind of tax avoidance scam then no amount of regulatory fairness on our part is going to make a difference.

As for the general principle, I'm wholeheartedly in favour of it. One of the reasons that game developers may be in favour of it is that it takes the heat of developers in dealing with complaints. As an analogy, where I teach at Essex University there is a zero tolerance policy towards late assignment submissions. In the past, if a student submitted 27 seconds too late (as one did in my last assignment) I'd have had to have made the decision as to whether or not to accept it myself, which is very awkward should I decide against it. Now, it's out of my hands and a committee handles it, which is not only more agreeable for me but fairer for the students as the decisions are consistent across all courses. I can see how developers might find it attractive to pass certain common kinds of dispute to an impartial body; it's less work for them, and if things don't go the player's way it's the overseeing body that's "to blame", not the developer.

Richard

PS: I fine my students one mark for every misspelling of the word "lose"...

4.

Richard > One additional thing I think that needs to be made clear is that statute should somehow approve of the rules that the sport has. After all, the kind of framework you describe could be set up around cockfighting, but even if all the processes and procedures are followed scrupulously statute in most countries is going to pay no attention to that at all.

All this comes out of my research into the history of sport and law. In common law jurisdictions there tends to be no explicit definition of what is legal in sport and what is not. Indeed one of my points is there is often a direct contradiction.

In the case of boxing (in English law which I know the best), I don’t think there was or is a statute that says boxing is ok, nor is there one say that a tackle in Rugby is ok. Rather there has been an accommodation over time where certain statutes are not applied in certain circumstances – one of the driving forces behind this was the codification of boxing through practitioner defined and regulated norms (to get really nerdy the Broughton Rules of 1743 still form the core of today’s boxing rules).

One of the things that rules and governance do is act as a signal that there has been consent and that something will happen if an act falls outside of what has been consented to. The limit of the rules is bounded by the limit of what one can consent to.

So, indeed the system that I’ve outlined could apply to Cock Fighting, in fact the world of C18 boxing that Broughton’s rules applied to would no doubt be illegal today (it was not boxing as we understand it now, it was more akin to bare knuckle full contact cage fighting), what occurred over time is that the bounds of self-governed practice and the interface with law changed as sensibilities changed.

Why I’m resting so heavily on sports law is that this subtle change overtime is understood within the legal regime.

Thus I don’t think statue does need to recognise the governance structure that I’ve outlined, but I do think that nation states and other regulatory bodies do have to respect it. This will occur if it is seen the kind of harms that regulators may be concerned about fall under the normative power of the governance.

So, to take the several cases of people that have been forced to give virtual items to others. We have two documented cases of this in the Netherlands, in one someone was convicted of theft. That aspect will always remain a criminal matter. But, what about the items that were stolen, we neither want them to be given a ‘hard’ value that would require a online provider to set up as a bank, nor (I suggest) do we want to leave the victim in the circumstance where the contract with the service provider gives them no right of access to their item and no other recourse than to sue for the stuff back – which was the subject of the 2002 Hongchen vs Beijing Arctic Ice Technology Co Ltd case.

This takes work – the online industry would have to talk to policy makers about what they were putting in place, how it would work etc.

ren

5.

Marcus, EvE vs SL banking issues is one of the things I had in mind. But, who's Ryan?

6.

I have no idea. My brain somehow turned Ren Reynolds into Ryan. My apologies!

7.

I think the connection to sport is a good approach to avoid the worst issues with virtual property being treated as real life property. A couple thoughts though:

Soft wipes , or even hard wipes might be necessary especially in those virtual worlds with active vitural economies and assets that be transfered between players (the part of the games I most enjoy btw). I hate the idea but still, to fit the sport model, the game would need an end. A date 5 years in the future where all virtual goods would dissapear might be a big help...I think that a soft wipe might be enough...the notion that the player could start again with his character that might have a head start in reaquiring status or assets in the next match might look akin to a team facing the next game with the same players.

The value of a players character is probably something mmo's would have resources to address, and which would look less like property to courts...at least easier to cast as just game position.

Second:

Someone being cooerced and having economic damage done to them doesn't need to be a property issue. If the netherlands case were seen more as someone harming someones enjoyment of a sporting event someone could seek redress for something more like "enjoyment" not property. Could things look more like a ticket to a game than a share of the game itself?

I'm not exactly sure on how to say that but I do think there is an approach that takes the sporting aspect into effect...its not as if the court is going to find that a criminal has done more damage to a person prevented from seeing what ended up as an all time classic game, rather than missing a poor peformance, after the fact. the ticket price, not the value of the game play itself....hmm

8.

Another idea short of a soft or hard wipe to make items look more like points scored in a soccer match rather than rare stamps in a stamp collection.

Not that you guys need my brainstorming, but generally the more ephemeral the in game items are, the less I'd think they'd look like real life property to outsiders.

I remember a mud where all items disintegrated after a certain number of game days... some dozens, some hundreds (Avalon) .

There's a subtle, but significant difference between "this sword sells for 15$ on ebay, and the right to use this sword for 18 months sells for 15$ on ebay.

In the second, you're selling temporary in game privalege....its going to be worthless at some-point...a court is going to start looking at the relative utility of the time value of a +5 sword and be more likely to say "whatever , its just a game" . Players will still want to work for the weapon, and its dissapearence won't feel like either a confiscation nor a nerf ... it just wore out in a predicable way.

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