Dutch Court recognizes Runescape items as legal "goods"

The Dutch Supreme Court issued its ruling in the Runescape theft case today.  You can find the ruling here, and here's a Google-translated version.  The ruling cites to the work of Professor Arno Lodder (who guest-blogged here), who has been keeping close tabs on the case, as well as to my book and to my work with Dan on virtual law & virtual crime.

One thing to bear in mind is that this case involved real violence and the theft of virtual goods.  The victim was beaten and threatened with a (real) knife, with the defendants demanding he hand over a mask and an amulet within Runescape.  As the court notes, the violence occurred outside of the context of the game.  So at the very least, this was a case of criminal assault.  The only issue was whether the crime amounted to theft, which hinged on whether or not the virtual items could be classified, under Dutch law, as goods.

The lawyer for the defendants argued that Runescape's virtual items are not goods because they are not tangible and have no commercial value.  The Dutch Supreme Court disagreed.  Citing to the size of virtual economies as well as to specific sales on eBay of Runescape items, it rejected the argument that the goods had no economic value.  It also observed that the victim had invested time and effort to obtain the value of the items, that the game gave him exclusive rights to the items, and that the defendants had, by violence, acquired that value and those exclusive rights from the victim. 

In my opinion, the reasoning of the Dutch Supreme Court is roughly analogous to the reasoning in the U.S. decision of Kremen v. Cohen, which found that domain names were subject to civil conversion in California despite their intangible nature.  Though I have mixed feelings about the Cohen case, I believe the recognition of the items as goods is the right result in this case.  As the Court explains, the victims here were clearly motivated by the prospect of acquiring the virtual items of the victim and they used violence to obtain that value. 

Additionally, as the Dutch Supreme Court explicitly notes, the violence here was not in the context of the game.  As I explain in Chapter 6 of my book, there can be cases where legal prohibitions against in-game theft of virtual property may be in tension with the rules of a game.  (In essence, this is the question of the "magic circle" which we have discussed here for some time.) In this case, however, the theft occurred completely outside the rules of Runescape.  Given this, I think the Dutch Supreme Court's recognition of the economic and status value of virtual items is entirely appropriate.

I may have more to say once I get a better translation of the ruling -- Google Translate is great to get the gist of the matter, but I have a feeling I'm missing plenty of nuance.

Update: I should clarify that the cites mentioned above are actually contained in the AG's opinion accompanying the Supreme Court decision.  The Dutch Supreme Court apparently does not do cites in its opinions.  The AG's office is attached to the Supreme Court and offers advice to the court.

Comments

[Peter]

1.

IANAL, but I am dutch and my best translation of the content indication (the bit at the start) would be:
Virtual amulet and mask in the online game Runescape can be described as 'goods' in the sense of article '310 Sr' and are subject to theft. Suspect and co-suspect forced the victim through violence and threat of violence to log on to his account in the online game Runescape and discard the virtual objects (to drop) inside the virtual play environment. The suspect could subsequently transfer the virtual amulet and mask to his own Runescape-account, causing the victim to lose having these items at his disposal. Those virtual objects, over which the victim had factual and exclusive control, held to him, the suspect and the co-suspect a real value. Against the background of the intent of the lawgiver to protect the rightsholder's ability to have 'goods' at his disposal, and the earlier jurisprudence that such may apply to non-material objects, the High Court has judged that the virtual nature of the objects in itself does not block classifying these as goods in the sense of article '310 Sr'. The sole circumstance that an object may also have attributes of 'data' in the sense of article '80quinquies Sr' does not preclude it being classified as goods in the sense of article '310 Sr'. In border cases where non-material items show attributes of both a 'good' and of 'data', the legal interpretation will be dependant on the circumstances of the case and the valuation thereof by a judge. The complaint that taking items from others is one of the goals of the game Runescape, is blocked by the fact that the rules of the game do not provide for the way of taking used by the suspect and co-suspect.

In plainer english: The virtual items are goods and can be stolen. They used out-of-game violence, forcing the victim to drop the items in-game, after which the suspect picked them up in-game. This caused the victim to lose the items, and the suspect to gain the items. These items held actual value to all of them.
Then comes the real legalese... Basically our government wants us to be able to own stuff, even non-material stuff, so why not 'virtual' stuff. Even though there has been some legel precendents about phone minutes not being true property and both those and these items can be considered 'data', that doesn't make them any less 'stuff' you can own. When in doubt, ask a judge. Stealing in-game which the rules may allow does not mean you can steal them out-of-game, which the rules do not allow.

The remainder of the text is pretty dense legalese, but there are some interesting bits. The judge notes that searching the internet about this subject did not yield much in the way of precedents. He also notes that US and UK actually mostly look to cases in the netherlands for precedents, since we seem to be a little ahead of the curve here.

[greglas]

2.

Peter - thanks for the translation! I appreciate it. You Dutch folks certainly are ahead of the curve on this.

[Richard Bartle]

3.

Did the judge comment on WHO owns the goods? Based on the decision, I assume the judge was persuaded that the person threatened with the knife owned them, but the defence could have argued that the goods belonged to Jagex.

I don't own Windows 7 on my PC, I license it from Microsoft. If someone were to steal my PC then would the taking of Windows 7 along with it be treated the same way as theft from me rather than theft from Microsoft? If so, then (by analogy) the judge would be saying that the virtual goods taken were stolen (or the licence to use them was stolen) from the guy whose character originally had them but they're still actually owned by Jagex; if not, the judge would be saying that Jagex didn't own those goods, the guy threatened with the knife did.

This is important because in the first case Jagex can do whatever they like to the virtual goods in their game, including deleting them. In the second case, though, Jagex could find that they are later accused of stealing virtual goods having, say, closed down the account of a griefer and removed them from the database.

Some virtual worlds include theft as an in-game action: in this case, ownership of the game's virtual goods by the developer is pretty well essential. A EULA can say that you own the goods but the developer is allowed to have their way with them, but it can't say that other players have similar access because that would be imposing a contractual obligation on you to a third party who hasn't consented to the arrangement (who may have, say, religious reasons not to want anything to do with your virtual items).

As a more concrete example, suppose we're playing chess on a giant chessboard in the park using a set of pieces provided by the local council. A guy comes over from the adjacent giant chessboard and threatens me with a knife to hand over my queen. His giant chess board is missing a queen and he wants mine. I hand it over. He takes it and starts a game of chess on his giant chessboard. Is that theft? It was "my" queen in a gameplay sense, but outside of that context it's the council's queen. The guy hasn't stolen the queen from me (because I didn't own it) nor from the council (because it's on one of their other chessboards). He just threatened me in order to move it. This is pretty well what the Dutch knifeman did to the goods in Runsescape.

This would be a lot easier to analyse if Jagex provided a EULA for Runescape, of course. If they do, 10 minutes of googling it didn't dig it up...

Richard

[greglas]

4.

Hey Richard,

Here's the opinion with a better translation:

3.5. Before assessing these complaints it should be noted that the Court of Appeal has established the following: - it cost the victim time and effort to obtain the virtual amulet and mask. These objects were of genuine value to him and he, the defendant and the co-accused all wanted fervently to possess them; - the victim had exclusive de facto control over the virtual amulet and mask because these could only be accessed by logging into his RuneScape account. Through the actions of the defendant, the objects passed out of the control of the victim and into the control of the defendant. This violated the victim's uninterrupted enjoyment of exclusive control over these virtual objects; - the rules of RuneScape do not cover obtaining objects in the manner that occurred in this case: the objects were taken from the victim outside the context of the game itself.

3.6.1. The assertion that the objects are not goods because they consist of 'bits and bytes' is untenable. The virtual nature of these objects does not in itself preclude their being considered goods within the meaning of article 310 of the Criminal Code. The appeal court's ruling on this matter is thoroughly reasoned and is in no way incorrect in its interpretation of the law. The Supreme Court bases this conclusion in part on the fact that the appeal court established that 'for the victim, the defendant and his co-accused, the possessions they collect in the game hold genuine value, which can be taken away from them' and that 'this concerns items of value accumulated over the course of the game, which were obtained – or can be obtained – through time and effort' and that the victim had 'exclusive de facto control' over the objects within the game environment and lost control of those objects through the actions of the defendant and the co-accused.

Re your chess analogy, if you rented a bike within a park that you could use for one week within the park, and someone stole that bike from you the first day of your rental, that would be understood as theft, even if the bike remained in the park and you were not the owner of the bike.

Your chess analogy differs because there is no payment for the use of the pieces. Perhaps your chess analogy is more like Runescape, given that players don't necessarily pay for items. Though, IIRC, they do have micropayments and, of course, there is the eBay market. But the criminal statute in the Netherlands doesn't require purchase of a license to the goods, it just requires de facto control of goods that are valuable. So I'm not really sure if your chess analogy wouldn't fit within the definition of the Dutch law -- it very well might.

I think this is probably the TOS:
http://www.jagex.com/g=runescape/terms/terms.ws

It does state "You agree that all intellectual property or other rights in any game character, account and items are and will remain our property. Jagex owns all rights in the Jagex Products, and you are only granted permission to use such products, subject to and in accordance with these Terms and Conditions."

But as you say, contract does not alter the rights of those who are not parties to the contract. In this case, if Jagex were to say that "theft by knifepoint outside the game context is permitted by the game rules," there would have been a different analysis but I'm confident that such a contract would be voided for public policy reasons. It is interesting, though, that the court stresses that this sort of theft was *not* permitted by the game.

Also, fwiw, the opinion I referenced in the OP is not technically part of the Court's decision. Apparently the Dutch Supreme Court does not do cites in its decision. The AG's office, which is associated with the court, apparently writes opinions accompanying the decisions. (I learn something new every day!)

http://www.rechtspraak.nl/English/Judicial-System/Pages/Supreme.aspx

[Shander]

5.

How is sentimental value of an item dealt with in common law Should a malicious party purposefully destroy an heirloom baby cup which he knows has special value to the victim is does the sentimental value factor in ? I guess that is a line somewhere between pain and suffering, loss of consortium (Hubba hubba), and deprival of property? Are things like pain and suffering defined in any way as a "virtual property" ?

I imagine we're mixing issues of what is "criminal" and what is grounds for a "tort" action , which may impute higher standards of certainty on the first than the second. (could that mean that virtual property must be property beyond a reasonable doubt in a criminal situation but only needs to pass the "preponderance of the evidence" test of whether it is property or not in a civil case?

[Shander]

6.

oops, I left out another question.

How do court's typically deal with items with black market values, which are not illegal in themselves, but which have restrictions that preclude actually recieving money legally for the item ?

I can't come up with a perfect example but a similar concept might be certain Golf Club memberships... where the membership cannot be sold by the owner yet to purchase a surrendered membeship from the club might cost 100,000 dollars or something. Certainly there must be case law valuing that sort of intangible property in divorces ?

It isn't in dispute that the membership has real value even though it cannot be transferred ?

[greglas]

7.

Hi Shander,

Good questions, though it's difficult to talk about them in the abstract. I can sort of answer them using US law, which may not always fit with Dutch law. Even as far as US law goes, I'd be interested in researching these questions a bit further.

That said, in US law, *generally* it is more difficult to have courts take into account "sentimental value." Courts usually would be classify a loss of "sentimental value" as "non-economic" damages or "non-pecuniary" damages if they were claimed in tort. The chief reason they are hard to get is that it is hard to quantify those sorts of damages and it is also hard to ascertain whether they truly exist. That said, they aren't prohibited. As you say, pain and suffering can provide the basis for damages payments in some cases and "loss of consortium" is a pretty standard form of non-economic damages. And also, it is commons for forms of equitable relief (e.g. injunctions) often take into account non-economic harms and concerns.

Regarding criminal law, most criminal statutes prohibit the theft of "black market" property under the same terms that they prohibit the theft of other forms of property. By "black market" I mean, e.g., illegal drugs or stolen property -- forms of property not lawfully possessed by the owner under state law. But I think the analogy doesn't really work with respect to most forms of virtual property, in that the virtual items are only "black market" goods insofar as sale might be prohibited by contract.

[Ren Reynolds]

8.

To add to what Greg said. The court specifically looked at these two issues (as they were two of the four raised by the defence) and said:
1/ It's not about ownership per se, it's about control. So just so long as you have legitimately control of something and that is taken away from you, then it can count as theft - see currency and passports, both owned by the state.
2/ If the goods had been stolen within the context of the game, that would have been fine - but the acts happened completely outside the context of the game, so it was not.
The decision was quite well thought out I think.
Ren

[rs gold]

9.

Against the background of the intent of the lawgiver to protect the rightsholder's ability to have 'goods' at his disposal, and the earlier jurisprudence that such may apply to non-material objects, the High Court has judged that the virtual nature of the objects in itself does not block classifying these as goods in the sense of article '310 Sr'. The sole circumstance that an object may also have attributes of 'data' in the sense of article '80quinquies Sr' does not preclude it being classified as goods in the sense of article '310 Sr'. In border cases where non-material items show attributes of both a 'good' and of 'data', the legal interpretation will be dependant on the circumstances of the case and the valuation thereof by a judge