Virtual Property

assignment developed by Denis V. Shamo

I - Traditional Property Rights in Virtual Context

Please consult your 1L Property notes / outline / casebook to review basic concepts of property: rights of possession, exclusion, and alienation, as well as causes of action traditionally available for property: conversion, trespass to chattels, and replevin.

Also, read pp. 9-10 of Virtual Worlds, Real World Issues for background on what virtual worlds are and what sorts of virtual property can be found within them.

Anyone who (1) knows what "phat lootz" are, or (2) holds a part of his / her investment portfolio in Linden Dollars (L$) may skip this introductory reading.

Do traditional property rights make sense in the virtual context?

In addition to collecting in-world virtual property, users may create intellectual property, either within the world, or outside it.

Now watch http://www.youtube.com/watch?v=vqO7zEWu0W0 and http://www.youtube.com/watch?v=1dTxcHulFBI.
Also read Virtual Property Law - Game Law Series Part III, paying attention to the illustrations

Does it make sense to say that a user can "own" the videos or the in-game sculptures?

II - Legal Framework - EULAs and Normative Law

"Gaming isn't child's play" - even old, large, respectable law firms are getting into the act. Read Pillsbury Law's virtuality-related press release and pay a visit to http://www.pillsburylaw.com/virtualworldsvideogames.

Does this mean that, like it or not, virtual property is being recognized as property? Or is there "nothing there" to recognize?

Read There Is No Spoon and contrast with This Land Is Not Your Land: Second Life, Copybot, and the Looming Question of Virtual Property Rights, 9 Tex. Rev. Ent. & Sports L. 141 (2007), reading Subsection II-E to the start of Section III.

What are the problems with even recognizing virtual property as property?

Consider the following issues:

Does it matter whether the virtual world is meant to have a "story"and be self-consistent (like an on-line game), or if it's designed to be a hodge-podge of user creativity (like Second Life)?
Consider virtual-world-derived adult content unaffiliated with the Developer
- Visit "World of Whorecraft" d/b/a "WhoreLore.com" (warning: adult content, Not Suitable For Work) or, alternatively, read about it here and here.

Should this derivative IP be protected? Or does Blizzard deserve protection for its "T (Teen)" rated game

How do you balance the Developer's need to administer the virtual world (for example: delete accounts or interrupt service to make updates) with the users' desire to have access to the virtual world at all times?
Should the Developer be liable for failure to maintain "property values"?
Consider how recognizing virtual property might create liability for illegal activities that could be attributed to Developers or the users.
- If gambling = wagering + chance, does recognizing real-world value in virtual items make every online game an illegal gambling site?
- Consider the bizarre case of "WoWSlut" - here and here. If virtual currency is property, is this prostitution?

Can these competing priorities be reconciled, legislatively, through recognition of ownership rights with safe harbors for Developers?

Does this balancing belong in the courts and legislatures? Or should Developers be able to dictate "take it or leave it" terms?

Read Leave the Orcs Alone: Property Rights in Virtual Worlds, paying particular attention to pp. 15-27.
- See Virtual Property -Real-World Problem for a response.
Now read Sections II-C and II-D of This Land Is Not Your Land: Second Life, Copybot, and the Looming Question of Virtual Property Rights, 9 Tex. Rev. Ent. & Sports L. 141 (2007).

Is there a middle ground?

Skim An Avatar's Day in Court: A Proposal for Obtaining Relief and Resolving Disputes in Virtual World Games, 2007 UCLA J. L. & Tech. 6.

Are EULAs as strong a tool as they appear?

Read http://www.secondlifeinsider.com/2007/06/02/bragg-vs-linden-lab-robreno-says-no-twice/ and skim the text of the Order. Did the Court get it right? If Developers cannot rely on EULAs to set up "custom" rules of property, what options does that leave open?

Finally, take a look at how courts have been handling some of the substantive virtual property issues:

Read http://news.bbc.co.uk/1/hi/technology/7094764.stm - were criminal charges appropriate? Was there "theft" when property can simply be restored?
Read http://blog.mindblizzard.com/2008/10/court-ruling-in-runescape-case.html. The court could have ducked this aspect of the case and simply sentenced the kids for assault, but apparently the question of the nature of virtual personal property actually came up, and the court had no issue with the concept. Should the court have gone in this direction?
- If you want to know exactly why the court went in this direction, feel free to read the translation of the decision from Dutch.
Consider http://newshopper.sulekha.com/newsitem/apnews/2008/10/woman-jailed-after-killing-virtual-husband.htm. Is there a property claim in a "murder"of an avatar?