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Virtual Justice

December 1, 2011 Article Start Previous Page 2 of 3 Next

Ever since I read the first news story about Qiu Chengwei, I have been wondering: were the Chinese police right to turn him away? Or should they have accepted his claim that virtual items can constitute legal property?

In the United States, the law would seem to be on his side, since we already recognize many forms of intangible property. Mickey Mouse is a form of legal property. Game software is a form of legal property. Electricity can be legal property. Some courts have found that internet domain names are property as well. The money in your bank account is property, even though it is nothing more than bits of data stored on a computer. So why should a valuable virtual sword be invisible to the law?

However, even if virtual property is theoretically capable of legal recognition, that doesn't mean that recognizing it is good policy. If you own your virtual Dragon Saber, for instance, that seems to imply that you should be compensated for its loss if the game company decides to shut down its servers.

Worse yet, you might even make a legal claim about a nerfing patch. What game company would want to create an MMORPG if the legal environment constrained their freedom to devalue the virtual property of players?

An additional argument is that game owners, not players, should be understood as the true owners of virtual property. The game company pays for the physical servers on which the virtual property resides. It creates and sustains the software.

It owns the copyright and other intellectual property rights embodied in the game code. It creates the rules of the game and embodies them in the software. And most game companies even put their position in writing: they explain to players, in their terms of service document, that the players have no property interests in the virtual items they acquire.

Finally, there is common sense: do we really want judges and lawyers sorting out disputes over Dragon Sabers? Not everyone loves our legal system. Many people would prefer to keep games as lawyer-free as possible. Aren't games just games?

These are good arguments. There are good policy reasons for not recognizing virtual property rights. Yet the law on the books in the United States doesn't make that outcome certain. Many legal statutes today define property as "anything of value."

So if a person has the practical ability to sell something for a thousand dollars, and someone else fraudulently deprives them of that thing and sells it for a thousand dollars, the law should, in theory, come to the victim's rescue. Should the law really draw a line between the wrongful theft of a rare baseball card and the wrongful theft of a Dragon Saber? Do we really want virtual criminals to be outside the law?

To be clear: I'm not advocating that those who play MMORPGs should have a full right to own in-game items. As other commentators (such as my friend Unggi Yoon) have pointed out, a full-fledged property right in virtual items is not really necessary or feasible.

But I think we should at least consider recognizing some lesser form of virtual property right -- something like the legal rights of "easements" and "bailments." These are lesser property rights that protect one person's interest in using and possessing, respectively, another person's property. My concern here isn't about our current virtual landscape, but about the future.

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