Gamers Rights Law

Someone stole my gold! Can I sue them? Number 1 question I see and hear about virtual property. Number 1 Answer, it depends!

Believe it or not, this seemingly simple question is too big for one post. In fact, it covers many, many professionally-written articles in sophisticated law journals. Today, I’m just going to break down the classification of “thievery” so that whatever question you may have in your mind, you can at least narrow the issues.

One distinction of a theft while not being an ingame theft is the “stealing of code”. That is the actual plagiarism, or use without permission, of a piece of code within the game to serve as a part of the engine of another game (without the programmer/publisher’s permission). This is not an actual in-game theft as it is a robbery of the delivery mechanism, the framework of the portrait of the actual game. Although this is actionable in it’s own right, its not a part of this discussion, and definitely can be counted as a non-game theft.

Two articles can hopefully help you make a decision. They are in my opinon, the best written on this subject.

The first article, Competing Lockean Claims to Virtual Property (cite as Harvard Journal of Law and Technology, Vol. 20, 2007) is a very indepth examination of Lockean property theory as applied to the virtual world. Yes, it sounds complicated… but you want your gold back, right? From the excellent summary…”The inquiry above suggests that, if we respect the EULAs of the virtual worlds, users do not have strong claims to virtual property that they may assert against operators. If users wish to marshal Lockean labor-based arguments so as to defeat the EULAs or to protect virtual property rights in worlds that do not prohibit user claims, users will have to confront the competing claims of operators. Operators have strong labor-based claims to the resources of the virtual worlds, and these claims undermine most attempts to justify user rights. Users may have stronger claims than operators to a limited set of products, specifically those produced entirely with unownedraw material — usually code to which operators have no property right. This is the exception, however. Concerning the vast majority of products in virtual worlds, operators have a stronger Lockean claim to virtual property rights than users do.”

Long story short; it’s a lot more the developer’s gold than the player’s gold. But that’s just one way of looking at the problem.

The article entitled “The Magic Circle” (cite as Vanderbilt Journal of Entertainment and Technology Law, 2009 OR Washington & Lee Legal Studies Paper No. 2008-45) details some of the differences between ingame theft and real-world. Fairfield’s article states “Under the old conception of the magic circle, this current state of the law makes no sense: either virtual property is “virtual,” and interests in it are utterly unprotected by law, or it is “real,” and fully protected against all comers. Under the new conception, players in virtual worlds are real, the actions are real, and even the digital objects of their actions are real. Thus, the critical question is not whether the action is real or not, but whether a given act is outside the scope of consent of the players.” His argument centers around the idea that the extent of the consent given by the player determines whether the theft is “permissible”, aka actionable outside the game in a court of law.

To wrap up: we don’t know yet. It is on a case-by-case basis currently, and unfortunately gamer’s rights haven’t been too clearly defined as they are suing (if they choose to sue) against multinational corporations with lawyers on staff. But the very few class-action suits that have been filed show that some gamers are beginning to believe the developers have a duty to defend their property. Only time and the decisions of the courts on these important issues will tell.

I know these papers seem a bit stuffy and maybe a bit of lawyerese. But these aren’t easy decisions for a court, and the choice made by a judge in a game populated by 12-year-olds raising horses for racing might be a lot different than for a massive online game about using your treachery and scheming to conquer the world. Send me your comments about what you think of gold theft… is it legit and people should just stop whining, or is it a plague upon online gaming and the administrators should “get tough” with the rules?

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

Tags: gamers rights, Users, virtual worlds