Digital Property Law [was RE: [MUD-Dev] Selling training]

[the_logos at www.achaea.com]

On Thu, 8 Mar 2001, Joe Andrieu wrote:


> Matt Mihaley:

>> Yes, absolutely. The massive distinction seems unwarranted to
>> me. There are differences obviously, but I don't view them as
>> fundamental.

> This is spot on in the long view--VR will be just another playground
> to experience. There's no disagreement there.

> But there is fundamental difference in that we have not yet
> established defendable legal jurisdiction (and hence rights, torts,
> crimes, and process) of cyberspace. In fact, I suggest this is
> actually a common thread to many of the criticisms of current MPOGs.
> (If a good "legal system" could be put in place, many problems,
> IMNSHO would pretty much go away.)

This is an issue I've spent a lot of time thinking about as it's
obviously very relevant to Achaea.


> To be more specific, if, in real-life someone attacks you and takes
> your stuff, that's a violent crime, stiffly punished.  If it happens
> in a game, it's "just part of the game." No big deal.

Right.


> What if I paid for that stuff with real money?  Probably not a big
> deal if I got it from another player on the black-market--there's
> very little grounds for liability if the transaction is
> "unauthorized".  Just as I can't go to the cops when the loss in the
> mugging was contraband.

> But what if that "stuff" is sanctioned by the game, possibly bought
> at a shop owned by the game company, and for all extents and
> purposes treated as if it were property? (Clear title,
> transferability, the right to exclusive use, etc.)

This is Achaea, except that we're very careful not to let items you
bought with real money get stolen. It cannot, in fact, be done
permanently, as all bought items reset into the buyer's inventory
about once an hour. This is both to prevent thefts, and to ensure that
each person who wants an artifact (that's what we call bought items)
has to buy one himself. No handing it off to your buddy for the night
shift while you go to sleep. So in that sense, we do not treat them as
real property, as they are only temporarily transferable.


> Further, what if the "mugging" took place in a manner that was not
> intended by the designers, e.g., the thief took advantage of a bug
> in the software to trap the victim and commit the crime.

Tough one, yep.


> This is clearly theft.  But it really is no different from the PKer
> on EQ who cracks the system and takes my stuff that I paid another
> player for, that player having "developed" the objects by playing
> the game until he got them.  And one could argue it doesn't matter
> if the player or the hacker "cracked" the security.  Theft of
> copyright, trademark, or intellectual property does not require the
> information to be well-guarded (only trade secrets require that).

Perhaps an EULA that specifies that you specifically consent to
anything happening in the game world. What about something you have to
agree to each and every time you buy something from the developer? An
agreement stating that you understand that this is a rough-and-tumble
world and that you may lose what you bought due to in-game mechanics
and that buy buying the item, you explicitly agree to these terms? Not
being a lawyer, I have no idea whether such an agreement would stand
up in court.


> This difference gets hairy when the MPOG service starts to treat
> digital objects like property. Sooner or later the courts are going
> to decide that it *is* property. At which point the service soon
> becomes liable, just as Disneyland could easily find itself liable
> in a lawsuit if some installation or ride systematically enabled
> theft or other crimes.

But surely MPOG services already do treat digital objects like
property? You can 'own' a sword, give it away, sell it, etc. Virtual
items, even if Everquest doesn't want to acknowledge it, have a
value. There's nothing they can do about it. No one could want them at
all if they didn't have a value.

I hope (but am not confident) that the courts will see that unlike the
physical world, in a virtual world, you are there entirely by choice,
and that as such you implicitly consent to operating by the rules of
that world, whatever they may be. Of course, arguments can be made
that just as physical suicide is difficult because of the attachment
to life, leaving a virtual world is difficult because of your virtual
life there, and thus people are not free to leave whenever they want
(lest anyone should accuse me later of being a hypocrite, let me just
say that I certainly do not share this view).

I guess what I hope the courts do, and what I suspect they will do
eventually, is to recognize that a virtual world, particularly a
virtual gameworld, is a place in which law enforcement is essentially
impossible. Consider that if a crime is actually committed in your
virtual world, by one person 'stealing' (I prefer to think of it as
liberating. Property is theft.) something from another, it's highly
unlikely to be up to the game administrators to right the wrong. What
the courts might do, like with Napster, is start declaring that the
medium has a responsibility to prevent the crimes of the user, or at
least make it as difficult as possible.

I'm going to be optimistic and predict that eventually, when the dust
has settled, courts will not regulate the gameplay mechanics of
virtual worlds. I think (and hope) they will come to the conclusion
that mandating game design isn't going to work for anyone.


> The best long term solution is to figure out the right way to treat
> digital objects as property--with clear delineation as to the
> nature, scope, rights, and responsibilities of the property owner,
> as well as a civil and/or criminal procedure for backing up those
> rights and responsibilities--and to implement such a legal system
> within the game robustly enough so that a real-world court would
> find the service sufficient in its duty to protect the property of
> those using its service.

I really hope that the courts aren't going to mandate game
design. They don't require clubs to have civil and criminal courts to
prosecute people who commit crimes inside them. They seem to be
satisfied as long as you're not encouraging it.

--matt

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