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

[Joe Andrieu]

> -----Original Message-----
> From: mud-dev-admin at kanga.nu
> [mailto:mud-dev-admin at kanga.nu]On Behalf Of
> the_logos at www.achaea.com
> Sent: Saturday, March 10, 2001 1:05 PM
> To: mud-dev at kanga.nu
> Subject: Re: Digital Property Law [was RE: [MUD-Dev]
> Selling training]

>> 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.

Right. So, in Achaea, theft of purchased items is only a temporary
inconvenience.  Something that would be hard to pursue through the
courts. Smart decision.

> 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.

It would only hold up to the extent that the judge thought the player
had reasonable expectations which match the MUD's. The courts often
enforce implied terms, and merchantability is one of them.  The
problem is when the courts enforce implied terms that the game service
did not intend to imply, but the player could reasonably have expected
to be implied.

>> 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.

Sort of.  This is at the heart of the UO volunteers' lawsuit's
valuation of the digital objects based on their real-world price on
eBay.  But by "outlawing" resale and pursuing such outlaws to the
fullest reasonable extent, they can solidly claim in court that the
digital objects are NOT property, they are simply a fiction of the
game.  Because they have limited transferability and do not have clear
title--If I quit playing the game, I don't get to keep my objects,
etc.--they are not property in the common law sense of the term.

> 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 think this has almost no chance of being an acceptable argument. I
have a choice to live in Pasadena or East LA or a gated community in
Beverly Hills.  Just as someone has a choice to spend money and "live"
virtually in UO.  Just because someone has a choice to be there does
not void them of their rights.  Could you imagine if my choice to be
in Disneyland meant that I no longer have certain rights because
Disneyland decided not to provide the support and infrastructure to
protect those rights?  Egad!

> 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.

Right. The courts may force the game to enforce the rights of the
players.

There is some precedent here that I think may be likely to point the
way.  In the earlier days of modern courts, they were often called to
adjucate disputes which took place in close-knit merchant communities
where there were strict codes of conduct. The merchants often went to
the courts to enforce the code, so the full weight of the state could
be applied to the violator.  In these cases, the judge did not apply
the rules of the outside world, but would seek out the code of the
community and then apply it.  It has been said that judges don't make
common law, they *find* the common law and apply it.  Which means,
that a smart judge would look to the virtual service, determine the
implied laws of that community and apply them to the case.

> 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.

But people in clubs *are* subject to the laws of the real-world. You
can't just join a club and be exempt from the law.  However, if you
can establish that the "rules of the game" are sufficient definition
of the "laws", then you might be ok.  That's the case now, where the
game declares upfront that "it's just a game".  But I doubt that will
hold up once digital objects are treated like property and the average
Joe won't be able to tell the difference.

In such situations, the courts could easily affirm implied rights
which the service was negligent in protecting.  Once a player has
"every reasonable expectation" that rights common in the real world
would be protected in the virtual world, then the weight of real-world
law *could* come into play.

So, while I think mandating design might go a bit far, it could
happen.  Long term, perhaps the courts will mandate a certain
robustness in the delineation and treatment of rights, if such rights
are implied by certain conditions (like purchasable property).  The
courts may very well hold that any item purchased is property and
therefore, the service provider has an obligation to provide
reasonable protection of that right, possibly including the provision
of criminal and/or civil process within or outside the game in order
to pursue violations.  In other words, the game may be forced to
provide police and a court system if the real-world court has
determined that the services' digital objects are property.  It's not
that far fetched when you consider that US courts are already
aggressively applying US law to events that happen outside the US.

More to the immediate point, the courts are likely to make mistakes
before they figure this out. So, it would suck to have *your* MUD be
put out of business by a low-level judge who couldn't see the
difference between a virtual mugging and a real one.  Ultimately, case
law isn't determined until there's a case that completes at trial.

-j

--
Joe Andrieu
Realtime Drama

joe at andrieu.net
+1 (626) 395-1011

_______________________________________________
MUD-Dev mailing list
MUD-Dev at kanga.nu
https://www.kanga.nu/lists/listinfo/mud-dev