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

[the_logos at www.achaea.com]

On Sun, 11 Mar 2001, Joe Andrieu wrote:

> Matt Mihaley:

>> 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.

Well, excellent, as that's easy enough to do.


>> 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'd argue that the difference is that you need to have somewhere to
live, and moving from your gated community is a serious
hassle. Leaving a virtual world doesn't require anything but simply
not logging in. Still, I see your point and recognize that courts may
not see it my way.


> 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.

And if the implied laws specifically allow for theft, muggings, etc? 
(if the game world has anything resembling a thief class for instance,
I'd say it's implied that thieving is allowed.)


>> 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.

Absolutely they are subject to the laws of the real-world. The club
itself isn't obligated to act like the police though. If there is a
murder in the club, the police come to handle it (or mess it
up). Similarly, I think it's unlikely that a court order mandating
that a game act like the police in case of a crime will stand up for
very long. Doing so would be depriving the wronged parties of their
right to use the police and court systems in case of a crime.


> 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.

I think that is a little far-fetched. The sole example I can think of
where an organization is required (or even allowed) to have its own
police and court systems is the military, which is a special case. If
courts treat stealing virtual objects as real crimes, then I don't see
any way they can avoid having to investigate and prosecute the crimes
themselves. I don't see this happening. It'd be essentially impossible
for them. I imagine a cop logging into Achaea to investigate a
crime. He'd get nowhere at all. Further, given that there can be a
_total_ lack of hard evidence in a mud, I don't see how proof of guilt
could be established.


> 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.

Right. When I do my next world, I know I will seriously look into
hosting it somewhere offshore where they aren't likely to bother me
with how I choose to run my world. I like experimenting with business
models and the US is a little too self-righteous and nosy for my
tastes.

--matt

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