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

[Steve {Bloo} Daniels]

Pardon this real lawyer for jumping in this late to the thread.

Joe Andrieu wrote:

[snip]

> This is clearly theft.

No.  It is potentially infringement of copyright.  Theft is the
felonious taking and removing of personal property, with an intent to
deprive the rightful owner of the same" (Using a conventional
deprive the rightful owner of the same" (Using a conventional
definition from dictionary.com here -- don't want to burden you with
Black's Law).  Anyone who accesses the website at all makes a copy of
the html.  That could be considered theft, except it's permissible and
doesn't deprive you of the thing.  But even if everything is copied,
it doesn't deprive you of the stuff.

Copyright is a limited right.  Copyright explicitly allows others to
use a fair amount of your stuff.  What's fair and what isn't is a
whole nuther issue.  There are criminal copyright laws in the US and
other places, but it is not theft.

[snip]

> Theft of copyright, trademark, or intellectual property does not
> require the information to be well-guarded (only trade secrets
> require that).

Ack.  'Theft of copyright' is inappropriate terminology.

[snip]

> This difference gets hairy when the MPOG service starts to treat
> digital objects like property.

Not without significant disclaimers, you're not.

[snip]

> 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.

> That's a tall order. But I'm betting someone will figure it out
> sooner or later...

I'll cover that bet and give you odds.

Digital '1property' doesn't lend itself to the same treatment of
physical property.  One copy is an infinite number of copies.  What if
I mug you, take Item X, dupe it, and give it back to you or the local
'authorities'?  No harm, no foul?  IMO, continuing to think of digital
things in similar ways to physical property is an exercise in ultimate
futility.  Real world property is complicated enough if you don't
believe me, sit in on a couple of Property class sessions at your
nearest law school.

What you could do is have a checklist which details what digital
things in game a character is allowed to possess and use, an
authorization system, essentially.  There are a myriad of ways to
enforce and check that kind of system.  You can track for unauthorized
use or possession and react accordingly.  Generate a bounty or reward,
smith the fiend with the hammer of Thor or just 'fix' the situation
with omnipotence.  Of course, that would all still be covered the TOS
and relevant waivers of liability and disclaimers, which ar contracts,
and courts are good at dealing with contracts.

> 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.

What?!  No offense, but this is ludicrous.  Won't happen.  Never.
That's so out of the bounds of sanity that I can't take you seriously.

And your reference to the application of jurisdiction concerning
events outside the physical jurisdiction is not to the point.  There
are many forms of legal jurisdiction, not all of them limited the site
of the event. However, *enforcement* of that is often limited where
there is no physical jurisdication.

Matt (the_logos) wrote:

> 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.

That isn't what they will do. They have a much easier path. The
virtual worlds are governed by contracts.  Courts are very good at
dealing with contracts. But these virtual worlds are also 'mediums'
and crimes can be committed through mediums, so don't hold your breath
waiting for a 'we can't go there' opinion from courts.  If someone
commits a significant wire fraud and SEC violation through EQ, you can
bet your sweet tukas that the courts would rip that nut wide open,
though that shouldn't really impact gameplay.

-bloo

.


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