[MUD-Dev] BIZ: Who owns my sword?

[Amanda Walker]

On Monday, October 6, 2003, at 06:11 PM, Ren Reynolds wrote:

> I think we agree that many (if not all) of these issues are ones
> of contract law. Where I think we disagree is on the arguments
> about why property does or does not come into it.

Could possibly be.  I am, generally speaking, opposing arguments
that players have property interests in virtual items or avatars
that could be upheld in a court of law.  I contend that virtual
items and avatars, insofar as they have existence and value at all,
do so in a way that is much more contingent on another entity's
property rights than in the references you have cited, and that this
degree of contingency makes it impossible (in current examples) to
separate out anything more than an authorization granted by
contract.

I am explicitly not making arguments on the basis of intellectual
property law.  I am, rather, arguing that a game subscription is
more like a concert ticket or subscription than it is like owning or
leasing a piece of physical equipment or property.  Similarly, I
contend that ebaying game characters is analogous to scalping
tickets, not to buying and selling property.

> I don't understand the relevance to the law and test cases I'm
> referencing here. Dependence in the sense that a company owns
> intellectual property rights in something and in the cases that I
> have referenced actually own the objects its pretty much a
> requirement for this area of law to get off the ground.

I'm not talking about intellectual property rights, I am talking
about actual (tangible) property rights.

> In the case of a game a games company owns the copyright to a
> piece of software and then tries to use this to tell individual
> what they can and can't do, can and can't sell.

Not so (or more accurately, this isn't the issue at hand).  I
actually have no problem with people doing whatever they want with
the game software on their computer.  hacking, reverse engineering,
emulating, parodying, whatever.  But that's not what people are
selling in ebay.  People are selling assets or authorizations that
reside on someone else's (namely, the game company's) computer, and
simply are not theirs to sell.

If my next door neighbor gives me a key so that I can water his
plants, it's still trespassing if I give that key to someone else
and they do something on my neighbor's property without his
permission.  Authorization is not transitive, in other words.

>>> The fact that the existence of my flat is utterly dependent on
>>> the physical reality of other things such as the floors below,
>>> and is only really mine through some limited time to use does
>>> not prevent me from selling the lease.

>> On the other hand (at least in the US), your ability to sell your
>> lease or sublease your flat *does* depend on the terms of your
>> lease with the property owner

> Hold on, this is a different argument. You were arguing that there
> cannot be property right in virtual items in virtue of their
> dependence on a games company's servers. This argument is about
> contract, it's got nothing to do with that.

Correct: I was merely pointing out that even if the analogy to a
lease does hold, your conclusion still doesn't follow.  Holding a
lease on your flat does not necessarily give you the right to sell
that lease.

> Do you now agree that the physical dependence argument does not
> hold ?

No, I do not agree.  You can certainly sell your client software for
the game (this is an aspect of shrink wrap EULAs that I think is
quite unenforceable).  You can print out the stats on your character
or item and sell that description.  But you can't resell your
authorization to access and manipulate the game company's
information, stored on their property, even if that authorization
has value.  The virtual items or characters are not your property,
any more than a seat at a Rolling Stones concert is your property
because you've bought a ticket.

And unlike physical objects, they have no value or use that does not
require the active cooperation of the game company.  This is where
your film projector analogy falls down--the contingency of a virtual
item is not a matter of policy, it's a matter of who actually
controls the information representing the "item".

> So are you stating that a lease is not a property right under US
> law ?

According to my understanding of US law, it is not--it is a usage
right, governed by the terms of the lease, not by laws concerning
property.  There may be local, state, or federal regulations which
constrain the terms under which leases can be offered depending on
the type of use, but this constrains usage rights, not property
rights.  This is the difference between leasing something and
financing it, even if you pay the same amount for essentially the
same usage rights: in a lease, you have no property interest--all
you have is a right to use.  With a lien, you hold a property
interest, but someone else may be able to affect that property
interest if you default on your contract.

Going back to the "lease on a flat" example.  Let's say you lease a
flat in a part of town that becomes terribly fashionable during the
term of your lease, meaning that the flat becomes much more
valuable.  You have no claim on that increase in value, you can't
resell your lease at a higher price, and you must still surrender
your access to the property under whatever terms are specified in
your lease.

Now, I am not a lawyer, I'm a software engineer, so I may be greatly
misunderstanding your point here.

> So again, are you now agreeing with me on the physical dependence
> argument i.e. that a putative item of property can depend for its
> existence on something other than the natural world (with no human
> intervention) and still be property ?

Generally speaking, I don't think that "items" which have no
physical existence are "items" at all.  I don't think that most
intellectual property claims are valid, since I don't think that
intellectual property is property at all.  I think that intellectual
property is a legal fiction designed as an incentive to encourage
people to publish creative works, and that is in no way applicable
to the question at hand.

> As to your second point. Game companies do not create many of the
> avatars and items we are talking about. This is back to an old
> argument.  When I buy some game software, there is no avatar in
> the box, I create it through my actions, I give it a name a choose
> its type etc.

By that argument, there's no game world in the box either.  I do
agree on both counts :-).  I don't agree that the avatar you create
is your property, even if it is in some sense an artistic work of
which you are the author.

> Right, now were talking about value. And I don't get your point at
> all.  Back to the lease example, the value of my flat is, in your
> word 'contingent' upon lots of things such as the type of building
> it is in, the area, the view.

None of that is the sense of "contingent" that I meant.  Perhaps
"subsidiary" would be a better term.  The value of your flat doesn't
accrue to you at all, except the value of the usage right granted by
your lease.  The property itself isn't yours to sell, nor is your
contract with the owner.

> What much of this boils down to is whether the contractual clause
> of non-transferability of items and avatars (for money) is
> enforceable in law and in practice.

Agreed.  Scalping of concert tickets does happen, regardless of
legality (much to the benefit of concierges at high-class hotels
everywhere).  That said, if a scalped ticket is not accepted at the
concert (the name on the ticket doesn't match a person's ID, for
example), that is the issuers prerogative.  Similarly, if something
happens to the concert (bad weather, sick performer, etc.), the
venue doesn't owe anyone more than the ticket price, regardless of
the value of that ticket on ebay the day before.

Remember where this conversation started: players suing game
companies over the "value" of lost items.  My position is that there
is no loss where there was no property to begin with.  This is quite
separate from the *market* value of such items, which can be
significant.

Perhaps we are in violent agreement :-), not counting for the moment
my general feeling that intellectual property is a social incentive,
not property. That's a rant for a different mailing list, I suspect
;-).

Amanda Walker
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