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Taking Games Online Highlights Holes in Current Property Regime

For video games, the horizon may hold more than the promise of superior graphics, improved audio bitrates, and expanded narrative. Following the rise of increasingly complex and inclusive second-life simulations, i.e., MMORPGs (“massively multiplayer online role playing games”), gamers and developers alike are now faced with a variety of legal troubles both novel and daunting. Who owns an in-game sword: the person who found it or the company that coded it? If that sword is sold by one player to another, is that transaction binding? This question is complicated further when one considers that users pay subscription fees to the company and pay real sums of money to other players on websites like eBay for some of the rarer objects. Other interesting issues include the potential taxability of in-game items, in-game theft and scamming, and possible punishment thereof, and more.

This article focuses on one of, and perhaps the most important of, these issues: ownership in a virtual world.

The New Frontier

The parameters of what constitutes an MMORPG  are ill-defined, and the category itself houses a nearly innumerable listing of sub-genres distinguished only by arcane and often community-constructed differences. It is safe, however, to assume that the core elements an MMORPG revolve around player choice; MMORPGs invariably allow creation of a personalized and unique identity or avatar, in-game item collection or creation, and social interaction on a grand scale. MMORPGs of this type are popular – Activision Blizzard’s MMO, World of Warcraft, boasts millions of subscribers – and they are myriad. They have working economies and currencies complete with, through the magic of “gold farming” (paying people to earn in-game money on one’s behalf), exchange rates into Yen, Dollars, and Euros.

As the above suggests, the cornerstone of any online gaming experience is identity, here a construct roughly defined by the juxtaposition of a player’s quasi-physical avatar (referred to thus because of its bridging function between the virtual and the real, the player model a graphical representation anchoring an online identity to the game space) with their online actions, reputation, and inventory. The current regime seems generally satisfied with persistent developer control of that identity; after all, this provides a simple solution to policing and enforcing terms of use in the form of the wholly justifiable at-will banning and account termination that follows from such an ownership structure. EULAs (end user license agreements) serve as the legal backbone to this, relying upon contract law to essentially codify the status quo in a game-by-game fashion.

Scholars, however, are beginning to question the continued durability of such an arrangement. The most immediately pressing crack in the developer-control dam is perhaps also the most tangible: ownership rights with respect to items acquired. While nearly all MMORPGs offer a selection of “things to do,” including occupations, “player vs. player” (or “PvP” as it is colloquially known) sport and combat, and attending holiday events, the clearest and most developed method of character progression, and therefore the most elemental piece of the identity jigsaw, is the acquisition of items, or “loot.”

The Importance of Loot

Why is loot so important? The answer to this becomes obvious once one realizes that a newly looted shield provides more than a cosmetic improvement. Indeed, it provides more than even a boost to a player character’s statistics; it directly contributes to the uniqueness of that player’s identity. It is a status symbol, a way to differentiate, a trophy, an accomplishment. Loot is critical to the experience, critical to what constitutes “living” in the virtual landscape. While unchecked materialism is often subjected to derision in the physical world, such materialism currently serves as the very foundation of the virtual.

Loot and the law

Legally, however, this loot is essentially unprotected. A developer or administrator (a super-identity charged with keeping order in the virtual world) can strip a player’s inventory at-will, loot can be “ninja’d” (stolen off of an enemy’s corpse by a group member without going through previously agreed upon loot sharing procedures), and guild banks (shared storage spaces for online groups) can be emptied by unscrupulous guild leaders. There are literally no repercussions outside of reputational loss to any of these actions. Generally, if something you have “owned” is taken from you, however unjustly, the legal system will not provide a remedy.

This is the way things are, but is this the way things should be? Consider that it can take hours to organize and lead a dungeon adventure, and such organization often includes the formation of what are, basically, oral contracts with respect to responsibilities, loot sharing, and more. Additionally, it often takes days of in-game time for each individual member of that group to prepare. Each must progress through multiple phases of “gearing up” (acquiring preliminary items and armor), “leveling up” (improving a character’s abilities through completion of various objectives), and meta-gaming (educating oneself on game mechanics and enemy strategies). Players indirectly pay for the items they acquire using real money, via both subscription fees and the up-front purchase price of the game. Some scholars believe that these very characteristics, comparable to easy-to-understand real-world concepts like “paying for something” or “earning something,” may justify fashioning legal protections akin to those found in real-life property and contract cases.

Beyond the fundamental fairness concerns raised above, there are also questions of practicality plaguing proponents of developer-control. While EULAs can – and currently do – regulate player-to-developer interactions, there is no institutional framework in place to handle looting rights with respect to player-to-player scenarios. Without a background set of legal principles governing loot control, the resolution of loot disputes either depends upon a developer’s arbitrary, unguided, and procedurally insecure case-by-case judgment (the typical “solution” provided by EULA attempts to regulate player-to-player disputes, arbitrary because said EULA logically cannot preemptively codify answers to every possible dispute) or, as is more often the case, does not occur at all. Individual contracting with every potential player in the virtual world is, for obvious reasons, impossible.

Yet, simply extending real-world property rights into the virtual domain may not be the best solution. For example, characteristics fundamentally unique to their virtual nature, such as the collective use of a single avatar by groups or the possession of multiple avatars by an individual, may preclude the direct application of real-life rights to these online identities. Moreover, legal approaches too restrictive or too reminiscent of the real-world may undermine the escapism that most gamers find so initially captivating, and may apply pressure on potential developers to create games in other genres (or not at all). Players have made various stabs at solving these problems themselves, e.g., through creative use of reputational loss and pseudo-currencies, often nicknamed “Dragon Kill Points” or DKP, divvied out by agreement and based upon participation and good behavior. Unfortunately, these systems are limited by their inability to deal with actors unwilling to submit to continued group scrutiny. Taken to their logical conclusion, these systems can thus encourage the proliferation of insulated groups, fostering elitism and undermining the spirit of the online gaming community.

What can be done?

Virtual worlds are facing old problems but require new solutions. Thankfully, it is precisely in the uniqueness of these worlds where such solutions may be found. Indeed, the intrinsic mutual exclusivity of these realms vis-à-vis the real world and other virtual worlds lends them an experimental quality. Can these virtual worlds be used to test out new legal rules and regimes? With significantly more limited ramifications than those sure to follow from adopting broad reforms or innovations in the real world, as well as millions of players ready to serve as test subjects, the answer may be yes.

For additional reading: New York Law School: State of Play Volume 49 (a collection of scholarly articles by legal experts discussing the developing state of the virtual landscape)

About the Author

Kyle de Neve

Kyle is a 2L at Columbia Law School.
  • SilentMech

    I think that this is an interesting debate to have considering that WoW and several other games of a similar nature are able to be used as a form of guide for real laws. Of course, you would like have to create a new game for each law to be tested out in the first place. It would be an interesting idea at the least.

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