Virtual Property
So, a Shanghai online gamer has been given a suspended death sentence for killing a fellow gamer because of a stolen virtual sword (Yes programmers, this is about virtual property…not virtual properties :grin:).
The killing was, without doubt, a distinctly naughty thing to do and I hope the guilty party rots in jail. That much is not really contentious.
What I do find incredible is that people are umm’ing and ar’ing about whether the law should cover “virtual property”. I personally believe that the sword was his property and should have been protected by the law.
But a lawyer for one Shanghai-based internet game company told a Chinese newspaper that the weapons were in fact just data created by games providers and therefore not the property of gamers.
Obviously, this is a grey area in the law, but I think the time has come to make it black and white. In this day and age, where so much of our lives is virtual, can we really say that something is not property because it is “just data”? Is this my blog?
Come on Mr. Shanghai Lawyer! Get real! Or, rather, get virtual!
I have a friend whose particular field of interest is intellectual property rights. I’m interested to hear what she thinks about this.
June 9th, 2005 at 11:19
Virtual property . . . absolutely fascinating!
The sword itself, as intangible personal property, is capable of being protected by intellectual property law. (It is a collection of ideas and information in a broadly commercial context that the law recognises as having value by providing protection). I think it would qualify for automatic copyright protection as an artistic work. This protection would extend to the creator of the work.
I see no reason why the creator should not be free to sell/donate any part of his work to another party – much like a band distributing it’s CD’s. (Here, the work qualifies for automatic copyright protection as a musical work). The recipient acquires the right to use the object, but no to replicate/copy/redistribute. These rights remain with the creator of the work, unless expressly licensed/sold to the recipient. So, for example, you could listen to the CD or use the sword, but you could not cut CD’s for sale or decode the game and create replica swords. So far so good; Mr Qiu seems to have acquired rights in the virtual sword despite not being its creator.
Now, how do we deal with its’ misappropriation? Should the law criminally sanction Mr Zhu’s conduct or should the issue be left to the civil law?
Concerning the former, the crime of theft is broadly defined as the unauthorised taking of property belonging to another. Clearly the critical question is whether it can be classified as property. I see no reason why the courts would decide that it does not given the fact that it automatically qualifies for IP copyright protection as an artistic work. One issue that may arise here is if the courts consider it to be a policy issue as they are reluctant to cross the line between upholding the law and making the law contrary to the doctrine of separation of powers. Ideally this area needs specific legislation to govern it, as it may be unwise to try and slot it into an existing area. Sword shaped object into a round hole kind of thing.
Concerning the latter, it could be argued that Mr Zhu and Mr Qiu entered into a legally binding contract. Here, we needn’t ask whether the virtual property is deserving of protection as a matter of policy, but merely whether a valid and binding contract came into existence. A critical issue here will be whether they intended to create a legally binding contract. We don’t have the facts to probe into that juicy question, but given the sword’s monetary value and Mr Qiu’s reaction to its loss it would seem that it is an object that one wouldn’t hand over flippantly.
If this is all rejected then we must wait for the wheels of justice to turn. You can see them moving, honest guv.
June 9th, 2005 at 12:04
Sheesh Nades, that was very in depth! Thanks! So what you’re saying is we can’t say which way the courts would rule until they try a case, but that there is a good chance they would uphold the right to ownership of virtual property (maybe)?
On the CD analogy: Ok, so I don’t “own” the music, I just purchase the right to listen to the music. So leaving aside copyright and just concentrating on the rights of a consumer…
If you steal my CD that is theft - no two ways about it, right? Now, what if I didn’t buy a CD, I just downloaded the album (legally) from a website. Then imagine that a malicious person copies it from my computer and then - because he is so malicious - he deletes my copy. Effectively, he has stolen my music and the only difference between that and the theft of the CD is the tangibility of the item. The effect is exactly the same - due to his actions I am now without the thing I paid for. Should that person receive the same penalty as the thief with a penchant for the more tangible things in life? If so, then Mr Shanghai Lawyer has a problem with his “it’s only data” approach. If not, then our continually virtualizing civilization is heading for a period of anarchy.
I realise though that music is not a high-fidelity analogy (pun not originally intended). While both an album and a virtual sword have cost the consumer money, the sword was actually a ‘fruit of his labour’. He worked hard for it. It’s value is not really attributable to anything the artist did, but more to do with it’s semantic value within the context of a game and it’s real-life value in terms of the effort that another person would have to expend in order to achieve a similiar item. It is this investment of time that is perhaps the crux of the issue.
If in-game artifacts can be “owned” then it opens up a Pandora’s (x)box. Companies hosting these MMORPG’s (Massively Multiplayer Online Role Playing Games) would not be able to decide to shut down the operation as they would be destroying the property of their customers. Currently, I think they protect themselves against this by some cunning clauses in their Terms and Conditions. But if the law were to recognize this virtual ownership how would it affect these companies? You could not force a company to continue, say, if it ceased to be profitable. So perhaps your ownership of a virtual item would only be protected by law for the duration of its “life”? Wouldn’t that be ironic?
June 10th, 2005 at 10:07
Heh Stu,
Exactly!
The CD analogy is great and exactly right. Where the malicious person copies your downloaded CD from your computer he immediately commits copyright infringement and is liable to the creator of the work. When he deletes your copy, to my mind, he commits theft as he is depriving you of property, albeit intangible, that is in law owned by you. As you put it, the only difference is one of form. I think it is reasonable for the perpetrator to receive exactly the same penalty regardless of the form of the object stolen; creating a distinction on form alone would be artificial and counter-productive in light of today’s technology driven world.
Moving on to the value of the sword being defined, in part, through being a ‘fruit of his labour’. I’m not too familiar with Locks theory of ownership (perhaps Steve could help out here), but I’m not sure we have to look at how much he toiled and mixed his labour with the object in order for him to be able to claim ownership of it. This is so provided we can attribute, with general consensus, a monetary or market value to the sword. So, if I could enter the relevant virtual world and ascertain a market value for it (in real currency), then I don’t think it matters how it came to be mine – barring theft or any other rogue-like behaviour. If we cannot ascertain a market value for it, then we may have to fall back on the ‘mixing of labour’ issue, but it would be tricky because of the ‘gaming’ context. Couldn’t it be argued that it was not toil, but fun that you expended? Was your aim and object to obtain X sword? Did you leave your working environment better off? etc
I agree with you that the whole idea of ownership within virtual worlds opens up a Pandora’s box! [It would be really interesting to see just how these companies are attempting to cover their bottoms. Probably by saying ‘we own everything regardless of anything’]. So, perhaps, ownership would be subject to certain conditions such as the continued existence of the virtual world. But can your rights then be classified as ownership? It sounds to me more like custodianship. This is relevant here because the provisions of intellectual property evolved predominantly out of a western view of knowledge as a commodity owned by an individual, not a community. In the western paradigm, knowledge and technology are regarded as objects and intellectual property rights provide a regulatory framework for establishing ownership and protection of such property. Traditional communities, on the other hand, view knowledge and technology as a fundamental part of life. The material and the abstract are not neatly delineated, and often the knowledge and the resource are regarded as one in the same thing. In traditional societies, property is frequently not about ownership, but about custodianship. Knowledge is passed down from generation to generation and becomes an integral part of the communal life of the particular peoples. The thread connecting the original ‘owner’ of the knowledge is lost in the mists of time rendering individual property concepts futile. Perhaps China is in this position and working its way toward a framework that recognises individual property. This is the case in the vast majority of developing countries and applies to some developed countries too – especially those not of a western philosophy.
I’m sure we won’t have to wait too long before this issue starts springing up everywhere and we can watch and see just how the problems are handled.
June 27th, 2006 at 17:34
Hey guys, im making a thesis with regard this topic. Virtual property really falls in the gray area of most copyright laws of various countries.
Can i have your permission to cite this blog cite in my thesis? thanks.
June 28th, 2006 at 10:30
Hi Merlin. Of course you can cite it! And if it’s possible I’d love to read it when your done.
August 6th, 2006 at 9:46
I saw that you have a page that discusses patent-related resources at http://www.makiwa.com/index.php/2005/06/08/virtual-property. I wanted to suggest adding http://www.freepatentsonline.com to the page. This web site has free PDF downloading (instead of having to page through TIFFs like at the US PTO). It is by far the best free patent searching site.