Law of the Game on Joystiq: Call the cops, he stole my Cloudsong!
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
Everyone remembers the now classic "You Stole My Cloudsong!" recording (warning: NSFW). What's less funny, if you're a MMORPG player, is that theft is a real occurrence in MMO worlds. So what happens if someone steals your hard earned gold or items? Do you have any recourse? According to the cops in Minnesota, the answer is no. However, a more progressive look at the issue would suggest that protection for your virtual assets is certainly coming, if it doesn't exist already. In fact, in China, a recent case declared that seizure of virtual assets had actual value with actual recourse. It's an issue that is often discussed at sites like VirtuallyBlind, TerraNova, and (shameless plug in 3-2-1) Law of the Game, among others. Of course, simply lumping in digital theft with ordinary theft is far more complex than one might think.
The baseline question that needs to be answered is: What is theft? According to Black's Law Dictionary (7th Ed.), theft is "the felonious taking and removing of another's personal property with the intent of depriving the true owner of it; larceny." Simple enough, but going back into the common law, many jurisdictions traditionally limited larceny (the root of theft) to tangible personal property. It's only more modern interpretations, especially in the US, that include intangible property in the grander concept of "theft." However, even assuming you can include intangibles in "theft," there are much bigger problems with trying to apply this concept to in-game theft.
The biggest problems with MMO theft are ones of value and enforcement. Value is a tricky issue, and it's one where, unfortunately, dollars speak louder than effort; largely because the majority of the populous doesn't completely understand the MMO. Say I had a Wyrm Slayer. If I went to the police because someone stole my Wyrm Slayer, they would likely begin an investigation by asking me the value of the item. If I simply told them, "It took me 50 hours to get it," the investigation would probably end there with funny looks and a "Have a nice day, sir." The issue is that unless the game is tied to real currency, then determining a value for the game's items is nearly impossible. And while a site like IGE may give you an idea, it's technically a black market. Think of it like this: If you went to the police because someone stole a kilo of heroine from you, and you put the value as the 'street value,' what do you think would happen? (This isn't the best analogy because there's basically no equivalent in the real world for being allowed to own, but not sell something.)
The enforcement issue has two sides: one legal, one logistical. A court has to have jurisdiction to address an issue, that is, there has to be a sufficient set of circumstances to grant the court the ability to decide the case. Generally, in a criminal context, jurisdiction exists where the crime is committed. But think of a hypothetical MMO case: The victim lives in Dallas, the criminal lives in New York, the game company is in Los Angeles, and the game server being used is in Idaho. Where did the crime occur? The victim experienced the crime in Dallas, but the actual theft occurred on the server in Idaho, which was actually committed from New York.
Even if you resolve the jurisdictional issue, which has been addressed in other cases involving online transactions, for something that occurs as frequently as MMO crime, it becomes almost a logistic impossibility for enforcement. Take the previous example: If the crime were held to be in Texas, New York officials would have to arrest and extradite the criminal to Texas. If the crime were held to be in New York, the victim would likely have to be flown to New York for trial. And if the crime were held to be in Idaho, then both parties would have to travel. Ultimately, I'm sure neither the parties nor the taxpayers want to foot that bill.
Of course, crime in the digital realm also has a few unique features that real world crime does not. If someone stole an actual sword I owned in the real world, it would either have to be recovered or replaced, and replacement would require raw materials, time and effort. If someone stole an Archeus from me (assuming they found some way around the bind on pickup system), there would be no cost to me or Blizzard to put another one in my inventory. Digital items are infinitely replicable without cost. There's no law of conversation conservation of matter in digital worlds. (Edit: Excuse the typo.) Assuming that crime can be accurately identified, the victim can be put back to their position pre-crime with little effort.
So where does that leave us? Nowhere certain, unfortunately. Depending on whether the trend moves more in the World of Warcraft direction, where the company tries to prevent the sale of their goods, or the Second Life direction, where the economy is tied to real currency, the results may vary. Under the World of Warcraft model, unless you can squash the entire black market or cause all items to bind on pickup (which would basically destroy the in-game economy), criminals won't feel worse about stealing to sell an item in the black market. On the other hand, if in-game transactions are allowed, then there is a high risk of fraud to recapture (or duplicate) high value items, either as a scam or "seller's remorse." However, in the case of games with real currency ties, it might be more feasible to get a cybercrime or identity theft investigator to look into the issue, since actual money is involved.
Is there an easy solution to this issue? It would seem the answer is no. However, I would anticipate that the actual solution will be one created by the game designers and online community, rather than the established law enforcement authority.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
The baseline question that needs to be answered is: What is theft? According to Black's Law Dictionary (7th Ed.), theft is "the felonious taking and removing of another's personal property with the intent of depriving the true owner of it; larceny." Simple enough, but going back into the common law, many jurisdictions traditionally limited larceny (the root of theft) to tangible personal property. It's only more modern interpretations, especially in the US, that include intangible property in the grander concept of "theft." However, even assuming you can include intangibles in "theft," there are much bigger problems with trying to apply this concept to in-game theft.
The biggest problems with MMO theft are ones of value and enforcement. Value is a tricky issue, and it's one where, unfortunately, dollars speak louder than effort; largely because the majority of the populous doesn't completely understand the MMO. Say I had a Wyrm Slayer. If I went to the police because someone stole my Wyrm Slayer, they would likely begin an investigation by asking me the value of the item. If I simply told them, "It took me 50 hours to get it," the investigation would probably end there with funny looks and a "Have a nice day, sir." The issue is that unless the game is tied to real currency, then determining a value for the game's items is nearly impossible. And while a site like IGE may give you an idea, it's technically a black market. Think of it like this: If you went to the police because someone stole a kilo of heroine from you, and you put the value as the 'street value,' what do you think would happen? (This isn't the best analogy because there's basically no equivalent in the real world for being allowed to own, but not sell something.)
The enforcement issue has two sides: one legal, one logistical. A court has to have jurisdiction to address an issue, that is, there has to be a sufficient set of circumstances to grant the court the ability to decide the case. Generally, in a criminal context, jurisdiction exists where the crime is committed. But think of a hypothetical MMO case: The victim lives in Dallas, the criminal lives in New York, the game company is in Los Angeles, and the game server being used is in Idaho. Where did the crime occur? The victim experienced the crime in Dallas, but the actual theft occurred on the server in Idaho, which was actually committed from New York.
Even if you resolve the jurisdictional issue, which has been addressed in other cases involving online transactions, for something that occurs as frequently as MMO crime, it becomes almost a logistic impossibility for enforcement. Take the previous example: If the crime were held to be in Texas, New York officials would have to arrest and extradite the criminal to Texas. If the crime were held to be in New York, the victim would likely have to be flown to New York for trial. And if the crime were held to be in Idaho, then both parties would have to travel. Ultimately, I'm sure neither the parties nor the taxpayers want to foot that bill.
Of course, crime in the digital realm also has a few unique features that real world crime does not. If someone stole an actual sword I owned in the real world, it would either have to be recovered or replaced, and replacement would require raw materials, time and effort. If someone stole an Archeus from me (assuming they found some way around the bind on pickup system), there would be no cost to me or Blizzard to put another one in my inventory. Digital items are infinitely replicable without cost. There's no law of conversation conservation of matter in digital worlds. (Edit: Excuse the typo.) Assuming that crime can be accurately identified, the victim can be put back to their position pre-crime with little effort.
So where does that leave us? Nowhere certain, unfortunately. Depending on whether the trend moves more in the World of Warcraft direction, where the company tries to prevent the sale of their goods, or the Second Life direction, where the economy is tied to real currency, the results may vary. Under the World of Warcraft model, unless you can squash the entire black market or cause all items to bind on pickup (which would basically destroy the in-game economy), criminals won't feel worse about stealing to sell an item in the black market. On the other hand, if in-game transactions are allowed, then there is a high risk of fraud to recapture (or duplicate) high value items, either as a scam or "seller's remorse." However, in the case of games with real currency ties, it might be more feasible to get a cybercrime or identity theft investigator to look into the issue, since actual money is involved.
Is there an easy solution to this issue? It would seem the answer is no. However, I would anticipate that the actual solution will be one created by the game designers and online community, rather than the established law enforcement authority.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
Reader Comments (Page 1 of 1)
Crono (NDF - Knight of the Old School) @ Feb 6th 2008 4:06PM
Something not mentioned is that if virtual goods are declared to have a real-world value, that real world value could be taxed.
I think I can suffer through some petty virtual theft if it means I don't have to suffer the government taxing me on virtual goods and services.
Mark Methenitis @ Feb 6th 2008 4:14PM
Crono, taxation of virtual goods is a whole separate issue all together. While I've talked about it on Law of the Game before, it will probably be addressed again on Joystiq soon (especially if the JEC's report on virtual taxation comes out soon).
Vidikron (FU) @ Feb 6th 2008 4:14PM
Yes, good point. Also, in the case of nearly every MMOs, the items actually technically belong to the game developer. I know a lot of people eBay MMOs items, but that's usually technically against the MMO's usage agreement. So how can anyone legally expect compensation for something they never truly owned anyway?
James @ Feb 10th 2008 2:12PM
Worse yet, if virtual items have a real-world value, then virtual currency (with which you can buy virtual items) also have real-world value, which means you would pay income tax on the gold you get "working" killing monsters. On second thought, maybe this *needs* to happen, so people will realize how terrible our current system of "they get you comin' and they get you goin'" is.
Daniel D @ Feb 6th 2008 4:08PM
Good job you put a watermark on that Rembrandt
Shimrra @ Feb 6th 2008 4:19PM
Hard to even show proof when you own virtual goods when you think about it. When you play WoW we basically are just renting time to play on there game. You don't pay rent they do not let you in. So basically everything in the game belongs to WoW.
Frankie23 @ Feb 6th 2008 4:20PM
I think a bigger question is that of ownership. When you're playing an MMO, do you really own your in-game items? IF you fail to pay your monthly fee, you will be shut out, your account possibly deleted. Does the MMO company need to pay you for your "stuff"? Or, by the TOS agreement, are all in-game items actually owned by the company? If so, then is it still theft? The company hasn't lost anything. If anything, a case like this should be the jurisdiction of the game's mods. Virtual world, virtual police department, yes? There's no reason to involve the real cops, from this perspective.
Geist @ Feb 7th 2008 1:28AM
The EULAs, if I recall correctly, states that explicitly, that you don't actually own anything on the servers.
NoHitHair @ Feb 6th 2008 4:28PM
"Simple enough, but going back into the common law, many jurisdictions traditionally limited larceny (the root of theft) to tangible personal property."
But how does one define "tangible"? Random House defines it as "Capable of being touched; discernable by the touch; material or substantial." By that definition, wire fraud would be impossible since electronic funds could hardly be considered tangible. However, electronic fraud happens repeatedly and is vigorously prosecuted. Thus, for one to be held accountable for theft, the stolen goods need not be tangible, at least not in the traditional sense.
Generally, a person's invested time has a monetary value as is usually defined by what their employer (whoever that may be) is paying them. For example, a McDonald's employee has agreed to sacrifice an hour of their time in exchange for $6/hr., thus were McDonald's to screw over the employee by not paying them it's no more than a simple matter of calculating how many unpaid hours the employee worked and compensating them.
For the case of MMOs, since no monetary compensation is offered in exchange for the dedicated time of the individual, I believe it instead becomes a case of defining the worth of the product the individual created.
If someone spends 20 years chiseling a 1:1 scale model of a person and then it's destroyed, what compensation is fair? That person has likely lost thousands of hours of work and none of those hours have been financially accounted for. The difference, unfortunately, is that the sculptor can very likely prove that he/she dedicated that much time to their work - can the same be said for someone who's level 70 had their bank emptied and their gold stolen? How do we know they simply didn't pay for the account to begin with and thus put no time into it?
Ultimately, the compensation needs to reasonably fit what was lost. I believe that if it's impossible to simply restore the victim's online persona to its pre-theft status, then that person should be adequately indemnified based on at the time current market trends. Thus, if they lost 500g worth of goods, the cost to replace the 500g could be surmised by judging how much one would have to pay to purchase 500g.
Unfortunately, I don't think there's anything that can be done about lost time other than perhaps a civil suit claiming additional injury (i.e., mental distress over the wasted effort, invasion of privacy, etc.).
Mr Khan @ Feb 6th 2008 4:33PM
Well, basic consumer protection laws would state that the only thing you pay for is the right to access their services, but various claims in the TOS might mangle that up a bit
I remember when i stole a Dancing Hitogata (very rare FO weapon in PSO), i was a prick of a little kid back then, but crafted my own terms for the guy who dropped it. I stole it and dropped a considerably less valuable rare item of my own
His only real recourse was to report me, but on GC PSO, moderators were virtually nonexistant, the only way to be banned was to acquire a DLC-only item that existed in the code but hadn't been released yet, then be dumb enough to take it online
NATO_Duke @ Feb 6th 2008 4:38PM
All your base are belong to us - wait! Don't sue!!!
(Man, haven't said that in a long time.)
robert @ Feb 6th 2008 4:44PM
if the horse armour or +10 Sword of Virginity Retention is a virtual item made up of nothing but digital code and isn't a tangible item protected by law from theft then why should downloading an mp3 of the latest top 40 disco hit be illegal?
they're both nothing but digital code and calculating an actual value of each item can be subjective at best.
Crono (NDF - Knight of the Old School) @ Feb 6th 2008 4:55PM
What you are confusing is RIAA brainwashing with reality. Downloading an MP3 ISN'T theft, its copyright infringement. If it were theft, college students would be sitting in jail instead of wondering where their tuition money is going to come from.
Velops @ Feb 6th 2008 5:22PM
The MP3 argument is problematic. When you buy an MP3, you are legally buying the rights to the music for personal use. You are not simply renting the use of the MP3. You have it forever to play as many times as you want, whenever you want as long as it is a private application.
MMO items have greater restrictions. You cannot access the item offline. When your account is deleted, it is gone forever. It is impossible to own MMO items when they are subject to the whims of the of the company running the game.
Item theft is an issue best left to customer service. If you are not satisfied with the response of the customer service, stop playing the game.
Bluebrake @ Feb 6th 2008 6:09PM
If the copyright infringement versus theft issue is a problem, then use cash as an analogy. Something like 90% of the money in circulation exists only as bits and bytes in a computer, and it's created and destroyed just as easily as the Sword of Virginity Retention -- with a few keystrokes on a bank's computer. Yet money is believed to have real value.
I think the issue Velops brings up is more interesting: if the company running the MMO owns everything stored on its servers, then is it possible to ever steal something from a player? Remember though that the "we own all your stuff" clause is only part of the user agreement, and has very little legal weight. If a judge wanted to overrule it, he would have little difficulty doing so.
And that brings us to the other issue hinted at, one that I hadn't thought of before -- if it's decided that players do own their virtual assets, then what right does the game company have to take it away from them? When they shut down the servers after the game stops being profitable, could someone take them to court over the loss of their assets? Maybe the law could declare the developers exempt, but then they gain an unprecedented amount of power over what are now considered "real assets." It's a legal can of worms.
shMerker @ Feb 6th 2008 4:51PM
I have to wonder if something hasn't gotten out of hand when someone is looking for legal recourse for having virtual goods that he rents stolen from him because he took them to sell on the black market. Maybe the definition everybody needs to look up is "game" which Webster has as "activity engaged in for diversion or amusement" and not "your reason for being".
WiNG @ Feb 6th 2008 4:57PM
The real problem is that, 99% of the time, things are not "stolen" in MMOs.
-They are tricked by scams
-They are taken by guildmates/siblings/significant others
-They are "ninja'ed"
-They are traded at unfair values
-They are legitimately "stolen" using a "theft" skill built into the game
Really, almost none of these have any recourse, except maybe the first one. However if you lost something because you trusted a stranger with your password, or because you didn't get to the lewt in time, too bad for you.
If you lost an item due to hacks (very VERY rare) or some kind of glitch, that's a different story.
If you want to read about virtual theft, read this, and cry:
http://mmorpg.qj.net/Biggest-scam-in-EVE-Online-history/pg/49/aid/62826
GRANTED @ Feb 6th 2008 5:06PM
i read it. that's awesome. i guess games ARE becoming more realistic loi.
Bluebrake @ Feb 6th 2008 5:56PM
Fraud is illegal just the same as outright theft is. If you scam an old lady out of her credit card number, you're still going to jail even if she gave it to you "willingly."
JonFitt @ Feb 6th 2008 5:07PM
What about if someone steals a one time use software key from my Inbox before I have the chance to use it?
The issuing company could place real value against providing a new key. But that is also something which has no material cost.
Donald @ Feb 6th 2008 5:15PM
Speaking of theft, nice Ebaums link.
NoHitHair @ Feb 6th 2008 5:37PM
Touche'.
end quote @ Feb 6th 2008 5:49PM
lol @ "conversation of matter"
nindustrial @ Feb 6th 2008 6:22PM
I think that you also need to consider the issue of the publisher/administrator (say Blizzard for example) including in the Terms of Use that they are the owners of all characters, items, etc. in the game. As such, a person trying to claim theft would not even satisfy the element of theft requiring the thing taken from them be their "personal property." It's not their personal property, it is Blizzard's. Further, according to the understanding of theft, Blizzard would be the "true owner."
So you're blocked before you even reach the much messier questions of jurisdiction or placing a value on the item.
InvazN @ Feb 6th 2008 6:54PM
Haha, wow, I actually just wrote a paper on this last term...
Lone Starr @ Feb 6th 2008 7:40PM
"Digital items are infinitely replicable without cost."
Absolutely NOT true. There is always a cost.
twocows @ Feb 6th 2008 7:54PM
This video is a classic. However, I'm opposed to the linking of it to stealbaumsworld, a site which has had *numerous* controversies in regards to stealing original content. While I'm not sure if the original video was posted to Ebaumsworld, it's a safe bet that it wasn't. For the record, there's a link to it at YTMND at this location: http://wowseriousbusiness.ytmnd.com/
Ramifications @ Feb 7th 2008 2:08AM
Great article. Thanks!
zlionsfan @ Feb 7th 2008 2:01PM
If I were dating someone, and someone stole a kilo of heroine from me, my girlfriend would probably ask the thief to come back and repeat the process about 9 more times.
I, however, would think she was fine the way she was.
Mark Methenitis @ Feb 8th 2008 12:33PM
For anyone interested, I've posted a follow up piece on Law of the Game based on some of these comments.
http://lawofthegame.blogspot.com/2008/02/call-cops-he-stole-my-cloudsong.html