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.
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