Thursday, February 2, 2012

Dutch Supreme Court Rules Virtual Objects Are Legal Property

By Ren Reynolds
Virtual Policy Network
Wednesday, February 1, 2012

On the 31st of January 2012, the Supreme Court of the Netherlands found that items in the online game RuneScape had been stolen from a player. This is a ground-breaking case as it is the highest national court in the West to rule that taking virtual objects in this way is theft under national criminal law. This ruling may have broad implications for the online games industry.

The case dates back to 2007 when two youths used violence and threats of violence to force another player to log into the game of RuneScape. After the victim logged in to the game one of the defendants transferred virtual items and virtual currency from the victims account to their own. The Supreme Court upheld the conviction for theft but reduced the number of hours of community service to be served (taking into account Juvenile detention served).

The appeal did not turn on the material facts, i.e. whether there were threats were made or items were transferred. Rather, the appeal centred on the question of whether what had occurred was ‘theft’ as defined by the law of the Netherlands.

Key Arguments

The key arguments against the incident being defined as ‘theft’ considered by the court they were as follows:
  1. Virtual items are not goods but an ‘illusion’ of goods made up of bits & bytes i.e. they are data
  2. Virtual items are Information
  3. The point of the game is to take objects from each other
  4. The virtual items are and remain the property of the publisher of the game not the victim or the defendant - hence they could not have been stolen
The ‘Illusion’ argument
The court ruled that:
  • Virtual items have value in virtual of the effort and time invested in obtaining them
  • The value in Virtual items is recognised by those that play the game (including the defendents who went to the trouble to take them)
  • The Virtual items were under the exclusive control of the player – who was relieved of this control
The court made reference to cases of electricity theft which is a similar intangible good but certainly has properties of power and control, and consequently can be stolen.
The ‘mere data’ argument
The court agreed that virtual items are data, but crucially added that they are not just data. That is, the fact that virtual items have data like properties does not mean that they don’t also have properties that make them capable of being stolen. In particular the court noted again that the virtual item had perceived value and were under the exclusive control of a player.
The ‘I was playing a thief’ argument
The defence argued that one of the points of the game of RuneScape is to take virtual items from other players. The court noted that this was true but the way that the property was taken was outside the ‘context’ of the game.
The ‘not your property’ argument
The court agreed that under the RuneScape terms and conditions, the virtual items in the game are owned by the publisher of RuneScape who grant the players have a ‘right to use’. However it concluded that the items in question were under the ‘exclusive dominion’ of the victim until they were removed from them, hence the position of RuneScape being owners of the items (from the perspective of  intellectual property / contract law) is ‘not relevant’ in the context of the criminal case under consideration.Here the court made defence to money – which is the property of the sate but can still be stolen.

In coming to these conclusions the court noted that it is down to the discretion of the court to determine whether “due to the digitization of society, a virtual reality has been created, all aspects of which cannot be dismissed as mere illusion where the commission of criminal acts are not be possible” [Google Translation with amendments by R Reynolds].
tVPN Commentary: Significance
This case is significant because it changes the relationship between individuals and service providers in respect of digital objects. That is, RuneScape’s contract clearly states that the players of the game do not own the game or any of the digital objects within it, whether they control them or not. This has long been a contentious matter as there is a large trade in the sale of objects between players for hard currency, so called Real Money Trading (RMT).

This ruling means that there is a degree of control that someone can have over an object which is sufficient for that object to be stolen. The question that has puzzled both the industry and academics for many years is: if a digital object is capable of being stolen, does this mean that other rights accrue to a player? For example, irrespective of what the contract says, can a player:
  • sell an object?
  • claim rights if an object is deleted or changed by company?
  • claim compensation if a game is closed?
For the moment, this matter is restricted both to The Netherlands and to the specific matter of theft. However in China and South Korea there have been similar types of cases which have made it to the courts, in these judges have displayed a general trend to grant more rights to players than are stated in their contract and to see digital objects as being akin to physical property in certain important respects. The fact that a case in the EU has got to such a senior court and has ruled along the same lines is likely to carry some weight with other cases that may occur in the West.

For details of the Chinese, Korean and other cases see tVPN’s white paper on Virtual Objects and Public Policy which examines both cases and statute in detail.

tVPN Links

External links

Ren Reynolds is the founder of the Virtual Policy Network. Reprinted with permission. 

For further reading:
"Dutch Supreme Court decides virtual theft case", Greg Lastowka, February 1, 2012
"Dutch Supreme Court: Stealing RuneScape gear is a crime", Matthew DeCarlo, February 1, 2012
"Dutch Court recognizes Runescape items as legal 'goods'", Terra Nova, February, 1, 2012
"Not all created equal", Ren Reynolds, Terra Nova, February 27, 2011
"The Virtual Property Problem: What Property Rights in Virtual Resources Might Look Like, How They Might Work, and Why They are a Bad Idea", John William Nelson, September 6, 2009

1 comment:

  1. Very suprising outcome in this case. I think that accusation should rather be threat or abuse than theft. They did not really steal something of real value.


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