Yesterday, the Dutch Supreme Court decided a long-contested case over the theft of virtual goods. In 2008, two teenagers were convicted of theft after they forced another boy to let them into his home, beat him up, held him at knife point, threatened to kill him, strangled him, and forced him to give up the password to his Runescape account. Once they had his password, they transferred certain items, including an amulet and a mask, out of his account into theirs. One of the teenagers challenged his theft conviction, arguing that the goods he stole had no value, therefore he could not be liable for theft. Yesterday, the Dutch Supreme Court held that the virtual goods did have value, and the theft conviction stands.
A closer look
The court considered whether virtual property is a “good” under Netherlands law. In answering that question, the court had to determine:
- whether virtual objects are “but a visual illusion, consisting of bits and bytes”
- whether virtual objects are merely information
- whether it is one of the goals of Runescape to take the virtual property of another
- whether virtual objects in Runescape are the property of the possessor, or whether the game’s publisher merely grants a right to use.
Addressing each one of these in order:
- The court determined that “[t]he virtual nature of these objects is not in itself preclude it to be regarded as good in the sense of art.” Virtual items have value based on the effort and time invested in acquiring them and the value placed on them by others in the game.
- Yes, virtual items are data, but that data can still be stolen: these objects of data were under the exclusive control of the victim, and they were taken from him by force.
- It may be one of the goals of Runescape to take another’s property, but the thief did not do so within the context of the game.
- Finally, the court found (and this one’s a big deal — I promise I’ll talk about it more below) that while the Runescape Terms and Conditions did retain ownership of all virtual property in the game and grant a right to use, the goods in question were under the “exclusive dominion” of the victim. The court thus compared the goods to a passport, which is “the undisputed property of the State of the Netherlands,” but can be rightfully possessed by its holder and can be stolen by a thief.
So…what does this mean?
What does this mean for other countries (such as the United States, which Second Life uses as its legal forum)? What does this mean for other situations?
First, the bad news. This is a very fact-specific situation. Some dudes beat a guy up and held him at knife point to get his virtual goods. There’s nothing in here about intellectual property theft. There’s nothing in here about copybotting. There’s nothing in here about piracy. If you’re not getting nearly killed for your password in the Netherlands, this probably isn’t the case for you.
Also, other countries may not follow the Netherlands’ lead. However, the Runescape case has been closely watched ever since the 2008 conviction of the two teenagers (the first conviction for theft of virtual goods; there have been others since). The United States has yet to rule on the value of virtual goods (however, the United States has ruled that domain names have value, which is a good start).
Now, the good news. Let’s really look at this. The Dutch Supreme Court has just held that despite an end user license from Runescape retaining all ownership of virtual property in the game, individual players have property rights in virtual objects. Yes. They did. Those items have value because of the time and effort you put into obtaining them, and because of the social value others place on them…and if they are under your exclusive dominion, you have certain property rights to them. That is stop the presses-level news you guys.
We still don’t know exactly what property rights you have. We know that you have enough property rights to assert criminal rights if the object is stolen. We know that the object has value because of your time and effort. If you have property rights to an object of value, can you require access to it (an “easement”) if your account is terminated (this, by the way, was the real meat of the first Bragg v. Linden lawsuit)? Can you sue a game provider if your objects are damaged, deleted, or stolen? Can you assert your rights if a game platform is closed?
Of course, this only applies to virtual goods in the Netherlands right now. But similar decisions are coming down all over the world – in China and South Korea, for example. Virtual world users are gaining more and more rights over the goods they use and own. It’s about time.