life, liberty, and the pursuit of swords and armor - Emory University ...

LIFE, LIBERTY, AND THE PURSUIT OF SWORDS AND 

ARMOR: REGULATING THE THEFT OF VIRTUAL GOODS 

INTRODUCTION 

Courts and legislatures cannot continue to ignore virtual worlds. The legal 

regulation of online video games has become a pressing issue because people 

and companies increasingly spend more time and resources within virtual 

worlds. 1 Echoing these sentiments, scholar Jack Balkin posits that if 

developers “encourage real world commodification of virtual worlds, 

encourage people in these worlds to treat virtual items like property, and allow 

sale and purchase of these assets as if they were property, they should not be 

surprised if courts, legislatures, and administrative agencies start treating 

virtual items as property.” 2 There is no longer a bright line between 

Massively-Multiplayer Online Role-Playing Games (MMORPGs) and reality. 

The more that virtual-world activities affect real-world economics and property 

interests, the more that virtual worlds will require legal regulation. 3 

A MMORPG is an online role-playing game in which a large number of 

players interact with one another within a virtual-world setting. 4 In these 

games, a player assumes the role of a fictional character, taking control over 

many of that character’s actions. 5 Unlike single-player or small multiplayer 

games, 6 MMORPGs provide a persistent world, 7 usually hosted by the game’s 

publisher, that continues to exist and evolve even while the player is away 

from the game. 8 

1 Jack M. Balkin, Law and Liberty in Virtual Worlds, 49 N.Y.L. SCH. L. REV. 63, 63 (2004). 

2 Id. at 78. 

3 Id. 

4 

MARK J.P. WOLF & BERNARD PERRON, THE VIDEO GAME THEORY READER 87 (2003). 

5 See generally MATTHEW WILLIAMS, VIRTUALLY CRIMINAL: CRIME, DEVIANCE AND REGULATION 

ONLINE 2 (2006) (describing virtual worlds). 

6 Online casino tables are a perfect example of small multiplayer games. See, e.g., Nelson Rose, 

Gambling and the Law: The Future of Internet Gambling, 7 VILL. SPORTS & ENT. L.J. 29, 32 (2000). 

7 See Wikipedia, Persistent World, http://en.wikipedia.org/wiki/Persistent_world (last visited Mar. 2, 

2007). 

8 Michael Meehan, Virtual Property: Protecting Bits in Context, 13 RICH. J.L. & TECH. 7 1 (2006), 

http://law.richmond.edu/jolt/v13i2/article7.pdf.

1302 EMORY LAW JOURNAL [Vol. 57 

A distinguishing feature of MMORPGs is that players not only interact 

with one another but also collect items—traditionally swords, armor, potions, 

food, jewelry, or other accessories—that enhance the character’s ability to 

fight, cast spells, or move within the virtual world. 9 These virtual items 

enhance game play: virtual goods can make characters stronger or more 

powerful, or can ease a player’s capacity to progress through the game and 

achieve higher levels. 10 Many of these powerful items, however, are not easy 

to acquire, sometimes taking hours or days to locate and seize. 11 

Because virtual items enhance character attributes 12 but require time to 

obtain, 13 they have become objects of value to players. These items, in turn, 

have generated an outside market for their acquisition. 14 This outside market, 

termed Real Money Trading (RMT), allows players to buy virtual goods with 

real financial currency through websites like eBay 15 and IGE. 16 RMT has 

become a profitable industry: 17 industry analysts estimate that trade in virtual 

goods ranges from $200 million to $2 billion a year. 18 In 2003, the internet 

9 Id. at 2. 

10 Id. 

11 See Wikipedia, Camping, http://en.wikipedia.org/wiki/Camping_(computer_gaming) (last visited Mar. 

2, 2007). 

12 Attributes can include, but are not limited to, strength, stamina, intelligence, clarity, wisdom, agility, 

and dexterity. See The Norrathian Scrolls: A Study of EverQuest, http://www.nickyee.com/eqt/lexicon.html 

(last visited Feb. 29, 2008). 

13 See, e.g., Tobold’s MMORPG Blog, http://tobolds.blogspot.com/2006/05/have-we-lost-patience.html 

(May 10, 2006, 10:26 EST) (describing how certain plants on EverQuest take twenty-five minutes to spawn). 

14 Economic Activity in Virtual Worlds, TNL.net Weblog, (July 31, 2006), http://www.tnl.net/blog/2006/ 

07/31/economic-activity-in-virtual-worlds/. 

15 eBay, http://www.ebay.com (last visited Mar. 2, 2007). The sale of MMORPG virtual goods began on 

eBay, where virtual good prices ranged from a few cents to several thousand of dollars. TNL.net Weblog, 

supra note 14. However, eBay recently banned the sale of all virtual goods, except for the virtual goods of 

crowdsourcing MMORPGs. See Daniel Terdiman, eBay Bans Auctions of Virtual Goods, NEWS.COM, Jan. 29, 

2007, http://news.com/eBay+bans+auctions+of+virtual+goods/2100-1043_3-6154372.html; see also infra note 

46 (defining “crowdsourcing MMORPGs”). 

16 IGE, http://www.ige.com (last visited Apr. 7, 2007). IGE provides a network for the buying and 

selling of virtual currency and virtual assets of MMORPGs. See id. 

17 Because the trades on eBay were largely unregulated, Sony, one of the largest MMORPG providers, 

set up its own exchange system to allow its subscribers to buy and sell virtual goods through a regulated 

system. Daniel Terdiman, Sony Scores with Station Exchange, NEWS.COM, Aug. 25, 2005, http://news.com. 

com/Sony+scores+with+Station+Exchange/2100-1043_3-5842791.html. During Station Exchange’s first 

thirty days of operation, Sony saw more than $180,000 in transactions and reported that the average Station 

Exchange participant spent more than $70. Id. Realizing the potential for profit, other third-party websites set 

up their own exchanges to allow for the sale and purchase of virtual goods of various MMORPGs. E.g., 

Internet Game Exchange, http://www.igxe.com (last visited Mar. 2, 2007); IGE, supra note 16; Massive 

Online Gaming Sales, http://www.mogs.com (last visited Mar. 2, 2007). 

18 Daniel Terdiman, Virtual Goods, Real Scams, NEWS.COM, Sept. 12, 2005, http://news.com.com/ 

Virtual+goods,+real+scams/2100-1043_3-5859069.html; see also Noah Robischon, Station Exchange: Year

2008] REGULATING THEFT OF VIRTUAL GOODS 1303 

gaming section of eBay alone experienced more than $9 million in trades of 

gaming virtual goods. 19 

Not only are virtual goods valuable enough to be sold for real money, the 

time spent acquiring these goods is valuable as well. Overseas, “sweatshops” 

employ people to play and to acquire virtual goods that are then put up for 

sale. 20 For example, Chinese workers get paid between $75 and $250 per 

month to work twelve-hour shifts playing in World of Warcraft to harvest 

artificial gold coins and other virtual goods. 21 

Recognizing the real-world value of virtual goods, Congress’s Joint 

Economic Committee is creating a report on in-game economies to determine 

whether the government should tax the purchases and sales of virtual goods. 22 

A Senior Economist for the Joint Economic Committee commented that “to a 

certain degree the law has fallen (behind) because you can have a virtual asset 

and virtual capital gains, but there’s no mechanism by which you’re taxed on 

this stuff.” 23 The U.S. government’s newfound interest in video-game 

economies demonstrates virtual property’s growing relevance. 

Unfortunately, the growth of the virtual goods market has a dark side as 

well—it has led to an increase in virtual crime, 24 particularly the theft of virtual 

goods. According to one study, the majority of online-gaming crime is theft 

One (Jan. 19, 2007) (unpublished manuscript), available at http://www.gamasutra.com/features/ 

20070207/SOE%20Station%20Exchange%20White%20Paper%201.19.doc. This study found that 9,042 video 

gamers spent a total of $1.87 million on virtual goods between June 2005 and June 2006 on Station Exchange 

alone. Id. at 3. Each video gamer spent an average of $91.55, with some items costing $2,000. Id. at 6. The 

study further reports that most sellers make between $200 and $500 a month; however, some sellers earn up to 

$37,000 a year from the sale of virtual goods. Id. at 10. The most recent study, conducted by Tuukka 

Lehtiniemi, estimates that the worldwide RMT market is at $2.09 billion. Tuukka Lehtiniemi, How Big Is the 

RMT Market Anyway?, VIRTUAL ECON. RES. NETWORK, Mar. 2, 2007, http://virtual-economy.org/blog/how_ 

big_is_the_rmt_market_anyw. 

19 Chinese Gamer Sentenced to Life, BBC NEWS, June 8, 2005, http://news.bbc.co.uk/2/hi/ 

technology/4072704.stm. 

20 David Barboza, Ogre to Slay? Outsource It to China, N.Y. TIMES, Dec. 9, 2005, at A1. According to 

this article, “By some estimates, there are well over 100,000 young people working in China as full-time 

gamers, toiling away in dark Internet cafes, abandoned warehouses, small offices and private homes.” Id. 

21 Id. 

22 Adam Pasick, Virtual Economies Attract Real-World Tax Attention, YAHOO!NEWS, Oct. 16, 2006, 

http://news.yahoo.com/s/nm/20061016/wr_nm/life_secondlife_tax_dc. 

23 Id. 

24 Some scholars have found that the growth of virtual economies has led to the rise of virtual crime in 

general, beyond just theft. See F. Gregory Lastowka & Dan Hunter, Virtual Crimes, 49 N.Y.L. SCH. L. REV. 

293, 294–95 (2004).


(73.7 percent) and fraud (20.2 percent), 25 the average value of the online 

gaming loss is about $459, 26 and 34.3 percent of criminal loss is between $100 

and $300.” 27 Similarly, statistics from the National Police Administration of 

Taiwan show that Taiwanese police prosecuted 3,983 criminals for 3,553 cyber 

crime cases during 2002; more than 1,300 of these cases concerned 

MMORPGs. 28 Additionally, Korea’s Cyber Terror Response Center (KCTRC) 

reports that cyber crime increases exponentially every year: “[i]n 2000 there 

were only 675 cases; in 2001 there were 2,193; in 2002 the[re] . . . [were] 

8,250 [cases;] and in 2003 the total number of cyber crimes was 10,187.” 29 

KCTRC concluded that seventy percent of cyber crimes relate to item-trade 

fraud. 30 Although no study has analyzed the theft of virtual goods in the 

United States, 31 Taiwan and Korea’s numbers alone illustrate the potential 

prevalence of these thefts. 32 

Despite the daily occurrence of theft within MMORPGs, this type of theft 

remains unregulated in the United States. 33 This Comment takes the position 

that not only should the United States prosecute the theft of virtual goods under 

current theft penal statutes but also that such an approach is desperately 

needed, given the economic prominence of virtual goods 34 and the increasing 

rise of virtual good thefts. 35 

25 Ying-Chieh Chen et al., An Analysis of Online Gaming Crime Characteristics, 15 INTERNET RES. 246, 

251 (2005). 

26 Id. at 252. 

27 Id. at 246. 

28 George Yee et al., Towards Designing Secure Online Games, 2006 NAT’L RESEARCH COUNCIL CAN. 2, 

available at http://www.iit-iti.nrc-cnrc.gc.ca/iit-publications-iti/docs/NRC-48457.pdf. 

29 Ian MacInnes et al., Virtual World Governance: Digital Item Trade and Its Consequences in Korea 17 

(2004) (unpublished paper presented at the Telecommunications Policy Research Conference), available at 

http://web.si.umich.edu/tprc/papers/2004/382/ppr%20Korea%2008%20TPRC%20final%20revised.pdf. 

30 Id. 

31 Second Life maintains a police blotter. See Second Life, Community: Incident Management Report, 

http://secondlife.com/community/blotter.php (last visited Mar. 2, 2007). During a two-week period, Linden 

Labs reported fifty-two regulatory actions, none of which involved theft. Among those reported, the most 

prevalent virtual crimes included assault, sexual harassment, disturbance of the peace, and use of repetitive 

content. Id. 

32 A Newsweek reporter estimates that one million dollars in virtual goods are stolen every year. Silvia 

Spring, Games: Virtual Thievery, NEWSWEEK INT’L, Dec. 11, 2006, at 10. 

33 See, e.g., Earnest Cavalli, Police Refuse to Aid in Virtual Theft Case, WIRED, Feb. 4, 2008, 

http://blog.wired.com/games/2008/police-refuse-t.html (“After the loss of almost $4,000 USD in virtual goods 

and currency, Final Fantasy XI player Geoff Luurs brought his case before the Blaine, Minnesota police 

department only to be refused any kind of aid.”). 

34 See supra text accompanying notes 14–21. 

35 See supra text accompanying notes 24–32.


The argument proceeds as follows. Part I describes the mechanics of 

playing an MMORPG and how theft of virtual goods might occur in virtual 

settings. Part II demonstrates how the current United States legal system could 

classify the theft of virtual goods as legally cognizable theft, while considering 

(1) whether virtual goods can be considered property; (2) if virtual goods are 

property, what property rights players need to protect virtual goods from theft; 

and (3) whether existing legal provisions are sufficient to protect the theft of 

virtual goods, taking into account arguments against their application. Finally, 

Part III considers whether other regulatory schemes, including those of other 

countries, would better address the theft of virtual goods and concludes that 

current penal statutes would regulate the theft of virtual goods most 

effectively. 

I. THE MECHANICS OF MMORPGS AND THE THEFT OF VIRTUAL GOODS IN 

THE CONTEXT OF AN ONLINE VIDEO GAME 

Almost nonexistent in the late 1990s, MMORPGs now represent one of the 

video game industry‘s fastest growing segments. 36 As of July 2006, thirteenmillion 

people subscribed to some form of MMORPG. 37 Nielsen Interactive 

Entertainment, 38 in a study performed in 2006, found that among the estimated 

117 million U.S. video gamers, fifty-six percent play some form of multiplayer 

online video game. 39 

MMORPGs are “graphically represented three-dimensional virtual reality 

online social spaces that form part of the internet.” 40 To play an MMORPG, a 

player must first buy the game and install it on her personal computer. 41 After 

installation, the player must connect to the Internet to play within an online 

virtual world managed by the game’s publisher. 42 Once in the game, a 

36 Adam Fifield, Fair Game? For Some Fans of Online Interactive Play, Entertainment Can Become a 

Dangerous Addiction—One that May Need Treatment, PHILA. INQUIRER, Nov. 2, 2006, at D01. 

37 Bruce Sterling Woodcock, MMOGCHART.com, http://www.mmogchart.com/Chart1.html (last visited 

Mar. 2, 2007). 

38 Nielsen Media Research, http://www.nielsenmedia.com (last visited Mar. 2, 2007). 

39 PRNewswire.com, Nielsen Entertainment Study Shows Video Gaming is Increasingly a Social 

Experience, http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-05-2006/ 

0004446115&EDATE (last visited Mar. 2, 2007). This study does not specify whether all fifty-six percent of 

video gamers are engaged in MMORPGs or video games in general. 

40 

WILLIAMS, supra note 5, at 5; see also ROBERT A. RICE, JR., MMO EVOLUTION 1–8 (2006); JASON 

RUTTER & JO BRYCE, UNDERSTANDING DIGITAL GAMES 172–73 (2006). 

41 

WILLIAMS, supra note 5, at 5. 

42 Id.


graphical window allows the player to see herself as an avatar, a threedimensional 

persona with particular physical traits chosen by the player. 43 

Through a series of commands, the player can make this avatar explore areas, 

join a group of players on quests (typically to exterminate monsters), or 

perform more menial tasks, such as cooking, harvesting, fishing, mining, or 

sewing. 44 In many new games, technology advancements have improved 

player control: in these games, players can design and live within their own 

homes, ride their own customized horses, and even take boats to other 

continents populated by different races. 45 

Players’ increased control 46 over avatars and virtual goods has had both 

positive and negative consequences. Players now can exchange virtual goods 

as gifts and even sell their items both within and outside the game. 47 However, 

this increase in control over avatars and virtual goods has opened up the 

opportunity for virtual theft. 

There are various ways that a thief can steal a MMORPG virtual good. 

Inside the game, a player may be vulnerable to theft when, upon finding a 

valuable item, she realizes her bags are full and she cannot carry any more 

goods. Faced with this dilemma, she might ask one of her party members 48 to 

hold the newly discovered item while she discards less-valuable goods to make 

room in her bags. But an unscrupulous party member might embezzle the item 

instead of holding on to it, either for his own use or to sell it for profit. 

43 Id. 

44 Meehan, supra note 8, at 1–2. 

45 See, e.g., Vanguard: Saga of Heroes, http://www.joinvanguard.com/ (last visited Mar. 2, 2007); World 

of Warcraft, http://www.worldofwarcraft.com/index.xml (last visited Mar. 3, 2008). 

46 Video game players can choose to play one of two types of MMORPGs: “crowdsourcing” MMORPGs 

and “controlled” MMORPGs. Jeff Howe, The Rise of Crowdsourcing, WIRED, June 14, 2006, http://www. 

wired.com/wired/archive/14.06/crowds.html (coining the phrase “crowdsourcing”). In crowdsourcing 

MMORPGs, developers, like Linden Labs of Second Life, delegate responsibility to their users, instead of 

hiring professional help, to develop some of the game’s content, quests, and virtual goods. Gwyn’s Home, 

http://gwynethllewelyn.net/article76visual1layout1.html (July 22, 2006, 9:20 EST). In contrast, in controlled 

MMORPGs, such as World of Warcraft and EverQuest, the developer creates all of the game’s content. 

Nonetheless, a player can still utilize the developer’s content to customize her avatars, homes, and accessories 

to fit her personality and needs. This Comment treats virtual goods from crowdsourcing and controlled 

MMORPGs equally. 

47 In 2004, analysts valued the market for buying and selling virtual goods at $880 million dollars. Jason 

A. Archinaco, Virtual Worlds, Real Damages: The Odd Case of American Hero, The Greatest Horse that May 

Have Lived, 11 GAMING L. REV. 21, 25 (2007). 

48 F. Gregory Lastowka & Dan Hunter, The Laws of Virtual Worlds, 92 CAL. L. REV. 1, 26–27 (2004) 

(defining party membership and guild formation in MMORPGs).


Players also use deceit to steal virtual goods. 49 A thief may offer to trade 

virtual goods with an unsuspecting victim and then trick the victim in to 

leaving the item unattended. 50 Thereafter, the thief walks away with the 

victim’s virtual good, without ever giving the victim something in exchange. 51 

In rarer instances, deceit gives way to robbery: one player might use an 

unbeatable bot—a type of computer program executed to perform automated 

tasks—to beat up other players’ characters to acquire their goods. 52 

Outside the actual game world, hackers resort to phishing 53 scams to obtain 

a video gamer’s login data. 54 In this type of scam, hackers send an e-mail to a 

video gamer typically stating that (1) the video gamer’s account has been 

suspended due to unusual activity and (2) the video gamer must click on the 

enclosed link to regain access. 55 Once the unsuspecting gamer clicks on the 

link, the hackers have access to the login information (which is required to sign 

in to the account) and can grab all virtual items of value in the account. 56 

Similarly, some hackers embed hacking programs into websites that secretly 

infect the computer of an Internet user when she visits these websites. 57 These 

programs then find that user’s login names and passwords for various 

MMORPGs and send this information back to the hacker via e-mail. 58 

49 Posting of Darnoc to http://forums.diabloii.net/showthread.php?t=388625 (Sept. 21, 2005, 21:00 EST). 

The most common theft by deceit scams include: (1) “Trade Window Switch,” where the thief attempts to pass 

a valueless item as valuable only because it is graphically similar to a valuable item; (2) “Anni Scam (muling 

scam),” which can occur only when the items cannot be traded through a trade window, but instead must be 

dropped on the ground and left for anyone to pick up; (3) “Guess Who Scams,” where the thief pretends to 

know the player (or makes an account name similar to one of the player’s friend accounts) only to ask for an 

item loan; and (4) the “Item Switch Scam,” where the player, after a trade, receives an item less valuable than 

she anticipated. Id. 

50 Id. 

51 Id. 

52 Posting of Jenifer Guevin to BLOGMA, http://news.com.com/2061-11199_3-5840514.html (Aug. 20, 

2005, 10:00 PDT). 

53 “Phishing victims are typically sent [a] fraudulent e-mail designed to trick them into revealing personal 

information, like bank account numbers, user names, and passwords.” Ruth Hill Bro, A Global View: U.S. and 

E.U. Approaches to Data Privacy, 878 PRACTICING L. INST. 471, 483 (2006). 

54 Phishing scams can also occur inside the MMORPG virtual world. See Posting of Darnoc, supra note 

49 (describing how MMORPG players, through various deceit techniques, can convince a player to disclose 

her account name and password). 

55 Terdiman, supra note 18; see also Christophe Kagotani, Japan: MMOG Crime Rising, NEXT 

GENERATION: INTERACTIVE ENT. TODAY (Sept. 7, 2005), http://www.next-gen.biz/index.php?option=com_ 

content&task=view&id=974&Itemid=2. 

56 Kagotani, supra note 55. 

57 GameShout.com, Chinese Video Gamers Involved in Mass Theft, Feb. 21, 2006, http://www. 

gameshout.com/news/022006/article3303.htm. 

58 A phishing scam victim writes:


Thereafter, the hacker can use the victim’s information to log into her account 

and transfer all of her virtual goods to his own account. 59 

As described above, thieves can steal virtual goods both from within and 

outside an MMORPG. 60 These virtual good thefts can involve 

embezzlement, 61 deceit, 62 or hacking scams. 63 Given that thirteen million 

people subscribe to some form of MMORPG and are vulnerable to virtual 

theft, 64 it is imperative to analyze whether the theft of virtual goods should be 

legally cognizable theft. 

II. THE THEFT OF VIRTUAL GOODS SHOULD BE LEGALLY COGNIZABLE 

THEFT 

The theft of virtual goods in MMORPGs has received very little academic 

attention, despite its increasing frequency. 65 The fact that United States courts 

still have not determined whether to protect virtual goods through current theft 

statutes could explain the lack of scholarly development in this field. 66 This 

Comment serves to fill this gap in the legal scholarship and answer the 

question: should the theft of virtual goods be legally cognizable theft? 

Scholars seem hesitant to allow criminal law doctrines to regulate crimes 

within MMORPGs. In particular, commentators posit that confusion and 

category mistake is inevitable, rendering the application of criminal laws to 

For sure there was a Trojan on my system. My WoW account password was changed. After 

phoning Blizzard to reset it, I was able to log in. All my characters were standing around naked 

in front of a mailbox with everything sell-able gone. A backpack with a hearthstone was all that 

was left. I had less than a newbie. 

Posting of Whatever to http://www.cosmosui.org/showthread.php?t=56006&page=2 (Feb. 4, 2007, 8:14 EST). 

59 Id. 





64 See Woodcock, supra note 37. 

65 


66 See Lastowka & Hunter, supra note 24, at 315 (noting that “time will tell” whether U.S. courts will 

acknowledge virtual crime). But see Game On, THE HOLLYWOOD REP., ESQ., June 26–July 29, 2007, at 1, 9 

(noting that Judge Richard A. Posner recently created an avatar in Second Life, demonstrating that some courts 

are aware of the existence and relevance of these virtual worlds).


virtual thefts inefficient and pointless. 67 In essence, these critics contend that it 

will be too difficult to apply criminal law to virtual thefts. 68 This Comment 

demonstrates how the current United States legal system could classify the 

theft of virtual goods as legally cognizable theft without implicating these 

concerns. In addressing this point, this Comment considers (1) whether virtual 

goods can be considered property; (2) if virtual goods are property, what 

property rights video gamers require to protect such goods from theft; and (3) 

whether existing legal provisions are sufficient to protect the theft of virtual 

goods or whether new provisions are required. 

A. Are Virtual Goods Property? 

Determining whether property rights exist in virtual goods first requires an 

analysis of the term “property.” Opponents of regulating the theft of virtual 

goods argue that virtual goods are not property because these goods are 

“simply ‘piles of data’ that ha[ve] no real-world value.” 69 They posit that 

much computer code is not property because it is non-rivalrous—that is, one 

person’s use of the code does not limit another person’s use of the same code. 70 

If virtual goods are not considered property, a discussion about whether the 

theft of these goods should be regulated becomes meaningless. 

While the government cannot deprive a person “of life, liberty, or property, 

without due process of law” under the Fifth 71 and Fourteenth Amendments, 72 

the definition of what constitutes property generally is left to the states. 73 Still, 

courts can reinterpret state definitions of property if those definitions 

contradict the Constitution or society’s demands. 74 Thus, property tends to be 

an amalgam of three definitional sources: common law doctrines, statutes, and 

custom and practice. 

67 Ren Reynolds, Commodification of Identity in Online Communities 19 (Oct. 18, 2003) (unpublished 

manuscript written for the Association of Internet Researchers Conference), available at http://www.renreynolds.com/downloads/RReynolds_AoIR_2003.doc. 

68 Lastowka & Hunter, supra note 24, at 302. 

69 Jay Lyman, Gamer Wins Lawsuit in Chinese Court over Stolen Virtual Winnings, 

TECHNEWSWORLD.COM, Dec. 19, 2003, http://www.technewsworld.com/story/32441.html. 

70 Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. REV. 1047, 1048–49 (2005). 

71 U.S. CONST. amend. V. 

72 Id. amend. XIV, § 1. 

73 Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972); Michelle B. Bray, Personalizing Property: Toward 

a Property Right in Human Bodies, 69 TEX. L. REV. 209, 221 (1990). 

74 Id.


1. Defining Virtual Goods as Property Through Common Law Doctrines: 

Cases Concerning MMORPGs 

Federal and state courts in the United States have yet to determine whether 

MMORPG virtual goods are property, and if so, what type. Although state 

courts have had the opportunity to determine virtual property’s fate twice thus 

far, virtual property remains undefined as a result of procedural complications. 

The first opportunity arose in 2002, when a plaintiff filed suit over players’ 

rights to sell virtual property—such as armor and weapons—acquired in an 

online game. 75 In BlackSnow Interactive v. Mythic Entertainment, Inc., the 

plaintiff hired workers to play Mythic Entertainment Inc.’s virtual game to 

obtain virtual goods to later resell to other players, and sought to affirm, 

through the lawsuit, his right to sell his virtual property. 76 The court, however, 

never ruled on this claim because the lawsuit was withdrawn pursuant to a 

clause in the End-User Agreement requiring players to arbitrate all disputes. 77 

More recently, in Bragg v. Linden Research, Inc., 78 a former video game 

player sued Second Life for conversion, fraud, unjust enrichment, and breach 

of contract. Linden Research allegedly seized Bragg’s virtual plot of land and 

video-game account because he bought an unused parcel of land by starting an 

unauthorized auction. 79 This case is currently pending, but its outcome could 

potentially advance current legal understanding on virtual property. 

2. Defining Virtual Goods as Property Through Common Law Doctrines: 

Cases Concerning Intangible Property in General 

Although federal and state courts have not explicitly determined whether 

virtual goods in MMORPGs constitute property within criminal law, state 

courts have considered whether intangible property in general is protectable 

75 BlackSnow Interactive v. Mythic Entertainment, Inc., No. 02-00112 (C.D. Cal. filed 2002); see also 

Sheri Qualters, A Suit over Land that Exists in a Computer, NAT’L L.J., Oct. 23, 2006, at 6. 

76 Qualters, supra note 75. 

77 Blacksnow Interactive: The Documents, VIRTUAL ECON. RES. NETWORK, http://virtual-economy.org/ 

blog/blacksnow_interactive_the_docu (last visited Mar. 3, 2007). Other scholars claim that Blacksnow 

Interactive did not have the funding to see the case through. See Matthew Lee, Online Role Play Games—The 

Legal Response, 4 HERTFORDSHIRE L.J. 72, 74 (2006). 

78 Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007). 

79 Qualters, supra note 75. Linden Labs claims that Bragg exploited a vulnerability in the game. Id.


under tort law doctrines. 80 State courts across the various jurisdictions treat the 

protection of intangible goods differently. 81 

Aside from those jurisdictions that either protect all intangible property 82 or 

none at all, 83 a jurisdiction’s willingness to protect intangible property under 

the doctrine of conversion appears to hinge on that jurisdiction’s definition of 

the merger doctrine. 84 Generally, courts find merger when intangible property 

rights merge into a document that effectively represents these rights. 85 If the 

intangible property merges into this document, most jurisdictions are willing to 

protect this intangible property. 86 

To make the concept of merger operational, the Ninth Circuit in Kremen v. 

Cohen 87 developed a three-pronged merger test: “First, there must be an 

interest capable of precise definition; second, it must be capable of exclusive 

possession or control; and third, the putative owner must have established a 

legitimate claim to exclusivity.” 88 Using that test, the Kremen court held that 

“electronic documents will suffice for the merger doctrine.” 89 Scholars now 

argue that other jurisdictions should follow Kremen’s merger test to “allow 

conversion to continue on its expansive path and allow electronic and digital 

‘documents’ to satisfy any common-law-imposed merger requirement or proof 

of right to possession.” 90 Although no jurisdiction has gone as far as the Ninth 

Circuit, various jurisdictions have adopted some form of the Kremen test. 91 

80 Allen Chein, A Practical Look at Virtual Property, 80 ST. JOHN’S L. REV. 1059, 1073–76 (2006). 

81 See infra notes 82−86 and accompanying text. 

82 Jurisdictions in this category include Alabama, Arkansas, California, the District of Columbia, Florida, 

Indiana, Maine, Massachusetts, Nebraska, and Pennsylvania. Courtney W. Franks, Comment, Analyzing the 

Urge to Merge: Conversion of Intangible Property and the Merger Doctrine in the Wake of Kremen v. Cohen, 

42 HOUS. L. REV. 489, 517 n.197 (2005). 

83 States in this category are Oklahoma, Nevada, and Tennessee. Id. at 522 n.233. 

84 These states include Ohio, Maryland, Missouri, Virginia, Connecticut, New York, Minnesota, Rhode 

Island, Colorado, Michigan, Georgia, Iowa, Illinois, and Pennsylvania. Id. at 519 n.205, 520 n.217. 

85 

RESTATEMENT (SECOND) OF TORTS § 242 (1965). Jurisdictions vary on the definition of merger. See 

Franks, supra note 82, at 518–21. 

86 See RESTATEMENT (SECOND) OF TORTS § 242, supra note 85. 

87 337 F.3d 1024 (9th Cir. 2003) (holding that intangible property, such as a domain name, is a form of 

property, subject to conversion). 

88 Id. at 1030 (quoting G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 903 

(9th Cir. 1992)). 

89 Franks, supra note 82, at 519 (citing Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003)). 

90 Id. at 493. 

91 Id. at 518–21. These jurisdictions have adopted one of four approaches: (1) those that find that the 

merger doctrine can be “satisfied by any media,” such as Missouri, see Lucas v. Lucas, 946 F.2d 1318, 1323– 

24 (8th Cir. 1991), Maryland, see Allied Inv. Corp. v. Jasen, 731 A.2d 957, 965 (Md. 1999), and New York, 

see Astroworks, Inc. v. Astroexhibit, Inc., 257 F. Supp. 2d 609 (S.D.N.Y. 2003); (2) those that “require


Outside of those jurisdictions that do not allow conversion protection for 

intangible property, it appears that virtual goods in MMORPGs could be 

defined as protectable property, even in jurisdictions with merger 

requirements. First, virtual goods can be precisely defined. 92 Second, virtual 

goods are capable of exclusive possession or control. 93 And third, a putative 

owner can establish a legitimate claim to exclusivity. 94 If virtual goods of 

MMORPGs are protectable as property under the common law of tort, 95 then 

virtual goods should be protectable under the parallel criminal law system, as 

long as virtual goods fit within “property” as defined in penal code statutes. 

3. Defining Virtual Goods as Property Under the Model Penal Code and 

State Penal Codes 

The American Law Institute’s completion of the Model Penal Code (MPC) 

in 1962 had a substantial impact on the American criminal law system. 96 Two 

decades after the publication of the MPC, “more than two-thirds of the states 

undertook to enact new codifications of their criminal law, and virtually all of 

those used the [MPC] as a starting point.” 97 Thus, this Comment utilizes the 

some . . . connection between the right and something tangible to represent it—the document need not embody 

the right itself,” such as Illinois, see Conant v. Karris, 520 N.E.2d 757, 763 (Ill. App. Ct. 1987), Pennsylvania, 

see Umbenhauer v. Woog, No. CIV. A. 90-5534, 1993 WL 134761, at *4 (E.D. Pa. Apr. 28, 1993), and 

Delaware, see Res. Ventures, Inc. v. Res. Mgmt. Int’l, Inc., 42 F. Supp. 2d 423, 439 (D. Del. 1999); (3) those 

that require “the intangible rights be merged into or identified with the tangible document that evidences title,” 

such as Virginia, see United Leasing Corp. v. Thrift Ins. Corp., 440 S.E.2d 902, 906 (Va. 1994), Connecticut, 

see Holmes v. Golub, No. 50 49 31, 1991 WL 188668, at *1–3 (Conn. Super. Ct. Sept. 13, 1991), Minnesota, 

see Calabrese Found., Inc. v. Inv. Advisors, Inc., 831 F. Supp. 1507, 1515 (D. Colo. 1993) (applying 

Minnesota law), Rhode Island, see Montecalvo v. Mandarelli, 682 A.2d 918, 929 (R.I. 1996), Colorado, see 

Univ. of Colo. Found., Inc. v. Am. Cyanamid, 880 F. Supp. 1387, 1394–95 (D. Colo. 1995), aff’d in part and 

vacated in part on other grounds, 196 F.3d 1366 (Fed. Cir. 1999), Michigan, see Big Time Worldwide Concert 

& Sport Club, LLC v. Marriott Int’l, Inc., 236 F. Supp. 2d 791, 806–07 (E.D. Mich. 2003), Georgia, see 

Decatur Auto Ctr. v. Wachovia Bank, N.A., 583 S.E.2d 6, 7–9 (Ga. 2003), and Iowa, see Pioneer Hi-Bred 

Int’l, Inc. v. Holden Found. Seeds, Inc., Civ. No. 81-60-E, 1987 WL 341211, at *33–36 (S.D. Iowa Oct. 30, 

1987); and (4) those that require “the actual document embodying the rights be converted,” such as Texas, see 

Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 901 (Tex. App. 2001). Id. 

92 See supra notes 9–13 and accompanying text. 


94 However, whether the player or the MMORPG publisher is the legitimate virtual good owner under 

current contracts is still subject to debate. See generally Theodore J. Westbrook, Note, Owned: Finding a 

Place for Virtual World Property Rights, 2006 MICH. ST. L. REV. 779, 803–04; see also generally infra notes 

194–219 and accompanying text. 


96 Gerard E. Lynch, Towards a Model Penal Code, Second (Federal?): The Challenge of the Special 

Part, 2 BUFF. CRIM. L. REV. 297, 297 (1998). 

97 Id. at 297.


language of the MPC to determine whether virtual goods could be properly 

protected under state penal codes and criminal law doctrines embedded therein. 

Property is defined in the MPC as “anything of value, including . . . 

tangible or intangible personal property.” 98 The MPC Commentary, clarifying 

this definition, characterizes property as “anything that is part of one person’s 

wealth and that another person can appropriate.” 99 Under this definition, 

virtual goods in online video games are protectable property because they 

possess value (as determined by external markets such as eBay), are intangible 

personal property, and can be appropriated by another person. 

Originally, only tangible property was subject to criminal theft under the 

common law. 100 But recent state criminal statutes, modeled after the MPC, 

define property as “anything of value,” including both tangible and intangible 

property. 101 

In interpreting these statues, courts, for the most part, have found that 

computer code, although intangible, is of value and thus subject to theft 

statutes. 102 In Hancock v. State, for example, a Texas appellate court held that 

codes of computer programs were subject to theft because, under the Texas 

theft statute, “‘property,’ as used in relation to the crime of theft, includes . . . 

all writings of every description, provided such property possesses any 

ascertainable value.” 103 Intangible virtual goods fit nicely within the Hancock 

classification of property because they consist of computer code. Thus, under 

that premise, intangible virtual goods should be protected under state theft 

98 MODEL PENAL CODE § 223.0(6) (2006) (emphasis added). 

99 MODEL PENAL CODE COMMENTS § 223.2 cmt., at 167 (1985). 

100 Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of 

Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L.J. 167, 210 (2002). 

101 Franks, supra note 82, at 503 n.99. According to Franks, the following penal statutes classify property 

as “anything of value,” even if intangible: ALA. CODE § 13A-8-1(10) (1994); ARIZ. REV. STAT. ANN. § 13- 

1801(A)(12) (West 2001); ARK. CODE ANN. § 5-36-101(7) (Michie Supp. 2003); FLA. STAT. ANN. 

§ 812.012(4)(b) (West Supp. 2005); IND. CODE ANN. § 35-41-1-23(a)(1) to (3) (Michie 1998); KAN. STAT. 

ANN. § 21-3110(16) (1995); ME. REV. STAT. ANN. tit. 17-A § 352(1)(B) (West 1983); MO. ANN. STAT. 

§§ 556.063(13), 570.010(10); MONT. CODE ANN. § 45-2-101(60)(k) (2003); NEB. REV. STAT. § 28-509(5) 

(1995); N.H. REV. STAT. ANN. § 637:2(I) (1996); N.J. STAT. ANN. § 2C:20-1(g) (West Supp. 2004); N.M. 

STAT. ANN. § 30-1-12(F) (Michie 2004); OR. REV. STAT. § 164.005(5) (2003); 18 PA. CONS. STAT. ANN. 

§ 3901 (West 1983); S.D. CODIFIED LAWS § 22-1-2(35) (Michie Supp. 2003); TENN. CODE ANN. § 39-11- 

106(a)(28) (2003); TEX. PENAL CODE ANN. § 31.01(5)(B) (Vernon Supp. 2004–2005); UTAH CODE ANN. § 76- 

6-401(1) (2003); and WYO. STAT. ANN. § 6-1-104(a)(viii) (Michie 2003). Id. 

102 See, e.g., Hancock v. State, 402 S.W.2d 906, 908 (Tex. Crim. App. 1966). 

103 Id. (citing TEX. PENAL CODE ANN. tit. 17, ch. 8, art. 1418).


statutes that include computer code and other forms of intangible property 

within their definition of property that can be stolen. 

4. Defining Virtual Goods as Property Through Custom and Practice 

Scholars disagree, however, on whether custom and practice requires 

defining virtual goods as protectable property. Specifically, one might argue 

that not everything that is of value can be protected against theft. Thus, 

although a child can be stolen away from his parents and one’s sense of safety 

can be stolen by terrorists (both of which have value), neither the child nor 

one’s sense of safety can be classified as the sort of property that is protected 

by theft statutes. 104 Although that is a valid point in those instances, virtual 

goods are produced specifically for use, whereas children and safety are not. 

Thus, many scholars argue that theft protects only that which is 

“commodifiable”—that is, the thing stolen must be the sort of thing that can be 

bought or sold. 105 Yet, even under this modified definition of property, virtual 

goods within MMORPGs should still be considered property because virtual 

goods are bought and sold through auction and Internet sites. 

Still, one might claim that “the criminal law forum is an inadequate one in 

which to consider the policy implications of creating property rights in 

information,” because intangible property is amorphous. 106 In other words, 

because intangible property cannot be classified as a chattel, it should not be 

subject to property protection. 107 Using an example in which a neighbor copies 

a recipe, one scholar contends that intangible property should not be subject to 

criminal theft statutes because (1) theft of intangible property does not deny 

the plaintiff the right to possess, use, and enjoy the res—that is, although the 

plaintiff may lose her exclusive right, she may still continue to use the recipe, 

and may even sell the recipe, though at a lower value; and (2) theft of 

intangible property only causes damage to the value of the property but does 

not deny the plaintiff actual possession and use of the property. 108 

104 Green, supra note 100, at 216. Stealing a child from his parents is prohibited under kidnapping, a 

different statute. See 18 U.S.C. §§ 1201, 1203 (2006). 

105 Green, supra note 100, at 217. 

106 Geraldine Szott Moohr, Federal Criminal Fraud and the Development of Intangible Property Rights in 

Information, 2000 U. ILL. L. REV. 683, 686. 

107 Id.; see also BLACK’S LAW DICTIONARY 251 (8th ed. 2004) (defining chattel as “[m]ovable or 

transferable property; personal property”). 

108 Moohr, supra note 106, at 692–93.


These observations, though correct when applied to “information,” do not 

apply well to intangible virtual goods of MMORPGs. When a sword in an 

MMORPG is stolen, the owner can no longer use, possess, or enjoy the sword. 

Moreover, the damage caused by the theft of the virtual sword in an 

MMORPG is not limited to the loss of the value of the virtual good itself—the 

player is deprived of both the benefits of using the virtual sword within the 

game and the resale value of the sword, if she desires to sell it. 

These observations demonstrate that custom and practice would define 

virtual goods as a form of property that merits protection under current penal 

statutes. But if virtual goods are ever to be recognized as the type of property 

that should be protected from theft, society must be convinced that virtual 

goods in MMORPGs deserve the property rights typically given to chattels 

rather than those associated with intellectual property, as the former receives 

protection under U.S. law more suitable to protect property from theft. 

B. Property Rights Are Needed to Protect Virtual Goods from Theft 

Most scholars assume that virtual goods are the subject of intellectual 

property, rather than personal property. 109 Yet, as this Comment demonstrates: 

(1) virtual goods more closely resemble chattels than intellectual property; and 

(2) only rights inherent to chattels can properly protect virtual goods from 

theft. 

1. Virtual Goods Possess the Characteristics of Chattel Property 

Virtual goods more closely resemble chattels 110 than ideas. 111 Virtual 

goods fit the five characteristics of chattel property: the abilities to (1) possess; 

(2) use; (3) enjoy; (4) transfer; and (5) exclude others (also defined as 

“rivalrousness”). 112 If a player possesses a particular virtual good, other people 

109 Andrew D. Schwarz & Robert Bullis, Rivalrous Consumption and the Boundaries of Copyright Law: 

Intellectual Property Lessons from Online Games, 10 INTELL. PROP. L. BULL. 13, 18 (2005). “Scholars, such 

as Greg Lastowka, Dan Hunter, Molly Stephens, and Joshua Fairfield have begun discussing the concept of 

intellectual property . . . rights in a world in which a company creates every item, but then allows for in-game 

commercial activity.” Id.; see also Fairfield, supra note 70, at 1096–97; Lastowka & Hunter, supra note 48, at 

40–42; Molly Stephens, Note, Sales of In-Game Assets: An Illustration of the Continuing Failure of 

Intellectual Property Law to Protect Digital-Content Creators, 80 TEX. L. REV. 1513, 1519–28 (2002). 

110 See supra note 107. 

111 Cf. BLACK’S LAW DICTIONARY 761 (8th ed. 2004) (defining “idea-expression dichotomy”). 

112 See Pamela Samuelson, Information as Property: Do Ruckelshaus and Carpenter Signal a Changing 

Direction in Intellectual Property Law?, 38 CATH. U. L. REV. 365, 370 (1989); see also Fairfield, supra note 

70, at 1053.


do not possess that same good. 113 If one person uses or enjoys a virtual good, 

other players cannot use or enjoy it simultaneously. A person can certainly 

transfer virtual goods to other players. Finally, a person can exclude others 

from using her virtual goods. 

Virtual property also resembles chattels more closely than intellectual 

property on the dimensions of persistence and interconnectivity. Like personal 

property, virtual goods in MMORPGs are persistent—that is, they “do[] not 

fade after each use, and [they] do[] not run on one single computer.” 114 And 

like chattels, virtual goods in MMORPGs are interconnected, “although one 

person may control [them], others may experience [them].” 115 

Given that virtual goods “share every relevant attribute of physical 

property, [although] they are not really physical,” 116 it is unclear why scholars 

insist on characterizing virtual goods as intellectual property on the basis of 

mere intangibility. Instead, “the same framework that adjudicates the rights of 

those who want to sell used books, used cars, and used compact discs, [should 

be] used [for] digital swords.” 117 

2. Only the Property Rights Inherent to Chattels Can Protect Virtual Goods 

from Theft 

Why is it important to classify virtual goods as personal property as 

opposed to intellectual property? Intellectual property, specifically copyright 

as it would apply to virtual goods, only protects the author’s expression of his 

ideas, because it grants the author specific rights in his expression. 118 The right 

113 The ability to replicate virtual goods in MMORPGs does not diminish their possessive quality. Copies 

of virtual goods are available in MMORPGs. For example, two or more people can own the “Fungus Covered 

Scale Tunic” at any point in time in EverQuest. Yet, in real life, two or more people can also own a Ralph 

Lauren shirt. The ability to replicate the Ralph Lauren shirt does not diminish its possessive characteristic. 

114 Fairfield, supra note 70, at 1054. 

115 Id.; see also Charles Blazer, Note, The Five Indicia of Virtual Property, 5 PIERCE L. REV. 137, 141 

(2006) (“[T]he presence of secondary markets and value-added-by-users may serve as additional indicia of a 

virtual property interest worthy of legal protection.”). 

116 Schwarz, supra note 109, at 24. 

117 Id. But see Erez Reuveni, On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual 

Age, 82 IND. L.J. 261, 261 (2007) (arguing “that copyright law can and should apply to artistic and literary 

creations occurring entirely in virtual worlds”); W. Joss Nichols, Painting Through Pixels: The Case for a 

Copyright in Videogame Play, 30 COLUM. J.L. & ARTS 101, 130 (2007) (arguing that video game play 

warrants copyright protection). 

118 See Susan A. Dunn, Defining the Scope of Copyright Protection for Computer Software, 38 STAN. L. 

REV. 497, 518 (1986).


of possession is not protected through intellectual property. 119 Yet the right of 

possession, as it pertains to virtual goods in MMORPGs, is critical to protect 

such virtual goods against theft. 

What constitutes personal property depends largely on the rights that attach 

to the item in question. There are various rights that may be attributed to 

chattels: (1) right to possess and own; (2) right to use; (3) right to manage how 

and by whom the property will be used; (4) right to income and profits 

generated by the property; (5) right to capital—that is, the right to alienate, 

consume, waste or destroy; (6) right to security—that is, immunity from 

involuntary transfer and expropriation; (7) right to transfer without limitation; 

(8) right to no durational limit to interest in property; and (9) right to any 

residuary interests emerging from the property. 120 In contrast, copyright law 

conveys the rights to: (1) adaptation; (2) distribution; (3) display; (4) 

reproduction; and (5) performance. 121 

The property rights to possess, use, enjoy, transfer, and exclude are exactly 

the sorts of protections that video gamers require to secure their virtual goods 

from theft. Yet, intellectual property cannot secure these rights for virtual 

goods. 122 Instead, theft statutes 123 protect against interferences with use, 

enjoyment, and possession. 124 Once virtual goods are classified as personal 

property and video-game players are granted the right to use, possess, enjoy, 

and exclude others from the use of such virtual goods, then, and only then, will 

current theft statutes satisfactorily protect video gamers from the theft of their 

virtual goods. 

119 Green, supra note 100, at 215–16 (2002) (asserting that “[c]opyright . . . is intended to provide 

economic incentives to create information and a shelter to develop and protect it, and it is limited in time and 

scope by doctrines such as idea/expression, originality, and fair use”). 

120 See Samuelson, supra note 112, at 370; see also Timothy P. Terrell, ‘Property,’ ‘Due Process,’ and 

the Distinction Between Definition and Theory in Legal Analysis, 70 GEO. L.J. 861, 869–70 (1982). Terrell 

limits the scope of property rights, arguing that property rights cannot be used in a manner harmful to others 

and that the property owner is still subject to liability due to insolvency, taxes, and eminent domain. Id. 

121 Peter K. Yu, Intellectual Property and the Information Ecosystem, 2005 MICH. ST. L. REV 1, 16–17. 

122 Cf. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual 

Community, 30 WAKE FOREST L. REV. 197, 214 (1995) (“The Court rejected the government’s theory that 

equated copyright infringement with the ‘theft, conversion, or fraud’ element, noting that the interests of those 

who own physical goods are distinct from the interests of copyright owners.”) (citing Dowling v. United 

States, 473 U.S. 207, 220–21 (1985)). 

123 Cf. Green, supra note 100, at 215–16 (demonstrating that theft protects thick rights). 

124 Cf. Louis B. Schwartz & Dan M. Kahan, 4 ENCYCLOPEDIA OF CRIME AND JUSTICE Theft 1556 (Joshua 

Dressler ed., 2d ed. 2002) (explaining that the purpose of theft law is to promote property security).


C. Existing Criminal Legal Provisions Governing Property Are Sufficient to 

Regulate the Theft of Virtual Goods. 

A number of current statutory provisions recognize the theft of a virtual 

item as legally cognizable theft. This section discusses the various current 

statutory provisions that might be relevant or useful. First, this Comment 

looks at specific provisions to determine whether the theft of virtual goods 

could be regulated through these existing provisions. Then, this Comment 

tackles the unique issues that arise when trying to apply any of these model 

and penal statutes to virtual goods, such as jurisdiction, identification, 

transactional costs, contractual barriers, and privacy concerns. 

1. The Applicability of Current Statutory Provisions 

Having determined that virtual goods are protectable property and should 

be granted certain property rights, this Comment now attempts to fit the theft 

of these virtual goods within the following theft provisions as provided by the 

MPC: unlawful taking, theft by deception, and embezzlement. Although each 

state has different theft statutes, many states have modeled sections of their 

penal codes on the MPC. 125 Thus, this Comment limits its analysis to the 

language of the MPC for the sake of clarity and efficiency. 126 

a. Unlawful Taking or Disposition 

Under the MPC, a person is guilty of theft by unlawful taking or 

disposition if “he unlawfully takes, or exercises unlawful control over, 

movable property of another with purpose to deprive him thereof.” 127 

Theoretically, this definition would fit the theft of virtual goods through 

phishing scams, where the hacker unlawfully takes or exercises unlawful 

control over the virtual goods of another with the purpose of depriving the 

lawful owner of his virtual good. This definition would also criminalize the 

actions of a person who uses an unbeatable bot 128 to extract property from 

others, 129 considering that the person using the bot is unlawfully taking or 

125 Lynch, supra note 96, at 297. 

126 For an explanation of the MPC’s definition of property, see supra text accompanying notes 97–101. 

127 

MODEL PENAL CODE § 223.2(1) (2006). 

128 See supra text accompanying note 52. 

129 It might be possible to argue that because force is used in this situation, robbery, instead of theft, has 

occurred. See State v. Smalls, 708 A.2d 737 (N.J. Super. Ct. App. Div. 1998) (finding that crime of theft 

becomes robbery, in part, when defendant inflicts bodily injury or uses force upon another in course of


exercising unlawful control over the virtual goods of another with the purpose 

of depriving the lawful owner of his virtual good. 

Defense attorneys, however, may question whether thefts of virtual goods 

constitute an “unlawful taking,” because unlawful taking requires the 

prosecution to prove four elements. 130 First, under this statute, the thing stolen 

must be something of value. 131 This requirement could become problematic in 

the virtual-goods context because virtual goods do not obtain pecuniary value 

until they are sold through secondary markets, like eBay. 132 If a defendant 

were caught stealing a good that had never been sold previously in a secondary 

market (to set a numerical dollar precedent), the prosecutor may have difficulty 

demonstrating that virtual good’s actual value. 133 

Valuation is a low hurdle for the prosecution. For example, courts have 

found that the time spent using a computer was of value, “sufficient upon 

which to predicate a legally sufficient indictment” for theft. 134 Time as a 

commodity is considerably less tangible than virtual goods, yet the court still 

applies the traditional law of theft to virtual goods. 135 Moreover, states could 

use an expert to overcome this hurdle; 136 the expert could use various valuation 

models to determine the virtual good’s value. 137 

Second, an “unlawful taking” requires that the person actually “takes” or 

“exercises control” over the stolen good. 138 The term “exercises unlawful 

control” over property refers to the moment when the criminal video-game 

committing theft). However, applying robbery to the bot situation is difficult because the bot applies force to 

the video game character, rather to than the video game player. 

130 

MODEL PENAL CODE § 223.2(1). 


132 The MPC, in defining theft, asserts that theft constitutes (a) a felony if the amount involved exceeds 

$500.00; (b) a misdemeanor if the amount involved is $500 or less; or (c) a petty misdemeanor if the amount 

involved is less than $50, unless taken from the person, or by threat, or by breach of fiduciary obligation. 

MODEL PENAL CODE § 223.1(2). 

133 David Rubenstein, eBay: The Cyber Swap Meet, 13 U. MIAMI BUS. L. REV. 1, 10–14 (2004). 

134 United States v. Sampson, 6 Computer L. Serv. Rep. 879, 880 (N.D. Cal. 1978). 

135 Joseph M. Olivenbaum, : Rethinking Federal Computer Crime Legislation, 27 

SETON HALL L. REV. 574, 639 (1997). 

136 Cf. Linda S. Eads, Adjudication by Ambush: Federal Prosecutors’ Use of Nonscientific Experts in a 

System of Limited Criminal Discovery, 67 N.C. L. REV. 577, 601–02 (1989) (asserting that the federal 

government uses expert testimony in criminal cases to value property); Todd H. Flaming, The National Stolen 

Property Act and Computer Files: A New Form of Property, a New Form of Theft, 1993 U. CHI. L. SCH. 

ROUNDTABLE 255, 288 (noting that courts rely on expert testimony to determine property value). 

137 Cf. Scott A. Nammacher, Financial Valuations for the Practicing Attorney, 1325 PRACTISING L. INST. 

647 (Aug. 2002) (describing the various models experts use to value goods and entities). 

138 

MODEL PENAL CODE § 223.2(1) (2006).


player begins to use the virtual good in a manner beyond his authority. 139 This 

requirement of control could prove problematic, given the intangibility of 

virtual goods. The defendant does not actually exert control over the sword; 

his avatar merely creates the illusion of control. In reality, the only action that 

takes place is the transfer from one player account to another of computer code 

that represents that sword. Moreover, the argument could be made that a 

person never actually controlled the virtual goods, but instead that the avatar 

alone performed the act. 140 

Courts are divided on the issue of whether “intangibles” may be “taken.” 

While one court has held that “where no tangible objects were ever taken or 

transported, a court would be hard pressed to conclude that ‘goods’ had been 

stolen,” 141 many courts are willing to accept that a thing has been taken if the 

rightful owner is denied possession, regardless of tangibility, thus creating the 

presumption that the other party has asserted control over the good. 142 A video 

game player may not physically hold the virtual sword, but his avatar’s actions 

produce the consequences that would be produced by an actual taking: (a) the 

original owner’s avatar no longer can possess or use the virtual sword; and (b) 

the thief’s avatar now possesses and may use the stolen virtual sword. 

Although the person controlling the avatar may not have taken the virtual 

sword per se, the avatar was only able to perform the action per the instruction 

of his master, making the distinction between the actions of the avatar and 

those of the thief irrelevant. 

Third, the statute requires that the virtual good be “carried away”—that is, 

that the property was completely moved (however slightly) from the place it 

was taken. 143 This may present a problem because, although the sword 

graphically moves from one avatar to another, the data entry for the sword 

139 See Green, supra note 100, at 223. 

140 Cf. Adam Faier, Digital Slaves of the Render Farms?: Virtual Actors and Intellectual Property Rights, 

2004 U. ILL. J.L. TECH. & POL’Y 321, 321–22 (arguing that there is a conceptual distinction between the 

actions of avatars and those of video game players). 

141 United States v. Bottone, 365 F.2d 389, 393 (2d Cir. 1966), cert. denied, 385 U.S. 974 (1966). 

142 Cf. People v. Perry, 864 N.E.2d 196, 222 (Ill. 2007) (holding that “the occupancy of a hotel room is 

‘property within the meaning of section 15-1 of the Criminal Code and that the taking of such property . . . can 

result in the owner’s being permanently deprived of its use or benefit’”); Bridgeport Harbor Place I, LLC v. 

Ganim, No. X06CV040184523S, 2006 WL 493352, at *8 (Conn. Super. Feb. 16, 2006) (finding that the 

intangible contractual right to develop property can be taken by theft); Staton Holdings, Inc. v. First Data 

Corp., No. Civ.A.3:04-CV-2321-P, 2005 WL 1164179, at *6 (N.D. Tex. May 11, 2005) (finding that a 

telephone number, though intangible, may be taken, if the rightful owner is deprived of its use). 

143 H.D.W., Annotation, What Amounts to Asportation Which Will Support a Charge of Larceny?, 144 

A.L.R. 1383 (1943) (defining asportation).


remains physically within the programmer’s network server. The only 

difference is that the sword’s computer code is assigned from the rightful 

owner’s account to the thief’s account. 

Nonetheless, the requirement of “carrying away” may be overcome by the 

fact that many courts rely on trespassory taking, which requires mere 

constructive possession rather than the existence of actual movement. 144 For 

example, one court found the act of moving electronic information over a 

telephone wire to be sufficient to constitute a taking. 145 Tangibility, in this 

sense, becomes irrelevant—like information transferred over telephone wires, 

the source code representing the virtual sword has traveled from one video 

game account to another, and for all purposes of the statute, has been taken. 

This leads to the fourth requirement of theft: the state must prove that the 

defendant “unlawfully” intended to deprive the defendant of his property— 

which generally means deprivation without legal right. 146 “The general rule is 

that a defendant is not guilty of larceny (or theft) unless he takes another’s 

property with the [specific] intent to deprive the person permanently of that 

property—an intent referred to at common law as animus furandi (intent to 

deprive).” 147 The intent may be proven by direct or circumstantial evidence— 

such as if the thief is counting on some “reward” or gain by the sale or return 

of the property—and at a minimum, by a substantial risk of permanent loss— 

that is, where the thief plans to eventually return the property, but the risk of 

permanent loss is present. 148 Because MMORPGs are games, it may prove 

hard for the state to demonstrate that the accused actually intended to deprive 

the rightful owner of his property, unless the accused has sold the virtual good 

already. Otherwise, the accused could argue that he took the virtual sword in 

the spirit of role-playing, but that he never intended to permanently deprive the 

original owner of his sword. Moreover, the accused could, utilizing the claimof-right 

defense, 149 assert that he was unaware that the virtual sword was in 

fact owned by the original owner, because the game does not establish clear 

ownership rights. 

144 See 50 AM. JUR. 2D Larceny § 18 (2007). 

145 United States v. Riggs, 739 F. Supp. 414, 420 (N.D. Ill. 1990). 

146 

MODEL PENAL CODE § 223.2(1) (2006). 


148 Cf. John S. Baker, Jr., Criminal Law, 44 LA. L. REV. 279, 282–83 (1983) (stating that prosecutors 

often cannot prove intent through direct evidence, such as a confession, but instead must use circumstantial 

evidence). 

149 See Danielle R. Newton, Comment, What’s Right with a Claim-of-Right, 33 U.S.F. L. REV. 673, 673 

(1999) (defining the claim-of-right defense).


The problem with proving intent may demonstrate the limitations of 

criminal law as a tool to resolve thefts in general, but should not be seen as a 

barrier to the prosecution of virtual good thefts. Defendants tend to make 

similar arguments in regular theft cases, and in such cases, juries are given the 

power to decide the defendant’s credibility. 150 Thus, current unlawful taking 

theft statutes could successfully be used to prosecute virtual good theft 

criminals. 

b. Theft by Deception 

The MPC could also theoretically address the theft of virtual goods where a 

party-member, entrusted to hold an item while another player empties his bags, 

runs off with the item without returning it to the lawful owner. Under the 

MPC, a person is guilty of theft by deception if he purposely “creates or 

reinforces a false impression, including false impressions as to law, value, 

intention, or other state of mind.” 151 In the situation of a party member 

running off with a video gamer’s virtual goods, the party member would be 

guilty of theft by deception if he created the false impression that he intended 

to return the item or that his state of mind was to return the good. Prosecutors 

could also use theft-by-deception statutes to prosecute a thief who used a 

scam 152 to obtain another player’s virtual goods. 

Prosecuting under this statute, the state would need to prove that (1) the 

accused obtained control over the property; (2) by means of a false statement 

or misrepresentation; (3) which deceived the victim; and (4) that the victim in 

whole or in part relied upon the false statement in relinquishing control of the 

property to the accused. 153 Like unlawful-taking statutes, theft-by-deception 

150 Cf. Hossein Nowbar, Admissibility of Prior Theft Convictions to Impeach Criminal Defendants in 

Washington State, 68 WASH. L. REV. 161, 178 (1993) (noting that juries naturally distrust defendants’ selfinterested 

testimony and that the testimony is subject to rigorous testing). While, without a sale, juries might 

be unable to sympathize with the victim (making successful prosecutions less likely), sympathy is not itself an 

element of the crime. 

151 

MODEL PENAL CODE § 223.3(1) (2006) (emphasis added); see Commonwealth v. Patterson, 390 A.2d 

784 (Pa. Super. Ct. 1978) The court found that if defendant stole a key to a safety deposit box from the owner, 

or said that he was taking it in order to make a duplicate for the owner’s use, and then proceeded to steal a 

ruby from the box, that act constituted theft by unlawful taking; if, however, defendant told the owner that he 

wanted to appraise the ruby, or to clean it, and she gave him the key so that he could take possession of the 

ruby, and defendant sold the ruby and kept the proceeds, then deception by which defendant obtained the key 

would be related to bringing about a transfer or purported transfer of legal interest in property and theft by 

deception would be the appropriate charge. Id. 


153 State v. Schultz, 850 P.2d 818, 838 (Kan. 1993).


statutes may create certain application problems when used in the virtual goods 

context, but prosecutors should be able to overcome them. 

First, prosecutors may find it difficult to prove that the thief exerted control 

over the virtual good. After all, because virtual goods are intangible, the 

defendant never actually controls the virtual good; instead, his avatar creates 

the illusion of control. As discussed above, prosecutors can prove that a thief 

exerted control over an intangible good. 154 If a person denies the rightful 

owner of possession of a virtual good, courts perceive the virtual good as taken 

and presume the right of control. 155 Thus, the state should be able to show that 

the virtual good has been taken if the rightful owner no longer possesses the 

good. 

Second, the state may encounter problems demonstrating that the accused 

“creat[ed] or reinforce[ed] a false impression” by affirmatively holding on to a 

virtual good. 156 Deception is a broad term, requiring merely “the 

misrepresentation of some existing fact . . . [as to] law, value, or intention. 

Thus, theft by deception covers almost any type of deceptive practice used to 

obtain possession of another person’s property.” 157 Under this statute, does 

one need to promise to give the virtual good back? Does tacitly accepting the 

good automatically create a false impression, even if one does not explicitly 

promise to give it back? 

In reality, the video-game thief or his avatar may not have to say anything 

at all—in modern criminal law, “various forms of misleading nonverbal 

conduct” can be sufficient to constitute deceit. 158 Thus, circumstantial 

evidence should be sufficient to prove that a “false impression” was created or 

reinforced. 159 

Third, the definition requires the state to prove that the accused “purposely” 

created or reinforced a false impression at the time of inducement. 160 Thus, if 

the accused’s illegitimate purpose formed after he obtained possession of the 


155 See supra text accompanying note 142. 

156 MODEL PENAL CODE § 223.3. 

157 Theodore C. McCullough, Note, United States v. O’Hagan: Defining the Limits of Fraud and 

Deceptive Pretext Under Rule 10b-5, 22 SEATTLE U. L. REV. 311, 325 (1998). 

158 Stuart P. Green, Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of 

Perjury, Fraud, and False Statements, 53 HASTINGS L.J. 157, 182 (2001). 

159 See, e.g., State v. Hogrefe, 557 N.W.2d 871, 880 (Iowa 1996); Martinez v. State, 198 S.W.3d 36, 43– 

44 (Tex. App. 1996); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). 

160 MODEL PENAL CODE § 223.3.


virtual good, he could not be guilty of this crime. This requirement, 

unfortunately, makes the prosecution of the scenario described above—where 

a party member runs off with another’s excess goods—applicable only to 

situations where the state is able to prove that the accused planned for the 

situation. 161 Nonetheless, prosecutors should still be able to utilize theft-bydeception 

statutes to prosecute thieves who utilize a scam to obtain another 

player’s virtual goods in those limited circumstances where the state has 

evidence that the accused planned the theft in advance. 

Thus, current theft-by-deception statutes could be used to prosecute virtualgood 

theft criminals, but only in limited situations and with discovery-related 

difficulties. This statute, however, should prove useful to prosecute thieves 

who utilize scams to obtain virtual goods. 

c. Embezzlement 

Prosecutors should also be able to use embezzlement statutes to prosecute 

the theft of virtual goods. To prove embezzlement under state penal statutes, 

prosecutors must show that there was a knowing conversion 162 of property by 

one lawfully entrusted with its possession. 163 Embezzlement may prove a 

better tool than theft by deception for the prosecution of virtual good thefts 

arising from situations where a party member, entrusted to hold a party 

member’s virtual goods, runs off with such goods. 

Embezzlement statutes do not present the possession and control problems 

typically associated with the application of these statutes to virtual goods 164 

because the courts recognize that embezzlement statutes may be properly 

161 It is possible that the defendant admitted to other players that he was anticipating the situation and 

intended to deceive the victim. Prosecutors could obtain such chat records by accessing the developer’s 

servers, but this would implicate privacy concerns. Still, prosecutors could also obtain testimony from those 

players who witnessed the defendant’s admission. 

162 Conversion, within the meaning of embezzlement statutes, is the “fraudulent appropriation of a thing 

to one’s own use and beneficial enjoyment.” 29A C.J.S. Embezzlement § 16 (2007) (citing State v. Pietranton, 

84 S.E.2d 774 (W. Va. 1954)). Appropriation, however, is something more than mere possession of the 

property. See State v. Barbossa, 384 A.2d 523, 525 (N.J. Super. Ct. App. Div. 1976). 

163 Paul C. Jorgensen, Embezzlement, 24 AM. CRIM. L. REV. 513, 513 (1987). “[E]mbezzlement statutes 

protect against knowing conversion of specific items or services which are in the possession of another 

occupying a designated fiduciary relation . . . [and require] the prosecution [to] prove that an ownership 

interest is in someone other than the accused, and that there has been a conversion of the property with 

fraudulent intent.” Id. 

164 See supra text accompanying notes 140–43.


applied to intangibles, even those that cannot be physically possessed. 165 In 

such cases, the analysis turns on whether “the victim’s interest in the subject 

matter is sufficiently important that defendant’s interference with it should be 

penalized.” 166 Moreover, timing of intent is easier to prove under 

embezzlement statutes because these statutes allow for the intent to form after 

the thief takes possession of the good. 167 

Thus, if the state is able to demonstrate that the victim’s interest is 

sufficiently important and that actual conversion, as opposed to mere 

possession, has taken place, then the state should be able to use embezzlement 

statutes to successfully prosecute certain virtual good thefts. 

2. Arguments Against the Application of Current Criminal Penal Codes 

Some scholars have argued that current criminal statutes should not be used 

to prosecute virtual-good thefts because it might prove too difficult, 168 

impractical, 169 or impossible. 170 This section seeks to dispel these scholars’ 

arguments by showing how the various states could overcome these various 

barriers. First, this Comment looks at the issue of jurisdiction, especially given 

that MMORPGs are played by persons from across the world. Second, this 

Comment considers whether anonymity would make prosecution impossible. 

Third, this Comment addresses whether the transaction costs involved with the 

prosecution of virtual theft outweigh the benefits. Fourth, this Comment 

examines the barriers placed by End-User License Agreements. Finally, this 

Comment considers whether a prosecutor’s discovery procedures would 

constitute an invasion of privacy. 

a. Jurisdictional Concerns 

Certain scholars have posited that the criminal prosecution of virtual-good 

theft would be difficult to implement due to jurisdictional obstacles. 171 

165 See, e.g., People v. Menagas, 11 N.E.2d 403 (Ill. 1937) (holding that larceny includes the taking of 

electricity); Payne v. Elliot, 54 Cal. 339 (1880) (finding liability for conversion of shares of stock). 

166 Comment, Theft of Labor and Services, 12 STAN. L. REV. 663, 665 (1960). 

167 Cf. Jorgensen, supra note 163, at 515 (“[I]n cases where there is no direct evidence of intent, the 

appropriate focus is on the relationship between the defendant’s actions and his environment.”). 

168 Hunter, supra note 24, at 302. 

169 Reynolds, supra note 67, at 19. 

170 Lastowka & Hunter, supra note 24, at 307 (arguing that video games have their own set of internal 

rules, making criminal law inapplicable). 

171 Cf. James R. Hobbs & Amy R. Perry, Internet Gambling: Is It Worth the Risk?, 7 VILL. SPORTS & 

ENT. L.J. 1, 8–10 (2000) (noting how courts have addressed jurisdictional issues in Internet gambling cases).


Unfortunately, “[j]urisdictional problems represent a major impediment to 

nation-states’ efforts to govern in cyberspace.” 172 Specifically, virtual-good 

thefts pose two potential jurisdictional dilemmas: (1) because the theft occurs 

online, it is unclear in which territory the prosecution would have to establish 

the theft took place; and (2) if the theft is committed by a foreigner, it is 

unclear how the state would establish jurisdiction over the accused. 

Usually, state prosecutors are barred from initiating cases stemming from 

acts that are committed out-of-state because criminal law jurisdictional rules 

require a prosecutor to establish that the defendant intended to produce harm in 

the prosecutor’s state. 173 To counter this limitation in the Internet age, state 

legislatures have broadened their jurisdictional rules to accommodate the 

nongeographical nature of the Internet; 174 thus, some state courts have held that 

states have criminal jurisdiction “when the alleged criminal activity has only 

one element—a cause, effect or intent of either—within the boundaries of the 

state.” 175 Other courts “will allow jurisdiction when an offense has a harmful 

impact in the forum, even though that result is not necessarily an element of 

the offense.” 176 Thus, as long as a prosecutor can show that the virtual-good 

172 Bruce L. Benson, The Spontaneous Evolution of Cyber Law: Norms, Property Rights, Contracting, 

Dispute Resolution and Enforcement Without the State, 1 J.L. ECON. & POL’Y 269, 329 (2005). 

173 Ryan P. Wallace, Adam M. Lusthaus & Jong Hwan (Justin) Kim, Computer Crimes, 42 AM. CRIM. L. 

REV. 223, 270 (2005). 

174 Laura Ann Forbes, A More Convenient Crime: Why States Must Regulate Internet-Related Criminal 

Activity Under the Dormant Commerce Clause, 20 PACE L. REV. 189, 212 (1999). Using New York as an 

example, Forbes shows: 

Under New York Criminal Procedure Law § 20.20, the state generally retains jurisdiction over 

offenses in which: 

(1) Conduct occurring within a state establishes an element of the offense, an attempt, or a 

conspiracy to commit the offense; or 

(2) no conduct occurred in the state, but the offense’s result was in-state, the effect was 

intended to be felt in the state, or attempt of conspiracy was meant to be in-state; or 

(3) there was a crime of omission with effect in the state, whether or not the offender is 

physically present in the state. 

Under § 20.60 “[a] person who causes by any means the use of a computer or computer service in 

one jurisdiction from another jurisdiction is deemed to have personally used the computer or 

computer service in each jurisdiction.” This statute takes computer and Internet crime out of the 

virtual world, and places it in a tangible location. 

Id. at 212–13 (citing N.Y. CRIM. PROC. §§ 20.20(1)–3), 20.60(1)–(3) (1997)). 

175 Id. at 212; see, e.g., Lane v. State, 388 So.2d 1022, 1027 (Fla. 1980) (applying a Florida jurisdictional 

statute that grants jurisdiction if an element of the crime, including the result, occurred in the forum). 

176 Terrence Berg, www.wildwest.gov: The Impact of the Internet on State Power to Enforce the Law, 

2000 B.Y.U. L. REV. 1305, 1345; see, e.g., People v. Sandy, 666 N.Y.S.2d 565 (N.Y. App. Div. 1997) 

(holding that intent to have harmful impact in forum plus consequences in the forum confer jurisdiction under 

New York jurisdiction statute even where consequences—unavailability of evidence which had been


theft has had an effect on a citizen of the state, under these permissive 

jurisdictional rules, state courts should be able to claim jurisdiction over virtual 

good thieves, as long as their statutes take a permissive stance on these 

jurisdictional issues. 177 

Moreover, courts have been willing to assert their jurisdictional prowess 

over international foreigners to stop cyber activities that violate U.S. law. 178 

The problem, however, lies in the application of these rules. As one scholar, 

commenting on the prosecution of internet gambling, found, “[Persons] who 

hold no assets in the United States and never visit the United States can, in 

effect, avoid prosecution indefinitely. Moreover, the effective application of 

transnational jurisdictional principles is dependent on the ‘respect and 

cooperation among sovereigns and parties.’” 179 Ideally, the prosecution of 

virtual-good thefts involving international players could succeed through 

international cooperation at the investigation and procurement-of-evidence 

levels, 180 and the use of extradition and extralegal methods to obtain custody 

over defendants. 181 Realistically, however, a lack of international cooperation 

and the need to maintain healthy international relationships may make the 

prosecution of virtual good thefts involving international players too hard to 

effectuate. 182 

subpoenaed by the grand jury—were not elements of the crime); State v. Miller, 755 P.2d 434 (Ariz. Ct. App. 

1988) (limiting effect of Arizona statute allowing jurisdiction if the “result” of an element of an offense 

committed outside the state occurs within the state). 

177 This theory only works in states, such as New York, that take a permissive jurisdictional stance on 

Internet crimes. 

178 Benson, supra note 172, at 331–32 (2005) (noting that agents of the U.S. government were permitted 

to arrest an employee of a Moscow-based computer company because he broke U.S. copyright law). 

179 Ronnie D. Crisco, Jr., Follow the Leaders: A Constructive Examination of Existing Regulatory Tools 

that Could Be Applied to Internet Gambling, 5 N.C. J.L. & TECH. 155, 159 (2003) (citing Antonia Z. Cowan, 

The Global Gaming Village: Interstate and Transnational Gambling, 7 GAMING L. REV. 251, 252 (2003)). 

180 See Ellen S. Podgor, International Computer Fraud: A Paradigm for Limiting National Jurisdiction, 

35 U.C. DAVIS L. REV. 267, 311 (2002) (“Countries need to be encouraged to pursue transgressions of the law, 

despite the fact that the results of the investigation may not produce a prosecution in the jurisdiction doing the 

investigation.”). 

181 See Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 VILL. L. REV. 1, 58 (1996) (explaining 

methods include kidnapping). This Comment, however, does not suggest that the prosecution of virtual-good 

thefts should trump good international relations. Thus, these methods should only be used in very serious 

thefts. 

182 Cf. Crisco, supra note 179, at 159. However, this does not diminish the ability of state prosecutors to 

claim jurisdiction over United States defendants.


b. Concerns About Identifying Perpetrators 

Even if the jurisdictional hurdles can be overcome, the anonymous nature 

of MMORPGs may present problems for prosecutors handling virtual-good 

cases. “Whereas a successful thief on terra firma must wear a mask, or be 

accompanied by others, to complete his crime and avoid detection, in 

cyberspace, criminals and infringers, acting anonymously—or 

pseudononymously—can more easily avoid detection.” 183 The anonymous 

nature of MMORPGs presents the following two issues: (1) theft is more likely 

to occur, because individuals feel shielded from accountability; and (2) 

detection is tougher to achieve, because criminals are shielded by the 

intangible, amorphous nature of the Internet. 

A close working relationship between investigators and MMORPG 

developers, however, should help alleviate both concerns by increasing the 

transparency of each player’s true identity. Ideally, MMORPG developers 

should be encouraged to keep good records of their users’ identities and also be 

willing to provide this information to state investigators upon request. 184 

Increased transparency between pseudonyms and real identities should lower 

crime rates, as MMORPG thieves become aware that they are more likely to 

get caught. Transparency should also make it easier for prosecutors to 

determine the real identities of thieves. Thus, although the anonymous aspect 

of MMORPGs currently may present a problem for the prosecution of virtual 

good thefts, it is a problem that can be overcome by cooperation between 

MMORPG developers and state governments. 

c. Transaction Costs 

Furthermore, critics of the criminal law approach contend that the 

resolution of virtual thefts through traditional legal frameworks may entail 

transaction costs 185 that exceed the actual costs of the claims. 186 These 

183 Ian C. Ballon, The Law of the Internet: Developing a Framework for Making New Law, CYBERSPACE 

L., Dec. 1997, at 12. 

184 Cf. Rubenstein, supra note 133, at 1–3 (arguing that current eBay procedures make it impossible for 

prosecutors to investigate stolen goods sold on eBay because of eBay’s lack of cooperation during 

investigations). 

185 “[T]ransactions costs arise as individuals attempt to create or protect property rights, because other 

individuals must either be persuaded or induced to accept obligations to respect claimed rights. Effective 

property rights are likely to arise when the benefits of creating them exceed the associated transactions costs.” 

Benson, supra note 172, at 273. 

186 Reynolds, supra note 67, at 19; see also Yannis Bakos & Chrysanthos N. Dellarocas, Cooperation 

Without Enforcement? A Comparative Analysis of Litigation and Online Reputation as Quality Assurance


scholars raise the concern that district attorneys will choose not to prosecute 

these thefts because the benefits derived from prosecution would be too slight 

and state resources are limited. 187 

Such arguments presume that the prosecution of a theft merely benefits the 

victim. But, in fact, because of the general deterrent effect of criminal law, 188 

each prosecution can produce external effects on society as a whole by 

signifying the importance of the crime and notifying the public of enforcement 

priorities. 189 Hence, each prosecution diminishes the likelihood of future 

virtual-good thefts. 190 Moreover, the prosecution of virtual-good thefts will 

provide each victim with additional benefits, such as vengeance. 191 For these 

reasons, district attorneys should have the ability to prosecute thieves of virtual 

goods when state priorities and resources deem it necessary, leaving the 

remainder of cases to civil law, 192 much like regular thefts are handled. 193 

Thus, though the prosecution of virtual-good theft may appear cost 

inefficient, the benefits derived from the prosecution of virtual-good thefts may 

outweigh the administrative costs, given the extrinsic benefits of deterrence 

and retribution. 

Mechanisms (MIT Sloan Working Paper Group, Paper No. 4295-03, 2003), available at http://papers.ssrn. 

com/sol3/papers.cfm?abstract_id=393041. 

187 Cf. James H.A. Pooley et al., Understanding the Economic Espionage Act of 1996, 5 TEX. INTELL. 

PROP. L.J. 177, 220 (1997) (noting that states lack adequate resources to prosecute certain theft crimes). 

188 See, e.g., JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 46 (4th ed. 2000); WAYNE R. 

LAFAVE, CRIMINAL LAW 28–29 (4th ed. 2003); STEPHEN A. SALTZBURG ET AL., CRIMINAL LAW 102 (2d ed. 

2000). 

189 See Lawrence F. Young, Combating Unauthorized Internet Access, 35 JURIMETRICS J. 257, 258–59 

(1995). 

190 Id. 

191 Cf. David D. Friedman, Making Sense of English Law Enforcement in the Eighteenth Century, 2 U. 

CHI. L. SCH. ROUNDTABLE 475, 486 (1995) (noting that retribution was a possible motive of eighteenthcentury 

prosecutors). 

192 The application of civil law to the theft of virtual goods is beyond the scope of this Comment. See 

generally Farnaz Alemi, An Avatar’s Day in Court: A Proposal for Obtaining Relief and Resolving Disputes in 

Virtual World Games, 11 UCLA J.L. & TECH. 6 (2007), http://www.lawtechjournal.com/articles/2007/ 

06_080130_alemi.php. 

193 Cf. Green, supra note 100, at 231 (2002) (arguing that prosecutors should have the discretion to 

distinguish among individual cases of theft).


d. Contracting out of Property Rights 

Scholars also argue that current contracts make the prosecution of virtual 

good thefts impossible. 194 Property rights are by nature alienable. A player 

can always give up her ownership rights over a virtual good through a 

contract. 195 In most MMORPGs, a player must sign an End-User Licensing 

Agreement (EULA) before beginning to play. 196 The language of these 

contracts is simple: the MMORPG provider retains all intellectual and property 

rights in all objects in the game. 197 

194 Meehan, supra note 8, at 12–26. Essentially, scholars argue that these games are licensed, not sold, 

and thus are immune from copyright’s first-sale doctrine, which allows “the owner of a particular copy . . . 

without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” 

17 U.S.C. § 109(a) (2006). See generally MARK A. LEMLEY ET AL., SOFTWARE AND INTERNET LAW 322–23 

(3d ed. 2006) (describing that publishers license rather than sell their software to retain control after resale). 

Yet, 

[h]istorically, the purpose of ‘licensing’ computer program copy use was to employ contract 

terms to augment trade secret protection in order to protect against unauthorized copying at a 

time, when, first, the existence of a copyright in computer programs was doubtful, and, later, 

when the extent to which copyright provided protection was uncertain. 

Softman Prods. Co. v. Adobe Systems, Inc., 171 F. Supp. 2d 1075, 1083 (C.D. Cal. 2001). It could be argued 

that this purpose is not truly applicable to MMORPGs, thus making the extension of licensing protection—and 

consequently the exclusion of the first-sale doctrine protection—to MMORPGs questionable. See id. at 1091 

(“[This] system of ‘licensing’ which grants software publishers this degree of unchecked power to control the 

market deserves to be the object of careful scrutiny.”). 

195 Cf. Shi-Ling Hsu, A Two-Dimensional Framework for Analyzing Property Rights Regimes, 36 U.C. 

DAVIS L. REV. 813, 868–69 (2003) (noting that alienability is a property right). 

196 See, e.g., World of Warcraft, End User License Agreement, http://www.worldofwarcraft.com/legal/ 

eula.html (last visited Mar. 3, 2007); Station Pass, End User License Agrement, http://tanarus.station.sony. 

com/eula.jsp (last visited Mar. 3, 2007). 

197 For example, World of Warcraft’s Terms of Use state: 

Blizzard does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade 

any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be 

null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that 

appears in the Program. You agree that you have no right or title in or to any such content, 

including the virtual goods or currency appearing or originating in the Game, or any other 

attributes associated with the Account or stored on the Service. Blizzard does not recognize any 

virtual property transfers executed outside of the Game or the purported sale, gift or trade in the 

“real world” of anything related to the Game. Accordingly, you may not sell items for “real” 

money or otherwise exchange items for value outside of the Game. 

World of Warcraft, Terms of Use, http://www.worldofwarcraft.com/legal/termsofuse.html (last visited Mar. 3, 

2008). For a thorough analysis of MMORPG EULAs, see David P. Sheldon, Comment, Claiming Ownership, 

but Getting Owned: Contractual Limitations on Asserting Property Interests in Virtual Goods, 54 UCLA L. 

REV. 751 (2007).


Based upon the language of these EULAs, MMORPGs publishers have 

sought to enforce their property rights 198 and to eliminate those of players. 199 

For instance, in 2000, Sony, the publisher of EverQuest, agreed with auction 

sites eBay and Yahoo! to ban the sale of EverQuest items and to remove any 

auctions from their sites. 200 Sony also banned individual players from 

EverQuest for alleged acts, such as item farming. 201 One MMORPG, Second 

Life, however, decided to grant players an ownership right to content they 

create and trade within the virtual world, though this right is arguably 

limited. 202 

In general, United States courts have held that clickwrap 203 EULAs are 

valid and enforceable. 204 For this reason, most scholars remain under the 

198 These rights are property rights, not intellectual property rights, and thus are not preempted by the 

federal copyright statute’s preemption clause, because they are not equivalent to the exclusive rights granted to 

copyright holders. See generally David Nimmer et al., The Metamorphosis of Contract into Expand, 87 CAL. 

L. REV. 17, 40 (1999). 

199 See Game On, supra note 66, at 9 (stating that a player cannot claim property rights once he or she has 

agreed the EULA terms). In fact, the most recent lawsuit in the sale of virtual goods by third-parties 

demonstrates a MMORPG publisher’s right to limit the sale of their virtual goods. See Blizzard 

Entertainment, Inc. v. In Game Dollar, No. 8:07-cv-00589-JVS-AN (C.D. Cal. Dec. 17, 2007) (order granting 

permanent injunction pursuant to settlement between a third-party and a video-game publisher, essentially 

shutting down In Game Dollar’s selling of World of Warcraft’s virtual items), available at http://virtuallyblind. 

com/files/Peons_Injunction.pdf. 

200 Reynolds, supra note 67, at 15. Ironically, EverQuest players may sell virtual goods they collect ingame 

for real-world money through Sony’s own marketplace, Station Exchange. See Terdiman, supra note 17. 

201 Item farming is the act of playing a game merely to collect virtual goods intended for resale. Terdiman, 

supra note 17. 

202 Second Life’s Terms of Service explicitly state: “[Y]ou will retain any and all applicable copyright and 

other intellectual property rights with respect to any Content you create using the Service, to the extent you 

have such rights under applicable law.” Second Life, Terms of Service, http://secondlife.com/corporate/ 

tos.php (last visited Mar. 2, 2007). 

203 A clickwrap agreement is an agreement that “allows the consumer to manifest its assent to the terms of 

a contract by ‘clicking’ on an acceptance button on the website.” William J. Condon, Jr., Electronic Assent to 

Online Contracts: Do Courts Consistently Enforce Clickwrap Agreements?, 16 REGENT U. L. REV. 433, 435 

(2004). 

204 Gloria C. Phares, Copyright Licensing, 863 PRACTISING L. INST. 63, 224 (2006); see also ProCD, Inc. 

v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (finding that clickwrap EULAs are enforceable because the 

purchaser can return the goods for a refund if the terms of the clickwrap are objectionable); Moore v. 

Microsoft Corp., 741 N.Y.S.2d 91, 92 (N.Y. App. Div. 2002) (“[T]he End User License Agreement . . . 

contained in the defendant’s software program is a validly binding contract between the parties which bars the 

plaintiff’s claims.”); America Online, Inc. v. Booker, 781 So. 2d 423, 425 (Fla. Dist. Ct. App. 2001) (holding 

that the choice of forum clause was valid and enforceable); Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 

200 (Tex. Ct. App. 2001) (holding that the forum selection clause in the contract between an Internet domain 

name registrar and its customer was valid). Ironically, stores, such as Best Buy and Circuit City, do not allow 

purchasers of software to return opened software to the store for a full refund. Instead, purchasers of software 

must contact the initial manufacturer of the software for a full refund.


impression that with EULA law as it stands, players will remain without 

property rights in virtual goods. 205 And without property rights, a state’s theft 

prosecution will fail. 

Nonetheless, there are many scholars who believe that certain sections of 

MMORPG EULAs are invalid, making the EULAs unenforceable. 206 These 

scholars argue that EULAs should protect the developers’ intellectual property 

rights over virtual goods and nothing else, retaining for video game players the 

right to use, possess, enjoy, and exclude virtual goods. 207 One scholar in 

particular argues that MMORPG EULAs place an unreasonable restraint on 

virtual goods, limiting the property to low-value uses 208 —a limitation not 

allowed by U.S. courts. 209 Other scholars argue that the EULAs are 

substantially unconscionable—and thus invalid—because the terms unduly 

favor the developers, 210 the distribution of property falls outside the players’ 

expectations, 211 there is a lack of business necessity for such harsh terms, 212 

and the distribution of MMORPG software should not involve licensing. 213 

Finally, another scholar argues that if courts do not find EULAs unenforceable, 

then public policy will force legislatures to step in and regulate both the 

formation and enforceability of MMORPG EULAs. 214 

205 Chein, supra note 80, at 1090. 

206 See, e.g., Lastowka & Hunter, supra note 48, at 50 (arguing that EULAs place excessive restraints on 

product users). 

207 See Fairfield, supra note 70, at 1083–84; see also Schwarz & Bullis, supra note 109, at 25–28 (arguing 

that Sony’s virtual goods market exchange that excludes other third-party market sales may constitute an 

antitrust violation, thus invalidating its current EULA formulation). 

208 Fairfield, supra note 70, at 1083–84. 

209 See Glen O. Robinson, Personal Property Servitudes, 71 U. CHI. L. REV. 1449, 1480 n.111 (2004) 

(“The common law has invalidated restraints on alienation of property from time out of mind.”). 

210 Meehan, supra note 8, at 23. 

211 Id.; see also Bobby Glushko, Note, Tales of the (Virtual) City: Governing Property Disputes in Virtual 

Worlds, 22 BERKELEY TECH. L.J. 507, 527–30 (2007) (stating that developer-drafted EULAs favor developers 

and do not meet player expectations as to legal liability and enforcement); Steven J. Horowitz, Note, 

Competing Lockean Claims to Virtual Property, 20 HARV. J.L. & TECH. 443, 457–58 (2007) (arguing that 

while players operate under Lockean conceptions of property, operators of virtual worlds do not). 

212 Meehan, supra note 8, at 24. 

213 Softman Prods. Co. v. Adobe Systems Inc., 171 F. Supp. 2d 1075, 1085 (C.D. Cal. 2001) (finding that 

there was no license, but instead a sale, because “the purchaser . . . obtain[ed] a single copy of the software, 

with documentation, for a single price, which the purchaser pay[ing] at the time of the transaction, . . . which 

constitute[d] the entire payment for the ‘license[]’ [and] [t]he license runs for an indefinite term without 

provisions for renewal”). If in fact licensing does not apply to MMORPGs, then video game players could 

argue that they have the freedom to buy and sell virtual goods because of the first sale doctrine. See supra 

note 194. 

214 Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 VA. L. 

REV. 2043, 2071–72 (2004). But see Westbrook, supra note 94, at 803–04 (arguing that public policy is not 

overwhelmingly opposed to current MMORPG EULA provisions).


If the courts reject the overextension of EULAs and hold that video game 

players retain property rights over virtual goods, these contracts should no 

longer stand as a barrier to the application of criminal penal statutes to thefts of 

virtual goods. Unfortunately, courts rarely invalidate contracts because they 

run afoul of public policy. 215 Still, courts might find MMORPG EULAs 

suspect, given the oppressive boundaries of these rules 216 and the lack of rights 

given to players. 217 Moreover, courts may find these EULAs invalid because 

the contracts restrict players from trading and selling virtual goods yet the 

structure of MMORPGs encourages the commodification of these goods. 218 In 

the spirit of this proposition, Bragg dismissed Linden Labs’ motion to dismiss, 

finding that their EULA is, in fact, too oppressive: “[Linden Lab’s EULA] is a 

one-sided means which tilts unfairly, in almost all situations, in Linden’s 

favor . . . [and] insulate[s] [Linden Labs] contractually from any meaningful 

challenge to its alleged practices.” 219 Thus, given the uncertainty behind 

courts’ enforcement of EULAs, it is possible that these EULAs will not stand 

as barrier to the prosecution of virtual-good theft. 

e. Privacy Concerns 

Finally, scholars argue that the prosecution of virtual-good thefts will lead 

to unacceptable invasions of privacy. 220 In particular, such scholars posit that 

“[t]he government’s collection and use of personal information in virtual 

worlds, and its subsequent attempts to connect the virtual and physical 

identities, can lead to several forms of privacy [invasions].” 221 Prosecutors 

may gather data for virtual theft prosecutions in two ways: (1) by seeking 

215 See RANDY E. BARNETT, CONTRACTS 18 (2003); see also Bandera v. City of Quincy, 344 F.3d 47, 52 

(1st Cir. 2003) (noting that agreements are rarely invalidated because they are contrary to public policy); 

Godfrey v. Hartford Cas. Ins. Co., 993 P.2d 281, 284 (Wash. Ct. App. 2000), rev’d on other grounds, 16 P.3d 

617 (Wash. 2001) (noting that courts rarely invalidate contracts on public policy grounds). 

216 Edward Castronova, The Right to Play, 49 N.Y.L. SCH. L. REV. 185, 197 (2004). 

217 Id. (arguing that developers and players collectively write a script unique to that virtual world and thus 

should have equal ownership rights). 

218 Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005) 

(finding unenforceable a software licensing agreement that required users to expressly waive a right otherwise 

afforded to them). 

219 Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 611 (E.D. Pa. 2007); see also David M. Klein, 

Ways to Avoid Contract Killers in Second Life, N.Y.L.J., Oct. 16, 2007, available at http://www.law.com/jsp/ 

legaltechnology/pubArticleLT.jsp?id=1192439008771 (citing Comb v. Paypal Inc., 218 F. Supp. 2d 1165, 

1176 (N.D. Cal. 2002)). 

220 Cf. Lastowka & Hunter, supra note 24, at 316. 

221 Tal Z. Zarsky, Information Privacy in Virtual Worlds: Identifying Unique Concerns Beyond the Online 

and Offline Worlds, 49 N.Y.L. SCH. L. REV. 231, 243 (2004).


information readily available in the public domain; and (2) by requiring game 

developers to surrender such data. 222 

To obtain data available in the public domain, government agents could 

maintain a presence in MMORPGs and collect information like any other 

player. 223 “In these instances, the observed avatars/persons can rarely argue 

that their privacy has been breached, as the information the government 

collects and uses was viewed and gathered in an open, public forum where an 

expectation of privacy can rarely exist.” 224 Gathering data in this fashion 

would only raise privacy concerns should the government agents fail to 

properly identify themselves or their assignment to the observed avatarperson. 

225 

Still, one scholar argues that privacy invasions could occur should the 

government require game developers to relinquish information directly to 

prosecutors. 226 Yet, as long as the government follows the process for 

obtaining such information as delineated by the Electronic Communications 

Privacy Act (ECPA), 227 this scholar’s privacy concerns are moot. 228 Under the 

ECPA, game developers would not be required to release information to a 

prosecutor unless the prosecutor had first obtained a warrant, a court order, or 

the consent of the subscriber to such disclosure. 229 Thus, although this scholar 

is justified in voicing such privacy concerns, this problem can be overcome as 

long as prosecutors gather data available in the public domain or from game 

publishers, if ECPA guidelines are followed properly. 

III. OTHER REGULATORY SYSTEMS 

Although it appears plausible to apply the MPC and most state theft 

statutes to the theft of virtual goods in the context of online video games, other 

regulatory systems could be applied to the theft of virtual goods, as well. First, 

this Comment analyzes whether there are other U.S. legal frameworks that 

could be applied to the theft of virtual goods. Second, this Comment 

222 Id. at 243–48. 

223 Id. at 244. 

224 Id. 

225 Id. An agent’s failure to identify herself as a government employee is not a situation unique to 

MMORPGs. Id. 

226 Id. at 244. 

227 18 U.S.C. § 2703(c)(1)(B) (2006). 

228 Zarsky, supra note 221, at 244. 

229 Id.


highlights the weakness of the most widely suggested solution—no regulation 

at all. Finally, this Comment discusses the solutions in place in other countries 

to demonstrate how other countries have successfully prosecuted and regulated 

the theft of virtual goods. 

A. Current U.S. Legal Frameworks Plausibly Applicable 

Although U.S. courts have yet to review a virtual-good theft case, several 

scholars are of the opinion that other legal frameworks, beyond theft and 

embezzlement penal statutes, would be applicable to such situations. The 

following pages address the applicability of computer trespass, the Federal 

Computer Fraud and Abuse Act, the National Stolen Property Act, and civil 

law, in turn. 

1. Computer Trespass 

Some scholars believe that computer-trespass statutes are the proper 

regulatory tool to address the theft of virtual goods. In particular, one scholar 

argues that “some activities involving the exploitation of game software for 

financial gain may give rise to criminal liability under computer trespass 

statutes.” 230 In the case of the theft of virtual goods, consumers could state a 

common law claim of trespass to chattels to state their claim. 231 After all, 

courts have found trespass liability for unauthorized access to computer 

operations (also known as “hacking”). 232 

The problem with using computer trespass to prosecute virtual-good thefts, 

however, is that not all actions involving theft of virtual goods consist of 

computer trespass or hacking. In the situation where a party member runs off 

with a virtual good while the video gamer makes room in his bags, there is no 

computer trespass, yet there is still a theft of a virtual good. Moreover, 

trespass to chattels is limited to civil law: the punitive and deterrent aspects of 

criminal law would not be available through this medium. 233 Thus, although 

computer trespass statutes could be applied in some situations, these 

applications would neither sufficiently punish nor deter all types of thefts. 

230 Lastowska & Hunter, supra note 24, at 294. 

231 “A trespass to a chattel may be committed by intentionally . . . using or intermeddling with a chattel in 

the possession of another,” where “the chattel is impaired as to its condition, quality, or value.” RESTATEMENT 

(SECOND) OF TORTS §§ 217(b), 218 (1965). 

232 See, e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000); Thrifty-Tel, Inc. v. 

Bezenek, 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996). 

233 See infra text accompanying notes 248–57.


2. Federal Computer Fraud and Abuse Act 

Scholars have also suggested using the Federal Computer Fraud and Abuse 

Act (FCFAA) to prosecute virtual-good thefts. 234 While the FCFAA was 

created to regulate crimes affecting government computers, 235 it was amended 

in 1996 to protect any computer involved in Internet-related activities. 236 

Thus, two sections of the FCFAA apply to general and government computers: 

section 5 covers knowingly or recklessly altering, damaging, or destroying 

information of any “computer used in interstate commerce or communication,” 

resulting in an aggregate loss greater than $5,000 in any one year, and section 

6 deals with trafficking passwords. 237 

Like computer trespass, applying the FCFAA uniformly to all thefts of 

virtual goods would be troublesome. Although it would arguably address the 

phishing scams that lead to stolen passwords, not all thefts of virtual goods 

follow this model. 238 Moreover, the FCFAA was “intended to address hacking 

to access private, confidential information.” 239 Conceptually, this presents a 

problem because virtual goods are not confidential information per se. 

Moreover, it might be difficult to convince courts to expand the application of 

the FCFAA beyond hacking to other actions that may result in the theft of 

virtual goods. Finally, the $5,000 threshold may prove too high to effectively 

prosecute even phishing virtual-goods thefts, considering it is higher than the 

MPC’s $500 requirement. 240 

3. National Stolen Property Act 

Alternatively, one might argue that the National Stolen Property Act 

(NSPA) could be applied to the theft of virtual goods. The NSPA prohibits the 

234 Cf. M. Angela Buenaventura, Teaching a Man to Fish: Why National Legislation Anchored in Notice 

and Consent Provisions Is the Most Effective Solution to the Spyware Problem, 13 RICH. J.L. & TECH. 1, 19 

(2006) (recommending the use of the FCFAA to combat spyware). 

235 18 U.S.C. § 1030 (2006). 

236 Brian A. Persico, Under Siege: The Jurisdictional and Interagency Problems of Protecting the 

National Information Infrastructure, 7 COMMLAW CONSPECTUS 153, 168 (1999). 

237 Jo-Ann M. Adams, Controlling Cyberspace: Applying the Computer Fraud and Abuse Act to the 

Internet, 12 SANTA CLARA COMPUTER & HIGH TECH. L.J. 403, 430–31 (1996) (citing 18 U.S.C. § 1030(a)(5) 

(1996)). 

238 Not all thefts of virtual goods involve the alteration, damage, or destruction of information, or the 

trafficking of passwords. 

239 Maureen A. O’Rourke, Shaping Competition on the Internet: Who Owns Product and Pricing 

Information?, 53 VAND. L. REV. 1965, 1991 (2000). 

240 See Mary Anne Bendotoff & Elizabeth R. Gosse, “Stay Off My Cyber Property!”: Trespass to 

Chattels on the Internet, 6 INTELL. PROP. L. BULL. 12, 16 (2001).


transportation in interstate commerce of goods worth more than $5,000 that 

have been stolen or fraudulently obtained. 241 

While the courts have applied the NSPA to tangible goods, many courts 

have been unwilling to apply the NSPA to the unauthorized transfer of 

intangibles. 242 Moreover, like the FCFAA, the $5,000 threshold may prove to 

be too high a barrier for most virtual goods thefts. 243 

4. Civil Law 

Finally, there are scholars who assert that criminal law is the wrong forum 

to protect virtual goods from theft. 244 These scholars are concerned that courts 

will misapply current laws or that legislators, who do not understand the 

mechanisms of MMORPGs, will draft poor legislation. 245 Thus, some scholars 

suggest applying tort conversion laws (as opposed to criminal law) to the theft 

of virtual goods. 246 

While tort doctrines hold promise, 247 there are good reasons to allow some 

form of criminal law control over the theft of virtual goods. 248 First, because 

sanctions in criminal law are punitive in nature, they deter socially undesirable 

activity; 249 civil law sanctions merely compensate and return parties to a status 

quo ante. 250 Second, two differing remedies are produced by criminal and civil 

sanctions. 251 While criminal sanctions place stigma on the chastised 

241 18 U.S.C. § 2314 (2006). 

242 Michael L. Rustad, The Negligent Enablement of Trade Secret Misappropriation, 22 SANTA CLARA 

COMPUTER & HIGH TECH. L.J. 455, 466 (2006); see also Wallace, supra note 173, at 226 n.13. 

243 See Bendotoff & Gosse, supra note 240, at 16. 

244 Lastowka & Hunter, supra note 24, at 316 (2004); see also RICHARD BARTLE, DESIGNING VIRTUAL 

WORLDS 621 (2003). 

245 

BARTLE, supra note 244, at 621. 

246 Cf. Lastowka & Hunter, supra note 24, at 310 (finding civil law more applicable than criminal law, but 

concluding that both are inadequate). 

247 See supra text accompanying notes 80–96; see also Alemi, supra note 192, 115−16 (arguing that 

“real world justice” and tort laws could be applied where in-game justice does not resolve virtual property 

disputes). 

248 This Comment does not discourage the application of the law of conversion to the theft of virtual 

goods. However, whether conversion doctrines could be applied to the theft of virtual goods is beyond the 

scope of this Comment. 

249 Christopher A. Ruhl, Corporate and Economic Espionage: A Model Penal Approach for Legal 

Deterrence to Theft of Corporate Trade Secrets and Proprietary Business Information, 33 VAL. U. L. REV. 

763, 769 (1999). 

250 Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 

YALE L.J. 1795, 1809 (1992). 

251 Ruhl, supra note 249, at 769.


individual, expressing society’s attitude of “resentment and indignation,” 252 

civil sanctions merely remedy problems through money disbursements. 253 

Criminal law provides remedies of “symbolic significance missing from other 

penalties” 254 and thereby can deter problems before they occur. In contrast, 

civil law merely compensates for harm already produced. 255 Also, while civil 

law requires the plaintiff to pay his lawyer to initiate and continue the lawsuit, 

and to perhaps pay a collection agency on the back end to collect on a 

judgment, criminal law is handled start-to-finish by the state, and punishments 

are extracted through state officials and mechanisms. 256 Thus, criminal law 

has what some scholars have termed a “level[]ing effect”: it seeks to minimize 

differences between victims with money and those without. 257 

If society recognizes theft of chattels as a significant harm that requires 

deterrence as opposed to mere compensation, the theft of virtual goods should 

merit the same level of protection. 

B. No Regulation 

Proponents of self-regulation argue that it is not the government’s job to 

regulate the theft of virtual goods in MMORPGs. 258 These scholars believe 

that virtual property thefts are trivial, 259 or that MMORPG communities are 

capable of self-regulating virtual crimes. 260 Thus, these scholars propose that 

252 Id. (citing Brent Fisse, Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault and 

Sanctions, 56 S. CAL. L. REV. 1141, 1147 (1983)). 

253 Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural 

Divide, 85 GEO. L.J. 775, 783 (1997). 

254 Ruhl, supra note 249, at 769 (citing Fisse, supra note 252). 

255 Id. at 769–70. 

256 Mann, supra note 250, at 1812. 

257 George P. Fletcher, A Transaction Theory of Crime?, 85 COLUM. L. REV. 921, 924 (1985). 

258 See Meehan, supra note 8, at 57–64 (arguing that developers should be seen as bailees—that is, 

holders of virtual property for video game players); see also Orin Kerr, Criminal Law in Virtual Worlds, U. 

CHI. LEGAL F. (forthcoming 2008) (manuscript at 17–18, on file with author), available at http://papers.ssrn. 

com/sol3/papers.cfm?abstract_id=1097392 (“Criminal penalties serve as a last resort in the physical world 

when misconduct threatens the lives or security of persons or involves property crimes that civil law cannot 

address. But virtual harms are best dealt with by virtual remedies.”) This Comment does not argue that all 

virtual crimes should be addressed by criminal law but rather that “district attorneys should have the ability to 

prosecute thieves of virtual goods when state priorities and resources deem it necessary, leaving the remainder 

of cases to civil law, much like regular thefts are handled.” See supra text in notes 192−93. 

259 See Westbrook, supra note 94, at 796. 

260 See WILLIAMS, supra note 5, at 138; see also Kevin W. Saunders, Virtual Worlds—Real Courts, 52 

VILL. L. REV. 187, 233 (2007) (arguing that a “balance should be struck in favor of letting virtual worlds 

protect their own property and leave real courts to the protection of real world property, including real world 

appropriation of code”); Viktor Mayer-Schönberger & John Crowley, Napster’s Second Life?: The Regulatory


MMORPGs should be left unregulated by outside institutions, 261 or if some 

regulation is necessary, video-game developers 262 or third-party institutions 263 

should be responsible for such regulation. 

One popular view depicts virtual-property thefts as trivial and finds that 

“the gains to society offered by a system of virtual-property rights would be 

small.” 264 In particular, these scholars ignore the economic aspect of 

MMORPGs, viewing only the “entertainment value of a recreational 

activity.” 265 

This perspective, however, underestimates the value a video gamer accords 

to his virtual property, both economically 266 and psychologically. 267 People 

become emotionally attached to property. 268 “[O]nline players have too much 

invested simply to start over or forget about lost rewards, equipment or status 

in games. ‘People very definitely feel they have a real investment in these 

[virtual] possessions, and they definitely feel entitled to what they’ve 

earned.’” 269 In the absence of a regulatory or remedial scheme for the theft of 

virtual goods, players might resort to real world solutions to repossess their 

virtual goods. For example, in China, Qui Chengwei stabbed Zhu Caoyuan in 

the chest when he found out that Zhu had sold his virtual sword for 7,200 Yuan 

($913). 270 Mr. Qui attempted to take the dispute to the police, but the police 

ignored his request because no law in China at that time protected virtual 

property. 271 Thus, some form of regulation must be afforded to virtual good 

owners to maintain social order. 

Challenges of Virtual Worlds, 100 NW. U. L. REV. 1775, 1780 (2006) (“[N]ational lawmakers [should] 

facilitate the creation of robust self-governance structures within virtual worlds rather than ‘napsterizing’ 

virtual world providers.”). 

261 Lastowka & Hunter, supra note 24, at 316. 

262 Id. 

263 MacInnes, supra note 29, at 7. 

264 Westbrook, supra note 94, at 796. 

265 Id. 


267 Cf. Rob Hof, Second Life’s First Millionaire, BUSINESSWEEK.COM, Nov. 26, 2006, http://www. 

businessweek.com/the_thread/techbeat/archives/2006/11/second_lifes_fi.html?campaign_id=rss_blog_blogspo 

tting (estimating that Ailin Graef’s virtual property in Second Life is worth more than a million dollars, making 

her the first Second Life millionaire). 

268 See Bradley S. Jorgensen & Richard C. Stedman, Sense of Place as an Attitude: Lakeshore Owners 

Attitudes Toward Their Properties, 21 J. ENVTL. PSYCHOL. 233, 233–34 (2001). 

269 Lyman, supra note 69 (quoting security expert and gaming fan Ryan Russell). 

270 BBC NEWS, supra note 19. 

271 Id.


Other scholars contend that without regulation, most MMORPG 

communities will resort to informal modes of social control, such as 

shaming—where members of the community ostracize those players who steal 

from others. 272 Yet, “[w]here individuals lack complex online interdependence 

it is unlikely that reintegrative shaming would be effective in reducing 

recidivism.” 273 In other words, the ephemeral and anonymous nature of the 

online context suggests that disintegrative shaming tactics will have limited 

impact. 274 

Moreover, if shaming were an effective deterrent, all states would not have 

implemented strict theft statutes. Restorative shaming is only effective in 

communities of known individuals, where people know each other and care 

about future relationships. 275 After all, restorative justice is premised on the 

idea that “victims and offenders . . . meet face-to-face, with the ultimate goal 

of encouraging genuine remorse and forgiveness.” 276 The anonymity in 

MMORPGs, however, suggests that shaming would have little effect as a mode 

of punishment or deterrence. 277 Thus, in relation to MMORPGs, vigilante 

modes of regulation that rely on reintegrative shaming are likely to be only 

marginally effective when applied to bonded individuals. 278 

Given the shortcomings of shaming, one scholar recommends that 

vigilantism and organized policing should be combined, and that MMORPG 

communities should rely on techno-mediated forms of punishment when social 

forms fall short. 279 Implementing this proposal, video game developers have 

begun to internally regulate MMORPGs. World of Warcraft, for example, has 

a Restoration Policy that provides guidelines as to when stolen virtual property 

272 


273 Id. 

274 Id. 

275 Douglas Litowitz, The Trouble with ‘Scarlet Letter’ Punishments: Subjecting Criminals to Public 

Shaming Rituals as a Sentencing Alternative Will Not Work, 81 JUDICATURE 52, 54 (1997) (arguing that 

shaming is inappropriate for an anonymous, secular society). See generally JOHN BRAITHWAITE & HEATHER 

STANG, RESTORATIVE JUSTICE AND CIVIL SOCIETY 1–13 (2001). 

276 Brent T. White, Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 CORNELL L. 

REV. 1261, 1268 (2006). 

277 John Rothchild, Protecting the Digital Consumer: The Limits of Cyberspace Utopianism, 74 IND. L.J. 

893, 967–68 (1999) (identifying how LambdaMOO’s self-regulation failed because the punishment was 

unenforceable: the miscreant managed to evade the decree of banishment, rejoining the MMORPG under a 

new pseudonym shortly after the toading). But see Lior Jacob Strahilevitz, “How’s My Driving?” for 

Everyone (and Everything?), 81 N.Y.U. L. REV. 1699, 1713–14 (2006) (noting that eBay’s feedback system— 

a quasi-form of shaming—has successfully regulated behavior over the Internet). 

278 


279 Id.


will be restored to MMORPG players. 280 Similarly, Second Life established a 

Police Blotter that catalogues the newest twenty-five reported incidents (and 

the subsequent regulatory actions taken). 281 Outside of the MMORPG virtual 

worlds, third party sites, such as iCourthouse 282 and Square Trade, 283 provide 

dispute resolution for matters related to electronic transactions. 284 

Unfortunately, internal regulation methods have proven ineffective, 285 

because after most internal investigations, the MMORPG developer does not 

restore the stolen virtual goods to the victim. 286 Similarly, the third party sites 

have proven unsuccessful because individual parties can elect not to 

participate, or even if they do participate, they can ignore the resolution. 287 

Thus, because of the nature of MMORPGs, it appears that virtual-property 

thefts require some form of government regulation; otherwise, video gamers 

will be left without any recourse as a result of ineffective internal regulations. 

C. Other Systems of Regulation Used Abroad 

While the United States has yet to address the issue of virtual-property 

ownership and the regulation of its theft, other countries have already begun to 

implement various systems of regulation. Many of these countries have begun 

280 World of Warcraft Community Site, Blizzard Support: Restoration Policy, http://www.blizzard.com/ 

support/wowgm/?id=agm01724p (last visited Mar. 3, 2007). This Restoration Policy, furthermore, 

demonstrates Blizzard’s recognition that there is a problem of theft within the World of Warcraft virtual world. 

281 Second Life, supra note 31. 

282 iCourthouse is an internet site that allows users to bring forth a claim before a jury of Internet users. 

See iCourthouse, http://www.i-courthouse.com/ (last visited Mar. 3, 2007). 

283 SquareTrade, http://www.squaretrade.com/cnt/jsp/odr/overview_odr.jsp (last visited Mar. 3, 2008) (an 

Internet site that provides Internet users with the ability to undergo an online dispute resolution process). 

284 See generally Andrea M. Braeutigam, Fusses that Fit Online: Online Mediation in Non-Commercial 

Contexts, 5 APPALACHIAN J.L. 275, 276 (2006) (explaining the various online dispute-resolution mechanisms 

available). 

285 E.g., Posting of Zék to http://forums.wow-europe.com/thread.html;jsessionid=9E2B67DE58B4BC284 

5F6D21393128690.app03_04?topicId=1511942237&sid=1 (last visited Mar. 3, 2008) (on file with author) 

(explaining how he was scammed into trading items to another player who subsequently logged off with his 

virtual goods, and how the General Masters of the game refused to restore to him the stolen items); Mystic 

Worlds: No Items Restored, http://notadiary.typepad.com/mysticworlds/2007/01/no_items_restor.html (Jan. 

21, 2007) (reporting that after a four-week investigation, World of Warcraft was unwilling to restore the 

gamer’s stolen virtual property, sending her this letter instead: “Unfortunately, we were unable to verify the 

loss of the reported character assets . . . a basic set of . . . items have been provided for the above listed 

characters. . . . While we make every effort to verify your loss there are times where restoration is not 

possible.”). 

286 See supra note 285 and accompanying text. 

287 Miriam R. Albert, E-Buyer Beware: Why Online Auction Fraud Should Be Regulated, 39 AM. BUS. 

L.J. 575, 631 (2002).


to use existing penal statutes to regulate the theft of virtual goods. These 

foreign systems of regulation suggest that the United States could treat the 

theft of virtual goods as legally cognizable theft under its current penal 

statutes. 

China, for example, has begun to develop law to regulate virtual-good 

thefts, and its Supreme Court has already ruled on a video gamer’s property 

interests in virtual goods. In a landmark decision by a Chinese court, Li 

Hongchen v. Beijing Artic Ice Technology Development Co., a video gamer 

contacted an MMORPG publisher after his virtual weapons were stolen due to 

security holes in the game’s servers. 288 Mr. Hongchen spent two years and 

more than $1,200 playing the game and purchasing his virtual arsenal, which 

was stolen. 289 Artic Ice, however, claimed the virtual property was merely data 

and had no real-world value. 290 The court of appeals disagreed, ordering Artic 

Ice to return to Mr. Hongchen all game winnings and weapons that had been 

stolen. 291 In response to this case, one scholar commented, “[a]lthough the 

court invoked the principles of contract in its decision, it did so to protect a 

distinct property right—the right of the owner to control the property as against 

the world, not merely as against the party who committed the wrongful 

action.” 292 

Similarly, China’s higher-level Guangzhou Intermediate People’s Court 

recently found Yan Yifan guilty of online theft, making him the first person to 

be punished by the courts for stealing virtual property. 293 While employed by 

an MMORPG publisher, Yan Yifan obtained more than thirty players’ personal 

information, logged into their accounts, and surreptitiously acquired their 

virtual goods. 294 Yifan then sold the player accounts’ information and virtual 

goods to other players, profiting more than 4,000 Yuan (U.S. $500). 295 Yifan 

was sentenced to a fine of 5,000 Yuan (U.S. $617) by the Court of 

Guangzhou’s Tianhe District. 296 The appellate court affirmed the decision, 

288 See Lyman, supra note 69 (discussing Li Hongchen v. Beijing Arctic Ice Tech. Dev. Co. (Beijing 

Chaowang Dist. People’s Ct.)). 

289 Id. 

290 Id. 

291 Fairfield, supra note 70, at 1084–85. 

292 Id. at 1085. 

293 See SYDNEY MORNING HERALD ONLINE, Verdict on Virtual Property Thief Upheld, Apr. 4, 2006, 

http://www.smh.com.au/news/breaking/verdict-on-virtual-property-thief-upheld/2006/04/04/ 

1143916492279.html. 

294 Id. 

295 Id. 

296 Id.


finding that the time, energy and money spent by online players to gain the 

game’s equipment imparts value to the virtual goods. 297 

Following these two cases, China’s criminal law actively began to protect 

virtual property. For example, two seventeen-year-old boys recently were 

sentenced for virtual property theft. 298 Chengdu police were tasked with 

investigating the theft of virtual equipment worth approximately RMB 

50,000, 299 and the Public Security Ministry published an advisory letter to 

assist the police in prosecuting this new form of theft. 300 

Similarly, Taiwan has implemented statutory protection for virtual 

property. On November 23, 2001, the Ministry of Justice declared that “virtual 

objects are property, are alienable and transferable, that actions on such objects 

or accounts sound in property, and that the theft of such property is fully 

punishable under criminal law.” 301 Following this doctrine, the Taiwanese 

government has prosecuted cases covering virtual law through criminal 

theft, 302 fraud, 303 and robbery statutes. 304 

Korea has also utilized its current criminal laws to regulate virtual property 

disputes. In 2002, South Korean police received 22,000 cyber crime 

complaints related to virtual property. 305 In response to the rising rate of 

virtual-property crimes, South Korean police arrested 10,187 teenagers for 

theft of virtual property in 2003. 306 

Finally, the Netherlands has also used its police power to regulate the theft 

of virtual goods. In November 2007, a Dutch teenager was arrested for the 

297 Id. 

298 Fairfield, supra note 70, at 1085 (citing Beijing Evening News, http://www.chinanews.cn/2004/2004- 

10-13/26/493946.shtml). 

299 Id. (citing http://games.sina.com.cn/newgames/2003/12/12019148.shtml (Chinese language website)). 

300 Id. 

301 Id. at 1086. 

302 Id. at 1087 (citing Prosecutor of the Dep’t of the Procurator v. Lin Qunzhi, 82, 777 (Taiwan Nantou 

Dist. Ct.) (finding defendant guilty of cheating the victim into selling him her virtual equipment)). 

303 See, e.g., Prosecutor of Dep’t of the Procurator v. Xie Junjie, 91, 200 (Taiwan Maoli District Court), 

available at http://nwjirs.judicial.gov.tw/FJUD/index.htm (Chinese language website) (noting that the 

defendant asked the victim to meet for a transaction, but then forced the defendant to disclose the password to 

his account). 

304 Fairfield, supra note 70, at 1087. 

305 Mark Ward, Does Virtual Crime Need Real Justice?, BBCNEWS, Sept. 29, 2003, http://news.bbc.co. 

uk/2/hi/technology/3138456.stm. 

306 Fairfield, supra note 70, at 1088.


theft of virtual furniture, while five others were questioned by police. 307 The 

theft took place within the UK-based virtual world Habbo Hotel. 308 “[S]ix 

teens allegedly tricked a number of other users into handing over their 

usernames and passwords, and then” proceeded to move those users’ virtual 

furniture into their own rooms. 309 The seventeen-year-old arrested is accused 

of stealing some €€ 4,000 worth of virtual property. 310 

If China, Taiwan, Korea, and the Netherlands are able to successfully apply 

their criminal theft statutes to virtual property, then the United States, as shown 

in this Comment, should also be able to classify the theft of virtual goods as 

legally cognizable theft. Moreover, given the international scope of 

MMORPGs, the United States should seek to protect virtual property rapidly 

so that United States virtual-property theft victims and offenders are afforded 

as much protection (or punishment) as other international players. 

CONCLUSION 

If, in fact, the United States government is entertaining the idea of taxing 

the sale of virtual goods (and, thus, acknowledging their real-world value), it is 

only logical that the government should afford owners of these goods property 

rights to protect such investments against theft. This Comment has argued that 

virtual goods, under current state penal statutes, should be classified as 

“property.” Moreover, virtual goods must be afforded the property rights of 

chattels, as opposed to the rights of intellectual property, for their owners to be 

protected effectively from theft. Finally, this Comment has shown that current 

theft statutes could be applied to virtual good thefts, eliminating the need to 

draft additional legislation. In sum, “[g]overnments should make clear to 

[online] participants that, except where the special characteristics of the online 

medium require otherwise, existing law . . . is fully applicable to . . . conduct 

that is conducted via online communications.” 311 

307 Jacqui Chen, Online Property Theft Once Again Leads to Real-World Legal Action, ARS 

TECHNICA.COM, Nov. 14, 2007, http://arstechnica.com/news.ars/post/20071114-online-property-theft-onceagain-leads-to-real-world-legal-action.html. 

308 Id. “Habbo Hotel, a UK-based web site that mixes social networking with a virtual world . . . [allows] 

users [to] purchase furniture and other belongings with their (real-life) cash to decorate their virtual hotel 

rooms.” Id. 

309 Id. 

310 Id. 

311 Rothchild, supra note 277, at 969.


Although it may initially prove difficult for the government to prosecute 

thefts of virtual goods—considering there is no reporting or investigatory 

system in place for virtual good thefts 312 —this does not mean that successful 

prosecution is impossible. China, Taiwan, Korea, and the Netherlands have all 

successfully prosecuted the theft of virtual goods through their traditional 

criminal laws. And, as this Comment has shown, the United States could also 

use current criminal theft statutes to prosecute the theft of virtual goods. Local 

or federal legislative bodies may need to establish new regulatory agencies to 

investigate these crimes (or at least to form a coalition with MMORPG 

developers), but current statutes do permit the theft of virtual goods to be 

classified as legally cognizable theft. 

Moreover, criminal law is the right institution to address the problem of 

virtual theft. Criminal law helps set societal standards: people obey criminal 

laws not only because of the consequences, but because criminal law is 

perceived as legitimate and deserving of compliance. 313 Thus, through 

criminal law, both state and federal governments have the opportunity to 

communicate to the masses that the theft of virtual goods is contrary to 

American values and to deter behavior before it happens. 

The Internet has redefined society’s ability to communicate and interact. 

Criminals can now commit crimes that past legislators never envisioned were 

possible. Current rules, however, do not have to change. Instead, current and 

future legislators should reinterpret the boundaries of old rules to 

accommodate changes in society evoked by the Internet. After all, crime, 

irrespective of the setting, is still crime. 

ANDREA VANINA ARIAS ∗ 

312 The design of this regulatory system is beyond the scope of this Comment. 

313 John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing 

Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 193–94 (1991). 

∗ J.D., Emory University School of Law, Atlanta, Georgia (2008); M.A., University of Pennsylvania, 

Philadelphia, Pennsylvania (2004); B.A., University of Pennsylvania, Philadelphia, Pennsylvania (2004). My 

sincerest thanks to my advisor, Professor Kay Levine, whose countless revisions helped this Comment surpass 

even my greatest expectations. I also would like to thank Professors Sara K. Stadler and Polly Price, Emory 

Law students Jessica L. Rosenthal, Caroline Branch, Eric Swibel, Craig Linton, John Mittelbach, and Liz 

Gould for their helpful comments. Finally, I would like to thank my family and friends for their unwavering 

support.

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