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1310 EMORY LAW JOURNAL [Vol. 57 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his right to sell his virtual property. 76 The court, however, never ruled on this claim because the lawsuit was withdrawn pursuant to a clause in the End-User Agreement requiring players to arbitrate all disputes. 77 More recently, in Bragg v. Linden Research, Inc., 78 a former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.
2008] REGULATING THEFT OF VIRTUAL GOODS 1311 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
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