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1314 EMORY LAW JOURNAL [Vol. 57 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.
2008] REGULATING THEFT OF VIRTUAL GOODS 1315 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.
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