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

1316 EMORY LAW JOURNAL [Vol. 57
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).