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1318 EMORY LAW JOURNAL [Vol. 57 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
2008] REGULATING THEFT OF VIRTUAL GOODS 1319 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). 131 Green, supra note 100, at 219. 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).
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