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

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1320 EMORY LAW JOURNAL [Vol. 57 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).
2008] REGULATING THEFT OF VIRTUAL GOODS 1321 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). 147 Green, supra note 100, at 221. 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).
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