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1324 EMORY LAW JOURNAL [Vol. 57 virtual good, he could not be guilty of this crime. This requirement, unfortunately, makes the prosecution of the scenario described above—where a party member runs off with another’s excess goods—applicable only to situations where the state is able to prove that the accused planned for the situation. 161 Nonetheless, prosecutors should still be able to utilize theft-bydeception statutes to prosecute thieves who utilize a scam to obtain another player’s virtual goods in those limited circumstances where the state has evidence that the accused planned the theft in advance. Thus, current theft-by-deception statutes could be used to prosecute virtualgood theft criminals, but only in limited situations and with discovery-related difficulties. This statute, however, should prove useful to prosecute thieves who utilize scams to obtain virtual goods. c. Embezzlement Prosecutors should also be able to use embezzlement statutes to prosecute the theft of virtual goods. To prove embezzlement under state penal statutes, prosecutors must show that there was a knowing conversion 162 of property by one lawfully entrusted with its possession. 163 Embezzlement may prove a better tool than theft by deception for the prosecution of virtual good thefts arising from situations where a party member, entrusted to hold a party member’s virtual goods, runs off with such goods. Embezzlement statutes do not present the possession and control problems typically associated with the application of these statutes to virtual goods 164 because the courts recognize that embezzlement statutes may be properly 161 It is possible that the defendant admitted to other players that he was anticipating the situation and intended to deceive the victim. Prosecutors could obtain such chat records by accessing the developer’s servers, but this would implicate privacy concerns. Still, prosecutors could also obtain testimony from those players who witnessed the defendant’s admission. 162 Conversion, within the meaning of embezzlement statutes, is the “fraudulent appropriation of a thing to one’s own use and beneficial enjoyment.” 29A C.J.S. Embezzlement § 16 (2007) (citing State v. Pietranton, 84 S.E.2d 774 (W. Va. 1954)). Appropriation, however, is something more than mere possession of the property. See State v. Barbossa, 384 A.2d 523, 525 (N.J. Super. Ct. App. Div. 1976). 163 Paul C. Jorgensen, Embezzlement, 24 AM. CRIM. L. REV. 513, 513 (1987). “[E]mbezzlement statutes protect against knowing conversion of specific items or services which are in the possession of another occupying a designated fiduciary relation . . . [and require] the prosecution [to] prove that an ownership interest is in someone other than the accused, and that there has been a conversion of the property with fraudulent intent.” Id. 164 See supra text accompanying notes 140–43.
2008] REGULATING THEFT OF VIRTUAL GOODS 1325 applied to intangibles, even those that cannot be physically possessed. 165 In such cases, the analysis turns on whether “the victim’s interest in the subject matter is sufficiently important that defendant’s interference with it should be penalized.” 166 Moreover, timing of intent is easier to prove under embezzlement statutes because these statutes allow for the intent to form after the thief takes possession of the good. 167 Thus, if the state is able to demonstrate that the victim’s interest is sufficiently important and that actual conversion, as opposed to mere possession, has taken place, then the state should be able to use embezzlement statutes to successfully prosecute certain virtual good thefts. 2. Arguments Against the Application of Current Criminal Penal Codes Some scholars have argued that current criminal statutes should not be used to prosecute virtual-good thefts because it might prove too difficult, 168 impractical, 169 or impossible. 170 This section seeks to dispel these scholars’ arguments by showing how the various states could overcome these various barriers. First, this Comment looks at the issue of jurisdiction, especially given that MMORPGs are played by persons from across the world. Second, this Comment considers whether anonymity would make prosecution impossible. Third, this Comment addresses whether the transaction costs involved with the prosecution of virtual theft outweigh the benefits. Fourth, this Comment examines the barriers placed by End-User License Agreements. Finally, this Comment considers whether a prosecutor’s discovery procedures would constitute an invasion of privacy. a. Jurisdictional Concerns Certain scholars have posited that the criminal prosecution of virtual-good theft would be difficult to implement due to jurisdictional obstacles. 171 165 See, e.g., People v. Menagas, 11 N.E.2d 403 (Ill. 1937) (holding that larceny includes the taking of electricity); Payne v. Elliot, 54 Cal. 339 (1880) (finding liability for conversion of shares of stock). 166 Comment, Theft of Labor and Services, 12 STAN. L. REV. 663, 665 (1960). 167 Cf. Jorgensen, supra note 163, at 515 (“[I]n cases where there is no direct evidence of intent, the appropriate focus is on the relationship between the defendant’s actions and his environment.”). 168 Hunter, supra note 24, at 302. 169 Reynolds, supra note 67, at 19. 170 Lastowka & Hunter, supra note 24, at 307 (arguing that video games have their own set of internal rules, making criminal law inapplicable). 171 Cf. James R. Hobbs & Amy R. Perry, Internet Gambling: Is It Worth the Risk?, 7 VILL. SPORTS & ENT. L.J. 1, 8–10 (2000) (noting how courts have addressed jurisdictional issues in Internet gambling cases).
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