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1330 EMORY LAW JOURNAL [Vol. 57 d. Contracting out of Property Rights Scholars also argue that current contracts make the prosecution of virtual good thefts impossible. 194 Property rights are by nature alienable. A player can always give up her ownership rights over a virtual good through a contract. 195 In most MMORPGs, a player must sign an End-User Licensing Agreement (EULA) before beginning to play. 196 The language of these contracts is simple: the MMORPG provider retains all intellectual and property rights in all objects in the game. 197 194 Meehan, supra note 8, at 12–26. Essentially, scholars argue that these games are licensed, not sold, and thus are immune from copyright’s first-sale doctrine, which allows “the owner of a particular copy . . . without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” 17 U.S.C. § 109(a) (2006). See generally MARK A. LEMLEY ET AL., SOFTWARE AND INTERNET LAW 322–23 (3d ed. 2006) (describing that publishers license rather than sell their software to retain control after resale). Yet, [h]istorically, the purpose of ‘licensing’ computer program copy use was to employ contract terms to augment trade secret protection in order to protect against unauthorized copying at a time, when, first, the existence of a copyright in computer programs was doubtful, and, later, when the extent to which copyright provided protection was uncertain. Softman Prods. Co. v. Adobe Systems, Inc., 171 F. Supp. 2d 1075, 1083 (C.D. Cal. 2001). It could be argued that this purpose is not truly applicable to MMORPGs, thus making the extension of licensing protection—and consequently the exclusion of the first-sale doctrine protection—to MMORPGs questionable. See id. at 1091 (“[This] system of ‘licensing’ which grants software publishers this degree of unchecked power to control the market deserves to be the object of careful scrutiny.”). 195 Cf. Shi-Ling Hsu, A Two-Dimensional Framework for Analyzing Property Rights Regimes, 36 U.C. DAVIS L. REV. 813, 868–69 (2003) (noting that alienability is a property right). 196 See, e.g., World of Warcraft, End User License Agreement, http://www.worldofwarcraft.com/legal/ eula.html (last visited Mar. 3, 2007); Station Pass, End User License Agrement, http://tanarus.station.sony. com/eula.jsp (last visited Mar. 3, 2007). 197 For example, World of Warcraft’s Terms of Use state: Blizzard does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that appears in the Program. You agree that you have no right or title in or to any such content, including the virtual goods or currency appearing or originating in the Game, or any other attributes associated with the Account or stored on the Service. Blizzard does not recognize any virtual property transfers executed outside of the Game or the purported sale, gift or trade in the “real world” of anything related to the Game. Accordingly, you may not sell items for “real” money or otherwise exchange items for value outside of the Game. World of Warcraft, Terms of Use, http://www.worldofwarcraft.com/legal/termsofuse.html (last visited Mar. 3, 2008). For a thorough analysis of MMORPG EULAs, see David P. Sheldon, Comment, Claiming Ownership, but Getting Owned: Contractual Limitations on Asserting Property Interests in Virtual Goods, 54 UCLA L. REV. 751 (2007).
2008] REGULATING THEFT OF VIRTUAL GOODS 1331 Based upon the language of these EULAs, MMORPGs publishers have sought to enforce their property rights 198 and to eliminate those of players. 199 For instance, in 2000, Sony, the publisher of EverQuest, agreed with auction sites eBay and Yahoo! to ban the sale of EverQuest items and to remove any auctions from their sites. 200 Sony also banned individual players from EverQuest for alleged acts, such as item farming. 201 One MMORPG, Second Life, however, decided to grant players an ownership right to content they create and trade within the virtual world, though this right is arguably limited. 202 In general, United States courts have held that clickwrap 203 EULAs are valid and enforceable. 204 For this reason, most scholars remain under the 198 These rights are property rights, not intellectual property rights, and thus are not preempted by the federal copyright statute’s preemption clause, because they are not equivalent to the exclusive rights granted to copyright holders. See generally David Nimmer et al., The Metamorphosis of Contract into Expand, 87 CAL. L. REV. 17, 40 (1999). 199 See Game On, supra note 66, at 9 (stating that a player cannot claim property rights once he or she has agreed the EULA terms). In fact, the most recent lawsuit in the sale of virtual goods by third-parties demonstrates a MMORPG publisher’s right to limit the sale of their virtual goods. See Blizzard Entertainment, Inc. v. In Game Dollar, No. 8:07-cv-00589-JVS-AN (C.D. Cal. Dec. 17, 2007) (order granting permanent injunction pursuant to settlement between a third-party and a video-game publisher, essentially shutting down In Game Dollar’s selling of World of Warcraft’s virtual items), available at http://virtuallyblind. com/files/Peons_Injunction.pdf. 200 Reynolds, supra note 67, at 15. Ironically, EverQuest players may sell virtual goods they collect ingame for real-world money through Sony’s own marketplace, Station Exchange. See Terdiman, supra note 17. 201 Item farming is the act of playing a game merely to collect virtual goods intended for resale. Terdiman, supra note 17. 202 Second Life’s Terms of Service explicitly state: “[Y]ou will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.” Second Life, Terms of Service, http://secondlife.com/corporate/ tos.php (last visited Mar. 2, 2007). 203 A clickwrap agreement is an agreement that “allows the consumer to manifest its assent to the terms of a contract by ‘clicking’ on an acceptance button on the website.” William J. Condon, Jr., Electronic Assent to Online Contracts: Do Courts Consistently Enforce Clickwrap Agreements?, 16 REGENT U. L. REV. 433, 435 (2004). 204 Gloria C. Phares, Copyright Licensing, 863 PRACTISING L. INST. 63, 224 (2006); see also ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (finding that clickwrap EULAs are enforceable because the purchaser can return the goods for a refund if the terms of the clickwrap are objectionable); Moore v. Microsoft Corp., 741 N.Y.S.2d 91, 92 (N.Y. App. Div. 2002) (“[T]he End User License Agreement . . . contained in the defendant’s software program is a validly binding contract between the parties which bars the plaintiff’s claims.”); America Online, Inc. v. Booker, 781 So. 2d 423, 425 (Fla. Dist. Ct. App. 2001) (holding that the choice of forum clause was valid and enforceable); Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 200 (Tex. Ct. App. 2001) (holding that the forum selection clause in the contract between an Internet domain name registrar and its customer was valid). Ironically, stores, such as Best Buy and Circuit City, do not allow purchasers of software to return opened software to the store for a full refund. Instead, purchasers of software must contact the initial manufacturer of the software for a full refund.
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