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1332 EMORY LAW JOURNAL [Vol. 57
impression that with EULA law as it stands, players will remain without
property rights in virtual goods. 205 And without property rights, a state’s theft
prosecution will fail.
Nonetheless, there are many scholars who believe that certain sections of
MMORPG EULAs are invalid, making the EULAs unenforceable. 206 These
scholars argue that EULAs should protect the developers’ intellectual property
rights over virtual goods and nothing else, retaining for video game players the
right to use, possess, enjoy, and exclude virtual goods. 207 One scholar in
particular argues that MMORPG EULAs place an unreasonable restraint on
virtual goods, limiting the property to low-value uses 208 —a limitation not
allowed by U.S. courts. 209 Other scholars argue that the EULAs are
substantially unconscionable—and thus invalid—because the terms unduly
favor the developers, 210 the distribution of property falls outside the players’
expectations, 211 there is a lack of business necessity for such harsh terms, 212
and the distribution of MMORPG software should not involve licensing. 213
Finally, another scholar argues that if courts do not find EULAs unenforceable,
then public policy will force legislatures to step in and regulate both the
formation and enforceability of MMORPG EULAs. 214
205 Chein, supra note 80, at 1090.
206 See, e.g., Lastowka & Hunter, supra note 48, at 50 (arguing that EULAs place excessive restraints on
product users).
207 See Fairfield, supra note 70, at 1083–84; see also Schwarz & Bullis, supra note 109, at 25–28 (arguing
that Sony’s virtual goods market exchange that excludes other third-party market sales may constitute an
antitrust violation, thus invalidating its current EULA formulation).
208 Fairfield, supra note 70, at 1083–84.
209 See Glen O. Robinson, Personal Property Servitudes, 71 U. CHI. L. REV. 1449, 1480 n.111 (2004)
(“The common law has invalidated restraints on alienation of property from time out of mind.”).
210 Meehan, supra note 8, at 23.
211 Id.; see also Bobby Glushko, Note, Tales of the (Virtual) City: Governing Property Disputes in Virtual
Worlds, 22 BERKELEY TECH. L.J. 507, 527–30 (2007) (stating that developer-drafted EULAs favor developers
and do not meet player expectations as to legal liability and enforcement); Steven J. Horowitz, Note,
Competing Lockean Claims to Virtual Property, 20 HARV. J.L. & TECH. 443, 457–58 (2007) (arguing that
while players operate under Lockean conceptions of property, operators of virtual worlds do not).
212 Meehan, supra note 8, at 24.
213 Softman Prods. Co. v. Adobe Systems Inc., 171 F. Supp. 2d 1075, 1085 (C.D. Cal. 2001) (finding that
there was no license, but instead a sale, because “the purchaser . . . obtain[ed] a single copy of the software,
with documentation, for a single price, which the purchaser pay[ing] at the time of the transaction, . . . which
constitute[d] the entire payment for the ‘license[]’ [and] [t]he license runs for an indefinite term without
provisions for renewal”). If in fact licensing does not apply to MMORPGs, then video game players could
argue that they have the freedom to buy and sell virtual goods because of the first sale doctrine. See supra
note 194.
214 Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 VA. L.
REV. 2043, 2071–72 (2004). But see Westbrook, supra note 94, at 803–04 (arguing that public policy is not
overwhelmingly opposed to current MMORPG EULA provisions).