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1334 EMORY LAW JOURNAL [Vol. 57 information readily available in the public domain; and (2) by requiring game developers to surrender such data. 222 To obtain data available in the public domain, government agents could maintain a presence in MMORPGs and collect information like any other player. 223 “In these instances, the observed avatars/persons can rarely argue that their privacy has been breached, as the information the government collects and uses was viewed and gathered in an open, public forum where an expectation of privacy can rarely exist.” 224 Gathering data in this fashion would only raise privacy concerns should the government agents fail to properly identify themselves or their assignment to the observed avatarperson. 225 Still, one scholar argues that privacy invasions could occur should the government require game developers to relinquish information directly to prosecutors. 226 Yet, as long as the government follows the process for obtaining such information as delineated by the Electronic Communications Privacy Act (ECPA), 227 this scholar’s privacy concerns are moot. 228 Under the ECPA, game developers would not be required to release information to a prosecutor unless the prosecutor had first obtained a warrant, a court order, or the consent of the subscriber to such disclosure. 229 Thus, although this scholar is justified in voicing such privacy concerns, this problem can be overcome as long as prosecutors gather data available in the public domain or from game publishers, if ECPA guidelines are followed properly. III. OTHER REGULATORY SYSTEMS Although it appears plausible to apply the MPC and most state theft statutes to the theft of virtual goods in the context of online video games, other regulatory systems could be applied to the theft of virtual goods, as well. First, this Comment analyzes whether there are other U.S. legal frameworks that could be applied to the theft of virtual goods. Second, this Comment 222 Id. at 243–48. 223 Id. at 244. 224 Id. 225 Id. An agent’s failure to identify herself as a government employee is not a situation unique to MMORPGs. Id. 226 Id. at 244. 227 18 U.S.C. § 2703(c)(1)(B) (2006). 228 Zarsky, supra note 221, at 244. 229 Id.
2008] REGULATING THEFT OF VIRTUAL GOODS 1335 highlights the weakness of the most widely suggested solution—no regulation at all. Finally, this Comment discusses the solutions in place in other countries to demonstrate how other countries have successfully prosecuted and regulated the theft of virtual goods. A. Current U.S. Legal Frameworks Plausibly Applicable Although U.S. courts have yet to review a virtual-good theft case, several scholars are of the opinion that other legal frameworks, beyond theft and embezzlement penal statutes, would be applicable to such situations. The following pages address the applicability of computer trespass, the Federal Computer Fraud and Abuse Act, the National Stolen Property Act, and civil law, in turn. 1. Computer Trespass Some scholars believe that computer-trespass statutes are the proper regulatory tool to address the theft of virtual goods. In particular, one scholar argues that “some activities involving the exploitation of game software for financial gain may give rise to criminal liability under computer trespass statutes.” 230 In the case of the theft of virtual goods, consumers could state a common law claim of trespass to chattels to state their claim. 231 After all, courts have found trespass liability for unauthorized access to computer operations (also known as “hacking”). 232 The problem with using computer trespass to prosecute virtual-good thefts, however, is that not all actions involving theft of virtual goods consist of computer trespass or hacking. In the situation where a party member runs off with a virtual good while the video gamer makes room in his bags, there is no computer trespass, yet there is still a theft of a virtual good. Moreover, trespass to chattels is limited to civil law: the punitive and deterrent aspects of criminal law would not be available through this medium. 233 Thus, although computer trespass statutes could be applied in some situations, these applications would neither sufficiently punish nor deter all types of thefts. 230 Lastowska & Hunter, supra note 24, at 294. 231 “A trespass to a chattel may be committed by intentionally . . . using or intermeddling with a chattel in the possession of another,” where “the chattel is impaired as to its condition, quality, or value.” RESTATEMENT (SECOND) OF TORTS §§ 217(b), 218 (1965). 232 See, e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000); Thrifty-Tel, Inc. v. Bezenek, 54 Cal. Rptr. 2d 468 (Cal. Ct. App. 1996). 233 See infra text accompanying notes 248–57.
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