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

More documents

Recommendations

Info

1308 EMORY LAW JOURNAL [Vol. 57 Thereafter, the hacker can use the victim’s information to log into her account and transfer all of her virtual goods to his own account. 59 As described above, thieves can steal virtual goods both from within and outside an MMORPG. 60 These virtual good thefts can involve embezzlement, 61 deceit, 62 or hacking scams. 63 Given that thirteen million people subscribe to some form of MMORPG and are vulnerable to virtual theft, 64 it is imperative to analyze whether the theft of virtual goods should be legally cognizable theft. II. THE THEFT OF VIRTUAL GOODS SHOULD BE LEGALLY COGNIZABLE THEFT The theft of virtual goods in MMORPGs has received very little academic attention, despite its increasing frequency. 65 The fact that United States courts still have not determined whether to protect virtual goods through current theft statutes could explain the lack of scholarly development in this field. 66 This Comment serves to fill this gap in the legal scholarship and answer the question: should the theft of virtual goods be legally cognizable theft? Scholars seem hesitant to allow criminal law doctrines to regulate crimes within MMORPGs. In particular, commentators posit that confusion and category mistake is inevitable, rendering the application of criminal laws to For sure there was a Trojan on my system. My WoW account password was changed. After phoning Blizzard to reset it, I was able to log in. All my characters were standing around naked in front of a mailbox with everything sell-able gone. A backpack with a hearthstone was all that was left. I had less than a newbie. Posting of Whatever to http://www.cosmosui.org/showthread.php?t=56006&page=2 (Feb. 4, 2007, 8:14 EST). 59 Id. 60 See supra text accompanying notes 47–59. 61 See supra text accompanying notes 47–49. 62 See supra text accompanying notes 49–52. 63 See supra text accompanying notes 53–59. 64 See Woodcock, supra note 37. 65 WILLIAMS, supra note 5, at 5. 66 See Lastowka & Hunter, supra note 24, at 315 (noting that “time will tell” whether U.S. courts will acknowledge virtual crime). But see Game On, THE HOLLYWOOD REP., ESQ., June 26–July 29, 2007, at 1, 9 (noting that Judge Richard A. Posner recently created an avatar in Second Life, demonstrating that some courts are aware of the existence and relevance of these virtual worlds).
2008] REGULATING THEFT OF VIRTUAL GOODS 1309 virtual thefts inefficient and pointless. 67 In essence, these critics contend that it will be too difficult to apply criminal law to virtual thefts. 68 This Comment demonstrates how the current United States legal system could classify the theft of virtual goods as legally cognizable theft without implicating these concerns. In addressing this point, this Comment considers (1) whether virtual goods can be considered property; (2) if virtual goods are property, what property rights video gamers require to protect such goods from theft; and (3) whether existing legal provisions are sufficient to protect the theft of virtual goods or whether new provisions are required. A. Are Virtual Goods Property? Determining whether property rights exist in virtual goods first requires an analysis of the term “property.” Opponents of regulating the theft of virtual goods argue that virtual goods are not property because these goods are “simply ‘piles of data’ that ha[ve] no real-world value.” 69 They posit that much computer code is not property because it is non-rivalrous—that is, one person’s use of the code does not limit another person’s use of the same code. 70 If virtual goods are not considered property, a discussion about whether the theft of these goods should be regulated becomes meaningless. While the government cannot deprive a person “of life, liberty, or property, without due process of law” under the Fifth 71 and Fourteenth Amendments, 72 the definition of what constitutes property generally is left to the states. 73 Still, courts can reinterpret state definitions of property if those definitions contradict the Constitution or society’s demands. 74 Thus, property tends to be an amalgam of three definitional sources: common law doctrines, statutes, and custom and practice. 67 Ren Reynolds, Commodification of Identity in Online Communities 19 (Oct. 18, 2003) (unpublished manuscript written for the Association of Internet Researchers Conference), available at http://www.renreynolds.com/downloads/RReynolds_AoIR_2003.doc. 68 Lastowka & Hunter, supra note 24, at 302. 69 Jay Lyman, Gamer Wins Lawsuit in Chinese Court over Stolen Virtual Winnings, TECHNEWSWORLD.COM, Dec. 19, 2003, http://www.technewsworld.com/story/32441.html. 70 Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. REV. 1047, 1048–49 (2005). 71 U.S. CONST. amend. V. 72 Id. amend. XIV, § 1. 73 Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972); Michelle B. Bray, Personalizing Property: Toward a Property Right in Human Bodies, 69 TEX. L. REV. 209, 221 (1990). 74 Id.
Page 1 and 2: LIFE, LIBERTY, AND THE PURSUIT OF S
Page 3 and 4: 2008] REGULATING THEFT OF VIRTUAL G
Page 7: 2008] REGULATING THEFT OF VIRTUAL G

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?