Call the cops, he stole my Cloudsong! – A Followup

After this week’s Law of the Game on Joystiq, I noticed quite a few recurring and/or interesting comments. I thought I would take a few minutes to address them, just to clarify the column. If you haven’t read the article or the comments, now would probably be a good time.

(Note most of these are broad rephrasings, not actual quotes.)
1. “Can something you don’t own be stolen from you anyway? Do you even own MMO goods?”

This was the elephant in the room for the whole article, and the answer isn’t so clear cut. In some games, like World of Warcraft, you technically don’t own anything. In others, like Second Life, you do still own certain things. In either case, though, even something licensed to you can be stolen. If I have a copy of Windows XP and the license for that, and it’s stolen, I didn’t truly own the software. The license was still stolen from me. So long as the TOS for the game apply, everything you have in the game is licensed to you. The other issue mentioned was when the game ends, then what? Well, the game terminated according to the TOS, and therefore your license terminates.

2. “Why should your MMO inventory be treated differently from MP3s?”

This was an interesting question. In terms of theft, I don’t think there is a difference. If you’ve stolen my iPod and its MP3s, or if you’ve stolen my character and his inventory, they’re roughly the same. The reason they are treated differently now, on the other hand, is because there is a special interest group forcing the MP3 issue, and not one pushing the MMO issue. The other difficulty is that in an MMO context, the universe is finite (unless there’s a glitch) and so I, as a player, can’t duplicate the item (generally speaking, and ignoring skills like blacksmithing). With an MP3, duplication is as easy as “copy” and “paste.” That duplication of the MP3 may prevent what would otherwise be a sale. SecondLife complicates this a bit, but the same still generally holds.

3. “Digital items aren’t infinitely replicable without cost.”

While it is true, nothing is completely without cost, to create an additional digital item has a negligible cost. If I wanted to make 100 copies of a word file, what is the cost of those 100 copies? At most, a few kilobytes of storage space, space which was already paid for in other cost (purchase of the computer, for example). If I wanted to make 100 hard copies of the same document, what is the cost of those 100 copies? Probably $0.10 a page at a copy place, or the cost of paper and ink at home. If it were a real sword the company had to reproduce, it would likely be hundreds or thousands of dollars, whereas putting a new digital sword in your inventory is basically free.

4. “Items in MMOs aren’t stolen, they’re generally scammed out of people.”

Scams, broadly speaking, often fall to “larceny by trick” or “false pretenses.” Those are defined/explained:

Larceny by trick was created to punish the taking of property with the owner’s consent when that consent was obtained by Fraud or deceit. Before the courts created the offense of larceny by trick, defendants who had swindled their victims were able to argue that they had not committed larceny because the victims had willfully given them property.

Shortly after the courts created larceny by trick, they created the crime of obtaining property by False Pretenses. Before, a defendant who induced a person to part with the title to property could escape prosecution because the victim transferred not actual possession of the property but only title to the property. This commercial form of taking was made illegal under the law of false pretenses.

5. “Speaking of theft, nice Ebaums link.”

I just took the first link off Google.

The MMO theft issue is clearly a murky one that likely will remain at least partially unresolved for quite some time. However, the issue of virtual taxation, if it takes off, may force the issue of virtual theft to be resolved more quickly, as may the issue of valuation of virtual goods.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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