Virtual Property: still crazy after all these years

Video Game Law Blog

October 26, 2011

Like all video game lawyers, we're interested in the wacky world of virtual property — in-game characters and property — and the questions that surround it, such as who owns virtual property, whether players have rights in virtual property, whether players can (or should) buy or sell virtual property for real money, etc. Sadly, these questions have not really been answered in a court of law. Not so sadly, bright minds continue to tangle with virtual property and the thorny issues it raises.

The most recent example is an interesting article by Justin Kwong in the William Mitchell Law Review titled "Getting the Goods on Virtual Items: A Fresh Look at Transactions in Multi-User Online Environments" (link to PDF here). One of the article's main arguments is that virtual property is acquired by licence, and that "purchases" of virtual property are "licenses to access certain features of an ongoing service, rather than acquisitions of goods where there is a formal transfer of title".

The article draws an analogy to mug clubs, where a pub patron can pay a membership fee and get a personal mug (that stays in the pub) that only the patron can use. The patron pays money for a separate and identifiably item and has almost exclusive possession of it — but not actual ownership, because the pub still owns the mug. Virtual property is the same, argues the paper, with virtual property being the mug and the game provider being the pub.

The article has received some coverage and has generated some interesting discussion (for example, at GamePolitics, SlashDot, and the St. Paul Pioneer Press). The author has also contributed to some of that discussion at his own blog (here).

It's good to see people continuing to engage these issues critically and in depth. Virtual property is a fascinating subject (to us, at least, and apparently others), and while we may not have a lot of direct judicial guidance about virtual property, this kind of discussion means that courts will be well-equipped if they do have to address virtual property issues in detail.