Who owns my avatar? - Rights in virtual property

This paper presents a framework for discussing issues of ownership in connection to virtual worlds. We explore how divergent interests in virtual property can be mediated by applying a constructivist perspective to ownership. Virtual property is an important area of study for at least two reasons: First, the virtual trade has far-reaching consequences in the real world, including extensive economical consequences. Second, there is no agreement and no established practice regarding rights to virtual objects. Virtual worlds, where hundreds of thousands of people engage in thrilling scenarios, are a relatively new arena for social intercourse. To a large and increasing group of people virtual worlds are an important source of emotional and social well-being. The average player spends almost 20 hours a week in these environments. (Castronova, 2001) The trade with virtual property is constantly in progress and involves astonishing amounts of money. During a two week period in april 2004 the value of the trade on Ebay for the game Ultima Online reached 156 857 US$, have in mind that these is merely one game at one auction site under a short period of time. (Dibbell, 2004) The extensive trade shows that many players treat their virtual property as if it were their real private property. Meanwhile many license agreements explicitly state that all rights belong to the game developers. For instance, before playing Star Wars Galaxies, you must grant Sony Online Entertainment "a universal, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise all rights of any kind or nature associated with your Content". (Sony Online Entertainment, 2003) Evidently, there is a serious conflict of interest. This question of virtual ownership may at first seem quite abstract, yet sooner or later one of the game-companies will start to lose money and shut down their virtual world. When this happens, virtual property worth millions of dollars will instantaneously vanish. A player who has spent several years in the game and has had the option of selling his virtual assets for hundreds of dollars will face a considerable financial loss. (Thompson, 2004) Maybe the best known conflict of interest in the area so far is BlackSnow Interactive v. Mythic Entertainment, Inc. BlackSnow Interactive was a company in California who hired unskilled mexican labourers to develop high-level characters by regular gaming. BlackSnow later sold these characters for a decent profit. Mythic, the producer of the game played by BlackSnow’s labourers, found out about the enterprise and shut down all BlackSnow-related accounts, claiming infringement of the license agreement. BlackSnow, on the other hand, sued Mythic for unfair business practises. The opportunity to try the relevant rights and interests in a court of law unfortunately vanished when BlackSnow found itself unable to continue the process due to economical and legal problems unrelated to the lawsuit. At the moment there is no guidance at all concerning how conflicts of this sort should be solved. This paper continue the work in Laws of Virtual Worlds (Lastowka & Hunter, 2003) where the authors established that virtual property interests are indistinguishable from real world property interests, yet left the question of how these interests should be weighed unanswered. Richard Bartle has also considered the issue and concluded that legislators sooner or later will have to decide how to deal with virtual trade and that when they do so it should be in favour of the game-producers. (Bartle, 2004) Within the utilitarian tradition, it is a well established practice to view property rights as social and legal conventions that should be evaluated according to how well they contribute to the general welfare. (Bentham 1843) This instrumental approach to property has led to the development of theories about ownership as a bundle of rights. One need not endorse the normative claim about the general welfare in order to accept the bundle analysis of property. Henry Sidgwicks provides one early analysis of property as composed of three rights: a right to excluxive use, a right to destroy and a right to alienate. (Sigdwick 1891) Sidgwicks account has been followed by numerous alternative accounts, the most influental of which is Tony Honoré’s list of eleven components of ownership: The right to possess, the right to use, the right to manage, the right to income, the right to the capital, the right to security, the incident of transmissibility, the incident of absence of term, the duty to prevent harm, liability to execution, and a residuary character. (Honoré, 1961) Sidwick and Honoré attempt to account for the content of a full or complete or maximally extensive ownership. But in practice (as they are aware) not all cases of what we call ownership include all of the listed rights. Depending on the local legislation, you may not be allowed to decorate or refurbish your house the way you like, you may not be allowed to destroy the bills in your wallet, and you may not be allowed to bequeth your belongings the way you want. Still we call these things ours. Other things that we have some component rights to, such as a flat we rent, do not qualify as ownership in the common language. Though Honoré settles for a Wittgensteinian interpretation of family resemblence between different instances of ownership, with no core component, the right to sell (by Honoré included in the right to capital) is what often draws the line between ownership and rights without ownership. The division of bundles into ownership and simply legal rights is, however, but a terminological question. Bundles of rights can be legally construed in many different ways and new bundles are continousely created to handle new challenges resulting from technological change or innovative economical solutions. Thus such immaterial pieces of property as shares, options, patents and copyrights have become common to law and practice. By adopting a constructivist perspective on ownership, the property interests in virtual worlds can be analyzed in their own right, without relaying too heavily on inadequate notions of ownership. Whether gamers should have a right to sell their virtual belongings or not might determine whether or not we should call their interest in these belongings ownership. But regardless of how this matter is dealt with, there are other interests that are separable from those in trading that might deserve legal protection. An interest analyzis of the area will prepare the ground for future solutions to conflicts of interest that are bound to demand attention from court rooms and legislators sooner or later. References Bartle, Richard (2004), "Pitfalls Of Virtual Property", Themis Group Bentham, Jeremy (1843), "Principles of the civil code". The Works, published under the superintendence of John Bowring. UK, Edingburgh. Castronova, Edward (2001), "Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier". CESifo Working Paper Series No. 618. http://ssrn.com/abstract=294828 Dibbell, Julian (2003), "Play Money", http://www.juliandibbell.com/playmoney/index.html Honoré, A M (1961), "Ownership", ss 107-147 in AG Guest, Oxford Essays in Jurisprudence. Lastowka, F. Gregory and Hunter, Dan (2003), "The Laws of the Virtual Worlds". California Law Review, Forthcoming http://ssrn.com/abstract=402860 Sigwick, Henry (1891), "The Elements of Politics", London. Thompson, Clive (2004), "Game Theories", Walrus Magazine, http://www.sophists.org/article290.html Sony Online Entertainment (2003), "End User License Agreement", http://starwarsgalxies.station.sony.com/tos.jsp