Academic journal article Harvard Journal of Law & Technology

Competing Lockean Claims to Virtual Property

Academic journal article Harvard Journal of Law & Technology

Competing Lockean Claims to Virtual Property

Article excerpt

I. INTRODUCTION
II. THE STATE OF VIRTUAL PROPERTY IN VIRTUAL WORLDS
   A. Property-Averse Worlds
   B. Second Life: Property-Promoting?
III. DESERT IN OWNED WORLDS
  A. Desert and Operator Rights
  B. Desert and User Rights
IV. CONCLUSION

I. INTRODUCTION

Fights over virtual world goods can have real world consequences. In 2005, for example, one Chinese gamer killed another over a stolen dragon saber. (1) Virtual world goods can also translate into real world profits--2006 saw the first millionaire of the popular virtual world Second Life, (2) Anshe Chung, who accumulated more than one million dollars in virtual world assets. (3) While the effects of virtual products are real, one wonders whether the property entitlements that might attach to them are secure. In particular, if the operator of a virtual world wanted to shut the world down, and by so doing destroy all of the products contained therein, would users have a right to stop it? This Note explores one normative justification that users might wish to use to assert claims to virtual property against operators of virtual worlds--Lockean labor-desert--and argues that the operators' initial labor-based rights to their virtual worlds severely limit the competing labor-based claims of users.

Virtual worlds are persistent, dynamic computer-based environments in which interconnected users interact with each other and the virtual environment around them. (4) Most worlds allow for an in-world property model, whereby users accumulate virtual products. (5) As a descriptive matter, End User License Agreements ("EULAs") typically limit any claims a user might wish to assert against an operator, but the underlying normative issue of user rights persists. Indeed, if a user's claim to a virtual product were strong enough, courts might be justified in ignoring the terms of a EULA that limited virtual property rights.

A virtual property right is a property right in a virtual product. (6) While both virtual and intellectual property rights protect interests in non-corporeal things, virtual property rights apply to rivalrous goods whereas intellectual property rights apply to nonrivalrous goods. (7) For example, a virtual property right can protect a domain name. (8) While anyone can own a copy of the Beatles' "White Album" without making others worse off, we cannot all own the same domain name--say, www.google.com--without destroying its usefulness. The content of a virtual property right is also different from that of an intellectual property right. Like real property rights, virtual property rights typically provide for the rights to use, to exclude others from using, and to alienate or transfer objects. Intellectual property rights, by contrast, prohibit copying or producing similar ideas, expressions, or products. (9)

Whether users can assert property claims against operators may have both economic and legal implications. Trade in virtual products is extensive--a spokesperson for Sony Online Entertainment recently estimated that there is a $200 million market for the sale of virtual goods. (10) If users cannot protect their virtual property interests against operators, the value of such products and trade may diminish. But if users can assert virtual property rights against operators, such rights suggest myriad legal questions. Are operators required to maintain artificial scarcity in virtual products? If a server fails, destroying virtual products, what relief can users seek? Are operators required to sustain virtual worlds to protect virtual property rights, even to the point of bankruptcy? Though this Note will not address all of these questions, they help to convey the importance of the issue.

Part II briefly explains how the EULAs of most virtual worlds currently limit users' claims against virtual world operators. Part III addresses the underlying normative conflict from a Lockean perspective by asking, as between users and operators, who has the greater labor-based claim to the products of virtual worlds? …

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