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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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