Written by Kristopher Badurek, a Bachelor student of Maastricht University’s European Law School. He is a tech enthusiast who puts emphasis on interdisciplinarity and self-development.
Massively Multiplayer Online (MMO) games keep maintaining their popularity, with new games spawning more frequently than ever. And yet, certain problems have always marred players of such games. Many players at least once logged into their accounts to find their beloved equipment gone. At times like this, many questions run through the heads of troubled players. One of them is, did I actually own that equipment?
Generally, all objects useable by the players, be it swords, blocks or currency, as well as avatars themselves, are considered under an umbrella term of virtual property. They are believed to be more than simple code, mostly due to their perceived fungibility and the ability to create a sense of personal attachment. The term virtual property seems to imply that it is a type of property. From the lay perspective, it can indeed be perceived as property. It can be possessed, used and enjoyed by the players. However, the situation is not as simple as it may initially seem.
Legally speaking, virtual property does resemble property to some extent. In his heavily influential work, Joshua Fairfield bases the similarity to real property on three factors: rivalrousness, persistence and interconnectivity. Both in virtual and real life, owning a piece of property comes with the possibility of excluding others from its use. Whether it’s a real house or one in Second Life, its owner may invite others and decline others’ visits as he deems fit. Both types of property are also persistent. Like its real counterpart, a virtual house will not disappear without a trace for no reason, even after the player turns off his computer. It is still there, somewhere, waiting for its owner to return. Lastly, both virtual and real property are interconnected. Upon inviting a friend to a house, be it real or virtual, both the player and his friend will be able to experience the same objects in the same place, even despite the friend not owning the object.
However, unlike real property, all virtual property is burdened with certain limitations. It is those limitations that effectively block its legal recognition as property. They stem from terms of service, which every player must accept before entering a virtual world. This so-called End-User License Agreement (EULA) controls virtually every action of the user. Most of these licenses pre-emptively require a waiver of any potential right to any virtual property that the player may amass over the time spent in game. It does not change the fact that the player is allowed to use, enjoy, and sometimes even profit from his virtual property, but at the end of the day, those objects are still factually owned by the virtual world’s developers. This means that virtual property is simply not owned by the player, and any rights to it the player may have are derived from the license granted by the developers.