Is virtual property found within games and often freely traded real legal property? One legal expert says absolutely not. Minneapolis lawyer Justin Kwong says those virtual baubles you spent real-world cash on are simply lines of code owned temporarily through a license. Or so he posits in the most recent issue of the William Mitchell Law Review (as highlighted in this article).
"At their core, virtual items are lines of software code that exist within larger computer programs," according to Kwong, who also writes a blog called Virtual Navigator on legal issues in online worlds and social networks. "Many scholars and authors have attempted to paint virtual items or virtual land as a new form of property. To date, no online environment has expressly acknowledged any such right to items within their world and no U.S. court or legislature has recognized a right to virtual-world assets."
Greg Lastowka, a law professor at Rutgers University, points out that courts in other countries such as South Korea, have begun treating virtual items as real property. He also notes that domain names are just lines of code too, and they have been regarded as property in U.S. courts.
"Your bank account is lines of code," he adds.
But Lastowka also concedes that virtual items don't fit the traditional legal definition of real property like a piece of land or personal property, and would be difficult to make an exclusive claim of ownership to an item created in an online game.
But "there's a lot of different ways you can have a property right," he said. "I think we'll see a day – it might not be next year, it may be five or 10 years from now – where a court will recognize some form of virtual currency or virtual property as legal property," Lastowka said.
Kwong says that for now, when you purchase a virtual item in an online game, you are really buying a license, not a piece of property.
Kwong compares the experience to the Mug Club at the Contented Cow, a pub in Northfield, Minn. For a fee, a bar patron can join a club that gives him or her the exclusive right to use a numbered mug, "but he or she does not own it – the mug must stay in the pub," according to Kwong. "Virtual items are analogous to the mugs because they are created by software and cannot be moved outside the realm for which they were created," according to Kwong.
Instead of trying to give the status of legal property to virtual items, Kwong says he'd like to see more standardized language used on terms-of- service or terms-of-use agreements in online games.
Kwong followed up on the story that appeared in the William Mitchell Law Review with a rather lengthy post on his Virtual Navigator blog – mostly to address the harsh comments he received from readers, who strongly disagreed with his assertions. It's worth reading for some clarification on the topic. Clearly the issue will continue to be argued until someone, somewhere either takes a case involving virtual property to court – and wins or loses, setting some sort of precedent.
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