Thursday, July 3, 2008

Ownership of Items in Online Games

A recent post by Tobold on "virtual property rights" has been setting the geekosphere all a-flutter, so as a geek I figure I might as well weigh in on this again myself.

I agree that some folks seem, for whatever reason, to want to view this "who owns in-game objects" issue through a Marxian lens... but I'm not buying their conclusions any more than I buy other arguments that reduce to "because I want it."

What you do in a game isn't "work." When you pay to play a game, you aren't paying for a product, or for an opportunity to expend labor -- you're paying for an entertainment experience. On that basis, the whole notion of player ownership of any game object evaporates.

Let's say you rent an ATV for a couple of hours. When you're done, you don't get to keep the ATV. It was a tool for enabling you to enjoy an entertainment experience, and all you were doing was renting the use of that tool. In this light, whether the ATV is real or virtual is irrelevant; all that matters is whether you had a reasonable chance to have fun.

IANAL, but as I understand it, the product provided has to be fit for its communicated purpose. (That might make for an interesting legal challenge related to a MMOG, actually.) But again, the fitness qualification should apply regardless of whether the experience-enabling product is real or virtual. If the ones and zeros are being rented to you to allow you to have fun, then you don't own those ones and zeros any more than you own the ATV.

To the argument that game-specific virtual worlds are somehow unique by being RPGs, that an entertainment experience based on letting you pretend to be a literary character somehow grants you more of a right to ownership than some other kind of entertainment experience... I'd like to see that line of reasoning. How does it matter that you're pretending to be a character who can store objects in some inventory slot?

Again, I don't think being virtual makes any difference when what's being sold is an entertainment experience. Suppose I'm playing a character in a real-world Alternate Reality Game of your devising. As the operator of that ARG, you've bought a bunch of props to hand out to the people playing your game. Let's say that one of those props is a hammer, which you assign to my character for use as part of the game. If I then assert that because you let me use that hammer, I now own it, how would you respond?

More pointedly, suppose that in preparing for people to play your game you buy a hammer, some nails and some boards. You then assign those items to my character as props. If I have my character build a birdhouse out of those items, do I-the-player own the birdhouse?

If you say I do own it, what is the basis for that conclusion? If you say that I don't own the item I created in your game, then on what basis can you assert that players of a computer game own the looted or crafted objects in that game?

All that said, I will agree that the question of object ownership gets trickier for non-game virtual worlds like Second Life. And it's right to note that admitting the possibility of user ownership of in-world IP in non-game virtual worlds forces a need to try to distinguish between game and non-game virtual worlds. Since we can easily imagine gray areas between those types, that blurs somewhat any bright line we might want to draw.

But having acknowledged that there can be gray areas, I think we can still say that anything not in the gray area, anything that's clearly a game (such as WoW), creates no expectation of user ownership of anything other than time expended. All you're doing as a player is renting ones and zeros from a game operator to enable an entertainment experience. So far I've yet to see a satisfactory argument that being able to "create" "things" -- i.e., add more ones and zeros to the game operator's database through crafting a sword or other object -- during an entertainment experience creates any legally defensible expectation of ownership of those ones and zeros.

Of course, while I believe that a lawyer who understands virtual worlds could make the above case to even a gaming-impaired judge, game publishers obviously don't share that belief -- at least not to the extent that I do. And considering their lawyers would probably be arguing such a case in California, which case would therefore rise on appeal to the "we'll just make up whatever laws we want" Ninth Circuit, I can't say that the publishers are entirely wrong....

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