The End of Ownership in Virtual Gaming - Pacific Standard
Video gamers have discovered a new and scary loophole in the laws of ownership—and the upshot is that a lot of your digital property might not technically be yours.

Anyone who plays MapleStory—an online multiplayer game created by South Korean developer Wizet—soon learns to loathe what gamers call "looting." As in most fantasy massively multiplayer online games, or MMOs, players spend much of their time trotting about a large virtual realm in battle with vicious monsters. These monsters, once vanquished, leave behind in-game currency and all sorts of valuable or crucial items—which the victorious player is then obliged to wander over and click a button to collect, or "loot." Thousands of monsters populate the game's Maple World, each one carrying something for players to capture. Countless hours may be frittered away in this repetitive pursuit. Looting, for the dogged MapleStory player, becomes a maddening chore.

A version of this story originally appeared in the November 2017 issue of Pacific Standard. Subscribe now and get eight issues/year or purchase a single copy of the magazine.

A version of this story originally appeared in the November 2017 issue of Pacific Standard. Subscribe now and get eight issues/year or purchase a single copy of the magazine.

But MapleStory also features what it calls a Cash Shop. There, eager players may exchange real-world money for a number of in-game items—including, indispensably, a digital pet that offers companionship while also taking care of the looting, usually available for about $5 every 90 days. "The pet follows you around while you play, and items near the pet magically jump off the ground and into your inventory," explains Uzo Olisemeka, a longtime fan of MapleStory who insists that paying not to have to loot an item hundreds of times every hour is "a steal." MapleStory is officially free to play, and nobody is required to spend money in the Cash Shop. At least in theory. "The game is practically impossible to enjoy at higher levels without a pet looting for you," Olisemeka points out. "But nobody thinks of it as a subscription fee, and everyone gladly pays for their pet."

But what exactly does a player of MapleStory own when they spend money on their digital pet? The question is becoming increasingly relevant at a time when more and more of our property exists in the virtual sphere: digitally downloaded movies, television programs, Kindle books, MP3s. We understand perfectly well that when we exchange money for physical goods—for a TV or a refrigerator or a pair of jeans—that a tangible transaction has been conducted. Namely, we understand that, having given money to another party and having received goods in return, the goods in question now belong to us in a concrete and legally protected way.

If someone steals our TV or our refrigerator or our jeans, we safely assume a crime has been committed against us. But what about an item in a video game? What happens if it's stolen, or if a glitch in the software causes it to simply vanish? Did such an item ever really belong to us in the first place? The scenario isn't hypothetical. In-game valuables are stolen all the time: They're the objects of cons and swindles, frequently sought by swindlers and grifters—such as a briefly notorious heist in the popular MMO EVE Online, in which thieves made off with in-game merchandise worth more than $16,000 offline. Game economies that involve bartering can even make people vulnerable—in the real world—to malicious ruses and unfair trades. It may be possible to exchange real cash for, say, a powerful magic sword. But to what extent is that sword really yours?

In fact, these questions are incredibly complex, and for the most part the answers are alarming—not just for gamers like Olisemeka, but for anyone who spends money in return for something intangible. Buy a copy of Jurassic Park on Amazon Prime? Purchase a copy of Call of Duty from the PlayStation Store, or the new Lorde album on iTunes, or Lolita for your Barnes & Noble Nook? There are a million things you can, in a sense, "own" in the digital sphere—and still more and more to come. The trouble is, you may not have the claim to them you think you do.

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There are essentially three distinct kinds of property in the eyes of the law. There's real property, like a home or a piece of land. There's personal property, like a TV or a sofa. And there's intellectual property, like a song or a film. Most of the time, we understand pretty clearly how these distinctions work and what it means for us to own the objects that fall under each category—and what it means for them to be stolen from us. "Those three forms of property do most of what we need property rules to do," says Aaron Perzanowski, a professor of law at Case Western Reserve University and a specialist in ownership in the digital age. "But digital technology, software, virtual worlds, and the shift from an economy that relies on tangible media to one where things are increasingly digital, is leading or could lead to the recognition that there's actually another form of property we need to recognize. And that's intangible personal property."

Intangible personal property, Perzanowski says, is "kind of a combination of the property interest you have in your couch with the kind of incorporeal, intangible nature of intellectual property." Consider a powerful magic sword you purchased in a popular online video game. The developer of the game for which that sword has been created has a self-evident right to its design—in other words, it's their intellectual property, and they ought to be protected under existing intellectual-property law from, say, seeing that idea stolen and unfairly copied by another game. But it also seems reasonable that you, the person who has exchanged money for the sword, should have some legal claim to it. You should be free to use it as promised, and it should be yours to use as long as you'd like, in any way that you'd like, within reason. "It's not that you would own the copyright in the game," Perzanowski says. "But this is a particular digital asset, a digital resource, that we might recognize your property interest in. Right now the law just doesn't do that."

As Perzanowski says, "the way the law thinks about it is through the lens of intellectual property and contractual relationships"—that is, the contractual relationship between the copyright holder of the game and the person playing it, who agrees as a matter of course to what's called an End User License Agreement any time they start a new game. (These EULAs are sort of like the Terms and Conditions forms you hastily agree to when you buy a new iPhone.) Our relationships to our digital assets are overwritten by contracts designed to favor the rights of the developer almost exclusively.

That's created a drastic disconnect between what people are actually receiving in exchange for their money and time online, and what they think they're getting. "There is a relationship between how much we spend and how much control we think we're getting in exchange for that payment," Perzanowski says. "Even with really inexpensive purchases—books that cost $5 or $6, albums that cost $10—people assume that they're getting the same kinds of rights to resell, to lend, to give away, that they would get with a physical object." They're not, needless to say. These phantom objects are yours only as long as, and only to the extent that, their creators allow it.

Virtual gaming illustration.

So let's return to Olisemeka and his digital pet in the Maple World. He's exchanged actual cash to have it by his side and therefore believes he's bought it. But what is Olisemeka actually getting? "He's being given a time-limited, non-exclusive right to use that item as long as he's playing the game and as long as he's paid up," says Joshua Fairfield, a law and technology scholar at the Washington and Lee University School of Law. "But not really even that. All game contracts say that you have no property interest in this whatsoever, and in fact we can terminate your access to the game at any time. It's, in a sense, an illusory contract. You give them money and they let you play for one instant longer. So really you get nothing at all." The fine print that comes along with nearly every digital purchase, from MP3s to books, functions in more or less exactly this way.

Perzanowski believes this qualifies as false advertising. "Look, there's a mismatch between what people think they're getting and what they are getting," he says. "We need to be more clear with them when explaining what they're getting for their money." The short-term solution would be to clarify the language at the point of purchase—to stop using words like "buy" when what's really meant is "acquire a time-limited, non-exclusive right to use." The long-term solution would be to actually let people buy these things in some meaningful sense—that is, "come up with a system that recognizes these kinds of property interests," as Perzanowski says. Perception would finally match reality because the reality would finally be sensible.

Of course, for the time being, the developers should be pleased with the status quo. "These games are all about inducing an addiction to keep buying stuff," says Jon Festinger, an expert in video-game law at the University of British Columbia. Festinger gushes about a game called Real Racing 3, in which he's been known to indulge in the occasional pseudo-purchase. "This stuff is presented as beautiful and real and something you want," he says. "Let me tell you, the cars in Real Racing 3 look so magnificent. Hats off to their art department. And I damn well feel those cars belong to me." Festinger understands the ambiguity of ownership better than anyone. "There's no warning label that says, 'Understand that you will never actually own this, and nothing is forever, bucko.' Nothing like that comes up. There are some really serious consumer protection aspects to this."

Exactly how little one receives in exchange for real dollars and cents becomes all the more apparent in cases where the purchased item is stolen or lost. In more elaborate and competitive MMOs, players are often tricked or scammed out of their most valuable items, duped into giving up swords or trading precious resources for meretricious ones. That's when gamers are confronted with a hard truth: They have no legal basis for considering these items theirs. Courts don't tend to listen to complaints about digital theft—not definitively, but overwhelmingly, simply as a result of how digital property is currently conceived. A gamer who decides to scam you out of your expensive magic sword effectively cannot be taken to trial.

The trouble here is twofold: On the one hand, courts of law have a difficult time understanding that something intangible can even be stolen, for the simple reason that intangibles—like magic swords or MP3s or digital files of any kind—are rarely the subjects of theft claims. On the other hand, the primary sense in which digital property has been defined in court at all to date is as intellectual property, which is to say as something that nobody but the copyright holder can claim to own. The problem with the latter was first illuminated during the rush to stem piracy at the dawn of the MP3: In its bid to protect music labels from the emerging threat of file-sharing, Congress failed to extend property rights to the digital files that music fans buy.

"There's no deep problem with intangible stuff as property," Fairfield says. "You can't reach out and touch your bank account, you can't reach out and touch your stock portfolio—there's tons of stuff you can't physically touch that we still consider property." But video games, and the digital property therein, "get hit with the other side of the double whammy: They're not just not touchable, they also contain intellectual property. Your bank account is not touchable, but at least it doesn't have somebody else's intellectual property in it. Whereas the magic sword is very carefully controlled by licensing."

In a court of law, that makes the sword's theft, however costly, a non-issue. "The courts aren't taking it seriously because, one, this is intellectual property governed by a license, and, two, it's intangible, and that double whammy clouds judgment and makes it hard for people to understand when someone steals $5,000 worth of virtual assets." But surely if every player has accepted a license, and the terms of that license prohibit theft, a victim of theft has the grounds to sue the one who broke the rules? Alas, no. Players enter contracts with the developer of the game—not with one another. "If I agree with the game to be nice," Fairfield explains, "another player who has also made that agreement isn't the beneficiary. Basically, [developers] don't want their user base suing each other."

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Policing a constituency that numbers in the tens of thousands is enormously demanding. But it behooves a developer to expend the resources, because a happy audience is one that continues to play and pay. "This is super, super high-priority," says Kimberly Voll, a technical designer at Riot Games. Riot is the studio behind League of Legends, one of the most popular MMO titles in the world, and Voll is involved with player behavior, helping to better manage complaints and resolve conflicts of this kind. "Satisfaction matters a lot to us," she explains. "We're all players of the game too. It's worth every penny for us to address these concerns, because it means that the game, long-term, will be a better experience."

This is a progressive philosophy, and it's encouraging to know that developers take these ideas seriously. (As the gaming world begins to grapple with the issue of digital property rights, one hopes that other industries working in the digital realm will follow their lead.) But the problem with a system of conflict resolution entirely oriented around the developer is how little the player can do if the developer should choose not to oblige. You don't own your magic sword; indeed, you never did, and the developer has no obligation whatsoever, legal or otherwise, to do anything if it's taken away.

I asked Olisemeka how he feels about his rights over the items he's spent money on. He tells me that, while he "wouldn't necessarily be upset" to learn that his things could be removed or taken from him, he would feel better about spending money in the future if there were some way to protect the investment. "I would like stronger guarantees around what I spend money on in a virtual world," he says. But he likes to think it would be self-policing. "If the developers were cheating their community, the community would go elsewhere. They can't kill their cash cow. There's no way to justify screwing with people who are willing to give you $500 for pixels they don't legally own." Gamers have, in the past, proven persuasive lobbyists after all: Outcry and grassroots campaigns routinely affect developer policy and the content of controversial games.

It's easy enough to dismiss the ownership of a digital pet or magic sword as a trivial matter. But how many things in our lives, how many of our possessions, are headed for the same legal limbo? We're only going to acquire more digital property as time goes on. This is a battle that's coming soon to a phone store and auto dealership near you. "I think these issues are going to spread throughout the entire economy," Perzanowski says. "It's not just a problem of digital games or digital worlds. Almost every device you can think of now comes with embedded software. You go buy a car, a TV, a watch—all of those things are tiny computers." The rapid spread of the digital hasn't just replaced once-physical objects like CDs with intangible alternatives. It has implanted still-physical objects with digital components—and those components have consequential effects. "All these tiny computers in your devices have software, and the software industry keeps putting forward the same idea: You don't really own the software, you license it," Perzanowski says. Our relationship to the things we own isn't simply changing as the world becomes more virtual and less concrete. The sense in which we understand ownership in the first place is poised to disappear.

A version of this story originally appeared in the November 2017 issue of Pacific Standard. Subscribe now and get eight issues/year or purchase a single copy of the magazine.

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