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Volume 105

Note

Developing a Digital Property Law Regime

Kevin Dong, University of Illinois Urbana-Champaign, B.A., Philosophy & Political Science, 2014; Cornell Law School, J.D., 2020.

15 Sep 2020

Imagine you bought a hat. Do you own it? It would clearly seem so. You paid for it with your money, and now you can wear it, cut it apart, throw it away, and decide whether other people can wear it and who specifically has that privilege. But what if you bought that hat in a virtual world such as an online multiplayer video game? You paid for it with your money, your character can choose to wear it or not, and other players cannot wear your hat without your permission. However, should the game developers decide to take away your hat, it seems that there is little that you could do in a legal sense. You might send a support request demanding your hat or at least some recompense, but it seems unlikely that you would be able to go to court over your virtual hat. The game developer created the game and the rules by which this game operates, and you as a player have agreed to those rules by playing this game. If the end user license agreement (EULA) says that game developers have free reign to decide when to give away hats and when to take away hats, then you as a player have consented to their power to do so.

These were the type of inquiries conducted in Bragg v. Linden Research, Inc.1Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007). Linden Labs developed a virtual world known as Second Life.2SECOND LIFE, https://secondlife.com/ [https://perma.cc/M4DU-RGJJ]. Second Life is essentially an open virtual world where users can do just about anything, including, but not limited to, building things, buying and selling things, hanging out with friends, and going to the local virtual bar.3See Kristen Kalning, If Second Life Isn’t a Game, What Is It?, NBC NEWS.COM (Mar. 12, 2007, 5:54 PM), http://www.nbcnews.com/id/17538999/ns/technol- ogy_and_science-games/t/if-second-life-isnt-game-what-it/#.Xd2_KVdKg2w [https://perma.cc/NF5C-CN6L]. There is even a virtual currency called the Linden Dollar that facilitates the buying and selling of items, land, and services in Second Life.4Gordon Scott, Linden Dollar, INVESTOPEDIA (June 28, 2019), https:// www.investopedia.com/terms/l/linden-dollar.asp [https://perma.cc/D8DG- GGK6]. Many games have virtual currency systems that allow players to exchange real currency for in-game currency, which then allows them to buy in-game goods.5Examples of different in-game items players could buy include Poké Balls in Pokémon Go and Orbs in Fire Emblem Heroes.  See, e.g., Bob Fekete, ‘Poke ́mon Go’ Cost: Price List for All Microtransactions in the Latest Mobile Gaming Craze, PLAYER.ONE (July 8, 2016), https://www.player.one/pokemon-go-cost-price-list- all-microtransactions-latest-mobile-gaming-craze-544518 (listing prices for vari- ous items in Poke ́mon Go in Poke ́coins) [https://perma.cc/5TAN-2TLX]; Nadia Oxford, Fire Emblem Heroes: How to Get Lots of Orbs, USGAMER (June 8, 2017), https://www.usgamer.net/articles/08-06-2017-fire-emblem-heroes-how-to-get- lots-of-orbs (describing how to acquire and use Orbs in Fire Emblem Heroes) [https://perma.cc/9HHB-KKZZ]. What is most surprising about Second Life is that, not only can Linden Dollars be bought with real U.S. dollars, but Linden Dollars can also be exchanged back into U.S. dollars.6Scott, supra note 4. As such, Marc Bragg, an attorney from Pennsylvania, once purchased several thousand dollars’ worth of Second Life land.7See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 596–97 (E.D. Pa. 2007); Tateru Nino, Bragg Vs Linden Lab—The Story So Far, SECOND LIFE INSIDER, (Jan. 27, 2007, 5:01 AM), https://web.archive.org/web/20080317055638/ http://www.secondlifeinsider.com/2007/01/27/bragg-vs-linden-lab-the-storyso-far/ [https://perma.cc/2XG8-QB3M]. However, Linden Labs claimed that Marc Bragg had purchased the land through an exploit.8Linden Research, 487 F. Supp. 2d at 597. As punishment, Linden Labs “banned Bragg permanently from Second Life, canceling his account. . . . [and] it put up all of Bragg’s virtual land for resale.”9GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAWS OF ONLINE WORLDS 17 (2010). Linden Labs’ EULA stated that it held the right to terminate a user’s account for any reason, or for no reason.10Terms of Service, LINDEN LAB, (July 31, 2017), https://www.lindenlab.com/ tos [https://perma.cc/KX6T-WNME]. Ultimately, the case did not center around whether the land and items in Second Life were legally Bragg’s property, but instead around whether the mandatory arbitration clause in Second Life’s terms of service agreement was enforceable or not.11See Linden Research, 487 F. Supp. 2d at 611 (holding that the mandatory arbitration clause in Linden’s terns of service agreement was unenforceable because the Terms of Use was both procedurally and substantively unconscionable).

More than a decade after Linden Research, we still have no clear answer to the digital property question. Further, we do not have a particularly clear conception of what digital property exactly is, and many early scholars would use the words digital property and virtual property interchangeably.12Early virtual property scholars used the term virtual property to refer to many different things, and often used words such as virtual property and digital property interchangeably. I clarify the differences between digital property and virtual property in subpart II.B. Part I focuses on different scholars’ theories of virtual and digital property, so they may use the term more interchangeably than I would. As the world becomes increasingly digitized, and more and more of what we own and use is moved to cyberspace, the question of what digital property exactly is and what rights should we have over it becomes more important. In this Note, I will argue that the nature of digital property requires us to radically rethink what types of property rights we have, and that ultimately a new class of specific “virtual property” or “digital property” rights is necessary.

In Part I, I give a brief history of the scholarship and debate around virtual property and argue why the virtual property debate is still important today. In Part II, I consider ways in which digital property and physical property may differ, and ultimately argue that Palka’s13Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus). work on virtual property takes the necessary steps toward a coherent and sensible digital property regime. In Part III, I attempt to create the basis of what a digital property rights regime may look like and suggest future developments to my theory on digital property.

To read the entire Note, click here: Developing a Digital Property Law Regime.

References

↑ 1. Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007).
↑ 2. SECOND LIFE, https://secondlife.com/ [https://perma.cc/M4DU-RGJJ].
↑ 3. See Kristen Kalning, If Second Life Isn’t a Game, What Is It?, NBC NEWS.COM (Mar. 12, 2007, 5:54 PM), http://www.nbcnews.com/id/17538999/ns/technol- ogy_and_science-games/t/if-second-life-isnt-game-what-it/#.Xd2_KVdKg2w [https://perma.cc/NF5C-CN6L].
↑ 4. Gordon Scott, Linden Dollar, INVESTOPEDIA (June 28, 2019), https:// www.investopedia.com/terms/l/linden-dollar.asp [https://perma.cc/D8DG- GGK6].
↑ 5. Examples of different in-game items players could buy include Poké Balls in Pokémon Go and Orbs in Fire Emblem Heroes.  See, e.g., Bob Fekete, ‘Poke ́mon Go’ Cost: Price List for All Microtransactions in the Latest Mobile Gaming Craze, PLAYER.ONE (July 8, 2016), https://www.player.one/pokemon-go-cost-price-list- all-microtransactions-latest-mobile-gaming-craze-544518 (listing prices for vari- ous items in Poke ́mon Go in Poke ́coins) [https://perma.cc/5TAN-2TLX]; Nadia Oxford, Fire Emblem Heroes: How to Get Lots of Orbs, USGAMER (June 8, 2017), https://www.usgamer.net/articles/08-06-2017-fire-emblem-heroes-how-to-get- lots-of-orbs (describing how to acquire and use Orbs in Fire Emblem Heroes) [https://perma.cc/9HHB-KKZZ].
↑ 6. Scott, supra note 4.
↑ 7. See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 596–97 (E.D. Pa. 2007); Tateru Nino, Bragg Vs Linden Lab—The Story So Far, SECOND LIFE INSIDER, (Jan. 27, 2007, 5:01 AM), https://web.archive.org/web/20080317055638/ http://www.secondlifeinsider.com/2007/01/27/bragg-vs-linden-lab-the-storyso-far/ [https://perma.cc/2XG8-QB3M].
↑ 8. Linden Research, 487 F. Supp. 2d at 597.
↑ 9. GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAWS OF ONLINE WORLDS 17 (2010).
↑ 10. Terms of Service, LINDEN LAB, (July 31, 2017), https://www.lindenlab.com/ tos [https://perma.cc/KX6T-WNME].
↑ 11. See Linden Research, 487 F. Supp. 2d at 611 (holding that the mandatory arbitration clause in Linden’s terns of service agreement was unenforceable because the Terms of Use was both procedurally and substantively unconscionable).
↑ 12. Early virtual property scholars used the term virtual property to refer to many different things, and often used words such as virtual property and digital property interchangeably. I clarify the differences between digital property and virtual property in subpart II.B. Part I focuses on different scholars’ theories of virtual and digital property, so they may use the term more interchangeably than I would.
↑ 13. Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus).

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