Intellectual Property Law

Virtual Property: Not

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Wired has an article on the trade in virtual world items - armor, swords, ninja monkeys, etc. - that takes place using real-world currency. (It tracks the rise and fall of former child actor Brock Pierce and his startup, Internet Gaming Entertainment. You can also find a how-to outlining the virtual gold trade.) The article contains the standard recitation of surprise: My goodness, people pay for fake lightsabers with real dollars! (Ed Castronova did the pioneering work in this space years ago.)

I don’t play MMOs or other virtual world games based on the high likelihood that I’d become an obsessive recluse who subsists on Diet Pepsi Max and is frighteningly pale. (Oh, wait, too late…) So I hadn’t given virtual property too much thought. But I realized that maybe this cognitive disconnect - why pay hard cash for items “made entirely of fiction and code,” as Wired puts it - comes from the label “property.” IP aside, we still expect property to be stuff - things we can lay hands on, move around, and keep away from others. Virtual swords don’t really fit this model. This leads to all sorts of challenges flowing from this cognitive mismatch: can you “steal” virtual property? What happens if the game designer gives everyone the same cool sword that you bought? Or eliminates it? Should realspace courts enforce virtual bargains?

Here’s a better model: it’s a service. (Disclaimer: I’m sure someone else has come up with this.) Take Disney World’s FastPass option. You pay more money, and in exchange, you get to cut the line at attractions like Big Thunder Mountain Railroad. (Probably not necessary at It’s A Small World - anyone who can listen to that theme song for the duration of the ride should automatically get to cut.) Going to Disney isn’t buying a thing - it’s buying an experience. At the end of your day, you don’t have anything to show for your money except pleasant memories - a change in your lived experience. The FastPass enhances that experience; it makes it more pleasant and reduces annoyances like standing behind people wearing mouse ears. But it isn’t “property.”

So, too, virtual swords. They enhance the in-game experience, letting you do things that would otherwise take more time, effort, and psychological discomfort. Basically, you’re buying a better experience - in some cases from the MMO, in some cases from a third party. I think if we reframe virtual world questions along this axis, it might help us think about challenges like theft and breach of agreements, and perhaps even about in-game alterations.

I’ve got to ponder this a bit more, but I’d love to hear what all of you have to say. And if any of you have a virtual ninja monkey for sale, I’m game!

Full post as published by Info/Law on December 02, 2008 (boomark / email).