Text of the ruling in the Dutch VW property case
VeeJay Burns of the MindBlizzard blog has kindly translated the Court Ruling in the RuneScape Case that was the subject of a post a couple of days ago.
As the virtual amulet and virtual mask as defined in the case at hand meet the aforementioned criteria, the court is of the opinion that these virtual goods are to be included in the concept of ‘goods’ as provided for in Artcile 310 of the Penal Code and belonged to the declarant.
What is most curious to me is how shallow the treatment of “possession” is here:
Case law has previously determined the foregoing is not applicable in case of a PIN number, computer data and phone call minutes in a subscription bundle. In this case the virtual goods, namely a virtual amulet and a virtual mask, were in posession of the declarant. Only he had actual control over these goods.
Manifestly, Jagex has greater “actual control” but the issue of Jagex’s interests in the case doesn’t seem to come up at all.
17 Responses to “Text of the ruling in the Dutch VW property case”
Sorry, the comment form is closed at this time.
I don’t think you could say Jagex really has an interest except to remain uninvolved as much as possible. Which is interesting. This seems to say more about world sovereignty than it does property. The word that feels relevant to me here is “extradition”, not “ownership”. It makes me want to draw a feudalism analogy, but I suddenly realized that I only woke up half an hour ago and my brain is sleepy so I shouldn’t do that. 😛
They absolutely have an interest — they have the most obvious case to claim possession of the property in question. If it isn’t their property, and this case seems to have been decided on this basis, then they are in a very interesting position as regards liability for all the digital assets that they are creating and giving to users.
Any constructive discussion needs to respect that “possession” is not “ownership.” One can possess what they do not own, and own what they do not possess.
So, it hardly follows that if Jagex does not have the most obvious case to claim possession of the amulet, then Jagex doesn’t “own” amulet.
Jeff said it better than I was going to. The real question is, were they shallow on purpose or by accident?
(Also, any constructive discussion will probably need to know how “goods” are defined in the aforementioned Article 310 of the Penal Code, but I can imagine that being a real pain to translate.)
“I don’t think you could say Jagex really has an interest except to remain uninvolved as much as possible.”
You’ve never seen a company want completely control of everything that is down with its product?
I can’t even remember what led me to make that statement, heh.
Jeff, Peter: Are either of you aware of any discussions on this distinction, w.r.t. virtual worlds? I’ve never heard it before, but I’m very unfamiliar with law. I would have expected it to come up a lot sooner among academics.
It’s actually a very, very old distinction, given that you could go all the way back to the distinction between owning land and owning real estate, as made in feudal times. On this Wikipedia page, read the part under “Common law and history” for a better oversimplified rundown: http://en.wikipedia.org/wiki/Fee_simple . (Extremely short version: all land is actually owned by the state, and it’s only the rights to the land that are ever sold).
I’d suspect it hasn’t come up because it’s simply not as interesting of an academic question, being that it’s long been settled. It could be said that games are feudal beyond just their cliche trappings. The distinctions between possession and ownership are pretty much taken for granted, and in these persistant games one way to formulate it is that you’re “really” purchasing and/or renting a revokable right.
Michael, I am not at all familiar with the American virtual world caselaw (beyond briefly skimming those cases that mentioned on the few gaming blogs I semi-frequent), let alone international.
I do know that the distinction is deeply rooted in the common law. A simple example is a dry cleaner, who takes possession, but not ownership, of your laundry.
Tangentially, consider Pierson v. Post, a foundational Property I case from lawschool. The facts sound just like many a general chat spat I watched play out in EQ1, back in the day …
From the case:
Originally I only intended to give the definition of goods and a translation of article 310 as requested. It evolved/devolved in to a small lecture on Dutch criminal law. Ah well… 🙂
Article 310 of the Dutch criminal code states:
“He who takes away a good that belongs to another, in whole or in part, with the intent to take unlawful possession, shall be found guilty of theft and be convicted to a prison term of no more than four years or a fine of the fourth category”
Article 310 doesn’t define “goods”. The way the word “goods” is interpreted here is based on case law.
Basically, a good, or goods, is anything I can take possession of, and thereby preventing anyone else from having possession of the same goods.
The “shallow treatment of possession” isn’t all that curious if you think about what actually happens when you ‘steal’ some of the goods mentioned in the ruling, You don’t lose possession of your pin number when I ‘steal’ it and you don’t lose ownership of computer data if I ´steal´it. Note: I’m not stealing the paper on which you wrote the pin number or the disk that contained the data. I stole, or rather, copied the number and data itself, it doesn’t prevent you from having the exact same data.
Actual control, is an either/or situation. You either have it, or you don’t. You can’t have greater or lesser actual control. The victim had actual control. The items were on his account, he could use them, trade them, destroy them, etc. etc. I readily acknowledge the fact that Jagex could *take* control by using GM powers, just like the state can *take* control of an item you posses, by serving you with a search and seizure warrant. But that doesn’t mean they *have* actual control. Actual control is just that: who has possession? who has control over the item in this specific case, in the normal, everyday situation of this specific item? It’s not Jagex, but the victim.
As far as the court is concerned, the position of Jagex and the question of ownership is completely irrelevant, because ownership is irrelevant in this case. It all comes down to possession. The victim possessed something, and the defendants took it away, without being authorized to do so in a manner prescribed by law. Nowhere in article 310 does it say the victim needs to be the owner of the stolen items.The victim only needs to demonstrate he had actual control. He did. Result: the defendants stole it.
Ownership is a concept defined in the civil code, and criminal courts try not to get caught in that mess unless there’s absolutely, positively, no way they can dodge that bullet. 🙂
Considering the court finding we’re semi-discussing is Dutch, I don’t think that’ll be a problem. ^_^
I’ll read up. Thanks.
@Mark,
Wow, thank you for that writeup. That does make the ruling make a lot of sense, and satisfies my curiosities as to their reasoning.
Presumably, then, Jagex either implicitly or explicitly reserves the right to lawfully re-take possession of such items as these, the victim had lawful possession at the time, and the thieves then took unlawful possession, which sorts out all the (relevant legal) relationships fairly straightforwardly.
And somehow, I completely missed Mark’s post this morning. I blame time of waking again. 🙂
I’m still wholly puzzled as to why this distinction never comes up in Virtual World discussions. It seems pretty obvious that what has been discussed and decided here should be applicable in US law too, since I can’t imagine the US has a vastly different concept of ownership, possession and theft. Shouldn’t this negate a lot of the bickering on ownership and value?
I checked the Terra Nova thread on this and they’ve basically said nothing. I might chime in over there, but I expect I’ll forget to. 😛
In a very literal sense, Jagex never DIDN’T have possession of these goods — and arguably, the player never had it.
Do you guys feel like the comments (attached to your name) above are in your possession? Because I can tell you that from any technical standpoint you choose, they are almost exactly the same as a virtual “item” in the database. There’s a user record, and it has some data attached.
If we wanted to make it more item-like, we could add a WordPress plugin to allow you to “drop” your comment in one post or another, or to let you “give” it to someone and thereby change the name of the commenter… but that is largely cosmetic.
Certainly, Jagex maintains a certain ultimate control over the goods (which is, to my legal mind, more like “ownership” control than “possession” control). But just as certainly, the player also maintains a more immediate control (more like “possession” than “ownership”).
I will not argue that the mechanics of possessing the tangible are the same as possessing virtual. They are not. But, I will argue that, legally, they are (should be) equivalent.
A more appropriate (but still too-strained) WordPress analogy would be if you doled out to each visitor a certain set individual words and/or markups such that visitors could construct a post only from their set of words and markup. Further, that visitors could trade words and markup among each other. Finally, that you, Raph, as the author could ultimately remove a visitor’s access to the user record associated with one or more of the words and markup in that visitor’s set. In that case, I argue that a visitor “possesses” the instances of those words and markup in her set, but that you ultimately “own” them.
The purely technical analysis inevitably leads to inconsistent results. For instance, from a purely technical standpoint, it is irrelevant on which server (i.e. Server A or Server B) a user record resides. However, if Server A and Server B are owned by separate entities (i.e. item portability between worlds), then even though nothing has changed from a technical standpoint, there is, in Shakespeare’s words, a sea change in the possession/ownership analysis.
This is getting a little bit out of my depth, so this time I’m prefacing this by saying (*ahem*) I Am Not A Lawyer.
Possession is, at heart, a matter of control. Jagex cannot lead a player to believe he has control that he does not have, if that very control is what the player is, in their mind, purchasing with their money.
The test at this point is reasonableness: would a reasonable person come to the same conclusion as to what they were getting for their payment. (Basic legal principle: making money by misleading people is fraud.)
So, even though the assets in a literal sense never left the server, Jagex reasonably appears to give (limited and revokable) discretionary control over these assets to players. The items are shown to be possessed by their avatars, and the world is presented as having RL-approximating rules about possession (able to use, transfer, buy and sell with in-game currency, destroy).
Heck, let’s go further down the rabbit hole: to the extent that the avatar the player drives around is a proxy for the player, legally, if my proxy takes possession of something on my behalf, is the location or virtuality of that proxy relevant?
raph sez: “Do you guys feel like the comments (attached to your name) above are in your possession?”
The question could be asked that if once having written here, is it my right to republish the exact same content on my own blog? Do you have recourse other than to block future posts?
It seems to me the ruling is weak until tested by actual cases that refer to it.
According to Dutch law – I don’t know much about US law- I don’t have possession of the comments because I can’t take possession of my comment. I do own and posses the IP rights to it.
Because a plug-in like you describe would grant me the right to transfer , sell or maybe even rent (parts) of my comment to others, I would probably have possession of the actual comment as well. If you were to add such a plug-in that is.
That, from a technical point of view, I don’t have possession, is of no consequence for the legal definition of possession. Dutch law allows for possession of goods without having (immediate) access to them.