Items in RuneScape are different from those in some other games for one simple reason: those attained as drops from NPCs can, as a general rule, be sold amongst players, without being bound to one particular player. As such, these items are often bought, sold, or traded for using in game currency. Additionally, there is a large black market, outside of the game itself, whereby goods and gp can be bought and sold amongst players. Largely, this is regarded as illicit behavior.
It may seem odd, but violation of a game's terms of service (TOS) is not uncommon. Some violations are viewed by society as more normal, or acceptable, whilst others are more looked down upon. (example: “For privacy and safety, players must not ask for personal details such as full name, email address, instant messenger handles, telephone number, home/school address or age. Players also must not post anyone's personal contact details (including their own) on our in-game chat or forums.”) Obeying the rules is MANDATED in the TOS, but this rule is often broken, thus breaking the TOS. Thus, its only largely considered illicit, instead of universally.
I am here today to challenge the viewpoint of Jagex owning all items. I will not be advocating for free RWT, or stating that it is a good idea to buy or sell items for real world currency. I am, however, going to show why I believe, under current U.S statutory law, and common law, virtual goods are more than simply intellectual property, and why the Jagex Terms of Service as a whole are not legally binding.
Intellectual property is defined as “a property right that can be protected under federal and state law, including copyrightable works, ideas, discoveries, and inventions.”. The definition fits onto things such as patents, copyrights, and the like. It does not, however fit onto virtual goods. Intellectual property rights only protect the owner’s right of expression, protecting from illicit reproduction, etc.. This is why pirating is not theft, but copyright infringement, a civil not criminal offense. However, the rights granted unto a person to own property by the Fifth and Fourteenth Amendments define property according to what rights property ownership entails. Amongst them, the right to own property demands the right to own, the right to transfer ownership, the right to security from theft, and the right to profit off ownership of the property. However, intellectual property rights are solely those of adaptation, distribution, display, reproduction, and performance. These differences are key in the resolution of ownership to virtual goods, and whether or not the theft of virtual goods should be regulated as other goods are.
Most, if not all my readers would agree that theft or fraud has occurred in RuneScape, whether to them or to someone they know. The types of theft are numerous, the old “trust trading” scam, the “gilding armor” theft, or simply reneging on owed money in dicing. The difference between intellectual property rights, and proper ownership rights are key here. It is theft status which protects users from theft of goods, as IP infringement does not account for the removal of the virtual goods from the original user’s possession. When a crime of IP infringement occurs, it is that of unlawful duplication of an idea, (song, movie, picture, and the like). However, the item in question is still in the possession of the original owner. There is no deprivation of property. As well, there are cases of current statutory law existent which clearly recognize the theft of virtual goods as actual theft. Defining virtual goods in RuneScape as intellectual property is simply wrong, they are not intellectual property.
Now on to the interesting question, does Jagex own the virtual goods which you at this moment hold in your bank, or inventory? Many EULAs and TOS try to limit the player’s rights, whilst making the owner’s rights as safe as possible. While it is true that in the past courts have declared clickwrap EULA’s are valid and enforceable as a whole, there are a few reasons and precedents to show how certain clauses may be invalidated. It has been argued by legal scholars that the game owner’s rights should be those exclusively limited to IP, such as protection against bots under the DMCA, protection against private servers, and the like, whilst reserving the player’s rights to virtual goods, to deal with as they see fit.
http://en.wikipedia.org/wiki/Bragg_v._Linden_Lab This is a summarization of the court case Bragg v Linden Lab, in which the court held that the game Second Life’s TOS were a contract of adhesion, being that it was a case of “take it or leave it”. This type of contract presents the illusion of choice, whilst limiting the other party to accept or go without, which is really no choice at all.
If parts of the TOS can be invalidated, and the definition of items is no longer that of “intellectual property” but “virtual goods” then not only should the theft of virtual goods be considered a crime, but virtual goods are actually owned by the player, and not by Jagex LTD. Makes one think, does it not? This article derives heavily from that of an article written by a friend (one of our raid’s healers) which was published in the Emory Law Journal several years back. I highly recommend reading it, or at least skimming it, as it will do a far superior job of explaining everything then I have done in this brief statement. The full article is named “Life, Liberty, and the Pursuit of Swords and Armor: Regulating the Theft of Virtual Goods,” and can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1012886