Trespass to (Virtual) Chattels: Assessing Online Gamers’ Authority to Sell In-Game Assets Where Adhesive Contracts Prohibit Such Activity

Alfred Fritzsche, Washington College of Law

Abstract

As online technology has advanced, so have computer games: today’s computer games use the Internet to create comprehensive, dynamic, and persistent virtual worlds. This Comment discusses massively multiplayer online role-playing games (“MMORPGs”), or virtual worlds in which players create virtual representations of themselves; buy, improve, sell, or otherwise enjoy virtual plots of land; construct virtual cottages, mansions, and department stores; create, sell, pawn, and trade virtual chattels; and amass substantial virtual clout for accomplishing outlandish acts or securing otherwise unavailable artifacts. More than eight million subscribers participate in the World of Warcraft, and MMORPG environment created by Blizzard Entertainment.

Many gamers amass and sell, for hard currency and substantial profits, intangible objects in MMORPG environments. In the face of these transactions, MMORPG designers prohibit such activity by engaging complicated End User License Agreements (“EULAs”) that predicate access to a virtual world on the terms of the contract. Those contracts purport to disclaim any gamer property interests in the chattels secured in the game environment, and to prohibit the sale of such chattels on websites like eBay.

After describing MMORPG environments, the economic interests contained therein, and the nearly nonexistent instances in which these environments intersect with the law, this Comment posits that courts should recognize a legally-cognizable property interest in virtual currencies and chattels secured in MMORPG environments, and that courts risk eliminating legitimate property interests when they enforce the End User License Agreements, Terms of Service, and/or Terms of Use upon which designers predicate access to the virtual world. This Comment first introduces virtual worlds, virtual property, and the content of the contracts that designers use to control gamer activity. Considering that gamers have acquired substantial property interests in virtual chattels secured in MMORPG environments, the Comment proceeds to demonstrate that contracts of adhesion that prohibit RMT activity unconscionably eliminate those interests. As such, this Comment recommends that courts find a valid gamer-borne cause of action in trespass to chattels, and considers necessary limitations on that doctrine. Provisions that prohibit RMT activity and allow designers to delete gamers’ virtual property eliminate valuable emergent property interests.