Dutch Supreme Court decides virtual theft case

The Dutch Supreme Court issued its long-awaited ruling in the Runescape theft case today.  You can find the ruling here, and here’s a Google-translated version.  The ruling cites to the work of my friend Professor Arno Lodder, who has been keeping close tabs on the case, as well as to my book and to my work with Dan Hunter on virtual law & virtual crime.

This is a virtual crime case that involved real violence used to obtain virtual goods.  The victim was beaten and threatened with a (real) knife, with the defendants demanding he hand over a virtual mask and a virtual amulet within the online game Runescape.  So at the very least, this was a case of criminal assault.  The only issue was whether the crime amounted to theft, which hinged on whether or not the virtual items could be classified, under Dutch law, as goods.

The lawyer for the defendants argued that Runescape’s virtual items are not goods because they are not tangible and have no commercial value.  The Dutch Supreme Court disagreed.  Citing to the size of virtual economies as well as to specific sales on eBay of Runescape items, it rejected the argument that the goods had no economic value.  It also observed that the victim had invested time and effort to obtain the value of the items, that the game gave him exclusive rights to the items, and that the defendants had, by violence, acquired that value and those exclusive rights from the victim.

In my opinion, the reasoning of the Dutch Supreme Court is roughly analogous to the reasoning in the U.S. decision of Kremen v. Cohen, which found that domain names were subject to civil conversion in California despite their intangible nature.  Though I have mixed feelings about the Cohen case, I believe the recognition of the Runescape items as legal goods is the right result in this case.  As the Court explains, the victims here were clearly motivated by the prospect of acquiring the value of the virtual items of the victim and they used violence to obtain that value.

Additionally, as the Dutch Supreme Court explicitly notes, the violence here was not in the context of the game.  As I explain in Chapter 6 of my book, there can be cases where legal prohibitions against in-game theft of virtual property may be in tension with the rules of a game.  In this case, however, the theft occurred completely outside the rules of Runescape.  Given this, I think the Dutch Supreme Court’s recognition of the economic and status value of virtual items is entirely appropriate.

In addition to my work with Dan and Arno’s writing, the Court AG opinion accompanying the decision (see my comment below) cites the work of Orin Kerr, Jack Balkin, Fred Schauer, Andrea Arias, and Alec Levine.  I may have more to say once I get a better translation of the ruling — Google Translate is great to get the gist of the matter, but I have a feeling I’m missing plenty of nuance.

(X-posted on Terra Nova.)

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