Since we all live in the digital age, any technical, technological and other changes in cyberspace require a modern person to “adjust” to them. The usual understanding of property and things from the point of view of jurisprudence also applies to various forms of ownership – whether it is ownership of material values or objects of copyright. But what if the object of ownership is an object presented in electronic (digital) form? How will ownership of a particular item be extended to items that circulate in the digital space?
When we talk about objects in the digital world, we often refer to them as certain objects that exist within the virtual space, including in computer games. In principle, the value of these objects is determined only by the possibility of using a specific object within the framework of conditions pre-set by the program – namely, the rules of a computer game implemented in its code. However, it is also worth noting the economic value that these objects can have – quite often such objects, so-called in-game items, can be purchased for real money. The amount that players spend on purchases inside the game space can sometimes reach billions of dollars. This fact attaches particular importance to the legal regulation of aspects related to the ownership of in-game “property” consisting of such in-game items.
Considering the issue of legal regulation, it is impossible not to refer to the nature of the concept of “intra-game object / object”. As the name suggests, an in-game object exists within a certain” closed ” virtual space (a specific computer game). it is always represented in digital form and is a digital object. These items include, in particular, equipment, the main character’s uniform, inventory, medicines, weapons, devices, as well as the so — called “Persians” – represented as unique heroes of in-game characters linked to user accounts. The presented objects have a common functional feature — they help the user perform certain actions inside the game, as well as improve the gameplay and its perception by the player. In addition, in-game items are also presented in the form of some ” services “to improve the physical qualities of the main character (the so-called” pumping ” of characters), change the appearance or rebuild the in-game space. In some multiplayer games, in-game items can only be purchased for internal, in-game currency, which can also be considered as virtual game property – but this is also initially purchased for real money.
In-game objects can be represented in different forms in the virtual space, but each of the presented forms has some common features. All objects of the game space have an immaterial form – they cannot be consumed in the traditional, “material” way. Also, all game objects are presented in digital format, and therefore exist exclusively in the form of lines of program code. User, agreeing to create their own in-game account (account) agrees to the “nominal” ownership of the game property-due to the fact that both the account and the game, and all in-game items in it, initially belong to the owner of the site (computer game) as its developer / publisher. In fact, in-game items and in-game currency can be qualified as a kind of digital quasi-property, the real right to which is not transferred to the player, but only granted to him for temporary possession / rent.
Since the player does not actually have ownership of in-game items, the concept of an in-game object is also closely related to the procedure for acquiring it and disposing of rights to it. The content of the contract for the purchase of certain in-game property may vary. Many online games allow you to purchase in-game objects with Fiat money, and in-game purchases can potentially be exchanged and resold later. However, for example, the World of Warcraft user agreement in sub-clause 5 of clause 3 “Restrictions on the use of World of Warcraft” contains a direct ban on buying and selling for “real” money, as well as the exchange of gold, weapons, armor and any other virtual objects that can be used to play World of Warcraft, outside the World of Warcraft platform. This also confirms the fact that Blizzard Entertainment, the developer and publisher of this game, treats purchased in-game items as their own property, and not as the player’s property.
The same principle is followed by many game platforms, including Steam and Epic. The license agreement accepted by the user prohibits distribution, purchase, sale, transfer, rental, donation, theft and assignment of accounts with consequences in the form of blocking the account without the possibility of recovery. This ban is due to the fact that most often game accounts are sold entirely, with all accumulated in-game items and “pumped Persians”, and therefore unequal opportunities are created for newly registered players, who are provided only with basic in-game items for further gameplay.
In addition to the question of acquiring in-game items, the question of whether in-game items are considered “property”is also very significant. As rightly noted M. A. Rozhkova, first of all, it is necessary to clearly distinguish what kind of relations we are talking about regarding game property, since there may be different legal relations in nature. Secondly, it is necessary to proceed from the fact that relations regarding game property are always relative, quasi-legal relations, the” territory ” of which is limited to the framework of a specific multiplayer online game, and the circle of obligated subjects is not indefinite.
Recognition of in-game objects as things is unacceptable due to the formal attribute-existence only within the virtual space. Provisions The civil Code of the Russian Federation on gambling that implies potential winnings can also not be applied, since usually an in-game agreement does not imply the interpretation of computer games as gambling, and the game does not determine the winners and exists on a permanent basis. It is very appropriate to classify in-game property as other property, due to the fact that the user is granted certain rights, and the relevant rules can be extended to certain types of contracts concluded in relation to this other property.
Different interpretation of the game object from the point of view of legislation has led to the formation of new approaches to the definition of virtual game property. In addition to the indicated aspects of owning virtual gaming property, a very relevant area is the protection of user rights to the corresponding property. In relations where the object of dispute is virtual property, courts proceed from two theories that are closely interrelated with each other, namely, the theory of natural obligations (or absolute law) and the theory of service provision.
One approach is the theory that the user has absolute rights to the acquired game property. It is based on the provision that the use of game property can only be carried out if there is limited access to it – namely, an account protected by a password. It is through the password from such an account that the user, by analogy with physical control over a thing, can dispose of virtual game property at his discretion.
A different point of view is held by representatives of the theory that game property and the user’s absolute rights to it can be regulated as relations related to intellectual property. This theory is applicable in cases where the user is given the opportunity to show a creative element in creating certain objects of the game space, including modifications of objects in existing games. The presence of a unique object allows you to assign the object created by the user to copyright objects and apply the appropriate legal protection mechanisms.
A very common theory is that access to virtual game property is provided on the basis of a license agreement. In this case, the user is the owner of the code that corresponds to a particular object in the game. However, the corresponding rights in the license agreement do not imply direct ownership of virtual property by the user.
The presented theory was subject to evaluation during the consideration of a tax dispute against Mail.<url> Games”. Representatives of the company ” Mail.ru Games ” tried to prove that by purchasing game property, the user purchases an updated or expanded version of the game, which allows you to apply a “programmer” tax benefit. The court rejected the defendant’s arguments, pointing out that DFI (additional functionality of games) “it does not represent a modified or supplemented program code, which means that it is not an independent result of intellectual activity, which is necessary to qualify the relevant relations and payments made as license ones.” In the above-mentioned case, the court qualified DFI as a “service for organizing a game process” for the purposes of a tax dispute and as performance under a contract for the provision of paid services, which eventually led to the use of a standard VAT rate instead of a tax benefit.
Accordingly, another theory that deserves attention is the theory of providing virtual gaming property as a service. In such a situation, the user agreement concluded between the player and the game service (game developer) is recognized as a service agreement. According to the signed agreement, the game service undertakes to provide the player with certain game objects for certain funds, thereby providing a service for their creation and further transfer to the player.
Protection of the relevant rights in the framework of the theory of service provision implies that the user enters into a contract with the developer, which contains provisions that in-game property can be purchased for cash. The problem of legal protection in this case arises when the courts refer to the internal rules of the game that prevent full ownership of game property — for example, in the case of blocking an account. In particular, in one among the cases, the court noted that blocking an account for violating the rules of the game, and other ” negative game effects (in-game sanctions) are only elements of this game itself, its scenario, and are implemented by the defendant only within the framework of the game process.” In another place in this case, the court concluded that “all actions of the defendant and the user of the game, including registration, implementation and execution of the game scenario, application of in-game sanctions to characters for violations of internal rules, relate exclusively to the game process, are regulated by the defendant’s internal rules and are not subject to judicial protection.”