Something just happened. Something important.
On Tuesday, the Dutch Supreme Court ruled that when two boys forced a third (by violence) to give them two of his Runescape items, that it was theft.
Now, you might think that that is a landmark ruling for digital goods as lawful property. It isn’t. Well, it is, but it isn’t in the way that you might think. It’s far more interesting than that.
You see, in pretty much every legal jurisdiction in the world, digital goods already are property and well-covered under existing property law. However, they’re not usually your property. In Runescape, World of Warcraft and Second Life (as examples), all the digital goods belong to the service operator according to property law, and according to the terms and conditions that go with the service that each user agrees to.
But here’s what happened. The Dutch Supreme Court established the precedent (rightly or wrongly) that the property belonged to the victim and therefore constituted theft, established law and the operators’ terms and conditions notwithstanding.
Jagex’s terms of service for Runescape say “You agree that all intellectual property or other rights in any game character, account and items are and will remain our property.”
Well, forget that. For the Dutch, that is no longer entirely true. They own those items.
Likewise in the Second Life terms of service: “Linden Lab owns the bits and bytes of electronic data stored on its Servers.”
Not entirely, anymore, my friends.
It’s a brand new day in the Netherlands, and yes, this particular ruling will undoubtedly cause more than a few corporate lawyers to go into shock.
Tateru: “The service operator doesn’t need to. All they need to do is switch off your service account and keep your assets.”
Here’s an example of that:
Recently a drama-troll user on our group blog site posted some hate comments and other drama. Those posts were removed and she was eventually banned from posting. She claimed she “hadn’t read our group Charter”. However, when she registered she was presented the question, “Do you agree to abide by the Elf Clan Charter?” She clicked YES.
She tried to present (in further drama/troll posts on other blogsites) that our group had the responsibility to make sure she’d read the Charter (as if we were responsible for her lying about reading it). Mind you, whether she had read it or not would have meant nothing; she was a drama queen from the word go.
My response was exactly what has been presented above: once you’ve signed the contract, it’s too late to argue you didn’t read it. Our board, our rules, she agreed to the rules, that’s it. Once she broke those rules (repeatedly, even after warnings by the site administrator), she was out.
Now, in the case of Linden Lab, something else is involved: they restrict access to assets. Thus their user agreement could be considered an act of coercion (as I’ve already presented). But Tateru is right… once a person presses the “I accept” key, in most instances they are then subject to company policy.
I did read of one court case however (I forget the parties involved), in which a person reasonably argued that an online EULA which contained highly-controversial sections, could not be held legally binding because it is reasonably expected the majority of people who click I AGREE don’t actually read through page after page of legal jargon, and thus the agreement itself becomes moot by reason of foreseeable manipulation of the customer. The judge agreed… and the online EULA was judged invalid. It was simply 1) Too wordy 2) Contained too much legalistic wording 3) Contained questionably manipulative and excessive stipulations. (ie, the old “take your firstborn” scams). The judge found such tactics to be illegal.
I experienced the same thing. I signed up to examine a company’s product… and later discovered in the fine print of a EULA that they actually stipulated the customer BOUGHT the product in clicking AGREE on the EULA. Since that EULA was presented as stipulation to testing a TRIAL version, a report to the BBB immediately had that company back-tracking.
A TOS or EULA is not legally binding; it is a statement of company policy. Any customer can challenge the legality of such document at any time they so choose… if they have the financial ability and know-how to do so (and if it’s worth it. Most people in that case just leave Second Life and write it off as a bad company.)
I would expect most of the SL terms of service to fall apart in front of a judge, like many of its ilk. Some bits will hold, because they’re mostly boilerplate from other successful examples – but the ToS has already fared badly in court… which is, ironically, one of the reasons that the ToS now no longer declares us to own our SL stuff.
Wayfinder, the big difference is that a dispute about the meaning of a contract is resolved under civil law, while the ageplay/paedophile stuff would come under criminal law. Plus, it’s a crime which seems to provoke law enforcement into excess. It doesn’t need a German court to scare Linden Lab: there’s been some dodgy events entirely within the USA.
I believe you’re correct on all counts there, Wolf. I would suspect the impact civil law has in such a circumstance would depend on both the importance of the person involved (ie, if they have friends in high places), or their determination in making sure it has far-reaching consequences. History shows that even one voice spoken strongly enough and with enough conviction, can change a society.