Criminal Law in Virtual Worlds:
I have just posted a draft of an essay, Criminal Law in Virtual Worlds, forthcoming in the University of Chicago Legal Forum. Here's the abstract:
  When does conduct by an online player in a virtual world game trigger liability for a real-world crime? In the future, will new criminal laws be needed to account for new social harms that occur in virtual worlds? This short essay considers both questions. Part I argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. Existing law will not recognize virtual murder, virtual threats, or virtual theft. Virtual worlds will be regulated like any other game, but their virtualness normally will have no independent legal resonance from the standpoint of criminal law.
  Part II turns to the normative question: Are new laws needed? It concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds. Virtual worlds at bottom are computer games, and games are artificial structures better regulated by game administrators than federal or state governments. The best punishment for a violation of a game comes from the game itself. Criminal law is a blunt instrument that should be used only as a last resort. The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy.
  Online virtual worlds may seem real to some users, but unlike real life, they are mediated by game administrators who can take action with consequences internal to the game. Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere.
As always, comments are very much welcome.
Tareeq (www):
Is there an unserved demand, anywhere, for criminal regulation of virtual worlds? I've played one or two of these games and while I've participated in my share of "ganks," they were entirely virtual. No real people were hurt. Similarly, when players are scammed of virtual gold or what have you, it's virtual gold they don't own according to the EULA. While we occasionally hear of violence pouring into the real world, or people being scammed of real money in connection with online activities, those are certainly covered by existing assault and fraud laws, are they not?

I've not heard of any calls for legal regulation of virtual worlds. Have you, or are you a bit ahead of the curve here?
2.26.2008 2:38pm

As I say in the essay, I'm trying to consider what the issues might look like in the future -- the goal is to be ahead of the curve. (Although I have heard that this is a very current issue in South Korea.)
2.26.2008 2:40pm
Tareeq, isn't there still a split over whether such "shrink wrapped" EULAs are binding, as opposed to impermissible attempts to change a contract without providing consideration?

I could never see RL criminal liability for PKing (player killing) in a virtual world, but I could see criminal liability for hackers who deprive people of something they may have a property interest in - selling characters, ingame weapons, and ingame gold for RL money is quite common.
2.26.2008 2:44pm
Tareeq (www):
Orin, It's happened a couple of times, I think, and in Taiwan as well, but the media tends to report the same isolated incidents over and over. Special criminal liability for acts committed in online games is likely to remain about as necessary as special criminal liability for acts committed in Dungeons &Dragons was in the the 1980s.

To the extent, of course, that your essay argues that the status quo should prevail, we're cool. It just struck me as a reach, like discussing how virtual reality murders should be prosecuted in the world of Tron.
2.26.2008 2:49pm
Tareeq (www):
And Fantasia, while there are cases dealing with the extent to which shrink-wrap EULAs are binding, I know of none holding that virtual property is real property.

The IGE litigation, of which I'm most conscious, has gone very badly for those who claim their virtual interest in online gold prevents them from being banned from these games.
2.26.2008 2:55pm
Kevin! (mail):
Hey, I just wrote a similar article. It's called "Leave Those Orcs Alone: Property Rights in Virtual Worlds."

Available here: here

My article examined extending property law to Virtual Worlds, as opposed to criminal law. But my conclusion was the same: extending real world law to Virtual Worlds makes no sense, period. In part because of the nature of Virtual Worlds, in part because the Developers are so much better placed to regulate it, and in part because real world courts would do a terrible job of it.

You'd be surprised how many people really do want real-world laws in Second Life or World of Warcraft. Hundreds of pro-Virtual Law pages litter Law and Technology law reviews. I do a brief overview in my own piece.
2.26.2008 3:07pm
If items/money/characters acquired in virtual worlds are given property status.... can the IRS tax you for leveling up your Tauren Shaman?
2.26.2008 3:13pm
PaulK (mail):
Prof. Kerr, I can't say that I disagree with your conclusion. What strikes me as absurd is the idea that enough people oppose it so as to make it a worthwhile topic for discussion. The concept of making "ninja looting" in "Diablo" a legal offense simply boggles the mind. Although if someone is nuts enough to make the assertion, I suppose good sense requires its refutation.
2.26.2008 3:28pm
Bored Lawyer:
Here is something that occurred to me the other night while watching an episode of Law and Order:

What is the legality of Virtual Torture?

In the episode, a phone call was received from a little girl who was being held by a "perp." The police had doubts about whether it was a hoax. Among other things, there is widely available technology allowing one to disguise one's voice to sound like anyone -- including a little girl.

I also seem to recall a Supreme Court case about virtual child pornography -- fake images made to look like child porn, but that aren't.

Anyway, suppose a suspected terrorist is captured from whom we wish to extract information. Suppose further we know his family -- he has a wife or children or siblings he loves, and we are familiar enough with them to simulate their voice, appearance, etc.

Could one use virtual torture to simulate the torture of the terrorists' loved one? No actual torture would take place, but the terrorist would believe that his loved one was captured and was being brutally tortured by his questioners' accomplices, unless he spills the beans about his terrorist buddies, plans, etc.

Is this legal under the Geneva Convention or any other applicable laws or treaties?
2.26.2008 3:30pm
cjwynes (mail):
What really is the difference between these virtual worlds and the world of "modems and phone jacks", apart from the graphical interface?

BTW, if you are anticipating your paper being read by anybody in the video game industry, DO NOT mention Second Life. The minute they see you citing to Second Life's TOS, they're going to roll their eyes and groan. Mentioning Second Life is like a code to gaming enthusiasts that the author is just another old fogey who is hopelessly out of touch. That game is populated by more journalists and social researchers preparing articles and papers than it is with actual "players".

I don't know if I'm adequately expressing what I mean by that, just trust me on the point that it makes you look like a duffer to video game people. Post that article at neogaf or 1up or send kotaku a link, the comments will be "lol second life, n00b."
2.26.2008 3:34pm
WHOI Jacket:
I eagerly await the first manslaughter case for Player Character destruction.
2.26.2008 3:35pm
Considering you put money into it (upfront purchase, monthly fee, expansion packs), and can get money out of it (selling items, characters, in-game currency). . .

Could it be reasonably compared to, say, a legal gamb-ling? You pay up front and receive something in return that only has value within its original context. You need that character, you need those chips, to function within the context, but it can't be used elsewhere (except to be traded to other people who want to use them in their original context)

So, do you have a property interest in the po-ker chips sitting in front of you? If somebody sneaks chips out of your stack, do you have a theft? A conversion? Or is your only remedy through the establishment? I would imagine you have a property interest in those chips, or a cas-ino (or anybody else) could take it from you with impunity.
2.26.2008 3:49pm
While it's all well and good when we belittle claims of real world property law applying to in-game property, I do wonder how anti-harassment laws will/could apply. It's not like there's a lack of precedent for applying harassment laws to perfectly voluntary organizations, so I rather think it's an open question whether GM discretion should be deferred to in matters of harassment claims.
2.26.2008 3:57pm
Kevin! (mail):
Second Life is an inevitable focus for legal Virtual World analysis. It's the only significant Virtual World that has reserved some real-world legal rights for the playerbase. All the others have iron-clad, very-long EULAs expressly drafted to kill any idea you might have that your Sword of a Thousand Truths is legally your own.

In fact, part of my article argued that judicially opening Virtual Worlds would require rewriting the settled law of EULAs.

Second Life and its progeny are also the least game-like of the VWs, so crimes and property ownership seem more "real" inside of it. They also position themselves as the next step to integration of the real and virtual worlds.

So yes, it's furry-tastic and overrun with ridiculous Cory Doctorow knockoffs, but SL is still the pinnacle of legal rights in the Virtual Worlds.
2.26.2008 4:12pm
Jake (Guest):
EVE Online has had a few scams where people made off with in game possessions worth some pretty serious real life coin. Is there a point at which this becomes wire fraud?
2.26.2008 4:12pm
Duffy Pratt (mail):
Not all perfect worlds are games. Second Life is probably the leading example. On the surface, it looks a bit like some gaming MMOs, but it lacks the underlying gameplay. It also has potential that is altogether lacking in any online game.

Take a look at the banking crisis that swept Second Life recently. There were banks in Second Life that were offering something like 50% annual returns on deposits. Of course, lots of the banks had insufficient capital and no way to make good. There were runs on a bunch of the banks and it started a crisis. As I understand it, Linden Labs no longer allows people to start banking services unless they could do the same in the real world. This stuff matters because the money in Second Life has real value, and it is being used to buy and sell real goods and services.
2.26.2008 4:14pm
Kovarsky (mail):

i didn't read the link, but question: did you hit julian dibbell's (i think that's the right spelling) article - i guess it's about ten years old now - about mr. bungle? i believe it's considered a touchstone of much of this discourse - although the interesting questions may be more ontological than legal.
2.26.2008 4:20pm
Tareeq (www):
All that may be true about Second Life, Kevin!, but as cwjynes pointed out no real people play it. They tool around with it for ten minutes, realize that the interface and instructions are miserable and that it's full of pervs and spammers, then go back to WoW or The Sims, depending on what sort of game they prefer.

Also, Orin, while "virtual worlds" may work on online legal fora, you demonstrate yourself to be a pitiful n00b when you use that term to refer to mmos, mmorpgs, and daikus. You'll be ganked if you call them that in virtual life.
2.26.2008 4:24pm
Also, Orin, while "virtual worlds" may work on online legal fora, you demonstrate yourself to be a pitiful n00b when you use that term to refer to mmos, mmorpgs, and daikus. You'll be ganked if you call them that in virtual life.

That's one of the reasons I posted the draft, Tareeq. I'm an ex post facto to blogging, but my res is all AEDPA to your Rule 12 on virtual worlds.
2.26.2008 4:31pm
Vivictius (mail):
Considering most MMOs revolve around the concept of "Kill them and take their stuff", I really dont think the players want the lawers to show up.
2.26.2008 5:04pm
Ex-Fed (mail) (www):
omg wtf nerf lawyers
2.26.2008 5:07pm
Elliot123 (mail):
I wonder how long a lawyer avatar would last in War of the Worlds?
2.26.2008 5:26pm
Tareeq (www):
That's one of the reasons I posted the draft, Tareeq. I'm an ex post facto to blogging, but my res is all AEDPA to your Rule 12 on virtual worlds.

Cute Orin but I had a J.D. before I owned a modem. That said, it's after 5 and I've had time to skim your paper, and yes it is an interesting one, though it examines a topic that's unlikely to have any but the most marginal relevance to life or the law for several more years.

But damned if you didn't mention Second Life (two words) on the first page. I'm serious here. Mentioning Second Life in the context of games discussion (I was a hobbyist before I had that J.D.) is likely to get you a call from the New York Times the next time some disturbed teenager (who happens to play games) kills someone and President Obama calls for a moratorium on World of Warcraft within 5 miles of a school, but it makes you look like a nerd, even to gamers.

I'm serious. No one plays it, because it sucks. It's only mentioned by journalists, sociologists, and libertarian futurists, and even they don't play it because it's more far more fun in theory than in "real" life.

Change the reference to World of Warcraft, plzkthxbye.
2.26.2008 5:33pm
AndyM (mail):
In response to the question of "why does this matter" raised by tareeq and others in this thread:

Lets say you have a virtual economy, where there is virtual money kept track of by some company's servers, but it is widely accepted that you can turn this money into actual little green pieces of paper from the US treasury.

Should it be a crime to steal this virtual money from someone?

1) In the case where the virtual money is called "world of warcraft gold", the accepted answer is "no", even though it is widely known that ebay and others will happily help you turn that virtual money into actual US dollars.

2) In the case where the virtual money is called "frequent flyer miles", the answer is "maybe, depends on the airline's policies", even though for quite a while there were services that would exchange your virtual money for actual US dollars. (airline policies over the past decade have largely mooted this example, I suppose)

3) In the case where the virtual money is called "the number attached to your paypal account", the answer is "usually".

4) In the case where the virtual money is called "the number attached to a gift card issued by visa", the answer is "yes"...

Figuring out where the dividing line is on the continuum from WoW gold on your account to "money" in your visa account is interesting -- both of these are just a number stored on a server somewhere, and you can call a broker to lower that number and give you cash (or give the broker cash and raise that number). In both cases you can also directly exchange that number for goods and services (the service of doing interesting things to your WoW character in once case, a wider variety of things in the other case).

So, is the difference that you agreed to an EULA in one case and not the other? If so, can visa ditch all those annoying bank regulations by making you sign something saying that visa gift cards (or travelers cheques) aren't actual "money" but are merely a scorekeeping mechanism that some shopkeepers might choose to exchange for items? Is the difference that one of these is called a game? If so, can the people who run vegas get around gambling regulations by pointing out that gambling on the internet is "just a game, and it's not our fault you can turn 'points' into cash"? Is the difference in what we call the money, and if so, can I get around those pesky theft regulations by stealing cash from north koreans, on the grounds that our government doesn't recognize their government, and thus the backing of their money, so it's no more real than WoW gold?

If you convince a woman to have sex with you by buying her dinner, that's legal, whereas if you convince her to have sex with you by giving her dollars, that is prostitution. So... Is it prostitution if I pay in WoW gold (for real sex, not something virtual)? Does it matter if I believe she is using those points to play the game, versus believing that she is going to just ebay them for cash?

These are all questions that our legal system is going to have to answer eventually; ideally by having legislatures think about them in advance, and less ideally by having a body of literature for judges to refer to. The worst possible way to go about it is to have nobody think about it until someone commits what may or may not be a crime...
2.26.2008 6:56pm
ArtEclectic (mail):
I'm a real person. I have been in Second Life for 3 years. I make approx $1000 USD a month from sales of my creations. In fact, Second Life just paid for my RL bathroom remodel. Just because lamer gamebois closeted in the parent's basement think SL isn't l33t enough for them because it takes some actual brains and business sense to "level up" does not make it irrelevant for this discussion.

There is a fertile field in IP law in SL. Sure the TOS is an exercise in stupidity, but for people making real money in SL (some of them a full time income) the application of law and protection of their IP is 100% serious.
2.26.2008 7:27pm
How about virtual legislatures, virtual laws, and virtual punishments?
2.26.2008 9:09pm
Tareeq: Mentioning Second Life in the context of games discussion [...] makes you look like a nerd, even to gamers.

No doubt many of you have already heard of this SL parody site, but at this point in the discussion I feel duty-bound to post it anyway:

Get A First Life

Back on topic: A couple of commentators have likened virtual worlds to online gambling, insofar as they involve money that can be converted to and from real money. This has occurred to me too. I wonder what it would take for the DoJ to start applying the Unlawful Internet Gambling Enforcement Act to virtual game worlds that have such convertible currency? [Not that I would be in favor of such a move - quite the opposite in fact. I'm just wondering whether the DoJ (a) has yet begun to take notice of this phenomenon and its similarity to online gambling and (b) is either already leaning toward, or might be convinced/browbeaten by politicians into, treating them as such?]

Slightly off-topic again: Given how many avid online gamers there are, of all ages, in this country, and how they can be affected by issues like this, I'm a little surprised there's not a big online gaming lobby on Capitol Hill by now.
2.26.2008 11:13pm
Can't find a good name:
There's a typo on Page 6 which mentions "sending a thread" instead of "sending a threat."
2.26.2008 11:50pm
David Schwartz (mail):
Yes, they can tax your virtual property just like they tax anything else. You have a basis in your Shaman based on any expenses you incurred creating it and you had better pay taxes on any profit you make should you ever sell it. You can hold it and let it appreciate without paying taxes, just as you can for many other kinds of assets.

Everyone else:
Virtual law is a category error, like trying to prosecute baseball players for stealing bases. Killing a player in a game is only metaphorically killing.
2.27.2008 12:07am
Prof. S. (mail):
Any comments?

Yes - My buddy and I should have just sat down and written on this issue when we first started researching this issue 2 years ago.

Stupid 3L slacker syndrome.
2.27.2008 9:20am
Charlie (Colorado) (mail):

I'm a real person. I have been in Second Life for 3 years.


SL has its problems, God knows, but comparing it with WoW is itself a category error. It works more like a combination of a game development platform for people who do roleplaying things, and a social networking site for the rest of us.
2.27.2008 10:11am
andrew4321 (mail):
When I was a teenage nerd in the 80's, it would have been nice to have the law on my side when I play Dungeons and Dragons with my nerdy friends.

"You can't use Thor's Hammer on a ghoul. If you don't knock it off, I'm going to turn you into the authorities."
2.27.2008 10:25am
real person (mail):
Since someone up above brought up "Get a First Life," it's a good time to remember William Shatner's advice at a Trekkie Convention. It applies equally to First Life fanatics:
"Get a life, will you, people?"
2.27.2008 10:31am
This is not just an issue in Korea, although the greatest incidence of real world consequences for in-game activities occurs there. For example, I've heard of several cases where gamers in Korea have attempted murder in reality in response to people hacking their accounts and stealing virtual items. In the United States, sufficient numbers of people play these games for enough time that you see depression and even suicide attempts result from in-game events. Substantial numbers of people derive a living from in-game activities. If someone hacks these accounts, they lose their livelihoods. At what point do we stop calling it virtual?

Several articles which you don't cite examine these phenomena in depth. These two examine the blurring of reality and virtual worlds and some of the real world consequences that flow from in-game actions. See Reuveni, On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age, 82 Ind. L. J. 261, 279-80 (2007); Reuveni, Authorship in the Age of the Conducer, 54 J. Copyright Soc. 285, 305-06 (2007). This one examines the same, and explores how criminal law might apply as a result. F. Gregory Lastowka &Dan Hunter, Virtual Crimes, 49 N.Y.L. Sch. L. Rev. 293 (2004). And this one is interesting for its findings on the number of people who spend most of their waking hours in these games. Edward Castronova, Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier 37-39 (CESIfo, Working Paper No. 618, 2001), available at

There are also court cases which support the notion that in-game fraud with real world ramifications is governable by real world law, and should be, as the game is not just a game. See SEC v. SG, Ltd., 265 F.3d 42, 47-55 (1st Cir. 2001).

The nub of the issue is whether at some point these "games" become sufficiently entrenched in their participants real lives that we have to ask whether actions occurring in-game can foreseeably lead to real world ramifications. To think about this by analogy—I can't find a link to this, but there was a new yorker story a couple months ago about a girl who had a facebook account. Local parents and their kids created a fake account in the guise of a guy who was interested in the girl romantically. They then used the account to harass and intimidate the girl, over time sending her increasingly offensive messages. This after the group responsible for the fake account had convinced the girl that the guy was interested in her romantically. She committed suicide at some point. I think we can all agree that if the parents of the dead girl felt so inclined, they could turn to real world laws for some sort of vindication (and in fact the story indicated they were). Its not clear to me, nor do I think the paper distinguishes, how this hypothetical is any different is it occurs in a "virtual world."
2.27.2008 12:02pm
Ex-Fed (mail) (www):
Though the law may not inform gaming, gaming can certainly inform the law. My years of nerdy obsession with the arcane rules of pen-and-paper role-playing-games made learning the United States Sentencing Guidelines a breeze. Calculating a multi-count guidelines sentence with loss issues is still less complicated than making a Runequest character.
2.27.2008 12:24pm
Mr. X (www):
There may be some small number of real people really using Second Life on a regular basis, but their user numbers are artificially inflated by people like me who created an account, tooled around for 10 minutes, realized that there was nothing fun to do, and promptly uninstalled it.

World of Warcraft has an active user base of around nine million players. Analysis related to legal issues arising from it would be applicable to more people and less theoretical.
2.27.2008 12:37pm
Second Life does indeed suck as a game, and is not as popular as some other MMO's. But it's important because it raises a number of technical and legal issues that the other MMOs have avoided. (e.g. Linden Lab officially allows Linden dollars to be converted to and from real money; the terms of service allow users to retain the copyright in their creations; etc).

e.g. Eros LLC vs. Doe probably couldn't have arisen over World of Warcraft.

Legal precedents established in Second Life litigation might affect future systems that don't suck so badly.
2.27.2008 1:14pm
The Unbeliever (mail):
So... Is it prostitution if I pay in WoW gold (for real sex, not something virtual)?

The implications of this idea are simultaneously mind-blowing and hilarious. You have identified either an incredible market niche opportunity, with a demographic arguably starved for product... or the most comical Holy Grail of nerd dreams.
2.27.2008 2:07pm
Elliot123 (mail):
I'm afraid I may be liable under criminal law if they are applied to Second Life. I was curious about these games, so I entered the free version of Second Life and managed to wander around. I even learned to fly.

That's when the troubles began. I stopped in mid air, clicked on a few things, and discovered I could change clothes. It was easy to take them off, but getting them back on is the problem. I am now the guy with no pants flyng over the ice skating rink.
2.27.2008 6:05pm
Charlie (Colorado) (mail):

There may be some small number of real people really using Second Life on a regular basis, but their user numbers are artificially inflated by people like me who created an account, tooled around for 10 minutes, realized that there was nothing fun to do, and promptly uninstalled it.

There are enough players in SL that something over a million dollars a day are exchanged in trade. That seems like a good argument right there that some level of legal attention will be paid.
2.27.2008 6:57pm
ArtEclectic (mail):
Leaving off other arguments, one of the main reasons why Second Life is the single most relevant product for discussion of Virtual World law is that it is a tremendous social experiment (among many other things.) The world is built by its residents. There is no government beyond the limited number of "rules" and are barely enforced via the TOS. All social structure has been created in a vacuum. This is particularly interesting to those who support the ideals of Libertarianism -- because Second Life fails on a number of levels mostly to do with a totally unregulated marketplace and lack of structure. What happens in an absence of rules, regulation and enforcement is that the cream does indeed rise to the top but there is no protection from thieves, predators and those who simply cannot play well with others.

Purchases made in Second Life from anyone other than Linden Lab are strictly buyer beware. There is no recourse and no product protection. People have lost large sums of real life money and because Linden Lab does not intervene in resident to resident disputes, they are out of luck. The result of a lack of rules and regulations is that most of the population has moved from the Mainland onto privately owned islands where there is actual government and protection provided by the island owners. When given a choice between no government and government, people overwhelmingly choose government. People want protection from the scumbags of society. Residents who remain on the Mainland are constantly complaining about lack of zoning, lack of enforcement of having property values protected and limited ability to deal with jerks and harassers. You can buy Mainland and set up your lovely Cape Cod mansion on the coast but can end up living next to a giant toilet or bondage parlor. Nothing you can do except move. That person has a right to build whatever they want on their land.

Second Life is certainly not for everybody, it is a steep learning curve and a tolerance for the considerable range of alternative lifestyles. Sure, some people are there to get their freak on -- how different is that from real life, really? People also start businesses, explore, role play in societies as diverse as Victorian England, Medieval, Fantasy, Science Fiction, Popular Films and Culture. They dance, they create, the play house, the fall in love, they get married, they role play pregnancy and childbirth. The entire range of human experience can be found in Second Life, which is part of what makes it so fascinating. There is no "script" where you are guided through the experience --the experience you have is entirely up to you.
There is a legal society in Second Life comprised of real life law professionals. They would be thrilled to contribute to your project. I personally know at least 3 real life lawyers who participate in SL. Discussion of law crops up on every forum related to Second Life -- in a society where lawlessness is the prevailing mode of operation; law can't help but be a critical topic.

And by the way, it isn't a "game."
2.28.2008 4:53am
real person (mail):
It isn't a game!
It is not!
And leave Brittney alone!
2.28.2008 10:21am
Nicodemus (www):
All MMORPGs are virtual worlds and Second Life is not a game.

Real world laws should only be relevant outside of virtual worlds, not in them. Any VW laws should be consistent and contextual to that particular world's purpose, domain, features, and thematic setting.
2.28.2008 9:08pm
Student interested in Virtual Law (mail):
I take the opposing view in an article forthcoming in Emory Law Journal.

Arias, Andrea Vanina, Life, Liberty and the Pursuit of Swords and Armor: Regulating the Theft of Virtual Goods, 57 Emory Law Journal (forthcoming 2008), available at SSRN:
3.4.2008 11:09am