Loot boxes and other in-game property in computer games: is it possible to be their full owner?

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 - be it the 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 object be extended to objects circulating in the digital space?



Speaking about objects of the digital world, we often mean by them certain objects that exist within the framework of the virtual space, including in computer games. The value of these objects, in principle, is determined only by the possibility of using a specific object within the framework of conditions predetermined by the program - namely, the rules of a computer game, implemented in its code. However, it is worth noting the economic value that these objects can have - quite often such objects, the so-called in-game items, can be bought for real money. The amounts that players spend on purchases inside the gaming space can sometimes reach billions of dollars. This fact gives particular importance to the legal regulation of aspects related to the possession of game "property" consisting of such in-game items.



Considering the issue of legal regulation, it is impossible not to turn 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 presented in digital form and is a digital object. These objects include, in particular, equipment, the form of the protagonist, inventory, drugs, weapons, gadgets, as well as the so-called "Persians" - in-game characters presented in the form of unique heroes tied to user accounts. The presented objects have a common functional feature - they help the user to carry out certain actions within the game, as well as improve the gameplay and its perception by the player. Besides,in-game items are presented in the form of some "services" to improve the physical qualities of the protagonist (the so-called "pumping" characters), change the appearance or rebuild the in-game space. In some multiplayer games, in-game items can only be purchased with internal, in-game currency, which can also be considered virtual in-game property - but it is originally purchased with real money.which can also be considered as a virtual game property - but it is also originally purchased for real money.which can also be considered as a virtual game property - but it is also initially purchased for real money.



In-game objects can be represented in the virtual space in different forms, but each of the presented forms has common features. All objects of the game space have an intangible form - they cannot be consumed in a traditional, “material” way. Also, all game objects are presented in digital format, and therefore exist exclusively in the form of lines of program code. The user, by agreeing to create his own in-game account (account), agrees with the "nominal" ownership of the game property - due to the fact that both the account, the game, and all in-game items in it initially belong to the owner of the site (computer game) as its developer / publisher (publisher). In fact, in-game items and in-game currency can be qualified as a kind of digital quasi-property,property rights to which are not transferred to the player, but only provided to him for temporary possession / lease.



Since the player actually does not 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 the rights to it. The content of the contract for the purchase of certain in-game property may vary. Many online games allow the purchase of in-game objects for fiat money, and in-game purchases can potentially be an object of exchange and further resale. However, for example, the "World of Warcraft" user agreement in sub-clause 5 of clause 3 "Restrictions on the use of World of Warcraft" explicitly prohibits the purchase and sale of "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. It 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.



Many playgrounds follow the same principle, including Steam and Epic. The license agreement accepted by the user prohibits distribution, purchase, sale, transfer, rental, donation, theft and assignment of accounts with the consequences of permanently blocking the account. This prohibition 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 purchasing in-game items, a very significant question is whether in-game objects are considered "property". As rightly noted , MA Rozhkova, firstly, it is necessary to clearly distinguish what kind of relationship with regard to the game property we are talking about, since legal relationships of different nature can arise here. Secondly, it is necessary to proceed from the fact that relations with regard to game property are always relative, quasi-legal relations, the “territory” of which is limited by the framework of a specific multiplayer online game, and the circle of obligated subjects is not indefinite.



Recognition of in-game objects as a thing is unacceptable due to a formal feature - existence only within the framework of the virtual space. The provisions of the Civil Code of the Russian Federation on gambling, implying a potential win, also cannot be applied, since usually the 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 endowed with certain rights, and the relevant rules can be extended to certain types of contracts concluded in relation to this other property.



Different interpretations of the game object from the point of view of legislation led to the formation of new approaches and to the definition of virtual game property. In addition to the designated aspects of owning virtual gaming property, a very important area is the protection of the user's rights to the corresponding property. In relations where the object of the dispute is virtual property, the 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 delivery.



One of the approaches is the theory that the user has absolute rights to the purchased game property. It is based on the provision that the use of gaming property can be carried out only with limited access to it - namely, a password-protected account. It is through the password from such an account that the user, by analogy with physical control over the thing, can dispose of the virtual game property at his own discretion.



Representatives of the theory adhere to a different point of view, according to which the game property and the associated absolute rights of the user to it can be regulated as relations associated with intellectual property. This theory is applicable in cases when the user is given the opportunity to manifest a creative element in the creation of certain objects of the game space, including modifications of objects in existing games. The presence of a unique object allows the object created by the user to be classified as copyright objects and to apply the appropriate legal protection mechanisms.



A very common theory is that access to virtual gaming property is provided on the basis of a license agreement. In this case, the user is the owner of the code that corresponds to one or another object in the game. However, the corresponding rights in the license agreement do not imply direct ownership of the virtual property by the user.



The theory presented was subject to assessment in a tax dispute against Mail.ru Games. Representatives of the Mail.ru Games company tried to provethat by purchasing game property, the user purchases an updated or expanded version of the game, which allows the application of a "programmer" tax benefit. The court dismissed the arguments of the defendant, stating that the DFI (additional functionality of games) "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 as licensed." In the named case, the court qualified the DFI as a “service for organizing the game process” for the purposes of a tax dispute and as a performance under a contract for the provision of services for compensation, which ultimately led to the application of a standard VAT rate instead of a tax benefit.



Accordingly, another theory that deserves attention is the theory of providing virtual game property as a service. The user agreement concluded between the player and the game service (game developer) in such a situation is recognized as a service agreement. According to the concluded agreement, the gaming service undertakes to provide the player with certain objects of gaming use for certain funds, thereby providing a service for their creation and further transfer to the player.



The protection of relevant rights within the framework of the theory of service provision implies that the user concludes with the developer, which contains provisions that in-game property can be purchased for money. The problem of legal protection in this case arises when the courts refer to the internal rules of the game that prevent the full ownership of game property - for example, in the case of an account blocking. In particular, in one of the cases, the court noted that blocking an account for violating the rules of the game, 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 In the 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, the application of in-game sanctions to characters for violations of internal rules, relate exclusively to the game process, are governed by the internal rules of the defendant and are not subject to judicial protection ".