Last week I noticed the Dutch Hoge Raad (highest court in the Netherlands) defined "sms'jes" and "belminuten" (text messages and calling minutes) as stealable goods- I thought, that is weird. An SMS is a data package which is being transmitted from one user of a network to another user and thus if it is defined as a good, or as property of the rental subscriber, in its unsent, potential form doesn't that mean a turning into property of something that should not be turned into property? If anything, one would assume the SMS, whether sent or not, was part of a service package rented to the consumer by the operator and that, subsequently, a misappropriator of the SMS service would have been guilty of something like fraud, not theft.
Apparently there is another verdict, also from the Hoge Raad in the Netherlands, which defines in-world online game property as goods using a Sweat-of-the-brow-argument. Namely: a person spends a lot of time on creating their in-game stuff (like amulets or swords) and therefore forcing them to give up those in-game objects is paramount to theft. I've seen this mentioned in scholarly journals before, but other than as a theoretical exercise this is the first mention of an actual court case, I believe.
Sometimes I review my link collection, currently at omnom/teirdes and find mentions of virtual property from the scholarly debate.
But this issue is politically urgent, with respect to news like for instance American judges wanting to test the legality of selling second-hand mp3-files (note: jurisdiction not Europe). If the first-hand provision of the mp3 is the first-hand provision of a product, a re-sale right would make sense. On the other hand, once an mp3 has been put into the circulation of the web it doesn't make sense to re-sell it - you can copy at no cost and to wherever! If it is, on the other hand, a service, would the receiver of the service (the buyer) be allowed to pass on the results of the service (some form of equivalent of re-sale)?
I'm not up to speed enough with Dutch law to really say anything about the verdicts mentioned above. Maybe a reader can help out? The cases seem similar to me in so far as they decide property relationships (as opposed to service relationships) between different parties online - this has been much discussed in legal literature, is kind of absent from the political debate (perhaps because it holds a certain level of abstraction we don't usually find in those debates?) and is apparently about to be settled by courts in at least some member states. And this is not even beginning to discuss an eventual turning into property of private data.
I'm not familiar with Dutch law either, nor have I studied the particular case you are referring to, but with respect to the "virtual property" issue in general, I would suggest a comparison with financial assets deposited with a bank (the virtual world operator). If someone, somehow, either forced you to transfer a particular amount from your account, or misappropriated that amount without any confirmation from you, would that constitute either "theft" or "fraud" in the eye of the court? Who would be the victim of that crime, you (as the legal owner of the assets) or your bank (as the involuntary mediator of the irregular transfer)?
This analogy is probably only valid for a limited number of situations which may arise in a virtual world setting, but I consider it relevant as money constitutes the typical measure for both labour and physical goods.
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