invalid-fileACKNOWLEDGMENT
This article originally published 13. Dec. 2004 in Future Game Seminar held by Korea Game Development & Promotion Institute written in Korean.
Excerpting fore parts of this paper and adding updated resources like new cases and revision of laws, I published the short essay titled as South Korea and indirect reliance on IP Law: Real money trading in MMORPG items in Oxford Journal(Journal of Intellectual Property Law & Practice) last month.
Specially thanks to professor Yee Fen Lim and lawyer Nicholas Suzor for giving me encouragement and assistance. Without her and his support I could not published this complete english version today.
ABSTRACT
This article questions the legal status of Real Money Trading (RMT) in Massively Multiplayer Online Role-Playing Games (MMORPGs eg. Lineage, World of Warcraft). I note that in-game items are virtually treated as personal property, but are only legally recognised as information goods. The right of ownership of these goods belongs to the developers, and players have a right to use, as conferred by the terms of service. Transfers of in-game items, as a manifestation of real human will, can accordingly be seen to be transfers intended to have real legal effect in the form of a transfer of a portion of the right to use over the game service held by a user in the real world.
I argue that declarations of intent by players within a game environment cannot be unilaterally ignored by the legal system, and must instead be individually judged to determine whether they were intended to be legally binding. In this conception, internal rules which are consistent with game-play should be given precedence over external real-world rules. However, real-world rules should be applied in cases where the intent is unrelated to the game's proper context, for example in cases of in-game defamation.
Through this framework, I consider RMT, noting that most discussions of RMT in South Korea and elsewhere characterise the objects of real-world transactions as the in-game items. This characterisation, however, is flawed because in-game items are not capable of being treated as personal property. An alternate suggestion is that the transaction is characterised as a sale of a right to use, but this characterisation fails to adequately explain the disparity in values of right to use versus the fees charged by the MMORPG operators, and presents a large liability problem for the operators with regards to the valuable rights to use of their users.
This article shows that neither of these models are satisfactory – the object of RMT is neither the item itself nor the right to use the item, but rather something entirely distinct. Instead, the objects of RMT are better recognised as 'play values', and the monetary compensation is a 'gwonri-geum' (lease goodwill) payment. This analysis makes an analogy between the transfer of goodwill and RMT, where the transfer is not a purchase of an item or the right to use, but rather a payment for the effort the other party has invested in obtaining the item. On this analysis, RMT does not concern the operator any more than sales of goodwill concern the lesser of a business property.
It follows that if RMT is not the transfer of an item or the right to use an item, but rather a transfer of goodwill, then it must fall within the domain of private autonomy of players, and developers and publishers have no legal standing to interfere with the transfer. However, because the value in RMT transactions is the goodwill associated with the item and not the item itself, RMT does not impose liability on the publishers for protection of market value of the items. A publisher's liability will be limited to the original value of the game service (related to the subscription fee), and not for the amounts in which associated goodwill is traded.
I argues that developers and publishers need to face the reality that market pressures have transformed play into real economic activity, a transformation which resulted from the game design choices made by the developers.
The fact that goodwill transfers are outside the scope of regulation by the publisher does not mean that the publisher has no right to regulate related activities. For example, prohibiting in-game advertising of RMT may be prohibited because it interferes with game-play. I suggest that publishers ought to disclaim any involvement and liability with regard to monetary transactions between players, but reserve the right to regulate the in-game behaviour of players. I argue further that there is no real legal basis for justifying the imposition of restrictions on RMT transactions, and such bans are unfair insofar as they heavily infringe upon players’ rights to the intangible value they have created.
I point out that many publishers and operators do not care to correct structural issues in their games which lead to RMT, as RMT indirectly increases their revenue. However, by including an unenforceable ban on RMT in their terms of service which is of questionable validity, publishers are hypocritically covering themselves in cases where the negative social effects of RMT, particularly on the welfare of youth, are brought into question. This article concludes that doing away with nominal bans on RMT can alleviate some of the problems which have been recognised in South Korea, by respecting the personal autonomy of players and restructuring in-game social system fairly.
