Theft of virtual goods is a criminal offense, according to Dutch Court

Since late 2008, a fascinating case is pending before judges in The Netherlands. Two boys that have stolen virtual goods within a videogame have been sentenced for theft. The verdict of a lower court was maintained by judges in the appeal and now the case will go to the High Court of The Netherlands. The High Court will now have to answer the question whether it is legally possible to steal virtual goods (in online games) and wether this offense would be punishable. The Advocate General that handled the case in the Court of Appeal advised the judges to answer ‘yes’ to this question.

The two boys were sentenced to community service and suspended juvenile detention in October 2008, because they had forced a 13-year old to transfer a virtual mask and a virtual amulet from one avatar to another in the computer game Runescape. The kids threatened to use physical violence if the victim would refuse.

The victim was beaten and forced under threat of knives to log into the online game Runescape. So far, a conviction is understandable, but is grabbing a virtual object the same as theft of a material object? Both the district court and the court of appeal ruled that the mask and amulet could be considered as susceptible to theft.

The suspect's lawyer now wants a Supreme Court ruling on the question whether a virtual good should meet the same criteria as a material good to be eligible for theft in the sense of criminal law. Should the Supreme Court agree with the Advocate General, that would be a dramatic statement. Further questions would follow immediately:  is theft of an e-book, a PDF file or a music file a criminal offense too?. Probably these are virtual things that will remain outside the scope  of the criminal offense of ‘theft’. Mostly these things are copied, rather than placed out of reach of the owner. But still, the thought is compelling.

According to the Advocate General in the RuneScape-case, the economic value of the virtual object is of particular interest to the question whether there is theft. "Virtual objects can represent an economic value both inside and outside the game. They are also individually distinguishable and transferable", the Advocate General wrote to the Supreme Court.

This reasoning is partly distilled from old caselaw on electricity theft. However, it is doubtful whether mere economic value is sufficient to designate something that does not exist in the real world can be legally stolen. Electricity can be stolen because it has value, but also because it is not imaginary, it is real and can be channeled and manipulated by man. A wad of paper, on the other hand, has no value, but is susceptible to theft: the fact that it exists in the physical world seems to outweigh the element of value. This is also what the Dutch civil code says: a good is a physical thing that can be manipulated by man. The criminal code says theft is punishable if a ‘good’ is taken away unlawfully.

Virtual stuff is by definition not material, so I am very curious what will happen in the High Court. Can Runescape amulets really be stolen goods? Or maybe proprietary rights? Or will the meaning of “physical” change? The Supreme Court will decide on October 4, 2011, its considerations are likely to be groundbreaking.

References: Y. Moszkowicz; Webwereld; Court of Appeal Leeuwarden Case LJN BK2773