Determining Ownership in Virtual Worlds: Copyright and License Agreements (2003)

I. INTRODUCTION Clive steps out onto the wooden deck of his modest two-story stone cottage on the outskirts of the city.1 It is a sunny August afternoon and his gardens are still wonderfully in bloom. Next to a quiet stream meandering through the back of the gardens his neighbors are putting the finishing touches on a pavilion where two of his friends will soon be married. The wedding is only days away now, and all of the neighbors in this close-knit community are eagerly awaiting the grand event. He steps back inside and considers sitting down to do some work. Instead he grabs his car keys and heads out. It might be a little early to head to the local pub, but he's sure that he won't be the first one there. As he pulls into the stone parking lot he notices that several of his friends have already arrived. He enters and quickly finds his friends seated at their usual table in the far corner. It looks to be another typical evening of arguing politics, discussing local happenings, and forgetting their mundane jobs. It all sounds like an ordinary suburban existence except for one thing: Clive doesn't live in the suburbs, and he never left his house. The entire experience took place, and continues to take place, in cyberspace or, perhaps more appropriately, avatar space. In this space, users create virtual lives by building houses,2 publishing newsletters,3 and creating alter-egos.4 They spend hours upon hours creating their existence. But who owns this world? Some corporate entity or educational institution may physically store the information, but who owns the characters, houses, landscapes, and adventures? As technology races toward the conception of cyberspace envisioned in William Gibson's seminal book Neuromancer,5 questions of ownership loom. The users, who spend hours developing characters, environments, and fictions, will want to protect their labor and creativity. This desire to protect the fruit of their creativity has arisen in two different contexts: noncommercial and commercial. First, in the noncommercial context, educational institutions-often hosting sites-want to promote the exchange of ideas and foster space for creative development. Yet, the scope of this fostered creativity is not limitless; participants may be surprised when they try to exercise their rights of ownership. Professors who create virtual worlds as aids to their instruction may discover that the offspring of their knowledge and research does not belong to them. Second, the commercial context has recently provided a hotbed of controversy concerning ownership in virtual worlds. Corporate entities offer tools for users to create their worlds, physically maintain the data representing these worlds, and often create scenarios in which characters in this world may be involved. They earnestly seek to protect the corporate creative efforts and, more importantly for them, potential profit. Some players in this context desire compensation for their skill and creativity, attempting to sell their finds and their creations in online auction houses. Other players simply desire to chronicle the adventures of their characters or their online community in other contexts. Yet players in this context often find their exercise of ownership confronted by harsh corporate enforcement. From these varied interests spring diverse, and often conflicting, approaches to determining ownership. These approaches include the application of existing intellectual property law6-consisting of patent, trademark, copyright, unfair competition, and trade secret-and the requirement of acceptance of licensing agreements,7 which, in the software context, often take the form of an End User License Agreement (EULA). Both of these approaches carry with them a set of presuppositions about whose interests should be protected. This set of presuppositions then defines how the rights of users/creators should be balanced against the rights of hosts/providers. …