In a very literal sense, Jagex never DIDN’T have possession of these goods — and arguably, the player never had it.

Do you guys feel like the comments (attached to your name) above are in your possession? Because I can tell you that from any technical standpoint you choose, they are almost exactly the same as a virtual “item” in the database. There’s a user record, and it has some data attached.

If we wanted to make it more item-like, we could add a WordPress plugin to allow you to “drop” your comment in one post or another, or to let you “give” it to someone and thereby change the name of the commenter… but that is largely cosmetic.

According to Dutch law – I don’t know much about US law- I don’t have possession of the comments because I can’t take possession of my comment. I do own and posses the IP rights to it.

Because a plug-in like you describe would grant me the right to transfer , sell or maybe even rent (parts) of my comment to others, I would probably have possession of the actual comment as well. If you were to add such a plug-in that is.
That, from a technical point of view, I don’t have possession, is of no consequence for the legal definition of possession. Dutch law allows for possession of goods without having (immediate) access to them.

The question could be asked that if once having written here, is it my right to republish the exact same content on my own blog? Do you have recourse other than to block future posts?

It seems to me the ruling is weak until tested by actual cases that refer to it.

Possession is, at heart, a matter of control. Jagex cannot lead a player to believe he has control that he does not have, if that very control is what the player is, in their mind, purchasing with their money.

The test at this point is reasonableness: would a reasonable person come to the same conclusion as to what they were getting for their payment. (Basic legal principle: making money by misleading people is fraud.)

So, even though the assets in a literal sense never left the server, Jagex reasonably appears to give (limited and revokable) discretionary control over these assets to players. The items are shown to be possessed by their avatars, and the world is presented as having RL-approximating rules about possession (able to use, transfer, buy and sell with in-game currency, destroy).

Heck, let’s go further down the rabbit hole: to the extent that the avatar the player drives around is a proxy for the player, legally, if my proxy takes possession of something on my behalf, is the location or virtuality of that proxy relevant?

I will not argue that the mechanics of possessing the tangible are the same as possessing virtual. They are not. But, I will argue that, legally, they are (should be) equivalent.

A more appropriate (but still too-strained) WordPress analogy would be if you doled out to each visitor a certain set individual words and/or markups such that visitors could construct a post only from their set of words and markup. Further, that visitors could trade words and markup among each other. Finally, that you, Raph, as the author could ultimately remove a visitor’s access to the user record associated with one or more of the words and markup in that visitor’s set. In that case, I argue that a visitor “possesses” the instances of those words and markup in her set, but that you ultimately “own” them.

The purely technical analysis inevitably leads to inconsistent results. For instance, from a purely technical standpoint, it is irrelevant on which server (i.e. Server A or Server B) a user record resides. However, if Server A and Server B are owned by separate entities (i.e. item portability between worlds), then even though nothing has changed from a technical standpoint, there is, in Shakespeare’s words, a sea change in the possession/ownership analysis.

Do you guys feel like the comments (attached to your name) above are in your possession? Because I can tell you that from any technical standpoint you choose, they are almost exactly the same as a virtual “item” in the database. There’s a user record, and it has some data attached.

If we wanted to make it more item-like, we could add a WordPress plugin to allow you to “drop” your comment in one post or another, or to let you “give” it to someone and thereby change the name of the commenter… but that is largely cosmetic.

I’m still wholly puzzled as to why this distinction never comes up in Virtual World discussions. It seems pretty obvious that what has been discussed and decided here should be applicable in US law too, since I can’t imagine the US has a vastly different concept of ownership, possession and theft. Shouldn’t this negate a lot of the bickering on ownership and value?

I checked the Terra Nova thread on this and they’ve basically said nothing. I might chime in over there, but I expect I’ll forget to.

Wow, thank you for that writeup. That does make the ruling make a lot of sense, and satisfies my curiosities as to their reasoning.

Presumably, then, Jagex either implicitly or explicitly reserves the right to lawfully re-take possession of such items as these, the victim had lawful possession at the time, and the thieves then took unlawful possession, which sorts out all the (relevant legal) relationships fairly straightforwardly.

I am not at all familiar with the American virtual world caselaw

Considering the court finding we’re semi-discussing is Dutch, I don’t think that’ll be a problem. ^_^

I’ll read up. Thanks.

Article 310 of the Dutch criminal code states:
“He who takes away a good that belongs to another, in whole or in part, with the intent to take unlawful possession, shall be found guilty of theft and be convicted to a prison term of no more than four years or a fine of the fourth category”

Article 310 doesn’t define “goods”. The way the word “goods” is interpreted here is based on case law.
Basically, a good, or goods, is anything I can take possession of, and thereby preventing anyone else from having possession of the same goods.
The “shallow treatment of possession” isn’t all that curious if you think about what actually happens when you ‘steal’ some of the goods mentioned in the ruling, You don’t lose possession of your pin number when I ‘steal’ it and you don’t lose ownership of computer data if I ´steal´it. Note: I’m not stealing the paper on which you wrote the pin number or the disk that contained the data. I stole, or rather, copied the number and data itself, it doesn’t prevent you from having the exact same data.

Actual control, is an either/or situation. You either have it, or you don’t. You can’t have greater or lesser actual control. The victim had actual control. The items were on his account, he could use them, trade them, destroy them, etc. etc. I readily acknowledge the fact that Jagex could *take* control by using GM powers, just like the state can *take* control of an item you posses, by serving you with a search and seizure warrant. But that doesn’t mean they *have* actual control. Actual control is just that: who has possession? who has control over the item in this specific case, in the normal, everyday situation of this specific item? It’s not Jagex, but the victim.

As far as the court is concerned, the position of Jagex and the question of ownership is completely irrelevant, because ownership is irrelevant in this case. It all comes down to possession. The victim possessed something, and the defendants took it away, without being authorized to do so in a manner prescribed by law. Nowhere in article 310 does it say the victim needs to be the owner of the stolen items.The victim only needs to demonstrate he had actual control. He did. Result: the defendants stole it.
Ownership is a concept defined in the civil code, and criminal courts try not to get caught in that mess unless there’s absolutely, positively, no way they can dodge that bullet.

I do know that the distinction is deeply rooted in the common law. A simple example is a dry cleaner, who takes possession, but not ownership, of your laundry.

Tangentially, consider Pierson v. Post, a foundational Property I case from lawschool. The facts sound just like many a general chat spat I watched play out in EQ1, back in the day …

From the case:

If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared the animal, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile course of quarrels and litigation.