CONTRACTUAL GOVERNANCE OF ONLINE COMMUNITIES – (PROPERTY) RIGHTS DISPUTES IN VIRTUAL WORLDS

Considering law’s difficult ride on the coattails of societal and technological progress, this thesis discusses property rights disputes in virtual worlds, the origin and foundation of (property) rights in characters, objects and items (virtual assets), and the possibility of contractual governance. Investing considerable time, effort and money to create, develop and accumulate virtual assets to gain prestige or competitive advantage, or simply to have more fun playing, users often build strong emotional connections to their characters and place a high value on accumulated operator, third user and user-generated content. But the user’s experience of virtual assets as property, contrasts starkly with most in-world property models where first property rights belong to the operator, subsequent rights are delineated by contract, and emerging property rights are transferred to the operator or waived by the user. Noting the ‘technologically inaccurate portrayal of software’ in legislation, jurisprudence and legal debate, that ignores its ‘physical properties of mass and volume’, and the influence of client/server system architecture on the allocation of personal property rights, this thesis shows that physical and intellectual rights cannot resolve the newly emerging property rights disputes in virtual worlds. Instead of making another helpless attempt to justify a new virtual property right that still cannot overcome an enforceable transfer/waiver of (future) (property) rights clause in the contract, this author questions common concepts of property and proposes a new quasi-property right. Originated in the contractual obligation of the operator to grant the user a right to use, to exclude other users from and to transfer virtual assets, the rules of conduct included in the multiple-separate user contract complete its quasi-absolute effect. This quasi-property right does not only complement the quasi-tort, quasi-criminal and quasi-constitutional system already established by the (virtual social) contract but supports the identification of the contract (terms) as new default legal rules for VWs and similar online communities