Second Life: intellectual property and virtual property are not the same thing

Second Life is website where users can live, well, a second life. It is a role-play game in which users imagine meeting virtual people, doing virtual things and buying virtual property – for real money. Tens of millions of dollars have been spent and some commentators, such as Lawrence Lessig and Chris Anderson, have held the site up as a paradigm of how to make money out of online communities where many are giving their time and energy for free.

Now some of those who bought virtual property are suing in a class action, saying that Second Life has been misleading users about their ownership of virtual property. The plaintiffs’ accounts had been terminated, depriving them of access to their virtual property. And when Second Life went open source, the claimants say property was devalued, as anyone can now create their own land.

Confusion seems to have stemmed from the conflation of two types of ‘ownership’. Firstly Second Life asserts that users retain copyright ownership of content they create. Secondly they have said users can own virtual property. The first type of ownership is real-world ownership. The second is metaphorical ‘ownership’.

Where a user becomes an ‘owner’ of virtual property by buying it from the site or another user, it seems they are paying for a licence. This licence presumably may or may not incorporate an intellectual property licence. For example, the design of property may not be sufficiently original to attract copyright. There must invariably be aspects of what is paid for that has nothing to do with copyright: a house next door to a virtual celebrity’s house might cost more than an identical house in another location. The consideration here is a place in a game, not something that is protected by copyright.

On the other hand, if Second Life terminates an account they do not remove the user’s intellectual property right of owning copyright in content he created. Rather they stop making use of a licence the user has given.

Second Life is a game, so it’s hardly surprising that ‘owning’ something in a role-playing game should be something different from owning the real-life equivalent. The court must decide whether Second Life has been misleading users with statements like: ‘We started selling land free and clear, and we sold the title, and we made it extremely clear that we were not the owner of the virtual property.’