Shulou(Shulou.com)11/24 Report--

This article comes from Weixin Official Accounts: Touch Music (ID: chuappgame), by Yang Zongshuo

Court judgment: game props, equipment and other virtual property owned by the game company, but the game company should protect the player's right to use.

Many players face a reality: virtual assets in the game don't really belong to them. When the game manufacturer decides to suspend or ban or delete the player's game account, the account and all items and equipment contained therein will also disappear.

Game manufacturers often write into their user agreements that "the company has the right to delete users 'game data." Among them,"inactive accounts" that do not log in to games for a long time are often regarded as objects that should be deleted by manufacturers. Whether domestic or foreign, there are clauses in the user agreements of many game companies to delete inactive accounts.

For these user agreements, most players usually choose "click to accept," but some people resort to law for this.

Deleting inactive accounts: a common phenomenon in the industry. In fact,"deleting accounts that have not been logged in for a period of time" is not a unique clause in a game's user agreement. In the gaming industry, this is a fairly common phenomenon.

For example, Mihayou's service agreement stipulates that if a user does not log in to the game for 365 consecutive days, Mihayou has the right to take measures to delete the user account and any records of the user account in the game database (including but not limited to data information such as characters, levels, virtual items, virtual currency, etc.) from 24:00 on the 365th day, and the deleted data information cannot be restored.

The Changyou Mobile User Agreement also stipulates that Changyou Mobile has the right to take measures (including but not limited to freezing, logout, etc.) against users who have not logged in or used Changyou Mobile Game Platform continuously for 180 days.

▲ Measures for handling inactive accounts in Changyou Mobile User Agreement

In August this year, fist games announced that they would delete accounts that had been inactive for a long time in all their games. The criteria are: no login for 3 years, no purchase or receipt of any game coins, no more than 20 hours of account play time, no possession of any rare game items. An account must meet all of the above conditions before it can be deleted.

Even outside the gaming industry, many platforms have similar moves to delete inactive accounts. Netflix announced in a statement in May that it would send confirmation emails to subscribers who joined Netflix for a year without watching anything, and to older subscribers who stopped watching for more than two years, asking if they wanted to keep their membership. If the user does not confirm, the account will be deleted. However, Netflix conditionally retains the profiles of these users, and if they re-register as members within 10 months, the content on the old account can be restored.

Twitter also launched a plan to delete inactive accounts in 2019 because it involved accounts of deceased users, which was opposed by a large number of users after it was announced and was not formally implemented.

Although discussions about virtual property were common in the gaming world, in China, there were not many cases where virtual property was actually brought to court. In the report before touching music, the parties involved in the suspension of "Cloud Clothes" chose to appeal to the China Consumer Association, and the interviewees in the suspension of Nvidia SHIELD of the Bank of China were in a state of "recognition."

Last year, a player sued operator Lilith Games in Shanghai City's First Intermediate People's Court over some terms of the in-game service agreement. The case was concluded in the first instance on October 11,2021, and the judgment held that Article 5.3 of Lilith Game License and Service Agreement (hereinafter referred to as "Service Agreement") was invalid, but rejected the plaintiff's other requests. Subsequently, Lilith Games filed an appeal, and the second trial was pronounced on July 25,2022, upholding the original sentence.

▲ Relevant terms in Lilith Game License and Service Agreement

Court judgment: The rights and interests of players should be guaranteed, but the account number and virtual property belong to the first trial stage of the game company. The plaintiff player mainly has two core claims: one is to judge that Article 5.3 (deletion of inactive player account is not responsible, see illustration for the original text) is invalid; The second is to hope to judge that Article 7.6.13 "Users shall not conduct transactions on game accounts, game props, game equipment, game coins, etc." is invalid.

The player's appeal is easy to understand_the game account is mine, and the company can't delete it because I haven't logged in for a long time, nor can it stop my trading behavior. In response to these two claims, players and game companies expressed their views in court, and the court also made corresponding judgments.

As for "whether the game company has the right to delete the account that has not been logged in for 365 days," the company believes that the purpose of this regulation is to let players enjoy a better game experience, and does not restrict the main rights of players. The regular online is only some regulations on the use of game accounts, which is generally reasonable. In addition, if there are too many "sleeping users" in the server, it will affect the experience of other users and increase the server maintenance cost of the game.

The court of first instance held that the disputed Service Agreement between the two parties was prepared in advance by the game company for repeated use, and the content was not negotiable and belonged to the standard clause. According to the Contract Law of the People's Republic of China, any standard clause that exempts one party from the main obligations and excludes the main rights of the other party shall be invalid.

Specifically, the game company did not explain how much operational burden the dormant account would bring to the server, while for users, the consequences of deleting the account were obvious. This kind of clause is essentially the termination clause of the service contract, which is a significant punishment for the rights and obligations of both parties. Therefore, the court held that the 365-day non-login period set by the game company was unreasonable, and the disposal method (deletion of accounts) was also "lack of good faith in transactions." This clause exempts the game company from its obligations to operate and excludes the player's right to play the game, which is an invalid clause.

As for "whether the player has the right to trade the game account, game props, game equipment, game coins, etc. privately," the game company considers that the ownership of the game prop resources belongs to the game company according to the agreement in Article 7.2 of the Service Agreement, and the player only has the right to use it. The company said the items purchased by players were "services purchased for a better experience." Players are prohibited from trading privately for the healthy development of the game market, not for the purpose of protecting the interests of operators.

▲ The ownership of game props is one of the core issues of online discussion and another major focus in court proceedings.

In this respect, the Court largely agreed with Lilith's arguments. The court held that the ownership of online virtual property such as game accounts, props and game coins was enjoyed by game users and lacked legal basis. The two parties belong to the service contract relationship. According to the Service Agreement, the game user has only the right to use the virtual property mentioned above, not the ownership. Including game coins, game props, etc. exchanged for money paid in the game, it also belongs to purchasing "game services different from other free game users," not obtaining ownership of virtual property.

The court held that the virtual property such as game props and game equipment in the online game was obtained in the game, and its acquisition mode and state were determined by the rules of the game. It belonged to an inseparable part of the content of the online game and should belong to Lilith Company, which operated the game, and the game users could enjoy the right to use it according to the agreement. Lilith's obligation is to ensure that users can use them properly and without obvious imbalance. Therefore, the court cannot support the player's claim.

Therefore, in the first-instance judgment, the court upheld the player's claim to delete the game account, but rejected the free trade of in-game items. Lilith then filed an appeal.

In the second trial, the main dispute between the plaintiff and the defendant was the deletion of inactive accounts.

Lilith provided corresponding service agreement terms including Changyou, Mihayou, Perfect Time and Space and other major companies in the industry, articles about the black industry of games published by Xinhua Agency, China Youth Daily, Beijing News, Sina Finance and other media, as well as an overview of the black production of games mentioned in the case. A total of 16 pieces of evidence proved that China's online game industry suffered from black production. Adopting such clauses is a necessary common choice for mainstream game companies.

▲ The report of Economic Information Daily,"Hundred times of profits breed Internet" account black market,"explains the operation mode of" online game black production."

The company believes that batch registration of accounts is an important prerequisite for the next illegal act of the black industry. These accounts may be sold to downstream black industries to engage in acts that damage the legitimate rights and interests of the company and players, such as "collecting wool" in batches, defrauding the user welfare of game companies, or obtaining information from other players to steal numbers or defraud players. Even if the account has been recharged, it is impossible to judge whether it is a black "number" behavior, so the game company "must retain the deleted terms."

At the same time, the purpose of deleting accounts also includes cracking down on rental accounts, and protecting minors by deleting accounts registered in batches by rental companies.

However, the court of second instance held that deleting dormant accounts was not the only way to crack down on black property, and there was no direct correlation between dormant accounts and online black property, which could not limit players 'main rights.

During the trial, the court also explained to a certain extent the situation in which the game company signed the Service Agreement with the player. The court said that if the terms of the agreement clearly violated the Consumer Protection Law or the Contract Law, some of the terms could be held invalid. In this case, Lilith and other companies handled the game accounts in a way that was too harsh for gamers who failed to notice or forget the terms. The player is exposed to the risk of losing the main rights of the contract without relief measures. The fault is not equal to the risk borne and exceeds the necessary limit. In the end, the clause was found invalid.

On the whole, these two trials can reflect the court's recognition of the ownership of game accounts and virtual property at the stage of emergence: virtual property such as game props and equipment belongs to the game company, but the game company should guarantee the player's right to use it.

Looking forward to more perfect virtual property-related laws From the results, Shanghai City First Intermediate People's Court this judgment, For the game industry, Companies and ordinary players have certain significance. Although the specific case still needs to be analyzed in detail, it can provide some references for game companies and players when similar disputes occur later.

At the same time, the problems mentioned by the game company in the trial process, such as black industry, illegal trading of accounts, protection of minors from black ash damage, etc., are not non-existent, and these risks should not be borne by the company, players or one party in the industry alone.

For a long time, discussions about game accounts and in-game virtual property may continue, and they will develop in the direction of evidence and laws. Article 127 of the Civil Code of the People's Republic of China stipulates: "Where laws have provisions on the protection of data and network virtual property, such provisions shall be followed. "For game companies, players and the entire game industry, with the improvement of relevant laws and regulations, the ownership and protection of virtual property will gradually be standardized.

(You can check the records of the two trials on the Chinese adjudicative documents website. The first case number is Hu 0112 Min Chu 3445, and the second case number is Hu 01 Min Zhong 249.)

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