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

This article comes from the official account of Wechat: ID:chuappgame, author: Zhu Siqi

Virtual property is not outside the law.

Recently, a piece of news about "game account trading" has attracted a lot of attention: Xu, a veteran player, has a number of rare equipment that is limited or has been discontinued in the game account of a certain platform. Xu, who is usually unemployed, sells his account at a price of 4000 yuan when he is in urgent need of money. After selling the account, he felt unwilling, so through his initial identity information at the time of registration, he recovered the account on the grounds of theft, and immediately blocked the buyer.

After the success of the first "malicious recovery", Xu tasted the sweetness and quickly repeated the same trick. From March to June 2022, he conducted three similar transactions in the same way, making a total profit of 11000 yuan at the time of the crime. The procuratorial organ initiated a public prosecution against Xu on suspicion of theft. In the end, Xu was sentenced to eight months in prison, suspended for one year, and fined 20,000 yuan.

This case is not alone. In November 2022, a player sold his account at a high price with a similar technique, involving 120000 yuan, and was finally sentenced to three years and six months in prison and fined 50,000 yuan for theft.

Interestingly, the player argued in the second trial: "the platform stipulates that accounts cannot be bought or sold at will, so I am not stealing, just getting my account back." But this did not affect the final verdict.

In recent years, there has been controversy about the valuation and ownership of virtual items such as game accounts and game equipment. Provisions such as "the game account does not belong to the player" stipulated by the manufacturer, as well as rights and interests related to private transactions are also often controversial. To this end, Toule contacted Zhang Cuiping, a lawyer of Beijing Huacheng Law firm and director of the Sports Law and Olympic legal Affairs Research Society of Beijing Law Society, to answer some relevant legal questions for us.

Legal issues related to virtual property have often been raised in recent years: Hello, lawyer Zhang. Can you give us a brief analysis of the case of Xu, why the case is classified as "larceny", rather than the "crime of fraud" of recovering the account by deception?

Lawyer Zhang Cuiping: the game account belongs to the virtual property in the online game and is protected by law. In this case, Xu transferred the game account to other players, and then used his ID number, mailbox, password and other initial information to retrieve the game account on the grounds that the account was stolen, so as to illegally occupy the transaction money. and continue to control the game account. These behaviors are in line with the behavioral characteristics of larceny. And Xu made a cumulative profit of 11000 yuan, which is relatively large, which constitutes larceny.

In the process of the transaction, Xu did not make up the facts and conceal the truth, but took the means of secret theft, using the initial registration information to regain the control of the game account, which is not in line with the constitutive elements of the crime of fraud.

Toule: in the other case mentioned above, the defendant's excuse is very interesting. Indeed, many manufacturers will state in their user agreements that private transactions on game accounts are not allowed, and will declare that the ownership of the account belongs to the game company, and players have only the right to use it. So, in these cases, are the buyers and sellers who transfer accounts privately suspected of violating the rules? Does this affect the legal protection of the rights and interests of buyers?

Lawyer Zhang Cuiping: let's talk about the user agreement first. The user agreement provided by the game manufacturer generally stipulates that the game account belongs to the manufacturer, the player only has the right of use, and the transfer of the account is explicitly prohibited. The agreement is generally recognized as a standard clause (that is, a clause drawn up in advance by the parties for reuse and not negotiated with the other party at the time of the conclusion of the contract), and whether it is valid or not is worth discussing.

Even if it is determined that the format terms are valid and the ownership of the account belongs to the game manufacturer, can the rare equipment in the account be separated from the game account? Users often spend a lot of time, energy and money in the account, in which the game equipment has both exchange value and use value. In practice, the equipment in the game account can be traded freely (such as "World of Warcraft", "legendary World" and other MMORPG categories), and game manufacturers will even set up special trading platforms for players (such as "Dream Journey to the West" and "Treasure Pavilion"). Personally, the game account and tradable equipment should apply the division principle, even if the game account belongs to the manufacturer, players also enjoy the ownership of virtual property such as equipment in the account. This logic is somewhat similar to that of a bank card: some banks will indicate that the ownership of the card belongs to the bank, but the assets in the card do not belong to the bank.

The behavior involved in these cases is the packing transaction of the account, including the equipment. Even if the ownership of the account belongs to the game company, and the seller's player has no right to dispose of the transfer of the game account, the contract formed between the buyer and the seller is valid. In this case, if the game company closes the account as a result of the player's private transaction, the buyer player can still ask the seller to compensate for the loss.

In addition to the discussion of real rights and contractual claims, there is another perspective that can not be ignored, that is, the rights and interests of consumers are protected by law. Whether the ownership of the game account belongs to the game company or not, if the above-mentioned closure occurs in practice, whether the operation of the game company is suspected of infringing upon the rights and interests of players as consumers, which needs to be analyzed in combination with specific cases.

Toule: we can see that there are some similar cases, the amount of money involved is large and small, and the final sentence is not the same. There is a problem here, the value of virtual property such as accounts and rare equipment is often decided by private negotiation among players, and there is no explicit price tag. For example, for an account with a transaction price of 4000 yuan, the actual recharge of the original player may far exceed this amount, plus the time cost of "liver" out of all kinds of equipment. In turn, the amount of the transaction may be at a significant premium because of some rare equipment. Can you tell me how to determine the amount of money involved in similar disputes judicially under the present circumstances?

Lawyer Zhang Cuiping: although most of the network virtual property such as rare equipment is not clearly priced, as long as it does not obviously deviate from the average market transaction price, the amount of money involved in this kind of larceny should be determined on the basis of the amount of illegal gains in practice or the amount of transactions, for cumulative calculation.

Players may spend a lot of money in the game account, and the recharge amount even far exceeds the transaction price, but the game product itself belongs to Internet services, and with the passage of time, equipment and other network virtual property has the possibility of substantial depreciation. Therefore, the proposition of taking the recharge amount as the amount involved in the case lacks the market recognition of the network virtual property.

The legality of user agreements is often the focus of controversy, in which the separation of game accounts and tradable equipment is a relatively new idea: you mentioned the issue of sealing names just now, which makes me have some further associations. Can you briefly say, under what circumstances can the player protect the rights of the virtual property in the account when it is blocked? Under what circumstances can't you?

Lawyer Zhang Cuiping: game manufacturers provide online game services for players, and a network service contract relationship is formed between the two. Network virtual property belongs to the scope of legal protection, if players think that game manufacturers block their own accounts for no reason and damage their own rights and interests, they can protect their rights in accordance with the law. After being blocked, players can protect their rights by filing complaints or complaints to game manufacturers, and they can also safeguard their legitimate rights and interests by bringing lawsuits to the court.

Such as filing a lawsuit, in view of the fact that this kind of case is a special network infringement case, compared with players, game manufacturers have advantages in technology, human resources, financial resources, network operation control and so on. Under normal circumstances, the court will require game manufacturers with technical advantages to prove that they are not at fault. If the game manufacturer is unable to prove it, it will be judged to bear the corresponding tort liability. Of course, when players receive services on the game platform, they should also fully understand the user service agreements and other documents provided by game manufacturers, so as to avoid unnecessary losses caused by the "misjudgment" of game manufacturers.

Toule: in addition to the title closure, we have observed that some games have recently been complained by players for announcing the suspension of service. In addition to some propositions about the paid props in the account, it has also been suggested that deleting data when the game is out of service is also a violation of the rights and interests of players. Excuse me, in a legal sense, does it constitute an infringement to delete all player data when the game is suspended?

Lawyer Zhang Cuiping: as mentioned earlier, if it is determined that the ownership of the account belongs to the game manufacturer, and there is a legal and effective agreement on "deletion in the case of suspension of service" in the user service agreement, then the deletion of the game manufacturer may not constitute infringement. However, when the service is terminated, the game manufacturer must return the virtual currency that the player has purchased but not yet used to the player in the form of legal tender or other means accepted by the user. The game virtual currency recharged with RMB can be identified as network virtual property, while whether player data can be identified as network virtual property still needs to be analyzed with specific cases. Generally speaking, if the game manufacturer does not fully explain to the player the suspension and data deletion measures of the game, or fails to make fair compensation to the player before the suspension, it may constitute an infringement. In short, consumers' online virtual property is protected by law.

Players may invest a lot of energy and financial resources in the game account, which may also be the reason why some games get a lot of attention and rush to hot search in a short period of time. When talking about this issue, I will unconsciously think of the "electronic urn" of a game that was jokingly called by players last month. This kind of product, which can download the player's character progress to the local product, is often different from the off-service product in the traditional sense at the game product level. The general suspension events will occur in the game products that are not commercialized or at the end of the game life. For such game products, game companies may be very difficult, or may not be willing to put more human and financial resources into investment. As for the "electronic urn", game companies may look forward to the day when the relevant products will be re-opened to the majority of players. But for games that will never be "reborn", even if you download the "electronic urn", it may be better to capture a few more beautiful pictures of the characters and leave your thoughts directly.

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