Judicial finding of fact, evidence adduced and qualification
The Court of Appeal convicted the defendant of, briefly stated, the theft with violence, together with another person, of a virtual amulet and mask belonging to another person in the online game RuneScape.
From the evidence adduced at the appeal, it may be concluded that the defendant and his co-accused coerced the victim, using violence and the threat of violence, to surrender virtual objects in the game of RuneScape that had cost him time and effort to obtain. He was made to log into his RuneScape account and 'drop' the objects in the virtual game environment. The defendant was then able to use his own RuneScape account to appropriate the items dropped by the victim.
The appeal court held that this constituted a criminal offence under article 310 in conjunction with article 312 of the Criminal Code.
Assessment of the Supreme Court
3.1. The statement of grounds of appeal challenges the Court of Appeal's conclusion that the virtual amulet and virtual mask in the online game RuneScape are goods which can be the object of theft within the meaning of article 310 of the Criminal Code.
3.2. Article 310 of the Criminal Code reads as follows:
'Any person who removes any good belonging wholly or partially to any other person with the intention of unlawfully appropriating it is guilty of theft and liable to a term of imprisonment not exceeding four years or a fourth category fine.'
3.3.1. The statement of grounds of appeal questions whether virtual objects like those at issue in the present proceedings can be considered goods within the meaning of article 310 of the Criminal Code. Clearly, when article 310 was introduced in 1886, the legislator could not have taken this issue into account. Nor has this specific question ever arisen previously in the case law of the Supreme Court. Nevertheless, both the law and established case law can be of assistance when addressing the question now before the Court.
3.3.2. By laying down various criminal provisions, the legislator intended to protect rightholders' control over any goods owned by them. Under article 310 of the Criminal Code it is a criminal offence to deliberately take de facto control of any good belonging to another person with the intention of unlawfully appropriating it. The term 'any good' has an autonomous definition under the criminal law. An intangible object may be considered a good provided it is an object that by its nature can be removed from the de facto control of another person.
3.3.3. Over the years the Supreme Court has addressed various questions of interpretation concerning the definition of a good, including in regard to other provisions in which the term is included.
The Court's judgment of 23 May 1921 (no. NJ1921, p. 564) concerned whether electrical energy could be considered a good within the meaning of article 310 of the Criminal Code. The Court concluded that it could. In reaching this conclusion the Court took into account that electrical energy 'undeniably has a certain independent existence' and considered that electricity can be generated and controlled by individuals and that it 'represents a certain value, on the one hand because there are costs and effort associated with obtaining it, and on the other because it may be used for one's own benefit or may be sold to others at a price.' These considerations led the Court to conclude that 'thus, on the basis of the above-mentioned characteristics, the article also applies to electrical energy in so far as article 310 of the Criminal Code is intended to protect the property of others and with that goal in mind makes it a criminal offence to remove "any good" in the circumstances set out in that provision, without in any way further specifying what should be considered a "good".'
The Supreme Court's judgment of 11 May 1982 (no. NJ 1982/583) concerned article 321 of the Criminal Code, which makes unlawful appropriation a criminal offence. The case concerned whether electronic money could be considered a good which, being the property of another, could be the object of appropriation. The Court held that 'given the function of electronic money in society, viewing such funds as a good was a reasonable interpretation of article 321 of the Criminal Code.
The Supreme Court has also held that the memorised knowledge of a payment card's PIN code cannot be considered a good within the meaning of article 317 of the (old) Criminal Code. What is more, divulging (voluntarily or otherwise) one's PIN code cannot be considered surrendering a good within the meaning of article 317; a good is surrendered only when a person loses possession of it by giving it to another person (cf. Supreme Court 13 June 1995, NJ 1995/635).
3.4. According to the notes, the statement of grounds for appeal contains three complaints. First, the appellant states that the virtual objects in question are not goods, but visual illusions consisting of bits and bytes. Second, the appellant contends that these objects fall under the definition of 'data' as referred to in article 80quinquies of the Criminal Code and that they therefore cannot be considered goods. Third, the appellant argues that taking away the virtual property of other players is one of RuneScape's very objectives.
3.5. Before assessing these complaints it should be noted that the Court of Appeal has established the following:
- it cost the victim time and effort to obtain the virtual amulet and mask. These objects were of genuine value to him and he, the defendant and the co-accused all wanted fervently to possess them;
- the victim had exclusive de facto control over the virtual amulet and mask because these could only be accessed by logging into his RuneScape account. Through the actions of the defendant, the objects passed out of the control of the victim and into the control of the defendant. This violated the victim's uninterrupted enjoyment of exclusive control over these virtual objects;
- the rules of RuneScape do not cover obtaining objects in the manner that occurred in this case: the objects were taken from the victim outside the context of the game itself.
3.6.1. The assertion that the objects are not goods because they consist of 'bits and bytes' is untenable. The virtual nature of these objects does not in itself preclude their being considered goods within the meaning of article 310 of the Criminal Code. The appeal court's ruling on this matter is thoroughly reasoned and is in no way incorrect in its interpretation of the law. The Supreme Court bases this conclusion in part on the fact that the appeal court established that 'for the victim, the defendant and his co-accused, the possessions they collect in the game hold genuine value, which can be taken away from them' and that 'this concerns items of value accumulated over the course of the game, which were obtained – or can be obtained – through time and effort' and that the victim had 'exclusive de facto control' over the objects within the game environment and lost control of those objects through the actions of the defendant and the co-accused.
3.6.2. Equally incompatible with the appeal court's establishment of the facts is the contention that that court should have considered the objects 'data' within the meaning of article 80quinquies of the Criminal Code ('Data shall mean any representation of the facts, ideas or instructions, in an agreed manner, which are suitable for transfer, interpretation or processing by persons or automated equipment.') The mere fact that an object shares characteristics with data as defined in article 80quinquies of the Criminal Code does not mean that the object for that reason cannot be considered a good within the meaning of article 310 of the Criminal Code. It is worth noting in this connection that borderline cases are also perfectly conceivable, whereby certain intangible objects have characteristics of both goods and data. In such a case the qualification depends on the circumstances involved and how they are weighed by the court in question. Given that the appeal court established that the victim had 'exclusive de facto control' over the virtual amulet and mask within the game environment and lost control of those objects through the actions of the defendant and the co-accused, the court's ruling that the objects in question could be considered goods was in no way incorrect in its interpretation of the law with respect to article 310 of the Criminal Code. It was therefore not an unreasonable conclusion.
3.6.3. The final complaint – manifestly aimed at the issue of unlawful appropriation – that taking virtual possessions from other players is one of the very objectives of RuneScape is incompatible with the fact, established by the Court of Appeal, that the rules of RuneScape do not cover taking objects in the manner employed by the defendant and the co-accused.
3.7. The appeal fails.