The Lawbringer: Gold sellers are criminals!
Welcome to The Lawbringer, WoW.com's weekly tour of the intersection between law and the World of Warcraft. I'm a third-year law student acting as your crossing guard, trying desperately to avoid getting run over myself.
All our discussions about contract law and the EULA have been dealing with civil law (civil law as in the opposite of criminal law, not the opposite of common law). As has been pointed out before, selling gold is a violation of the Terms of Use and End User License Agreement. What can American courts do to someone who breaches a contract? For that answer, we have to look at the history of merry olde England. Fire up the DeLorean, Marty!
Medieval England (the time period from which law is still recovering) had a bifurcated justice system. If someone had violated a contract, the aggrieved party could sue in a court of law for damages. These damages could be the amount of money necessary to put the victim in the position in which they were before the contract was made. (Example: I promise to mow your lawn, and you pay me $20 ahead of time. I don't mow your lawn; you can sue me for the $20.) Depending on the case, the victim might receive the amount of money necessary to put him in the position in which he would have been had the contract been followed. (Example: same scenario, except not only do I have to pay you back the $20, I have to pay $20 to get someone else to mow the yard.) This is just fine when a problem can be resolved with money.
But what if the problem is something that money just can't solve? Say your neighbor has erected a pig sty near your property. You don't really want your neighbor to pay you for marginally lowering the value of your property now that it stinks. You just want him to get rid of the pigs. You can't sue him in a court of law, since they can only award monetary damages. Instead, you go to what was known as a court of equity, wherein the magistrate -- originally the King's chancellor, but later a separate court system -- could grant an injunction to force your neighbor to stop.
So let's set the DeLorean back to the present. Current civil law allows the victim of a breached contract to sue for monetary damages and equitable measures like an injunction. If Blizzard were actually able to haul Shenhua, IGE or the various other gold sellers into court, Blizzard could sue them for the monetary damages they inflict on the game and get court orders to stop them. And if Blizzard were in any business other than computers, that would be the extent of what could be done to gold sellers.
Selling gold is a crime
But as you might have guessed from the title, gold selling is a crime under a formerly little-known law called the Computer Fraud and Abuse Act. The CFAA gained prominence a few years ago, thanks to Lori Drew.
Lori Drew is the paragon of parenting who felt the need to micromanage her teenage daughter's social life to the point of creating a fake persona on MySpace to befriend, exploit for embarrassing secrets and then dump Megan Meier, an acquaintance of Drew's daughter. The break-up prompted Meier to kill herself, and after an investigation and public outcry, the federal prosecutor tried to convict Drew under section 18 USC 1030 (a)(2)(C) for "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] information from any protected computer." To determine whether someone has violated this law, the acts are analyzed using a three-element test:
Did the defendant intentionally access without authorization/exceed authorized access of a computer?
Did the defendant's access of the computer involve interstate and foreign communication?
Did the defendant obtain information from a computer used in interstate or foreign commerce or communication?
Elements two and three will always be met if the defendant accesses the internet. (If marijuana grown and consumed in your house is interstate commerce, your computer hooked up to the "world wide web" doesn't have a chance.) The government argued that the third element was present whenever anyone used a website in violation of the terms of service or terms of use. I want to emphasize this -- the federal prosecutor was arguing that it is a misdemeanor, punishable by up to a year in prison, to violate the terms of use of a website. Furthermore, Lori Drew was convicted under this law. She appealed, and helped by some great lawyering, Judge Wu overturned the conviction, stating that the misdemeanor offense of the law was void for vagueness, in that no one would realize that violating a website's terms of use would be a federal misdemeanor.
Violating the terms of use
Footnote 31 of the opinion however, points out that the elements of felony offense are sufficiently known to not be void for vagueness. For a felony conviction, the three elements above must be met, as well as a fourth that "the offense was committed for purposes of commercial advantage or private financial gain." That's right -- violating the terms of use of a website for financial gain is a felony, punishable by five years in prison. Gold farmers are violating computer fraud law just by existing -- this isn't even taking into consideration sellers who acquire their gold through hacks or keyloggers. Because federal prosecutors have enormous discretion about who they prosecute, though, IGE and their ilk aren't exactly quaking in their boots. That would require a prosecutor who cares about such things, and without a dead kid or equally outrageous behavior, that isn't likely to happen.
So remember folks, when you buy from gold sellers, you are buying from yet-to-be convicted federal criminals. Stay tuned until next week, when in honor of U.S. Tax Day (4/15), we'll be looking at how to fill out a U.S. tax form if you are a gold seller.
This column is for entertainment and should not be considered legal advice. If you have a real legal problem, talk to a real lawyer. If you have questions about law or law school, shoot me an email at lawbringerjd@aol.com or tweet me @wowlawbringer. And in honor of the copyright prof who showed us this in class, Hitler Learns His Law School Teaching Schedule.
