1From Jack M. Balkin and Beth Simone Noveck, eds., The State of Play: Law and Virtual Worlds (NYU Press, 2005)(forthcoming) Virtual Crime F. Gregory Lastowka and Dan Hunter Ever since creation's peaceful dawn was startled by the death cry of the murdered Abel and Jehovah placed his mark upon Cain and set him forth a 'fugitive and a vagabond,' cursed from the earth that had opened its mouth to receive his brother's blood from his hand, there has been a never-ending conflict between those who make the laws and those who break them.1 In a recent article, we explored the emerging social phenomenon of virtual worlds and the legal issues raised by these environments.2 We focused upon two primary questions. First, we asked whether the virtual items and properties currently being bought and sold by residents of virtual worlds should be regarded as property in a legal sense. We concluded that no obvious reason exists prohibiting the recognition of legal interests in intangible virtual properties. Second, we explored the question of whether the current technocratic, corporate, and anarchic governance systems in virtual worlds should be problematic from the standpoint of democratic governance. We concluded that due to the unique nature of the virtual spaces and the unusual and varied conventions that govern interpersonal actions within these spaces, the governance of virtual worlds is a very complicated question and would be better left to internal and market-driven forces. In this essay, we will look at a third issue that is largely derivative of the two issues previously explored. Private property systems inevitably present the potential for social conflict by granting private ownership rights that can be infringed by trespass and conversion. In the essay, we will explore the issue of non-consensual appropriation and destruction of virtual properties and ask whether these behaviors might be seen as truly criminal. We will conclude that such conflicts will generally not give rise to criminal liability, but that some activities involving the exploitation of game software for financial gain may give rise to criminal liability under computer trespass statutes. 1. Defining “Virtual Crime” Initially, we would like to emphasize our wariness of the general concept of a “virtual crime.” One of the first and most well-known “virtual crimes” was the “rape in cyberspace” reported by2journalist and author Julian Dibbell. Dibbell was a participant in the LambdaMOO MUD, a multi-participant text-based virtual environment. The “rape” in question was essentially a real-time non-consensual textual description of the violent sexual mutilation of an online community member to other community members. The surface appearance of the “rape” was the display, on the computer monitors of several community members, of graphic and offensive textual sentences that seemed to originate from the victim. The “rapist,” Mr. Bungle, was the screen name of the typist of those descriptions. As commentators have noted, Mr. Bungle’s acts were insufficient to form a basis for criminal prosecution. Many legal scholars have referenced Dibbell’s report, including Professor Susan Brenner, who wrote an article referring to the Bungle incident as a “true” virtual crime. Brenner concluded that other varieties of virtual crimes, if they could be described as crimes at all, would need to have all the elements of real crimes, and thus were not really a meaningfully new variety of criminal activity. Professor Orin Kerr recently gave a similar skeptical appraisal of the Bungle incident, disagreeing with Professor Lawrence Lessig’s suggestion that there could be a valuable “link” between actual rape and the LambdaMOO “rape in cyberspace." Kerr has said that such a link is “tenuous at best: It is the link between a brutal rape and a fictional story of a brutal rape. Surely the difference is more striking than any similarity.” Part of the problem with the notion of the LambdaMOO rape as a “virtual crime” lies in the word “virtual” itself. According to standard dictionaries, “virtual” in some cases refers to things which are practically the same in effect as the term modified, and in other cases it simply refers to representations of things created, simulated, or carried on by means of a computer or computer network. The latter definition gained its popularity in the 1990’s, when the word “virtual” became almost as much a buzz-word for technophiles and marketers as “low carb” is today. “Virtual” was used to describe almost all things that involved technology—especially Internet technology. Popular media embraced “virtual reality." Internet-dependant communities were described as “virtual communities,” online booksellers were called “virtual bookstores,” and programs that mimicked the functions of appliances were called, e.g., “virtual alarm clocks." Handheld games were called “virtual pets” and an annoying animation of a paper clip that came with Microsoft Office software was called a “virtual assistant." As the cyberspace scholar Marie Laure-Ryan has observed, this widening of the term “virtual” threatens to render it virtually meaningless.3The term virtual crime can be just as meaningless as the term “virtual pet” if it is defined to include all computer-generated simulations of crime. Realistic digital simulations of mass murder occur every day on the computer monitors of those playing Grand Theft Auto III and on home entertainment centers displaying DVDs of Hamlet. Such “virtual crimes” are the subject of policy debate because they trouble many legislators and cultural commentators. However, even the representations of villainy that occur in interactive games are generally understood as speech and nothing more, and thus are within the scope of constitutional free speech protections. Like Professor Kerr has said, these activities are essentially stories. A narrower definition of virtual crimes might equate virtual crimes with cybercrimes, defining cybercrimes as crimes committed against a computer or by means of a computer. Obviously, computers (like bookstores, alarm clocks, and paper clips) can be utilized in the furtherance of criminal conduct and there are many state and federal statutes that expressly criminalize certain types of conduct involving computer networks. But, these crimes are real crimes with real consequences.