GAMING LAW REVIEW Volume 11, Number 1, 2007 ©Mary Ann Liebert, Inc. DOI: 10.1089/glr.2006.xxx
Virtual Worlds, Real Damages: The Odd Case of American Hero, the Greatest Horse that May Have Lived JASON A. ARCHINACO*
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HE GREATEST HORSE that ever lived may have never lived at all. Those even vaguely familiar with the sport of horseracing know of Secretariat. Still others know of Spectacular Bid, perhaps the greatest horse to never win the Triple Crown. But who, if anyone, knows of American Hero,1 the greatest horse that may have ever lived? Spectacular Bid was a phenomenal horse, winning 26 of his 30 starts with his career earnings topping $2.78 million. During his outstanding career, Spectacular Bid’s greatest achievement came on Feb. 3, 1980, at Santa Anita Park. On that day, carrying 126 pounds as a four-year-old, Spectacular Bid set the world record for one and one-quarter miles, the same distance as the Kentucky Derby, finishing in 1:57.80.2 Spectacular Bid’s record was so remarkable that it survived even his own death, more than 23 years later, on June 9, 2003. But, records are said to be made to be broken. A little over three months after Spectacular Bid’s death, “The Jockey Gold Cup” was run at Belmont Park. On Sept. 27, 2003, a field of five three-year-olds, all carrying 121 pounds, lined up to contest the one and one-quarter mile distance. There was no reason to expect anything extraordinary would occur that day. The field of horses, although impressive, was not brilliant. Three of the horses—Orpheus, Smokin, and Alpha Ultimo—were all previous
* Jason A. Archinaco is a partner in the Commercial Litigation group of White & Williams LLP, and is located in the firm’s Pittsburgh office. He may be reached by phone at (412) 566-3525 or by e-mail at
[email protected]. He is an avid gamer and claims to have first discovered the invisible dot.
stakes winners. A fourth, Perfectly Clear, was an allowance-class winner. And the last, American Hero, was a first-time starter. But, the extraordinary did occur that day. When the starting gates flung open, American Hero shot to the lead with none of the previous winners contesting him. His lead built quickly as he separated himself from the field. By the half-mile mark, American Hero’s lead was a commanding 13 lengths run in a blistering fraction of 45.75. The fast fraction that ticked across the tote board suggested a rabbit that would fade by the six furlong mark. But, by the six furlong mark, American Hero had stretched his lead over Orpheus to 16 lengths, continuing his dizzying pace with a 1:09.02 split and showing no signs of fading. American Hero continued pressing the lightning-fast pace, flashing a split at the one-mile mark of 1:32.67, just off the world record set by Dr. Faber in 1968, and increasing his lead over the distant second Orpheus to 18 lengths. The final two furlongs were simply a race between American Hero and history. And history would be made. American Hero never faded. Instead, he continued on his torrid pace through the remaining two furlongs—and ended his historical run with a time of 1:56.58,
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This article discusses the life and death of the virtual horse known as American Hero. The author is aware that a real world horse was also named American Hero. See Jockey Club, Registry, http://www.jockeyclub.com/ registry.asp (click on Online Names Book) (last visited Nov. 26, 2006). This article is not intended to reach the issues that are raised by the overlap of such names. 2 Thoroughbred Champions, World Records, http:// thoroughbredchampions.com/library/worldrec.htm (last visited Nov. 26, 2006).
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Electronic copy available at: http://ssrn.com/abstract=905043
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beating the distant Orpheus by nearly 19 lengths and shattering the world record for one and one-quarter miles by more than a second. To put the time in perspective compared to Spectacular Bid’s record, had American Hero and Spectacular Bid been racing side by side, American Hero would have defeated Spectacular Bid by seven to eight lengths.
THE “DEATH” OF AMERICAN HERO Alas, the gods would have it that American Hero would never see a track again as his racing career would end with one start, one win, and one world record. Nor would the gods permit him to find his way to stud. American Hero was no more—stricken down. If American Hero was a real horse, the term might be “dead”. But American Hero was no real horse. He was just computer code in a virtual world run by the owners and operators of horseracingpark.com, Virtual Sports, Inc. As such, his death was more positively termed by Virtual Sports as a “deactivation”. One day after American Hero’s record-setting run, Virtual Sports announced that American Hero was being “deactivated” “for the best interest of the game. . . .”3 The end result was, however, the same. The horse was “dead”. There would be no further track career or a career at stud. Like real life horses whose lives ended abruptly—from Ruffian to Alydar—one is left to wonder what could have been. More aptly put, perhaps what should have been. In partially answering the question, “what should have been?”, Virtual Sports stated, “The owner is being compensated.”
WHAT WAS AMERICAN HERO’S VALUE? The singular statement that “the owner is being compensated” raises a series of unique questions in the context of a virtual world: What exactly are the damages from the loss of a virtual horse? Can such damages be quantified? Are such damages simply speculative at best? As a starting point for the analysis, the
real world model of a champion stud can be examined. Consider the following. In the “real world”, stud fees can range anywhere from $1,000 to as high as $500,000 a cover. Storm Cat, one of the most successful sires, commands a stud fee of $500,000 per live foal.4 Given the fact that a stud can “cover” over 100 dams in a single year, the revenue on an annual basis from stud fees can be staggering. In the case of Storm Cat, stud fees can exceed $50 million in revenue in a single year. Further, the career of a top-level stud can exceed 20 years. As is made obvious, the stream of revenue from a single successful stud over his career can reach into the hundreds of millions of dollars. Should a successful stud die prematurely, insurance is usually available to at least partially compensate for the loss. The amount of compensation obviously depends on the level of insurance. Conceivably, however, the owners of a horse like Storm Cat could be compensated in the hundreds of millions should he meet an untimely death (and should there be enough insurance to cover the loss). A similar, if not identical analysis could be used for American Hero to determine his value. First, the horse’s potential income from “future” racing could be estimated. Second, the horse’s potential income from stud fees could also be estimated. Once estimates for those “damages” were obtained, a real world damage figure could be derived to compensate American Hero’s owner for his death. Presume that the racing career of American Hero was ended with his single race, eliminating any potential income from future racing. The focus would then be on the horse’s stud career. The horse would command stud fees based upon the game world’s rule set. When breeding was first instituted in the game, Horseracingpark.com permitted five covers per quarter, 20 for a year. Top racing performers in the game could command stud fees of
Horseracingpark.com, Support Forum, http://www. horseracingpark.com (last visited Nov. 26, 2006). 4 Stallion Register online, Storm Cat, http://www. stallionregister.com/sr_sire_page.asp?refno935962& originsinglesearch (last visited Nov. 26, 2006). 3
Electronic copy available at: http://ssrn.com/abstract=905043
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$75 to $100. Thus, the income on an annual basis for a top sire could be as high as $2,000. Taken even further, the lifespan of a stud in the game was defined as 22 years. The income stream derived from the virtual horse is identical to any real world stud. Using a simple, crude analysis, the net present value of an annuity paying $2,000 a year for 19 years (assuming a 5 percent interest rate) is just over $24,000. Thus, the death of a single virtual horse like American Hero could generate a damage figure in excess of $20,000. Considering the fact that the horse does not exist, except as computer code, the damages appear to be staggering. Is the value of a virtual horse speculative? In the real world, damages from a future “racing” or “stud” career would be subject to attack because of their speculative nature. Would the horse have continued with a successful racing career? Would the horse have been a good breeder into the future? However, despite the speculative nature of the future of a horse either racing or at stud, courts have permitted damages for the death of real world horses, including both the loss of the value of the horse and the lost potential revenues from breeding.5 In an odd twist, the same speculative damages attack that exists in the context of a real world horse does not appear to be valid with regard to a virtual horse. Quite to the contrary, the damages themselves are not “speculative” in the traditional sense as the computer game code could easily be reviewed and interpreted giving a very definitive answer as to whether or not the horse would have continued as a dominant racer and/or would have been an excellent breeder. On its face, the damages do not appear to be speculative given the absolute nature of the computer code that will define the horse’s future abilities. The value of the horse as a stud, compared to its peers, could be undisputedly established merely through an analysis of the mathematical formula used to generate the offspring. Thus, contrary to the real world, where “speculative” damages exist because of the uncertainty of the genetic composition of the horse, the virtual world appears to
eliminate such speculation. Interestingly, however, the same rationale for the valuation of a real world horse appears to apply in the case of a virtual horse. But what about the speculative nature of the virtual world itself? The question of speculative damages, however, does not end with an inquiry about whether the virtual horse’s future as a racer and stud can be predicted with certainty. A different form of speculation exists in the virtual world that is caused fundamentally by the uncertainty of the virtual-world economy itself. In the real world, although fluctuations in the economy do occur, the probability of a total collapse of the economy is quite low. Moreover, should a real world American Hero, such as Spectacular Bid or Secretariat, arrive on the scene, the existence of those horses themselves would not threaten the entire existence of the real world horseracing industry or breeding economy. To the contrary, those horses would seamlessly be integrated into a developed and stable economy. The virtual horse world is vastly different. The virtual economy itself carries an inherent speculative nature. First, the economy itself is not mature or necessarily stable. As such, unlike the real world, the virtual economy faces the possibility of a total collapse. Second, the virtual economy exists solely as a result of the operations of a private company. If the owners of the virtual world suffer financial problems, the economy and virtual world’s existence itself may be threatened or completely destroyed. Third, because the virtual horseracing world is proprietary, the virtual world runs the risk of competition from other like or comparative worlds. Thus, competition alone could cause the virtual world’s economy to become unstable or collapse.
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E.g., Alaimo v. Racetrack at Evangeline Downs, 04-1230 (La. App. 3 Cir. 2/2/05); 893 So.2d 190 (damages for death of horse not speculative and include both the loss of the value of the horse and lost potential revenues); Buecker v. Hamel, 886 S.W.2d 368 (Tex. App. 1994) (breeding potential may be considered in the value of an animal); see also, McDonald v. Ohio State Univ. Veterinary Hosp., 644 N.E.2d 750 (Ohio Ct.Cl. 1994) (damages to dog owner for loss of stud fees sustained).
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Perhaps the most interesting uncertainty is introduced into the equation by the existence of American Hero himself. Various virtual horse owners raised questions surrounding the integrity of the game as a result of American Hero’s existence. Additionally, the existence of the horse himself created a vast imbalance in the development of an emerging virtual economy. Virtual Sports stated when deactivating the horse that “[a]dditionally, for the best interest of the game, American Hero is being deactivated from the game.”6 Moreover, if a lawsuit claiming damages in excess of $20,000 for American Hero had been filed and successfully proved, the damages could have caused the collapse of the entire game world by irreparably harming the financial status of Virtual Sports. Thus, although the “value” of American Hero seems rather easy to identify, one defense to such a lawsuit would be that the horse had no true value because any award to the plaintiff would cause the entire virtual world itself to collapse, thus reducing the value of American Hero to zero. The value of American Hero might then seem appropriately reduced by the damage the horse would cause to the virtual world economy itself or, even more interestingly, to the company that owns the virtual world. As illustrated above, while various uncertainties are eliminated because of the nature of a virtual world, others are introduced. However, the conclusion does seem irrefutable that although the concept of damages for the “death” of a virtual horse is subject to various forms of legal attack, damages nonetheless can be established from the death of such a horse. Such a conclusion poses an interesting dilemma for the virtual world market makers—what are the “gods” to do?
WHAT ARE THE “GODS” TO DO? The scenario illustrated above is a cautionary tale for the creators of any virtual world. With some irony, the only reason that American Hero, as a virtual horse, had any value whatsoever is that Horseracingpark.com created its virtual world. The market value of the horse existed only because of the market mak-
ers and the virtual world “rules” created by the “gods” themselves. Had a different rule set been used, the value of American Hero would simply change. So, in a virtual world in which there was no breeding, there would, correspondingly, be no damages for lost “breeding” rights, none having been created. Had Virtual Sports decided that a horse’s breeding career was only a single year or that a horse could only breed one time per year, the damages from the “loss” of a horse such as American Hero would be greatly affected. On the other hand, should the market makers have decided that a horse could, as in real life, cover 100 mares in a single year, the corresponding damages from the loss of the horse would be far greater. In essence, the damages themselves stem from the rule set applied to the world by the market makers. Altering the virtual world’s rule set Needless to say, very interesting issues are raised by the concept that the gods may ultimately change the rules. Given the existence of American Hero, an alternative to deactivating the horse and compensating the owner could have been the elimination of potential breeding from the virtual game world. Thus, any possible damages for “lost breeding” would be eliminated. This “poison pill” type of approach could, however, effectively stall any lawsuit seeking damages for the “deactivation” of the horse or, in the very least, damages stemming from breeding rights. Taken even further, what if the market makers decided that all future racing itself would be free and carry no purses? The prospect then of any damages from the potential racing career of American Hero could also be eliminated. The example above illustrates a rather unique problem created in the virtual world economy. Essentially, the market makers, when confronted with litigation, could simply choose to completely “devalue” a given currency or virtual item, i.e., a virtual horse. The rights of the market makers seem akin to that
Horseracingpark.com, Support Forum, http://www. horseracingpark.com (last visited Nov. 26, 2006).
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of a government that possesses the ability to devalue or inflate its own currency for any variety of reasons. Supporting the concept that the gods can change the world rule set at their discretion are the license agreements that strictly regulate and restrict access to the virtual worlds themselves, commonly known as End User License Agreements (EULA). Such license agreements generally contain provisions that the “licensor” of the world may “change, modify, suspend, or discontinue any aspect of the Game at any time. . . .”7 In games like Worlds of Warcraft, a massively multiplayer online role-playing game (MMORPG), the gods reserve the right not only to alter the game world as they see fit, but also to terminate or otherwise discontinue the game world itself. Included in the license are additional terms indicating that everything in the virtual world, including all intellectual property rights, is owned by the gods and that the user’s damages are limited by a standard limitation of liability clause. Indeed, the gods unequivocally state that the user has “no interest, monetary or otherwise, in any feature or content contained in the Game.” One court has already found that an EULA is an enforceable contract.8 Thus, the license agreement would appear to grant only whatever access and rights the gods ultimately saw fit for their virtual world. If the user does not like the terms of the agreement, he could simply choose not to participate in the virtual world.9 Conversely, if a user instead decides to participate in the virtual world, he does so only by accepting the terms of use as dictated by the gods.10 In many respects, access to a virtual world is nearly identical to access to a real-world theme park. In most virtual worlds, although typically a monthly access fee exists similar to a cable subscription, no real world dollars are injected into the game. While the trading of virtual items is generally permitted and encouraged with an in-game, virtual marketplace, there is no influx of real world dollars specifically attached to any given virtual item. However, that is not to say that real world dollars are not spent on virtual items. A thriving “black market” for virtual items exists on eBay and similar sites that was estimated to have exceeded $100 million
by 2004.11 By late 2004, however, Stephen Salyer, the president of IGE, a company that specializes in the buying and selling of virtual items, had placed the market at $880 million.12 If Salyer’s estimate was accurate, it is certainly reasonable to believe that the market for virtual items currently exceeds $1 billion. Despite the thriving black market for virtual items, most virtual world creators have determined not to permit any officially sanctioned selling of virtual items that could possibly undermine the integrity of their license agreements. Instead, the gods have generally chosen to preserve their absolute right to modify or alter the virtual world’s rule set at their discretion since the gods have not attached any value whatsoever to any specific virtual item. And, in such worlds, the gods have pursued various legal actions against those selling virtual items “illegally” on eBay or other sites, requesting that items be delisted en masse because the sale of the items violate the gods’ copyrights.13 Virtual worlds that accept real world dollars In some virtual worlds, however, real world dollars are not only accepted, but they form the
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See, e.g., Blizzard Entertainment, Worlds of Warcraft License (End User License Agreement). 8 Davidson & Assocs. v. Internet Gateway, 334 F. Supp. 2d 1164, 1177 (E.D. Mo. 2004), aff’d, 422 F.3d 630 (8th Cir. 2005). 9 Davidson, 334 F.Supp. at 1179–80. 10 Id. 11 Celeste Biever, Sales in Virtual Goods Top $100 Million, NEWSCIENTIST.COM (Oct. 2004), http://www.newscientist. com/article.ns?iddn6601. 12 Posting of Edward Castronova to terra nova blog, Secondary markets: $880 million, http://terranova.blogs. com/terra_nova/2004/10/secondary_marke.html (Oct. 30, 2004); Posting of Urizenus to Second Life Herald (Fomrerly the Alphaville Herald), 100 Million? 880 Million? More?, http://www.alphavilleherald.com/ archives/000520.html (Nov. 5, 2004). 13 Laurel Daly, Rights in Web3d Worlds, E3D NEWS, http://www.e3dnews.com/e3d/Issues/200102-Feb/ lead.html (last visited Nov. 26, 2006). Note that not all lawsuits have been successful. A game company named Webzen sued Itembay, a Korean version of eBay, to halt sales of virtual items. The lawsuit failed because Itembay was not a party to the EULA and, therefore, could not be held to its terms. See RICHARD BARTLE, THE PITFALLS OF VIRTUAL PROPERTY (Apr. 2004), http://www.themis-group. com/uploads/Pitfalls%20of%20Virtual%20Property.pdf ; Castronova, supra note 12.
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backbone and basis for the virtual world’s economy. The virtual world economy in games such as horseracingpark.com is completely dependent upon real world money. Other games, such as Project Entropia, not only permit the influx of real world dollars into the game world, but the virtual world and its economy is founded on the principle that real world money will be injected into the game and used to purchase virtual items. In 2005, for example, it was estimated that $165 million passed through Project Entropia.14 Interestingly, despite such virtual worlds’ dependence upon real world money, the gods still provide license agreements that are nearly identical to those utilized in virtual worlds that prohibit and preclude the use of real world money to purchase virtual items. The horseracingpark.com license, similar to Worlds of Warcraft, provides that Virtual Sports “reserves the right to modify or discontinue the Game at any time and Horseracingpark.com shall not be held liable to any member or third party for any loss or damage.”15 Further, Virtual Sports “reserves the right to cancel any user at any time.”16 Similarly, the license agreement for Project Entropia, a virtual world created by Mindark that also accepts and encourages the deposit of real world money, contains a limitation of liability clause, specifically stating that the “participant” acquires no interest in any virtual item (despite apparently paying for it) and providing that the gods “may, at any time, update, revise or change the internal data and balancing of the System, without any notice or responsibility for compensation due to loss or gain of value due to these changes.”17 In essence, despite the active encouragement to deposit real world money, the virtual world gods still specifically state that the player/participant has no rights to any virtual items and that the gods reserve the right to modify the virtual world rule set as they see fit, irrespective of the devaluation (commonly referred to as a “nerf” or “nerfing”) or inflation of any virtual item. Even in a virtual world that accepts real world dollars, the same rationale seems to apply as in the Davidson & Associates v. Internet Gateway case where the court reasoned in upholding a EULA that no one was forcing a prospective player/customer to play the
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game.18 If a person does not like the rule set, he can simply chose to spend his money elsewhere. If he chooses to deposit his money, the rule set specifically states that there is an obvious and open risk in depositing money, including the complete devaluation of the virtual “currency” obtained in exchange for the player’s real world dollars. Again, like a government, the gods could simply choose to completely devalue the virtual currency at any point in time and for any reason. A real-world analogy would be to a company that sells a high-priced sports car yet never makes any express promise that it will limit the production run. Is there something fundamentally unfair about changing rule sets in worlds where real money is accepted? In some respects, something does appear to be amiss and fundamentally unfair where the gods specifically encourage and promote the exchange of real world money for virtual items yet reserve the right to devalue, in essence, the real world currency to zero at the gods’ complete and ultimate discretion. For the owner of American Hero, was he not caused damages by the deactivation of the horse? The license agreement says no. Common sense seems to say yes. Although a similar scenario to American Hero has not, per se, arisen in Project Entropia, the possibility of a very similar scenario exists. For example, in 2004, Zachurm “Deathifier” Emegen purchased a virtual island in the game for $26,500 real world dollars.19 In exchange for that “investment”, Deathifier obtained the exclusive in-game rights to develop the island
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BBC News, Cash card taps virtual game funds (May 2, 2006), http://news.bbc.co.uk/2/hi/technology/4953620. stm. 15 Horseracingpark.com, User Agreement – Terms and Conditions, http://www.horseracingpark.com/agree ments/user.aspx (last visited Nov. 26, 2006). 16 Id. 17 Entropia Universe, EULA, http://www.projectentropia.com/account/Apply.ajp (click on “Apply for Account”) (last visited Nov. 26, 2006). 18 Davidson, 334 F. Supp. 2d at 1179–80 (E.D.Mo. 2004). 19 BBC News, Gamer Buys $26,500 virtual land (Dec. 17 2004), http://news.bbc.co.uk/1/hi/technology/4104731. stm.
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and mine its resources although, according to the license agreement, he truly acquired nothing tangible. Over time, the island has returned the investor a considerable real world profit as other players have paid to own real estate, to mine, and to hunt on the island.20 However, the license agreement would have permitted the gods to immediately create an unlimited supply of such islands, devaluing Deathifier’s real world money nearly immediately. Needless to say, had that occurred, Mr. Emegen would not have been happy, to say the least. More recently, the gods of Project Entropia created a space station that sold at auction for $100,000 real world dollars.21 Again, the license agreement would permit the gods to immediately devalue that space station if they so chose by, for example, simply creating multiple replica space stations and offering them for sale. Are such situations as the “deactivation” of an American Hero, despite the statements in the license agreement, more akin to an intentional act such as murder than a simple “permissible modification” to the game world rule set? Courts have yet to decide. And, as pointed out, there appear to be arguments on both sides. On the one hand, no one is forcing the player to accept the terms and conditions offered for access to the virtual theme park. If the player does not like the terms, he can simply chose to spend his money elsewhere—or find another virtual theme park. On the other hand, there seems to be something fundamentally unfair about paying for something than can, at the gods’ discretion, simply be devalued to nothing instantly.
courage, the deposit of real world dollars, that purport to eliminate the user’s rights to his money, are unconscionable and should not be enforced.23 The issue seems particularly relevant given the fact that Mindark recently introduced a cash card that allows users to quickly deposit or withdraw money from Project Entropia just as if it was a real bank.24 Consider the following. In China, Li Hongchen spent two years and $1,210 amassing virtual items in the MMORPG Redmoon.25 When his account was hacked and his virtual items stolen, he first turned to the company (Beijing Arctic Ice Technology Development Company) for recourse. When none was forthcoming, he turned to the Chinese courts. With regard to the virtual items that were stolen, Hongchen argued that he “exchanged the equipment with my labor, time, wisdom and money, and of course they are my belongings. . . .” The company countered that the virtual items had no real world value since they were “just piles of data”.26 Hongchen won. The Chinese court ordered the company to restore Hongchen’s lost items and found the company liable because of loopholes in the server programs that made it easy for hackers to break into the system.27 Not only are companies like Mindark and Virtual Sports apparently offering virtual items for sale for real world dollars, but large corporations like Microsoft and Sony are following suit. Microsoft has recently built technology into its Xbox 360 and Xbox Live service that
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Do license agreements simply end any debate? The reasoning employed in Davidson, the only case addressing a similar issue to date, seems to end the debate with regard to any claims of virtual ownership or lawsuits stemming from alleged virtual ownership.22 However, the Davidson court never reached the issue of whether, in the context of a pay-for-item virtual world, a license agreement that precluded ownership in virtual items would be considered unconscionable. Indeed, an argument does appear that license agreements for virtual worlds that not only permit, but also en-
Press Release, Mindark, Virtual Island Purchase of $26,500 Recoups Investment in First Year with Room for Ongoing Profit (Nov. 8, 2005), http://www. mindark. com/docs/pr/Press_Release_Island_Update_Space_ Resort.pdf. 21 BBC News, Gamer buys virtual space station (Oct. 25, 2005), http://news.bbc.co.uk/2/hi/technology/4374610.stm. 22 Davidson, 334 F. Supp. 2d at 1179–80. 23 F. GREGORY LASTOWKA & DAN HUNTER, THE LAWS OF THE VIRTUAL WORLDS 67–68 (May 2003). 24 BBC News, Cash card taps virtual game funds (May 2, 2006), http://news.bbc.co.uk/2/hi/technology/4953620. stm. 25 See CNN.com, Online Gamer in China Wins Virtual Theft Suit (Dec. 20, 2003), http://www.cnn.com/2003/ TECH/fun.games/12/19/china.gamer.reut/. 26 Id. 27 Id.
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will permit microtransactions of real world money for virtual items.28 Sony has announced that it plans to permit the buying and selling of virtual items in its future game worlds through Sony itself.29 Undoubtedly, the license agreements from those companies will contain the standard disclaimers disavowing the ownership of any virtual items and permitting the companies to modify or discontinue the game worlds at any point in time.
DOES ANY OF THIS REALLY MATTER? Currently, there do not appear to be any firm answers with regard to virtual items and worlds. And, where there is uncertainty, lawsuits always seem to follow. Ultimately, the answers to the questions posed in this article may lie not with the court system but rather with the free, real world economy itself. As more competition emerges in the marketplace, companies may be forced to modify their license agreements to attract new users.30 Would anyone shop at Wal-Mart if Wal-Mart claimed to retain ownership in everything purchased at the store and could, at any point in time, without financial remuneration to the purchaser, simply choose to repossess the item? Some may ask, does any of this really matter because, after all, these are “just” games? What difference does it make if a virtual horse is “deleted” from a database? What relevance or importance does a virtual world pose to the real world? Consider that recently the Massachusetts lottery announced that it was going to implement virtual horseracing on keno monitors installed throughout 1,700 locations in the state, including numerous bars and restaurants.31 The lottery estimated that the implementation of virtual horseracing would add $150 million in revenue in the first year alone.32 Although the game is more akin to keno than to real horseracing, as the virtual horses randomly win the races and possess no historical racing records like real world horses,33 the Massachusetts horseracing industry launched
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into a full-scale attempt to prevent the game’s deployment by lobbying the legislature.34 The claim: virtual horseracing will have an adverse effect on the already struggling Massachusetts horseracing industry by drawing bettors away from live and simulcast racing.35 Thus, although American Hero’s life is forever over, the importance of his life (and more significantly, his death) lives on. When Virtual Sports announced in conclusion to the saga, “He will likely go down as a legend of the game!”, the company apparently did not realize that the comment understated the importance of American Hero’s life and death. Indeed, as virtual worlds increasingly continue to intersect with the real world, the issues of damages stemming from the destruction of tiny bits of computer code will grow as will the importance of an example such as American Hero. And, in the end, perhaps in homage to the real world secretiveness of horseracing, although the owner of American Hero was compensated, the amount remains a mystery. 28
Paul Thurrott, Microsoft’s Xbox Gamble: Micropayments, Personalization, and Digital Media, CONNECTED HOME MEDIA (Nov. 23, 2005), http://www.connectedhomemag. com/HomeTheater/Articles/Index.cfm?ArticleID 48548. 29 Sony, Introducing Station Exchange, http://station exchange.station.sony.com/ (last visited nov. 26, 2006). 30 See SAL HUMPHREYS, COMMODIFYING CULTURE – IT’S NOT JUST ABOUT THE VIRTUAL SWORD 6–7 (Dec. 2004), http://72.14.209.104/search?qcache:9nAS4XyrnKUJ: www.itu.dk/op/papers/humphreys.pdf%22Com modifyingculture%E2%80%93it%E2%80%99snot justaboutthevirtualsword%22&hlen&glus& ctclnk&cd1. 31 Greater Boston Features, Racetrack Owners Cry Foul Over Virtual Racing, (Apr. 21, 2005), http://www. greaterboston.tv/features/gb_20050421_suffolk.html; Editorial, JHB & BSM, End of the End of the World, COLLEGE HILL INDEPENDENT (Apr. 2005), http://www.brown. edu/students/INDY/archives/2005-04-21/articles/ fte.php. 32 Id. 33 Id. 34 Thoroughbredtimes.com, Massachusetts lawmakers challenge legality of virtual horse racing game (Apr. 2005), http://www.thoroughbredtimes.com/todaysnews archive/ttodaysnewsviewarchive.asp? ArchiveDate4/ 16/2005. 35 Id.
