Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 6 February 2012

On property and theft

There is an interesting report in the press today that a court in the Netherlands has upheld a conviction for theft where the property stolen was a virtual lucky charm and mask in the online game Runecraft. According to the report, the accused had beaten up and threatened the victim, a thirteen year old boy with a knife. The boy had been forced to log into the game where his character then dropped the items. An accomplice of the accused, who was also logged in using his own character, had then picked up the items.

While this is clearly pretty despicable behaviour, and obviously criminal in a number of ways (assault, extortion), it seems to have been prosecuted as theft, which raises some interesting conceptual questions about the nature and limits of theft. The question in the appeal seems to have been that of whether the virtual property was capable of being stolen (it being argued that the property was neither material nor of value), and the view of the court was that it could because the objects had an "intrinsic value" to the accused because of "the time and energy he invested" in winning them in playing the game. While this might seem fair, it is not altogether clear. The second part of the statement would link the 'property' to the labour of the victim: if you work to create something then it is transformed into private property. However it is not clear that the value to the victim should matter here, as opposed to an intrinsic value full stop. Something is surely property because it is property, rather than because it is viewed as such by a particular individual.

This points to another problem. The law generally has no difficulty in recognising forms of intangible property (various forms of intellectual property), or property rights in other objects. Thus someone might own a particular item of property, but I may have the right to use it in some way. Indeed this latter is presumably the basis of the online computer game - the code is owned by the company that designed it, but players are licensed to use it in certain ways. What the law has had difficulty with, though, is in recognising these forms of property or use of property in the criminal law.

In the law of theft the difficulty can be traced to the origins of the law in the Roman law. This required amotio, or movement, of the property in order to amount to theft, and so the rule developed that the only property capable of being stolen was that which was capable of being moved - with the result that the definition of property in the criminal law was narrower than in the law in general. This meant that intangible or immaterial property (ideas, rights etc) could not be stolen. Over time different legal systems have then had to develop ways of dealing with this. Thus, in many systems electricity, while intangible, is treated as a form of property which can be stolen; or alternatively statutory rules have criminalised the unauthorised taking of electrricity, leaving the purity of the definition of theft untouched. And these problems have been exacerbated by information technology as now information, money, ideas, even identity, are now stored and transferred electronically. This then brings us back to the first question: what is property?

The Dutch court have given their answer. But while the answer is clear, the thinking behind seems rather less so. Virtual property can be stolen, but what makes it property? And who is being stolen from? On one account the 'property' here would seem to belong to the game manufacturers, and the offence might be against them (as well) rather than the person building the character. Thus while the outcome of the case would seem to fit with a popular conception of 'theft' it is not obvious that it fits with the legal definition - and perhaps this is an area in which the law then needs to change.

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