Цифровое право (Nov 2020)
Provider risks connected with uncertainty in the legal nature of online games’ terms of use
Abstract
In the practice of the Russian courts, when creating an account in an online multiplayer game, any agreement concluded between the provider and the user seems to be covered by article 1062 of the Civil Code of the Russian Federation, which is why this topic is not subject to judicial examination. However, this approach is unlikely to be applied for much longer, as it does not stand up to criticism. It can only be interpreted as a court attempt to insulate itself from the issue of virtual property. This article is devoted to the consideration the key risks to a provider related to the uncertain legal status of an online games’ terms of use, particularly the prohibition to share a user’s account or login credentials with anyone and a user’s actual rights to virtual content associated with his account. To achieve the research goal, the authors review the legal literature and perform a case study in this area, use a comparative method to identify legislative approaches in different legal systems regarding a user’s rights to their account and the virtual content connected with it, and determine the aspects of the user agreement that obviously contain risks for the provider. As a result of the research, the authors conclude that online multiplayer games are a sphere that tends to self-regulate. Therefore, to the extent possible, the risk of imbalance between self-regulation capabilities and the need to avoid abuse of the current situation, both by providers and users, should be minimized. The main source of regulation for relations between providers and players remains an agreement between them, which can be qualified as a mixed contract. However, such a qualification carries a risk for the provider, due to the complexity of determining the consequences of using the agreement as a single document, which combines various goals, ranging from determining the amount of processing of a player’s data and to fixing the legal regime of a user’s account. Regarding prohibition to share a user’s account, the authors assume that, according to Russian legislation, the most appropriate path is to determine it as a prohibition of assignment to secure providers from the liability for protection of users’ data. The lack of special regulation in this area allows the provider, through the terms of use, to sidestep the potential risk of protecting the player’s copyright on virtual content associated with his account. The authors, however, suggest that using an analogue of the American “sweat of the brow” doctrine in user agreements can to a certain extent remove the provider’s risks associated with the players’ real rights to their in-game property.
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