[雙語翻譯]外文翻譯--虛擬財(cái)產(chǎn)中的產(chǎn)權(quán)制度

1、4900 英文單詞， 英文單詞，2.6 萬英文字符，中文 萬英文字符，中文 8200 字文獻(xiàn)出處： 文獻(xiàn)出處：Moringiello J M. Towards a system of estates in virtual property[J]. International Journal of Private Law, 2008, 1(1-2): 3-13.Towards a system of estates in virtual

2、propertyJuliet M. MoringielloAbstractVirtual worlds such as Second Life have received a lot of press in the USA recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the a

3、pplication of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the com

4、pany that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights general

5、ly, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced

6、with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customise them through their contracts, which are commonly embod

7、ied in electronically presented standard forms.Keywords: virtual property; numerus clausus principle; second life; intangible property; contract.1. IntroductionVirtual worlds have received a lot of attention in

8、the American press recently. The New York Times mentioned Second Life in more than 20 articles between 1 June and 15 October 2007. Even popular television shows such as Law and Order have set episodes in Second Life.

9、As people conduct their business and personal transactions in these virtual worlds, legal institutions are called upon to resolve disputes involving their rights in these worlds.This past year, Linden Research, the devel

10、oper of the virtual world Second Life, was sued by one of its members, Marc Bragg. One of Bragg’s allegations was that Linden, by terminating his Second Life account, wrongfully deprived him of his virtual property and i

11、s thus liable for conversion. Linden Research, on the other hand, contends that Bragg’s use of any virtual world property is governed by the Second Life Terms of Service, which appears to grant users a license to use Lin

12、den’s property during the time that they are members of Second Life.The case of Bragg v. Linden Research highlights many of the issues that will arise when courts are forced to determine rights in intangible assets. The

13、proliferation of virtual world activity makes virtual property a good vehicle for discussing the problem that courts have in determining the rights of persons in intangible assets.In this paper, I suggest that rights in

14、intangible assets be viewed in the context of the numerus clausus principle. The numerus clausus mandates that there be only a fixed number of ways of holding property. The principle is universally recognised as applicab

15、le to real property, and as a result of its application persons purchasing or financing real property know that they need only be concerned about a limited number of estates in that land.The numerus clausus is not applie

16、d as strictly to intangible rights. There may be several reasons for this. One is that lawmaking institutions tend to have difficulty separating intangible assets from the contracts that created those assets. Another is

17、 that virtual property is unfamiliar to us. Often, when we think of Linden sends its users mixed messages regarding their rights in the Second Life assets that they either acquire by purchase or develop using their skill

18、 and time. In many of Linden’s messages to the public, it represents that members of Second Life have property rights in these assets. For instance, the Second Life website, on its ‘Land: How To’ page, appears to grant m

19、embers full property rights in their virtual land. The page informs members that ‘[o]wning land allows you to control land’. The page goes on to inform members that they have rights normally considered to be components o

20、f the ‘bundle of rights’ that constitute property: the right to exclude (‘you can prevent others from visiting or building’) and the right to alienate (‘sell it’).The Second Life Terms of Service send a very different me

21、ssage regarding ownership rights in both virtual currency and virtual land. Contradicting the website’s invitation to buy Lindens, the Terms of Service inform readers that Lindens are an ‘in-world fictional currency’ and

22、 that by ‘purchasing’ Lindens, the buyers are obtaining a license to use a feature of the Second Life product. In the Terms of Service, Linden reserves the right to manage, regulate or eliminate the currency for any reas

23、on in its sole discretion.Linden’s representations in the Terms of Service regarding virtual land and other assets are even more confusing. The Terms of Service grant members a license to use the Linden ‘service’. The ve

24、ry next paragraph, however, grants members ‘copyright and other intellectual property rights’ with respect to anything they create in Second Life. One paragraph later, Linden appears to take back what it has just given,

25、as that paragraph states that while a creator of content has intellectual property rights in that content, that person has no rights in any data stored on the Linden servers.2.2 A second life member sues: Bragg v. Linden

26、 ResearchMarc Bragg was a member of Second Life. He found an ‘exploit’, or a method of avoiding the Second Life land auction process. This exploit enabled him to acquire land cheaply. When Linden discovered this behaviou

27、r, it terminated Bragg’s Second Life account, depriving him of his Lindens and his land. Linden found its right to terminate the account and confiscate Bragg’s assets in the Second Life Terms of Service. Bragg sued Linde

28、n for, among other things, conversion. Conversion is defined in the Restatement (Second) of Torts as “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another

29、to control it that the actor may justly be required to pay the other the full value of the chattel”. In order for Linden to be liable for conversion, Bragg must establish that he had property rights in the virtual land a

30、nd the Lindens.In October 2007, the parties in Bragg v. Linden Research settled their dispute. In any event, Bragg might not have been the best case to establish the property rights of virtual world participants because

31、Marc Bragg created nothing. He did, however, buy both Lindens and land. The one published decision in the case, however, illustrates why mandatory property rules might be necessary to protect the rights of those who spen

32、d a lot of time and money creating their virtual world experience. In May 2007, the United States District Court for the Eastern District of Pennsylvania held that one provision in the Terms of Service, the arbitration c

33、lause, was unconscionable.The May 2007 decision gives one justification for a system of mandatory property rules for virtual property. Although the court held that only one provision of the Terms of Service, the arbitrat