Материал: disser_arhipov

78

problem.95 An example of such enforcement is reflected in the Definition of the Basmanny District Court of Moscow dated 01.06.2011 in case No. 11-43/11 and case No. 11-115/09, the Definition of the Moscow City Court dated 10.03.2011 in case No. 4g/1-1668 and, finally, the approach itself is reflected in the Definition of the Constitutional Court of the Russian Federation dated 26.06.2011 No. 684-O-O (in which the term “game” in Article 1062 of the Civil Code of the Russian Federation was considered to be formally defined).

In the case, which was heard in the Basmanny District Court of Moscow, the plaintiff demanded compensation for material damage, recovery of interest for the use of someone else’s money and compensation for moral damage. Between 16.02.2009 and 23.02.2009, the defendant (game company) blocked the plaintiff’s account and, in the plaintiff’s opinion, reduced the use of the virtual object by three days, as well as reduced the use of paid subscription to the game service by seven days. The court of first instance dismissed the claim (which was subsequently confirmed by the court of appeal). Although the court agreed that the very possibility of playing the game was mediated by the contract, it concluded that the possibility of enforcing the law seemed to end when the user agreed to the rules of the game. Further legal assessment of the user’s actions, in turn, depended on the assessment of whether or not the user complied with these rules, but this qualification was no longer included in the subject of the court proceedings. In the doctrine, including special works on virtual property and by the author of this study, this legal qualification is considered controversial. The reason is that if the user pays for any value (until we say that it is, for example, a service) with “real” money in a “virtual” world, the effect of the Law of the Russian Federation of 07.02.1992 № 2300-1 “On Protection of Consumer Rights” is

95 An exact and comprehensive summary of the discussion of the term “gambling game” in Article 1062 of the Civil Code of the Russian Federation is given by E.A. Ostanina in the following article: Ostanina E.A. The Basis for Joining Multiuser Online Game Is the Agreement with the Participation of Consumers [Electronic resource] // Law in the Internet Sphere: Collection of Papers / edited by M.A. Rozhkova. - M.: Statut, 2018. - Access from the legal system “ConsultantPlus”. – PP. 188-210. E.A. Ostanina also gives an example of several studies that consider the possibility of clarifying the terminology of Article 1062 of the Civil Code of the Russian Federation and including a direct reference to “gambling games…”. See, in particular: Y.V. Bagno. ... Candidate of Legal Sceinces. – Krasnodar, 2004; Pavlenko P.V. Civil and legal regulation of games, bets and related institutions of civil law (comparative aspect): Abstract by P.V. Pavlenko. ...Candidate of Laws. – М., 2009.

79

potentially possible.96 This aspect is indeed difficult to argue: on the one hand, there is a value in the relationship that has a clear “real” value (money); on the other hand, the question of the possibility of appropriate reimbursement to the user depends on the rules of the game.

Another approach was subsequently implemented in similar subsequent disputes. For example, B. Semenyuta, who provides an overview of practice on this issue that is relevant for 2014,97 refers to the Definition of the Leninsky District Court of Kemerovo of 26.05.2013, in which the court noted the following:

«...in an interactive online computer game... there is no “winning” provision, i.e. no money or other property, including property rights, to be paid or transferred to the gambling participant upon the occurrence of the result of the gambling provided for by the rules established by the organizer of the gambling, and therefore there is no essential “gambling” or “betting” provision. Due to the fact that the interactive computer online gaming... is not a gambling or betting, the provisions of Chapter 58 of the Civil Code of the Russian Federation, including Article 1062 of the Civil Code of the Russian Federation, are not applicable».

In this case, the court qualified the legal relationship between the game company and the player as a relationship between the professional party (the trader) and the consumer. At first glance, this qualification appears to be more reasonable, since the relationship between the game company and the user definitely includes at least an element of a service contract that implies (in the case of subscriptions) or may imply (in the case of completely free or “free to play” models of the virtual world) consideration. Let us leave the issue of facts and their assessment to the court and private law research, and for the purposes of our

96In general, gaming services fit within the basic definitions of this law, according to which “a consumer is a citizen who intends to order or purchase or orders, purchases or uses goods (works, services) exclusively for personal, family, home and other needs not related to the performance of business activities” (Para. 3 of the Preamble), and “the contractor is an organization regardless of its legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid contract” (Para. 4 of the Preamble).

97See: Semenyuta B. Online Games: Legal Nature of the Relationships // Intellectual Property. Copyright and Neighboring Rights. 2014. No. 8. P. 38–45.

80

work, let us emphasize that consideration for services may well be the basis for the application of consumer protection law, not only because of dogmatic or industry considerations, but also because of certain fundamental features of the relationship between users and game companies.

In this context, the approach whereby the relationship between the game company and the user can be at least partially qualified as a consumer relationship has been developed in perhaps the most significant and serious case concerning the legal nature of virtual property (this is the actual state of affairs, but from a formal point of view the case was a case of tax liability and no more). This is a dispute between the Federal Tax Service of the Russian Federation and Mail.Ru Games Limited Liability Company, which is reflected, in particular, in the following court acts: Ruling of the Arbitration Court of the Moscow District of 18.06.2015 No. F05-7093/2015 in case No. A40-91072/14 and Ruling of the Arbitration Court of the Moscow District of 12.10.2015 No. F05-13554/2015 in case No. A40-56211/14. If we make a generalization, the essence of the dispute was as follows. The game company relied on the notion that the relationship between it and users regarding virtual property could be exhaustively explained by the concept of licensing relations regarding the results of intellectual activity. Virtual property is part of the intellectual property of a game company that is licensed to the player. For tax purposes, this qualification is critical, since Point 26 Item 2 Article 149 of the Tax Code of the Russian Federation (hereinafter, the “RF TC”) stipulates that the sale (as well as transfer, execution, rendering for own needs) on the territory of the Russian Federation of the exclusive rights to inventions, utility models, industrial designs, programs for electronic computers (and this is actually all about them), databases, topologies of integrated circuits, production secrets (know-how), as well as the rights to use the said results of intellectual activity is not subject to VAT (exempt from taxation). Based on the possibility of applying this exception to the relations on “virtual property implementation”, the game company did not pay VAT.

81

In turn, the Federal Tax Service (hereinafter, the “FTS”) of the Russian Federation considered it unreasonable and only in one of the cases added Ruble 184 023 052 to the VAT (there are no points and commas – more than one hundred and eighty-four million Roubles – the amount from the judicial act is given as just one more confirmation of the economic importance of such a seemingly narrow area of relationships). The reasoning of the FTS, if to state the essence, was that there may be relations about the results of intellectual activity in this situation, but it does not eliminate another layer of relationships between the user and the game company. In order to use the “additional game functionality” the user not only needs to be granted the right to use the corresponding results of intellectual activity, but also to receive certain changes in the activity on the organization of the game process, and these are services. What is important to us in this case from the specific general perspective of this study: the court noted that the same set of social relationships (in relation to the game and the virtual world) can be viewed from different angles – it can form separate subject-matters of the relationships. This is what we will discuss in more detail in Chapters 2 and 3 of this study, when it comes to identifying the criteria for the semantic limits of law.

These examples, of course, do not cover the full range of virtual property cases. Moreover, the practice continues to evolve. In the latter case, on the contrary, at the time of writing, the court refused to unconditionally apply consumer protection rules to the claim of a popular game player against a game company (the Appellate Ruling of the Moscow City Court of 14.03.2018 in Case No. 33-10610 subsequently repealed by the Ruling of the Presidium of the Moscow City Court of 18.09.2018 in Case No. 44г-259/18 so that the case was re-considered by the first instance court as reflected in the Decision of Chertanovsky District Court of Moscow of 07.12.2018 in Case No. 02-4488/2018) the court applied the rules of the Chapter 58 of the Civil Code of the Russian Federation, but in unusual manner. The court agreed with the plaintiff that the case in consideration is a

82

consumer case, but ruled that the provisions of the aforesaid Chapter 58 (claims arising from games are not subject to judicial protection except for certain very special situation) form lex specialis to the consumer protection rules with the effect that the consumer guarantees are not applicable to virtual purchase. What can be more important, however, is that in the course of the actual preparation of the position in the course of the hearing,98 The fact that the plaintiff’s game company “accused” the plaintiff of violating the rules of the game (using “illegal” ways of obtaining a game advantage) and the user’s acknowledgement of this fact were essential for the resolution of the dispute. At the same time, this argument was possible under the condition that the court qualifies the relationship between the user and the game company as something related to virtual environment. In the author’s view, it is a disputable position because real money were concerned. In any case, the question of the extent to which the right may interfere with gaming relationships in the context of multiplayer online games (and, as the latter case illustrates, not just roleplaying games) remains open.

Foreign practice with regard to similar disputes is developing in a comparable manner. Since the principal aspects relevant to the subject matter of this study are fully covered by the above examples, we can only mention two examples, following E.A. Ostanina. The first is the case, which was considered in the United States of America, Pennsylvania, namely Bragg v. Linden Research, Inc. (2007).99 Lawyer Marc Bragg, who was a Second Life user, purchased a plot of land at a virtual auction in 2005 for real money, using a flaw in the mechanics of the game, and therefore his account was blocked. M. Bragg demanded compensation for the money invested in the account, and the essence of the dispute was to assess the issues of contract and procedural law – in the presence of the

98According to the game company representative consulted by the author of this study.

99Although for narrative purposes, we give a sequence of examples, corresponding to the article by E.A. Ostanina (which, in turn, in its turn, quotes earlier works by V.V. Arkhipov, which the author of this study notes with gratitude), we note one of the direct sources: Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D.Pa. 2007) [Electronic resource] // U.S. Government Info Portal. – [Site]. – URL: https://www.govinfo.gov/app/details/USCOURTS-paed-2_06-cv-04925/summary (accessed: 11.02.2019). We are interested in the second bookmark, which refers to the main judicial memorandum in the case.