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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.

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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.

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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.

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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

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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.

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real value of the virtual property, the court did not have any fundamental doubts about the possibility to apply the “real” law in this case. In particular, since the defendant himself positioned the mechanics of the virtual world in such a way that it had allowed him to have some property rights in virtual property.100 In turn, in the case of Blizzard Entertainment (copyright owner of World of Warcraft), that was heard in Berlin in 2014,101 the court found it possible to apply consumer protection law to the relationship between the game company and the players, assessing the validity of certain clauses of the user agreement. However, the court had no particular difficulty in applying the substantive law to the virtual relationship, since the aspect in which the case was considered feasible.

Nevertheless, we emphasize that all the above examples relate to the relationship between game companies and individual players (users). Unfortunately, the court practice has so far,102 contains no known cases of disputes between users themselves, whereas the issue in question would probably be fully addressed. It is possible that such disputes may no longer arise in the case of former virtual worlds, since technologies, in particular, and information products in general, are changing very rapidly. Nevertheless, let us try to theoretically simulate another possible direction of legal conflicts.

At first glance, “virtual property” (understood in the narrow sense of the word as objects “existing” in virtual worlds and representing value for users within the framework of imitation of the economic system – houses, mounts, weapons, currency, etc.) is a special social institution related to game practices. However, it is on the example of virtual property that the problem of the semantic limits of law, which is less obvious in the context

100Memorandum of May 30, 2007 / Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D.Pa. 2007) [Electronic resource] // U.S. Government Info Portal. – [Site]. – URL: http://www.paed.uscourts.gov/documents/opinions/07D0658P.pdf (accessed: 20.02.2019).

101See: Ostanina E.A. Grounds for Joining a Multiuser Online Game – Contract with the Participation of Consumers [Electronic resource] // Law in the Internet: Collection of Articles / Ed. by Rozhkova M.A. Moscow: Statute, 2018. – Access from the legal system «ConsultantPlus» (accessed: 02.10.2018).

102From the point of view of nonprofessionals, an ethical assessment of the interest of lawyers of this kind is probably akin to an ethical assessment of the interests of a pathologist who is eager for new knowledge in his or her professional field and who regrets the lack of empirical material.

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of “classical” artistic creation or in the space of unserious communication, is most directly exposed. Moreover, it is the problem of virtual property that clearly affects the special legal aspects of the problem, to which this study is devoted.

Let us consider this implication on the famous example of one of the first really mass multiplayer online role-playing games Ultima Online, which turned twenty-one years old on September 24, 2018. This game has largely predetermined the further development of the interactive entertainment industry. The game belongs to the genre of graphic MMORPG. It was not the first in this genre; however, it was included in the Guinness Book of Records as the first game of its kind, which numbered one hundred thousand players in 2008. Four years later, in 2012, she was listed as one of the 100 greatest computer games in history by TIME magazine. The examples of the game’s material are relevant for the social and human sciences in general, and for law in particular.

«Architectural properties of the game, including the absence of any guarantees laid down by game mechanics on certain servers with the oldest, most stringent rules in terms of absence of ensuring the inviolability of virtual property, clearly contributed to this state of affairs. Note that most of the new multiplayer role-playing games after Ultima Online until now, mainly provide a kind of “technical inviolability” of virtual property, prohibiting arbitrary actions with the property of other players at the level of the software code... Now, this trend may again be replaced by a model of “open” in this regard virtual worlds, but new projects with similar mechanics are mainly experimental in nature. In the format of the classic rules of the game Ultima Online objects of virtual property exist not only in the inventory of players, when they are removed from which they are “destroyed”, but as it were objectively in the virtual world: if a player throws the item out of his inventory, then conditionally the same item can be, for example, picked up by others.103 At the same time, the market for exchanging virtual objects in the game for “real” money is formed in parallel, which eventually became the reason for a completely non-standard situation: inside the game the object can be stolen by one character from another, and it is allowed by the rules of the game, but such an object could be bought for “real” money. Accordingly,

103 This feature of mechanics is important because in the virtual world it contributes to the imitation of both the objectivity of virtual property and the illusion of “actual dominance” over [virtual] things.

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there is a contradiction: the rules of the game allow for “theft” in the virtual world, but such theft allowed in the game actually leads to some damage in the real world».104

This example also makes us wonder if and how players in the virtual world can be qualified in any way in terms of real law, and if so, how.

Consideration of virtual property issues already provides good food for thought on the extent to which the right can reasonably be applied to the virtual world. Nevertheless, it is also possible to take another step towards building high-level theoretical generalizations. By moving away from the industry specifics of virtual property problems, it is possible to change the angle of consideration and reformulate the problem. Indeed, it is quite possible to look at the situation differently and to put the question as follows: under what conditions, legal texts can be interpreted in such a way that the scope of possible meanings will include social relationships mediated by virtual reality (and, let us note in advance, in the broad sense of the word)? This approach to the question of the semantic limits of law, which is caused by the quite straightforward problems of virtual property, is very promising for the theory of law as a whole, the objectives of which now, in the context of the medial turn, should be partially rethought.

Indeed, the semantic limits of the law are often understood intuitively, including by law enforcement officials themselves. The practical problem, as already noted, is the lack of a developed legal position on how to solve this problem, resulting from theoretical generalizations of a high level, since the problem of the semantic limits of law is a problem of legal ontology. Thus, one of the mass media materials reflects examples from Roskomnadzor employees, which also relates to the context of multiuser games:

104Arkhipov V.V. Premises of the Concept of Semantic Limits of Law in the Context of Modern Information Culture

//Information Space: Ensuring Information Security and Law. Collected Academic Papers / Under edition of T.A. Polyakova, V.B. Naumov, A.V. Minbaleyev. MOSCOW: IGP RAN, 2018. P. 279–280.

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«We once received a court order to block a site with information about making dynamite in Minecraft. The site said that if you mix sand and coal, you get dynamite. And you think what to do with this court decision: you can’t execute it and block Minecraft (highlighted by me – V.A.). As a result, we talked to the lawyers and wrote to the prosecutor’s office to ask them to review the decision».105

The decision of the Zavodoukovsky District Court of the Tyumen Region, which is implied in this passage, has already been mentioned on the pages of this study.106 The problem that has been raised in such a seemingly minor matter is, in fact, very serious. In an attempt to rationally explain why it is “impossible to execute the decision and block Minecraft”, there are difficulties.

In terms of positive law, there is no statutory criterion for assessing potentially blockable information in this case. This situation is different from other grounds, such as information related to child pornography or drugs.107 Current law enforcement practice is characterized by the following situation: if any information contradicts the public order in one way or another, but there is no direct basis or criteria for such qualification, it can be blocked by a court decision made after the request of the prosecutor acting in the interests of an indefinite number of persons in accordance with Article 45 of the Civil Procedure Code of the Russian Federation. In reaching its decision, the court de facto enters the area of “penumbra” or “borderline situation” because it relies only on Item 2 Part 5 Article 15.1 of the Federal Law of 27.07.2006 No. 149-FZ “On Information, Information Technologies

tum.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=25808719&delo_id=1540005&new=0&text _number=1 (accessed: 02.10.2018).

107 For this purpose, there are direct criteria established both in Article 15.1 of the Federal Law of 27.07.2006 No. 149FZ “On Information, Information Technologies and Protection of Information Protection” and at the level of subordinate legislation.

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and Protection of Information” (hereinafter, the “Information Law”).108 In such a “penumbra area”, there is obviously some rational reasoning to be implied. In addition, as in the case of Minecraft, the question arises as to the reasonable scope of law in relation to game, artistic and other “unserious” information. Returning to the decision in the example itself, we cannot explain this position by freedom of speech and creativity, or by doing so alone, because we are not talking about these freedoms as such in principle – in some cases, it is clear that such information may be restricted. The fact that information is linked to a “game” in itself also suggests little. On the one hand, it is clear to anyone who has played Minecraft that this game as such is unlikely to constitute a security threat (except for the content of possible communication of unscrupulous users in rare and, perhaps, hypothetical cases). On the other hand, the word “game” is clearly not defined enough to serve as a criterion, because e.g. “Russian roulette” is also a kind of game. Alternatively, card games for money. This example is interesting in that it makes one think about what arguments, among those, which could be used to explain why the court decision criticized by Roskomnadzor’s employee, is wrong. In addition, he points out that the problems faced by the law in relation to virtual worlds may not be limited to a narrow gaming context, but are rather related to the broader context of changing communication practices at the current stage of development of the information society, which will be discussed below.

The significance of the representative empirical material considered in this paragraph is as follows: competition of approaches, one of which implies the possibility of “real” law to interfere in the “virtual” gameplay (including qualification of relations as consumer, consideration of virtual property as other property, etc.), and the other is to exclude such interference (based on provisions that the relationship inside the games is not subject to judicial protection or, for example, on the basis of the licensing nature of the

108 This Item establishes that the basis for inclusion in the Unified Register [of Prohibited Sites] is, among other things, the court’s decision to recognize information disseminated via the Internet as information the dissemination of which is prohibited in the Russian Federation.