There’s an interesting and potentially unsettling article on the MIT Technology Review, How Much Will your Facebook Friends Be Worth in Court?, by Christopher Mims. The article’s tag line reads, “Legal scholars declare that virtual property must be divided or reimbursed in divorce proceedings,” which begs the question, how does one divide or cede over a piece of code? Do you hand over a shoebox full of floppy discs?
As absurd as this may seem, lawyer and legal scholar, Sally Brown Richardson, United States Fifth Circuit Court of Appeals, has written a paper on this matter, Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?
Ms Richardson’s abstract from the Tulane Law Review article:
Virtual property, or that property which exists only in the intangible world of cyberspace, is of growing importance. Millions of people use some form of virtual property every day, be it an e-mail account, a blog, or a Facebook profile. Billions of dollars are spent to acquire property in the virtual world. And the economic and social impact of virtual property is only likely to increase at light year speed.
As the importance of virtual property continues to rise, laws pertaining to virtual property must similarly develop. Among the emerging legal issues yet unaddressed by scholarship or jurisprudence is how community property regimes will respond to virtual community (or separate) property. Because the acquisition of virtual property such as websites, domain names, e-mail accounts, and even Facebook pages, create a property interest, in the nine community property states, community property laws impact what rights spouses have in such property. Thus, spouses are on the brink of litigating issues such as whether a Uniform Resource Locator (URL) is community or separate property, whether a website generates an increase in separate property, whether e-mail contacts are profits, and whether Facebook friends create goodwill. Community property jurisdictions must be prepared to quickly adapt to the reality of virtual property if the regimes wish to avoid being left in the wake of cyberspace. To aid courts in their impending task of considering virtual property in a community setting, this Article examines how different forms of virtual property should be classified in community property regimes. After explaining the classification scheme within community property jurisdictions, the Article details examples of virtual property likely to be present in modern couples’ lives, and considers how the identified examples of virtual property should be classified.
My knee jerk reaction: What money grubbing, soon-to-be-ex spouse and/or money-grubbing, negative advocate divorce attorney came up with yet another avenue to squeeze blood from a stone? Then I thought about it some more . . . and still find it utterly distasteful and parasitic. However, this issue raises some interesting questions.
Ms Richardson rationalizes making virtual property and Facebook friends joint marital property in Technology Review:
Suppose when H entered the marriage he had 500 Facebook friends. During the course of the marriage, H acquires 500 more Facebook friends. Unlike photos or comments, Facebook friends are not content H posts; Facebook friends are connections H makes. By friending people, H will gain certain rights because he will be able to view more Facebook profiles.
Because H’s labor during the community increased the value of his separate property, W would be entitled to either a reimbursement or an ownership interest in that separate property depending upon the jurisdiction.
Similarly, by adding additional friends H generally allows more people to see his profile. Thus, increasing the number of Facebook friends, H increases the value of his Facebook profile because he increases the rights of his profile. The value of H’s Facebook page was increased using community labor; H had to spend time and energy finding and requesting friends.
This seems like more legalese mental masturbation-reality twisting designed to extract money from couples going through an already costly divorce process and/or a way for a spiteful wife or husband to make their ex “pay some more, goddammit!” Child custody is an issue that often needs to be figured out in Family Court, but Facebook Friends and Farmville crops? Really?! Then again, considering the state of our economy, perhaps the only property couples going through a divorce have to squabble over nowadays is virtual property.
Who really owns your virtual content?
Virtual items that people purchase for games and virtual worlds may be a billion dollar industry, but it’s based on microtransactions. These virtual items are pieces of code for which a person pays, in some cases, 2.7-cents. How do you divide 2.7-cents? Furthermore, the virtual item doesn’t actually belong to the person who buys it; the item is copyrighted data that belongs to Zynga or Electronic Arts, for example.
Everyone who uses Facebook creates content and an ever growing database of information that Facebook owns or that Facebook sorta, kinda owns. You don’t own your profile page. Oprah doesn’t own her Facebook Fan page. H & R Cooling and Heating doesn’t own their Facebook business page. Facebook owns these pages and all of the content and information that every user generates. Or do they? If an individual actually doesn’t own their Facebook friend thumbnails and Farmiville crops, how does it become fodder for community property? This is a real issue that lots of people are very concerned about right now. You can read about it in the CNN post, Facebook faces furor over content rights.
This raises other questions: Who owns your LinkedIn profile? You or LinkedIn? Who own your Google email account and all of your correspondence? You or Google? How do you squabble over a Facebook friend that you can delete with a click of a button? Are virtual friends worth more than real, offline friends? How do you account for friends who are unfriended during the marriage?
If virtual property, which is intangible, is community property, are the thoughts in your head, which are also intangible, community property? Are the dreams you had while sleeping during your marriage community property? Will the courts decide which friends the ex-husband and ex-wife get to keep? Do the friends get a say in this? Just how far are some people willing to go to extract money from and inflict pain on an ex-spouse? Am I the only person who thinks this is nuts?
A woman in China tried to claim half of her husband’s virtual property unsuccessfully.
The People’s Court of Shunyi district in Beijing dismissed a woman’s claim to the virtual assets she earned with her husband, whom she was divorcing, Beijing Morning Post reported on Monday.
The couple tied the knot at the end of 2008 after they got to know each other through an online game in May. Marital life was a struggle for both online-game fans. They blamed each other for being lazy in housework, before the wife filed for divorce.
The couple played the online games under the ID the husband had registered. In court, the wife asked for her share of the virtual assets they earned in the game, but the husband refused.
The court ruled divorce for the couple, but rejected the wife’s claim, saying such issues can be ruled by the law only when virtual assets are related to the real world, such as when they have been valued with real currencies.
What does this mean for the Shrink4Men Community?
This is one maximalist money extraction divorce settlement maneuver that may just end up backfiring on high-conflict and/or abusive personality-disordered divorcees. Why? Because studies have shown there is a strong correlation between narcissistic/borderline/histrionic traits and social network usage. Based on anecdotal evidence and self-reporting by Shrink4Men community members, many of their wives, girlfriends and exes are obsessive friend gatherers on more than one social network. These women are also obsessed with Farmville and devote hours to it everyday. For example, Shivering Fool writes:
. . . But when I finish working my two home-based jobs, she expects me to help 50/50 with the kids, clean dishes, think what’s for dinner, etc. I never complain. I work like a dog, am working on my own startup – on top of my two jobs (which could significantly change our lives if it goes well) and still find time to do chores. In contrast, she plays farmville regularly and will not admit she wastes time. . .
. . . Ironically, her “use” of my FB info was so that I could become a “Farmville” neighbor…yeah right! She’ll spend HOURS a night doing that damn game…this from someone who’s done no gardening, nevermind farming in her life! And, it’s funny how she’s taken it SO seriously…just the other day, she mentions that one of her relatively close friends (who’s probably BPD/NPD as well, but is “old maid” material herself, thankfully!) just moved up a “higher level” on Farmville, and she was STEAMED! (NPD, anyone?) I mean, my wife will sit there and calculate point values and how long things take to “grow” so that she can maximize her points…incredible…if only she devoted 10% of the time and effort that she puts into this nonsense into our house and our relationship…
A Shrink4Men Forum member writes:
On the other hand. My STBX continues to “work” late hours and when she is home, spends all her time on Farmville, practically ignoring our daughter except for the routine rituals she goes through (i.e. good bye hug in the morning when I take her to school).
Who knows? Maybe the philatelic obsession of collecting Facebook friends and Farmville crops could give some men leverage in their divorce settlements. Ultimately, making virtual property into community property seems to be more about a high-conflict spouse finding yet another way to control, inflict harm and create more headaches for the other spouse than it is about dividing a valuable asset. It also seems to be another item negative advocate divorce attorneys can use to prolong high-conflict cases and inflate their fees. Most of my clients would rather delete their Facebook accounts and start over than haggle over intangible value with a money hungry, conflict addicted ex-wife. What do you think?
Want to Say Goodbye to Crazy? Buy it HERE.
Shrink4Men Coaching and Consulting Services:
Dr Tara J. Palmatier provides confidential, fee-for-service, consultation/coaching services to help both men and women work through their relationship issues via telephone and/or Skype chat. Her practice combines practical advice, support, reality testing and goal-oriented outcomes. Please visit the Shrink4Men Services page for professional inquiries.
Sally Brown Richardson. “Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?” Tulane Law Review 85.3 (2011).