Terms of service as a ground for establishment of ownership to virtual property

Abstract

Problem setting. Today, the use of numerous sites is allowed only with the consent of the user agreements (Terms of Service) offered by them. Most often, users tick them, which is tantamount to signing such agreements, without even reading. However, it turns out that in most cases, user agreements, which are essentially agreements between users and providers, are aimed only at securing the interests of providers and in fact impose significant restrictions on users without granting them any rights other than the right to use the service. In addition, providers create them in such a way as not to draw the attention of users to the presence of the contract in this relationship. Such agreements are generally placed as hyperlinks at the bottom of the page or are created as a step that the user must agree to during registration. On this basis, the question of the need to strengthen the protection of users’ rights as a weaker party to the contract, by analogy with consumer protection, is increasingly raised. Moreover, the possibility of considering a user agreement as a kind of contract is widely discussed. Analysis of recent researches and publications. Given the novelty of such a phenomenon as user agreement, today there are not many studies devoted to them, especially in domestic science. Among foreign researchers of the legal nature and specifics of user agreements can be mentioned K. Cornelius, L. Belli and J. Venturini, T. Romm, P. Randolph, M. Radin, A. Savelyev, N. Vlasova. Thus, there is a lack of domestic research on the legal nature of user agreements, so there is an urgent need for research in this area. Target of research is to study the legal nature of the user agreement and analyze the possibility of it to become a ground for legal relationships, in particular, a ground for establishment of ownership to virtual property. Article’s main body. The article analyzes the possibility of considering user agreements as potential grounds for the emergence of ownership to virtual property. The judicial practice to protect the rights of users of accounts and European approaches to the protection of user rights are analyzed in the article. The research data, which give grounds to speak about violation of user rights by user agreements are given. In turn, this gives reason to question the possibility of considering the user agreement as a kind of contract. However, the analysis performed allows us to conclude that it is possible to consider the user agreement as a mixed contract, which can potentially serve as a ground for the emergence of virtual property rights. Conclusions and prospects for the development. Terms of Service agreements should be considered as mixed agreements that contain elements of several agreements. In particular, in the context of the emergence of virtual property rights from such agreements, elements of the Terms of Service agreement should be distinguished, which determine the legal consequences for the virtual property created within the online platforms. In the doctrine, the concept of virtual property as a kind of property right is already quite common today, and this kind of right may well arise from the contract, which in this case may be the Terms of Service agreement. If the Terms of Service agreement is recognized as the ground for the emergence of virtual property rights, it is necessary to provide in it how the balance of interests of platform developers and users in relation to virtual property will be determined. Obviously, all the features of the implementation and protection of virtual property rights, cases of its restriction will be specified in the contract.