It's industrial espionage to investigate a customer who's breaking their contract with SE? I don't think so. The RMTers agree to the terms of service like any other player. It is not industrial espionage to try and track a contract violation by a customer, no matter if that customer's business is the intentional violation of contracts. I mean, come on.
It is if the relevant portion of that contract is unenforceable. Whether or not it is enforceable is still an open question.
If such a matter were to go before a court, it is entirely possible that such restrictions could be deemed "restraint of trade" - which is generally illegal and thus unenforceable. In such a case the only way to legitimize anti-RMT activity would be legislative action.
I can't see that happening in an American court, there's really no basis for it. American copyright law folds like a house of cards whenever a powerful industrial interest huff and puffs. Consumers are barely hanging onto the first sale doctrine (the right to resell intellectual property, i.e. games, that you purchase for yourself) with their fingernails. SE has a contract with players. The contract says that they own all the intellectual property, we're just renting it from them. There is no legal basis whatsoever to contradict this. The court would have to go far outside the bounds of existing law -- and any court that did would probably get smacked down by the Supreme Court.
The ownership issue is by no means settled either - just because the contract says they own all the game's virtual property, does not make it so, and just because it says you can't transfer currency in-game in exchange for real currency, doesn't mean you can't. Especially given that this is a contract of adhesion - which warrants special scrutiny.
Lastly, the lack of ownership doesn't imply the lack of real value if the virtual goods (or technically, since the goods aren't owned by the player, the rights to use those goods) are transferable in-game. And South Korea isn't the only place where virtual goods are developing legally-enforceable real-world value - a case in Denmark ruled that virtual goods are real enough that using real force to compel someone to transfer goods in-game constitutes robbery, not assault. (Robbery, of course, having harsher penalties.)
As for first sale, it's still alive and well in the physical world; but by law it does not apply to digital media.
What's in question is whether software purchases constitute sales or licensing. This IS largely settled - as a general rule, buying software is construed as licensing (provided the user is given the opportunity to explicitly accept the license), which allows the copyright owner to restrict resale as they see fit, but if the software isn't installed, the purchaser hasn't agreed to the license agreement and thus isn't bound by it; this has, by and large, been the case for over a decade.
(Internet histrionics aside, Vernor v. Autodesk
doesn't directly jeopardize first sale, and anybody who's actually read the case brief, which may or may not include the 9th circuit panel themselves, would know that.) In fact, even going back to US v. Wise (1977)
, first sale has been held to be inapplicable to licensed goods provided the license requires the goods be returned (or destroyed) following the contract's termination.
On this issue, really the only hazy part is whether merely opening the packaging counts as consenting to the license agreement - but the answer here seems to be, largely, no it doesn't.
Ultimately, this is just the latest battlefield in the long-running fight between content creators and consumers. The war between IP owners and their audiences is nothing new - it's been going on for over 500 years, and is not even close to over.