Quote from Rekanos
Again, I'm not saying that I am going to sue Blizzard, but class action lawsuits are often extremely profitable for an attorneys office and they will take on several cases at a time know that it will stretch on for years.
I worked for a fast-food restaurant in college and I got a letter from an attorney saying I could participate in a CAL against them for unpaid overtime wages. 3 years later I got a check for $1500. Sadly, most companies just end up settling after years of the legal process has gone by, because it's probably less expensive to just settle than it is to go through even more years of paying attorneys and legal teams.
I have actually written a report on this kind of topic. You are semi-correct, it all comes down to the legitimacy of ownership of virtual items. In the past there have been many court battles with manufacturers losing a majority of them (look up Vernor v. Autodesk).But company's have gotten much smarter since then and if you read the very first lines of the EULA or TOU you will see a phrase of something like "this software is licensed and not sold."
This is basically the key reason: you DO NOT own anything in Diablo 3 If Blizzard f's up their servers and you lose your 200+ hour hardcore character, then you try to take Blizzard to court... well Blizzard can point to this very blatant statement at the top of their agreements (so you can't make a click/shrinkwrap argument) that you did not own that hardcore character and thus you can not sue them over something you don't own.
Hope that helps.