Virtual Law – a primer by Benjamin Duranske

The evolution of virtual environments is of fundamental interest to this blog and one aspect that is certain to become of structural relevance to their development is that of law. Benjamin Duranske of Virtually Blind has an excellent post on this issue, framed as a Q&A between the virtual lawyer and a newbie to this topic. The relevance of this article to Ubiwar is multi-faceted but perhaps one strand of thought should address the normalisation of human activity within virtual worlds, including both the practice of war and the legal framework for its commission. Whether virtual law will reflect the laws here in ‘meatspace’ or embark upon a trajectory of its own can only be speculative at present, but it will inevitably be grounded in existing laws at the outset.

What follows is a heavily edited version of his post and I recommend reading the original article here.

What is a virtual world?

In modern, first person 3D computer games, you move a character — an “avatar” — on the screen. That avatar represents you. In a lot of these now, there are other real people there too at the same time. The whole thing is hosted on a server somewhere, not on your individual computer, so people can participate from all over the world at the same time.

Collectively, these places are referred to as “virtual worlds” or “3D networked environments.” In game-based 3D environments, you’re usually fighting monsters, casting spells, picking locks, or shooting bad guys.

If you get rid of all of the game stuff and add in tools that let users build things, you get a “social virtual world.” You can find literally anything you can imagine in these places. Real money — sometimes lots — changes hands. Besides a lot of residents who are making some portion of their real life living in these places renting land, selling virtual products, and offering services, there is also a large contingent of real-life lawyers, executives , doctors, law professors, and even congresspeople who use virtual worlds for education, training, advertising, networking, communication, and more.

The most popular free-form social virtual world for adults at the moment is Second Life, but there are others too, and there are dozens for kids that have even larger subscriber bases. Altogether, there are hundreds of social virtual worlds and games; the industry is booming, but is in a real state of flux.

Okay, but legal issues? Seriously?

Many people, including me, believe that we aren’t just seeing a bunch of play and social places, but the emergence of the 3D internet. Basically, we think that the internet is going to look more like an interactive movie than a newspaper in 5-10 years. If this is right, whatever legal issues you see involving web sites now, you’re going to see involving 3D spaces in the future.

It’s not just the future we’re talking about though — the legal issues, even now, are very real. The reason is mainly that there’s money involved — a lot of money. One estimate puts the market for “virtual stuff” in games and social virtual worlds at well over $2 billion annually already. The property law questions alone are enough to keep a lot of people scratching their heads. There are also potential issues around defamation, intellectual property infringement, fraud, stalking, contract law, and much more. There have even been some lawsuits over this stuff already.

Didn’t somebody say 3D games and virtual worlds are swamps of sexual content and brain-rotting badness?

There’s definitely adult-level violence in some games (less so in social virtual worlds) and parents should take an interest in what their kids are playing — just like they should take an interest in what they’re watching on television. As much press as there is on this issue, the U.S. game and virtual world industry actually does a reasonably good job policing itself, and the government is actually pretty good about letting the industry sort itself out. It could be worse: Germany requires that online game companies appoint a “youth protection officer”.

Are there really intellectual property issues in virtual worlds?

You bet there are. If you think the recent copyright case over the Harry Potter Lexicon shows the extent to which J.K. Rowling can get upset about copyrights, I wonder how she — or Warner Brothers — would feel about an entire Second Life recreation of the key locations from the books and movies where people are selling wands, robes, and even complete “skin” and “shape” combinations that make one’s avatar look exactly like a character from the movies. There’s even a video floating around that features Harry Potter and Ron Weasley avatars visiting a Second Life strip club and then performing sexual acts on each other.

Besides Harry Potter, there are whole areas selling unlicensed products based on the Star Wars movies, on Anne Rice novels, and on dozens of other books, films, and television shows. Straightforward trademark infringement is rampant too; there are hundreds, if not thousands, of Second Life users selling knock-off brand name products — like Nike shoes — for avatars.

Why aren’t Warner Brothers, J.K. Rowling’s lawyers, Lucasfilm, and the lawyers for Nike trying to shut this down? Mostly because they, like most mainstream companies whose copyrights and trademarks are being infringed in open-creation virtual worlds like Second Life, have no idea it is happening yet — but that is changing as more and more mainstream companies move into these spaces. Apple is staking out some patent space here, which could signal an interest in taking its Apple Stores virtual. A lot of companies have already opened virtual world outposts too, including Herman Miller, Showtime, Dell, AOL, and more than 100 others.

There were even two lawsuits last year over theft of intellectual property between virtual world users, neither of whom was associated with a brick-and-mortar business.

What about Alternative Dispute Resolution?

Some virtual world organizations are trying to set up justice systems, and the government of Portugal has already set up an ADR facility that takes mediation cases. And many lawyers have found that mediation is, generally, a good idea.

Of course, ethical negotiation in mediation is a big issue in the real world, and adding a layer of anonymity and the complexities of international disputes should raise even bigger concerns in virtual world mediation. Happily, though, programming tools available in virtual worlds allow the creation of tools like virtual notary services which can help solve some of these problems in ways that just aren’t available in the real world.

Did you say some people are trying to set up justice systems in virtual worlds? Doesn’t that raise constitutional law issues?

“[G]overnance” and “constitutional” issues in virtual worlds — where we are basically talking about a private company renting server space to users — pale in comparison [next to recent U.S. constitutional wrangling]. There are a few efforts out there to create microgovernments in virtual worlds, complete with constitutions, justice systems, and, typically, some kind of democracy. Usually, voting rights are tied to renting “virtual land” (really, server resources that let users keep their houses, stores, and miscellaneous stuff available to other users even when the owner is not logged in) from the microgovernment which, in turn, rents these resources from the virtual world provider.

Basically, a group of people who all choose to share space in the virtual world can vote to make that space look a certain way, to exclude certain groups, to allow or disallow adult content, or whatever.

In the end, though, there’s a lot of trust involved because the guy who rents the land from the provider can basically do whatever he or she wants — and the provider can pull the plug anytime too. At least it’s easier to control voter fraud. Though positive ID for voters is hard in the real world, it is fairly easy in the virtual world, at least as far as only letting certain avatars vote — and for in-world governance, that’s all that matters.

A few examples of microgovernments in Second Life are Extropia, the Confederation of Democratic Simulators, and the Al Andalus Caliphate. There are others too; they all offer greater or lesser degrees of participatory democracy depending on their individual model. One that is hoping to create a justice system that works across the whole virtual world (not just on land owned by its creators) is the Metaverse Republic.

Any employment law issues in these places?

There sure are. People are routinely hiring each other in virtual worlds as greeters, receptionists, bouncers, dancers, and more — often for rates far lower than U.S. minimum wage. There are possibilities for real world groups to use virtual worlds for employment related tasks too, as they allow long-distance meetings with a sense of presence that exceeds phone, and even video conferencing. One wonders if virtual “face to face” meetings could facilitate the resolution of difficult situations, such as those described in an article on The Pope and Employment Law. Another benefit of semi-anonymous employment could be fair pay for women and the curtailment of other job-related biases.

Any other legal issues in these places?

Did you hear how a woman posted a YouTube video blasting her soon-to-be ex-husband for all sorts of transgressions? How people are trawling the internet for material for custody fights? Imagine what they’ll be able to dig up in a semi-anonymous virtual world where one of the most popular purchases is a set of detachable genitals and where about a third of the top 20 Second Life locations are explicitly sexual in nature.

Duranske is the author of Virtual Law: Navigating the Legal Landscape of Virtual Worlds, recently published in the U.S. Apologies to Benjamin if I’ve misrepresented any of his ideas here. I also hope he doesn’t mind me quoting so extensively from his original article …

Update:

Benjamin kindly informs us that the ToC and Chapter One of his book can be downloaded from here.