Avatar Rights
James Grimmelman's ongoing discussion over at Lawmeme about democracy within virtual worlds, together with the comments on an earlier post has got me thinking about a related issue, the nature of avatar rights. Yes, yes, I know, Greg and I sank ignominiously last time we pushed this boat out, but we didn't have the benefit of the TerraNova hivemind back then. So, at the risk of having to start baling again...
To begin, let's bracket property rights for the moment (of course you can take a look over here, here, or here if you want to check out the skinny on this topic) and concentrate on other human (or constitutional) rights. And let's accept that an avatar doesn't have any rights; it's clearly the human being controlling the avatar which has the rights, if any exist. (I was going to call this "Typist's Rights" but this is too dull, and we'd get waaaaay too many hits from people interested in Carpal Tunnel Syndrome and Repititive Strain Injury).
Of the many ways one can attack this problem, a productive one is to look at the rights within the world and the rights without (ie outside) the world. The rights that inhere within the world are comprised of those granted by the developers or which emerge as a consequence of the society which emerges. And of course this will differ depending on the context of the world: Dave Rickey at Mutable Realms is building Wish to conform with pre-Charlemagnian feudalism and so expectations of inalienable human rights which were codified 1000 years later have little purchase here.
Which is not to say that rights will never exist or emerge within the world. Some worlds are built to facilitate this: LambdaMOO and A Tale In The Desert are, at one level, all about politics as gameplay. The LambdaMOO experience is well known, and ATITD seems to be following it with the combination of law built into the code (and indeed, a commitment that the wizards will code the political decisions of the populace.)
But the existence, in-world, of rights, politics, and democratic expectations, while of interest to sociologists isn't gonna cut much ice with a judge. So what about the rights out of the virtual, and in the real? Here it gets trickier. It's clear that the rights don't map cleanly, especially in RPGs. I'm allowed -- on PvP shards at least -- to frag, waste, and dismember other avatars, and no-one's civil rights are trampled on. But what of a claim that, say, the developers of ATITD failed to code the collective will of the populace?
Outside RPGs, especially in the new metaverses of There and Second Life, the question is a little harder. Where there is no obvious role to play, I'm fairly confident not only that the typists will feel the pain of "rights infringements" more seriously (has anyone else noticed how 2L and T avatars look just like better versions of our real life selves?) but also that judges are not going to be so quick to say that it's just a game. These worlds will, I suspect, be dealt with like other content carriers and will have to negotiate real life claims of rights fairly soon. The most obvious will be the usual sorts of communications problems that ISPs had to deal with -- defamation, porn, etc -- but it's not a stretch to re-imagine the Rape in Cyberspace into these sorts of worlds.
Ted C tentatively suggests that we should divide worlds into "gaming" and "not gaming." As Ted knows this sort of bright line rule pretty much never works, and in this case I wonder whether the sorts of claims at stake here are different in RPGs or metaverses. Maybe they're less likely in RPGs as an empirical observation, because everyone is too busy camping on mobs and signing up for raids, but should we treat EQ any differently (as a matter of law) from There? If EQ engages, say, in race-based discrimination or content censorship, should we cut them a break because it's all just a game?
Posted by Dan Hunter on October 12, 2003 | Permalink
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Comments
"Ted C tentatively suggests that we should divide worlds into "gaming" and "not gaming." As Ted knows this sort of bright line rule pretty much never works, and in this case I wonder whether the sorts of claims at stake here are different in RPGs or metaverses. Maybe they're less likely in RPGs as an empirical observation, because everyone is too busy camping on mobs and signing up for raids, but should we treat EQ any differently (as a matter of law) from There? If EQ engages, say, in race-based discrimination or content censorship, should we cut them a break because it's all just a game?"
Well, the paper I *was* going to write for the NYLS conference was about valuation methods. But I can't settle on valuation techniques because I can't get settled about where they do and don't apply. So now I'm writing about the line between game and not-game much more than I had intended.
Not sure I can figure anything out though...
Posted Oct 12, 2003 11:45:11 PM | link
I supposed that the rights/legal status of fetus(unborn child) provide a wisdom of approaching the matters of avatar rights.
_analogy
fetus : avatar (its brain is not its mom's, but its own)
pregnant women : gaming company
matrix : VW
umbilical cord : online service
amniotic fluid : the (game) code
_application
Is avatar a property/part of copyrighted work that can be trade/treat like items) or a persosa that has its own humanity/autonomy?
: analogy per se
Does avatar have a right to sue for damages along with the company when a hacker attack its matrix? : traffic accident analogy
Does avatar have a right to being safe from the threat of its company? : abortion or drug-addicted analogy
I wonder if avatars(played by gamers) will jump from the state of just personal infomation data into that of persona.
Posted Oct 13, 2003 3:50:52 AM | link
I think those analogies have some serious problems.
The game company may be father, but it sure isn't mother. The mother is the player from whom the avatar springs full-grown (as Athena from the brow of Zeus!).
The game company is responsible for "seeding" the avatar, but not for actually "growing it to term." The game company is responsible for providing some environmental care, more indirectly, than is the mother who has internalized the avatar... or externalized it, as the case might be.
Okay, there may be some legal analogies that sort of work. But the chief problem I have with this one is that it is too emotionally charged. You're going to drag the abortion-right-or-wrong baggage into somewhere it doesn't fit well.
A better anology might be too the Hollywood movie rights to a great novel. And that isn't perfect by a logn shot, but at least it brings in the IP angles.
Posted Oct 13, 2003 12:00:51 PM | link
I think that as you mentioned There.com will be facing some very different chalanges from most other VWs for a number of reasons.
The two main differences that I would see are:
1) We have an official US$>T$ exchange rate giving actual US$ value to almost all items in world.
2) The majority of our content will be member designed and controled.
Member developers are already asking us to enforce copyright enfringments when other developers try to copy their designs. Most developers have outside websites that are linked in and out of the world. They have established trademarks and brand names that would most likely standup in court.
We also have real world goods being marketed in-world.
Example: http://www.cafeshops.com/meetmethere
I am not sure where we might draw the line between VWs and real life. Certainly real life laws apply to most internet content, ISPs, Websites, etc, not sure how a VW isn't different?
Posted Oct 13, 2003 12:35:45 PM | link
Obviously the virtual world *is* different. As a developer, I've had to wrestle with the decisions that come up, as you discover that you have fundamental balance problems. When you have to decide between a slow bleed (steady loss of customers from an imbalance) and sudden amputation (a quick hard shot with the nerf bat that will cost you several thousand customers at a stroke, but stop the bleeding), it's never easy. But in the end, you do what you have to do.
If we grant the players rights over the treatment of their avatars, our ability to operate the games and make those decisions will inevitably get curtailed. I'd offer the SB server moves as an example, there's no way that they made that decision lightly, and no way that any "rights of avatars" rules would have permitted it.
Ultimately, the only right the players have is the right to not play. No others are neccessary or advisable.
--Dave
Posted Oct 13, 2003 2:52:39 PM | link
Much to ponder here, but to pick up on Dave Rickey's comment:
"Ultimately, the only right the players have is the right to not play. No others are neccessary or advisable."
This may be true in relation to the rights granted within the world, but it's not as persuasive when the real world intrudes into the virtual, or vice versa. It seems to me that VWs are now at the same regulatory state as the Internet was 10 years ago. Back then a cyber-libertarian ethos prevailed ("we don't need your stinkin' real world laws.") But then we discovered a lot of slippage between the real world and the online worlds, and real world laws and rights began to be imposed on the net.
Why would we think that virtual worlds won't come to be infected with the same virus?
Posted Oct 13, 2003 8:54:02 PM | link
Tell me about it, I was around then too. I'm not sure this is an improvement.
Let's turn this around: What rights could be guaranteed to the players that could not possibly lead to a situation where a developer needed to do something for the good of the game, and couldn't because of this right?
The commercial motive is a powerful force, don't underestimate the power of players voting with their dollars.
--Dave
Posted Oct 13, 2003 9:21:27 PM | link
Dan: "Why would we think that virtual worlds won't come to be infected with the same virus?"
Seriously?
I can think of one big reason: one controlling authority with the ability to immediately banish.
And since we have more than a few JDs around here, we should at the very least be clear about the distinction between little-"r" "rights" and big-"R" "Rights" (as in inalienable). We toss around the word too casually, to wit Dave's comment:
"Ultimately, the only right the players have is the right to not play."
Not really. Players have the opportunity to purchase the license to play. It's a "right" only in the most abstract sense (the player's right [big-"R"?] to contract with the company, perhaps?). I suppose there is also their "Right" not to be forced to play. And, their "right" to cancel (in accordance with the terms of the license, of course).
Sure, we all have a much more intuitive feel for the brick-and-mortar application; why is it so difficult to make the conceptual leap (to plug-in)?
Jeff
Posted Oct 13, 2003 10:46:39 PM | link
to Dan Scheltema
Thanks for your comment,
But there's some misunderstanding about the analogy.
I did'nt say game players are dad of avatars.
What I want to express with the analogy is as follows.
_internality
Like that fetus have independent brain which control its action and decides its growing speed within the matrix, the avatar has independent brain(that of players).
_externality
Like that the breath, flesh, blood of fetus are supplied from its pregnant women, the movement, appearance, status of the avatar are subordinate to the program and services by the game company.
And, the in-game environment also
subordinate to that of the company just like a
amniotic fluid surround the fetus.
I just told the situation of unborn fetus and its pregnat women, not of born child and mom/papa.
Thanks.
Unggi Yoon
Posted Oct 14, 2003 5:11:14 AM | link
Dan H: "Why would we think that virtual worlds won't come to be infected with the same virus?"
Jeff Cole: "Seriously?
I can think of one big reason: one controlling authority with the ability to immediately banish."
You mean the US Supreme Court?
I am serious. You really think that real world courts will ignore commonly-protected rights? These include Constitutional rights in the US (eg freedom of speech, religion, or association) human in the wider context (eg speech in some contexts, religion in some contexts, association in some contexts)
And more generally, the imposition of real world law on the net circa 1994 et seq occurred even though the netizens claimed that they were a separate community. What makes you think that it will be any different this time round? Because the developers have the power to banish?
Posted Oct 14, 2003 9:11:35 AM | link
Dan Hunter &Jeff Cole
Would you mind if I interrupt your dialogue?
I'd like to recommend an article written by prof. Timothy Wu
APPLICATION-CENTERED INTERNET ANALYSIS
Especially the part 2. "PRIVATE ORDERING: THE CURIOUS HISTORY OF CYBERSPACE SOVEREIGNTY" at 32page.
http://faculty.virginia.edu/timwu/WuPDF.pdf
with warm heart
Posted Oct 14, 2003 9:58:46 AM | link
Unggi,
I think the disconnect we suffer is this: You see the player/avatar combination as linked by definition. I do not. One avatar<>one player. So the question of avatar rights has different dimensions for me than it does for you. I distinguish them from player rights. Players trade avatars.
To me, as of now, avatar have no rights, only players do. But I can see situations where I might modify that stance to where avatars do (as do other social constructs such as corporations) have a limited set of rights.
To me, your analogy blurs avatars and players too much to be useful. I was the one suggesting the game company as "Dad," I wasn't saying that was your position. Nor was i suggesting you said the player was "Dad." It was clear to me you were fusing avatar to player, and that's something to which I strongly object in this sort of discussion. (I don't in general, though, as players often conflate the two in game.)
To me the issue of avatar rights is one of whether a work (such as a movie or novel) has any rights to being itself (as opposed to an expurgated or abridged "version" of itself). But that is so only until we have a bit more in the way of artificial intelligence, and then it will become more a lot more interesting...
Posted Oct 14, 2003 10:14:01 AM | link
Dear Dan Scheltema
First, I appreciate your comments.
Right, I see the player/avatar combination as linked by definition.
While, what I told above is not the right for avatar(or AI) itself, but that for players.
And I think the the analogy play a role to find out what the rights of players avatar-masked will be.
I didn't tell avatar itself detached from players have rights. Certainly, the rights are for the players.
Thanks.
Posted Oct 14, 2003 10:45:16 AM | link
This is dancing on land mines. I am certain you all remember the falck a while back about player fiction being posted on third party web sites, and the argument that ensued over who owed the copyright.
I agree that characters are separate from players. But the character has to be acknowledged as someone's property at the end of the day. Is it comunity property? With the player and game company both owning rights to it? What about a case where I had a prior character in another game, then decided to re-start that character, complete with existing backstory, in another game? What does that do for rights? And suppose that prior written fiction, relative to that character, has already been posted to third party sites unknown to the game company?
Now, when for whatever reason attention is drawn to that character, and the game company reads the fan fiction and recoils, what happens? Just because the character and fiction existed prior to becoming involved with the current game, does that exempt me from responsibility for the potential impact my character and writing might have on my new playground?
Just pondering.
Posted Oct 14, 2003 11:37:22 AM | link
Dan Hunter:
I am most interested to discuss the similarities between "virtual worlds" and the Internet that you imagine augur the same legal implications for virtual worlds that are happening with respect to the Internet. Perhaps in e-mail.
Unless you mean some type of de-centralized, meta-network when you write of "virutal worlds," then the fact that there is a responsible (in the controllng sense, *not* the legal sense) makes a world of difference (pun intended).
Sure, a developer could act so as to bring similar scrutiny to their operation, but it is far from necessarily so.
There will always be certain principles, legal and otherwise, that apply. But, do you really not see the difference between free speech on the Internet and free speech and free speech in an MMO*?
Jeff
Posted Oct 15, 2003 9:24:12 PM | link
It seems to me that "Avatar Rights" is a misnomer, or at the least misleading. Strictly from the avatar perspective, that being which creates and sustains its existence is its god, and the avatar only has whatsoever rights that god grants it. I think that Dave Rickey's perspective of granting "the players rights over the treatment of their avatars" is much less confusing. An avatar may be property or it may be part of a service, but it definitely has no personhood and therefore, no rights.
--Phin
Posted Oct 16, 2003 5:51:39 PM | link
Phin...
So far :)
But I'm not arguing they should. I agree that the issue now is player rights, not avatar rights. And "avatar rights" is grossly misleading.
Posted Oct 16, 2003 6:56:21 PM | link
