Here’s a broad theory for people to shoot holes in.
I think we need a slightly better way to categorise virtual worlds when having discussions about their legalities and related matters. I propose that we categorise virtual worlds into three kinds:
- ludic-worlds (aka game-worlds)
With our geographic world being a forth, a common context in which these sit (so it’s the Three World Theory with the geographic one tacked on).
I am not suggesting that this categorisation is a universal way of understanding virtual worlds. I suggest only that it maybe useful when we are talking about legal, perhaps moral and possibly other contexts.
The key axis that I have based this delineation on is that of identity. More specifically the degree of fixity of relationship between physical world identity and in-world identity that is necessary to achieve the purposes of that world; related to this are all kinds of issues to do with rights and limits of action.
One inspiration behind this is that idea from political philosophy that in a state of nature we have certain freedoms and that it is only rational to give up some of those freedoms in order that we gain benefits e.g. we give up total freedom of action to rule of law in order to live in a more peaceful society.
And so it is the case with virtual worlds. In some we give up much in order to gain certain goods. In others it would not be rational or justifiable to give up certain rights but this also confers duties upon us and others.
The balance is different in each and every virtual world, but we can draw broad categories. These, I propose are as follows:
In a ludic-world we give certain things up to the fiction of the world, the rules of the game and the enforcement of these rules. We do this in order to gain goods from that world including all kinds of pleasures, psychological goods etc.
The mechanism by which this occurs is the EULA and it tends to be cast in terms of property. I’m not suggesting that this is perfect ro even the best way to do it. Indeed there may well be regimes that give wider freedom to play and recognise players as co-creators, but the asymmetry of power that it reflects between the individual player and the game does, in general terms, seem to be necessary to sustain the goods that are product by ones participation in the game.
One particular point is that of identity. Identity play seems a valid form of play within these spaces as a general type. Anonymity, pseudonymity, shifting identity are all games that people should be allowed to pay in some form or other. Though this does not say that RMT trade in accounts is valid as that may serve to undercut the value structure of the game, this depends on the given game.
In gaining these rights of play individuals may give up much. Developers rule these spaces. In-world: rights of free speech may not exits, rights of privacy may not exist, we may go further and suggest that for the good of a given game all kinds of rights that exist in the physical worlds must be waved and that acts that would normally contravene such rights are fine in this context (take hitting people in a boxing ring as a physical analogue).
Social-worlds are ones where the primary good of the world is its social value to those within the world community. Specifically, the primary value that is accrued is that of Social Currency, while there may be other goods (even and in-world economy), this social capital is what is precious most of all to the community.
Social-worlds differ from ludic-worlds at least in respect of identity play. It certainly has a place, but for people in the community to really generate social capital the community must have a degree of stability. Key to that stability is stability of identity. It is important to trust that the identity token with which you interact today references the same person as it does tomorrow.
Moreover this good comes at the cost of identity shifting. That is there is a social one might say moral duty not to switch identities, this will reduce group cohesion, reduce general social capital and result in lower these forms of good for all (if it were allowed the world would become a ludic-world).
Further ‘owners’ of social-words must be mindful of their rights and duties. The social value in these worlds is not their property, the identities there are not their property, if they are anyone’s ‘property’ then they are owned by the community, though here the notion of ownership looses most shreds of meaning. This should act as a restriction on the acts of those that run the systems that facilitate these communities. They do not have the moral right to remove individuals as they see fit. They do not have the right to interfere as they see fit.
Moreover it is arguable that in these worlds speech and privacy rights should exist and should apply to community members and developers alike.
Civil-worlds may or may not exist at present. Civil-worlds are those who’s value and integration with the geographical world is to such a scale and degree that they are merely another way in which we transact our civil life.
If there were a virtual world that had all the properties of the social-world but where I could also transact with my bank, interact with my government, vote etc. Then this would most certainly be a civil-world. This is not the internet. As in the internet I do not have a single presence and identity, the internet is, in this respect, just a way of getting to a place like this.
In this kind of world I would expect every civil right that I have which has a meaningful analogue in this world to be respected and protected. I would expect speech rights and privacy, and I would expect these to be secured not by contract but by the laws and sanctions of civil society.
Such places may only have meaning if they are located in and are acceded form a given legal jurisdiction, or looking ahead we might expect that all jurisdictions sigh up to the maintenance of basic rights like the UN Convention of Human rights in these spaces.
Well that’s the summary. You will find bits of this and things very like it in the work of many other writers: Greg (esp Planes of Power!) & Dan, S Crawford (esp Who's in Charge of Who I am), Ludlow, Balkin, Castronova etc etc (in fact when I do the book keeping there must be 50 or so papers, books and cases I need to reference to give this argument a philosophical basis and a legal foothold), and I’m not saying that what they have said is wrong or that I have not stolen bits from them wholesale. Rather, that I’m not sure that we have been using the right kind of distinctions thus far and I think we conflate arguments when try to apply generalities to spaces that have very different purposes and provide very different goods to people.