Virtual Law Update

There has been a lot of activity on the virtual worlds and law front.  So in lieu of several posts, here are some bullet points:

While those of us who like reading court opinions on virtual property are disappointed somewhat by the settlement, I've got to say that these really were the droids we were looking for.  We now have on record the reported decision of Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007), which starts with the arresting paragraph:

This case is about virtual property maintained on a virtual world on the Internet. Plaintiff, March Bragg, Esq., claims an ownership interest in such virtual property. Bragg contends that Defendants, the operators of the virtual world, unlawfully confiscated his virtual property and denied him access to their virtual world. Ultimately at issue in this case are the novel questions of what rights and obligations grow out of the relationship between the owner and creator of a virtual world and its resident-customers. While the property and the world where it is found are "virtual," the dispute is real.

Some criticized the opinion a bit here, but I found the reasoning innovative and fairly compelling.  Those opening lines are enough to make it memorable.  Before long, I'd expect this case to be part of law school courses (if it is not already).

Although the issue of virtual harm has never been raised in real-world courts, virtual worlds like Second Life have become increasingly significant in terms of both time and money for their users. As such, it is important to develop theories of how the law may apply to and resolve disputes that originate in these worlds.

This Note will therefore argue that because users have imported real-world concepts, specifically currency and economy, into the metaverse, it would behoove brick and mortar societies to provide for redress if a user suffers pecuniary loss in these worlds. This Note will also explore certain ambiguities inherent and unique to the virtual environment when traditional elements of defamation law are applied to it. Moreover, this Note will argue that real-world courts should be the proper forum in which to litigate defamation actions, where victims suffer pecuniary loss due to the fall of their reputations.

My presentation, which I'll be reprising for the Ministry of Culture and Tourism in Daegu, South Korea next week, is going to focus on the way rules of law differ from rules of play.  My current draft of the essay can be found here.  If you're at all interested, it's only 16 pages or so and there is hardly any legalese.  Constructive feedback, by email or here in the comments, is most welcome.


Comments on Virtual Law Update:

Richard Bartle says:

On the Bettina Chin note, I'm more than a little concerned with this line: "because users have imported real-world concepts, specifically currency and economy, into the metaverse, it would behoove brick and mortar societies to provide for redress if a user suffers pecuniary loss in these worlds."

This would seem to imply that if some users did this against the wishes of the developer (or the majority of other users), they could still claim redress. Blizzard would have to compensate gold farmers for the monetary loss the suffered when their accounts were shut, for example.

Skimming the paper itself, it seems that the author is careful to talk about Second Life as distinct from game-like worlds. Nevertheless, that's not what that extract says...

Richard

Posted Oct 17, 2007 4:05:39 AM | link

dmyers says:

An opening ode to play and then an immediate segue way into money as the root of all significance. And you said there was no legalese.

Obligatory terra novan citations. Blah blah.

Ah, Huizinga in depth. Potential mounts.

“human culture originated in play” misplaces the subject of the sentence (rather: play constructs culture), as though culture might now have emerged as rightful master of its misguided progenitor. Still another subtle indication of the degree to which Cultural Studies would be King.

No offense and, I hope, no offense taken… But, as a serious academic question, does Juul (and, correspondingly, to spread the no offense a little, Salen & Zimmerman) deserve mention in the same context as Huizinga/Caillois/Sutton-Smith? (I ask primarily to help gauge the ability of Wikipedia to adjudicate these matters.)

Obligatory terra novan citations. We are all Macbeth and Banquo is the blog!!!

The serious agenda thing is indeed noteworthy. An aside: My own feeling is that game studies has begun to morph into a hipper, more tech savvy (but mostly more pr savvy) form of what was, in the 1980s, simply the educational/training scene, with an occasional politically resonant anthropological emote (Vygotsky, for instance) thrown in for flavorishus substance.

“Dribbling out the final minutes of the game would be less interesting” = Anti-Globetrotter sentiment, apparently.

They may be some GREAT AND ENORMOUS difference between the rules of play and the rules of games. If so, then it would be vital not to confuse the two.

“The rules against RMT should therefore be understood as primarily rules of play.”

Here is my major concern. RMT seems definitively against the rules of the game. RMT seems definitively an outcome of the “rules” (can we say rulz? anti-rules?) of play. Can you then simultaneously defend the rules of games and the rules of play? I think some disturbances associated with Castronova’s DiGRA presentation, for instance (see current playlist discussion), turn on this question.

Posted Oct 17, 2007 12:49:14 PM | link

Susan says:

On the essay:

* There are quite a few typos in it that you might want to fix before publishing it

* I found the transition between these two sentences rather jarring:

"Players frequently set up novel social practises... Probably the most well-known of these novel social practises is the player-to-player trade of cash for virtual property..."

Well, what you say there is true. But some social practises are an intended part of the game (guilds, for example), or part of what makes the game attractive to players. As you explain later, RMT is different: it is often "against the rules of the game" and a violation of the player's contract with the game developer. Maybe it would have helped to have a sentence or two to the effect that players and developers are OK with some of the other emerging practises.

* It might also be worth highlighting the fact that in many of the current MMORPGs, the core of the game is about buying and selling virtual goods for virtual money. This makes it "natural" (at least for some players) to extend their trading to real-world money. Not all MMORPGs are like this. Richard Bartle's MUD1 was more about solving puzzles than trading: while it would have been theoretically possible to enage in RMT for (e.g.) the longsword in MUD1, it's not the kind of thing that would naturally occur to a player to do.

* There are other arguments against RMT. (a) Second Life had to ban gambling (or at least, the advertising of gambling) because of US Internet gambling laws.
(b) Value Added Tax. When my character buys a magic sword for fictional gold pieces, should the real-world tax-man get paid VAT on the transaction? (Should your character be VAT registered? How do you know that the Elf you just sold a sword to is played by a UK resident? etc.) This one is currently a live issue in Second Life. For these kind of reasons, a game developer might officially ban RMT, while not caring too much whether it was actually happening.

Posted Oct 17, 2007 3:30:24 PM | link

greglas says:

@Richard: Yes, I think that's a good point. I was going to flag that the Note seemed to concern Second Life and its analysis fits best with Second Life, but this was a long post.

@Dave: Thanks so much for the comments & OK, I guess my response is -- mostly (except where you're being clever, which is fine) -- guilty as charged. Re my citations, you're right that I need to read more widely on this topic -- you're just a couple decades ahead of me in studying games, but now I'm catching up.

Re legalese -- didn't somebody once say something like: "There is no doubt that the current academic interest in games and game studies is driven to a large degree by the commercial success of the video game industry." Who said that? Was it a lawyer?

Missed Ted's DiGRA presentation, so not sure what that is about.

Yes, yes, yes - I'm VERY MUCH AWARE that I conflate "game" and "play" in this. I worried that it was a mistake when I was doing it, so if you think it's a big mistake, that's not a surprise to me. So why did I do it? Because I'm not quite prepared to commit myself to abide by a particular jargon of game and play... yet. See point about more reading above.

Also, the problem with the Globetrotters is that they're really at their best when playing/performing against the New York Nationals.

@Susan -- yes, sorry for all the typos. I'm prone to them.

Just to be clear -- I don't think the RMT is the most "novel social practice" in MMORPGs at all. What I said was, following a sentence about how MMORPGs allow increased potential for social conflict and collaboration: "Players frequently set up novel social practices ***that blur offline socialization and online 'in-game' activity.*** Probably the most well-known of these novel social practices is the player-to-player trade of cash for virtual property..."

So what I was trying to do was highlight how RMT blurs the offline/in-game border -- but if it was jarring to you, I certainly could make that transition to make it more clear, and to make it more clear that many of the game/offline crossovers (e.g. fan faires) are something the game companies promote.

Thanks for the other comments as well.

Btw, IIRC, there actually was a tiny bit of RMT in the early MUD1 (isn't that right, Richard?).

Posted Oct 17, 2007 7:42:12 PM | link

Thomas Malaby says:

Well, I've said it before, so I won't belabor it, but I agree with Dave (although perhaps for different reasons) about the problems with conflating play and games. Games are usefully understood as artifacts (activities, really), and in doing so we can talk about their "rules," although this runs into the danger of putting all their kinds of control in terms of only one of them.

But in any case in my opinion the only way to make a useful concept out of play (given the cross-cultural/cross-historical challenges) is to use it to denote a mode of experience, *not* an activity (and even then one would need to use it very advisedly). As such, to talk about "rules of play" leads you into problems.

Nonetheless, I think it's very intriguing to think about how legalistic (bureaucratic, as I put it) rules are different from the rules of games -- they are informed by different aspirations (as I talked about -- pretty obscurely -- here).

Posted Oct 17, 2007 7:57:12 PM | link

greglas says:

While you both might agree that there should be a difference, I doubt you'd both agree on what the difference is. In defense of the popular usage of the term "rules of play," see Google and the website of the US Foosball Assocation. But I firmly stand by my prior concessions.

p.s. Btw, fwiw, the title was not intended to be an allusion to Salen & Zimmerman's book. I suppose that should have crossed my mind when I titled the paper, but it did not.

Posted Oct 17, 2007 8:11:43 PM | link

Thomas Malaby says:

Lol, Greg. No, don't mind me -- I wasn't trying to hoist you up by a petard you had already disowned! Just piping up with my initial reactions. Besides, my ideas must mean nothing anyway -- I'm one of the "obligatory" ones. ;)

Posted Oct 17, 2007 8:54:49 PM | link

greglas says:

NP, and many thanks for the input, Thomas!

I should add that maybe my particular pitch here has something to do with the context of my reading and my imagined audience. As I say in the paper, I'm constantly surprised that most of the legal writing I read on MMORPG automatically assumes that legal ordering within them should follow some variant on the utilitarian calculus, when it seems to me the key insight of most of the studies of games & play (that I have read) makes it obviously that this approach is completely off.

And my impression is that a lot of this has to do with a desire to minimize the role of games & play because they are understood (perhaps semi-consciously) as deeply incompatible with the internal logic and rhetoric of law. (This is also why, btw, I think we've seen many more law review publications on Second Life than we have on WoW, CoH, Everquest, etc.)

Posted Oct 17, 2007 8:54:56 PM | link

Thomas Malaby says:

I think it is that, and I think it'd be great if you decided to push that line farther and trace some of its primary roots, if you wanted to. Fwiw, I think it goes even beyond that, too, and it reminds me of what the anthropologist Michael Jackson said in his wonderful Paths Toward a Clearing, where he observed that academics'

"preoccupation with regularity, pattern, system, and structure has to be seen as less an objective reflection of social reality than a comment on his personal and professional need for certitude and order."

I think it'd be great if you decoupled the all-too-easy identification of legalistic rules with the rules of games.

Posted Oct 17, 2007 9:25:08 PM | link

Richard Bartle says:

Greg>IIRC, there actually was a tiny bit of RMT in the early MUD1 (isn't that right, Richard?)

Well, very very tiny. The nature of the virtual world was against it, the players were against it, and the powers used to deal with it were so draconian that engaging in it was tantamount to the suicide of your character.

See this TN post for details.

Richard

Posted Oct 18, 2007 8:21:11 AM | link

C-Park says:

The pivotal Huizinga quote on page 4 ties play and games in that games (in the sense of rule sets and environments) are the instantiations of play. Accepting that, the motive for and consequences of games, more than their form, divide games into two classes -- those that embody play and those that reflect complex interactions with a larger social environment. The distinction then is not between play and games but rather between games of play and games of consequence. This is the popular distinction between a pick-up game of sandlot baseball and the rabid parents with driven children that often make up organized Little League "play".
Much of the paper focuses on games of consequence or the tension between populations with different views of a particular game. RMT is an excellent example because it ties people that want to play for fun (but cheat) with those that play to make real-world money and puts them at cross purposes with those that want to play for fun within the rules.
I'd advocate making this distinction explicit in the paper.

Posted Oct 18, 2007 10:38:03 AM | link

greglas says:

I think you could make a distinction between ruled play and unruled play, which is something the Caillois *almost* does with paidia v. ludus, but doesn't really do. I guess I'm hesitant (at this point) to broaden the concept of play beyond rules, or get into the question of how rule conflicts are resolved. But I will be looking into that.

Btw, Dave -- re including Jesper in a "such as" sentence -- I don't think he himself would claim he belongs in the same category as Huizinga but he does have some pointed and helpful things to say about their definitions, he's engaged with them, and he's interested in the video game (our topic), and as I said in a prior thread, I always enjoy reading his work and I learn things from it.

Posted Oct 18, 2007 10:48:31 AM | link

dmyers says:

"I always enjoy reading his work and I learn things from it."

As do I.

Posted Oct 18, 2007 5:59:42 PM | link

Unggi Yoon says:

i just read draft 'rules of play'.

my first thoght is that the conclusion of it is proper to WoW,Everquest(mmos which are akin to game), but not to Lineage and SL(mmos that is transmorphois of [ordinary] war or life).

unlike WoW,
lineage has no/little rule of play on the item acquring/trading, if exist, the rule is more like that of jungle or war. threrefore, the anti-RMT clause of lineage did not supported form the rule of play.
(in civil case, Ncsoft's assertion is 'RMT provokes cyber-crime, RMT make in-world economy turbulent, Nc did not say RMT hurt the play itself)

in lineage, any level player can obtain, use and trade all kinds of item, three is no restriction about the number of participant of the field battle. so unlike sport-games like maration, boxing, football, the rule of play(which function as by constrainting the game liberate the players from all but simplifed set of consideratins and objectives) are week and dim, that make the in-world lke outer real world where is characterized by conflicting desires, objective, and burdensome. - but unlike the sport-game where you are the only player and others are just competer or spectators, in lineage, all are players and you can call on/offline bloodpledged players near to you. and they including you made the way and the rule itself. (in SL, you create and trade seen items, in lineage you destroy and construct the unseen items -- power)

Jake Song, the father of Korean MMOs, told me in 2001, he wished and made the world of no constraint. Lineage is the outcome of his mindset, he also exclude rule of play as a constraint.
(therefore, RMT and Real PK is irresistable to Lineage, though i don't know he also predict the followers) That's why i categorize the lineage next to the SL, not to WoW & Eversquest, and the conclusion of the draft is not for Lineage aka the second war-life.

Gerg, welcome to our nation Korea, I hope you enjoy the conference.

Posted Oct 19, 2007 5:55:01 AM | link

Unggi Yoon says:

Relating to defamatin in VW,

There are 3 criminal cases in S. Korea.

In all 3 cases, each court sentenced fine to the accused by the guilty of insulting.

the one is about disclosing the victim's real world identity of disabled.

and the others are about mailing to the bloodpledged parties that the victim acts like a prositute for real money or items.

Posted Oct 19, 2007 7:48:48 AM | link

FlipperPA Peregrine says:

Linden Lab, *NOT* Linden Labs. Sorry, pet peeve, it is kind of important to get the star of your blog post's company right.

That said, I'm glad this settled. While I agree that there will be an important case about ownership of virtual assets and land some time down the road., we did *not* need a scammer using an exploit to champion the cause. Kevin Alderman is a much better champion than Bragg.

Regards,

-Flip

Posted Oct 19, 2007 8:42:09 AM | link

greglas says:

Unggi -- Thanks so much, I didn't appreciate that Lineage had those kinds of characteristics. Can't wait to meet you!

Flipper -- Oops! Thanks. Fixed.

Posted Oct 19, 2007 9:04:55 AM | link

Susan says:

I think you're on the right track when characterize RMT as against the "rules of the game". Over night, I had a couple of further thoughts on this:

- Contracts forbidding resale can also exist for reasons that have nothing to do with the rules of the game. I recently purchased some software at a discount price, subject to the condition that I wasn't going to use it for business purposes and I wasn't going to sell it to anyone else. The software wasn't a game program - this is the economics of price discrimination.

The point I'd like to make here is that a contract provision (e.g. forbidding RMT) can be both part of the rules of the game and have a real-world economic function. A judge might have to make some quite tricky calls as to which of these was most relevant in a particular situation.

- As you say, games often have a rather perverse property that making the objective easier to achieve makes the game less fun. We could see RMT as a market failure caused by this property: a free market in virtual items does not succeed in maximising player enjoyment. Hence the market becomes regulated. (Although it's regulated by the contract between the player and the game developer, rather than by the real-world government).

- The virtual world developer potentially has a conflict of interest: setting rules that make the game playable vs setting rules that maximise their income. Sure, the developer has some incentive to make the game playable, because if no-one wants to play it they don't get any income. But there could be some interesting market failures. Public choice economics applied to virtual world policies could be a whole lot of fun. (cf. more traditional situations where a government regulator acts to maximise the profits of companies with lobbyists, rather than the utility of the public the regulator is supposed to be protecting).

- In the *massively* multi-player on-line RPGs, there can be quite serious disagreements about what the rules of the game actually are. (Open question: who has the authority to say what the rules are?) The group of players is too big to easily achieve agreement on the rules by informal means. Examples of situations where different players are trying to play a different game (albeit in the same VW): role-play vs. non role-play; PvP vs PvE. It's not always clear whether something is "cheating" or a real disagreement on what the game is.

- This bit in the posting Richard linked caught my attention:

Oddly, the very earliest occasions where people powerlevelled other players' characters were not about money. Men did it for women in the hope or expectation of some kind of emotional or physical relationship.

Re-reading it in this context I suddenly realised that this can be seen as a different game being played in the same virtual world. (e.g. in RPG terms: can you level your character using seduction skills rather than combat skills?)

Posted Oct 19, 2007 10:15:47 AM | link

greglas says:

Susan -- thanks. This essay was limited to trying to establish that rules of play can't be justified by the traditional logic used to back up legal or contract rules, particularly the economic logic that is traditionally deployed. So I wasn't trying to bite off more than that.

You're absolutely correct that in practice with MMOGs, the ambiguity of the rule set and the potential for conflict between various interpretive communities means that the situation becomes much more complicated. This is a post from four years ago about Velvet Strike, but there are plenty of other examples you could roll out about how play style can become a question of politics.

On market failure -- that's an interesting way to refer to it. The market itself would constitute the failure. I suppose not entirely unprecedented.

Posted Oct 19, 2007 8:43:16 PM | link

frankey says:

I just finished reading the Rules of Play essay. It seems the author neglected to consider on very important difference between the rules of sport and those of MMO's - MMO's (such as WoW and LOTRO) allow for the use of unlimited time to accomplish the player goal and accumulate wealth. If a soccer match was conducted under similar MMO rules, one team could take as much time as it needed to get the number of goals needed to beat the other team.

By failing to factor in the effect of time, MMO rules themselves effectively establish the conditions for competitive imbalances to occur. In thinking about the Hernandez vs. IGE lawsuit, if I were IGE's lawyers, I would make reference to the fact that, because of the time factor, competitive imbalances already existed within the framework of the game before the effects of RMT are applied. It could be argued that RMT is used by many players (who have more disposable income to spend than time to play) to restore competitive balance to an otherwise already imbalanced gaming environment. I think in this case, it would be very difficult for the plaintiffs to prove that RMT is more responsible for the imbalances than the time factor is.

Posted Nov 21, 2007 5:00:41 PM | link