By way of background: about a year ago, W&L held a symposium entitled Protecting Virtual Playgrounds: Children, Law, and Play Online. Lots of TerraNovans were there. The panelists gave some really great papers, which we turned into an issue of the Washington & Lee Law Review (that issue goes to press this month). And that's a good thing, because the papers were ready when Congress asked the FTC to report on the potential availability of adult materials to kids in virtual worlds. (The FTC's report is due out in early December.) More on my personal paper, which ended up with the title Virtual Parentalism, after the fold.
There are three things I find interesting about what I perceive to be the regulatory approach we're on. The first is that targeting a medium of communication because of some content that is available via that medium feels like a road we've been down before. This really feels like Congress's prior, failed attempts to regulate porn on the internet by arguing that protecting children is a sufficient reason to shut down protected adult-to-adult expression. The Supreme Court has said no repeatedly to this approach. Congress cannot force everyone using a communications medium to limit their expression to that which would be appropriate for children.
The second concern is practical. I really enjoy playing with my kids in virtual worlds, and I think that my presence with them in virtual worlds is the single best guarantor of their safety. I worry that segregating virtual worlds into children's and adults' spaces will not serve goals of child safety. Further, I think that it destroys a lot of what makes virtual worlds fun -- their ability to put communities back together, rather than tear them apart. World of Warcraft is a game I enjoy playing with my kids. There aren't all that many of those. Snakes and ladders, for example, causes me to cry bitter, bitter tears.
The third concern is a mix of practical and legal: I wonder if courts will or can use the reasoning they used in the cases above. What saved the internet from broad censorship was the possibility of private filtering. For lawyers, that's a strange argument -- normally Congress is prohibited from regulating speech if there is a less-restrictive law it could pass instead. The possibility of private action doesn't usually block Congress from regulating. But in these internet cases, the argument that Congress had to facilitate private action by law rather than regulate directly appeared to have some traction. That is, because Congress could have promoted private filtering by law, it was prohibited from direct regulation.
There have got to be some limits to this idea, I'm the first to admit. But my guess is that filtering will be a big part of the debate about regulation of virtual worlds, and my concern is that filtering is not where it needs to be in virtual worlds in order to fend off regulatory efforts. /Ignore is a great start. It is not nearly enough to fend off Congress.
As always, I'm deeply interested in your thoughts and comments either on the short-form thoughts above, or on the paper itself.
Comments on Virtual Parentalism:
I can't completely accept the "When good adults are driven away, bad adults are the ones who stay" premise. The notion of an parent who is truly empowered by filters, etc. also implies a responsible, engaged parent. How many responsible parents are going to allow their children into a virtual world and then abide by a dictum that they can't follow their children there? I can't see it happening. Either both parent and child are engaged in the world, or neither is.
At a minimum, a responsible parent who does allow a child into such a virtual world watches over the child's shoulder. More likely, the parent and child actually play together, as they would in any other context. This immediately defeats the premise of an adult-free world: there are responsible adults in the virtual world again.
Similarly, I can't fully agree with the premise that a children-only virtual world would turn into Lord of the Flies. To quote from the paper, "Creating virtual playgrounds without adults will increase the incidence and severity of child-to-child harm."
Where are these "virtual playgrounds without adults"? Every world has its "game gods," to borrow the paper's term. The owners and the game masters must be "responsible adults" by definition, exercising some measure of control over the game world--if for no other reason, they have to keep all other adults out. A broader way of asking the same question: to what extent must a world's game god act in loco parentis when the world is designed for children?
Posted Oct 14, 2009 2:16:43 AM | link
These are both solid points, and well worth discussing. Two questions came to my mind in response:
Isn't in loco parentis a far scarier proposition for game gods than Congressional regulation? If I were a corporation, I think I would do whatever possible to avoid that designation.
Moreover, is digital daycare a model that we want? I don't know that I'm comfortable having GMs raise my kids. At the very least, this conception of having the game gods be the adults in the playground, in terms of supporting, nurturing, and protecting kids, is not a model that game gods currently generally contemplate. And I think that, as above, they would contemplate being seen in that role, rather than in a purely administrative role, with alarm.
Finally, an observation. Game gods currently do not enforce their own social rules, and due to gaps in current law, players find it very hard (impossible?) to enforce EULA terms against other players. What makes us think things would be different for kids' worlds? Why would game gods suddenly feel required to follow through on their TOS / EULA promises? Is it because kids are involved? Is this an FTC Section 5 argument, which is what seemed to rattle Facebook, MySpace, and Craigslist? What's different here?
Posted Oct 14, 2009 9:28:26 AM | link
Certainly the implications of in loco parentis are broad and unpleasant for any virtual world. It would not surprise me if many companies would exit the virtual-world-for-children space rather than accept the wide range of responsibilities and liabilities. That would deprive children of well-regulated virtual worlds. It's a losing proposition.
I think we're in agreement that a "digital daycare" model is something to be avoided. Separating parents from children in virtual worlds in the name of protecting the children is ludicrous and distasteful.
As for the TOS/EULA question, I'm far less of an expert on the topic than you are, so I have to defer to your knowledge. A counter-question, if I may: with the expectation that the residents of a children's virtual world are in fact minors under the law, what is the virtual world's responsibility for helping minors understand the terms of the EULA and act upon them?
To me, it always comes back to the parents; they pay for the accounts, agree to the EULAs, and so on. Is it even possible to separate parents from children? Where children are at play, physical playground or digital, parents are watching.
Posted Oct 14, 2009 11:00:18 AM | link
First, on the problem of contracting with minors: I think this is a pretty undertheorized issue of law. There are two fictions in play. First, companies seeking to avoid application of COPPA engage in the fiction of only serving adults. Thus, if you sign up for D&D Online and admit that you're eight years old, DDO will not let you create an account. So companies make children lie in order to get access and provide them with plausible deniability.
Second, there is the issue of contracting with minors at all. Here, you're completely correct: Parents are used as a figleaf to avoid the problem that the cocmmon law has sometimes placed restrictions on the enforceability of contracts with children. So if you look at the Club Penguin TOS, for example, there's lots of "go and get your parents" language. But none of that would prevent evidence, likely coming from the parents, that they were never consulted.
Thus, while I suppose minority could be a problem for EULAs, there is a further problem, which is due to the nature of copyright licenses themselves, as far as I can tell. Let's say a child contracts to buy a car. The dealer can't enforce that contract (under certain circumstances) but I don't think that the child gets to keep the car. That is, the minority problem goes to whether contracts can be enforced against children, but does not give children any special right to enforce contracts.
In a copyright context this is important. Children can certainly violate copyright law. In order to avoid violating copyright law, they need a license. So saying that a Game God can't enforce a license against a child due to the child's minority doesn't help at all. All it would do is strip the protection that the child *did* have against a claim of copyright infringement!
Posted Oct 14, 2009 11:45:09 AM | link
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Some very good points here, and from John Beety too.
On the issue of enforcing contracts the issue of who is responisble for ensuring this is done seems to have arisen. Is it the parents? the children? the company?, or the community that is responsible for ensuring the rules and/or appropriate behaviour is abided by?
Another alternative to regualtion is education. The question of a minor being too young to understand the contract wouldn't be an issue if there was appropriate eduation on the issues of online interaction provided to children. There is no reason I can see why children can't be taught (whether at home, at school or in some other environment) the value of taking responibility for their actions in the real world and online.
Online interactions are as safe and as dangerous as real interactions. We teach children not to speak with strangers so maybe its time we started teaching about the online world as well.
Posted Oct 21, 2009 9:58:06 PM | link
Great point, Milly. The answer is that it's the company's responsibility. A contract is not like a community rule (I've written a lot on this elsewhere). A contract is a deal between person A and person B. And if person A, a company, is going to be doing business on a routine basis with person B, a child, then the company is clearly the one with the responsibility to make sure the t's are crossed and the i's are dotted. This is so under doctrines of unconscionability, contra proferentem, and lots of other established contract law.
The problem is that courts have gotten so used to enforcing provisions that indicate that all responsibilities fall on the consumer. Thus, for example, if you agree to a EULA, it's normally the company's responsibility to communicate any changes to the contract to you, and secure your consent to those changes. But the EULA changes that -- it says that you, as the consumer, have the responsibility to keep up with the changes to the EULA, and that you agree in advance to any changes the company may choose to make.
The problem with this insofar as children are concerned is that minority goes to the enforceability of the contract -- that is, the child is not bound by these EULA clauses. (Of course, if the child is not bound, the child is not licensed, and thus the child is infringing intellectual property, hence the conundrum of why the rules on minority do not actually protect children in virtual worlds.)
So, bottom line: it's the company's responsibility, usually on pain of FTC investigation under COPPA, to make sure they are following the rules when they contract with children. Which is why most companies will not deal with anyone who admits they are a child.
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