…they play with each other. Peer-to-peer. Person-to-Person.
To some, this is a revelation. But we will return to that.
First, back to me…
Thanks to my wonderful friend Dr Aleks Krotoski and my equally wonderful co-author Dr Melissa de Zwart, Dr de Zwart and I have a paper out in the current special edition of the International Journal of Internet Research Ethics Issue 3.1, December 2010.
The paper is titled: The Duty To ‘Play’: Ethics, EULAs and MMOs. It examines some relationships between: play, contract law, criminal law, sports law, and research ethics (I’ll put the abstract as a comment to this post).
As great minds think alike Josh Fairfield, of this parish, has been working in a similar area. I’ve not read his paper yet, but you should: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1717057
The basic idea is one I’ve been formulating in bars around the world for some years now, so if you’ve been to a conference with me you’ve probably heard it in its drunken form – the paper is the sober version with the great help of a very clever lawyer.
For many years it has struck me as curious is that we don’t arrest boxers. What’s more this goes completely unremarked upon (in the main).
It has also struck me as curious that notions of human rights have been absent, or at least marginalised, in the discourse about virtual worlds in particular and online practices generally. I am happy to say that this is now not the case in the wider inter-governmental policy debate about the Internet (full disclosure: this is a debate that I now focus much of my time on through the Virtual Policy Network (tVPN) which I founded).
In the case of virtual worlds, issues have tied us up in knots of property this… and contract that... Pretty much every paper I’ve written in the area has objected to this rush to view all issues through the lens of commoditization. To a degree the discourse has been forced on the academy, as it is the frame that commercial actors have chosen to exercise power, so it is only right we debated it. And debated it we have. I’ve always felt that we have pushed human rights to one side but I’ve long suspected we can throw them a life belt in the form of sports law.
So why sports law?
Because it is where play meets statute.
And chaos does not ensue.
To dig just a little deeper into this – play came before law. Now, while much of the codification and institutionalisation of modern (Western) sports took place in the late 19C in a particular socio-cultural situation, specially the English class system, the hierarchy of heuristics and the interfaces between layers of governance structures is largely the model we use today (see, for example, applicability of R v. Coney (1882) 8 QBD 534).
What this set of legal-cultural structures does is fit around sport. In a sense sport, as a form of play, just happens, these structures are careful not to get in the way other than where exceptions occur, and then (on the whole) the right structures intervene in appropriate ways. From referees to criminal courts there are layers of sanction appropriate the infraction. What’s more much of this exist within an international dimension.
To put it another way, law, and its interpretation in the context of the cultural practice we call sport allows people do things which in one sense are very odd e.g. hitting each other some time so one person dies; but in other senses is the least odd thing we do (see animal play etc).
At the same time law establishes limits. But these are fluid, negotiated, and they are rooted in practice and tradition rather than simplistically imposed upon it from outside. A foundational case in modern law that applies a legal heuristic to this is Regina v Cey 48 C.C.C. (3d) 480, which concerns the legal boundary of violence in ice hockey. The judgment and established tests around the limits of what ice hockey players can reasonably consent to, what they can reasonably expect to occur to them and what they can reasonable do taking into account written rules and practice. Using the logic from Cey - try to bring action against someone for pushing you over in an ice hockey match people will laugh at you, if you do so in respect of seniors’ bowls people will not.
Returning briefly to virtual worlds, there are strong parallels. Some of the things that go on in virtual worlds can been seen simply as age old play using new tools. As such there are some questions that seem best answered by looking first at the practices that occur and in particular the reasonable expectations that actors may have. Indeed we have a growing number of cases where courts have done this. For example cases where someone has alleged a ‘theft’ of virtual goods. Some providers have held to the line that the contract and IP law is all, that there was nothing of the player’s to steal hence they have no duty to act. However courts, mainly in Asia – but increasingly (in some criminal matters) in the West – are starting to find that what looks to those who care to be theft is indeed theft. That is practices, their attendant semiotics and values, have legal primacy. Not contract. Not property. But what people actually do.
I view Virtual worlds court cases as important because of what they say about our view (especially our legal view) of what it means to be a human in a mediated environment. Hence cases that reduce all rights to property, that reduce speech to IP, etc worry me. So where does the EULA overturning cases point?
If you hung out with me in bars last year, you’d hear me going on about how we need to bring the notion of play into human rights discourse. This was sparked-off by Prof Bartle and I talking with the Council of Europe about their recent interpretations of the European convention on Human Rights, in particular: Human Rights Guidelines for Online Service Providers (see tVPN page for links and summary). While I like the Council of Europe’s general stance on rights and their eagerness to look at areas where little rights work has been done, including ‘emerging’ technologies like games. I do not think that in this case they have understood that online play represent a cultural shift that has profound impacts on in interpretation of rights. Here is why…
People Play online.
They play with each other. Peer-to-peer. Person-to-Person.
This is important.
I kept telling people this in bars.
Let’s think of acting - just like we don’t arrest boxers, we don’t hold actors to be bound to a contract that we might clearly see them make on a stage in front of our very eyes. We don’t arrest actors in Schindler's List for anti-Semitism. Acts are not just acts they have semiotic content - they are meanings in context, in other context they have different meanings. Again, just like the physical act of hitting someone or tackling them to the ground.
Another important similarity between sport and acting is that the way we should interpret acts is heavily signalled to us. There is often a theatre, a stage, costumes, a beginning and end. Yes, if you will, a magic circle is well defined and protects the acts within its bounds.
But what happens when the signs are vague and hard to read? When the practice, particularly the play practice, is well established by those that engage in it but may be completely unrecognised by others? Don’t we still have to protect it? Don’t the actors still have a right to play? Or does there need to be an audience to make play legitimate?
At this point people looked at me blankly and told me this is a lovely idea but it has no application.
Then someone tried to take a plane in the UK. But there was snow. We don’t ‘do’ snow here.
Specifically (details and quotes via Jack of Kent), Paul Chambers on 6 January 2010 tweeted: "Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"
On the 10th May 2010 he was convicted of an offence of sending, by means of a public electronic communications network, a message that was grossly offensive, or of an indecent, obscene, or menacing character contrary to Section 1271(A) and (3) of the Communications Act 2003.
“We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgement, menacing per se.”
Although the offence does not require the message to be seen, we take the view that an ordinary person seeing this, and we have no evidence that anyone did, would see it in that way and be alarmed.”
To anyone that follows Mr Chambers I’m sure it was clear that the tweet was a joke. Indeed to an average user of twitter it is pretty clear several hash tag based campaigns evolved around the so-called ‘twitter’ joke.
In a sense the judgment is good as it seeks to include the view of the ‘ordinary person’ – however of course it fails on two counts. First it does not seem to be the actual view of ordinary people but the view that a judge has of what ordinary people might have. Second, is an ‘ordinary’ person the right person to use as a yard stick. That seems like using me to judge what is good sushi. Ordinary does not come into it, what is needed is qualified, as the very point of a playful act (in this case the linguistic play of a joke) is that it’s a play between the teller and the receiver (there may be Lenny Bruce parallels here but (a) I don’t know the details of the case (b) US 1st amendment law is very specific in its sense of what constitutes speech and related rights).
Which brings us to a broad question of what rights we have to play where the games are between relatively small groups of people but occur in online spaces that have the odd property of being not fully public or private – a kind of online non-place to use Augé’s term.
Lastly this also touches on the other broad thesis that I’ve been mulling over for some time: that more and more we are returning to the ethics of the village. Where indeed people might do things that are kinda private to them but also kinda in the view of a wider community but possibly in view of people that know little to nothing of their customs.
As more and more this is what we do, in chat-rooms, MMOs (RP particularly), MUDs, Twitter, Facebook etc. We do things in small groups that when other see, they don’t ‘see’ or they go ‘huh’ or ‘wtf’ or ‘I’m reporting that’. Of course I’m not saying that any two or more people can call any practice a game and literally get away with murder. No, as sports law tells us there are bounds and there are ways to deal with them. In the main this is not what we are doing.
In short, when human rights are applied to online spaces we must remember that what we are looking at may be play and that makes a difference.