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Dec 04, 2003

Comments

1.

Out with it, Greg. What are those "points" on which you disagree with me?

2.

Absolutely worth the time. Raises a number of interesting points, many of which center around enforcement of whichever model you choose to look at. I would raise the question, however, of enforcement options outside of the narrowly legal realm. I would say that the most important impacts on this debate will never see the light of day in a courtroom.

More to follow at some point in a manner other than that of the faceless gallery.

3.

James -- Here's where I disagree:

1. There is nifty and agoraXchange is boring

2. Designer intent probably won't influence legal regulation of VWs

3. The gamespace / magic circle idea is worth thinking about

4. Coase says: contract can get around useless property regimes -- GPL QED. But the same is not true re other issues in governance

But I *like* the essay. Didn't intend any slight -- just noting that I've got a different viewpoint.

4.

Greg, I imagine that designer intent could be very relevant to legal "regulation." However, I would use a narrower definition of "regulation" than James (is pvp before a judge/jury properly considered "regulation" of the game?).

Wouldn't a game in which the designers chose to accept advertising or player-created content, participated in p2p real-currency economies, etc. going to incur some legal obligations and invite greater "regulation"?

That is, wouldn't a "Bartle-world" invite less regulation than a "Harvey-world"?

I would argue, though, that they are both equally regulated (subject to the same regulation), just that designer intent (and implentation) will play an important role in determining whether a given space (and how often) needs regulating.

The second sentence of the fourth point of your dissent suggests all of this, no?

Jeff Cole

5.

I have to confess that when Yochai Benkler raised his famous objection to the new Second Life regime at the conference, I didn't really get his point. I do now, James, thanks to your helpful enumeration of the various ways IP could make life awkward for SL's inhabitants, to say nothing of Linden Labs.

But I wonder if the fix you propose is really the only or even the best way to head off these problems. You suggest, if I understand correctly, another rewrite of the EULA, this one requiring everybody to be nice and not sue their fellow players so long as nobody's trying to exploit their fellow players' IP outside of SL. It's compulsory licenses all around, and a fine, simple idea, actually.

But another possibility occurs to me: What if you left it up to the players themselves to do the requisite rewrite of the EULA? Or rather, what if you let each player write her own EULA?

Consider one of the weirder possibilities the new SL regime opens up. There is already a player-run role-playing game under construction inside SL. And now that everybody in SL retains rights to their in-game creations, what's to stop the owners of the in-game RPG from requiring, as part of the admission price, the same thing every other online RPG requires: the transfer of those rights from the game's players to its owners? Nothing. Thus SL's brave new EULA, the one that's supposed to put all those other, evil EULAs to shame, ends up potentially sheltering a thousand little evil EULAs under its umbrella.

An interesting possibility, though probably not one Prof. Benkler would be too happy about. But what, now, if those thousand little EULAs were not all so evil? What if some, or better yet the majority, simply included the rewrite you propose, James, or something similarly protective of the information commons within SL?

Already the permissions system for land use in SL lets land owners stipulate things like whether people can be killed there or not, right? So why not give land owners an additional option allowing them to stipulate whether people can be sued or not for allegedly IP-infringing acts committed there (I'm not sure I have the right terms nailed down here, but you get the idea). If my house is a litigation-free zone, and you don't want to waive your right to sue, just stay out of my house. If you're cool with that, though, just click here (or more conveniently, have your designated software agent click here) and we're in business.

Now, this is obviously more of that postlapsarian jiu jitsu Yochai was complaining about, and it's good to ask why this patchwork system would be any better than the patchwork of Creative Commons licenses Linden proposes to build into the permissions system for copying objects.

My only answer for now is that it might put SL's information commons on firmer ground. James, your essay does a wonderful job of distinguishing between virtual and intellectual property, and of explaining how dependent the latter is on judicial interpretation and other potentially disruptive impositions of real-world legality on in-game creativity. Creative Commons licenses rest on intellectual property. These mini-EULAs I'm proposing (or maybe LULAs, for land user license agreement) are grounded in the much less ambiguous reality of virtual property.

As for why this LULA-topia might be preferable to the simple, global EULA fix you propose, I'm not sure. I guess I'd say that depends on how desirable, or interesting, or democratic, or even efficient it might be to have two or more different IP regimes co-existing within the same virtual world, duking it out for territorial domination or perhaps settling in to a stable pattern of varied land use. I can think of reasons why it might be all those good things.

I can also think of reasons why it might be completely insane.

Corey, I'd be curious to hear whether such a scheme is even technically feasible in SL as it exists.

6.

I like it when Julian posts ideas that are completely insane :-)!

With the requisite IANAL statement and a proviso that I owe James a more comprehensive post on his site, let me try to hit a couple of these issues:

User written EULAs: well, nothing really against that in our EULA (as Richard pointed out in a previous thread) and users could build something in world that required you to click "OK" but I have no idea of how enforcible that would be (any folks who start posts with IAAL willing to comment?)

Land specific permissions: this feels iffy to me. So, I have my happy copyrighted content on board and accidentally move onto land that says anything goes. If I haven't agreed to that, I don't see how the land could just usurp the rights that I had. However . . .

Creative commons: I'm very excited about this and had a super productive chat with a bunch of the folks over there. So, were we to change our current internal permission structure to be creative commons (plus a few other options that aren't part of cc) then we could, in theory, allow you to say "only cc licensed content in this area" or "only 'attribution only' content in this area", &c. Now, I seriously doubt this would be our first implementation, but it is possible in theory and definitely interesting to think about.

Several people have come to the conclusion that adding IP rights into SL is going to cause pants to be sued off left and right. This is certainly possible, but one point that might have escaped notice is that SL was a DMCA Safe Haven prior to our TOS change. We had to be because we allow textures and audio to be uploaded. For those not familar with how Safe Haven's operate, here's the quick overview:

Julian uploads a texture to SL that Sony holds the copyright to. Sony contacts our DMCA contact and indicates where they saw the texture in world that they own the copyright to. Linden Lab removes the texture from the system and notifies Julian. If Sony wishes to sue Julian they can do that, but Linden Lab is not part of it.

So, lawsuits outside of SL could already occur due to behavior in SL. What we've attempted to do is to put content created within SL on the same footing as content built outside. Agree or disagree with IP law, but until out change, an image generated in Photoshop gave its creator different powers than an image generated by moving objects around in SL and taking an in-world snapshot. Yes, per James' comments, we could have made the TOS say that you granted everyone all rights to any works that you bring into the world. Unfotunately, that seems to rule out a very large set of opportunities and behaviors that are important to the long term growth of SL.

How other companies, like There.com for example, get around this is by allowing Nike to come into the virtual world with a different set of rules than the users. That seems like a very bad long term strategy. Why should your users have the least rights of anyone in the system?

Cory

7.

Cory Ondrejka>Julian uploads a texture to SL that Sony holds the copyright to. Sony contacts our DMCA contact and indicates where they saw the texture in world that they own the copyright to. Linden Lab removes the texture from the system and notifies Julian. If Sony wishes to sue Julian they can do that, but Linden Lab is not part of it.

I don't know about the US, but in the UK I think they probably would be. If I wrote a book that included someone else's copyright images without their permission, they can sue me; they can also sue the book's publishers, printers and (not so sure about this last one as they was a court case maybe 10 years ago and I don't know how it turned out) the distributors. My guess is that in the USA things are similar, at least to the extent that publishers require authors to sign an agreement saying they'll cover the publisher's expenses if the publisher is sued.

The way out of this is "common carrier" laws. Here, I think Second Life may be better equipped than There to defend themselves, as they don't check content when it's uploaded (whereas There does). However, common carrier laws have yet to be pinned down for virtual worlds or, indeed, the Internet in general; in the UK we've had IPs successfully sued for "publishing" libels made in Usenet posts.

What you describe as being the case for Second Life certainly SHOULD be the case, but that doesn't mean the courts will necessarily see it that way.

Richard

8.

Richard,
The purpose of the DMCA Safe Haven is to do exactly what I described. I don't know about UK law, but in the US it is designed to allow companies that post data online to provide a mechanism for handling copyright disputes while pushing the burden of discovery and complaint onto the copyright holders.
Cory

9.

(For the record, IAALS or I Am A Law Student. Someone please correct me if I get any of this wrong.)

According to 17 USC 512 (particularly subsection (c)), the DMCA requires that a copyright holder must first ask an ISP to remove the infringing content before suing the ISP over it. If the content is promptly removed by the ISP then the copyright holder has no cause of action against the ISP. This does lead to an over protection of copyright works since the cease and desist letter can be fired off based on flimsy evidence and yet most ISPs will yank the content immediately to prevent a lawsuit. (Hence the Diebold debacle.) So by having this safe harbor built into the DMCA, copyright holders must engage in a form of self-help before bringing suit against an ISP AND if the self-help is successful then the copyright holder is precluded from subsequently suing.

This safe harbor provision was designed to absolve ISPs of liability for copyright infringement if they "act expeditiously to remove or disable access to the material." This greatly reduces the policing costs and potential liabilty of ISPs and allow them greater latitude in offering services to subscribers. (If the provision were not in place, imagine the safeguards ISPs would have to institute in order to reduce their liability.)

You'll notice that this section ONLY concerns ISP liability. The copyright holder can still file suit against the individual user regardless. However, since suits are costly and time-consuming, the copyright holder is unlikely to file suit unless: the user reaped a financial profit from the infringement, the infringement greatly injured or will greatly injure the copyright holder or the copyright holder is attempting to make an example of the user by vigorously protecting its rights (RIAA lawsuits, for example).

>Cory: User written EULAs: well, nothing really against that in our EULA (as Richard pointed out in a previous thread) and users could build something in world that required you to click "OK" but I have no idea of how enforcible that would be (any folks who start posts with IAAL willing to comment?)

Legally, as long as the user-driven EULA does not conflict with SL's EULA which all users have already agreed to, I see no reason that the user-driven EULA would not be legally enforceable. The usual EULA issues might come up but theoretically it seems okay to me.

10.

Interesting comments and article by James. Yet I'm missing something. Why? Why would we want to have a commons or go back to the draconian EULA?
Would we want that so that the guy building machinima doesn't get sued? So that someone selling virtual T-shirts doesn't get sued?
You can still safely play SL till you drop without getting sued in the comfort of your home, plus you now have the added warm and fuzzy feeling that if you design the perpetual motion machine, or the world's coolest algorithm, you get the rights to it.
The machinima filmmaker has to have as much care as he did before to not step on anyone's toes, and the T-shirt maker too. There are more toes you can potentially step on, and while initially that seems bad since the move is adding "toes" to the equation without adding "bodies" that generate entertainment, in the long run those "toes" are attached to people that are more motivated to pour content into SL with the expectation that it's still theirs.

BBS' (Bulletin Board Systems) all had EULAs, yet a seamlessly interconnected network of peers (the internet) where everyone keeps and develops their rights replaced them for all but the nostalgic. The hybrid BBSes (CompuServe and such) that provided gateways to the full-freedom Internet are largely gone or forgotten, their content -and the people creating that content- escaped like the building was on fire. Linden Labs just pulled the fire alarm at the conference. We are here talking about whether we need the fire or not. Personally, I'm evacuating the building... :)

11.

I'm confused here, are we talking about simply using restrictions built-in to the software to prevent direct duplication of textures and models and such? Or is there going to be some meta-mechanism for preventing copy-cat works? Will the first person to make a red halter top going to be trying to prohibit all other players from making red halter tops, even if they use their own skins/textures and whatnot?

How about functionality implemented through scripting? Can the first person to write a script that produces a bouncing behavior in a ball object prevent anyone else from ever scripting a bouncing behavior into anything even if they write their own script for it (as opposed to copying the original verbatim)? Or if someone scripts a pop-up menu can they prohibit anyone else from using pop-up menus in their scripts?

It seems like extending real world IP copy protection principles (messy and unweildy as they are) to IP newly created in the context of the virtual world practically ensures that some of the uglier battles and consequences of real world IP protection will be reproduced in the virtual world.

(Please excuse and correct any misassumptions or misunderstandings I'm making here. IANAL and furthermore I haven't tried out Second Life yet - I'm still researching it ;)

12.

Greg>2. Designer intent probably won't influence legal regulation of VWs

I've left the bulk of my comments on this article over at LawMeme, but I thought I'd comment on this one here, too.

If (advertised) designer intent does not influence the legal regulation of virtual worlds, we can pretty well kiss goodbye to ever having game-like virtual worlds thereafter. There is a paradigm difference between virtual worlds that invite reality in and those that don't. If reality decides it's coming in anyway, that makes all virtual worlds the same - not game-like. People can't play, because they're no longer in a play space, they're in reality.

I get the impression that you're in favour of having designer intention having no influence on the legal regulation of virtual worlds. Am I correct in that, or am I misinterpreting you?

Richard

13.

Richard,

(INAL)
Intent casts a different light on an activity when it comes down to sentences, it doesn't substantially alter what the activity in question is or was when it comes down to veredict. I don't see a special "intent shield" anyone can use to avoid anything here, unless designers are about to plead insanity, which would mean *no* intent but would still carry consequences.

14.

Bryan, your examples aren't accurate since all the items you mention previously exist. IP rights are about protecting newly-created things, whether they be images or expressions set in a fixed medium (copyright) or new inventions (patent) or a new name of a commercial business or enterprise (trademark). Everything you mention exists to some degree. Granted if you write code for a bouncing ball I shouldn't be allowed to merely copy your code if you don't want me to but I should be able to create my own code for a bouncing ball (thus getting around the copyright issues).

I'm conflicted on the designer intent point. Part of me wants to use it as a basis for categorizing virtual worlds. Then they can flourish in different environments and both groups are happy. However, intent is never consistently easy to pigeonhole and often becomes a muddy determination based on circumstantial evidence. Plus, intent can be manufactured or the evidence falsified.

In the end, I agree with Greg. Barring a *very* progressive judge, I cannot imagine a court blanketly distinguishing between gaming VWs and non-gaming VWs. (Why not lump them both together and create one set of rules that govern all virtual worlds?)

One possible way around this might be to not consider designer intent on its own but rather to examine the various characteristics of the virtual world together. Using designer intent as a factor instead of a categorical distinction, perhaps on a sliding scale ranging from "Bartle-worlds" to "Harvey-worlds," the court can come to different conclusions if the cases so merit. This may not be a very good answer since the two can bleed together to some degree but I don't see a court considering intent in any other fashion.

15.

Divine Shadow> I don't see a special "intent shield" anyone can use to avoid anything here, unless designers are about to plead insanity, which would mean *no* intent but would still carry consequences.

I'm not talking about "intent" to do with law-breaking (so someone who passes a house with an open window and impulsively steals money off the sill gets a smaller sentence than someone who goes home, picks up a hammer and smashes a closed window to take the money).

I'm talking about "intent" to do with creating something for one (the "intended") purpose and not having to take on board responsibility for things that people do counter to that purpose.

If I were a manufacturer of box cutter knives, I couldn't be held responsible if people used those knives to mug passer-by in a street. If I said I was making box-cutter knives but I engineered them so that they were better at face-cutting without enhancing their box-cutting features any, then my intent would make me liable. There's a grey area, in that if I manufactured a new box-cutting device that as a side-effect could be used to remote-detonate automobile fuel tanks, I'd probably be told to stop making my box-cutter because the secondary use was an unacceptable consequence of its primary use.

With virtual worlds, we have some that want to keep themselves separate from reality and some that don't. It's the former that concern me in this particular situation. They don't want responsibility for players' auctions, they don't want to cede any creative ground because of issues arising from these non-approved sales, and they particularly don't want to get sued for facilitating something that they have made every effort to stop. They created a virtual world for a particular, thoroughly legitimate reason; they shouldn't have to accept the consequences when people use them for (what they see as) illegitimate reasons. From their point of view it would be better still if they could use real-world law to stop those who they see as spoiling their product for the majority of its users.

Richard

16.

Alan Stern>(Why not lump them both together and create one set of rules that govern all virtual worlds?)

This would be acceptable if the rules took into account the distinctions between different virtual worlds. If they just treated all virtual worlds like they were Second Life or EverQuest or (if their track record is anything to go by) Quake 3, that would be a potential calamity for designers and players alike.

>Using designer intent as a factor instead of a categorical distinction, perhaps on a sliding scale ranging from "Bartle-worlds" to "Harvey-worlds," the court can come to different conclusions if the cases so merit.

It's not a sliding scale, it's a step function. You can almost regard it as a binary scale, although that's not strictly true (some virtual worlds won't allow any out-of-world communication, for example, whereas others will allow you to wish one another happy birthday). On the one side we have the virtual worlds that embrace reality, and on the other side we have those that embrace virtuality.

If you add a drop of coffee to a cup of tea, few people will be able to taste it. If you add a couple of drops more, suddenly everyone can taste it. This is fine if you like coffee, but not so fine if you paid to drink tea.

Richard

17.

Jeff and Richard:

What Alan said, though I was making the narrower point that legislative and administrative regulators won't see intent as significant, but will look to societal effect.

And I was writing descriptively and predictively, not normatively. See point 3.

The dangers of being laconic!

18.

To be a bit clearer -- I agree with Richard that pure VW gamespaces *should* be treated with separate legal rules if at all possible.

The problem is to articulate that position by reference to existing legal precedent and theory in a way that can be implemented in practice where the lines between game and non-game are often blurry.

So I'm thinking about that, but it is a serious project and it has not been done yet.

19.

Richard,
Separate from the discussion of whether or not fun and the real world can coexist inside virtual spaces, I think that the cat is out of the bag wrt commoditization in online spaces.

It's a shameless plus, but it is very apropos to the current discussion so I'm going to mention that my State of Play paper just got posted to the SOP page (Thank you, Professor Noveck!). One of the central discussions is commoditization and whether or not conventional MMORPGs can avoid it. The rest of the paper covers user-created content and ownership and is, in a way, a pretty fair counter-point to James' post.

Cory

20.

Cory,

We're all about shameless plugs here -- you should really summarize your essay as a new TN post since these comments get overlooked by some readers.

I've been in a WAP-only virtual ghetto for the past three days so I haven't got a chance to read it yet, but it sounds very interesting.

21.

Greg: "I agree with Richard that pure VW gamespaces *should* be treated with separate legal rules if at all possible."

I am still a little fuzzy on what constitutes "regulation" in this discussion. James's suggests that applying real-world law to *any* pvp dispute is regulation. His example of players suing a developer is easily distinguishable on the facts: it's a labor dispute. James struggles (and fails) to identify a clear and present danger. Greg and Dan cannot identify a meaningful virutal crime that is not also a real crime. Doesn't this all suggest something?

So what constitutes "regulation"?

I infer that Richard would prefer that the law actually provide Bartle-worlds affirmative protections (sort of reverse-regulation, as it were).

However, I remain unconvinced that VW's present such insurmountable hurdles for existing law. If they do, it is only insofar as the Internet has decreased transaction costs and network inertia. But the law has to address such issues notwithstanding games.

So convince me. Just one plausible hypo.

Designers should design to the law, not vice-versa. Let's also not forget that the law exists to manage inter-entity relationships and has a long evolutionary history. We should not make ad hoc changes. After all, the game-design process is much less dangerous than the legislative process.

If a game is designed (regardless of intent =P) such that the particpants butt against real-world laws, then we should disregard (some) of those laws because they are "games"? I don't think so. Let's not forget that we are all talking about for-profit companies looking to recoup large investments from players. I am leary of any entity that avails itself of the mass market, then cries "foul" when they get roughed up a bit.

Perhaps a meaningful distinction for "regulating" games would be love-intensive (as in "labor of," MUDs, MOOs, etc.) and capital-intensive (as graphical MMORPG). Still, I question whether a love-intensive game's players would often butt a legal barrier.

22.

Jeff --

The WAP device limits my text field, so I have to be terse if not cryptic.

Pure gamespaces allow participant interactions where legal rules are suspended or -- to claim less -- slighltly distorted. So, eg, whether you slash someone with a hockey stick on the ice or at the movie theatre significantly alters potential criminal and civil consequences.

Should the law approach VWs like regular ISPs or like baseball? I think it is a live question because some VW participants want to play games.

23.

Greg: "Should the law approach VWs like regular ISPs or like baseball?"

Why not both? Are they somehow mutually exclusive? I don't see how.

It's not that tort law doesn't apply to sports but that what constitutes tortious behavior is different given a participant's reasonable expectations (e.g. assumption of risk). I wouldn't consider that "different law," just different application.

Even James recognizes that most problems reduce to obvious results. That the case he cited didn't isn't because a game was involved, it was because EA treated persons as employees, but didn't pay them. All it tells developers is consider carefully your customer service policies. I don't see why a game company merely because it is a game company should be able to utilize free labor.

I argue: give me a plausible hypo for a problem, analyze it under existing law, and demonstrate why the wrong result. I would imagine that the resulting discussion would merely present normative arguments substantively similar (however evolutionary) to those that preceded it.

Jeff Cole

24.

After discussing this with friends over sushi and sake (sapporos, for me) (and, by not having to pay, I am more the richer in that respect, also) ...

Let's agree on the legal result before we argue the normative. That is why I suggest a plausible hypo on the legal result of which we can (largely) agree.

I don't think any player's alleged (by a developer) exclusive license of copyright would stand up to either trial or review. If for no other reason than the court (trial or appeal) would ultimately find that the "signed" requirement was not met. Note that a signature is *not* required for a non-exclusive license (which may be oral). And, isn't that convenient: clickwrap EULA's can probably grant non-exclusive licenses, but not exclusive licenses.

While many people disagree with Lessig that Code is Law, such people are short-sighted. Law is very much like Code. If it were trivial to write a "good" Law (that is, expressly draw any line whatever), then there would be no need for the judiciary, then developers could hard-code the Law.

The Law really exists at the margins and in the nooks and crannies.

Jeff Cole

25.

Jeff --

The line between "new law" and the application of old law & principles to new facts is a distinction without much of a difference. I don't have much stake in arguing the semantics--though I'm often invited to do so.

I'll get around to the hypos at some point...

p.s. I fixed the typos -- I'm very typo-prone msyefl.

26.

Richard,

"I'm talking about "intent" to do with creating something for one (the "intended") purpose and not having to take on board responsibility for things that people do counter to that purpose."

Grey area, I agree. Just look at the whole peer-to-peer file-sharing debacle, where a company creates a tecnology for one (stated) intent and the users use it for copyright breach among other things. And without going to that bleeding-edge example, we can look at VCRs and the lawsuits that technology had to endure.

27.

DivineShadow> Grey area, I agree. Just look at the whole peer-to-peer file-sharing debacle, where a company creates a tecnology for one (stated) intent and the users use it for copyright breach among other things. And without going to that bleeding-edge example, we can look at VCRs and the lawsuits that technology had to endure.

Bad examples. Barring a centralized server with the peer-to-peer (Napster), in neither of those examples does the technology creator retain sufficient control over the product or any infringement carried out with the product. VWs are somewhat unique in that they are explicitly operated by a company. As has been mentioned numerous times, the company retains the ultimate form of control over the VW, it can pull the plug. Once a VCR is sold or once a decentralized peer-to-peer program is in use by numerous people, the creator of the VCR or software cannot have an effect on any infringing use, nor can they halt all use altogether (should it become necessary).

Since there are (at least) two possible intents for creating and operating a VW and since the operator retains inordinate control over the content and in-game actions, VWs may merit a new approach as we are discussing. Else I fear that there may be a Napster-esque VW case awaiting the right circumstances.

28.

"Bad examples. Barring a centralized server with the peer-to-peer (Napster), in neither of those examples does the technology creator retain sufficient control over the product or any infringement carried out with the product."

Very true, thank you. Yet they have been/are in pretty hot water, while the model that did retain control (Napster) was burnt to a crisp. This would indicate VWs are that much more suceptible to regulation. So why would a VW merit special treatment while Napster got squashed? Because I like it? I did like the original Napster too, and it did serve a good purpose beyond the copyright breaches, which they did try to control.

29.

Divine Shadow>So why would a VW merit special treatment while Napster got squashed?

I think I found an example of where intent makes a difference (courtesy of this morning's issue of The Independent http://www.independent.co.uk/). In 1926, the Romanian artist Constantin Brancusi tried to bring his brass sculpture Bird in Space into the US. According to US customs law, anything made from metal was subject to a 40% import tax. Works of art were except from any tax. Prior to this, no works of art made of metal had come into the US, and the customs officials didn't see why this abstract lump of metal was a work of art. In the 1928 US Customs Court judgment, they decided that it was a work of art because it had been created as such. In other words, the intention of its creator was that it was a work of art, so that's what it was.

Once in the US, it could have been melted down of course and treated like it was merely a lump of metal. As it happens, it's now in a gallery in Berlin instead.

VWs deserve special treatment because they're special. If they cease to be afforded the special treatment, they cease to be what they are.

Richard

30.

Divine Shadow>So why would a VW merit special treatment while Napster got squashed?

Look at the Grokster case (Metro-Goldwyn-Mayer v. Grokster, C.D.Cal 2003) as compared with the Napster case (A&M Records v. Napster, 239 F.3d 1004, 9th Cir. Court of Appeals 2001). Grokster was not liable while Napster was shut down. Why? The court used the operator's knowledge of infringement as compared with their ability to halt or control the infringement once they became aware of it. As my prof. put it:

"Grokster distinguishes Napster on the grounds that the defendants do not have knowledge + the ability to do anything about it at the same time and because there is no centralized “place” for the infringement."

Once aware of infringement, Napster could stop the misuse while Grokster could not. Ergo, Grokster lives and Napster dies. (It's not quite so cut and dry nor is there necessarily wholesale agreement concerning how these cases came out and the arguments used by the courts.)

31.

Alan,

Like you mentioned, with VWs being run in a centralized manner, if they step into regulated territories of the law they are just as vulnerable as Napster. I'd like to add an observation to your Napster/Grokster comment: Napster had the control to prevent misuse, and used it extensively, yet this control -owning and controlling the database- was not enough to prevent the infinging activities from taking place in a substantial manner. I see a parallel here between a VW attempting at all costs to steer clear of regulations, yet being dragged into them by two factors: It's presummed control of the environment, and it's ultimate inability to regulate it. Essentially Napster was told: You can either regulate it or leave. Unable to regulate it, it was shut down. Perhaps the key point here is that they were not unable to regulate it due to lack of funds or technology (they had oodles of both), they were unable due to the will of some (and not all) of it's users.
Are we bound to see a Napster-esque episode with a VW? I believe it's quite possible if we keep deluding ourselves on how much impact creator-intent has, how much control a draconina EULA has, and how much pressure it's enforcement excerts.

Richard,
"VWs deserve special treatment because they're special. If they cease to be afforded the special treatment, they cease to be what they are."

I haven't seen VWs get special treatment thus far. They have been largely overlooked, which is different. And I wonder here, just *what* are VWs? Are they an inconsequential game? A perpetrator-safe sexual assault and harassment environment? A tax shelter? A goods laundromat? A mind-control scheme? An interntational trade/embargo/boycott avoidance mechanism? A shelter for racial hatred and violence? A monopoly? Which one of these regulations are we going to shelter VWs from? Which one of these are we going to let VW users and operators get away with?

32.

DivineShadow> Great points re what shelters VWs might want. If I'm reading Richard et al correctly, they mostly want shelter from eBay (we disagree on whether that is possible, but I look forward to seeing people's thoughts on how to do it). Clearly, shelter from the other issues you describe is not (and should not) happen.

For additional discussion on this point, check out the Alphaville Herald's discussion on Maxis' response to alleged child abuse.

c

33.

Cory,

I also get the same vibe of where Richard and some are going with this. It seems mainly aimed at insulating the internal economies of these spaces from external factors. I want to point out that it's not a simple exception, where we can just let the metal statue through customs and be done with it, where the most harm done could be the opening of a loophole that later needs patching. The issue looks simple on the surface but has such deep ramifications that it seems an insurmountable task... You can't write a law that simply says "VWs are hereby shielded from external economies" without contradicting many previous laws that have kept our modern civilization running for quite a while. What happened to property, to taxes, to liability, to public interest, to international treaties, to fair trade, to false advertising, to consumer safety, to monopolies, to tort, to consumer rights, to embargoed countries, to denied-parties, to export controls, to anti-boycott measures, to information privacy, to freedom of expression, to everything else? To hell with it? Because we want to play a game?... Seriously??

Just like in other more traditional "games" (sports, board games, etc) I believe you can expect whatever happens completely inside the game to be largely unregulated to a certain extent, but on the points where the game touches reality and forward, it's laws and regulation all the way. Unless somehow online games (like sports) become a major national interest before lawmakers wake up, I see little chance of these VWs getting special exceptions to anything. ... It would seem almost like on one side of the fence we might want status-quo for VWs to thrive, but on the other side of the fence the rest of society wants status-quo for the certainty it provides them. I don't think the emergent behavior of VWs has a snowball's chance in hell of getting a free ride here unless it can take the society it's embedded in by storm. ... Asia is a good example of this emergent behavior taking national-interest proportions before policymakers woke up, once they did they moved to protect what they presently had; had it not been this way I'm sure they would have moved with the same goal in mind: "Protect what they had". Except what they had would have been everything else and the intruder upon the national interests would have been these VW thingies.

Now, don't get me wrong. I love these games. I wouldn't be here typing in the middle of the night if I didn't. But when I see thought leaders in VW design pining for divine intervention to shield them from the oncoming "meteorite of doomsday" (or "lawsuit from hell") I get more than a little worried. No amount of wishful thinking is going to keep the meteorites (or the law) away, only using our brains and building ahead something that can cope with, work around, and deal with the oncoming event is going to allow for survival and growth. Everything else will be fossilized or pulverized.

34.

Divine Shadow>I haven't seen VWs get special treatment thus far. They have been largely overlooked, which is different.

They haven't been given special treatment, you're right. They may not actually need it, if EULAs do the trick (although at present we're finding areas where these are not effective, eg. eBaying). I'm arguing that it's worth considering giving them special protection so as to pre-empt your "meteorite of doomsday" (I prefer this to "lawsuit from hell" because it may be the government, not the courts, that causes the devastation).

I think this is a worst-case scenario, though. I doubt any decisions will be clear cut for years to come. Also, the way the USA goes may not be the same for other countries; we could get "offshore" virtual worlds for places with developer-friendlier jurisdiction, although that wouldn't stop players from suing one another in the USA.

Some VWs don't want special treatment, which is fair enough. Others might benefit from it.

>And I wonder here, just *what* are VWs?

Places. Read my book *grin*.

Richard

35.

Greg: "The line between 'new law' and the application of old law & principles to new facts is a distinction without much of a difference."

I agree only in part and only so long as the discussion is among lawyer-types who understand that the distinction is largely semantic. However, in a forum of non-lawyers, I would err on the side of caution and make clear a distinction between "new law" and "application of old law to new facts."

Because many will infer solutions of nine parts bathwater and one part baby.

I look forward to any hypos that you conceive.

Jeff Cole

36.

Jeff,

I disagree -- how would you draw that distinction and why should it be drawn?

I guess if you amend a statute, you can say that is "new law" by definition, even if it is an "old" statute you are amending -- but if you apply an "old" statute or "old" legal doctrine to a "new" set of circumstances, is that "new law" or "old law applied to new facts" -- presuming the result of the application was unclear prior to the decision?

This dog has chased its tail before. David Post has been much more eloquent than me in pointing out exactly what one might mean by "exceptionalism" in this context:

http://www.temple.edu/lawschool/dpost/Cyberanarchy.PDF

p.s.

> Because many will infer solutions of nine parts bathwater and one part baby.

I'm not clear what you mean by this.

37.

"I'm arguing that it's worth considering giving them special protection so as to pre-empt your "meteorite of doomsday" (I prefer this to "lawsuit from hell" because it may be the government, not the courts, that causes the devastation)."

Richard,
I'm a little concerned about this. Specifically about going at it this way. Why? Because you/me/we do not have the critical mass needed to bring about the protecitions that would be neccessary for a VW status-quo; where even that status quo would actually mean a reversal or "rewind" of change in some areas (the eBaying, etc). Without this critical mass, rallying for non-regulation seems more likely to bring about just the opposite.

VWs are not even a blip on policymaker's radars, you propose appearing as such a blip. I argue if we're going to show up as a UFO blip on their radar and want to be embraced -and not blown out of the sky- then we need to build the Death Star before decloaking. Nobody says this is easy or that it can be done without any compromises, but there doesn't seem to be very many alternatives.

">And I wonder here, just *what* are VWs?
Places. Read my book *grin*."

It's obvious to you, it's obvious to me, but put yourself in the shoes of those same policymakers you want on your side, and suddenly they look like venues where some very regulated behavior can escape the long arm of the law. If you plan on persuading them to let you get away with it, you better have just blown up Alderaan. :)

38.

Greg: I don't really have a stake in arguing this either. I would distinguish "new law" from application to "new facts" in terms of the arguments to which such application reduces and the norms that it implicates. Are we struggling with the same issues of copyrightability as we always have? Are we construing contracts? Certainly the mere act that I am applying contract principles to a new contract doesn't create "new law." "New law," for me, is an evolutionary step. I am not convinced that virtual worlds per se present such a step (they might well, I am just not convinced).

That is, do we end up in the same old nook (which may indeed be dark and nasty enough) or do we end up in a "new" cranny? Do we end up in a "maze of twisty little passages ... but this passage is a bit different"?

Perhaps for lawyers there is not much of a distinction. For non-lawyers, there is likely a a substantial inferential distinction: you say we need "new law" and people infer that means lock, stock, and barrel. Hence, my (admittedly strained) pun on "solution" and the cliche about a baby and the bathwater.

I am much more interested in developing/discussing a plausible hypo.

Jeff Cole

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