SoP2: Avatar Rights, Virtual Liberty, etc

Panel number 2, and we have Eddan Katz chairing and Peter Ludlow, Jack Balkin, and Fred Schauer chatting about rights-related issues, and specifically the movement across the boundaries between the real and the virtual.

Peter kicked off the session, recalling his misadventures with Electronic Arts which have been reported elsewhere. He did a nice job of recounting the level of censorship that he and others have been subjected to in TSO and in the boards that support the games (Stratics, etc).

Fred Schauer was interested in discussing the structure of governance and the role of speech within the governance structure. As a virtual world outsider he questioned the novelty of virtual worlds regulation, reminding us of the early claims that cyberspace was a separate jurisdiction (I'm going to be talking about this later today, so I'll post more then on this topic). And of course his argument is (partly) that virtual worlds are nothing new, move along, nothing to see here. I've seen this type of rhetorical argument before--Frank Easterbrook's Law of the Horse being the most obvious example--and it troubled me then and it troubles me now. Yeah, yeah, I agree that the claims for total novelty of social relationships in VWs are overblown, and need to be reigned in. But it seems to me to be wilfully blind to claim that there are no new forms of community being developed here, no new problems that might emerge from trans-jurisdictional communities, and so on.

But in fact, once you parse out this aspect of his talk his argument isn't really about "there's nothing new here" but a criticism of assumptions that free speech must apply in virtual worlds. This is a variant of the "First Amendment is a local ordinance" claim and I happen to agree with him. Why should it be that we assume that the American experience--which is unique and not followed by any other democracy in the world--is one that naturally should apply to a virtual world?

Jack Balkin then summarized his "Virtual Liberties" article, which readers can find here. His focus was on the private censorship aspect of his paper, which is mostly found at Part V (I think). He added to the paper by picking up Ted C's idea that games/VWs should establish charters ("interation statutes") that define the nature of the speech (and privacy) rights that the worlds provide for. The upside for the devs is that they get held-harmless by the RW law if they comply with their interation statutes.

Comments

[Peter S. Jenkins]

1.

I viewed the streaming video session of the freedom of speech session and I must say that I was rather disappointed. Peter Ludlow's anecdotal presentation about TSO was basically last year's news and there is nothing new there. Fred's presentation was essentially a repeat of the theories put forward by Jack Goldsmith in 1998 that real world laws should apply. Jack Balkin's presentation was the only one that involved any relatively new material and ideas, but I have some concerns about what he is suggesting:

1 - Jack's notion of the problem of "collateral censorship" (i.e. where the game owner censors the players to avoid vicarious liability) is a bit misleading. First, the game owner is shielded from liability because of the provider immunity under the s.230 of the Communications Decency Act (one of the few provisions in that act not struck down as unconstitutional). Second, even without s.230, a MMOG is not a "place of public accommodation" under the Civil Rights Act since it is not a physical location (see Noah v. AOL Time Warner). Therefore, the game owner cannot be held liable for allowing a "hostile environment". There is a reference to this in a footnote near the end of my paper.

2 - Jack's hypothetical example of "The Gulag Online" is interesting, but who would ever play such a game? Perhaps there might be a game in which a small private gated area inside part of the game was devoted to such an absurd scenario and a few individuals might be deranged enough to submit to it, however, free speech would not apply inside such a gated area since there was no effective public access.

3 - Jack made little or no reference to the concept of commodification that he discussed in his paper, i.e. that worlds that contain elements of commerce should be subject to free speech whereas worlds without it should not be subject to free speech. I can understand why in view of the information that came out yesterday that the level of trading in on-line currencies and goods is approaching $1B annually in the case of IGE. It is becoming evident that the attempts to snuff out such trading in role playing games through the EULA and TOS are basically futile, like trying to ban prostitution or marijuana-smoking in the real world. Therefore, all such worlds are essentially commodified. Instead of commodification, Jack is now advocating Ted's "interration" model with the incentive added that game owners that agree to interrate will be protected from vicarious liability for the speech of the players (from which they are already protected - see point #1 above). Therefore, there would be little or no incentive to "interrate".

Peter

[Richard Bartle]

2.

Peter S.Jenkins>Jack's hypothetical example of "The Gulag Online" is interesting, but who would ever play such a game?

As a general point, laws shouldn't be framed on the basis that "why would someone want to do what the laws might prohibit?". Just because you can't see why, that doesn't mean others don't. I can't see why people collect the numbers on the sides of trains, but that doesn't mean I'm in favour of laws being drafted that are slack enough to cover this activity.

Anyway, to answer the question (which I know is only a small part of your post - it's just the part that made me snap!): people might play such a game because it's fun. I've played "escape from a prisoner of war camp" board games and found them to be enjoyable; I've no reason to suspect that a virtual world along the same lines wouldn't also be enjoyable (indeed, I like very much the idea in that it has a "win" condition - escape). The lack of what in the real world are liberties is acceptable because they're part of the game. I would be disappointed if I could speak openly about escape in front of guards, or wave my digging equipment in their faces - I'd expect to have to be quiet around them or to have my stuff regularly confiscated. It's part of the game. You may not find it fun, but no-one is making you play it.

Richard

[Peter S. Jenkins]

3.

Richard>I've played "escape from a prisoner of war camp" board games and found them to be enjoyable; I've no reason to suspect that a virtual world along the same lines wouldn't also be enjoyable (indeed, I like very much the idea in that it has a "win" condition - escape).

Richard, your board game sounds very "Hogan's Heroes-esque" and I agree with you that a MMOG version of it might be fun. In terms of the freedom of speech issues there, any problems could be mitigated by considering the camp itself to be a private gated community where, as I have noted, freedom of speech rights do not apply. The interview process to meet the requirements of "membership" in such a community could be worked into the game's story. (Colonel Klink seated behind a wooden desk, Shultz hovering nearby etc. "Zo Mr. Bartle(tt), vere did you zay you ver from again?") Returning to Jack's example, though, in all seriousness, as a person of Russian descent whose relatives were murdered and wrongfully imprisoned in the Gulag pursuant to Stalin's orders, and having heard about the experience directly from those who have suffered it in real life, I can tell you frankly that a realistic online role playing game "The Gulag Online" would not only be hideously disrepectful to the memories of the millions of those killed under Stalin and also in the Holocaust, but would never in a million years attract enough paying customers to be viable commercially (thank god!)

Peter

[Richard Bartle]

4.

Peter S. Jenkins>as a person of Russian descent whose relatives were murdered and wrongfully imprisoned in the Gulag pursuant to Stalin's orders, and having heard about the experience directly from those who have suffered it in real life, I can tell you frankly that a realistic online role playing game "The Gulag Online" would not only be hideously disrepectful to the memories of the millions of those killed under Stalin and also in the Holocaust, but would never in a million years attract enough paying customers to be viable commercially (thank god!)

And yet at the conference I spoke to Michael Rand of Tikkun Magazine about a virtual world he wanted to construct that showed the full horror of Nazi concentration camps in action. His reasoning was that descriptions by ageing relatives and footage of interviews of death camp survivors might give people a certain level of intellectual understanding of what went on, but by participating in a virtual world set in a death camp people would gain much deeper insights into what was involved. They'd have to make decisions themselves - obviously not with the same real-life results that the guards and prisoners of the time did, but nevertheless causing more reflection than watching the interviews and talking to relatives.

OK, so this is perhaps a worthy kind of game that you'd be prepared to allow. You may still hold out for having a "fun" game based on such a world.

Many prisoners of war in Nazi Germany were killed trying to escape. Hogan's Heroes trivialised their experiences. Nevertheless, it had a role to play in showing that the world had returned to normality - that the war was over. We had a UK TV comedy in the 1980s that was set in occupied France, "'Allo 'Allo", which trivialised the experience of the occupied French and made out that the occupying Germans were amiable fools. When German TV executives watched some episodes with a view to buying it, they were horrified. "This will never appear on German television" was one comment. And yet, a decade later, it was watched and enjoyed. It played its part in the catharis that the youth of Germany had to go through to escape the guilt of their grandparents' generation.

I'm not saying that the time is right for a Gulagworld right now, either as an educational tool or fun game. I am, however, saying that the time might be right some time in the future, and just because you can't see a reason why people might play those games today, that doesn't mean we should not leave open the possibility that other people might see a reson to play them tomorrow.

There's another possibility, of course, which is that people create a game like this as a means of allowing themselves to derive sadistic pleasure. I can see why a real-world country might want to invoke laws to restrict the involvement of its citizens in such games. That then brings it into the realm of censorship, which I'm happy to leave to the experts.

Jack's "Gulagworld" was a thought experiment anyway. If you find the particular subject matter distatesful, let's use a Science Fiction world or the world of ancient Rome instead. They can bring up the same "consent to not having freedom of speech" issues that Jack's example was targeting.

Richard

[Peter S. Jenkins]

5.

Richard>And yet at the conference I spoke to Michael Rand of Tikkun Magazine about a virtual world he wanted to construct that showed the full horror of Nazi concentration camps in action.

These types of virtual worlds would fall into the support/therapy category and would not be subject to freedom of speech rights under the company town principle on the basis that prospective visitors should, before admission, be screened and/or interviewed, thereby giving these worlds the character of a gated community as I noted previously. You don't want a visitor to such a world to even briefly be exposed to some Holocaust-denier crackpot who blurts out some nonsense before being ejected, so interviewing prior to admission would help avoid this, as well as ruling out freedom of speech rights in such an environment. Also, visits to such a world would necessarily be relatively brief due to the intensity of the experience (not 60 or 70 hours per week like some EQ players) so the company town principle does not arise. Anyone who wants to spend 60 or 70 hours a week in such a world as a virtual Nazi prison camp is probably deranged or perverted and should be denied admission, unless he or she is doing this for bona fide research purposes (which is again where the screening/interviewing comes in).

If you are going to the AC conference in Stanford next week we can chat there in person.

Peter

[Richard Bartle]

6.

Peter S. Jenkins>You don't want a visitor to such a world to even briefly be exposed to some Holocaust-denier crackpot who blurts out some nonsense before being ejected

I don't know what the plan is. It may be to allow such people to perform, on the basis that they're doing their cause more harm than good.

>Anyone who wants to spend 60 or 70 hours a week
>in such a world as a virtual Nazi prison camp
>is probably deranged or perverted and should be
>denied admission, unless he or she is doing
>this for bona fide research purposes

If it were an accurate depiction of such a camp, yes; if it were Hogan's Heroes style, no.

Actually, the main board game I've played that has this "escape from a prisoner of war camp" premiss is neither trivialising nor eulogising. Called "Escape from Colditz", it was developed by someone who actually did escape from Colditz, and gave some sense of the intellectual activities that went on while not touching much on the emotions. In other words, if the player playing the guard used a "shoot to kill" card then you were annoyed you'd lost a pawn, not horrified that a prisoner had been gunned down.

>If you are going to the AC conference in
>Stanford next week we can chat there in person.

I won't be, unfortunately - I can't afford any more trans-Atlantic flights for a while!

Richard

[Peter Ludlow]

7.

I have to say that like Peter Jenkins I was disappointed in this session (especially my contribution) but I don't agree that Peter has correctly diagnosed the weaknesses in the session.

One thing, I don't see how you get "real world laws should apply" out of Fred's contribution. He seemed to be saying just the opposite -- that different worlds should experiment with different conceptions of free speech rather than just the Justice Brennan construction of it.

But here is a point where I think the session lacked clarity. Who is it that Fred was talking about? Who is adopting this conception? Certainly not the gamers themselves (nor the game devs) who are happy to remind me at least that US conceptions of free speech don't wash with them. After the talk he clarified that he meant commentators like me were the Brennanites, but now I wonder why we shouldn't be able to pick a winner among diferent conceptions of free speech and defend them accordingly (its not like I haven't *considered* other conceptions). And I'm perfectly happy to allow games that restrict speech as part of the gameplay (imagine a "don't criticize Pharoah rule in ATITD -- fine by me).

But here is another point of unclarity. Were we talking about in game speech or discussion of the game outside of the game. My getting banned by EA pertains to the latter case. And Fred set this up like his position was in contrast to Jack's, but probably not if you clarify the positions his way: Jack would say that restrictions of in game free speech are perfectly fine for many kinds of games, but if games become or are set up as large free speech areas, then that is/can/should/will be protected eventually. So despite appearances it now seems to me that those two guys would have nothing to disagree about after everything was clarified.

As for the "nothing new" in my talk, that must have been an expository failure on my part, since it was really a talk aboutthe aftermath of the banning as it played out on the Stratics boards -- so it was really a point about the role of Stratics as the official agora for almost every MMORPG and how it has become, in large measure, a no free speech zone and is in fact used to cultivate ugly personal attacks against perceived enemies of the game corps. I'm just not used to giving talks that are so compressed; it might have been better to get straight to stratics, but then not everyone knew the background, yadda yadda yadda.

I did like the "interration" model a lot, but I came away with a zillion unanswered questions about it. As for the criticism that s.230 covers this already, well I took Jack's position to be about the future trajectory of legal and legislative behavior and a kind of prediction about how the law *will* begin staking out positions because of the commercial aspects of these games. Seen in that light s.230 may prove to be a bit ephemeral (quite apart from how courts may interpret it today).

But having seen the video feed on that presentation I'm mostly unhappy with my performance because the power point presentation swallowed up the talk and I wasn't communicating jack squat.

[greglas]

8.

Fwiw, Daniel Terdiman ran a story today in Wired on this panel.

[dmyers]

9.

On the "interation(?)" thing...

This switches "if you don't like it you can leave" to "if you don't like it, you can stay away." But, of course, how do you know you don't like it if you never really *experience* it?

Therefore, two questions puzzle me:

1) As an artist/designer, why would you want your potential audience to make a substantive decision (and perhaps that audience's ONLY decision) about the nature of your art/design prior to *experiencing* that art/design? I can surely see that legal protection is worth something -- but is it worth this?

2) As an audience member (eg player), wouldn't you bypass the "interation" template as quickly and as meaninglessly as you currently bypass the tos? Is this really just a lawyeree trick to avoid (successful) litigation or would it in fact have some meaningful value to the audience?

[greglas]

10.

Another story in Wired, this time on the Saturday workshop.

[Richard Bartle]

11.

dmyers>As an artist/designer, why would you want your potential audience to make a substantive decision (and perhaps that audience's ONLY decision) about the nature of your art/design prior to *experiencing* that art/design?

I wouldn't.

However, I would rather do that than have them come in, find they didn't like the experience, then sue me. Ideally, interration (or some equivalent) should be the default, as it is with with other games. However, given the initial lack of understanding of the issues that we can expect from judges, this explicit form of protection might be just what we want.

Also, given what's on offer, I'd expect all the big virtual worlds to take up interration. This would mean that people wouldn't choose a non-interrated world over an interrated one, because they'd all be interrated.

Richard

[DBM]

12.

"The Myth of OWN"

A lot of spewing is happening over this topic, like a bunch of whales gathered offshore of the great mythical island of MMORPG - where you can see jets spouting from dozens of blow-holes, but the truth of the matter lies just below the surface.

First, consider that none of the participants whom play MMOPRGs bring along any of their own characters. So look at all the concern and intellectual gibberish as enlightening, but realize it's all somewhat frivolous, because the only investment any real life people have is their time and subscription fees.

Lets look at television a second. If you spend hundreds of hours and years watching TV, does that time suddenly become your "vestment" and then your own intellectual property? No, not at all, but you went through the exact same motions as you would in an MMO. You pushed buttons, and you paid your monthly subscription fee. Players bring nothing into the game except expectation, imagination, mental participation - and button pressing - and that is the same thing they bring into today's cable television programing, or even a movie theater.

In almost all cases (especially in many of today's "chat n' slash" so called MMORPGs), it is not any more involved physically or mentally than would be pressing the TV/DVD/Stereo remote control buttons "on" or "off" a few thousand times each day. Shocking as it may sound, it can be measured, and the measuring presents the facts in terms of "burden of proof" in a court of law.

Although we would like to argue that we "own" the characters that we have leased to play with, in a world that has been provided for us to play with, the fact is that when the power goes off, you actually have nothing more than your memory. A virtual memory at best, and a lot of hours of your life spent that can never be replaced. So it is important that you make the most of it virtually - one way or another if that is what your going to spend your life on, it is really measured in heart-beats - scientifically/factually speaking. If one had to measure life, and present it to a jury, the only factual evidence of your real life is the "tick tock" of your heart beat - measurable over time! That is why when someone makes a heart stop - it's called "taking a life."

The bottom line is this... In a court of law, presenting burden of proof, here is the hardest piece of evidence. Have the defendant seated in a chair with a controller attached to any PC or TV set for 1 hour. Measure the button pushing results and present them to the jury. Then have the defendant push the same controller buttons attached to his/her favorite MMORPG game. Measure those results and present them to the jury.
Nothing changes, except the amount of time and/or frequency of button pushing (more or less).

The real question is, what happens inside the players' brain while all this is going on? How does it suggest to them, that what they have leased is owned? Is the amount of time spent pushing buttons, chatting, and watching, when measured in terms of brain-waves any more or less intellectual property than it would be if we could sell it on eBay?

Here is where the difference lies. TV doesn't give you anything to play with except a remote. If you record TV shows, DVD's and make copies of them, and sell them, you break Federal Law. However, in an MMORPG, you can't even make a copy of your character, but you can sell the account, or YOUR ID. Therefore, any game intellectual property already belongs to the studios that created it, because you can't copy it or touch it in anyway shape or form, no matter how hard you try. YOUR ID is really nothing more than your LEASE AGREEMENT, because you subscribed to it, and you don't even own that, and often enough - other players have even thought of the name you intended to use!

This will never change until people create their own characters and their own world, but then they will most likely want to protect their time and intellectual property as well, so the whole process cycles over again, and again. It was stated on "Terra Nova" that "players make the MMO tick" and that is like saying the "chicken makes the egg tick." In reality, virtual or not, "Developers create the environments by which players tick" otherwise players wouldn't have to go out and lease them.

Personally speaking, I have always thought that selling an account can be a good thing for both the game, the publisher, and the person through with playing it. The problem is, that eBay is making money off of players selling their "lease" agreements (accounts), For Frontier 1859, we planned long ago for people buying and selling accounts that we began to realize those items as "hobby-kits." We really like the idea of creating a hobbyist based world with a dynamic environment (rather than persistent) so it was decided that the fees would go back into the game and development, which will benefit the players, keeping the whole "chicken or the egg" process in the hen house (sort of say), rather than some non sequitur third party such as eBay earning a percentage off of our lease agreements.

-Excerpted from Gamebunny.com featured article.

[Brask Mumei]

13.

DBM> "First, consider that none of the participants whom play MMOPRGs bring along any of their own characters."

If this were true, there'd be no need spend all that money on bandwidth. MMORPGs could be a purely broadcast medium, like TV.

Players *do* bring something to the experience.

DBM> "the fact is that when the power goes off, you actually have nothing more than your memory."

I also have over 800,000 lines of journal logs from playing Ultima Online. That's pretty tangible. I also have stories written in game that have been moved outside of the game.

(Of course, I really don't have any of this. EA asserts copyright on anything done in game, so any attempt to copy my own words from those logs represents infringement.)

The entire diatribe on button mashing is completely irrelevant. Writing a novel merely involves smashing buttons on a keyboard. The same set of buttons as most MMORPGs use. (Indeed, thanks to the chat & slash nature, an MMORPG button output probably correlates stronger to that of a novelists button pressing than to a single person player game's output)

- Brask Mumei

[Matt Mihaly]

14.

Brask wrote:
>I also have over 800,000 lines of journal logs from playing Ultima Online. That's pretty tangible. I also have stories written in game that have been moved outside of the game.

Similarly, I could have hundreds of thousands of lines of notes I took while watching TV. Doesn't mean I have any claim at all to ownership of anything to do with the tv programs I took notes on.
--matt

[greglas]

15.

Fwiw, Wired runs letter to editor about previous article and frothing net speech activists who don't understand the First Amendment.