The Future Lawyers' Expedition Meets Second Life: Struggles, Discoveries, Fascinations, and Concerns

A Project by Elizabeth Townsend Gard and Rachel Goda

After obtaining five arcane rings, Anya rushed back to the Lord Nagafen in the Solesek Eye to deliver the mystical rings and received a final mission from him to defeat Darather, the dragon residing in the Isle of Refuge.  By dawn, Darather was defeated by the hands of her allies, twenty-four of the best fighters and healers in the land of Norrath.

This is the fascinating virtual life of my (Rachel Goda) avatar, a level 70 high elf wizard, in Everquest II (EQII).  I was once one of the first twenty-four players (members of my fellow guild, Nerfed), who completed the end-game of EQII and were rewarded with the rarest artifact at that time, the Prismatic Rod of Scale, on the Oggok server.  My real life profession may not be as exciting as a wizard but is also one that I enjoy: I am a second year law student, who passionately studies and researches legal issues surrounding Massively Multiplayer Online Role Playing Games (MMORPG) and video/ PC games.  My passion for the video/ online game industry eventually directed me to the journey into Second Life with Professor Elizabeth Townsend Gard and her first year property law class.  It is such a privilege to have an opportunity here on TerraNova to share my unique experience with Professor Townsend Gard in launching the Second Life virtual property research project.

Significance of This Project (Personal Opinion)

It was when I was discussing with Professor Townsend Gard about my interest in the legal issues of the game industry last semester that she first asked me to assist her with the Second Life project (discussed further details in her article post on April 2, 2007) in her first year property course.  The project interested me primarily for two reasons:  first, the property issues in MMORPGs had been one of my strongest interests of study; second, I was interested in observing how quickly a law student could improve their competency in dealing with a virtual world like Second Life. 

Growing popularity of MMOPRGs had already brought the issue of ownership rights in virtual worlds, and the appropriateness of what was called “real money transfer (RMT)” into an increasingly public light. However, the launch of Second Life took this issue to a whole another level.  While Blizzard Entertainment (Blizzard) claimed all data on the World of Warcraft (WoW) service was the property of Blizzard and restricted the in-world property trading outside of WoW as well as RMT, the launch of Sony Online Entertainment's Station Exchange service seemed to indicate that the in-world item trading and RMT might be an acceptable part of MMORPGs.  Linden Lab, a creator of Second Life, introduced a system in which players can freely trade their in-world objects (Linden Exchange) as well as a system to convert their virtual money, Linden Dollars, into real money, both US Dollars and certain foreign currencies (Linden X and other online permitted sites).  More importantly, Linden Lab’ Terms of Service agreement recognizes residents' right “[to] retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.”  This practice, significantly blurring the distinction between a virtual world and real world trading market, leads us to an ultimate question - “What do we really own in the virtual world?” 

In addition, I was interested to see how law students in their first year would perceive and interact with this cutting edge issue, without having strong background knowledge in MMORPGs or virtual worlds.  In the past, I had several opportunities to observe a local attorneys’ level of understanding virtual worlds and the relevant legal issues through regional conferences and seminars.  Participating attorneys in general seemed to lack the awareness of how virtual societies and economies functioned.  The majority probably did not even know what Second Life was.  These experiences were discouraging to me as a law student, considering high probabilities of us encountering more virtual property cases like Bragg v. Linden Research, Inc. in near future (Bragg, a plaintiff, allegedly exploited the game play in Second Life and, thus, was banned from the Second Life community by Linden Lab. The plaintiff now demands compensations on his lost virtual property in Second Life).  Needless to say, appreciating the system of virtual world is a key for law makers effectively regulate such an environment.  But how can legal communities achieve that?  Is it even practical to think that legal communities can increase their awareness over virtual worlds as they did so with the internet fifteen years ago?  In this Second Life project, each student group received only one week to learn about Second Life and complete their research project of a given property issue.  I believed that the project would not only allow me to observe how future lawyers interact with a virtual world but simultaneously provide students a fantastic opportunity to peek at the complex virtual world legal issues in Second Life.

Launching the Second Life Project in a 1L Property Course

My role in this project was mainly to guide students into the virtual world of Second Life. The entire class was divided into thirteen small groups, and I meet with a new group every week.  Each group receives one week to explore news and legal issues surrounding Second Life.  Students were scheduled to meet with me twice during the week and twice with Professor Townsend Gard.  In the first meeting, I teach students how to play Second Life, including such things as how to move their avatar, how to take screenshots, how to change avatar appearance, how to find locations and events in-world, and how to store and retrieve items in Fizzy’s inventory (Fizzy Soderberg is our avatar).  In the second meeting, I help students with technical difficulties they have experienced while conducting their research (i.e. how can I find out what happens to real property and improvements when the property owner is banned from the game?) and assist to identify legal issues and understand the implications (i.e. What are the reasons why Linden Lab may be liable to residents’ IP rights infringement?  What are the underlying problems determining whether we should apply real property law on virtual property in Second Life despite Linden Lab’ terms of service assuring residents’ property ownership?).  Professor Townsend Gard’s goal is to increase awareness among her students that virtual worlds and existing laws are trying to connect but the process is currently very unstable.  My ultimate role was to help students to be exposed to the issues both in-world and outside of Second Life, understanding the nature of virtual environment and distinguishing Second Life from other main stream MMORPGs.  During the third meeting, groups report their research results to Professor Townsend Gard (I may or may not be present).  After completing these 3 meetings, each group screencasts its PowerPoint presentations with Professor Townsend Gard. 

After careful preparations over a few months for the project with Professor Townsend Gard, our project finally took off on January 18th, 2007, with a guest speaker from Linden Lab, Daniel Huebner (Director of Community Affairs).  He kindly gave us a speech about what Second Life was all about and how ownership in Second Life worked.  And, of course, this meeting took place virtually in Second Life - at a junk yard in Dan’s virtual estate (Thank you, Dan!).

“What is Second Life?” to “How can we resolve property issues in Second Life?”

My biggest concern assisting students with the Second Life project was that students may end up wasting hours struggling not being able to operate smoothly in Second Life. The structure of MMORPGs often can be very complex, especially to those who have no or limited experience with this type of games. Although whether Second Life is a game or not is an undecided subject, it is fair to say that it still retains some complexities similar to those of traditional MMORPGs.  The virtual world is enormous, and it could, for some, take days and weeks to learn how to play.  For example, controlling the movements of an avatar in Second Life will not be an issue if one has played an online game before (i.e. Online gamers universally know that W, A, S, and D keys are to move forward, left, back, and right, respectively.)  It could take hours for some people to figure out this most important, simplest movement if they have never played MMORPGs.  Thus, I created a list of basic functions that are essential to play Second Life as well as more advanced techniques that may be required to complete a particular research topic assigned for each group.   I demonstrated the “how to” in a classroom using a big screen projector and took additional questions either via emails or in later meetings.  In general, students learned how to travel within Second Life fairly quickly. 

As an example, I would like to briefly discuss what the first group has gone through with this project (the research works of groups have been screencasted and uploaded at http://fizzysecondlife.blogspot.com/). The first group’s tasks assigned were unique compared to those that were given to the rest of groups in two ways.  First, being the first group to enter the virtual world of Second Life, its very first task was to create an avatar.  Here, the group had an initial encounter to the online terms of service agreement during the process of avatar creation, which was also the first exposure to a unique concept of “virtual ownership” granted by Linden Lab to Second Life residents. This aspect was explored further when the group analyzed the terms of service as well as by laws of existing Second Life communities.

Second, while other groups were assigned to study more specific areas of property law (i.e. adverse possession), this group was assigned rather generic topic to research, “the rules of Second Life.” In my personal opinion, this group received probably the most difficult subject matter of all. Identifying the rules existing in Second Life” is not an impossible task; however, identifying the rules “governing” Second Life is not an easy task because it requires not only understanding of how communities co-exist in Second Life but also appreciation of how Linden Lab’s end user online agreement (EULA) assures the autonomy/ownership of each individual/community.  However, this is not yet sufficient to determine which rules govern Second Life because the enforceability of Linden Lab’s EULA and the definition of autonomy/ownership given to individuals/communities are the ultimate questions, which have not been fully answered. 

In order to direct students to the point of focus, I stressed the following aspects to the group:

1. Second Life is a user generated virtual environment.
2. Linden Lab seems to promise to grant users ownership rights over their virtual property, including their intellectual property. 
3. The definition of virtual property needs to be considered (i.e. are physical property and virtual property the same or different? If they are different, in what way?). 
4. Linden Lab currently reserves the rights over users’ accounts, including rights to ban users from having access to Second Life.
5. The definition of loss of property needs to be considered (i.e. what happens to users’ virtual property when the users lose access to Second Life?).

I have used the current on-going case, Bragg v. Linden Research, Inc., to illustrate why these factors are potentially important in determining the outcome of the case (I am not going to discuss this point in this article).  Because it is a complex question to untangle, I gave suggestions to read the relevant terms in Linden Lab’s EULA. Students seemed to have quickly grasped the issue once acknowledging: (1) the differences between Linden Lab’s business model (granting “ownership” rights to users as an incentive for creation) and that of other MMORPG developers (reserving all the property ownership) and (2) the ambiguity existing in the meaning of “virtual property (i.e. property or source code?). 

As I mentioned earlier, the purpose of this Second Life project was to increase awareness of property issues in a virtual world like Second Life.  However, after going through the issue-identifying process, many of the students (not limited to those who are in the first group but also ones in other seven groups I have already worked with) seemed to have reached the next level of analysis, “applicability of existing property law in Second Life.”  As far as I recall, none of the groups has expressed to me that existing property law should apply to Second Life. On the other hand, some groups have indicated difficulties applying existing property concepts to Second Life because of the unique, computer generated environment.  For example, one cannot adversely possess someone’s land because the entire world is monitored digitally, or one cannot lose an object because Second Life’s system detects and restores the item back to the owner’s inventory (these points are further discussed in the students’ screencasts at the URL above).   

Where we are now is only the beginning of a long journey ahead of us to explore the bizarre concept of virtual ownership.  However, these Second Life project groups have definitely made their first steps through the intricacies of virtual world: they started a project asking me “what is Second Life?” but left the project asking themselves “how can we resolve these issues?”

Lastly, I would like to thank Professor Townsend Gard for giving me this great opportunity to explore the virtual world, Second Life, with her amazing group of first year property law students at Seattle University School of Law.  I plan continuing to explore the property and intellectual property issues surrounding virtual worlds as well as traditional MMOPRGs.  I hope this project will aid the general legal communities to gain better understating of property issues in Second Life.

Comments

[Sam Kelly]

1.

This looks like a fascinating project, but one thing leapt out at me - you have a group of students to introduce to MMOs, and give them a sense of what it's like for the people who do this for fun, but only one character between the group, rather than one each?

I know this is getting more common in Second Life, but to me it's always looked like a serious violation of the social contract and the unspoken "one virtual person : one real person" equation.

Of course, I suppose there are property issues there, too - who owns the character, you or the students or the university? Or whoever happens to be driving him at the time? And in the event of a dispute over the character's property, what happens then? What about characters individual students create and play on university time & equipment - where do the property rights vest then?

I suppose what I'm asking is whether this was an issue you considered in designing the project, and if so why you decided on doing it this way. And whether you feel this approach is still extensible to other MMOs.

[Endie]

2.

I'd agree with Sam: I was struck by the decision to go with a single ingame character. I can see why this would be useful: no need to waste time logging in and out for people to try stuff out, nor a need to go through the character creation process each time. But in a class about property rights, it raises interesting questions in itself about such usage.

Is the character a single agent, acting like an incorporated body? A fictitious legal person rather than just the representative of the player? Do property rights and responsibilities devolve onto the group? Onto the person in control when something was created or an act carried out? With companies using Second Life for PR stunts there will surely, eventually be a question of liability where a person acts or creates while on retainer to a company, or where using a company-funded avatar.

I was also interested in what you said abuot the property rights of players whose characters are banned. Will Second Life be forced to allow "wills" for such characters? Or will they be able to arbitrarily remove property rights from creators through their own, quasi-judicial but internal processes?

Anyway, interesting stuff.

Endie

PS be *very* careful answering such apparently innocent questions: one wrong answer and you will be blog-trolled into insanity by Prokofy Neva .

[Mikyo]

3.

Don't cry for Linden Labs. It's a corporation with near endless supplies of time, money, and publicity. Bragg isn't. Case closed.

[Rachel Goda]

4.

Thank you very much for your comments!

Yes, issues raised in Sam's comments have been considered previously. I am certain that Professor Townsend Gard can elaborate my answers (if she has not already explained this aspect in her article posted on April 2, 2007), so I would like to explain briefly why one class avatar was chosen from the aspect of logistics. First, the class (approx 100 students) was divided into 13 groups, and each group received one week to learn Second Life and complete this project. Every week, a group handed Fizzy over to the next group. As Professor Townsend Gard wrote in her article, Fizzy was our pet hamster, so to speak. In addition, students were not forbidden to create their own account and explore Second Life for this research if they prefer to do so. In fact, many of them actually did create an own account and used it for the research (or fun!). It was totally up to the student whether to create a personal account. For the purpose of PowerPoint presentations (of groups'research results), the project instructions encouraged students to try using Fizzy's point of view (i.e. snapshot etc)to have a consistent theme in the presentations. As you can see at http://fizzysecondlife.blogspot.com/, some students included snapshots of their own avatars as well.

Second, Sam's comment, "...give them a sense of what it's like for the people who do this for fun, but only one character... " This is my personal opinion and that Professor Townsend Gard may not necessarily fully agree with me, but I did not see the purpose of leading law students into Second Life was to give them a sense of what it's like for the people who do this for fun. I have been an avid MMORPG player for many years and clearly see differences between Second Life and other traditional MMORPGs--not just about the given environment but also the fundamental concept itself. (I know this topic has been discussed among respected authorities here in TerraNova, so I am not going to elaborate.) The purpose of this project was to give the students opportunity to see the intricacies of legal issues, particularly over virtual properties. Understanding of the complex issues requires appreciation of Second Life's (or similar virtual sims) unique computer generated environment as well as the structure of rules/regulations (or no laws and no regulations or self regulation). Giving them a sense of what it is like for people who play MMOs for fun is probably very collateral to our main purpose (it can be part of it, however). Therefore, in the sense, we did not need to enforce students to create their own avatar to mimic a life of MMO players. I hope this clarifies some of your questions :)

[Elizabeth Townsend Gard]

5.

I am amused and delighted by the comments, and agree with Rachel's comments. A few additional thoughts...

First, on the decision to have one avatar. Fizzy is the narrative plot device that allows the class to view the journey we are on together. We talk as if everything that has happened, happens to Fizzy. In fact, what has happened is that most students have signed up for a free account and have constructed their own avatars, and do their work with their own avatars. So in some sense Fizzy is a double fiction.

Second, I had originally thought of each student having their own avatar, but worried they might get obsessed and didn't want to be the cause of their demise in law school. So, one avatar, one week seemed to make better sense.

Third, yes, contract issues. We have been working with Linden Lab to make sure this is cool with them...and there have been other educational groups that have used one avatar for a group of students.

Finally, the property issue. This has come up a couple of times with the students, which I find quite amusing, and just supports the need for the kind of work we are doing. After spending only about 5-10 hours working on a particular aspect of the project, a student will want to know if they have any property ownership interest in Fizzy. Why, I want to know? Do you see a particular value in Fizzy? In what you have bought? The feeling of vestedness and "It's mine" comes very quickly. This is why we are looking at this. Instead of contract language or even copyright language, the comments and the students turn to property concepts. Very interesting.

I'm not sure how much value there is in Fizzy. Ownership could be debated, of course. Fizzy is registered under my name. The funds for Fizzy's exploits come from Rachel's account, at this moment, which she will be reimbursed through Seattle University. The students put in between 5-10 hours of work each. What the posts are really talking about are elements, I think, 1) the copyright in Fizzy and 2) the virtual property ownership of the stuf Fizzy picks up along the way.

The latter would be governed by the IP policy at my university (which they are currently writing!) In general, the question would be whether we were using extraordinary amount of resources for the project for the school to have an ownership stake in Fizzy as a copyrighted work. In my opinion (and this is one of my specialities), we have not. Second, as to the virtual propert itself, if I reimburse Rachel from my reimbursement account, the question would be is this like a microphone or camera ordered (in which case, they would want it back) or is it more like travel reimbusements (in which case they wouldn't). Interesting questions. I think I would have to spend a good deal of time explaining the situation before they would understand...the conversation on what potential enrichment fund were going to was be doing..."and so what do you get when you buy someting..?"

So, sory for the long comment back. I think it is REALLY telling that the comments are concerned about property interests.... it validates the project in my view. People quickly feel there is something at stake, and not in a contract way, but in a property way.

[greglas]

6.

Elizabeth --

I'm glad your first comment was that shared ownership of Fizzy was about making the narrative work. I think that's a sound call, from a pedagogical perspective, and perhaps really telling about the way we might approach property (and property law) in virtual worlds.

I think we intuit that VWs are primarily communicative environments that have mimetic elements, and part of their utility is bound up in their capacity to enable narrative structures that resonate with the "scripts" we employ to understand offline experience. So when we talk about Fizzy, we need to realize that we're talking about a story as much as a thing, and it's good that the story of the experiment can be told with a single protagonist.

Also, as you point out, by making Fizzy shared, you problematize what Fizzy is and what the relationship should be between Fizzy and the current user. The standard convention, perhaps too easy, is that the avatar is an extension of self. But it need not be, and as your students show. The avatar is a skin that can be rewritten and/or shared by a collective.

It's also a really nice way to create some good "property theory friction" at the outset. E.g.: Why isn't Fizzy mine given that I use and "possess" him? Why don't I have an avatar in this place that I can call mine? Why do I feel like I need one?

Anyway -- I guess I'm just repeating what you and Rachel have said, but I give you credit for structuring the experiment that way. It's definitely not the obvious way to do things, and it would certainly not be the way to set things up if this were about playing a game, but I think a shared class avatar makes a great deal of sense from the standpoint of instruction in this case.

[Michael Chui]

7.

I think one of the best things that's come from Second Life is the beginning of the end of the idea that these environments are always roleplaying spaces. With any luck, people will stop using the term "MMORPG" in a few years.

The reason this is relevant... it came up from Greg's characterization of property issues with regard to the avatar itself. In an actual roleplay scenario, property wouldn't be much of a question: he is me. The strength of the roleplay enforces the identification. But in this case, there is no roleplay: there is an other, the avatar, and no one identifies with him.

It makes me think of Shock the Avtar.

[Sam Kelly]

8.

Thank you both very much for your responses, I'm much reassured - especially by the 'pet hamster' analogy!

[Hellinar]

9.

@Michael:

Hehe, its amazing how completely opposite definitions can attach to the term “Roleplay”. The statement “he is me” would in my terminology be proof positive that a character is not being roleplayed. As I see it, the point of roleplay is to create a character with their own narrative, not simply continue your own everyday narrative in new place. In that context saying “he is me” makes as much sense as saying “J.K. Rowling is Harry Potter”. In roleplay as I would frame it, the author is not the character. Each to his own I guess.

In a roleplay world it is pretty clear to me that Fizzy’s stuff, and Fizzy’s story, belong to Fizzy. Its also pretty clear that SL isn’t framed much as a roleplay world. Though I do know people who treat it that way.

I’m quite fascinated by the idea of avatar as a pet, or as distinct entity from the Player. I’ve been wracking my brains to think of a better name than “avatar” for such an entity. One in which the player has more of a steward or guardian role than a puppet master. I’m wondering if the law surrounding the role of the legal guardian might be a better frame for what Fizzy’s property rights are?

[Beldar]

10.

I don't know enough about Second Life to know whether there is competition for, and/or in-game trade of, particular items. But in the MMORPGs I've played -- EverQuest (the original) and World of Warcraft -- players spend enormous amounts of time and energy, typically through their voluntary "guild" organizations, in setting up what amount to mutual covenants governing in-game rights-based property distribution.

That history, in turn, apparently prompted the company that created and markets WoW, Blizzard, to program features into the game to facilitate such distributions -- making some items untradeable, for example, by coding them to be "bind on pick-up," whereas others are "bind on equip"; or providing software switches that can permit multi-preferenced levels of random-number generation ("rolling" for "need" or "greed").

So I'm looking forward to your upcoming law review note, Ms. Goda, entitled "The Common-Law Antecedents of the Dragon-Kill-Point ("DKP") System." Please email me a copy when it comes out.

[Chiara Reillo]

11.

Personally, as a student participating in this project, I wanted very much for everyone to enter into exploring virtual property and the virtual space with an open mind. There was much talk about the usefulness, validity, and execution of this project prior to its commencement. Significantly, each new group came in with a similar wary eye as to what was going to happen. Though not proficient in MMORPG’s, I felt that exploring a virtual world that espouses to gives players IP rights would mirror the notion that ownership of property is the foundation to society.
I believe that student’s skepticism about this learning tool was absolved once they realized that property law can stretch as far as technology will let it. Even though SL is fundamentally contracts based, assessing for over and undertones of property law made us evaluate the policies behind each doctrine. Significantly, as a practice pointer, our class should be very aware of the danger and consequences of applying property laws traditionally based in real property to the on-line world. Rachel Godah has raised this issue on several occasions with the groups, namely that judges and legislatures currently have little grounding or conceptualization into what the long term result would be of applying traditional property notions to a space like Second Life, or even the internet for that matter. The result of a ruling that lacks the foresight brought by having explored virtual rules could hinder not only online gamming, but internet commerce and the entire use of the net as a mode of exchange. ~ Thus, if anything, the Second Life project has made us aware of the potential problems with trying to fit old law to a new medium; old wine into new wine-skins if you will… and this thought process will serve us in all areas of practice, whether or not we go into IP.

Finally, we did not directly assess whether Linden’s reasoning to grant IP rights rested in a “civic republican” view of players not being full players without significant ownership of their Avatar and all subsequent creations. However, I think there is a strong argument for some sort of property rights making the game more “whole”, and inducing people to play. That being said… serious MMO players probably don’t have a tie to whether they actually own the equipment their avatar is using. Gaming probably feels equally real whether or not you have IP rights to what you use. I wonder if this assumption is true or if players feel more attached to SL’s avatar created property (something they make in a sandbox) versus items they acquire in other games? Surely this was Linden’s idea in soliciting players ~ giving them an incentive to play. But I wonder how strong the incentive of IP rights really is? Or is the draw of Second Life stemming from the limitless possibilities of creation/ user created world/ and media attention? Would SL be as popular regardless of IP rights? (MMO experts ~ insert your opinions here!)

In the end~ a wonderful and stereo-type shattering experience.