An Avatar's Day in Court

Farnaz Alemi, an associate at the law firm of Latham & Watkins, has just published a piece in UCLA J. of Law & Tech. about the resolution of disputes within (and without) VWs. From the abstract:

"Though the real world is attempting to recognize in-game property rights to provide relief, it is not the viable solution some may think. As this paper demonstrates, parties face major obstacles in the real world attempting to resolve in-game disputes. Thus, I have proposed a two-tiered justice system: the In-Game Justice System (the "IGJ") and the Real World Justice System (the "RWJ") to provide a potential means of resolving in-game disputes using various real world theories of law and judicial proceedings. More importantly, real world courts would now be sought as a venue of last resort if an aggrieving player pierces the virtual veil (the "PVV"). This proposal intends to provide justice and relief to victims of virtual worlds, and hopefully a means towards understanding the interplay between the virtual world and the real world."

It's a really interesting paper. For me the question is not so much the normative issue of whether we should block off the virtual worlds from the real/physical/etc worlds, but the degree to which courts and legislatures are likely to do so. The longer I look at what courts do the more I have the sense that there is actually a lot of power in the concept of the "magic circle", whether courts acknowledge this or not. I think that perhaps there is something wired into us in accepting that there is something special going on within the boundaries of the circle. Step onto a football field, walk into a church, log into Azeroth, and you're in a different world. I'm not sure what this means (nor do I have any sense of how one could prove the acceptance of the circle) but papers like Alemi's move us towards an understanding of the power of the circle and how courts should respond to it.

Worthwhile.

Comments

[Nicholas Chambers]

1.

I'm not sure if I got this one right: Courts should now deal with in-VW issues more intensively? And the GMs are supposed to act as public prosecutors by "using various real world theories of law and judicial proceedings"(don't they do so already?)? To what extend should they interfere? I don't think that I'll be a big fan of the VWs implementing this scheme.

[PLW]

2.

Is there something similar here to the way that courts won't, generally, enforce contracts written within a firm. Sure, they will enforce employment contracts, but if one division writes an agreement with another division and those divisions aren't separate legal entities, they can't count on a court to enforce that agreement. But I imagine that if one division "pierced the veil" of the firm, say by hassling members of the other division outside of work, courts would be willing to step in.

[Peder H Pedersen]

3.

Skimming it the author presents a rather incorrect view of the size of games vs worlds. He cites Blizzard's 7.5 million subscribers, and then goes on to cite SL's just under 2 million residents. These numbers are not comparable. Truth is that virtual worlds are a tiny niche compared to online games. I think he misrepresents this fact. There are some contradictions as well, in his presentation of population numbers.

[Benjamin Duranske]

4.

FYI - the author is female (see FN1 in the article).

My biggest issue with the article was the use of terminology -- "crimes" to describe scams in EVE Online and "terrorism" to describe the defacement of John Edwards fan-site campaign HQ in Second Life, "battery" to describe the Chung flying-penis incident.

The major point that I took from this was that designers could solve a lot of problems before them get out of control by building in a dispute resolution system of some sort, and that's an interesting point and not one I've seen articulated before in an academic paper.

It is a point that people near-constantly discuss in-world and on message boards in relation to the potential for microgovernments and justice systems. The argument usually is that these systems have no teeth because the people who run the world aren't involved, and Alemi seems to essentially be proposing that the game gods get a bit more involved.

[Desmond Shang]

5.

One wonders what the point of playing Eve Online or Warcraft would be, if a winning player would be subject to litigation! The very goal in many circumstances is to inflict harm upon one's opponents and properties.

Context matters, and always has. Otherwise a professional football player could be charged for assault just by playing. There is no simplistic answer. In some scenarios destruction of virtual property would be normal and expected; in others it would be criminal.

[Prokofy Neva]

6.

Farnaz Alemi's concepts cannot work, they are simply too mild and ineffectual in a world where the griefers never partake of that magic circle of civility in the first place, such as to have naming and shaming, or fining or land seizure, ever work on them. They are beyond the reach of such means of civility to punish them, ever.

Second Life unfortunately needs sheriffs, not judges and lawyers.
http://secondthoughts.typepad.com/second_thoughts/2008/02/second-life-nee.html

It's a bad idea to plunk down into SL just one branch of government, or a symbol of something from real life, like a Supreme Court building, but not have any of the other branches and checks and balances that form a complex whole in real life.

Any group of avatars role-playing in a Supreme Court building and calling themselves "judges" would be devoid of legitimacy, as they would not ensue from any resident government, but would just be an experiment by judges and lawyers wishing to prototype schemes without being "bothered" by all those "nuisances" of real life like the executive, Congress, the media, the public...

I don't understand all the gasping and clucking over the use of the word "terrorism". Isn't it possible to reason by analogy and successfully use metaphors when we are talking about *virtual worlds* after all?! Griefing is indeed *like* terrorism in many ways, in its springs, its dynamics, its difficulties. Rather than fuming that the use of the term in virtual contexts somehow diminishes its seriousness in the real world (it doesn't), why not draw the usefulness of the analogy -- griefers are anonymous, unaccountable, willing to suffer the loss of their very identity/life/account in the process of griefing; will target randomly; will target the entire population even when they may have a beef only with one individual or groups, etc. There are parallels, and you only gain by contemplating them, rather than shrinking from contemplation due to some fear that virtuality will undermine reality.

[Cunzy1 1]

7.

I have a level 21 Chimchar if anyone is interested. It'll cost you 21 Isk and 3 Simoleons.

[Ren Reynolds]

8.

I think the paper is incredibly weak and am not sure how it got in a journal – don’t they have a review system for law journal or is that that the reviewers have not read much in this area either.

Let’s start with a couple of factual errors.

“Edward Castronova […]the real world trading of characters, artifacts and services would make its gross domestic product (GDP) 77th in the world”

I just can’t take any piece seriously that says this. It’s worse when they quote the source as it shows they either did not check or don’t understand what the worlds ‘per capita’ mean.

“MMORPGs have a combined global membership in subscription and non-subscription games exceeding 15 million as of 2006”

I guess I should not be too harsh as any number above 15 million exceeds it, but come one, Habbo alone has 60 million accounts, even back when this was written it had about 40 mill and single worlds in Korea, China and Japan top 15 million a piece.

The idea of the use of in-world justice systems specifically as a way of providing cover from physical world legal systems is far from new. While this paper looks at some matters of process it does not seem to touch on any of the known issues, so I kind of failed to see the point of it.

First on the law & magic circle – Dan rightly brings up sport. What we know is that ethics and law treat sport differently - it respects practices.

What I think is interesting here, and a paper I would like to read is the relationship between the degree to which law is hands-off in relation to the way a give practice is established. It seems there are certain things that legitimize practice these are things like a governing body that has been established in a set of ways – history, and in the UK a very much class based history, seems to be a part of this. Those bodies then need to use processes that follow some general standards.

As I understand it smaller niche sports tend to get less relieve from legal oversight than those that are more established as the law generally feels that there is more that they can take care of themselves.

Then there is sanction. The primary tie with a virtual world for many people, and thus the greatest potential loss, is social capital. Hence systems have had the issue that the strongest penalty has to be something that is just less than the bonds with the world.

The other issue here is with out-and-out grifers who might not care about such matters (as Proc rightly points out above). As the PN wiki (http://wiki.patrioticnigras.org/wiki/Main_Page) title says ‘Ruining Your Second Life Since 2006’

Today things are different. Virtual worlds have widely recognized cash value for people, so we have potentially other sanctions.

But there we run into a twin issue. In virtual worlds that have a publisher i.e. non-peer run ones (i.e. most of them), justice systems need the buy-in of the publisher at least to a minimal degree, even if this is ceding certain powers to users.

But if we are to recognize openly that the artifacts in a virtual world have value then the publisher has an issue. Note that in the Second Life TOS it is careful to say that L$ are not a currency, they are a limited license, what’s more Linden has no liability to redeem them and can change the system or delete them all at any time.

Given that this is the contractual basis on which people rest – surely the first line of define might be: ‘but nothing is worth anything, ask Linden’.

For things to fly they way they are set up at present they need to rest on something that adequately recognizes harms done and at the same time does not dump a bunch of liability on publishers. Either that, or we simply give up on the idea that Linden’s TOS has any meaning in the face of common practice. Which increasingly I think we might.

Again, I’d like to see a legal paper that carves out what that position would be.

Then we come to evidence. The evidence in these cases is going to be oral, out of world stuff, chat logs, screen shots and other data. But much of this is data that the virtual world will not have access too – here we have to recognize the weakness of the magic circle, that a lot of this goes around the virtual world. That which is in the virtual world is both data and, so the publishers argue, intellectual property. If we are looking at it from a UK perspective – if it were identifying then it would fall under the data protection act, so I’m not sure where some of it could be evidenced as the process we are talking about here would not have recognition under UK or EU law.

Given that even those disputes that are confined to in-world argument often span multiple chats and involve object configurations – I wonder what happens when 3rd parties object to their chat be evidenced in an open setting and start to cite all kinds of things from data protection to privacy and even liable.

Lastly, we have the issue of the publishers being held to a set of standards. Here we just have to look at what David Post said at the Singapore SoP when recounting his attempt at setting up the very same kind of system with AOL. All went well until AOL realized that any decision of the in-world system would be binding on their actions, then I think Post said they just laughed. I reference people to the talk last week in Second Life when Linden were asked about the lack of transparency of their system.

Oh, and let’s not forget Josh’s points about how contracts don’t bind third parties.

So, sure, let’s talk about in-world governance systems. But I think that mere matters of process are the least or our concerns at the moment. We need to understand how it is we would re-configure power relations, what benefits they would have, how they would work in an international setting and what contractual structure they would sit in.

[Thomas Malaby]

9.

And that, in a nutshell, is why I defer to Ren on all matters of policy in virtual worlds.

/clap

[eric]

10.

Step onto a football field, walk into a church, log into Azeroth, and you're in a different world.

I think that's overstating things a bit. Football fields and churches aren't "different worlds", they're just particular places within the world. To the extent that courts sometimes decline to intervene, or to hold a defendant liable, in disputes arising within those spaces, it isn't out of respect for a "magic circle", but simply because regular world legal categories and principles render those disputes outside the court's jurisdiction (e.g. First Amendment principles that preclude civil courts from deciding intra-denominational disputes over religious doctrine -- see, e.g., the Episcopal Diocese of Pennsylvania case in Dan's hometown from a couple of years ago) or recognize affirmative defenses to what would otherwise be a tort or crime (e.g. consent or assumption of the risk in a game of football).

Now, I'm far from certain as to how regular world law does, or ought to, apply to disputes arising within VWs. And, as a socio-legalist, I'm far more interested in the "does" question than the "ought" question. But I'm skeptical of the notion that courts will, or should, treat VWs as completely "different worlds" protected by a "magic circle", rather than simply particular places within the world, in which ordinary legal categories and principles might apply in particular ways appropriate to their particular circumstances.

[Prokofy Neva]

11.

Ren, I think you've parsed this very well, but you can't drive the whole analysis from UK practice, or from ludology privileging games as special.

In the Bragg case, the chatlogs came out at discovery. They were published on the Internet among the court documents. Say what you will about privacy, the logs were published, and were not contested (at least at that stage). I doubt they would be acceptable as evidence in court -- but can we be sure about that? Will date-stamped and hashed server-side logs someday be accepted as inviolable truth in the Metaverse? They are now from the companies' perspective!

And what about the other court cases such as regarding Stroker Serpentine's bed? These ended in settlements out of court, not precedent rulings -- they only have a kind of rhetorical precedent. Will some litigant succeed in establishing the worth of virtual goods in court next time?

I think we will go on experiencing a rough justice from game and world companies doing what they like, or worse, bands of ideological extremists who start new open-sourced worlds on their own hosted servers who will bring more closed societies, not more free ones.

[Hendrik Wieduwilt]

12.

Mayer-Schönberger held in 2006: "real world law functions as a catalyst for the maturation of virtual world governance". In his view the virtual world "good governance" is a factor of competition. Alemis "in-world"-Justice makes users feel like having their day in court - which is designed like a real court. Such a world might be a better world and attract more users. I guess even though from a legal point of view the article might lack substance it is a great hint for publishers.

But the suggested two-fold system is imho an illusion. Most of the victims who really suffer (from say diffamations) would rather call for a reallife-authority than an in-game dispute settlement body. Where should judges draw the line between "in-world" and "piercing the virtual veil"? The requirements seem fuzzy. People will start to ask real judges about that - who thus may become the backdoor appeal chambers of virtual courts.