Virtual borders: The interdependence of real and virtual worlds

First Monday

Volumn 11, Issue 2, 2006, Pages 37-56

  Grimmelmann, James ^a  

^a NONE

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EID: 33645759731     PISSN: 13960466     EISSN: None     Source Type: Journal    
DOI: 10.5210/fm.v11i2.1312     Document Type: Review

References (62)

1. Webcast versions of the panel are available at http://www.nyls.edu/pages/ 3903.asp.
2. David Johnson and David Post, 1996, "Law and Borders: The Rise of Law in Cyberspace," First Monday, volume 1, number 1 (May 6, 1996), at http://www. firstmonday.org/issues/issue1/law/.
3. Post and Johnson phrased their argument in terms of the law applicable to "Cyberspace." More recently, Gregory Lastowka and Dan Hunter have made this argument specifically about virtual worlds. F. Gregory Lastowka and Dan Hunter, 2004, "The Laws of the Virtual Worlds," California Law Review, volume 92, pp 1-73.
4. See Julian Dibbell, 2003, "Owned! Intellectual Property in the Age of eBayers, Gold Farmers, and Other Enemies of the Virtual State: Or, How I Learned to Stop Worrying and Love the End User License Agreement," In: Jack M. Balkin and Beth Simone Noveck (editors), in press, The State of Play: Law and Virtual Worlds;
5. Edward Castronova, 2005, "The Right to Play," New York Law School Law Review, volume 49, number 1, pp. 185-210;
6. James Grimmelmann, 2003, "Free as in Gaming?" LawMeme, at http://web.archive. org/web/20040603114815/http://research.yale.edu/lawmeme/ modules.php?name=News&file=article&sid=1290.
7. Richard Bartle, 2005, "Virtual Worldliness: What the Imaginary Asks of the Real," New York Law School Law Review, volume 49, number 1, pp. 19-44;
8. Richard Bartle, 2005, "The Pitfalls of Virtual Property," at http://www.themis-group.com/uploads/Pitfalls %20of%20Virrual%20Property.pdf.
9. See generally Richard Bartle, 2004, Designing Virtual Worlds, Berkeley, Calif: New Riders Publishing;
10. Raph Koster, 2005, A Theory of Fun for Game Design, Scottsdale, Ariz.: Paraglyph Press;
11. Cory Ondrejka, 2005, "Escaping the Gilded Cage: User Created Content and Building the Metaverse," New York Law School Law Review, volume 49, issue 1, pp. 81-101.
12. Germany enforces these laws against various media, including video games. See "Bundesprüfstelle für jugendgefährdende Medien," Wikipedia, at http://en.wikipedia.org/ wiki/ Bundespr%C3%BCfstelle_f%C3%BCr_jugendgef%C3%A4hrdende_Medien;
13. "Video Game Controversy," Wikipedia, at http://en.wikipedia. org/wiki/Video_game_controversy#Germany.
14. The United States is currently facing international pressure before the World Trade Organization to back away from enforcement of those laws against online gambling sites not located in the United States. The WTO materials are online at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm.
15. Saudi Arabia requires all Internet traffic to pass through government-operated proxy servers that block sexually explicit content. See Jonathan Zittrain and Benjamin Edelman, 2002, "Documentation of Internet Filtering in Saudi Arabia," at http://cyber.law.harvard.edu/filtering/ saudiarabia/.
16. For a good example of just how different, see Jacqueline Stevens, 2005, "Legal Aesthetics of the Family and the Nation: agoraXchange and Notes Toward Re-Imaging the Future," New York Law School Law Review, volume 49, issue 1, pp. 317-352.
17. On the free speech interests in virtual worlds, for example, see Jack M. Balkin, 2004, "Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds," Virginia Law Review, volume 90, number 8, pp 2043-2098.
18. The most direct and forceful statement of this position is John Perry Barlow, 1996, "A Declaration of the Independence of Cyberspace," at http://homes.eff.org/-barlow/ Declaration-Final.html.
19. A more sustained and careful statement of it is David G. Post, 2002, "Against 'Against Cyberanarchy,'" Berkeley Technological Law Journal, volume 17, pp. 1365-1387.
20. Notable critiques include Neil Weinstock Netanel, 2000, "Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory," California Law Review, volume 88, pp. 395-498;
21. Jack Goldsmith, 1998, "Against Cyberanarchy," University of Chicago Law Review, volume 65, pp. 1199-1250;
22. Joel Reidenberg, 2005, "Technology and Internet Jurisdiction," University of Pennsylvania Law Review, volume 153, pp. 1951-1974;
23. Tim Wu, 1997, "Cyberspace Sovereignty? The Internet and the International System," Harvard Journal of Law and Technology, volume 10, pp. 647-666. Wu and Reidenberg, along with Viktor Mayer-Schönberger, argued the anti-independence side in the Great Debate.
24. The spatial metaphor itself is controversial. See Dan Hunter, 2003, "Cyberspace as Place and the Tragedy of the Digital Anticommons," California Law Review, volume 91, pp. 439-519.
25. Orin Kerr, 2003, "The Problem of Perspective in Internet Law," Georgetown Law Journal, volume 91, pp. 357-405.
26. On the spectacular growth in virtual worlds, their populations, and economies, see Edward Castronova, 2002, "On Virtual Economies," CESifo Working Paper Series, number 752, at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=338500;
27. Bruce Sterling Woodcock, "An Analysis of MMOG Subscription Growth," at http://www. mmogchart.com/.
28. See Bartle, Designing Virtual Worlds, supra note 6, ch. 5, particularly pp. 351-367.
29. For more on the varied motivations of players, see Richard Bartle, 1996, "Hearts, Clubs, Diamonds, Spade: Players who Suit Muds," Journal of Mud Research, volume 1, issue 1, at http://www.mud.co.uk/richard/hcds.htm,
30. Bartle, Designing Virtual Worlds, supra note 6, ch.3,
31. and Nick Yee, "The Daedalus Project," at http://www.nicky.ee. com/ daedalus/.
32. See Julian Dibbell, 1995, "MUD Money: A Talk on Virtual Value and, Incidentally, the Value of the Virtual," at http://www.juliandibbell.com/ texts/mudmoney.htm;
33. Zachary Booth Simpson, 1999, "The In-game Economics of Ultima Online," at http://www.minecontrol.com/zack/uoecon/uoecon.html.
34. See Julian Dibbell, 2003, "The Unreal Estate Boom," Wired, volume 11, issue 11, at http://www.wired.com/wired/archive/11.01/gaming.html.
35. An interesting thought experiment asks what distinguishes the world of exchanged promises to pay and complex intermediated financial instruments from a virtual world.
36. Second Life sees itself as a creativity-enhanced extension of the real world. Its license agreement with its players allows them to retain intellectual property rights in content they create. It runs an official exchange that converts in-world Linden Dollars to and from U.S. dollars.
37. EVE-Online is a highly competitive outer-space game, in which players band together into violent trading guilds. Enormous quantities of in-game resources can change hands as the result of well-executed gambits. One particularly remarkable example of a successful takedown of one group by another is described in Tom Francis, 2005, "Murder Incorporated," PC Gamer (September), pp. 126-129.
38. Another, involving a confidence scheme that may or may not have constituted criminal fraud, is detailed in Nightfreeze, 2004, "The Great Scam," available at http://static.circa1984.com/the-big-scam.html.
39. EverQuest II is a medieval fantasy-themed game that is far less Hobbesian than EVE-Online is. Players band together to go questing, killing virtual monsters and accomplishing challenges offered them by the game. Sony, the company that runs the EverQuest games, created StationExchange, a site that allows players to auction in-game items to each other for real-life money. Sony takes a service charge of $1 per item listed for auction. See Sony's description of the process at http://stationexchange.station.sony.com/.
40. See, e.g., James Hebert, 2005, "Online gamer? Buy your way to the top," San Diego Union-Tribune (9 October), p. F-3 ("'I frown upon it due to the fact that the game should be just as difficult for everyone,' says GuS Tovar, 14, a San Diegan who plays the online game Guild Wars. 'People who can afford to buy (millions in) gold can just dominate.'")
41. This concern is obviously related to the previous one. Both those who come late to the party and those who leave early are giving it less attention than someone who plays all the way through. On the community and individual implications of the depth of participation, see Bartle, Designing Virtual Worlds, supra note 6, pp. 425-445, 451-465.
42. For a discussion of the techniques used by in-game large-scale industrial profiteers, see Paul, 2005, "Secrets of Massively Multiplayer Farming," Game Guides Online, at http://www.gameguidesonline.com/guides/ aiticles/ggoarticleoctober05_01.asp.
43. An interesting fictional treatment of the same general material that explores its ethical complexities is Cory Doctorow, 2004, "Anda's Game," Salon.com, at http;//www.salon. com.tech/feature/2004/11/15/ andas_game/index_np.html.
44. See Edward Castronova, 2005, "The Right to Play," New York Law School Law Review, volume 49, issue 1, pp. 185-210.
45. The most prominent proposed "eBay-resistant" design is described in F. Randall Farmer, 2004, "KidTrade: A Design for an eBay-resistant Virtual Economy," at http:// www.fudco.com/habitat/archives/ 000023.html. The comments - many of them from prominent designers - are also quite thoughtful and well worth reading. Barry Kearns proposed "No-Cash" in 2005; his draft, sadly, has disappeared from the public Internet. Interesting discussion of No-Cash, however, survives at http://blogs.parc.com/playon/ archives/2005/05/thoughts_on_a_n.html and at http://terranova.blogs.com/ terra_nova/2005/04/innovation_i.html.
46. The case was Blacksnow Interactive v. Mythic Entertainment, Inc., No. 02-cv-00112 (C.D. Cal. 2002). A fuller account can be found in Julian Dibbell, "Serfing the Web: Black Snow Interactive and the World's First Virtual Sweat Shop," Wired, volume 11, issue 1, at http://www.juliandibbell.com/ texts/blacksnow.html.
47. See Lastowka and Hunter, "The Laws of the Virtual Worlds," supra note 3.
48. See Joshua Fairfield, 2005, "Virtual Property," Boston University Law Review, volume 85, issue 4, pp. 1047-1103.
49. The leading U.S. case on the extent of those rights is Intel Corp. v. Hamdi, 30 Cal. 4th 1342 (2003). For a scholarly discussion of the issues (albeit one written before the final decision in Hamidi), see Dan Burk, 2000, "The Trouble with Trespass," Journal of Small and Emerging Business Law, volume 4, pp. 27-56.
50. Accessing servers without permission is also regulated by the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which establishes criminal and civil liability for "knowingly access[ing] a protected computer without authorization, or exceed[ing] authorized access." On the scope of the CFAA and similar laws, see Orin Kerr, 2003, "Cybercrime's Scope: Interpreting 'Access' and 'Authorization' in Computer Misuse Statutes," New York University Law Review, volume 78, pp. 1596-1668.
51. The extent of the enforceability of such contracts is controversial in legal academic circles. Leading cases on the enforceability of standardized software license agreements include ProCD v. Zeidenberg, 86 F.3d 1147 (7th Cir. 1996) and Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005). The Davidson case is of particular interest to virtual worlds; it involved the reverse engineering of an earlier online gaming service from the makers of the immensely popular virtual world World of Warcraft.
52. There is little dispute that designers' contributions to virtual worlds and computer games are fully protected by copyright law; decades of cases have reached this result. See, e.g., Atari v. North American Phillips Consumer Electronics, 672 F.2d 607 (7th Cir. 1982). These cases, however, are generally about unauthorized clones of games. Whether a player who has purchased a virtual item from another player in violation of the terms of service has committed copyright infringement is a more difficult question. Cases that have grappled interestingly with "changes" to the original software include Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992) and Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998).
53. Again, this is an unlitigated and therefore murky legal area. One case on modification of video games is Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). These sites are likely to claim that they are using the trademarks "fairly" to describe the goods they are actually selling (if it is indeed correct to refer to the virtual items as "goods" at all under these circumstances). On the fair use defense in trademark generally, see 15 U.S.C. § 1115(b)(4) and KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111(2004).
54. United States Constitution, article I, section 8, clause 8. In Thomas Jefferson's words, "Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body." Letter to Isaac McPherson (13 August 1813). Copyright law has a "fixation" requirement that creative works must be recorded in some reasonably lasting form (a live performance, for example, is not copyrightable unless it is recorded). Trademark law requires that the trademark be "used in commerce," and while the definition of such "use" is broad, it is not all-encompassing.
55. agoraXchange, described by Stevens, "Legal Aesthetics" supra note 10, is one such experiment. Yochai Benkler has discussed the creative potential of virtual worlds isolated from real-life intellectual property law. See Yochai Bankler, 2004, "There is No Spoon," In: Jack M. Balkin and Beth Simone Noveck (editors), in press, The State of Play: Law and Virtual Worlds.
56. Castronova's "game spaces" have such a goal. See Castronova, "The Right to Play," supra note 28.
57. See Lawrence Lessig, 1999, Code: And Other Laws of Cyberspace, Basic Books, p. 190.
58. The language of "respect" and "dignity" is omnipresent in United States discussions of the law of federal-state relations. The Eleventh Amendment, for example, which prohibits federal courts from hearing lawsuits by individuals against states, is often described as protecting the "dignity" of the states as sovereigns. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).
59. See Jean Jacques Rousseau, 1762, The Social Contract: Or Principles of Political Right.
60. 1 am not saying that designers will be volunteering to give up these legal rights, only that pointing to an in-world social contract provides one potential way to justify why designers deserve these rights in the first place.
61. See, e.g., Robert Nozick, 1974, Anarchy, State, and Utopia, Basic Books.
62. Robert Cover called this creative function "jurisgenerative" and the destructive one "jurispathic," in an article whose surface I am only barely scratching here. See Robert M. Cover, 1983, "The Supreme Court, 1982 Term: Foreword: Nomos and Narrative," Harvard Law Review, volume 97, pp. 4-68.