gods, dictators, and democracies roles and rights of communities nicolas suzor, qut school of law...
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Gods, dictators, and democracies
Roles and rights of communities
Nicolas Suzor, QUT School of LawLeipzig, 01 August 2009.
Legitimacy
Law from territorial states should defer to private governance where that governance is
legitimate.
Avoiding the false-dichotomy There is no magic circle Internal governance is always already limited
by law
“If these attempts by cyborg communities to formulate the
laws of virtual worlds go well, there may be no need
for real-world courts to participate in this
process. Instead, the residents of virtual worlds will live and love and
law for themselves.”
-- Hunter and Lastowka
Autonomy Autonomy is important, diversity should be
encouraged But we always impose limits on autonomy to
safeguard the interests of citizens.
Situating governance Not merely contractual relationships Virtual communities are important “because
real people care about them and come together in them” (Grimmelmann; Rheingold) Participants feel very strongly about their
relationship to their communities
Power relations “operate in [...] ‘analytic borderlands’: between
public and private, between technical and social, and
between network and body. Mapping these
borderlands requires descriptive and analytical tools
that do not simply reduce them to borders.
-- Julie Cohen
Digital constitutionalismthese “power relations [...] are
fundamental constitutional issues that should be informed by fundamental constitutional
principles”-- Fitzgerald; see also Berman
legitimacy
The boundaries of private law are constitutive boundaries.
Law from territorial states should defer to private governance where that governance is
legitimate.
The rule of law A measure of legitimacy. Encompasses substantive and procedural limits
to the exercise of power. Provides an evaluative framework for the
regulation of autonomy in virtual communities.
<1: a restraint on arbitrary power>
no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.
-- A V Dicey
No arbitrary punishment
In some circumstances, we may require the exercise of power to be authorised by the
terms of service or other rules of the community.
Proprietors must also obey the rules.
Discrimination Sara Andrews was initially
threatened with expulsion from WoW for advertising a LGBT-friendly guild Blizzard reversed the decision and
issued an apology
Freedom of speech Peter Ludlow alleges he
was banned from The Sims Online for criticising Electronic Arts
Right to privacy Most states already impose
restrictions on the way personal information can be collected, stored, used, and distributed
PropertyThis case is about virtual property maintained on a virtual world on
the Internet. Plaintiff, March Bragg, Esq., claims an ownership interest in such virtual property. Bragg contends that Defendants, the operators of the virtual world, unlawfully confiscated his virtual property and denied him access to their virtual world. Ultimately at issue in this case are the novel questions of what rights and obligations grow out of the relationship between the owner and creator of a virtual world and its resident-customers. While the property and the world where it is found are “virtual,” the dispute is real.
– Bragg v Linden (Robreno J)
Rights of legal enforcement
“the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden.”
– Bragg v Linden (Robreno J)
</substantive values>
External limits are continuously imposed on the scope of private internal governance
<3: formal legality>
“the laws must be general, equal, and certain”
-- Hayek
“the law must be capable of guiding the behaviour of its subjects.”
-- Raz
Inconsistent application and discretionary enforcement
Terms reserve broad discretionary powers
Often prohibit behaviour without routine enforcement
Procedural fairness Participants may seek some form of
reassurance that their case has been fairly dealt with. Review of decisions, methods of appeal
<4. consent and democracy> Virtual communities may develop their own
rules and norms. These rules may conflict with external norms. May conflict with contractual terms of service.
<consent>
Contractual terms should not override consensual arrangements
Expectations may have to be protected
<conclusion>
Both autonomy and legitimacy are important.
Some external values will limit governance.
Good governance is clear and predictable.
Good governance is consistent and consensual.
<end /> Contact:
Nic Suzor <[email protected]> Attribution:
Smoke background by Turbo Joe (CC BY-SA): http://www.flickr.com/photos/turbojoe/401690011
Photo of Peter Ludlow by Ugotrade (CC BY-NC-SA): http://www.flickr.com/photos/7834062@N06/1969815770