Liberties in Virtual Environments

Nic SuzorQUT Law School

Institute for Creative Innovation

virtual environments

Multiplayer Real time simultaneous Immersive Persistent

suspension of disbelief, not virtual reality

picture: AlexPGP @

flickr

evolution

picture: kgeiger @ flickr

evolution

evolution

picture: stuartp @ flickr

evolution

AA store, built by Aimee Weber

narrative environments vs social spaces

Game style worlds World of Warcraft, Lineage (I & II), City of

Heroes, Everquest (I & II), Star Wars Galaxies, etc.

Strong central narrative Social spaces

Second Life, A Tale in the Desert, Project Entropia, There, etc.

No central narrative – free form

Who cares about games?

subscribers care about games

mmogchart.com

publishers care about games

Vivendi Games division three-month earnings (second quarter 2006): Earnings: €162 million (AUD$274.5 million)

up 29.6 percent Profits (before interest and tax): €39 million

(AUD$66 million) up from €5 million ($8.5 million) the previous

year. Growth attributed primarily to WoW

Includes loss on start-up investments for Sierra Online and Mobile Games divisions

http://www.gamasutra.com/php-bin/news_index.php?story=10824

economists care about games Castronova on Everquest in 2001:

Nominal wage USD$3.42/hour GNP per capita USD$2,266

77th in the world, between Russia and Bulgaria

Project Entropia, Second Life real currencies, real exchange rates booming virtual real estate business

It's not just about money and property

Castranova: 20% of Everquest players live in Norrath and commute to Earth to

support themselves

Not just money!

Social relationships people live, love, learn in these spaces play, trade, socialise – no real limit to

motivations of participants

“Virtual worlds are entitled to respect because real people care about them and

come together in them.” -- Grimmelmann

What are the rules?

what are the rules?

Governed by contract (EULA, ToS) Blizzard may terminate this Agreement at any

time for any reason or no reason. In such event, you must immediately and permanently destroy all copies of the Game in your possession and control and remove the Game Client from your hard drive. Upon termination of this Agreement for any reason, all licenses granted herein shall immediately terminate. (WoW EULA, cl 6)

The virtual world is the property of the platform owner a (mostly) benign dictatorship

What are the problems?

near-term tensions

Real Money Trades (RMTs) Virtual crimes Virtual liberties Intellectual property – copyright Privacy

Tension: Real Money Trades MMORPGs are boring Time-poor players pay others to grind for

them money, items, status

Game-based worlds often prohibit RMTs seen as a breach of the magic circle potentially harms subscription model –

removes grind, and lowers barriers to exit players dislike both 'eBayers' and 'farmers'

eBayers obtain benefits without labour; farmers cause inflation

RMTs (cont)

Blizzard banned 30,000 accounts in May – removed 30 Million gold (USD$3.2M)

Actively encouraged by other worlds Everquest, Ultima Online – centralised trading Project Entropia, Second Life – fluid economy

Selling property of the publisher, or buying the labour of the participant?

sweat shops, or new economy entrepreneurs?

Fox News – WoW sweat shopsAnshe Chung @ Business Week

who gets to make the rules?

UO farming rigInternet Gaming Entertaiment

PunkBuster

what happens if the rules change?

Expect virtual environments to adopt a services based economy power-levelling, custom designs, etc

Economy based primarily on artificial scarcity vulnerable to inflation, flooding by platform

owner or participants Detinue and Conversion of virtual wealth? Suits against platform owner for unfair

competition?

Should we ever prevent platform owners from making changes which affect

perceived value?

(Bartle warns that admins must have the power to make changes)

Question

Tension: Virtual liberties

Freedom of expression Freedom of the press Freedom of association

As more of our interactions occur in these virtual environments, who controls our relationships?

Public activities in private spaces Who has rights of exclusion?

Are these places going to be countries or country clubs? -- Prokofy Neva, upon being banned

from a 'public library' in SL

Freedom of the press

Anshe Chung @ Business WeekAnsche Chung's previous life as an escort

<http://www.smh.com.au/articles/2007/01/17/1168709794333.html>

Anshe Chung, self proclaimed Second Life Millionaire, has had a lot of publicity over the past year

Second Life's first Property Magnate

Organised a Q&A session for CNET in December 2006

Freedom of the press

Anshe Chung's CNET interview disturbed by flying penises

http://www.smh.com.au/news/web/good-grief-bad-vibes/2006/12/21/1166290662836.html

Anshe claimed copyright in videos of the attack, and made a DMCA complaint against reporters

Complaint withdrawn after advice from the EFA that the videos were fair use

Freedom of the press

Video removed from YouTubehttp://video.google.com/videoplay?docid=5387867190768022577&q=Anshe+Chung

To what extent should the press be able to report on incidents in a VE without being

sued for copyright infringement?

Question

Freedom of expression

Participants unable to represent their environments machinima game guides (Kopp v Vivendi)

Image: Tristan Pope

When everything a participant can see is a digital copyright work, it becomes

impossible to represent their environment without infringing copyright.

Should we allow people this ability?

Question

Freedom of association

Naked gnome protest

http://www.cesspit.net/drupal/node/491

Freedom of expression – political protest

Protest at Le Pen's Front National's SL HQ NWN <http://nwn.blogs.com/nwn/2007/01/stronger_than_h.html>

Freedom of expression – political protest

Neighbouring land used to erect protest signs NWN <http://nwn.blogs.com/nwn/2007/01/stronger_than_h.html>

And the protest degenerates into days of violence NWN <http://nwn.blogs.com/nwn/2007/01/stronger_than_h.html>

Community reactions SL Left Unity group “will be manning a

protest [...] until FN go or are ejected. Wherever fascists are we will ensure they get no peace to corrupt and lie to decent people.”

"With this persons we can't debate or ignored. We can't because it's not acceptable."

"They're a bunch of losers, [...] We're gonna tighten security and come back." - FN Officer Wolfram Hayek

NWN <http://nwn.blogs.com/nwn/2007/01/stronger_than_h.html>

Fantasy Westward Journey

http://www.zonaeuropa.com/20060709_1.htm

Fantasy Westward Journey

http://www.zonaeuropa.com/20060709_1.htm

Fantasy Westward Journey

Around 10,000 protesters

http://www.zonaeuropa.com/20060709_1.htm

Fantasy Westward Journey High level alleged

ringleader locked up in a permanent prison, guild disbanded

Playing for 2 years, leader of a top-five guild, spent AUD$6500+ on points and equipment

Avatar name translates to “Kill the little Japs”

Guild name to “The Alliance to Resist Japan”

http://www.zonaeuropa.com/20060710_1.htm

Examples demonstrate the power of protest in virtual environments

If it weren't for issues with server load, do we have an obligation to allow non-violent

in-world protests?

Question

Virtual liberties – discrimination

Tired of intolerance, Sara Andrews wanted to start an in-game guild which was friendly to lesbian, gay, bisexual, and transgendered players:

“OZ is recruiting all levels, but especially 50-60s! [...] We are not "glbt only", but we are "glbt friendly"!”

Response from Blizzard:

Please remember that it is up to our sole and absolute discretion whether or not to allow certain types of language in the game. While some language in and of itself may not be offensive, it may incite certain responses in other players that will allow for discussion that we feel has no place in our game. As such, I am afraid that I am unable to reduce, reverse or otherwise amend our previous decision.

Blizzard changed their mind and apologised.

Is this a situation where we would have expected the law to intervene to prevent

private censorship?

Question

Tension: Virtual crimes

Fraud? online

gaming? tax

evasion? Money

laundering?

Virtual crimes

Extortion? Griefing?

http://www.secondlifeherald.com/slh/2005/01/extortion_anshe.html

Who decides when an action in a virtual environment is a 'crime'?

Should criminal law ever regulate purely internal actions, or should these be within

the control of the platform owner?

Question

How do we decide what to do?

Evaluating potential approaches

Essential tension:

allowing virtual environments to develop

vs

regulating to protect legitimate interests

It's just a contractual relationship...

Solution

Limits to a contractual solution

EULAs and ToSs are one-sided

Virtual worlds are designed to encourage high switching costs

Play is constructed in a way that benefits the subscription model

“if you don't like it, leave”?

right of exit dependent on low switching costs high switching costs important for continued

subscriptions Very difficult to leave an environment which

is designed to attach you property, status, social relationships

It's a contractual relationship

(subject to consumer protection laws)

Solution

Consumer law and implied terms

UK, EU, Victorian legislation on unfair terms A term in a consumer contract is to be regarded as unfair if,

contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer. (Fair Trading Act 1999 (Vic) s 32W)

Part IVA TPA focuses on procedural not substantive unconscionability

Modifiable contracts

Jankowich: 75% of virtual world EULAs specify that the

proprietor may amend or modify the agreements at will;

40% per cent allow modification without notice to the participants.

Such terms could be reasonably rendered void by a court for uncertainty, or may fall afoul of statutory restrictions on the ability to unilaterally modify agreements.

Termination at will

Jankowich 75% of virtual world contracts allow

termination at will by the platform owner Could be a statutory unfair term in certain

jurisdictions The broad discretion as to whether to

fulfil the contract may renders the platform owner's consideration illusory

The trap of invalid contracts

If the EULA or TOS is void (uncertainty, adequacy of consideration, or unconscionability), the participant has no right to access the virtual environment

Where does that leave the user?

Imposing categorical rights and responsibilities?

Solution

Statutes of interration

Castronova and Balkin suggest creating legal categories of virtual environments

Imposing rights and restrictions based upon the chosen category E.g. Commodified worlds must guarantee

some level of free speech; or Game based worlds are granted safe habour

from claims about changes they make in world

Statutes of interration

May prove too inflexible to be useful Depends on categorisations of VEs Will be difficult to develop middle-ground

approaches May be too prescriptive to allow new

types of virtual worlds to develop May prevent individual worlds from

evolving as their needs change

Case by case application of general principles

Solution

A Sui generis law of virtual environments

a minimal set of actionable wrongs and inalienable rights?

● Realms supporting or benefiting from RMTs bear responsibilities to participants?● conversion and detinue?● Restrictions on mudflation, devaluing economy?

● Right to property for participants?● Jankowich: property rights would allow participants

to bargain with platform owners● But would also restrict the platform owner from

shaping the environment

A right to exit

Participants have no power unless they can exit or vote with their wallets Real Money Trades can significantly lower

switching costs (for commodified indicators) Standardised transfers? Increased competition? Increased interoperability?

Are low switching costs necessary for a liberal environment?

Limits of sui generis approach

Could be quite a haphazard approach Individual courts or legislatures could

wreak havoc on virtual worlds if law is brought in by flawed analogies

Where do we go from here?

Evaluating potential approaches

We've identified interests and tensions

The next stage of this research is to develop a model to evaluate these potential approaches

How do we know when to regulate and when to let these realms develop for

themselves?

The wisdom to know the difference