METANOMICS:

VIRTUAL JUSTICE   - THE NEW LAWS OF ONLINE WORLDS

NOVEMBER   8, 2010

Metanomics is a weekly broadcast on the serious uses of virtual worlds. Visit

http://metanomics.net. Metanomics is owned and operated by Remedy Communications.

ROBERT BLOOMFIELD: Hi. I'm Robert Bloomfield, professor at Cornell University's

Johnson Graduate School of Management. Today we continue exploring Virtual Worlds in

the larger sphere of social media, culture, enterprise and policy. Naturally, our discussion

about Virtual Worlds takes place in a Virtual World. So join us. This is Metanomics.

ANNOUNCER: Metanomics is filmed today in front of a live audience at our studios in

Second Life. We are pleased to broadcast weekly to our event partners and to welcome

discussion. We use ChatBridge technology to allow viewers to comment during the show.

Metanomics is sponsored by the Johnson Graduate School of Management at Cornell

University. Welcome. This is Metanomics.

ROBERT BLOOMFIELD: Welcome to Metanomics. Today our guest is Greg Lastowka,

professor of law at Rutgers School of law in Camden, New Jersey. Greg is an expert in the

legal aspects of Virtual Worlds, as well as more general topics in internet law, with a

particular emphasis on property rights, copyright and the like. Greg just published a new

book Virtual Justice. We're going to talk about that book today and get Greg's thoughts on

other recent legal news in the digital sphere. Greg, welcome to Metanomics.

GREG LASTOWKA: Thank you. Happy to be here.

ROBERT BLOOMFIELD: Congratulations on your book.

GREG LASTOWKA: Thanks. It's great to have it out in print.

ROBERT BLOOMFIELD: And now you can stop thinking about it and move on to the next

project. Right?

GREG LASTOWKA: I think so. Maybe a little bit of publicity first, but after that, on to the

next thing.

ROBERT BLOOMFIELD: Yeah. Let's start right there with the publicity. So what I thought

we'd do is walk through some of the major themes of your book and then move on to two

topics of the day and, in particular, I've got some questions on copyright, and I'd love to

hear your thoughts on the recent oral arguments on videogame censorships at the United

States Supreme Court.

GREG LASTOWKA: Sure. Sounds good to me.

ROBERT BLOOMFIELD: And then, of course, privacy on Facebook is always worth a few

minutes of talking about; Google as well. So before we get there, on the frontispiece of

your book, you have a quote by Henry David Thoreau, "If you have built castles in the air,

your work need not be lost. That is where they should be. Now put the foundations under

them." My reading of your book is that the castle is a running theme, and you're very

concerned about the current foundations, or lack thereof, of Virtual World law and justice.

So do you want to just walk us through the premise of your book?

GREG LASTOWKA: Sure. And the castle is kind of my theme. I've got the ASCII castle

there right underneath the Thoreau quote. The reason I decided on the castle was that I

was actually reading a little bit about the history of law in the Middle Ages, and I was

surprised to find that the castle was this central institution in judicial rule during the Middle

Ages, that the castle also served as a court and a kind of center of law in the Middle Ages.

So I start the book actually with a discussion of Cardiff Castle. The Cardiff Castle was just

a typical English castle.

And the thing that I found interesting about the English system of castles and feudalism is

that, when I teach first-year property law, what I tell my students what's the fact about the

common-law system of property is that it originated in these feudal arrangements between

lords and vassals, where the military kind of overlord demanded military service in return

for granting ownership of land. So the very notion of property and land in England and, by

extension, the United States, is premised on this idea that we hold estates in land, and we

hold estates kind of subject to certain limitations that are tied up with this history that

actually goes back to the time period of military castles and this kind of military society that

was centered around them.

I used Cardiff Castle to explain how the castle itself is a new technology at the time, and

it's a new technology that actually projects itself into the laws, into the rules, and the

interesting thing is those rules that we got from castles are certainly in the law today, and

we can still see traces of them. I mean the law has evolved since that time significantly.

We're no longer in a feudal society, but we can still see the law reflecting its origins, the

property law and this feudal system. So that's where I start off with Cardiff Castle.

And then I make the leap from Cardiff Castle to Cinderella Castle in Disney World.

Cinderella Castle, I think, is moving a little bit closer to castles in Virtual Worlds, in that

Cinderella Castle is a representation of a castle. It's a physical, tangible castle, and it's a

real place. But it is largely about projecting the image of a castle and convincing viewers

that it is a castle. Not about any of the military functions that the castle actually has. When

I was researching the history of Disney World, I found some interesting facts about

Orlando and Disney's kind of ownership of the land in that area as well.

What I found was that there's special laws actually in Florida that grant the owners of

Disney World, the Walt Disney Company, the ability to set their own zoning regulations

and essentially act, you know, the municipal government for the land where Disney World

is centered. So I found that fascinating, this kind of intermediate step between physical

kind of castles and fantasy castles and this kind of interesting relationship between this

corporate entity and a real government. The interesting thing is that Disney kind of steps

into the role of a real government in the land where Cinderella Castle sits. So I used

Disney as an intermediate step to go to the Dagger Isle Castle.

ROBERT BLOOMFIELD: Actually, before we do that--

GREG LASTOWKA: Sure, go ahead.

ROBERT BLOOMFIELD: --I'm looking at the chat. You're getting some traction in the

analogy to feudal law, and so I'm wondering if you could just elaborate on that a little bit. I

mean to what extent currently do the people who run Virtual Worlds really have that sort of

legal authority over their peasants?

GREG LASTOWKA: Well, that's basically a theme of the book that the ownership of the

technology of a Virtual World gives the owner of that platform the ability to essentially craft

new rules for the society that lives within that platform. And I see the way the law

interfaces with Virtual Worlds today as essentially allowing these to be separate

jurisdictions. I make the point in the book that I'm not saying that the United States will

recognize Second Life as its own independent country capable of making its own

independent laws.

That's not the way it's going to work. It was actually the way some people thought it would

work, I think, in the mid '90s when they first considered the way that the law was affecting

the internet. But the way it actually has played out is that the ownership of the machines,

the central servers on which the community functions, the software through which the

community relates with each other and where the value is stored, the ownership of that

physical machinery counts for a whole lot in the legal system.

Additionally, the intellectual property rights, the ownership of the copyright in the software

and in the platform counts for a whole lot in the legal system. And the institution of

contracts, with Terms of Service and then User License Agreements, counts for a whole

lot in the legal system. And then I could also throw on the First Amendment rights which

we'll talk about with regard to the recent Supreme Court case. You could also throw on

additional rights based upon computer hacking. You could additionally throw on the fact

that this is a kind of fantasy environment, and some judges and legislators and some

policymakers tend to think of Virtual Worlds as games, so there's a whole level of

deference that's attendant to that as well.

So all of these things combine together in an interesting way so that the kind of default

status of Virtual Worlds is that they are separate institutions where the owner of the

platform has a tremendous degree of control over the society that's kind of dwelling within

that platform. That's how it ties back, I think, to the analogy of the medieval castle, where

the feudal lord basically makes the law within the castle and sits in judgment as the case is

presented. So I think there's a strong tie between what we're seeing in the emergence of

social networking platforms in Virtual Worlds and particularly on the internet, a strong tie

you can draw between that and the emergence of kind of castle law in the Middle Ages.

ROBERT BLOOMFIELD: When you indicated that list of features that have given so much

power to the platform owners, one of them was that it’s play and it's fantasy, but this leads

into that third castle that you talk about in your book: Dagger Isle.

GREG LASTOWKA: Right. yeah.

ROBERT BLOOMFIELD: And $999.88, real U.S. dollars, it doesn't seem--

GREG LASTOWKA: Not a thousand dollars.

ROBERT BLOOMFIELD: It gives a new meaning to fantastic. It's not just a game. So take

us then into that third castle, the Dagger Isle Castle and what that implies for virtual

justice.

GREG LASTOWKA: Well, that's what was so interesting to me. The Disney castle from

Cinderella is, it's based on this story, this folktale about the cinder maid that becomes a

princess. The Dagger Isle Castle it struck me was wonderful--well, from my personal

history, when I saw that for sale on eBay, that was when I realized that there was

significant investments at stake here in Virtual Worlds and that the legal system wasn't

really ready to handle the issue of virtual property. I realized that ownership, the de facto

ownership of that castle was in the user of the platform. That the intellectual property

ownership was elsewhere. It's in the game company's hands.

But if you own the Dagger Isle Castle, you could list it on eBay at the time and sell it to

someone else and make a profit from it. So that's what got me interested in the writings of

Ted Castranova and the whole idea of virtual economies. And there was this interesting

correlation [and the reason} kind of worked out in the book very well with that. It's

borrowing from these themes of the feudal era, and the owner of the castle in Dagger Isle

saw themselves, I think, projected themselves with the fantasy owner of this fantasy castle

much in the same way that you could fantasize about Cinderella, the actress who plays

Cinderella in Disney World.

But the question that I ask in the book and that I've kind of been thinking about for the last

seven years or so was, if you actually own this virtual property and you can sell it, and you

have acquired it, and you feel the pride of ownership in it, is it legally yours? Do you really

have any legal property interest in it? Clearly, Virtual World owners want to sell users the

idea that you can be the owner of virtual land or of a virtual castle or what have you. But

when it comes to the actual contractual terms and the way the technology plays out, the

owner of the virtual castle is usually legally beholden to the owner of the Virtual World

platform so there's this fantasy of being the lord of the castle and some ability often to

monetize on that interested property, but, in fact, when it comes down to the law, it turns

out that the user is usually a serf in the Virtual World owner.

ROBERT BLOOMFIELD: When it comes down to the contract, usually what it is, people

will say ownership because it's simple and understandable, but it's actually more some

type of right-to-use license. Is that right?

GREG LASTOWKA: Yeah, exactly. But the way that lawyers will draft Terms of Service

and End User License Agreements are usually they're seen as a defensive mechanism to

protect the interests of the company or business. And they want to avoid any future legal

problems with their users. So they try very hard to make sure that their Terms of Service

and End User License Agreements are bulletproof and enforceable and protect their

interests. They're not a mechanism by which they're going to hand out property rights to

users. So that is the explanation why the Terms of Service are structured the way they are

and the fact that very few people read Terms of Service on all these online contracts, I

think creates an additional incentive for the companies to push them as far as they can, as

far as they can get enforceability, to favor their interests over the user interests.

But just like Disney World, you need to attract new customers to a Virtual World platform.

So even though the legal terms are very harsh, I think, to the users, and the day-to-day

operations of any of these platforms, customer service is a big part of the business. So the

Terms of Service might say one thing, the contractual law might say one thing, but, if you

actually come to the company and say, "I have this problem, or this person stole

something from me," you might get more of a response than the contracts suggest that

you'll get.

ROBERT BLOOMFIELD: Just to stick with the contract analogy, one of the terms I

thought was really interesting in the book is, you talk about in the 1400s or so that

governments would grant the license to crenellate, which was basically important for

those.

GREG LASTOWKA: Right. Right.

ROBERT BLOOMFIELD: I learned this because my kids decided they loved castles, and

so I learned the word "crenellations," which are basically those parts at the top of the

castle, that go up and down and up and down, make it look very castle-like. You can shoot

out from in between them. So the government would provide the right to build the castle,

which was naturally very important for the larger nation to make sure it was protecting its

own rights against the people who are building castles and could take up arms against

them. So I'm wondering to what extent you see the regulatory oversight of Terms of

Service serving as kind of a right to crenellate. What are the limits, at this point, on what

someone who runs an internet platform can and can't do? Is that all being determined by

court cases and common law? Or are there some movements to actually have licenses to

crenellate limited through legislation?

GREG LASTOWKA: The licenses to crenellate are issued as a way of essentially

checking the proliferation of castles. The castles are very important, as you said, to

national defense, but the monarch usually has a certain relationship with the aristocracy,

and there's always a threat, a faction of the aristocracy's going to overthrow the monarchy

so you don't want them to be too powerful, right, you don't want them to arm themselves

over much. So there's this balance between the state and private technology ownership,

and you can see that today. Military technology in the tanks and machine guns are not

available to the average consumers, right, because this is too powerful a technology. We

don't want that kind of power, unless it's licensed by the state.

So with Virtual Worlds, I think the analogy that I'm trying to draw there is that the

technology becomes very important to society the way that the owner of one of these

platforms can kind of oversee that society can change the rules of the society and can kind

of set up its own private order on the platform. When I see the controversies over

Facebook, for instance, if Facebook makes a change to its privacy policies or does

something that the legislators sometime react and say, "We've heard you're doing this.

Why are you doing this? Answer these questions."

And there's this kind of regulatory wariness about what some of these private platforms

have the power to do. Google as well. When Google gets really big, I think the government

looks at it and says, "Is it too big? Does it have power that we're concerned about?" So

there's this interesting back and forth, I think, between the ownership of these very

important and very influential technologies that can act as social regulators and the state

itself. So you could talk about licenses to crenellate. By analogy. you could say that this is

something that's happening anytime law encounters new technology.

I think encryption regulations, the need for back doors to some technologies in order to

enable surveillance and stuff, these are all kind of analogous to licenses to crenellate, but

there's some technologies, even information technologies, where the state looks at it and

says, "Wait. You could have some technological power, but that technological power is

something that we need to control and to license selectively."

ROBERT BLOOMFIELD: We have a number of comments on Terms of Service. Linden

Lab, of course, which our viewership is very familiar with, has on occasion changed their

Terms of Service. And one of the interesting things is that you have to accept the Terms of

Service to get back in and get access to the stuff that you created under the old Terms of

Service.

GREG LASTOWKA: Right.

ROBERT BLOOMFIELD: So it is reminiscent to a passage in your book on the ProCD v.

Zeidenberg case. If you could just walk us through what that case found and how that has

influenced views on Terms of Service.

GREG LASTOWKA: Sure. The ProCD case was actually concerning the enforceability of

a shrink-wrapped license. So you get a piece of software, you buy it in a retail outlet. You

get it home, you unwrap it, and inside there's a License Agreement that says, "By breaking

the shrink-wrap, you have agreed to the Terms of Service that govern your use of this

software." So there were certain terms with regard to the software, in that case, that the

court said were enforceable. One of the questions was, "Well, how could the contract

possibly be enforceable if the purchaser of the software was unaware of the terms of the

contract when the software was purchased at the store? It was only after they got the

software home that they could read the terms and see what of the terms of the software

were."

And the court in that case didn't have any problems, Judge Easterbrook didn't have any

problems enforcing the terms of the agreement. And essentially Easterbrook's

position--and he takes this position in many of his cases--he's a believer in market

economics and law in economics essentially that, by having the terms inside the software

box and having the terms kind of spell out the agreement, that this would be an efficient

way to create uniform rules for the software industry. And, if the user didn't like those

rules, was free to return the software subsequently and get a refund on the purchase.

Essentially Easterbrook said that this freedom to contract is unproblematic, even if you're

not aware of the terms at the point of sale, that what we want to do is let private parties

form their own agreements. So the ProCD case becomes the basis essentially for, I think,

the software industry's reliance on Terms of Service and End User License Agreements to

govern consumers' relationships with the software that they purchase and own.

And when we moved into the internet era, instead of getting shrink-wrapped licenses, we

have click-wrapped licenses and browser-wrapped licenses so that when you sign up for a

new service, like Yahoo! mail or Second Life or any other Virtual World, when you install

the software, you have to click "I accept." And I've read these Terms of Service. The fact

of the matter is that most people don't read the Terms of Service; maybe one percent of

consumers are going to read the Terms of Service. They're all going to scroll down

through them and then click "I accept, I agree."

And this is, I think, increasingly problematic as a way to protect consumer interests in the

online context because I think many people don't realize the extent to which they're relying

on a company like Google or Yahoo! or a Virtual World company. When you start off,

you're going to agree to the Terms of Service and enter in and think, "Well, if I don't like

this, I'll get out. I don't want to spend the time reading this document." And, even if you do

read the document, you might not understand it because most of the time these

agreements are written in legalese, right, so you might not know what the terms mean,

and it might be hard to understand, and they might point to other documents where you

don't understand those terms as well. So from the consumer perspective, I think it's

troubling that the contract governs the relationship between the consumer and the

company.

There's obvious reasons why the companies want to do this, especially in the early

internet, no one knew where the next legal challenge would be coming from. So for the

company, if you're representing the company, as a lawyer, you want to put in all of the

defenses you possibly can so that your startup will not be tanked by a lawsuit. But I think,

as companies become more stable and more mature, there are increasing concerns about

click-wrap agreements being the way of setting out rules. I think there's a special concern,

a really special concern, about click-wrap agreements in Virtual Worlds or in social

software more generally.

In Virtual Worlds, the law that you need is not only the law that governs the relationship

between the user and the platform owner. You want to have a set of rules that govern the

relationship between the users so when one person is interacting with another person in a

Virtual World, they need to know what the rules are for their interactions with each other.

And often the Terms of Service or the End Users License Agreement doesn't do a good

job of describing clearly what your rights and duties are with respect to each other.

ROBERT BLOOMFIELD: And now you're stepping into Josh Fairfield's arena of the

Anti-Social Contract.

GREG LASTOWKA: Right. Right. Exactly. And his argument--he's got a complex

argument. But one thing that he says is that contract is not the ideal mechanism for

controlling relationships between users. We don't have--our system of law, essentially a

relationship between the individual and the state. Instead, we have a whole system of

private law that governs civil actions, like tort law governs negligence. You can sue

someone else if they do something, if they assault you, it's an intentional tort, or if they fail

to perform a duty that they owe to you. And that doesn't arise from your relationship with

the state.

So to the extent we want these online societies to flourish and we want to protect user

interests in Virtual Worlds and other kind of social software platforms, the law needs to

maybe step in or we need to see the emergence of some system by which disputes can

be resolved between users, between avatars in Virtual Worlds. So the click-wrap Terms of

Service, the standard agreement right now, is only about the user and the company, and

we really have a different landscape that we're looking at now.

ROBERT BLOOMFIELD: One of the things I wanted to ask you about is the distinction

between types of platforms and types of media and what they mean in the law. As an

accountant, one of the phrases I'm very familiar with is "substance over form." That if the

substance of an economic interaction between two parties is similar, then we want to

account for it the same way. I'd love to believe that the law was similar, but, as far as I can

tell, it's not. To take an example that's close to my heart, here at Cornell, Cornell has a

longstanding policy that a professor who writes a book, the old-fashioned thing that folds

open, made of paper, then they retain all the copyright.

Cornell will say, "Look. Yes, we employ you, but you write books, and that's fine. And you

can keep the copyright and make whatever money you're going to off of that." But the

current policy, and I know they're trying to change this, but, for a long time now we've had

a policy that, if you write a document that's maybe a Word file or a PDF, like your book,

that's not a book, that's encoded content, and Cornell will claim the copyright to that. It

seems to me a case where the substance of what's happening is identical, but because

the forms are different, the policy is different, and my impression is, it's the same in the

legal sphere, with case and civil law. So first, do you see that there are big differences

according to simply the digital form? And do you see those getting bigger or ultimately

converging?

GREG LASTOWKA: Yeah. I think that's a great observation, and it's definitely true of law

that much of law is written down in statutes with particular wording, or in common-law

doctrines with particular wording. So there's a great deal of, I guess, fixation in the law on

specific categories of things. Either it fits in this box or in that box and a great deal of

formalism. I think there are periodic attempts to rewrite the laws, to get past formal

categories. But as I was saying before about the traces of feudalism in the legal system, I

teach about the law of estates and future interests. There are all sorts of formal categories

of property rights. For instance, possibilities of reverters, life estates, all sorts of abstract

legal categories that can traced back to the medieval era hundreds of years ago in

England, and they persist to this day. We still have these particular boxes of property

ownership interests.

So one thing that the law does when it encounters a new technology is struggle often with,

well, which box does this new technology fall into.

The one thing that was actually in the book, and I cut it out of the book, just to make it

more focused on Virtual Worlds, was, I had an extended treatment of the Segway, the

machine that you ride around on. And the unique thing about the Segway was, it fell

between categories. Basically the question was: Should you be able to drive a Segway on

the sidewalk? Or would you need to drive it on the road? Because it's not exactly a car,

but it's not a person walking. Right? It's not a wheelchair or crutches or something like

that. So what kind of technology is it? And all around the world, the Segway I think is not

as popular a technology as it was thought to be by its inventors. But it is a technology

that's out there, and, as a result, all around the world governments are kind of struggling

with what exactly is this, and what law governs it. And you see that across so many areas

of law. You see struggles with, well, is this more like one thing in the past or more like

something else in the past.

For instance, there's a Supreme Court case--and this is another thing that I actually cut out

of the book; it would have been in Chapter Four--where a police officer uses a thermal

scanner on the side of a building. This is the Kyllo case that was before the Supreme

Court.

ROBERT BLOOMFIELD: I can remember this.

GREG LASTOWKA: Yeah. You remember this case? And the question was: Had they

actually--

ROBERT BLOOMFIELD: And I think it's discussed in Larry Lessig's Code 2.0, I believe.

GREG LASTOWKA: Yeah, that would make sense. Yeah. It was a very big case at the

time. And the question is: If the police officer, if they're scanning the side of your house,

with a thermal scanner, and seeing the heat signatures of things inside it through the use

of this technology, are they conducting a search of your house? Because they're actually

not entering into your house; they're outside of your property. So is this a search, or is this

not a search? In the past, you could never actually go and see inside someone's house,

without actually knocking on their door and stepping inside. And, for that, you needed a

warrant. So the question is: Do you need a warrant to use a thermal scanner on the side of

the house?

And the Supreme Court said yes, that that actually was a search, that particular

technology, but it had to struggle with what category. Does it fit in the search box, a Fourth

Amendment-violated search that requires a warrant? Or is it just something else? For

instance, GPS scanners right now, there's a similar question: Does fixing a GPS locater to

the bottom of a person's car and surveilling it, without the warrant, does that constitute a

search or not? And the courts are struggling with this. We have differing opinions from

circuit courts.

So new technology always does this to the law. It had neat categories, and then the new

technology destabilizes those categories, and the courts have to struggle to fit this new

technology in one category or the other. And sometimes it doesn't really fit in one category

or the other very well. When I talk about rights of virtual property in the book, claims that I

own the castle in Ultima Online or I have no interesting in the castle in Ultima Online.

What's probably the best solution, in some cases, maybe not all cases, is some kind of

compromise where there's a limited property right that might be trumped for a variety of

reasons. And the law can create that, but maybe that's something that's more of a

legislative solution than a common-law solution to arrive at.

So yeah, with your question about Cornell's policy, I think universities were very

comfortable in an age where students were educated by coming to the university, and

professors published books, but that wasn't the same as learning at a university. And

when the internet enabled distance education and putting out materials online, the

universities started to get concerned and said, "Well, if it's electronic, then it's not a book,

and it doesn't fit under the traditional rules so we need to actually own the copyright in

that, to protect our own interests." It's turning out to be very complicated on that front as

well.

ROBERT BLOOMFIELD: I see we have about 15, 20 minutes left, and I want to make

sure we get to one of the most recent examples of, well, in this case, video games rather

than Virtual Worlds making the news. And this is the Supreme Court oral arguments over

a statute in California that would, I guess, keep children from being able to buy and play

deviant, violent video games. This also extends this notion of substance over form, and

there are some very entertaining quotations here, who are, as the justices try to sort out

what this medium is. So you wrote that you see the California statute as an example of

moral panic over new media.

And so Paul Smith arguing for EMA, who is unhappy with the California law, say, "We do

have a new medium here, your honor, but we have a history in this country of new

mediums coming along and people vastly overreacting to them, thinking the sky is falling,

our children are all going to be turned into criminals. It started with crime novels of the late

nineteenth century, which produced this raft of legislation, which was never enforced. It

started with comic books and moves in the 1950s. There were hearings across the street

in the 1950s where social scientists came in and intoned to the Senate that half the

juvenile delinquency in this country was being caused by reading comic books. We had

television, rock lyrics, and now the internet." Do you agree? I mean this sounds sort of like

Demetri Williams position here.

GREG LASTOWKA: Right. And I do agree with that. I think a lot of the popular reaction

against video games is very similar to these former sorts of moral panics where video

games are blamed for societal problems generally, that they make an easy target. It's

something new. It's something that most adults that would be in the position to pass laws

censoring this material would actually not know much about, but be very suspicious of.

You can think of examples of graphic violence in games that people find shocking, and, as

a result, we see kind of a reactive legislation trying to keep this material out of the hands of

kids. So I do think of it as really being a kind of continuation of these previous moral

panics.

At the same time, I do think that, personally, I find overly-violent video games not

something that I would have my children playing, and I find them sometimes disgusting. I

think Justice Scalia pointed out in the oral arguments that there's some terrible things in

Grimm's Fairy Tales, right, that he finds disturbing as well. So what I find troubling about

the California statute is, it says this treatment for movies, which basically have the same

effects, media effects, in terms of increased aggression levels, etcetera, as you'll see on

the studies of violent video games, that movies are carved out as situations that's not

covered by the California law, but video games are targeted. And I think it's very

suspicious and that the social science doesn't really support targeting video games

exclusively for their media effects.

Plus, the First Amendment tradition that we have in this country, and other countries don't

have it, but the First Amendment traditions we have in this country say that, even if you

find something disgusting and distasteful, there's still a right to convey that message. And

there are limitations on these First Amendment freedoms, but they are not, as

Justice Scalia points out, for violent depictions in speech. So this would be something

entirely new if it were endorsed by the Supreme Court. I don't think it will be.

ROBERT BLOOMFIELD: Well, my understanding is that there have been many attempts

to have these types of censorship laws, and none of them have really even come close to

passing First Amendment muster.

GREG LASTOWKA: Yeah. The one thing about this case that separates it from the

mainstream First Amendment cases, there is a case called Ginsberg where the state of

New York passed a special law targeted at keeping obscenity out of the hands of minors,

and that case was actually endorsed by the Supreme Court as a way of extending kind of

parental interests through state legislation. However, subsequently, the legislation that

was passed trying to create a similar kind of top-shelf area keeping indecent speech away

from children on the internet was struck down by the Supreme Court, in Reno   v. ACLU

and subsequent cases. So it would surprise me a lot if the Supreme Court were to uphold

this California statute.

ROBERT BLOOMFIELD: We're going to run out of time to talk about this because I want

to get to a couple other things, but I do just want to point out to our viewers a couple

wonderful quotes. I'm going to paste in a hyperlink. This is from Slate. Dahlia Lithwick on

Slate has an article that is written in a very humorous style, but the quotes from the oral

arguments really couldn't be funnier on the Supreme Court scale, of course. But one of

them is that Justice Scalia wants to know what James Madison thought about video

games and whether he enjoyed them. And Alito follows up, saying, "Video games

represent a new medium that couldn't have been envisioned when the First Amendment

was adopted." And then Lithwick comments, "Scalia looks as though he's been stabbed in

the back with a rusty bayonet. Mastery of defense, originalist defense of living

constitutionalism: 5,000 points."

And then, of course, we talked a bit about fantasy early on. Justice Sotomayor asks this of

the person representing the California statute, defending it, she asks, "Would a video

game that depicted a Vulcan, as opposed to a human being, being maimed and tortured,

would that be covered by an Act?" And Morazzini says, "No, it wouldn't, your honor,

because the Act is only directed toward the range of options that are able to be inflicted on

a human being." And I know you commented on your blog post. So Vulcans aren't people

so violence against Vulcans is not covered by the statute. But then it turns out that virtual

humans that spring back to life after they are disemboweled would be covered, even if it

would degenerate [CROSSTALK]

GREG LASTOWKA: Because they're humans.

ROBERT BLOOMFIELD: So I strongly recommend that viewers take a look at that. But

with our last ten minutes, I do want to turn back to a couple other issues. We have some

questions from the audience I want to get to. And the first is, there was quite a bit of

commentary early on, on the way you chose to publish your book. I guess actually why

don't you describe for us how you are getting your book out there?

GREG LASTOWKA: Well, it's published under a creative commons, noncommercial

attribution 3.0 license, which means that people are free to distribute it non-commercially,

as long as they provide attribution to me, as the author. My personal preference is to get

this into the hands of anybody who wants to read it on the screen. Of course, I can't

subsidize wood-pulp distribution of the books to everybody who wants to read it on paper,

but I can give away the text to anybody that's interested in this topic, and that's what I've

done by putting a link to my webpage where I actually have a copy of the text.

And I'm really grateful actually to Yale University Press for letting me do that, for offering

me that arrangement. It's really great to be able to publish a hard copy of the book, with

such an excellent publisher, and also be able to give it away to anybody that's interested

in reading it. So that's what I decided to do. I was never hoping to make a lot of money off

the book so I'm really happy if people just download it and take a look if they're interested.

ROBERT BLOOMFIELD: This is you're sort of putting your money where your mouth is

because you've also spoken about you have some serious concerns about copyright law.

There are some remarks you have to a hearing on what the impact of copyright policy on

innovation in the digital area to the board on science technology and economic policy of

the National Academies.

GREG LASTOWKA: Right.

ROBERT BLOOMFIELD: And you had a quote that I really liked, and I'd just like you to

elaborate on it. The quote is, "The public is not composed of pirates. It is composed of

authors." What did you mean by that?

GREG LASTOWKA: Well, my ideas about this are informed by Jessica Litman and

Yochai Benkler and a host of others who have written about this topic. But I really strongly

believe that the approach that we've taken to copyright in this country has been misguided

in that what we've done is pass laws that treat the internet like a giant copying machine, in

the sense that professional creators of content see the internet as a risk. Basically, the

laws treat the internet as all downside, that there's going to be runaway copying, and no

longer will anybody want to create anything because it will be an economic incentive to do

so because everything will be copied on the internet.

And what I see when I look at the internet, when I look at the worldwide web, is, I see an

outpouring of creativity on these user-generated content sites, just on your average,

everyday webpage. I see all of these people contributing their ideas to the internet and

contributing their creativity and their passion and their interests and helping each other

out. I just think that that's wonderful, and I think that creativity needs to be recognized as

valuable. And the technology that has enabled it needs to be recognized as valuable as

well. So we shouldn't have copyright laws that treat the average consumer as a

presumptive pirate. We should have copyright laws that figure out ways to enable

everybody to put their creativity on the web and share it if that's what they want to do and

that can build on that value.

And, again, it's what I was talking about through the whole interview, a new technology

comes in to the legal system. The law has to put it in one box or another, and the way that

new technologies have generally been perceived by copyright is, technologies are seen as

enabling piracy and the creation of additional copies that undermine the economic

incentives. I see it as a great kind of democratizing force in culture. I think that the

industries have to adapt to this new environment, this new technological environment that

we're in. But the most important thing for copyright law to do is to make itself more

sensible to the average citizen because all of our activities are implicating copyright these

days because everything is electronically mediated, and I would really like to see a

copyright law that people can understand.

I teach copyright law, and it takes me a whole semester just to get the basics to my

students. I'd like to put myself out of a job in the sense that I'd like to have a very simple

copyright law that people would be able to understand and would not be written essentially

by commercial publishers and the entertainment industry to further its own interests

because it's too important at this stage to have it be a kind of privatized and captured

legislation. So I think giving away my book is definitely putting my money where my mouth

is.

Again, if people want to make their living off of content, I really endorse that, and I'm not

saying that we can't have copyright. I'm not saying that everybody has to move to a

system where they're giving their work away. That's definitely not what I'm trying to say. All

I'm trying to say is that, if you make the decision to make your content available in a

free-access form, the copyright law should respect that and enable that because it's

actually socially valuable.

ROBERT BLOOMFIELD: Okay. Great. Well, we just have a few minutes left. Are there

any big points that you would like our audience to take home with them, that we haven't

gotten to yet?

GREG LASTOWKA: Well, because you can download the book and take a look at it,

Chapter Nine on copyright is where actually much of what I was just talking about with

Virtual Worlds. And I think that it's wonderfully complicated, and it kind of captures my

point. One thing, and I'll just throw this on there, an additional concern is that, to the extent

that we're seeing this kind of user creativity today, a lot of it's being harnessed by

companies that are kind of building their business models on the creativity of users.

The final kind of analogy in Chapter Nine is again to like the feudal analogy, where serfs

are tilling the land basically for the benefit of the overlord. And to a certain extent, we see

this in Virtual Worlds where users are generating the value of the platform, but the owner

and controller of that value is the platform owner, right, the company that created the

platform. That's found in copyright as well and is kind of mediated by the Terms of Service

and End User License Agreement. Unfortunately, I can't go into much more detail than

that very shortly, but that copyright in Virtual Worlds is a kind of key element, I think, in any

understanding of where the policy issues are and what needs to be adjusted.

ROBERT BLOOMFIELD: Great. Okay. Well, that takes us to the top of the hour. So, Greg

Lastowka, of the Rutgers School of Law, thanks for joining us. I believe every one of our

viewers does have the link to your PDF. I see a number of people saying, "Well, the PDF

looked interesting so I am going to buy the book."

GREG LASTOWKA: Oh, great! That's great. I like that too.

ROBERT BLOOMFIELD: Yeah, that's also a useful plan. But, of course, Metanomics itself

is freely distributed, and, hopefully, some people will learn about it from that. So with that,

thanks, everyone, for joining us, and we will see you next week. Thanks a lot, everyone.

GREG LASTOWKA: Thank you.

ROBERT BLOOMFIELD: Bye bye.

GREG LASTOWKA: Bye bye.

Document: cor1092.doc

Transcribed by: http://www.hiredhand.com