UC Irvine Virtual World Conference Notes

By Eric Goldman

Last week, I attended and spoke at a conference at UC Irvine entitled “Governing the Magic Circle: Regulation of Virtual Worlds.” I didn’t take notes for every speaker, and as usual, these notes are my impressions, not verbatim transcriptions. If you want more depth, the indefatigable Rebecca did her typical comprehensive coverage (panels 1, 2, 3, 4).

Sal Humphreys. Rebecca’s coverage

What kind of space is game space? Typical argument: game space is a magic circle, separated from other spaces. Game scholars disagree with this characterization. Her approach: game space is a heterotopia = between real space and utopia (placeless) place. Game boundaries are permeable, where legal rules, community norms and game rules are overlapping.

Ex 1: David Myers and Twixt. In City of Heroes, he complied with game rules but violated social norms, so he was driven from the community.

Ex 2: WoW funeral massacre. One guild held an in-game memorial service for a deceased member. A rival guild swept in and massacred all of the memorial service attendees; then posted video to YouTube. Split reactions to this. View #1: massacring guild violated social norms by disrupting a funeral. View #2: the memorial guild imported an out-of-game social norm (respect the dead) into the game without consent. In large-scale games across cultures, it’s not possible to reach a single consensus on group norms.

Ex 3: A GLBT Guild in WoW. Community manager tried to ban the guild, saying it invited harassment. Lambda Law threatened suit, then WoW backed down.

Conclusions: rules don’t respect the magic circle. Instead, the heterotopia approach may better describe the actual situation.

Mark Lemley. Rebecca’s summary.

He’s playing the role of an old Internet curmudgeon. The first generation of Internet law resembles the current regulation of virtual worlds. In the old days, the Internet was a small, insular culture with its own norms, it regulated itself through its own norms, and many activities online didn’t seem that important to outsiders (like virtual worlds, which are routinely dismissed as “just games”). However, the Internet’s status as a second class citizen had a benefit—it meant the regulators left us alone. That didn’t last.

As virtual worlds become more important to more people, and as more people spend more money in virtual worlds, more regulators will take notice. We’re going to see the magic circle breached by regulation. The attitude that “it’s just a game” won’t last. Virtual worlds won’t stay “virtual.”

[Eric’s note: for a similar riff, see my Third Wave of Internet Exceptionalism paper.]

In 1994, Mark’s paper “Shrinkwraps in Cyberspace” argued that having three dozen Internets is no better than having no Internet at all. In contrast, virtual worlds don’t need to interoperate. They can act as laboratories for experimentation, and one virtual world’s failure won’t have the same catastrophic consequence as the failure of the Internet generally.

Novel technology creates the possibility of that we won’t make law-by-analogy; instead it’s possible we could create zones of legal doctrinal novelty. This could teach us about new changes in law, but it could also lead to bad outcomes.

Another lesson: Openness breeds creativity. This is surprising from IP law’s perspective, which assumes openness is a failure, so it closes down/propertizes things. The law can help promote openness. Ex: 47 USC 230. But incumbents have incentives to kill that openness.

Farnaz Alemi. Rebecca’s summary.

Minors are important consumers in virtual worlds arena. Kids play freemium games and rack up big charges. Who should be responsible for kids’ virtual worlds purchases? Options include parents, game providers, credit card companies and children.

Exceptions to disaffirmance:

• necessaries

• can only be used as shield, not sword

• certain labor contracts or IP licenses

Children know what they are doing online, and they understand games better than we do. So what more can gaming companies do to make things clearer to kids? Without protection, game providers will shy away from marketing games to kids.

Her argument: There should be a rebuttable presumption that kids understand what they were doing online. If kids feel they were scammed, then they can rebut.

My observations: (1) this argument discounts that kids are more easily manipulable than adults. Consider, for example, on a freemium model, a deliberately youngster-oriented site could get a child to become emotionally invested in tending a virtual cow. Then, after a period of time, the site threatens to send the cow to the burger manufacturing plant unless the child pays $X. A child might respond differently to the opportunity/threat than an adult. So even if the child “voluntarily” pays to save the cow from the meat grinder, we might still view this as an appropriately voidable transaction. (2) the presentation didn’t address the possibility that the transactions are complete and therefore no longer voidable to the children. (3) my bigger problem with kids online are when kids sign up to a mass market TOS/EULA and the vendor has no way of knowing that the person signing was a child. In these situations, it might be appropriate to suspend the voidability rules because there’s nothing different we’d want the vendor to do to accommodate the possibility of kids as customers. Surprisingly, this issue rarely comes up in the caselaw; and in the most obvious case where it has, the AV v. iParadigms case, the court found a way to stick the minors.

Ben Duranske. Rebecca’s summary.

Professional responsibility issues in virtual worlds. Most obvious one: client identity issues. One avatar may be shared by many people, one person may have multiple avatars, and an avatar could be an individual or a representative of the individual’s employer. In each case, the lawyer may have issues determining client conflicts and maintaining client confidentiality.

In Second Life, avatars receive lots of unsolicited information, and an avatar identified as an attorney will get inquiries containing confidential information. Lawyers can avoid this through some type of clickthrough before allowing submissions. Better yet, don’t identify oneself as an attorney. [My note: this wasn’t clearly different than a lawyer receiving an email at a published email address. This appears to be a an unavoidable truth of modern electronic communication. So I wonder if Ben’s recommendations were unduly virtual world exceptionalist.]

Maintaining client confidentiality in the face of Second Life’s TOS that LL “may observe and record your interaction within the Service.” His solution: don’t give legal advice through Second Life.

My Talk. Rebecca’s summary.

I spoke about the preemptive effect of 47 USC 230(c)(2) on many of the claims that accountholders might bring if the virtual world provider terminates their accounts. My talk slides. I have an associated paper I’m writing for the UC Irvine Law Review. My talk focuses on 47 USC 230(c)(2), but I have repeatedly blogged about the inability to sue online providers for account termination. See, e.g.:

* Facebook Not Liable for Account Termination–Young v. Facebook

* Life May Be “Rad,” But This Trademark Lawsuit Isn’t–Williams v. CafePress.com

* Terminated eBay Vendor Gets Day in Court Against eBay–Crawford v. Consumer Depot

* Web Host Can Terminate Customer for Abusive Call to Customer Support–Mehmet v. Add2Net

* Online Game Network Isn’t Company Town–Estavillo v. Sony

* MySpace Quietly Won Goofy 230 Ruling in September–Riggs v. MySpace

* Search Engines Defeat “Must-Carry” Lawsuit–Langdon v. Google

* Google Wins Publisher’s Lawsuit over AdSense Termination–Bradley v. Google

See also Hall v. Earthlink Networks.

This talk has its roots in a topic I had planned to write in the mid-2000s and never got to. See my notes for that paper. Also, in 2005, I published a prior work on virtual worlds that touches on similar issues but doesn’t explore the 230(c)(2) angle. I discussed the 2005 paper in one of my very first blog posts.

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