August 23rd, 2007 by Benjamin Duranske
Recently, VB began a new feature: closely examining filings in cases related to virtual law. Unlike most posts here, these posts contain only a tiny bit of opinion and not much personality at all. As I pointed out when I first ran one of these, there’s an important reason for that. Since these posts are a departure from my usual style, I am going to repeat that reason now in a standalone post so I can permanently link to it in the sidebar.
Regarding commentary on filings: I am an attorney, and I need to be able to take positions in the future that are in my clients’ best interests on both sides of narrow issues like those that are likely to come up in filings. If I plastered this blog with my personal opinions about specific discovery disputes, the timing of specific motions, and judges’ likely reaction to various tactics, I would probably end up seeing those words in a filing against my future clients at some point. That’s not fair to them, nor is it very good for business.
My compromise is this: I will call readers’ attention to things that most litigators would notice as anomalous and I will highlight excerpts from the filings that will be interesting to readers, but I’m not going to make broad predictions or generally critique active filings. There’s just too much potential that doing so could hurt a future client. On the other hand, before suits have been filed or charges have been brought, I have a lot more leeway to write in my typical “voice” because the topics are more general. More on the gray areas below.
Where there’s a gray area in the law (e.g. the validity of recent patent applications on virtual world technology, “ownership” of virtual land, and the value of virtual world currency) I generally try to point that out or approach the issue in a way that makes it clear it is up in the air. Those posts, of course, take a somewhat more neutral tone, and when I miss a counterargument, readers tend to catch it in the comments. On the other hand, there are some issues that VB confronts (e.g the illegality of ponzi schemes, the legality of virtual escort work, and the necessity of Linden Lab complying with the UIGEA) where, from a legal perspective, the outcome is rather black and white.
There are many, many more unresolved questions in virtual law than resolved questions, including most of the big ones. Unresolved questions include whether currency in virtual worlds should be equated with real world currency, whether virtual land can be meaningfully equated with real property, and whether virtual world users should have broader rights beyond those agreed to in the end user license agreement and terms of service. I’m very much looking forward to seeing some of the arguments that are made on these issues, and how courts decide them.
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