February 13th, 2008 by Benjamin Duranske
A couple of years ago, David Post and David Johnson published an article at First Monday suggesting that it is right to think of virtual worlds as “places,” and discussing the legal ramifications of doing so. Because many more people are talking about virtual law now, and because developments since 2006 greatly inform the discussion, it seems a good time to revisit the topic.
The idea of virtual worlds as “places” gives rise to a number of interesting legal possibilities, particularly the possibility of “local” governance. Post and Johnson make it clear that they are not claiming that these spaces necessarily should be viewed as sovereign states or that they should have their own legal regimes, but that is the clear implication of the questions raised here.
From the article:
[T]hinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents. The alternative — that the answer to the question “whose law must I obey” will continue to be “All of the 140 or so different legal regimes promulgated by the 140 or so different sovereigns that have a plausible claim to make the rules for the people with whom you might be interacting” — is unsatisfactory, providing neither guidance nor order nor predictability; it may make sense to the law professors, but it doesn’t make much sense, we suggest, to the individuals to whom that answer is given (and on whom, ultimately, the responsibility for law–making must rest). As online interaction becomes increasingly globalized, it will make increasing sense to talk of the (unitary) law of the “place” instead
Post and Johnson teamed up on a similar argument regarding the 2D internet in 1996. The themes here are the same, but the updated argument regarding virtual worlds makes more intuitive sense, because virtual worlds have more place-like attributes than the 2D internet.
As a philosophy major, fiction writer, and Neal Stephenson fan, I find the argument appealing — as a litigator, however, I don’t think it is likely to gain much traction with judges or legislators. That’s because virtual world providers (particularly providers of social virtual worlds) have consistently and intentionally blurred the line between their “place” and the rest of the world; basically, they’ve removed the “borders.” They do this by offering real money trading and real cash economies. This creates opportunities for business (without which, arguably, most social virtual worlds would not even exist) but it also makes it rather difficult to conceptualize them as distinct “places.” As the line gets further blurred (for instance, by companies offering you the ability to order real life pizzas and clock radios using the virtual world client and currency) the borders will become even more indistinct.
Since the “borders” are porous, and heading toward non-existent, I think that the argument that virtual worlds are distinct “places” that should be governed by internal laws will carry little credibility in real life legal proceedings. Notably, Post and Johnson do not take their argument all the way to this conclusion, but the argument represents the philosophy behind every defense of “it’s just a game,” so it is worth pointing out where the argument is likely to come apart.
Post and Johnson ask: How often will users really turn to the courts, given the expense? Well, since the article was written, there have been a handful of real life lawsuits arising from virtual world activity. And as the dollars involved increase, I think the lawsuits will too. That said, Post and Johnson are right that the nature of many disputes arising from virtual world activity is such that pursuing the matter with a lawsuit isn’t viable. The money is too small, and even tracking down a real life person to sue is often not worth the expense. Post and Johnson argue that this implies that an in-world solution that treats this as a “place” is likely, and I agree, at least to the degree that something like eBay is a “place” that has developed internal rules and procedures.
Notably, Second Life and other worlds do have internal rules and (albeit often flawed) reporting mechanisms for enforcement. This, in a sense, is only possible because it is a “place.” Users, of course, have also tried to implement various enforcement regimes in this “place,” by setting up shared ban lists and microgovernments with separate, typically stricter, rules and procedures. The article suggests it is conceptually helpful to think of virtual worlds as “places” in order to explain the existence of these tools, and with that, I also agree.
In my view, however, the argument will have greater appeal to judges and legislators in relation to the protection of play spaces than social-financial spaces. Where a company makes an effort to draw firm “borders” around its “place” (e.g. Blizzard aggressively working against real money trading in World of Warcraft) it has a greater claim to the protection of what lies within those borders. Perhaps, in the end, Post and Johnson’s argument will find its broadest reception in support of the protection of these play-oriented “places.”
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