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Blawg Review #156

Benjamin Duranske's Second Life Avatar 'Benjamin Noble'Welcome to Blawg Review #156, hosted at Virtually Blind. Blawg Review is a weekly traveling roundup of legal news from around the legal blogosphere. I’ve followed Blawg Review for a long time, and I’m excited to host it this week. If you’re a regular Blawg Review reader visiting VB for the first time, I hope you stick around. If you’re a regular VB reader already, then I hope this feature will send you on a few interesting side-trips to other legal blogs.

Because virtual law is such a new field (my book, Virtual Law: Navigating the Legal Landscape of Virtual Worlds, is the first book to comprehensively examine this emerging field, and it was published just this month), I am going to structure this post as a set of questions and answers on virtual law. I’ll cover the basics, and will illustrate the answers with links to a number of legal blogs, covering both real-world and virtual world legal issues.

Along the way, we’ll explore this week’s important real-world legal issues, including the Supreme Court’s decision that lethal injection does not violate the Constitution (via SCOTUSblog), the debate over Berkeley Law professor John Yoo’s “torture memos” for the Bush administration (via The Nation), the ongoing Harry Potter copyright case (via the WSJ Law Blog), and other breaking news from the legal blogosphere. First, some questions and answers on virtual law.

What the heck is virtual law?

Well, in a virtual world–

Slow down there, geek. What the heck is a virtual world?

Have you ever played (or watched your kids play) a modern, first person 3D computer game? In these games, you move a character — an “avatar” — on the screen. That avatar represents you. In a lot of these now, there are other real people there too at the same time you are. The whole thing is hosted on a server somewhere, not on your individual computer, so people can participate from all over the world at the same time.

An “ava-what?” I’m bored. I’m going to go read about that guy who told a Fifth Circuit judge he doesn’t read cases on the Legal Profession Blog.

Wait! Come back! I’ll talk about detachable genitals and a video of a 3D computer-generated Harry Potter going to a strip club later on…

Now you’re talking! So what are these anyway, video games?

Some are, but not all of them. Collectively, these places are referred to as “virtual worlds” or “3D networked environments.” In game-based 3D environments, you’re usually fighting monsters, casting spells, picking locks, or shooting bad guys. The most popular game-based virtual world right now is World of Warcraft, boasting over 10 million active subscribers.

Virtual Capitol BuildingIf you get rid of all of the game stuff and add in tools that let users build things, you get a “social virtual world.” You can find literally anything you can imagine in these places. Real money — sometimes lots — changes hands. Besides a lot of residents who are making some portion of their real life living in these places renting land, selling virtual products, and offering services, there is also a large contingent of real-life lawyers, executives (via Cisco’s Virtual Worlds Blog), doctors (via Health Care Law Blog), law professors (via Washington & Lee University School of Law and Harvard Law School), and even congresspeople (via Tech Law Prof Blog) who use virtual worlds for education, training, advertising, networking, communication, and more.

The most popular free-form social virtual world for adults at the moment is Second Life, but there are others too, and there are dozens for kids that have even larger subscriber bases. Altogether, there are hundreds of social virtual worlds and games; the industry is booming, but is in a real state of flux.

Okay, but legal issues? Seriously?

Many people, including me, believe that we aren’t just seeing a bunch of play and social places, but the emergence of the 3D internet. Basically, we think that the internet is going to look more like an interactive movie than a newspaper in 5-10 years. If this is right, whatever legal issues you see involving web sites now, you’re going to see involving 3D spaces in the future.

Ferraris in Second LifeIt’s not just the future we’re talking about though — the legal issues, even now, are very real. The reason is mainly that there’s money involved — a lot of money. One estimate puts the market for “virtual stuff” in games and social virtual worlds at well over $2 billion annually already. The property law questions alone are enough to keep a lot of people scratching their heads. There are also potential issues around defamation, intellectual property infringement, fraud, stalking, contract law, and much more. There have even been some lawsuits over this stuff already. Dig around VB a little when you’re done reading the Blawg Review post and you’ll see what I’m talking about.

Didn’t somebody on one of the yelling-heads news shows say 3D games and virtual worlds are swamps of sexual content and brain-rotting badness?

Yeah, but she was totally wrong (via GamePolitics). Okay, in truth, there really is a fair bit of sexual content in free-form virtual worlds, particularly Second Life, but there’s a fair bit of sexual content in real life too. It is pretty easy to avoid in both the real world and the virtual one if that’s not what you’re looking for. Last year, Second Life started taking steps to keep the adult stuff somewhat isolated and only available to age-verified customers.

As for violence, there’s definitely adult-level violence in some games (less so in social virtual worlds) and parents should take an interest in what their kids are playing — just like they should take an interest in what they’re watching on television. As much press as there is on this issue, the U.S. game and virtual world industry actually does a reasonably good job policing itself, and the government is actually pretty good about letting the industry sort itself out (a few yelling-heads aside). It could be worse: Germany requires that online game companies appoint a “youth protection officer” (via Andreas Lober, writing for the Davis LLP Video Game Law Blog).

Are virtual worlds the beginning of the end of society?

No, that’s probably going to be caused by a tiny black hole (via Concurring Opinions). Seriously. Well, the odds are pretty low on that too, but it’s more likely than a new communication tool wrecking society. People have been saying that everything from the printing press to the internet was going to turn us all into antisocial shut-ins, and none of them have so far. Well, not much, anyway. What’s that? Not now. I’m playing Civilization IV.

Are there really intellectual property issues in virtual worlds?

Harry Potter Strip Club VideoYou bet there are. If you think the recent copyright case over the Harry Potter Lexicon (summary via the Patry Copyright Blog) shows the extent to which J.K. Rowling can get upset (Techdirt says unfairly) about copyrights, I wonder how she — or Warner Brothers — would feel about an entire Second Life recreation of the key locations from the books and movies where people are selling wands, robes, and even complete “skin” and “shape” combinations that make one’s avatar look exactly like a character from the movies. It’s out there. There’s even a video floating around (on the usual web video outlets) that features Harry Potter and Ron Weasley avatars visiting a Second Life strip club and then performing sexual acts on each other.

Besides Harry Potter, there are whole areas selling unlicensed products based on the Star Wars movies, on Anne Rice novels, and on dozens of other books, films, and television shows. Straightforward trademark infringement is rampant too; there are hundreds, if not thousands, of Second Life users selling knock-off brand name products — like Nike shoes — for avatars.

Why aren’t Warner Brothers, J.K. Rowling’s lawyers, Lucasfilm, and the lawyers for Nike trying to shut this down? Mostly because they, like most mainstream companies whose copyrights and trademarks are being infringed in open-creation virtual worlds like Second Life (via Chilling Effects), have no idea it is happening yet — but that is changing as more and more mainstream companies move into these spaces. Apple is staking out some patent space here (via GigaOM), which could signal an interest in taking its Apple Stores virtual. A lot of companies have already opened virtual world outposts too, including, Herman Miller (via Canadian Lawyer Magazine), Showtime, Dell, AOL, and more than 100 others (via KZERO).

There were even two lawsuits last year over theft of intellectual property between virtual world users, neither of whom was associated with a brick-and-mortar business.

It all sounds pretty odd, right? Well, it’s no odder than IP issues in the real world. This week the great state of Oregon started sending out Cease & Desist letters to websites that republish Oregon statutes (via Oregon Legal Research).

April 26 is World IP Day (via Internet Cases). Celebrate by checking a virtual world for infringement of your favorite brand. Odds are, you’ll find it.

What about Alternative Dispute Resolution?

A recent IPKat post advocates mediation of some IP issues, and that makes a lot of sense both in the real and virtual worlds. Some virtual world organizations are trying to set up justice systems, and the government of Portugal has already set up an ADR facility that takes mediation cases (via National Arbitration Forum Blog). And many lawyers have found that mediation is, generally, a good idea (via What About Clients?).

Of course, ethical negotiation in mediation is a big issue in the real world (via PGP Mediation), and adding a layer of anonymity and the complexities of international disputes should raise even bigger concerns in virtual world mediation. Happily, though, programming tools available in virtual worlds allow the creation of tools like virtual notary services which can help solve some of these problems in ways that just aren’t available in the real world.

Did you say some people are trying to set up justice systems in virtual worlds? Doesn’t that raise constitutional law issues?

Before we get into that, we have to put this all in perspective. It’s been a pretty big week for government and constitutional issues in the real world, at least in the United States. Of particular interest to me (because I’m a Boalt grad) are questions raised by Berkeley law professsor John Yoo’s “torture memo” for the Bush administration — and his academic fate. Sandy Levinson, Jack Balkin, Deborah Pearlstein, Orin Kerr, Stephen Griffin, Brian Tamanaha, Mark Graber, and Dale Carpenter all have interesting posts on this.

There’s also the recent Supreme Court decision in Baze v. Rees holding that Kentucky’s lethal injection protocol does not violate the Constitution. The Court also heard arguments in Kennedy v. Louisiana regarding a Louisiana law that applies the death penalty in child-rape cases. Commentary from Scott Greenfield, Dan Filler, Lyle Denniston, Douglas Berman, Sam Kamin, Alice Ristroph, and Ty Alper sheds light on these issues.

So “governance” and “constitutional” issues in virtual worlds — where we are basically talking about a private company renting server space to users — pale in comparison. But yeah, there are a few efforts out there to create microgovernments in virtual worlds, complete with constitutions, justice systems, and, typically, some kind of democracy. Usually, voting rights are tied to renting “virtual land” (really, server resources that let users keep their houses, stores, and miscellaneous stuff available to other users even when the owner is not logged in) from the microgovernment which, in turn, rents these resources from the virtual world provider.

Extropia ScreenshotBasically, a group of people who all choose to share space in the virtual world can vote to make that space look a certain way, to exclude certain groups, to allow or disallow adult content, or whatever.

In the end, though, there’s a lot of trust involved because the guy who rents the land from the provider can basically do whatever he or she wants — and the provider can pull the plug anytime too. At least it’s easier to control voter fraud. Though positive ID for voters is hard in the real world (via Freedom to Tinker), it is fairly easy in the virtual world, at least as far as only letting certain avatars vote — and for in-world governance, that’s all that matters.

A few examples of microgovernments in Second Life are Extropia, the Confederation of Democratic Simulators, and the Al Andalus Caliphate. There are others too; they all offer greater or lesser degrees of participatory democracy depending on their individual model. One that is hoping to create a justice system that works across the whole virtual world (not just on land owned by its creators) is the Metaverse Republic.

Any employment law issues in these places?

There sure are. People are routinely hiring each other in virtual worlds as greeters, receptionists, bouncers, dancers, and more — often for rates far lower than U.S. minimum wage (via VRWorkplace Blog). There are possibilities for real world groups to use virtual worlds for employment related tasks too, as they allow long-distance meetings with a sense of presence that exceeds phone, and even video conferencing. One wonders if virtual “face to face” meetings could facilitate the resolution of difficult situations, such as those described in an article on The Pope and Employment Law (via The Word on Employment Law with John Phillips). Another benefit of semi-anonymous employment could be fair pay for women (via the National Women’s Law Center) and the curtailment of other job-related biases.

Any other legal issues in these places?

As many as you can find on the web itself. I’ve barely scratched the surface.

Did you hear how a woman posted a YouTube video blasting her soon-to-be ex-husband for all sorts of transgressions? (Via South Carolina Family Law Blog, which, incidentally, calls it a terrible idea). How people are trawling the internet for material for custody fights? (Via International Herald Tribune.) Imagine what they’ll be able to dig up in a semi-anonymous virtual world where one of the most popular purchases is a set of detachable genitals (neither male nor female basic Second Life avatars have genitals, but third party designers offer hundreds of different, um… packages) and where about a third of the top 20 Second Life locations are explicitly sexual in nature (via a New World Notes 2007 census, but the number is about the same today).

I’m a lawyer… can I practice in a virtual world?

There are a lot of lawyers advertising their services in virtual worlds already. I expect attorneys using the 3D internet to follow the (sort of slow) path that we did, as a profession, in moving to the 2D internet. Although it took a surprisingly long time for law firms to really embrace the 2D web, most lawyers now do have web pages and some firms are really leveraging the technology. There is even a (somewhat appallingly named) matchmaking service for lawyers and potential clients called “SueEasy” (via Above the Law) on the web now. The 3D internet is coming next, and now is a great time to get familiar with it.

One note, if you are a lawyer thinking about moving into the virtual world as an early adopter, make sure that your virtual world activity is in compliance with your state’s unauthorized practice, conflict of interest, and lawyer advertising rules. A little common sense is all you really need. See you there!

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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16 Responses to “Blawg Review #156”

  1. on 21 Apr 2008 at 9:43 amSophrosyne Stenvaag

    Benjamin –

    What a terrific review of virtual worlds issues! I love your tone: you’re breezy and fun without being remotely condescending or ironic. I’ll be reading your book this week, and it looks like I’m in for a treat!

    Thank you for the nice shout-out for Extropia. We’re learning a lot about the relationship between community formation and governance, and much of it has been surprising.

    If any of your readers are interested in micro-government (well, femto-government) issues, I encourage them to visit all the groups you mentioned: Al Andalus in particular is doing some interesting constitutional work these days. And, on behalf of Extropia, I welcome comments, emails and visitors!

  2. on 21 Apr 2008 at 12:02 pmKit Meredith

    Hi Ben!

    Congrats on taking the reins of the Blawg Review, and for doing such a good job with it, to boot. I saw a lot of legal blogs that I was already familiar with, but there was lots of new goodness in there as well – yay, my already swollen RSS feed grows even bigger… thanks for that!

    I know it was a lot of hard work to pull together all this information on RL legal issues, combine it with some great virtual world basics, and weave it into a very readable and entertaining whole. I’ll be interested to see what kind of feedback you get from our non-virtual colleagues.

    Take care!

  3. on 22 Apr 2008 at 1:09 amLaw Bites » Blawg Review #156

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  4. on 22 Apr 2008 at 4:29 amAshcroft Burnham

    Any legal professionals who are interested in participating in virtual worlds would do well to consider working with us at the Metaverse Republic in building our constitution: details on http://www.metaverserepublic.org.

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  11. on 02 Sep 2008 at 10:35 pmjessicachristina

    People are routinely hiring each other in virtual worlds as greeters, receptionists, bouncers, dancers, and more — often for rates far lower than U.S. minimum wage (via VRWorkplace Blog). There are possibilities for real world groups to use virtual worlds for employment related tasks too, as they allow long-distance meetings with a sense of presence that exceeds phone, and even video conferencing. One wonders if virtual “face to face” meetings could facilitate the resolution of difficult situations, such as those described in an article on The Pope and Employment Law (via The Word on Employment Law with John Phillips). Another benefit of semi-anonymous employment could be fair pay for women (via the National Women’s Law Center) and the curtailment of other job-related biases.

  12. on 04 Sep 2008 at 11:02 pmcatherine

    There are a lot of lawyers advertising their services in virtual worlds already. I expect attorneys using the 3D internet to follow the (sort of slow) path that we did, as a profession, in moving to the 2D internet. Although it took a surprisingly long time for law firms to really embrace the 2D web, most lawyers now do have web pages and some firms are really leveraging the technology. There is even a (somewhat appallingly named) matchmaking service for lawyers and potential clients called “SueEasy” (via Above the Law) on the web now. The 3D internet is coming next, and now is a great time to get familiar with it.

  13. on 07 Mar 2009 at 1:06 amSorry « Servicios de hosting

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