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17 Responses to “New Paper in UCLA’s Journal of Law and Technology Proposes In-World Dispute Resolution System”

1. on 04 Feb 2008 at 1:03 pm1 ^^
   

   Toward the end of the article Alemi starts talking about charging fees for virtual justice, including higher fees for private arbitration/mediation. Mention is made of people willing to pay twice the value of the property in dispute just to get a hearing on eBay.

   This is the situation of the Real World, and it is the root cause of much injustice, much frustration, much barely-repressed social anger. Because it costs more (money, time, public record that disrupts reputation and ability to conduct your livelihood) to seek justice than you could possibly get from any resolution, most people of modest means just have to swallow the injustice. They cannot be “made whole” by the current justice system which in fact robs them a second time. Even people who get their “day in court” and succeed in their argument carry around an ongoing sense of loss, and even trauma, because of what utilizing the real world court system cost them.

   I would argue instead that a virtual world is a type of utopian setting, which should present models for a possible, better justice system. In this system, costs should be minimized as much as possible, with the costs of system treated as a public service and spread over the entire community who might resort to it. Virtual worlds should not become just another way for lawyers and judges to skim money off the parties, exploiting human loss and grief for their own personal gain.

2. on 04 Feb 2008 at 2:21 pm2 Ashcroft Burnham
   

   The problem to which ^^ refers is, to some extent, a product of the US rules on costs, in which the legal fees of the winning party cannot usually be recovered from the losing party (although incidental expenses can be). In England and Wales, the rule is that all of the successful party’s costs, including legal fees, are fully recoverable from the unsuccessful party, provided that they are reasonable. The system is not perfect, of course, since there is always an element of uncertainty in litigation, and successful litigants often denied part of their costs considered to be unreasonable, but it is substantially more satisfactory than the US position.

   Litigation can be funded by conditional fee agreements, whereby the lawyers agree to take no fee if the litigant loses, but to take up to double their normal fee if the litigant wins, the whole amount of which, including the uplift, is, in the ordinary course of events, recoverable from the losing party if the litigant is successful. This is different from the contingency fee system prevalent in the US, in that the legal fees are not paid out of the damages (etc.) awarded.

   Another idea that has long been proposed, but not yet implemented, is a contingency legal aid fund, whereby the losing litigant in every case has to pay, in addition to the costs of the successful litigant, an amount of money towards a central fund, which fund is used to provide, effectively, free legal expenses insurance to litigants, undertaking to pay that litigant’s legal costs if unsuccessful.

   What you suggest is similar to the system of legal aid that has existed for some time (although curtailed in recent years as irresponsible governments reduce funding for important things to pay for frivolous things) , whereby the state, out of its general taxation, pays the legal costs of a litigant who cannot afford representation. What you suggest goes rather further than that, suggesting effectively nationalisation of the entire legal services sector, which would be extremely unwise for all the reasons that state control of any industry is unwise.

3. on 04 Feb 2008 at 2:37 pm3 ^^
   

   @Ashcroft – Even where costs are recoverable, the US system demands that the parties pay up front when they are unable to be sure of success (for instance, competence of the lawyer or bias of the judge could affect the outcome). These costs can be extremely prohibitive: just going to arbitration can cost thousands of dollars. People of modest means just can’t afford to pay that up front, and it’s unfair to ask them to take out high interest loans when the outcome can depend on so many factors besides simple justice.

   Beyond the simple dollar cost, the US court system is excessively time-consuming and too complicated for even highly educated citizens to understand well enough to proceed efficiently. Just think of it: every time a hearing goes by, which can be arbitrarily quashed by a judge if he or she isn’t satisfied in all the technicalities, it’s around another month before another hearing can be scheduled. All the paperwork has to be copied all over again. New subpoenas have to be pursued (with the opposition forcing more paper work by batting away demands for information with perfunctory replies of “too vague”, etc.

   From what little exposure I’ve had to US civil procedure – it’s absolutely maddening. If I were ever involved in a serious situation, I’d probably kill myself before the end of it just to escape from the Kafka-esque bureaucracy.

   While “nationalized” systems may fail in the real world for various reasons, perhaps virtual worlds can be considered idealized enough to allow for thought experiments in that direction. If cost isn’t shared, then it’s probably being unfairly dumped on particular people. On the other hand, recourse to justice is a public good, which citizens would universally want access to. Additionally, one person’s ability to halt criminal activity may have the added grace of sparing future victims.

4. on 04 Feb 2008 at 2:38 pm4 ^^
   

   Also @ Ashcroft – US lawyers are reluctant to work on contingency unless they have a slamdunk case. This has introduced a lot of subtle PR-appeal calculations into opportunities (or non-opportunities) for recourse to jusctice. :(

5. on 04 Feb 2008 at 2:56 pm5 Ashcroft Burnham
   

   ^^, from what I have read about the US civil justice system (not a huge amount, I must confess: this site is quite educative on the point) it is really quite inefficient (have a look at my comments in some of the archives). Although far from a complete solution to the issue of legal funding, the way in which the civil justice system works in England and Wales is, on the whole, quite serviceable, and, although is certainly not perfect, is definitely a long way from Kafka-esque. An in-world legal system could quite possibly be more efficient still, especially when everything is computerised by default (no travelling expenses, no physical paper, etc.).

   I am afraid that there is no reason whatsoever to believe that merely because the environment is virtualised that fundamentally flawed socialist economics of state ownership can suddenly start to work: that they do not work has nothing to do with the fact that the environment is not virtual. The basic principles of economics are environment-neutral.

   As to complexity, one cannot wave a magic wand and make a simple system: the complexity comes from the inherent complexity of the process of resolving human disputes, not from the fact that those responsible for the design of the legal system have taken it upon themselves to add vast amounts of redundant complexity merely for their own amusement. One can make the design of the system very simple, but that would just make the operation of the system more complicated, less predictable, and, ultimately, less just. (A useful metaphor of the inversely proportionate relationship between design and operational complexity is to think of a computer: it is far easier to use a spreadsheet to do one’s accounts than it is just to use a calculator). It necessarily takes a huge amount of resources to resolve any legal dispute otherwise than by mutual agreement, and that is why legal system funding is always a difficult problem to which the only partial solutions to which I refer above are proposed.

   I do not know how it works in the US, incidentally, but conditional fees here are used not just where the case is “slam-dunk”, as you put it, but wherever the chances of success are adjudged to be greater than 50%. To give an example, I had a case last month, funded by a conditional fee agreement, that turned on whether my client (who did not call any other witnesses), or the other side’s only witness was telling the truth about whether my client really was injured in an accident at work or not. That can hardly be described as a “slam dunk” case at the best of times.

6. on 04 Feb 2008 at 6:31 pm6 Kyzaadrao Skall
   

   This to me is just pointless on so many levels. Forget the sensationalism of the paper and the fact that the “meat” are in examples that we all know exist, which are often over dramatized and exaggerated.

   The glorified arbitration aspects of this are gross mis-applications when you’re dealing with “crimes” that not going to be solved in a virtual setting, especially with no authority to carry them out. To petty griefers and thieves it isn’t even a worthy deterrent.

   I’m waiting and hoping to see that folks realize virtual worlds are not very different at all from traditional and internet issues. While there are a “few” minor aspects of virtual worlds that might be unique… “virtual law” isn’t reality and certainly isn’t a replacement or even necessarily helpful in dispute resolution. The best you can do is arm both sides for the “real” law.

   Virtual law to me is specialized business and IP law, little more, but extremely useful in its specialization in the combination of laws that make up virtual world issues.

   To me this is nothing more than yet another play for another virtual brass ring.

7. on 04 Feb 2008 at 6:53 pm7 ^^
   

   So maybe the need is for judges and lawyers who specify in disputes that stem from virtual worlds? And an expansion of the regular court system to accomodate massive new territories of dispute?

   The fact that the US system is over-burdened suggests it should be improved for the sake of the public good rather than a whole area of dispute excluded.

   For instance, when corporations developed was there ever even a hint of a subjection that disputes related to corporations should take place outside the regular legal system?

   If corporations are fictitious persons, then they are in themselves virtual.

8. on 05 Feb 2008 at 1:35 pm8 ^^
   

   Just read a remark on another blog that establishing rights in virtual property means that property will become eligible for goverment taxation. Interesting.

9. on 05 Feb 2008 at 1:36 pm9 ^^
   

   Riff on the above: but if virtual property is considered a movable instead of real estate, then the purchaser already paid taxes in the form of income tax… :-/

10. on 05 Feb 2008 at 4:17 pm10 silos g
    

    if ,as in the “real” world “all men are created equal” but access to both medical and legal assistance are only as “fair” or equal” based on ones bank account….

    mans mediated world of the “real”///
    why would anyone expect mans mediated world of digital interactions to be any diffferent?

    just wait till the medical /insurance world decides to get in on vr worlds and tries to convince us well need medical insurance in case of harm inside of cyberspace….

    no joke.. give it 3 years.. in fact.. forget that…Wii….. give it 1…

11. on 05 Feb 2008 at 5:33 pm11 The Metaverse Republic - » Two interesting pieces on virtual law

    [...] (Latham & Watkins LLP), can be found on UCLA Law Tech Journal and was reviewed by Benjamin on VirtuallyBlind. Ashcroft Burnham, one of the founders of the Metaverse Republic, has been challenging many of the [...]

12. on 05 Feb 2008 at 11:46 pm12 Tyffany Flintoff
    

    There’s no valid way the solution proffered by the article could have relevance in today’s Second Life. No “court” staffed by resident roleplayers will have any legitimacy. The issue being that any justice system relies on more than the existence of a court.

    There is no police force in place in Second Life and LL have made it quite clear in words and actions that they have little interest in entering into the fray of resident disputes. If any evidence is needed of this consider how long it took them to respond to the farce that was the Gingko scam. Ignorance of what was being perpetrated and an excessively liberal ‘hands off’ approach led to the tacit condoning of a fraud which stripped several hundred thousand dollars from the residents of SL.

    The threat of being banned from SL is a very real one for those of us who have invested time in our avatar. This is little deterrent for griefers, however. They are, after all, only in the game for the purpose of griefing and being able to flit between throw away alts makes any attempt to police them fruitless.

    There’s little doubt that LL are becoming more authoritarian as they desperately seek to commercialise SL and attract corporates. While that’s a trend many of us abhor (virtualists versus augmentalists), it may be more palatable than (a) having the SL experience continually being degraded by rampant griefing and (b) being made subject to the whims of a roleplaying judiciary elected by no-one but themselves.

13. on 06 Feb 2008 at 4:22 pm13 Ashcroft Burnham
    

    I have now had an opportunity fully to read the paper, and, whilst there are some interesting insights, overall, it is not well written. I will not detail the entire catalogue of flaws, some of which are not of great interest in themselves, but, amongst the thematic problems are the imprecision in delineating specific multiplayer games from virtual worlds (despite the introduction which purported to do so (and, bizarrely, made reference to online board games that were not mentioned again in the article)), the author repeatedly referring to SecondLife as a “game” (if it is a game, what are the rules? How does one know when one has won or lost?), and the bizarre portrayal of virtual “crimes”, with no distinction drawn between real fraud perpetrated in a virtual environment (obtaining anything that is genuinely valuable by dishonest deceit is a real-life fraud), and mere simulations of crimes such as battery and false imprisonment.

    The article also fails to draw any sort of distinction between criminal and civil law, referring to the proposed in-world judicial system as one in which verdicts of “guilty” or “not guilty” are returned (which are only appropriate in criminal matters), whilst implying that the system would deal with civil disputes, too. The focus was also confused – did the author intend the justice system to focus on griefers, that is, people whose sole or main interest in virtual worlds/games is to cause trouble, for the sake of it, or did she intend that the justice system would deal mainly with disputes between people each of whom either believe that they are in the right, or have a strong motive to appear to believe that? It was to the former that she referred in describing virtual “crimes”, but, if that is the main purpose of the justice system, it is the wrong solution to the problem: the difficulty with dealing with serious or organised griefing is not fairly adjudging which individuals are to blame, or whether the conduct in question does amount to a violation of the relevant rules, but practically preventing the occurrences: in other words, enforcement.

    There are two principal problems with enforcement against griefers: (1) the difficulty of linking avatars to humans, with the result that any given human can have a theoretically infinite number of avatars, the consequences of the actions of each of which cannot readily be ascribed to any of the others, so even the ultimate penalty, being banned from the entire virtual world, is of limited significance; and (2) the limited time available to those who have the power to enforce to investigate. The article proposes no innovations in enforcement, and, indeed, suggests that the developer’s resources be used to staff the in-world court system: Linden Lab does not have the resources effectively to dispense summary punishments, let alone involve itself in any dispute resolution process, and is almost certain never to do so if it can possibly avoid it: taking one customer’s side over another, except in overwhelmingly clear cases, is very, very bad PR indeed. When the person in charge of governance (Robin Harper) is also an expert in PR, it is no surprise that Linden Lab has always chosen to abstain from any resident to resident dispute process.

    The real use of an in-world legal system is not so much in relation to “virtual crimes”, but serious disputes of the sort that, if they took place off-world, would be litigated in the civil courts. In-world enforcement of in-world contracts, and even the ability to have effective systems of local governance for individual communities, are all things that the lack of an effective method of dispute resolution in-world impede. Sophisticated transactions and relationships between residents of SecondLife and other virtual worlds that do not have attached to them a commercial value so high as would make it worthwhile to instruct off-world lawyers are made virtually impossible by the lack of any enforceable means of resolving disputes about such things in-world. Out of the many flaws in the piece, one of the key useful insights is that the costs of off-world litigation are, in almost all cases, so vastly disproportionate to the monetary value of what is being litigated as to put effective dispute resolution off-limits for all but, in virtual world terms, massive-scale commercial enterprises.

    The design of the proposed legal system is also flawed. It suggests, in the first instance, using Linden Labs’ in-house counsel to adjudicate on disputes. Given the likely salary of such a person, and that there are likely to be very few of them (possibly no more than one), it would be a catastrophically expensive measure to take, given the overwhelmingly vast number of matters with which such a system would have to deal. The second suggestion is to use Linden Liaisons as judges. Aside from the fact that the liaisons have no legal training or experience, it is highly doubtful that a person who had signed up to be a voluntary customer services representative would be in the least bit keen to be told to sit as a judge for hour after hour of resident disputes: in those circumstances, the chances of getting fair or consistent decisions from a judiciary staffed by such people would be virtually nil. In the third instance (and contrary to what Tyffany suggests above), the author suggests electing the judges (but does not describe how such elections would be held, or who would police them, etc.). Since she does not also propose a legislature, one must presume that the judges would also, in effect, be politicians, campaigning for election on the basis of how they would decide cases if brought before them. Such an approach would also be incapable of producing fair or consistent decisions, for want of compliance with the principle of the separation of the powers. The right way to go about procuring democracy is not to elect the judges, and then let the judges make all the laws, but to have an elected legislature making laws which the professional, appointed judiciary are bound to follow. Finally, the author suggests having no appeals process, which would make it impossible to correct any judicial errors, which, in such a system as she described, would be very frequent indeed.

    As to the “real world justice” component, the paper simply stops making sense at this point. Is the author suggesting that Linden Lab’s terms of service could possibly have the power to change how, in substance, the courts approach disputes between one resident of a virtual world and another? As the author should know, a contract between A and B and between A and C does not have any bearing on a dispute between B and C, so terms of service alone cannot force the courts to deal with user to user disputes in any particular way. The real-world courts would not be obliged to defer to the in-world legal system, and so the two-stage process suggested (but not elaborated on in detail) by the author makes little sense.

    All that being noted, I am (as many who know me will realise) an advocate of some sort of in-world justice system. However, what I suggest differs from what the author of this article suggests in a number of ways. Firstly, there is no chance that any virtual world developer, least of all SecondLife’s Linden Lab, will involve themselves directly in dispute resolution, so the system has to be built by residents themselves. Secondly, the focus of the system would be on disputes of the sort dealt with by the civil law, rather than virtual “crimes”, and the procedure would be closer to that of civil, rather than criminal courts. Thirdly, as indicated above, the system would have an independent, professional judiciary that is bound to follow laws passed by a democratically elected legislature. Fourthly, there would be an appeals process. Finally, the system would run entirely in parallel to any off-world legal system, and would not pretend to interact with it or attempt to influence the outcomes of any off-world litigation, nor would it attempt to enforce any nation’s laws, leaving that to the national courts established for the purpose.

    The key obstacle for such a system, not officially operated by the virtual world provider, is enforcement: it is all very well to establish a judiciary and legislature, but why should anybody follow the legislature’s laws or the court’s orders? Those of us who have been working on the Metaverse Republic have found a simple solution: aggregate the power of lots of individual virtual landowners to exclude people from their virtual land to create a power that is very similar in scope to the banishment from the whole virtual world that is the ultimate sanction of the virtual world provider. This has another, incidental, advantage, in that, since we cannot force any landowner to subscribe and ban the people that the courts say should be banned, participation in enforcement by the landowners is voluntary, and they are only likely to participate in so far as they believe the system to be fair. If the judicial system took to banning people on a whim, or, as Tyfanny put it, merely “role playing”, without taking their functions seriously, very few people would subscribe, and its power would be very limited, whereas, if it attracted a reputation of fairness, it would attract more subscribers, and its power would increase.

    The Metaverse Republic project has been working on designing such a system for some time. Anybody interested in joining in the efforts to create a truly fair and effective in-world legal system should visit our website, http://www.metaverserepublic.org, for more information.

14. on 06 Feb 2008 at 4:53 pm14 ^^
    

    Tangent @ Ashcroft – my place of employment classifies Second Life as a “game”, and blocks access even to sites and forums *about* Second Life on that basis.

    There is a significant amount of ageism (in the reverse of the usual sense) in this demarcation. Sites pertaining to pre-online entertainment or interests are not blocked. Employees are free to read about football (not sure if they have access to Fantasy Football – probably not). Far from being seen as a diversion from work, making room for conventional forms of entertainment is seen as a matter of work-life balance, some deserved relief for respectable people.

    Virtual worlds, however, are seen as a folly of youth – escapism to be thwarted instead of casual entertainment. Youth forms of entertainment are vigorously blocked.

    I’m not sure how this can be pursued without opening the door to measuring minutes online vs. minutes of overtime to calculate who is being robbed, employer or employee. Since no one wants to open that can of worms, this problem will never be heard in court. But it’s unfair to implement Internet policies based on the age groups more interested. And the people making decisions about the filters may be utterly wrong in their demographic intuition, as in assuming Second Life is an online game. :-/

15. on 06 Feb 2008 at 6:17 pm15 Falemi
    

    Thanks all for your comments. This is great feedback. I am away so I cannot respond fully to everyone, unfortunately, but I’d like to point out a few things:

    1) This paper is not the holy grail nor is it acting as one. It is merely a proposal of thoughts and suggestions as to how I see a means towards a greater goal of resolving disputes, especially for those who are seeking relief. While papers continuously focus on “enforcement”, I am simply taking it a step further and focusing on relief for victims regardless of whether the incident is deemed a criminal or civil action. Frankly, the civil versus criminal was footnoted in the paper as encapsulating virtual crime as a whole. Because as you mentioned, Ashcroft, there is no legislature or statutory-maker of laws, it is unclear what and how criminal versus civil actions are viewed in this new virtual space. Perhaps that is where your work can come in to develop this area. But for the time being, they were fitted together. It was not because I did not know the difference, but for the purposes of the paper I left them as one.

    2) As for the “flaws” I think that is a strong word to use when it is based on opinion and viewpoint. I would be extremely lucky to have hit the nail on the head as to how solve in-world disputes! Thus, to “disagree” would be a preferred means of objecting to some content.

    3) As to some of your comments Ashcroft: if Second Life is not a game, then what is it? Many people view it as a game. Technically it is a MMORPG, and as such, it is categorized as one. And if it is not a game, what do you think it should be? A game does not have to have a winner or loser just to be a game. Or does it? Generally a game is defined as an amusement. Would you not reckon that Second Life is an amusement to some players? And perhaps because it is a game, no heavy hand of real world law is attempting to penetrate this sphere?

    - Moreover, where you state that I have failed to delineate between real world crimes (ie fraud) versus virtual world crimes (ie simulated battery), I actually have in the paper. Please look at avatar v. avatar and player v. player, and you will see how I have viewed such crimes as needing to be considered differently. Again, the important thing to take away is that behavior in VW space is still being figured out. We are just now starting to accept the notion that virtual property should be treated like real world property. So this area is ripe with thought and development.

    - Also you raised the question of the purpose of this paper as you did not get the theme. To be clear, the point of the paper is to provide a means for relief, which tangentially leads to enforcement. I’m sure you’ve read studies and case law that providing relief sends messages to others that a certain action may come at a price. Thus enforcement of laws can be sought through deterrence as well, like awarding relief. Because VW is a new space, the expectation to have to pay for griefing has not been seriously considered in the past. You are doing a great job with Metaverse in establishing such governance. Perhaps having this means of relief will provide a wake-up call to those who do not think their ill-behavior will go unnoticed. Isn’t that another form of enforcement– by providing relief and compelling such griefer to pay for damages? Will that not send him and others the message that such act is intolerable, and therefore he/they will be sure to abide by them next time? Personally, I consider that a means of enforcement. Just a thought…

    -Moreover, I am not saying that LL should fund the legal process. As I outlined, with fees attached to bringing cases, residents can become self-sufficient in the process. Of course, there will be a streamlining of complaints required, but isn’t LL already dealing with complaints? It already has a complaint center, so technically it would not be such a hefty burden. Or would it?

    - Also does it matter who the griefer is versus who legitimately thinks his action is right or wrong? That is why we have court systems. Just because there is a griefer does not excuse his ill-will towards others. At this point, if you are suggesting this not a game, then you would agree that a griefer coming to wreak havoc in a “non-game” environment should be punished for harming others. But it does not matter even if it is a game environment because as I state over and over again in the paper, this game comes with many costs to players. They pay subscription fees and the goal is to live life and enjoy their time at Second Life. They pay money for their assets. What some may see as fun may ultimately hurt others. Do real world people who graffiti walls–just for fun– get to proffer such an excuse? Not really, they will still be liable for the property damage. So why should a griefer get away with destroying an avatar’s property, game or no game…?

    - You also enumerated that the design is flawed. Again, I mentioned in the paper that this proposal is not a perfect nor exhaustive means to establish in world justice. I simply believe that we should veer towards that direction, and perhaps some thoughts raised could be useful. The proposal is a means for positive discourse and thought. Frankly, I know of no one person who can write a country’s proposal and have everyone agree with it as the text to follow. It takes time; it takes feedback; and it takes collaboration. But absolute dismissal may not be the best approach as there is generally value to everyone’s viewpoints.

    - As for your comments on the Liaisons, judges, and people that are not apt to be the ones to determine legal issues raised, I would like to again reiterate that these were some suggestions based on their familiarity with SL. And might I add to this, Linden Liasons already play a role (that is why they have such a title) so why not consider them as a “possible” choice? Also will those people who enforce your laws or interpret the laws in your Metaverse have legal training? From what I am reading above you simply highlight governance by the people. Perhaps some of your people then will have such legal training?? If so, how? I’m certain you’ve thought about this as you descredited me for failing to do so. Though frankly, I raised suggestions and honestly, no one is “legal savvy” in virtual worlds. We are all starting out trying to understand this sphere. The legal implications are not necessarily like the real world. Therefore, maybe legal training will require a different form of training. Will a real world lawyer understand what goes on in SL? As I mentioned in the paper, not even the best judges or lawyers will be able to handle this world unless they are familiar with this arena. So, to conclude on this point, maybe real world legal training is not enough. Perhaps we need those more familiar with the landscape rather than just those simply carrying a JD degree.

    - I also did suggest an appeals process contrary to what you stated above– a one-time appeals process as the value of property in-game and the time that people have to spend in the real world too, may not warrant for the full-blown appeals process we have today. Again, this is my viewpoint. But if you deem an appeals process that is multi-tiered then I would love to see how it comes together– the rules, the manpower, the time, and the expenses (if any). I wonder if players are willing to “fight” their way up through the virtual justice system…. After all, they do have real lives too. I wonder who would be willing to expend that kind of energy especially if it is for a few hundred bucks. Trust me, I thought about this issue at length, and in my opinion, I’m not sure a full blown appeals process would be ideal.

    - Lastly, I’d like to briefly point out in Tyffany’s post that your preference for police is something that I thought about for a long time. But it did not get to the heart of what I was conveying in my paper. Having police would mean that LL would have to get involved, after all, it is like the state. The question is– is LL willing to? Probably not to that degree, since we have seen LL’s hands-off approach in the past, which I can definitely understand. Moreover, would residents want police? I doubt that. I think what residents seek is to be left alone and should an action arise that puts them in a bad spot (financially or emotionally) then they would prefer to resolve their disputes and then continue on with their existence in SL.

    All in all, thank you for the fabulous discourse. This is an environment that deserves more focus as it will play a role in other cyber forums as well. I’d like to highlight in conclusion, however, that the proposal I’ve outlined is not to be the magna carta. It is simply ideas to acknowledge or disagree with based on what you think a virtual world should be made of. A lot of the issues you all raised I thought about at length. Of course, a paper can only be so long though. Much content was cut but not in a means to compromise the paper. I do appreciate the detailed reading though. I am glad there are many out there who are following this area and are willing to speak on the matter.

    Ashcroft, I’ll be happy to join your efforts at Metaverse. I think it is a great idea..!

16. on 13 Feb 2008 at 9:43 am16 Ashcroft Burhham
    

    Falemi,

    thank you for replying personally to my comment, and apologies for the delay in replying to you: I have been somewhat busy of late.

    Apologies if the tone of my original comment was a little harsh – you have evidently put thought into your article, and, even though I disagree with a number of the points and suggestions, it is valuable for the important insight that resolving virtual-world specific disputes is best done with a virtual-world specific dispute resolution mechanism, rather than resort to litigation in the general courts (at least, in most cases). I will address a number of the specific points below.

    Games

    I do not consider that SecondLife is a game because it does not have specific goals. I do not agree that any amusement counts as a game (watching the television can be an amusement, but is not a game), nor that SecondLife is an MMORPG (categorising it as such simply assumes that it is a “game” in any event). SecondLife is a virtual world: a three-dimensional virtualised social interaction environment with an internal economy. Some people use it for entertainment, others use it for serious purposes. It is quite possible to use SecondLife for serious work and education, and many people make a legitimate living by work entirely in SecondLife. It is true that many people mistakenly believe it to be a game, but that of itself does not make it so.

    By contrast, products such as World of Warcraft and Eve Online are games, because they do have specific goals.

    Avatar v. avatar versus player v. player

    I suspect that we are slightly at cross-purposes on this point. If I understand correctly, you differentiate “avatar versus avatar” disputes from “player versus player” disputes in terms of the system that you say should govern the disputes, the former being dealt with by a system inside the virtual world, and the latter by off-world judicial process.

    The problem with this distinction is that it seems to assume that the avatars, a person’s representation in a virtual world, should have legal personality of their own, and be treated as if they themselves were the disputants, rather than simply a virtual world representation of the human disputants, except in cases meriting off-world litigation. The trouble with this is that a single human can have multiple avatars; conversely, a single avatar can be controlled by multiple humans. Many important aspects of legal systems (and particularly principles of responsibility and the practicalities of enforcement) rest on the assumption that a single identity is tied to a single human mind: when this is undone, the system can cease to function as desired. The principle in the Metaverse Republic will be, therefore, that it is real-world people who are conducting litigation against each other, but litigation specific to the virtual world, in which their physical manifestation is the avatar. One of the practical consequences of this, for example, is that it will be possible to impose a sanction against an avatar if it is proven that that avatar is controlled by the same human as another avatar facing the same sanction.

    The criticism that I made to which you referred this distinction as a response was somewhat different: it was that you appeared to be treating the culpability and consequence of virtualised versions of physical wrongdoings (such as assault and battery) as identical to the things of which they are virtualisations. The real question is, as far as legal system design is concerned (even in terms of an in-world specific legal system), is not “how does this action affect the avatar?”, but, “how does this affect the real-world human mind behind the avatar?”. The result is that, whilst in the physical world, an assault may be far more serious than a breach of contract, in the virtual world, an assault may be entirely trivial in its consequences on the human mind, whereas a breach of contract might be no less serious in its impact for taking place in a virtual environment.

    The mistake, I think, is to attribute to avatars themselves human personality: what counts is not the physical representation of a human, but the actual human mind, howsoever represented.

    To be continued…

    I do not have time to finish addressing all of the points that you raised now, but will do so when I next have an opportunity, which I hope will be soon. Thank you again for responding personally to my comment :-)

17. on 13 Feb 2008 at 4:39 pm17 Ashcroft Burnham
    

    …Continued from the above

    The involvement of service providers

    In SecondLife, Linden Lab have studiously avoided involving themeslves in resident to resident disputes for two good reasons: (1) it takes a vast amount of time per dispute to resolve them fairly; and (2) choosing to favour one customer over another in a dispute would undoubtedly be a PR disaster (whether or not the actual decision making was delegated to other customers; some would see that as even worse).

    The complaints with which Linden Lab deals are quite strictly limited to things that cause mass interference with the service, or serious fraud. Actions such as prohibiting all in-world interest-bearing depositing services unless licenced by government agencies is evidence of an attempt to reduce the amount of resources expended in policing fraud in one particular area of SecondLife by applying an extremely blunt instrument: Linden Lab did not want to get involved in determining which banks were and were not fraudulent.

    The suggestion that you made in the original paper, as I understand it, was that an employee of Linden Lab either act as a judge, or at least oversee the process. Doing either of those tasks would be extremely time-consuming, and therefore extremely costly for Linden Lab. Even aside from the PR issues, delegating such things to other customers directly would still require a great deal of time in working out to whom it is safe to delegate such things, and then dealing with complaints about the conduct of those delegates, many of which would be unfounded, but some of which could well be substantial.

    Residents can, indeed, become self-sufficient in the process of in-world adjudication, but true self-sufficiency would not need the involvement of the provider at all. Any involvement that the service provider would require expenditure by that provider of considerable resources that such providers would inevitably prefer to invest in technology and publicity.

    What the providers could do that would be useful is design tools to enable resident groups better to be able to organise themselves into governance units. I started a group some time ago called the “Local Government Study Group” to persuade Linden Lab to do so, but it has prioritiesd other things, and so far made no attempt at any sort of governance tools, which is why I moved my focus to the Metaverse Republic project, the basis of which is user-created tools, and can operate satisfactorily without any intervention by the provider at all.

    Griefing versus civil disputes

    The last point is part of the reason that in-world dispute resolution mechanisms in SecondLife at least are not as well suited to straightforward griefing as they are to disputes between established members of a community.

    Because our only tool will be to ban avatars, it will be difficult effectively to enforce against people who create accounts solely for the purposes of causing trouble, as the majority of dedicated griefers do: ban one account, and the griefer just creates another. Losing an account is of little consequence to the griefer, as he or she had little investment in the avatar in the first place.

    Conversely, established members of a community have more than might at first be apparent: people build up social networks and a considerable reputation attached to a particular avatar, and having to abandon that avatar and return to SecondLife incognito would not be lossless as it would for the griefers. The established community member would have to decide between losing her or his friends, or informing them that he or she had been banned from parts of SecondLife under the old account and was now using a new account, and, by inference if not expressly, why. That might undermine the person’s reputation, and, even more importantly, if any of those friends reported that to the Metaverse Republic authorities, the new alt could be banned, too, and so forth.

    Just as in real life, litigants would have to pick their fights: in national courts, those bringing a claim must carefully consider whether the potential defendant has enough money to meet any judgment and legal costs; in the virtual world, a person in the same position would instead have to consider whether the person in question is sufficiently established a member of the community for banishment to be a real deterrent. Similarly, people might deliberately choose to do business only with those people who have avatars that have a long track record specifically in order that they are able to seek effective redress if things go wrong.

    As a consequence, the types of disputes with which an in-world legal system will deal are likely to be different to those upon which you focussed in your article. Instead of disputes about deliberate griefing, the system is more likely to deal with commercial disputes, disputes about the operation of localised governance systems, and disputes about virtual land.

    System design

    I am a little confused about your position on appeals. The only direct reference to appeals that I could find in the paper is this:

    “Unlike the real world legal system, however, an appeals process may not be a valuable method of resolution. It could create a backlog of cases and a complicated adjudication process that was not intended. After all, the IGJ is simply a supplement to Linden Lab’s current enforcement and relief system. However, a one-time appeals process may be instituted giving Linden Lab the right to review any case that has been misjudged.”

    There appears to be some tension between the first and last sentences: either appeals are valuable, or they are not. The suggestion of appealing to Linden Lab creates all of the difficulties that I suggest above in relation to provider involvement. The way that appeals are concieved in the Metaverse Republic is that there will be two layers of court: the High Court and the General Court. The High Court will be constituted by three judges, and the General Court by one. A decision of the General Court will be able to be appealed to the High Court, but only with the leave of the High Court (or, in exceptional cases, the General Court), only on the bases of material error of law or procedure, or the emergence of fresh evidence not discoverable at the time of the original hearing. That appeal would be limited to a review of the decision of the lower court, and would not be a full rehearing. If a decision of the lower court was overturned, the matter might be remitted back to the lower court for a rehearing, depending on the circumstances.

    As to the training of judges, the Metaverse Republic will indeed have a rigorous selection procedure for its judges to ensure that only those who have (1) a high ability to understand and apply law in the abstract; (2) a good grasp of the legal system and substantive law of the Metaverse Republic; and (3) a sound working knowledge of the virtual world environments in which we will operate will be appointed. Each of those criteria are indispensable: having the third without the first two is no better than having the first two without the third. There is no great conceptual difference in what it takes to be a good judge just because the world is virtual: the virtuality of the environment does not have any particular effect on the nature of justice, or of law, or of the legal process in question, or of the nature of human disputes. What is needed is a strong grasp of legal reasoning, a sound knowledge of the specific legal system and substantive law in question, unrelenting intellectual honesty, a rigorous and thorough mindset, an ability both to deal effectively and accurately with detail and to take a realistic overall view, patience, pragmatism, incorruptibility, the ability to be decisive, the ability to be emotionally detached from a dispute and remain entirely neutral, and, above all, a strong sense of fairness. Those are radically different characteristics from those required for Linden liaisons, which is why having the latter act as judges would be an extremely unwise thing to do.

    In practice, the first two of the above criteria will mean that some form of legal education or training is necessary. The long-term plan is to provide our own legal education if possible, but that will depend on how things go, and whether the resources can be made available. Until then, we will have to draw on the large pool of people with real-life legal training and experience who operate in SecondLife to staff our courts.

    Conclusion

    Thank you again for responding personally to my post. Again, apologies if the tone of the original post was a little harsh: I hope that I have helped to make the areas of disagreement clearer in these two posts. Whatever its difficulties might be, your paper has certainly made a positive contribution to the debate about virtual world legal systems; it is good that somebody is paying the subject attention :-)

    I should be more than happy for you to join our efforts with the Metaverse Republic – IM me in-world (Ashcroft Burnham is my avatar name), and I will add you as an observer to our group. From there, you will be able to receive messages of forthcoming meetings, and, after attending one or two of those as an observer, and reading some of our background material, you will be able to apply to become a full member. The same, incidentally, applies to anyone else thinking of joining our efforts: I strongly encourage anyone interested in this field to do so. The more good people that we have working on our project, the better that the outcome will be, and the faster that it will be procured.

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