Mischief and Grief

Perhaps more that any other branch of the law, tort has been the battleground of social theory (Prosser, 1977). According to Black’s Law Dictionary (1990), a tort is “a private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages (K.Mart.Corp.v.Ponsock, 732 P.2d 469 (Nev. App.) A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction (Coleman.v.California.Yearly.Meeting. of.Friends.Church, 81 P.2d 469 (Ca. App.). There must always be a violation of some duty owing to plaintiff (claimant), and generally such duty must arise by operation of law and not be mere agreement of the parties.” Individuals wish to be secure in their person against harm and interference, not only as to their physical integrity, but as to their freedom to move about and their peace of mind. This is important whether they are at home in Bournemouth or at home in a virtual world like Second Life. When an individual is at home in Second Life, they are represented by their avatar. This avatar is the characterisation of them which is valuable and persistent. Avatars embody real people who want food and clothing, homes, goods, money, entertainment, and to be secure and free from disturbance in the right to have these things in their virtual environments. They want to work and deal with others whilst protected against the interference with their private lives, their relationships, and their honour and reputation. In any society, it is inevitable that these interests shall come into conflict. The gaming community calls people who promote conflict “griefers”. Griefers are people who like nothing better than to kill team-mates or obstruct the game’s objectives. Griefers scam, cheat and abuse, often victimising the weakest and newest players. In games that attempt to encourage complex and enduring interactions among thousands of players, “griefing” has evolved from being an isolated nuisance to a social disease.

Contract Law and Virtual Worlds

Software companies offering subscriptions to virtual worlds want protection for their intellectual and economic investment. As such, companies condition entry to their worlds upon acceptance of a EULA which will generally impose strict restrictions on rights of participants. Professor Julie Cohen’s (1998) explanation in ‘Lochner in Cyberspace’ illustrates how private contracts routinely extend beyond real world law. ‘Lochnerism’ describes judicial activism in the sphere of economic legislation. It comes from the case, Lochner.v.New.York, 198 U.S. 45 (1905). “For an example of the use of the term in the present context, consider the following: Many commentators have recognized the similarities between the Court’s current approach to structural media regulation and its approach to economic and social legislation during the Lochner era. Importing content neutrality and tiered scrutiny into the constitutional analysis of structural regulation has opened the door to deep economic review.” (Burnstein, 2004 pp 1057-1058; Benkler, 2003 pp 201-205) Compare the assertion that First Amendment defences of the right of databases to control access to their contents have “some fairly strong parallels” with “the traditional conception of Lochner.” (Richards, 2005 pp 1212-13) This can be seen to extending to virtual worlds via these complex agreements with their ‘click-wrap format’ which discourage a complete review of their terms. Click-wrap agreements are online interactive contracts similar to shrink-wrap licenses. Shrink-wrap licenses are often used for software, where a consumer is deemed to agree to the license when he removes the plastic shrink-wrap packaging from the product box. Click-wraps appear on-screen and the participant must either agree or disagree to the terms before advancing to the next screen. Click-wrap agreements are of the shrink-wrap license. (Casamiquela, 2002, pp 477-80; Lemley, 1995) The motivation for the explosion of software licensing agreements remains in dispute. There are those who believe EULAs benefit corporations and consumers alike, while critics bemoan its influence on the application of intellectual property law.

Intellectual Property and Virtual Worlds

As stated previously, virtual worlds are created by computer code which is designed to act like real world property. (Fairfield, 2005) Also noted earlier was the emergent certainty that digital technology is detaching information from the physical plane, which, in turn, disrupts the foundations of property law. The next question posed was, should this virtual property be protected and regulated in the same manner as real world property? The answer was perhaps. However, first, another aspect of property law should be considered, intellectual property. A good deal of computer code is just one step away from pure idea. Like ideas, it is non-rivalrous; that is, one person’s use of the code does not stop another person from using it. (Fairfield, 2005) This kind of code is deemed to be protected by intellectual property law. (Lessig, 1999; Geist, 2003; O’Rourke, 1997) Intellectual property protects the creative interest in non-rivalrous resources. Richard Posner (2000) noted: “Intellectual property is characterized by heavy fixed costs relative to marginal costs. It is often very expensive to create, but once it is created the cost of making additional copies is low, dramatically so, in the case of software, where it is only a slight overstatement to speak of marginal cost as zero. Without legal protection, the creator of intellectual property may be unable to recoup his investment, because competitors can free-ride on it; and so legal protection can expand output rather than, as in the usual case of monopoly reduce it.”

It is Only a Game

In many ways, ubiquitous computing is viewed as the opposite of virtual reality. The earliest writings on ubiquitous computing recognized this fundamental difference. “Perhaps most diametrically opposed to our vision [of ubiquitous computing] is the notion of ‘virtual reality,’ which attempts to make a world inside the computer . . . . Virtual reality focuses an enormous apparatus on simulating the world rather than on invisibly enhancing the one that already exists. Indeed, the opposition between the notion of virtual reality and ubiquitous, invisible computing is so strong that some of us use the term ‘embodied virtuality’ to refer to the process of drawing computers out of their electronic shells.” (Weiser, 1991) Yet, the two share an important common trait: both are mediated by computing ability. The previous chapter introduced “MMORPGs” which are also sometimes referred to as game worlds or virtual worlds. Some of the most popular American MMORPGs are World of Warcraft, Everquest, Ultima Online, Dark Age of Camelot, Star Wars Galaxies, and City of Heroes. Legend of Mir, Final Fantasy XI, Lineage II, MU Online, Ragnarok Online, Lineage, and Kingdom of the Winds are some popular Asian MMORPGs. Dubit, Runescape, Playdo, and Habbo Hotel are popular in Europe. (Terra Nova, 2008) Another type of popular virtual world is the social virtual world, also sometimes referred to as “unstructured.” Some popular social virtual worlds are Second Life, Sims Online, Project Entropia, and There. (Virtual Worlds Review, 2008) Categorization as “social” does not fully comprehend these virtual worlds. Each world relies to an extent on user-created content. For example, Second Life started as a largely blank slate with most in-world objects being designed and created in-world by individual players. (Second Life, Create Anything, 2008) Social worlds can also have some game-like incentive aspects. The entire concept embodies far more than traditional video games.

Avatars

Virtual worlds may be the future of e-commerce. The game designers who fashioned these flourishing virtual worlds have invented a much more appealing way to use the internet: through an avatar. This usage of the term was coined in 1985 by Chip Morningstar, a user of the first avatar environment created by LucasFilm called Habitat. Habitat lacked many of the features we have in today’s games such as quests and puzzles. It was more similar to a social MUD in which the interactivity between avatars was the ultimate goal. According to Encarta: “Avatar [Sanskrit]: 1. incarnation of Hindu deity: an incarnation of a Hindu deity in human or animal form, especially one of the incarnations of Vishnu such as Rama and Krishna. 2. embodiment of something: somebody who embodies, personifies, or is the manifestation of an idea or concept. 3. image of person in virtual reality: a movable three-dimensional image that can be used to represent somebody in cyberspace, for example, an Internet user.” Unlike previous video game alter-egos, these avatars can be completely customized and are designed mainly for social interaction (Lastowka and Hunter, 2004). The average player dedicates hundreds of hours (and hundreds of dollars, in some cases). To cultivate his avatar. A survey suggested that approximately 20 percent of Norrath’s citizens deem it their place of residence; they just commute to Earth and back. To a large and growing number of people, virtual worlds are an important source of material and emotional well-being. (Yee). Ordinary people, who are bored and frustrated by regular web commerce, participate vigorously and passionately in avatar-based on-line markets.

Why Virtual Worlds?

This book will examine the legal realities which are emerging from Massively Multiplayer Online Role-Playing Games (MMORPGs). MMORPGs are any computer network-mediated games in which at least 1,000 players are role-playing simultaneously in a graphical environment. They are also known as virtual worlds. The term virtual reality was coined by Jaron Lanier in 1989. Lanier is one of the pioneers of the field, founding the company VPL Research (from Virtual Programming Languages) which built some of the first systems in the 1980s. The related term artificial reality has been in use since the 1970s and cyberspace dates to 1984.

Beyond Griefing

Because there is so much money involved in virtual worlds these days, there has been an increase in criminal activity in these worlds as well. The gaming community calls people who promote conflict “griefers”. Griefers are people who like nothing better than to kill team-mates or obstruct the game’s objectives. Griefers scam, cheat and abuse. Recently, the have begun to set up Ponzi schemes. In games that attempt to encourage complex and enduring interactions among thousands of players, “griefing” has evolved from being an isolated nuisance to a social disease. Much in the same way crime has become the real world’s social disease. Grief is turning into crime. Some consider virtual worlds to be a game and therefore outside the realms of real law and merely subject to the rules of the game. However, some virtual worlds have become an increasingly important as a method of commerce and means of communication. In most circumstance the law is reluctant to intrude into the rules of the game, but it will do if necessary. (Lastowka & Hunter, 2004) Criminal law applies in virtual worlds as it does in the real world, but not necessarily in the manner that a player would expect or want. The law looks at the real consequences of actions, not the on-screen representations. (Kennedy, 2009)

Virtual Property in Virtual Worlds

Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition. Throughout the history of intellectual property law, the proprietary assertions of thinkers and inventors have been focused not on their ideas, but on the expression of those ideas. The ideas themselves, as well as facts about the phenomena of the world, were considered to be the collective property of humanity. One could claim franchise, in the case of copyright, on the precise turn of phrase used to convey a particular idea or the order in which facts were presented. Law protected expression. To express was to make physical. One did not get paid for the idea but for the ability to deliver it into reality. The value was in the conveyance and not the thought conveyed. In other words, the bottle was protected, not the wine. (Barlow, 2004)

Why Virtual Worlds Matter

To return to the quote which began this book, what is man? He has existence. He uses his faculties to improve his existence. He assimilates the world around him. Bastiat labelled these personality, liberty and property. What is an avatar but a manifestation of self beyond the realm of the physical? He has existence in a virtual world. He has a distinct personality. The avatar must use his faculties to improve his existence. He must level himself into a more powerful character to survive in his virtual world. He must have the liberty to become what he wants or needs to become. The avatar assimilates the world around him. By questing and click slavery, an avatar can acquire property. Personality, liberty and property are intrinsic traits of avatars as well as men. And they exist whether laws have been passed by governments or game companies. If there is a world to exist in, then these traits exist and men will want to set limits on them. Gaming identities are becoming indistinguishable from ‘real’ identities – just as e-commerce has become indistinguishable from ‘commerce’. Control over these online avatar identities has real-world consequences. As soon as something is valuable and persistent, people seek to associate rights and duties with it. The questions posed in this book revolved around the ideas of personality (personhood, identity), liberty (freedom v servitude), and property (copyright and intangible property).

Philosophy, Personality and Property

What is a body, a matter of law? (Rao, 2007; Scott, 1981). Where is the body? Is it integral or severable from the legal person? Is it a commodity? Have our bodies, our selves, and our labour become commodities with a market exchange value? (Radin, 1996). The bioscientific conversion of the body into information has become labelled postmodern. Jean Baudrillard described this postmodernity as ‘hyperreality’. (Poster, 1999). This means that only the viewer only acknowledges the real in its image – reality, as the hyperreal, is “always already reproduced”. (Id.). The process of conversion of the body, the human organism, into genetic information is just such a reproduction. Just as the process of conversion of the personality into reputational information is also such a reproduction. This means that the body need no longer exist only as a corporeal reality, but also as the ‘mirroring’ body, quite literally ‘a body of information.’ (Halewood, 2008)