Going by Blizzard’s frequent on-box boast, if the 11 million subscribers to World of Warcraft were a state in the Union, their population would exceed that of Wyoming, Vermont, Alaska, Delaware, both Dakotas, Montana, Rhode Island, Hawai'i, Maine and New Hampshire combined. The new State of Azeroth would qualify for at least seventeen seats in the House of Representatives and could support as many pro sports teams as the City of Chicago.
Even that is just a small segment of total worldwide online population, and just like any group the desire for order battles the often chaotic human instinct for freedom. Into this new frontier the law has just taken a few small steps and in his book Virtual Justice: The New Laws of Online Worlds, Greg Lastowka, Professor of Law at Rutgers University, examines the state of online law and how legal history will shape the future online. Newsarama sat down with Professor Lastowka recently to talk to him about gamer’s rights, virtual property and current events in gaming law.
Newsarama: What is Virtual Justice?
Greg Lastowka: It’s about the law as applied to virtual worlds and the way in which virtual worlds are becoming their own jurisdiction. Also how in virtual worlds the rules that govern user interaction are set up by both those companies that set up and run these worlds and by those who use them, and how the ways these rules are different from the ones that govern people’s behavior off-line
Nrama: What was the impetus behind writing the book?
Lastowka: I have always been interested in new technologies, fantasy and science fiction. About seven years ago there was a professor at the Wharton School who suggested that we write a paper on virtual economies and the sale of virtual property for real money. I also co-launched a blog called Terra Nova that covered the legal aspects [of virtual worlds]. There are so many really interesting stories about the rules of virtual worlds and how the law might apply to virtual worlds that I found it to be a regular topic for scholarship, and by 2008 I found there was enough there to merit a book on the subject so I started to write it.
Nrama: In the book you describe how the laws of the ‘real world’ might not be sufficient to govern virtual ones, can you explain why?
Lastowka: The problem with any new technology is that the law has difficulty fitting it into one box or another. For instance, the problem with virtual property is that it is perceived by the user as something that they own, and could be sold by the user for real money, but at the same time the law with regards to virtual property might refuse to recognize a property interest there at all. So when the law encounters a claim with regards to virtual property, it’s encountered something new it hasn’t seen before. Judges, for instance, will have to determine whether or not virtual property is legal property, that’s the problem I start the book with. There are many other similar problems with regards to virtual worlds, people perceive them as places where they can meet and socialize, but the law doesn’t regard virtual places the way it regards a real place, even though it functions in some ways like a real place. There are many questions like that presented by this new technology that need to be resolved by the law.
Nrama: Using that last example, do you think that virtual worlds, or even the internet itself be considered a separate jurisdiction from either the user’s or the server’s physical location?
Lastowka: In some ways, that would be desirable, because the situation is that people are governed by the rules of their physical territory. If there is a certain law in regards to communication in the United States and there’s another law in regards to communication in say EnLastowkaand or France, and two people are communicating then the legal question is ‘what jurisdiction’s rules govern?’ That is a very complicated legal question, but one people can answer in [off-line] situations with the courts picking one jurisdiction or the other. However, if you are interacting in a virtual world, the layer of fantasy and/or fiction penetrates the expectations of behavior. So you might be talking or interacting with somebody in an online game or community [that has] very different expectations in regard to all sorts of behaviors, and those expectations might be unique to that particular virtual world and vastly different from the expectations of the people in your physical jurisdiction. Special rules might be best for virtual worlds in that they are unique environments with communities that understand and follow their own special rules that might be vastly different from the rules offline.
Nrama: When it comes to rules and operational decision making, is it too easy for game creators/operators to ‘sell’ the virtual life experience and then claim it’s ‘just a game’ when it suits them legally?
Lastowka: Well, right now the “Terms of Service” that govern your relationship with the platform owner: Disney, EA or whoever, is very, very favorable to the virtual world owner and not so favorable to the virtual would user, so legally if their contracts are enforceable, for instance your account might be terminated at any time for no reason, it’s something that rarely will be enforced by the company, but in terms of the law that is the status quo. I think it is interesting that, for understandable reasons, game companies will protect themselves and write the contracts with their users in such a way that gives them a great deal of power, but when they interact with their users, they rarely resort to those rules or govern by those standards. It’s understandable, as they want to attract a user base and they don’t want to get bad PR by being tyrannical in regard to user rights. They have an interest in keeping subscribers so they want their platform to be attractive, but when it comes to the legal rights of users they do their best to protect themselves to liability and exposure by drafting their contracts to be very favorable to themselves and not so favorable to their users.
Nrama: Given that, and the Bragg vs. Linden Labs (the developers of Second Life) case mentioned in your book, can and should End User License Agreements (EULAs) be successfully challenged in courts?
Lastowka: Yes, but Bragg was a very unusual case, that decision was a refusal by the court to enforce an arbitration clause, not one invalidating the entire contract, but I do believe there should be some limits on exactly how far a virtual would owner can use a contract to depart from the expectations of the users of a virtual world. Importantly, the Bragg case did not say that the EULA is the be-all-end-all of law in virtual worlds. It’s encouraging, as it seems like there is a check on abuses of the power that virtual world owners have though the mechanism of contract, through the law of unconscionability, on some level of abuse that they might engage in.
Nrama: If a virtual world charges for participation, assesses a virtual property/sales tax in real or fictional money during user transaction and/or is allowed to use user-generated content in promotions, should players be demanding representation in the “governance” of a virtual world?
Lastowka: A well run virtual world will listen very carefully to its user base, and will be very aware of the common expectations of the platform. One, for instance, area that Second Life has had some problems, sometimes it’s led users to invest in content creation on the platform, say to open virtual businesses to sell virtual fashions, and then a ‘duping’ program called CopyBot came along allowing people to copy these creations and sell them in violation of the coded rules of the environment. It took a little time for Second Life to respond and outlaw CopyBot and police against the use and spread of it on its platform. [The user’s] first reaction was dismay that they had invested in the platform with certain expectations and that Second Life had failed to live up to them. In some virtual worlds hold physical meetings, or attempts to involve major guilds, getting feedback on proposed major changes. Well run virtual worlds should be responsive to what their users want, especially in regards to changes.
Nrama: You note in your book, cases of virtual property with real world value being stolen and how those situations were resolved, however if “the plug” can be pulled on an entire virtual world, who is responsible for the loss of such property?
Lastowka: That’s a good question. Legally it’s very rare, I’ve never seen one, for a contract to hold the owner of a service liable for the termination of the service. To the contrary, the contracts stipulate that the owner of the service can terminate a user’s account for any reason at any time. So even though you might have some items of value in your account that you could sell in concurrence with the terms of service or even in violation of it, there would be language in the contract probably preventing a suit against the owner for closing down a world.
Nrama: But not enough to stop people from trying.
Lastowka: Right, but closing [a virtual world] down probably meant it wasn’t profitable for anyone involved. What’s amazing really is how rare they are closed down; Ultima Online is still going even though it debuted in the late 90s. That’s really a factor of how inexpensive a world is to maintain once all of the initial setup has been completed.
Nrama: Do you think the specter of infringing copyrights, as in the Marvel Comics vs. City of Heroes case, is limiting the development of virtual worlds?
Lastowka: I think there are problems that were raised by that lawsuit. That character creation engine, which is still used in City of Heroes, gives the users a broad range of choices over what they can do with their avatar’s costume. I think it’s desirable for the users to have [that level] of creative outlet. Although I think the specter of liability for copyright infringement influences the extent to which game developers are going to embrace user-developed content, they don’t want to be sued by any company saying that their IP is being infringed by user creations. They don’t want to have to respond to Digital Millennium Copyright Act claims in the same way that YouTube is constantly responding to. So the incentive [for developers] now is to limit the creative tools available to users and that’s not appealing to either of them, so it is having a chilling effect on even the potential for creativity online.
Nrama: With issues ranging from EULAs, virtual theft, copyright infringement and practices such as gold farming, do you see a tipping point approaching? A serious event where extended debate and real legal action may become necessary?
Lastowka: I’m always surprised how quickly things happen in this field. In 2002, when I first got interested in it, EverQuest had the largest user base, and we’re talking about 300,000 users. Just in 2009, Farmville had 60 million players via Facebook. So with the increasing penetration of broadband and the increasing importance of social networks, we are going to see some new law developing very quickly, especially dealing with sites like Facebook and MySpace. Their growth has been exponential, so things are going to happen soon, the developers are looking to head off legal uncertainties and any large shift in the law, though increasing investment inevitably means increasing litigation.
Nrama: Is there some easy/overlooked thing that MMO gamers should be doing to protect themselves?
Lastowka: If they are really concerned about loss or risk of damage or harm to their investments, they should take the time to read the EULA beforehand. Don’t just click ‘Accept.’
Nrama: Finally, Schwarzenegger v. Entertainment Merchants Association, AKA ‘the video game free speech’ case went before the Supreme Court recently, how you think they are going to rule?
Lastowka: I think they are going to affirm the 9th Circuit, that the statute violates the First Amendment rights of game developers. I’m not a big fan of the violent games out there, but I think there’s not a big difference between them and movies, for example, as to their effects on people. I really don’t think there is any evidence that derives to be a special First Amendment exception for violent video games, and that’s what you’d need to find in order to reverse the 9th’s decision. It was unusual that they’d even agree to hear the case, it could be they did just to finally declare that games are protected by the First Amendment.