A paper by F Gregory Lastowka & Dan Hunter. Very worth the reading.
http://www.chaihana.com/Lastowka-Hunter.final.pdf
--<cut>--
California Law Review
Vol. 92 -- January 2004 -- No. 1
The Laws of the Virtual Worlds
F. Gregory Lastowka & Dan Hunter
Table of Contents
Introduction.............................................................. 3
A. Virtual Worlds .................................................... 4
B. On the Real and the Virtual ....................................... 7
I. A Virtual-World Primer ................................................ 14
A. Writing the World.................................................. 14
B. Drawing the World ................................................. 21
II. Virtual Properties ................................................... 29
A. The Existence of Property in Virtual Worlds ....................... 30
B. Early Conceptions of Virtual Property ............................. 34
C. The Descriptive Account of Virtual Property ....................... 37
1. Metaphysical Problems ......................................... 40
2. Temporal Problems ............................................. 42
D. The Normative Account of Virtual Property.......................... 43
1. Utilitarian Theories of Virtual Property....................... 44
2. Lockean Theories of Virtual Property........................... 46
3. Personality Theories of Virtual Property....................... 48
E. Ownership of Virtual Property ..................................... 50
III. The Rights of Wizards and Cyborgs ................................... 51
A. Wizards .......................................................... 54
B. Corporate Wizardry and Its Justifications......................... 59
C. Cyborgs........................................................... 63
D. Cyborg Communities and Cyberskeptics.............................. 68
Conclusion ............................................................... 72
Associate, Dechert LLP, Philadelphia. Email: greglas@aya.yale.edu.
Robert F. Irwin IV Term Assistant Professor of Legal Studies, Wharton
School, University of Pennsylvania. Email: hunterd@wharton.upenn.edu.
Both authors contributed equally to this Article, and order of
attribution was randomly determined. The authors wish to thank Jane
Baron, Ted Castronova, Julian Dibbell, Will Harvey, Elizabeth Hess
("Yib"), Orin Kerr, Carol Chase Lastowka, Raph Koster, Tom Melcher,
Jennifer Mnookin, David Post, Will Warner, Tim Wu, and Jon Zittrain for
comments and insight. The usual disclaimer applies.
The Laws of the Virtual Worlds
F. Gregory Lastowka & Dan Hunter
Virtual worlds are places where millions of people come to play, trade,
create, and socialize. In this Article, we provide a brief history of
virtual worlds and examine two legal questions raised by virtual world
societies. First, we ask whether virtual objects might be understood as
constituting legal property. Second, we discuss whether democracy and
gov- ernance are concepts that might be applied meaningfully to social
conflicts that arise within virtual worlds. As virtual worlds continue
to evolve into virtual communities with separate rules and expectations,
it is important to understand the interaction between the laws of the
real world and the laws of the virtual worlds.
Imagine the plains, caves, and abysses of my memory; they are
innumerable and are innumerably full of innumerable kinds of
things . . . .
--Saint Augustine1
[A virtual world] is a place you co-inhabit with hundreds of
thousands of other people simultaneously. It's persistent in that
the world exists independent of your presence, and in that your
actions can permanently shape the world.
--Ultima Online website2
Introduction
A snow-capped mountain range stretches over the town's northern border
and tapers down to a southward-facing, concave bay embracing a small
archipelago of glittering islands. Homes are clustered in predictable
locations: on the islands, against the seaside, and close to the
mountains. This is the community of Blazing Falls, a town with over
25,000 inhabi- tants--roughly the size of Timbuktu or Poughkeepsie. Its
young and attrac- tive twenty-something inhabitants can be found
chatting and working together in their eclectically furnished
dwellings. Most live with room- mates, with whom they share both rights
of ownership and the duties of taking out the garbage, washing the
dishes, and paying for parties and furniture. In their leisure time,
they chat with neighbors, attend shows, dance at nightclubs, work out,
and visit local attractions. Undoubtedly, many Blazing Falls residents
are engaged in such activities at this very moment. As you are reading
this, they are eating, sleeping, or resting on comfortable couches in
front of television sets while they discuss politics and the latest
movies with their roommates.
All manner of social groups exist in Blazing Falls--Christians, Wiccans,
Goths, Punks, and poets. Many professional types are represented: some
work as telemarketers; others work as repairmen; some are aspiring
musicians; and there are even people who manufacture lawn gnomes for a
living. Most people do business honestly, but there is a shady side to
Blazing Falls. Some Blazing Falls residents are confidence men, preying
on gullible newcomers. There are even a few brothels and strip clubs,
though the legality of these establishments is dubious.
All of this seems familiar. Yet there is much about Blazing Falls that
is decidedly unfamiliar. A casual visitor might at first be nonplussed
by the common social practices in the community. Homeowners in Blazing
Falls generally encourage strangers to enter their property, lie in
their beds, eat their food, use their bathrooms, and monopolize their
possessions. When these visitors break their pinball machines and
exercise equipment, the owners may complain a bit, but for the most part
they cheerfully repair the items and let the visitors have at them
again.
Other aspects of Blazing Falls are even harder to explain. No one there
has ever been ill. And though marriages occur often enough, no children
have ever been seen. Strangely for a town of 25,000, even if one of the
nubile and newly married residents were to become pregnant, she would
find no hospital where a child might be delivered. Most importantly (for
the purposes of the legal scholar) there are no courts, no halls of
Congress, and not even a visible police force--yet not one murder has
ever been reported.
If you ask the average resident of Blazing Falls what she thinks about
the absence of familiar legal institutions, however, she will generally
seem more intrigued than alarmed. In Blazing Falls, she will ask, is all
of that messy business of law and government truly necessary? After all,
none of this is real.
A -- Virtual Worlds
Blazing Falls, as you probably guessed, is a virtual world. Using less
lofty language, you might call it a computer game. Blazing Falls is just
one town in the larger environment of The Sims Online, a popular game
with reportedly over 100,000 subscribers.3 Other contemporary virtual
worlds include the tropical beaches of Tiki (There.com's There), the
fantasy world of Norrath (Sony's EverQuest), the interstellar expanses
of the Milky Way (Electronic Art's Earth & Beyond), and even a galaxy
far, far away (Sony's Star Wars Galaxies). In Blazing Falls and these
other places, millions of people with Internet connections are currently
living large portions of their lives, forming friendships with others,
building and acquiring virtual prop- erty, and forming social
organizations.4 In South Korea, the game Lineage5 is currently more
popular than television, with some four million registered
participants.6 In the United States, EverQuest's Norrath is the most
popular virtual world, with over 440,000 subscribers at last count.7
Ultima Online and Dark Age of Camelot are serious competitors, having
250,000 and 200,000 participants, respectively.8
The Sims Online, of which Blazing Falls is a part, is the brainchild of
Will Wright, the legendary figure in computer games who created a long
line of popular "God-games" such as SimCity, SimLife, and SimEarth.
These simulation games allow players to manipulate a simulated city,
life form, or planet, respectively.9 In The Sims Online, each tiny
figure on the computer screen represents a real person reacting in real
time. Your com- puter monitor will display twelve tiny figures talking,
dancing, and eating in the living room of a spacious home. One of these
figures will be "you," while the other eleven will be representations of
eleven other real people who are speaking and interacting with you
through their virtual representa- tions. These people gathered in your
virtual living room in Blazing Falls will in all likelihood be hundreds
or thousands of miles away in reality.
This is obviously a new concept in games, if it is even properly
characterized as a game at all. Non-networked computer games resemble
the mental world of a two-year-old: everything revolves around you and
nothing happens when you are not present. Virtual worlds are
different. The Sims Online, like all virtual worlds, is both persistent
and dynamic. Even
when you are not in Blazing Falls, the environment continues to exist
and changes over time. While you sleep in real life, other people's
representa- tions may be eating and dancing in your home in Blazing
Falls; your neighbors' virtual houses will be remodeled and redecorated
while you commute to work; virtual weddings will take place while you
chat at the physical world water cooler; and new social structures will
emerge while you have dinner. By the time you get back to Blazing Falls
in the evening, you may find the entire infrastructure and character of
your neighborhood has changed.
Of course, all of these changes occur in a represented reality, and the
inhabitants of Blazing Falls know each other through representational
proxies that may or may not reflect the physical attributes of their
control- lers. Representational proxies in these virtual spaces are
known as "avatars," a word of Hindu religious origin.10 Avatars, unlike
prior video game alter-egos, can be richly customized and are designed
primarily for social interaction. Currently, the avatars of virtual
worlds speak with each other through either textual chat windows or
"speech bubbles" that float over their heads. Avatars express themselves
through appearance as well. You can choose the face, clothes, and body
shape of your avatar and com- municate with others through body
language. For instance, in The Sims Online, avatars yawn, clap, shout,
shake their fists, cry, hug, kiss, dance, and perform hundreds of other
ordinary human actions to let others know how they're feeling.11
Perhaps because virtual worlds support this kind of rich social
interaction, many of those who have chosen to visit virtual worlds
remain residents of them. The average EverQuest player and Norrath
avatar, for instance, spends about twenty hours a week within the
virtual world.12 Virtual-world participants design costumes, furniture,
and houses for their avatars, and sell their creations to others.13 They
buy and barter virtual chattels on eBay.14 They form clubs and
organizations devoted to mutual aid and protection.15 They pressure
their roommates and organizational members to spend more time in the
virtual world in order to foster the common good.16
Yet despite these substantial investments of time and creativity, and
despite the emergence of new virtual social orders, the activities
within virtual worlds are viewed by some as games and diversions, not
worthy of serious attention. In a nutshell, the standard argument is
that, at a funda- mental level, these social environments are not real
and, therefore, not wor- thy of serious consideration. This argument is
mistaken. In the next section, we discuss the difficulty of drawing
simple lines, from a cultural and legal perspective, between what is
real and what is unreal. Our conclu- sion is that, for numerous reasons,
virtual worlds, and the social interac- tions that occur within them,
constitute an important societal development that deserves careful
investigation.
B -- On the Real and the Virtual
Virtual worlds are indeed unreal.17 We mean by this that they are
artificial, fictitious, imaginary, intangible, and invented.18 Yet
virtual worlds are real, as well. All things artificial or invented do
not fall entirely outside the ambit of reality. If they did, we would
need to banish from reality all manner of human actions and creations,
including buildings, languages, and--most important for our
purposes--laws. As Jack Balkin and Julian Dibbell have noted, while laws
may be invented and intangible, they are hardly insignificant.19
There are, of course, many senses of the words "real" and "unreal."
Ontologically speaking, virtual worlds have much in common with Disney
World.20 Tomorrowland, Fantasyland, and Main Street are physically real,
but that physical reality is largely a faux representation of
environments from science fiction, fantasy, and American history--the
real and the rep- resented are blended together. Common cultural spaces
such as movie theatres, carnivals, and even mock trials at law schools
share a similar status. They all provide settings where we may be
scared, saddened, and frustrated by things that are significantly
unreal. Our culture is awash in such unreal realities, which take the
form of deceptions, myths, fantasies, neuroses, and daydreams. Indeed,
mythologies and shared illusions may provide an important basis for
cultural cohesion.21
Millions of individuals are embracing the unreality of virtual worlds by
paying substantial sums of money to exist in them. Hundreds of millions
of dollars in revenue are flowing into the coffers of Sony, Electronic
Arts, and the other companies that own virtual worlds.22 Intel and
McDonald's have reportedly paid millions of dollars to place their
products in front of the eyes of avatars.23 One might predict that where
large amounts of real money flow, legal consequences follow. Brute cash
alone, however, doesn't establish the legal significance of virtual
worlds. Cereal and children's television make money too, but one rarely
sees articles on the laws of Frosted Flakes or Sesame Street.
We suggest that the laws of virtual worlds are significant for three
primary reasons. First, virtual worlds are attracting an ever-increasing
population of participants who believe that the social interactions that
oc- cur within these environments are important. The reasons for this
attraction are evident from considering a virtual world called There,
which has recently gone into beta testing.24 There is not a gaming
environment; in- stead, it is being marketed simply as a virtual "place"
where people can meet, interact, and play within vivid representations
of the South Pacific islands and other exotic locales. So if your family
members are spread out in the real world, why call them on the phone
when you could go There with them virtually and spend some time skiing
together?25 For those who may be searching in vain for a new social
scene, why not go There and meet a virtually attractive group of
trendy-looking singles, engage in witty conversation around a Tiki bar,
and then go hiking together up the side of a virtual volcano?26
When Edward Castronova, an economics professor at California State
University at Fullerton, undertook a study of the economics of
EverQuest,27 he was challenged by the impression that others within his
field might have thought he was wasting his time on something lacking in
real-world rele- vance. His explanation for why this "silly game" really
mattered was as follows:
[E]conomists believe that it is the practical actions of people, and
not abstract arguments, that determine the social value of things.
One does not study the labor market because work is holy and
ethical; one does it because the conditions of work mean a great
deal to a large number of ordinary people. By the same reasoning,
economists and other social scientists will become more interested
in Norrath and similar virtual worlds as they realize that such
places have begun to mean a great deal to large numbers of ordinary
people.28
Castronova is right. Millions of people spend a large portion of their
wak- ing lives in virtual worlds.29 A significant number of users even
claim pri- mary citizenship in virtual worlds. In Castronova's study,
20% of participants in a large survey of EverQuest's users attested to
living their lives mostly in EverQuest's Norrath, 22% expressed the
desire to spend all their time there, and 40% indicated that if a
sufficient wage were available in Norrath then they would quit their job
or studies on earth.30 Since people expect places to be governed by some
law, we should attempt to fashion some decent answer to the question of
what laws might (or should) apply to virtual worlds.31
There also illustrates a second reason virtual worlds are worthy of
consideration, namely that the economic boundaries between the real and
the virtual world are not as distinct as they might appear. If you're
going on a virtual date with a new acquaintance you met in There, you'll
probably want to dress to impress. So perhaps you'll pick up some baggy
Levi's jeans, a Nike sweatshirt, or maybe a snazzy new hoverboard for
your avatar. You may even want to fine-tune your avatar's face and
haircut. All of these virtual chattels and services will set you back a
tidy sum of Therebucks at the There-controlled rate of 1,787 Therebucks
to the U.S. dollar.32 Your nonvirtual credit card will be charged for
these purchases. Nike and Levi Strauss seem to be intrigued by a market
for virtual "goods" which requires no costly physical inputs.33
This notion of buying nothing but a visual representation is really no
more strange than paying an extra dollar or two for a certain logo
printed on a T-shirt. As a There executive explained: "If the way I
dress is part of how I define myself in the real world, and I make style
choices and brand choices based on that, it's a logical transition to do
those same things in this virtual world."34 There.com, the company
behind There, is so serious about the creation of the parallel There
economy that it consults an economist for advice on monetary and fiscal
policy.35
Even where the creator of the virtual world does not facilitate markets
for virtual goods, the residents may take it upon themselves to do
so. For instance, if one spends enough time in virtual worlds, one can
accumulate property that other people value: virtual castles, swords,
silk sashes, and even one's own avatar. By listing a well-developed
avatar and its virtual castle on eBay, you can convert your virtual
asset from a virtual value to real U.S. dollars.36 In fact, these
transfers happen so often that one can calculate an exchange rate
between virtual- and real-world currencies.37
Simply put, the real and the virtual overlap from an economic
perspective. For better or for worse, it is now possible to work in a
fantasy world to pay rent in reality.38 The process differs little from,
say, a Filipino overseas contract worker who works in another country
for a period and sends money back to the Philippines. The implication is
that some day people will walk their well-dressed avatars to virtual
offices, where they, through their avatars, will labor to convince other
avatars to cough up real cash for virtual goods. One obvious question
that emerges from these transactions is how to deal with the
jurisdictional issues presented by the disputes that will inevitably
arise over virtual assets and transactions. It is unclear how existing
property rules apply to such virtual rights and properties.39
A third reason for exploring the laws of virtual worlds is that they
provide a parallel alternative to existing legal systems, where new
forms of social regulation can be explored. This point was made several
years ago by Professor Jennifer Mnookin in her discussion of the virtual
world of LambdaMOO. As Mnookin observed in regard to LambdaMOO's
emerging legal system, "[V]irtual communities like LambdaMOO, odd
hybrids between games and worlds, simulations and society, may prove to
be spaces for institutional reimagining, for questioning and reshaping
conceptions of self, politics, and law."40 The same arguments Mnookin
applied to LambdaMOO apply to the far more prevalent phenomenon of
today's virtual worlds, which have progressed far beyond the small
communities and textual interface of early virtual worlds like
LambdaMOO. The laws of virtual worlds, where hundreds of thousands of
individuals interact and form social bonds, can provide researchers with
interesting insights into the emergence of law within new societies that
exist purely through the medium of computer software.41
One might respond that the laws of virtual worlds are not really laws at
all, but merely something law-like. Orin Kerr recently made this point
in arguing against Lawrence Lessig's well-known "Code Is Law" thesis:
Saying that the power of code is akin to the power of law is simply
too loose a use of the word "law" to be helpful. If code is law to
an Internet user, then a sports referee's calls are law to an
athlete, and Steven Spielberg's decisions about how to shoot a
movie are law to a movie viewer.42
Of course, there are differences between federal laws and the rules of
games or the writing of computer software. Some may wish to define "law"
as only that which is enforced by men with guns and nifty uniforms.
Obviously, such a definition would ignore substantial swaths of
significant social regulation. As Robert Ellickson has shown, the
informal agreements between farmers and ranchers in Shasta County about
cattle trespass may not be "law" in a narrow sense of the word, yet they
are more important than law for that community: they are the basic
mechanism of resource allocation, dispute resolution, and social binding
for a tight-knit and interdependent group of individuals.43
Even Kerr's chosen examples of "nonlaw" are more slippery than he
admits. To a professional athlete, the official rules enforced by
referees are probably more meaningful to her life, career, and worldview
than certain obscure portions of the United States Code. Indeed, the
U.S. Supreme Court has cited the laws of golf as authority in applying
the Americans with Disabilities Act.44 Kerr's references to Spielberg
are equally interesting, given that at least one film rental company has
filed suit seeking the right, for instance, to edit out the gruesome
carnage from the initial scenes of Saving Private Ryan.45 Is that
company entitled to do so or are Spielberg's decisions about how to
shoot a movie "law" to those who would like to view his films
differently?
Law regulates action within a social system. If the social system is
something more significant than a football match or a movie, then the
impact of regulatory mechanisms is surely worthy of study, and we might
meaningfully describe them as law. Virtual worlds involve millions of
people engaged in social and commercial activity. For the sake of
simplicity, we will talk of "law" henceforth. Regardless of whether we
call these things "law," "norms," or "grue," the regulation of actions
within these worlds is a topic worthy of legal study. In this Article,
therefore, we explore two emerging legal issues within virtual worlds:
property rights and avatar rights.
In Part I, we provide an extensive primer on virtual worlds, in order to
place today's virtual worlds in their historical context. We consider
very briefly the relationship between prior representational forms and
virtual worlds and then trace the history of virtual worlds as
computer-based, interactive, and persistent environments. We also
provide a brief description of some of today's popular virtual worlds
and the lives of avatars within them.
Part II begins our analysis of property interests within virtual
environments. Adopting economic accounts that demonstrate the real-world
value of virtual objects and the exchange mechanisms for trading these
objects, we show that, descriptively, these types of objects are largely
indistinguishable from other legally recognized property interests. We
conclude that while various theories of property may apply in different
ways to the concept of virtual assets, the primary theories of property
are consistent with the concept of property rights in virtual
assets. However, we conclude that courts will encounter some problems in
attempting to allocate these rights using real-world legal rules.
In Part III, we investigate the close interrelationship of avatars and
their controllers, and query whether the decision to view the
human/avatar combination as a cyborg might lead to new and enforceable
legal and moral rights. We argue that cyborg entities may possess rights
distinct in nature from the rights of the human controller. However, we
acknowledge the substantial difficulties that would flow from such a
recognition. Cyborg entities are created through the authorship of
proprietary code and the function of proprietary computer
systems. Because cyborg entities must rely on the efforts of the authors
and owners of virtual worlds (often called "wizards") to maintain their
existence and community, it is difficult to theorize how any general
notion of cyborg rights could be recognized or asserted. In addition,
the courts and juries of the real world may prove either incapable of
grasping the divergent laws of virtual worlds or unwilling to accept the
legal significance of actions that take place within these worlds. Thus,
we conclude, while cyborg rights may eventually develop within legal
systems, they will likely emerge within virtual worlds rather than
through outside efforts to impose those rights through real-world
lawmaking.
I -- A Virtual-World Primer
Alice started to her feet, for it flashed across her mind that she
had never before seen a rabbit with either a waistcoat-pocket, or a
watch to take out of it . . . . In another moment down went Alice
after it, never once considering how in the world she was to get
out again.
--Lewis Carroll46
To understand the legal framework of virtual worlds, it is vital to
understand the social and technological forces that have brought them
about. The notion of moving through a spatial representation is an
ancient idea present in any map or early game. The first game in
recorded history, The Royal Game of Ur (c. 2500 B.C.), involved moving
an avatar-like game piece around a board--that is, an abstract world.47
Contemporary virtual worlds, however, are closer kin to fiction and art
than they are to simple games. To understand virtual worlds, therefore,
we need to understand them in the context of their literary and artistic
traditions. In the two sections that follow, we split the history of
computer-based virtual worlds into two threads, one literary and one
visual.48
A -- Writing the World
As lawyers49 and parents50 are well aware, language allows humans to
invoke, out of thin air, their own imaginary worlds. The first virtual
worlds were spoken myths and legends that made early audiences
intimately familiar with imagined people, places, and
circumstances. When such stories were later captured in a fixed medium,
the virtual world of literature was born.51 Literature is "virtual" in
that the reader willfully disbelieves that a narrative exists as a mere
set of symbols, and instead becomes immersed in the fictive
environment.52 Willful belief in representations is, of course, inherent
in many forms of communication and occurs in factual histories and
biographies, as well as in fictional accounts. Indeed, when one looks to
the earliest examples of literature, fact and fiction are hard to
separate. Did the original audiences of the Epic of Gilgamesh, Homer's
Odyssey, and the Book of Genesis understand those narratives as fact,
fiction, or something in between?
Invented worlds feature prominently in the literary canon. Dante
Alighieri's Divine Comedy, William Shakespeare's The Tempest, Jonathan
Swift's Gulliver's Travels, and Lewis Carroll's Alice in Wonderland are
all classic works of literature that depict elaborately detailed, often
unfamiliar, imagined worlds which bear little resemblance to the world
we know as real. Today, much of this type of literature (the type that
conjures imaginary worlds) can be found in a back-shelf ghetto of the
average bookstore in the science fiction and fantasy section.
Fictional geographies, often lovingly detailed, are frequently an
important part of imagined literary worlds.53 The most important
twentiethcentury popularizer of virtual worlds, J.R.R. Tolkien, created
comprehensive maps of Middle-Earth and its Shire, the imaginary places
where The Hobbit and The Lord of the Rings trilogy take place. One of
the distinct pleasures of reading Tolkien stems from the richness of his
imaginary topography, expressed through his hand-drawn maps. One can
trace the movement of the protagonists across a landscape of forests,
mountains, and marshes, and wonder at the nature of those regions that
his text does not explore.
Perhaps because of the richness of Tolkien's world-building, his works
have had an enormous and varied influence on contemporary fantasy novels
and, arguably, gave birth to the fantasy-literature genre as it exists
today. Tolkien's Middle-Earth books, first published in Britain in the
1940s and early 1950s, became required counterculture reading in U.S.
high schools and colleges during the late 1960s, spawning a campus vogue
so feverish that it resembled a "drug dream."54 Even Led Zeppelin made
regular references to Tolkien in its music.55 Today, Peter Jackson's
film trilogy has revived the popular interest in Tolkien's elves,
dwarves, and hobbits.56
Those who designed the precursors of today's virtual worlds were not
immune to this influence. Among Tolkien's earliest devotees were
medievalists, some of whom enjoyed the hobby of staging battles
involving miniature lead soldiers.57 In 1974, two medievalist wargamers,
Gary Gygax and Dave Arneson, transformed Tolkien's richly imagined world
into a game called Dungeons & Dragons (D&D). While billed as a wargame,
D&D was a far cry from traditional historical reenactment.58 The D&D
game simulated the adventures of individual dwarves, elves, hobbits,59
and humans. The players of the game identified with their individual
avatars rather than controlling armies of game pieces, leading to the
description of D&D as a "role-playing" game.60
In the game, a "dungeon master" creates opponents and obstacles for the
players and describes them verbally. These challenges usually consist of
hostile monsters such as dragons and orcs, as well as deadly puzzles.61
After defeating a certain number of obstacles according to the game's
rules, a player's avatar increases in power. This process is known as
"leveling"--a beginner starts as a weak level 1 avatar, progresses to
become a more powerful level 2 avatar, and so on.62
The Byzantine rules and imagination-taxing quality of the game prevented
D&D from ever achieving the popularity of Monopoly.63 However, for the
niche market of computer programmers, Byzantine rules and unreal
environments were par for the course. Perhaps as a result, Tolkien and
D&D ended up playing a crucial role in the development of computer-based
virtual worlds.64 The process began in 1976, when Will Crowther, a
Tolkien and D&D aficionado, wrote a computer game called ADVENT.65 The
game, which Crowther wrote to amuse his children, presented a navigable
textual database66 based on the real-world Mammoth Cave in Kentucky,
spiced up with D&D elements to make it more interesting.67 The game
emulated the conversational style of a D&D dungeon master: "You are
standing at the end of a road before a small brick building. Around you
is a forest. A small stream flows out of the building and down a
gulley."68 Nothing further would occur in the game unless the player
typed a textual command. For instance, if the player typed the word
"enter," thus ordering the avatar to enter the building, the computer
would respond by displaying the sentences: "You are inside a building, a
well house for a large spring. There are some keys on the ground
here."69 Like a D&D game, Crowther's program was replete with
complicated puzzles requiring players to perform certain tasks with
specific objects to avoid death and to progress in the game.70
Don Woods of MIT subsequently modified and expanded Crowther's ADVENT,
renaming it Adventure and giving it away for free to those who wanted to
host it on university mainframe systems elsewhere.71 As the personal
computer market emerged in the next few years, the profitable sale of
text-based games became possible.72 Only four years after ADVENT was
authored, the Infocom company sold its first text-based game, Zork,
which became one of the first commercially successful home computer
programs.73 Subsequently, Infocom created a multitude of text-based
games for the personal computer market.74
The weak point of ADVENT and similar games was that they were not
social. Only one avatar could exist within the textual space.75 In 1979,
Roy Trubshaw and Richard Bartle created the first social textual world,
MUD1, at Essex University in England.76 In MUD1 and its derivatives,
avatars could talk with others in the same "room" via simple text
commands.77 If an avatar named Alice was in the same room as another
avatar named Gulliver, the computer would alert Alice and Gulliver to
each other's presence. If Alice wanted to speak, she would type
"Gulliver hi," and Gulliver would then see the words "Alice tells you
`hi'" appear on his terminal.78 This feature had substantial appeal
simply as an early instant messaging system.79
MUD1 and the other original MUDs, however, were not primarily friendly
chat rooms. The primary game goal of MUD1 was navigating the textual
environment while killing opponents and gathering treasures to score
points and level up.80 The ultimate goal of the game was to reach the
level of "wizard," at which one became an all-powerful entity within the
game environment.81 When choosing targets, perhaps the most interesting
way to score points was by killing other players.82 If Alice decided to
kill Gulliver, she would simply type "Kill Gulliver" rather than
"Gulliver hi." Gulliver would then need to type either "retaliate" or
"flee." If Alice killed Gulliver (which would depend mainly on her
avatar's skill and weaponry) she would gain points,83 and Gulliver would
need to start his virtual life anew.
Through the 1980s, Trubshaw and Bartle's original MUD1 spawned hundreds
of derivative MUD-type environments, known variously as MOOs, MUSHes,
and MUCKS,84 on university computer systems. Some MUDs actually made
money: when commercially released in the United States on CompuServe,
MUD1 cost $12.50 an hour to play.85 Probably the most interesting
development in MUD history occurred in 1989, when James Aspnes wrested
MUDs away from their D&D roots by writing a short and easily portable
MUD program known as TinyMUD.86 TinyMUD deemphasized traditional D&D
elements, such as killing for points.87 Instead, the program gave
avatars greater abilities to describe themselves and invent objects. In
the multiple TinyMUDs that were quickly established, avatars did not
kill each other quite so often. Rather, they spent a lot of time simply
hanging out, chatting, and amusing each other with new virtual
objects.88 This dimension, of course, appealed to a whole different
social set, and TinyMUDs quickly branched out from Tolkienesque settings
to encompass more diverse themes.89 Some were based on Star Trek; some
were set within specific novels; and some were even set in real-world
locations such as a virtual California.90
Perhaps the most widely known social MUD is LambdaMOO, initially created
in 1990 by Pavel Curtis of the Xerox Palo Alto Research Center.91
LambdaMOO still has over a thousand active participants, of whom one or
two hundred are active at any given moment.92 The first virtual spaces
of LambdaMOO were based on Curtis's home in California, although the
environment has since greatly expanded.93 LambdaMOO is not a remarkable
MUD in any way, except that it can be altered by its participants and it
has served as a focal point for research of virtual space. Its
popularity has led its community to post an unusual disclaimer on the
welcome page: "NOTICE FOR JOURNALISTS AND RESEARCHERS: The citizens of
LambdaMOO request that you ask for permission from all direct
participants before quoting any material collected here."94
Each avatar in LambdaMOO has the power to create a set of rooms and
unique programmed objects.95 Members of the community have programmed
interactive textual gardens, robots, Frisbees, butlers, toys,
helicopters, puzzles, and fireworks in order to amuse and impress other
participants. In the living room of the LambdaMOO mansion (the de facto
social hub), there is a cockatoo programmed to repeat random lines of
overheard dialogue at regular intervals; a fireplace that will burn or
toast objects placed inside; a large couch, which one can reupholster in
garish patterns, and which consumes objects from one's pockets.96
Objects such as a blender and a black hole allow avatars entering them
to commit "MOOicide," or virtual suicide--destroying their avatar
existence in order to force the players to return to their "real"
lives.97
The full scope of LambdaMOO geography is hard to describe or even
ascertain. Some areas are private, while others are hidden behind
complicated puzzles. New places are constantly being created while
others are retired.
As we explain in Parts II and III, a careful study of MUDs can be
valuable to those interested in the laws of virtual worlds. Yet MUDs,
for all their liveliness and social complexity, are not the most popular
virtual worlds today. MUDs are like poetry compared to television. While
MUDs offer what is perhaps a more valuable and rewarding medium for
those who participate in them, people seem to be drawn to visual
spectacle. Indeed, while most MUDs are free, millions of individuals pay
to interact with visual virtual worlds. A picture, it seems, is worth a
thousand words -- and quite a few dollars as well.
B -- Drawing the World
The history of visual virtual worlds arguably dates back at least to
cave paintings.98 All visual representations, like language, are forms
of virtual reality. Roman trompe l'oeil murals, for instance, would blur
"distinctions between real space and image space."99 Today, photography
is trompe l'oeil technology, real enough to trigger epistemological
concerns.100 Through photography, many people believe they have viewed
the Mona Lisa, witnessed Nixon's resignation, seen the Earth from space,
and understood the bombing of Baghdad.101 Some claim the additional
value of seeing the real Mona Lisa would be negligible. Many still
adhere to the view the Supreme Court of Georgia expressed in 1882: that
it could not "conceive of a more impartial and truthful witness than the
sun, as its light stamps and seals the similitude of the wound on the
photograph put before the jury."102
The most exciting feature of virtual environments, however, is not
simply their capacity for vivid representation. As Ovid's Pygmalion
explains, vivid representation often falls short of what is really
desired. Representation offers a window to a world, but what the viewer
aspires to do is step into that world.103 Until recently, one could not
commingle visual representation with interaction. When this technology
arrived, its most popular embodiment was, perhaps unsurprisingly,
amusement. Thus, the history of interactive visual virtual worlds has
been largely a history of video games.104 This is not to say that
Internet chat rooms, business teleconferencing, flight simulation, and
other instances of nongame computer- mediated virtual environments are
not important. However, from a historical point of view, video games
have been on the cutting edge of socially significant visually
interactive technology.
In 1961, Stephen Russell, then a student at MIT, created the first
computer program recognizable as a video game.105 As Russell noted at
the time, his game Spacewar! had value as a simulation: "The most
important feature of the program," he told a student reporter, "is that
one can simulate a reasonably complicated physical system and actually
see what is going on."106 Russell's simulation was simple by the
standards of today's video games: two opponents piloted representations
of spaceships around a high- gravity sun and attempted to shoot each
other. Perhaps realizing there was no market for a game that ran on a
million-dollar mainframe in 1961, Russell freely shared the Spacewar!
code with others, contributing to its popularity.107
One Spacewar! addict, a California businessman named Nolan Bushnell,
created the first video arcade game. In 1971, gambling on cheaper
components enabled by advancing computer technology, Bushnell convinced
a partner to help him make 1,500 Computer Space machines-- essentially
Spacewar! machines--to place in pinball arcades.108 Computer Space was a
dismal failure. Outside of one Stanford University drinking
establishment, no one was interested in playing. Unlike the average MIT
student or D&D gamer, the average pinball player was not willing to pay
a quarter to read an instruction booklet.109
Undeterred, Nolan Bushnell founded Atari the next year. He instructed
his first engineer, Al Alcorn, to create a simple tennis game so that Al
could become familiar with the process of creating video games. At the
time, Bushnell had no serious intentions of marketing Alcorn's
product.110 Alcorn spent a couple of weeks producing a game of virtual
Ping-Pong, and Bushnell changed his mind when he saw the product. The
first public encounter with a prototype of Pong took place in a bar in
Sunnyvale, California. Unlike Spacewar!, Pong was intuitive,111 a video
game haiku essentially consisting of three lines and a dot. Yet it
contained all the essential features of today's virtual worlds. Two of
the lines, the paddles, served as the respective avatars of the two
players, while the square ball was the contested virtual object and the
black background was the virtual world on which the battle was
joined. Pong soon was making buckets of quarters for arcade owners, and
its success made the video game industry possible.112 Not long
afterwards, Atari and others were producing sports, driving, and warfare
games for the home and arcade market that allowed a generation of
children to grow up in partially virtual environments.113
Designers quickly made significant strides in the visual components of
virtual environments. In 1978, Warren Robinett authored a graphical take
on Will Crowther's Adventure program for the Atari home console
system.114 By 1980, graphics had advanced enough that Atari's Battle
Zone allowed players to navigate a tank avatar through a reasonably
detailed, three-dimensional environment populated with roaming computer-
controlled adversaries.115 Two-dimensional and isometric "scrolling"
games such as Williams Electronic's Defender (1980) and Sega's Zaxxon
(1982) also extended the virtual world beyond the four corners of the
game screen.116
Despite their increasingly sophisticated graphics, arcade games lacked a
world that could persist over time. Once the "GAME OVER" message
appeared, a player's investment in the virtual world was set back to
zero. Only with the introduction of personal computers could designers
explore the possibilities of persistent visual virtual
worlds. Persistence through local data storage led to a new breed of
immersive games. For instance, King's Quest: The Quest for the Crown,
introduced in 1984, popularized visual virtual worlds as much as ADVENT
had text-based worlds.117 King's Quest let users pilot a tiny but
vivid-enough avatar (you could see the feather in Prince Graham's cap)
across the screen of the first IBM PC in order to solve puzzles in the
virtual world of Daventry. King's Quest was immensely successful and
spawned seven subsequent titles.118
Prince Graham, like the solo ADVENT player, was alone in Daventry. Only
a year after King's Quest was released, however, and only a few years
after MUD1 created a networked version of the ADVENT-type game,
Lucasfilm created a persistent visual virtual world called Habitat.119
Habitat's graphics were crude and cartoonish by today's standards, in
part because it was designed for the primitive Commodore 64 personal
computer.120 Habitat players customized their avatars mainly by
selecting among a variety of fanciful heads for avatar bodies. As in The
Sims Online, avatars communicated through speech bubbles appearing above
their heads. The environment was built to accommodate as many as 20,000
avatars present simultaneously.121
Like TinyMUD, Habitat didn't emphasize leveling up so much as hanging
out virtually. Two of its lead designers, Chip Morningstar and F.
Randall Farmer, explained that the greatest challenge for Habitat's
creators was simply figuring out what all the avatars were supposed to
do.122 Originally, the planners had intended to organize group events
for the whole community, but the first attempts at central planning were
disastrous. As a result, the Habitat team "shifted into a style of
operations in which [the designers] let the players themselves drive the
direction of the design."123
The Habitat experiment ended with the obsolescence of the Commodore
personal computer for which it was designed. Since the demise of
Habitat, connection speeds have increased and computers have become more
powerful; as a result, visual virtual worlds have become larger, more
finely detailed, and populated with an increasing number of avatars.124
The most popular worlds are profit-driven. A prospective avatar can
generally sign up for about $40, with an extra $10 monthly subscription
fee.
Sony's Norrath (EverQuest) is the most popular virtual world among
United States citizens, with over 420,000 monthly subscribers.125
EverQuest fits squarely within the tradition of D&D-based virtual
worlds.126 Participants begin the game by selecting a "shard," or game
server, a subset of EverQuest's virtual world containing several
thousand participants.127 After selecting a shard, the new player
chooses an avatar. The game begins when the player presses a button
labeled "Enter World" and views on the computer display a real-time
three-dimensional image of the virtual world. The player sees other
avatars nearby and "hears" their conversations in a chat window. The
other visible avatars may be "bots" or "nonplayer characters," meaning
they are controlled by a computer program and not another
human. Generally, one can ascertain whether an avatar is a bot by simple
observation: real avatars move erratically and generally don't speak
medieval English.128
The EverQuest "Level 1" avatar is penniless, carries a flimsy weapon,
and lacks any significant skills or abilities. He or she starts in a
"beginner's section" of the EverQuest world that has a nearby area
conveniently overrun with computer-generated killing fodder such as
rats, bugs, or snakes.129 Prior to reaching Level 5, which may take a
day or a week, depending on one's level of commitment, an avatar will
generally be too frail to venture outside this area. Most players,
however, quickly get down to the business of increasing the power of
their avatars, or "leveling," as it is more commonly known. This does
not mean that players do not interact. Indeed, the game encourages
avatars to group together to accomplish an objective. Avatars that
combine their skills in teams or guilds are more effective at defeating
enemies and, therefore, can "level" more quickly. The most intimate
interactions usually occur during the lulls in combat, while avatars are
waiting for their bodies to "heal." During this down time, individuals
often discuss their real-world lives and identities.130 The avatar bonds
formed between individuals may extend to the formation of more elaborate
EverQuest guilds with binding rules of membership and websites promoting
social events.131 A close association with another avatar over a long
period of time may even lead to an in-game EverQuest marriage, which may
in turn lead to a real-world marriage--or the dissolution of one.132
Other Tolkienesque leveling worlds such as Ultima Online's Brittania and
the three realms of Dark Age of Camelot operate in much the same manner
as EverQuest, though each has some notable variations. Ultima Online,
released two years before EverQuest, creates more significant
opportunities for avatars to specialize in nonviolent skills, such as
blacksmithing or baking bread. One interesting feature in Ultima Online
is the possibility of home creation and ownership. A current advertising
campaign for Ultima Online features the availability of new tools for
the creation and customization of virtual castles. The more recent Dark
Age is one of the most visually lush virtual worlds. Dark Age generally
hews closely to the EverQuest and Ultima Online model of success, though
it differs by coding into the environment an interesting factional
system, where one must align one's avatar with one of three realms based
on medieval British, Celtic, and Norse cultures.
Despite the socializing that takes place in these D&D-type worlds, the
clear goal in each is to become a more powerful avatar. If one wishes to
obtain the pinnacle of virtual success in Norrath or Britannia, such as
becoming the powerful leader of a guild or a flashy and impressive
wizard, one must (in theory) earn that status through hours and hours of
"play" at killing things.133
The Sims Online is the leading example of a nonleveling world. Most
nonleveling worlds also abandon the trappings of fantasy: instead of
choosing to become an elf or a hobbit, one customizes one's avatars by
choosing from hundreds of doll-like physical components, including
tuxedos, leather jackets, and t-shirts. If a goal exists in The Sims
Online, it is never stated.134 Most people seem interested in making
money, however, and the primary means of making money is engaging in
work activities. Increased skills can bring wealth to an avatar, as
well as provide the avatar with improved capabilities, such as the
ability to play a musical instrument.
A new avatar generally arrives on the sidewalks of Blazing Falls (or one
of the other towns in The Sims Online) with a modest amount of cash and
few skills. The owner of the lot where the avatar arrives normally
offers the newcomer a friendly greeting, inviting him or her to enter,
get something to eat, and take a look around. Unlike EverQuest, The Sims
Online has no death-dealing mobs of rodents--so there is little risk in
exploring all of the homes in the environment. Given the lack of any
clearly defined goals, most avatars in The Sims Online seem content just
finding interesting places and people with whom to chat.135
In the nonleveling genre, the major competitor to The Sims Online is
probably There.com's There, which is currently still in beta testing.
According to its promotional materials, There will be "the first online
getaway that gives you the freedom to play and talk naturally while
having fun and making friends."136 There has video game elements (e.g.,
virtual paintball, hoverboarding, and dune-buggy racing), but it is
targeted primarily to those interested in hanging out and chatting with
friends. Some design features of its interface are explicitly
reminiscent of chat rooms.137 Interestingly, There.com is being marketed
primarily to women, with the belief that if the world builders can
attract them, men will follow.138
As these examples indicate, each virtual world is different, making
categorical statements about virtual worlds suspect. Still, the lines
drawn between worlds might not be as bright as they seem at first. For
instance, while The Sims Online does not involve gaining power and
wealth through leveling, prestige and affluence are motivating forces
for many participants. And while leveling worlds such as Ultima Online
often force players to engage in repetitive killing exercises, what
makes this bearable seems to be the social bonds formed among players,
who may find more fulfillment in being virtual seamstresses, alchemists,
and blacksmiths.139
As this virtual-world primer has shown, current virtual worlds are the
end products of a long tradition of interactive representational
environments, and this history helps illuminate both the social
practices found in today's virtual spaces and the likely potential of
future environments. In the next Part, we will focus on the notion of
property within virtual worlds and ask whether virtual properties are
deserving of legal recognition. In Part III, we will take the lessons of
virtual-world property rights and examine the possibility of
avatar-specific rights in virtual spaces.
II -- Virtual Properties
There is nothing which so generally strikes the imagination, and
engages the affections of mankind, as the right of property; or that
sole and despotic dominion which one man claims and exercises over
the external things of the world, in total exclusion of the right of
any other individual in the universe.
--William Blackstone140
Property is a contingent fact within our world. It is neither ordained
by nature nor necessary for human survival. So the development of
virtual worlds gives us an excellent opportunity to experiment with the
legal relationships, transactions, and obligations that, in the real
world, fall within the category of property. In this Part, we examine
whether, and why, property systems have emerged in virtual worlds. Our
conclusion is that the existence of property within these worlds may
speak to our inability to imagine any other way of structuring
relationships between individuals under conditions of resource scarcity.
It is one thing for property to be recognized within a virtual world. It
is another for this fact to have any significance--outside the
anthropological--in the real world. However, property interests in the
virtual worlds bleed over into the real world, and assets accumulated in
a virtual world sometimes have value in ours. Already, we have seen
cases filed over the ownership of various virtual assets,141 and every
day thousands of pieces of virtual property are transferred in the real
world for real dollars.142 Having established the existence of property
in the virtual world in Parts II.A and II.B, we turn in Parts II.C and
II.D to the issue of whether real-world property systems should
recognize these interests. Our goal here is to ask whether a claim of
property in this context is justified. We close the discussion of
virtual property rights in Part II.E with a discussion of the proper
allocation of these rights in the real and virtual worlds.
We begin by focusing on the similarities and differences between
property in the virtual and real worlds, and find that, from a
descriptive perspective, there is little to distinguish virtual-world
property from realworld property. In keeping with our overall thesis, we
conclude that we cannot simply ignore the property interests because
they are not "real."
A -- The Existence of Property in Virtual Worlds
Central to the operation of most modern virtual worlds is a property
system, with all of the familiar real-world features of exclusive
ownership, persistence of rights, transfer under conditions of agreement
and duress, and a currency system to support trade. In Blazing Falls,
for example, an avatar can purchase a basic plot of land for around ten
thousand simoleons (the currency of The Sims Online). Building a truly
appealing home requires one to purchase walls, windows, and perhaps an
Olympic-sized swimming pool, all of which cost serious
simoleons. Alternatively, one can buy a completed mansion, built by
property speculators who, like their real-world counterparts, buy prime
land early, throw up an anodyne house that appeals to a broad range of
would-be owners, and sell it off.143
Property in today's virtual worlds is not confined to virtual realty. In
Blazing Falls, everything your avatar will need costs money: not only
will you have to furnish your avatar's house with couches, beds, a
toilet, and maybe a pizza oven, but all of the objects and chattels in
your place are subject to wear and tear. If you want to keep attracting
guests, you will have to refresh the buffet, unblock the toilet, and fix
the broken weight- lifting machine. All of these services have a price.
Perhaps the most striking feature of the property systems of the virtual
worlds is how closely they mirror the real world, or at least the subset
known as the Western capitalist economy. No virtual world, not even a
community-conscious, social MUD like LambdaMOO, has an entirely communal
property system. Private property is the default. Entrepreneurs and
tycoons feel right at home here. The timeworn metaphor of property as a
bundle of rights, chiefly the rights to use, exclude, and transfer,
applies to virtual chattels as well.144 In Britannia or Norrath you, and
only you, can use or sell your battleaxe. And you can certainly exclude
anyone else from using your leather pants at the same time as you--which
is, perhaps, a good thing.
Slightly different approaches are adopted in each game when it comes to
virtual realty. For example, real property in Blazing Falls can be
relatively expensive. A plot of land costs about the amount that an
avatar receives when she is first created--and furnishing a new home
complete with sofas, beds, and garden gnome-making machines can really
add up.145 The best way to make money to pay for all of this is to
attract guests to your online home, since your avatar receives bonus
income from the central government based on the number of people who
come to your place and how long they stay. This creates a market
incentive to open your home at all hours and obtain the maximum number
of unknown visitors. To do this alone, however, you would need to be
logged into Blazing Falls 24/7, attending to house repairs and guest
desires. Since this is clearly impossible, avatar roommates are needed
to share house chores, repair broken computers, and buy the house an
improved oven. As a result, the vast majority of houses in The Sims
Online represent a type of limited commons ownership regime, with
property interests spread among multiple housemates.146
While this might seem at odds with the vision of Blazing Falls as
capitalist utopia, this preponderance of limited commons property
arrangements also mirrors the real world. As Robert Ellickson notes, the
majority of Americans live in limited commons property households,
typically family homes.147 However, the Blazing Falls communal property
system has emerged for different reasons--hardly any of us in real life
have roommates just so that we can stay open all hours and party like
it's 1999.148
The treatment of public and private spaces also varies among different
virtual worlds.149 Looking at the map of Blazing Falls, one may need a
second or two to recognize that there are no roads, parks, or
playgrounds-- there is no public space at all. Perhaps such places are
not really necessary there. After all, one can teleport directly into
homes, and, due to the financial incentive system, the vast majority of
these are the equivalent of an open-all-hours fraternity party. In Dark
Age of Camelot and EverQuest, on the other hand, all of the land is
nominally public, and avatars don't own title to virtual realty at
all. Still, there are certainly places where less powerful avatars are
effectively denied entry. Visiting Norrath's visually stunning astral
"Planes of Power," for instance, is beyond the ability of most of the
game's avatars. The arduous processes involved in reaching and surviving
in these environments effectively make them exclusive clubs for the
high-level avatar jet set.150
Ultima Online's Britannia provides an interesting admixture of public
and private ownership. Though custom castle-building is one of the
game's selling points, there are vast wastelands in Brittania where one
cannot build a home, and orcs, ogres, and dragons roam free.151
There.com's There is likewise a mix of public and private spaces. Though
most spaces are public, there are also plans to allow avatars to build
their own homes for a fee and rent virtual spaces for dune-buggy parties
with a private guest list.152
The real property systems within all of these worlds mostly conform to
the norms of modern private property systems, with free alienation of
property, transfers based on the local currency, and so forth. Even in
the Tolkienesque worlds, the Middle Earth trappings are largely
superficial from a cultural perspective. A medieval veneer is present in
the castles decorated with tapestries and crossed halberds, and in the
circa-1500 weaponry and armor. Considering how most property rights are
structured, a California millionaire would feel right at home.153
The transfer of virtual chattels also occurs in very familiar ways.154
If your avatar wants to sell her invulnerable chainmail armor, she is
free to do so.155 If she wants to seek multiple in-game buyers, there
are well-known markets within each world where she might peddle her
goods: places like the Bazaar, or the East Commons Tunnel and Greater
Faydark in Norrath, or Subway in Dereth.156 And if your avatar dies,
others can strip the armor from her lifeless body and make it their
own.157
The emergence of traditional property systems and market-based
approaches is a somewhat surprising aspect of virtual worlds, which, in
other ways, depart from the familiar. In a Demsetzian world, there is no
need for property to exist, and we might anticipate that participants
would invent a variety of schemes to structure their legal relationships
and obligations.158 Nonetheless, virtual worlds cleave to familiar
real-world expectations of property systems. This may be as a
consequence of resource scarcity. No modern virtual world allows for
unlimited resource creation, so the laws of economics operate much as
they do in the real world.159 Property interests, it seems, emerge as a
result of this scarcity.
Alternatively, we might look to the creators of these systems. The
current crop of virtual worlds is the brainchild of large,
property-owning corporations, typically based in the United States.160
One hardly expects these organizations to be boosters for communal,
socialist, or communist property-holding systems. More importantly,
perhaps, these commercial products must attract large numbers of paying
customers to be profitable. This means mirroring the features of
real-world systems that make sense to twenty-first-century
participants. This effort to give the people what they want can be seen
at many levels of the environment. For instance, there are no serfs in
the Tolkienesque worlds. Who would want to risk a business model on the
assumption that individuals will pay $9.95 a month to be a feudal
vassal?161
Even virtual worlds that lacked market systems when launched have had to
develop them to remain commercially viable. Blazing Falls, for instance,
began as an exception to the free market rule, and people generally
found it unpleasant for this reason. One purchased chattels from
something like a central government agency that refused to negotiate on
price. A pizza stall would cost you 25,000 simoleons, take it or leave
it, tovarich.162 However, like countries of the former communist bloc,
The Sims Online understood what its citizens wanted and declared that it
would be an economy in transition--free alienability of property would
come soon. By the time of this Article's publication, this market
reality will have arrived. Given that vast numbers of people have
designed and built objects for The Sims,163 the precursor to The Sims
Online, the real-world market for such objects essentially demanded the
institution of a virtual market in Blazing Falls.164
Even in situations where scarcity is not built into the system and where
participants are free to invent their own structure of legal
obligations, property expectations play a large role. In non-scarce
worlds such as LambdaMOO, where anyone was free to create new objects in
a costless manner, property disputes emerged, albeit in ways that are
different from environments where scarcity is built in.165
It may be that, in the West at least, we are simply incapable of
imagining a new world without property. In order to understand this, we
next consider the ways in which early social MUDs dealt with property
issues in virtual-world environments that were intended to be open,
community-minded, and enjoyed by all.
B -- Early Conceptions of Virtual Property
Property rights in early leveling MUDs, like Trubshaw and Bartle's MUD1,
were essentially rights in the avatar alone. There were some in- game
markets for objects, but these were mostly gift economies. For example,
a more advanced player might sometimes give a newer player a helmet and
armor in exchange for a favor. While early social MUDs, with their focus
on object and room creation, spawned a host of new properties and
potential markets, public and commons property was their prototypical
form of ownership.166
For instance, in LambdaMOO, if I made a particularly interesting
bonker--an object that forces another avatar to say "oif" or do
something when bonked on the head with it167--the normal practice was to
let others copy it freely. Nor would I mind if you created a newer,
better bonker by improving on my code. Not only would your appropriation
of my code cost me nothing, but my LambdaMOO reputation would be
dramatically en- hanced if hundreds of avatars used my code to bonk the
unsuspecting. This sharing ethos had an element of pragmatism. Even if
someone really wanted to sell bonkers, the challenge of establishing a
functioning market for properly licensed bonkers was probably not worth
the candle.168
However, even within the community-minded LambdaMOO, the concepts of
"property" and "ownership" in virtual assets surfaced almost
immediately. For instance, in the earliest stages of LambdaMOO, a
dispute arose over who owned the air-space over privately owned
territories, which became an important issue for the navigation of
virtual aircraft.169 Property disputes also arose over whether certain
popular rooms and objects were private or public, whether it was
possible to bequeath personal objects to another when one's avatar died,
and exactly how much data space a participant could use for building new
rooms and objects.170 This last conflict was resolved only by making
property an explicit part of the system and creating an official
governance mechanism to recognize and allocate it. The new
virtual-titles office was called the Architecture Review Board, and it
imposed a "quota system" where additions to the LambdaMOO database above
a certain limit would require official approval.171
Lawrence Lessig has described one MUD property dispute in which Martha
Jones and Dank engaged in a nasty and protracted battle over Martha's
poisonous flowers and Dank's dog.172 Both the flowers and the dog
were--like the adjoining "properties" that Martha and Dank
inhabited--nothing more than programmed objects in the database. Dank,
however, was genuinely angered when his "dog" was killed by eating a
poisonous "petal" from one of Martha's "flowers" that had ended up on
Dank's property. For her part, Martha was indignant: there was no reason
for the dog to have "died," as Dank could have programmed a hardier dog
that was immune to Martha's virtual poison. Both parties invested in the
dispute the kind of passion and righteous indignation usually reserved
for real-world, across-the-fence, property disputes.173
It is revealing of the psychology of virtual worlds, and particularly of
virtual property, that the property interests felt real to the parties
in the arguments mentioned above. That is, none of the disputes simply
dissipated with a realization that the whole enterprise was "just a
game."174 This is not surprising; researchers in behavioral economics
have found that people tend to become personally invested in objects
that they perceive as belonging to them.175 The "endowment effect" is a
persistent cognitive bias causing people to overvalue assets that they
have acquired in relation to those that others own.176 In one experiment
at Cornell, students in one group were given Cornell coffee mugs and
assigned the role of sellers, while other students were assigned the
role of buyers. Students who were sellers assigned the mugs much higher
values than the buyers did and were loath to part with their
merchandise, even at prices that were significantly higher than the
stated value of the mugs.177
One doesn't need to witness many arguments between two-year-olds over
the ownership of a toy neither of them really need--"Mine!" "No,
mine!!"--to understand the primal appeal of ownership in our society.178
This same ownership urge is present when property is
intangible. Consider how seriously some people take the protection of
"their ideas," even in contexts where those ideas cannot be protected
using the laws of intellectual property.179 As the early MUD disputes
illustrate, the instinct to assert ownership over what we believe is
"ours" is deeply rooted in Western society. It does not dissipate in
virtual worlds.
In virtual worlds, such instincts assert themselves in conflicts about
who owns these assets and who can claim their value. Is the owner of a
virtual world's physical server also the owner of virtual castles
created on that server, or does the castle belong to the person who
spent years of her life building it brick by virtual brick?180 Such
disputes have been the subject of real-world litigation and
posturing.181 And this potential for conflict over virtual properties
will inevitably increase. Forthcoming virtual worlds like There and
Second Life, which incorporate direct market-exchange mechanisms, allow
participants to purchase virtual objects. If my avatar agrees to pay $10
for a pair of virtual pants, it sounds a lot like a real-world
contract. But wait a second--what exactly did my avatar just purchase?
Under the Uniform Commercial Code (UCC), if I discover a pixelated rip
or some bad stitching, can I return the pants for a refund?
Participants in virtual worlds clearly see their creations as property.
The question is whether real-world law will acknowledge these
expectations. In the next three sections, we consider how a legally
tenable theory of virtual property might develop. We discuss the
features of virtual possessions that set them apart from real-world
property, and we explore whether utilitarian, Lockean, and
personality-based justifications for legal property rights might apply
in the virtual context. We then go on to explore the ways in which
virtual property disputes might play out.
C -- The Descriptive Account of Virtual Property
If you want to own a castle in Britannia, home of Ultima Online, there
are two ways to do it. The first way involves spending about 40,000 gold
coins and receiving a small house property deed, which is essentially a
building permit.182 You then spend the time and effort necessary to
build up enough online wealth to afford the materials to build a modest
wood hut. To do this, you could try killing monsters with your weapons,
but obtaining wealth through such heroic pursuits is risky and the
rewards are uncertain. If you're really serious about getting virtual
gold pieces, a smarter way to proceed is by being a blacksmith. This
means sitting in front of the computer clicking on iron ore deposits,
carting them back to a forge, and knocking out breastplate after
breastplate.183 If you do this for days on end, you will eventually
accumulate enough of the local currency to afford to build your hut, or
perhaps, if you are extraordinarily committed, a castle. Of course, in
addition to the "click-slavery" of toiling over a virtually red- hot
forge, you will need to pay real money--between ten and thirteen U.S.
dollars--month after month for Ultima Online's subscription charge.
This method assumes that the best way of obtaining something is going to
the place where it is made and then building it yourself. By analogy,
consider the choice faced by an American in search of an Indonesian mask
or South African Zulu basket. True, she could travel to those places,
study the art of making masks and baskets, and after years of toil
produce her heart's desire with her own hands. Most people would regard
this as insanity. Why not just buy one on eBay?
It took almost no time for this realization to dawn in virtual worlds.
And so, just as a real-life buyer might use U.S. dollars to purchase the
foreign product from the native seller, exchange mechanisms have sprung
up in virtual worlds. Foreign exchanges in currency and direct
investment operate constantly between the virtual worlds of Britannia,
Rubi-Ka, Blazing Falls, and Norrath, on the one hand, and real-world
bank accounts in the United States, Canada, Australia, and Korea, on the
other.184 The mechanics of it are simple. Possessing some valuable asset
in the virtual world (say, a million simoleons or a level fifty avatar),
I list it for sale in the section of eBay devoted to such auctions.185
The auction winner uses eBay payment mechanisms (Visa, Mastercard,
PayPal) to transfer the agreed price in the real world.186 I then agree
with the auction winner on a meeting place in the virtual world, and
when we meet there I hand over the in-world property.187
This practice is so common that one can now establish reliable U.S.
dollar prices for various virtual-world properties. Ultima Online
products range from $5 for a pair of sandals, through $150 for spiffy
battle-axes, to $750 for an impressive fortresses bound to make you the
envy of the community.188 In The Sims Online, the most popular asset for
sale on eBay is currency; one million simoleons will set you back about
$180.189
The amount of trade is so vast that it is possible to analyze the
economies of virtual worlds in the same way that we analyze real-world
national economies. Edward Castronova has done exactly this for Norrath,
the virtual world in EverQuest.190 He found some remarkable economic
results. The economy of Norrath as a whole is slightly larger than that
of Bulgaria.191 The effective hourly wage was $3.42 per hour, a figure
significantly higher than the hourly wage of workers in India or
China.192 Trade occurs regularly between Norrath and the United States,
and foreign exchange between the Norrathian currency and the U.S. dollar
is highly liquid, as a result. The value of one Norrathian platinum
piece is greater than the Japanese yen or the Italian lira.193
Virtual economies have created real-world opportunities to cash in.
Some denizens of virtual worlds buy virtual property at low rates from
those who have no idea what the item is worth, then resell it on eBay
for real-world profit.194 Some make a six-figure U.S. dollar income this
way,195 and one or two individuals may make even more.196 Moreover, the
possibility of arbitrage creates incentives for indirect employment. If
the effective hourly wage is greater in Norrath than in the real world,
then surely it should be possible to extract this differential? Of
course, it is. A fly-by- night operation called Blacksnow Interactive
set up a "point-and-click sweatshop" in Tijuana, where the hourly wage
is considerably less than $3.42.197 The company paid unskilled Mexican
laborers to play Dark Age of Camelot around the clock, then sold the
virtual assets they created.198 When Mythic Interactive, the owners of
Dark Age, cracked down on this practice, claiming intellectual property
infringements, Blacksnow sued on the basis that Mythic was engaging in
unfair business practices.199 Blacksnow's lawyer threw down the
gauntlet:
What it comes down to is, does a . . . player have rights to his time,
or does Mythic own that player's time? It is unfair of Mythic to stop
those who wish to sell their items, currency or even their own
accounts, which were created with their own time.200
Though the plaintiff dropped the case when its other legal problems
forced a hasty retreat,201 the issues it raised remain. Virtual
"property" has real- world value. Does that mean it is really property?
The remainder of this section is devoted to a consideration of ways that
virtual property might be descriptively different from real-world
property. The two most obvious differences--that virtual property is
intangible and that virtual property is evanescent--are examined below.
1 -- Metaphysical Problems
Any consideration of virtual property interests in virtual assets needs
to begin with the peculiar characteristics of virtual assets. After all,
the broadswords, chairs, and castles of Britannia are simply entries in
a database resident on a server that permits a participant's computer
monitor to display images already present within the software.202 If
Electronic Arts, the corporate owner of The Sims Online, turns off its
servers--or just engages in a periodic database wipe--every piece of
virtual property in Blazing Falls immediately disappears.203 In other
words, despite its name, there is no there There. One might assume that
something so intangible can't be property at all because property, after
all, should be something real.
Yet the development of Western property law and property systems over
the last 200 years has been characterized by a shift from the tangible
to the intangible. In the distant past, property interests were indeed
tied directly to the land or chattel.204 This was reflected in the
rituals of land transfer, which typically involved physically handing
over some soil from the plot. Leases had to be transferred for some
physical object or amount, even if it were only a peppercorn.205
However, while today's real property interests may be associated with a
tangible thing, the estates or interests themselves are commonly
understood as intangible. We are now blasé about this idea. We might
call a piece of land our own, but what we mean is that we own a freehold
estate, or a leasehold, or an easement interest. The common law property
system of England and America has recognized these real but wholly
intangible interests for hundreds of years.
Furthermore, while realty and personalty may still touch upon physical
objects, intellectual property rights have, from their inception, been
invoked to protect intangible interests. Copyrights and patents may
obtain only upon tangible fixation or invention, but the property rights
encompassed are not rights in the physical evidence of their
existence. Trade secrets involve absolutely no requirement of fixation
or physical existence.206 The secret ingredient in Coca-Cola207 may
never be written down, but the intellectual property system protects the
subject matter nonetheless.208 These recognized interests in turn give
rise to a vast number of subsidiary intangible interests, including
mortgages,209 limited period licenses,210 assignments, and so forth.211
Outside of legislatively recognized intellectual property rights, legal
scholars have noted how markets in intangible properties have been
conjured into existence through the simple expedient of declaring a
saleable interest. Jessica Litman has documented the emergence of
inchoate property interests, such as Hollywood's recognition of rights
in subjects' true-life stories.212 There is no legal intellectual
property interest in life stories,213 but significant parts of the movie
industry are built around the informal recognition of these interests as
property. Recognition of these illusory property interests is vital, as
they are used as collateral to obtain financing.214 Other scholars have
suggested that a new type of property might exist in people's personal,
private data, and might be pressed into service to protect privacy.215
As scholars like Margaret Radin, Jerome Reichman, and James Boyle
demonstrate, new property interests are generated by new cultural
objects such as data,216 ova,217 and cell lines,218 as soon as they
become commercially valuable. Property regimes involving completely
intangible subject matter and interests, therefore, are legion, making
the intangibility problem of virtual property really no problem at
all.219
2 -- Temporal Problems
Another obvious objection to understanding virtual property as property
might be its temporal restrictions. Participants in competitive or
social virtual worlds typically spend about twenty hours per week within
them.220 If they fail to pay their monthly fee, they can't participate
in the virtual world at all. We might assume that this evanescence works
against recognition of property.
In the real world, however, many forms of property have temporal
restrictions. Consider leaseholds, which involve temporal limitations on
an otherwise unfettered use of property.221 Other temporally delimited
interests include rights to occupy a hotel room for short periods and
time- limited riparian or mineral-use leases. In our early property
system, an important interest was the usufruct, an immutable but
nontransferable package of land rights that terminated on the death of
the usufruct's owner.222 However, usufructs can exist for significantly
shorter periods than the entire length of the owner's life: a towel
spread on a beach for the day is considered a usufruct.223 In
intellectual property systems, time also plays an important
role. Patents and copyrights, in theory, expire after a set period of
years.224 Trademarks can be abandoned over time if they are not used in
the marketplace. The time limitations inherent in virtual property are
hardly different from those other temporally limited interests that we
see in real, personal, and intellectual property systems.
The objections to virtual property on the basis that it is intangible or
impermanent are descriptively implausible. Our property system
cheerfully accommodates these characteristics, in one form or another,
in various types of property interests. There appears to be no plausible
descriptive objection to granting property interests in virtual
assets. If, then, the problem with granting virtual property rights is
not in a descriptive disjunction between virtual- and real-world
property, perhaps the concern rests with our normative justifications
for the grant of property.
D -- The Normative Account of Virtual Property
The previous descriptive account suggests that virtual property is no
less reasonable a concept than other types of intangible, temporary
property interests. This is helpful, but insufficient. In the last few
centuries, entire fields of study have explored the justifications for
the existence of various property rights. We, therefore, must consider
these normative accounts of property to determine where the
justification for virtual property stands in relation to established
forms of property.
There are as many normative accounts of property as there are property
theorists, but we will confine ourselves to the three main accounts: the
utilitarian theory of Bentham and his economist-acolytes, the
labor-desert theory of Locke, and the personality theories that stem
from Hegel. These accounts differ in significant ways and often lead to
different conclusions about whether a given activity or transaction is
appropriately characterized as property. Nonetheless, all three theories
support a qualified conclusion that virtual entities claimed as property
are property in reality.
1 -- Utilitarian Theories of Virtual Property
An action then may be said to be conformable to the principle of
utility . . . when the tendency it has to augment the happiness of
the community is greater than any it has to diminish it.
--Jeremy Bentham225
Jeremy Bentham's "felicific calculus" and the utilitarianism that flows
from it226 have become the dominant justification for the creation of
private property. The utilitarian baseline principle of seeking the
greatest good for the greatest number227 provides the basis for the
modern application of economics to almost every human endeavor.228 It
has also spawned theories of justice predicated on social welfarist
conceptions of utility, rather than on immanent or deontological
precepts of the good.229 Property law invokes utilitarianism to give
warrant to private property generally and to provide a relatively simple
bright-line policy. Thus, we should grant private property interests if
doing so would increase overall utility, which is to say, social
welfare.230
The literature on the granting of interests in tangible property is
replete with utilitarian accounts. The "tragedy of the commons" is, for
example, a utilitarian conception.231 Intellectual property is no
different. The Constitution says that Congress may protect patents and
copyright "[t]o promote the Progress of Science and useful Arts,"232 and
this justification is, of course, utilitarian.233 The economic emphasis
in current American intellectual property is equally utilitarian at
heart. Scholars who debate whether intellectual property grants are too
broad234 or too narrow235 for the public interest are using the
felicific calculus as their normative ground. Even the Supreme Court
has invoked utilitarianism in deciding intellectual property cases
dealing with copyright236 and with patent.237
What, then, is the utilitarian justification for real-world property
rights in the virtual world? For most of the assets in question, their
creation is presumably of little concern to society. Unlike, say, a
ground-breaking novel or new building, the creation of a new avatar or
virtual breastplate is of little obvious value to the outside
world. However, as is clear from the amount of real-world time and money
invested in the virtual property, individuals place a very high value on
the virtual objects they create. From the utilitarian perspective, a
societal good is composed simply of aggregate individual goods. Since
millions of people labor to create objects of value in virtual worlds,
there are utilitarian grounds for granting property rights based on the
value of the transactions to individual users.238 Even on this narrow
view of the social utility of avatars and virtual assets, utilitarianism
provides adequate justification for considering these artifacts
property. Indeed, virtual property might be analogized to patents, the
majority of which, overwhelming evidence shows, are worthless to
society.239
There are two obvious objections to the grant of property rights in
virtual worlds based on utilitarianism. The first stems from the
application of the theory in intellectual property law. Utilitarianism
may provide the necessary warrant for providing, say, exclusive rights
to authors, but this is not an unfettered warrant. We place limitations
upon these rights, granting them only for discrete periods, for certain
subject matters or purposes, and so on. This is, however, not so much an
objection to the assertion of property rights in virtual property as an
indication that we might place limitations of time, subject matter, or
scope on virtual property rights as well.
A second objection is that granting property interests to certain
virtual-world users reduces the welfare of other virtual-world
participants and virtual-world owners, and thus reduces the utility to
society. As a result, this argument goes, we should reject virtual
property rights on utilitarian grounds. However, this objection is
misplaced: we are using the utility function to provide a justification
for the creation of property interests, not for the allocation of those
interests. Let us bracket the allocation issue for the moment and return
to it after considering the effect of the other property theories.240
2 -- Lockean Theories of Virtual Property
[I]n the beginning all the world was America . . . .
--John Locke241
It is fitting, or perhaps amusing, to consider Locke's theory of
property as it might apply to the virtual worlds. Locke's conception of
property stemmed in part from his belief in an America of boundless,
endless land. It is hardly surprising that his view of property can be
pressed into service in this new, seemingly boundless environment called
cyberspace, as it has been applied in similar arenas such as domain
names242 or, more generally, in the limitless, largely nonrival, arena
of intellectual property.243
Locke's central property thesis is that "[w]hatsoever [man] removes out
of the state that nature hath provided and left it in, he hath mixed his
labor with, and joined to it something that is his own, and thereby
makes it his property."244 Locke's property theory is a theory of desert
from labor; that is, the person who expended labor to render the "thing
in nature" into valuable form deserves to reap its value.245 The
application of work and the expenditure of effort, at least in the
protean world that was Locke's "America," justify the allocation of
property interests.
Players and avatars, therefore, might have a property claim in their
virtual-world assets based on the Lockean labor-desert theory. Clearly,
the assets in question emerge from the time and effort of the
players. Though one might claim that playing a game isn't labor, the
case is hardly clear in a world where professional athletes are paid
fortunes to play games. And as anyone who has slaved over a virtual
forge will tell you, creating virtual-world property can involve at
least as much tedium as any real- world work.246
All is not settled for our Locke-invoking avatar, however. Robert Nozick
best summarized the standard objection made to Locke's vision: "If I own
a can of tomato juice and spill it into the sea so that its molecules
mingle . . . do I thereby come to own the sea?"247 The corporate owners
of the virtual world might similarly argue that a player in their world
could not claim property in any aspect of the virtual world, since his
or her playing actions are little more than releasing tomato juice.248
Two standard defenses to this objection apply here. The first defense
notes that Locke's theory only grants property where the "labour makes
the far greatest part of the value of [the asset]."249 If the tomato
juice made up the greatest part of the value of the sea, then we might
think differently about granting maritime property rights to the
tomato-juice polluter. Within the virtual-world context, one could
conclude that the player cannot claim property interests in the entire
world but might legitimately claim them in some smaller part--the
virtual castle, sword, or breastplate--in which his or her labor makes
up the greatest part of the value.
The second defense to the Nozickian objection is that any property claim
in the sea (or any other common resource) applies only to the extent of
the so-called Lockean Proviso. That is, the property claim can only
occur to the point at which the property interest leaves "enough and as
good" in common for others.250 In contrast to physical resources such as
the sea, the provision of property interests in virtual worlds does not
reduce other property interests, since the world is essentially
limitless.251 As a result, the Nozickian objection fails.
3 -- Personality Theories of Virtual Property
[In Hegel's view], property was an extension of personality.
Ownership expanded the natural sphere of freedom for the individual
beyond his body to part of the material world.
--Thomas Grey252
Hegel's conception of property as an extension of personality253 has
been adopted and extended by a number of modern theorists.254 In
essence, these theorists argue that property rights are related--either
as necessary conditions for, or as connected to--human rights such as
liberty, identity, and privacy.255 A simple example is the property
interest one has in a wedding ring or a house: rather than being merely
property interests, these objects and rights are deeply connected to
one's sense of self. As a result, even absent any other normative
justification for having property rights in these objects, the theory of
personality would weigh in favor of recognizing property rights, in
order for the self to be realized or other human needs secured.256
This theory plays out in the virtual world in a particularly interesting
way. First, it draws no distinction between the accumulation of
real-world chattels or land and its virtual analogs. That is, to the
extent that personality theory justifies private property in land or
goods, it justifies property in virtual land or goods. The theory is
predicated on the effect of the property interest on human needs like
liberty and identity, and these are presumably not different just
because the property at issue is virtual. More importantly, when it
comes to avatars, personality theory would seem to be strongly in favor
of granting property rights. It is well documented that people feel
connected to their avatar, not as a thing but as a projection of their
self.257
As we shall discuss in more detail in Part III, the concept of the
cyborg -- the mechanical extension of one's persona -- is widely
accepted.258 One need only be attacked once in any first-person shooter
game to realize how one projects a sense of self onto an avatar. Indeed,
some users identify more with their online personas than their real
ones.259 If, as personality theory would have it, property might be
justified by reference to the effect on the self, it would seem that
there is a normative basis for claiming property in virtual realty,
virtual chattels, and, a fortiori, avatars.
Some might argue that a theory granting property rights in avatars based
on the degree to which their creators identify with them does not
justify broad alienability.260 However, we assume alienability for
wedding rings or even nonessential body parts. Of course, there are
exceptions to the rule of alienability, even in tangible objects. We do
not consider it appropriate even to consider that babies might be
property; some believe that Richard Posner "wrote himself off" the
Supreme Court261 by arguing that a property-dependent and market-based
solution to the "baby allocation problem" was better than the current
adoption process.262 However, our reluctance to consider human life the
subject of property law is presumably a special case that does not apply
to computer representations of people, no matter how lifelike the
avatars might be.
The three main normative theories of property, then, all provide strong
normative grounds for recognizing that property rights should inhere in
virtual assets, whether chattels, realty, or avatars. Depending on the
theory one adopts, the limitations on rights in virtual property may be
uncertain. Nonetheless, our conclusion is that there seems to be no
reason under traditional theories of property to exclude virtual
properties from legal protection.263 Further, based on the earlier
discussion, we can conclude that there is no descriptive disconnection
between our real-world property system and virtual assets. From both
descriptive and normative positions, owners of virtual assets do, or
should, possess property rights.
The more difficult question, perhaps, is not whether these rights should
exist, but how they might be allocated. In the next section, we consider
the sorts of questions about virtual property ownership that are certain
to arise in the near future.
E -- Ownership of Virtual Property
The Blacksnow Interactive case264 was the first dispute over virtual
property to make it to the real-world court system, but it is unlikely
to be the last. Disagreements between the corporate-wizards and the
player- avatars are seemingly inevitable. In each of the leveling
worlds, one of two scenarios has developed: either a flourishing
real-world trade in virtual assets265 or heavy-handed attempts to quash
these trades.266 Sony outlawed all trade in EverQuest assets, but the
prohibition has been relatively ineffective and has simply resulted in
virtual-asset auctions moving away from eBay and onto auction sites less
easily cowed by corporate demands.
If we accept the property analysis given above, immediate questions
arise. Do actions like Sony's deny participants some property interest?
If so, how might such disputes in virtual property best be resolved? The
answers to these questions are not obvious. They depend on a number of
factors, including the very nature of the virtual world, the legal
superstructure surrounding it, and the terms upon which players enter
the world. For instance, in LambdaMOO and other textual MUDs, the ethos
is one of sharing and community, and property disputes seem capable of
resolution within the confines of the virtual world.267 Within the
corporate worlds, however, the resolution is less likely to be as
tidy. Though property rights may exist in virtual assets, the allocation
of those rights will depend largely on the End-User License Agreements
(EULAs) that mark out the terms of access to the world.268 Since the
EULAs are written by the corporate owners, their terms inevitably grant
all rights to the owner of the world.269 Though this practice would seem
to make the resolution of property disputes simple--the world-owners get
everything and the subscribers get nothing--virtual worlds will
increasingly challenge the strength of EULA- based property
demarcations. We will likely see courts rejecting EULAs to the extent
that they place excessive restrictions on the economic interests of
users.270 And since there is already so much money and property at stake
in these worlds--and there will be significantly more in the future--we
can expect a large number of lawsuits rooted in these property-rights
disputes. Users will likely raise arguments that attempt to circumvent
or attack EULA restrictions.271 As we live out more of our lives in
these worlds, any simple resolution of the property rights issues will
become more difficult.
III -- The Rights of Wizards and Cyborgs
Therefore, this document holds the following truths to be self-
evident: That avatars are the manifestation of actual people in an
online medium, and that their utterances, actions, thoughts, and
emotions should be considered to be as valid as the utterances,
actions, thoughts, and emotions of people in any other forum,
venue, location, or space.
--Raph Koster272
In the last Part, we argued that property rights may conceivably inhere
in the intangible assets of virtual worlds. Because such assets may be
sold for real-world cash, it is entirely foreseeable that we have come
to regard them as property. Still, the rapid emergence of virtual
property rights raises another question: if traditional conceptions of
property are so easily transposed into the virtual realm, might other
real-world legal rights also be obtained within these environments?
Claims to additional rights in virtual worlds are commonly made, if not
always by those trained in legal argument. On discussion boards for
virtual-world participants, users frequently invoke rights to free
speech, avatar bodily integrity, privacy, and anonymity. Some argue that
avatars should possess a political voice capable of shaping their
virtual worlds.273 Such claims are no more surprising than the
development of virtual property rights.274 Just as new residents bring
with them expectations about property, they bring expectations of other
human and constitutional rights. For instance, residents of virtual
worlds commonly complain of sexual harassment when their avatars are
propositioned by others and involuntarily grabbed or kissed.275 Some
complain of assault by offensive and violent avatar touching. By
contrast, the perpetrators sometimes claim that what others call sexual
harassment and violence is simply an exercise of free speech rights
within the virtual world.276
Communities respond to perceived violations of perceived rights through
a variety of in-world mechanisms. Virtual communities may decide to turn
offenders into toads,277 form constabularies to hunt down and kill those
who dare to kill others,278 or employ elaborate dispute resolution
mechanisms calling for extensive community deliberation and voting.279
Given the level of passion with which participants use online mechanisms
to police their rights and enforce community norms, it seems likely that
such discussions will eventually spill over into the real
world. Someone, somewhere, will soon file a lawsuit in a real court
alleging the infringement of avatar rights.280
Participants in virtual settings frequently debate whether formal
"avatar rights" should exist. Two years ago, Raph Koster, a well-known
game-design guru and virtual-world theorist,281 publicly initiated a
thought experiment that he called the Declaration of the Rights of
Avatars. Modeled after the French Declaration of the Rights of Man of
1789 and the United States Bill of Rights,282 it opens:
When a time comes that new modes and venues exist for communities,
and said modes are different enough from the existing ones that
question arises as to the applicability of past custom and law; and
when said venues have become a forum for interaction and society
for the general public regardless of the intent of the creators of
said venue; and at a time when said communities and spaces are
rising in popularity and are now widely exploited for commercial
gain; it behooves those involved in said communities and venues to
affirm and declare the inalienable rights of the members of said
communities. Therefore, herein have been set forth those rights
which are inalienable rights of the inhabitants of virtual spaces
of all sorts, in their form henceforth referred to as avatars
. . . .283
The set of "rights" that Koster theorizes would be completely
unobjectionable if it were a declaration of rights of real persons in a
real-world society. Indeed, Koster's Declaration states that the
foremost right of avatars is "to be treated as people and not as
disembodied, meaningless, soulless puppets"284--hardly a debatable point
when applied to real people. Yet even Koster is somewhat tentative in
proposing these rights--rights which, from the standpoint of those who
create and maintain virtual worlds, may seem almost heretical.285
In this Part, we examine Koster's experimental notion of avatar
rights.286 In particular, we discuss two key issues that will need to be
confronted if law is applied in the context of virtual worlds. The first
is something we describe as the "wizard problem." Enforcing putative
avatar rights is in tension with the property and authorship interests
of those who create and maintain virtual worlds. As we explain, even
when these owners are not wholly adverse to democratic governance within
the virtual spaces they maintain, their exclusive ability to exert
absolute control over these environments hopelessly complicates attempts
to map traditional notions of democratic governance onto these settings.
A second, related problem is the "cyborg problem," the problem of
determining exactly what avatar rights are as opposed to rights of human
participants. In exploring this question, we note that cyborg rights are
so important to many virtual-world participants that in-game practices,
norms, and laws have evolved to regulate and enforce them. The
challenge, therefore, is not in recognizing that cyborg rights are
recognized within virtual worlds. This is clearly the case. The problem
is determining what effect (if any) asserted cyborg rights might have
outside a virtual world's limited jurisdiction.
Finally, we look to the relationship between the avatar and the
community it inhabits. We ask whether a virtual community can provide
its own internal regulatory mechanisms or whether real-world law will
inevitably trump the virtual community's will. We conclude that, from
the standpoint of policy, the best approach to the regulation of virtual
worlds would be cautious. Virtual environments are sui generis--they
pose both difficult legal conundrums and unknown societal
opportunities. The legal understanding of rights within virtual worlds,
therefore, will be more successful if it progresses largely independent
of interference with real-world legal systems, which are designed to
address the problems peculiar to the physical, nonrepresentational
world. Still, given the increasing social importance of virtual worlds,
we are skeptical that the divisions between real and virtual law will be
long maintained.
A -- Wizards
O man, who art thou that repliest against God? Shall the thing
formed say to him that formed it, Why hast thou made me thus? Hath
not the potter power over the clay, of the same lump to make one
vessel unto honour, and another unto dishonour?
--Romans 9:20-21287
The author-owners of virtual spaces are often called "wizards" by the
participants in those environments, a term that hearkens back to the
pinnacle of the MUD1 social hierarchy and Tolkien's Gandalf.288 While
the wizards of MUDs are usually the owners and programmers of the MUD
server and their circle of friends, the wizards of contemporary virtual
worlds are usually multinational corporations such as Microsoft, Sony,
and Electronic Arts.
The wizards of virtual worlds often manifest themselves within the
environment. A wizard's avatar may take many forms or no form at all. In
Trubshaw and Bartle's MUD1, the wizards walked the Land just like any
other avatar. Indeed, becoming a wizard was the pinnacle of achievement
within MUD1. In Brittania, the lead designer, Richard Garriot, appeared
as the monarch Lord British and was reportedly once assassinated by one
of his subjects when he forgot to make himself invulnerable.289 In
Blazing Falls, the lead designer, Will Wright, has reportedly appeared
in the homes of Blazing Falls as an avatar named Alan Greenspan.290 Yet
such flashy divine incarnation is not a uniform practice among
wizards. For instance, the system administrators who control the daily
grind of Blazing Falls have fashioned themselves as Municipal
Observation and Management Incorporated (MOMI), a nebulous organization
without a virtual address or visible representative within the
community. According to The Sims Online Terms of Service, it is an
offense punishable by avatar death (that is, account termination) for a
citizen of Blazing Falls to impersonate an officer of MOMI.291
As one can imagine, the virtual subjects of MOMI, Lord British, and
other wizards (and wizardly conglomerates) often accuse the wizards of
being dictatorial and arbitrary, an accusation that the wizards often do
not refute.292 No one elected the wizards of Norrath, Britannia, or
Rubi-Ka, and it may seem odd even to think of Sony or Microsoft granting
subscribers the right to elect the government of their virtual
worlds. Yet there have actually been several attempts to institute
virtual democracy, most notably in LambdaMOO. LambdaMOO and other social
MUDs were often labors of love without admission fees or business
plans. The wizards of these small- scale worlds generally had little
interest in (or money for) hiring lawyers to draft licensing agreements
to defend the scope of their power. To the contrary, many early social
MUDs partook in the ideals of cyberspace utopianism.293 It was not
uncommon to hear claims that MUDs and other future virtual spaces might
lead to new and possibly superior cyberspace governance systems.294
Yet despite these idealistic hopes, virtual democracy was not simple in
practice. LambdaMOO was not a California commune--it was a computer
program resident on a Palo Alto server--and this created the wizard
problem. LambdaMOO's world was a work of authorship resident on a box
full of circuits, and Pavel Curtis had the power and the right as the
box's owner to pull the plug at any time. Curtis also understood and
controlled LambaMOO's code, which meant that he and the other four
wizards who worked with him could quite literally reshape LambdaMOO's
heaven and earth, which was nothing more than a database of textual
representations and codes rules that governed the objects within that
represented space.295
Curtis held power not just over the world, but also over the shape of
life within LambdaMOO by controlling the code of all avatars.296 If
Curtis had so desired, that code could have been limiting. Curtis could
have forced visitors to exist as simple mute objects like Al Alcorn's
proto-avatar Pong paddles, capable of spatial movement and nothing
else. Alternatively, Curtis could have authored avatars so that their
only form of speech would have been to sing his praises and their only
potential for action bowing in adoration. Instead, (perhaps realizing
that these choices would not make LambdaMOO very popular) Curtis
followed the traditional path of prior MUDs and granted LambdaMOO
avatars what amounted to powers of free will and free movement. Normal
avatars could not be wizards themselves, of course, for they lacked the
trustworthiness (and perhaps the programming abilities) needed to hold
the keys to LambdaMOO's primary functions.297 Nevertheless, the wizards
did allow avatars considerable powers within the MUD environment. Guests
could fashion their avatar bodies as they pleased, travel freely through
the grounds of the Mansion, build new places and new things, and, most
importantly, speak their minds--even to the point of cursing and
harassing the wizards who had enabled their existence.298
When new inhabitants arrived in substantial numbers, Curtis and the
other wizards at first welcomed them, continuing to exercise their
divine powers as benevolent overlords of the virtual world.299 They
generally attempted to please their community by listening to requests,
resolving the inevitable disputes, and punishing the wicked when they
thought the wicked deserved punishing.300 But Curtis and the other
wizards eventually grew weary of resolving the disputes of squabbling
avatars. To paraphrase Oscar Wilde on the problem of socialism, being a
benevolent wizard simply took up too many evenings.301 To some extent,
Curtis and the other wizards found their own dictatorial authority
inconsistent with their belief that MUDs like LambdaMOO should offer new
and radical social potentials.302 So the wizards of LambdaMOO famously
and unilaterally engaged in a reverse coup d'état, and threw the
governance of the world to its citizens. Pavel Curtis said in announcing
his abdication of power:
I believe that there is no longer a place here for wizard mothers,
guarding the nest and trying to discipline the chicks for their own
good. It is time for the wizards to give up on the `mother' role
and to begin relating to this society as a group of adults with
independent motivations and goals.
So, as the last social decision we make for you, and whether or not
you independent adults wish it, the wizards are pulling out of the
discipline/manners/arbitration business; we're handing the burden
and freedom of that role to the society at large . . . .
....
[The wizards] will become technicians who work for the society.
[They and their social circle] will much more clearly become just
another set of players in this community with no more power or
moral authority than anyone else.303
Jennifer Mnookin and Julian Dibbell have previously described the
elaborate governance system that emerged after the wizards'
abdication.304 Still in existence today, it includes petitioning and
voting processes with formalized opportunities for community
deliberation.305 Yet the abdication was not as absolute as it may have
seemed at first. While Curtis and the other wizards claimed originally
that they would merely enforce the decisions of the community, they
still held the power to implement the decisions of LambdaMOO into coded
"law" and, therefore, still held substantial power. LambdaMOO society
fully understood that the wizards, no matter what they claimed, were
still wizards. They still could, if they wished, make themselves
invisible, destroy the avatars of those who opposed them, and bend the
laws of nature. As a result, LambdaMOO participants continued to demand
miracles and to condemn the wizards for unmonitored use of their power
over the society.
Curtis, like Shakespeare's King Lear, began to realize that attempting
to cast aside power often creates conflicts far worse than the burdens
of rule.306 As Curtis has explained:
Deep in its very structure, LambdaMOO depends on the wizards and on
the owner of its machine. These are not and cannot be purely
technical considerations. Social policy permeates nearly every
aspect of LambdaMOO's operations, and only the wizards can carry out
those operations.
As a result, the wizards have been at every turn forced to make
social decisions. Every time we made one, it seemed, someone took
offense, someone believed that we had done the wrong thing, someone
accused us of awful ulterior motives. It felt a bit like the laws of
thermodynamics: you can't win, you can't even break even, and you
can't get out of the game.307
As Curtis observed, the code of the LambdaMOO world was the law, and the
law of the LambdaMOO world was code.308 So, despite Curtis's professed
abdication of power, the wizards of LambdaMOO were still omnipotent, and
they were still the shadow government. How could omnipotence ever
comport with democracy?309 Curtis concluded that it could not. Having
once professed to grant putative democracy to LambdaMOO, Curtis was
forced to confess three-and-a-half years later that within the democracy
of LambdaMOO, the wizards would not and could not fully submit to the
will of the community. Curtis posted a message giving public notice that
he was reintroducing the practice of "wizardly fiat."310
Thus, even worlds that are conceived in liberty and are dedicated to the
proposition that all avatars are created equal become, in time,
testaments to the autocratic power of wizards. Of course, those worlds
which begin as corporate creations are even more susceptible to these
pressures.
B -- Corporate Wizardry and Its Justifications
Unlike the creators of LambdaMOO, Microsoft and Sony have never
professed to be building democratic cyberspace societies. With millions
of dollars of venture capital at stake, the primary goal of today's
virtual worlds is building cash flow. The wizards of Sony and Microsoft
often ignore the claims of the rabble completely and impose EULAs that
attempt to dismantle even the potential of virtual rights. The closest
things to democratic participation in today's virtual worlds are
independent game discussion boards,311 where all manner of criticism is
aired. Even where such community-to-wizard feedback mechanisms exist,
they hardly approach the sophistication of the LambdaMOO petition
systems.312
Still, are the wizardly dictatorships that characterize virtual worlds
such a bad thing? Even if we could find a way to get around the problems
revealed by the tale of LambdaMOO, we might well conclude that virtual
democracy and avatar rights are not ideals worth pursuing. The reasons
for this are many, but certainly include arguments that the worlds are
built and maintained out of the funds of a private entity, or that
democracy and these worlds are not good bedfellows.
First, as even Koster notes,313 virtual worlds are entities that
generally exist through the laborious creation and maintenance of
private chattels. Substantial funds must be invested to create and
maintain virtual worlds involving hundreds of thousands of
participants.314 The standard argument against avatar rights, therefore,
is that wizards, by virtue of their private (and corporate) ownership of
the computer equipment and substantial investments in creating the
virtual world, should have a right to do exactly as they please.
For U.S. citizens, this claim may bring to mind the state action
doctrine, which limits judicial enforcement of constitutional rights to
cases in which the government--and not a private party--is the source of
the harm.315 The private creation of virtual spaces, therefore, may
place any putative real-world "rights" of a constitutional nature316
beyond the reach of a real-world judicial remedy. Paul Berman has
examined state-action doctrine arguments as applied to Internet Service
Providers (ISPs), asking whether AOL or other large ISPs could ever
become the equivalent of a "company town," in which the corporate owner
assumes so many functions of the state that it is subject to the same
constitutional constraints.317 He concludes that the doctrine is
exceedingly unlikely to apply to these sorts of cyberspace private
actors, given that we don't really "live" in cyberspace.318
Yet Berman also observes that "whether America Online is public or
private, there are certain values that we hold as a community, values
that America Online may be threatening."319 In the real world, it
doesn't seem strange to suggest that Major League Baseball's prohibition
on racial epithets or a retailer's refusal to stock music albums it
deems offensive somehow implicates First Amendment values, even though
we are clear that neither of these organizations is a state actor.320 It
is not hard to imagine that we will see increasing agitation within
virtual worlds in this same vein, in the form of attempts to apply the
state action doctrine to virtual worlds,321 even if these arguments are
unlikely to succeed initially. For instance, if members of our society
are uncomfortable with limitations upon speech in company towns322 and
shopping malls,323 how will we feel about speech limitations placed on
entire (virtual) worlds?
A second argument against virtual democracy is that it unfairly narrows
the playing field in what might be seen not just as a society, but as a
form of art. Virtual worlds, in all their visual, textual, spatial,
coded, and theatrical aspects, are clearly expressive works of
authorship. The wizards, therefore, may have their own free speech
arguments to assert against those who accuse them of
censorship. Restricting the wizards of Sony and Microsoft to pleasant
and uplifting stories of democratic governance would arguably be
tantamount to prohibiting theaters from performing the often- grim plays
written by Bertolt Brecht. The wizards, as private parties and speakers
in their own right, arguably have the right--and perhaps even the
obligation--to create and invite others into worlds that are not
perfect. Arguments for the necessity of virtual democracy will
inevitably lead to the complete absence of virtual worlds where
suffering, injustice, and censorship can be explored.
Of course, one might agree that virtual worlds are works of authorship,
yet also appreciate that the authorship in virtual worlds is of a
collaborative nature. While the wizards set the stage of the world, the
avatars are the improvisational actors. Legal arguments have been made
that participant interaction in video games may constitute coauthorship
of the virtual world that ultimately is represented.324 Indeed, the
primary reason subscribers are drawn to virtual worlds is not for the
backdrop of castles or condos, but for the social interaction with
like-minded friends and enemies. People are, essentially, paying to
amuse one another.
A third argument against virtual democracy is the availability of exit
from these environments. This argument is the standard response of those
who view virtual worlds as simply games: those who consider themselves
oppressed by virtual wizards need to turn off their computers and "get a
real life."325 The exit argument also supports the arguments for a
contract- based approach to virtual rights. Those who want to speak
freely are free to subscribe to those worlds where free speech is
permitted--those who prefer a more harmonious and sanitized society are
free to congregate in those virtual locations that forbid dissenting
voices.
This is a powerful argument, but it remains to be seen whether contract
and exit work in practice. For many virtual-world participants who have
already invested in these worlds, exit may not be a genuine choice. If
one's social circle (which may include one's real-world family and
friends) congregates exclusively within a given virtual world,326 the
option of exile from the green and rolling hills of Norrath for the
barren deserts of Tatooine may not seem like much of an option. Lives of
cyborgs within particular virtual worlds are deeply meaningful to many
of those who possess them.327 Is the option of virtual exit real if it
entails giving up family, friends, property, society, and your very
form?
As the above analysis suggests, from the perspective of the wizards,
avatar rights and virtual democracy are complicated issues without
simple solutions. If, in some instances, it may not be proper to grant
the wizards of a virtual world absolute authority over all activities
within that environment, we need to ask what exceptions one might make
and what rights avatars might have vis-à-vis their wizards and vis-à-vis
each other. To reach the proper societal response to attempts at
virtual-world democracy and the assertion of avatar rights will be
complicated, to say the least.328
Skeptics, however, will likely resist the very premise of avatar rights
in the abstract. As we noted in our discussion of the real and the
unreal, it is predictable that many will not understand why new rights
should be necessary in virtual worlds. After all, real-world laws are
sufficient to govern the activities of typists, moviegoers, readers, and
actors. Just as there is no need to delve deeply into the law of the
horse,329 perhaps there is no need to spend much effort on the rights of
avatars, which can be spend much effort on the rights of avatars, which
can be skeptically recast as the rights of typists.330 In order to
explain why participation in virtual worlds amounts to something more
than typing, we need to shift our focus from wizards to cyborgs.
C -- Cyborgs
Is it not monstrous that this player here, but in a fiction, in a
dream of passion, could force his soul so to his own conceit that
from her working all his visage waned, tears in his eyes,
distraction in his aspect, a broken voice, and his whole function
suiting with forms to his conceit? And all for nothing!
--William Shakespeare331
Our goal in this section is to illuminate how social interactions within
virtual worlds operate through avatars as cyborg entities that combine
the controller and the representation into a single social unit. An
avatar mask is the technological extension of a real-world controller
that presents that individual to a virtual society. As a result, an
avatar can provide a vehicle for its controller's desires for
experimentation, self-expression, and social wish-fulfillment. However,
the strong controller-avatar relationship can also serve as a conduit
for humiliation and emotional confusion.
To understand this, it is important to note that avatars are not
alive332 and are regularly deleted in virtual worlds.333 In LambdaMOO,
for example, locations have been specifically established to allow one's
avatar to commit the ultimate act of abnegation with the preferred level
of theatricality, from stepping off the edge of the world, to being
blended into paste.334 When an avatar "dies" in this way or is otherwise
abandoned by its controller, there is no criminal investigation. The
avatar's data space and virtual possessions are simply "recycled."335
Yet while an avatar's owner may be perfectly comfortable with killing
the avatar when she grows sick of it, she may feel genuine anger when a
more powerful avatar decides to use her avatar for target practice.336
She may feel genuine humiliation when her avatar is involuntarily
possessed by another in a "public" place and made to abuse itself
sexually.337 In these cases, while the representation of the injury
occurs on the screen to the avatar, the owner feels anger and
humiliation because she has projected herself into an avatar body. This
type of projection also occurs in literature--who has not actually felt
herself in the shoes of her favorite detective, heroine,
protagonist?--or in art or film, as in trompe l'oeil murals or
motion-picture action sequences.338 The immersive world of video games
further extends this process of projection by enabling one to manipulate
the virtual environment and exist, in the company of others, within it.
In the absence of a better term, this type of projection can best be
understood as a form of the cyborg.339 A cyborg is a mixture of human
and machine. While the science-fiction concept of the cyborg originated
with the physical combination of the human with technology,340 the
notion of the cyborg is broad enough to include any technological
extension of the self.341 An avatar that operates within a virtual world
is thus a cyborg, a persistent extension of the user within that world,
allowing him or her to exist in that virtual place and communicate with
others. Many users consider their avatars as much a part of them as they
might a real-world prosthetic limb. Like an artificial limb, an avatar
might be replaced or discarded and has no rights of its own. Yet when
the user acts through the avatar, she speaks about this connection as
being the avatar. This is fundamentally a different relationship from
what is found with a cherished possession, such as a wedding
ring. People do not speak of property, even cherished property, using
the first person. By contrast, identification with the avatar is the
norm--so much so that conversations in virtual worlds are often hard to
parse. In Blazing Falls, for instance, you may meet avatars who invite
"you" to come into their homes, sit down, get something to eat, or play
a game of chess (addressing your avatar as "you" in all these
instances). While your avatar is doing all this, your host's next
message may ask "you" where you're from, how old you are, and whether
you're male or female--and here the questions are about "you" in real
life. When later recounting virtual interactions to others, it is also
customary to use the first person to describe the actions of one's
avatar. This confusion of real and virtual life is so common that
various acronyms have been coined to assist explanations of how one's
avatar or real-world self is reacting at a given moment: IRL ("in real
life"), IC ("in character"), OOC ("out of character"), and so on.342
As this sort of identity confusion illustrates, people rarely think of
their avatars as something completely distinct from themselves. Instead,
they often see their avatars as second skins that they
inhabit. Unsurprisingly, many take advantage of the opportunity to
engage in "identity tourism." In the real world you are a
twenty-three-year-old woman, but would you like to experiment with what
it feels like to be a sixty-year-old man, or perhaps a nine-foot-tall,
rainbow-colored dragon?343 In the real world you are an Asian American,
but in your tiny life, why not see what it feels like to interact with
others as an African American,344 or maybe a hive collective, or a
Spivak?345 Virtual worlds are often like an elaborate masquerade ball,
and as in most masquerades, the least popular mask is the one that you
wear in real life.
The avatar masks, however, both conceal and embody real-world
individuals who often use the ability to dissemble to achieve social
objectives they consider important. In LambdaMOO, for instance, some
individuals fashion their avatar masks to project standard stereotypes
of sex appeal, perhaps attempting to tantalize others into virtual
relationships: "Lirra is a short young woman with long blonde hair, an
impish grin and a curvaceous figure. Her clear blue eyes sparkle as she
looks back at you. She is wearing a short red skirt, a white t-shirt,
black fishnet stockings, and black leather boots and jacket."346 Of
course, IRL, who knows what Lirra's controller looks like?347 Other
individuals attempt to impress others with avatars that project
mysterious auras of power: "Darklighter [is dressed] . . . all in black
with a cloak concealing him . . . . You can tell he is the sort of man
who can see the strings that bind the universe together and mend them
when they break."348 Given the chance to be anyone, who wouldn't want to
be sexually attractive, powerful, and strangely mysterious?349
The process of avatar development usually begins with the selection of a
physical or visual description, but it does not end there. As Elizabeth
Reid has noted, participants "become emotionally involved in the virtual
actions of their characters, and the line between virtual actions and
actual desires can become blurred."350 For those who doubt that
psychological immersion occurs in virtual worlds, the best riposte is
virtual sexual activity, or "tinysex."351 Tinysex is a popular activity
in text-based social worlds like LambdaMOO, which has set aside an
entire suite of rooms for tinysexual encounters.352 In some MUDs,
sexuality seems to permeate the entire environment.353 One study has
revealed that even among players of EverQuest, which does not readily
lend itself to sexual simulation, nearly half of participants who are
female in real life have had virtual romantic relationships with
EverQuest partners.354
Online relationships often have significant real-life effects on those
who engage in them. There are, by now, numerous accounts of real-life
marriages formed out of romantic encounters that were initiated online.
Equally prevalent are tales of real-life relationships endangered or
ruined by virtual betrayals.355 The most interesting cases have involved
male avatars falling in love with (or having a tinysexual encounter
with) a female avatar, only to discover that another male user
controlled the female avatar.
Those who build intimate relationships with gender-swapped avatars
generally report feeling, at the very least, confused and disoriented at
the revelation. The propriety of avatar gender-swapping, therefore, is
hotly debated among virtual-world residents.356
For some male players of EverQuest, however, the choice of "presenting
female," as avatar gender-swapping is called, can be a strategic
decision. Female avatars often receive more favorable treatment from
other avatars, including free gifts and help from male avatars.357 On
the other hand, presenting female may also lead to an eye-opening
understanding of virtual sexual harassment.358 For some female users,
the challenge of dealing with sexual harassment is reason enough to use
male avatars. Others adopt different strategies, such as avatar
self-help. For instance, one female player who was the subject of
constant sexual harassment refused to abandon her real-life gender so
that she could "pass" virtually without problems:
I am female. I choose to play female chars . . . . And people do
harass you. . . . I stopped playing muds where playerkilling is not
legal. . . . . If they really start harassing you . . . killing them
a few times tends to stop it short.359
As this quote demonstrates, when one's virtual self is the involuntary
recipient of sexual advances, the avatar's controller almost always
experiences real-life discomfort. The most well-known account of virtual
sexual assault is Julian Dibbell's re-telling of Mr. Bungle's rape of
Legba and Starsinger in LambdaMOO.360 The "rape" occurred when an avatar
seized control of two female avatars and provided graphic textual
depictions of their sexual self-mutilation. Of course, such "talk" is
not rape.361 Yet it was reportedly a traumatic experience for both Legba
and Starsinger,362 and some feminist scholars have used the incident as
a prototypical example of sexual assault without physical contact.363
Even if we accept avatars as cyborgs, it still is not clear that the law
should respond by regulating these spaces. In the next section, we
consider the cyberskeptical arguments against the recognition of cyborg
rights. Ultimately, we disagree with the cyberskeptics. We agree that
Mr. Bungle's virtual rape and other violations of the rights of avatars
are not tantamount to real-world abuses. However, we argue that, given
what appears to be the emergence of law within virtual communities, the
development of cyborg rights within virtual-world social systems appears
inevitable. We conclude that as virtual worlds continue to develop,
cyborg rights will emerge through the efforts of virtual communities in
ways we cannot fully anticipate.
D -- Cyborg Communities and Cyberskeptics
In the early flowering of cyberlaw scholarship, scholars
enthusiastically endorsed all manner of new possibilities for law. They
suggested that we might recognize the primacy of social agreements of
online communities, defer to these laws over those of national
sovereigns,364 and establish virtual judges to decide cyberspace
cases.365 They also proposed that, in these online communities, we might
find a true opportunity for liberal democracy, direct democracy, and
governance by consent.366 These scholars envisioned cyberspace as a
wholly different place where we could re-imagine our fundamental
assumptions about how we might make law.367
This imaginative period didn't last long. Cyberskeptical scholars like
Jack Goldsmith,368 Tim Wu,369 and Andrew Shapiro370 patiently explained
that cyberspace actions and transactions do not occur in cyberspace, but
in the real world, at your computer. Like police officers at the scene
of a particularly interesting accident, they told us to move along;
there was nothing to see here. Their cyberskeptical approach is now
orthodoxy,371 and it is certainly true that geographically-delimited
nation-states have not abandoned their claims to regulate transactions
that affect them.372
While there are clear parallels between the precyberskeptic ambitious
thinking about "cyberspaces" as a separate jurisdiction and our claims
here regarding the human rights inherent in virtual worlds, there are
also differences. The historic failure of cyberspace to become an
independent legal arena, as some had suggested it might, can be
distinguished from emerging law within virtual worlds based upon the
presence of legitimate communities within virtual worlds. The Internet,
despite early predictions, never became an independent
community. Websites and other prior technologies of cyberspace served as
remarkable tools for communication, but they did not build truly
independent and self-governing communities. By contrast, avatar
existence and avatar community only occurs within virtual worlds, making
the emergence of virtual law within those worlds much more likely.
Koster's Declaration sets out the assertion that virtual worlds are
communities, stating that they provide "new modes and venues . . . for
communities, and said modes are different enough from the existing ones
that question arises as to the applicability of past custom and law
. . . ."373 These new modes of community can be observed in today's
virtual worlds: these communities often have regular town meetings,
subcultures, and even coded regulations that are enforced by cyborg
participants. Each virtual world is a separate and independent
community, generating its own conventions, norms, and rights, which new
participants come to understand and abide by.374
Community self-policing of rights and legal expectations within virtual
worlds has also arisen spontaneously. Avatars have reportedly formed
virtual posses to hunt down infamous player-killers--subjecting them, à
la Hammurabi's Code, to the same kind of transgressive behavior they
inflicted.375 The presence or absence of rights, the existence of a
democratic or undemocratic governance system, and the presence or
absence of hottubs expressly designed for tinysex are all items subject
to debate and enforcement by virtual communities. In most instances,
these concerns are resolved through in-world mechanisms. For instance,
the community dealt with the Bungle rape through extensive deliberation
and, in the end, one wizard took action based on those community
deliberations.376 Mr. Bungle was "toaded" by a majority decision of the
community--i.e., his avatar was replaced with a powerless and voiceless
toad--and the victimized avatars and LambdaMOO society moved on.377
Historically, the rejection of separate legal rules for cyberspace
seemed based in part on the absence of the recognition of any genuine
community online. The best example of this is the early "amateur action"
case of United States v. Thomas.378 The Thomases were online purveyors
of porn who allowed access to their system from all over the United
States. Under the still-prevailing Miller standard,379 the test for
obscenity is a local, community-based one, and the question in Thomas
was which community--and which community standard--applied to the
Thomases' porn? Was it the community standards of the physical place
where the pornographic transmissions were received, or were the norms
those of the "cyberspace community" in which the Thomases operated?
Concluding that there was no such thing as a "community of cyberspace,"
the Sixth Circuit held against the smut peddlers. Yet even those who
criticize conventional claims to cyberspace community have reserved
judgment on legal autonomy claims of MUDs, where assertions of community
appear to be well-founded.380
Nonetheless, in urging courts to avoid recognizing virtual law, the
cyberskeptics may have a point. Given the complexity of ascertaining a
virtual world's emerging legal rules and balancing them with avatar
rights and wizardly omnipotence, the prospect of real-world courts
entertaining virtual disputes is in some ways not very appealing.381
Perhaps, therefore, it would be best to require that the laws of the
virtual worlds develop within their own jurisdiction. Perhaps, even if
we accept that real lives, economic values, and substantial investments
are at play within virtual worlds, the wiser course may be for courts to
keep their distance.382
It is questionable, though, that courts will have much say in the
matter, since some cyborg plaintiffs seem interested in pressing their
claims in these courts. For instance, in June of 2001, a group of
plaintiffs in South Korea filed a lawsuit alleging that the wizards of
their world had unfairly deprived them of Giran castle, a virtual
property they had stolen (fair and square) from another group of
avatars. The wizards responded that, due to program errors, the siege of
Giran had been illegitimate.383 The plaintiff's violent theft,
therefore, had occurred in the absence of what might be termed virtual
due process, leading the wizards of Aden to restore the virtual property
rights to those that existed ex ante. Though the Giran Castle case, like
the Blacksnow case, was apparently not resolved by a judge's ruling, the
fact that a suit was filed suggests that courts will, in the near
future, be confronting these claims.384 In the far future, as the
world's communities increasingly begin to operate through avatar agents
in persistent virtual communities, courts will surely need to recognize
cyborg rights in some form or another. Conclusion
Many people live out large parts of their lives in virtual worlds, and
soon many more will join them. The issues of property and cyborg rights
are not going to go away.
Property interests will be the initial arena for the development of
virtual-world law. This is the area of law in which most disputes will
arise for some time to come, based upon actions of game owners385 as
well as the filing of the Blacksnow and Castle Giran lawsuits. As we
concluded in Part II, it seems clear that virtual assets can be
characterized as property for the purposes of real-world law. The
battles fought over virtual property will involve claims sounding in
property, contract, unfair competition, and other familiar real-world
areas. At least initially, these claims should not pose too many
problems for courts. Traditional approaches will work.
However, this is likely to change over time. As people increasingly come
to live and work in these worlds, the domination of legal property
issues by EULAs and practices of "wizardly fiat" may appear one-sided
and unjust. If corporate wizards continue to assert complete ownership
over virtual lives, cyborg inhabitants will bring their concerns to
real-world courts to prevent certain fundamental rights from being
contracted away.386 If constitutional speech protections extend to
company towns like Chickasaw, Alabama,387 it seems likely that such
rights will be asserted by, and eventually granted to those who live in
virtual worlds.
When virtual-world lawsuits arise, as they inevitably will, it will not
be a sufficient answer to say, "It's just a game." Nor can the wizards
who create and maintain the worlds simply assert that they can do as
they wish. The issues are more complex than that, and the users and
community will need to have a say in the formation of the laws of
virtual worlds. David Johnson and David Post once remarked that
[i]f the sysops and users who collectively inhabit and control a
particular area of the Net want to establish special rules to
govern conduct there, and if that rule set does not fundamentally
impinge upon the vital interests of others who never visit this new
space, then the law of sovereigns in the physical world should
defer to this new form of self-government.388
We believe that Johnson and Post's observation will, in the end, apply
to virtual worlds. Courts will need to recognize that virtual worlds are
jurisdictions separate from our own, with their own distinctive
community norms, laws, and rights. While cyborg inhabitants will demand
that these rights be recognized by real-world courts and virtual-world
wizards, they will need to arrive at these rights themselves within the
context of the virtual worlds. Whether or not the courts and the wizards
recognize these rights, virtual communities will continue to assert them
and attempt to enforce them. Virtual-world inhabitants will demand
recognition of their cyborg lives and enforcement of their cyborg
rights. If these attempts by cyborg communities to formulate the laws of
virtual worlds go well, there may be no need for real-world courts to
participate in this process. Instead, the residents of virtual worlds
will live and love and law for themselves.
Footnotes:
1. St. Augustine, The Confessions of St. Augustine 227 (Rex Warner
trans., New American Library 1963).
2. What is UO?, Ultima Online, at
http://www.uo.com/ageofshadows/viscent.html (last visited Aug. 18,
2003).
3. Bruce Sterling Woodcock, An Analysis of MMOG Subscription
Growth--Version 7.0, at
http://pw1.netcom.com/~sirbruce/Subscriptions.html (last visited
Oct. 7, 2003).
4. See Geoff Keighley, The Sorcerer of Sony, Business 2.0, Aug. 2002,
at 48, available at
http://www.business2.com/articles/mag/0,1640,42210,FF.html.
5. Lineage, at
http://www.lineage-us.com (last visited Aug. 5, 2003).
6. Brad King, Online Games Go Multicultural, Wired News, Jan. 30,
2002, at
http://www.wired.com/news/games/0,2101,50000,00.html (last
visited July 26, 2003).
7. Woodcock, supra note 3.
8. Brad King, Gamers Click Home for Holidays, Wired News, Dec. 11,
2002, at
http://www.wired.com/news/games/0,2101,56759,00.html; Edward
Castronova, On Virtual Economies 2 n.1 (CESIfo Working Paper No. 752,
July 2002), available at
http://papers.ssrn.com/ abstract38500 (last
visited Aug. 8, 2003); Dark Age of Camelot News, May 9, 2002, at
http://www.darkageofcamelot.com/news/ (last visited Aug. 8, 2003).
9. See Chris McGowan & Jim McCullaugh, Entertainment in the Cyber Zone
69-72 (1995); Robert Levine, The Sims Online, Wired, Nov. 2002, at
176, available at
http://www.wired.com/wired/archive/10.11/simcity.html (last visited
Aug. 8, 2003). 6 CALIFORNIA LAW REVIEW [Vol. 92:1
10. See Castronova, supra note 8, at 7. The term was adopted in the
context of computer- generated games by the creators of Lucasfilm's
Habitat. See infra notes 117-21 and accompanying text, and later
popularized by Neal Stephenson in his 1992 novel Snow Crash.
11. Charles Herold, Win Friends, Influence People, or Just Aim and
Fire, N.Y. Times, Feb. 6, 2003, at G5 ("You can also have sex. I came
across one home devoted to erotica, where a girl named Tanea offered
to have sex with me for 100 simoleons.").
12. Edward Castronova, Virtual Worlds: A First-Hand Account of Market
and Society on the Cyberian Frontier 25 tbl. 3 (CESIfo Working Paper
No. 618, Dec. 2001), available at
http://papers.ssrn.com/abstract)4828 (last visited Aug. 4, 2003);
see also Nick Yee, The Norrathian Scrolls: Real-Life Demographics, at
http://www.nickyee.com/eqt/demographics.html#3 (last visited Aug. 8,
2003); Nick Yee, Codename Blue: An Ongoing Study of MMORPG Players 3
(2002), at
http://www.nickyee.com/codeblue/Report.PDF (last visited
Aug. 8, 2003).
13. See Julian Dibbell, The Unreal Estate Boom, Wired, Jan. 2003, at
106, at
http://www.wired.com/wired/archive/11.01/gaming.html (last
visited Aug. 8, 2003); eBay Listings, Internet Games, at
http://listings.ebay.com/pool2/listings/list/all/category4596/index.html
(last visited Aug. 8, 2003).
14. See Dibbell, supra note 13, at 108; see also infra Part III.
15. See Massive Multiplayer Online: Clans and Guilds, Open Directory
Project, at
http://dmoz.org/Games/Video_Games/Roleplaying/Massive_Multiplayer_Online/Clans_and_Guilds/
(last visited Aug. 8, 2003) (listing hundreds of guild websites);
Allakhazam's Magical Realm, at
http://links.allakhazam.com/Everquest/Guilds/ (last visited Aug. 8,
2003) (listing hundreds of EverQuest guild websites).
16. See N'Gai Croal, Sims Family Values, Newsweek, Nov. 25, 2002, at
47 ("Upon our return [our roommate] JB said, `You're not online enough
to help the cause,' and kicked us out of the house.").
17. See The American Heritage Collegiate Dictionary 1508 (3d ed. 2000)
(virtual things "exist . . . or result . . . in essence or effect,
though not in actual fact, form, or name"); see also Marie- Laure
Ryan, Cyberspace, Virtuality, and the Text, in Cyberspace Textuality:
Computer Technology and Literary Theory 78, 84-91 (Marie-Laure Ryan
ed., 1999) (discussing the history of the word and the notion of the
"virtual-as-fake"); Dibbell, supra note 13, at 108.
18. For example, see the entry for "unreal" in Roget's Interactive
Thesaurus, at
http://thesaurus.reference.com/search?q=unreal (last
visited Aug. 8, 2003).
19. See Julian Dibbell, My Tiny Life 74 (1998) ("[It may seem that]
sociopolitical reality is not that different, finally, from the
virtual kind, and that a human being never inhabits a physical
landscape without also inhabiting its ghostly, abstract
counterpart--the geography of language, law, and fantasy we overlay,
collectively, on everything we look at."); Jack Balkin, The
Proliferation of Legal Truth, 26 Harv. J. L. & Pub. Pol'y 5, 6 (2003)
("[L]aw creates truth--it makes things true as a matter of law. It
makes things true in the eyes of the law. And when law makes things
true in its own eyes, this has important consequences in the world.").
20. Disney World seems to be a choice subject for ruminations on
unreality. See Dibbell, supra note 19, at 51; Mark Poster, Theorizing
Virtual Reality, in Cyberspace Textuality: Computer Technology and
Literary Theory, supra note 17, at 42, 45. As Mark Poster notes,
postmodern cynics like Jean Baudrillard have gone so far as to claim
that Disney World is reality and America is the
simulation. (Baudrillard also opines that the Gulf War never
happened.) Poster, supra, at 45-46.
21. For instance, in the classic Hans Christian Andersen story, The
Emperor's New Suit, an innocent child ultimately reveals that an
Emperor's new suit, which no one has ever seen, does not exist. The
Complete Hans Christian Andersen Fairy Tales 438 (Lily Owens ed.,
1984) (1981). The greater moral of the story, however, and the reason
for its popularity, is that it is common to encounter social
conventions which require participants to embrace a shared
illusion. The Andersen story, and the stories in other cultures that
resemble it, merely highlight extreme examples of this phenomenon.
22. Hiawatha Bray, Hello, World, Boston Globe, Dec. 16, 2002, at C1;
Mike Snider, When Multiplayer Worlds Collide, USA Today, June 24,
2003, at 1D.
23. Ellen Edwards, Plug (the Product) and Play; Advertisers Use Online
Games to Entice Customers, Wash. Post, Jan. 26, 2003, at A1; Matt
Richtel, Big Mac Is Virtual, But Critics Are Real, N.Y. Times,
Nov. 28, 2002, at G8.
24. See Michel Marriott, Now Playing: Reality Without the Downside,
N.Y. Times, Jan. 9, 2003, at G1.
25. See Julian Dibbell, Your Next Customer Is Virtual. But His Money
Is Real, Business 2.0, Mar. 2003,
http://www.business2.com/articles/mag/0,1640,47157,00.html.
26. Id.
27. Castronova, supra note 12, at 3.
28. Id. at 7.
29. See An Analysis of MMOG Subscription Growth--Version 6.0, at
http://pwl.netcom.com/ ~sirbruce/Subscriptions.html (last visited
Aug. 5, 2003).
30. Castronova, supra note 12, at 23.
31. Calling the virtual worlds of Norrath or There "places" is
consistent with the common popular and judicial treatments of
cyberspace as a place. See Dan Hunter, Cyberspace as Place and the
Tragedy of the Digital Anticommons, 91 Calif. L. Rev. 439, 454-58,
472-97 (2003) (arguing that we all share a cognitive metaphor of
cyberspace as place and providing evidence of this in linguistics and
law). However, even if we presume that virtual worlds will be
understood as "places," this does not mean it is wise to apply the
laws of physical spaces to the realms of cyberspace. Id.
32. Dibbell, supra note 25. The 1,787 Therebucks-to-dollar rate is
said to be arbitrary.
33. Leslie Walker, Will Women Go There?, Wash. Post, Jan. 12, 2003, at
H7. Nike and Levi Strauss have reportedly entered into licensing
agreements with There.com whereby the clothing companies promote their
real products through the sale of virtual renditions of these items to
There's avatars. The virtual transactions for Nikes and Levis,
however, are also sales for virtual equivalents which are transacted
using Therebucks.
34. Dibbell, supra note 25.
35. See Matthew Maier, Can a Metaverse Have Inflation?, Business 2.0,
Mar. 2003,
http://www.business2.com/articles/mag/0,1640,47159,00.html.
36. See eBay auction listings for in-world assets, at
http://listings.ebay.com/pool2/listings/list/
all/category1654/index.html?from=R11 (last visited July 26, 2003).
37. Castronova, supra note 12, at 2; Edward Castronova, Synthetic
World Economic Data, at
http://business.fullerton.edu/ecastronova/Synthetic%20Worlds%20Economic%20Data/economic_data.
htm (last visited Aug. 8, 2003).
38. Julian Dibbell, the author of My Tiny Life, recently attempted to
break into this profession. His weblog recounting his experiences can
be found at
http://www.juliandibbell.com/playmoney/ (last visited
Aug. 1, 2003).
39. See Kremen v. Cohen, No. 01-15899 (9th Cir. July 25, 2003)
(finding that the plaintiff's ownership of a URL domain name
constituted ownership of property for the purposes of the tort of
conversion). At a recent Internet security conference held in Las
Vegas, invited attorneys from the United States Department of Justice
argued to a federal district judge in a moot court that the loss of an
avatar's virtual assets constituted real damage pursuant to 18
U.S.C. § 1030. See email from Edward Castronova (on file with the
authors).
40. See Jennifer L. Mnookin, Virtual(ly) Law: The Emergence of Law in
LambdaMOO, 2 J. Computer-Mediated Comm. (1996), available at
http://www.ascusc.org/jcmc/vol2/issue1/ lambda.html (last visited July
26, 2003).
41. See Dan Hunter & F. Gregory Lastowka, To Kill An Avatar, Legal
Affairs, July/Aug. 2003, at 21, 24.
42. Orin S. Kerr, The Problem of Perspective in Internet Law, 91
Geo. L.J. 357, 372 (2003) (arguing that internal and external
perspectives can be used in analyzing Internet laws).
43. Robert C. Ellickson, Order Without Law: How Neighbors Settle
Disputes 1-11 (1991).
44. PGA Tour, Inc. v. Martin, 532 U.S. 661, 685 (2001) ("[T]he walking
rule that is contained in petitioner's hard cards, based on an
optional condition buried in an appendix to the Rules of Golf, is not
an essential attribute of the game itself.").
45. See Huntsman v. Soderbergh, No. 02-M-1662 (D. Colo. filed June 18,
2002). Briefs and other associated materials are available at
http://www.eff.org/Cases/Huntsman_v_Soderbergh/ (last visited Aug. 4,
2003).
46. Lewis Carroll, The Annotated Alice: Alice's Adventures in
Wonderland & Through the Looking Glass 26 (Clarkson N. Potter,
Inc. 1960) (1865).
47. Castronova, supra note 8, at 7.
48. The reason for this division may not be immediately apparent to
the reader. While the history of literary and visual representations
are obviously intertwined, in the case of virtual worlds as an
artistic medium, textual virtual worlds (MUDS) are clearly the
predecessors of image-intensive worlds (MMOGs). However, today's
visual and corporate-owned virtual worlds are reaching a much wider
audience.
49. See 18 U.S.C. § 1621(1) (2000) (defining as perjury a person
stating under oath "any material matter which he does not believe to
be true").
50. See A.A. Milne, Winnie-the-Pooh (Puffin Books 1992) (1926).
51. See Poster, supra note 20, at 44 ("Thus novels are just as much
virtual realities as computergenerated immersive
environments."). Marie-Laure Ryan has also stated:
[S]uspension of disbelief is the literary-theoretical equivalent
of the [virtual-reality] concept of immersion. It describes the
attitude by which the reader brackets out the knowledge that the
fictional world is the product of language, in order to imagine it
is an autonomous reality populated by solid objects and embodied
individuals.
Ryan, supra note 17, at 89.
52. Written pornography is powerful example of this effect. For some
people, experiencing textual descriptions of sex may serve as a
substitute for the actual experience of sex. See Anne M. Coughlin,
Representing the Forbidden, 90 Calif. L. Rev. 2143, 2145 (2002)
("[O]ur porn scholar aims to produce a work not `of' but `on'
pornography. As philosophers might say, she wants to mention porn, not
create it. If she succeeds, her text will describe it, not do it.");
Dibbell, supra note 19, at 23563 (discussing "tinysex").
53. Dibbell, supra note 19, at 51-53 (discussing cartography and
virtual worlds).
54. See, e.g., Phyllis Meras, "Go, Go, Gandalf," N.Y. Times, Jan. 15,
1967, at
http://www.nytimes.com/books/01/02/11/specials/tolkien-gandalf.html
("The Tolkien Society of America first met in February, 1965, beside
the statue of Alma Mater on the Columbia University campus. Today, it
numbers about 1,000 members."); Philip Norman, The Prevalence of
Hobbits, N.Y. Times, Jan. 15, 1967, at
http://www.nytimes.com/books/01/02/11/specials/tolkien-mag67.html
("[A]t the Berkeley campus bookstore Fred Cody, the manager, said:
`This is more than a campus craze; it's like a drug dream.'").
55. Some obvious examples are in Led Zeppelin, Ramble On, on Led
Zeppelin II (Atlantic 1969) ("Gollum" and "Mordor"); Misty Mountain
Hop, on Led Zeppelin IV (Atlantic 1971) ("Misty Mountains"); and
Battle of Evermore, on Led Zeppelin IV (Atlantic 1971)
("ringwraiths").
56. See Sherry Turkle, Lord of the Hackers, N.Y. Times, Mar. 7, 2002,
at A31.
57. On the history of wargames, see generally Wargames,
http://www.wargamesdirectory.com/html/articles/wargames/default.asp
(last visited Aug. 8, 2003) (providing general information about
various types of wargames). Arguably, wargames can also constitute
virtual worlds. Dibbell, supra note 19, at 52-55. Indeed, it seems no
coincidence that one of history's most famous wargamers was the
fabulist H.G. Wells. See Daniel Mackay, The Fantasy Role-Playing Game
13 (2001).
58. D&D was subtitled Rules for Fantastic Medieval Wargames Campaigns
Playable with Paper and Pencil and Miniature Figures. It was preceded
a few years earlier by a game called Chainmail, which was an
intermediate step from traditional wargaming toward contemporary
role-playing games. See Benjamin E. Sones, Here There Be Dragons,
Computer Games Magazine, Dec. 18, 2001,
http://www.cgonline.com/features/011218-f1-f1.html (last visited
Aug. 5, 2003).
59. After a legal threat from the Tolkien estate, the game modified
the race option of "hobbit" to "halfling," a variant that was actually
also used by Tolkien. See FAQ, Games Domain,
http://www.gamesdomain.com/faqdir/rec.games.frp.dnd-3.txt, at C9 (last
visited Oct. 7, 2003). For an example of Tolkien's usage, see
J.R.R. Tolkien, Lord of the Rings: The Return of the King app. f. 408
(Houghton Mifflin Co. collector's ed. 1987) (1955) ("Hobbit was the
name usually applied by the Shire-folk to all their kind. Men called
them Halflings and the Elves Periannath.").
60. Sones, supra note 58. The use of "avatar" in this sentence is an
intentional misnomer. Gygax and Arneson actually used the term
"character" to describe the player's alter ego. Gary Gygax, Player's
Handbook 9-10 (1978). The term "avatar" is generally used to describe
a player's alter ego in visual virtual worlds. However, instead of
switching terms constantly, we will use the term "avatar" throughout
this Article.
61. See Gygax, supra note 60, at 7.
62. See Sones, supra note 58.
63. Bad press has also plagued the game. D&D players, like computer
programmers and law professors, are generally tagged as geeks--but D&D
players have also been stereotyped as suicidal psychotics and/or
Satanists. Rona Jaffe's novel Mazes and Monsters (1981), for instance,
told the story of a mentally imbalanced D&D player who came to believe
the game was real. It was later adapted as a terribly cheesy film for
television with a young Tom Hanks in the starring role.
64. See Turkle, supra note 56 (noting how Stanford programmers in the
early 1970s designed three elvish fonts for their printers).
65. McGowan & McCullaugh, supra note 9, at 49-52.
66. One could describe ADVENT as a database of textual
descriptions. See Sherry Turkle, Life on the Screen: Identity in the
Age of the Internet 181 (1995) (noting that in MUDs "[a]ll users are
browsing and manipulating the same database"). Insofar as the program
was simply a navigable textual database, it was nothing new. In 1972,
Mike Mayfield, a high-school student in California, had created a
text-based version of the Star Trek galaxy on a University of
California mainframe, and Gregory Yob created Hunt the Wumpus, a
program allowing players to navigate through a series of 20 "rooms" in
pursuit of a mythical beast. Nonetheless, while Mayfield's and Yob's
games were popular among computer programmers, neither provided
players with a particularly interactive or interesting textual
environment. Yob's rooms and Mayfield's star systems allowed for
navigation through spaces that were essentially vacuums. The BASIC
code of Mayfield's Star Trek game can be found at
http://www.classicgaming.com/features/articles/computergaminghistory/sttr1.txt
(last visited July 26, 2003).
67. Dibbell, supra note 19, at 56; Julian Dibbell, A Marketable
Wonder: Spelunking the American Imagination, Topic (Autumn 2002),
http://www.topicmag.com/articles/02/dibbell.html (last visited Aug. 5,
2003).
68. Dibbell, supra note 67; Rick Adams, Colossal Cave Adventure Page,
at
http://www.rickadams.org/adventure/ (last visited Aug. 4,
2003). Adams' website provides several variants of the original game
in a "downloads" section.
69. See Adams, supra note 68.
70. See id.
71. Steven L. Kent, The Ultimate History of Video Games 186-88 (2001).
72. McGowan & McCullaugh, supra note 9, at 53-54.
73. Id.
74. See Infocom Timeline, at
http://www.csd.uwo.ca/Infocom/Articles/timeline.html (last visited
Aug. 8, 2003).
75. Because MUDs, explained infra note 76, operated on
university-based mainframe systems, participants connected to these
environments with terminals consisting of little more than a computer
monitor and a keyboard. These terminals served only to converse with
the mainframe and display the mainframe's output. The same centralized
model is used for MUDs today, even though participants today use
software to allow their sophisticated computers to emulate terminal
connections. See generally Lauren P. Burka, A Hypertext History of
Multi-User Dimensions (1993), at
http://www.apocalypse.org/pub/u/lpb/muddex/essay/ (last visited
Aug. 8, 2003).
76. McGowan & McCullaugh, supra note 9, at 88. The original MUD1
developed by Trubshaw and Bartle has been renamed British Legends, and
is still in operation. MUD1 was an acronym for Multi-User Dungeon 1,
again a nod to D&D. Some MUDers believe the MUD acronym now stands for
"Multi-User Dimension," though apparently this is a euphemistic
variation. Trubshaw, the original MUD1 creator, acknowledged a debt to
an earlier Adventure-type program named "DUNGEN" and to D&D. Dibbell,
supra note 19, at 57-58.
77. Turkle, supra note 66, at 181 ("MUDs are a text-based, social
virtual reality."); Howard Rheingold, The Virtual Community:
Homesteading on the Electronic Frontier 161-64 (rev. ed., MIT Press
2000) (1993) (presenting his visit to the MicroMUSE MUD).
78. Turkle, supra note 66, at 183; Richard A. Bartle, MUD Glorious
Mud, at
http://www.mud.co.uk/richard/gnome.htm (Jan. 31, 1999).
79. Rheingold, supra note 77, at 184 (placing the original IRC in
1988).
80. Id. at 167-68; Bartle, supra note 78.
81. Turkle, supra note 66, at 181; Richard A. Bartle, Adventures on
the Magic Network, at
http://www.mud.co.uk/richard/chfeb85.htm (last
visited Aug. 8, 2003). Bartle has posted a rough map of the original
MUD1 world on his website,
http://www.mud.co.uk/richard/mud1map.gif
(last visited Aug. 8, 2003).
82. Rheingold, supra note 77, at 167 ("In [MUD1 worlds,] beheading
new, inexperienced players as a way of gaining experience points is
frowned on but not outlawed.").
83. Id.; Bartle, supra note 78.
84. Authoritatively describing the taxonomy and nomenclature of MUD
derivatives is a daunting task. The Open Directory's attempt to do so
can be found at
http://dmoz.org/Games/Internet/MUDs/ (last visited
July 26, 2003), and its explanation for its results can be located at
http://dmoz.org/Games/Internet/MUDs/desc.html (last visited July 26,
2003). Lauren Burka is usually cited as a key authority in the area,
but even she seems exasperated by the whole enterprise. See Burka,
supra note 75; see generally Lauren P. Burka, The MUDdex (1993), at
http://www.apocalypse.org/ pub/u/lpb/muddex/ (last visited July 26,
2003).
Generally, the appellation "MOO" stands for "MUD Object-Oriented,"
denoting the programming methodology--object orientation--which was
used to build the MUD. See Leigh Ann Hussey, MOO/MU* Document
Library, at
http://www.hayseed.net/MOO/ (last updated May 4,
2000). Object-oriented programming languages are ideal for building
MUDs, since these languages allow one, for example, to build a
simple prototype room and spawn multiple children-objects from this
ur-room. This greatly reduces the programming task of hand-coding
individual rooms and other objects. See id. (providing several
programming tutorials).
According to most participants, "MUSH" stands for "Multi-User
Shared Hallucination" and is generally reserved for MUD
environments with a strong and enforced role-playing
convention. See, e.g., FAQ, PernMUSH, at
http://www.pern.org/faq.html (last visited Aug. 8, 2003). In
PernMUSH, users play roles from Anne McCaffrey's fantasy books set
on the world of Pern. See id. Users are strongly encouraged to play
within character, and deviations from character--such as using
modern language, swearing, or referring to the real world--are
discouraged to the extent that, in some MUSHes, a failure to
role-play seriously can get a participant booted from the system.
Exactly what "MUCK" stands for is subject to debate: some say it
refers to muck (in other words, something like mud) while others
argue it stands for "Multi-User Consensual Kingdom." For example,
see the results of a Google search on "MUCK stands for" at
http://www.google.com/search?q=%22Muck§tands+for%22 (last visited
Aug. 8, 2003). In any event, MUCKs are generally much like MUSHes
in their emphasis on roleplay, but place more emphasis on achieving
goals.
85. See Reviews--Rest of the World: British Legends, at
http://www.iol.ie/~ecarroll/mud/mr_5a (last visited Aug. 8, 2003).
86. See Burka, supra note 75.
87. Dibbell, supra note 19, at 60; Rheingold, supra note 77, at
167-68.
88. Turkle, supra note 66, at 181 ("[In] social MUDs, the point is to
interact with other players.").
89. Id. at 11, 181 (classifying all of these as MUDs); Dibbell, supra
note 19, at 58 (identifying various MUD themes).
90. We say this only to the extent we are comfortable describing
California as "the real world."
91. See Welcome to LambdaMOO!, at
telnet://lambda.moo.mud.org:8888/
(last visited July 26, 2003).
92. Julian Dibbell's book My Tiny Life, supra note 19, is generally
recognized as the authoritative treatment of LambdaMOO. Interesting
discussions of LambdaMOO can also be found in Turkle, supra note 66,
at 182-83, 210-12, 242.
93. LambdaMOO is a MOO-variety of MUD.
94. Welcome to LambdaMOO!, supra note 91.
95. Rheingold, supra note 77, at 153-54; Dibbell, supra note 19, at
15. The ability to program requires being granted programming
privileges, known as a "progbit," by the wizards. These are handed out
freely on request.
96. Dibbell, supra note 19, at 39-41. The living room's basic
description reads:
It was very bright, open, and airy there, with large plate-glass
windows looking southward over the pool to the gardens
beyond. On the north wall, there was a rough stonework
fireplace. The east and west walls were almost completely
covered with large, well-stocked bookcases. An exit in the
northwest corner led to the kitchen and, in a more northerly
direction, to the entrance hall. The door into the coat closet
was at the north end of the east wall, and at the south end was
a sliding glass door leading out onto a wooden deck. There were
two sets of couches, one clustered around the fireplace and one
with a view out the windows.
Id. Of course, it has much to offer beyond that initial
description. For an excellent account of the history and features of
the various rooms in LamdbaMOO, see Elizabeth Hess, Yib's Guide to
MOOing: Getting the Most from Virtual Communities on the Internet
ch. 7 (2003),
http://www.yibco.com/ygm/ygmpdf/Chapter7.pdf.
97. Dibbell, supra note 19, at 84; Hess, supra note 96, at 26-27, 147.
98. Oliver Grau, Virtual Art: From Illusion to Immersion 5 (Gloria
Custance trans., rev. and exp. ed. 2003).
99. Id. at 25.
100. See, e.g., Jennifer L. Mnookin, The Image of Truth: Photographic
Evidence and the Power of Analogy, 10 Yale J.L. & Human. 1 (1998).
101. See Kathleen Connolly Butler, Keeping the World Safe from
Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art
Images in the Public Domain Through Copyrights in Photographic and
Digital Reproductions, 21 Hastings Comm. & Ent. L.J. 55, 58 (1998)
(noting point in passing); Conspiracy Theory: Did We Land on the Moon?
(Fox television broadcast, Feb. 15, 2001) (casting doubt on the
reality of the Apollo moon landings).
102. Franklin v. State, 69 Ga. 36, 43 (1882). Of course, this decision
was issued in a time before photographs of UFOs and Sasquatch were
commonplace. As courts have learned, photographic images, like all
other representations, are subject to creative manipulation. See
Mnookin, supra note 100. "Augmented" reality is a standard feature in
sporting events: in football games, a yellow first-down line appears
on viewers' screens but is invisible to players; in hockey games, the
puck may leave a trail of virtual light. See Introduction to Augmented
Reality, at
http://www.se.rit.edu/~jrv/research/ar/ introduction.html
(last modified Aug. 22, 2002).
103. Ovid, 10 Metamorphoses 327 (Samuel Garth trans., Heritage Press
1961) ("He kisses her white Lips, renews the Bliss, / And looks and
thinks they redden at the Kiss.").
104. Castronova, supra note 8, at 7-9.
105. Nintendo of Am. Inc. v. Magnavox Co., 707 F. Supp. 717, 734-35
(S.D.N.Y. 1989) (recounting the invention of Spacewar!); Kent, supra
note 71, at 17-20; D.J. Edwards & J.M. Graetz, PDP-1 Plays at
Spacewar, 1 Decuscope 2 (April 1962), at
http://www.wheels.org/spacewar/ decuscope.html (last visited July 26,
2003). A faithful rendition of the original Spacewar!, compatible with
most Web browsers, can now be found online at
http://lcs.www.media.mit.edu/groups/el/projects/ spacewar/ (last
visited Aug. 8, 2003).
106. Edwards & Graetz, supra note 105, at 2-4.
107. Nintendo, 707 F. Supp. at 730-35; Kent, supra note 71, at 17-20;
McGowan & McCullaugh, supra note 9, at 6.
108. Kent, supra note 71, at 30-35.
109. Id. at 28-43.
110. Id.
111. Users did, however, experience a moment of bafflement at
encountering what was likely their first virtual world:
They watched dumbfoundedly as the ball appeared alternately on one
side of the screen and then disappeared on the other. Each time it
did the score changed. The score was tied at 3-3 when one player
tried the knob controlling the paddle at his end of the
screen. The score was 5-4, his favor, when his paddle made contact
with the ball. There was a beautifully resonant "pong" sound, and
the ball bounced back to the other side of the screen.
Scott Cohen, ZAP!: The Rise and Fall of Atari 29 (1984); see also
Welcome to PONG--Story!, at
http://www.pong-story.com (last visited
Aug. 8, 2003). As the quoted passage notes, the element of sound
plays a key role in the illusion of virtual worlds, and we have
given the auditory element somewhat short shrift by emphasizing the
visual. This is in part due to the difficulty of locating reliable
documentary evidence of the auditory aspects of virtual worlds.
112. Kent, supra note 71, at 43-48. It should be noted, however, that
in 1967, an inventor named Ralph Baer had invented a game remarkably
similar to Pong, which he had patented. Magnavox, the company that
held Baer's patents, sued Atari. The litigation was quickly settled
and Atari paid Magnavox for an exclusive license. Id.
113. Nintendo of Am. Inc. v. Magnavox Co., 707 F. Supp. 717, 722
(S.D.N.Y. 1989).
114. See David Kushner, Masters of Doom 68 (2003); Warren Robinett's
Home Page, at
http://www.warrenrobinett.com (last visited Aug. 9,
2003). An abbreviated version of the game can be played at Atari
Adventure, at
http://www.scottpehnke.com/programming/flash.htm (last
visited July 26, 2003). Robinett's Adventure also introduced the first
video game "Easter egg," now a familiar feature of most games and
other software. An Easter egg is a hidden aspect of a program that
produces a hidden presentation--for instance, one version of Microsoft
Excel contained a racing game within its program. See Excel Oddities,
at
http://www.j-walk.com/ss/excel/odd/odd01.htm (last visited Aug. 9,
2003).
115. Patricia Marks Greenfield, Mind and Media 97-125 (1984); Kushner,
supra note 114, at 20 (describing Battle Zone).
116. See Williams Elecs., Inc. v. Artic Int'l, Inc., 685 F.2d 870, 872
(3d Cir. 1982) (discussing Defender). A "first-person" game provides
the player with a three-dimensional perspective view through the eyes
of the avatar. A "scroller" game, such as Defender, presents an
external view of the avatar as it proceeds (usually horizontally)
across the environment. An "isometric scroller" game, such as Ultima
Online, presents the viewer with a three-dimensional external
view. The Sims Online is an isometric scroller. EverQuest supports
multiple views but is generally played in first person.
117. McGowan & McCullaugh, supra note 9, at 58, 86-87.
118. Id.
119. Chip Morningstar & F. Randall Farmer, The Lessons of Lucasfilm's
Habitat, in Cyberspace: First Steps (Michael Benedikt ed., 1991),
available at
http://www.fudco.com/chip/ lessons.html (last visited
Aug. 9, 2003). Habitat lacked most of the features we expect of games,
such as a goal and puzzles. It was much more like a social MUD in
which the interactivity among avatars was a goal in itself. Id.
120. Habitat also ran on the soon-defunct Quantum Link network, which
was terminated in 1994, shortly after the demise of the
Commodore. Rheingold, supra note 77, at 194-200.
121. Morningstar & Farmer, supra note 119, at 189.
122. Id. at 190-92.
123. Id. at 192.
124. See Virtual Reality: Multi-User Systems, Open Directory Project,
at
http://dmoz.org/ Computers/Virtual_Reality/Multi-User_Systems/
(last visited Aug. 9, 2003) (listing various virtual- world
platforms). Of the many virtual worlds, however, only a few are
successful. For instance, Active Worlds is a social virtual world that
can be entered (as a tourist) for free, yet despite this, the authors
have usually noted only a few hundred avatars participating. See
Overview of Activeworlds, at
http://www.activeworlds.com/overview.asp
(last visited July 26, 2003).
125. Hunter & Lastowka, supra note 41, at 22.
126. See Jin David Kim, Lucrative Lessons from Online-Game Players,
Int'l Herald Trib., Mar. 12, 2003, at Finance 23, available at
http://www.iht.com/articles/89432.html (last visited Aug. 9, 2003).
127. The choice of a particular shard, like the choice of a town in
The Sims Online, is a significant decision. Only players on the same
shard share the same specific virtual world. Real-life friends will be
unable to arrange meetings of their avatars unless they are on the
same shards. Certain shards encourage role-playing, which means that
users are essentially supposed to make their best attempts at typing
in medieval English. Other shards are indifferent to this, and cries
of "1337," "d00d," and "!0wnj00" are commonplace. See discussion infra
note 128. Some shards allow avatars to kill one another; others
don't. Predictably, some virtual worlds have located revenue streams
in charging players to move their avatars from one shard to
another. See, e.g., Ultima Online Update Center, at
http://update.uo.com/design_479.html (last visited Oct. 10, 2003).
128. Many avatars speak in leetspeak (a.k.a. "1337sp34k," "133+5pe4k,"
and so forth) and other chat room conventions that will mystify those
not fluent. See Kris Axtman, `r u online?': the evolving lexicon of
wired teens, Christian Sci. Monitor, Dec. 12, 2002, at 01. For
instance, "brb afk" means "I'll be right back; I'm going away from my
keyboard." For those more comfortable with 1337 than English, Google
actually offers a leetspeak hacker ("h4x0r") language version of its
search engine. See
http://www.google.com/intl/xx-hacker/ (last visited
Aug. 8, 2003).
129. Collectively, these creatures are also called "mobs," an
abbreviation of "mobile object" that originated in MUDs. See Posting
of Michelle Thompson, m.a.thompson@mindspring.com, to mud-
dev@kanga.nu (Feb. 23, 2000), at
http://www.kanga.nu/archives/MUD-Dev-L/2000Q1/msg00472.php (last
visited Aug. 5, 2003).
130. See Nicholas Yee, Befriending Ogres and Wood-Elves: Understanding
Relationship Formation in MMORPGs 4 (2002), at
http://www.nickyee.com/hub/relationships/home.html (last visited
Aug. 9, 2003) (quoting one EverQuest player as stating, "We have spent
some nights in dungeons waiting for people or spawns chatting about
our lives, what we want to do, and so on."); Ann-Sofie Axelsson & Tim
Regan, How Belonging to an Online Group Affects Social Behavior--A
Case Study of Asheron's Call (Microsoft Research Technical Report
No. MSR-TR-2002-07 2002), at
http://research.microsoft.com/research/pubs/view.aspx?msr_tr_id=MSR-TR-2002-07
(last visited Aug. 9, 2003).
131. More than a thousand links to various EverQuest guilds can be
found at Allahkhazam's Magic Realm, a well known source of EverQuest
information. See
http://links.allakhazam.com/ Everquest/Guilds/ (last
visited Aug. 1, 2003).
132. See Daniel C. Miller, Note, Determining Ownership in Virtual
Worlds: Copyright and License Agreements, 22 Rev. Litig. 435, 436
(2003) (introducing the article with a description of a virtual
marriage). While there are certainly married couples who met first in
the world of Norrath, the more common situation is complaints from
"EverQuest widows" who say the game has destroyed realworld
marriages. See Julia Scheeres, The Quest to End Game Addiction, Wired
News, Dec. 5, 2001, at
http://www.wired.com/news/holidays/0,1882,48479,00.html (last visited
Aug. 9, 2003). One Yahoo! community named "EverQuest Widows" has more
than 3,000 members and 10,000 angry posted messages. See EverQuest
Widows, at
http://groups.yahoo.com/group/EverQuest-Widows/ (last
visited July 26, 2003).
133. Of course, one can also simply buy this prominent virtual status
on eBay. See infra Part II.
134. See, e.g., Herold, supra note 11, at G5 ("When I met
Platinumkitty, she asked me to make her my friend. One can declare
someone as a friend, and while Platinumkitty said she was not sure
what benefit friendship might confer, she was still trying to make as
many as possible for the sake of prestige.").
135. Id. ("I played The Sims Online in much the same way that I behave
in real life: hanging out, practicing the guitar and skating by.").
136. What Is There?, There.com, at
http://www.prod.there.com/what_is_there.html (last visited Aug. 9,
2003).
137. Robin J. Moody, Nike Explores Virtual Brand Placement with
There.com, Bus. J. Portland, Jan. 17, 2003, at
http://portland.bizjournals.com/portland/stories/2003/01/20/story3.html
(last visited Aug. 9, 2003).
138. Chris Gaither, Battle for the Sexes, Boston Globe, Jan. 13, 2003,
at C1. The full text of the article may be found at
http://www.there.com/bostonglobe.html (last visited Oct. 7, 2003).
139. See Dibbell, supra note 13.
140. 2 William Blackstone, Commentaries *2.
141. See Jessica Mulligan, Biting The Hand #21: Pre-GDC Rants and
Scandals, Skotos, Mar. 19, 2002, at
http://www.skotos.net/articles/BTH_21.shtml (last visited Aug. 9,
2003).
142. See Castronova, supra note 12, at 31.
143. See Planet Modz Gaming Network, at
http://www.planetmodz.com/index.php/sites/s (last visited Oct. 8,
2003).
144. See A.M. Honoré, Ownership, in Oxford Essays in Jurisprudence
107, 108-10 (A.G. Guest ed., 1961) (defining liberal view of
ownership as the right to use, exclude, and transfer, and noting that
some rights, such as rights to possess or manage, can be subsumed
within these categories). See also Jeremy Waldron, The Right to
Private Property 49-50 (1988) (agreeing with Honoré, with minor
qualifications).
145. Will Wright, lead designer of The Sims Online, decided that
building lawn gnomes should be one way for avatars in The Sims Online
to make money. See generally The Sims Online, at
http://www.eagames.com/official/thesimsonline/home/index.jsp (last
visited Aug. 9, 2003).
146. Carol M. Rose, The Several Futures of Property: Of Cyberspace and
Folk Tales, Emission Trades and Ecosystems, 83 Minn. L. Rev. 129
(1998). Dagan and Heller term this a "liberal commons property"
regime. See Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110
Yale L.J. 549, 616 (2001).
147. Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315,
1394-95 (1993).
148. See Prince, 1999, on 1999 (Warner Bros. 1982).
149. It also contrasts with the application of such concepts in the
real world, where there are clear distinctions between common, public,
private, and regulatory property. See Bruce Yandle & Andrew P.
Morriss, The Technologies of Property Rights: Choice Among Alternative
Solutions to Tragedies of the Commons, 28 Ecology L.Q. 123 (2001).
150. Jeremy Conrad, EverQuest: Planes of Power Review, Internet Games
Network, at
http://pc.ign.com/articles/376/376138p1.html (Nov. 1,
2002).
151. See Jere Lindell, Tutorial to New Players of ULTIMA ONLINE
v. 1.3, at
http://cheathappens.com/text/uonlinefaq.zip.txt (last
updated Nov. 21, 2001).
152. See Frequently Asked Questions, There.com, at
http://www.there.com/faq.html (last visited July 26, 2003).
153. Fish steaks, for example, are one of the staple food groups on
Ultima Online.
154. See Molly Stephens, Note, Sales of In-Game Assets: An
Illustration of the Continuing Failure of Intellectual Property Law to
Protect Digital-Content Creators, 80 Tex. L. Rev. 1513, 1515 (2002).
155. See id.
156. See Dibbell, supra note 13. These virtual markets change
regularly, and by the time one is identified in print it is probably
out of date. Letters to the editor in a subsequent edition of Wired
excoriated Dibbell for identifying Greater Faydark as a trade center,
since, of course, the best markets were to be found in Nexus on
Norrath's moon, Luclin, and in the Bazaar. See Dave Brogden, Lessons
in Geekonomics, Wired, March 2003, at 26.
157. Other virtual worlds have specific norms/laws regulating corpse
looting. For example, LegendMUD, a text-based virtual world set in
three different eras, only allows looting among characters in
clans. See What Is Considered Cheating, LegendMUD, at
http://www.legendmud.org/ firstpagecontents.html (last visited July
26, 2003) (link on "Helpful Indices," then "Guide for New Players,"
then "What is Considered Cheating") ("Looting player corpses is also
considered against the rules, UNLESS you and the player whose corpse
you are looting are BOTH clanned. In the case of clanned characters
stealing from clanned players' corpses, the `legality' of it is up to
the clans involved.").
158. Harold Demsetz, Toward a Theory of Property Rights, 57
Amer. Econ. Rev. 347 (1967).
159. See Castronova, supra note 12, at 14-17.
160. T.L. Taylor, `Whose Game Is This Anyway?': Negotiating Corporate
Ownership in a Virtual World, in Computer Games and Digital
Cultures--Conference Proceedings 222 (Frans Mäyrä ed., 2002).
161. This may be a U.S.-specific cultural observation. Serfdom is, to
some extent, the model for one of the most successful virtual worlds
today, Lineage's Aden. In this predominately South Korean virtual
world, avatars are divided into castes of leaders and their
followers. Once one chooses to be a follower, one can never be a
leader. Adopting a permanent subservient role within a virtual world
is apparently acceptable to South Koreans, whereas in Western worlds,
designers assume that every avatar aspires to be king. See J.C. Herz,
The Bandwidth Capital of the World, Wired, Aug. 2002,
http://www.wired.com/wired/archive/10.08/korea_pr.html (last visited
Aug. 9, 2003).
162. This and other aspects of daily life in Blazing Falls are drawn
from the authors' own experiences playing The Sims Online.
163. See, e.g., 8th Deadly Sim, at
http://www.8thdeadlysim.com/ (last
visited Aug. 9, 2003) (including adult content such as skins of porn
stars); FileShack, at
http://www.fileshack.com/ browse.x?cata3 (last
visited Aug. 9, 2003) (including skins of real-world people such as
Britney Spears, Bruce Lee, and Christina Aguilera).
164. Chris Trottier, lead designer for The Sims Online, anticipated
this development. See MMORPG.net Interview With Chris Trottier, MMORPG
Network, at
http://mmorpg.net/article.php?a= 1004&p=2 (last visited
July 26, 2003) (explaining that user-created content is not in the
first alpha of TSO, but "[o]nce we get support for this, these will be
available for in-game shop owners to buy wholesale and price for the
secondary consumer").
165. See infra Part II.B.
166. See Hess, supra note 96, at 67 (noting that various features of
LambdaMOO's objects are owned in common).
167. See JargonFile, at
http://www.jargon.net/jargonfile/b/bonkoif.html (last visited Aug. 9,
2003); Hess, supra note 96, at 146.
168. Even building a functioning market in valuable property, like
diskspace quota, was initially beyond the governance structures of
LambdaMOO. See Dibbell, supra note 19, at 163, 167-69.
169. The case was Margeaux v. Yib. See Philip Giordano, Invoking Law
as a Basis for Identity in Cyberspace, 1998 Stan. Tech. L. Rev. 1, ¶
64, n.169 (1998). See also Mnookin, supra note 40.
170. See Mnookin, supra note 40; see also Dibbell, supra note 19, at
163-67 (discussing diskspace quotas and the governance mechanism
introduced to deal with this).
171. Dibbell, supra note 19, at 163-69.
172. See Lawrence Lessig, Code and Other Laws of Cyberspace 9-13
(1999).
173. Id. at 12-13.
174. For a discussion of the use of this "just a game" device, see
Elizabeth M. Reid, Text-Based Virtual Realities: Identity and the
Cyborg Body, in High Noon on the Electronic Frontier: Conceptual
Issues in Cyberspace 327 (Peter Ludlow ed., 1996) [hereinafter Reid,
Cyborg Body]. Much the same issue emerged during the notorious "rape
in cyberspace." See Dibbell, supra note 19, at 11-30. For similar
events occurring in JennyMUSH, a different MUD, see Elizabeth Reid,
Hierarchy and Power--Social Control in Cyberspace, in Communities in
Cyberspace 107, 115-16 (Marc A. Smith & Peter Kollock eds., 1999). For
a discussion of the psychology of human rights in virtual worlds, see
infra Part III.
175. See generally Richard Thaler, Towards a Positive Theory of
Consumer Choice, 1 J. Econ. Behav. & Org. 39 (1980) (describing the
endowment effect and role in consumer choice).
176. For a comprehensive review of the Cornell study and other
experiments confirming the endowment effect, see Daniel Kahneman, Jack
L. Knetsch & Richard H. Thaler, Experimental Tests of the Endowment
Effect and the Coase Theorem, 98 J. Pol. Econ. 1325 (1990).
177. Id.
178. Both authors wish to note their indebtedness to their children
for this observation. See also Richard Pipes, Property and Freedom
65-86 (1999) (recounting the possessiveness trait in animals,
children, and hunter-gatherer societies).
179. See infra Part II.C.1.
180. Two student notes have investigated this question. Molly Stephens
argues that avatar owners are currently the legal owners of their
virtual assets, but that current intellectual property law fails to
protect them adequately. See Stephens, supra note 154, at 1513-14
(concluding that, because of the limitations of intellectual property
law, "creators of digital content must turn to contractual or
technological measures to protect their intellectual
property"). Daniel Miller is more equivocal. He investigates the
application of various aspects of copyright law to the question of
ownership and speculates about whether the existence of end-user
license agreements might make the debate moot. See Miller, supra note
132.
181. See Stephens, supra note 154, at 1516; Mulligan, supra note 141.
182. See Dibbell, supra note 13, at 110.
180. Two student notes have investigated this question. Molly Stephens
argues that avatar owners are currently the legal owners of their
virtual assets, but that current intellectual property law fails to
protect them adequately. See Stephens, supra note 154, at 1513-14
(concluding that, because of the limitations of intellectual property
law, "creators of digital content must turn to contractual or
technological measures to protect their intellectual
property"). Daniel Miller is more equivocal. He investigates the
application of various aspects of copyright law to the question of
ownership and speculates about whether the existence of end-user
license agreements might make the debate moot. See Miller, supra note
132.
181. See Stephens, supra note 154, at 1516; Mulligan, supra note 141.
182. See Dibbell, supra note 13, at 110.
190. Castronova, supra note 12.
191. Id. at 33.
192. Id.
193. Id.
194. Dibbell, supra note 13, at 108-11.
195. Id.
196. See Julian Dibbell, Audio Lecture on Virtual World Economies,
Stanford Law School, at
http://cyberlaw.stanford.edu/events/archives/cis_fellow_julian_dibbell.shtml
(last visited Aug. 9, 2003).
197. Dibbell, supra note 13, at 110.
198. Id.
199. Id.; see also Press Release, Blacksnow Interactive Sues Mythic
(DAOC) in Federal Court for MMORPG Player's Rights, at
http://www.kanga.nu/archives/MUD-Dev-L/2002Q1/msg00362.php (last
visited Aug. 9, 2003).
200. Id.
201. See Dibbell, supra note 13, at 110. See also Dibbell, supra note
196.
202. See Stephens, supra note 154, at 1518 ("For example, multiple
players may possess an iron sword. Only one copy of the software code
that defines the appearance of an iron sword exists in the server
memory, and the location of that code in the memory has an address
. . . . When a player loses an iron sword, the server program simply
deletes its address from the list of assets associated with that
player's character . . . .").
203. Database wipes are common during the beta phase of the
development of any virtual world.
204. See William B. Scott, In Pursuit of Happiness: American
Conceptions of Property from the Seventeenth to the Twentieth Century
(1977).
205. Nominal rents, especially during the feudal era, were often
characterized as a "peppercorn rent," a peppercorn being the
smallest-value item that one could transfer. See Black's Law
Dictionary 1022 (5th ed. 1968).
206. See, e.g., Robert K. Hur, Takings, Trade Secrets, and Tobacco:
Mountain or Molehill, 53 Stan. L. Rev. 447, 469-70 (2000).
207. By the way, it's nutmeg. See Google search for "coke, nutmeg,
secret," at
http://www.google. com/search?q=coke+nutmeg§ecret (last
visited Aug. 5, 2003).
208. Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 289
(D. Del. 1985) ("The complete formula for Coca-Cola is one of the
best-kept trade secrets in the world.").
209. See, e.g., Lorin Brennan, Financing Intellectual Property Under
Revised Article 9: National and International Conflicts, 23 Hastings
Comm. & Ent. L.J. 313 (2001) (examining the financial instruments
possible by using intellectual property as an underlying asset).
210. See, e.g., Nicole Chu, Note, Bowie Bonds: A Key to Unlocking the
Wealth of Intellectual Property, 21 Hastings Comm. & Ent. L.J. 469
(1999) (discussing David Bowie's time-delimited securitization of his
back catalogue).
211. Novel divisions of property are constantly being created. The GNU
General Public License allows for open source development of code,
while reserving copyright to the creator. See GNU General Public
License, at
http://www.gnu.org/copyleft/gpl.html (last visited Aug. 9,
2003). Creative Commons is popularizing forms of "open source"
licenses for non-software products, which reserve a minimal number of
rights to the author and allow broader public access. See Licenses
Explained, Creative Commons, at
http://creativecommons.org/learn/licenses/ (last visited Aug. 9,
2003).
212. Jessica Litman, Information Privacy/Information Property, 52
Stan. L. Rev 1283, 1293-94 (2000).
213. See, e.g., Seale v. Gramercy Pictures, 964 F. Supp. 918, 929-31
(E.D. Pa. 1997) (dismissing Bobby Seale's right of publicity claims
stemming from an unauthorized television depiction).
214. Litman, supra note 212, at 1293-94. See also William J. Murphy,
Proposal for a Centralized and Integrated Registry for Security
Interests in Intellectual Property, 41 Idea 297 (2002) (discussing the
different securities possible with intellectual property).
215. See, e.g., Alan F. Westin, Privacy and Freedom 324-25 (1967)
(suggesting that we might protect information privacy by using
property protection with tort liability); Jerry Kang, Information
Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193, 1246-94
(1998) (arguing for information privacy as a commodity subject to
default rules); Pamela Samuelson, A New Kind of Privacy? Regulating
Uses of Personal Data in the Global Information Economy, 87
Calif. L. Rev. 751, 769-73 (1999) (noting benefits of a market in
personal information); Developments in the Law: The Law of Cyberspace,
112 Harv. L. Rev. 1574, 1644-48 (1999) (arguing for property in
personal information through code, not law). But see Litman, supra
note 212, at 1290-1302 (arguing against propertizing information as
inimical to constitutional protections and incapable of providing the
modern data privacy protections aimed for); Ellen Alderman & Caroline
Kennedy, The Right to Privacy 329 (1995) (arguing that personal
information ownership is inconsistent with the First Amendment).
216. J.H. Reichman & Jonathan A. Franklin, Privately Legislated
Intellectual Property Rights: Reconciling Freedom of Contract with
Public Good Uses of Information, 147 U. Pa. L. Rev. 875 (1999).
217. See Margaret Jane Radin, Cloning and Commodification, 53 Hastings
L.J. 1123, 1124 (2002) (noting how biological entities have now become
propertized); see generally Margaret Jane Radin, Contested Commodities
(1996).
218. See generally James Boyle, Shamans, Software and Spleens: Law and
the Construction of the Information Society (1996).
219. As noted earlier, another commentator has concluded that rights
in avatar properties do exist, and that the current problem is that
they are possessed by avatars. See Stephens, supra note 154.
220. Axelsson & Regan, supra note 130; Nick Yee, The Norrathian
Scrolls: A Study of Everquest (Version 2.5 2001), at 12, at
http://www.nickyee.com/report.pdf (last visited Aug. 9, 2003).
221. Ellickson, supra note 147, at 1372-73.
222. Id. at 1367-68.
223. Id.
224. U.S. Const. art. I, § 8, cl. 8. ("The Congress shall have Power
. . . [t]o promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries"). Recent concerns
over copyright term extensions go to the question of the
constitutional limitations generated by the phrase "for limited
Times." See, e.g., Kevin D. Galbraith, Forever on the Installment
Plan? An Examination of the Constitutional History of the Copyright
Clause and Whether the Copyright Term Extension Act of 1988 Squares
with the Founders' Intent, 12 Fordham Intell. Prop. Media &
Ent. L.J. 1119 (2002); Lawrence B. Solum, Congress's Power to Promote
the Progress of Science: Eldred v. Ashcroft, 35 Loy. L.A. L. Rev. 1
(2002).
225. Jeremy Bentham, An Introduction to the Principles of Morals and
Legislation 12-13 (J.H. Burns & H.L.A. Hart eds., Athlone Press 1970)
(1789).
226. Id. at 38-41.
227. Id. at 12-13.
228. See, e.g., Richard A. Posner, Frontiers of Legal Theory 95-141
(2001).
229. See generally Louis Kaplow & Steven Shavell, Fairness Versus
Welfare (2002) (arguing that public policy and the social weal will be
best served by a welfarist view of justice, rather than deontological
alternatives).
230. See Posner, supra note 228, at 95-141.
231. Garrett Hardin is usually credited with the "discovery" of the
tragedy. See Garrett Hardin, The Tragedy of the Commons, 162
Sci. 1243, 1244-45 (1968) (demonstrating that a common resource will
be prone to overuse because the value of the property will be sought
by all and no one has a right to preclude others' use). However, Scott
Gordon and Anthony Scott had independently made the observation a
decade earlier but lacked Hardin's remarkable turn of phrase. See
H. Scott Gordon, The Economic Theory of a Common-Property Resource:
The Fishery, 62 J. Pol. Econ. 124, 134 (1954) (using fishery as an
example of the tragedy of the commons phenomenon); Anthony Scott, The
Fishery: The Objectives of Sole Ownership, 63 J. Pol. Econ. 116-24
(1955) (exploring the same phenomenon).
232. U.S. Const. art. I, § 8, cl. 8.
233. See Linda R. Cohen & Roger G. Noll, Intellectual Property,
Antitrust and the New Economy, 62 U. Pitt. L. Rev. 453, 461 (2001)
(noting the relationship between the aims of the clause and
utilitarianism).
234. See Mark A. Lemley, The Modern Lanham Act and the Death of Common
Sense, 108 Yale L.J. 1687, 1688-89 (1999) (arguing that current
trademark rights are greater than is justifiable from an economic
point of view).
235. See William M. Landes & Richard A. Posner, Trademark Law: An
Economic Perspective, 30 J.L. & Econ. 265, 265-66 (1987) (arguing that
grants of trademark rights are economically appropriate and
efficient).
236. See, e.g., New York Times Co. v. Tasini, 533 U.S. 483, 495
(2001); Mazer v. Stein, 347 U.S. 201, 219 (1954).
237. Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324
U.S. 806, 816 (1945).
238. See Castronova, supra note 12, at 10 ("If we take the economist's
view . . . and see [the users'] behavior as rational choice, we must
conclude that VWs offer something that is perhaps a bit more than
entertainment to which the players have become addicted.").
239. See John R. Allison et al., Valuable Patents (U.C. Berkeley
Public Law Research Paper No. 133, 2003), at
http://papers.ssrn.com/sol3/papers.cfm?abstract_idB6020 (last
visited Aug. 9, 2003). Mark A. Lemley, Rational Ignorance at the
Patent Office, 95 Nw. U. L. Rev. 1495, 1501 (2001).
240. See infra Part II.E.
241. John Locke, Treatise of Civil Government and A Letter Concerning
Toleration 32 (Charles L. Sherman ed., D. Appleton-Century Co. 1979)
(1689).
242. Kremen v. Cohen, No. 01-15899 (9th Cir. July 25, 2003); Anaupam
Chander, The New, New Property, 81 Tex. L. Rev. 715 (2003).
243. For just one of dozens of examples, see Paul Goldstein,
Copyright's Highway: From Gutenberg to the Celestial Jukebox 11 (1994)
("Bubbling beneath all [intellectual property] . . . is the intuition
that people should be able to hold on to the value of what they
create, to reap where they have sown.").
244. John Locke, Second Treatise of Government § 27, at 17 (Thomas
P. Peardon ed., 1952) (1690).
245. See Stephen R. Munzer, A Theory of Property (1990) (explaining
Locke in terms of desert from labor); Margaret Jane Radin,
Reinterpreting Property 105-06 (1993) (calling this theory the
"Lockean labor-desert theory").
246. In fact, the virtual work performed by users may closely mirror
their real-world occupations. Take this account of one user's virtual
toils:
Stolle had had to come up with the money for the deed. To get the
money, he had to sell his old house. To get that house in the
first place, he had to spend hours crafting virtual swords and
plate mail to sell to a steady clientele of about three dozen
fellow players. To attract and keep that clientele, he had to
bring [his avatar's] blacksmithing skills up to Grandmaster. To
reach that level, Stolle spent six months doing nothing but
smithing: He clicked on hillsides to mine ore, headed to a forge
to click the ore into ingots, clicked again to turn the ingots
into weapons and armor, and then headed back to the hills to start
all over again, each time raising [his avatar's] skill level some
tiny fraction of a percentage point . . . . Take a moment now to
pause, step back, and consider just what was going on here: Every
day, month after month, a man was coming home from a full day of
bone-jarringly repetitive work with hammer and nails to put in a
full night of finger-numbingly repetitive work with "hammer" and
"anvil"--and paying $9.95 per month for the privilege. Ask Stolle
to make sense of this, and he has a ready answer: "Well, it's not
work if you enjoy it."
Dibbell, supra note 13, at 110.
247. Robert Nozick, Anarchy, State, and Utopia 175 (1974).
248. Given the amount of bloodshed involved in competitive worlds,
this is perhaps a more apposite metaphor than even Nozick might have
imagined.
249. Locke, supra note 241, at 28.
250. John Locke, A Letter Concerning Toleration, in Great Books of the
Western World 1, 32 (Robert Maynard Hutchins ed., 1952). See also
Wendy J. Gordon, A Property Right in Self- Expression: Equality and
Individualism in the Natural Law of Intellectual Property, 102 Yale
L.J. 1533, 1565-66 (1993).
251. We are not suggesting that any particular party should be granted
ownership of virtual property, but simply noting that, in itself, the
creation of a property right in virtual objects does not infringe on
the ability of others to possess virtual objects.
252. Thomas C. Grey, The Disintegration of Property, in 22 Nomos 69,
74 (J. Roland Pennock & John W. Chapman eds., 1980).
253. See Georg Wilhelm Friedrich Hegel, Hegel's Philosophy of Right
(T.M. Knox trans., 1967) (1821).
254. See, e.g., Margaret Jane Radin, Property and Personhood, 34
Stan. L. Rev. 957 (1982); Waldron, supra note 144, at 343-89.
255. Indeed, the theory can be used to advance a normative argument
not only for the existence of property but also for the distribution
of property. See Waldron, supra note 144, at 343, 370-89.
256. The application of the personality theory to nonmeaningful,
fungible objects is unnecessary to consider here. In essence these
objects must be tied to some other personal right for the property
right to be justified. See id. at 295-310. The simplified special case
discussed here is sufficient for our purposes.
257. See infra Part III.C.
258. See id.
259. Castronova, supra note 12, at 22-24. See also infra Part III.C
(discussing the nature of the cyborg).
260. See, e.g., Ren Reynolds, Abstract, IPR, Ownership and Freedom in
Virtual Worlds, at
http://www.ren-reynolds.com/downloads/RReynolds-IPR-CRIC-2003.doc
(last visited Aug. 2, 2003) (arguing that the identification between
avatars and their users justifies a Kantian exclusion to Lockean
property theory).
261. See, e.g., Robert S. Boynton, Sounding Off, Wash. Post, Jan. 20,
2002, at Book World.
262. See Richard A. Posner, Economic Analysis of Law § 5.4, at 139-43
(3d ed. 1986); Elisabeth M. Landes & Richard A. Posner, The Economics
of the Baby Shortage, 7 J. Legal Stud. 323 (1978); Richard A. Posner,
The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59 (1987).
263. We do acknowledge that, from the standpoint of an expressive
theory of legal property, one might hesitate and consider the social
signaling function of expanding the notion of property. See Jane
B. Barron, The Expressive Transparency of Property, 102
Colum. L. Rev. 208 (2002). The expressive function of virtual
property, however, is beyond the scope of our paper.
264. Mulligan, supra note 141.
265. See eBay Listings, Internet Games, supra note 13.
266. Castronova, supra note 12, at 3.
267. Mnookin, supra note 40 (discussing the LambdaMOO petition
system).
268. See Miller, supra note 132, at 469-70; Stephens, supra note 154,
at 1534.
269. See Miller, supra note 132, at 469-70.
270. See, e.g., Specht v. Netscape Communications Corp., 150
F. Supp. 2d 585, 595 (S.D.N.Y. 2001).
271. So far, most courts have been skeptical of such arguments. See
DeJohn v. The .TV Corp. Int'l, 245 F. Supp. 2d 913 (C.D. Ill. 2003);
Forrest v. Verizon Communications, Inc., 805 A.2d 1007 (D.C. 2002);
I.Lan Sys. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328
(D. Mass. 2002).
272. Raph Koster, A Declaration of the Rights of Avatars, at
http://www.legendmud.org/ raph/gaming/playerrights.html (last visited
Aug. 9, 2003) [hereinafter Koster, Declaration]. The Declaration was
initially posted on a discussion list for game designers and sparked a
heated debate. See Posting of Raph Koster, rkoster@austin.rr.com, to
mud-dev@kanga.nu (Apr. 16, 2000), at
http://www.kanga.nu/archives/MUD-Dev-L/2000Q2/msg00281.php (last
visited Aug. 9, 2003).
273. See, e.g., Posting of Ralph Koster, supra note 272 (excerpting
from and linking to subsequent discussions); Seth Schiesel, Voyager to
a Strange Planet, N.Y. Times, June 12, 2003, at G1 (discussing a
protest march within Rubi-Ka to bring attention to the plight of
neglected Meta-Physicists).
274. See supra Part II.A and II.B.
275. Reid, Cyborg Body, supra note 174, at 333-34.
276. If an avatar you had never met before grabbed and kissed your
avatar, how would you react? See Murray Whyte, Want to Get a Life?
SIM People Have Several, Toronto Star, Nov. 20, 2002, at A1:
"I went into one of the houses and within 10 minutes I was kissed by
another Sim. And I don't even know why or how . . . . I spent many
hours trying to get these two Sims to get together and have a
relationship. And to be in the world and be kissed by someone I
never met was completely a digression from what I was used to
experiencing in the game. And it struck me at that moment that The
Sims Online is in fact a fundamental digression from the core
philosophy of the game, precisely because it's not a simulation any
more."
277. Dibbell, supra note 19, at 18.
278. Elizabeth Kolbert, Pimps and Dragons: How an Online World
Survived a Social Breakdown, New Yorker, May 28, 2001, at 88;
Morningstar & Farmer, supra note 119, at 194.
279. Mnookin, supra note 40.
280. One reason people care so much about rights in virtual worlds is
that, for many participants, virtual lives are psychologically (and
sometimes fiscally) important. During the course of his economic
investigation of Norrath, Edward Castronova discovered that at least
12,000 individuals actually called Norrath their true home,
considering their real-world existence simply a means of sustaining
existence in Norrath. Castronova, supra note 12, at 2. Presumably,
these individuals are among the 2% or so of EverQuest players who
spend more than sixty hours a week pursuing their virtual lives. Yee,
supra note 220. We might believe this kind of commitment to living
within virtual spaces amounts to addiction or delusion, but there are
also more positive accounts of this kind of deep involvement with
virtual spaces. See Turkle, supra note 66, at 186-92.
281. See Nick Wadhams, Online Games Increasingly a Place for Protest,
Social Activism, CNews Tech News, Feb. 7, 2003, at
http://cnews.canoe.ca/CNEWS/TechNews/2003/02/07/22446-ap.html (last
visited Aug. 9, 2003).
282. Declaration of the Rights of Man and the Citizen (Aug. 1789),
available at www.hrcr.org/docs/frenchdec.html (last visited Aug. 9,
2003); U.S. Const. amends. I-X.
283. Koster, Declaration, supra note 272, pmbl.
284. Id. at art. 2
285. As Koster notes in his essay:
But there's also some other folks who think that this exercise is
plain dangerous. As an example, let me take a co-worker of mine to
whom I showed an early draft. He pointed out that virtual world
servers run on somebody's hardware. And that most declarations of
rights give rights over personal property. By declaring that
avatars have rights, we're abrogating that administrator's right
to personal property.
Id.
286. By "avatar rights" we mean rights that inhere in the individual
owner of the avatar and that are generally understood as including
human and constitutional rights. However, since this investigation is
in the nature of a thought experiment, these rights might also include
democratic rights, rights of governance, etc.
287. Romans 9:20-21 (King James).
288. Mnookin, supra note 40. The term "gods" is often used as well.
289. Kolbert, supra note 278, at 90 ("Lord British wears a silver
crown and a gray tunic with a silver serpent emblazoned on the
chest."); George Jones, GameSpy and AMD--Exploring the Future of
Massively Multiplayer Online Gaming, Week 2: The Pioneers, Sept. 26,
2003, at
http://www.gamespy.com/amdmmog/week2/.
290. Levine, supra note 9.
291. Terms of Service, The Sims Online, at
http://www.eagames.com/official/thesimsonline/ home/index.jsp (last
visited Aug. 1, 2003) (click link to Terms of Service at the bottom of
the page). The current (revised) language states: "You may not
impersonate another person (including celebrities), indicate that you
are an EA.COM employee or a representative of EA.COM, or attempt to
mislead users by indicating that you represent EA.com Inc. or any of
EA.com's partners or affiliates."
292. Gordon Walton (his name in real life), the former titular head of
MOMI, jokingly adopted the moniker "Tyrant." See Gordon "Tyrant"
Walton, What is the S.I.M.M.?, at
http://www.ea.com/
eagames/official/thesimsonline/simm/simm_april02.jsp (last visited
Aug. 9, 2003).
293. Mnookin, supra note 40 (discussing the myth of the "utopian
possibility" in MUDs and cyberspace discussion generally).
294. Id.; see also John Perry Barlow, A Declaration of the
Independence of Cyberspace (Feb. 8, 1996), at
http://www.eff.org/~barlow/Declaration-Final.html (last visited
Aug. 9, 2003); Rheingold, supra note 77, 295-321 (discussing the
possibility of electronic democracy).
295. Dibbell, supra note 19, at 202 ("[I]n the beginning, naturally,
was the code. And naturally, the code was with Pavel.").
296. Id. at 203.
297. Haakon (Pavel Curtis), LambdaMOO Takes a New Direction (Dec. 9,
1992), in Hess, supra note 96, app. C,
http://www.yibco.com/ygm/ygmpdf/AppendixC.pdf (last visited July 24,
2003) ("[We] have to try to keep others from getting wizard bits since
the functional integrity of the entire MOO is clearly at risk
otherwise.").
298. Dibbell, supra note 19, at 205.
299. Id. at 204-06.
300. Id. This was the familiar model for the governance of virtual
worlds--benevolent dictatorship by the wizards. For instance, Habitat,
Lucasfilm's pioneering visual and commercial virtual world, preceded
LambdaMOO by nearly a decade. The wizards of Habitat (who referred to
themselves mythologically as the "Geek gods") often re-coded their
world to make the avatar populace happy. See Morningstar & Farmer,
supra note 119. Initially, Habitat avatars could snatch items from
each other and run away with them. The Habitat community did not like
this feature and complained. The Geek gods responded by coding away
the possibility of theft. Id. Likewise, the avatars in Habitat could
originally kill each other. Again, many users complained, and the
programmers responded by limiting avatar murder to the uncivilized
borderlands of Habitat's environment. Id. This was not a sufficient
answer for some, and players, lead by a real-life Orthodox priest,
formed a virtual church congregation that required adherents to
promote avatar nonviolence. Id.
301. For Wilde's statement (or his attributed statement), see Eben
Moglen, Anarchism Triumphant: Free Software and the Death of
Copyright, 4 First Monday (1999), at
http://firstmonday.org/issues/issue4_8/moglen/ (last visited Aug. 10,
2003).
302. See Pavel Curtis, The Incredible Tale of LambdaMOO, TechTV, at
http://www.techtv.com/
screensavers/showtell/story/0,24330,3388608,00.html (last visited
Aug. 9, 2003).
303. Haakon (Pavel Curtis), supra note 297.
304. Dibbell, supra note 19; Mnookin, supra note 40.
305. The community is accessible at
telnet://lambda.moo.mud.org:8888
(last visited July 24, 2003).
306. See Pavel Curtis, Not Just a Game: How LambdaMOO Came to Exist
and What It Did to Get Back at Me, in High Wired: On the Design, Use,
and Theory of Educational Moos 25 (Cynthia Haynes & Jane Rune Holmevik
eds., 2d ed. 2001) [hereinafter Curtis, Not Just a Game]. An excerpt
is available online. Curtis, supra note 302.
307. Curtis, Not Just a Game, supra note 306, at 41.
308. See Lessig, supra note 172, at 9-13 (discussing MUDs and asking,
"What does it mean to live in a world where problems can be programmed
away?").
309. Dibbell, supra note 19, at 332 (identifying Curtis's archwizard
status as "the great hard- wired conundrum of Lambda's democratic
experiment and still the ultimate source, I can only assume, of all
that is both interesting and maddening about MOOish politics").
310. Haakon (Pavel Curtis), LambdaMOO Takes Another Direction (May 16,
1996), in Hess, supra note 96, app. D,
http://www.yibco.com/ygm/ygmpdf/AppendixD.pdf (last visited Aug. 9,
2003). Curtis wrote:
[The wizards] now acknowledge and accept that we have unavoidably
made some social decisions over the past three years, [while
exercising technical choices] and inform you that we hold
ourselves free to do so henceforth . . . . We also now acknowledge
that any technical decision may have social implications; we will
no longer attempt to justify every action we take.
Id.
311. There are thousands of boards, websites, and mailing lists for
the EverQuest community and other popular virtual worlds. See, e.g.,
Everquest Main Board, IGN, at
http://vnboards.ign.com/
board.asp?brdP01 (last visited Aug. 9, 2003).
312. One of the most responsive commercial developers is Mythic
Entertainment, creator of Dark Age of Camelot. It has designated an
official Player Representative, a kind of ombudsman for the rights of
players. Yet the representative seems skeptical of her function and
has informed her constituency that "Games are not democracies
. . . . The only `votes' are called dollars. If you aren't having fun,
you shouldn't be playing." Castronova, supra note 8, at 32 (quoting
Sanya Thomas). The political philosophy of most of today's virtual
worlds can be captured by the marketing slogan of EverQuest: "You're
in our world now." See Everquest: World's #1 Massively MultiPlayer
Online Game, at
http://everquest.station.sony.com (last visited
Oct. 7, 2003).
313. See Koster, Declaration, supra note 272.
314. For many corporate wizards, the notion of having to defend
against lawsuits based on infringed avatar rights is enough to make
them consider getting out of the business. If the recognition of
avatar rights and virtual property would actually create legal costs
which would prevent the creation of new virtual worlds, then surely
the wizards have a good argument to make that perhaps an anarchic
virtual environment dominated by wizardly fiat is preferable to no
environment at all. The well-known virtual-world design guru Gordon
Walton recently made a top ten list of reasons not to create a virtual
world--and legal issues came in as the second most important
reason. See Postcard from GDC 2003: Gordon Walton's "10 Reasons You
Don't Want to Make a Massively Multiplayer Game," at
http://www.gamasutra.com/gdc2003/features/20030306/olsen_01.htm (last
visited Aug. 3, 2003). Walton's first reason was that today's virtual
worlds can cost over $100 million to build.
315. See Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). For a more
liberal application of the doctrine, see Marsh v. Alabama, 326
U.S. 501 (1946).
316. Of course, private "rights" in the nature of civil remedies for
tortious conduct by wizards against avatars would survive the state
action doctrine. It will surely be a bit complicated, however, to pin
down the exact duties and standards of care that apply in virtual
worlds, especially for those worlds that glorify violent conflict. See
Hunter & Lastowka, supra note 41, at 24. Furthermore, certain rights
included by Koster in his experimental Declaration, such as rights to
free speech and association, would be difficult, if not impossible, to
frame as issues of tort law.
317. Paul Schiff Berman, Cyberspace and the State Action Debate: The
Cultural Value of Applying Constitutional Norms to "Private"
Regulation, 71 U. Colo. L. Rev. 1263, 1302-05 (2000).
318. Even Raph Koster has suggested that limiting free speech rights
in virtual worlds is defensible on the basis of private property
rights:
Somebody saying something in [Star Wars Galaxies] and being
witnessed by somebody else can reflect not just on the game but on
Lucasfilm and George Lucas . . . . If someone started walking around
in the San Diego Zoo screaming profanity or handing out Nazi
leaflets, the park would remove them from the premises. We need to
be able to do that also. Wadhams, supra note 281 (quoting Koster).
319. Berman, supra note 317, at 1270.
320. Id. at 1302-03.
321. For the application of public forum analysis in cyberspace, see
Hunter, supra note 31, at 488-
94.
322. Marsh v. Alabama, 326 U.S. 501 (1946).
323. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308 (1968); cf. Hudgens v. NLRB, 424 U.S. 507 (1976);
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
324. Williams Elecs., Inc. v. Artic Int'l, Inc., 685 F.2d 870, 874 (3d
Cir. 1982) ("Defendant also apparently contends that . . . the player
becomes a co-author of what appears on the screen.").
325. Dibbell, supra note 19, at 302; cf. Jessica Mulligan, Biting the
Hand #19: I 0Wn Y0o, d00d, Skotos, at
http://www.skotos.net/articles/BTH_19.shtml (last visited Aug. 10,
2003) ("If an online game doesn't hold my attention for a week or two,
I just stop playing.").
326. See T.L. Taylor & Mikael Jakobsson, The Sopranos Meets EverQuest:
Socialization Processes in Massively Multiuser Games, at
http://hypertext.rmit.edu.au/dac/papers/Jakobsson.pdf (last visited
Oct. 8, 2003) (explaining how real-world family ties are employed to
create virtual social advantages within EverQuest).
327. See Lessig, supra note 172, at 11 ("There is real life in Avatar
space."); Dibbell, supra note 19, at 302-04.
328. One of the central problems in establishing any general
proposition of virtual-world rights is that virtual worlds are far too
plastic and varied to permit any enunciation of general
principles. The right to life, for instance, is certainly a primary
human right, but in violent virtual worlds, the wizards, in their role
as designers, are required to make environments which are threatening
to avatar health and safety. Indeed, the participants demand them to
do so. There are also player versus player ("PvP") virtual worlds,
where avatars delight in killing each other and destroying or
absconding with each other's property. In light of the flexible nature
of virtual environments, one might attempt to base a virtual rights
system on an avatar's "reasonable expectations" of accepted
behaviors. To the extent this would not be tautological, however, the
result would be the existing system, in which the corporate wizards
provide incoming avatars with a mandatory rights-limiting, end-user
license agreement.
329. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996
U. Chi. Legal F. 207 (arguing that a view of law that focuses
exclusively on a specialized area, such as cyberspace, is doomed to be
shallow and overlook underlying principles); cf. Lawrence Lessig, The
Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 500,
502 (1999) ("[U]nlike Easterbrook, I believe that there is an
important general point that comes from thinking in particular about
how law and cyberspace connect.").
330. Kerr, supra note 42, at 395-96.
331. William Shakespeare, Hamlet, Prince of Denmark, act 2, sc. 2
(Edward Hubler ed., Signet Classic 1963) (n.d.).
332. Avatars are, at one level, simply entries in a
database. Stephens, supra note 154, at 1518.
333. See Hess, supra note 96, at 147, 170.
334. Id.
335. Dibbell, supra note 19, at 328.
336. Kolbert, supra note 278.
337. Dibbell, supra note 19, at 16.
338. See supra Part I.A.
339. The most memorable examples include the positive image of the
six-million-dollar man from the 1970s television show--better,
stronger, faster than the ordinary human--or the more negative
conception of Star Trek's Borg--soulless humanoids who have been
involuntarily "assimilated" and outfitted with twitching mechanical
parts networked into a collective intelligence.
340. See The American Heritage Dictionary of the English Language (4th
ed. 2000) (defining a cyborg as a "human who has certain physiological
processes aided or controlled by mechanical or electronic devices").
341. See, e.g., Donna J. Harraway, Simians, Cyborgs, and Women 149
(1991).
342. Turkle, supra note 66, at 186.
343. See, e.g., Amy S. Bruckman, Gender Swapping on the Internet, in
High Noon on the Electronic Frontier: Conceptual Issues in Cyberspace
317 (Peter Ludlow ed., 1996); Philip Giordano, Invoking Law as a Basis
for Identity in Cyberspace, 1998 Stan. Tech. L. Rev. 1, ¶¶ 55-57
(1998) (describing examples of identity-swapping, and the construction
of self in LambdaMOO); Mnookin, supra note 40 ("A dozen or so people
are clustered in the kitchen of a sprawling house . . . . As a
rainbow-colored dragon gives a disquisition to no one in particular on
the advantages of foreign cars, a man with a stubbly beard whispers
lascivious remarks to anyone who will listen.").
344. Jerry Kang, Cyber-Race, 113 Harv. L. Rev. 1130, 1134-36 (2000)
(describing the experience of swapping race-roles and the importance
of race-schemas in virtual worlds).
345. A Spivak is an ambiguously-gendered being, living only in
LambdaMOO. See Hess, supra note 96, at 3 (identifying Michael Spivak
as the inventor of Spivak-gendered pronouns).
346. Reid, Cyborg Body, supra note 174, at 329.
347. As Reid notes, Lirra can reveal her real-life somatype to you:
"Lirra whispers, `my desc is pretty real, but I'm a bit plumper than
that' to you. Lirra whispers, `and maybe i don't always wear such sexy
clothes ;)' to you." Id. Of course, it is impossible to know whether
this description is itself real.
348. Id. at 330.
349. Indeed, in leveling worlds, the pursuit of social prestige may
explain some of the economics of virtual property. If social status
within EverQuest is obtained by being a level sixty-five avatar with a
powerful magical sword, it is not surprising that people will pay to
obtain this status.
350. See Reid, Cyborg Body, supra note 174, at 340. Reid notes:
The very theme of the [FurryMUCK] MUD draws these [sexual]
questions to the fore, for every character on Furry is inhuman,
and most are anthropomorphised animals clad only in virtual
fur. Cats and bears are legion, most of them sleek-furred and
svelte or broad and brawny. The nature and culture of the body is
the primary theme of FurryMUCK, and the ideal is animalistic
allure . . . . There are few `mysterious but powerful'
mage-warriors on FurryMUCK, but many flashes of velvet-pelted
thighs, glints of slitted pupils and touches of sharp-taloned
paws.
Id. at 339. See also Dibbell, supra note 19, at 125 (describing the
author's existence as "Samantha").
351. Turkle, supra note 66, at 210-32; see also Dibbell, supra note
19, at 235-63. Oddly, the current economics of visual worlds are such
that tinysex is not a primary selling point. It occurs, but virtual
environments are ordinarily not designed to facilitate it. Because
worlds cost millions of dollars to build and maintain and a
significant percentage of the users of these systems are under the age
of majority, the corporate owners of these games are usually wary of
explicit sexual activity. See The Sims Online User Agreement, at
http://www.ea.com/eagames/official/thesimsonline/home/info.jsp (last
visited Aug. 9, 2003) ("Strong vulgar language, crude or explicit
sexual references . . . are always inappropriate."). However, the
economics are very different for textual virtual worlds, which are
cheaper to build and maintain.
352. Dibbell, supra note 19, at 235-63; Hess, supra note 96, at 32;
Turkle, supra note 66, at 210-32.
353. Reid, Cyborg Body, supra note 174, at 333, 338-41.
354. Yee, supra note 220, at 28-29 (finding that 41.9% of women
surveyed had "role-played being in love with" another EverQuest
character).
355. See, e.g., Dibbell, supra note 19, at 235.
356. See Reid, Cyborg Body, supra note 174, at 332-33.
357. See Castronova, supra note 12, at 29-30.
358. Id.
359. Reid, Cyborg Body, supra note 174, at 336.
360. Dibbell, supra note 19, at 11-30. The incident has been the
subject of discussion in numerous law articles. See, e.g., Yochai
Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112
Yale L.J. 369, 439-40 (2002); Colin Folawn, Neighborhood Watch: The
Negation of Rights Caused by the Notice Requirement in Copyright
Enforcement Under the Digital Millennium Copyright Act, 26 Seattle
Univ. L. Rev. 979, 980 n.9 (2003); Lee Kovarsky, Tolls on the
Information Superhighway: Entitlement Defaults for Clickstream Data,
89 Va. L. Rev. 1037, 1054 n.74 (2003); Viktor Mayer-Schönberger, The
Shape of Governance: Analyzing the World of Internet Regulation, 43
Va. J. Int'l L. 605, 625 n.86 (2003).
361. Kerr, supra note 42, at 372.
362. Dibbell, supra note 19, at 16.
363. See Julian Dibbell, My Dinner With Catharine MacKinnon and Other
Hazards of Theorizing Virtual Rape, at
http://www.juliandibbell.com/texts/mydinner.html (last visited
Aug. 11, 2003).
364. David R. Johnson & David Post, Law and Borders--The Rise of Law
in Cyberspace, 48 Stan. L. Rev. 1367, 1367-75 (1996) [hereinafter
Johnson & Post, Law and Borders]. See also I. Trotter Hardy, The
Proper Legal Regime for `Cyberspace,' 55 U. Pitt. L. Rev. 993, 994,
1019-25 (1994) (contending that in the absence of some compelling
social reason to the contrary, rules of conduct in cyberspace should
be governed by self-help, custom, and contract of cyberspace
participants, and arguing specifically in favor of recognizing a
limited Law Merchant-like regulatory mechanism); David R. Johnson &
David G. Post, And How Shall the Net Be Governed? A Meditation on the
Relative Virtues of Decentralized, Emergent Law, in Coordinating the
Internet (Brian Kahin & James H. Keller eds., 1997) (arguing for a
decentralized system of Internet governance); David G. Post, Governing
Cyberspace, 43 Wayne L. Rev. 155, 161 (1996) (arguing that cyberspace
transactions occur in a virtual space); Joel R. Reidenberg, Lex
Informatica: The Formulation of Information Policy Rules Through
Technology, 76 Tex. L. Rev. 553 (1998) (arguing for the Lex
Mercatoria, applied to cyberspace as the "Lex Informatica").
365. The Virtual Magistrate was the first attempt at this sort of
dispute resolution mechanism. See The Virtual Magistrate Project
(Concept Paper, July 24, 1996), at
http://www.vmag.org/docs/
concept.html (last visited Aug. 11, 2003) (providing an initial
outline of the goals and procedures of the project). Since then, many
different approaches have been tried, some with notable success. See,
e.g., Lucille M. Ponte, The Michigan Cyber Court: A Bold Experiment in
the Development of the First Public Virtual Courthouse, 4 N.C. J. L. &
Tech. 51 (2002); Victoria C. Crawford, Note, A Proposal to Use
Alternative Dispute Resolution as a Foundation to Build an Independent
Global Cyberlaw Jurisdiction Using Business to Consumer Transactions
as a Model, 25 Hastings Int'l & Comp. L. Rev. 383 (2002).
366. See, e.g., Johnson & Post, Law and Borders, supra note 364
(advocating the self-regulation of cyberspace as a jurisdiction
independent of territorial sovereigns); Dick Morris, Direct Democracy
and the Internet, 34 Loy. L.A. L. Rev. 1033 (2001) (advocating direct
democracy via Internet mechanisms). But see Neil Weinstock Netanel,
Cyberspace Self-Governance: A Skeptical View from Liberal Democratic
Theory, 88 Calif. L. Rev. 395 (1999) (arguing against the normative
liberal argument of Johnson and Post); Paul M. Schwartz, Vote.com and
Internet Politics: A Comment on Dick Morris's Version of Internet
Democracy, 34 Loy. L.A. L. Rev. 1071 (2001) (raising problems with
Morris's account of Internet direct democracy).
367. See Hunter, supra note 31, at 447-52 (examining history of the
concept of "cyberspace as place").
368. Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199,
1199-1200 (1998); see also Jack Goldsmith, The Internet and the
Abiding Significance of Territorial Sovereignty, 5 Ind. J.
Glob. Leg. Stud. 475, 479 (1998) (arguing that Internet activities are
functionally identical to these non-Internet activities and may be
regulated in the usual manner); Jack Goldsmith, Unilateral Regulation
of the Internet: A Modest Defense, 11 European J. Int'l L. 135,
135-148 (2000) (same).
369. Timothy Wu, Application-Centered Internet Analysis, 85
Va. L. Rev. 1163 (1999); Timothy S. Wu, Note, Cyberspace
Sovereignty?--The Internet and the International System, 10
Harv. J.L. & Tech. 647 (1997); Timothy Wu, When Law & the Internet
First Met, 2 Green Bag 2d 171 (2000).
370. Andrew L. Shapiro, The Control Revolution: How the Internet is
Putting People in Charge and Changing the World we Know (1999)
(arguing that the Net creates positive effects in society, but also
some problems such as control, personalization, and so forth); Andrew
L. Shapiro, The Disappearance of Cyberspace and the Rise of Code, 8
Seton Hall Const. L.J. 703 (1998) (making similar arguments).
371. For a full discussion of the movement, see Hunter, supra note 31,
at 447-52. The orthodoxy is being challenged in a number of ways. See
id. at 452-57; David G. Post, Against "Against Cyberanarchy," 17
Berkeley Tech. L.J. 1365 (2002). However, it remains the received
wisdom.
372. See Paul Schiff Berman, The Globalization of Jurisdiction, 151
U. Pa. L. Rev. 311 (2002).
373. Koster, Declaration, supra note 272, pmbl.
374. See Hunter & Lastowka, supra note 41.
375. See Anna DuVal Smith, Problems of Conflict Management in Virtual
Communities, in Communities in Cyberspace 134, 147 (Marc A. Smith &
Peter Kollock eds., 1999).
376. Community responses to sexual harassment are common in other
virtual worlds as well. See Elizabeth Reid, Hierarchy and
Power--Social Control in Cyberspace, in Communities in Cyberspace
115-16 (Marc A. Smith & Peter Kollock eds., 1999).
377. Actually, by the time of the Mr. Bungle incident, "toading" meant
removal of the avatar altogether. Initially, toading involved turning
the avatar into a toad. See Dibbell, supra note 19, at 18.
378. 74 F.3d 701 (6th Cir. 1996).
379. See Miller v. California, 413 U.S. 15 (1973).
380. Shapiro, supra note 370, at 711 ("Sure, there are still some
interfaces that stress the idea of being in a separate place (e.g.,
MUDs, chat rooms). They may even feel place-like.").
381. For instance, how should a real-world judge resolve the following
(entirely conceivable) lawsuit filed over a virtual dispute? A
twelve-year-old castle owner alleges that his giant avatar's virtual
goose, which laid golden eggs (worth U.S. $100 daily) was stolen by a
virtual juvenile (and real- world adult) who climbed a giant beanstalk
to get it. The plaintiff alleges trespass, invasion of privacy, and
conversion. The defendant, in turn, counterclaims against the virtual
world's wizards who made the goose in question capable of being
stolen, and throws in an additional charge against a third party of
fraud involving a virtual cow. Even given that the goose was clearly
valuable property, the task of ferreting out the duties and faults in
this hypothetical would probably exasperate a real-world judge.
382. This may seem like an unusual suggestion, but there appear to be
some rare instances in which the law has seemingly declined to
recognize market realities. See, e.g., News Release, Internal Revenue
Service, IR-98-56 (Sept. 9, 1998) (stating that the IRS rules do not
require home-run baseballs returned to the player by their recipients
to be taxed as gifts), available at www.irs.gov/pub/irs-news/
ir-98-56.pdf.
383. See Posting of Dave Rickey, daver@mythicentertainment.com, to
mud-dev@kanga.nu (June 22, 2001), at
http://www.kanga.nu/archives/MUD-Dev-L/2001Q2/msg01731.php.
384. The Giran Castle lawsuit was apparently filed in 2001 and
discussed on several websites, but there have been no subsequent
reports regarding a resolution. See id. Other such lawsuits have
surely been filed but not reported.
385. Stephens, supra note 154, at 1516-18.
386. Consider the privacy concerns that will arise when, say, the
owners of a virtual world are capable of monitoring all of your
virtual-world social interactions. You might not worry about some
wizard watching you struggle to use a hoverboard in There, but it is a
different matter if the same wizard is watching you engage in
tinysex. What about a world where all of your social interactions with
your family are monitored, including discussions about the arrangement
for your mother's funeral, your father's coming out as transsexual,
your brother's drug habit?
387. See Marsh v. Alabama, 326 U.S. 501 (1946) (applying First
Amendment rights to speech within a "company town").
388. Johnson & Post, Law and Borders, supra note 364, at 1367-75.
--<cut>--
--
J C Lawrence
---------(*) Satan, oscillate my metallic sonatas.
claw@kanga.nu He lived as a devil, eh?
http://www.kanga.nu/~claw/ Evil is a name of a foeman, as I live.
