As the “judge, jury, and executioner” for the Great Debate’ at State of Play III, I was required to sum up the debate. This required me to take extensive notes during the discussions.
The panel was set up as a debate on the following proposition:
Resolved: A legal system based on geography, territory and physical force is inappropriate for Virtual Worlds
My notes as to what the other speakers said are below. Alternately, watch the ‘Great Debate’ from the online archive.
[This will be the first of three posts on State of Play III conference. The next will be what I said as a summation of the debate. The third will be about the conference more generally.]
What follows is an only very slightly cleaned up copy of my real-time notes. “VW” means “Virtual Worlds”.
Please note well: Comments in [brackets] are my notes to myself of my ideas or my reactions to the speakers, NOT what the speakers actually said.
Dan Hunter (moderator): VW’s are much more immersive today than in the day of Lambda Moo.
David Post: The proposition is almost self evident
A. [Making a positive claim that to my ear sounds like Lon Fuller] To be ‘law’ or a ‘legal system’ the rules must be ex ante comprehensible and one must have notice about which rules apply; but this is hard in VWs (esp. ex ante) Hence any application of an arbitrary nations rules to a VW is ‘not law’
B. [normative] Why should territorially based law apply to sale of VW asets? And what would give Sovereign X the right to apply its law? In principle only consent could do this [Even if we do it to the non-consenting all the time? Policing?]
C. Individuals and not states are sovereigns [sounds like the common law courts movements. Does he mean to sound like those nuts?]
II. Joel Reidenberg. Post is ridiculous. [i.e Reality bytes.]
A. There is an inescapable nexus between VW & physical world
1. Users are people
a. They exist in a location
b. There is an infrastructure which they are embedded in
c. There are commercial/social exchanges that blur the border
2. The above facts implicate state interests
3. Investments of time, energy & money have physical aspects
B. State public policy deserves to be vindicated
1. Germany can ban Nazi games;
2. US can ban kiddi porn
III. Richard Bartle
A. Real world rules constrain … but these constraints are based ultimately on force
B. When you play a game you agree to play by the rules [implicit: contract out of other laws/rules?] …
C. Game rules apply based on consent..
1. Hence game rules are MORE legitimate than rules made governments based on force- don’t rely on force, rely on consent
D. Virtual property – is it like real property? Well, virtual worlds look like a world, why can’t it be property held in a different world?
IV. Viktor Mayer-Schoenberger: issue is who makes the rules?
A. Origin of copyright is fear of control by publishers
1. Beware media monopoly
2. What is legitimate, who makes the rules?
B. Democracy is hard – things are they way there are as the result of a long evolution
V. David Johnson
A. Our essay was entitled Law AND BORDERS
1. Geographic borders are a lousy way to organize choice of law
2. What about our right to travel?
B. Digital force is more effective than physical force in VWs
1. Also allows people to avoid contact when they don’t want it.
C. ‘Law is a story that we tell each other’
1. [Law is made by the volk, we grow it]
D. VWs can become more democratic in a way than reg. democracy
1. VW democracy has a form of decentralized action
2. Easier to vote with feet / mouse
VI. Tim Wu
A. RE physical force: there is a demand for law based on physical force
1. Cf. E-bay. Wanted online-only dispute resolution
a. Works for large % of cases
b. But there are some bad actors who don’t care, want to steal
c. No remedy for them within the e-bay world; must resort to traditional force-based rules
B. VWs are like any community
1. Most of the time we don’t want the law in there
2. But the background law underlies their existence & makes them possible
a. Need stable rules underneath to protect the servers and the players, to prevent fraud and acts of “the bad man”
[There were also a number of excellent questions from the audience, including one pointing out the EULAs are an odd form of ‘consent’]