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Also of Interest November 9th - The Media Center Tips & Ideas Please email us your thoughts about media coverage of the law, or suggestions for our program |
The Double-Edged Sword of Statutory Rape Law in the U.S.By Rachel DeLetto February 18, 2008 Although she has quickly reclaimed her throne as Hollywood’s biggest train wreck, Britney Spears got a temporary reprieve last month when the media found a distraction from her negligent parenting and apparently drug-induced antics in the revelation that her kid sister, Jamie Lynn Spears, 16, is pregnant. But the media finger-pointing over who to blame for the Spears sisters’ fall from grace has muddled an important legal issue that the teen starlet’s pregnancy could have provided a platform to reform.
Reality Bytes: Does Real World Law Apply in Virtual Reality? Should It?By: Rachel DeLettoAs superficial as it may be, lets face it, we live in a society that reveres beauty and equates wealth with happiness. We want to be better looking, smarter, stronger, more successful. We want excitement, adventure, romance, and glamour. But most of us will never hop a jet to Milan for Fashion Week, win the Nobel Prize, live in a multi-million dollar beach house in Malibu, or have love affairs with movie stars. In fact, many of us work long hours at mundane jobs just to get by. Some of us barely have time and energy to socialize and make the connections we crave by the nature of being human. For those who are too busy, too tired, or simply too awkward in social situations, that feeling of connectedness to others is palpably absent. We perform our daily routines feeling lonely and wanting more out of our lives. Enter Second Life. I had never heard of Second Life before a few weeks ago when clues from the virtual world helped Olivia and Stabler break the case of a serial kidnapper and rapist on "Law & Order: SVU." Then Dwight Schrute from "The Office" created a Second Second Life to remove himself even further from the painful reality that his ex-girlfriend Angela is dating Andy. Second Life is a 3-D online virtual world run by real life San Francisco-based company Linden Labs. Users (or "residents") of Second Life create digital alter egos known as "avatars." For almost 10 million registered users, avatars are the new and improved version of their creators. Avatars attend social events, build houses, have sex, drive fancy cars, battle monsters and evenfly. Avatars use the Linden dollar (L$), Second Life’s virtual currency, to acquire the virtual equivalence of the "good life" and live out the fantasy of their creators. In fact, the virtual world of Second Life has become a real world marketplace where L$ are exchangeable for actual, real world cash or credit. This is how it works: L$ are bought and sold on the LindeX (Second Life’s official currency exchange) for real world currency. L$ are then exchanged between avatars for virtual-world transactions. Avatars can use L$ to purchase virtual products at virtual shops owned by other avatars. Essentially everything you can imagine is for sale in this virtual world - - clothing, food, furniture, houses, cars, islands, even entire cities. According to Mallory Simon reporting for CourtTV, the virtual city of Amsterdam recently sold for $50,000 U.S. Dollars (see http://www.courttv.com/people/2007/0709/second_life_ctv.html). Cue a legal conundrum of mounting concern. With the rapid evolution of technology, it has become cheap and easy for amateur users to create and distribute products that other users may buy, consume, and re-use. This "user-generated content" is the hot-button issue in the intellectual property community. Specifically in the area of simulated reality in interactive virtual worlds, legal minds are racing to figure out whether and how real-world law applies to intellectual property infringements, crimes, and other wrongdoings committed within the virtual world. Reporting for the New York Post, Katherine Boniello wrote that Thomas Simon is being sued by four entrepreneurs for copyright infringement and selling counterfeit versions of their products. The wrinkle in this seemingly common mundane story is that it wasn’t Mr. Simon who stole the products, but his avatar "Rase Kenso," and the alleged crime did not take place in New York but rather within the Second Life metaverse, a virtual metaphor of the real world without its physical and geographic limitations that is accessible to anyone, anywhere who has a computer and an Internet connection. The goods he allegedly stole exist only within the virtual-world - created by other avatars and offered for sale in their virtual-shops. Mr. Simon allegedly infringed on the copyrights and trademarks of at least four cyber-entrepreneurs by cloning the computer codes used to create the goods. Boniello reported that the lawyers for the claimants believe they have a strong case based on intellectual property rights. And they may be right (see http://www.nypost.com/seven/10282007/news/regionalnews/unreality_byte.htm). Recognizing intellectual property rights of Second Lifers likely supports the promotion of "the Progress of Science and useful Arts," as advocated by the Constitution. Second Lifers investtime and energy into the creation of their original virtual products and should arguably be afforded the right to control distribution of their artistic works. Content within the Second Life world is user-generated and Second Life’s Terms of Service agreement awards individual players copyright and other intellectual property rights to content they create. Assuming Second Life’s Terms of Service agreement is enforceable, and if the virtual products are copyrightable under U.S. law, then it is likely Mr. Simon infringed on those copyrights. Under the 1976 Copyright Act, computer codes are copyrightable because they have been found to be an original expression that is fixed in a tangible medium. Liability for copyright infringement under U.S. law requires a showing that the alleged infringer actually copied the original work of the author and that the copy is substantially similar such that the lay-person mightbuy the copier’s version instead the original thereby depriving the original creator of economic opportunity. The fact that the items Mr. Simon sold were identical visual and functional replicas of the goods created by the claimants likely satisfies both elements required for a finding of copyright infringement. Few mainstream media outlets have reported on virtual crimes in virtual worlds, and. those few have taken a decidedly flippant attitude towards the Second Life culture. Ms. Boniello’s article in The Post was accompanied by a flashy illustration of four angry-looking avatars glaring down upon a real life image of Mr. Simon, a man who strikingly resembles "Comic Book Guy" from "The Simpsons." The story was laced with a subtle tone of mockery. You could almost hear Ms. Boniello thinking ‘these people need to get a first life’ in every line of the story. But despite the obvious infotainment value, the media has missed a much bigger legal issue that has the potential to disrupt a virtual way of life (pun intended). Should these virtual creations be copyrightable? Many difficult policy concerns and legal issues have arisen in the consideration of this question. For people seeking a sense of connectedness with others, Second Life and other virtual worlds are the bowling leagues and community picnics of the technological age - brave new worlds without the constraints of physical reality where the creativity and innovation of the human imagination make anything possible. In these worlds people share ideas and collaborate to create their versions of utopia. Instead of feeling helpless in the shadows of big corporations and big government, the residents of virtual worlds are in control of their own lives. And that is the point. If we impose the constraints of real world law, won’t that compromise the collaborative creative process and e the true social value of these alternate realities? The current legal landscape does not provide a clear indication of how our courts will deal with the issue of virtual property. So far, very few such claims have been filed and even fewer have been considered by courts. One of the only cases dealing with the legal status of virtual property was decided in a Chinese court in 2003. In that case, Li Hongchen, a user of the online computer game Red Moon, had spent two years of his time and over 10,000 yen (over $1,200 in 2003) amassing an arsenal of weaponry. When another user stole his weapons, Mr. Hongchen asked the company to identify the player who stole his property. The company refused to reveal the other player’s information. The court ordered the company to restore the stolen items to Mr. Hongchen, finding that a loophole in the server’s program made it easy for hackers to break in (see http://www.cnn.com/2003/TECH/fun.games/12/19/china.gamer.reut/). No United States Court has yet decided whether items purchased within virtual worlds should be regarded as property in a legal sense. However, several legal scholars predict that courts will recognize property rights in virtual worlds, reasoning that virtual items are in fact bought, sold and traded for actual currency. Assuming a court does recognize the intellectual property rights of the creators of virtual goods stolen by Mr. Simon, does Mr. Simon then have a right to sue for invasion of privacy? As Ms. Boniello points out in her article, the claimants in the Simon suit gathered their evidence by taking pictures of the stolen goods inside Rase Kenso’s Second Life house. Can Mr. Simon assert a counter-claim against the claimants for breaking and entering? What about a murder charge against someone if they create a code that allows their avatar to "kill" other avatars? What about virtual discrimination? Defamation? Misrepresentation? Fraud? If U.S. courts answer any of these questions in the affirmative, what happens if either the perpetrator or the victim is not a U.S. resident and her country does not recognize virtual crimes as actionable? Which country has jurisdiction, what law applies and who should decide? Guidance to questions about how to resolve disputes between virtual world residents has mostly come from academia - much of it from the distinguished New York Law School faculty. Like many of the scholars currently contemplating these issues, visiting professor David R. Johnson, and David Post, a fellow at the Institute for Information Law and Policy, predict that territorially-based law will not play a significant role in resolving these disputes. In their article "The Great Debate - Law in the Virtual World," (see http://www.firstmonday.org/issues/issue11_2/post/index.html) Johnson and Post argue "it will prove too complex (e.g., to determine which body of territorially-based law applies) and too expensive (e.g., to track down the real-world identity of the purported wrongdoer and the forum in which a remedy can be effectively granted)." In addition to the procedural difficulties, there is concern that Congress and other territorially based governing bodies are not capable of understanding the complexities of the technology and the intricacies of the individual virtual worlds. Since each virtual world functions differently, a single regime of governing rules for virtual worlds could compromise their individual social functions. Instead, Johnson and Post advocate a more hands-off approach. Individuals who are residents of these virtual worlds are in better positions to know what rules are best suited to preserve both the peace and social values within their virtual world Essentially, platform operators would be afforded the same legal status as ISPs and be subject to applicable provisions of the Digital Millennium Copyright Act, but beyond that, the virtual-world rules and rights of users would be defined by the operators of each world in their individual Terms of Service agreements and by the residents themselves. In their article "Virtual Worlds, Real Rules" (49 N.Y. L. Sch. L. Rev. 103 (2004-2005) available at http://www.nyls.edu/pdfs/v49n1p103-146.pdf), Caroline Bradley and A. Michael Froomkin suggest that virtual worlds could be ideal testing grounds to experiment with different social and legal rules. The idea is that residents of each virtual world would develop a cyber-government, and whether it would be democracy, oligarchy, monarchy, dictatorship or other type of regime, would be up to them. They would have cyber representatives that enacted a cyber legal code that could be enforced by a cyber justice system. Or, instead, and completely at their own discretion, they could leave the rulemaking to market forces. Either way, it could be an important and enlightening experiment in communal behavior. Another solution advocated by Jack Balkin (creator of www.balkinization.com) allow the international legal community to set standards that would improve administration of the law while still preserving the important social value of creative freedom for users. After an international legislation process that would include experts in the law and operations of virtual worlds, governments could design different types of legal regimes setting out the rights of users and basic rules for the relationships between users and platform owner. The platform owner would choose a legal structure and design its virtual world with knowledge of the legal confines. The Terms of Service agreement would act as a virtual constitution governing virtual-world legal obligations and rights. Users could shop around and "move" to the world that best suits their needs and desires (Jack M. Balkin, Law and Liberty in Virtual Worlds, in The State of Play, 86, 107 (Jack M. Balkin & Beth S. Noveck eds., New York University Press 2006). The best minds in the intellectual property community continue to struggle with these complicated questions. Whether these questions will be resolved under the laws and jurisdiction of the United States courts or under an entirely new set of laws enacted by the virtual worlds’ governments remains to be seen. Considering Second Life is a utopia of sorts, it would be interesting to see what they come up with. |
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