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Considering the Intersection of Legal Rules and Virtual Spaces:


A Review of The Essay Collection "The State of Play: Law, Games and Virtual Worlds"

By CECILY MAK


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Monday, Feb. 12, 2007
Jack M. Balkin and Beth Simone Noveck, ed. The State of Play: Law, Games, and Virtual Worlds (NYU Press 2006)

For both those readers curious about, and those completely immersed in, the "new" virtual worlds, the recently-published essay collection The State of Play will not disappoint.

The collection's essays take on a truly mesmerizing topic: how emerging digital worlds are influencing, and being influenced by, our non-virtual lives. Property ownership, privacy rights, criminal prosecution, alternative identities, and principles of democracy are some of the issues tackled in the essays with commendable precision and even well-placed humor where appropriate.

As a whole, the collection will enlighten readers as to what the future holds from a technology perspective, and the legal issues we'll face getting there. The collection leaves the reader full of new insights, yet inspired to learn more. Legal professionals, in particular, will benefit from the direct style of the writing and argument, and the challenges posed in each piece.

In short, this collection is a must read for those with a stake in the future of virtual worlds or serious gaming - or simply a keen interest in the topic.

Game Gods and Game Players

In this review, I'll separately assess the four subtopics into which The State of Play is divided. The longest and most dense section of the book, "Game Gods and Game Players" contains four essays that generally address the rights relating to game play, and how law will help shape those rights.

A consistent theme among the authors contributing to this section is that those who inhabit virtual worlds should not take their right to play for granted. For example, Edward Catronova in "The Right to Play" argues that the right to play is a right of all humans and is one that should be preserved.

Catronova argues that while gamers may be enjoying their newfound freedoms and abilities to perform basic human tasks in their avatar forms, such "real life activities" could actually dominate and threaten what makes virtual worlds so precious to their inhabitants. He is not alone in calling upon the law to define play spaces as separate from our other activities on Earth.

Property and Creativity in Virtual Worlds

The second collection of essays focuses on questions of property rights, politics in virtual worlds (and in the worlds that create them) and how to protect gamers' creations. Should laws from our "real" lives influence, or even be enforced in, virtual worlds? As people invest more resources into their virtual lives, should our legal regulations follow them in, in order to protect all that they become, create, and accumulate on the other side?

While the idea of applying real-world law to virtual space may seem far-fetched, some of its particular applications raise important questions: For example, can a EULA or click-through Terms of Use Agreement justly allocate all ownership of creative works made by players in a virtual world to the game's administrator - despite that face that players are not being paid in the sense that workers under a "work made for hire" agreement would be? Can a musical works' rights owner collect royalties on "performances" of its copyright content that occur only before a few hundred avatars in Second Life?

In the essays in this section, these questions are not answered, but rather explored in a manner that leads to even more questions - and greater intellectual and legal challenges.

Privacy and Identity in Virtual Worlds

A similarly charged topic is that of the blurred lines between real life and fantasy in a simulated world. For many gamers, the allure of a virtual life is the ability to recreate oneself: to be more attractive, wealthier, smarter, more intriguing. For others, it might be to diminish these qualities, so that one is known purely for one's intellect or ideas. Either way, we remain human, and such unclear lines can result in human pain - a pain that is quite real for those who experience it, even though it is born out of a non-reality.

In "Who Killed Miss Norway?" Tracy Spaight explores a haunting example of such attachment. Miss Norway was a clever gamer on the game LegendMUD. She formed a successful business and led a group of traders that evolved to be known as a strong and respected guild. When Miss Norway simply disappeared (logged off for the last time), it was rumored that, in the real world, she'd died in a car accident - which led to a genuine memorial on LegendMUD that collected heartfelt remembrances. (Meanwhile, her guild gradually crumbled without her leadership.) The author's research, however, suggests that there may have not been any real-world death -merely a simple way for Miss Norway to cleanly exit her (or his) virtual community.

In a world where online gaming and virtual communities are only getting more sophisticated and appealing, these essays highlight the risks we all take if we do develop close ties to our virtual-life counterparts. If part of the appeal of embarking on a virtual life is the ability to create and protect your own virtual identity, the authors remind us that we must proceed with caution: The person a user falls in love with within the game, for example, could be an entirely different being outside it.

Virtual Worlds and Real-World Power

Finally, the collection concludes with several pieces on the extent to which our worldly legal rules reach - or should reach -- into a virtual reality. Questions posed include: Can we use virtual worlds as testing grounds for innovative approaches to our current legal framework? Can we (as gamers in a virtual world, or in our real lives) reasonably be expected to recognize and abide by rules defined by a particular space?

For example, David R. Johnson, in "The New Virtual Literacy: How the Screen Affects the Law," concludes that the new virtual worlds present us with an opportunity to view our on and offline organizations and communities in a new and enlightening way. Urging that such experiences can offer an opportunity to grow, Johnson argues that all involved should have a sense of their duty to make the most of this unforeseen opportunity. In contrast to several pieces that address the shaping of applicable law for virtual worlds, Johnson suggests, conversely, that we use virtual worlds to help shape and test real-world laws.

The issues in The State of Play provide a mere taste of what lies ahead. For those who want to skip over the hype and dive into the issues, it is hard to imagine a better resource.

Author's Note: Contributors to State of Play include: Jack M. Balkin, Richard A. Bartle, Yochai Benkler, Caroline Bradley, Edward Castronova, Susan P. Crawford, Julian Dibbell, A. Michael Froomkin, James Grimmelmann, David R. Johnson, Dan Hunter, Raph Koster, F. Gregory Lastowka, Beth Simone Noveck, Cory Ondrejka, Tracy Spaight, and Tal Zarsky.


Cecily Deane Mak is Senior Counsel, Music at RealNetworks, Inc. She is a frequent public speaker and writer on a range of topics including music rights, online media and entertainment law matters.