Effective governance of virtual communities: A Licence to Live, Play,

Dance, Fight and Kill…or

Dr Melissa de ZwartDISE 27 August 2010

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…‘I aim to misbehave.’

• Capt Mal Reynolds, SerenityCopyright © 2002 Twentieth Century Fox Film Corporation. All Rights Reserved.

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What is it that gives governments legitimacy?

• Natural law: law is a set of rules that can essentially be derived from nature, Aristotle, Hobbes (the social contract, Leviathan, 1651), Fuller (to be valid the law must be impartial and publicly known)

• Legal positivism: questions whether there is a connection between morality and law, Bentham, Austin, Hart (law as a system of social rules), laws may seek certain ends eg justice and morality, but failure to obtain this outcome does not invalidate the law if validly made

• Constructivist: Dworkin, look at the law as applied by legal institutions and officers

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But…

• We don’t have to worry about this in online communities because we have the EULA…right?

• Problems: where the EULA is vague or where the terms have been changed

• Thus more issues in ‘open ended’ worlds• Natural due to evolution of platforms• First comes the code, then the community…

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Contractual governance vs community expectations

• Is a one size fits all approach possible?• A universal EULA?

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EULAs are software licences

• Difficult to encapsulate all relevant laws in the EULA

• Consent and community standards as means of filling in the gaps, Fairfield

• Consent between platform provider and users, consent between users

• IPR and content regulation key external factors influencing terms of EULA

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One more problem…

• Social gaming changes the expectations of the user base

• Likely to lead to the expectation of application of broader social rules, norms and laws from outside of the platform

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‘virtual property’ take 2:

• Carl Evans, Donald Spencer, Valerie Spencer, Cindy Carter v Linden Research

• Class action filed April 2010 in US District Court, Eastern District of Pennsylvania

• Claim related to loss of virtual property, goods and accounts

• Actually revolves around claims relating to misleading and deceptive conduct

• Based upon jurisdiction established in Bragg

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The problem with Second Life?

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The evolution of the Second Life EULA:

• Click wrap software licence• Belief by designers that intellectual property

the only key issue that needs to be dealt with• Code versus terms of licence• Malaby: ‘Linden Lab provided the tools, and

the world, and the users would make things.’

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What is it that the users really want?

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Bragg v Linden Lab (2007)

• Confiscation of Bragg’s inventory inc land, goods and money

• Arbitration clause held to be unconscionable on both procedural and substantive grounds

• Substantive matters left unresolved• Number of statements by Rosedale and

Linden regarding property: are these mere marketing ‘puff’?

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‘you can’t for example just take someone else’s property in Second Life’ Rosedale, 20 July 2006

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The new new terms of service:

• Effective 30 April 2010• ‘Second Life is a virtual world service

consisting of a multi-user environment, including software, websites and virtual spaces.’

• Second Life has become a ‘multi-user online service.’

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‘SECOND LIFE IS A VIRTUAL WORLD SERVICE’

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service

• 4.2 ‘Second Life exists only as long as and in the form that we may provide the Service, and all aspects of the Service are subject to change or elimination.’

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space

• 6. Virtual Land is the graphical representation of three-dimensional virtual word space. When you acquire Virtual Land, you obtain a limited license to access and use certain features of the Service associated with Virtual Land stored on our Servers.

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• When you acquire Virtual land, Linden Lab hereby grants you a limited license (‘Virtual Land License’) to access and use features of the Service associated with the virtual unit(s) of space corresponding to the identifiers of the Virtual Land within the Services as designated by Linden Lab…

• You acknowledge that it is not a real property right or actual real estate

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• [not a place of public accommodation, Stern v Sony]

• [not a company town Estavillo v Sony]• ……sooooooo not really a place then?

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Intellectual property

• Because the law may or may not recognize certain Intellectual Property Rights in any particular Content, you should consult a lawyer if you want legal advice regarding your legal rights in a specific situation.

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Stuff you are willing to lose…

• You should ensure that you have only stored Content on the Servers to which you are willing to permanently lose access.

• Termination: You acknowledge and assume the risk of the possibility of suspension or termination of your Account… and you represent that you will make your decisions to participate in the Service, contribute Content, spend your money and dispose of transferable licenses at all times knowingly based upon these risks.’

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Legal disputes most prevalent in ‘open worlds’ like SL

• Not WoW or EvE??• Will this change as platforms become more

heavily populated by non-RPs, casual gamers?• More social less game?• Consent becomes less clear • Fall back upon regulation by code?

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Likely outcomes of the ‘virtual property’ case?

• Success depends upon claims of rights under consumer protection law, tort or contract rather than property

• Significance lies in consumer protection issues and recognition of the lurking danger in the intellectual property issues

• UGC complex overlapping arrangements and lack of consumer clarity

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Core ToS

• Privacy• Age- appropriate content• Intellectual property ownership• Dispute resolution mechanisms

• Standard language or terminology• transparency

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Questions?

• melissadez@gmail.com• Melissa.dezwart@unisa.edu.au