There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world and interact with each other through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer or platform owner to plan, construct, and maintain the virtual world. This is the freedom to design. The third kind of freedom is the collective right of the designers and players to build and enhance the game space. We might call this the freedom to design together.
-- Jack Balkin
To a very considerable extent the players' freedom to play is the freedom to play within the rules the platform owners have created.
-- Jack Balkin
The right to play in a particular virtual space depends in large part on what kind of space it is and what kind of game the platform owner is trying to create.
-- Jack Balkin
The platform owner usually cannot make everyone happy because suggestions may run in very different directions; some people may want to have a certain behavior prohibited, while others want it to become a legitimate part of the game. Nevertheless, the interaction between the platform owner and the player community assists both the freedom to design and the freedom to play; it is one aspect - although certainly not the only one - of the freedom to design together.
-- Jack Balkin
Although the freedom to play generally exists within the rules of the game, platform owners may run their spaces in ways that players believe are unfair or tyrannical. As a result, claims about the platform owner's freedom to design may clash with players' claims about the freedom to play, and the law may have to arbitrate between them.
-- Jack Balkin
The enormous power that platform owners wield over events in the game space, and their ability to see everything that is going on in that space, means that they have abundant opportunity to abuse their authority. The fact that players have signed an agreement with the platform owner and can voluntarily exit from the space does not necessarily settle the matter.
-- Jack Balkin
The right to design and play in virtual worlds overlap in important respects with the constitutional rights of freedom of speech, expression and association. However, free speech law fails to protect important features of the rights to design and play because the First Amendment generally protects individuals only from abridgments by the state, and not by private parties.
-- Jack Balkin
If the state dislikes the theme and design of the game, or dislikes the ideas that players and programmers communicate in the game space because these ideas are violent, offensive, or indecent, the state may not restrict the content of the design or the activities of the players under the First Amendment any more than it could ban books or movies because of the ideas expressed in them. The major exceptions to this principle are the same that apply to books and movies: the state may ban obscene expression, and it may protect children from exposure to indecency. Concerns about indecency, however, are best dealt with not by restricting the speech of adults in virtual spaces, but by restricting access to minors, or zoning the virtual space so that minors cannot enter certain areas of the virtual space.
-- Jack Balkin
To be sure, what falls within the rules is sometimes disputed. Players are enormously creative, and often come up with new strategies and devices that platform owners could not have foreseen. As a result, internal norms arise in many virtual worlds to regulate what players may do in the spaces; people can shun or punish people who misbehave and some players have created in-world tribunals to adjudicate disputes. The platform owner can also regulate behavior in the game space by altering the code or the EULA. The platform owner can sanction or expel players who hack into the game to give themselves special abilities, or who otherwise violate the rules or the spirit of the game. When platform owners do this, they are invoking their real-world contractual rights. To this extent, state regulation is always involved in the governance of the game space.
-- Jack Balkin
All activity in virtual worlds must begin as a form of speech. When people injure each other in virtual worlds in ways that the law will recognize, they are almost always committing some form of communications tort.
-- Jack Balkin
If a platform owner allows the players to hold copyrights in their own designs, the game owner is inviting the law into the game space, and the problems of enforcing intellectual property rights are greatly multiplied. For example, people may have intellectual property interests in the design of virtual items. Taking a screenshot of the game that displays these items makes a copy of the surface pattern, and thus may violate the owner's intellectual property rights. All of the emerging conflicts between freedom of expression and intellectual property law are present in virtual worlds. In fact, because so much activity in virtual spaces involves copying and building on existing elements, and because the entire space is a set of representations, the conflicts between freedom of speech and intellectual property are further heightened; in some respects, virtual worlds constitute a perfect storm.
-- Jack Balkin
Defamation can also occur in virtual spaces. People can defame other people's real-world identities in cyberspace, just as they can in real space. People can also defame players' in-world identities, or avatars, for example by falsely claiming that a particular character has cheated. Speech is defamatory when it harms one's reputation in one's community, and in theory this should include virtual communities as well. Although leaving the virtual community for a new one or creating a new identity are technically available options, they may not be a sufficient remedy if people invest a great deal of time and energy in creating their in-world personas, and value their participation in the community highly. In general, the more important virtual worlds become to people and the more time and effort they invest in them, the more likely it becomes that the law will take seriously injuries to their in-world reputation as well as their in-world possessions.
-- Jack Balkin
It is likely that in the future virtual spaces will be used to create an entertaining space for people to shop online. That means that consumer protection laws will apply in these virtual spaces, including restrictions on false and misleading advertising. Nevertheless, the merger of collective storytelling and shopping may lead to difficult problems; is a certain maneuver or deception a form of false advertising, or is it just part of the game?
-- Jack Balkin
Although courts may ultimately not extend First Amendment privileges to players in virtual worlds, legislatures may well take these claims seriously and extend free speech rights by statute in order to recognize the speech rights of both players and platform owners. Two analogies come to mind. The first is that of private universities, which, although they are nominally private actors, understand themselves to be spaces for the free exchange of ideas. The second analogy is that of telecommunications law. In American telecommunications law, owners of communications networks such as cable companies are both conduits for the speech of cable programmers and speakers in their own right. Much of telecommunications law involves balancing the speech interests of owners of communications networks and independent speakers. To this end, federal cable regulations sometimes require that cable owners respect the free speech interests of independent programmers, for example, by providing public access channels. In like fashion, legislatures and administrative agencies may choose to balance the free speech interests of platform owners with those of the players.
-- Jack Balkin
...statutory protection of free speech rights by players may conflict with the platform owner's constitutional right to design. The objection is not simply based on the platform owner's property rights in the game space; rather, it is based on the platform owner's constitutional interest in creating and overseeing a collaborative work of art, somewhat like the First Amendment interests of a director of an improvisational theater. In assessing this conflict, everything depends on the nature of the virtual space that the platform owner has created.
-- Jack Balkin
Platform owners will no doubt assert First Amendment defenses to legislative protections of rights. In the Information Age, the First Amendment has become the first line of defense against almost every variety of government regulation of media enterprises. Some of those First Amendment defenses should be taken seriously, but others should not. The First Amendment is misused if it allows platform owners to avoid what is essentially consumer protection regulation. In addition, because platform owners are conduits for the speech of others as well as speakers in their own right, we can imagine game spaces where regulating to protect the free speech interests of the players might be constitutional. But there is a great danger here: legislatures must understand that all game spaces should be treated alike.
-- Jack Balkin
Technorati Tags: 
Post new comment