Global Metaverse II: The Policy Problem; Patents, Copyrights and Trademarks

Following up on Global Metaverse: Taking Stock of Technology, and lagging more than the intended day, I'll write something about policy which affects the concept of the metaverse. Law and Policy are not so separate; in many instances Law is Policy made concrete - or Law is an excuse for Policy, or vice versa. While the majority of the world are not involved in the legal profession, it does not mean that people should not discuss law. That would be like saying that users of computers could not discuss hardware and software; we are all consumers of Policy and Law. Thus, as someone who is not a lawyer, I write of Law and Policy with the expertise implicit in paying attention and asking questions¹. Further, if links are provided it is suggested that you follow the links and read up on things you are not familiar with - something which seems painful to have to say on the internet, as it should be something which people on the internet would do anyway.

This entry will be about policy related to Law that is supposed to protect creators while allowing users some rights to use the items. This is at the very core of a metaverse.

Copyrights, Patents and Trademarks

No conversation related to communicative technologies is complete without addressing issues of copyright, patents and trademarks. They are neatly bundled together in the phrase, 'intellectual property', but the Laws of copyrights, patents and trademarks are not similar. The idea, though, is that anything brought forward as original from someone's mind deserves protection such that others do not profit from it to the detriment of the person who originally thought it up. This is not a bad idea, but in practice can have less than desirable effects. Rather than get into the intrinsics of these Laws, I'll skip to the higher level - international policies related to the bundle known as 'intellectual property'.

What many fail to realize is that the Laws around the world in this context are not always compatible. For example, in Trinidad and Tobago, I can copyright a database. That cannot be done in the United States the last I heard of it, and it is questionable as to whether it should be done. The point is that there are incompatibilities, and these incompatibilities make a metaverse an unstable place. That said, there are compatibilities in these laws - but these compatibilities are made through TRIPs and GATT. These are not necessarily seen as good things; signing up for these is supposed to be a part of an overall trade relation to another country and may be a factor in achieving Most favoured nation or Normal Trade Relations status.

What this means is that the acceptance of the Laws related to 'intellectual property' are dependent on overall trade; the less trade leverage a nation has, the less likely it would be that it would be able to avoid these agreements. While Lawrence Lessig and others have voiced their criticisms of some aspects of these laws, they remain the same - which has lead to a less fertile public domain. Can that be demonstrated? Not really, but if corporations can say that 'software piracy' and 'music piracy' causes them loss of profits, then we can say that the public domain has been robbed. The difference may be that publishers often say that they own the rights, but the rights they own are commodities purchased from creators - the original people who were to be protected.

Thus, it should be clear that despite the lack of expressed interest in 'intellectual property' Laws by those who write of virtual worlds - these are issues which will constantly arise and create problems in the context of virtual items.

While some question the value of virtual items, Castronova writes:

I would argue that these processes of value creation have advanced so far, even at this early date, that almost everything known as a "virtual" commodity - the gold piece, the magic helmets, the deadly spaceship, and so on - is now certifiably real. Indeed, as I argued in the introduction, the term virtual is losing its meaning. Perhaps it never had meaning. The things happening online have always been literal human things; there was never anything metaphorical, as-if, or subjunctive about them. At first it may have been convenient in many ways to think of networked human interaction as only a model of the real thing. Now, however, and specifically in the arena of synthetic worlds, the allegedly "virtual" is blending so smoothly with the allegedly "real" as to make the distinction increasingly difficult to see. There's nothing revolutionary in this, though. It is merely a recognition that these things were always as real as anything else in the human culturesphere.

Consider - if I create something on my machine - a texture - and spend time and energy on it, I deserve some Rights to it (even if those rights are to give up some of those Rights). I upload it to Second Life, I have an implicit copyright by virtue of creating it. I am in Trinidad and Tobago, Linden Lab is in the United States. Let's say that someone from Brazil makes something similar, enough so that I wonder if it is a copyright violation. If it is a copyright violation, does my lawyer here in Trinidad deal with a lawyer in Brazil? Where do we go to court, California? And over what? A texture that I may make $10 US/month off of would make a poor business case for defending one's copyright for thousands of dollars. Lawyers cost money, and dealing at an international level would not decrease price. Therefore, it pays to infringe on copyright in virtual worlds. In essence, the system supports what the system itself calls criminal activity. That just about sums up copyright and the metaverse for the layperson.

What is the answer? Castronova hints at it:

If large numbers of German laborers decide to work in France, the GDP of both France and Germany changes significantly. Similarly, if large numbers of Earth laborers decide [to] work in cyberspace - by which I mean, spend their time creating digital goods rather than ones made of metal and plastic and cloth - the GDP of both the synthetic world and the Earth must change, significantly.

In essence, there is an economy of a virtual world which is affected by the number of people working in it. So, as more people create virtual items, will this mean that the fiscal value of copyright will go down? Probably not. But the fiscal value of defending a copyright has to go down if the real world economy and the synthetic world economies are to negotiate a trade agreement, however informal. The scales are off by orders of magnitude and the trade imbalance is demonstrated by protection copyrights in virtual worlds. This is imperative for a metaverse. This requires 'significant change' - and that is a bit of an understatement.

Where is the progress? Many of the lawyers who assert so much when it comes to virtual worlds don't seem too communicative about the fuzzy area of international laws which are seen at levels of governance within the Internet. Where were they for WSIS? But then, where are the lawyers from? Truly, the mainstream's accepted legal experts are from the United States - and as such their interest is in US Law, as it should be. But if there is to be a global metaverse instead of a metaverse planted in one nation's back yard, some international discussion would be necessary. One would hope, anyway. We have time, I suppose. There's no schedule for the metaverse.

Trademarks present similar problems, but not as much. Since trademarks are only owned by businesses, the numbers of trademarks involved is substantially lower. This does not mean that there are not problems. A person could register a trademark in one country which infringes upon the trademark of a business in another country and no one would know until they hit heads in cyberspace. The company with the most lawyers typically wins. Consider Nissan Motors v. Nissan Computer². While I have no opinion of the case itself that I will express here, I can say this: In a world where audiences cheer for the underdog, it seems we like making underdogs so we can cheer some more.

Patents haven't really entered the virtual world domain, aside from the PeerToPatent.org initiative gaining some visibility. But software patents are a factor with underlying technologies, and may well be used in some cases with virtual items. Consider that the present case over a virtual bed is being approached as a patent - but is a virtual rendition of something which involves scripts, textures and primitive objects in specific positions something that a patent would be useful for?

It should be apparent that the metaverse is in dire need of some work in the areas of the 'intellectual property' aspects of policy. But that isn't all of the policy which needs to be addressed. More coming.

¹If you want legal advice, talk to a lawyer. But if you want to change Law or Policy, talk to everyone.
² I don't know what that person has against the French, but hey...