Navigating the Slippery Slope: A Spatial Approach to Law in Virtual Worlds

  1. While a job playing video games might sound like many a child's dream, the realization of such fantasies raises troubling questions for gamers, software companies, lawyers, and governments alike. With increasing breadth and frequency, "virtual worlds" are coming into conflict with real-world establishments and economies. In "The Unreal Estate Boom," an article that explores the crossing of this profitable and permeable boundary at online auction websites, Julian Dibbell poses a question that clearly illustrates the conflicting nature of these developments: "How, exactly, did a 7-Kbyte piece of digital make-believe become John Dugger's $750 piece of upmarket real estate?" To address the inevitable legal issues raised by such paradoxes, a spatial approach to law and virtual worlds must be firmly established.
  2. First, in order to understand how "digital make-believe" makes a transformation such as Dibbell describes, it is necessary to explore how the very concept of definition is inextricably related to space. Nicolas Blomley shows this clearly by stating that: "a physical attack is differentially coded as violent assault or domestic abuse depending on the space in which it occurs." Therefore, to properly approach the issue of virtual worlds, one must first examine the space in which they exist, the space where Dugger's "upmarket real estate" finds form--that murky realm known as cyberspace. To hackers, cyberspace might be the metaphorical location of their minds when they are in "hack mode"; A cyberpunk fan might recognize it as a "notional information-space . . . with visual cues and navigable with brain-computer interfaces" (Howe). Cyberpunk fiction writer William Gibson famously described it as having "no there there." To most, however, cyberspace has come to mean the Internet--this place that humans often inhabit and frequently visit, but rarely consider where exactly it is and how they got there. It is a space that avoids the tendency for corporeal definition and thereby confounds a singular sense of place and being.
  3. Due to such spatial paradoxes, cyberspace has often been described metaphorically--the term "cyberspace" itself being perhaps the most obvious metaphor. But such metaphorical characterizations of the Internet are problematic as they can exclude alternative ways of thinking and conceptualizing a space. Such understandings often lead to poor policy, as the conceptualization of a space tends to influence the legal and regulatory approach toward it (Yen 1210-15). In one famous example, the widespread use of the Frontier metaphor to describe the Internet has reinforced the mindset that cyberspace is a separate place--one that is outside of our real world laws. As Alfred Yen explains:
    If society thinks of the Internet as a new Western Frontier, it will often refrain from using law to rectify problems in cyberspace because legal regulation does not fit comfortably into the Western Frontier metaphor's romanticized tale of progress. This troubling use of the Western Frontier metaphor conveniently overlooks historical episodes of injustice and exploitation in the West that appropriate legal regulation might have prevented. (1213)
    To avoid such shortcomings, the legal approach to virtual worlds established herein will refrain from metaphorical characterization and, instead, include a direct examination of the Internet's spatial components.
  4. Cyberspace, then, must be understood as the simultaneous interplay between multiple physical locations. As Katsh describes it, "A user of an electronic collection is really in two places at once--in the place where the computer is located and in cyberspace, where the electronic information place is located." However, the intersection between these physical locations gives rise to a possible third spatial dimension of the Internet--social space. This novel area is arguably the central factor in what makes cyber "space" so difficult to comprehend. The existence of this social space has even prompted the belief that cyberspace constitutes a separate reality outside of the physical realm (though the metaphor itself surely contributes to this notion). From this understanding, such artifacts as the Declaration of the Independence of Cyberspace (an ironic response to and rejection of the Telecommunications Act of 1996) were born: "You have no sovereignty where we gather... I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us" (Barlow 1). However, these conceptualizations have made little impact on the development of a legal approach to cyberspace. In fact, since law has always been rooted in the "physical plane" (Barlow, qtd. in Saco), and every entity or act in cyberspace is, at root, the "transmitting [of] digital information from one point on a network to another," the spatial foundation for law and the Internet has been rather easily established (The Digital Millennium Copyright Act). As Koppell asks, "In reality, the problems created by Internet transactions simply involve making decisions about jurisdiction. Should a criminal computer user, for example, be subject to the laws of the state in which he resides or to the laws of the state in which the victim resides?" What this means is that while a sovereign space may warrant the application of various legal regimes, the physical space that underlies all such law is never called into question. In other words, there is no fundamental spatial shift that renders the law itself obsolete. In virtual worlds, however, the transformation that Dibbell describes creates just this difficulty.
  5. Attracted to this apparent inapplicability of law to virtual worlds are throngs of eager and imaginative criminals, busily inventing and perfecting the arts of ambushing virtual travelers and robbing virtual estates. In 2003, such occurrences were estimated as constituting over 22,000 crimes in South Korea alone (Wearden). Alongside these nefarious characters are scores of equally creative fortune hunters, amassing virtual goods through virtual work, and finding profits in the physical realm--confident that other players will continue to offer up "their hard-won real money in exchange for invisible bits and bytes because they see the intangibles of UO [Ultima Online] as being something worth having. A tower for a sense of pride. High skills for greater freedom of action" (Koster). In his Weblog, "Play Money," Julian Dibbell relates an encounter with one such highly successful entrepreneur:
    Imagine, therefore, my surprise upon learning that in addition to the half dozen executive types working out of IGE's Boca Raton headquarters, the company employs another 65 Chinese citizens at its Hong Kong base of operations, the majority engaged in 24/7 delivery of virtual goods. Imagine, furthermore, my wonder at learning that some of IGE's chief suppliers are mainland Chinese subcontractors running EverQuest-playing sweatshops in the hinterlands.
    Sweatshop characterizations (or actualities) notwithstanding, the problem of virtual worlds is, simply put, the problem of virtual property being bartered in real space. While at first glance these events appear innocuous, as intellectual property law deals with just such intangible goods, the foundation for intellectual property law rests upon the direct relationship between an object's real-world sense of value and its existence--a correlation that virtual items inherently defy. As Rickey explains, "The part of the [EverQuest] sword that has value is the idea of the sword, what you can do with it within the context of the game, and the value you place on that idea and those actions." In this manner, the value of the virtual property becomes divorced from the space in which it claims existence. To supply a pre-cyberspace illustration of this phenomenon, it is necessary to examine a similarly divisible (and thereby non-physical) relationship between an artifact's value and its context. One might ask, for example: What happens to the value of marriage when it is removed from the religious or social space in which it exists? Or perhaps more to the point: What happens to the value of law? As Rickey further notes, such values become unglued:
    If your sword is worth $300 on eBay, and I as a developer decide your sword must be deleted, I just made $300 of your net worth disappear; What's your potential for action, can you sue me to make me give you back your sword? What if the sword disappeared through a bug, is this negligence? What if it was worth $300 because it was the best sword in the game, but I introduce a better sword and the value of yours falls to $100?
    To these questions one might also add: What happens if or when the game (virtual world) goes out of business? Will governments or insurance companies recognize individual property claims? Or, as Dibbell asks of Paypal: What is the distinction "between a football game and a virtual item that results in one being covered and the other not?" Clearly, such questions cannot be properly resolved until the spatial conflict that obscures them is addressed--until the value and space of virtual property are realigned.
  6. Thus conceived, either real-world space must be re-attached to real-world value, or the value of virtual goods must be contained within the space of virtual worlds. For the former, this might entail that Massive Multiplayer Online Role-Playing Game companies regulate or assign value to every item and character within their virtual realm (e.g., categorically, and within reasonable limits). Such an approach would provide the required real world valuation of virtual items necessary for courts to function in their proper manner. For the latter solution, game companies might simply attempt to limit and deter the real-world bartering of their virtual goods. The key to this approach would be the legal recognition that everything within these virtual worlds constitutes the intellectual property of the game company,which, as Dibbell notes, might not be difficult to obtain: "OSI, the company that produces UO, can make a fairly defensible claim that all the goods to be found in the game remain its property, and that the eBay market is thus at best a form of mass delusion and at worst a collective trafficking in stolen goods" (Play Money). In fact, a precedent for this has been established by the Blacksnow Interactive, et al. v. Mythic Entertainment, Inc. case, wherein the California District Court validated Mythic's End User License Agreement (EULA), and thereby acknowledged the virtual worlds and their contents as the company's intellectual property. By assigning ownership in this manner, legal claims of value arising from individual players would be logically precluded. To take this one step further, companies might then have the incentive to implement technological controls to restrict infringement (though such a step is not necessary to bypass the legal tangles targeted by this paper). While these measures prompt the question of whether these spaces should be regulated, there doesn't seem to be much of a choice, as the problems created by the movement between these spaces are becoming more and more common. As Rickey notes, "the IRS has already made the value (or lack thereof) of an EverQuest account an issue in an estate case... This stuff isn't going to stay theoretical for long. Sooner or later tax, divorce, or inheritance law is going to make it of immediate concern." While clearly the need to develop a model for regulating these spaces is important and imminent, they must first be understood--lest Barlow's indictment of the United States Senate at the passing of the Telecommunications Act of 1996 as "the illiterate... tell[ing] you what to read" be repeated (Rossetto qtd. in Barlow). With this in mind, it is my hope that this article suggests not only a viable legal approach to virtual worlds, but serves to increase understanding of the spatial aspects of the Internet that both direct such an approach and make it necessary.