Effective governance of virtual communities: A Licence to Live, Play, Dance, Fight and Kill…or Dr Melissa de Zwart DISE 27 August 2010

…‘I aim to misbehave.’ Capt Mal Reynolds, Serenity Melissa de Zwart2 Copyright © 2002 Twentieth Century Fox Film Corporation. All Rights Reserved.

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 Melissa de Zwart3

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… Melissa de Zwart4

Contractual governance vs community expectations Is a one size fits all approach possible? A universal EULA? 5Melissa de Zwart

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 Melissa de Zwart6

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 Melissa de Zwart7

‘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 8Melissa de Zwart

The problem with Second Life? 9Melissa de Zwart

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.’ Melissa de Zwart10

What is it that the users really want? 11Melissa de Zwart

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’? Melissa de Zwart12

13Melissa de Zwart ‘you can’t for example just take someone else’s property in Second Life’ Rosedale, 20 July 2006

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.’ Melissa de Zwart14

‘SECOND LIFE IS A VIRTUAL WORLD SERVICE’ 15Melissa de Zwart

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.’ Melissa de Zwart16

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. Melissa de Zwart17

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 Melissa de Zwart18

[not a place of public accommodation, Stern v Sony] [not a company town Estavillo v Sony] ……sooooooo not really a place then? Melissa de Zwart19

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. Melissa de Zwart20

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.’ Melissa de Zwart21

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? Melissa de Zwart22

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 Melissa de Zwart23

Core ToS Privacy Age- appropriate content Intellectual property ownership Dispute resolution mechanisms Standard language or terminology transparency Melissa de Zwart24

Questions? Melissa de Zwart25