A nice summary of the Eros legal dispute over at CNET.

(If you’re unaware, the maker of the SexGen beds accused Raze Kenso of selling unauthorized copies of the beds. A court later ordered the release of information related to Raze Kenso’s real identity.)

It makes the now (to me) self-evident point that:

Assuming the complaint stands up and the litigation proceeds, the unmistakable point is that even virtual interactions that do not take place in real life can lead to real legal action in our brick-and-mortar courts when actual monetary interests are affected. If the stakes only were virtual, then perhaps the disputes could be resolved by judge and jury avatars in a place like Second Life. But that might not be resolution enough when money’s at stake.

Once again, folks….an object is an object, whether virtual or real.

Dispute Mechanisms in Virtual Worlds may Be Necessary
However, I’m not sure others would entirely agree with the last sentence, and certainly I don’t. It assumes first of all that there is no place for a legal dispute mechanism within a virtual world.

The concept of creating a legal jurisdiction for virtual worlds isn’t new…the question remains whether a End User License Agreement (EULA) or Terms of Service (ToS) carries with it a legal framework for partly resolving legal disputes that are “real”. Linden recently revised its Terms of Service to deal with claims against itself. I covered this here.

While it’s natural to turn to courts for legal remedy in the case of “real” damages, this neglects the fact that the ToS and legal mechanisms WITHIN virtual worlds are still evolving, and the courts will need to, at some point, come to conclusions as to whether the concept of property in virtual worlds might have different interpretations based on different world types. Copyright infringement might be one thing, but what about theft of goods – if a “game” allows stealing, or it’s part of the role-playing, when does something move from being ‘game-based stealing’ to become ‘real world damages’?

I recently argued that the setting of social policy via the EULA and ToS could become a component in determining how property and resolution of complaints might be handled. What I mean by social policy is creating an understanding through the “contract” that users enter into when they join a world. One world might prohibit the sale of goods – when a case went to court, parties could argue that the suit should be interpreted against the social policy of the world in question (as reflected in the EULA or ToS and hard coded into the software that runs the world).

Whether ToS and EULAs need to be reworked entirely so that they are relfective of both legalese and a sort of “charter” approach to legal rights and social policy might be one of the more interesting developments in the coming months and years.

In the Eros case, the social policy of Second Life is fairly clear, and the parties can’t fall back on the Second Life social policies to defend the copying of objects – SL has a fairly clear policy on intellectual property as well as the “code” to back it up. The defendant has argued that evidence was obtained through illegal search and seizure – their in world home was entered and evidence photographed etc. What an odd defense, but in any case I don’t think there’s anything in the social policy of SL that precludes visiting, sending your camera to visit, or “touching” objects on “private” land. The only thing that’s hard coded is the option of users to put up ban lines, but this isn’t accompanied by a privacy policy for personal space. (If you want privacy, pay for it and get yourself a private island….though even that has issues).

I further argued that platform owners would need to include a clear mechanism for dealing with feedback from users, otherwise they are both ‘god’ and judge – setting the policy and judging whether the code has interpreted that policy correctly:

Without, however, a viable feedback loop from users, users could argue that in fact a specific action contravenes the stated social policy – that with no opportunity for communication with the coding authority, or no response to their pleas, the liability has shifted back to the platform owner.

All of which leads to the idea that prior to heading off to “bricks and mortars” courts, there will be a role within different virtual worlds, at different levels of sophistication, for in world dispute mechanisms as a forum for interpreting whether actions fall within the confines of the social space as defined by the EULA, ToS, (or their future replacements), and thus the code.

There is NO Such Thing as “Only Virtual”
The last sentence in the CNET column seems to place a distinction: in this case, the damages were more than “only virtual”. True – money was involved, and the social policy and code of Second Life is no excuse if the defendant did as is claimed. But the author’s conclusion seems to indicate that there’s some category of activity in synthetic spaces that IS “only virtual”.

Is a virtual rape “only” virtual? This has been hotly debated and Wired gave a nice round-up and opinion where they concluded that it was hardly a matter for police.

But as synthetic worlds become increasingly immersive and ‘real’ and as increasing numbers of people choose to spend more of their lives in these spaces, what exactly WOULD fall in the bucket of “only virtual”? It would not be an issue of whether something is virtual or not, it would be an issue of whether something fell inside or outside the “game rules”/social policy/EULA/ToS or not. Virtuality is not the litmus test for whether something should be taken seriously or not.

While I’ll commend Eric Sinrod at CNET of spreading the world that objects are still objects (virtual or not) and that what happens in virtual worlds can have consequences worthy of a court’s attention, I’d like to hear a compelling argument for when anything ever has been “only virtual” – pardon my use of the word, but that’s a mind-set not a reality.