[¶1]Virtual game worlds are one of today's most lucrative
entertainment venues. In these games, human players from around the
world spend countless hours exploring, socializing, fighting, or
participating in commerce. Certainly, one of the fascinations and
intrigues of virtual games is that they mirror the real world, but
only partially so. As such, players can live another life, a virtual
life, in tandem with their real lives and all through the eyes of
their game characters called avatars.
[¶2]Over ten million avatars play worldwide and billions of
dollars exchange hands in these virtual environments.
The virtual objects and property are worth real money and the
players are very keen to develop the best and most successful
avatars. Whether the environment is set up as a goal-oriented game
or as a non-scripted game with free thinking and acting avatars, the
common thread among these virtual spaces is the player's
substantial investment in time and resources. As a result, this form
of serious gaming is more than just a pastime for leisurely
entertainment. For some, it is a livelihood.
[¶3]And yet in these online gaming environments, where computer
code and lax community standards are the only limits to an avatar's
liberties, players are invariably subject to the deviant acts of
other players; or alternatively, they are the deviant actors
themselves. Put differently, players may choose from a variety of
virtual crimes as long as the game lets them, without any realistic
consequences. And the victims cannot turn to any virtual justice
department or real world jurisdiction to seek direct relief from the
perpetrator. Rather, victimized players are left in a disgruntled
and uneasy state of game play.
[¶4]Players who have in-game assets or are engaged in virtual
commerce really feel the rub of virtual game crime. For instance, Carissa Hill, a resident of Lawrence, Kansas, called
the local police in early 2006 because her avatar, who was a real
estate agent in the very popular virtual game of Second Life,had been swindled by an online scam artist that had stolen another
online character's identity in the game.
However, Hill did not lose her real world money. Rather, she was
cheated out of in-game Linden Dollars ("L$")—the form of
currency used in Second Life. Had she been able to convert her L$ on
the Linden Exchange ("LindeX"),
it would have been equivalent to 180 U.S. dollars. Evidently upset,
Hill called the local real world police for she did not know where
else to turn. However, the police could not help; they did not know
what to do or how to handle the matter. "I would say this is a
unique report," commented Kim Murphree, the Lawrence Police
Department spokeswoman. Murphree explained, "This may happen all the time, but do people
bring it to the attention of the police department? No."
[¶5]Though Hill's reaction appears unique, and perhaps even
extreme, her real world predicament arising from a virtual world
incident cannot be ignored. More and more players are feeling the
rub of griefing.
The griefer is a player of malign intentions. They will hurt,
humiliate and dishevel the average gamer through bending and breaking
the rules of online games. But their activities are hardly
extraordinary. Indeed, they only exist at all because of normal,
human urges, albeit the ugly and reprehensible ones. They want glory,
gain or just to partake in a malignant joy at the misfortune of
others.
And in environments where griefing runs rampant, victimized players
are ultimately impacted adversely.
[¶6]Indeed, the economic and social investments in virtual
worlds are great and visibly, quite serious. An estimated 5.2
million players will subscribe to online games by 2008, bringing in
an expected $556 million in revenue. Many have turned this hobby into a serious business opportunity.
For instance, John Chapman of Canton, Michigan, earned approximately
USD $25,000 annually for three and a half years trading artifacts in
the virtual world game, Ultima Online,while he was unemployed. It was Chapman's only source of income. Had he, like Hill, been
defrauded of his assets in the virtual space, his real world
lifestyle would have taken a drastic hit also. Thus, crimes
committed in a virtual environment should not be overlooked. Otherwise, real world authorities will likely face further virtual
world challenges.
[¶7]Perhaps a reason why victimized avatars cannot seek direct
relief has to do with the contentious debate over virtual game-play
and the law: should virtual worlds fashion similar real world legal
rules and consequences within their worlds? Some argue that real world rules do not have a place in a virtual
game setting—humans need not be subject to any consequences during
fantasy game-play. After all, a game is defined as an amusement or
pastime.
[¶8]Though this position has held strongly for some time now,
the flipside presents a more compelling argument: these games affect
players and the state of game-play beyond just the hurt feelings one
experiences briefly when being snubbed or deceived in a pastime game.
There is a genuine social and economic investment that has tangible
repercussions for players in the real world. Thus, the justification
that games do not and should not have standards because they are
merely games is overly-broad and inaccurate.
[¶9]The following game illustrates the point that virtual games
should carry the heft of a legal relief system like other games
involving real world economic and social investments. What would
happen if in the real-world casino game of craps, Player A steals
some of Player B's chips while Player B is consumed in throwing the
dice? Upon finding out, would Player B just shrug his shoulders and
respond, "It is just a game. I have no recourse. That guy can steal
my chips and there is nothing I can do about it."? Probably not.
Rather, Player B would be irate and demand his chips back whether he
realized it that second or a week later. Those chips were his
propertyand he did not consent to their taking. And more likely than not,
Player B would get his chips back, or an equivalent thereof. From a
legal perspective, Player A committed theft,the game setting does not change that. More importantly, no one
would reject the victim's demand and frustration for relief. It is
unlikely that other players would tell him to just deal with the loss
and move on.
[¶10]Analogously in a virtual game, taking one's (virtual)
game property without the player's consent should carry similar
consequences. These two game concepts differ only in their
platforms—one occurs in the real world while the other occurs in a
virtual world. First, game property in a virtual world is like the
casino chips in the real world because there is a common
understanding of ownership and utility. Like the casino granting
Player B ownership and rights to use the chips he purchased with real
money to play in the casino, an avatar has ownership rights to
virtual property he has purchased or acquired with currency, as well
as the exclusive right to use his virtual property in the game as he
desires and the game allows.
[¶11]Second, when a game lacks specific rules as to the
appropriateness of game-play, common sense and custom usually prevail
to guide player conduct and punish misconduct. In craps, Player B
may seek direct relief from Player A in civil court under the
principle of conversion, even though neither the craps game nor the
casino actually enumerates this rule. Real-world law, custom, and
behavior dictate that this conduct is not tolerated, and even
punishable by law. In the same way, nowhere in the rules of virtual
games may it specifically spell out that one who takes another's
property without consent will be liable for conversion or theft.
Rather, it is understood that this behavior comes with repercussions.
Because it is not specified, does it give another player the right
to take one's virtual property without consent and do whatever he
pleases? No, because real world common sense tells us that taking
another's property without consent is wrong. Why is it, then, that
taking property in a virtual world seems by some to be justified as
just a fantasy game, yet frowned upon and even illegal in a real
world setting? There should be no difference between a game played
in cyberspace for real money and a game played in the real world for
real money.
[¶12]Presently, the only roadmap guiding players and their
activities are the game developer's End-User License Agreement
(EULA) or Terms of Service (TOS). The EULAs provide behavioral guidelines as well as the various kinds
of punishments if players violate game-play: a slap on the wrist, a
warning, a timed suspension, or banishment.
[¶13]However, the EULAs do not provide a mechanism or forum for
justice that can enhance a player's gaming experience. This is
indeed problematic. Where can a victimized avatar turn for relief?
Does an avatar have rights to a forum that will resolve disputes? If
a forum were in place, then victims, like Carissa Hill, would not
feel compelled to call the real world police. Moreover, a player would be more likely to play in a virtual game
where her assets are protected and, if necessary and available, have
her day in court.
[¶14]The cumulative effect of aberrant behavior may not bode
well for game developers. If players continue to use whatever
computer code trickery and deceit to wreak mayhem and infringe on the
rights of other players, those victimized avatars will either
terminate their accounts and start new lives in a competitor's
virtual world game, or they may take justice into their own hands
through egregious actions. This would surely set-off a domino effect
of dissatisfaction and havoc.
[¶15]Game developers, then, should also incorporate into their
EULAs and game design a relief system that will temper avatar
deviance and increase overall player satisfaction. After all, almost
every other facet of the real world is playing out in virtual worlds.
As such, this paper introduces a virtual court system for virtual
game worlds. The system is not a policing mechanism, but more of a
discretionary forum for avatars to actively seek justice and equity
when they have been wronged. Using existing legal systems and
theories of contract law, tort law, criminal law, corporate law, and
alternative dispute resolution, I propose a two-tiered justice
system: the In-Game Justice System (the "IGJ") and the Real-World
Justice System (the "RWJ"). Within the IGJ, aggrieved avatars
will be able to seek direct relief from other avatars in two
venues, an in-game small claims court (the "ISCC") which is
available for public viewing within the game world, and an in-game
dispute resolution ("IDR") forum that occurs privately behind
closed doors. Not only will this allow victimized avatars a chance
to have their day in court, but it will send the message that the
liberty to act however an avatar chooses also includes an avatar's
right to seek justice.
[¶16]The RWJ is a forum of last resort that can only be sought
when players have pierced the virtual veil ("PVV").
Essentially, this means that human players have used their avatars to
commit acts that substantiallyaffect another player's well-being in the real world as well as its
avatar in the virtual world. Both the IGJ and the RWJ will help
fill-in the gaps that developers have failed to address in their
EULAs: an avatar's access to justice and a stronger sense of
deterrence. With a better sense of avatar rights, game developers
will be able to retain and attract more avatars into their worlds. Importantly, avatars will have a right to be heard and a right to
process—a cornerstone of an ordered society.
[¶17]While virtual world claims could be brought into a
real world court system this would be problematic for several
reasons. First, jurisdictional issues pose an impediment as players
span the globe. Second, virtual world claims would add to an already
heavy caseload. Third, the procedural and evidentiary issues
associated with intangible media pose unique problems. Lastly,
litigation fees will often exceed amounts in controversy. Thus, the
costs of these issues presented will likely outweigh the benefits of
real world litigation. Rather, the two-tiered justice system will
fare better for all worlds involved.
[¶18]Virtual worlds are a binary-based universe where human
players find entertainment and commercial value through their
avatars. They are very much like traditional video games in that
they have game characters, levels, goals, economies, possibly combat,
and surplus entertainment value. However, the virtual world
environment does not pause or start over when a player turns the game
off to eat dinner or go to work; rather, the virtual world keeps
moving forward and life goes on. With their in-game
characters, humans travel through virtual worlds accomplishing tasks,
forming guilds, or perusing the various communities.
[¶19]When a player registers as a member of a virtual game, he
makes his own unique avatar. The player can then fashion his avatar
as he chooses, subject only to the game's constraints. Some
players build their avatars to resemble their real life identities,
while others use this virtual venue creatively developing characters
that are far beyond the real humans' own profession, physical
appearance, or personality. And though the avatars' environment is
purely fantastical many—inside and outside these worlds—argue
that life in a virtual world is just as real as life in the real
world.
[¶20]Massively Multiplayer Online Games
("MMOGs" or "MMOs")
are virtual online games played over the internet where hundreds of
thousands of players play simultaneously. There are three
categories of MMOGs: first, scripted games called MMORPGs, second,
unscripted games called Virtual Real Worlds, and lastly, the standard
board games that are played over the internet called Casual Games.
[¶21]Massive multiplayer online role-playing games ("MMORPGs")
are perhaps the most lucrative of the MMOGs today. Essentially, they are online games where large numbers of players
interact with each other in a pre-scripted virtual world. These
games are designed with a goal and purpose, such as accumulating the
best weapons, receiving the most points, or attaining the highest
level of power. In MMORPGs, an economy and a system for bartering
allows exchanges of weapons, armor, and even currency amongst
players. Avatars can participate in achieving their goals
individually or in guilds or clans.
[¶22]MMORPGs have a combined global membership in subscription
and non-subscription games exceeding 15 million as of 2006;and the revenues exceeded a billion dollars in 2005, and will likely
exceed 3.5 billion dollars by 2009. Three popular MMORPGs include EverQuest, Eve Online, and World of
Warcraft.
[¶23]EverQuestwas launched by Verant Interactive in March 1999 and later acquired
by Sony Entertainment. EverQuest is a fantasy adventure game where players face challenges
and earn rewards in the quest for dominance and survival. For five years, EverQuest was the most commercially successful
MMORPG in the United States. Edward Castronova, a renowned professor and writer in the field of
virtual worlds and gaming, opined that if Everquest's game-world
Norrath were a real country, then the real world trading of
characters, artifacts and services would make its gross domestic
product (GDP) 77th in the world, putting it somewhere
between Russia and Bulgaria.
[¶24]Another successful MMOPRG is Eve Online,launched by Crowd Control Productions in May 2003. Here, players are spaceship pilots cut off from the Milky Way
galaxy, and their task is to rebuild society. Players
can engage in many tasks in the EVE
universe, including mining, trading and warfare.
[¶25]The World of Warcraft ("WoW"), launched by Blizzard
Entertainment in November 2004, has 7.5 million subscribers worldwide
and is today's most popular MMORPG. "[P]layers adopt the roles of warriors or hunters questing for
virtual gold and power in an atmosphere somewhat reminiscent of The
Lord of the Rings." Success is signaled by money, items, and experience which allow
avatars to improve in skill and power. Additionally, players battle
against other players, including duels and fights against enemy
factions. Besides the game playing, WoW has a virtual community where players
can buy and sell products from one another, as well as auction off
weapons and tools for gold coins and points.
[¶26]In contrast to MMORPGs, Virtual Real Worlds like The Sims
or Second Life have no pre-scripted story line or purpose in mind.
Players interact with each other in any venue within the game, such
as a conference, restaurant, casino, brothel, home, or mall.
Essentially, avatars do whatever they desire in these environments so
long as the computer code and the user guidelines permit. "The
result is a libertarian's paradise. In this anarchic world created by
freethinkers, avatars can socialize, buy and sell a variety of
commodities, enjoy a variety of performances, listen to lectures and
much more."
[¶27]Second Life was launched by Linden Lab in 2003. Users
navigate, explore and interact with ever-changing environments
created by its residents. "The idea behind Second Life is similar
to the open-source experiments, such as the online encyclopedia
Wikipedia, where the users create the content. In Second Life, the
communal aspects of open-source come to life in a science fiction
inspired world experienced through the first-person perspective." There are a little under two million unique members in Second Life
and this number is growing at a rate of thirty percent per month. At any given moment, approximately 20,000 players are logged on to
Second Life.
[¶28]Another virtual real world with no scripted purpose is The
Sims Online,which was launched by Electronic Arts in 2002. Players work to earn money, spend money to build or buy houses and
fill their homes with items they buy. It, too, is a venue for social
networking.
[¶29]Besides MMORPGs and Virtual Worlds, another type of MMOG is
Casual Games. These games imitate board games or paper-based games.
They allow players to play one another over the internet. Some
examples include chess, backgammon, or Tetris.
[¶30]MMOGs contribute to a host of economic and social benefits
for players. In terms of economic gains, MMOGs parallel real world
business opportunities. Companies running get rich quick websites cater to those
players hoping to make a buck or two when playing. By way of
example, Gaming Pays!sells tutorials and tips for virtual gaming economic success. On
this site, Erick Sizelove, from Midway City, California reports,
"I've made about $20,000 [U.S.] alone so far with [EverQuest]
buying and selling. My record for 1 day of sales was $1700 with an
average of $400 to $500 per day. I am living proof that it's
really possible to make thousands in online gaming sales."
[¶31]The basis for player success essentially lies in the
world's virtual economy. "Virtual currency is . . . the money
equivalent unit of trade that MMOG players can trade for goods and
services." Each game world has its own form of currency, usually convertible
into real world dollars either through the game's own exchange, or
third party exchanges and auction sites. "Game
currency on MMOs has some value-people
spend a lot of time trying to amass in-game wealth and property . . .
."
[¶32]For instance, Linden Lab operates the Linden Exchange
("LindeX") where players may cash out their L$ in Second
Life—from sales of their virtual property or profits from services
rendered—for real money. Linden Lab does not provide hard currency, but allows holders of L$
to sell them to those seeking to purchase. In Second Life, the money obtained from selling L$ can remain as
credit in the player's Second Life account, and the credit is
applied to any account fees. Alternatively, the player can opt to
take the real dollars in cash through PayPal,which costs one dollar, or check, which costs ten dollars for U.S.
transfer and fifteen dollars for international transfer.
[¶33]Besides the gaming companies themselves, secondary markets,
like third party exchanges and auction sites, are popular exchange
venues. "Using third party exchanges and auction sites, players
can trade one virtual currency for . . . different virtual currencies
and virtual assets in different MMOGs. Players can also trade their
virtual currency for real money using these third party exchanges." These sites serve an intermediary role between players who want to
sell their virtual currency or property to buyers who want to buy
virtual currency or property. Once the virtual property or currency
is sold, the proceeds are deposited into the real player's third
party site account which can be later cashed out via PayPal or check.
[¶34]The virtual economy is really one of the major catalysts of
today's virtual gaming boom. In 2003, Julian Dibbell, a
contributing editor for Wired magazine, vowed to spend a year
making a living as a retailer in the scripted game, Ultima Online.
He sold in-game items, currency, and real estate on eBay. He made nearly $4,000 in profits monthly totaling approximately
$36,000 for the year, and "Dibbell says that
his income only qualifies as lower-middle class among virtual
businessmen."
[¶35]On any given day, Second Life dollar transactions reach
upwards of six figures. For instance, on January 4, 2007, $1,098,800
United States dollars were spent in Second Life in a day's time.
Avatar Anshe Chung is the first online personality to
achieve a net worth exceeding one million US dollars from profits
entirely earned inside Second Life. Chung and hundreds of other virtual landowners have spent countless
hours amassing wealth and growth such that Second Life is now
approximately 60,000 acres, or the equivalent of 95 square miles in
the real world. And with their property and products, avatars are living out
fantasies their owners would otherwise be unable to realize in real
life.
[¶36]Fashioned like a real world capital market system, Second
Life avatars post job opportunities on websites or within Second Life
for in-game business partners, project managers, dancers, et cetera. In return, avatars receive L$ and/or exclusive rights to certain
high traffic and restricted communities. For instance, a job posting
was looking to hire DJ's and dancers. Importantly, corporations and educational institutions are also
making a significant investment in MMOGs. Mega-corporations like
Dell, Nike, Mercedes Benz, and Calvin Klein have made a
brand-presence in Second Life. "They are
there for many different business reasons, like getting closer to
customers, better understanding digital natives, accessing a new tech
savvy audience, testing new offerings, showcasing company innovation
and more." And of course, the financial investment is significant: "Opt
for a really elaborate build, hold frequent events to keep people
coming back, and hire an employee or two to keep things running, and
the budget could easily hit $500,000 a year." Thus, the corporations cannot risk griefers compromising their
brands.
[¶37]Besides the economic benefits that virtual worlds afford
players, these MMOGs are also another venue to socialize, team build,
and meet people from around the world. As one WoW player explained:
Think about it: I'm a 33-year-old guy with a 9-to-5 job, a wife and
a baby on the way. . . . I can't be going out all the time. . . .
In WoW I've made, like, 50 new friends, some of whom I've hung
out with in person, and they are of all ages and from all over the
place. You don't get that sitting on the couch watching TV every
night like most people.
Players invest a significant amount of time and emotion in virtual
space. Castronova conducted a study in EverQuest to gauge players'
time commitments to their avatars:
[In the study], 20% of participants in a large survey of EverQuest's
users attested to living their lives in mostly EverQuest's
Norrath, 22% expressed the desire to spend all their time there, and
40% indicated that if a sufficient wage were available in Norrath
then they would quit their job or studies on earth[!]
[¶38]Consequently, the in-game social networks have seeped into
other mediums outside of the gaming platforms. Scores of websites
and blogs detail players' experiences and convey the seriousness of
such social game-play. Players lament over a hard day's work in a virtual game, read
other players' blogs about their avatars, vote on certain issues
going on in Second Life,and even fall in love. It is as if these avatars are recounting and acting a life lived in
the real world.
[¶39]Elizabeth M. Reid, a researcher on Internet culture, notes
that human players "become emotionally involved in the virtual
actions of their characters, and the line between virtual actions and
actual desires can become blurred." Second Life avatar and blogger Mordecai Scaggs maintains a blog
dedicated to his loving relationship with avatar, Melissa. On October 20, 2006, Scaggs posted of the time when Melissa was
basking in the Lost Gardens of Apollo: "Melissa looked truly divine
here, and for once I did not feel overwhelmed by her beauty, but
actually nourished and warmed by it. . . . Virtual world it may be,
but if you are prepared to let it touch you, [Second Life] contains
some fantastic balms for the soul." Scaggs even posted screenshots of the blissful moments where the two
avatars appear snuggling on a bench.
[¶40]Thus, these seemingly utopic fantasies pique the interests
of many because of their subsequent impact on the human players
themselves. True, these virtual environments are simply games, but
games with real-world effects.
[¶41]Alas, MMOGs have their dark side too. Computer code and
basic community standardsare the only major roadblocks to player behavior. Even so, avatars
still find ways to gain unfair advantages over other avatars.
Because of the serious economic and social investments, deviant
game-play has more consequences for those avatars affected. After
all, a player who has invested tangible real world money to buy
virtual property that is intentionally destroyed by a devious avatar
will be unable to reap the benefits of selling that land for real
world money. In effect, such conduct is akin to real world criminal
and civil causes of action. As these worlds become more mainstream
and the number of avatars increase, avatars will suffer the wrath of
more real world-like crimes. Perhaps game developers did not foresee
the degree of such devious actions, and consequently, matters of
justice and relief outlets were not seriously considered.
Stopping . . . crime, or at least containing it, has proved to be one
of the most vexing challenges of maintaining an online community. If
paying subscribers are constantly being slaughtered and robbed by
avatar miscreants, subscriptions will surely decline, hurting the
bottom line of the world's owner.
[¶42]Moreover, because these game companies provide in their
license agreements that they own the virtual property,players cannot establish legitimate claims when griefing has occurred
to their virtual property. According to Josh Fairfield, associate
professor of law at Indiana University, "Because players don't own
it, players can't fight back when it's stolen….And that makes
players easy victims."
[¶43]Essentially, victimized players are irate because they are
wronged and they cannot seek relief. The lack of relief means that
perpetrators are not deterred. This, in turn, reduces the amount of
enjoyment players take in the game and, ultimately, drives away
business due to the flare-ups of bad publicity for the game.
[¶44]Coined as "griefers,"such avatars like nothing better than to kill teammates or obstruct
the online game's objectives. "Griefers scam, cheat and abuse,
often victimising [sic] the weakest and newest players. In games that
attempt to encourage complex and enduring interactions among
thousands of players, 'griefing' has evolved from being an
isolated nuisance to a social disease." As one Second Life member and blogger opines, "People who set out
to intentionally disrupt Second Life, the 'game' or disrupt the
Second Life experience of others are griefers and absolutely should
be dealt with harshly, banned, fined, whatever. They cause harm for
the sake of causing harm." Stephen Davis of IT GlobalSecure, a company that develops security
technologies for online games, says that twenty-five percent of
customer support calls to online game companies are a result of
griefing: "For a small game, these costs can be the difference
between success and failure. For a large game, these costs are a
continual drag on the bottom line."
[¶45]On the receiving end of the griefers are the griefed and
grieving: the victims. Unfortunately, these victimized avatars are
often overlooked by game developers and academics. EULAs generally focus on the perpetratorswithout leaving much of a voice for the victims to directly seek
justice against their perpetrators. Certainly, players who spend
tireless months buying and building virtual properties are damaged
emotionally, psychologically, and economically when griefers steal or
destroy the players' properties or reputations. And because
people's money, time, and identity are at stake,policing these disturbances is particularly important.
[¶46]Depending on the MMOG, the rules of the game vary.
Currently, the main vehicle for player guidance in scripted or
unscripted virtual worlds is the EULA. The EULA is a contract
between the player and the game development company that describes
how the player may participate or play in the game. Should a player
act outside the acceptable terms of the EULA, the game development
company reserves the right to punish the player, ban or even
permanently terminate him from game-play. This includes blocking the human player's internet line from
accessing the game—this prevents the player from building a new
avatar.
[¶47]In Second Life, a three strikes policy permanently
terminates a player's account after three violations of its
community standards. Virtual crimes are becoming such a significant problem in game-play that
Second Life features a "Community: Police Blotter." The blotter is a public bulletin board detailing the crimes
committed in the specific communities and the corresponding
punishment received. However, the griefers' names are not
published. The varying levels of bans stem from a warning to a
suspension of three to seven days or so.
[¶48]In the MMORPG Roma Victor,crucifixion is the punishment for griefing. Cynewulf was the first
avatar publicly hung on a cross for seven days because it
participated in gang-killing new players who came into the game.
Kerry Fraser-Robinson, CEO of Roma Victor, states, "[W]e feel that
applying this punishment to cheats, hackers and other virtual
wrongdoers is not only appropriate, but also adds to the gaming
experience by resonating with classical history."
[¶49]And in late December
2006, Blizzard Entertainment sent 105,000 WoW owners the following
message: "Merry Christmas, you've been banned." Various players were banned from the game as a result of cheating
and griefing throughout the virtual space affecting other players'
game-play. Records show that before this mass ban, another 30,000 players were
banned for cheating in May 2006.
[¶50]Evidently, game developers are combating virtual crimes on
their own front through their EULAs. However, even with seemingly
straightforward punishment systems, crimes are persisting, and
likely, rising as the games gain popularity. Perhaps game developers do not have the manpower, time, nor ability
to police the worlds;nor can they foresee or define crimes that lie somewhere between
creative expression (vis-à-vis computer code manipulation)and malicious intent to grief. Linden Lab, for instance, realizes
that in-world crimes are occurring but chooses not to take egregious
action: "Linden Labs [sic] has always tried to take a hands-off
approach to regulation and in-world policing." Or maybe the current punishment systems are simply too lax and
aggrieving avatars do not anticipate major consequences.
[¶51]The griefers' perspective on crime is irrelevant at this
point though. At issue are the victims: aggrieving avatars' lives
are affected including their respective players. Conceivably if
victimized avatars had a voice in the process—a right to be heard,
to directly face the griefers, and to seek remedies—then griefers
would be more wary of wreaking havoc on others' well-being and
property. There is no doubt that the consequences of public shaming
and direct retribution are far worse than a third party slap on the
wrist.
[¶52]The virtual game crimes range from petty fraud to
defamation to property damage to outright wide-range terrorism.
Whether the crimes committed in a virtual world cause avatar or
virtual property damages, they are very much patterned like real
world crimes and torts. For instance, "[a]ny type of commercial
dispute that could arise in real life could arise in Second Life"
because "[t]hese cases involve real money." And indeed, besides the damage to reputation and person, the crimes
generally have an adverse pecuniary effect. Arguably, damage to
reputation ultimately has an affect on the individual's prospective
profit-share also. Below is simply a snapshot of some actual virtual
crimes capable of adversely affecting other avatars' well-being.
[¶53]In EVE-Online
the policy is simple: "[w]hatever you do in-world is at your own
risk." It has a completely permissive attitude towards sharp dealing,
player-killing, and even outright scams. As such, Avatar Cally constructed a bank in Eve Online called the
Eve Intergalactic Bank ("EIB"), where players could deposit
in-game money ("ISK") and receive interest on their investments. The EIB, in turn, would use deposits to make investments and profit
from the spread in the rates of return between them, very much like a
real life bank.
[¶54]In early 2006 Avatar Dentara Rast withdrew all of the other
players' money from the EIB and ran. He netted around 700 billion
ISK and another 100 billion in assets. This was equivalent to approximately 130,000 United States dollars. Rast's puppeteer was Kris Adams, who interestingly enough operated
another avatar—Avatar Cally! In other words, both Cally and Rast
were the same human player: "[u]sing Cally as a frontwoman, the
player established the bank, built up its credibility among other
players, then transferred all the funds to his other character, Rast
. . . ." Rast wrote a post on the EVE Forum messageboard about his malicious
thievery and fraud, and he even confessed to the crime in a sixteen
minute video. Dentara Rast explained, "The only person involved was me. 1
person. And that one character I used was Cally. Not one person who
supported the EIB, worked for the EIB, or was involved in anyway with
the EIB was aware of my intentions. I fooled everyone. I win EVE."He added, "Think of me as a space Robin Hood - 'steals from the
rich and gives to himself' with my merry band of alts."
[¶55]Even though Adams' avatar stole this money, he did not
reap any substantial benefits because he never converted the ISK's
to real world dollars. Moreover, he was not punished for his actions
because EVE Online's EULA did not restrict such a crime.
[¶56]Still, victims of the embezzlement ranged from big
"corporations" in the game to individuals who spent years
building a wealth to invest. They were left stranded with no relief
and no resolve. One blogger, so emotionally and financially sparked
by this treachery, stated, "[T]hat dentara rast guy scammed me
outta nearly 20 billion ISK that took me almost 2 years to build up.
I hope he dies of testicular cancer . . . ." Another blogger lamented his frustration with the game developer,
who failed to take action: "People might sue 'Cally' - That
would then take its due course. Break the law, get busted. The devs
need to empower people in the game to make and uphold the law."
[¶57]While wishing misfortune upon griefers may be a form of
relief for some victims, it likely will not make them whole again.
Unfortunately, more extreme measures have been taken as a result of
virtual game crime. In 2005, a virtual game player killed another
player in China for selling a cyber-sword "saber" used in the
game, Legend of Mir 3. The dispute arose between the two real-life players, Qiu Chenwei and
Zhu Caoyuan, because Zhu sold a virtual sword for one thousand
dollars after Qiu had simply lent him the sword to play. Zhu refused to return the property or the proceeds back to Qiu. In response, Qiu reported the conversion to the police; however, the
Chinese police said the "saber" was not a real tangible item that
was protected by law and, as a result, were unable to do anything.
[¶58]Qiu could no longer wait for payment, so he broke into
Zhu's home and fatally stabbed Zhu repeatedly with a knife. Qiu is now spending life in prison. Had a venue been available for Qiu (and his avatar's rights) to
have his day in a court or a relief mechanism setting, then perhaps
Zhu would still be alive today.
[¶59]Virtual crimes are not just limited to conversion or
extortion. Assault and battery seem to be a prevalent problem as
well. For instance, in August 2005, a Chinese exchange student was
arrested in Japan for using "bots"to run virtual stick-ups in the Lineage II: The Chaotic Chronicle
online game,stealing items from players then reselling them on eBay. "He used game bots . . . to beat up and rob other players'
characters . . . ." Several players had their characters beaten and robbed of valuable
virtual objects. The victimized avatars were unable to do anything about it nor were
they able to find relief after the fact.
[¶60]Similarly, in mid-Dec 2006, Second Life millionaire avatar
Anshe Chung was assaulted, battered, and defamed by a horde of
"animated flying penises." She was on stage in Second Life doing a live interview with CNETwhen she was "marred by a penis-bomb attack" for fifteen
minutes. The attack consisted of flying penises and doctored pornographic
images. The perpetrators who committed this cyberattack were a group
called "Room 101." The motive, while questionable, is best summed in this recent blog
posting: "It's not clear why the griefer attacked, but Anshe Chung
is controversial to some Second Life residents for reasons such as
inflexibility on land pricing, the signs she has placed in many areas
of the virtual world that are visible to anyone flying overhead and
her ability to get many residents to sell their land to her."
[¶61]Nothing was done nor could be done to stop this attack.
And, Anshe Chung was unable to personally find relief against the
perpetrators. Instead, to clear the stink, she attempted to use real
world law to mitigate the damage to her reputation.Anshe Chung Studios,a real life company run by Anshe Chung's human player Ailin Graef
and her husband, sent notices to YouTubeand other online sites to take down her avatar video/image of the
interview based on copyright infringement.
[¶62]Besides superstar real estate mogul Anshe Chung feeling the
burn of virtual crime, members of the reality television show "Big
Brother"were victimized around the same time period as well. The "Big
Brother" cast members had a Second Life debut in December 2006. On their way to the "Big Brother" virtual house in Second Life,
they had to walk the red carpet. Upon doing so, they were set on
fire by other avatars and caged. The victims suffered from assault, battery, false imprisonment, and
even damage to their reputation. And yet, they had no recourse
against the perpetrators.
[¶63]In Second Life, terrorist acts have left many players
uneasy and Linden Lab in a frenzy. One group of avatars, in
particular, the Second Life Liberation Army ("SLLA"), has
assembled to seek political rights and universal suffrage from the
dictator Linden Lab. Formed in approximately April 2006, the SLLA wants voting rights in
Second Life and it will use devious methods to be heard. Avatar Marshal Cahill, the SLLA's political mouthpiece stated in
an interview, "We will naturally be branded as terrorists but that
is simplistic. We are using the environment, particularly new media,
to get our message across." In its quest for military dominance, the SLLA has attacked various
areas and players. In August 2006, the terrorism took the form of
shooting potential customers at the Second Life American Apparel
store "causing the customers to be knocked out of the area, thus
preventing purchases." Though the physical damage is temporary,the affects were nonetheless lasting for the players and the American
Apparel establishment. The American Apparel location is well-known
for the attack and this may have some negative backlash—citizens
may be less inclined to shop at the store. Moreover, citizens of
Second Life have to be wary of potential future attacks that could
affect their well-being and property. The SLLA is also considering a
virtual kidnap in the near future. This, the SLLA members hope, will send a stark message to Linden
Lab.
[¶64]Aside from the SLLA, the Patriotic Nigras ("PN") is
another terrorist group inside Second Life. However, PN does not
have a political motive in mind; rather, it disrupts and vandalizes
for the sake of "lulz"—funny or interesting internet content. On Monday, February 26, 2007, PN members, some sporting "Bush '08″
tags, vandalized Democratic candidate John Edwards' Second Life
Headquarters. "They plastered the area with Marxist/Lenninist posters and
slogans, a feces spewing obscenity, and a photoshopped picture of
John in blackface, all the while harassing visitors with right-wing
nonsense and obscenity-laden abuse of Democrats in general and John
in particular." Edwards and his team were unable to find the culprits and seek
damages for the vandalism. Nor was Linden Lab successfully able to
take disciplinary action against the anonymous wrongdoers. However,
PN, posted on John Edwards' blog claiming credit for the attack on
his campaign headquarters. The lasting harm is that the Headquarters
now has to develop stronger safeguards against potential terrorists
who will vandalize, destroy, and disturb the peace.
[¶65]Besides assault, battery, and the other commonplace
criminal acts, residents of virtual worlds commonly complain to game
developers of sexual harassment when their avatars are propositioned
by others and involuntarily grabbed or kissed. Others complain of assault by offensive and violent verbal and
physical sexual abuse. Complaints of sexual harassment and assault
are often posted on Second Life's police blotter. Gamers relay
their real-life fetishes into a virtual world and prey on other
avatars. As one Second Life community member bizarrely put it, "It
would be more entertaining if you could cyber-rape unwilling Second
Life players. Maybe that will teach them not to buy such slutty
clothes for their avatars." Moreover, WoW players are also complaining of sexual harassment and
lewd conduct during game-play. As one female WoW gamer posts in her
blog: "Being asked by a stranger for sex will not
make most women feel attractive . . . in fact, in most cases it will
result in the opposite. It is a horribly uncomfortable feeling, takes
away your sense of safety . . . makes us feel unwelcome…. [B]eing
asked for cybersex from someone you don't even know is insulting,
and the idea that people would just walk up to a girl and ask that,
when said girl might be a mere child, is revolting."
[¶66]One of the first and most well-known virtual crimes was "A
Rape in Cyberspace" reported by journalist and author Julian
Dibbell in 1993. In a crowded virtual room, the avatar Mr.
Bungle used a game feature to control the actions of other users,
forcing several avatars to perform violent and sexual acts.
The "rape" took place in LambdaMOO—a multi-user dungeon
(MUD). It was essentially a real-time non-consensual textual
description of the violent sexual mutilation of an online community
member to other community members. The "rape" was the display of
graphic and offensive textual sentences that seemed to originate from
the victim. "One user . . . called his voodoo doll
activities 'a breach of civility' while, in real life,
'post-traumatic tears were streaming down her face.'" As commentators have noted, Mr. Bungle's acts were
insufficient to form a basis for criminal prosecution.
[¶67]Users of LambdaMOO including Mr. Bungle met for nearly
three hours to determine his punishment. However, nothing was
resolved. Instead, Mr. Bungle was "toaded" by a majority
decision of the community, meaning that his avatar was replaced with
a powerless and voiceless toad. Later on, one of LambdaMOO's "wizards" (a master-programmer of
the game) decided to terminate Mr. Bungle's account. From then on,
the game's players could institute the "@boot" command where
players temporarily disconnect disruptive guests from the server.
This was a successful solution as it gave players direct access to
relief. However, it does not eliminate the terror struck in the
victimized: "In the sping 2007 issue of the Indiana
Law Journal, Erez Reuveni cites a case of
assault in a text-based environment, acknowledging that females
avatars who experience virtual sexual harassment (and even rape)
report suffering real-world anger and grief." Thus, though it is a virtual environment, the repercussions are far
greater permeating into the real world player's life.
[¶68]Undoubtedly, virtual crimes occur in varying degrees.
Whether or not the perpetrator(s) are punished is a responsibility
the game developers end up shouldering. However, game developers
generally have not provided a sense of relief for victims. As a
result, real world law enforcement and courts are starting to see
victim complaints arising from a virtual world game setting.
[¶69]For instance, between July 4 and July 9, 2007, three
victims in Second Life were scammed for a combined $10,000 by avatar
Juggernaut Stoklitsky in a shady real estate transaction deal. Stoklitsky essentially advertised an island for sale several times,
ending up selling the virtual land to six different individuals.
Only the first sale was legitimate. Real life victim, Jim Gervais,
paid Stoklitsky 1,850 dollars but upon transaction, suspected
something was wrong when he saw another advertisement for the island
that was just sold to him. Through his own investigation—logging on to his other Second Life
profiles and bidding for the island—he realized he was being
scammed. Though he and the other victims complained to Linden Lab,
the company simply responded that it was investigating the situation.
"Linden Lab's head concierge Jack Linden sent a message to all
the victims of this scam on July 17, stating 'despite our best
efforts we have not been able to recover funds from [Stoklitsky]." As a result, the victims were left out-of-pocket and upset. Linden
Lab has not taken any action, but rather echoes its general
sentiments with respect to transactions gone badly: "Linden Lab
does not generally get involved in private deals between residents."Instead, the victims are now attempting to work with the real world
Federal Bureau of Investigation ("FBI") and local law enforcement
to seek resolve.
[¶70]Moreover, on the judicial side, the first case between
avatars finally took place in the real world court system,
specifically in a Federal Eastern District of New York filed at the
end of October 2007. In the case of Eros LLC v. Simon, six
plaintiffs who are content creators for Eros LLC claimed that Thomas
Simon stole computer code to replicate their adult-themed products
that they created and sell in Second Life. As a result of the knock-offs, Eros LLC purported that it has lost
significant sales, especially since the products are among the
best-selling of the adult-themed products in Second Life. The
plaintiffs even sought a settlement of $7,000 in damages. Rather, on December 4, 2007, the parties reached a settlement
wherein Simon would only have to pay the original $525 in damages,
and the parties involved must keep the discussions in settlement
confidential. "I knew that if they had anything on me, they would
have asked for more than US$7000," Simon said. "I made US$525
playing a video game, so I now I break even, it's not the end of
the world."
[¶71]The lawyer for the plaintiffs, Frank Taney, warned that
such a case simply highlights the demand for real world law
applicability to the virtual world platform. "Some people think
it's a joke and real-life laws don't apply to Second Life….
There will come a point there will no longer be any dispute."
[¶72]Even so, it seems that players are unwilling to resort to
real world court adjudication right off the bat. The plaintiffs in
the case insist that a lawsuit was not what they preferred. "We
originally tried to go through [Second Life Provider] Linden Lab,"
says one of the plaintiffs. "Everybody filed DMCA [takedown]
notices. We filed support tickets and abuse reports. We even sent a
letter to Robin [Harper, Linden Lab's Vice President of Marketing &
Community Development] and copied Philip [Rosedale, Linden Lab's
CEO]. We got nothing."
[¶73]Certainly, Taney's concern is shared by many, though
there are a likely number of opponents who support Simon's position
also. Many players (especially those who have been victimized, like
Eros LLC's content creators), readers, and intellectuals believe
that real world law should make a place for virtual world maladies.
However, in order for players to find resolve in the real world court
system, virtual property must be viewed as a property form, which
generally means it need be tangible or have a corporeal form. Several theories, in fact, provide the basis that virtual property,
such as those that exist in WoW or Second Life, carry the same
properties, like ownership and transferability, as real world
property.
[¶74]Fairfieldmakes a compelling argument that real world law should apply to
virtual worlds with respect to virtual property matters. Essentially he argues that intangible virtual property shares the
same three characteristics as real world property: rivalrousness,
persistence, and interconnectivity. As a result of these shared characteristics, players should have
redress from virtual property damages if the in-game world does not
provide an outlet for recovery and the EULA appears unenforceable
under real world legal principles. After all, players have rights to
property too even if the game developers do not think so.
[¶75]Moreover, legal scholars F. Gregory Lastowka and Dan Hunter
pitch in with a more pragmatic approach to property, citing
specifically to Philosopher John Locke's conception of property. Locke stood for the principle that every person owns the fruits of
his own labor. If a person uses his labor to create something from
that which is available to all, then that person has property rights
to his creation. As such, if virtual assets are created by players from tools
available in the game, then conceivably such assets should be the
property of its creator. And with that virtual property, thus, comes
property rights, including real world like opportunities such as
court proceedings.
[¶76]Despite the supposition that virtual property can
cross-over to real world relief, many players, game developers,
intellectuals, and readers strongly resist this position and
approach. As this section details, there are various reasons as to
why the real world cannot cross into the virtual world arena.
[¶77]First, game developers largely reside in the Simon
camp, which is to say that such virtual platforms are merely games
and should not be considered anything further than a pastime. Thus,
it is difficult to apply real world laws inside the games. As legal
scholars Hunter and Lastowka point out:
Because adversity and violence are features of these worlds—and not
just side effects—it is wrong to think of crime as an unfortunate
byproduct of virtual societies. Crime is simply an extension of many
of the same freedoms that make these worlds so appealing to their
inhabitants. Game designers have their hands tied.
Essentially, avatars should be free to act as they wish in a virtual
environment because nothing is real. It is a game after all.
Everything is computer code-based, all the characters are merely
symbols of a human player, and nothing is lasting. As such, pain or
grief is an artificial response that should not be quelled with a
seething punishment. And as for those victimized, they assumed the
risk of being targeted by the mere act of entering a gaming
environment.
[¶78]Second, real world law cannot handle virtual world issues
because it is a difficult question of jurisdiction and choice of
law—what state's or country's laws will prevail in the vast
virtual arena? After all, a crime in one country is not necessarily
a crime in another. A meaningful example of this problem is the
recent controversy over "age-play" in which players request to
have sex with others who dress up as child avatars. In May 2007, German officials launched an investigation against
players who were "reportedly buying sex with other players posing
as children, as well as offering child pornography for sale." If found, the perpetrators would likely face up to five years in
prison in Germany. However in the United States, virtual child
pornography is not a crime. The Supreme Court has held that a complete ban on virtual images of
children violates the First Amendment Free Speech protection. Linden Lab has cooperated with German authorities and banned the
accounts of the two players who controlled the avatars in the
simulated sexual acts between the adult and minor.
[¶79]Even so, this will likely present jurisdictional challenges
should such disputes come to fruition in real world courts. Should
Linden Lab, or other game developers for that matter, have to monitor
global laws to ensure it does not offend the countries' independent
laws? More importantly, which country's law will dictate the rules
and potentially the cases? Hypothetically, how would the victim of
the German age-play incident seek relief and take to a German court
the perpetrator if the perpetrator were a United States citizen?
Would he have to be extradited? In the eyes of U.S. law, the
defendant may not have broken any laws. However, Germany and the
victim might see it differently. If the griefing occurs to a U.S.
plaintiff by a foreign defendant, how would that defendant be served
and summoned to a U.S. court? And really, will such a long-drawn
litigation battle, or rather an attempt at battle, be worth
the virtual damage in dispute? Resolving these questions presents
significant issues.
[¶80]Another problem with bringing virtual world matters in a
real world forum is that it will further clog the justice system
dockets. "The virtual world is just swarming with lawsuits waiting
to happen." And without any defined sets of precedents, state courts, federal
courts and circuits, will have a difficult time justifying their
decisions. This will especially be burdensome if evidentiary issues
come into play. Perhaps Washingtonpost.com writer, Emil Steiner,
put it best when he blogged about the Eros LLC, et al v. Simon
matter:
Still, these virtual-world real-world lawsuits can get pretty tricky.
How and to what extent should real laws apply in Second Life? For
instance, Simon claims that the plaintiffs found their "evidence"
by taking pictures inside his Second Life home, which they entered
without warrant or permission. Should that evidence be considered
admissible? And since Simon allegedly exploited holes within the
Second Life platform to create his duplicate products, is Linden Labs
[sic] also liable somehow? The only hope may be if Second Life,
which has its own culture, proto-customs and currency, could come up
with some virtual solution. If not, there may be virtually millions
of other such lawsuits popping up… for real.
Undoubtedly, procedural and evidentiary matters are already
complicated with respect to the real world. What will be admissible
or inadmissible? Consequently, it may only become more obscure with
virtual world issues because most lawyers and judges are not
well-studied and in-tune with this new age social phenomenon.
[¶81]Moreover, court fees and attorney fees will be a problem.
A virtual dispute, like in Simon, that costs thousands or even
millions of game dollars may only translate to $525 real world
dollars, but real world attorney's fees of at least $5,000. The problem here is that real world attorneys, who charge by real
world industry standards, will likely continue to charge such fees in
a virtual world dispute even though the currency values of these two
dimensions are drastically disparate. The attorney's fees will
still be significant in the real world because the attorney(s) will
be expending the same hours and duties to cater to his client.
Otherwise, it may not be rational for the attorney(s) to expend
significant resources and time for such small claims. Even so, the
fees charged will not be proportional to the amount in dispute. Who
here will have to suffer then? Will the lawyer have to reduce his
rates to a reasonable virtual fee or will the aggrieving party
have reduce his expectations as to quality of representation or of
trust with the attorney? These are not questions with easy answers.
[¶82]To supplement the practical perspectives of real world
legal systems not translating well into the virtual world platforms,
there is also the well-known academic position and view called the
Law and Borders Thesis. This supposition provides that : (1) "Virtual worlds are separate
places;" and (2) "Real-life governments shouldn't regulate what
happens in separate places; ergo" (3) "Real-life
government shouldn't regulate what happens in virtual worlds." Because virtual worlds have no physical real world borders then real
world laws can not and should not apply to the virtual world.
"[G]overnments can control what happens in their territory. But
their territory doesn't include virtual worlds. The spatiality of
the metaphor is not accidental; virtual worlds really are distinct
places. People 'go to' virtual worlds, and when they do they
leave the real world behind in the relevant sense." Game developers and publishers certainly do not think so either.
They do not believe that there should be a cross-over from real world
law into virtual worlds because virtual worlds are merely games and
government intervention would severely damper the developers'
autonomy.
[¶83]Thus, while virtual world claims could surface in a
real world setting, the repercussions may likely far outnumber the
benefits. A clogged judicial system, discordant legal bases for
prosecution and relief, and a nightmare of procedural issues will
simply drive away players from games and create utter chaos for real
world courts in various countries. Perhaps the parties in Simon
sensed the can of worms fiasco and decided to settle the matter
privately. Who knows how the court would have reacted to the
evidentiary issues, as well as the virtual world claims.
[¶84]While bringing forth legitimate virtual world claims in a
real world setting is not impossible, it carries with it a lot of
unanswered questions and heaps of problems. When an individual is
victimized, he or she wants to be made whole again. The judicial
system has habituated individuals into finding comfort in justice.
This comfort in justice should extend to acts occurring in a virtual
dimension. The chilling truth is that in-game crimes are hindering a
gamer's experience and driving away business for game developers.
Terrorist acts, fraud, sexual harassment, and other forms of grief do
not make for a positive gaming experience. Victims are often left
upset, frustrated, and out of pocket because they are unable to find
relief nor resolve in their virtual property losses. Virtual worlds
need not become authoritarian, with surveillance around the clock to
restrict an avatar's freedom. Rather, an avatar should have rights
to a system that will resolve its problems. If the real world court
systems are not yet ready to hear concerned players' virtual
property losses, and game developers do not have the time nor the
desire to get involved with avatars' autonomy, then who is going to
help mediate?
[¶85]Interestingly enough, the idea behind a victim's right to
voice his grief and seek relief was tested by Microsoft. In 2003, it
released the game, "A Tale in the Desert" giving players the
ability to make laws, determine what actions were permissible, and
even banned the derelicts. This approach laid the groundwork for a workable system of excluding
griefers:
This experiment paved the way for the
transference of some responsibility from developers to gamers. Xbox
Live's Gamer Card system indelibly links your actions to your account
by allowing other players to rate your behaviour. A low enough
reputation will mean few people willing to play with you. Griefing
has therefore become a relatively minor support issue for Microsoft.
[¶86]In determining how to design a system that will fit within
the ambits of this paper, I will model a relief system within Second
Life. Not only is this today's largest MMOG, but the financial
power and social structures it wields signals a serious need for an
in-game legal structure. Furthermore, the crime rate in Second Life
is escalating. Robin Harper, Senior Vice President of Community and Marketing at
Linden Lab, expressed concern that the size and growth of Second Life
will need a formal dispute resolution system both urgent and more
complex.
[¶87]Second Life has a tight EULA in place already to address
griefing. The TOS Agreementas well as its respective "Community Standards" Agreement(referred to in Section 4.1 of the Terms of Service) broadly
encompass the crimes detailed in this paper. Even still, crimes are
increasing. What Second Life fails to provide is a system for
avatars to seek relief directly from the griefers or perpetrators.
Instead, it continues its hands-off practice toward resident
disputes.
[¶88]While Second Life does not list each crime specifically, it
has six broad Behavioral Guidelines, "The Big Six." The first is intolerance, which includes derogatory or demeaning
language or images in reference to other Avatars' race, gender,
ethnicity, religion, or sexual preference. The second behavioral guideline is harassment, which includes
stalking, threatening, intimidating, or unwelcoming coarse
communication or sexual advances and or favors. The third is assault. Shooting, pushing, shoving, or preventing
another Avatar from going about its enjoyment in Second Life is
prohibited. Then there is disclosure. Avatars have the right to privacy,
including gender, religion, age, race, sexual preference, and
real-world location. Sharing conversation logs, monitoring conversation logs, or posting
conversation logs without an avatar's consent is also prohibited. The fifth behavioral guideline is indecency, which includes content,
communication, or behavior that uses intense strong language or
expletives, nudity or sexual content, or strong violence, that are
all outside the area rated Mature (M). Lastly, there is disturbing the peace. This involves disrupting
scheduled events, repeated transmission of undesired advertising
content, using objects to slow server performance, and inhibiting
other avatars from enjoying life in Second Life.
[¶89]Avatars in Second Life may report other avatars for
committing one of the Big Six violations. The Community Standards
then set forth a three-level approach for punishment. First, a
warning; second a suspension, which is roughly between one to seven
days; and, third, banishment from the game. When an account is
suspended or terminated, then Second Life may suspend or terminate
accounts associated with the breach and any or all other accounts
held by the player.
[¶90]Linden Lab and its representatives are the sole punishers.
When a victimized avatar reports a complaint, Linden Lab applies the
Big Six to determine the crime and to come up with a fair punishment.
In-World Representatives, called Liaisons, occasionally address
disciplinary problems with a temporary removal from Second Life. But, although Linden Lab reserves the right to resolve disputes
between users of Second Life, the Terms of Services also explicitly
states that Linden Lab has no obligation to do so.
[¶91]Aggrieved avatars are unable to directly confront the
perpetrator and seek relief. Instead, Linden Lab is back-logged with
stacks of complaints that are unanswered. This creates a ripple
effect. Without relief, a player killed for a sword,and another player felt compelled to call the police when her avatar
was scammed in a virtual world, and the latest in the Second Life saga are victims suing in a real
world court. When players perceive the injustice, they act out of emotion.
Absent serious consequences or an individual's day in court
aggrieved parties may respond in a dangerous and potentially lethal
manner. And ultimately, players who lose trust in the game will turn
to the game developer's competitors.
[¶92]A relief system modeled after a real world legal system
will enhance a gamer's in-world experience. It will provide a
happy medium between an avatar's "legal" rights (without having
to heavily involve the real world legal system) and a deterrent
mechanism (without involving the heavy-hand of a game developer
restricting an avatar's freedom to act in a virtual environment).
Interestingly enough, U.S. Circuit Judge Richard A. Posner who
visited Second Life in December 2006, addressed a crowd of avatars
and stressed that it was in Linden Lab's interest to ensure due
process and other rights.
[¶93]Thus, I propose a two-pronged jurisdictional approach that
can be incorporated within the game's EULA. Very much like the Big
Six, the relief system will be an outlet for players to resolve their
disputes amongst each other, should they choose to do so. To draw an
analogy, this would be like the American legal system: the state (or
here, the game developer) brings a criminal action against a
perpetrator (aggrieving avatar) based on statute or code (the Big
Six); the damaged party (aggrieved avatar) may also bring a civil
suit against the perpetrator (aggrieving avatar), should the victim
(aggrieved avatar) seek redress beyond what the state (game
developer) has or has not done to seek justice. Or the state need not
get involved at all; the victim may seek relief against a perpetrator
when the victim believes he has been damaged.
[¶94]The first tier is the In-Game Justice System (the "IGJ")
and the second tier is the Real World Justice System (the "RWJ").
Not only does this scheme benefit the targeted avatar, but it
creates a safer and more cohesive community at large. Like the real
world, players will find comfort in having somewhere to turn to when
game-play turns sour. Aggrieved players need not voice concerns of
abuse or loss; however, like the real world legal system, there is an
optional venue for justice. Moreover, the design will streamline the
rising real world complaints resulting from virtual game world
tussles.
[¶95]The In-Game Justice ("IGJ") System is, in effect, a
mechanism for avatar relief. In other words, those avatars
victimized by other avatars' actions can seek relief and find
justice in perpetrator wrong-doing within the game world. It works
very much like a real world legal system, but the parties are
strictly avatar versus avatar. The two forums of the IGJ would be
the In-Game Small Claims Court ("ISCC") and the In-Game Dispute
Resolution ("IDR") forum.
[¶96]The IGJ provides a balance of relief for avatars. Matters
can be resolved publicly or they can be handled privately; all party
members have a voice and a right to representation; and avatars
assist in developing rules, or precedent, in a virtual world
space. Second Life's own community members will be able to form
their own kind of common law aside the statutory code of
Community Standards. Certainly, the SLLA would be happy with this
newly-found voice for input and participation.
[¶97]Moreover, avatars may seek legal counsel or enlist
mediating judges. According to an ABA Journal report, several
attorneys and legal scholars have been testing the legal
waters in Second Life. A real life female lawyer advertises her
in-game legal services in Second Life; her work has included
representing a "participant for indecent exposure at a virtual
location modeled after the Old West." Another real life lawyer, Bob Van Der Velde, who goes by the Second
Life name of Justice Soothsayer, has constructed a replica of the
Supreme Court within Second Life as a way for visitors to view this
replica. "Van Der Velde says virtual appeals could take place in his
rendition of the court . . . ." Additionally, real life law firms have also set up shop in Second
Life. Davis LLP is Canada's first law firm to open a branch office
in Second Life. In the United Kingdom, the firm of Field Fisher Waterhouse
established a two-story virtual office in Second Life hoping to
provide legal advice on how to conduct business in alternative
digital worlds.
[¶98]The process begins with the aggrieved avatar's right to
file an online complaint. He can fill out a simple report detailing
the complaint, the perpetrator, the date of the incident, the
location, and perhaps any witnesses. The complaint can arise due to
trespass, harassment, fraud, theft, or any other type of Big Six-like
crimes that Second Lifers consider deviant. Upon filling out the
online form, the avatar submits it electronically to a central
database at Linden Lab that processes the request and provides
procedural directions as to how to proceed with the adjudication
process. Moreover, a statute of limitations applies limiting the
life of the complaint. This is to ensure fairness so that the
alleged perpetrator(s) will be able to recall the alleged misconduct,
with evidence, if necessary.
[¶99]And similar to real world disputes, there is a cost
associated with bringing a claim to the IGJ. Aggrieved avatars can use their L$ to pay for the filing of the
complaint upon submission to Linden Lab. The fees may also involve
the service of process fees, arbitration fees, or court-appointed
representation. The L$ can go towards IGJ administration costs, such
as avatar clerks, avatar judges, and other roles the IGJ seeks to
develop. The complainant can also hire counsel for representation.
And like the real world legal system, the avatar who loses the matter
may have to carry the burden of paying the other party's L$ fees
and attorney's fees.
[¶100]As mentioned, the aggrieved avatar ("plaintiff") has
two choices for adjudication in the IGJ. The first is the ISCC, or
small claims court. The three main parties in the ISCC process are
the victim (plaintiff), the perpetrator (defendant), and the judge or
jury. The in-game judgeis either one of Linden Lab's in-house counsel members or Second
Life's current "Liaisons" who handle disputes or have a legal
background that can parallel real world common law matters into a
virtual world venue; or, in time, the virtual judge can be popularly
elected by the members of the Second Life community. The jury is
composed of nine avatar jurors who may serve as jurors voluntarily
for L$. The payment, of course, will come from the filing fees
associated with the case. While the American legal system requires
individuals to serve as jurors in the real world, Second Life may be
able to have the luxury of voluntary jurors because life in Second
Life is not so demanding of time. And perhaps some avatars may find
interest and joy in serving as virtual jurors. The juror will decide
the fate of the defendant in terms of guilty or not guilty, but it is
up to the judge to decide on the specifics of the punishment and
relief, if any. Of course, there is the issue of fairness, bias, and
blind juries. Perhaps a voire dire process is implemented to
overcome this obstacle.
[¶101]Back to the procedural process, once the defendant is
served notice of the complaint, both party members can resolve their
disputes on the assigned date and time in a virtual court set up by
Linden Lab in Second Life. Or, Avatar Justice Soothsayer's replica
of the Supreme Court may be utilized as the court venue.
[¶102]The key ingredient in the ISCC is that it is a public
attraction. The cases are public, which means that any avatar may be
an audience member and watch the parties resolve the disputes at
hand. The rationale behind the public display is the principle of
shaming. Under this theory, the mere fact that Second Life community members
know that a certain avatar has misbehaved will be enough incentive
for this avatar and others not to commit the same or similar crime
again. Shaming penalties are a real-world alternative to
imprisonment designed to prevent future dangerous acts, rather than
punish past action. Such shaming will lead to a higher level of deterrence. Moreover,
the utility of the public attraction is the stare decisisphenomenon. IGJ rulings that are public become common law and
judicial code, so to speak, for the community. Alternatively, with
the public aspect of the case, a defendant may find solace and
vindication if he is found not guilty.
[¶103]Once the jurors hear all sides of the matter and are
provided ample time to ask questions, they will be given a private
room to reach a verdict of guilty or not guilty. Upon such
determination, the judge will decide the punishment. This will also
include damages wherein the plaintiff can recover his losses,
including future potential earnings from loss of reputation or land,
for example. The damages, however, will come directly from the
defendant. The defendant's assets can be converted, liquidated or
frozen, if need be, to pay the plaintiff for his losses.
[¶104]Unlike the real world legal system, however, an appeals
process may not be a valuable method of resolution. It could create
a backlog of cases and a complicated adjudication process that was
not intended. After all, the IGJ is simply a supplement to Linden
Lab's current enforcement and relief system. However, a one-time
appeals process may be instituted giving Linden Lab the right to
review any case that has been misjudged.
[¶105]The other venue available in the IGJ is the IDR system, or
in-game dispute resolution. This is an optional forum for dispute
resolution should both parties choose this route. IDR is very much
like the real world's ADR—alternative dispute resolution. The matter is private, there is no jury, and the judges' fees are
higher. Because of its private nature, the case does not go on the
record for precedential value. And anything related to that case
remains confidential. Thus, the shaming aspects of a public trial
are not at play here. The virtual judge may be one of Linden Lab's
Liaisons, or Linden Lab can outsource to a third party company that
specializes in online dispute resolutions. For example, eBay
outsources its disputes to Square Trade: it is a private company that
online users can utilize to resolve conflicts. Colin Rule, eBay's
Director of Online Dispute Resolution, states, "I've seen players
turn to Square Trade, which costs $20, to handle a $10 dispute." Indeed, this possibility is not far-fetched and likely a good
resource for IDR.
[¶106]IDR does not use publicly-elected judges because the
disputes are behind closed doors and this may raise a red flag if a
judge is biased. Moreover, the parties may choose whether to have
the matter mediated or arbitrated. With mediation, the virtual judge
simply helps the parties reach a decision; however in arbitration,
the judge acts more like the decision maker. The rest of the IDR
process mirrors the ISCC.
[¶107]The benefits of the IGJ are multi-leveled. First, it
remedies the long-standing concern of the Law and Borders thesisthat real world legal systems have no place in the virtual world. As
the IGJ reveals, a real world legal system can be tailored for a
virtual world setting. However, the virtual world stands on its own
without flooding the real world legal system. Thus, real world
assets and money are not implicated. Second, damages remain in the
game. Avatars resolve disputes amongst themselves and as such, real
world property is not implicated. In-game property is transferred
and recovered based on the verdict. Third, the plaintiff has his day
in court. If Linden Lab fails to properly punish the griefer and
relieve the victim, then the victim may file a complaint and seek
justice. Alternatively, Linden Lab does not even have to be apprised
of the initial crime. The victim can simply file the complaint with
the IGJ. This will wring out any emotional flare-ups or property
losses that the plaintiff incurs. Fourth, the defendant, whether he
wins the case or loses, realizes the implications of griefing in a
virtual world. Other avatars in the community will also realize the
consequences. Fifth, the legal costs in-game would likely be
significantly cheaper than in the real world. Had this system been
present, perhaps Eros LLC would have sought justice in-game, rather
than spend $5,000 in real-world lawyer fees against Simon for a $525
settlement. Lastly, Second Life will develop a common law system specific to the
game world itself.
[¶108]Although the IGJ appears to tackle all the bases of
dispute resolution in Second Life, an uncovered arena still warrants
discussion and development. The RWJ system, or real world justice
system is a dispute resolution forum of last resort. This is where
the human player, himself, is held personally responsible to
other human players for his avatar's activities that pierce the
virtual veil ("PVV"). Here, a real world court system would
adjudicate matters occurring within a virtual world scheme. And as
Fairfield and Locke demonstrate, real world legal systems do
technically allow for virtual world disputes relating to property.
Indeed, with the PVV, many of the issues are streamlined.
[¶109]PVV helps delineate when and how to
determine whether a human player is responsible for his avatar's
conduct. Similar to "Piercing the Corporate Veil" in
corporate law,where the court removes the protection provided individual members of
a corporation for criminal activity, and makes these members
responsible for their own actions, here, PVV holds the player liable
for actions of its avatar. The rationale is quite simple: at times
players act egregiously in virtual worlds partly because they know
that they are shielded from the virtual actions of their avatars.
The human player, himself, is not in the wrong, but the avatar is the
one wreaking the havoc. However, once the human player has conducted
an egregious act under the auspices of its avatar, then he has
pierced the virtual veil making himself liable for the act.
[¶110]Perhaps matters that warrant complete player banishment in
the IGJ are transferred to the RWJ with Linden Lab's endorsement.
Arguably, under the theory of piercing the corporate veil, the state,
like Linden Lab, created the avatar entity, so the state can decide
when to disregard the avatar shield. In getting to this stage, the
plaintiff must shoulder the responsibility of fulfilling the testto determine a piercing of the virtual veil. Assuming the
jurisdiction is California, where Linden Lab is located, then a
two-prong test must be fulfilled: a unity of interest and ownership
between the avatar and the human player, and an inequitable result
would occur if the acts were treated as those of the avatar alone. If the totality of circumstances shows egregious conduct on the part
of the perpetrator, then there is a real world basis for relief. The
burden is on the plaintiff to show the defendant's egregious
behavior.
[¶111]Because this would be an extreme resort for justice, an
example of a potential real world action for avatar behavior may be
the game player, Zhu, who sold the saber sword for real world money
and affected the financial situation of Qiu.Or had Avatar Stoklitsky run-off without a trace with nearly
$10,000,then the victims could seek legitimate real world court resolve
rather than contacting local police and the FBI.
[¶112]The most troubling issue with the RWJ is that real world
courts have yet to decide the implications of in-world playing
translating into real world disputes. The jurisdictional divide
between virtual world and real world is still quite strong. However,
some gaming experts, like Julian Dibbell, think
that it might be time for real-world judicial systems to take the
antics of virtual scammers seriously. "No lawyer, no cop, no
anybody is going to get away with saying, 'That has no value,
therefore it's not our problem,'" Dibbell says. "They're
going to have to look at the context of the game and figure out what
the real answer is."
[¶113]Perhaps a real world
court could hear those disputes which are so egregious and
significant in damages that the virtual world setting provides no
resolve. Indeed, Adams who scammed billions of dollars
in ISK in Eve Online could be brought to a real world court. Even
though the game, itself, did not recognize theft, the real world
court would surely define the property scam as such, even if Adams
did not translate the in-world money into real world money. Virtual
property, like ISK, shares the characteristics of real world property
as Fairfield establishes. Thus a real world court system should not
be precluded from hearing cases of virtual property theft and damage.
[¶114]The law exists to protect those who have suffered damages
and punish those who have perpetrated in the losses. With virtual
worlds becoming more like the real world in the social and economic
sense, the lack of a system for relief is putting avatars in a
disgruntled "playing" position. In order for a society to grow,
there must be trust and harmony between community members. The
duplicity, manipulation, and disorder running rampant in virtual
worlds leads to a negative gaming experience. Rather than avoid the
detriments of discord, game developers may find themselves in a more
comforting situation if they provide aggrieved avatars a venue for
justice. EULAs already provide players with a sense of what is right
and wrong; but what they do not provide is a place for aggrieved
avatars to have their day in court or reap back their losses from the
griefer. Moreover, warnings and suspensions do not demonstrate a
useful deterrent message. This is evident from the increase in
crimes that are occurring throughout virtual worlds.
[¶115]With the two-tiered roadmap of the IGJ and the RWJ, a
system of justice presents itself in the virtual arena. The IGJ will
afford aggrieved avatars a place to seek relief—ISCC or IDR—one
being a public venue like a court, and the other being a closed door
dispute resolution. Both will beacon a new era of justice in a world
where coded objects are disputed over and emotions are just as
strong. The IGJ will also usher in a new form of rule: virtual
common law. And the RWJ system will give the player the
opportunity to bring forth a claim against other egregiously-acting
players. Although players are genuinely considered immune from
avatar action, once the line between virtual world and real world has
been blurred, or "pierced", then real world court action will
control. Frankly, this is not a mechanism I suggest to be used often
until we understand the role of virtual property in the real world.
Even though virtual property shoulders the same characteristics of
real world property, it is still a fuzzy area of hesitation and
doubt. Only the most significant claims should go through the real
world court system. Ultimately, time will tell how the real world
court plans to adjudicate such claims.
[¶116]Arguably, the system I have proposed is neither perfect
nor exhaustive. It is merely a guideline of what developers can do
to enhance a gamer's experience and attract more customers. Also,
this adjudication system will give more legitimacy in a virtual world
that models itself like the real world. This way, real world
consequences will not have to take over virtual world actions.
[¶117]Understandably, critics will scoff at the idea of a legal
structure or outlet guiding a make-believe world. After all, it is
only a game. It seems unreasonable to punish players for activities
committed in a fantasy-land. But this argument no longer
carries weight. A serious commitment of money and time is invested in
virtual worlds. As the virtual worlds become bigger, more diverse,
and more technologically advanced, avatars will need a venue to
maintain themselves and provide a sense of order within the
community. In time, going to court and seeking justice will be a
part of a hard day's work in the land of zeroes and ones.
