If you found the previous post concerning First Amendment rights in virtual worlds interesting, a new article in Volume 30 of the Cardozo Law Review may be worth your time. The article, The Freedom of 3D Thought: The First Amendment in Virtual Reality, was written by Marc Jonathan Blitz of Oklahoma City University and presents the following question in its abstract:

This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as “speech” or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment “speech” when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these – which generally count as “non-expressive” conduct, unprotected by the First Amendment, in the physical world – suddenly become “expressive” in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR’s convincing illusions are First Amendment “speech,” like the movies or video games of which they are arguably three-dimensional analogues, or “conduct” like the actions they mimic.

Download the entire article here.

[Hat tip to Media Law Prof Blog]

]]> http://www.lawsofplay.com/articles/more-on-the-first-amendment-in-virtual-worlds/feed/ 0 http://www.lawsofplay.com/articles/dutch-youths-convicted-of-real-world-theft-of-virtual-goods/ http://www.lawsofplay.com/articles/dutch-youths-convicted-of-real-world-theft-of-virtual-goods/#comments Wed, 22 Oct 2008 17:58:59 +0000 Anthony Prestia http://www.lawsofplay.com/?p=240

Eugene Volokh, UCLA’s Gary T. Schwartz Professor of Law, just posted some interesting commentary concerning a recent Dutch court conviction of two youths for stealing virtual items in Runescape. Under Dutch law, the virtual goods are considered goods, so their theft constitutes a criminal act. However, the goods were not “virtually stolen.” Instead, the two boys committed physical violence against a classmate who eventually transferred his items to the attackers.

I would recommend heading over to The Volokh Conspiracy and reading Prof. Volokh’s comments concerning the difference between “virtual theft” and “real-world theft of virtual goods.” The difference between the two is significant and worth considering. As virtual worlds tend to more realistically parallel real-life, it is not improbable to believe that individuals will attempt to enforce virtual crimes in real courts. I agree that the law should not prohibit virtual crimes; however, I’m not sure what games Prof. Volokh has seen that feature virtual rape.

[via The Volokh Conspiracy]

Pennsylvania lawyer, Marc Bragg, recently sued San Francisco-based Linden Lab for breach of contract and unfair trade practices after an online property deal went sour. Oddly, the property at the heart of the dispute is entirely virtual and exists only in Second Life. The lawsuit, which sought several thousand in damages, was settled out of court in a confidential agreement.

Bragg’s lawsuit underscores an important question that has recently piqued the interest of politicians and lawyers alike: Do virtual economies, such as those found in various MMORPGs, need to be regulated? And, if so, should the regulations that exist in the physical world apply?

While still uncommon, numerous disputes concerning virtual property have found their way into courtrooms in both the US and abroad. For instance, a recent case found a New York man liable for selling unauthorized copies of numerous Second Life users’ virtual goods. And, in Germany, a 17-year-old was arrested for stealing virtual furniture from within a piece of social networking software.

The idea of litigating such matters was considered laughable not long ago, but the popularity of online games like World of Warcraft and Second Life have created billion-dollar virtual economies where people trade real currency for virtual assets on a daily basis and, thus, lent credibility to such litigation. As these economies continue to grow, there is little doubt that litigation will continue and legislatures will be forced to not only determine what rules should govern these economies, but how these economies can and should be policed.

In a case that has been described as “pitting distasteful gaming behavior against an unsavory over-assertion of copyrights,” Blizzard Entertainment and Vivendi SA seek damages against software company MDY Industries for alleged tortious interference with contract and secondary copyright infringement. Blizzard claims that MDY’s program “Glider,” which is used by players to automatically level up their character as they go about their daily lives, not only illegally interferes with Blizzard’s End User License Agreement (“EULA”) and encouraging users to breach said agreement, but also makes MDY secondarily liable for copyright infringement.

While companies and individuals can be held secondarily liable for copyright infringement in a number of ways (contributory infringement, induced infringement, and vicarious liability), this liability is always contingent upon plaintiff proving that some sort of direct infringement occurred in the first place. Here, Blizzard claims that the portions of World of Warcraft (“WoW”) that are copied into RAM whenever a user plays the game are infringements. However, Blizzard “excuses” these infringements through the terms of the EULA. Therefore, whenever a user violates the EULA by running Glider, Blizzard claims that the copy of WoW loaded into RAM is no longer “excused” and becomes a direct infringement, which would entitle Blizzard to statutory damages.

So, what’s the big deal?

Well, the big deal seems to be the fact that Section 117 of the Copyright Act allows purchasers of software to make copies of that software when it is essential to use. Without Section 117 it would theoretically be infringement to install a copy of a program on your hard drive or load the program into RAM in order to run it.

However, Blizzard contends that Section 117 doesn’t apply because a purchaser of WoW does not “own” the copy of the game. Instead, Blizzard claims that users simply license the software, as provided in the EULA.

There are two major problems with this argument. First, courts look to the actual substance of transactions to determine whether they are sales or true leases. This has been an issue for years as companies often receive tax benefits for leasing equipment and would prefer to disguise a credit sale as a lease. Second, if Blizzard’s argument was accepted, this would allow nearly all media producers to maintain control over their products indefinitely. For instance, if any media producer could add a line to an EULA that magically turns a sale into a lease, these companies would effectively extinguish the used media market.

For more on MDY v. Blizzard, check out Public Knowledge’s amicus brief, the Electronic Frontier Foundation, and Patent Arcade.

If there exists a segment of the population more vocal and protective of their hobby than gamers, I would love to meet them. No longer content with complaining on forums and signing meaningless Internet petitions, Antonio Hernandez, a former Orlando-area video game store assistant manager, has taken his grievances to court.

Hernandez, an avid World of Warcraft player, has filed suit against Internet Gaming Entertainment, Ltd. (“IGE”) in Fort Lauderdale, FL.  Hernandez claims that IGE’s practice of gold farming diminishes the enjoyment and satisfaction of consumers and violates the World of Warcraft Terms of Service.  Hernandez ultimately argues that gold farmers damage the game’s economy by forcing legitimate players to spend more time earning the virtual currency that is necessary to improve their in-game personas.   Hernandez’s suit claims that “[t]his loss of time, conservatively, amounts to hundreds of thousands of hours of subscriber time and causes the irreparable harm of driving subscribers away from ‘World of Warcraft’ . . . .  The economic harm incurred by this loss of time is in the millions of dollars.”

In response, IGE claims that:

Hernandez and other players have no standing to sue because they have no ownership or property rights within “World of Warcraft.” Hernandez’s lawsuit fails to show how he suffered actual damages[.]

Interestingly, if IGE is correct and World of Warcraft players have no ownership or property rights within World of Warcraft, one must wonder how IGE is able to sell in-game assets for real-world currency in the first place.

What makes this case interesting is that it’s the first time a player has filed a lawsuit in response to “real money trading” in a virtual world.  Hernandz also hopes to make this the first class-action lawsuit involving online role-playing games.

When asked about the litigation, Paul Sams, Blizzard Entertainment’s Chief Operating Officer, commented:

We believe that shutting down gold farming and real-money transfer is in the interest of all ‘World of Warcraft’ players and that a victory in this case would have a positive long-term effect on the online gaming industry as a whole.

For more about this pending litigation:

Sarasota HeraldTribune
Justia