Virtual Worlds and IP Law Outer space is not the “Final Frontier”

Association of Virtual Worlds 2010 Blue Book AVW-The-Blue-Book-Nov-2010.pdf

The BIG SEVEN The Magic Circle The nature of ownership in virtual worlds Which IP rights? “Place” and Jurisdiction Control and Process: TOS Rampant infringement or Transformative Fair Use? ISP or Content provider: Safe Harbor?

The Magic Circle What happens in X, stays in X Not a “legal” principle with standing, but, a widely held “philosophical” approach that seems to have some merit If the content and outcomes all stay inworld, courts may be less interested in the litigation. The more that comes out, the more it seems that RL laws might apply. Even within the circle, though, claims can still be made.

The nature of ownership Most providers specify (TOS) that they own everything this stance gets re-examined in slides 8 & 10. Where/when players/residents “own,” things, one has to get very deep into the TOS to find out what that means. Generally, it’s a license for use within TOS specified parameters. However, encouraging the sense of ownership raises the stakes for disputes and litigation. Players buy, sell, and trade AS THOUGH they own (both in and out of world) regardless of TOS. Remember that the sense of (and behaviors surrounding) ownership reflects back on the magic circle.

Which IP rights? Using LL/SL as an example (cause most others keep all rights to themselves) Linden Lab allows copyright with limitations Linden Lab specifically rules out patents their TOS “over-rules” US law (in a way) Has specific TOS concerning personal torts Strangely positioned on trademarks (which are HUGE) Large new procedures for their marks Silent on marks belonging to others. There is MASSIVE trademark and copyright infringement within the environment.

“Place” and Jurisdiction As with other online issues, whose law? Complicated by The sense of “place” in virtual spaces: where are they? To what extent does it matter if host is centralized or distributed? Esp. once there is inter-portability AND self-hosting. The multinational globalism attached Contract law: license v. ownership v. users’ sense of rights and belonging. Many have internal jurisprudence procedures See next slide for TOS questions Legal status of these procedures Some are trying to enact new world orders

Control and Process: TOS Most IP issues (along with everything else) are laid out here. As are appeal procedures both against the co. and between participants Bragg v. LL started to lay these bare (and aside) LL advertised “you own it” Bragg figured a cheat on the land sale profit system LL took his stuff/suspended his account Court was going to really hammer them for bad TOS and bad appeals system LL gives the user back his stuff, then just changes their TOS to say that users no longer own anything (except their IP rights, except when LL wants to use the material in their promotions. Courts HAVE upheld these copyrights in infringement cases between users

Rampant infringement or Transformative Fair Use? If it appears in a virtual world, it can’t be protected. Does appearing in a virtual world thereby qualify as transformative fair use? This has not “worked” (often) as a defense in games cases. Users often treat VWs as NOT RL and as though RL rules don’t apply. Infringement is just rampant. RL rights holders haven’t been hugely interested in trying to protect their stuff. Not enough $ in doing so (yet). In some ways, VWs are too esoteric to draw full attention. User cases show how and why users ARE interested. Gibson Island on SL shows (maybe) how and why RL rights holders SHOULD be interested.

ISP or Content provider: Safe Harbor? One would think that providers put in WAY TOO MUCH content to claim ISP pass-through. Yet. They all claim it.

Everything has changed... All laws are in place and best as we can tell, apply. There are cases that indicate as much. Jurisdictional issues are as complex as IP law, globalism, and the internet can make them. IP law is hardly the tip of the iceberg. Ownership of every aspect and behaviors of every kind, not just IP law issues, are at play and risk. What one "owns," "uses," and "does" in virtual spaces are all at issue. If IP law is behind (new media), IP law in virtual environments is even “behinder.” There are lawyers beginning to specialize in this phase of IP law. There are content holders with interests. There have been and will be cases. Think how poorly the system deals with the internet and international. Then multiply to infinity and beyond.

Background Anne Wells Branscomb (ed.) Journal of Computer-Mediated Communication: “Emerging Law on the Electronic Frontier” Volume 2, Number 1: Part 1 of a Special Issue June, Especially: Part One: David R. Johnson, Due Process and Cyberjurisdiction. Tamir Maltz, Customary Law & Power in Internet Communities. Juliet M. Oberding, A Separate Jurisdiction For Cyberspace? Part Two: Niva Elkin-Koren, Public/Private and Copyright Reform in Cyberspace. Post, David G., and David R. Johnson, (2006). "The Great Debate--Law in Virtual World." First Monday. 11 (2) Duranske, Benjamin. Virtual Law: Navigating the Legal Landscape of Virtual Worlds, ABA, 2008 Virtual Law: Navigating the Legal Landscape of Virtual Worlds, ABA, 2008Virtual Law: Navigating the Legal Landscape of Virtual Worlds, ABA, 2008