Lex Technologiae

Governments shouldn’t interfere with the internal regulations of virtual worlds. The value of a virtual world is the fact that it exists, in an imaginary sense, outside the bounds of the real world. We visit virtual worlds to escape the real world.¹

Dr. Richard Bartle wrote about this intrusion of the real world into the virtual in his article Virtual Wordliness: What the imaginary Asks of the Real.² This is the same Richard Bartle who, along with Ro Trubshaw, created Multi-User Dungeon, or MUD, perhaps the first virtual world.

Bartle makes the point in Virtual Worldliness that virtual worlds have three fundamental characteristics: the game conceit, the freedom to evolve, and support for the hero’s journey.³ Each of these characteristics make virtual worlds different from discrete, close-ended games. You can finish a game of Monopoly or Super Mario World, but you can never really finish a virtual world. Virtual worlds are open-ended—the freedom to evolve, the support for player-created heroic journeys, and the imagination of the game conceit work together to ensure this.

Government regulation, either directly or indirectly by forcing common law theory into a virtual world setting, will destroy the ability of virtual worlds to create these fundamental characteristics. The game conceit—the imaginative construct upon which the world is based—will, as Dr. Bartle says, “evaporates upon contact with . . . reality.”⁴ The world will no longer be free to evolve—its evolution will be constrained by the laws injected into its sphere. The world’s support for the hero’s journey will be conditional upon the rules and regulations of laws from the outside—laws from the real world.

Why do people want laws to intrude into virtual worlds?

Virtual worlds have become big money. World of Warcraft has millions of players. Chinese workers earn salaries by playing the game, earning in-game ‘gold pieces,’ and then selling it to other players for real-world money. Some companies have willingly commodified their virtual worlds,⁵ allowing users to spend real-world money for virtual world objects. There is real money in these virtual worlds.

Yet virtual worlds are autocratic entities. Their creators and administrators are known as ‘super users’ or ‘gods’ because of the power they possess. Regular users, on the other hand, have few powers to regulate the behavior of other players in the game.

At the same time, regular players must agree to terms of use (ToU) or end user license agreements (EULAs) that outline general behavior expectations. Harassing other players is prohibited. Using in-game exploits⁶ is prohibited. These worlds have a basic framework regulating user behavior, but it’s enforced by the super-users, by the gods of the machine.

If one user harasses another user, the victim can only report it to these super-users. If one user uses an exploit to take stuff from another user, then the victim can only report it to these super-users. The victim’s recourse is through the creators of the virtual world.

Sometimes virtual world creators have a responsive system in place for these victims. Sometimes super-users respond quickly, execute accurate and swift justice, and restore the victim to their previous state. Sometimes victims get no response and are left with two options: keep playing, or give up.

People who want real-world laws to apply to virtual world situations think this is unfair. If a player uses an exploit to take another player’s virtual objects, why shouldn’t that person be able to sue them in a real court? What if the player continually harasses them in game, making game-playing a miserable experience? Lawsuits based on the harasser’s failure to abide by the ToU or EULA contract terms should be allowed, people argue.

After all, these people spend lots of time playing these games. They spend time and effort acquiring virtual ‘stuff.’ Virtual world users shouldn’t be allowed to interfere with another’s ‘stuff’ without consequence. These folks should have rights!

Which is why many of them argue Locke’s labor theory of property acquisition applies to the virtual objects folks acquire when they play in virtual worlds.

Property rights? Why Locke’s labor theory doesn’t apply to virtual world scenarios

I’ve written on this before. Folks who argue Locke’s labor theory applies, and should apply, to virtual worlds are missing fundamental presumptions of the labor theory. Locke’s labor theory applies to initial acquisition of property in the wild—the so-called fountainhead of property. It does not apply to property right acquisition in objects already owned by others.

Locke’s famous example is the acorn. If he picks up the acorn from the ground he has mixed his labor (picking it up) with the acorn, thus making it his. What virtual labor theorists miss, however, is that virtual Locke isn’t picking an acorn out of the wild when doing so in a virtual world. Rather, virtual Locke is performing the equivalent of picking an acorn out of a basket at a market, where the basket’s owner already mixed his labor with the acorns in the wild.

The acorn basket’s owner has a property right in the basket of acorns under Locke’s labor theory. Locke doesn’t acquire a property right by picking up an acorn from this basket; he only obtains a property right if he buys it.

Similarly, a virtual acorn has already been plucked from the wild when the virtual world creator designed the code allowing it to be implemented. Therefore, the virtual world creator owns the virtual acorn, having plucked it from the wild through his labor, whereas the user is in the position of Locke at the acorn market. The virtual world creator might choose to transfer the acorn’s ownership to the user, as might the acorn marketer, but property rights cannot transfer absent this choice.⁷

In short, Locke’s labor theory does not apply to virtual world scenarios.

Shouldn’t virtual world users be protected from exploits and harassment?

Yes they should, and they are. People love property so much that they often miss the legal theories and policy theories that already protect users from the bad acts of their fellow men.

I’ve written about how privacy laws might be best suited to protect against situations where a user’s accounts have been hacked.⁸ The common law of privacy can apply to virtual world scenarios where property law cannot. Similarly, computer intrusion criminal laws can apply to hacked accounts where theft laws cannot.

On top of this, virtual world super-users often have the ability to restore accounts and equipment. This is the beauty of the digital—easy and instant creation or copying of items. A World of Warcraft player who lost everything—account, weapons, equipment, special tools, and more—might be capable of getting it all back within a day or two. The loss suffered, in light of the ability to restore lost ‘stuff,’ becomes minimal.

Finally, virtual worlds where exploits are common and users are allowed to harass each other mercifully have a built-in economic protection. In the real world folks sometimes can’t escape someone who’s harassing them. Users of virtual worlds can—they just have to log off. Quit. Stop paying.

Some might say this type of harassment can spill over into the real world, and they’d be right. However, the harassment then becomes real-world harassment and laws protecting against such behavior will come into play.

1. I’ve written on this before: The Virtual Property Problem: What property rights in virtual resources might look like, how they might work, and why they are a bad idea, 41 McGeorge L. Rev. 281 (2010), available at http://ssrn.com/abstract=1469299; Fiber Optic Foxes: Virtual objects and virtual worlds through the lens of Pierson v. Post and the Law of Capture, 14 J. Tech. L. & Pol’y 5 (2009), available at http://ssrn.com/abstract=1469532. [↩]
2. Richard Bartle, Virtual Worldliness: What the Imaginary Asks of the Real, 49 N.Y. LAW SCHOOL L. REV. 19 (2004). [↩]
3. Richard Bartle, Virtual Worldliness: What the Imaginary Asks of the Real, 49 N.Y. LAW SCHOOL L. REV. 19, 23 (2004). [↩]
4. Bartle, Virtual Worldliness, at 35. [↩]
5. Entropia Universe and Second Life are, perhaps, the two most noteworthy. [↩]
6. Wikipedia discusses online gaming exploits for those not familiar with the term. [↩]
7. This is a simplification; some might point out situations where property transfer occurs against an owner’s will. These are straw man arguments, however, and are exceptions rather than the norm. [↩]
8. A Virtual Property Solution: How Privacy Law Can Protect the Citizens of Virtual Worlds, 36 Oklahoma City University Law Review (forthcoming) (2011), available at http://ssrn.com/abstract=1469299. [↩]