Virtual Justice

Virtual Justice: The New Online Worlds, by Greg Lastowka, Yale University Press, New Haven, CT 2010, 196 pages. $27.50, Reviewed by Heidi Boghosian

Rare is the book that so artfully animates, engages, and provokes the creative and legal imagination as does Virtual Justice: The New Laws of Online Worlds. Starting with an examination of how computer technology is creating new places for social interaction, Greg Lastowka analogizes social and legal ordering to three different kinds of castles. The massive stone Welsh Cardiff Castle, Disney World’s corporate theme park fantasy Cinderella Castle, and the Dagger Isle Castle in the imaginary online world of Britannia all “serve to introduce some basic observations about power, technology, artifice, and law.” This creative foray establishes the pioneering tone for an important, understated, and—simply put—quite marvelous book.

Virtual worlds are online communities through which multiple computer users interact or role-play with one another in fantasy environments. Lastowka explains that virtual worlds share features with precursor digital games, such as the 1960s’ Spacewar, in which, as Lastowska explains, “each competitor controlled a spaceship. ... The players navigated the ships on a flat plane around a central sun (with simulated gravity) and attempted to destroy each other with missiles.” Spacewar became extremely popular because it enabled people to compete with one another within a computer simulation.

In the 1970s, a computer programmer created Colossal Cave Adventure, or ADVENT for short, which was a computer game in which the player acquired possessions and followed instructions in order to move around different places in the cave.Virtual worlds are similar to ADVENT in that “[t]hey simulate going to new places, solving problems, acquiring treasures, and trying to stay alive.” Users appear as avatars, which are computer-generated graphic representations of a person or creature, or, as Lastowka calls them, “digital alter egos that both embody and enable users within the simulated space.” Avatars inhabit and interact with other avatars in simulated environments. Some virtual worlds imitate real life, allowing users to buy property and furnish their “homes,” and some are fantasies involving non-earthlike creatures. The avatar’s appearance may itself become strategic, especially in fantasy games, in which an avatar can, for example, assume a gender that is different than its owner’s. Or, in World of Warcraft, which is a “massively multiplayer online role-playing game” (MMORPG), the appearance of an avatar’s body lets players know whether the avatar is a friend or an enemy. As the most-subscribed MMORPG in the world, World of Warcraft has more than 12 million subscribers and more than 60 percent of the MMORPG market. As Lastowka points out, “[t]he most compelling element of virtual worlds, it turns out, is not the powerful graphic technologies they employ but the very real social interactions that occur through that technology.”

In Virtual Justice, Lastowka explicates how real-world laws have thus far been applied to, and are adapting to, the problems that arise from virtual world interactions. Lastowka is highly competent to write on the subject. A professor at Rutgers School of Law in Camden, N.J., he speaks and writes frequently on the subject of Internet law, and his research emphasizes the intersection of intellectual property and new technology. He served as defense co-counsel in Intel v. Hamidi, 71 P.3d 296 (2003), in which the Supreme Court of California declined to extend common-law claims of trespassing to the computer context, absent actual damage. Owners of virtual games require game users to abide by terms of use agreements in order to play. Lastowka suggests that, governed by such agreements, virtual worlds have become their own jurisdictions: What those visiting virtual worlds will find, legally, is something that resembles a new feudal order, with a separate and different set of rules governing their rights and duties. Virtual sovereigns are minting their own currencies, crafting and drawing wealth from their own societies, fine-tuning their own economies, and casting out those who dare to flaunt their decrees. All of this suggests that virtual worlds are becoming, in essence, separate jurisdictions governed by separate rules.

In the area of property rights, even though courts have acknowledged the existence of legal interests in virtual property, other issues, such as inheritance rights, are less clear. Lastowka describes how, after U.S. Marine Lance Corporal Justin Ellsworth was killed in Iraq, his parents wanted to see e-mail messages that he had written to friends at home, because he had told his father that he planned to make a scrapbook of them. However, because he had not told his father his password to his free Yahoo! e-mail account, his father had to hire a lawyer and obtain a court order to obtain the e-mails from Yahoo!

In explaining the relationship between virtual worlds and laws enacted to address Internet technology, Lastowka notes that the rapid growth of the Internet has led to a consensus among lawyers and law-makers that a new and specific body of legislation is needed. He explores virtual world law in the context of jurisdiction, noting that law in general “has been closely tied to spatial territory.” Given that, what remedy did Qiu Chengwei, a Legend of Mir player, have when a virtual Dragon Saber he acquired through many hours of play, with a market value in China approximating nearly $1,000, was stolen? A friend had asked if his avatar could borrow the Dragon Saber from Qiu’s avatar; after Qiu lent it to him, his friend sold it to another player for real-world money. After Chinese law enforcement refused to prosecute Qiu’s friend for theft, Qiu killed his friend and then turned himself in to the authorities. Lastowka offers a policy argument for a legal recognition of virtual property: society is less violent when governments recognize and protect ownership rights to private property.In addition to World of Warcraft and Legend of Mir, another kind of virtual world is the social world, where users do not compete to win games.

In Second Life, for example, user “residents” socialize and participate in group activities and also create and trade virtual property and services. Under the Second Life terms of use agreements, users retain copy-right for any content they create, and the server and clients provide simple digital-rights management functions. In the first real-world lawsuit involving virtual property, Bragg v. Linden Research Inc., 487 F. Supp. 2d 593 (E.D. Penn. 2007), a dispute arose over a Second Life land purchase. Linden Lab, the company that maintains Second Life, encourages users to make money from land transactions. Linden Lab banned the user, Marc Bragg, from Second Life and canceled his account, claiming that he had used a method, forbidden by their terms of use agreement, to purchase, at auction, thousands of dollars’ worth of virtual property that was not officially listed for public sale. As a result, Bragg lost access to land he bought as well as his other virtual property, which was valued at thou-sands of real-world dollars. The case was ultimately settled, with the terms confidential; the judge found that the dispute was real and that the game’s terms of use agreement provided no real method for dispute resolution. 

In most virtual worlds, the terms of use agreements require that con-tent generated by users is either the property of, or is subject to, the licensed use of the game owners. Unlike many other virtual worlds, content in Second Life is generated mostly by users. The owner, Linden Lab, contractually requires that users permit the game to upload content and prohibit users from posting con-tent that infringes on the company’s copyright. But, unlike most other virtual-world owners, Linden Lab does allow users to benefit financially (in both the virtual and real worlds) from their creativity within Second Life.

Lastowka writes, “When virtual worlds empower users with a wide range of creative freedom and encourage them to take economic ownership in their productions, those worlds are more likely to attract lawsuits from all directions. Large scale financial stakes and uncertain rules are a dangerous mixture.” In fact, a class action suit filed in 2009 by Second Life creators claims that Second Life failed to protect user-generated intellectual property after someone had duplicated a plaintiff’s creations and sold them at a discounted price elsewhere.

In Virtual Justice, Greg Lastowka estimates that at least 100 million people interact in virtual worlds on a weekly basis. He reports that analysts predict that number will likely double or triple in the next five or 10 years. The appeal of virtual worlds, he suggests, may lie in “the inherent ambiguity present in the virtual realm, where things can be and not be all at once. If we could clearly see and weigh the risks and rewards present in virtual worlds, clarifying the legal status of our interests in them, it might be that we would limit, for better or for worse, the sorts of pleasure they currently provide.” This treasure of a book has a similar appeal in its forgoing to offer definite solutions to the legal questions raised by virtual worlds. Lastowka is not intractable in his theses, and he elicits the best in his readers by encouraging them to think critically. That the subject matter involves the terrain of the imagination is of great help as well.