Virtual Worlds and

IP LawOuter space is not the “Final Frontier”

Association of Virtual Worlds

2010 Blue BookAVW-The-Blue-Book-Nov-2010.pdf

The BIG SEVENThe 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 XNot 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 everythingthis 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 copyrightwith limitations

Linden Lab specifically rules out patentstheir 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.

“Place” and Jurisdiction

As with other online issues, whose law?

Complicated byThe 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

Many have internal jurisprudence proceduresSee 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)

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.

BackgroundAnne 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, 1996. Especially:

Part One: http://jcmc.indiana.edu/vol2/issue1/index.html

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: http://jcmc.indiana.edu/vol2/issue2/index.html

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) http://www.firstmonday.org/issues/issue11_2/post/index.html

Duranske, Benjamin. Virtual Law: Navigating the Legal Landscape of Virtual Worlds, ABA, 2008