The State of Play conference was a couple weeks ago. The big news at the conference, of course, was Fridays morning's announcement that Second Life is disclaiming any copyright interest in the content its players add to the gameworld. (See also the discussion at Terra Nova and Slashdot.)
Near the end of the question-and answer period, Yale's Yochai Benkler rose to pose a most provocative question. Here, in very rough paraphrase, is what he said:
I'm baffled by this embrace of IP rights, given your own descriptions of what you find valuable. You're creating this world in which people come to play and be creative, and yet you've given this world a system that has been extensively criticized as limiting creativity. Haven't you just given them a new set of hurdles to creativity?
I'd like to devote the rest of this piece to explaining just how deep Benkler's question was, just how many unresolved issues of law and gaming it ties together.
Whoomp! There It Isn't!
Poor Will Harvey. He founded There, and he was the other speaker on the panel at which Philip Rosedale dropped Second Life's bombshell. Any message he was hoping to get out to the world about There was effectively lost in the Second Life hoopla.
Well, actually, it's hard to summon much sympathy for Harvey, at least from an audience of geeks and lefty law professors. Because this is a conference about the new, the exciting, the complex -- and it dawns on the audience within about two minutes that There is a profoundly boring place to be. With this crowd -- willing to speculate gleefully about dystopic Foucaldian games -- blandness is probably the worst offense imaginable. Why go There when it looks just like here?
Harvey probably doesn't help his cause much when he says that There is the Metaverse -- and then quickly adds that, for now, version 1 is a place to hang out and socialize while doing things online. "It serves the same function as chat," he says; I immediately find myself thinking, "but chat serves that function better." I can have a dedicated chat app open in one window while I do something else in another. With chat, there's no overly-complicated spatial metaphor to get in the way of the conversation. And chat is free.
But that's the point to There, isn't it? You buy your Therebucks, and you spend them on all the virtual frou-frou There offers: the hoverboards and dune buggies and the customized clothing textures your fellow players have uploaded. Benkler hits the nail right There on the head when he calls it a "consumer fantasy." There is the kind of commercialized walled garden -- come, linger, spend -- he spends much of his academic energy critiquing. If you're Yochai Benkler, there's no point even mentioning your anti-IP politics to Will Harvey. He'll just stare blankly at you. Then he'll smile and a speech bubble will appear over his head asking you if you've tried the hoverboard racing yet, and would you like to buy a new T-shirt design for your avatar (only 293 Therebucks!)?
In fact, it occurs to me, There is so deeply bought into existing paradigms of IP (we own and retain, you pay us tribute money for access) that it has added new intellectual property rights to its world. There lets people upload clothing designs to sell to other players (from which sales There itself take a cut, of course). Since these designs are just bits, it's obvious that -- as in real life -- it's a trivial matter to make designer knock-offs. I might not even need to buy my own copy to clone; I could just take a screenshot of someone wearing your new buttless chaps, do some quick pixel-editing, and introduce my own line of buttless chaps.
There responds to this "problem" by introducing a stage at which There employees check through uploaded items. In addition to making sure that the buttless chaps don't expose more than the There-approved maximum quantity of skin, There employees check -- before approving items for sale -- that they don't show real-world trademarks (since selling officially-branded goods (Levis, Nikes, etc.) is a privilege reserved to the There Junta). Finally, they make sure that the design isn't substantially the same as anyone else's design.
Which is to say that There recognizes a new IP right -- call it the "right of virtual distribution." The first person to upload a design has the exclusive right to sell that design There. Never mind that that this design would have been unprotectable trade dress in the real world (most clothing designs don't qualify for the trademark-like trade dress protections because they're insufficiently distinctive). Never mind that this design might just be a scan of a public-domain image. It doesn't matter. The first uploader is the recipient of a There-enforced perpetual monopoly.
Why spend so much time ragging on There? Because There represents a particular vision of a game, of a virtual world. And it is not the only possible vision. There is to the full potential of games as AOL is to the full potential of the Internet. These particular spaces are so deeply, so fundamentally, oriented towards a dynamic of powerful producers and passive consumers, that more interesting questions can barely even be formulated. I have been ripping on There because I want to make clear, in contrast, just how much more expansive, how much more thrilling, worlds like Second Life might become.
And also, note, how much more troubling Benkler's question is for a Second Life than for a There. Will Harvey has nothing to say to Yochai Benkler. Will Harvey (or rather, the fictive "Will Harvey" I'm using as a punching bag) has no intention of giving up any control over There. He has no intention of instituting an IP commons. He's not interested in socializing other than the calm shopping-friendly sort There encourages. His answer to any tough question you might ask him is go away; you're scaring off the customers. It's people like Philip Rosedale and Raph Koster and Richard Bartle and Stewart Butterfield who lie awake at night worrying about Benkler's questions, because they're the ones who see players as people, rather than as customers. That sympathy only makes them vulnerable . . .
A Second Take on Second Life
In some ways, the Second Life tour looks an awful lot like the There tour. There are narrated shots from a scenic vantage point. There's a ride on a high-tech scoooter-thingie. There's a disproportionate amount of attention given over to customizable clothes. But there is something different about Second Life, something captured in Rosedale's repeated proud claim: We didn't build this. It was built entirely by our users.
We didn't build this. That's quite a goal for a maker of virtual worlds, when you think about it. That's like passing up the chance to be Willy Wonka. It may be a magical chocolate factory, but it won't be your magical chocolate factory in quite the same way.
It was built entirely by our users. That's also quite an ambitious -- even manipulative -- goal for a maker of virtual worlds. Not only are you going to make money charging people to come into your world and play, you're going to ask them to take care of the hard work of filling it with content. That's like airlines asking passengers each to bring a 55-gallon drum of jet fuel with them to the airport. There's something almost counterintuitive about the idea that your users will be your designers.
At any rate, Second Life considers one of its key challenges to be ensuring that its players are sufficiently enthused about creating content. Their whole gameworld is set up to give players incentives to be creative. Back at the time of the tax revolt, Second Life explicitly tinkered with its internal economic model to encourage large-scale construction. They also make heavy use of subsidies, auctions, contests, and simulated billing systems to provide incentives for their serious creators. They auctioned off a virtual island at E3; the informal terms of the lease under which its "owners" hold it are that they turn it into a popular tourist attraction. There's a fairgrounds area; people can build anything they want there, but every month, everything except the fifteen most popular attractions is deleted. And then there are voting boxes that players can use to indicate that they like content, as well as coinboxes they can use to "spend" Linden dollars to support gadgets and environments they particularly like.
Letting players keep copyright in their creations, then, is just another step along this path. It's the classic economic argument for intellectual property rights: if we give people exclusive rights, then they'll have greater incentives to be creative. Perhaps the ability to create and sell derivative works outside of Second Life proper will encourage them to create more original works -- complex objects and custom textures, to say nothing of things which can't easily be slotted into a genre.
Within a couple of days, for example, someone asked Second Life about filming some machinima in-game. No problem with us, said the Second Life people. For-profit machinima? No problem with us. Presumably, when those island-owners start giving tours, the tour-guide patter will be copyrighted, and could be published as a book. I'm having trouble conceptualizing how in-game objects and scripts could be of much value anywhere other than on Second Life's servers -- presumably the perfect script for a playful dolphin won't even run on any other platform. (Indeed, if it could, much of Second Life's business model would vanish, since there would be far less lock-in; most of what Second life would have left going for it would be a first-mover network effect.)
But, okay, so people keep the copyrights in the appearances of their custom objects. This just leads to another question. Suppose I'm zooming around on my speeder bike and I fly past the machinima guys. Without their or my intending it, my bike winds up visible in the background of many of their shots. They then sell CDs of the film at $5 a pop. Do I have a case for copyright infringement against them? What if their video is entitled "Second Life's Greatest Hits" and consists solely of close-ups of textures other people have uploaded? What if they make and sell T-shirts with pictures of other people's avatars and textures? What if those T-shirts are competing with T-shirts made by the people who designed those other avatars and textures? You know, the people who supposedly retained copyright in everything they uploaded?
One of the recurring themes at the conference was the degree to which real-life values and valuations seem to invade games. Ted Castronova made this point in connection with eBaying: game economies tend to become dominated by real ones. The prisoner's-dilemma aspect of the problem -- it's always in my interest to be able to buy and sell game items on eBay, I just wish you other yokels weren't doing the same -- gives it a kind of inevitability. It's actually enormously difficult to keep players from collectively assigning real-life value to game items. Something similar is likely to happen with intellectual property.
My examples above all involve taking the IP rights in player-created content seriously. The essence of such rights are the ability to sue someone for copying "your" content. Letting players keep such rights means letting them sue each other. Otherwise, the rights are meaningless. Now, these conflicts don't arise There -- or don't appear to arise There -- because There holds the copyrights, not the players. And There, though it hasn't legally bound itself, seems unlikely to go around suing its own players for copyright infringement. But does Second Life have that kind of control over all of its users? No.
Strangely enough, then, players of There, when they act as consumers rather than producers, may experience a less constrained intellectual property environment. They're not at risk of committing copyright infringement every time their avatar turns around. There may not be very nice, rights-wise, to producers; but the simplicity of the resulting regime -- if you can see it, There owns it -- makes for a predictable and unthreatening place. You don't face the fragmentary nightmare of a huge universe of owners, each of whom can get an injunction against you if you step on their toes, that you face in real life. In that aspect, at least, There comes closer to the commons ideal than does Second Life.
Hence Benkler's question.
Third Life, Fourth Life, and Beyond
Now, the immediate response that Rosedale supplied to Benkler's question was the Creative Commons one: Larry Lessig has offered us advice on this one. We're looking very seriously into rolling Creative Commons licenses into our code, so you can stamp an object as Creative Commons when you upload it. Benkler makes the same response to the idea of an in-game Creative Commons that he makes to the real-life one: a Creative Commons is a second-best substitute for a real commons. You're bringing in all the faults of copyright law, and then you make this jujitsu move, that we can somehow compensate for these faults. Why not give them true sharing?
Now, if I had to pick one super buzz-worthy idea floating around at the conference, I'd say this one was it. How about some form of open game? One that sheds some or all of the negative features of our world and its laws? You could see some variation of this idea in all sorts of places:
- Ted Castronova suggested that the point of many major virtual worlds is precisely to offer some kind of alternative to real-world rules and values. His discussion of the inevitability of eBaying had a mildly tragic tone: he wanted to preserve at least some "play spaces" from the colonial economic ambitions of the real world. And yet, as an economist, he thought that such a task would be quite difficult: the incremental pressures to treat them as "not-games" rather than as "games" is strong, especially when these spaces share many features of the real world (e.g., scarcity of resources).
- When Benkler gets up to speak, he himself speculates on the potential of a non-commercial game developed using free software on a distributed platform. We can't conceive of a world in which J.K. Rowling would be subject to suit for killing Harry Potter in Book 7, he says, but we continuously play with the idea that the users' needs in virtual worlds might force something about the platform. That should be our clue that there's a new cultural form here. A game both developed and hosted by its own players -- now that might be the most responsive approach to creating this new form.
- The agoraXchange people have a vision of using a game to demonstrate directly the truth of the slogan that "A Better World Is Possible." Actually, they have a vision of creating new collaborative tools that will be used to build a discourse leading to a set of candidate designs, which will then be voted on by a randomly-selected jury, yielding a final game design that will "challenge the current world order promoting violence." The details will be worked out during the discussion process, but the designs will need to satisfy four basic decrees which abolish nationality, inheritance, the family, and private land ownership. Interestingly, when project coordinator Cynthia Madansky is asked what whether the game would still go forward if the collaborative process came up with a design for a game not in line with the agoraXchange principles. "Absolutely not," she replies.
- Richard Bartle, in the opening keynote discussion, brings up the example of a Foucaldian prison camp game, one in which the AI guards arbitrarily beat up avatars and steal their shovels. If virtual worlds are to replicate the values of the real one, such games would be anathema -- why on earth would we countenance such cruelty and despotism? And yet no one doubts that such a game would be perfectly reasonable; between a world that allowed such a game and a world that didn't, the one that allowed it would seem a better world in which to live.
Now, these are four completely different definitions of what it would mean for a game to reject real-world values. Castronova's account is player-focused: his "right to play" is a right enjoyed by people who want to play in a realm not wholly controlled by economic logic. Benkler's account is much more to do with infrastructure and ownership: an "open" game to him is one in which the players aren't subject to the monopolistic control of a game owner. But Bartle loves game owners, because they're the people who make these alternate spaces and guard them from the nosy depredations of the ugly real world. And the agoraXchange team want to throw open the whole design and everything but the kitchen sink to their randomly-chosen jury.
It's taken me a few weeks, but I think I have a rough way of making sense from these disparate positions. There's an enormous analytical distinction between a free-as-in-speech game platform and a free-as-in-speech game. If the platform is free in this sense, it means that we have a virtual world without gods, without someone who can unilaterally and arbitrarily pull the plug on the rest of us. If the game itself is free, then we have a virtual world where in-game actions don't slot themselves into the property-and-money logic values normally associated with, oh, say, the RIAA. You can care about either, both, or neither of these two forms of freedom. Thus:
- Castronova cares about the game society, but not so much about the platform. He's thinking about these in-game values as things that we ought to encourage, perhaps by giving appropriate economic incentives to game owners. It's okay with him if the owners keep their game platforms locked down. As long as some owners give their players a rule-set that preserves in-game freedom, fairness, and community, it's all good.
- Benkler is more or less the opposite. He'd love to see some games ripped open at the level of the platform -- developed by distributed groups and run without a single centralized owner-god-wizard. In his writings on the regulation of communications infrastructure and media concentration, Benkler has consistently emphasized the view that avoiding such concentrations of power at the infrastructure level is the most important act -- from it, everything good flows.
- The agoraXchange people want both the platform and the game world to be open. Now, the question above tugs at apotential tension between these two forms of openness. When push absolutely comes to shove, the agoraXchange team will assert control at the platform layer if their core values are threatened in the game universe; otherwise, they walk the walk and quack the quack of freedom at every level.
- Bartle really doesn't care about either form of freedom. My caricature of him lives in what might be caricatured as the "game designer" paradigm: I want to be free to create whatever strange and twisted world I want. If players like it, they'll join and stay; if they don't like it, they'll go somewhere. Now, Bartle is a great designer, and as with the other great designers, his writings involve an exquisite level of sympathy for (and understanding of) players. But his is basically a "game"-centric view: if you build it, they will play. There aren't political questions here, except potentially if stupid lawyers come barging in and start treating games as something other than games.
What this exercise demonstrates, I think, is that the idea of games as some kind of escape from reality doesn't point in one direction or another when it comes to questions about the law's relationship to games. You can hold firmly to the idea that games are not, should not be, even cannot be like reality, and yet come down any which way you please on the question of legal intervention in games.
The problem is that at the conference, no one pays attention to these distinctions. Which leads to an enormous amount of people chasing each others tails in circles as they try to recast debates over interventionism in the guise over showing that the other guy isn't really talking about games, or at least about games as properly defined. Eric Zimmerman pops up and makes some great points about how insignificant digital games are in the scale of all the games people play; no one argues about regulating Boggle. Raph Koster repeatedly insists that he doesn't make games; all of our industry panelists are the creators of persistent virtual worlds, not game designers. Zimmerman agrees with him -- "games" have endings with winners and losers, which these worlds don't. Then people jump on Zimmerman, because that distinction can't possibly be the one that decides whether a given space should play by "game" rules or by "real-life" rules. And so on and on.
None of which, I think, gets us any closer to a coherent answer to Benkler's meta-question. Someone tells a story about a space, picks an answer, and says that answer ought to apply to "games." Someone else tells another story about a different space, one that suggests a different answer, and says that the first person has come up with the wrong definition of "game." And then they go at it for a while about definitions. But that's not the meta-question. The meta-question was what features of these spaces make us want to regulate them or protect them from regulation, and in what ways?
What We Think About When We Think About Virtual Property
When people think about "regulating" a game with real-life law, they tend to tell one of two stories. In the first story, someone in the game gets mad at someone else and brings a suit in a real-life court. This story leads to a long philosophical brouhaha about interlocking legal systems and comity and the metaphysical nature of gaming. But most of that brouhaha that turns out to be more heat than noise, because almost as soon as you fill in the story with case-specific details, the right answer is usually obvious. Thus:
- "Your Dark Elf killed my Lizardman!" fails to state a cause of action in any game with explicit player-killing. Dark Elves kill Lizardmen all the time, and Lizardmen kill Dark Elves all the time, and everyone accepts that such things are part of the game. This kind of "killing" isn't wrongful from a real-life point of view.
- "You hacked the server and stuck my Lizardman in a wall for four hours!" also fails to state a civil cause of action, because this hack was a straightforward Terms of Service violation. Sure, it was wrongful, but there's also someone already ready to come down on the wrongdoer with vengeful fury. The game's owners are likely to boot the Dark Elf and fix the hole.
- "You defamed me with your comments to other players!" does state a cause of action. There's nothing very game-specific about defamation or other speech torts. The real-life court will have no conceptual difficulty utterly ignoring the fact that the false accusations of real-life child molestation took place in a virtual world.
It's not easy to figure out the right general principle by which to draw the line here. People have been going at it now and then since Jennifer Mnookin's Virtual(ly) Law, and are going at it still. But however hard it is to figure out the underlying principle, the actual decisions are almost always easy. As long as the disputes are strictly between players, you have to strain to find an even moderately difficult decision. The only tough calls seem to involve conduct that was against game "rules" but for which there is no remedy available. But such conduct implicates the game owners, since they're the ones who failed to supply the remedy.
Which brings us to the second story, the one that actually keeps people up at night. This is the story of the player who is angry at the game owners and sues them. Now, under current law, these cases are almost always trivially easy to resolve: whatever conduct the player was annoyed at was probably explicitly allowed under the terms of service. The player loses. But this "answer" seems too pat for a lot of people at the conference; it starts to seem openly wrong in many cases. A lot of other people at the conference think these "openly wrong" results are in fact openly right -- and suddenly you have an interesting conversation.
You may be asking yourself what kind of crack I'm on to be thinking seriously about the possibility of players suing game owners. Let me try to explain why this isn't such an outrageous proposition. The first reason is that players have sued a game owners already. A group of Ultima Online guides -- the players who run around getting other players out of walls in exchange for free accounts -- sued Origin, claiming that they were employees, and entitled to minimum wage. The game designers at the conference bewail the suit, saying that companies making virtual worlds have had to divest themselves of reliance on guides for any significant roles, lest they too be sued. So we have a palpable acknowledgement that, where real money and real laws are at stake, the game-i-ness of games stops seeming so important, and the Terms of Service stop seeming so sacrosanct.
More importantly, though, as the game designers repeatedly point out, there are lots of game designers out there who do stupid, harmful things to their users. The conference opens with Raph Koster discussing his Declaration of the Rights of Avatars, which is basically a catalog of the stupid, harmful things game owners do to their players. Something about the power of being an admin, Raph observes, corrupts. Invested with god-like powers in-game, the admins eavesdrop on intimate conversations, arbitrarily pick on hapless players, and generally screw with players' minds and positions in the game.
It might not matter so much if the only thing at stake were bruised egos. But Dan Hunter and Greg Lastowka have been pointing out, players in virtual worlds are acquiring things that walk, talk, and quack like valuable property. If I have a Bone Crusher mace in Ultima Online, I can sell it to you for about $225. If you steal it from me, I'm out $225. If the person who steals it from me isn't you, but is instead the UO administration, I'm still $225 poorer. If the "administration" does it to me because some junior sysadmin didn't like the cut of my avatar's jib, we're edging even closer to something that sounds like an actionable tort. Why actionable? Because it just seems wrong, and that sense of wrongness is like a beacon, inviting judges to cut through the fog of claims that "it's just a game."
Intermission
Okay.
At this point, all of the important cards are on the table. It's time to start drawing some connections. We've seen three critically important "legal" issues that arise in connection with online multiplayer games and other virtual worlds:
- Who owns (or should own) intellectual property created in virtual worlds?
- Who has (or should have) power over in-game property in virtual worlds?
- When will (or should) real-life law intervene in virtual worlds?
At the conference, people have a remarkable tendency to start off talking about one of these questions and then, without realizing it, slide into another one. Thus, Benkler's question is addressed to the first question above, but his concerns about openness really only make sense in terms of the second question. Dan Hunter and Greg Lastowka have great things to say on the second question, but people keep on responding to them as though Dan and Greg were talking about the third. And whenever anyone asks the third question, it gets argued about in terms of termses of service and policy arguments about the right answers to the first two questions. The conference chases its own tail.
Except, that is, for a couple of wonderful moments when one of the presenters puts two of these questions together and sees the relationship. There are, I think, three moments on Friday when the scales drop from the eyes and something becomes clear. What I want to do now is to explain the connections these three presenters made, and to explain why I think these connections are so important.
Jack Balkin's Insight
Let's run some quick numbers. Ed Castronova estimated the 2002 GDP -- measured solely in terms of in-game assets, note -- of EverQuest at $135 million. (That is, by my estimate, at least twice the amount of revenue EverQuest generated in that year; the actual profit realized by Sony/Verant is presumably even lower.) That $135 million is "real" in much the same sense that post-IPO valuations are "real" -- people will pay good money for your share of it.
During his presentation on free speech and virtual worlds, Jack Balkin speculates about the possibility of players petitioning a bankruptcy court to keep the servers of a failed game running. If you take the numbers from the previous paragraph seriously, turning off the servers on a decent-sized game is the equivalent of taking a reasonable-sized storage unit full of dollar bills and setting it aflame. From the perspective of maximizing wealth, you want to keep the game running for exactly the same reason that we have Chapter 11 bankruptcy -- there's more value in a functioning system than there is in its constitutuent parts.
Balkin raises this possibility while talking about the free speech rights of game developers. His point is that from a doctrinal perspective, forcing a designer to keep a game running seems like a horrific offense -- it's a prior restraint that involves seizing the speech tools to satisfy a non-speech property interest. we're more likely to have sympathy for the players' request if the developer's "speech" in creating the game doesn't seem particularly like the expressive free speech we're used to, and if the players' property interests seem particularly strong.
So then, Balkin says -- and this is where my jaw drops during his presentation -- the game designer's choices about what kind of game to create are going to influence how we feel about using freedom of speech to shield her from legal demands against her made by players and outsiders. A game that involves creativity or real-life political dialogue gives her a very sympathetic case. But a game that's mostly about accumulating valuable items seems a much better candidate for intervention. To the extent that game designers commidify their virtual worlds, they're setting themselves up for hairy legal messes; to the extent that they make their virtual worlds about discourse, they're wrapping themselves in the legal equivalent of the flag.
Let's talk specific games. No one is going to win a property-rights lawsuit against agoraXchange. The game is intended to challenge kinship-based notions of property and nationality; it's being funded by an art museum. But There? There makes its money selling virtual items to people. If a server glitch deletes people's custom T-shirts and There doesn't make good on replacing the T-shirts, There is going to have a (comparatively) hard time defending itself against the resulting class-action suit. Will Harvey can't easily lean on the First Amendment when his relationship to his players is largely that of a vendor peddling brand-name consumer goods.
(Yes, There can point to its terms of service, but that'll be a case of contractual interpretation, and contract law has doctrines that could cut against There. Notwithstanding the terms of service, There might be found to have represented, in its advertising and its statements in the game, that players would be purchasing items whose continued existence they could count on. A court could decide that a reasonable player wouldn't have expected the risk of confiscation-through-glitch, void the entire contract, and order There to give players their money back. Or it might just find the contract so one-sided as to be unconscionable. If the class-action were in the hands of a talented lawyer, There could be in trouble. Sure, the theories I'm mentioning here are long shots. But the right facts shorten even the longest of shots.)
It seems to me, then, that a game that is "game-like" (in one of the four senses from above) will do much better at using freedom-of-speech as a shield to keep the outside world at bay than will one of those resource-accumulation bazaars Benkler derides. Balkin gives us the link between Castronova's "freedom to play" and the questions of real-world legal interventions that keep coming up. Everyone keeps talking about preserving game values from real-world ones; Balkin restates this desire in terms that real-world legal systems might take seriously.
Jack, then, gives us a possible link between questions two and three. The real world and its legal system will intervene in games precisely where those games are "about" virtual property.
Julian Dibbell's Insight
Julian Dibbell opens his presentation by talking about the BlackSnow case. Black Snow was an outfit of eBayers -- they would play games and then sell the virtual assets for cash. They were for-profit players, making a living out of knocking down the walls between real and virtual economies. Most game administrations hate such players, but it was Mythic Interactive, the corporate presence behind Dark Age of Camelot, that decided to do something about it.
That something involved sending takedown notices to eBay to have BlackSnow's auctions deleted. The reason? Copyright infringement. BlackSnow responded by filing suit in federal court, seeking a declaratory judgment that such auctions were not infringements, and that Mythic was engaged in unfair business practices by claiming that they were. Take that, Man.
Now, as it happened, the case was never litigated, because BlackSnow was in all sorts of other legal trouble, and its owners went on the lam (indeed, they didn't bother to tell their lawyers, leading to one of those embarrassing situations in which a law firm has to ask the judge for permission to drop a case). But, as Dibbell observes, behind its superficial stick-it-to-the-Man aspects, BlackSnow Interactive v. Mythic Entertainment posed a deep and fundamental question about the nature of online property.
Dibbell's point, once you peel back the layers of I-am-not-a-lawyer disclaimers he wraps it in, is that assertions of copyright in virtual items all but concede the reality of those items for treating them as property. Leave aside the technical questions of fixation, license, fair use, idea/expression, first sale, and other doctrinal points of copyright law. In order for a sale of a virtual item to run afoul of copyright, there must be some economic reality to the sale.
What about the EULA, you object. BlackSnow was violating its contract with Mythic by selling on eBay. That's grounds enough for a takedown. Yes, that's true, and Dibbell laments that the presence of the EULA obscures the gnarlier issues created by the metaphysical collision of intellectual property with virtual property. But Mythic specifically asserted an intellectual property interest, and they asserted that interest precisely in order to shut down sales of virtual property. So we have, on the one side, an assertion that an intellectual property right can control what you can and can't do with virtual property.
But we can run this play in the opposite direction, too. If I have effective power over virtual property, I have enormous effective power over that world's intellectual property. Think about Second Life's built-in rules that let players control the copyability and transferability of in-game items. These rules give content to the contours of intellectual property in-game items. Or think about There's power to delete "inappropriate" clothes -- heck, think about Dark Age of Camelot's power to delete BlackSnow's accounts, or ShadowBane's power to turn off entire servers. It barely matters what real-world IP rights you have in the in-game items you create and acquire, if those items are subject to arbitrary confiscation. Isn't intellectual property just a sideshow, a distraction from the raw power politics involved in control over virtual property?
Julian, then, gives us a possible link between questions one and two. Virtual property is the principal subject matter of game-derived intellectual property rights.
Phil Rosedale's Insight
Jack gets us from real-world law to virtual property. Julian gets us from virtual property to intellectual property. It's time to close the loop and tie together real-world law and intellectual property. Which is exactly what Phil Rosedale did when he announced that Second Life was letting its players retain copyrights in the content they uploaded into Second Life.
The essence of a right is something you can enforce at law. But intellectual property rights are entirely essence. They spring from the good graces of Congress; they protect interests that have no existence whatsoever beyond that which the law grants them. Rights in real property track boundaries and borders. Rights in tangible property track things. Rights in virtual property track bits on a server somewhere. But intellectual property rights? They spring from whole cloth. To talk about intellectual property rights is to talk about their enforcement. They exist where -- and only where -- a court will issue an injunction or order damages. If we are talking about intellectual property rights inside of games, we're talking about bringing real-world law into the picture.
So, saying that players keep their own intellectual property rights in the game, as a practical matter, means that Second Life is inviting real-life law into the game. It used to be that copyright stopped at the boundary between Second Life and the first life. Players (in their capacity as players, that is) couldn't have copyright causes of action against each other, because the EULA forced them to give up their copyrights. If you ripped off my content, sure, you might be infringing my copyright, but it wasn't my copyright any more. It was Second Life's, and I wouldn't have standing to sue you. Second Life itself wouldn't need to sue you, because -- see Julian's point above -- they could just delete your account and destroy the infringing virtual items. But once I keep my copyrights, I can sue you for infringement. Second Life has, in effect, asked real-world courts to handle a class of disputes among is players.
Which is, perhaps, why Yochai Benkler sees Second Life's decision as so profoundly dystopic.
Anarchy, Game, and Dystopia
I doubt that the Second Life crew thought of things in quite these terms. They seem like very nice people: genial and smart, and genuinely interested in the players' happiness. I suspect that on one level, it simply may not have occurred to them that IP rights are about suing the pants off of people. Or maybe when they looked at their legalese, they understood the part about the "suing" but not the part about the "pants." (Fun exercise for lawyers in the audience: Can you construct a copyright infringement suit against Second Life itself by one of its players? Would your suit survive a defense based on her agreement to the Second Life Terms of Service?)
Now, remember, Rosedale does mention the possibility of rolling machine-readable Creative Commons licenses right into Second Life's code. That way, I suppose, when you upload a motion script for a jet-ski, you can mark that script as being by-attribution share-alike, and Second Life will guarantee that others can use it for their wakeboards and cigarette boats. Which is a great vision, I suppose, but Rosedale says nothing about forcing people to use such licenses. If I don't want to make my script available to others, what'cha gonna do about it?
My suspicion is that, honestly, Second Life is really only thinking about out-of-game derivative works. They want to make sure you don't lose your copyright in something just because you upload it into the game. They're just assuming that their game itself will keep the "IP" system it has. When you upload an item, you can stamp it as "no-copying-allowed," in which case, the Second Life code won't copy it. This idea comes from the same software-determines-norms-and-law school of magical thinking as the belief that file permissions constitute just that -- explicit permissions for others to read, write, or run files.
There are two failure cases here. The first one involves me copying an item marked as "no-copying." For example, if it's a texture, I might copy it in classic There style by taking a screenshot of your texture, and then making up my own version. That's a copy for copyright-law purposes, but it evades the software definition of "copy." The other failure case is in some sense the conjugate of the first. Here, you mark an item as "yes-copying," but for some reason claim that I'm not allowed to ask Second Life to make me a copy. Perhaps you require my avatar to sign a licensing contract that says I'll make myself no more than five copies for personal use -- but I go off and make ten. This time, it's the software itself doing the evading.
I don't think you can make these cases go away easily. It might be possible to argue some notion of "consent" embodied in my choice to make the item "yes-copying," but it's hard for me to see how that "consent" is any stronger than my "consenting" to your making copies of my music merely because I chose to release that music on a easily copyable medium such as a CD. And as for the "no-copying" object copied anyway -- I invite you to scour the Second Life EULA for the term that deals with such cases. I haven't found one.
The problem here is that the tail is swallowing the whale. Second Life starts from the idea that the value of virtual property is intimately bound up with its value as intellectual property. This was Julian Dibbell's point. So they invite real-life law into their game, in the form of intellectual property. This was Phil Rosedale's idea. But then real-life law spots something that looks like a property regime, and therefore wants to overwrite the virtual rules with its own. This was Jack Balkin's point. Second Life, it would seem, has wound up undermining the very independence on which its virtuality is founded. In the attempt to create an open game, they've taken a step that threatens to make it anything but open. The closed loop has turned out to be a Mobius strip.
EULA-topia?
There's an "obvious" answer to the argument I've just been making: Perhaps Second Life's EULA doesn't currently anticipate this danger, but once the suits start cropping up, the EULA will be patched. If players start suing each other for in-game copyright infringement, Second Life will impose an in-game commons. When you sign up for the game, you agree not to sue any other player over a copyright infringement, where the creative work was something you uploaded into the game, and where the infringing copy was made in the game itself. (Another fun exercise for lawyers: Can you draft the revised EULA? Does your version deal with the privity issue?)
If you buy that possibility, then, we're in a veeeery interesting position. In order to maintain an "open" game, one which has an IP commons and which deliberately keeps the real world's notions of IP at bay, it has become necessary to rely on the EULA, that nasty contract of adhesion that we typically think of as an awful intrusion on the rights of players. Indeed, we're leaning on a very contentious piece of real-world contract law in order to keep another piece of real-world law out of the game. The EULA, in our usual way of thinking, is an expression of an extreme imbalance in power: a game's gods dictate its wholly one-sided terms to mere-mortal players. So why, all of a sudden, are we putting our hopes for freedom and equality in the EULA?
Well, this is why Julian Dibbell is my hero of the conference.
When we left Julian, he was telling us about BlackSnow's lawsuit against Mythic. But that's where his presentation starts, not where it ends, because he goes on to describe his change of heart about EULAs in light of the BlackSnow case. Somewhere between learning about the Tijuana sweatshop (cheap labor and a T1 line) that was BlackSnow's main source of game-world revenue and learning about the effects of BlackSnow-style large-scale 'sploiters on game economies (he shows graphs, and it's not pretty), he started looking on these guys with a newfound skepticism. You know what they say about those obnoxious blighters who just have to ruin it for the rest of us? The BlackSnow folks were those blighters.
So, initially, Dibbell hated the EULA because it obscured the really interesting metaphysical issues swirling around games. As long as the only legal issue on the table was contractual, you couldn't reach the questions of intellectual and virtual property; BlackSnow looked like a hero for challenging the draconian EULA. But now he's flipped; if you start from the position that other players, while conflicted, are mostly hostile to BlackSnow, the EULA looks like, well, like a social contract. It's an instrument of democracy by which a people sets out the laws by which it will be governed. Dibbell has a great slide in which he juxtaposes a picture of game designers sitting around a restaurant table with that famous picture of the signing of the Declaration of Independence.
Maybe. Or maybe not. With this slide, Dibbell is joking about his metaphor, perhaps warning against pushing it too far. But he's on to something. We tend to look at EULA terms and the godlike powers of game owners from the perspective of the BlackSnows of the world: dangerous instruments of arbitrary power. Remember Koster's point from his Declaration of the Rights of Avatars: there's a long and unfortunate history of game owners using these powers capriciously for no better purpose than tormenting innocent players.
But if you look at EULAs from the perspective of the players annoyed by the BlackSnows of the world, they look a lot better. I'm not as willing to go as far as Dibbell and call the EULAs democratic, but I'm certainly willing to see them as forces for good. The player-base wants the gods to come down on some miscreants like a ton of arbitrary and unreviewable bricks. And if we believe in the openness of game societies, we want them to be able to. This is how you keep the eBayers away, this is how you resist the intrusion of intellectual property law, this is how you keep your game "just a game."
Remember how much time I spent on the distinction between a free-as-in-speech game and a free-as-in-speech game platform? If we buy Dibbell's argument that the EULA is in fact one of the major bulwarks keeping games fun, then we have on our hands a profound tension between these two concepts, or at least between the most obvious versions of them. If your game platform -- your game's rules and infrastructure -- is non-coercive, then your game is going to have a serious problem resisting the intrusion of decidedly unfree real-life values as soon as your players start to care greatly about it. Only if your game is so trivial and so boring that no one attaches any significance to what happens there will the sense of play survive unaided.
This is not to say that it is impossible to conceive of a game whose ownership or leadership is democratic and participatory. You could have a player-owned game that works like an employee-owned company; you could have a game whose administrators are legally bound to implement the democratically-expressed views of a majority of its player-base. You might even have an open-source "game" like the SourceForge "game," where "players" (developers) share a "virtual world" (a project) and interact by making "moves" (code submissions) in that world.
But all of these models have someone who can pull the plug or boot an arbitrary user; even if few plugs are ever pulled, the power to pull them is still there. All available evidence indicates that any "game" that truly tries to operate like the Internet -- end-to-end, distributed, peer-to-peer -- winds up looking like the Internet, which is to say, it winds up looking more and more like the offline world.
I don't want to say that a free-as-in-speech game platform can't lead to a free-as-in-speech game, or to a game worthwhile for other reasons. I like to believe in the transformative cultural power of open architecture. In general, there is a connection between infrastructure and freedom. But there are cases in which the relationship is not so simple, and I'm increasingly coming to think that games are one of those cases. Those "jujitsu moves" that Benkler mourns may be necessary now and then in our modern society. After all, the great modern information commonses are built on the backs of precisely such moves -- the GPL, Creative Commons, and all the other licenses that turn the nasty power of copyright into an enforcable form of sharing.
So one last question for the lawyers in the audience. What would a General Public End User Licence Agreement look like, do you think?
UPDATED 12:40 AM, November 4: changed sentence in last paragraph from " . . . that Benkler mocks may in fact be necessary . . . ." to ". . . that Benkler mourns may be necessary. . . ." I think Benkler's attitude was more saddened than scornful, and "mocks" was the wrong word choice. The "in fact" was just clumsy phrasing.