State of Play: Regulation

The highlight session of the conference for me was Regulating Virtual Worlds, which I was very much looking forward to. I’m sure this was intentionally built into the choice of speakers, but each of the panelists took a very clear regulatory approach to the new technology.

Charles Lim Aeng Chang from the Singapore Attorney General’s Chambers favoured the public regulation approach. He commented that, although there is little point in regulating something that cannot be enforced in practice, governments will often take “symbolic measures” to make their intention clear. He cited the example of the regulation of pornography sites in Singapore, where the government has banned 100 sites. While acknowledging that this is inefficient, he made clear that these measures conveyed an important message. Other government efforts have been more efficient, such as the Great Firewall of China, or the FSA’s declaration that there is potential money-laundering in cyberspace. An effective public regulatory approach in Singapore has been the enforcement of local anti-racist and religious tolerance legislation, which has been applied against some local teenagers to maintain the balance in a multi-racial and multi-religious society. The Singaporean government is also conducting studies on the social impact of virtual worlds. He concluded stating that Common Law is robust enough to regulate new technologies, such as it happened with cyberspace regulation.

Joshua Fairfield from Indiana University School of Law took the Private Law approach through contracts. He mentioned that contract law has already been used effectively in virtual worlds through the use of EULAs and other methods. There is also an important social contract taking place in some of these worlds, but he was concerned that there was already litigation taking place which attempts to enforce terms and conditions against third parties that were not part of the agreement. An example is class action litigation against farmers in WoW, as there is no existing contract between the game developers and the farmers. Professor Fairfield also seemed to recognise that there is extensive public regulation taking place as evidenced by criminal enforcement of online theft in Korea, or the application of the online gambling ban in Second Life. I found his arguments the most convincing.

James Grimmelmann from New York Law School was the advocate of the Code argument. Software is both the problem and the solution, and although he did not say this, it was clear that his argument was that the solution to the machine is in the machine, a typical architectural argument. If the game developers are creating authoritarian regimes, then the solution is for users to migrate to more open platforms run with open source software, and developed with the open source democratic ethos.

David Post from Temple Law School was more in the libertarian camp, making an argument that echoes his famous Net Federalism. The inhabitants of virtual worlds need and want laws, so why aren’t the gods from the games providing them for them? There is a strong argument to be made in favour of thinking of virtual worlds as separate territories governed by their own legislative spheres. He declared that it is an inalienable right of every community of individuals to choose whether to be governed by a new legal regime, something that he called a “self-evident truth”. He asked the people of the virtual world to get together and invoke on the gods to be given laws. Although I found his arguments quite well-put, I’m afraid that I do not agree with his self-evident truth.

This was a thoroughly enjoyable session. As I have pointed out, the arguments are very much the same range of arguments we have heard before during the golden age of Cyberspace Regulation. The problem of course is that the argument is over, and what we are left with is to try to solve the much more difficult question of jurisdiction. Governments have proven that they will try to exercise jurisdiction over virtual worlds. You don’t even have to regulate the entire medium, As Wu and Goldsmith have commented eloquently in their book “Who Controls The Internet“, governments will be happy to regulate the choke points.

During questions there were some comments about privacy and the fact that these worlds are the new Panopticon, but it was agreed that this was a vast topic in itself.

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