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The 9th Circuit has reversed the MDY v Blizzard (WoW Glider) case on the secondary copyright infringement grounds (but not one of the DMCA claims).

This is important; the district court had held that players infringe Blizzard’s copyright in WoW by playing the game in breach of the rules, primarily because the prohibition on botting was sitting next to a prohibition on reverse-engineering etc. The district court held that it was a condition of the licence grant, and that therefore players infringed when using glider, and that MDY was liable for their infringement.

The 9th Circuit held instead that the prohibitions on botting were contractual covenants. I think this reading fits much better with Sun v Microsoft and common sense (they’re clearly gameplay rules, not rules designed to protect Blizzard’s copyright interests).

“Were we to hold otherwise, Blizzard — or any software copyright holder — could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player’s abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.” ([11])

In the long term, I think this is important because copyright provides remedies for infringement that become punitive when used to enforce game rules, whereas the more compensatory remedies available under contract do not, in general. (I have a pre-print of an article on this point, if anyone is interested I can send it through.)

In the direct circumstances of the case, though, this is not a big win for MDY. They’re still liable on one of the DMCA circumvention claims (access) and will likely be found liable for tortious interference with contract.

On Terra Nova, Greg Lastowka announces that his new book, Virtual Justice, is on bookshelves now. I had the opportunity to read the manuscript a little while ago, and can highly recommend the book to anyone interested in the regulation of virtual worlds.

I’m in Edinburgh to present at DIS:E run by Ren Reynolds and Andrés Guadamuz.

My talk is on, predictably enough, the rule of law and legitimacy in virtual community governance. Particularly, I want to focus on two main ways that we can look at things differently: looking at the limits of contract rather than only the contractual terms themselves; and looking at procedural legitimacy rather than substantive rights. My slides are here in PDF.

My PhD thesis is available here: Digital constitutionalism and the role of the rule of law in virtual communities.

Abstract:

This thesis considers one main question: how should we regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

Read more…

This article comes from a core chapter of my PhD and will be published in the Berkeley Technology Law Journal. You can view the pre-print here: The Role of the Rule of Law in Virtual Communities (forthcoming BTLJ 2011) (PDF).

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values.

In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

[edit: now with more slides! PDF (3MB) ODP (5MB)]
My final seminar for my PhD is this Tuesday. All are welcome; let me know if you’re interested in coming along!

Date: Tuesday 16 February 2010
Time: 11:00am -12:00pm
Venue: Z Block Room 1124, QUT Gardens Point campus

Panel Chairperson/Principal Supervisor: Prof Brian Fitzgerald, Faculty of Law
Other Panel Member: Dr John Banks, ARC Centre of Excellence for Creative Industries
External Panel Member: Professor Louise Longdin, Auckland University of Technology

This thesis considers how the law should regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

This thesis argues that the flexibility inherent in the private contractual law model that is currently used to govern virtual communities should be informed by constitutional principles – particularly those of the rule of law – in order for the law to properly address the tensions that arise out of private governance.

Rule of law values highlight three main themes that should serve to limit the abuse of private power in virtual community governance: a suggestion that participants ought not be subject to arbitrary punishment; that rules be general, equal, and certain; and, most importantly, that legitimacy in the rules is derived primarily from the consent of participants. This thesis argues that these values should be taken into account in interpreting contractual terms of service and the application of contractual doctrine in order to create a regulatory framework that supports autonomy and innovation in virtual communities whilst simultaneously limiting the abuse of power from illegitimate governance.