Drake IP 2013: Deidre Keller, ‘Why intellectual property needs property’

Liveblogged from Drake IP Roundtable 2013.

Deidre Keller makes the argument that IP is property, and maybe that’s not such a bad thing. If we appreciate property in a more nuanced sense, the fact that it is property is less trouble. Keller argues that limitations from property should inform limitations in copyright, patents, and trade mark.

Blackstonian view of property is not true – the right to exclude is more limited. In particular, IP could learn from the principles of:

  • eminent domain;
  • public trust doctrine; and
  • abandonment.

Keller focuses on abandonment: the voluntary relinquishment of property interests absent an intended successor. Abandonment is not forfeiture, it is not gifts, it is not a conveyance.

Patentable subject matter can be abandoned – 35 USC 102(c) removes entitlement where inventor has abandoned the invention – but there is little case law.

Learned Hand made a point that copyright can also be abandoned. Publishing without notice relinquishes copyright works into the public domain. After Berne removed the need for formalities, courts are now struggling to understand how a copyright owner may have demonstrated an intent to relinquish the copyright interest. It turns out to be really hard to relinquish an interest in copyright. In one case, the copyright owner said “I don’t care about copyright protection”, “I have given the work tot he public”, “I have never tried to enforce this copyright”. The court still said that there was a question of fact as to whether he had intended to relinquish his interests in copyright. In another case, a copyright owner stamped an intent to relinquish on a work — the copyright on this will expire in two days — which was successful.

Q (Steven Wilf): Abandonment may not be unitary. Think about abandonware?

Q: Why do we care about abandonment in copyright?
A: At least in part because of the orphan works problem. Abandonment may be an answer to that problem. The bigger reason, though, is because the idea that you can abandon property is a counter to the argument that property rights are unlimited in scope.

Q: Perhaps consider Creative Commons and the CC-Zero public domain dedication. Outside of the US, something to be aware of is that moral rights regime may restrict the ability of copyright owners to abandon their moral rights.

Bragg v Linden Lab

Following on from my post about MDY v Blizzard, Bragg v Linden is another of the tough questions that will frame my thesis.

Screenshot from secondlife.com showing Linden advertising claim: "Own Virtual Land"

Second Life is a three-dimensional free-form virtual world constructed primarily by its participants. Unlike some other virtual worlds, Second Life is not a 'game' – it has no central narrative or defined goals. Participants have the relative freedom to own land, customise their avatars' appearance, build objects and create clothing, socialise and express themselves as they wish (within limits). Importantly, Second Life is backed by a fully integrated economy – participants can trade goods and services between themselves for virtual currency, and that virtual currency can be easily bought and sold for US dollars. Second Life is free to join, but extracts monthly subscription fees from participants who wish to own their own virtual land.

Because of the way that Second Life is structured, land is highly desirable to participants. Owning land allows participants a place of their own to build objects or buildings and design as they wish. Land also grows in importance as one's participation in Second Life increases, as the total number of objects that a participant can build is limited by the amount of land that she owns. So whilst ownership of land is not necessary to participate in Second Life, in a very real way, land ownership is closely linked to the economy, and land sales and taxes are the predominant income streams for Linden Lab.

The importance of land in Second Life has resulted in a substantial secondary market for land. Some real estate speculators purchase land at low values with the hope of selling it for a profit in the future. Others buy large blocks of land directly from Linden Lab and subdivide them, leasing them to participants who do not own their own land. Still more act as property developers, creating housing or commercial estates that they are able to sell or rent to others. A number of participants have received considerable success buying, selling, and renting virtual land in Second Life – including some self-proclaimed Second Life millionaires.

This convergence between real and virtual economies contributes significantly to Second Life's appeal. But it is also the cause of substantial tension within the community. The 'virtual' economy in Second Life is fluidly convertible to 'real' currencies, like the US dollar, and participants clearly feel a sense of entitlement to their virtual property and currency. Linden Lab clearly encourage this behaviour – their slogan is “Your world. Your imagination.”; their promotional material refers to the possibilities of 'owning' virtual land and generally stresses the fluidity of the market. The Terms of Service for Second Life, however, explicitly deny that participants have any right over the in-world currency and that it is in fact a currency at all. Instead, Linden Dollars are purported to be a 'limited licence right' granted by Linden Lab – and revocable at any time. Similarly, Linden Lab asserts that participants never 'own' 'land' – rather, they merely lease the right to use certain computing resources that generate the virtual environment. This contradiction between the internal norms of Second Life and the literal interpretation of the contract results in significant uncertainty and tension in the community.

The best example of this tension is the case of Bragg v Linden Lab. Marc Bragg was a US attorney who invested in Second Life, purchasing land for resale. Bragg discovered a loophole in Linden Lab's official land auction system that enabled him to purchase land that was not advertised for sale at significantly under market prices. When Linden Lab discovered this, they immediately suspended Bragg's account, preventing him from accessing Second Life and effectively confiscating what he claimed amounted to approximately USD$5000 of his in-world virtual property – not only the land at the centre of the dispute, but also the land that he had previously bought and any objects in his possession. Bragg complained, alleging that he had been wrongfully disconnected and that Linden had unlawfully confiscated his virtual property. Linden responded that it was acting within its power to enforce its rules – having caught Bragg cheating, they suspended his account and terminated his right to access and hold their property.

Bragg filed suit against Linden Lab, alleging that Linden had unlawfully confiscated his property and denied him access to Second Life. Linden responded with a motion to compel arbitration, as per their dispute resolution policies in the Second Life Terms of Service. The US District Court for the Eastern District of Pennsylvania held that the dispute resolution policies were procedurally and substantively unconscionable, and refused to grant the motion to compel arbitration. At this point, Linden Lab settled with Bragg on undisclosed terms. Bragg has now had his Second Life account restored and his virtual property returned.

This case, for the relatively short period in which it was active, generated significant interest both within Second Life and from external commentators. It promised to deliver a judicial opinion on whether participants in Second Life were entitled to own virtual property. As Robreno J held in dismissing Linden's application to compel arbitration,

This case is about virtual property maintained on a virtual world on the Internet. Plaintiff, March Bragg, Esq., claims an ownership interest in such virtual property. Bragg contends that Defendants, the operators of the virtual world, unlawfully confiscated his virtual property and denied him access to their virtual world. Ultimately at issue in this case are the novel questions of what rights and obligations grow out of the relationship between the owner and creator of a virtual world and its resident-customers. While the property and the world where it is found are “virtual,” the dispute is real.

The dismissal of the motion to compel arbitration signaled that the US District Court was prepared to examine the terms of the Second Life terms of service and to rule on the complicated issue of property rights within the virtual world. There was palpable disappointment from commentators when the case settled before such a precedent could be handed down.

Despite the case settling, it still provides a very interesting factual scenario through which we can evaluate potential regulatory regimes. It poses an interesting question, and represents a legitimately hard case: if Linden was right, and Bragg cheated by exploiting a bug in the auction code, are there limits to how Linden can enforce the rules and impose sanctions on Bragg? On the other hand, if Bragg is to be believed and he did not break any rules, are Linden Lab obliged to maintain his access to Second Life and his interests in what he asserts is his property?

Article: On the (partially-)inalienable rights of participants in virtual communities

My most recent article has now been published. Unfortunately, MIA's policy is set to change to allow online access as of the next issue. For now, here's the post-print:

Nicolas Suzor, "On the (partially-)inalienable rights of participants in virtual communities" (2009) 130 Media International Australia.


As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights, and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression.

Because our legal system views the proprietor's interests as absolute private property rights, however, participants who are arbitrarily, capriciously, or maliciously ejected have little recourse under law. This paper argues that rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between 'public' and 'private' spaces and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants whilst simultaneously protecting the interests of developers.

Many thanks to Sal Humphreys for putting together this special edition of MIA. I highly recommend the other articles in this issue.

On Cyberproperty

Proprietors of virtual communities sometimes make absolutist claims to sovereignty over the platform and the community. These proprietors tend to resist any public regulation, as they see the platform as 'their' 'property'. Unlike public utilities, most platforms do not receive Government funding or enjoy legislated monopolies, and therefore, the proprietors assert, they ought not be under any special duties imposed by the state. On this view, participants are granted access to the proprietor's private property on certain conditions, and are not entitled to expect any non-contractual obligations from the proprietor.

This argument builds on a simple analogy from tangible property – that, in fact, a platform for a virtual community is no different to a private parcel of land, and, therefore, the proprietor may exercise absolute discretion as to who may enter and remain on (access) the property (system). The natural right to own and control property needs little or no justification, and it follows that the State ought not interfere with the operation of a virtual community.

Carrier and Lastowka forcefully remind us that the property analogy poses an inherent risk of driving us towards absolutist conceptions of access rights, for which no such justification can be found even within property theory.1) Private property rights are indeed granted over the servers which form the platform for a virtual community, and these servers will be protected from appropriation or trespass. Similarly, a property right is granted over the software which runs the virtual community in the form of copyright, which protects and rewards the investment required to create the platform. It does not necessarily follow, however, that the proprietor is granted a property interest in the entire community, such that he or she has a “whole and despotic dominion” over it. Clearly a proprietor has some form of control in determining whether and when to provide access to the service, and, ultimately, in flicking off the switch and disconnecting the service completely.2) To call this a property right over the community, however, serves only to confuse the issue.

Property is one of the keystone concepts in our legal system. Deeply ingrained within our liberal tradition is the notion that government interference with private property rights should be severely limited. Some proponents of cyberproperty draw upon this natural argument for property rights to avoid the much more difficult tasks of justifying the entitlements they argue should be granted to platform owners and service operators. To call something private property is to make a strong normative claim that it ought not be regulated, but it tells us nothing about why we ought to allocate entitlements in this particular manner. The property label serves merely to obfuscate the underlying policy arguments for allocating certain powers to certain persons. The intellectual move is elegant in its own way – services on the 'net are 'property', and it therefore follows, that the entitlements that apply to owners of real property ought to be extended to the owners of cyberproperty. This is an expansionist move which implies a natural deterministic solution – exactly the type of argument that Bentham called “nonsense upon stilts”.

Carrier and Lastowka attempt to unravel the claims made by cyberproperty advocates by examining the traditional justifications for property. They conclude that cyberproperty is not supported by either the Lockean labour / desert theory,3) Hegelian personality theory,4) or utilitarian arguments.5) More importantly, however, they note that even if property rhetoric were appropriate for networked platforms and services, its use tends towards absolutist protection – a 'perfect' limitless 'caricature' of property.6) Inbuilt within our existing property system are numerous checks and balances, limits on the property owner's exercise of his or her rights.7) These limits provide safeguards for the interests of those who would use the property against the wishes of the proprietor. In cyberproperty, though, these limits are ignored as judges tend to grant absolute power to the proprietor, and the result is a grossly over-reaching rights regime which has pulled itself up from its own bootstraps – by calling virtual communities 'property', we effectively and without introspection grant more control over them to their proprietors than we would ever grant over physical property.

The use of property rhetoric is dangerous. If we, as a society, intend to grant certain rights to platform owners, we should do so as a result of rational reason, rather than as a response to perceived necessity.8) The deeply ingrained liberal ideals which surround conceptions of property in our society do nothing to help us determine whether it is appropriate that we impose limits on the ability of proprietors to exclude participants at will. It may provide an answer to that question, but it arrives at that answer from the circuitous and self-affirming route of false analogy.

Mozelle Thompson on Governance

Photo: Andrew Feinberg, CC BY 2.0.

Last week, I had the opportunity to talk to Mozelle Thompson at an event organised by QUT IPKCE and the IIA. Mozelle was a US Federal Trade Commissioner, and is now a legal adviser to Facebook.

Mozelle had some interesting things to say about Facebook's privacy policies, including that he had recently spoken to a convention of Australian police officers and reinforced Facebook's pledge to only cooperate with law enforcement if it's demands were backed by valid legal procedure (ie., warrants and judicial oversight).

”[Facebook is] not here to provide people who want to spy the process for a fishing expedition.”

Interestingly, he also mentioned that Facebook would not comply with authorities if it believed the local laws to be too onerous:

”[…] if we think that that legal process is overbroad or inappropriate we will not enforce it.”

Mozelle also had some statistics about Facebook's adoption and growth. Without going into the details, Facebook is becoming enormous, everywhere. This raises some interesting questions. It is slowly becoming difficult to organise and participate in events if you're not a member of Facebook. Indeed, a large proportion of the people at Mozelle's talk heard about it only through Facebook. Both social and professional networking appears to be migrating to Facebook and (perhaps to a lesser extent) similar platforms. Anecdotally, it appears that it is not uncommon for a friendship group to organise themselves almost exclusively through Facebook. This means that people are becoming increasingly reliant on Facebook and other proprietary platforms for the organisation of their social life, and, to my mind, this raises the question of what responsibilities do Facebook and such other platforms have to their users?

The first thing to point to is Facebook's Terms of Use, which could charitably be described as oppressive. Significantly, they contain a clause which allows unilateral termination:

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (or any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice[.]

So, I asked Mozelle whether there were any applicable limits to Facebook's discretion in the way it treats its users. His answer was a very emphatic 'no'. Mozelle highlighted that it doesn't make good business sense to treat your customers poorly, and that the market provides essential safeguards for the interests of users. The problem with this argument is fairly simply stated: (a) there are few alternatives to facebook; (b) network effects inhibit exit and impose barriers to entry to new players; and © even if the market were efficient, it reduces important issues of rights and interests to a market rhetoric and provides little to no protection for the interests of minority groups.

When I pressed Mozelle about non-market limitations, he forcefully rejected the suggestion that Facebook's discretion could be limited. By differentiating Facebook from public utilities, Mozelle argued that the public (government) had no right to interfere in the way in which Facebook was run. Unlike public utilities, Facebook receives no public funding and operates in a competitive market. I asked for clarification on this point, because the market certainly doesn't seem competitive. Mozelle, who was a Federal antitrust lawyer, answered that you couldn't definte the market as narrowly as 'a market for social networking websites', and, accordingly, Facebook didn't have market power.

Competition law aside, there is a significant problem with the false dichotomy presented by Mozelle Thompson. It is simply not true that either an entity is a public utility, in which case it is regulated, or it is a private proprietary corporation, in which case it is not. We impose limits on the behaviour of private entities all the time. There is no reason that we cannot alter the boundaries of private property and the apportionment of liability and responsibility in any given case, and the proper location of these boundaries is exactly the discussion we need to be having.

I pointed Mozelle to the example of Sara Andrews, who was threatened with banning from World of Warcraft by Blizzard after she advertised for a LGBT-friendly guild. Mozelle distinguished World of Warcraft from Facebook based upon the subscription fee which WoW gamers pay. The gist of the argument was that by paying $15/mo, WoW subscribers had a right to complain to Blizzard about the way they are treated. Facebook users, on the other hand, pay nothing, and therefore have no such rights.

This is very dangerous thinking. Firstly, Facebook users, in aggregate, provide almost all of the value of the Facebook company. The technical platform represents some intiial investment, but it is the social network which provides the real driving force (and advertising revenue). If we focus only on subscription models, we are able to say that there is no consideration paid by Facebook users, and hence no contractual remedies. On the other hand, if we recognise the value that participants provide, this assumption may no longer hold.

More importantly, I believe that a valid contractual relationship is not the only source of liability that platforms like Facebook may be exposed to. There are any number of non-contractual arguments which could be raised, including, most significantly, negligence, estoppel, and unjust enrichment. It may be that Facebook owes its users a duty of care not to arbitrarily or maliciously remove them, for example. Alternatively, it may be that Facebook's oppressive Terms of Use are not adequately reflected in the internal community norms, and Facebook may be estopped from enforcing those terms as written in a particular case.

We need to stop talking in terms of clear dichotomies between private and public spaces. These private networks are providing functions which were public in nature when we drew the boundaries we know – which explains why there are constitutionally protected remedies against the State when it prevents you from associating with your social network in public. In no way does this fact preclude us from determining the appropriate level of responsibility that proprietors will owe to individuals in the future.

It may well be that we will decide not to impose liability on facebook for arbitrarily or maliciously ejecting its customers, but this result is by no means certain. By presenting these issues as a clear dichotomy between private and public, we are ignoring the malleability of legal rules and forestalling a proper debate on the rights and responsibilities of actors in our networked society. We are also ignoring the very real harms that individuals may suffer at the hands of platform owners like Facebook, and it is certainly time open up this debate. In this debate, the reification of property-based arguments will only slow us down.

Judge Ung-gi Yoon on RMT as goodwill trading

I recently had the good fortune to review a paper by Judge Ung-gi Yoon on RMT.

You can find the paper at SSRN: Real Money Trading in MMORPG items from a Legal and Policy Perspective.

I really enjoyed this paper, and recommend that you take a look if you’re interested in the topic. The analogy to goodwill is really interesting, and there are some great critical insights about the choices that game developers make, which inevitably encourage RMT, and the benefits they receive from RMT. These recognitions set the stage for an interesting debate about the extent to which developers and publishers can then purport to rely on contractual terms which prohibit RMT.

In this article, Judge Ung-gi Yoon considers the legal status of Real Money Trading (RMT) in Massively Multiplayer Online Role-Playing Games (MMORPGs). Judge Yoon notes that in-game items are virtually treated as personal property, but are only legally recognised as information goods. The right of ownership of these goods belongs to the developers, and players have a right to use, as conferred by the terms of service. In contrast, players own the rights in content they create themselves within the game. Transfers of in-game items, as a manifestation of real human will, can accordingly be seen to be transfers intended to have real legal effect in the form of a transfer of a portion of the right to use over the game service held by a user in the real world.

Judge Yoon argues that declarations of intent by players within a game environment cannot be unilaterally ignored by the legal system, and must instead be individually judged to determine whether they were intended to be legally binding. In this conception, internal rules which are consistent with game play should be given precedence over external real-world rules. However, real-world rules should be applied in cases where the intent is unrelated to the game’s proper context, for example in cases of in-game defamation.

Through this framework, Judge Yoon considers RMT, noting that most discussions of RMT in South Korea and elsewhere characterise the objects of real-world transactions as the in-game items. This characterisation, however, is flawed because in-game items are not capable of being treated as personal property. An alternate suggestion is that the transaction is characterised as a sale of a right to use, but this characterisation fails to adequately explain the disparity in values of right to use versus the fees charged by the MMORPG operators, and presents a large liability problem for the operators with regards to the valuable rights to use of their users.

Judge Yoon argues that neither of these models are satisfactory – the object of RMT is neither the item itself nor the right to use the item, but rather something entirely distinct. Instead, the objects of RMT are better recognised as ‘play values’, and the monetary compensation is a ‘gwonri-geum’ (lease goodwill) payment. This analysis makes an analogy between the transfer of goodwill and RMT, where the transfer is not a purchase of an item or the right to use, but rather a payment for the effort the other party has invested in obtaining the item. On this analysis, RMT does not concern the operator any more than sales of goodwill concern the lessor of a business property.

It follows that if RMT is not the transfer of an item or the right to use an item, but rather a transfer of goodwill, then it must fall within the domain of private autonomy of players, and developers and publishers have no legal standing to interfere with the transfer. However, because the value in RMT transactions is the goodwill associated with the item and not the item itself, RMT does not impose liability on the publishers for protection of the items. A publisher’s liability will be limited to the original value of the item (related to the subscription fee), and not for the amounts in which associated goodwill is traded.

Judge Yoon argues that developers and publishers need to face the reality that market pressures have transformed play into real economic activity, a transformation which resulted from the game design choices made by the developers.

The fact that goodwill transfers are outside the scope of regulation by the publisher does not mean that the publisher has no right to regulate related activities. For example, prohibiting in-game advertising of RMT may be prohibited because it interferes with gameplay. Judge Yoon suggests that publishers ought to disclaim any involvement and liability with regard to monetary transactions between players, but reserve the right to regulate the in-game behaviour of players. Judge Yoon argues further that there is no real legal basis for justifying the imposition of restrictions on RMT transactions, and such bans are unfair insofar as they heavily infringe upon players’ rights to the intangible value they have created.

Judge Yoon points out that many publishers and operators do not care to correct structural issues in their games which lead to RMT, as RMT indirectly increases their revenue. However, by including an unenforceable ban on RMT in their terms of service which is of questionable validity, publishers are hypocritically covering themselves in cases where the negative social effects of RMT, particularly on the welfare of youth, are brought into question. Judge Yoon concludes that doing away with bans on RMT can alleviate some of the problems which have been recognised in South Korea, by respecting the personal autonomy of players, allowing trade to occur in a more stable environment and making it easier to deal with fraudulent traders.

Margaret Jane Radin’s theory of partial inalienability as a model for evaluating interests in …

I am in the process of selecting a theoretical model on which to base my normative analysis. Below, I explain my preliminary attraction to Radin's construction of partial inalienability and the pragmatic method of resolving tensions between conflicting interests. As always, comments are greatly appreciated.

Thesis: in choosing whether to apply any law in a virtual context, we ought sometimes to put aside a general law rule in favour of internal norms.

The project of this research is to provide a mechanism to assist in identifying conflicting and hidden interests in virtual communities, and to develop a framework for reconciling those interests in law. The first goal is to be achieved through a critical examination of the expectations of actors in virtual communities – the participants, the platform provider, the broader public, and the state. The second goal, building a normative framework, will depend upon a solid pragmatic reconstruction of the conflicting interests.

There is no simple mechanical way for states to make a decision about which interests should prevail in any particular circumstance. These decisions are always political decisions. The aim of this model, then, is to provide a framework to make these decisions in full awareness of their consequences. The normative basis that will be used for preferring one interest over any other will be the overriding presumption that we ought to choose the path which most promotes “our best current understanding of the concept of human flourishing.”1)

After we have identified the internal norms of a virtual community, the biggest question is whether to uphold those norms which conflict with general law principles. In determining this question, we must consider which of these principles are modifiable and which are not – which basic entitlements are alienable and which entitlements may not be transferred. This analysis, however, leads us to a false dichotomy – it is more appropriate to consider these principles along a spectrum of alienability, where some entitlements may be given away or sold in certain circumstances but not others. Margaret Jane Radin's theory of partial market-inalienability provides a model of this spectrum, and provides some justifications for preferring a degree of alienability or inalienability based upon the interests of personhood.

A market-based analysis is appropriate because it addresses the concerns which are now emerging with large-scale virtual communities that are created as commercial ventures but which enable many aspects of personal life – including, but not limited to, personal relationships, personal identification, personal property, speech and communication. A key concern in these cases is what impact the commodification of these interests has on the personhood of the participants. A framework of partial inalienability provides the means for evaluating these tensions and partially protecting some personality interests from commodification, while recognising that the market is currently best positioned to provide the virtual communities upon which those personality interests depend.

The spectrum of market-alienability ranges from complete market-inalienability to complete commodification. Some examples of market-inalienable interests include freedom, body parts, and children – one is not allowed to sell any of these in any circumstances, although they are not strictly inalienable in that they can each be given away. On the other hand, goods which are wholly commodified are, in the eyes of the law, completely substitutable for one another and for their monetary value. In between these two extremes, we place limits on the alienation of interests which are only partly inalienable. For instance, labour is only partially commodified, as we place limits on the minimum wage and the ability of employers to terminate employment contracts.2) In another sense, we place limits on the mechanics of transfers – imposing, for example, a requirement that transfers of real property be in writing.

In addition, there are interests which are fully inalienable – for example, the law will not uphold a person's right to consent to grievous bodily harm or murder, whether for a fee or not (although, in the context of euthanasia, this becomes a partial inalienability, where we can envisage scenarios where it may be permitted to consent to what would otherwise be an unlawful killing).

The crucial insight, for our purposes, is that a spectrum of alienability allows us to place limits on the manner in which certain entitlements may be given away or sold which are appropriate to the circumstances. We have certain limits built in to the law as it currently stands – conceptions of consent, consideration, acquiescence, waiver, reasonableness – which act to restrain the alienation of entitlements. A model with a spectrum of inalienability allows us to know when these limiting concepts should be interpreted strictly, and when we should deal with them more summarily. For example, this means that when we are considering whether a participant has consented to potential harassment or assault, we may hold a much higher standard of consent than when we are considering whether a person has consented to the 'theft' of a piece of virtual property within the rules of a game. This model shows that more value we place on the importance of insulating the interest from commodification, the greater the limits we can justifiably place upon the alienation of that interest. In accordance with this model, the riskier we determine a transfer is, the more caution we should exercise before finding that the transfer has, in fact, occurred.

The model also provides a scheme for identifying where the protections given by existing law do not suffice. Various concepts of consent can be used to provide adequate limits in many civil matters – disputes centred in contract, tort, and many statutory entitlements can be resolved by determining whether the interest has been transferred according to the norms of the virtual community. Greater difficulty arises where we determine that a certain interest should be protected, to some extent, from commodification, but there is no direct mechanism in the existing law to effect that protection. For example, we may agree on the partial inalienability of interests of free speech or due process, but while these rights may be protected to some extent against the state, they are not inalienable against private actors. If we determine that our conception of human flourishing requires some recognition of constitutional rights against private actors, the model we develop can be used to identify where these interests are not sufficiently protected from commodification. Once identified, a gap between our conception of inalienability and the protection we afford the interest will justify a change in the law.

This model does not aim provide a comprehensive empirical framework; the evaluation of the degree to which any given interest should be protected from commodification is not one which can be arrived at in isolation from a broader social discourse. Rather, the goal of this project is to provide the tools to enable this social discourse. The resolution of conflicting interests must be a continuing process, a pragmatic evaluation of what is possible and what is the best method to proceed given the current state of society. By exposing hidden interests and proposing a method of resolution which is dependent on our social goals, this project aims to provide a conceptualisation of how we can progress, rather than an imperative on how we must.

Radin, Market Inalienability, 1851
Radin, Market Inalienability, 1919

On inalienable rights and virtual worlds

picture of the Jefferson Memorial and extract from the US Declaration of Independence

Image: Jefferson Memorial by kjd (CC BY-NC-ND).

While the discussion of liability rules and property rules (below) may be adequate for fungible interests, it may not be appropriate in cases of interests which more closely touch the personality of the participant. For these latter interests, inalienability, or partial inalienability may be the best method for protecting the personhood of the participant.

In a 1987 article (Radin, Market Inalienability (1987) 100 Harv. L. Rev. 1849), Margaret Jane Radin suggested that there are three main arguments to justify market-inalienability based on personality interests. Lets take the example of the term in the contract which states that a participant can be removed at any time for any or no reason, and consider the arguments for inalienability of the corresponding entitlement not to be removed from a virtual environment without due process. The analogous real-world right, as against the government, is (increasingly, somewhat) inalienable. Against private actors, it is a property entitlement held by the owner of the land. Absent strong arguments to the contrary, the presumption in a virtual environment will be that participants remain in the environment by the consent of the owners of the environment which, while subject to agreement, is revocable.

The first ground canvassed by Radin is a prophylactic argument – where the risk of harm to personhood of giving up the interest is so great that we are willing to constrain the choices available to those who would willingly give it up. In this case, we would be saying that we are willing to presume that all instances where a person gives up the right to due process to be coerced (see Radin at 1909 using slavery as an example). I am reminded here of Bartle's warning that there are any number of reasons that a person may wish to play a game with entirely arbitrary rules. The assumption that all such agreements are coerced simply cannot stand, and the question of consent must accordingly be reduced to a question of fact. However, if we remove the Bartle-world case, we begin to get an idea of the risk faced by participants – this is not simply an issue of losing access to a gaming platform, but of being cut off from one's social network, of having one's property forcibly removed, and of losing touch with the avatar – in the most extreme cases, of being forcibly alienated from a part of oneself. The danger posed can be evaluated quite strongly, and, particularly as the purported agreement is made before access is granted and before any attachment has formed, it may be fair to say that in all but the borderline Bartle-world cases, we are prepared to presume that the decision was coerced or otherwise not freely made.

A second justification given by Radin is that of prohibiting the commodified version of the 'good'. In this case, we may be able to say that there is a moral requirement that participation in the environment should not be commodified. The argument here is that allowing market forces to dictate whether we can associate with our friends and family or our avatars “creates and encourages an inferior conception of human flourishing”.1) In a world which encourages rich and diverse social relationships, to have those relationships subject to arbitrary severance by the platform owner may be damaging in itself. The counter argument is that we often allow rich and diverse human relationships to be governed by markets – although, in an idealised form, we may prefer that they were not. Radin's pragmatism deals with the non-ideal scenarios, and accepts that there can be a continuum of degrees of commodification, and that partial market-inalienability may “sometimes substitute for a complete noncommodification that might accord with our ideals but cause too much harm in our nonideal world”.2)

The third justification Radin gives is a domino theory; where commodification changes the nature of the 'good', such that non-commodified and commodified versions cannot co-exist, and there is a moral requirement that the non-commodified version is available, then a prohibition on the commodified version can be desirable. Radin explains that this “can be conceived of as the opposite of a prohibition: there is assumed to exist some moral requirement that a certain “good” be socially available”.3) In this instance, an argument may be that if we allow platform owners the ability to commodify and sever social relationships and avatar connections at will, we are unlikely to see the emergence of non-commodified systems. This suggestion is borne out, to a degree, by Andrew Jankowich's study showing that three quarters of virtual world agreements surveyed “allowed the proprietor to delete a player account at the proprietor's discretion.”4) If we believe that non-commodifiable versions of social relationships in virtual worlds *should* exist, and we also believe that while we allow commodifiable versions they will not emerge satisfactorily, then we may prefer a prohibition on the commodified version.

While there are many flaws in my under-developed reasoning, a model of partial market-inalienability may sometimes be suitable. While it would be folly to suggest that participants have an inalienable right not to be ejected from a private space, it may make sense to suggest that participants have an inalienable right not to be removed from a private space which very closely mimics public space without due process. This qualified market-inalienability may also be sufficient to allay the concerns raised by Bartle, in that participants and proprietors of virtual worlds which do not closely resemble public spaces will not be unduly burdened in their liberty to choose arbitrary rules. Similar to the way in which labour is partially commodified, where we allow the overall sale of one's productive force but impose limits in the form of minimum wages and unfair dismissal rules, we can envisage that participant rights in virtual worlds can be productively made partially market-inalienable. The difficulty, as always, will lie in establishing the boundaries.

Overall, I think that Radin's theory provides a fascinating way of approaching the topic of 'avatar rights' which could be very useful in determining which interests can be modified by Terms of Service, by code, and by internal norms in virtual worlds.

Comments, thoughts, or suggestions?

Jankowich, EULAw: The Complex Web of Corporate Rule-Making in Virtual Worlds (2006) 8 Tulane Journal of Technology and Intellectual Property 1, 44.

Today Tonight v Chaser – Copyright in video taken in trespass?

Daily Telegraph photo

(Photo from Daily Telegraph, extracted from Seven's own broadcast.)

Channel 7 obtained a preliminary injunction to prevent the Chaser from broadcasting video it recorded whilst allegedly trespassing on Channel 7's premises.

Paragraph 14 of the judgment notes that Channel 7 had planned to show its own version of events on Today Tonight, which concerned Barnett J. Channel 7 agreed to give an undertaking that it would not broadcast that story until after the determination of the substantive proceedings.

It appears that Channel 7 did, in fact, broadcast its version of events. Video is available from idents.tv.

It seems unreasonable to grant an injunction based upon publication of confidential information, when the plaintiff itself plans to publish that same information shortly afterwards. Obviously in this case it is not the confidential information itself which Seven sought to protect, but the right to be first to show the story, and the right to depict events in the best light possible.

Indeed, the injunction appears to have been granted at least in part on the basis that Channel 7 would not itself broadcast the footage. Dale Clapperton wonders whether the broadcast would place Channel 7 in contempt of court?

To make matters worse, the segments that Seven broadcast did in fact contain personal information, including telephone numbers, of Today Tonight staff members.

The obiter in ABC v Lenah that Seven relies on in its claim for ownership of copyright in the tapes requires either a degree of confidentiality or of loss to goodwill. It would be unfortunate if a general principle were to emerge that all video content which is taken on private property without permission is to be owned beneficially by the owner of the property. If a case cannot be made out for an action in breach of confidence, it would not seem desirable to provide a remedy in the tort of trespass. One of these actions is inherently suited and balanced to protect confidential or secret information, and one of these is not.

Stay tuned for the judgment in the substantive proceedings.