Information Law Possum

On Friday, the FIR-HSG is holding one of its traditional information law discussion circles on the law and virtual worlds, with a special focus on non-intellectual property law. (That is, it’s not about the absence of intellectual property nor do I claim that property law isn’t intellectually challenging—you know what I mean :) Our colleague Stefan Bürge is going to talk about his Master thesis, entitled “Online Gaming – Real legal stumbling blocks in virtual worlds”.

So this is a good occasion to muse about a framework for legal research into this extremely exciting topic. Having that framework is not an accomplishment itself, but it might be useful in order to frame research questions more precisely and discover possible lacunae in existing scholarship on the topic.

The following categories might be a useful starting point for a more sophisticated taxonomy. They are of course interrelated and not entirely separable from one another, and the situations where this tentative framework could be useful might be even rare.

Here are my suggestions:

• Our law applied to legal issues of MMORPGs of our world, in particular to the game provider and his customers. This could be anything from the law of contracts (EULA/terms of service), business method patents, new legal forms for MMORPGs, etc.

• Our law applied to things that happen in virtual worlds. From this perspective, virtual worlds are all about information law because they are not much more than information. Research topics could include the copyrightability of goods created in virtual worlds, libel and slander in virtual worlds, etc.

• The law of virtual worlds, as created by their residents. Basically, this could be any field of law that could be created from scratch by the residents of a virtual world. Subjects would include the constitution of and constitutional rights in virtual worlds, virtual land and chattels, the emergence of informal or formal criminal law in virtual worlds, etc.

• What looks like the most interesting to me is the last category: The relationship between the law of virtual worlds and our law. Virtual worlds and their law—ultimately as parts of this world we live in and our law—do interact with this world, not only vice versa. How this happens could be analyzed, for instance, from the perspective of Talcott Parsons’ and Niklas Luhmann’s systems theory. But the field is much broader: We could ask, for instance, what the relationship between (real world) code and the law in virtual worlds is: e.g., if the code of the game permits theft or rape in the virtual world, can or should that be illegal in the physical world and/or in the virtual world? Or, last but not least, the border can be crossed by teaching law, like Charlie Nesson’s extension school course and his planned moot court in Second Life.

I admit I’m too (1) busy, (2) lazy, (x) tired to do a reality check with this framework. If you, dear reader, want to do it, that would be great–I would suggest that you start with the 1400+ blog posts on virtual worlds at HLS and see whether it makes sense to categorize them within the framework.  A notice of your results would be greatly appreciated.