Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting).

This might be useful in getting Australia to reform its content classification system, which has some weird dichotomies in evaluating on-line vs. off-line material, and in dealing with different media for the same content. This particular quirk, though, seems like it’s vulnerable to gamesmanship: if I were an Australian gaming company, I’d surely submit complaints about my competitors’ games (especially foreign ones) – censorship could help my sales by eliminating alternatives.

Fun stuff. Hat tip to Boing Boing.

I was interviewed about it today on NPR’s All Things Considered, where I tried to make three simple but crucial points:

1. This is not a very significant change. Facebook, like many sites, claims quite sweeping rights in the content you post, requiring you to waive both intellectual property and privacy-like claims you might make against their use of that content. Greg Lastowka made much the same point in the New York Times this morning.

2. Incidents like this do make people realize how much control they routinely surrender over their personal information. Even if the new rules don’t represent much of a change, it is a teachable moment for people to understand what broad rights Facebook and other sites already claim.

3. This is yet another example of poor transparency by Facebook — so ironic considering their whole business is built on the model of open information sharing. Just as in the Beacon and News Feed controversies, the company has done something stealthily and invited a backlash that now has founder Mark Zuckerberg scrambling to explain (exactly like he needed to do here and here).

I don’t play MMOs or other virtual world games based on the high likelihood that I’d become an obsessive recluse who subsists on Diet Pepsi Max and is frighteningly pale. (Oh, wait, too late…) So I hadn’t given virtual property too much thought. But I realized that maybe this cognitive disconnect – why pay hard cash for items “made entirely of fiction and code,” as Wired puts it – comes from the label “property.” IP aside, we still expect property to be stuff – things we can lay hands on, move around, and keep away from others. Virtual swords don’t really fit this model. This leads to all sorts of challenges flowing from this cognitive mismatch: can you “steal” virtual property? What happens if the game designer gives everyone the same cool sword that you bought? Or eliminates it? Should realspace courts enforce virtual bargains?

Here’s a better model: it’s a service. (Disclaimer: I’m sure someone else has come up with this.) Take Disney World’s FastPass option. You pay more money, and in exchange, you get to cut the line at attractions like Big Thunder Mountain Railroad. (Probably not necessary at It’s A Small World – anyone who can listen to that theme song for the duration of the ride should automatically get to cut.) Going to Disney isn’t buying a thing – it’s buying an experience. At the end of your day, you don’t have anything to show for your money except pleasant memories – a change in your lived experience. The FastPass enhances that experience; it makes it more pleasant and reduces annoyances like standing behind people wearing mouse ears. But it isn’t “property.”

So, too, virtual swords. They enhance the in-game experience, letting you do things that would otherwise take more time, effort, and psychological discomfort. Basically, you’re buying a better experience – in some cases from the MMO, in some cases from a third party. I think if we reframe virtual world questions along this axis, it might help us think about challenges like theft and breach of agreements, and perhaps even about in-game alterations.

I’ve got to ponder this a bit more, but I’d love to hear what all of you have to say. And if any of you have a virtual ninja monkey for sale, I’m game!

The amicus brief, however, calls for the indictment to be dismissed.

Why? For that, I turn to that most wise and quotable of Supreme Court justices, Oliver Wendell Holmes:

Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting)

Megan Meier’s suicide is just such a hard case. I understand and share the desire to hold someone accountable for behavior toward her, especially an adult who participated. I can’t entirely believe I am aiding the defense, in however small a way. But in its efforts to satisfy the desire for accountability, the government proposes to distort the CFAA — to bend well settled principles, in Holmes’ phrase — in a way that could apply to future cases. In other words, to make bad law.

As the brief explains, Congress clearly enacted the CFAA to respond to black-hat hackers (really probably “crackers,” but never mind) who break in to computer systems for malicious purposes. The law imposes criminal penalties on anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” The government’s case against Drew depends on the idea that creating the phony account and using it for bad ends might have violated MySpace’s terms of service. That’s the legalese attached to many web sites that purportedly defines the conditions for use of the site. Read them often? Me neither. Ever give false information to a web site to protect your privacy? Me too. If the government expands the CFAA as proposed here, any violation of terms of service could be a federal crime.

Maybe the Department of Justice would use its discretion and only prosecute bad actors who violate terms of service to do really horrible things like torment a teenage neighbor. But perhaps not. Which is why we define crimes very specifically in our country: exactly because we don’t want to trust in that discretion, and because no one should go to jail for violating an exceedingly vague law. Certainly we don’t want to outsource the definition of these crimes to the private-company lawyers who write terms of service.

We may need a stronger legal response to cyberbullying, though the area is fraught with complex implications for privacy, free speech, and protecting the intermediaries who provide open forums online. Turning every term of service into a criminal law is definitely the wrong response. I loathe what Lori Drew allegedly did, but loathing makes really bad law.

Intelligence officials who have examined these systems say they’re convinced that the qualities that many computer users find so attractive about virtual worlds — including anonymity, global access and the expanded ability to make financial transfers outside normal channels — have turned them into seedbeds for transnational threats.
[snip]
The government’s growing concern seems likely to make virtual worlds the next battlefield in the struggle over the proper limits on the government’s quest to improve security through data collection and analysis and the surveillance of commercial computer systems.

O’Harrow quotes from a U.S. intelligence study that says something like: “All the kids today are dancing and ‘jiving’ to this new rock-and-roll music on their jukeboxes, leading to increased lascivious behavior and moral decay.”

Now, I understand the possible dangers inherent in a global digital network that facilitates anonymity and allows users to make financial transactions. But that system is called the internet. It isn’t clear to me why those portions of the internet taken up by Second Life are necessarily more threatening than somewhat more familiar problems such as encrypted e-mail or money-transfer systems like PayPal. These innovations can be used for crime. My guess is that the novelty of flying avatars and virtual buildings drives the government’s fear, rather than a significant increase in actual risk from Second Life over and above the internet as a whole.

Even conceding that Second Life could be an especially attractive haven for Bad Guys, the potential for an over-reaction is very high. After all, regular old telephones help criminals and terrorists to communicate too, but that does not necessarily justify routinely monitoring them on a massive scale. (As Jim Dempsey of CDT aptly notes, “When the government is finished, every new technology becomes a more powerful surveillance tool than the technology before it.”)

I certainly hope we won’t see a rush to install monitoring or data-mining in these environments, either as a legal requirement or — perhaps more likely — though the eager cooperation of their proprietors. In a somewhat ominous sign, O’Harrow reports that Linden Lab is already hurrying to reassure the spooks that there is plenty of monitoring already in place:

Officials from Linden Lab have initiated meetings with people in the intelligence community about virtual worlds. They try to stress that systems to monitor avatar activity and identify risky behavior are built into the technology, according to Ken Dreifach, Linden’s deputy general counsel.

Is Linden Lab headed down the well-trodden path, already taken by many airlines, phone companies, and search engines, of voluntarily handing over their customers’ information to the government’s data-mining machine? Let’s hope not.

But I think one Florida State law professor went too far, if this comment on a recent Prawfsblawg post is correct:

One law prof at FSU started class the first day by making all the students read their Facebook profiles out loud. [T]he girls [sic] whose hobby was “being slutty” was particularly embarrassed…

Now, on one level I suppose this is a lesson well-learned for a student who ought to know better. Probably she shouldn’t memorialize such things in writing at all — to quote Dick Cheney, who knows a thing or two about keeping secrets: “I learned early on that if you don’t want your memos to get you in trouble some day, just don’t write any.” I agree that many students — and everyone else — ought to use better judgment when deciding what information to put online. This stuff is permanent, and employers look at these sites, and all that. And at first blush it may seem hard to consider it an invasion of privacy to make someone acknowledge what she has already presented as her own public self-definition, a part of her “profile.”

But this seems to take the typically blase attitude to humiliating law students to a whole new depth. Compelling students to read their Facebook profiles in class like this wrenches personal information out of its proper context and puts it in a radically different space with different conventions and assumptions. Furthermore, social networking sites have privacy settings — maybe this woman took advantage of them and restricted access to her profile to her friends. And finally, changing context converts jokes and irony into something else. Acting as if everything you say could come out in a job interview would reduce our conversation to platitudinous pap. And that’s what Facebook is, a form of conversation.

There are answers to all of these points, but they boil down to those I acknowledged above: the idea that students are naive if they think the autobiographical content they generate in online life will be interpreted exactly the way they intended by exactly the audience they intended. Sure, and an important lesson to learn, I suppose, but I think there is something deeper here: a hostility of some old folks (that is, anyone who still uses e-mail to communicate, a group that includes me) toward this newfangled Web 2.0 stuff. In a typically thoughtful post on this general subject (though not the FSU incident), Belle Lettre makes some excellent points about the virtues and vices of social networking for the typical law student and the animosity or bewilderment of some professors to the phenomenon. And she ends on this note:

I think that many professors are too private for the Facebook world, and much of the personal blogging world. But there’s nothing wrong with that. Just like there’s nothing inherently wrong with those with more lax privacy standards. To each his own, and to each his own audience. There are those who will care, and those who don’t won’t read such blogs or engage Facebook with the same alacrity. So you may be bewildered by your students’ online activity, but that is why you have fingers–so that you may scratch your head in bemusement.

So, I’ll take Belle’s advice: scratch, scratch, scratch. But it’s their life, both real and virtual, and frankly it’s none of my business.

Earlier, I noted lawsuit threats by the Church of England against the maker of a video game with a gun battle set in Manchester Cathedral. Today, in research for my paper on trademark fair use, I encountered an actual judicial decision grappling with some of the very same issues. What’s more, the losing party has appealed to the Ninth Circuit, where the final briefs were filed just last Wednesday. No word yet on an oral argument date. If nothing else, the case proves that I am right about the needless complexity of this area. (I also posted this month on video games as political advocacy tools).

The case involved the famous (or perhaps infamous) video game Grand Theft Auto:San Andreas and its use of elements from an East Los Angeles strip club called THE PLAY PEN in creation of a seedy strip club in the game’s “East Los Santos” neighborhood called THE PIG PEN. The video game version of the building is very different from the appearance of the real-world club, but in addition to those similar names the two locations also share some resemblances in their logos and awnings.

The district court considers a nominative fair use defense, but ultimately rejects it because it holds that the marks must be “identical” for this defense to apply. (Not sure that is or should be the rule.) It then moves on to find that the First Amendment nevertheless protects the expression inherent in Grand Theft Auto’s “twisted, irreverent image of urban Los Angeles” and so trademark law cannot apply. This comes notwithstanding a survey submitted by the strip club making what might otherwise be a decent showing of likelihood of confusion. The decision also reaches its result by taking the Rogers v. Grimaldi analysis of First Amendment deference applicable to titles of artistic works and extends it to the contents of artistic works, a step the Ninth Circuit has not yet taken. And finally, it’s not clear to me how the court can find both that the video game strip club is so dissimilar that nominative fair use cannot apply but also hold — crucially for the Rogers analysis — that the “defendants’ decision to borrow the Play Pen trade dress and mark was closely connected to the artistic design of Los Santos and the overall theme of the Game.”

On appeal, the Ninth Circuit should consider whether it’s a better route to apply nominative fair use and avoid this free-form constitutional balancing act. Maybe the appellate court can even take this opportunity to decide — reversing its earlier case law — that fair uses may coexist with some confusion in the nominative fair use setting (just as the Supreme Court found for the “classic fair use” defense in KP Permanent).

The district court’s PLAY PEN/PIG PEN decision, for those of you with Lexis/Westlaw access, is E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 444 F. Supp. 2d 1012 (C.D. Cal. 2006). Warning: it is verbose (over 35 pages in the Federal Supplement). Marty Schwimmer talked about the case last summer and posted a copy of the decision here. And Rebecca Tushnet talked about it then, too, and after voicing several good criticisms of the court’s reasoning she reached this eminently sensible conclusion:

That’s not to say the decision was wrong – it’s plainly right – but basically the court overthought the whole thing, as a perusal of the very long opinion will show.

In sum, this case suggests that under U.S. law, one way or another, the Church of England cannot enjoin the alien gun battle in Manchester Cathedral. But we pretty much knew that, didn’t we?

One, “Planet Green Game,” is sponsored by Starbucks, which is using some significant advertising dollars to promote the game aggressively. (I found it through a Starbucks ad at a newspaper site). The game itself was developed in partnership with an environmental group called Global Green USA. Players travel around the imaginary town of Evergreen, engaging in challenges built around ordinary activities and the goal of reducing their environmental footprint as they go. You can drive a hybrid car, bike, or take the bus. You have thirty seconds to spot all the environmental problems in the kitchen. You go to the building supply store and play a memory game centered on green renovation products. And so forth…

The other example, the ReDistricting Game, apparently lacks corporate sponsorship but has lots of support from various advocacy groups pushing for redistricting reform in Congress and the states. The “missions” involve redrawing lines of districts to manipulate electoral outcomes. I liked this one better because the video game format more naturally presented the exact problem the sponsors want to highlight. I am a political junkie and I know all about gerrymandering, but sitting at the computer and moving the lines around to do it myself showed just how easy it is. And of course the line-drawers in the real world rely on sophisticated computer modeling to do their work. (Hat tip: learned about this one from the New York Times politics blog, the Caucus).

No one is going to confuse the often less-than-dynamic game play and didactic asides in these titles with Resistance: Fall of Man, or even with the lovably earnest Sim City. But they are kind of fun.  And I strongly suspect that people who would never sit for thirty seconds to read a preachy web site about these serious public issues might spend significant time tooling around Evergreen in a Prius or tinkering with the map of Jefferson State. That can be an entry point: both games start with short video intros, similar to those in many video games, that frame the designers’ political view. And there are links to learn more information, take action, and send the link with the game on to friends. As political activists of all stripes learn to harness the power of the internet more effectively, we are going to see a lot more of these games for a cause.