F.Birchman / MSNBC.com
By Columnist
msnbc.com
updated 2/7/2005 4:34:04 PM ET 2005-02-07T21:34:04

A multiplayer online game is sued for allowing its players to dress up like comic book heroes. An upstart company winds up in court for creating a Tijuana sweatshop to manufacture digital weaponry.

A funny thing is happening in these sprawling online multiplayer arenas.  The ultimate in digital escapism, virtual worlds keep ending up in the ultimate in depressing reality: the courts.

Massive multiplayer games have exploded in popularity, with games that range far beyond the quests and giant rat killings of a traditional title such as "Everquest II." Some skip Dungeons & Dragon-style role-playing altogether in favor of a free-form world not unlike a virtual "Burning Man." What they have in common is virtual worlds built to accommodate player interaction. The designers create the world and code the boundaries of behavior; the players add the drama with their social interactions.

What happens in Norrath doesn't always stay in Norrath, however. Virtual goods now appear for sale in the real world, on eBay. Exchange rates for game currency and U.S. dollars are posted on sites like IGE. An island in one virtual world recently sold for $30,000!

That kind of money attracts attention. Digital sweatshops, businesses where Third World laborers play online games 24/7 in order to create virtual goods that can be sold for cash, are also on the rise. One such business, Blacksnow Interactive, actually sued a virtual world's creator in 2002 for attempting to crack down on the practice. The first of its kind to center on virtual goods, the case was eventually dropped.

Beth Simone Noveck, an associate professor of law at the New York Law School and director of the Institute for Information Law and Policy, isn't surprised that virtual conflicts are winding up in court.

"Now that there's commerce, trading and the exchange of virtual goods in virtual worlds, the law is going to come in," she said.

To get a handle on the boundaries between virtual worlds and real-world law, MSNBC.com asked Noveck to highlight several legal hot buttons as they apply to virtual worlds.

Is digital property, property?
Take virtual property.  "One of the questions is, how do we treat property in virtual worlds," said Noveck. "Should we accord them the same protection as property in the real world?"

Imagine your virtual world avatar wore a little amulet that was then stolen by another avatar, she suggested. Would that be classified as theft?

Probably not. In many virtual worlds, particularly MMORPG's (massively multiplayer online role playing games) theft is allowed; it's considered part of the role playing experience.

But money has a way of changing everything. If virtual world goods and money can hold value in a real-world economy, why can't they hold value in the courts? Actually it's already happened -- although the court ruling was in China.  In 2003, a court that a virtual world developer had to compensate a player in cash after a hacker stole his virtual goods.

Noveck takes the idea of digital property one step further.

Imagine someone investing time and money (via a monthly subscription) into a virtual world.  She's made friends, built a reputation and spent a fair amount of time collecting and creating virtual goods. All of a sudden, "poof!" her work disappears when the game creator, faced with a losing business, pulls the plug.

"Time to get a life," may be the easy response. But for many, the virtual world is their life.  The average player spends 22 hours a week online, according to Nick Yee, a virtual world anthropologist who has been documenting MMORPG's since 1999. 

"As we spend more time in these worlds, it's not enough for companies to say that 'we own everything and we can turn it off at any time,'"  said Noveck. "The question may soon be should we have recourse against a game for obliterating assets?"

Intellectual property in the virtual realm
A more recent case involves Marvel Comics, owners of "Spider-Man" and "The X-Men" franchises. Concerned that players in the critically acclaimed online game "City of Heroes" were using the game's character building tools to outfit themselves as Marvel-owned heroes, the company sued the game's maker, South Korean online gaming giant NCsoft. It was up to NCsoft, Marvel charged, to prevent its players from infringing on its trademarks.

"There's this larger question concerning virtual worlds on the legal treatment of the people who create and provide this service," said Noveck.  "Should they be protected as an ISP or should they be responsible like Napster."  

Internet service providers are not legally responsible for the content of Web sites, that responsibility lies with the owner of the Web site. Napster, on the other hand -- well, everyone knows what happened with Napster. The Feds went after both the company and its customers.

The case is still in the courts. Meanwhile, there's an interesting theoretical parallel.

After all, a Marvel comic character is protected by the law in every medium. But what if a player in "City of Heroes" created his own virtual character and that character was promptly used in a Marvel comic book. Would that be illegal?

"The laws haven't approached that yet," said Noveck. "But it wasn't too long ago that we were talking about whether" trademarks and brands could be protected on the Web.

Creating an item in a virtual world worthy of branded status will depend, in the future, on whether the player is allowed ownership of the object created in a virtual world owned by a private company. Most virtual world designers maintain that anything created in the world belong to the company.

But already one virtual world, "Second Life," cedes intellectual property rights over player creations to players themselves. That position, combined with "Second Life's" robust tools and scripting, has led to some fantastical creations.

"Right now there's this intense disagreement over intellectual property," Noveck said. "Some say recognizing property is good because it enhances creativity, others say, 'Come on! People create things in virtual worlds for the love of it.'"

Should virtual worlds be regulated by law at all?
Of course all this talk about the law and virtual worlds may sound silly to most people; conjuring up images of tiny digitized courtrooms with a seventh-level dwarf pleading his case.

But as the virtual world and the real world grow more alike, the legal questions will mount.

Noveck played host to a number of cyber-philosophers and virtual world creators at State of Play II, a conference on virtual worlds in New York last fall.

There were no Merlin hats in sight. Instead, discussion centered on the future potential of virtual world technology, according to Noveck, "as not just a place to play, but also a place to work or create culture." 

In other words, the same technology and multiplayer cooperation that has fostered many-a-dragon-quest in the past could some day be applied to more practical applications like encouraging political participation or fostering a collaborative environment for real world decision-making.

Already, some players use virtual worlds as a sort-of public square, voicing their opinion on everything from real-world presidential politics to the problems they have with the game creators. And this brings up another potential legal issue: Using a privately run space to voice public opinions.

"If this is a place where people are socializing than one of the questions is, should we be thinking of virtual worlds as something different, like a company town" said Noveck.

Company towns are often mentioned as a possible legal precedent for the legal status of virtual worlds. A 1946 Supreme Court ruling found that towns created and run by companies could not restrict the First Amendment right of free expression. Despite their private origin, the court found, the towns served a public function.

Applying the Constitution like a sledgehammer to online arenas originally created for escape may sound like the ultimate bad trip -- going against the "we're in this together" camaraderie that has sparked many a virtual world quest.  

But if virtual worlds are to reach the full potential that Noveck and like-minded scholars and enthusiasts espouse -- as a not just a place to play, but to work and create -- they will need people who understand both the strengths of real world law and virtual world collaboration.

"We now have this technology that allows people to create their own place, their own rules," said Noveck. "We need to preserve it."

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