Sunday, February 22, 2009

Turning the lenses inward

With my posts, I am going to do a different blend of the concepts autonomy, law, technology and explore the reasons why legal scholars use their autonomy to focus on issues surrounding new technologies. By “issues surrounding new technologies” I don’t mean why are we here discussing law and technology theory (there are, after all, relatively few of us, and many justifications we could offer for our choice of scholarship, some of which were collected in the MJLST symposium). Rather, I am referring to the vast fields of scholarship exploring particular legal issues surrounding particular technologies.

In my first post, I will set up the question, and in the second go some way towards an answer. One caution – I have much further to go with this project before producing a piece for publication, so my ideas are still tentative. Hopefully, these two blogs will generate critique and suggestions! But on with the show…

Beebe, in an excellent note entitled Law’s Empire and the Final Frontier: Legalizing the Future in the Earlyorpus Juris Spatialis (108 Yale L.J. 1737), discusses the fate of “space law.” He describes the “Golden Age” of space law in which lawyers debated such questions as whether title to a space platform would be transferred by bill of sale or deed. Far from lagging behind technology, lawyers were leaping ahead. He argues that lawyers’ focus on outer space was an attempt, as Kieran Tranter might put it, to ensure that the “law” story won over the “technology” story, and hence that lawyers had a place in the future.

Note that Beebe does not deny that new technologies generate new legal issues. In an earlier piece, I categorised legal issues generated by technological change. It might in fact be uncertain, on the basis of pre-existing law, how title to a space platform would be transferred. Beebe’s point is not that this issue was meaningless or easy, but rather that the purpose of discussing it is to assert the dominance of a legal narrative in a technological future rather than to set out an authoritative, coherent statement of legal doctrine. “Space law” still exists, although Beebe distinguishes modern space law from “golden age” space law by describing the former as “a highly technical discourse spoken primarily by specialist practitioners.”

Might today's legal scholars, with the freedom to discuss whatever they wish, fall into a similar trap as "golden age" space lawyers? One area where this might be happening is in the scholarship surrounding legal issues in virtual worlds. I should start by admitting my own musings on this topic in an article on the scope of property law which employed virtual property as one of its examples. So, why am I worried about the parallels? First, it is not self-evident why legal scholars would be concerned with virtual worlds. Unlike a technology such as cloning, there is no “obvious” role for law to play. Second, people spending time and doing business in constructed virtual worlds arguably pose a similar "threat" to lawyers to that posed by the possibility of space travel in the 1960s.

With the help of a research assistant, I am in the process of compiling a list of all articles dealing with legal issues in virtual worlds published (or appearing on-line) before the end of 2008. We have over 100 articles dealing with legal issues in virtual worlds. I am not currently including books such as that by Duranske on Virtual Law (published by the American Bar Association). As well as getting a sense of numbers, I have “coded” them for explanations offered as to why the issue being discussed is important or urgent. Some articles gave more than one reason, in which case more than one coding was allocated. My “coding” is necessarily subjective (as the justification for exploring issues in virtual worlds was often implied from introductions rather than explicitly identified as a rationale). But what I wanted was a sense of whether there was any expressed need for legal scholarship on virtual worlds that could take it outside the realm of Beebe's concern.

Most articles offered at least some rationale for finding the topic of interest. A few (including my own) were concerned with broader legal development, using virtual worlds as a launching pad to explore more general legal issues. Of the ones that considered the resolution of legal issues in virtual worlds important for themselves, the most popular reason was the rate of growth of virtual worlds, by reference to changes in population or profit. A few raised the need to ensure continuing growth and productivity of virtual worlds as a rationale for their discussion. Government and judicial activity was sometimes mentioned as justifying legal analysis. Quite a few articles referred to the fact that virtual world transactions have corresponding “real money” values, with some more referring to “real world” effects of virtual activity more broadly. Some articles referred to the importance of virtual worlds in the lives of (at least some of) their residents. There is also a cumulative effect, with some articles referring to previous media or academic interest in virtual worlds as a rationale for further discussion of virtual worlds.

So, is there anything in all this that might explain the popular focus on legal issues in virtual worlds? Some, still tentative, thoughts:

Growth: The growth of virtual worlds might be important for two (related) reasons: (1) if there are legal dilemmas, it is possible that more and more people will encounter them, and (2) if laws are going to be made, they need to be made soon before the technological status quo becomes entrenched.

The first of these is true, but statements about the number of citizens in Second Life is no more impressive than lists of man's accomplishments in outer space in the 1970s. Neither tells us whether resolution of the legal issues is timely or premature. Growth itself might signal either - ongoing growth and development might make early legal responses obsolete. Growth might also be illusory - a passing fad.

The second of these does seek to explain the urgency of attention to legal issues. However, “growth” as such may not be the relevant factor. According to Gaia Bernstein, diffusion patterns can signal a need for urgent consideration of legal issues. Diffusion patterns are not, however, mere reference to rate of uptake but rather features such as centralisation and the existence of a critical mass point. Although decentralised, the fate of virtual worlds (in terms of critical mass point) is less clear than the fate of the Internet discussed by Gaia in her paper. However, demonstration that the diffusion pattern of virtual worlds made particular legal problems more urgent would satisfactorily distinguish virtual law from space law.

Technology promotion: Where a technology is independently desirable, but diffusion is stymied for an external reason, then law reform to remove the blockage might be desirable. Gaia Bernstein gives an example of this in her discussion of privacy concerns inhibiting the diffusion of genetic testing technologies. Whether this scenario (or something similar) applies in the case of virtual worlds would require demonstration. I am not so sure that promoting virtual worlds is a high government priority right now anyway.

Government and judicial activity: Certainly, a judicial decision, proposed law or proposed agency action can be a good reason for legal commentary. However, in the case of virtual worlds, few decisions and little action tends to lead to plenty of commentary. Bragg v Linden Labs only reached the interlocutory stage before being settled, yet academic commentary is plentiful.

Real world implications (including the possibility of exchange between virtual currency and real currency): The fact that actions in virtual worlds can have real world implications is generally a pre-requisite for their being of interest to lawyers at all. However, given the vast amounts of possible activity that has implications, including financial implications, this cannot be a reason in itself. However, if for example large amounts of money depended on the answer to a legal issue arising in virtual worlds, that could justify further exploration. Some virtual worlds literature falls into this category.

Importance to individuals using the technology: This seems a good reason to resolve legal issues surrounding virtual worlds. If the lives of many individuals would be enhanced by particular legal treatment of virtual worlds, then advocating such treatment seems sensible. Of course, ideally, one would have empirical proof of what legal issues virtual citizens are concerned about, rather than mere supposition.

In summary, there are some glimmers of hope that virtual law scholarship will turn out to be less humorous in retrospect than "golden age" space law scholarship, although the jury is still out. Most likely, as in the case of space law, some aspects of virtual law jurisprudence will become relevant and important, perhaps confined to true specialists. Other areas may seem, in retrospect, a distraction, motivated by legal academics’ desire to explore strange new worlds.

But, if scholars can do what we like, why does this matter? The answer (or at least further musings) will have to wait until my next post.


Blogger James Grimmelmann said...

A lot of the actual law that virtual worlds are developing (and will develop) will turn out to be pretty humdrum. Still, as a regular writer on virtual worlds, I find them fascinating for two reasons.

First, they're a useful test case for thinking about online spaces and the power of online intermediaries more generally. Some of the issues of centralized software power and socially constructed realities generalize quite readily.

Second, they provide a useful vantage point from which to look backwards at familiar off-line legal questions. Questions about the purposes of property, the development of social order, and so on may have either surprisingly different or surprisingly familiar answers when asked about virtual worlds.

2/22/2009 9:56 AM  
Blogger Art said...

To follow-up on James' comment, I agree that discussions concerning virtual world law can help us to test assumptions about real world law.

This reminds me of the mid- to late-1990s debate about whether new laws and new forms of legal analysis were needed for cyberspace (e.g., the Johnson/Post 'cyberspace as a separate space' argument) or whether traditional laws and analysis would suffice (e.g., Goldsmith's 'Against Cyberanarchy' perspective).

Looking back, the latter perspective seems to have won out, and I suspect a similar outcome may occur with respect to virtual law discussions.

2/22/2009 2:30 PM  
Blogger Lyria Bennett Moses said...

Thanks for your comments!

I agree that some virtual worlds scholarship (including James' own, and mine) use virtual worlds to make broader points about law, legal doctrine, or theory. However, much of it (like bills of sale on the moon) is focussed inwards not outwards. Even there, I am not saying that this cannot be justified, only that (so far) it hasn't been.

If virtual worlds (1) need law (with some degree of urgency) and (2) need their "own" law, then some level of "inwards" looking legal scholarship may be helpful. But this should ideally be demonstrated.

2/22/2009 6:26 PM  
Blogger Gaia Bernstein said...

Lyria, this is very interesting. First, I think it would be helpful to investigate the issue of conflict avoidance. I believe the productive dialogue between academics and designers of virtual worlds has resulted in the designers of these worlds reacting to academic suggestions in ways that may have helped avoid conflict in these worlds. You may want to interview the designers of these worlds.

Second, in my writings I have been concerned with law intervening too early and therefore inhibiting potential technological benefits. You are looking at the issue of early intervention from the perspective of allocation of legal attention and resources. If your analysis would lead you (and it seems to be leading you) to the conclusion that the discussion of virtual worlds constitutes a waste of resources, then you will have to deal with a bigger question, which is not just law and technology related. The question is should the autonomy of scholars be constrained and their efforts be directed to areas of law where their insights would be most effective? I believe most legal scholars would answer this question in the negative.

2/23/2009 10:16 AM  
Blogger James Grimmelmann said...

Thanks also for linking to Barton's excellent (and highly entertaining) paper and for drawing out the connection to virtual worlds. The undercurrent of anxiety -- the fear that lawyers might not have a place on these new "worlds," actual or virtual -- is fascinating.

2/24/2009 6:49 AM  

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