“Virtual property” popularly refers to virtual goods – items purchased for use or display within virtual worlds, online games, and social networking platforms (like Facebook). The term could equally apply to other cyberspace assets, like land in Second Life or Entropia. Even items acquired through the investment of time or expertise (rather than a specific currency exchange), like my Sea Turtle. If you use such simple definitions, property does not influence rights or governance: The virtual environment doesn’t substantively change anything in law. Contracts can still control the relationship between the people and organisations involved. Copyright still protects the underlying electronic and creative concepts. What’s all the fuss about?
The utopian ideals of some of the early internet pioneers are long since forgotten. More recent debates about the rights of avatars have been steam-rollered under “the tyranny of the End User Licence Agreement” (quoting Andres Guadamuz – although perhaps such an agreement is still more democratic than a unsigned contract with society). So who cares?
Virtual Policy Structure
Who is important:
- Who is no longer dominated by a group of well-educated early adopters. Casual games and similar online services are attracting a far more mainstream audience. Ordinary people live day-to-day based on “common sense”, with almost no awareness of formal statute or the wording of contracts. For example, virtual goods are sold as a highly limited license, but the purchaser generally assumes they own these goods, just like they own other stuff they buy. So there’s a disconnect between “the law” as it is, and the law as it is popularly expected to be. That might be fixed by education (marketing, propaganda), but virtual goods are popular precisely because of the status they convey about the individual purchaser, so such goods have to “feel owned”. Instead this disconnection between law and common expectation risks becoming a governance issue.
- Who is no longer entirely dominated by “players” and hobbyists. Serious socio-economic activity is starting to occur in and around environments which are legally little more than a piece of software, owned by the programmer or publisher. That poses some serious challenges, because now unresolved issues involve significant value (and money). Creative reuse issues become even more poignant, because almost everything is a reflection on the creativity of more than one thing (individual, organisation, work). Meanwhile, rights that you assumed you had evaporate, because either you signed them away in a contract, or they relate to an abstract concept which isn’t clearly recognised in law. That sounds trivial until, for example, you discover that your online persona has greater economic value than your physical persona, and that the only person that can exploit this value is someone other than you.
Who is important now because who changes the scenario from “some kid in their bedroom”, to anyone and everyone. That brings previously abstract problems into the mainstream, and will rapidly start making the debate less academic and more, erm, real.
Pragmatically, we may seamlessly adjust to the new order. For example, instead of viewing a provider like Facebook as a service, ultimately we will see them as our corporate employer: Implicitly accepting their right to make profits out of our work, with only limited regulation controlling the extremes of exploitation. Subtle adjustments to the existing legal structure – especially via case-law precedents and reactionary changes to contracts. In the interim, there will surely be blood: Service providers that previously just had to deal with an irate “I quit!” forum post, risk finding themselves hauled into court, because that’s what some people in “the real world” do when they get upset. In Jas Purewal‘s “little old lady doomsday scenario”, the defendant can not only hire lawyers to defend themselves, but is likely to be treated far more sympathetically by a judge due to their age. Especially likely where the provider’s internal dispute resolution system is biased by the arrogance associated with the absolute control of their software. Most of the legal profession, service providers, and ordinary people will probably end up here.
Politically, this raises a lot of familiar issues. The fear of a few dominant owners profiting from the labor of the social collective sounds rather Marxist. There are certainly some serious equality issues lurking, even if you reject the notion of collective property. Likewise some of the rights issues feel hauntingly familiar. Why is the physical ownership of another person so abhorrent, while ownership of another’s virtual presence so acceptable? Or to use Peter Yu‘s example, why is fine to impersonate Elvis in the street, but not in certain online worlds? Eventually such discussion turns to fundamental philosophical questions about the role of the individual, and their relationship to other individuals. But this isn’t a Utopian agenda. Rather, it seeks to carry existing social norms and balance forward into a slightly different environment. Good policy makers should find themselves here, biasing the pragmatic free-for-all (above) so that balance is maintained and the infamous 2027 “WeeMee Riots” (in which “we demand our clothes back”) never happen.
But there is a third approach, one better optimised for the virtual environment itself. That’s not as radical as it sounds, because we are still dealing with humans, who are mostly still satisfying primordial needs. Not much changes. But there are facets of the online environment that are important to its success, yet are already difficult terrain for Old World law: Mass-collaboration, creative reuse, emergent outcomes (not known at the start), constant product evolution, many linked identities. The logical structure is one that is natively multiplicitous [from multiplicity] – optimised for many, rather than one. This doesn’t just mean better systems for joint ownership; or devolution of specific laws to specific spaces, without universality: It implies a further re-balancing of governance, away from god-given sovereignty, in favour of emergent chaos. Maybe. Abstract, even idealistic, such a broad approach helps us understand the core issues.
Cynically, foresight is rare in governance, while protectionism of the past is rampant. Meanwhile, the technology may itself enable a solution.
The text above was originally written last year (including the “WeeMee Riots”), in response to the 3rd Digital Interactive Symposium Edinburgh (27 August 2010), but left unpublished.
Today I started to grow incensed about England’s current wave of youth riots. Not incensed about the riots, but about “popular” (especially political) reactions to them. I’m loathed to write about what I don’t fully understand. But if I hear another, “if looters were protesting against the society, they’d burn town halls and police stations, not high street shops”, I may turn violent myself: Is there no appreciation that the stuff sold in stores is the basis of the society? The aidas riots…
One unattributed radio commentator casually remarked that many kids were being taught to behave socially by “computer games”. But I doubt they understood why this might be relevant: Not just a proxy for a generational gap or poor parenting. Not just for biasing an individual’s expectations towards winning, when the physical world mostly teaches us how to lose. But also by providing a deep, cynical education in owning nothing – how the things you value most can never legally be owned by you. Combine that with a wider society structured around property, especially owned consumerist property, and confusion abounds. Naturally, if your society is structured around the individual ownership of stuff, and it transpires that the stuff that’s important to individuals isn’t owned by individuals, then your society isn’t structured.
This is commonly expressed as a generational inequality. For example, older generations appearing to price younger generations out of owning their own homes. A very physical case, easily understood by anyone aged over 30. But the intrinsic problem is deeper – that outlined above: A historic social-legal structure that doesn’t natively match the new environment, but is largely being forced upon it. Many un-physical things, that are increasingly important to living – important to the fabric of structured “individual ownership” society, but yet aren’t owned by individuals – from your WeeMee’s cloths to the electronic data generated by your interaction with others.
I have previously mused that generations born into this sort of technology might learn to use it better, by not instinctively applying prior techniques. But if the formal socio-legal structure first demands they learn everything prior does not fit that model, conflict becomes likely. Knee-jerk reactions to that conflict are highly pragmatic – “water cannon and rubber bullets”. Good political policy-making will attempt to smooth a transition. Optimising for the new environment is more logical, but profoundly challenging. Challenging because it requires the “governance of chaos” – the ultimate oxymoron? Challenging because it requires a way of thinking, knowing, even being, among humans that is not familiar to modern Westerners.
The third case suggests the divorce of the individual from property. A fundamental reassessment of Locke‘s, “though the earth … be common to all men, every man has a property in his own person,” and everything built around that.
(And that final sentiment has been stalling me for the last 3 years…)