by Jack M. Balkin and Beth Simone Noveck (eds). New York and London: New York University Press, 2006. 320pp. Cloth. $70.00. ISBN: 081479971X. Paper. $24.00. ISBN: 0814799728.
Reviewed by Debora Halbert, Department of History and Political Science, Otterbein College. Email: Dhalbert [at] otterbein.edu.
THE STATE OF PLAY, edited by Jack Balkin and Beth Simone Noveck, is a collection of essays emerging from the first annual State of Play Conference held at New York Law School in 2003. Given that law in virtual worlds is a relatively new field, this book begins a conversation that will continue for some time to come. THE STATE OF PLAY brings together many of the important thinkers on virtual worlds, including game designers, law professors, and journalists. It develops the key issues relevant to a virtual future, specifically the legal implications of newly emerging virtual worlds. The essays define the legal issues that may surface when one begins to take virtual worlds seriously as spaces for important social interaction, instead of seeing them simply as sites for on-line play. While some of the essays feel introductory and undeveloped, on balance the book provides interesting insights into the intersection between the law and virtual worlds.
The book is divided into four sections besides the introduction (Part I), each dealing thematically with some aspect of law in virtual worlds. Part II describes the tensions between game designers and game players over the ‘rights’ of players in a gaming world. Game designers generally seek to limit rights and retain control, while game players seek to enhance their rights within the game. Although not discussed in the essays published here, the emerging discourse over rights could make for an interesting examination of rights talk and how it evolves in relation to the law. Part III looks at property issues in virtual worlds with a focus on theft, intellectual property, and who should own property in virtual worlds. Again, the tension between game developers and game players is evident in arguments for property ownership.
In this section, Yochai Benkler’s essay (Chapter 11) is a refreshing response to the assumed rights-based, property wielding narrative present in many of the others. Instead of assuming property rights in virtual worlds, Benkler emphasizes that we are able to determine the social relations these games structure, including property relations. Benkler wants to demonstrate that the collaborative aspects of virtual worlds are essential and can become examples of innovation absent intellectual property rights (p.182). In doing so, he seeks to bypass the legal questions raised by Cory Ondrejka (Chapter 10) who, while arguing for the creation of a metaverse based upon user design and distributed networks, deliberates over who owns what in virtual worlds (pp.158-179). Both chapters are good, but Benkler puts his finger on what is most radical about the possibilities of virtual worlds. [*213]
Privacy is important to consider in virtual worlds, and this issue is addressed in Section IV. Tracy Spaight’s chapter (Chapter 12), “Who Killed Miss Norway?” raises the age-old question of identity and authenticity on the internet, while at the same time providing the most example-based analysis in the book. However, the chapter does not theorize about privacy issues, except to make the claim that on the internet, personal identity is easy to disguise. Susan Crawford (Chapter 13) argues that because our virtual identities will someday be as important as our ‘real’ identities, we need to think about the evolution of privacy on-line (p.198). Her essay introduces some interesting concepts regarding social behavior – that people tend to form groups voluntarily of around 150 people (p.203) and that we need to think about the implication of a future privatized internet. However, this chapter also does not really address issues of privacy as defined by law, but instead focuses on the construction of on-line identity. Tal Zarsky’s essay (Chapter 14) is much more topical to the privacy issue and does a good job of outlining the ultimate privacy concerns. Section IV as a whole avoids deep theorizing about privacy issues, and, like other parts of the book, one can say certain issues have been defined, but not well developed.
The final section, Part V looks at the links between virtual worlds and real-world issues. David R. Johnson (Chapter 16) discusses his efforts to develop visual legal rules that he titles “graphical groupware” (p.247). I would have liked to see an example in this chapter to help me (ironically) visualize his argument. Beth Simone Noveck (Chapter 17) deals with the possibilities of virtual politics and what she calls an “electronic civil society” (p.259). Noveck is already designing a future virtual democratic world that will take the avatar and turn it into a democratic citizen. Noveck helps imagine ways in which virtual spaces can become political and civic spaces, perhaps the best example of the link between the virtual and the real, as well as an interesting way to end the book.
When looking at THE STATE OF PLAY as a whole, there seems to be a divide between authors who have built and used virtual environments and those who are theorizing about the legal implications of these environments, but have most likely not participated actively in a virtual environment. Both sets of authors tend to be abstract in their approach – game designers because their interests lie in the structure of the gaming environment, and legal scholars because their interests lie in the possible legal scenarios that can evolve. As a result, very few of the essays draw from examples generated from conflict in virtual environments and instead theorize about these environments in the abstract. I would have enjoyed seeing more examples emanating from the actual use of virtual worlds. Absent these hands-on scenarios, the book as a whole feels somewhat removed from the worlds they are addressing. A discussion, for example, of the relevance of the tort of public disclosure of private facts should be accompanied by an example where this emerged as a problem in the virtual world. If law is so important in these spaces, then it seems [*214] there should already be cases existing where legal problems have emerged. However, if these cases exist, few authors use them to ground the book in the reality of the virtual environment.
The availability of examples is what makes Julian Dibbell’s piece so thought provoking. Dibbell discusses the impact of end user license agreements (EULAs) on the nature of the game by using the case BLACK SNOW v. MYTHIC. He discusses the implications of developing ‘gold farms’ to produce game money using sweat shop labor in the ‘real’ world. Not only did this chapter make me see value in the EULA, but it also provides insight into the types of controversies that are emerging in virtual worlds instead of the potential controversies that might exist if all manner of law were to be translated to these virtual worlds.
Dibbell’s piece also highlights one of the more interesting themes that emerged in the book as a whole – the role of the EULA as a social contract. The language of social contracts appears in several of the essays. Raph Koster, for example, claims in Chapter 4 that avatars form a social contract in virtual worlds, but ultimately the worlds themselves are governed by a ‘higher power’ (p.57). Jack Balkin notes in Chapter 6 that the EULA is the social contract of the virtual world (p.87). In most essays, it is assumed that entering a gaming environment requires players to adhere to the rules associated with the game. However, the use of social contract language in these essays strays from what I had always assumed was an underlying political ideology of internet-savvy programmers – a rational-based libertarianism which values individual autonomy and self-government.
Instead of providing the conceptual framework for rational individuals to create the conditions of self-government (social contract theory via Locke), the social contract associated with virtual worlds seems to require a ‘love it or leave it’ position where adherence to the rules is mandatory, but the ability to affect the rules is limited (social contract via Hobbes). Game owners seem to advocate a Hobbesian social contract, while game players seek to create a Lockean social contract. Dibbell offers the most sophisticated understanding of social contract theory and a possible Lockean path out of the divide when he argues that changes made to the EULA based upon customer feedback create the conditions of a (minimal) democratic politics (pp.143-143). While the essays do not discuss the political nature of these gaming environments in depth, it is clear that more analysis of the EULA as social contract is warranted.
The prevailing language of a social contract is a first interesting theme that emerges from the book. A second theme deals with the future implications of virtual worlds. Bartle argues in Chapter 3 that we need to retain the space for play made possible by these worlds and keep the division between the game world and the real world intact (p.49). However, other authors see these game worlds as precursors to future on-line life based upon the metaverse envisioned in Neal Stephenson’s SNOW CRASH. Cory Ondrejka, for example, claims that the possibilities of users “to create in a [*215] shared world is only just becoming technically feasible” (p.166). For Koster (Chapter 4), it is the future possibilities of an on-line world where information is free that provides the justification for a declaration of rights for avatars (p.66). A future world where the data available are bank records and credit reports instead of game-related information gives the notion of avatar rights meaning that is otherwise lacking (pp.66-67). Noveck’s work, as mentioned above, is already moving the virtual world towards its possible political future by actively envisioning and creating the on-line space for virtual citizenship.
The State of Play conference is now in its fourth year, and its issues have become international since the first conference. This book sets the stage for a more sophisticated discussion of virtual legal issues in the future, but generally provides breadth, not depth. I would imagine that if it were to be published, the STATE OF PLAY 2.0, which would build upon subsequent conferences, would dig beneath the surface and more fully elaborate on the complexities emerging as law enters virtual worlds. In the interterm, much can be learned about law and virtual worlds by reading this book.
Stephenson, Neal. 2000. SNOW CRASH. New York: Bantam Spectra.
BLACKSNOW INTERACTIVE v. MYTHIC ENTERTAINMENT INC., No. 02-00112 (C.D. CA, 2002).
© Copyright 2007 by the author, Debora Halbert.