Washington Lawyer

More Than Just a Game

From Washington Lawyer, May 2013

By Thai Phi Le

balloonsOn the planet Azeroth, a dwarf hunter clad in gold boots and blue cloak treks through the woods with a bow and arrow slung over his back. Ankha, a frostsaber spirit beast, slinks beside him. In this game of World of Warcraft, the dwarf hunter is on a quest to save a princess from a rampaging dragon. Over in the virtual world of Gielinor, through the game RuneScape, an armored knight helps end a dispute among goblins to avoid riots in the Goblin Village. And in Second Life, a group of legal–minded avatars meets in Justitia Legal Resource Village to celebrate the holidays, dancing along to live music sung by a member of the Second Life Bar Association (SLBA).

Whether on an expedition in Gielinor or Azeroth or socializing in Second Life, participation in 3–D simulated environments grew exponentially since 1974 when one of the first computer network games, Maze War, was developed. According to KZero, a virtual world consulting firm based in the United Kingdom, approximately 1.7 billion users were immersed in the virtual world at varying levels in 2011.

But with more user investment in gameplay and greater advances in technology comes more virtual–world conflicts. Black markets for hard-to-achieve virtual world weapons litter the Internet, going against many companies’ terms of service. In worlds where money can be made from the sale of virtual goods, patent and trademark infringement runs rampant. Battles are no longer just between knight and evil wizard. It’s user versus user, player against game maker.

For players, what began as an escape from reality can no longer escape the pervasive real–world legal issues that invade their lands. The emergence of virtual economies creates questions of whether a virtual good has actual value in legal disputes. Case law is severely limited as courts struggle with this new frontier. What current legislation applies? When should disputes stay in the virtual world (also known as “in–world”), and when do they enter real courts? How should a virtual world be governed?

Evolution of Virtual Worlds
The encyclopedia for pcmag.com defines a virtual world as a “3D computer environment in which users are represented on screen as themselves or as made–up characters and interact in real time with other users.” Players are depicted in the virtual world as avatars that today can take any shape, from a cat to a person resembling the user. 

Maze War is often cited as one of the primary origins of the virtual world.[1] Developed at NASA, players over a specific network of computers wandered through a digital maze, seeing scenes of the game from a first–person perspective. When other players appeared onscreen (in the form of eyeballs), a battle ensued.

As technology advanced, better graphics were added and player capabilities increased. Games like Maze War gave way to multiuser dungeon or MUD—also known later as multiuser domain and multiuser dimension—and finally to massively multiplayer online roleplaying games (MMORPG), in which a large number of players interact with each other in real time online.

Among the most hyped virtual worlds is Second Life. Created in 2003 by Linden Lab in San Francisco, the social virtual world has no overall mission for players to accomplish. Participants visit Second Life to meet new people, “teleporting” to different villages, and doing many of the everyday things people do in the physical world. Many are entrepreneurs, marketing virtual world items they’ve developed. People sell goods in Second Life for Linden dollars and can cash them out for real money. As of March 17, the exchange rate was $1 to 248 Linden dollars. When Second Life opened its digital doors, people and companies ventured in, some looking to interact with other avatars, while others were paying thousands of dollars buying property and setting up shop. Was there real money to be made?

In a span of more than three decades, virtual realities transitioned from text commands that propel an avatar down a computer–simulated hall to fully immersive alternate realities, allowing players to hold voice conversations, build their own objects and structures, and, in some circumstances, earn actual income. But like most situations where money is at stake, the law follows closely behind.

In–World Law Practice
Sailor’s Cove is a relaxing waterfront community in Second Life, with cobblestone streets and New England–style homes bordering the dock. Quaint boutiques line the rocky coast, as avatars spend their days watching sailing events, yachting, or perusing the local bookshop. Sailor’s Cove is comprised of 21 private islands developed by Isabella Bentham, Tasha Kostolany, and Patrick Leavitt (all avatar names)—the last being the only owner on record with Linden Lab. In 2008 a dispute erupted between Leavitt and the other two “developers” when he attempted to assert ownership over the community and its assets.

Ross A. Dannenberg, an intellectual property (IP) attorney at Banner & Witcoff, Ltd. and a founding chair of the Committee on Computer Games and Virtual Worlds of the American Bar Association’s Section of Intellectual Property Law, represented Bentham and Kostolany in the real–world suit against Leavitt. The parties settled out of court. In a statement released at the time of settlement, Dannenberg said, “While Second Life may be a virtual world, the intellectual property is real, the contracts are real, and residents are still subject to real world laws.”

Virtual–world law is a growing field in the legal industry. According to an April 2007 Web feature in The Lawyer, Washington, D.C.–based Greenberg & Lieberman was one of the first firms to generate significant revenue from Second Life–related legal issues. Major law firms, including Banner & Witcoff, Pillsbury Winthrop Shaw Pittman LLP, and Sheppard Mullin Richter & Hampton LLP, among many others, have created practice areas devoted to 3–D Internet, video games, and computer–simulated environments.

And what virtual–world practice would be complete without a virtual office? Need a lawyer? Walk through Second Life and step into a real–world firm’s computer–generated office. Or spend a day in Justitia, home to the SLBA.

Launched in 2006, SLBA is open to attorneys and those interested in law. The organization aims to educate people about legal issues pertaining to Second Life and other 3–D simulated environments. It also offers a credentialing service that verifies if an attorney in the virtual world is licensed in the real–world jurisdiction where he or she is practicing.

Despite the presence of a legal community in Second Life and the credentialing service by the SLBA, practicing law in–world remains difficult and riddled with numerous ethical issues. Whether in the virtual or real world, the Rules of Professional Conduct still apply to attorneys to avoid sanctions by real–world bar associations, including the District of Columbia Bar.

“You have to underscore the fact that just like anything else in the electronic world, today there’s no real security or confidentiality that’s going to take place. People can overhear you. People can intercept your messages,” says J. P. Tangen, a mining attorney in Alaska who serves as president of the SLBA under the avatar name Sam4 Courtois. “[Attorney–client] privilege is not safe here in a Second Life environment. If you and I were to get together in Second Life and you wanted to talk to me about a legal problem, I think the first thing we’d do is take off the avatar and sit down and discuss it in person or over a secure telephone line outside of the Second Life environment.”

It’s similar to people mingling at a social event, when a person begins seeking legal advice from an attorney, but interacting in a virtual world adds complications. To the less savvy, a virtual office may appear to be a secure place to talk, but the potential to be monitored is higher than in the physical world.

“I switch in terms of communication—in–world communication to telephone—because I don’t want to have the possibility that Linden [Lab] is able to see a transcript of my conversation,” says Stephen Wu, a partner at Cooke Kobrick & Wu LLP and former president of the SLBA. He also used to teach a course on virtual–world law at Santa Clara University School Law.

In addition to privacy concerns, attorneys need to avoid unintentionally committing unauthorized practice of law and/or creating conflicts of interest. Stevan Lieberman, who goes by the name Navets Potato in Second Life and is a founding member of Greenberg & Lieberman, tells the story of a person who approached him in Second Life. The man lived in Arizona, his company was incorporated in Bucharest, Romania, and he wanted to create a contract with a Los Angeles company that would also protect his intellectual property. “I know the IP side really well, but this is a contract and contract is state law,” Lieberman says. “Not only that, state law [that] is going to have connections to Bucharest, connections to California, and connections to Arizona, none of which are places [where] I am an attorney.”

To ensure that he was within the guidelines of Rule 5.5 (Unauthorized Practice of Law) of the D.C. Rules of Professional Conduct, Lieberman brought in attorneys from the different jurisdictions to complete the contract. “I’m finding that I have to work with a lot of other attorneys on a cross–country basis, not just for that project, but for a lot of projects,” he says.

While practicing law in a virtual world may be difficult, there are benefits to being part of Justitia in Second Life. “We just had a presentation on copyrights in January. It was easy for presenters to have large–scale photographs available to demonstrate where the alleged violations were,” Tangen says. Its virtual courtroom provides speakers an easy platform to create visually compelling presentations. Attorneys can attend virtual continuing legal education (CLE) programs and receive credit without leaving their home or office.  

Virtual worlds also offer attorneys another networking tool, Lieberman says, who has found clients in Second Life, over Skype, and in other 3–D Internet environments. He is not alone. While not a significant portion of their clientele, Wu and Dannenberg also have found work through Second Life.

“One of the wonderful things about 3–D environments and the Internet itself is that it’s a great leveler. I have the ability to reach out and connect with people in any country in the world very, very easily,” Lieberman says. In one case, his firm needed help filing a domain dispute in China. Instead of going with one of the larger firms, he logged onto Second Life and found a solo practitioner who was able to do the work at a tenth of the cost.

Trouble With Imitation
IP infringement is among the most common virtual–world disputes. “The virtual world makes it complicated because it’s so easy to infringe somebody else’s work,” Dannenberg says. One of the presentations he makes during CLE IP programs shows the ease with which trademark infringement can occur. Within minutes of hopping online, Dannenberg can copy an image off Disney’s Web site and post it in his Second Life office.

But when dealing with virtual replicas of real–world goods, determining when infringement has occurred is not black and white. Dannenberg, along with cowriter Trevor J. Smedley, a consultant specializing in software and hardware code analysis for patent, trademark, and copyright litigation, explored this issue in 2011 in “Building a Better Mousetrap: If It’s Virtual, Can Its Patent Be Infringed?” published by the ABA’s IP magazine Landslide.[2] Thousands of patents for a real–life mousetrap exist, each covering how the contraption works, the materials used, and the specific positions of different pieces, among its many elements. They are often made of wood, springs, and metal. A virtual mousetrap has none of these materials—it is generated from a string of computer code. Both kinds, however, catch mice—the actual mousetrap reacting to the weight of a real mouse, the virtual one to a 3–D computer-simulated mouse made possible by “mathematical simulations of physical forces.”[3]

“If you have a patent [for] a real–world mousetrap, would a virtual version of that mousetrap infringe the patent?” Dannenberg asks. “There’s no clear–cut answer. It depends on how well the patent was written to whether or not it would be construed to read on virtual implementations as well as physical implementations.”

With these issues in mind, when Dannenberg works on a patent application, he includes language regarding a computer embodiment of the product, if applicable.

James Gatto, a partner at Pillsbury Winthrop and leader of the firm’s virtual worlds and video game team, agrees. “If you’re dealing with virtual goods or you have something that is amenable to someone else even creating a virtual good to replicate what you’re doing, it’s important to understand how to write your patent,” he says. “You might need to have two patents instead of one, or different claim sets. It’s important to understand what you can do to protect the functionality of virtual goods, for example. That may be different than the functionality of a real–world product even though they’re analogous products.”

Going after a trademark infringer in a virtual world is within a company’s rights, Lieberman acknowledges, but he believes there are gray areas. For example, an avatar could be selling virtual Rolex watches. “They’re not really selling a watch, not selling jewelry. They’re selling a digital image. They’re not selling the original image because the original image wouldn’t translate. They’re selling their rendition of that digital image,” he says. “Yeah, there’s copying, but there’s a certain amount of artistic creation there. Where’s the line that it’s too close?”

But is it even worth the time and resources to go after virtual infringers? With some exceptions, most people making money in 3–D environments earn only a few hundred or thousands of dollars each year.

“If I have a patent for an actual mousetrap that I sell to people … to kill real mice, that’s a real–world problem. If someone starts making a virtual model of that mousetrap … to kill virtual rodents running around Second Life, do I care? What are my damages?” asks Dannenberg. “I could care. They could be devaluing my trademark brand.”

Lieberman says companies may actually benefit more from allowing the digital replication of their products in virtual worlds rather than going after infringers. Referencing his example of virtual Rolex imitations, he asks, “Should Rolex go and file suit or should Rolex merely say, ‘Wow, that’s great advertisement for our physical products that sell for hundreds of dollars [in real world].’ … Rolex is perfectly within [its] rights to … stop it. There’s no question about it. I think they’re being very shortsighted.” Virtual worlds can very well be an advertising avenue. Adidas, Coca–Cola, L’Oréal, and Dell all have created advertisements for Second Life.

Lieberman has numerous ads of his own displayed throughout the virtual world. To avoid any copyright infringement, Dannenberg reached out to Alchemy Architects, the creator of the weeHouse design, which allowed him to model his Second Life office building after one of the company’s designs. Dannenberg simply included the company’s name and link to its Web site. “By recreating their weeHouse in Second Life, without authorization, that would otherwise technically be copyright infringement. Is it worth it to them to enforce? Probably not,” Dannenberg says. “Quite frankly, they’re getting advertisement out of it.”

Wu, however, thinks that not only is it within a company’s rights to go after in–world infringers, it is also key to protecting its patent. He pulls up a photo of his avatar Legal Writer in Second Life that he uses for presentations on IP law in virtual worlds. He’s wearing Ray–Ban sunglasses, a Beatles T–shirt, and a Rolex watch, and he’s carrying an iPhone. He’s surrounded by a New York Mets carpet, a New York Giants recliner, and a Red Sox banner. Everything cost him about $10 total, and he believes they’re all counterfeit.

He says rights owners need to police their rights now to avoid arguments from infringers against their companies’ future enforcement of trademark rights. “What I say is if the New York Mets doesn’t go after these people [in the virtual world] to shut them down, then a real–world infringer who is selling Mets caps or what have you can say, ‘You didn’t go after these people in Second Life. You’re sleeping on your rights. It’s laches. You’ve acquiesced in this infringement, therefore, you can’t enforce your mark against me, a real–world product seller,’” he says. “If a company is allowing others to run rampant and infringe on their marks or copyrights in the virtual world, why shouldn’t the same laches argument apply to subsequent infringers in the virtual or the physical world?”

He points to Herman Miller, the maker of Aeron chairs, which started selling virtual chairs with its mark in Second Life in 2007 to combat infringers. The chairs go for 300 to 600 Linden dollars ($1.21 to $2.42). In a statement to virtual world blog New World Newswhen the company opened its Second Life store, Herman Miller Director of Corporate Communications Mark Schurman said, “[T]he strength of legal trademarks and copyrights is directly linked to the holder’s rigorous defense of them—by ignoring infringement the holder weakens the value of the intellectual property and raises the likelihood others will choose to infringe.”[4]

Competing Copyright Claims
With the growing use of 3–D simulated environments, should IP law be strengthened to adapt to the virtual world phenomenon to alleviate “rampant infringement”? For Gatto, it goes back to writing a thorough patent claim. “For the most part, the general scheme works. It’s a question of people in the first place making sure they protect what they can protect. We see sometimes people not fully understanding what they can protect when it comes to virtual goods and virtual world stuff.”

A potential way to reduce infringement is to create an affordable dispute resolution mechanism within virtual worlds. “The problem is not that IP laws are not sufficiently strong. The problem is right now we’re dealing with an environment in which micropayments are the dominant form of payment for transactions. There is just not enough money to make the involvement of lawyers and litigation cost–effective in most cases,” Gatto says.

Larger companies have the resources, but conflicts between individual users tend to revolve around a few hundred dollars. To hire a lawyer to maintain a small stream of income comparable to or even less than the legal fees is not worth it.

Currently the most commonly used method of handling IP infringement in virtual worlds is the Digital Millennium Copyright Act (DMCA). Effective since 1998, the law aimed to curb copyright infringement as the digital era began to emerge. While some terms remain controversial, the notice and takedown provision is frequently used as a cost-effective way for people to protect their rights.

The act allows copyright holders to notify platform operators of alleged infringement and ask for the content to be removed. If the platform provider follows the correct steps, including registering with the U.S. Copyright Office, providing notice to the alleged infringer, and disabling access to the content, then it will likely be shielded from liability. The DCMA also offers copyright holders a less expensive method for protecting their rights.

While the DMCA has helped resolve numerous infringement battles, one of its pitfalls is the ability of a company to use the law as a weapon against a competitor. In 2010 Ozimals, Inc., a virtual rabbit breeder, filed a DMCA takedown notice against Amaretto Ranch Breedables, LLC, which creates virtual horses. Both make and sell their own virtual food needed to keep the virtual animals alive. Ozimals contended that Amaretto copied the functionality of its virtual bunnies and asked that Linden Lab take down the infringing content. Amaretto filed a counterclaim, arguing that Ozimals misused the DMCA to decrease competition by having content removed before actual infringement was established. If Linden Lab followed through on the takedown notice, the company’s viability would be threatened, essentially eliminating Ozimals’ competition.

In December 2010, Judge Charles Breyer of the U.S. District Court for the Northern District of California awarded Amaretto a preliminary injunction to keep its products up on Second Life until the case is resolved. (Wu offered no comment on the case, in which he served as counsel of record for Ozimals.)

In November 2012, Judge Breyer issued a summary judgment in the case dismissing in part Ozimals’ counterclaims, stating that the company does not have copyright ownership of the code that controlled the functionality of the virtual rabbits. In addition, the court dismissed Amaretto’s copyright misuse claims. According to a press release issued by Amaretto, the case will continue as the company seeks “attorney’s fees under the copyright statute as well as its unfair competition, defamation, trade libel, intentional interference with contract, interference with prospective business advantage and request for injunctive relief.”[5]

“The problem has been on both sides—the alleged IP owner and the alleged infringer—there has been abuse of the process whereby people are sending DMCA takedown notices against people for the purposes of stifling competition, and then you have people who are out and out infringers who file a put-back notice in bad faith just to put off the IP rights owners,” Wu says. “The onus is on the IP rights owner to bring a lawsuit.”

Amaretto Ranch Breedables, LLC v. Ozimals, Inc. is the exception to typical virtual–world dispute resolution. Most clashes involve individual users with limited resources and no viable solution to resolve them. The economic obstacles are huge. Lieberman suggests that players use a mediator or online dispute resolution services like virtualcourthouse.com. The Web-based service allows adversaries to work out their differences online to try to save the parties both time and money. Some virtual worlds also refer consumers to the American Arbitration Association.

For now, an in–world dispute resolution mechanism remains the stuff of fantasies. “Even if you were to come up with a decision in a matter, whether it would be like a criminal prosecution, judicial action, mediation, or arbitration, there’s no way whatsoever to enforce it except through voluntary consent of the person involved,” says SLBA president Tangen. “Linden Lab … has no interest in getting involved in the defense or support of any judicial or legal action in Second Life.”

Linden Lab will cancel a user’s membership if he or she is not in compliance with the company’s terms of service. But the site is free and people can easily obtain a new avatar name with a different e–mail address, so the hammer lacks punch against habitual infringers, harassers, and others who choose to break the terms.

Property Rights Issues
There are company–versus–user disputes. Company against company. User versus user. But what happens when the clash is between user and game maker? Lawsuits have cropped up against Linden Lab over virtual property ownership.

“Second Life was founded on the principle of what you create, you keep,” Dannenberg says. Users can spend thousands of dollars acquiring virtual islands, buying wardrobes for their avatars, and opening storefronts. They become invested not only monetarily but also emotionally in their purchases and creations in–world. With just a few key taps, a game maker can cut them off from everything they own in a virtual world, often citing that the user breached the terms of service. It’s like repo work where goods are taken away and owners have no access. In this case, instead of storage units, the items are located on servers.

In Evans v. Linden Research, Inc. the plaintiffs fought for their virtual property rights, arguing that by suspending their accounts, Linden Lab deprived them of their virtual goods. The company asserted that, according to its terms of service, the plaintiffs only had rights to the intellectual property of goods created in–world, but not to the goods themselves. So when users violated the terms of service, Linden Lab said it was within its rights to cancel the plaintiffs’ membership to Second Life. As of February, the case was still ongoing.

In disputes, game makers usually fall back on their terms of service, which all participants must agree to, but is rarely read, before joining. Linden Lab’s terms of service states, “You agree that Linden Lab has and may exercise the right in its sole discretion to pre–screen, refuse, or delete any Content or services from the Service or disable any user’s access to the Service without notice or liability to you or any other party, including upon our belief that such user’s conduct, Content, services, or use of the Service is potentially illegal, threatening, or otherwise harmful to any user or other person or in violation of our Terms of Service, Community Standards, or other policies.”

It’s rare for a consumer’s right to trump the terms of service. “You’re talking about a click–through contract, which is very much accepted in the United States and does trump most everything,” Lieberman says.

When it comes to virtual property rights, Wu says there are two arguments. “One is that the items that you are using in the game environment or the virtual world are not property. The other argument is that it is property, but you waive your rights,” Wu says. “If you either agree that it’s not property or you have no property rights in it, or it is property but you waive all your rights, in either case if the contract is binding …” you’ve given away your rights or you say you have no rights. That’s what service providers are counting on.

The terms of service is basic contract law, and while most are the end–all, occasionally the courts will agree that the terms themselves or certain provisions are unenforceable. In 2009 a Blockbuster user brought a case against the movie rental giant for its terms and conditions, which stated that Blockbuster could change the terms without notifying its customers. While the case does not involve virtual goods, a judge from the U.S. District Court for the Northern District of Texas ruled in Harris v. Blockbuster, Inc. that the company’s terms had overreached and could not be enforced.[6]

The pendulum of property rights ownership may shift to the user in the future, though, Wu says. In 1995 Stephen M. Cohen deceptively took control of the domain name sex.com, which was owned by Gary Kremen. Kremen sued to get Network Solutions to restore his ownership. Network Solutions took the position that the domain name registration is not property, but just a contractual right. “[They argued] it’s a creature of contract, so we can limit it. We can say you don’t have a right to this,” Wu says. The plaintiff took the lawsuit up to the U.S. Court of Appeals for the Ninth Circuit. “The Ninth Circuit said, no, there’s a property right in that domain name. I use that as an analogy to say that at some point, it may be that service providers will not be able to make the argument that there’s no property right in those virtual goods. You bought it. I bought my goods. If the company just deleted them from my account—took my property, so to speak—without compensation or without recourse, then I might have a claim.”

Assessing Value
The patent blue pumps for an avatar may cost $1. The virtual skinny jeans were on sale for $2. Fifty dollars’ worth of coins can be bought so a player can plant peas and buy land in Zynga’s FarmVille. According to a report by Inside Network Research, the U.S. virtual world goods market brought in an estimated $2.9 billion in 2012. So when a fight over virtual property begins, how do you determine value?

“It’s probably the $64–million question in connection with virtual goods…. In part it depends on the meaning of the word ‘value.’ Many people assume that means monetary value, and certainly monetary value is a form of value,” Gatto says.

Second Life makes that distinction easy because it allows the sale of virtual goods in its world. Money changes hands. Profits should be reported to the Internal Revenue Service for tax purposes. Other games like World of Warcraft, however, state in their terms of use that virtual items used in–world cannot be sold in secondary markets. “If there is value to a player in a game of the virtual good and you can’t sell the item, but the virtual good gives you an advantage over other players, when is that value?” Gatto posits. For example, in World of Warcraft players must go on numerous challenging expeditions before they can wield the legendary sword Thunderfury. It helps players move further in the game, but more than anything, it’s considered an achievement to obtain.

“Generally, if virtual goods are earned in a game, can only be used in the game, and the game is largely for fun’s sake, and there’s no authorized market to resell the virtual goods, people are probably going to be hard–pressed to find a value for those virtual goods,” Gatto says.

Two international cases, however, muddy the waters. In 2011 a hacker from the United Kingdom pleaded guilty to stealing 400 billion virtual poker chips (valued at over $12 million) from the Zynga servers. The chips are used to play online poker but cannot be cashed out or resold, according to the company’s terms of service. The defendant originally tried to argue that the chips had no value because they couldn’t be cashed out, but the courts disagreed, leaving the door open for the notion that a virtual good—legally worth nothing in real currency—might have value.

In 2009 two teens in the Netherlands were convicted of theft after beating a 13–year–old boy and forcing him to give them possession of his virtual amulet and mask used in the role–playing game Rune–Scape. One teen’s attorney appealed to the country’s Supreme Court, arguing that the items were “neither tangible nor material and, unlike for example, electricity, had no economic value.”[7] The court rejected that notion, stating that the amulet and mask had “intrinsic” value to the boy because he worked hard to earn them. While they were not “material goods,” the boy was able to lose possession of these items to the defendants. In upholding the theft conviction, the court wrote that it was of the opinion that these virtual goods are to be included in the concept of “goods”….[8]

Does adding a secondary market—whether authorized by a company or not—create value, though? Black markets for MMORPG weapons are scattered throughout the Internet. One user sold a World of Warcraft character with numerous swords and armors for about $9,000 in 2007.[9] “If there is a secondary market for virtual goods, someone could argue that there is value. If people are willing to buy and sell virtual goods and pay for [them], potentially there’s a value there,” Gatto says. “But the legal issue is not clearly resolved and counter arguments exist.”

While World of Warcraft strictly prohibits the resale of items forged in its world, other games like Diablo III have created authorized secondary markets. “When you have the unauthorized secondary markets, it seems like the court struggles with that a bit,” Gatto adds.

Time for a Virtual Constitution?
As virtual worlds become a greater part of reality and legal questions remain up in cyberspace, would virtual worlds benefit from a virtual constitution, a “We the Avatars?”

“I love the idea. A virtual constitution means that you’re essentially having a single constitution or a contract that covers all countries around the world. It’s the idea of a UN that really works—a UN that would have more power than all of the countries,” Lieberman says. But the obstacles are stacked high. “If we have such a hard time getting together and agreeing on some stuff that [are] pretty obvious as far as I’m concerned, we’re going to have a lot of problems getting a world congress together. It’s a dream. It’s a wonderful dream, but I severely doubt anything like that happens in our lifetime.”

Wu says a better system of property protections might be more plausible. “I do think that real-world legislation already does apply to virtual worlds,” he says. “People in virtual worlds may not want to acknowledge that, but how can they avoid the application of real–world law?”

For some, virtual worlds seem like a fantasy land, a place of unknowns, but for many, it’s an important interaction in their real lives. The people behind the avatars are real. The connections made are real. The disputes are real. Actions have consequences, whether in the real or virtual world. It is a world that can’t be ignored, particularly in the legal profession.

“Virtual worlds will in some form morph into something that will have important legal consequences. I don’t know exactly what form it will take. I don’t know exactly the way that we’ll perceive it. I don’t know whether it will be combined with the physical world like this augmented reality or whether there will be a self–standing synthetic world, but people are working toward the [holodeck],” says Wu, referencing the simulated reality facility featured on Star Trek.

In 2011 Microsoft Corporation filed a patent application for a 360-degree, 3–D display projector that can give video game players an “immersive display experience” by “projecting a peripheral image onto environmental surfaces around the user.” Google has filed documents with the Federal Communications Commission for its Google Glass device. The augmented–reality glasses would allow users to look up information on the Internet about any object in their line of sight or to take a photo. It would work much like a smartphone, but information would be displayed on the lenses.

“If the promise of the technology comes to pass, then physical reality will be just as immersive to our senses as virtual furniture, buildings, landscapes, and so forth, [and] as augmented [reality]. They will flow from one to another. The distinctions between them will blur,” Wu says. “If that’s the case, you say that means we need to protect our trademarks and intellectual property rights and images and sculptures. That means we have to be concerned about contracts that have to do with constructing virtual buildings or virtual additions to real–world buildings that you see when you look [at them] on your device or through your glasses or [that are] directly connected to your brain. Those are the different legal issues that are going to come about because of that. I think it could be quite transformative.”

Notes
[1] Mark Glaser, Your Guide to Virtual Worlds, PBS (Oct. 10, 2007), available at www.pbs.org/mediashift/2007/10/your-guide-to-virtual-worlds283.html.
[2] Trevor J. Smedley and Ross A. Dannenberg, Building a Better Mousetrap: If It’s Virtual, Can Its Patent Be Infringed? 3 Landslide (2011).
[3] Id.
[4] Wagner James Au, Preferred Seating: Herman Miller Offers Aerons to Residents … Ultimatums to Infringers, New World Notes (Oct. 8, 2007), available at http://nwn.blogs.com/nwn/2007/10/preferred-seati.html.
[5] Press Release Re: Amaretto Ranch Breedables, LLC v. Ozimals, Inc., Amaretto Breedables Customer Connection, available at http://amarettobreedables.com/connection/?p=4158.
[6] 622 F. Supp. 2d 396 (N.D. Tex. 2009).
[7] Online Game Theft Earns Real–World Conviction, Associated Press (Jan. 31, 2012), available at http://news.yahoo.com/online-game-theft-earns-real-world-conviction-133501758.html.
[8] Court Ruling in the RuneScape Case (2), MindBlizzard (Oct. 26, 2008), available at http://blog.mindblizzard.com/2008/10/ court-ruling-in-runescape-case_26.html.
[9] Most Expensive Items Ever Sold in an MMO, Altered Gamer (May 18, 2011), available at http://world-of-warcraft.alteredgamer.com/wow-other-items/29070-most-expensive-items-ever-sold-in-an-mmo.

Reach D.C. Bar staff writer Thai Phi Le at [email protected].