Networks and hierarchies II
Jack Balkin just gave a paper at NYU, “Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds,” and I was privileged to be there.
Jack's thesis, very roughly stated, is that as virtual worlds become more important we should have default rules (sort of a UCC for virtual worlds, which Jack quickly noted could be called the “UVC”) that provide frameworks for the rights and duties associated with life in the world. Having these default rules would be more protective of free speech values, which otherwise would be undervalued by the private parties involved in the worlds. In exchange for having adopted a particular framework, a virtual world designer would be shielded from tort liability. The central point he's making is that free speech values broader than our own US version of consitutional free speech (which gives you rights only against the government) should be protected, and virtual worlds give us the chance to do this.
This was a fascinating presentation. In response, people pointed out that we already have “ISP law,” in the form of 47 USC 230 and other safe harbors, but Jack adroitly responded that these statutes aren't rich enough to protect users' speech. Someone else noted that assuming that pre-defined “rights” could be imported into a networked virtual world is difficult, because a “virtual world” is defined by interaction, not by pre-defined hierarchy. And someone else pointed out that defining what is a “virtual world” in the first place is nearly impossible. Jack is a flexible and able polymath, and none of these questions was even slightly tricky for him.
At any rate, virtual worlds, as we now know them, combine aspects of networks (strong guilds, player relationships etc.) with hierarchies (presence of omniscient game gods). So rules will evolve and order will emerge from player/game interactions, but all of this bubbling activity is always subject to being wiped out by the guy at the top of the ladder — the designer.
I'm someone who thinks that the risks of trying to assign virtual worlds in advance to some regulatory category (leading inevitably to bad mappings and regulatory arbitrage) outweigh the risks of these erasures by the game designers. It seems as if virtual world gods will be careful to hang on to the subscribers they've got, and won't throw those relationships away by acting abusively. It further seems predictable that markets for rulesets will emerge as between the worlds (given both transparency and adequate competition).
But Jack (and no doubt others) are worried about speech being squelched, and private actors being beyond the reach of public law. People can be hurt in virtual worlds. So: anyone for the Uniform Virtual Code?