Wednesday, June 27, 2007

Tales from Second Life

As some of you know, I have an avatar in Second Life. She has a writing job there, a store, and her own blog, called TheLemonPrincess. She also freelances for The Avastar. Sometimes she needs an outlet for her writing that isn't connected with her book store or her fiction and is too long or involved for The AvaStar, so she asks me to post it here, under my own name. Since it's about law, which I know a few things about, I've obliged. So here it is.

Do Avatars Have Standing?

In his 1974 book, environmentalist Christopher Stone asked, "Do Trees Have Standing?" He said reality is created mostly by the language we use to describe it. So if trees had legal standing, like people do, forests could sue to protect themselves from destruction. But trees -- like avatars -- are not reified. They can't sue. Yet at the same time, corporations hold the elevated legal status of "personhood," because our legal system grants such rights to them. It's good for commerce, and commerce is more sacred than religion.

(Really. Article I, Section 8, Clause 3, of the U.S. Constitution, known as the Commerce Clause, is in the first meaty bit of our national scripture and the part that deals with freedom of religion is tucked away in the amendments they passed four years later, when they decided to protect individuals from the inevitable nasty side of the government they created originally. Also, they started to think, how well will commerce profit the owners if the peons of the world aren't guaranteed odds decent enough to make them want to play the house's game? So they amended the constitution by sticking on The Bill of Rights in 1791, which contains the part that stops the goverment from messing with you if you want to practice your religion. It came afterwards.)

Human owners of entities like SL are shielded from responsibility from all sorts of things that the rest of us mere mortals have to answer to, because we live in a great country which favors commerce and you can't have it all gunked up by people who would be adverse to novelties they might later have to be personally responsible for, to the point that it creates economic paralysis. Enter the corporate veil. So where does that leave the lowly avatar? What does Drivel Pivets do when things don't quite turn out the way Second Life's autocratic owners represent? Virtually, nothing. He ceases to exist, and the bumbling man behind the curtain soldiers on.

But it aint all bad. Despite the fact that not long ago, the Second Life City of Neufreistadt deleted from its constitution a provision which would have established a judiciary, we were reminded that there are judiciaries in the real world and we already are subject to some pretty good law. Says avatar Navets Potato (pictured at right in his SL office): "I have been talking to a bunch of people about arbitration and court systems here in SL. I am not all that enthused by the in-SL court system, but like the arbitration idea lot. Or mediation." Navets Potato navigates both worlds, and his SL profile references his real world law firm. Meanwhile Potato confirms he's getting RL clients from contacts made in SL, to the tune of $7,000 US in two weeks, as one article reported.

Enter Pennsylvania lawyer and former SL resident Mark Bragg. Last year he sued Linden Research, Inc. and Philip Rosedale for confiscating his avatar's property when it closed his account for his clever if naughty method of auctioning of SL land. Until recently it was unresolved whether Bragg could sue Rosedale (aka Philip Linden), and whether fraud would trump the site's Terms of Service (TOS) agreement. His only bankable remedy depended on beating the arbitration clause. Pricey arbitration, not the customer-friendly kind (>$5,000 just to file!) and you had to go all the way to San Francisco to do it. "Economically pointless," said Bragg's lawyer, Jason Archinaco, as it would be for most consumers. His case awaited ruling on several issues before it could go forward.

In a March 27 filing, Bragg quoted Rosedale's recent reaffirmation of the notion that SL residents acquire genuine property rights, i.e., that they aren't just playing a game: "You know, people need to own their own things, and they need to be able to do with them what they like, and that's part of the basic appeal."

(BTW, difficulties deciphering what owners' rights actually are explains, in part, why the original sale of virtual Amsterdam in SL fell through. Reportedly buyers weren't familiar with key concepts -- such as having the vendors on the sim retain their rights.)

So is Linden Pied Pipering its users into a dangerous legal riptide? Yes. In an interview published on May 17, Rosedale said something new, and contradictory: "What we are really selling you is computation. We are selling you CPU core. If you buy a 16-acre piece of land, which is about four city blocks, what you are renting is one processor." A processor which can be taken down, or collapse, at any time. Apparently, this intellectual property thing is just an illusion. Not a reality.

Archinaco says this: "What they don't want you to know is they're moving to liquidity. With arbitration, they have confidentiality. They can keep quiet about moving away from land value." In other words, the eventuality of letting outsiders create their own land is like letting anyone print their own money. "People's so-called property rights evaporate but they can't just do that," opines Archinaco, who has no active SL avatar. "While the [Bragg] case stays open they're being nice to everyone."

Heroclitis presaged Linden Labs and Philip Rosedale when he said, "No man ever steps in the same river twice, for it's not the same river and he's not the same man." Greek philosophy doesn't go over that well with the courts. On May 30 the federal court in Pennsylvania ruled on two early motions by Linden in the Bragg case: first, that Philip Rosedale's (alleged) misleading statements mean he can be personally sued in Pennsylvania, i.e., the federal court has personal jurisdiction over him; and second, that Linden's TOS arbitration provision can't be enforced, based on all sorts of unfair, one-sided, adhesionary conditions. The case will now go forward. Here's the decision:

So there. Thank you Mr. Bragg.

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