Virtual Policy and Law – Edinburgh Digital Interactive Symposium

The first Edinburgh Digital Interactive Symposium was held on 15 August 2007. It aimed to bring together academics and the “games” industry, to discuss topics from games industry innovation to policy in virtual worlds. The diversity of people these topics attracted was remarkable – from philosophers to corporate executives. It should come as no surprise that we all struggled to understand each other. Yet this was a group who merely by expressing their interest in such an event, tend towards curiosity.

This is the first set of notes from the Edinburgh Digital Interactive Symposium, covering virtual policy and legal issues. A second set of notes discusses innovation in the video games industry. These notes are my personal interpretation of what was discussed, not a transcript of the event.

Law

The lawyers are very excited about virtual worlds. Antonis Patrikios, from Field Fisher Waterhouse LLP, was speaking. At the most basic level, it’s a clean slate with no case law, yet almost endless contentious issues. You can almost see the dollar signs in their eyes. At one extreme there is a school of thought that wants to declare a new thread of international law – that is, to treat virtual environments as separate legal jurisdictions. At the other, the simple statement that real world objectives (and therefore regulation and law) will be directly applied to virtual worlds, without special consideration.

An example of one of the many crunch-points: If by “playing” I generate money-tokens (i.e., not necessarily legal currency, but having the same effect within the world they are generated), and someone does something that scams me of those money-tokens, do I have any rights in (physical) criminal law? If prior to bankruptcy, I move all my assets into a virtual currency, can the authorities recover them? One position is that I only have rights if the operators of the virtual environment allow me to legitimately transfer my money-tokens into real money. But it could be argued that if something is perceived as having value, it has value, even if it can’t be directly or legally (contractual law) monetarized.

Now, add to the equation the fact that the representation of the person within the virtual environment may not be traceable to a real legal entity. (There’s a major philosophical argument here too, that I’ll step over because I don’t understand it – although I’m told the fact I don’t understand it is fundamental to my ability to try – er, yes.) The one entity that always is traceable is the operator of the world – who of course have no legal structure themselves, since they are typically a business and not a civil authority. The anonymity issues may be solved technologically, but the very possibility that operators might get dragged into criminal cases triggered by what their users do, is pretty frightening.

The role of physical location of operators, technology (servers), and users gets even more complex than in the (already arguably broken) website/e-commerce model. Does intellectual property of things created in these worlds transfer to the user? Trademarks are defined territorially, yet where is this virtual territory? And is a virtual re-creation the same as a real product anyway? There are big US/EU differences here. For example, in the EU it is far harder to patent the implementation of an idea, rather than the idea itself. So a lot of software patents that exist in the US, don’t exist in the EU, since software is commonly just the technical implementation of an idea.

There’s an interesting aside here on when money becomes a currency, and when a game becomes a bank. In the UK, if you offer credit, you’ll drift into financial regulation. The question nobody can answer is when that provision gets so large it becomes a bank, or so popular it threatens an existing currency.

Policy

Chris Francis (IBM) attempted a basic differentiation between virtual games/worlds. He takes more of a policy perspective than others. You have to be able to quantify each virtual experience on a spectrum, otherwise everything from simple online games to open real-currency trading platforms will be seen as the same thing in any regulatory debate. There are four factors, each of which covers a spectrum of topics. Generally the further to the left you are, the more like a game (and hence the most likely to avoid regulation), the further to the right, the more like real life (and so the more likely to be regulated):

Economy/tradability: In-game “gold” <<—>> Real money.
Identity/communication: Text <<–> Voice <–>> Accountability.
Plot: Scripted <<—>> Freeform.
Data flow: Augmented virtuality <<—>> Augmented reality.

Augmented virtuality I didn’t quite understand as a concept, but I’d interpret it as the re-creation of augmented reality concepts into an inherently virtual setting, rather than a real-world one. The interesting current topic is voice. Voice is a significant shift into the realm of communications legislation, since voice is widely understood to be communication, while text is a grey area. It follows that in introducing voice clients within games, game operators are more likely to open themselves up to regulation. I don’t think the games industry had considered that.

William Garrood spoke from Ofcom, the UK communications regulator. In the EU, active regulation is currently focused on television-like services, particularly using the radio spectrum for transmission. Electronic Communication Services legislation first appeared in 1998, passed into EU law in 2000, and has slowly been added to law across EU states. (It is worth noting that the regulatory cycle is almost 10 years, the academic cycle for studying it all is 3 years, yet 6 months is a typical industry timescale to deploying new technology in the arena.) The current legislation could allow virtual worlds to be regulated, at least in part – but nobody is yet. This was intentional in the design of the legislation: The EU agenda is to move away from regulation – there is a desire to try and foster self-regulation.

The EU may be regarded as a lower-risk environment than the US, simply because the US has no apparent boundaries – yet a litigious culture that will make discovering those boundaries expensive, and arguably will resolve them in favour of the dominant industry. The EU has a structure that is likely to “step in” if it looks like everything is going to hell in a handcart.

Ofcom is quite focused on the BBC‘s traditional territory: Supporting “socially valuable content” in virtual environments. They already have a strategy called the Public Service Publisher. They’re aware that young audiences, in particular, are moving away from television, and are looking to fill the “post-TV gap”. It’s positive regulation, although how it works in practice is unseen.

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