Law of the Game is typically about intellectual property and business law type matters, expanding at most into the civil arena. However, due to the incomprehensible number of news stories about Second Life rape, the blog will be taking a short detour into the world of quasi-criminal law.
The common denominator between these articles is their approach to the analysis of so-called "Virtual Rape." (Although some draw lines between virtual sexual harassment, stalking, and rape through so-called "voodoo dolls," all are dealing with the same over-arching concept.) I think many of them have missed the point. So, rather than start with what occurs in Second Life, let's start with what occurs in First Life, i.e. the real world.
There are really two kinds of rape: Traditional forced intercourse and Statutory rape. Both could theoretically occur in a virtual world, so each should be looked at individually.
Statutory Rape
Statutory Rape is "a sexual act that is considered rape by the law regardless of whether it was coercive or consensual." In most jurisdictions, this would be like a 30 year old having sex with a 13 year old. The law protects the child because consent is not necessarily valid and because there is a moral stance against the action.
Can this occur in Second Life? Well, it can. Teens are supposed to be segregated to the teen grid, but either an adult posing as a teen or vice versa could theoretically be on the wrong grid. If said impostor has cybersex with someone of a radically different age, it could in fact be statutory rape.
Or is it? No sex is actually occurring. While the pedophile in question may be slapped with all sorts of indecency charges, I have yet to see any prosecution in the US for statutory rape based entirely on cybersex, and if such a prosecution had occurred, I'm sure certain websites would have posted it by now.
Traditional Forced Intercourse
Traditional rape is generally defined as forced intercourse without consent. Under the voodoo doll scenario posted on Virtually Blind, a rape is possible, in that forced intercourse occurs. So, people in Second Life can get raped.
Or can they? Typically, a player has to install or activate some element of code to enable the rape. By this simple action, are they not consenting? And if they are volunteering, then the act is not rape. Even if the code is maliciously installed, like a virus, Second Life rape and real life rape have one major difference: In Second Life, you can always pull the plug. Turn off your computer. Disconnect from the server. Walk away from the monitor. There are many, many points of egress that a real rape victim is not afforded.
Conclusion
In short, Second Life rape isn't really rape at all. It's not a nice thing to do (assuming it's the effect of a virus and not voluntary as opposed to people who buy into it), but it's certainly not a crime. However, that is not to say that some real crimes may not come from stalking that originates in Second Life, or leaks of personal information, but until it crosses the boundary to have a real, tangible criminal effect in the real world, like stalking or identity theft or burglary, it's not anything more than a pseudo-crime. As such, I would hope the police find something better to do than investigate rape in Second Life, such as investigate rapes and murders in real life.
Showing posts with label General Law. Show all posts
Showing posts with label General Law. Show all posts
Wednesday, May 9, 2007
Friday, May 4, 2007
Virtual Goods and Consumer Protection
In Response to:
Uk gov't urged to act on 'virtual goods': Anti-fraud laws should apply to Second Life
I have dealt with a wide variety of consumer protection issues in my career, primarily ones dealing with franchising. Consumer protection, in general, is a double edged sword: on the one hand, naive consumers should be protected from frauds; on the other, government regulations do not always work as planned and always inevitably lag behind real world progress. With the evolution rate involved with online commodities and virtual goods, the gap between the world the regulations are designed for and the present reality will always be vast. I, however, will grant that some sort of consumer protection needs to exist. I would propose, rather than allowing government regulators to handle the situation, the creation of a multi-national regulatory body to handle issues in virtual goods. The body would basically parallel a licensing board (much like doctors and lawyers deal with) that can adapt its rules at a much faster pace to conform to the reality of the business, but at the same time have the ability to censure members.
The first step would be the creation of the body with some recognition by governments. The only real restriction that the governments need to authorize is that in order to be a virtual commodity supplier and/or broker, you must be licensed by the board. This would mean that games that wish to have real world currency transactions, such as Second Life, must be registered. Additionally, if someone wanted to act as an independent virtual goods broker (a profession which will undoubtedly appear in the not too distant future), they must be registered as well. The exact details of license requirements would have to be detailed by the board. More than likely, games without real-world transactions (i.e. Word of Warcraft) would be exempt from registration and licensing.
Ultimately, then, the board has the responsibility to field complaints issued about their members. Upon review, the board would be free to fine members or suspend licenses, just like bar associations and medical boards. Assuming the policing is adequate, the consumer protection desired would exist without bogging the entire system down in government action. Moreover, the board would be able to address new technological issues as they emerge, whereas a government would be horribly behind and lack the experts to completely understand the problem (not to mention the partisan political element and typical inter-nation bickering).
Uk gov't urged to act on 'virtual goods': Anti-fraud laws should apply to Second Life
I have dealt with a wide variety of consumer protection issues in my career, primarily ones dealing with franchising. Consumer protection, in general, is a double edged sword: on the one hand, naive consumers should be protected from frauds; on the other, government regulations do not always work as planned and always inevitably lag behind real world progress. With the evolution rate involved with online commodities and virtual goods, the gap between the world the regulations are designed for and the present reality will always be vast. I, however, will grant that some sort of consumer protection needs to exist. I would propose, rather than allowing government regulators to handle the situation, the creation of a multi-national regulatory body to handle issues in virtual goods. The body would basically parallel a licensing board (much like doctors and lawyers deal with) that can adapt its rules at a much faster pace to conform to the reality of the business, but at the same time have the ability to censure members.
The first step would be the creation of the body with some recognition by governments. The only real restriction that the governments need to authorize is that in order to be a virtual commodity supplier and/or broker, you must be licensed by the board. This would mean that games that wish to have real world currency transactions, such as Second Life, must be registered. Additionally, if someone wanted to act as an independent virtual goods broker (a profession which will undoubtedly appear in the not too distant future), they must be registered as well. The exact details of license requirements would have to be detailed by the board. More than likely, games without real-world transactions (i.e. Word of Warcraft) would be exempt from registration and licensing.
Ultimately, then, the board has the responsibility to field complaints issued about their members. Upon review, the board would be free to fine members or suspend licenses, just like bar associations and medical boards. Assuming the policing is adequate, the consumer protection desired would exist without bogging the entire system down in government action. Moreover, the board would be able to address new technological issues as they emerge, whereas a government would be horribly behind and lack the experts to completely understand the problem (not to mention the partisan political element and typical inter-nation bickering).
Wednesday, April 25, 2007
A Short Post on Jack Thompson
Like most of the other legal gaming blogs, I occasionally find it necessary to comment on the activities of attorney Jack Thompson (as of this posting, he is still licensed in Florida). As a courtesy to another member of my profession, I will not delve into his long history with the gaming industry or the gaming community, or the series of statutes he has sponsored which have been struck down. On a basic level, I agree with him that titles with adult content should not be placed in the hands of children (I, however, disagree on the implementation and place a greater responsibility on the parents, but that is a separate matter for discussion at a later date).
However, today Jack issues this complaint, which was reposted by Kotaku. I have now forced myself to read it in its entirety, and it falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade (not to mention the occasional typographical error, the first of which I found on page 5). While I could probably write an entire post critiquing his form and use of language, or all of the complaints he lists, I will rather focus on the specific complaint against Kotaku.
A short comment before I begin: I am not licensed in Florida, but as this is a federal claim, I feel competent to comment on it. Moreover, this is merely commentary, nothing more, and I do not claim it to be definitive, exhaustive, nor to have any actual legal effect. These are simply my observations on the matter.
Why this claim? Well, first, it's not a claim at all. Let's look at the specific statutes he references.
18 USC 241 and 242
This statute, most notably, is a criminal statute. The basic premise of criminal law is that it is not a private action. When someone violates a criminal statute, it is the job of the government to bring charges and try the suit. If you were to assault me, I could only bring a civil suit. The District Attorney (or a similar official) would have to bring criminal charges. His reference to the statute is misguided at best.
42 U.S.C. § 1983
This is a civil claim, but once again, Mr. Thompson has missed an important element of the statute: The entity must be operating under color of law or authority. Here is a lengthy article on the statute. I can see no stretch of the imagination under which Kotaku or Gawker could be viewed as operating under the color of state authority or law.
42 USC § 1985 (3)
Under Griffin v. Breckenridge, 403 U.S. 88, the bias of the conspirators must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Jack does not have any of these, unless he wants to claim that somehow Kotaku is discriminating against the class of people he claims to represent. Rather, I believe most reasonable jurists would see their actions as non-conspiratory (as conspiracy is an essential element) and non-discriminatory on a class level.
Section 1988 is not worth discussing, as it only allows for attorney's fees in the event of a victory. There is no substantive issue to discuss.
Conclusion
While I can't say how this case will turn out, I am at least glad that Mr. Thompson had the common sense to avoid a libel/slander claim against Kotaku, which would have likely failed as Mr. Thompson is undoubtedly a public figure. While many of these claims are relatively novel, they also seem to be relatively poorly constructed as a way to include a blog he particularly dislikes.
As a side note to anyone who wishes to pick up a cause as Mr. Thompson has:
Sensationalism will typically not yield the best results. Being reasonable and agreeable to compromise generally works much better.
Digg This Post
However, today Jack issues this complaint, which was reposted by Kotaku. I have now forced myself to read it in its entirety, and it falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade (not to mention the occasional typographical error, the first of which I found on page 5). While I could probably write an entire post critiquing his form and use of language, or all of the complaints he lists, I will rather focus on the specific complaint against Kotaku.
A short comment before I begin: I am not licensed in Florida, but as this is a federal claim, I feel competent to comment on it. Moreover, this is merely commentary, nothing more, and I do not claim it to be definitive, exhaustive, nor to have any actual legal effect. These are simply my observations on the matter.
Why this claim? Well, first, it's not a claim at all. Let's look at the specific statutes he references.
18 USC 241 and 242
This statute, most notably, is a criminal statute. The basic premise of criminal law is that it is not a private action. When someone violates a criminal statute, it is the job of the government to bring charges and try the suit. If you were to assault me, I could only bring a civil suit. The District Attorney (or a similar official) would have to bring criminal charges. His reference to the statute is misguided at best.
42 U.S.C. § 1983
This is a civil claim, but once again, Mr. Thompson has missed an important element of the statute: The entity must be operating under color of law or authority. Here is a lengthy article on the statute. I can see no stretch of the imagination under which Kotaku or Gawker could be viewed as operating under the color of state authority or law.
42 USC § 1985 (3)
Under Griffin v. Breckenridge, 403 U.S. 88, the bias of the conspirators must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Jack does not have any of these, unless he wants to claim that somehow Kotaku is discriminating against the class of people he claims to represent. Rather, I believe most reasonable jurists would see their actions as non-conspiratory (as conspiracy is an essential element) and non-discriminatory on a class level.
Section 1988 is not worth discussing, as it only allows for attorney's fees in the event of a victory. There is no substantive issue to discuss.
Conclusion
While I can't say how this case will turn out, I am at least glad that Mr. Thompson had the common sense to avoid a libel/slander claim against Kotaku, which would have likely failed as Mr. Thompson is undoubtedly a public figure. While many of these claims are relatively novel, they also seem to be relatively poorly constructed as a way to include a blog he particularly dislikes.
As a side note to anyone who wishes to pick up a cause as Mr. Thompson has:
Sensationalism will typically not yield the best results. Being reasonable and agreeable to compromise generally works much better.
Digg This Post
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