“Our dreams are a second life.” ~Gerard de Nerval
Did you know that there is a Second Life Bar Association? As virtual world technology improves and these environments, including Second Life, become more complex, it is not surprising that legal issues will arise that were previously never imagined. In fact, SL disputes have already found their way to RL courtrooms. In this article for DC Bar, Thai Phi Le introduces us to the SLBA and discusses how residents of virtual worlds, and their legal representatives, might approach intellectual property issues, copyright, inworld ethics and the Rules of Professional Conduct, virtual property rights, Terms of Service and basic contract law; and the possibility of an avatar “bill of rights”.
On 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?
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. 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.
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.
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. 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.”
“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…
All photographs from SLBA in Second Life.