patrick stephens at psjs.net

Following up on yesterday’s item about virtual theft is a story about virtual murder in Japan. (Again, from Eugene Volokh.)

Like the theft, this virtual murder was accomplished through the use of real-world force.

A 43-year-old Japanese piano teacher’s sudden divorce from her online husband in a virtual game world made her so angry that she logged on and killed his digital persona, police said Thursday.

The woman used login information she got from the 33-year-old office worker when their characters were happily married, and killed the character. The man complained to police when he discovered that his beloved online avatar was dead.

Volokh argues that,

Had she engaged in the “virtual killing” from her own account, by using a feature of the game that made such action possible, or even exploiting a bug in the game that made such action possible, it seems to me that this would just be an interesting extra twist in the game’s narrative. Such action should be dealt with by whatever mechanisms the game’s operators provide (perhaps including expulsion of the misbehaving user, if the operators view such conduct as misbehavior), or at most by a breach of contract lawsuit for violating any user license agreement terms — not by the real-world criminal law.

One interesting aspect of this is the amount of harm caused. In the virtual world (Maple Story, in this case) it should be possible for the administrators of the game to restore the dead avatar to life. In which case, the harm inflicted by the virtual murder amounts to at most a few days lost playing time. (And as it happens, Maple Story is free to play.)

This is a great example of the kind of issues that in-game, virtual courts could help resolve conflicts. The game has officially sanctioned marriages, creating invitation and reception mechanisms and even going so far as to reward the marrying couple with wedding rings. But the game did not provide a mechanism for divorce. The AP story is thin, but it seems as though some in-game mechanism to resolve disputes may have mollified the virtual wife.

Again, these cases are currently oddities only because the amounts of money involved in the disputes is still small. But the value of virtual goods will continue to rise, and as they do, these cases will become more common and more serious. (Maple Story is free to play, but players can purchase in game currency and special items by buying Nexon cash with hard currency.)

One absurdity: Maple Story prohibits “same-sex” marriages. Presumably because they think it would be wrong for two 12 year-old boys to virtually marry. Unless one is pretending to be a girl of course. Then it’s OK.

Law, Philosophy gay marriage, virtual worlds

From Eugene Volokh at, well… at Volokh.com

A Dutch court has convicted two youths of theft for stealing virtual items in a computer game and sentenced them to community service….

The Leeuwarden District Court says the culprits, 15 and 14 years old, coerced a 13-year-old boy into transferring a “virtual amulet and a virtual mask” from the online adventure game RuneScape to their game accounts.

“These virtual goods are goods (under Dutch law), so this is theft,” the court said Tuesday in a summary of its ruling….

Now this might sound odd — why should the legal system police “virtual theft,” especially since the ability to steal, defraud, and the like within a game may be an important part of the game? But things become much clearer when one reads the longer story, from Radio Netherlands Worldwide:

The culprits, who cannot be named due to their age, kicked, hit and threatened their classmate with a knife before the 13-year-old gave in and transferred the Runescape items, an amulet and a mask, to his attackers’ online accounts.

He makes the point that in this case real harm was done and so the ruling isn’t really all that surprising or notable. But he also says, “I continue to think that generally speaking the law shouldn’t prohibit purely in-game “theft,” “murder,” “rape,” and so on.”

I wonder.

Virtual economies are growing ever larger and more influential. The exchange rate for World of Warcraft gold (based on some admittedly back of the envelope calculations) is somewhere around 2.8 cents per gold piece, which means that one WoW gold is equal to about half a Yen.

At that rate of exchange, it’s common to find virtual items with significant real-world exchange value. If in-game theft or fraud robs a person of significant real-world value, I’m not sure that should exist outside the scope of law. Right now, the issue is complicated by terms-of-service agreements that generally prohibit selling virtual items for real cash, but such restrictions are not universal. At some point (sooner than later, I think), virtual fraud and virtual theft will rise to a level of actual harm that will be impossible for real-world law to ignore. I think the question of jurisdiction will be particularly interesting, as will be the development of virtual courts and virtual arbitration.

The largest virtual game worlds make for fascinating social laboratories. Since the worlds are essentially completely planned economies under the control of autocratic rulers with god-like powers, it’s especially fun to watch them struggle with the classic problems of a managed economy, like inflation. Friedrich Hayek would have loved World of Warcraft.

He’d have been a Gnome Tinker, of course.

Also, check out The Synthetic Worlds Initiative at Indiana University.

Law, Philosophy Hayek the Gnome, Law, virtual worlds

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

Law, Politics 2008 Election, Barack Obama, justice, Supreme Court

The U.S. Supreme Court today affirmed the lower court’s ruling in District of Columbia v. Heller.

The ruling essentially affirms that “the Second Amendment protects an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.” Scalia’s opinion (joined by Alito, Kennedy, Roberts, and Thomas) clarifies the meaning of the Second Amendment to the Constitution but allows significant latitude for regulation and gun-control. The ruling is largely silent on the issue of incorporation, although it hints that it would likely decide in favor of incorporation should the issue come before the court. Expect a challenge to Chicago’s ban to be formulated within the year.

I’m not an avid follower of the court, and I only occasionally read the opinions in full, so I was struck by Scalia’s often combative tone and his contemptuous dismissal of Stevens’s dissent. I agree that Stevens’s arguments regarding the definition of “to keep and bear arms” are tortured and forced, and I do think that Stevens’s position is wrong–as it pertains to law, philosophy, and history. (I enjoyed Scalia’s destruction of the argument that the idiomatic use of “arms” would control in the latter half of “to keep and bear arms” while the conventional usage would control in the first half. Scalia likened it to saying that a man, “filled and kicked the bucket.”)

All in all, the decision does as much as I thought it might: it affirms a limited individual right to own and use ordinary weapons for legitimate purposes disconnected with formal military service. It opens the door for further rulings clarifying the bounds of the right and–possibly–incorporating it (which I would applaud: the enumerated rights mean little if they are no safeguard against the tyranny of the respective States).

What did bother me was Breyer’s dissent. His argument rests on the idea that the court should rely on an “interest balancing” test in its evaluation of constitutional guarantees. Essentially, Bryer is arguing that if the court or the legislature finds a compelling interest in vacating a portion of the Constitution, it is wholly within their rights to do so. That of course, renders the Constitution meaningless. Scalia’s response to Breyer’s dissent: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” If the people find a provision of the Constitution no longer workable, there is a means by which they can correct the Constitution: by amendment. In the absence of amendment, however, it is the legislature’s responsibility–and the court’s obligation–to protect and defend the Constitution as it written.

One final note: I find it, frankly, nearly impossible to imagine the founders agreeing with the dissent. David J. Schenck makes the point clearly on scotusblog.com,

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

The arguments Justice Stevens marshals in his dissent are tortured and seem–at least to me–entirely a-historical. The Stevens dissent strikes me, for that reason, as slightly duplicitous. The Breyer dissent is the more honest argument. Breyer acknowledges that the intent of the founders is largely irrelevant in his analysis, whereas Stevens seems willing to twist history and logic to support his position.

The debate, after all, has never really been about what the founders meant, but rather if we cared what the founders meant. Either the Constitution constrains the government or it does not. Breyer’s position is that it does not. And that’s a position that I find deeply troubling.

Law Heller, Second Amendment, Supreme Court

Eric left a comment on my previous post that prompted a lengthy response. I’ve decided to post my response as a post on its own.

Beware what you wish for.

With new media distribution comes new media tangles. The mix-tape freedom that we enjoyed when we were teens is being threatened by new business models. This new lawsuit isn’t designed to protect DRM — it’s designed to protect revenue streams. Amazon is great, but the RIAA members make money from Amazon. They don’t want us burning CDs because that keeps us from spending money at Amazon.

The problem is that the music publishers are important. Radiohead’s pay-as-you-wish music strategy was successful because they were able to capitalize on a large, distributed network of fans — fans that were acquired in large part due to the efforts of the music companies that Radiohead has now forsaken.

I don’t cry for the publishers; they made plenty of money off Radiohead. But your local garage band — no matter how good they are — can’t match Radiohead’s success. The music companies provide artists with distribution and, even more important, promotion.

Amazon, iTunes, Rhapsody — those are all distribution channels that feed into the RIAA revenue stream, and the RIAA will defend its revenue stream. The internet has changed the method of distribution, but it hasn’t (yet) eliminated the need for promotion.

I expect, over-time, the terms of publishing contracts with artists will change very little. I expect that artists will receive — on average — a greater percentage of revenue, but less revenue over all. As with book (and film) publishing, we’ll see more massive blockbuster hits accounting for a greater percentage of overall profits, while at the same time we’ll see more and more product being delivered to the consumer.

The question is how we monetize that product. If music follows the publishing industry, we’ll see big bands subsidizing the promotion of smaller bands, which may not be such a bad thing. Internet distribution will increase, as will internet promotion. But music companies will remain players so long as they can continue to help match an artist with his audience. The opening, as I see it, is for an association of musicians to band together and create an “artist-owned” promotional agency. With the costs of production declining, musicians would record and produce their own material, and then submit that material to the agency who would act as a marketing and promotional firm, as well as a clearinghouse for distribution. (Sounds like a money-maker to me! Who’s with me?)

But in the near term, I think a lot depend on political will. Copyright law needs amending, and it will certainly be amended during the next administration. But how will it be amended? Politicians being what they are, it will be amended in ways favorable to the RIAA. Regardless of who wins the election.

Economics, Law, Philosophy copyright, digital music, RIAA