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Bring Me the Head of Philip K Dick! : New Forms of Virtual Property

Lilian Edwards

Professor of Internet Law, University of Southampton, and Associate Director, AHRC Centre for IP and Technology Law

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GikII Workshop

Edinburgh, September 2006

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What is Property?

  • Roman law/Civilian law/English law
  • Tangible property
    • Heritable/real property
    • Moveable/corporeal property
  • Intangible property
    • Intellectual property
    • Goodwill, trade secrets
    • Personal rights/choses in action
    • Virtual property?
      • Property in MMORPGS
      • What else?

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Eg : Virtual property in MMORPGs

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MMORPG Virtual Property

  • “Property” acquired in MMORPGS like EverQuest, Ultima Online, World of Warcraft etc
  • Eg Entropia virtual space station auctioned for £57,000, Nov 2005
  • Castronova estimates market at $2.7 bn in 2006
  • Major US academic concern has been for rights of “virtual personae” – Hunter and Castronova –a “human rights” issue on “private land”
  • Major practical concern has been right of virtual world platforms to control existence and transfer of such VP “rights” by EULA/ToS
  • But what ARE these rights? Not traditional IP.
  • Private contractual rights
  • Need for public regulation? Standard terms contracts – consumer protection in EU?
  • Cheating or fair game?

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But what else?

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But what else?

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1. Rights in avatars

  • An (un-)conventional extension of personality rights?
  • Issues:
    • No global harmonisation
    • Clashes between “persona” and owner of intellectual property/EULA in game/platform?
      • Cf Wendt and Ratzenberger v Host Int 1997
    • Loss of cultural “public domain” – Andy Warhol, The Simpsons, etc?
      • See dissent in White v Samsung 1992

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How far should such rights go?

  • Dogan and Lemley, Carty, argue public interest does not justify economic incentives to create more celebrity (cf copyright)
  • Moral/natural rights in personality?
  • Do not libel/privacy laws already cover dignitary harm? Are economic rights justified?
  • If so, for the dead as well as the living? See Connecticut Paul Newman bill.
  • Should “real life” avatars/robots get special protection for original “persona”?
  • For non-entities as well as celebrities?

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Don’t lose your head..

  • “Robot”: Animatronic head, sculpted likeness
  • Programmed with all of PKD’s novels
  • Some AI programming to enable Q and A
  • ? Consent of PKD estate
  • Is he a celebrity?
  • Who own IP/”property” rights?
  • Public interest?

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2. Virtual reputations

  • Reputation on sites such as eBay and SlashDot created by user feedback
  • Transferable/Saleable to 3rd party?
  • Technical problems – trans-site portability? Reputation 2.0? See iKarma, Opinity
  • Legal problems even intra-site – eBay ToS
  • Does non transferability in contract EBay -> A affect A -> B? Will vary by legal system, and perhaps quality of what is sold.
  • Should eBay control this asset, or the user?
  • What is the public interest? What underlies the “reputation”? Fraud?

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Extra commercium? Who says?

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3. Zero day exploits

  • Code which exploits software vulnerabilities or “bugs”
  • Underground market clearly exists – criminals, government
  • But also “white” markets
  • Auction eg of Excel vulnerability on eBay – to expose M$ insecurity?
  • At least 2 companies openly buy and sell exploits – iDefense (now VeriSign) and Tipping Point. Disclosure made to affected company however.

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Legal issues

  • What is sold? An “IP right”?
  • Probably an NDA/contract
  • Is it copy or derivative work of original copyright work? Reverse engineering?
  • Might be “trigger” not software at all
  • Public interest: Is it sale of a criminal product? Dual purpose cf encryption, guns?
  • Should it be property of original author of buggy code? Do they have prior or “moral rights” – some kind of integrity right (cf typos in books)?
  • Economic work (Sutton and Nagle) suggests a market for vulnerabilities may sometimes create better security eg speed up patch issue.

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4. Overview

  • New forms of “virtual property” are mushrooming
  • Do we simply accept “if value, then right”? (Dreyfuss)
  • Established IP regimes have checks and balances built in re public domain, public policy etc.
    • Copyright – fair use, fair dealing etc
    • Patents – limitation on time, novelty, morality & order publique (PA 1977, s 1).
  • Ad hoc virtual property regimes lack these.
  • But fairness also sometimes demands returns on labour? Incentives?

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Issues needing attention

  • Whose property is it?
  • What happens when clashes between new VP rights and existing IP rights cf Cheers case?
  • Should some items be declared extra commercium?
  • Should public interest rules supervise private regulation eg by games platforms, software companies?
  • In particular, what happens to the public domain? Free expression?
  • Economic work is going on to see if creating property rights is effective in promoting/protecting public interests eg in creation of security, trust – but this is making little legal impact in novel areas
  • What about trans-national harmonisation?
  • Do we need uniform rules across types of VP?

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