Gods, dictators, and democracies

Roles and rights of communities

Nicolas Suzor, QUT School of LawLeipzig, 01 August 2009.

Legitimacy

Law from territorial states should defer to private governance where that governance is

legitimate.

Avoiding the false-dichotomy There is no magic circle Internal governance is always already limited

by law

“If these attempts by cyborg communities to formulate the

laws of virtual worlds go well, there may be no need

for real-world courts to participate in this

process. Instead, the residents of virtual worlds will live and love and

law for themselves.”

-- Hunter and Lastowka

Evaluating governance in the borderlands

When governance does not 'go well'

Autonomy Autonomy is important, diversity should be

encouraged But we always impose limits on autonomy to

safeguard the interests of citizens.

Situating governance Not merely contractual relationships Virtual communities are important “because

real people care about them and come together in them” (Grimmelmann; Rheingold) Participants feel very strongly about their

relationship to their communities

Power relations “operate in [...] ‘analytic borderlands’: between

public and private, between technical and social, and

between network and body. Mapping these

borderlands requires descriptive and analytical tools

that do not simply reduce them to borders.

-- Julie Cohen

Digital constitutionalismthese “power relations [...] are

fundamental constitutional issues that should be informed by fundamental constitutional

principles”-- Fitzgerald; see also Berman

legitimacy

The boundaries of private law are constitutive boundaries.

Law from territorial states should defer to private governance where that governance is

legitimate.

The rule of law A measure of legitimacy. Encompasses substantive and procedural limits

to the exercise of power. Provides an evaluative framework for the

regulation of autonomy in virtual communities.

<1: a restraint on arbitrary power>

no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

-- A V Dicey

No arbitrary punishment

In some circumstances, we may require the exercise of power to be authorised by the

terms of service or other rules of the community.

Proprietors must also obey the rules.

<2: substantive limits>

Imposed to protect external values

Discrimination Sara Andrews was initially

threatened with expulsion from WoW for advertising a LGBT-friendly guild Blizzard reversed the decision and

issued an apology

Freedom of speech Peter Ludlow alleges he

was banned from The Sims Online for criticising Electronic Arts

Right to privacy Most states already impose

restrictions on the way personal information can be collected, stored, used, and distributed

PropertyThis case is about virtual property maintained on a virtual world on

the Internet. Plaintiff, March Bragg, Esq., claims an ownership interest in such virtual property. Bragg contends that Defendants, the operators of the virtual world, unlawfully confiscated his virtual property and denied him access to their virtual world. Ultimately at issue in this case are the novel questions of what rights and obligations grow out of the relationship between the owner and creator of a virtual world and its resident-customers. While the property and the world where it is found are “virtual,” the dispute is real.

– Bragg v Linden (Robreno J)

Rights of legal enforcement

“the TOS provide Linden with a variety of one-sided remedies to resolve disputes, while forcing its customers to arbitrate any disputes with Linden.”

– Bragg v Linden (Robreno J)

</substantive values>

External limits are continuously imposed on the scope of private internal governance

<3: formal legality>

“the laws must be general, equal, and certain”

-- Hayek

“the law must be capable of guiding the behaviour of its subjects.”

-- Raz

Clear rules Licences are not

generally written to be understood

Relatively constant rules Terms of use change

often Changes are not

clearly marked

Inconsistent application and discretionary enforcement

Terms reserve broad discretionary powers

Often prohibit behaviour without routine enforcement

Procedural fairness Participants may seek some form of

reassurance that their case has been fairly dealt with. Review of decisions, methods of appeal

</3 formal legality>

Rules should be predictable(but unpredictable can also be fun)

<4. consent and democracy> Virtual communities may develop their own

rules and norms. These rules may conflict with external norms. May conflict with contractual terms of service.

Inconsistent with internal norms

<consent>

Contractual terms should not override consensual arrangements

Expectations may have to be protected

<conclusion>

Both autonomy and legitimacy are important.

Some external values will limit governance.

Good governance is clear and predictable.

Good governance is consistent and consensual.

Good governance is less subject to interference by territorial legal processes

<end /> Contact:

Nic Suzor <nic@suzor.com> Attribution:

Smoke background by Turbo Joe (CC BY-SA): http://www.flickr.com/photos/turbojoe/401690011

Photo of Peter Ludlow by Ugotrade (CC BY-NC-SA): http://www.flickr.com/photos/7834062@N06/1969815770