An interview with Ben Duranske, author of Virtual Law: Navigating the Legal Landscape of Virtual Worlds
 

As today's virtual landscape transforms from a lawless frontier into a digital society guided by legislation and case law, the every day member of the online world edges closer and closer towards legal accountability for their online actions.  Gaming forums around the world are abuzz with the latest virtual world legal issues from Second Life property rights to World of Warcraft gold sellers to enforcing End User License Agreements.

Most of what we read in those forums unfortunately comes from average gamers like you and I, offering what is clearly speculative and sometimes biased feedback resulting in nothing more than an exchange of opinions.

Fortunately for the internet, there is one man who takes the legal mumbo jumbo and parses it on a weekly basis, so that even the most non legal layman can get a grasp on what's really going on in the courtroom.    His name is Benjamin Duranske, who has practiced law in San Francisco and Atlanta and is the author of the new book "Virtual Law: Navigating the Legal Landscape of Virtual Worlds".  Ben is also the editor of the website VirtuallyBlind.com, a site that focuses primarily on legal issues evolving in the virtual world.

I find the realm of virtual world law so fascinating.  It's a wide open frontier waiting to be colonized and pillaged like so many frontiers before it. Unfortunately, finding solid and reliable information on the subject on the internet is about as rewarding as searching for porn on Disney.Com. Ok, I admit.. I did that once.. Ok.. twice, but the second time was hoping to score a nude Gabriella pic.  Anyway, it's a refreshing experience to read about virtual world law topics from  somebody who actually has first hand experience in the legal trenches.


Zergwatch: Would you say your new book is one that would appeal to the general gaming masses or is the targeted audience internet virtual world entrepreneurs and legal analysts?

Ben:  "Virtual Law: Navigating the Legal Landscape of Virtual Worlds" is not just for lawyers. Like at virtuallyblind.com, the website I edit, I've tried to explain the legal questions in plain language wherever possible. It might not be for everybody, but if you're the kind of gamer who sometimes wonders about the impact of the Terms of Service on your ability to sell virtual property on auction sites, or what legal rights you might have in your characters and their text and machinima stories, or how lawsuits over gold farming might play out, then you'll definitely be interested in this book.

Zergwatch: You're currently working on a second book which was described as being a mainstream book on the subject. How does the idea for the
second book differ from your first?

Ben: The new book I'm working on isn't about legal issues at all. It's a mainstream, nonfiction book describing virtual worlds -- basically, what I see as the emergence of the beginning of the 3D internet -- to a mainstream audience. It's non-fiction, but it follows the stories of a number of virtual world users as a narrative in order to show how these places are used. It touches on games, but it is more focused on social virtual worlds. I'm seeking a publisher for this one right now. If I find one, I'd anticipate it coming on in 2009.

Zergwatch: What can the reader expect to find in Virtual Law?

Ben:  "Virtual Law" covers virtual property, Terms of Service agreements, intellectual property disputes, and more. I tried to make it very accessible without dumbing down the legal content, so that it could both be a guide for attorneys and executives who are looking into these spaces, but so that non-lawyers could pick it up and find it useful too.

Zergwatch: On your website, VirtuallyBlind.Com, you cover a wide range of virtual law cases. Which current cases do you think will have the
biggest impact on the virtual landscape when all is said and done?

Ben:   If it goes to trial, Hernandez v. IGE is the biggest one out there right now because it is a class action lawsuit, and so could conceivably cost one of the biggest virtual property companies enough money that it would make other companies think twice about doing trading in virtual goods in worlds where the Terms of Service prohibit it.

The story with this case is that Terms of Service in most games say that "Real Money Trading" (RMT) is prohibited, but everybody knows that
companies like IGE -- and hundreds of others -- ignore this. One credible estimate is that there is a $2 billion market in RMT, most of which violates one game or another's Terms of Service, or as Blizzard calls them, "Terms of Use."

 What Hernandez is claiming is that IGE's employees and agents broke World of Warcraft's Terms of Use by spamming chat, camping spawns,
farming gold, and generally making World of Warcraft less fun. He argues that by doing so, gold sellers like IGE deprive all players of a benefit that the Terms of Use is intended to give them. It's a tricky legal argument, but if Blizzard is willing to go on the record saying that users were the "intended beneficiaries" of the Terms of Use -- and there's some reason to believe it will -- then this case could actually go to trial. It's a bit of a long shot still, but a verdict or judgment for Hernandez, or even a substantial settlement, would really shake up the RMT industry.

Zergwatch: What are the general user demographics on your website? Are they mostly  just your average gamers or Legal professionals who play games?

Ben:  Based on the traffic I see coming in from sites that refer to articles on Virtually Blind, it's about half lawyers with an interest in games,
and about half gamers with an interest in law. At first, it was mostly lawyers and people focused on Second Life, because SL has a really robust blogosphere. But I've found that articles where I break down lawsuits that impact games -- like the recent Blizzard injunction that basically put Peons4Hire out of the RMT business, at least in World of Warcraft -- make the rounds in gamer forums, and that sends a lot of players to the site. Over the last six months or so, a bunch of them have stuck around and become regular readers.

Zergwatch: Blizzard entertainment recently sued the creator of the WoW Glider  software which allows players to automate monotonous tasks in game. To
me, this seems to be like the local police going after Ford and Chevrolet to enforce local speed limit laws instead of the individuals who are speeding. What is your take on that case?

Ben:   I think that Blizzard would argue that it's more like the local police going after Ford and Chevrolet for selling cars that were incapable of
going under the speed limit and came with in-dash bongs pre-loaded with high-quality Moroccan hash. One of Blizzard's key arguments is that
there's really no use for Glider except for breaking the World of Warcraft Terms of Use.

Both sides just filed motions for summary judgment, and they both put forth pretty solid arguments. If pressed, I'd guess that neither side will get a slam-dunk victory at summary judgment, because the judge will find sufficient disagreement between the expert witnesses to send the case to the jury. If that happens, there's a decent chance this will actually go to trial, because it doesn't look like there is much room for settlement here -- Blizzard seems to want Glider out of business.

In terms of the arguments, Blizzard arguably has a reasonable claim that Glider intentionally interferes with their contractual relationship with
users for the reason pointed out above -- there's basically no way to use Glider that doesn't infringe the Blizzard Terms of Use.

On the other hand, I think that Blizzard's copyright claim is a bit of a reach. It's kind of interesting, because the claim would be almost
impossible anywhere but in the 9th Circuit (which contains most of the Western states, including Arizona, where this case comes from, and California, which has a robust and occasionally wacky body of copyright law) but that's where this case is, which gives the argument a chance.

Basically, Blizzard claims that because the Glider software itself launches the World of Warcraft client, it is "creating a copy" of the software, which gives rise to a copyright claim.

I know users are split on botting in general, and on this case in particular, although I get the sense that most are in favor of Blizzard doing just about anything to keep the game free of interference.  Blizzard's last round of briefing includes excerpts from a lot of customer complaints about botting in general and Glider in particular.

Personally, I actually get what you're saying, and I don't really have a problem with responsible botting as long as gamers are careful to use
the tools in a way that doesn't mess with other people's game play. Frankly, if I were to pick up World of Warcraft at this point in my life
-- as a 33 year old lawyer without a lot of extra time -- I'd probably consider it. But I'm not the judge here, and anyway, I can see both sides of this one.

Zergwatch:  Another headline grabbing case was the Patent Infringement suit filed by Gibson Guitars against Activision which comes after years of Gibson
supporting the product. Again, the gaming community is heavily in support of Activision and views Gibson's move as an overzealous attempt to soothe their own sour grapes for being dropped by Activision. Do you think Gibson's patent claim has merit?

Ben:   I used to do a lot of patent litigation, and I have to tell you that there's no way I, or anybody else, is going to be able to answer that
authoritatively without spending a whole lot of quality time reading the patent, preferably with an expert in audio circuit design standing by to offer advice. And frankly, I'd only do that if Gibson or Activision was paying me. Here's the patent if anybody wants to tackle it though:

http://www.google.com/patents?id=YAUZAAAAEBAJ&dq=5990405

The key is to focus on the "claims" -- those are the numbered paragraphs in the last part of the patent. The stuff that comes before that is
useful, but it is all secondary to what the claims say.

At the end of the day, patent cases always come down to one really important part of the case known as "claim construction" where both parties argue that the court should interpret the words of the patent the way they want them interpreted. Frequently, there are just a few words in dispute, but if the court goes one way on those words, one side is almost guaranteed a win, and if the court goes the other way, the other side wins.

Here, we don't even know what the big disputes will be yet, so it's basically impossible to say what is going to happen.

Zergwatch:  If you had a Virtual Law crystal ball and looked ahead to 2009, what  sort of new legal frontiers do you think will emerge in the virtual
landscape?

Ben:    I think that things are going to get a lot more personal. People will  realize that there's a whole lot of data being collected in these spaces
that can be mined for lawsuits ranging from unauthorized intellectual  property use to divorce and custody proceedings.

I also think that we're going to see a huge diversification in what is available -- by mid-to-late 2009 there will be several virtual world development platforms based on relatively open standards out there, so companies will be able to style their social worlds and games to their particular take on RMT, virtual property, and intellectual property questions. I suspect we'll see more places like Entropia offering an economy backed by assets, and so we'll see more and more questions of "ownership" of virtual property coming up.

Zergwatch:  One of the more popular Us vs. Them legal issues that comes up in the gaming world is the End User License Agreement. How enforceable is an EULA when you're talking about products that have millions of users around the entire world?

Ben:   All of the EULAs I've looked at have provisions that say where disputes  are settled between users and the provider, and most of them that are  based in the U.S. set that jurisdiction in the U.S. There's always a question as to whether these provisions are enforceable -- the Marc  Bragg case showed that at least some courts will look closely at arbitration and choice of law provisions that appear to be badly lopsided -- but generally, courts find these provisions enforceable.

Zergwatch: Do you think publishers will ever enforce EULA's against individuals for things like exploiting, hacking, gold buying, powerleveling, etc., such as the way the RIAA went after individuals stealing music?

Ben:  I doubt they'll do much more than ban individuals. It's just not worth the bad press to sue users. Even the RIAA generally goes after uploaders, not downloaders -- though that line gets blurred because torrent-based networks create two-way traffic even while downloading. The most aggressive company on this stuff is definitely Blizzard, and they've focused their litigation efforts on RMT companies and bot providers. They've generally got the users behind them on these efforts, but that'd change pretty fast if they started suing users, I suspect.

Zergwatch: Is there any thing else you would like to add?

Ben:   Right now, MMO games and social virtual worlds are on the cutting edge of something that is a lot bigger: the evolution of the internet into a 3D space. Assuming that bandwidth and processing power continue to increase at pace, there is every reason to believe that the web is going to look a lot more like a movie than a newspaper in five to ten years, and it may happen even faster than that.

Interfaces have always converged toward reality, and 3D networked environments -- both games or social spaces -- are driving that right now. The legal questions that we're wrestling with today are going to gain a lot of prominence when that happens, so in a very real sense, today's gamers are participating in a big experiment that, I think, is going to help define the intersection of law and mainstream communications technology in the future.

Zergwatch:  For those interested in reading more about the subject of virtual world legal issues, where can they pick up your book?

Ben:  Virtual Law is available via the American Bar Association at the moment:
http://www.abanet.org/abastore/productpage/5450052

It will be available on Amazon and through other mainstream outlets shortly.