Gods, dictators, and democracies

1. Roles and rights of communities Nicolas Suzor, QUT School of Law Leipzig, 01 August 2009. Gods, dictators, and democracies

2. Law from territorial states should defer to private governance where that governance is legitimate. Legitimacy

3. Avoiding the false-dichotomy • There is no magic circle • Internal governance is always already limited by law

4. “If these attemptsby 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

5. Evaluating governance in the borderlands When governance does not 'go well'

6. Autonomy • Autonomy is important, diversity should be encouraged • But we always impose limits on autonomy to safeguard the interests of citizens.

7. 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

8. Power relations “operate in [...] ‘analytic borderlands’: between public and private, between technical and social, and between network and body. Mapping these borderlands requiresdescriptive and analytical tools that do not simply reduce them to borders. • -- Julie Cohen

9. Digital constitutionalism • these “power relations [...] are fundamental constitutional issues that should be informed by fundamental constitutional principles” • -- Fitzgerald; see also Berman

10. The boundaries of private law are constitutive boundaries. Law from territorial states should defer to private governance where that governance is legitimate. legitimacy

11. 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.

12. <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

13. 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. No arbitrary punishment

14. <2: substantive limits> Imposed to protect external values

15. Discrimination • Sara Andrews was initially threatened with expulsion from WoW for advertising a LGBT-friendly guild • Blizzard reversed the decision and issued an apology

16. Freedom of speech • Peter Ludlow alleges he was banned from The Sims Online for criticising Electronic Arts

17. Right to privacy • Most states already impose restrictions on the way personal information can be collected, stored, used, and distributed

18. Property • This 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)

19. 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)

20. External limits are continuously imposed on the scope of private internal governance </substantive values>

21. <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

22. Clear rules • Licences are not generally written to be understood

23. Relatively constant rules • Terms of use change often • Changes are not clearly marked

24. Inconsistent application and discretionary enforcement • Terms reserve broad discretionary powers • Often prohibit behaviour without routine enforcement

25. Procedural fairness • Participants may seek some form of reassurance that their case has been fairly dealt with. • Review of decisions, methods of appeal

26. </3 formal legality> Rules should be predictable (but unpredictable can also be fun)

27. <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.

28. Inconsistent with internal norms

29. Contractual terms should not override consensual arrangements Expectations may have to be protected <consent>

30. <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.

31. Good governance is less subject to interference by territorial legal processes

32. <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