Download PPT - Nicolas Suzor

Gods, dictators, and democracies
Roles and rights of communities
Nicolas Suzor, QUT School of Law
Leipzig, 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
-- Hunter and Lastowka
virtual worlds will live and love and
law for themselves.”
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
not
-- Juliedo
Cohen
simply reduce them to
borders.
Digital constitutionalism
these “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

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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 LGBTfriendly 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
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
– Braggtovtheir
Linden
(Robreno
denied him access
virtual
world. J)
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
Rights of legal enforcement
“the TOS provide Linden with a variety of onesided 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 />
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Contact:
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Nic Suzor <[email protected]>
Attribution:
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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