Framing Virtual Law

This paper proposes a framework for understanding the real-virtual dichotomy in terms of a series of five frames or layers which interact simultaneously to create the phenomena associated with virtual worlds. The framework presented in this paper is intended to be used as an analytical tool in studying phenomena related specifically to virtual worlds, but is undoubtedly applicable to a broad subset of computer games and interactive fiction. The model provides a useful tool fpr studying a number of aspects of virtual worlds, ranging from geography and economics to identity and literary theory. This paper will limit itself to an application of the framework to various legal issues identified by virtual world researchers and designers. Focussing on one example will allow us to illustrate the usefulness of a layered analytical approach to virtual worlds in general, while providing a more coherent structure for understanding the legal issues in particular. The framework consists of five major frames of analysis, each of which has been identified in the work of theorists and researchers in various disciplines. The actual or 'real' world, in the context of the analytical framework presented here, is the space where we work, eat, sleep and study when we are not connected to the virtual world at all. The interface layer represents the physical medium and communicative framework used by participants to interact with the system layer and ultimately the virtual world. The interface consists not of the information itself, but of the media which are employed to give a physical intantiation of the virtual world in the actual world, and to allow participants to effect change within the virtual world. Third is the system layer, which consists of the rules, protocols and processes which translate and regulate the input/output streams between participants and the virtual world. The system includes the more mechanical processes in which data is physically manipulated as well as semantic features which play an important role in defining the underlying structure of the events and objects which are elaborated at the instantiation level. The instantiation layer is the level at which the discourse which creates a specific virtual world is uttered or produced. Finally, the virtual layer is the fully immersed frame in which the characters, objects and settings of the fictional world exist without any reference to the other levels of the model. Discussion of the relationship between law and virtual worlds in recent years has ranged from the application of the laws of the actual world to regulate virtual worlds and their participants to the (re)creation of self-contained virtual legal orders within the worlds themselves. The purported complexity of the real-virtual dichotomy has been a recurring theme in many of these discussions, but there has not been a model with allows the phenomena in question to be coherently distinguished from one another. Ludologists such as Huizinga conceptualize games as occuring within a magic circle which separates them from the normal rules of real life. Attempts to define a single magic circle with respect to virtual worlds have been unsatisfactory, at least in part because participants disagree about where to trace the outer limits of the circle. In practice, courts in the actual world can assert their sovereignty over activities related to virtual worlds for the simple reason that they can assert effective physical control over both the hardware and the wetware (human bodies) associated with those worlds. The interface layer presents an important threshold from a legal perspective, because it is at this level that the participant and the developer enter into a binding contract or EULA which will structure many of the power relationships in the remaining layers. This is also the level at which participants log on and thus identify themselves to the system. In the vast majority of virtual worlds, the interface layer is clearly outside the magic circle, and strategies which exploit the interface are generally considered deviant. Such strategies could include modifying the game client to obtain additional information or varoius forms of identity theft including the obtention of passwords to break in to other participants' accounts. The system and instatiation layers reflect to a large extent the distinction made by Lawrence Lessig between code and law. Regulation and control of the virtual world at the system level is what Lessig would refer to as code. The rules are physically built into the system, and therefore detection and enforcement are not really issues because the very stucture of the virtual world makes the prohibited conduct impossible. The ability to kill other players or steal their virtual belongings is commonly regulated in this way. Law, on the other hand, acts at the level of the instantiation or the virtual world itself by proposing certain rules of conduct or guidelines which may or may not be enforced. The code may support these types of rule-based systems by providing for sanctions at the system level (such as toading), the interface level (such as banning). It should be noted that the EULA could also integrate an ultimate recourse in the real-world legal system, to the extent a contract is necessary to import legal norms into the virtual world. Other virtual legal systems, such as those in worlds focussed on role-playing, have developed purely in the virtual frame, with little or no recourse to the system or even the instantiation layer. Many guilds and organisations such as the Sims Shadow Government have thus been able to create defacto normative orders within virtual worlds without any ability to manipulate the underlying code or instantiative discourse. The proposed approach does not purport to solve all the problems inherent in what is indeed a complex phenomenon. Hopefully the model presented here will contribute to development of a common vocabulary and conceptual framework with which we can build on the growing body of work relating to virtual worlds.