by Alphaville Herald on 29/05/04 at 12:14 pm
This draft law review article — entitled “VIRTUAL LIBERTY: FREEDOM TO DESIGN AND FREEDOM TO PLAY IN VIRTUAL WORLDS” is a must read. Written by Jack Balkin, who is the Knight Professor of Constitutional Law and the First Amendment and Director, The Information Society Project at Yale Law School. The article covers a lot of interesting issues regarding the freedom of game designers to design their games outside of state control, but it also takes up the inevitable issue of conflict between the game owner and the player. In the following excerpt, Balkin uses the termination of Urizenus as a foil for consider the issue of whether games should be thought of on the model of company towns or shopping malls, where certain free speech rights have been argued to trump the rights of the owning corporation. Article lso considerst the possibility of whether our TOS might not amount to a contract of adhesion. You go Jack!
V. FREEDOM OF DESIGN VERSUS FREEDOM TO PLAY
My last point concerns the relationship between the rights of the platform owner and the players. As I mentioned, earlier, although the freedom to design and the freedom to play can be synergistic, they can also conflict. Where they conflict, American free speech law is currently least helpful. As presently interpreted, first amendment law does not protect the interests of the game players against the actions of the platform owner or game designer because the platform owner is not a state actor. If anything, American free speech law will tend to reinforce the contractual and property rights of platform owners to control the structure of the game through the ToS or ELUA. In addition, the platform owner can use its intellectual property rights to control what players do in the game space. The EULA may also state that all of the objects an programs uploaded into the game become the property of the platform owner. The platform owner can use its first amendment rights to design, along with its contract and intellectual property rights, to discipline what players do in the game space; finally it can also kick out players for violating the ToS or EULA.
Consider, as a recent example, the conflict between Peter Ludlow and Electronic Arts, owners of The Sims Online (TSO). Ludlow began a weblog called the Alphaville Herald, in which he reported on the events that occurred in Alphaville, a virtual city in the game space of TSO. According to Ludlow, these events included, among other things, thieves, scams, and an underage prostitution ring. Ludlow alleged that the virtual characters or avatars controlled by a group of underage players would offer to engage in sexual talk with other avatars in return for some of the game currency, called simoleans. Simoleans can be exchanged for U.S. dollars. As a result, Ludlow alleged, not only were minors engaged in indecent conversation with adults, but the adults were paying them money for it.
Ludlow repeatedly attacked the platform owners of TSO, Electronic Arts, for allowing this and other misconduct to occur. In response, he says, Electronic Arts terminated his account, erasing his personal, his virtual property (including a virtual house), and his two virtual cats. Electronic Arts argued that Ludlow had violated the games ToS: He had included a link on his personal profile to his Alphaville Herald site, and that site, in turn, included a link to sites that explain how to cheat at the game. Ludlow argued that this was a pretextual enforcement of a technical violation of the ToS not regularly applied against other players.
If Electronic Arts were a state, and Alphaville a real city, Ludlow would have a colorable argument that his free speech rights had been violated, especially if he could show that the real reason for the termination was a desire to silence him. But Electronic Arts is not a state actor, and Alphaville is a virtual community. Ludlow’s right to play conflicts with Electronic Arts’ right to run its game. Moreover, Electronic Arts might regard Ludlow as someone who is spreading false reports about The Sims Online that are bad for its business: There is some question whether the sort of virtual child prostitution he describes actually occurs, or whether it was the concoction of an unreliable 17 year old player who was Ludlow’s source for the story.47 Electronic Arts would argue that it has the contractual right to refuse service to anyone who unreasonably disturbs the play of the game.
How can the right to play be protected from arbitrary decisions by the platform owner while still respecting the platform owner’s right to design? One model of regulation would treat the platform owner like a company town.33 In Marsh v. Alabama,34 the Supreme Court held that a town wholly owned by a company could not use its property rights to prevent people from distributing leaflets on its streets. Because the company had assumed all of the major functions of a municipality, it had to obey first amendment values.35 Put in somewhat different terms, the streets of the company town formed a space in which people communicated that the company town fully controlled and for which it was ultimately responsible. The streets were important nodal points for communication and the exchange of ideas. As Justice Black explained, “[w]hether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”36 And as Justice Frankfurter pointed out, the central issue was not ownership of property but the “community aspects”37 of the company town– the fact that the town operated as a community in which people exchanged ideas and opinions. When a business monopolizes control over the central modes of communication within a community, it must act as a fiduciary for the public interest, and it must allow its property to be used for the free exchange of ideas. To be sure, the U.S. Supreme Court refused to extend the reasoning of Marsh v. Alabama to shopping malls, on the grounds that unlike company towns, they did not take over the municipal functions of a city.38 Thus, one could argue that shopping malls lack the community aspects that Justice Frankfurter identified. Nevertheless, several state supreme courts have held that large regional shopping malls are public spaces where people have free speech rights.39
Virtual worlds are like company towns in that the game owner forms the community, controls all of the space inside the community and thus, controls all avenues of communication within the community. The free flow of ideas and the formation of community cannot occur within a virtual world unless the designer permits it. Alphaville was a virtual city controlled by The Sims Online through its design of code and its Terms of Service agreement. Although Electronic Arts does not take over “the full spectrum of municipal functions”40 in real space, it does exercise all of those functions in the virtual world. If any private entity could be regarded as a company town, it would be a virtual world. That is especially so because the whole point of the virtual world is to create community (or communities) and action in the virtual world occurs through the exchange of ideas.
Nevertheless, one might object that it is possible for people to speak to each other outside the virtual world. The Alphaville Herald, for example, is available to anyone on the World Wide Web. And nothing prevents the people behind the avatars from sending e-mails to each other. But if we treat The Sims Online as a virtual community, this objection is less compelling: It is important that communication among the participants occur within the space of the community and between the avatars. In Marsh itself, it did not matter that people could listen to radio broadcasts, or send mail in and out of the company town. That was simply not the same thing as speaking and organizing within the town itself. Keeping leafletters out of the company town prevented the free exchange of ideas. The same is true of Alphaville: Although Ludlow can still report on what goes on in Alphaville, kicking him out makes it difficult for him to do so because he is no longer a member of the community.
Another objection to the company town analogy is that in Marsh people had to live in the company town in order to make a living. It was unfair to require them to give up their jobs in order to enjoy full free speech rights. By contrast, no one has to live in Alphaville, and if Ludlow doesn’t like how Electronic Arts runs its world, he can go elsewhere to a virtual world that thinks more highly of virtual-world journalism. After all, one might insist, it’s just a game. However, this objection fails to take seriously the notion of virtual worlds as communities. Some players already invest enormous amounts of time in these worlds, they make friends there and form attachments. As virtual worlds become more ubiquitous, and are employed for more and more functions, ranging from ommerce to entertainment to education, it will not seem at all strange for people to spend considerable time in these worlds and to regard membership in a virtual community as part of their (multiple) social identities. Exit from virtual worlds is always possible, but demanding exit as the price of free expression becomes less justified as people’s social connections in these worlds become increasingly significant.
Another objection, I think, is far more powerful. Not all virtual worlds are alike, and they should not all be treated alike. For example, virtual worlds that are used for purposes of military simulations, or for psychotherapy, should not be regarded as company towns. They are created for specific sorts of uses, and treating them as open spaces for communication would defeat the purposes for which they are dedicated. But this argument, if accepted, actually strengthens the case for treating at least some virtual worlds as company towns. Military and therapeutic simulations are not designed to form communities, or create channels for general public communication, and therefore they should be treated differently. That does not mean, however, that those virtual worlds which hold themselves open as general spaces for public communication and interaction should not be treated as company towns, any more than Chickasaw, Alabama, could defend itself on the grounds that some business entities do not form communities that take over all municipal functions.
I have just offered a number of reasons for taking seriously claims that platform owners must respect free speech rights within virtual worlds. Although courts may ultimately not extend first amendment privileges to players in virtual worlds, legislatures might well take these claims seriously and extend free speech rights through statute, in order to recognize the speech rights of both players andplatform owners.41 Two analogies come to mind. The first are private universities, which although nominally private actors, understand themselves to be spaces for the free exchange of ideas. The second analogy is telecommunications law. In American telecommunications law, owners of communications networks like cable companies are both conduits for the speech of cable programmers and also treated as speakers in their own right. Much of telecommunications law involves balancing the speech interests of owners of communications networks and independent speakers. To this end, federal cable regulations sometimes require that cable owners respect the free speech interests of independent programmers, for example, by providing public access channels.
45http://www.alphavilleherald.com/ (Last visited February 29th, 2004).
46Amy Harmon, A Real Life Debate on Free Expression in a Cyberspace
City, New York Times, January 15th, 2004, available at
February 27th, 2004).
33See Paul Schiff Berman, Cyberspace and the State Action Doctrine: The
Cultural Value of Applying Constitutional Norms to “Private Regulation,” 71 U.
Colo. L. Rev. 1302-05 (2000)(arguing for application of constitutional norms in
debates over regulation of cyberspace); Lastowka and Hunter, at 60-61.
34326 U.S. 501 (1946). See also Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)(extending reasoning
of Marsh v. Alabama to protest by local union against shopping mall).
35Id. at 506.
36Id. at 507.
37Id. at 510 (Frankfurter, J., concurring).
38See Hudgens v. NLRB, 424 U.S. 507 (1975)(officially overruling Logan
Valley Plaza); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)(distinguishing Logan
Valley Plaza on grounds that protest was not related to mall owner’s business).
39See., e.g., New Jersey Coalition Against War in the Middle East v.
J.M.B. Realty Corp., 650 A.2d 757 (N.J. 1994); Robins v. PruneYard Shopping
Ctr., 23 Cal. 3d 899 (1979), aff’d, 447 U.S. 74 (1980)
40 Lloyd Corp. v. Tanner, 407 U.S. at 568-69.
41 I take this to be the point of Paul Berman’s argument for incorporating constitutional values into adjudications about private rights in cyberspace. See
Berman, at 1302-1305. I would add that it may be even more important for legislatures and administrative agencies to take these constitutional values into
42 This interest might be stronger than the interest of a shopping mall owner who does not wish to be associated with the speech of protesters on his or her property. See Pruneyard Shopping Center v. Robins 447 U.S. 74, 87-88
(1980)(rejecting claim that forcing mall owner to allow access by protesters
constituted compelled speech) and administrative agencies might choose to balance the free speech interests ofplatform owners with those of players.
43Hague v. CIO, 307 U.S. 496, 515-16 (1939)(opinion of Roberts, J.).
44See Arkansas Educational Television Commission, Petitioner v. Forbes,
523 U.S. 666, 667-680 (1998)(distinguishing different types of public fora); Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)(same)
45 See James Grimmelman, The State of Play: On the Second Life Tax
Revolt, http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1 222 (Last visited February 29, 2004).
46 See Raph Koster, Declaration of the Rights of Avatars, available at
February 27th, 2004).
47See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory
of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. __, __