Works in progress: Scott Boone

Scott Boone, On Virtual Property and Copyright: His followup project to this, incidentally, is called “Han Shot First!” Which is great.

As we move from physical copies to digital copies, the personal property part of the balance between copyrights and rights in the copy has dropped out of the equation, as if all there is is the copyright: there aren’t copies any more. Boone is seeking a return of the property balance. Can the idea of “virtual property” bring personal property back into the equation?

By virtual property, he means property rights in virtual objects. There has been some previous work on virtual property, and more work on property concepts like trespass applied online.

Fairfield’s formulation of virtual property: it is rivalous, persistent over time, and interconnected (including across servers). Examples: email addresses/accounts, URLs, websites, chat rooms, virtual world objects.

How does this relate to copyright? Look at virtual world objects, in MMOGs where people interact in a persistent, 3D environment. World of Warcraft has 7 million subscribers, maybe 3-4 million unique players. The objects in these games, like weapons or houses, may or may not be subject to personal property rights. There’s a huge real-money market for transfers of these objects. But who really owns the rights? Game producers sometimes attempt to shut down outside markets. Korea and China have granted some sort of rights to players even in the presence of contractual agreements.

That transfer of a virtual object from one player to another doesn’t violate any copyright rights. There’s no copy made. (I really wonder about this. If RAM copies count, why doesn’t this?) It’s not a distribution – it’s either first sale or not a distribution in the first place.

There’s no inherent conflict between virtual property and copyright, at least no more conflict between personal property rights in a traditional copy and the copyright. There’s no experiential difference between virtual world objects and digital copies. Thus, if virtual world objects are rivalrous, why not treat them the same as physical property? Rivalrousness, or the lack thereof, exists at the level of code and code can create rivalrous virtual world objects – even if it is not likely with the current state of code. (So, technological measures inherent in a game can prevent the duplication that made copyright owners so leery of “digital first sale.” But I imagine that copyright owners would fear circumvention – not to mention the real objection, which is of course that they don’t like first sale in the first place, and if they can avoid injecting it in a new world order they will do so.)

Questions for discussion: At what point is a digital copy sufficiently rivalrous to merit property rights? Is a publicly ordered property system preferable to a privately ordered system of contracts and technology?

Q: Is there really no copy made in a transfer from one to another?

A: When Cartman sells a hammer to Stan, there’s no additional copy made, because Cartman ceases to have that hammer and Stan now does. The code that manifests the hammer exists on every player’s computer. The ability to use the hammer is the authorization that’s passed, which exists on the game company’s server. Unlike sending an mp3, no additional copy exists as the result of a transfer. Rather, just rights to use and control and exclude are transferred – built in at the code level.

Eric Goldman: What about the contract?

A: That’s the public ordering/private ordering choice. Contracts do cover all these instances, so the virtual property issue may never come up.

Eric: Authorization to create a derivative work – that’s a contract that shapes the scope of rights in a derivative work. We have a foundation that’s contract based and assets are created on that foundation. But the contract is still king.

A: It’s true that many game corporations have stepped in asserting their contracts. But we could say that game companies couldn’t put restraints on in-game alienation.

Eric: We already have an example of a legal system where the contract trumps (or channels) the rights in copyright – derivative works. What’s so special about virtual property?

A: The default rule is different, §109A. Digital property has the potential to be the same as physical, which makes the default rule of who has control that of first sale. That’s the difference – the non-contractual allocation is different than that for the right to control derivative works.

Beth Winston: Dan Burk has some articles on comparing seed and genetic use restrictions and the incorporation of the contract into the tech as compared to DRM.

A: The terminator gene is another place where we see the same questions arising.

Bruce Boyden: Within the game, the game designer has created some property-like aspects to objects within the game. But the game designer could change that.

A: And Second Life has!

Bruce: So it’s completely within the game designer’s choice – the question is who do you have property rights against. It seems unlikely that you have rights you can enforce against the game designer – and if you did, as the result of your participation, then Jack Balkin’s article on virtual liberty suggests there are free speech implications. (Boone and Boyden dispute whether the speech interest supports player property or not – Boyden says that player ownership would harm the game designer’s ability to speak, whereas Boone points out that player ownership would improve the player’s ability to speak. There is a tradeoff, but my reading of Balkin leans more toward Boone’s, since the player corresponds here to the citizen and the game designer to the state, whose “free speech” interests are at best fraught and instrumental rather than foundational and inherent.)

A: Boone hasn’t answered whether property rights added to contract and tech would be a good idea. If you start to go down the property route, you may start to dictate the technology, which could be a strike against virtual property.

Brett Frischmann: What’s the basic policy payoff? Should government intervene?

A: If digital copies are rivalrous, we should look at bringing personal property rights back into the discussion.

Brett: So you’re indirectly making the case to improve the infrastructure for DRM, since rendering digital objects rivalrous would allow this change.

A: I’m not advocating this change, but I want to consider it if the technology moves in that direction – property could moderate the effects of DRM.

(Seems to me that despite copyright owners’ fetish for control, game property is already at least as rivalrous as, say, music CDs. Those are subject to first sale even though they’re easy to copy and often copied – whereas game property, as far as I have heard, is only occasionally hacked.)