METANOMICS: VIRTUAL JUSTICE - THE NEW LAWS OF ONLINE WORLDS NOVEMBER 8, 2010Metanomics is a weekly broadcast on the serious uses of virtual worlds. Visithttp://metanomics.net. Metanomics is owned and operated by Remedy Communications.ROBERT BLOOMFIELD: Hi. Im Robert Bloomfield, professor at Cornell UniversitysJohnson Graduate School of Management. Today we continue exploring Virtual Worlds inthe larger sphere of social media, culture, enterprise and policy. Naturally, our discussionabout Virtual Worlds takes place in a Virtual World. So join us. This is Metanomics.ANNOUNCER: Metanomics is filmed today in front of a live audience at our studios inSecond Life. We are pleased to broadcast weekly to our event partners and to welcomediscussion. We use ChatBridge technology to allow viewers to comment during the show.Metanomics is sponsored by the Johnson Graduate School of Management at CornellUniversity. Welcome. This is Metanomics.ROBERT BLOOMFIELD: Welcome to Metanomics. Today our guest is Greg Lastowka,professor of law at Rutgers School of law in Camden, New Jersey. Greg is an expert in thelegal aspects of Virtual Worlds, as well as more general topics in internet law, with aparticular emphasis on property rights, copyright and the like. Greg just published a newbook Virtual Justice. Were going to talk about that book today and get Gregs thoughts onother recent legal news in the digital sphere. Greg, welcome to Metanomics.GREG LASTOWKA: Thank you. Happy to be here.ROBERT BLOOMFIELD: Congratulations on your book.GREG LASTOWKA: Thanks. Its great to have it out in print.ROBERT BLOOMFIELD: And now you can stop thinking about it and move on to the nextproject. Right?
GREG LASTOWKA: I think so. Maybe a little bit of publicity first, but after that, on to thenext thing.ROBERT BLOOMFIELD: Yeah. Lets start right there with the publicity. So what I thoughtwed do is walk through some of the major themes of your book and then move on to twotopics of the day and, in particular, Ive got some questions on copyright, and Id love tohear your thoughts on the recent oral arguments on videogame censorships at the UnitedStates Supreme Court.GREG LASTOWKA: Sure. Sounds good to me.ROBERT BLOOMFIELD: And then, of course, privacy on Facebook is always worth a fewminutes of talking about; Google as well. So before we get there, on the frontispiece ofyour book, you have a quote by Henry David Thoreau, "If you have built castles in the air,your work need not be lost. That is where they should be. Now put the foundations underthem." My reading of your book is that the castle is a running theme, and youre veryconcerned about the current foundations, or lack thereof, of Virtual World law and justice.So do you want to just walk us through the premise of your book?GREG LASTOWKA: Sure. And the castle is kind of my theme. Ive got the ASCII castlethere right underneath the Thoreau quote. The reason I decided on the castle was that Iwas actually reading a little bit about the history of law in the Middle Ages, and I wassurprised to find that the castle was this central institution in judicial rule during the MiddleAges, that the castle also served as a court and a kind of center of law in the Middle Ages.So I start the book actually with a discussion of Cardiff Castle. The Cardiff Castle was justa typical English castle.And the thing that I found interesting about the English system of castles and feudalism isthat, when I teach first-year property law, what I tell my students whats the fact about thecommon-law system of property is that it originated in these feudal arrangements betweenlords and vassals, where the military kind of overlord demanded military service in returnfor granting ownership of land. So the very notion of property and land in England and, byextension, the United States, is premised on this idea that we hold estates in land, and we
hold estates kind of subject to certain limitations that are tied up with this history thatactually goes back to the time period of military castles and this kind of military society thatwas centered around them.I used Cardiff Castle to explain how the castle itself is a new technology at the time, andits a new technology that actually projects itself into the laws, into the rules, and theinteresting thing is those rules that we got from castles are certainly in the law today, andwe can still see traces of them. I mean the law has evolved since that time significantly.Were no longer in a feudal society, but we can still see the law reflecting its origins, theproperty law and this feudal system. So thats where I start off with Cardiff Castle.And then I make the leap from Cardiff Castle to Cinderella Castle in Disney World.Cinderella Castle, I think, is moving a little bit closer to castles in Virtual Worlds, in thatCinderella Castle is a representation of a castle. Its a physical, tangible castle, and its areal place. But it is largely about projecting the image of a castle and convincing viewersthat it is a castle. Not about any of the military functions that the castle actually has. WhenI was researching the history of Disney World, I found some interesting facts aboutOrlando and Disneys kind of ownership of the land in that area as well.What I found was that theres special laws actually in Florida that grant the owners ofDisney World, the Walt Disney Company, the ability to set their own zoning regulationsand essentially act, you know, the municipal government for the land where Disney Worldis centered. So I found that fascinating, this kind of intermediate step between physicalkind of castles and fantasy castles and this kind of interesting relationship between thiscorporate entity and a real government. The interesting thing is that Disney kind of stepsinto the role of a real government in the land where Cinderella Castle sits. So I usedDisney as an intermediate step to go to the Dagger Isle Castle.ROBERT BLOOMFIELD: Actually, before we do that--GREG LASTOWKA: Sure, go ahead.ROBERT BLOOMFIELD: --Im looking at the chat. Youre getting some traction in theanalogy to feudal law, and so Im wondering if you could just elaborate on that a little bit. I
mean to what extent currently do the people who run Virtual Worlds really have that sort oflegal authority over their peasants?GREG LASTOWKA: Well, thats basically a theme of the book that the ownership of thetechnology of a Virtual World gives the owner of that platform the ability to essentially craftnew rules for the society that lives within that platform. And I see the way the lawinterfaces with Virtual Worlds today as essentially allowing these to be separatejurisdictions. I make the point in the book that Im not saying that the United States willrecognize Second Life as its own independent country capable of making its ownindependent laws.Thats not the way its going to work. It was actually the way some people thought it wouldwork, I think, in the mid 90s when they first considered the way that the law was affectingthe internet. But the way it actually has played out is that the ownership of the machines,the central servers on which the community functions, the software through which thecommunity relates with each other and where the value is stored, the ownership of thatphysical machinery counts for a whole lot in the legal system.Additionally, the intellectual property rights, the ownership of the copyright in the softwareand in the platform counts for a whole lot in the legal system. And the institution ofcontracts, with Terms of Service and then User License Agreements, counts for a wholelot in the legal system. And then I could also throw on the First Amendment rights whichwell talk about with regard to the recent Supreme Court case. You could also throw onadditional rights based upon computer hacking. You could additionally throw on the factthat this is a kind of fantasy environment, and some judges and legislators and somepolicymakers tend to think of Virtual Worlds as games, so theres a whole level ofdeference thats attendant to that as well.So all of these things combine together in an interesting way so that the kind of defaultstatus of Virtual Worlds is that they are separate institutions where the owner of theplatform has a tremendous degree of control over the society thats kind of dwelling withinthat platform. Thats how it ties back, I think, to the analogy of the medieval castle, wherethe feudal lord basically makes the law within the castle and sits in judgment as the case ispresented. So I think theres a strong tie between what were seeing in the emergence ofsocial networking platforms in Virtual Worlds and particularly on the internet, a strong tie
you can draw between that and the emergence of kind of castle law in the Middle Ages.ROBERT BLOOMFIELD: When you indicated that list of features that have given so muchpower to the platform owners, one of them was that it’s play and its fantasy, but this leadsinto that third castle that you talk about in your book: Dagger Isle.GREG LASTOWKA: Right. yeah.ROBERT BLOOMFIELD: And $999.88, real U.S. dollars, it doesnt seem--GREG LASTOWKA: Not a thousand dollars.ROBERT BLOOMFIELD: It gives a new meaning to fantastic. Its not just a game. So takeus then into that third castle, the Dagger Isle Castle and what that implies for virtualjustice.GREG LASTOWKA: Well, thats what was so interesting to me. The Disney castle fromCinderella is, its based on this story, this folktale about the cinder maid that becomes aprincess. The Dagger Isle Castle it struck me was wonderful--well, from my personalhistory, when I saw that for sale on eBay, that was when I realized that there wassignificant investments at stake here in Virtual Worlds and that the legal system wasntreally ready to handle the issue of virtual property. I realized that ownership, the de factoownership of that castle was in the user of the platform. That the intellectual propertyownership was elsewhere. Its in the game companys hands.But if you own the Dagger Isle Castle, you could list it on eBay at the time and sell it tosomeone else and make a profit from it. So thats what got me interested in the writings ofTed Castranova and the whole idea of virtual economies. And there was this interestingcorrelation [and the reason} kind of worked out in the book very well with that. Itsborrowing from these themes of the feudal era, and the owner of the castle in Dagger Islesaw themselves, I think, projected themselves with the fantasy owner of this fantasy castlemuch in the same way that you could fantasize about Cinderella, the actress who playsCinderella in Disney World.
But the question that I ask in the book and that Ive kind of been thinking about for the lastseven years or so was, if you actually own this virtual property and you can sell it, and youhave acquired it, and you feel the pride of ownership in it, is it legally yours? Do you reallyhave any legal property interest in it? Clearly, Virtual World owners want to sell users theidea that you can be the owner of virtual land or of a virtual castle or what have you. Butwhen it comes to the actual contractual terms and the way the technology plays out, theowner of the virtual castle is usually legally beholden to the owner of the Virtual Worldplatform so theres this fantasy of being the lord of the castle and some ability often tomonetize on that interested property, but, in fact, when it comes down to the law, it turnsout that the user is usually a serf in the Virtual World owner.ROBERT BLOOMFIELD: When it comes down to the contract, usually what it is, peoplewill say ownership because its simple and understandable, but its actually more sometype of right-to-use license. Is that right?GREG LASTOWKA: Yeah, exactly. But the way that lawyers will draft Terms of Serviceand End User License Agreements are usually theyre seen as a defensive mechanism toprotect the interests of the company or business. And they want to avoid any future legalproblems with their users. So they try very hard to make sure that their Terms of Serviceand End User License Agreements are bulletproof and enforceable and protect theirinterests. Theyre not a mechanism by which theyre going to hand out property rights tousers. So that is the explanation why the Terms of Service are structured the way they areand the fact that very few people read Terms of Service on all these online contracts, Ithink creates an additional incentive for the companies to push them as far as they can, asfar as they can get enforceability, to favor their interests over the user interests.But just like Disney World, you need to attract new customers to a Virtual World platform.So even though the legal terms are very harsh, I think, to the users, and the day-to-dayoperations of any of these platforms, customer service is a big part of the business. So theTerms of Service might say one thing, the contractual law might say one thing, but, if youactually come to the company and say, "I have this problem, or this person stolesomething from me," you might get more of a response than the contracts suggest thatyoull get.ROBERT BLOOMFIELD: Just to stick with the contract analogy, one of the terms Ithought was really interesting in the book is, you talk about in the 1400s or so that
governments would grant the license to crenellate, which was basically important forthose.GREG LASTOWKA: Right. Right.ROBERT BLOOMFIELD: I learned this because my kids decided they loved castles, andso I learned the word "crenellations," which are basically those parts at the top of thecastle, that go up and down and up and down, make it look very castle-like. You can shootout from in between them. So the government would provide the right to build the castle,which was naturally very important for the larger nation to make sure it was protecting itsown rights against the people who are building castles and could take up arms againstthem. So Im wondering to what extent you see the regulatory oversight of Terms ofService serving as kind of a right to crenellate. What are the limits, at this point, on whatsomeone who runs an internet platform can and cant do? Is that all being determined bycourt cases and common law? Or are there some movements to actually have licenses tocrenellate limited through legislation?GREG LASTOWKA: The licenses to crenellate are issued as a way of essentiallychecking the proliferation of castles. The castles are very important, as you said, tonational defense, but the monarch usually has a certain relationship with the aristocracy,and theres always a threat, a faction of the aristocracys going to overthrow the monarchyso you dont want them to be too powerful, right, you dont want them to arm themselvesover much. So theres this balance between the state and private technology ownership,and you can see that today. Military technology in the tanks and machine guns are notavailable to the average consumers, right, because this is too powerful a technology. Wedont want that kind of power, unless its licensed by the state.So with Virtual Worlds, I think the analogy that Im trying to draw there is that thetechnology becomes very important to society the way that the owner of one of theseplatforms can kind of oversee that society can change the rules of the society and can kindof set up its own private order on the platform. When I see the controversies overFacebook, for instance, if Facebook makes a change to its privacy policies or doessomething that the legislators sometime react and say, "Weve heard youre doing this.Why are you doing this? Answer these questions."
And theres this kind of regulatory wariness about what some of these private platformshave the power to do. Google as well. When Google gets really big, I think the governmentlooks at it and says, "Is it too big? Does it have power that were concerned about?" Sotheres this interesting back and forth, I think, between the ownership of these veryimportant and very influential technologies that can act as social regulators and the stateitself. So you could talk about licenses to crenellate. By analogy. you could say that this issomething thats happening anytime law encounters new technology.I think encryption regulations, the need for back doors to some technologies in order toenable surveillance and stuff, these are all kind of analogous to licenses to crenellate, buttheres some technologies, even information technologies, where the state looks at it andsays, "Wait. You could have some technological power, but that technological power issomething that we need to control and to license selectively."ROBERT BLOOMFIELD: We have a number of comments on Terms of Service. LindenLab, of course, which our viewership is very familiar with, has on occasion changed theirTerms of Service. And one of the interesting things is that you have to accept the Terms ofService to get back in and get access to the stuff that you created under the old Terms ofService.GREG LASTOWKA: Right.ROBERT BLOOMFIELD: So it is reminiscent to a passage in your book on the ProCD v.Zeidenberg case. If you could just walk us through what that case found and how that hasinfluenced views on Terms of Service.GREG LASTOWKA: Sure. The ProCD case was actually concerning the enforceability ofa shrink-wrapped license. So you get a piece of software, you buy it in a retail outlet. Youget it home, you unwrap it, and inside theres a License Agreement that says, "By breakingthe shrink-wrap, you have agreed to the Terms of Service that govern your use of thissoftware." So there were certain terms with regard to the software, in that case, that thecourt said were enforceable. One of the questions was, "Well, how could the contractpossibly be enforceable if the purchaser of the software was unaware of the terms of thecontract when the software was purchased at the store? It was only after they got the
software home that they could read the terms and see what of the terms of the softwarewere."And the court in that case didnt have any problems, Judge Easterbrook didnt have anyproblems enforcing the terms of the agreement. And essentially Easterbrooksposition--and he takes this position in many of his cases--hes a believer in marketeconomics and law in economics essentially that, by having the terms inside the softwarebox and having the terms kind of spell out the agreement, that this would be an efficientway to create uniform rules for the software industry. And, if the user didnt like thoserules, was free to return the software subsequently and get a refund on the purchase.Essentially Easterbrook said that this freedom to contract is unproblematic, even if yourenot aware of the terms at the point of sale, that what we want to do is let private partiesform their own agreements. So the ProCD case becomes the basis essentially for, I think,the software industrys reliance on Terms of Service and End User License Agreements togovern consumers relationships with the software that they purchase and own.And when we moved into the internet era, instead of getting shrink-wrapped licenses, wehave click-wrapped licenses and browser-wrapped licenses so that when you sign up for anew service, like Yahoo! mail or Second Life or any other Virtual World, when you installthe software, you have to click "I accept." And Ive read these Terms of Service. The factof the matter is that most people dont read the Terms of Service; maybe one percent ofconsumers are going to read the Terms of Service. Theyre all going to scroll downthrough them and then click "I accept, I agree."And this is, I think, increasingly problematic as a way to protect consumer interests in theonline context because I think many people dont realize the extent to which theyre relyingon a company like Google or Yahoo! or a Virtual World company. When you start off,youre going to agree to the Terms of Service and enter in and think, "Well, if I dont likethis, Ill get out. I dont want to spend the time reading this document." And, even if you doread the document, you might not understand it because most of the time theseagreements are written in legalese, right, so you might not know what the terms mean,and it might be hard to understand, and they might point to other documents where youdont understand those terms as well. So from the consumer perspective, I think itstroubling that the contract governs the relationship between the consumer and thecompany.
Theres obvious reasons why the companies want to do this, especially in the earlyinternet, no one knew where the next legal challenge would be coming from. So for thecompany, if youre representing the company, as a lawyer, you want to put in all of thedefenses you possibly can so that your startup will not be tanked by a lawsuit. But I think,as companies become more stable and more mature, there are increasing concerns aboutclick-wrap agreements being the way of setting out rules. I think theres a special concern,a really special concern, about click-wrap agreements in Virtual Worlds or in socialsoftware more generally.In Virtual Worlds, the law that you need is not only the law that governs the relationshipbetween the user and the platform owner. You want to have a set of rules that govern therelationship between the users so when one person is interacting with another person in aVirtual World, they need to know what the rules are for their interactions with each other.And often the Terms of Service or the End Users License Agreement doesnt do a goodjob of describing clearly what your rights and duties are with respect to each other.ROBERT BLOOMFIELD: And now youre stepping into Josh Fairfields arena of theAnti-Social Contract.GREG LASTOWKA: Right. Right. Exactly. And his argument--hes got a complexargument. But one thing that he says is that contract is not the ideal mechanism forcontrolling relationships between users. We dont have--our system of law, essentially arelationship between the individual and the state. Instead, we have a whole system ofprivate law that governs civil actions, like tort law governs negligence. You can suesomeone else if they do something, if they assault you, its an intentional tort, or if they failto perform a duty that they owe to you. And that doesnt arise from your relationship withthe state.So to the extent we want these online societies to flourish and we want to protect userinterests in Virtual Worlds and other kind of social software platforms, the law needs tomaybe step in or we need to see the emergence of some system by which disputes canbe resolved between users, between avatars in Virtual Worlds. So the click-wrap Terms ofService, the standard agreement right now, is only about the user and the company, andwe really have a different landscape that were looking at now.
ROBERT BLOOMFIELD: One of the things I wanted to ask you about is the distinctionbetween types of platforms and types of media and what they mean in the law. As anaccountant, one of the phrases Im very familiar with is "substance over form." That if thesubstance of an economic interaction between two parties is similar, then we want toaccount for it the same way. Id love to believe that the law was similar, but, as far as I cantell, its not. To take an example thats close to my heart, here at Cornell, Cornell has alongstanding policy that a professor who writes a book, the old-fashioned thing that foldsopen, made of paper, then they retain all the copyright.Cornell will say, "Look. Yes, we employ you, but you write books, and thats fine. And youcan keep the copyright and make whatever money youre going to off of that." But thecurrent policy, and I know theyre trying to change this, but, for a long time now weve hada policy that, if you write a document thats maybe a Word file or a PDF, like your book,thats not a book, thats encoded content, and Cornell will claim the copyright to that. Itseems to me a case where the substance of whats happening is identical, but becausethe forms are different, the policy is different, and my impression is, its the same in thelegal sphere, with case and civil law. So first, do you see that there are big differencesaccording to simply the digital form? And do you see those getting bigger or ultimatelyconverging?GREG LASTOWKA: Yeah. I think thats a great observation, and its definitely true of lawthat much of law is written down in statutes with particular wording, or in common-lawdoctrines with particular wording. So theres a great deal of, I guess, fixation in the law onspecific categories of things. Either it fits in this box or in that box and a great deal offormalism. I think there are periodic attempts to rewrite the laws, to get past formalcategories. But as I was saying before about the traces of feudalism in the legal system, Iteach about the law of estates and future interests. There are all sorts of formal categoriesof property rights. For instance, possibilities of reverters, life estates, all sorts of abstractlegal categories that can traced back to the medieval era hundreds of years ago inEngland, and they persist to this day. We still have these particular boxes of propertyownership interests.So one thing that the law does when it encounters a new technology is struggle often with,well, which box does this new technology fall into.
The one thing that was actually in the book, and I cut it out of the book, just to make itmore focused on Virtual Worlds, was, I had an extended treatment of the Segway, themachine that you ride around on. And the unique thing about the Segway was, it fellbetween categories. Basically the question was: Should you be able to drive a Segway onthe sidewalk? Or would you need to drive it on the road? Because its not exactly a car,but its not a person walking. Right? Its not a wheelchair or crutches or something likethat. So what kind of technology is it? And all around the world, the Segway I think is notas popular a technology as it was thought to be by its inventors. But it is a technologythats out there, and, as a result, all around the world governments are kind of strugglingwith what exactly is this, and what law governs it. And you see that across so many areasof law. You see struggles with, well, is this more like one thing in the past or more likesomething else in the past.For instance, theres a Supreme Court case--and this is another thing that I actually cut outof the book; it would have been in Chapter Four--where a police officer uses a thermalscanner on the side of a building. This is the Kyllo case that was before the SupremeCourt.ROBERT BLOOMFIELD: I can remember this.GREG LASTOWKA: Yeah. You remember this case? And the question was: Had theyactually--ROBERT BLOOMFIELD: And I think its discussed in Larry Lessigs Code 2.0, I believe.GREG LASTOWKA: Yeah, that would make sense. Yeah. It was a very big case at thetime. And the question is: If the police officer, if theyre scanning the side of your house,with a thermal scanner, and seeing the heat signatures of things inside it through the useof this technology, are they conducting a search of your house? Because theyre actuallynot entering into your house; theyre outside of your property. So is this a search, or is thisnot a search? In the past, you could never actually go and see inside someones house,without actually knocking on their door and stepping inside. And, for that, you needed awarrant. So the question is: Do you need a warrant to use a thermal scanner on the side of
the house?And the Supreme Court said yes, that that actually was a search, that particulartechnology, but it had to struggle with what category. Does it fit in the search box, a FourthAmendment-violated search that requires a warrant? Or is it just something else? Forinstance, GPS scanners right now, theres a similar question: Does fixing a GPS locater tothe bottom of a persons car and surveilling it, without the warrant, does that constitute asearch or not? And the courts are struggling with this. We have differing opinions fromcircuit courts.So new technology always does this to the law. It had neat categories, and then the newtechnology destabilizes those categories, and the courts have to struggle to fit this newtechnology in one category or the other. And sometimes it doesnt really fit in one categoryor the other very well. When I talk about rights of virtual property in the book, claims that Iown the castle in Ultima Online or I have no interesting in the castle in Ultima Online.Whats probably the best solution, in some cases, maybe not all cases, is some kind ofcompromise where theres a limited property right that might be trumped for a variety ofreasons. And the law can create that, but maybe thats something thats more of alegislative solution than a common-law solution to arrive at.So yeah, with your question about Cornells policy, I think universities were verycomfortable in an age where students were educated by coming to the university, andprofessors published books, but that wasnt the same as learning at a university. Andwhen the internet enabled distance education and putting out materials online, theuniversities started to get concerned and said, "Well, if its electronic, then its not a book,and it doesnt fit under the traditional rules so we need to actually own the copyright inthat, to protect our own interests." Its turning out to be very complicated on that front aswell.ROBERT BLOOMFIELD: I see we have about 15, 20 minutes left, and I want to makesure we get to one of the most recent examples of, well, in this case, video games ratherthan Virtual Worlds making the news. And this is the Supreme Court oral arguments overa statute in California that would, I guess, keep children from being able to buy and playdeviant, violent video games. This also extends this notion of substance over form, andthere are some very entertaining quotations here, who are, as the justices try to sort out
what this medium is. So you wrote that you see the California statute as an example ofmoral panic over new media.And so Paul Smith arguing for EMA, who is unhappy with the California law, say, "We dohave a new medium here, your honor, but we have a history in this country of newmediums coming along and people vastly overreacting to them, thinking the sky is falling,our children are all going to be turned into criminals. It started with crime novels of the latenineteenth century, which produced this raft of legislation, which was never enforced. Itstarted with comic books and moves in the 1950s. There were hearings across the streetin the 1950s where social scientists came in and intoned to the Senate that half thejuvenile delinquency in this country was being caused by reading comic books. We hadtelevision, rock lyrics, and now the internet." Do you agree? I mean this sounds sort of likeDemetri Williams position here.GREG LASTOWKA: Right. And I do agree with that. I think a lot of the popular reactionagainst video games is very similar to these former sorts of moral panics where videogames are blamed for societal problems generally, that they make an easy target. Itssomething new. Its something that most adults that would be in the position to pass lawscensoring this material would actually not know much about, but be very suspicious of.You can think of examples of graphic violence in games that people find shocking, and, asa result, we see kind of a reactive legislation trying to keep this material out of the hands ofkids. So I do think of it as really being a kind of continuation of these previous moralpanics.At the same time, I do think that, personally, I find overly-violent video games notsomething that I would have my children playing, and I find them sometimes disgusting. Ithink Justice Scalia pointed out in the oral arguments that theres some terrible things inGrimms Fairy Tales, right, that he finds disturbing as well. So what I find troubling aboutthe California statute is, it says this treatment for movies, which basically have the sameeffects, media effects, in terms of increased aggression levels, etcetera, as youll see onthe studies of violent video games, that movies are carved out as situations thats notcovered by the California law, but video games are targeted. And I think its verysuspicious and that the social science doesnt really support targeting video gamesexclusively for their media effects.
Plus, the First Amendment tradition that we have in this country, and other countries donthave it, but the First Amendment traditions we have in this country say that, even if youfind something disgusting and distasteful, theres still a right to convey that message. Andthere are limitations on these First Amendment freedoms, but they are not, asJustice Scalia points out, for violent depictions in speech. So this would be somethingentirely new if it were endorsed by the Supreme Court. I dont think it will be.ROBERT BLOOMFIELD: Well, my understanding is that there have been many attemptsto have these types of censorship laws, and none of them have really even come close topassing First Amendment muster.GREG LASTOWKA: Yeah. The one thing about this case that separates it from themainstream First Amendment cases, there is a case called Ginsberg where the state ofNew York passed a special law targeted at keeping obscenity out of the hands of minors,and that case was actually endorsed by the Supreme Court as a way of extending kind ofparental interests through state legislation. However, subsequently, the legislation thatwas passed trying to create a similar kind of top-shelf area keeping indecent speech awayfrom children on the internet was struck down by the Supreme Court, in Reno v. ACLUand subsequent cases. So it would surprise me a lot if the Supreme Court were to upholdthis California statute.ROBERT BLOOMFIELD: Were going to run out of time to talk about this because I wantto get to a couple other things, but I do just want to point out to our viewers a couplewonderful quotes. Im going to paste in a hyperlink. This is from Slate. Dahlia Lithwick onSlate has an article that is written in a very humorous style, but the quotes from the oralarguments really couldnt be funnier on the Supreme Court scale, of course. But one ofthem is that Justice Scalia wants to know what James Madison thought about videogames and whether he enjoyed them. And Alito follows up, saying, "Video gamesrepresent a new medium that couldnt have been envisioned when the First Amendmentwas adopted." And then Lithwick comments, "Scalia looks as though hes been stabbed inthe back with a rusty bayonet. Mastery of defense, originalist defense of livingconstitutionalism: 5,000 points."And then, of course, we talked a bit about fantasy early on. Justice Sotomayor asks this ofthe person representing the California statute, defending it, she asks, "Would a videogame that depicted a Vulcan, as opposed to a human being, being maimed and tortured,
would that be covered by an Act?" And Morazzini says, "No, it wouldnt, your honor,because the Act is only directed toward the range of options that are able to be inflicted ona human being." And I know you commented on your blog post. So Vulcans arent peopleso violence against Vulcans is not covered by the statute. But then it turns out that virtualhumans that spring back to life after they are disemboweled would be covered, even if itwould degenerate [CROSSTALK]GREG LASTOWKA: Because theyre humans.ROBERT BLOOMFIELD: So I strongly recommend that viewers take a look at that. Butwith our last ten minutes, I do want to turn back to a couple other issues. We have somequestions from the audience I want to get to. And the first is, there was quite a bit ofcommentary early on, on the way you chose to publish your book. I guess actually whydont you describe for us how you are getting your book out there?GREG LASTOWKA: Well, its published under a creative commons, noncommercialattribution 3.0 license, which means that people are free to distribute it non-commercially,as long as they provide attribution to me, as the author. My personal preference is to getthis into the hands of anybody who wants to read it on the screen. Of course, I cantsubsidize wood-pulp distribution of the books to everybody who wants to read it on paper,but I can give away the text to anybody thats interested in this topic, and thats what Ivedone by putting a link to my webpage where I actually have a copy of the text.And Im really grateful actually to Yale University Press for letting me do that, for offeringme that arrangement. Its really great to be able to publish a hard copy of the book, withsuch an excellent publisher, and also be able to give it away to anybody thats interestedin reading it. So thats what I decided to do. I was never hoping to make a lot of money offthe book so Im really happy if people just download it and take a look if theyre interested.ROBERT BLOOMFIELD: This is youre sort of putting your money where your mouth isbecause youve also spoken about you have some serious concerns about copyright law.There are some remarks you have to a hearing on what the impact of copyright policy oninnovation in the digital area to the board on science technology and economic policy ofthe National Academies.
GREG LASTOWKA: Right.ROBERT BLOOMFIELD: And you had a quote that I really liked, and Id just like you toelaborate on it. The quote is, "The public is not composed of pirates. It is composed ofauthors." What did you mean by that?GREG LASTOWKA: Well, my ideas about this are informed by Jessica Litman andYochai Benkler and a host of others who have written about this topic. But I really stronglybelieve that the approach that weve taken to copyright in this country has been misguidedin that what weve done is pass laws that treat the internet like a giant copying machine, inthe sense that professional creators of content see the internet as a risk. Basically, thelaws treat the internet as all downside, that theres going to be runaway copying, and nolonger will anybody want to create anything because it will be an economic incentive to doso because everything will be copied on the internet.And what I see when I look at the internet, when I look at the worldwide web, is, I see anoutpouring of creativity on these user-generated content sites, just on your average,everyday webpage. I see all of these people contributing their ideas to the internet andcontributing their creativity and their passion and their interests and helping each otherout. I just think that thats wonderful, and I think that creativity needs to be recognized asvaluable. And the technology that has enabled it needs to be recognized as valuable aswell. So we shouldnt have copyright laws that treat the average consumer as apresumptive pirate. We should have copyright laws that figure out ways to enableeverybody to put their creativity on the web and share it if thats what they want to do andthat can build on that value.And, again, its what I was talking about through the whole interview, a new technologycomes in to the legal system. The law has to put it in one box or another, and the way thatnew technologies have generally been perceived by copyright is, technologies are seen asenabling piracy and the creation of additional copies that undermine the economicincentives. I see it as a great kind of democratizing force in culture. I think that theindustries have to adapt to this new environment, this new technological environment thatwere in. But the most important thing for copyright law to do is to make itself moresensible to the average citizen because all of our activities are implicating copyright thesedays because everything is electronically mediated, and I would really like to see a
copyright law that people can understand.I teach copyright law, and it takes me a whole semester just to get the basics to mystudents. Id like to put myself out of a job in the sense that Id like to have a very simplecopyright law that people would be able to understand and would not be written essentiallyby commercial publishers and the entertainment industry to further its own interestsbecause its too important at this stage to have it be a kind of privatized and capturedlegislation. So I think giving away my book is definitely putting my money where my mouthis.Again, if people want to make their living off of content, I really endorse that, and Im notsaying that we cant have copyright. Im not saying that everybody has to move to asystem where theyre giving their work away. Thats definitely not what Im trying to say. AllIm trying to say is that, if you make the decision to make your content available in afree-access form, the copyright law should respect that and enable that because itsactually socially valuable.ROBERT BLOOMFIELD: Okay. Great. Well, we just have a few minutes left. Are thereany big points that you would like our audience to take home with them, that we haventgotten to yet?GREG LASTOWKA: Well, because you can download the book and take a look at it,Chapter Nine on copyright is where actually much of what I was just talking about withVirtual Worlds. And I think that its wonderfully complicated, and it kind of captures mypoint. One thing, and Ill just throw this on there, an additional concern is that, to the extentthat were seeing this kind of user creativity today, a lot of its being harnessed bycompanies that are kind of building their business models on the creativity of users.The final kind of analogy in Chapter Nine is again to like the feudal analogy, where serfsare tilling the land basically for the benefit of the overlord. And to a certain extent, we seethis in Virtual Worlds where users are generating the value of the platform, but the ownerand controller of that value is the platform owner, right, the company that created theplatform. Thats found in copyright as well and is kind of mediated by the Terms of Serviceand End User License Agreement. Unfortunately, I cant go into much more detail than
that very shortly, but that copyright in Virtual Worlds is a kind of key element, I think, in anyunderstanding of where the policy issues are and what needs to be adjusted.ROBERT BLOOMFIELD: Great. Okay. Well, that takes us to the top of the hour. So, GregLastowka, of the Rutgers School of Law, thanks for joining us. I believe every one of ourviewers does have the link to your PDF. I see a number of people saying, "Well, the PDFlooked interesting so I am going to buy the book."GREG LASTOWKA: Oh, great! Thats great. I like that too.ROBERT BLOOMFIELD: Yeah, thats also a useful plan. But, of course, Metanomics itselfis freely distributed, and, hopefully, some people will learn about it from that. So with that,thanks, everyone, for joining us, and we will see you next week. Thanks a lot, everyone.GREG LASTOWKA: Thank you.ROBERT BLOOMFIELD: Bye bye.GREG LASTOWKA: Bye bye.Document: cor1092.docTranscribed by: http://www.hiredhand.com