Development of a Body of Law: "Second Life Law" = Possible Group Project

[Daniel Perry]

Some time ago, I raised the issue of a body of law
dedicated specifically to SL. I decided to research the
issue of custom as an enforceable tenet of contract law
(my contracts law professor would be impressed that I
remembered this from his lectures - LOL!). I found a
legal treatise on the use of custom as applied to the
Internet (see below) and there is a 9 page PDF of a
law journal article attached to this email

Supranational-Internet-Law.pdf

There is also a book by the same author on this subject:

Customary Law of the Internet

Amazon: Customary Law of the Internet

 

If there is sufficient interest, I will acquire one or
more copies of the book and circulate them
around to those interested in working on the project.

 

I have created this forum topic to exchange
viewpoints on this and hope that you all will have
an opportunity to review the PDF and weigh in with
some idea of whether this is an area worth exploring.
If we could develop this concept (probably have to be
done over a period of months along with several
-- maybe 6 -- public workshops in SL) ... with all of
the attendant publicity we could increase membership
and interest in SLBA.

 

DanielPerry Laa

PS We will discuss this at the 11/19 meeting at 10 SLT

NO BOARD MEETING

[Timothy S. Faith]

Hi Dan - a few thoughts on some areas of law that might belong here:

1. US Trademark & international

2. US Copyright & international

3. Common law contract

4. Personal jurisdiction, forum selection

5. Taxation ...

6. "Real" SL Property, incl. Landlord/Tenant

7. SL Dispute Resolution

8. Linden Labs Terms of Service

[James Irving]

Hi

I would suggest that DEFAMATION be included in the list of topics proposed by Timothy Faith.  Or perhaps this would be a sub-topic under "personal jurisdiction forum selection"?

Have a look at this case note from Australia (State of Victoria): http://www.murdoch.edu.au/elaw/issues/v11n3/beyer113.html

Some of the flaming or griefing that goes on in SL is defamatory.  The willingness of superior courts (in Australia, and maybe elsewhere?) to extend jurisdiction to persons domiciled in their jurisdiction in relation to defamatory statements emanating from other countries but published on the internet could allow such courts to consider defamation suits for such comments. Whether the sL TOS agreement subscribed to by both griefer and victim would exclude a court's jurisdiction in such cases would depend not just on the TOS and the law of the jurisdiction that governs the agreement, but also on the laws of the place where the defamation suit is initiated.  For example, if the right to sue for defamation becomes a statutory right in Australia instead of a common law right - and such law reform in the defamation/privacy area is currently under discussion - it is possible that a court would ignore the TOS if they were inconsistent with the statute, on the general ground that a person cannot contract away statutory rights (which has exceptions).

I am interested in this project and should be able to participate, subject to other commitments.

 

JAMES IRVING

[Daniel Perry]

Tim & James:

Thanks for your suggestions. I expected to have an outline of proposed ideas/topics for consideration  by now but Thanksgiving and trial prep (starting a jury trial this week) have slowed me down.

 

Griefing is an important topic and should be, at least, one of the topics on our short list which we can surmise a general "custom." While griefing may have some free speech implications, am I correct that the general consensus is that griefing will get you banned in SL?

 

Dan Perry

[Timothy S. Faith]

Perhaps we ought to add a general section on Intentional Torts, which would cover things like defamation, tortious interference with contract, and other similar common law causes of action that would be applicable in SL.  I doubt, without researching it, that the SL TOS could preempt such actions, though you do have a pickle in figuring out where, exactly the tort occurred and therefore what sovereign's laws would be applicable for a common law tort. 

[Daniel Perry]

Tim:

This effort has to eschew legalese. It needs to capture what the custom is in an area or areas. I suggest that we try to eliminate the notions of a "tort" and concentrate on a limited list of "areas" of dispute upon which we can focus. For example, as I understand SL concerns, the short list is:

 

1. Theft of SL designs (dcopybot?);

2. Griefing;

3. Contract formation in SL (is this really an existing concern or SHOULD it be?);

4. Avatar ID - a timely area but can (or should) we wrap our arm around this area?

 

Dan Perry

[Rose Springvale]

At the risk of being what once would have been called a "wet noodle" (term of art!) i'm goint to disagree.  I don't think we need a Second Life body of law.   I think the nature of the platform is far too transient to spend serious legal time creating special rules, even built on custom.

Specifically: Theft:  I've worked with a few designers filing DMCA's with LL when they have designs stolen.  MANY times, the offending party is from a country where copyright protection is laughable at best.  On more than one occasion, even when the violating copies are taken down, they reappear in days owned by another avatar.  Rules changes by LL might help, but it is my opinion that LL isn't too interested in the relatively insignificant financial impact of theft of designs. To make your new body of law effective, LL would HAVE to be part of it.

2. Griefing. What is griefing? some feel it is flying penises during a public presentation. Others feel that mere speech "griefs".... we may know it when we see it, but the average SL citizen does not.  So .. how do you define it? When you start, you will no doubt see how haard it will be to ever pin down.  And No, Griefing does not result in automatic banning. Remember there are two kinds of land in SL... Mainland, owned and policed by LL and private estates, owned and policed by private owners. For anyone to be banned, someone would have to file an appropriate abuse report.  And then LL would investigate. In extreme cases, LL MAY take immediate action, but even if the suspend an avatar... the do NOT suspend the rl person.. and again, alts appear.  I know there is technology to identify alts, but my recollection is that use of such tools is actually against TOS!

3. contract formation.  While we can easily prove the formation of a contract in sl.. how are we ever going to set a standard for performance?  and if we can, and prove breach of such a contract... how do we enforce our recovery?  The only method would be to resort to rl enforcement options. in which case rl proof is going to be necessary.  And that makes the whole sl portion redundant, and as a lawyer who doesn't work for lindens, i'll be very surprised if ANY lawyer can afford to handle such cases. If the case is big enough for resolution, do you want to add another layer to the process ?

4. Avatar ID... i think this issue was pretty well covered back when the SLBA discussed verification.

Hope the discussion is good tomorrow.

Rose