Thursday, October 7, 2010

Review of Decunha's Article on Virtual Property

I spent some time this week reading Nelson Decunha's excellent 2009 article, "Virtual Propery, Real Concerns," and found it shed quite a bit of light on the otherwise murky world of virtual property rights. Bottom line, if you are a VW content creator or a member of a corporate entity that operates or does business in a VW, this article is a must read.

In addition to providing a concise history of virtual world development, beginning with ADVENT, the text-based virtual world of the 1970s, all the way up to modern MMORPGs, the article also deftly covers a variety of legal theories related to virtual property.

The gist of the article, however, is that real-world theories of property ownership are difficult to apply to VWs for a variety of reasons, and, ultimately, a combination of game design, in-world rules, and external legal structures are all necessary to protect the interests of content creators.

Game design is a moving target, but many of a VW's features are determined, and set, at the initial design phases and are difficult to change down the road. One obvious example is the difference between SL and Blue Mars in terms of content creation. Blue Mars has designed a much more controlled process that lends itself more to protecting creator's intellectual property than is the case in SL.

In terms of in-world rules, Decunha provides a cogent analysis of several different TOSs and EULAs, specifically those found in SL and WOW. Neither of these sets of in-world rules provides much protection for content creators, and in the case of WOW's EULA, none at all. Blue Mars has taken a different direction on this as well, as was laid out quite nicely here by Dusan Writer late last year.  In Blue Mars, creators retain the rights to their creations, which is exactly how it should be.

Of course, external structures for protecting intellectual property have been available since VWs first came into existence, but the specific laws have been evolving to keep pace with new issues presented by virtual property. Decunha points out that such external protections are actually a last line of defense.

Game design is the first, and broadest, method for protecting creator's rights, while TOS or EULAs provide a second line of defense if or when design fails to protect content sufficiently. Copyright, and other external laws, provide the last form of protection if or when the prior two methods fail.

In the final analysis, protection of intellectual property in VWs, according to Decunha's legal perspective, is a multi-tiered process that requires cooperation between game designers, administrators, and real-world authorities to be effective. And, as VWs gain traction as platforms for a variety of mainstream commercial, educational, and personal interactions, it becomes increasingly important to develop effective systems to protect virtual property and those who create it.

What the article does not account for, however, are the practical considerations of content creators who likely make choices about where to develop and market content based on factors other than those described by Decunha. For example, the ease of building in SL, or simple familiarity with SL's building systems, may trump considerations of risks related to game design or TOS features that don't provide protections for original content.

As long as creatives continue to create, market, and sell their wares in SL, and as long as they pay tier and other fees for their shops, LL has little incentive to change design features, or TOS elements, to better protect intellectual property. Builder's decisions to move to different platforms, such as Blue Mars, that offer what appear to be greater protections for virtual property, may be limited by the steep learning curve involved in mastering the 3D modeling programs and other processes required.

I've had some informal conversations with builders in SL, and while there's definitely angst about copyright infringement and outright theft of intellectual property, there's also a sense of resignation about how to address it. The solution for some seems to be simply to develop new creations in hopes that those won't be stolen. Structured protections of intellectual property seem to be the furthest thing from the minds of many creatives I've spoken to so far.

I'd be very interested to hear your views on this topic.

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