Fantasy Life, Real Law
Posted Mar 18, 2007 10:21 am CDT
Beathan Vale was concerned about his local court system, which had only one judge.
As a member of the Confederation of Democratic Simulators, he took an active role in the development of his local government in the community of Neufreistadt. Ideally, Vale believed the community’s judicial branch should be modeled to resemble the U.S. Supreme Court. But its lone judge, an English barrister and fellow confederation member named Ashcroft Burnham, favored an English common-law approach. Burnham also got to personally select the court’s new appointees, and the lack of oversight didn’t sit well with Vale.
Ultimately Vale prevailed. Neufreistadt rejected Burnham’s court scheme—and the idea that participation be limited to lawyers.
Both men meet on a regular basis to discuss—and often debate—the direction of Neufreistadt’s legal system. Yet they have never actually seen each other in person. That’s because Neufreistadt isn’t an actual town, and Vale and Burnham aren’t real people. While they do exist, they do so within the realm of virtual reality, in an expansive cyberworld called Second Life.
Launched in 1999, Second Life is an animated, three-dimensional virtual world run by a privately owned company called Linden Lab, based in San Francisco. Its investors include Amazon.com founder Jeff Bezos. Anyone at least 18 with a computer and a high-speed Internet connection can join, and millions have—about 3.3 million at press time, with more joining every day.
Among this growing group of participants are people who live as lawyers in both real life and in Second Life. They are drawn into Second Life for reasons including rainmaking and nation-building. Others say they are attracted by the myriad legal issues arising from—and existing within—this expanding alternative universe.
In industry speak, Second Life belongs to a computer game genre known as MMORPG, an acronym for massively multiplayer online role-playing game. But Second Life differs significantly from other such games in that its participants are not competitive, and there’s no dragon-slaying or raid-organizing.
Rather, the goal of Second Life participants is to simulate an alternative, often better version of real life. Its “residents,” as many call themselves, build virtual houses, buy virtual clothes and throw virtual parties, among other activities. Participants must download software to join, which can be found at secondlife.com. From there, they select an online graphic character, called an avatar, to represent them in the virtual world. Participants choose their avatar’s physical characteristics from a menu. Avatars aren’t limited to the human form; they also take the shape of robots, animals and cartoon characters.
Each participant is allowed to create his or her own first name, but last names must come from an available list. Basic membership is free, but for an annual fee of $72 participants can access a host of upgrades, including the creation of multiple avatars.
Once a participant has created an account and an avatar, it’s time to explore. The world of Second Life is virtually limitless, with areas such as towns and islands, beaches and ski slopes. Actions are similarly limitless. Avatars can sit, fly, walk, dance—even have sex. Communication is exchanged through real-time chat and instant messaging programs. Avatars animate through mouse clicks and keyboard commands; more complex actions require what’s called an animation ball. A mouse click activates the ball, which in turn enables an avatar to make the desired movement.
Even commerce is in motion here, fueled by Second Life’s virtual currency, called Linden dollars. Participants buy “Lindens” from Linden Lab (in December, $1 of U.S. currency bought $270 Linden). Just about anything that can be bought in the real world can be had in Second Life.
Shaping a New Identity
While second life is technically considered a game, many of its participants beg to differ. “There’s no keeping score, no winning or losing,” says Bob Van Der Velde, a Mentor, Ohio, lawyer who participates in Second Life under the handle Justice Soothsayer.
“When you obtain an avatar name or buy virtual land, you buy server space to express yourself and your creativity much the way an artist buys canvas and oils or a blogger creates a Web page.”
Van Der Velde is one of several lawyers who take their real-life profession into Second Life. Careers in the virtual world are limited to a user’s imagination, and for some, the space allows them to be the lawyer of their dreams.
“Many people have active fantasy lives in which they want to pretend to be things they are not because it makes their real life more bearable,” says Benjamin D. Cushman, the lawyer behind Beathan Vale. “This really is a tool to enhance the daydreaming experience.”
In real life, Cushman handles construction, property and timber law matters in Olympia, Wash. Previously, he helped an American Indian tribe establish a court system, but because he wasn’t a tribal member—his ancestors were European pioneers who came west—he was only allowed to play a limited role.
Neufreistadt, Cushman’s Second Life community, was set up by political science professors interested in trying out ideas. The virtual city has its own constitution and legal code.
“Here I actually am a full member of the community, with every right to participate,” he says. “I thought I would never get a chance to do anything like this again.”
Second Life allows Benjamin Duranske to indulge in the lighter side of law. The San Francisco lawyer, who goes by the name Benjamin Noble online, founded the Linden Bar Association, which in December counted a membership of about 30, mostly lawyers and law students. What Duranske does for the group, he says, is much more exciting than his real-life responsibilities as an associate with a large national firm.
“Mainly, I’m not interested in doing legal work in my off time,” says Duranske, who is on sabbatical to write a book. “But organizing lectures and setting up systems doesn’t feel like work.”
For others, the appeal is the mere existence of Second Life. “These role-playing games are kind of laboratories for studying the emergence of rules, because the more people get involved and the more money is at stake, the more rules you need to regulate interaction between people,” says Richard Posner, the 7th U.S. Circuit Court of Appeals jurist from Chicago.
Also a well-known law and economics scholar at the University of Chicago, Posner is fascinated by the implications of virtual interactions, like the ability to use real money to buy virtual money. Posner wonders about potential real-life legal issues such as whether that action triggers actual tax implications.
In December, Posner even “visited” Second Life, making a guest appearance on Kula Island to talk about his recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency. The book addresses adjusting civil liberties in the wake of the 9/11 terrorist attacks.
Aside from wearing high-water suit slacks that really looked more like leggings than slacks, Posner’s avatar resembled the jurist somewhat. The avatar’s face was designed through real-life photos, and a student at the University of Chicago Law School helped him dress the character.
“The first thing he came up with was kind of a flashy costume; he described it as ‘metrosexual,’ ” Posner says. “I said that really wasn’t me.” Eventually a suit was found. Posner still wasn’t crazy about it.
“There weren’t that many options for men,” he says. “I would have preferred something more Brooks Brothers.”
At the close of the session, Posner “autographed” virtual copies of his new book. To get his autograph, avatars waited in line to enter a red circle, where Posner’s avatar stood. When the real-life jurist mouse-clicked a writing table in the circle, a ray of light came from his avatar, and a digitalized copy of his signature appeared on the cover of the onscreen book.
In the audience was Stevan Lieberman, a Washington, D.C., intellectual property lawyer who calls himself Navets Potato in Second Life.
“Second Life is essentially a method where I can socialize and talk to my peers, and do it from my living room,” Lieberman says. “Like Judge Posner. I’ve never met him, and in the real world I don’t think I’d have a chance to meet him. But in Second Life I’m able to walk up, shake his hand and say hello.”
Lieberman has multiple avatars. He has one that resembles how he looks in real life and six more—all selected based on what he wants to accomplish.
“I have another avatar that wears jeans and a T-shirt, and one that’s very large and imposing,” he says. “I’ve found that when you’re in an argument with someone, there are advantages to changing your avatar to one that is larger and more imposing. I even have a triceratops one, and if I really want to push a point I’ll switch to that one.”
Van Der Velde, the lawyer known as justice Soothsayer, is using Second Life to create the ultimate teaching tool.
A paralegal instructor at Eastern Michigan University, he has commissioned a designer to construct a replica of the Supreme Court within Second Life. It’s on Democracy Island, a virtual location created for people interested in government that is sponsored by New York Law School and the ICAIR Foundation and Institute for Information Law and Policy.
“It’s kind of part of the ‘wow’ factor of Second Life,” says Van Der Velde. From the outside, it boasts replicas of the court’s famed marble columns and carved panels. Inside, photographs of the nine Supreme Court justices hang above the virtual structure’s bench, and their biographies can be obtained by mouse-clicking the images. Visitors are free to sit in the justices’ designated chairs or at counsel tables, which come complete with your-time-is-up warning lights.
Van Der Velde says virtual appeals could take place in his rendition of the court, or the location could be used for law school mock trials. Lawyers could also do mock trials there, for far less cost than a real-life mock jury. The only potential problem, some say, would be opposing counsel sneaking into your mock jury pool.
Others imagine Second Life disputes will bring virtual litigation. Cushman mentions possible construction defect cases, since residents can pay one another to build virtual homes. Or employment disputes, since avatars can be hired to perform tasks such as gardening, cleaning or dancing, with wages paid in Linden dollars.
“Any type of commercial dispute that could arise in real life could arise in Second Life,” Cushman says. “These cases involve real money.”
He allows that, with a 1-to-270 exchange rate, the money at stake is not much, especially for Americans. But the stakes may be significantly higher for participants living in countries with a weaker dollar. And all those transactions add up: According to press accounts, every day the game facilitates some $250,000 worth of transactions—and that’s in U.S. dollars, not Lindens.
This could result in Second Life cases being brought not only within the game, but in real courts of law. In fact, last October a case that originated in a Second Life dispute made its way to a Pennsylvania county court. The suit arose from a series of virtual land deals gone bad, and it seeks thousands of dollars in damages from Linden Research Inc., plus return of the land.
Copyright infringement is another issue ripe for real-world litigation. Within Second Life, users design everything, and they retain their own copyrights. Coexisting with this ownership is the ability to launch a program called a CopyBot. This external application, which was not created by Linden Lab and must be obtained through outside sources, can be brought into Second Life and used to make unauthorized duplicates of nearly any item in Second Life.
John Pemberton, an intellectual property attorney in Rowlett, Texas, has taken a personal interest in this issue. His real-life girlfriend creates and sells virtual chaps in Second Life, and she owns the copyright to them. “They have fringe, and when you walk the fringe moves—it’s kind of cool,” says Pemberton, who goes by the Second Life moniker of Tex Ranger. Should somebody copy her chaps, he says, she might have a case against them.
There’s also the problem of second life residents who create and sell items that could be considered in violation of real-life trademarks, such as purses emblazoned with famous logos. As a growing number of companies, including Nike and Toyota, are establishing sales and marketing presences in Second Life, Pemberton predicts that companies will start bringing real-world infringement actions against Second Life participants.
Pemberton says he has toyed with the idea of opening a virtual help desk in Second Life, where he would answer any general legal question that an avatar might have. Other lawyers participate solely for enjoyment—but if virtual legal work arises, they’ll take it.
“I’m here to have fun, relax and enjoy,” says an East Coast associate who asked that her real and Second Life names not be revealed. She feared bosses might see Second Life participation as eccentric and didn’t want partners checking out her virtual home, built in a community called Caledon. Residents there dress in Victorian attire, and buildings must be based on 19th century architecture.
This woman, a litigation associate, placed a classified advertisement in Second Life detailing her online legal services. So far, she has represented another participant imprisoned for indecent exposure at a virtual location modeled after the Old West. And she provided advice to someone with a large virtual-real-estate portfolio. Her advice was based on Second Life’s terms-of-service agreement, and he paid her in trees for her virtual home.
In December, she hosted a virtual Christmas party. She purchased virtual food and beverages for the event. Guests could eat and drink by clicking the icons. The associate hosted a holiday party in real life too, but at the time of the interview she was dreading the work that planning a real-life event entails. She usually visits Second Life nightly. “But earlier this week I had a TRO, so no Second Life for three days,” she says.
While the associate enjoys providing virtual legal services, she also has concerns about liability issues. However, she is open to the idea of getting real-life clients from the community, as are others interviewed for this article.
Real-world rainmaking is the primary reason that D.C. lawyer Lieberman—aka Navets Potato—participates in Second Life.
“I build out a lot of Web sites to bring clients in,” Lieberman says. “Up until finding Second Life, that’s what I’d do at night when I was sitting at home watching TV.” Lieberman has a virtual law office in Second Life. Visitors teleport between floors, and the structure includes renderings of stained glass windows. Like the East Coast associate, Lieberman placed an advertisement in the Second Life classified section, but his listing also directs viewers to his real-life law firm Web page. As of December, he had picked up about $7,000 in business from Second Life.
While Lieberman usually meets new clients in person at his law office, he envisions conducting client meetings via avatars who meet in Second Life locations. That way he can advise clients in other locations without travel, and Second Life’s 3-D visuals could help explain his work better, he says.
“Part of the practice is educating clients, to the point where they can understand what you’re doing,” Lieberman says. The “3-D animation will show people and explain with pictures what a patent is and what a trademark is. You can show them that much more easily when people can walk in at random and take a look.”
Cushman is also exploring the idea of moving from the judicial involvement of his avatar, Beathan Vale, to meeting his real-life clients in Second Life. But Cushman says he has some concerns about how lawyer regulatory agencies would view online communication. There’s no expectation of privacy in Second Life, he says, and he was not sure whether the server is secure. (It is, according to a Linden Lab spokesman; Alex Yenni says Second Life exists on a closed server network, which is “protected to the utmost extent by Linden Lab engineers.”)
Since Second Life allows users significant opportunities to meet others, it seems that the virtual world could be ripe for real-life business development. Yet dialog there that’s delivered through chat rooms and instant messaging is considered real-time communication, and many lawyer regulatory agencies consider that solicitation. Most states prohibit lawyers from contacting potential clients through the Internet, unless the potential client is a family member, close friend or someone with whom you had a prior professional relationship.
And that prior professional relationship exception probably doesn’t include a situation in which an avatar interacted in a professional manner with another avatar, says Mark L. Tuft, a San Francisco lawyer who handles professional liability matters.
Tuft doesn’t think real-life lawyers would be prohibited from advertising their real-world services in Second Life. But he says that real-world considerations would likely apply, such as obtaining approvals from regulatory agencies that police lawyer advertising.
“Having your avatar give real-life legal advice could run afoul of ethics rules,” he says. But offering counsel for virtual disagreements, such as a dispute over one’s Second Life home, would probably not interest any legal regulatory agencies. Tuft makes a comparison to the popular board game Clue, where players represent characters staying at a house whose owner has been murdered. “Years ago I used to play, and I could be Colonel Mustard,” he says. “This is an electronic version of some make-believe type of interactive game, which is fine.”
Cushman recently contacted the ethics hotline of the Washington State Bar Association to see if the agency had regulatory power over his Second Life activities. The person who took the call was not familiar with it, so Cushman attempted to explain, mentioning that while it is structured like a game and has gamelike aspects, there are real economic transactions and it’s part of the real-world economy.
“He said his first instinct was to say it’s sufficiently gamelike to not be of interest to the regulators, but he also said I should submit a request for a formal ethics opinion,” Cushman says. He has not had a chance to do so yet but plans to in the future.
“If there is an intention, and action on the intention, for people to obtain real-life clients, they fall under real-life rules,” says Will Hornsby, staff counsel in the American Bar Association’s Division for Legal Services. “If a lawyer is going to participate in this, the best practice would be to have some kind of disclaimer saying that nothing translates out.”
Residents of Second Life may see such language as real-world trappings. They also note that the profession is often slow to address technology that changes how lawyers do their jobs.
“It’s so new, we’re very much in the frontier days of the program,” Van Der Velde says. “But that’s what they said about the Internet in 1994.”
Lawrence Lessig, a Stanford Law School professor and technology scholar, says it’s important to distinguish between MMORPGs and the Internet, in part because Second Life participants have more interaction with people from different countries.
“As virtual places like Second Life mature and people spend more time there, the places really aren’t arbitrarily related to any legal jurisdiction,” says Lessig, founder of Stanford’s Center for Internet and Society. He also founded Creative Commons, a nonprofit group based at the law school that encourages sharing of copyrighted works. Lessig is one of Posner’s former law clerks, and Creative Commons—which has a significant Second Life presence—sponsored Posner’s appearance there. “It really becomes effectively, if not legally or technically, like a new jurisdiction,” Lessig says of the virtual world. “The question of how the law deals with that—I don’t think anyone has a clear sense.”
Figuring Out The Future
It may be time to start looking for answers. Lessig mentions early trespass laws, which defined property from the “grounds to the heavens.” When airplanes became common, the law no longer worked, Lessig says, and the Supreme Court adjusted it. Likewise, if Second Life allows better access to legal services, Lessig wonders, why shouldn’t lawyers use it without fearing reprimands from attorney regulatory agencies?
“We ought to welcome new ways to deal with legal problems,” he says. “The thing to be suspicious of is a response that is designed not so much to solve a true legal problem but to protect particular interests in the legal system.”
After all, there are plenty of laypeople who turn to Second Life for the opportunity to play lawyers, says Cushman. And he thinks that’s OK. Fantasy is what this world is all about, and he speculates that someone so inspired by life as a virtual lawyer may be spurred to earn a real J.D.
“The great thing about Second Life is you can pretend to be a lawyer, see if you like it—and if so maybe you can become a lawyer,” he says. “I’d hate to deprive people of that.”
CorrectionIn "Fantasy Life, Real Law," March (2007), page 42, the virtual Second Life Bar Association was incorrectly identified, due to an editing error, as the Linden Bar Association. The Journal regrets the error.
Stephanie Francis Ward is a legal affairs writer for the ABA Journal.
Stephanie Francis Ward is a legal affairs writer for the ABA Journal.