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The Vanderbilt Journal of Entertainment and Technology Law recently released its latest issue containing 11 articles on virtual worlds and user-generated content. Below are the abstracts from three of those articles: A First Amendment of Second Life: What Virtual Worlds Mean for the Law of Video Games, by Marc Jonathan Blitz; The Magic Circle, by Joshua A.T. Fairfield; and The Tangled Web of UGC: Making Copyright Sense of User-Generated Content, by Daniel Gervais.
- A First Amendment of Second Life: What Virtual Worlds Mean for the Law of Video Games
In the first decade of the twenty-first century, video games have finally taken their place alongside movies, comic books, and drawings as a form of protected First Amendment speech. Since the Seventh Circuit’s 2001 decision in American Amusement Machine Association v. Kendrick, court after court has struck down ordinances and statutes aimed at restricting violent video games–on the grounds that such violate game designers’ and players’ First Amendment speech rights. This series of rulings marks a stark change from courts’ previous stance on video games, which consigned them to the same realm of unprotected non-speech conduct as games like tennis, chess, or checkers. Video games were able to escape from this unprotected realm–and become First Amendment expression–largely because advances in computer graphics and design made them more and more like interactive movies and television shows, and less and less like digitized board games and pinball machines.
But instead of simply forging ahead in this jurisprudential evolution, as video games evolve from personal forms of recreation to virtual worlds, this Article suggests that virtual worlds should make us rethink the First Amendment theory that got us to this point. This is because, while video games may have become First Amendment speech by becoming intricate movie-like stories, many virtual worlds are decidedly not scripted stories. They are rather stages for a multitude of expressive activity, some of which is an electronic analogue of the chess-playing, tennis-playing, car racing, or aimless lounging and wandering, that the courts excluded from the realm of First Amendment speech in an earlier era. This Article argues that this exclusion was a mistake. Virtual worlds are realms of First Amendment expression not because of the stories and role play they make possible, but rather because they provide a setting for giving form to imagination in sounds and imagery, a setting that can be walled off from the business of civil government and thus reserved for more unconstrained exercises of individual freedom. Stories and messages are an optional part of this setting and are not a necessary ingredient of First Amendment speech. This is not to say that government has no role to play in regulating virtual worlds: where individuals bring harm-threatening activity into virtual worlds involving acts that abuse others’ money or reputation, for example, government might have to regulate such worlds. But such regulation must take place alongside of, and not simply displace, the First Amendment’s application to virtual worlds.
– Article Author: Marc Jonathan Blitz
- The Magic Circle
This Article examines the concept of the “magic circle,” the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no “real” world as distinguished from “virtual” worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual worlds through their agreements, customs, and practices. This leads to a new conception of the magic circle: the point of interface between community-generated norms and background law, which often adops local norms as legal rules.
– Article Author: Joshua A.T. Fairfield
- The Tangled Web of UGC: Making Copyright Sense of User-Generated Content
Even as a mere conceptual cloud, the term “user-generated content“ is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation–the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work was used. One might also rely on another type of fair use defense–for example, that the second work was used in news reporting, or, although the case law on this point is still controversial, that the reproduction was fair use because it made the work more accessible. While it is clear that creating original content by reusing existing content is nothing new, the focus here is on amateur creation and reuse and the Article discusses whether the amateur nature of the content constitutes a new normative vector. The Article suggests that the first step to find adequate answers is a proper taxonomy of UGC.
– Article Author: Daniel Gervais
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