December 2004, Volume 90, Issue 8
Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds
by Jack M. Balkin
90 Va. L. Rev. 2043 (2004)
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Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This Article discusses the basic questions of freedom and regulation in virtual environments.
There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together.
These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play.
Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The Article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.
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