Virtual Reality and the Law

“The human imagination is an amazing thing. As children, we spend much of our time in imaginary worlds, substituting toys and make-believe for the real surroundings that we are just beginning to explore and understand. As we play, we learn. And as we grow, our play gets more complicated. We add rules and goals. The result is something we call games.
Games cultivate – and exploit – possibility space better than any other medium. In linear storytelling, we can only imagine the possibility space that surrounds the narrative: What if Luke had joined the Dark Side? What if Neo isn’t the One? In interactive media, we can explore it.”
Michael Elins, Dream Machines: Will Wright Explains How Games Are Unleashing the Human Imagination in Wired April 2006. Will Wright is the creator of, among dozens of other games, The Sims.

Personality rights and property rights are not adequately protected by End User License Agreements (EULAs). This thesis explains how they may be safeguarded by expanding traditional intellectual property rules and developing more cohesive rules for user-generated content. Currently virtual property is governed under a system where initial rights are allocated to traditional intellectual property rights holders, and subsequent rights are governed by EULAs. The traditional intellectual property rights holders have been systematically eliminating any emerging or potential virtual property rights to which game players may be entitled. This is causing an imbalance in resources and rights. The law of contract and the law of property have traditionally balanced each other. The law of contract permits parties to realize the value of idiosyncratic preferences through trades. The law of property traditionally limits the burdens that parties may place on the productive use or marketability of high-value resources by means of contract. Presently, emergent useful property forms in cyberspace are being eliminated by contract. Property law theories provide strong grounds for recognizing that property rights should inhere in virtual assets. Intellectual property rights, specifically copyright, protect the author’s expression of his ideas. The question remains who is creating what? Is it the games company who provide the backdrop and venue or the players who provide the dialogue, action, and plot? The structure and building-blocks are the legal property of the creator-company; however, each character is the embodiment of a player’s story. The fair use doctrine creates a “breathing space” for certain subsidiary or derivative uses of a work by declining to recognize the copyright holder’s entitlement to control (or exploit) the markets for these uses. In determining which of these uses fall into this breathing space, the courts will use a sliding scale.


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