Virtual Law

From Eugene Volokh at, well… at Volokh.com

A Dutch court has convicted two youths of theft for stealing virtual items in a computer game and sentenced them to community service….

The Leeuwarden District Court says the culprits, 15 and 14 years old, coerced a 13-year-old boy into transferring a “virtual amulet and a virtual mask” from the online adventure game RuneScape to their game accounts.

“These virtual goods are goods (under Dutch law), so this is theft,” the court said Tuesday in a summary of its ruling….

Now this might sound odd — why should the legal system police “virtual theft,” especially since the ability to steal, defraud, and the like within a game may be an important part of the game? But things become much clearer when one reads the longer story, from Radio Netherlands Worldwide:

The culprits, who cannot be named due to their age, kicked, hit and threatened their classmate with a knife before the 13-year-old gave in and transferred the Runescape items, an amulet and a mask, to his attackers’ online accounts.

He makes the point that in this case real harm was done and so the ruling isn’t really all that surprising or notable. But he also says, “I continue to think that generally speaking the law shouldn’t prohibit purely in-game “theft,” “murder,” “rape,” and so on.”

I wonder.

Virtual economies are growing ever larger and more influential. The exchange rate for World of Warcraft gold (based on some admittedly back of the envelope calculations) is somewhere around 2.8 cents per gold piece, which means that one WoW gold is equal to about half a Yen.

At that rate of exchange, it’s common to find virtual items with significant real-world exchange value. If in-game theft or fraud robs a person of significant real-world value, I’m not sure that should exist outside the scope of law. Right now, the issue is complicated by terms-of-service agreements that generally prohibit selling virtual items for real cash, but such restrictions are not universal. At some point (sooner than later, I think), virtual fraud and virtual theft will rise to a level of actual harm that will be impossible for real-world law to ignore. I think the question of jurisdiction will be particularly interesting, as will be the development of virtual courts and virtual arbitration.

The largest virtual game worlds make for fascinating social laboratories. Since the worlds are essentially completely planned economies under the control of autocratic rulers with god-like powers, it’s especially fun to watch them struggle with the classic problems of a managed economy, like inflation. Friedrich Hayek would have loved World of Warcraft.

He’d have been a Gnome Tinker, of course.

Also, check out The Synthetic Worlds Initiative at Indiana University.

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Obama and the Court

After watching the debate last night, one of my first comments was that Obama’s answer to the question about judicial nominations was quite frightening.

Obama said,

If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Orin Kerr at Volokh cites a recent Rasmussen poll on this issue:

Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

On this issue, it looks like the candidate and his supporters are very much on the same page.

The problem is that the court’s responsibility is not to make law, but to interpret law. In the specific case that Obama cited, Ledbetter v. Goodyear Tire & Rubber Co., the statute in question clearly indicated, “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” The Court held that because Ledbetter’s suit was brought after the 180 period had elapsed that she could not sue under that statute.

Obama would prefer that the Court ignore the law in question and instead issue a judgment based on some necessarily obscure sense of social fairness. But that way lies disaster.

Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy. (Wikipedia)

If we wish to seek a remedy for issues of social fairness, then we must look to the legislature. The legislature writes law. When we seek a remedy under the law, we look to the courts to apply the law as it is written, not as we might hope it may have been written.

The remedy for Lily Ledbetter lies with Congress to amend the law in question and extend the window of grievance. That Congress failed to amend that law may be failure, but the Court’s application of the law that Congress wrote is not.

If there is any principle of sound governance that I would hope we can all agree on it is the idea that the law should strive, at all times, to be clear, unambiguous, and applied without prejudice.

Heller Affirmed

The U.S. Supreme Court today affirmed the lower court’s ruling in District of Columbia v. Heller.

The ruling essentially affirms that “the Second Amendment protects an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.” Scalia’s opinion (joined by Alito, Kennedy, Roberts, and Thomas) clarifies the meaning of the Second Amendment to the Constitution but allows significant latitude for regulation and gun-control. The ruling is largely silent on the issue of incorporation, although it hints that it would likely decide in favor of incorporation should the issue come before the court. Expect a challenge to Chicago’s ban to be formulated within the year.

I’m not an avid follower of the court, and I only occasionally read the opinions in full, so I was struck by Scalia’s often combative tone and his contemptuous dismissal of Stevens’s dissent. I agree that Stevens’s arguments regarding the definition of “to keep and bear arms” are tortured and forced, and I do think that Stevens’s position is wrong–as it pertains to law, philosophy, and history. (I enjoyed Scalia’s destruction of the argument that the idiomatic use of “arms” would control in the latter half of “to keep and bear arms” while the conventional usage would control in the first half. Scalia likened it to saying that a man, “filled and kicked the bucket.”)

All in all, the decision does as much as I thought it might: it affirms a limited individual right to own and use ordinary weapons for legitimate purposes disconnected with formal military service. It opens the door for further rulings clarifying the bounds of the right and–possibly–incorporating it (which I would applaud: the enumerated rights mean little if they are no safeguard against the tyranny of the respective States).

What did bother me was Breyer’s dissent. His argument rests on the idea that the court should rely on an “interest balancing” test in its evaluation of constitutional guarantees. Essentially, Bryer is arguing that if the court or the legislature finds a compelling interest in vacating a portion of the Constitution, it is wholly within their rights to do so. That of course, renders the Constitution meaningless. Scalia’s response to Breyer’s dissent: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” If the people find a provision of the Constitution no longer workable, there is a means by which they can correct the Constitution: by amendment. In the absence of amendment, however, it is the legislature’s responsibility–and the court’s obligation–to protect and defend the Constitution as it written.

One final note: I find it, frankly, nearly impossible to imagine the founders agreeing with the dissent. David J. Schenck makes the point clearly on scotusblog.com,

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

The arguments Justice Stevens marshals in his dissent are tortured and seem–at least to me–entirely a-historical. The Stevens dissent strikes me, for that reason, as slightly duplicitous. The Breyer dissent is the more honest argument. Breyer acknowledges that the intent of the founders is largely irrelevant in his analysis, whereas Stevens seems willing to twist history and logic to support his position.

The debate, after all, has never really been about what the founders meant, but rather if we cared what the founders meant. Either the Constitution constrains the government or it does not. Breyer’s position is that it does not. And that’s a position that I find deeply troubling.

More on the RIAA

Eric left a comment on my previous post that prompted a lengthy response. I’ve decided to post my response as a post on its own.

Beware what you wish for.

With new media distribution comes new media tangles. The mix-tape freedom that we enjoyed when we were teens is being threatened by new business models. This new lawsuit isn’t designed to protect DRM — it’s designed to protect revenue streams. Amazon is great, but the RIAA members make money from Amazon. They don’t want us burning CDs because that keeps us from spending money at Amazon.

The problem is that the music publishers are important. Radiohead’s pay-as-you-wish music strategy was successful because they were able to capitalize on a large, distributed network of fans — fans that were acquired in large part due to the efforts of the music companies that Radiohead has now forsaken.

I don’t cry for the publishers; they made plenty of money off Radiohead. But your local garage band — no matter how good they are — can’t match Radiohead’s success. The music companies provide artists with distribution and, even more important, promotion.

Amazon, iTunes, Rhapsody — those are all distribution channels that feed into the RIAA revenue stream, and the RIAA will defend its revenue stream. The internet has changed the method of distribution, but it hasn’t (yet) eliminated the need for promotion.

I expect, over-time, the terms of publishing contracts with artists will change very little. I expect that artists will receive — on average — a greater percentage of revenue, but less revenue over all. As with book (and film) publishing, we’ll see more massive blockbuster hits accounting for a greater percentage of overall profits, while at the same time we’ll see more and more product being delivered to the consumer.

The question is how we monetize that product. If music follows the publishing industry, we’ll see big bands subsidizing the promotion of smaller bands, which may not be such a bad thing. Internet distribution will increase, as will internet promotion. But music companies will remain players so long as they can continue to help match an artist with his audience. The opening, as I see it, is for an association of musicians to band together and create an “artist-owned” promotional agency. With the costs of production declining, musicians would record and produce their own material, and then submit that material to the agency who would act as a marketing and promotional firm, as well as a clearinghouse for distribution. (Sounds like a money-maker to me! Who’s with me?)

But in the near term, I think a lot depend on political will. Copyright law needs amending, and it will certainly be amended during the next administration. But how will it be amended? Politicians being what they are, it will be amended in ways favorable to the RIAA. Regardless of who wins the election.

RIAA and Evil

The Recording Industry Association of America (RIAA) is now arguing that copying your CD onto your own computer is illegal. (No distribution required.) They’ve sued a young man for doing just that.

I doubt that they’ll succeed in their efforts. In fact, I’m a little surprised that they’d bring this suit in the first place, as a defeat would cost the RIAA far more than they’d gain in a win. The right to copy your CD is accepted practice, but it is not ~clearly~ legal. If the RIAA loses this suit, then that practice becomes further insulated from legal challenges. And I find it hard to imagine that the courts would hold that music on a CD is inherently different from broadcast music and video (the right to tape and time-shift broadcasts on VCRs and DVRs being clearly established).

However, it’s likely that the RIAA will use a slightly different tactic in this case than they have in the past. The RIAA has long held that copying and distributing music is a form of theft — theft because the RIAA members lose revenue on CDs that the parties involved would otherwise purchase. Copying music onto your own personal computer, however, is revenue neutral.

Or at least it was.

But now, with the advent of online music sales, copying a CD onto your own computer means that you don’t have to buy the song online. More lost revenue. Therefore copying =
theft.

So don’t just blame the RIAA and the record companies, blame Apple and iTunes. And the cell-phone companies too. If this trend continues, we’ll soon have to buy the song once to listen on our portable music player, again to listen in our car, again to play it on our home computer, and again to use it as ring-tone.

End this war

The lesson of U.S. drug policy is that this world runs on unintended consequences. No matter how noble your intentions, there’s a good chance that in solving one problem, you’ll screw something else up.

There’s an excellent article on the Drug War up at The Rolling Stone.

It’s a long, detailed article and well worth reading. The summary is pretty simple, and shouldn’t surprise most people: The Drug War is a failure. Interdiction is pointless and practically impossible, prison-terms for dealers and users don’t impact either distribution or use, and the money spent overseas is a complete waste. The only thing that works is treatment and that only works on the margins.

Reducing violence is possible, but only by eliminating the black market. The article describes a few urban initiatives that succeeded in reducing violent crime, and each example involves replacing the black market drug trade with a gray market trade (trade that is acknowledged and tolerated by local law enforcement, even if it isn’t legal).

The article ends without a specific call to action, but one that seems unavoidable to this reader: legalize it. All of it.

I don’t say that with the relish that some libertarians do. I understand that heroin is a scourge, I know that meth is bad, nasty shit, and that crack-cocaine is inherently dangerous. And I get that a healthy polity should have little tolerance for drug use and drug users. But it’s the violence that ends lives, ruins families, and destroys communities. And that’s what we need to end.

Drug addiction is a vice and a tragedy. But it’s a private vice and a personal tragedy. The Drug war is a national vice and a global tragedy.

Let’s bring the soldiers home and end this unjust war.

Islam and Sharia

In Saudi Arabia, a woman who was gang-raped was sentenced to 90 lashes. The reason? Before the rape, the woman, who was then 19, had been in a car with a man who was not a family member — a crime under the kingdom’s legal code, which is based on a strict Wahabi reading of Islamic law. Punishing the victim of a brutal rape is reprehensible. Then a Saudi appeals court more than doubled her lashings to 200 and added six months’ jail time, apparently because she had the audacity to publicly challenge the court’s ruling. Her lawyer had his license to practice suspended. — “Lashing Justice”, Dec 3, New York Times more here

If the Klan ran a court in Alabama, this is the kind of justice they would serve.

And yet still, still I see calls for tolerance and understanding.

The Washington Post has this gem:

At a time when Islam is under siege from Muslim extremists and extremists from the Far Right in Europe and America, the judiciaries of Sudan and Saudi Arabia have managed to reinforce the vilification of Islam and used Islamic law as a weapon rather than a yardstick for justice. All our futures depend upon an ability to agree upon a global ethic, based upon mutual understanding and respect, that transcends our religious and cultural differences. Whatever our differences, there can never be an acceptable excuse for injustice and intolerance in the name of our religions.

What kind of global ethic would it be if the Saudis and the Sudanese have a voice in crafting it? How is mutual respect possible in the face of the kind disgusting bigotry and ignorance on display in Saudi Arabia?

Islam is under siege? Islam is under siege? Islam is laying siege! Why are we expected to tolerate the beating and imprisonment of women for petty and ridiculous offenses? Why are we expected to tolerate a society that punishes adultery and homosexuality with death? Why are we expected to tolerate a culture that denies women the right to vote, own property, or testify in court? What kind of “yardstick” would such injunctions yield? How might we measure justice against such plain villainy?

This culture must be condemned. It is a cancer, a disease, and it must be treated as such.

It is pointless to claim that Islam “properly understood” is blameless in this. These are not fringe elements of a minor cult, these are national governments using the holy text of Islam to establish law. This is barbarity built upon ignorance and it must be denounced.

This is not a debate about which religious idiocy is more absurd, it’s a debate about oppression and evil. Believe in whatever religion you will. Your soul is yours to treat as you will. But the moment you mix religion with law is the moment you cast the sanctity of belief aside and become just another slavering bully. And that’s true whether you’re thumping the Quran, the Torah, the Bible, or Dianetics.

The difference is that the Pope doesn’t burn heretics anymore, the Temple was razed a long time ago, and Tom Cruise isn’t stumping for president…. yet. But Sharia is mainstream Islam. And that must be recognized, and that connection must be renounced.