Kim Barker

Virtual spaces and virtual layers – governing the ungovernable?

Online multi-user platforms like World of Warcraft and Twitter have one common regulatory mechanism; the End-User License Agreement (EULA). This document forms the cornerstone of the regulatory system within each of these spaces. Yet it is regularly contravened by users and providers alike. These agreements are very often the only forms of control or regulation that are present in online environments and therefore control more than user behaviour. Yet these platforms also share another feature: virtual disputes, but these are no longer confined online. Threats of violence and other criminal offences arise too, with examples including the abuse issued to Criado-Perez, and more recently, Flipovic. Criado-Perez suffered Twitter abuse and Flipovic was victimised on online message boards. Cyberspace was once deemed to be free from governmental control but the increasing disputes suggest there is now a need to consider how users of spaces such as online games, virtual worlds and social media are protected. Is it fair and practical to leave regulation to EULAs? How do users achieve redress for wrongs – through online and in-site governance mechanisms or wider controls? This work will consider some of these issues, and will suggest that there is now a need for additional layers of regulation to fill the ‘responsibility gap’ left between EULAs and the offline legal mechanisms.

Online Games and IP. Battle of the Forms to Social Norms: Reconceptualising and Relayering?

Online interactive environments like World of Warcraft, Second Life, Habbo and The Sims Online are international entities, attracting users across the globe. They have one common regulatory mechanism; the End User License Agreement (EULA). This contractual document forms the cornerstone of the regulatory and governing system within each of these distinct spaces. Yet the EULA is regularly contravened by users and the game provider alike, suggesting it is neither fit for purpose, nor adequately designed for these online spaces. The EULA forms not only the contractual relationship between the service provider and the end-user, but is also intended to control the behaviour of the users in the relevant online environment. These are very often the only forms of control or regulation that are present in online environments, and therefore control more than user behaviour. Despite this, there is no specific set of ‘virtual laws’ in these online environments yet the disputes arising from these environments are becoming increasingly common. There are online / offline boundaries, and different levels of controlling mechanisms. These boundaries are only one dimension of the control required in these spaces. Code is protected by copyright, and copyright is allocated by contracts. As such, there is an inter-dependent core which sees code, copyright and contract allocating not just property rights and intellectual property rights but adjudicating on disputes. In this relationship, there are different levels which combine to produce a situation whereby contract is dominant. This paper will consider the current layers of control in online gaming environments in light of some examples of legal disputes that have arisen. It will consider the Magic Circle theory and the Theory of Interration – and potential modifications in light of Tseng’s suggestions but also in context of disputes and the * Birmingham Law School, University of Birmingham. E-mail: k.barker@bham.ac.uk.. First presented at the 27 Annual Conference of the British and Irish Law, Education and Technology Association (BILETA), University of Liverpool, 10-12 April 2013. This is an initial exploratory piece. I would like to express my thanks to everyone who has contributed to it, both during the conference, and since, but especially to the reviewers for their insightful suggestions. (2013) 10:3 SCRIPTed 321 layers currently in place before suggesting that there is perhaps a chasm in this system of layered governance and control. DOI: 10.2966/scrip.100313.320