Friday, January 19, 2007

Cyberlaw 2.0

At the height of the first dot-com boom, it seemed like nearly every twenty-something aspiring law professor held himself or herself out as an expert in "cyberlaw," by which they meant the law governing the internet. Some of these budding scholars took the view that the internet changed everything, so that legal rules and standards about intellectual property, antitrust, personal jurisdiction, you name it, had to be rethought from the ground up when applied to transactions in cyberspace. Others took a more modest view, seeing the internet as merely the latest in a long line of technological transformations to which legal doctrine could and would adapt. But whether they advanced revolutionary or evolutionary models, most of those writing about cyberlaw were writing about the regulation of the internet.

Problems of the interaction between the internet and the real world continue to arise. For example, tax law has struggled with the question of what jurisdiction has authority to tax a transaction in an online fantasy world like SecondLife, which can result in real dollars changing hands. Likewise, my civil procedure exam last semester posed jurisdictional and choice-of-law questions based on interactions in a fantasy world inspired by SecondLife. Problems of this sort are likely to be with us for quite some time, but with the increasing popularity of internet fantasy worlds, we're also likely to see more examples of what I'll call cyberlaw 2.0. Cyberlaw 2.0 problems concern regulation in the internet. An early example was the "rape" that occurred inside LambdaMOO (a text-based virtual world), which did not and could not have resulted in prosecution in the real world but led to new "law" within the online community. There is a temptation, I think, to assimilate all such law to contract: You sign up for some service and click "accept" on the EULA, thereby agreeing to be bound by whatever rules the organizers of the website have created. But this vastly oversimplifies the richness of the rules, standards and social norms of such places. We no more fully understand Cyberlaw 2.0 as contract law than we understand all real-world law as contract law in virtue of the fact that it can all be traced back to a social contract.

I've been thinking about cyberlaw 2.0 because yesterday I received an email from Marc Edelman, a New York lawyer by day, who also runs a website called Sportsjudge. For a modest fee, Edelman provides written legal opinions resolving disputes among competitors in fantasy sports leagues. When Marc (whom I know through a recreational softball league in the real world) sent me a link to his site, my first reaction was that it was, well, silly. I mean it's odd enough that grown men (and some grown women, but let's face it, most of these people are men) spend so much of their time living vicariously through the exploits of professional athletes who nominally represent their city but might represent some other city the next day. It's odder still that fantasy sports players spend still more time constructing artificial teams of "their" players whom they pretend to "manage." And oddest of all is the idea that in the course of such a twice-removed-from-reality game, players would develop a conflict so intense that they could not resolve it amicably but would need to enlist the services of a fake judge.

And then I thought, well maybe not so odd after all. Most of law in what we call the real world involves make-believe ideas, like the notion that someone can "own" a piece of land or a car. Isn't a chief lesson of early 20th century legal realism that property in things is wholly a social construct? When you think hard about it, the idea that the law confers upon me a property right in my iPod is every bit as strange as the idea that Joe Blow rather than John Doe owns the rights to the stats generated by Albert Pujols. To be sure, fantasy sports leagues pre-date the internet, but I suspect that people are more willing than ever to take them seriously now that the internet has made the notion of fantasy worlds so commonplace. Maybe the people who said that the internet changes everything were wrong, but not because the virtual world is humdrum. Maybe they were right that the internet is a strange world but wrong in thinking that made it different from the real world of law.