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作者：小小林熬夜学编程 | 2024-04-08 23:28:55

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Statutes and Regulations

Communications Decency Act, 47 U.S.C. § 230(c)(1), (e)(2) (2010)

Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)-(2), (b)(1) (2006)

In re Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 (DataTraffic Growth), 25 FCC Rcd. 11407, 11412-25 (2010)

Pub. L. No. 106-113, S 1000(a)(9), 113 Stat. 1501, 1536 (1999) (enacting into law § 3002 of the Intellectual

* This chapter is based on several of the author’s works and an earlier version can be found at 112 W VA. L. REV 1 (2009). The author thanks participants in that symposium, as well as Joshua Fairfield, Eric Goldman, James Grimmelman, Greg Lastowka, Anne Lofaso, Brian Tamanaha, Francis Taney, and Tim Wu for their helpful comments. Helpful research assistance was provided by Nate Griffith.

John Rawls, A THEORy of Justice 235 (1971) (“A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation. When these rules are just they establish a basis for legitimate expectations”).

F. Gregory Lastowka & Dan Hunter, Virtual Crimes, 49 N.YL. Sch. L. Rev. 293, 309 (2004), hereafter Virtual Crimes.

Graphic located at: http://s3.amazonaws.com/static-secondlife-com/screenshots/ web/int_open mic.jpg (available at https://perma.cc/95PG-YGMB).

Edward Castronova, SyNtHEtic Worlds 255 (2005) (describing shift of economic activity to virtual worlds); David G. Post, In Search of Jefferson’s Moose: Notes on the State of CyBERSPACE 182 (2009) (“Many hundreds or thousands or hundreds of thousands of people (precise statistics are not easy to come by here) are, at the moment, earning some or all of their living in Second Life”); Andrea Vanina Arias, Life, Liberty, and the Pursuit of Swords and Armor: Regulating the Theft of Virtual Goods, 57 Emort L.J. 1301, 1301 (2008) (market may reach $2 billion).

Edward Castronova, Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier 33 (CESifo Working Paper Series No 618, 2001), at Home :: SSRN abstract_id=294828 (last visited May 25, 2009). Though often cited, this calculation is not the best estimator of the size of virtual worlds. The study compares per capita production, which may not be comparable to the real world. The real world is home to many “unproductive” citizens: infants and children, the disabled and elderly, and voluntarily and involuntarily unemployed adults. In virtual worlds, every avatar is a productive member of society.

Greg Lastowka & Dan Hunter, The Laws of the Virtual Worlds, 92 Cal. L. Rev. 1, 10 (2004), hereafter Laws (describing different purchases one might make in a virtual world); Post, supra note 4, at 181 (“They make stuff—clothing and jewelry for their avatars, huge buildings, paintings to put on the walls of those buildings, automobiles or airships that can transport them from one ‘place’ to another in the virtual world, videos . . . and they exchange what they make with others; if you like the virtual clothing or the virtual jewelry I’m wearing, or the virtual picture I’ve painted, or the virtual building or virtual airship that I’ve created, you can try to persuade me to give it to you. Or sell it to you. For money. Not ‘real money,’ of course - play money, game money . . . But here’s the thing: It turns out that it is real money. Linden Dollars can be exchanged for things of value, including . . . U.S. dollars”).

Brian Z. Tamahana, On the Rule of Law: History, Politics, Theory 119 (2004) (“A growing body of evidence indicates a positive correlation between economic development and formal legality that is attributable to these characteristics [of the rule of law]”) and 53 (describing Montesquieu’s view of the rule of law as facilitating commerce by “facilitating their transactions, enforcing their agreements, protecting their property, and otherwise leaving them be”). See also, e.g, O. Lee Reed, Law, The Rule of Law, and Property: A Foundation for the Private Market and Business Study, 38 Am. Bus. L.J. 441 (2001); Kevin J. Fandl, The Role of Informal Legal Institutions in Economic Development, 32 Fordham Int’l L.J. 1 (2008); Kevin E. Davis & Michael J. Trebilcock, The Relationship Between Law and Development: Optimists Versus Skeptics, 56 Am. J. Comp. L. 895 (2008); Norman L. Greene, Perspectives from the Rule of Law and International Economic Development: Are there Lessons for the Reform of Judicial Selection in the United States, 86 Denv. U. L. Rev. 53 (2008); Todd J. Zywicki, The Rule of Law, Freedom, and Prosperity, 10 Supreme Court Economic Review 1,22 (2003).

Arias, supra note 4, at 1339 (real world social order could break down without virtual law).

Rachel Kleinfeld Belton, Competing Definitions of the Rule of Law: Implications for Practitioners, Carnegie Paper No 55 (Carnegie Endowment 2005), available at http://www.carnegieen dowment.org/publications/index.cfm?fa=view&id=16405. See also, John Locke, Second Treatise of Government s.202 (Hackett Publishing 1980) (“Where-ever law ends, tyranny begins”).

Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 Va. L. Rev. 2043, 2044 (2004) (“Even at this early stage of technological development, people have simply invested too much time, energy, and money in virtual worlds to imagine that the law will leave these worlds alone”). Compare James Grimmelmann, Virtual World Feudalism, 118 Yale L.J. Pocket Part 126 (2009), hereafter Feudalism (describing virtual worlds as feudal societies) with Tamahana, supra note 7, at 29-31 (describing the rise of rule of law and the related demise of feudalism).

Post, supra note 4, at 184.

so if there were a functioning legal system in place”); Jack Goldsmith & Tim Wu, Who Controls the Internet? 129 (2006) (“eBay quickly learned that to prevent fraud, enforce its contracts, and ensure stability in its auction services, it would depend critically on government coercion and the rule of law”) and 145 (eBay’s refusal to expand into Russia, which “suffers from private harms gone unchecked: insecurity of private property, corporate fraud, a failed criminal law system . . . and ineffective respect for and enforcement of contract rights”).

Raph Koster, Declaring the Rights of Players, The State of Play: Law, Games, and Virtual Worlds 63 (Jack M. Balkin & Beth Simone Noveck, eds 2006) (“[T]he common good is that which increases the population of a [world] without surrendering core social tenets or mores”); Phillip Stoup, The Development and Failure of Social Norms in Second Life, 58 Duke L.J. 311, 313 (2008) (“The optimal mix between code-created rules and real-world regulations could be determined by finding the ‘mix that provides optimal protection at the lowest cost’”). Section 2.4 discusses this concept further with respect to the role of liberty in the rule of law.

Castronova, supra note 4, at 262 (“The ideal future would have a broad portfolio of worlds for us to visit, and we would all be able to spend time in the worlds we prefer, whether or not their governments are legitimate”); Richard A. Bartle, Virtual Worldliness, The State of Play: Law, Games, and Virtual Worlds 37 (Jack M. Balkin & Beth Simone Noveck, eds 2006); Yochai Benkler, There is No Spoon, The State of Play: Law, Games, and Virtual Worlds 182 (Jack M. Balkin and Beth Simone Noveck, eds 2006); Caroline Bradley & A. Michael Froomkin, Virtual Worlds, Real Rules, 49 N.YL. Sch. L. Rev. 103 (2004) (suggesting that different virtual worlds might be used to test effectiveness of different sets of laws); Balkin, supra note 10, at 2050. But see Lastowka & Hunter, Laws, supra note 6, at 61-2 (questioning whether free choice works in practice).

Contra, e.g., Joseph Raz, About Morality and the Nature of Law, 48 Am. J. Juris. 1, 12 (2003); Matthew Sundquist, Online Privacy Protection: Protecting Privacy, the Social Contract, and the Rule of Law in the Virtual World, 25 Regent U. L. Rev. 153 (2012) (“The law should serve the common interest and secure values that will be broadly useful to society”).

Orin S. Kerr, Criminal Law in Virtual Worlds, 2008 U. Chi. Legal F. 415, 427 (2008), hereafter Criminal (“More broadly, a strong regime of criminal enforcement would threaten one of the foundational strengths of virtual world games: the ability of each virtual world to define its own terms and to appeal to specific users who want that virtual environment instead of another”); cf Bradley & Froomkin, supra note 14, at 128-30 (discussing choices users make about player versus player combat).

which [the rule of law] is ill suited, and it must be weighed against and sometimes give way to other important social values”).

Cf. Goldsmith & Wu, supra note 12, at 141 (discussing differing needs of and influential power of different groups).

Bartle, supra note 14, at 43.

Id.

See, e.g., Castronova, supra note 4, at 261 (arguing that whether users should own virtual property depends on the type of world and how isolated it is from the real world).

Tamahana, supra note 7, at 93, points out that “formal legality” is often used to justify authoritarian practices.

See generally Joseph A. Schumpeter, The Theory of Economic Development: An Inquiry into Profits, Capital, Credit, Interest, and the Business Cycle (Redvers Opie trans., Harvard University Press 1951) and Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (3rd ed. 1950).

Eduardo Moises Penalver & Sonia K. Katyal, Property Outlaws, 155 U. Pa. L. Rev. 1095, 1103 (2007).

See generally Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2001).

But see A.V Dicey, Introduction to the Study of the Law of the Constitution xli (8th ed. reprinted 1923) (discussing moral problems of lawlessness by individuals “pursuing some end to which to him or to her seems to be just and desirable”).

Gianluigi Palombella, The Rule of Law and Its Core, Relocating the Rule of Law 35 (Gianluigi Palombella & Neil Walker, eds 2009).

Tamahana, supra note 7, at 95 and 139-40. One potential exception is the argument that a rule of law defined by a government being bound by its own rules is a universal moral good. Tamahana, supra note 7, at 115 and 137 (describing government bound by law, which also requires limits on how the law can be changed by the government). Even if true, this view of the rule of law would limit the analysis in this chapter to just one data point; this chapter seeks to be more comprehensive.

Tamahana, supra note 7, at 94, discusses a variety of reasons why one might normatively prefer to examine the rule of law in formalistic terms. See also Palombella, supra note 27, at 35 (rule of law requisites in the positivist scheme are morally neutral).

Palombella, supra note 27, at 35 (“All these main prerequisites derive from the essential objective of the law, which is that of guiding behaviour”) (emphasis in original).

David Beatty, Law’s Golden Rule, Relocating the Rule of Law 99 (Gianluigi Palombella & Neil Walker, eds 2009) (confusion about what the rule of law means leads to its decline).

Belton, supra note 9, at 5.

Locke, supra note 9, at s.137; Tamahana, supra note 7, at 33; Belton, supra note 9, at 3; Dicey, supra note 26, at 180, 189, 198, and 323; Fuller, infra note 38, at 209-10 (“Surely the very essence of the Rule of Law is that in acting upon a citizen . . . a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties. If the Rule of Law does not mean this, it means nothing”); Rawls, supra note 1, at 235 (“[T]he conception of formal justice, the regular and impartial administration of public rules, becomes the rule of law when applied to the legal system”). The second view extends even further to the “liberal” rule of law—that individuals have rights and that government must be democratic. Rawls, supra note 1, at 235 (“The rule of law is closely related to liberty”). Section 2.4 discusses these extensions.

Friedrich A. Hayek, The Road to Serfdom 12 (1944).

Tamahana, supra note 1, at 3 (“Notwithstanding its quick and remarkable ascendance as a global ideal, however, the rule of law is an exceedingly elusive notion”); Belton, supra note 9, at 26 (because the rule of law has many different ends, it is impossible to establish a unitary measurement of the rule of law); Dicey, supra note 26, at 183 (“[W]e may safely conclude that . . . whenever we talk of Englishmen as loving the government of law, or the supremacy of law . . . [we] are using words which, though they possess a real significance, are nevertheless to most persons who employ them full of vagueness and ambiguity.”).

See, e.g., Palombella, supra note 21, at 35 (“When dealing with the rule of law, legal theory concentrates typically on the features which law generally needs in order to rule”); Belton, supra note 9, at 6-1 (“The ends are the reason why we value the rule of law and are what most people mentally measure when determining the degree to which a country has the rule of law. Another type of definition describes the institutions a society must have to be considered to possess the rule of law. Such a society would have certain institutional attributes”).

31 “Laws,” “rules,” and “regulations” are used interchangeably here for variety. Section 3 discusses the sources of regulation in virtual worlds, whatever they might be called.

Locke, supra note 9, at s.131; Lon Fuller, The Morality of Law 39 (revised ed. 1969); Dicey, supra note 26, at 198.

Hayek, supra note 34, at 13-4, for example, argues that if the government must decide what buses to run, then it is arbitrary. See also Dicey, supra note 26, at xxxviii (judicial authority given to officials connected with elected government shows decline in rule of law); Tamahana, supra note 1, at 64-5 (discussing A.V Dicey’s criticism of the administrative state as a degradation of the rule of law).

Fuller, supra note 38, at 39.

Locke, supra note 9, at s.137; Fuller, supra note 38, at 39; Belton, supra note 9, at 17; Tamahana, supra note 7, at 33.

MoNTEsquiEU, The Spirit of the Laws, Book XI, ch. 6 (Anne M. Cohler, et al., eds, Cambridge University Press 1989); Fuller, supra note 38, at 39; Belton, supra note 9, at 7; Tamahana, supra note 7, at 33; but see Dicey, supra note 26, at 196 (describing certain guarantees of freedom as simply “the law of the land” rather than being guaranteed in a written document).

Montesquieu, supra note 42, at Book XI, ch. 6; Dicey, supra note 26, at 198; Hayek, supra note 34, at 72-3 (“[T]he discretion left to the executive organs wielding coercive power should be reduced as much as possible”). This traditional requirement is interesting, as discretion might be considered normatively valuable in a free society. Montesquieu, for example, suggests that the legislature have the power to “moderate the law in favor of the law itself by pronouncing less rigorously than the law.” Book XI, ch. 6.

Fuller, supra note 38, at 39.

Dicey, supra note 26, at 198; Tamahana, supra note 7, at 33; Rawls, supra note 1, at 238 (“there is no offense without a law”); Fuller, supra note 38, at 39.

Fuller, supra note 38, at 39.

Montesquieu, supra note 42, at Book VI, ch. 3; Fuller, supra note 38, at 39; Belton, supra note 9, at 3, 17; Tamahana, supra note 7, at 33; Rawls, supra note 1, at 235 (“One kind of unjust action is the failure of judges and others in authority to apply the appropriate rule or to interpret it correctly. It is more illuminating in this connection to think not of gross violations exemplified by bribery and corruption, or the abuse of the legal system to punish political enemies, but rather of the subtle distortions of prejudice and bias as these effectively discriminate against certain groups in the judicial process.”); Dicey, supra note 26, at 203 (rights allowed by law are nominal unless their “exercise is secured”).

Montesquieu, supra note 42, at Book XI, ch. 6; Dicey, supra note 26, at 198; Belton, supra note 9, at 3; Tamahana, supra note 7, at 33; Rawls, supra note 1, at 237 (“The rule of law also implies the precept that similar cases be treated similarly”). Hayek, supra note 34, at 76-7, again pushes this indicator to the limit, arguing that any government provided service cannot be impartial.

Montesquieu, supra note 42, at Book XI, ch. 6; Tamahana, supra note 7, at 35; Rawls, supra note 1, at 239 (“While there are variations in these procedures, the rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth . . . as to whether a violation has taken place and under what circumstances. For example, judges must be independent and impartial, and no man may judge his own case”); Belton, supra note 9, at 17. But see Fuller, supra note 38, at 81 (arguing that a judiciary can detract from the rule of law if laws are not enforced as written).

Tamahana, supra note 7, at 9 (Aristotelian rule of law requires “reason unaffected by desire”).

See generally, Greg Lastowka, Virtual Justice: The New Laws of Online Worlds (2011).

Tamahana, supra note 7, at 91, describes this as the difference between formal rule of law (as described in this chapter) and substantive rule of law. The indicators described above align most closely with a “formal legality” regime.

Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harvard L. Rev. 630, 660 (1958) (problem with Nazi rule was not the dictatorship, but instead that the dictatorship had no fidelity to law); Tamahana, supra note 7, at 10 (Aristotle and Plato believed that the “best government was by the best man, not rule by law, for law does not speak to all situations and cannot contemplate all eventualities in advance”); see also Tamahana, id. at 37. But see Castronova, supra note 4, at 206-7 (arguing that good government requires limited power: “The premise here tends to be that any individual will exploit any power to her own ends, to the maximum feasible extent, unless constrained in some way by a countervailing incentive”).

Tamahana, supra note 7, at 25-6. James Grimmelmann, Virtual Worlds as Comparative Law, 47 N.YL. Sch. L. Rev. 147, 175-6 (2004), hereafter Comparative, argues that similar limitations on dictatorial power might be possible in virtual worlds.

James Madison, The Federalist No 10 (1787) (“Complaints are everywhere heard . . . that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority”).

Alexis de Tocqueville, I Democracy in America 269 (Knopf 1945); see also Tamahana, supra note 7, at 37 (discussing arguments that a judiciary is needed to enforce the rule of law when democracy expands the laws).

by majority, executive elected by majority, even judges elected by the majority in some states); Tamahana, supra note 7, at 34 (liberals argue that democracy leads to freedom).

Tamahana, supra note 7, at 37 (“A regime with oppressive laws can satisfy legal liberty [rule of law] by meticulously complying with those laws”); Palombella, supra note 27, at 36 (“It follows that a perspective of neutrality accepts that it is possible for rights and human dignity to be infringed, even when those requirements of the rule of law are satisfied”) (emphasis in original).

U.S. Const. Amends. I-X.

Tamahana, s upra note 7, at 35 (describing role of personal autonomy in liberal view of freedom).

But see Hayek, supra note 34, at 82 (“Man is free if he needs obey no person but solely the laws”), quoting Immanuel Kant, Metaphysical Elements of Justice; Montesquieu, supra note 42, at Book XI, Ch. 3 (“Liberty is a right of doing whatever the laws permit”); Tamahana, supra note 7, at 34 (liberal argument is that if the government is constrained by preexisting rules, then freedom will ensue).

Tamahana, supra note 7, at 35, notes that the definition of minimal personal autonomy is imprecise. Thus, the proposed search rule might also satisfy a “freedom” requirement. This imprecision is one reason why the rule of law ideal should be separated from the freedom ideal.

Friedrich Kratochwil, Has the “Rule of Law” become a “Rule of Lawyers”? Relocating the Rule of Law 177-8 (Gianluigi Palombella & Neil Walker, eds 2009) (rule of law cannot be separated from those who create and implement it).

Compare Castronova, supra note 4, at 157 (arguing that limitations of rights in virtual worlds as potentially benefiting the community’s interests “would be more persuasive if the community’s interests had been validated and expressed through some unbiased consensus-building process”) and 208 (“What is interesting about [provider agreements] is that while they do solicit the consent of the governed . . . they offer no due process of enforcement or amendment”).

Hayek, supra note 34, at 82.

LambdaMOO needed to retain power even if the users ruled the virtual world by democracy); Orin S. Kerr, Enforcing Law Online, 74 U. Chi. L. Rev. 745, 751 (2007); cf. Tamahana, supra note 7, at 47.

Fuller, supra note 38, at 153 (rule of law is “indifferent toward the substantive aims of law”); Palombella, supra note 27, at 35 (“The rule of law is indeed to be distinguished from the rule of the ‘good’ law.”). See, e.g., James Madison, The Federalist No. 39 (1787) (arguing that elections and limited tenure are sufficient to control the legislature). Madison’s argument is morally neutral; it says nothing about what the legislature should do. William H. Riker, Liberalism Against Populism 9 (1982). But see Tamahana, supra note 7, at 9 (Aristotle and Plato believed that laws should further the good of the community). However, because Aristotle and Plato did not believe in democratic rule, the only way to constrain leaders was to constrain the moral goodness of law.

Goldsmith & Wu, supra note 12, at 141 (“There are systematic reasons why elected governments sometimes fail to do what is best for their citizens”); Castronova, supra note 4, at 206 (describing balance between restricted governmental power and social welfare). But see Rousseau, Social Contract, Book I, ch. 8 (majority rule will never oppress because the majority dictates society’s needs). Rousseau’s view implies that democracy is sufficient to be morally good. Riker, supra note 67, at 11.

Compare Tamahana, supra note 7, at 5 (“[T]he rule of law ideal initially developed in nonliberal societies”) with Belton, supra note 9, at 3 (human rights are part of the rule of law) and Dicey, supra note 26, at 191 (rule of law includes personal freedoms).

Tamahana, supra note 7, at 33 (“[W]hile liberal systems cannot exist without the rule of law. . .the rule of law can exist outside of liberal systems”); see also Tamahana, supra note 7, at 81 (describing modern “responsive law” arguments regarding progressive US Supreme Court decisions such as desegregation) and 99 (describing democracy as a Western ideal).

Tamahana, supra note 7, at 5 (“However, many of the non-Western societies that wish to implement the rule of law have no desire to become liberal, and many Western societies with the rule of law are committed to the social welfare state [that Hayek criticizes as arbitrary]”); Palombella, supra note 27, at 35 (arguing that formalistic rule of law might apply to welfare state despite Hayek’s belief to the contrary); Grimmelmann, Feudalism, supra note 10 (describing order of law in virtual “feudal” worlds). But see Lastowka & Hunter, Laws, supra note 6, at 32-3 (virtual worlds display trappings of modern Western property law, even if supposedly set in medieval times); Bradley & Froomkin, supra note 14, at 134 (ability to test alternative legal schemes is limited due to player “attitudinal constraints”).

See generally Koster, supra note 13, at 56 (discussing rights of avatars); but see Julian Dibbell, Owned! The State of Play: Law, Games, and Virtual Worlds 140 (Jack M. Balkin and Beth Simone Noveck, eds 2006) (describing virtual sweatshops used to generate virtual property for sale).

Castronova, supra note 4, at 305 note 5; Balkin, supra note 10, at 2075-6.

Balkin, supra note 10, at 2075-6 (“Ludlow argued that this was a pretextual enforcement of a technical violation of the TOS not regularly applied against other players”).

Balkin, supra note 10, at 2075-6 (discussing Ludlow and speech values); Lastowka & Hunter, Laws, supra note 6, at 51-2 (many new users want traditional liberal rights in virtual worlds); Koster, supra note 13, at 66 (players expect a certain level of treatment from providers, whether or not such “rights” are expressed as such or written in a document).

Lastowka & Hunter, Laws, supra note 6, at 59 (“[W]e might well conclude that virtual democracy and avatar rights are not ideals worth pursuing. The reasons for this are many, but certainly include arguments that the worlds are built and maintained out of the funds of a private entity, or that democracy and these worlds are not good bedfellows”).

Indeed, such protections would likely not even apply to real governments to the extent that a user’s virtual possessions are visible to other avatars in the world. See generally Joshua Fairfield, Escape Into the Panopticon: Virtual Worlds and the Surveillance Society, 118 Yale L.J. Pocket Part 131 (2009) (discussing privacy and government searches in virtual worlds), available at www. yalelawjournal.org/forum/escape-into-the-panopticon-virtual-worlds-and-the-surveillance-society.

Castronova, supra note 4, at 152 (describing providers as having dictatorial powers).

Lastowka & Hunter, Laws, supra note 6, at 55.

Lastowka & Hunter, Laws, supra note 6, at 59 (“The standard argument against avatar rights, therefore, is that wizards, by virtue of their private (and corporate) ownership of the computer equipment and substantial investments in creating the virtual world, should have a right to do exactly as they please”).

Compare Castronova, supra note 4, at 207 (“[O]ne does not find much democracy at all in synthetic worlds . . . The typical governance model in synthetic worlds consists of isolated moments of oppressive tyranny embedded in a widespread anarchy . . . There is a tyrant in place from the beginning, but an extraordinarily inactive one.”) with id at 261 (“[Competitive pressures force companies to keep as many people as possible just happy enough to stay”). See also Grimmelmann, supra note 54, at 176-8 (describing that right of exit puts pressure on providers to consider user desires); Lastowka & Hunter, Laws, supra note 6, at 59; David G. Post, Anarchy, State and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art 3, *'42 (“A kind of competition between individual networks to design and implement rule-sets compatible with the preferences of individual internetwork users will thus materialize in a new . . . market for rules”).

Dibbell, supra note 72, at 142-3; Balkin, supra note 10, at 2051.

LambdaMOO, for example, tried a user democracy for a period of time. Castronova, supra note 4, at 217; Lastowka & Hunter, Laws, supra note 6, at 55-9. See also Grimmelmann, Comparative, supra note 54, at 176 n.115 (describing user referenda in “A Tale in the Desert”); Timothy Burke, Play of State: Sovereignty and Governance in MMOGs, at 12 (Aug. 2004) (providers are the sovereign), available at www.swarthmore.edu/SocSci/tburke1/The%20MMOG%20State. pdf and https://perma.cc/YS5Z-GKPY.

Bradley & Froomkin, supra note 14, at 143-6.

Grimmelmann, Comparative, supra note 54, at 176 (“[A]t least since Locke, the legitimacy of republican government has been intertwined with the right of revolution. If the government refuses to obey the results of an election, it must expect the citizenry to rise up and depose. But there is no way to depose the designers of a game”).

Lessig, supra note 66, at 201 (the amount of regulatory power of a site coincides with its market power).

Lessig, supra note 66, at 202 (because switching costs are high, users cannot effectively vote with their feet). More precisely, they can only vote once without having to reinvest in a new world.

An avatar can, however, be transferred to another user.

Castronova, supra note 4, at 152 and 261 (“If you disagree, and want to abandon the fruits of thousands of hours of work and effort, as well as all of your friendships, click ‘I Disagree’ [to the provider agreement] and go spend some time as a lonely hobo in some other world”); Lastowka & Hunter, Laws, supra note 6, at 61-2; Joshua A.T. Fairfield, Anti-Social Contracts: The Contractual Governance of Online Communities, 53 McGill L.J. 427, 470 (2008), hereafter Anti-Social (providers design worlds to create high switching costs); Balkin, supra note 10, at 2051. But see Grimmelmann, Comparative, supra note 54, at 178-81 (arguing that a user’s ability to sell an avatar limits the cost of leaving a world, thus making it easier to leave and exerting less pressure on providers to change their rules). Interestingly, then, providers appear to have little pressure, regardless of whether or not it is costly to exit.

Fairfield, A nti-Social, supra note 89, at 471.

Grimmelmann, Comparative, supra note 54, at 181-3 (providers acting as non-intervening dictators may be preferable than attempting to create a virtual democracy); Koster, supra note 13, at 63 (users have almost no power to seek rights, and providers do not want to surrender the control necessary to grant rights).

Lastowka & Hunter, Laws, supra note 6, at 9-10 (“Since people expect places to be governed by some law, we should attempt to fashion some decent answer to the question of what laws might (or should) apply to virtual worlds”).

Lessig, supra note 66, at 88.

Rawls, supra note 1, at 236 (“[T]he law defines the basic structure within which the pursuit of all other activities takes place”); Koster, supra note 13, at 66 (terms of use can describe limitations on both user and provider conduct); Dibbell, supra note 72, at 143-4; Kerr, Criminal, supra note 15, at 422; Margaret Jane Radin, Regulation by Contract, Regulation by Machine, 160 J. Inst. & Theoretical Econ. 1, 6-7 (2004) (under an effective contract, “for a large subset of the social order . . . the law of the state has been superseded by the promulgated contractual regime, the ‘law’ of the firm”).

Fairfield, A nti-Social, supra note 89, at 471-3; Dibbell, supra note 72, at 144.

Grimmelmann, Comparative, supra note 54, at 176-8 (discussing several market factors that might affect whether users leave games and whether providers will consider user requests); Dibbell, supra note 72, at 142-3.

Jonathan Zittrain, The Future of the Internet and How to Stop It, 168-9 and 172 (2008).

Lessig, supra note 66, at 6 (emphasis in original); but see Castronova, supra note 4, at 205 (code may be law, but more than code creates a virtual “state”).

100

defines generally have the exclusive legal right to at least the more extreme forms of coercion. The kinds of duress that private associations can employ are strictly limited”). But see Orin S. Kerr, The Problem of Perspective in Internet Law, 91 Geo. L.J. 357, 372 (2003) (“Saying that the power of code is akin to the power of law is simply too loose a use of the word ‘law’ to be helpful. If code is law to an Internet user, then a sports referee’s calls are law to an athlete, and Steven Spielberg’s decisions about how to shoot a movie are law to a movie viewer”) and Tateru Nino, Code is Law (May 31, 2007) (“However, it’s not that code is a limiting factor for the most part. What it is, instead, is an enabling factor”) (emphasis in original), available at https://web.archive. org/web/20100808020653/http://www.secondlifeinsider.com/2007/05/31/code-is-law/ and https:// perma.cc/B8W9-GVUQ.

101

Fairfield, Anti-Social, supra note 89, at 459-61; Kerr, Criminal, supra note 16, at 422.

102

David R. Johnson, The New Visual Literacy: How the Screen Affects the Law, The State of Play: Law, Games, and Virtual Worlds 246 (Jack M. Balkin and Beth Simone Noveck, ed. 2006) (“We may soon take it for granted that the act of visiting a particular online space corresponds to submission to the special rules that apply to action in that context”); Zittrain, supra note 97, at 168 (“[S]ocial problems can be met first with social solutions—aided by powerful technical tools—rather than by resorting to law”).

103

Lessig, supra note 66, at 189 (“We can have an idea of sovereign power—the right of the sovereign to regulate or control behavior—but our idea is only meaningful when we place it within a particular regulatory context, or within particular architectures of control”); Radin, supra note 94, at 7 (“Sovereignty has been abrogated in favor of whatever firm has promulgated the regim

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