Second Life - Second Law?

Second Life is a cross polli(gon)nation of The Sims (highly popular game that pits players in a character's ordinary simulated life doing everyday things), a chatroom, a massive multiplayer online role playing game (MMORPG) and Ebay (online marketplace). The premise is simple: create your fantasy life and live, play and exist in an evolving online world with over 100,000 other subscribers.

This is the description on the site for what Second Life is about:

"Second Life is a 3-D virtual world entirely built and owned by its residents. Since opening to the public in 2003, it has grown explosively and today is inhabited by nearly 100,000 people from around the globe.
From the moment you enter the World you’ll discover a vast digital continent, teeming with people, entertainment, experiences and opportunity. Once you’ve explored a bit, perhaps you’ll find a perfect parcel of land to build your house or business.

• You’ll also be surrounded by the Creations of your fellow residents. Because residents retain the rights to their digital creations, they can buy, sell and trade with other residents.
• The Marketplace currently supports millions of US dollars in monthly transactions. This commerce is handled with the in-world currency, the Linden dollar, which can be converted to US dollars at several thriving online currency exchanges.
• Welcome to Second Life. We look forward to seeing you in-world!"

But how does it really play out? What are interactions like? In the words of the Second Life Community Page describing the ideology of the virtual world:

"We are a global community working together to build a new online space for creativity, collaboration, commerce, and entertainment. We strive to bridge cultures and welcome diversity. We believe in free expression, compassion and tolerance as the foundation for community in this new world."

It sounds like utopia. But what about the real world? How could someone afford to sit and play in the virtual one? While Second Life provides plenty of fantasy opportunities to make virtual money, some people take this a step further and translate their cyber-jobs into actual careers. Wired.com reports about Jennifer Grinell, the "Michigan furniture delivery dispatcher turned fashion designer in cyber space" who now makes four-times the amount of real U.S. dollars that she ever did working 9 to 5 in her old job. "Grinnell isn't alone," reports Wired, "Artists and designers, landowners and currency speculators, are turning the virtual environment of Second Life into a real-world profit center." A reported $5 million actual dollars were exchanged in Second Life in January of 2006 alone (about $38 dollars per user). That means big money, and where there is big money there is law.

What about the law of Second Life? Well, for creators of content, via individual users, Second Life leaves this comfort posted on their IP page:

"Linden Lab’s Terms of Service agreement recognizes Residents’ right to retain full intellectual property protection for the digital content they create in Second Life, including avatar characters, clothing, scripts, textures, objects and designs. This right is enforceable and applicable both in-world and offline, both for non-profit and commercial ventures. You create it, you own it—and it’s yours to do with as you please."

(Hey look! Virtual/real world infringement - Chasing Amy?)

It is this type of flexability and freedom that creates opportunities for people to make their money. The IP range is broad and includes such things as cyber-movies created for online characters (and real world players) to watch, cafes to dine in (trade dress rights apply), billboards to advertise on, car designs, building architecture, and anything else you could think of. Someone could even have rights in a video game they create in the video game (my head is starting to hurt thinking about the possibilities). This raises many IP implications, including how do statutory damages apply? How does likelihood of confusion play out for cyber-infringements of real world property in the game? Who has jurisdiction in a dispute btw Second Lifers? Real world people to Second Lifers? What about virtual disputes btw Second Lifers completely w/in context of Second Life (yes, there is actually a police blotter and penalties in Second Life for getting caught for things like using guns on other citizens and the like)? Some of these issues could be covered in the Terms of Service, but those terms are not binding on parties outside of the service agreement.

There is a darker side to all of this. Cyber porn profits are also part of the free-enterprise society of Second Life. Yes, dear readers, believe it or not, you can be a simulated smut purveyor in this alternate reality. What are the laws governing this kind of trade? Not much is written on it. This leaves one to wonder if things forbiden in the real world are permitted in Second Life. One may wonder if something as reprehensible as child pornography may be tolerated in Second Life's "tolerant" community. Could there be prosecution for, (Warning - sexually explicit cyber-content in next link) cyber-kiddie porn?

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) the Supreme Court struck down a law passed by Congress that would ban virtual child pornography. The Court found that representations of child pornography should not be criminalized like actual child pornography, b/c in doing so Congress would be simultaneously criminalizing protected expression. Strict liability statutes against kiddie porn are intended to shield victims (children) from the harm of sexual predators. Simulated child porn has no direct victim, and the Court found that the freedom of expression in creating visual digital images should not be curtailed for its subject matter by hiding behind the child porn laws. The Court noted that visual depiction of teenagers engaged in sexual activity has been a common theme among acclaimed artists of modern times and should be protected for its creative social commentary elements.

Does Second Life go a step further in providing a simulated sandbox to give potential predators practice in plying their trade? I often advocate that the issues surrounding video games and interactive entertainment are unlike other IP issues, mainly b/c of the interactive nature of this content. Is a child pornography game offensive enough to trump the free expression rationale of the Court in Free Speech Coalition? Let me take this a step further. Suppose an innovative capitalist from Second Life sees an opportunity to make the sexual encounters of players more authentic. They seek a licensing grant from Immersion (click link for Immersion v. Sony discussion) for the haptic feedback technology that causes interface devices to vibrate in real time to the images and action on the screen. They market such devices to be used for sexual encounters between players/characters of Second Life. Now the bar is raised in the child porn situation. Still no actual child victims, but something more than just expression happening in conjunction with sexually explicit images of adolescents. Would this be enough to outlaw the creation of virtual child porn?