Review: Greg Lastowka’s Virtual Justice
posted by Joshua Fairfield
Professor Greg Lastowka, one of the top lawyers writing about virtual worlds, just published his book “Virtual Justice,” from Yale University Press. I have a more complete review of the book coming out in Jurimetrics pretty soon, but here’s the short version. Lastowka’s book stands apart from prior efforts in the field because it recognizes that the study of law in virtual worlds is not a niche, but is instead a 
compelling example of how communities produce law through their encounter with novel technologies. Lastowka’s core premise is that virtual worlds are cultural spaces that generate law. His insights reach beyond the technology to produce a narrative about the common law itself. Technology cases, he notes, are by definition common law cases, because they present novel questions, often fall outside statutes, and invite reasoning by analogy. Thus, development of law online tracks the path of the common law elsewhere. Communities generate norms, which are adopted by judges, and finally codified by legislatures. Lastowka’s book offers a compelling and foundational narrative of how law is currently being formed at the very edge of cyberspace.
However, it is important to properly understand the interface between virtual worlds and law precisely because virtual communities will have such a great impact on real law. Therefore, I do offer two critiques of Lastowka’s premises regarding virtual worlds as games. First, Lastowka argues that law defers to game rules because games lie outside of ordinary life. My response is that law defers to players’ consent to suspension of default rules, rather than to game rules. Consent, not the rulebook, is the important legal element for me. Lastowka’s second argument is that games ought to be exempt from law because they are not economic activity—that is, that games are “pure waste.” But it seems to me that both the designers who make games and the players who play them are in fact maximizing their social welfare: just as going to the opera creates value for both actors and audience, game designers and game players increase overall social utility by respectively creating and paying to play a game. Thus, while Lastowka has done a masterful job in writing a foundational document for the field, the conversation about how law should interface with virtual worlds is just beginning in earnest.
December 1, 2010 at 1:57 pm
Posted in: Book Reviews, Bright Ideas, Cyberlaw, Intellectual Property, Uncategorized
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Responses (3)
A.J. Sutter - December 1, 2010 at 9:24 pm
Apropos of Lastowka’s second argument and your response: So are you saying that games are therefore economic because the maximization of a social welfare function is involved? Classically, “social welfare” functions were simply aggregates of individual utility functions — is that what you mean? Or do you mean “social” as distinct from economic? And are you suggesting that law doesn’t have any relevance — or even perhaps any ontological status — in a non-utilitarian context?
Joshua Fairfield - December 2, 2010 at 9:31 am
Greg is claiming that games are non-utilitarian, hedonic, and thus outside of ordinary life. In his view law carves out a sphere for games because they don’t fall within law’s ordinary ambit. A parallel he gives might be to the sphere of the family, in which law often defers to a range of norms.
I am claiming that games are utilitarian, not in the sense of functionalism, but in the economic sense. Lastowka’s description of hedonism reads a lot like economic utilitarianism to me. So when I play a game, I am increasing my utility. I think some of the confusion comes from the two meanings of utilitarian: sometimes we mean functional and sometimes we mean that an activity increases a person’s social welfare — when used in the latter sense, an activity does not have to be functional in order to generate utility in the economic sense.
So in my view, law defers to games not because they are hedonic, non-utilitarian, and thus outside of ordinary life, but because players have consented to alternative rules that govern the game and law respects that consent. Further, game-playing appears to me to be standard social welfare increasing behavior: I am happy to trade time and money for the game, and the maker of the game is happy to trade the game for my money. The place where the rubber may hit the road between Greg’s and my views is that sometimes players have not consented to certain “rules” of the game–rules, for example, that are set out in adhesion EULAs and are universally ignored by players. A good example would be the rule against sharing accounts in virtual worlds. Every game prohibits account sharing, and pretty much all players let someone else log into their account at least once in a while.
A.J. Sutter - December 3, 2010 at 11:44 am
Thanks for your reply. I think you’re probably right about the relationship between law and game rules. It was the use of the term “utility” that prompted my question, especially in the antepenultimate and penultimate sentences in the last paragraph of your post, from “Lastowka’s second argument …” to “… increase overall social utility by respectively creating and paying to play a game.”
From your post and your reply to my question, you seem to be saying (i) you would agree that if games were not some sort of economic activity, then law would not apply, but (ii) games are some form of economic activity, because they increase “social utility” (and therefore law does apply to them). In your reply you also use the characterization “non-utilitarian, hedonic, and thus outside of ordinary life.” (I’m also not sure what you mean by the “functionalist” sense of utilitarianism — but I suppose that as a form of utilitarianism, it is quantitative, yes?)
The doctrine of utilitarianism is about 200 years old. There were a couple of thousand years of qualitative, non-utilitarian thinking about ordinary life — and about the application of law to such life — that preceded it, and about 200 years of non-utilitarian thinking about ordinary life — and about the application of law to such life — concurrently with its existence. Non-utilitarians don’t believe that law does not exist. It is very curious, and I think very mistaken, to hold that law applies only to things that are measurable by utility, be it in an economic sense or the “functionalist” one you mention. Have I misunderstood you?
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