Author: Joshua Fairfield

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Avatar Experimentation: Human Subjects Research in Virtual Worlds

I have just posted a (rough) draft of my latest paper, entitled Avatar Experimentation: Human Subjects Research in Virtual Worlds to SSRN.  Virtual worlds make such great research testbeds precisely because people act in a lot of ways (especially economic ways) as if the virtual world were real.  But that complicates ethical research design: you can’t engage in activities that threaten the subject’s digital property or community, for example.  This raises human subjects research issues that a lot of Institutional Review Boards may not immediately take into consideration.  Here’s the abstract — but the important part is that this is still a work-in-progress (it’s coming out in a symposium issue of the U.C. Irvine Law Review next year), and I would love comments or suggestions.

Abstract: Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds.

Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds as the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles.

Although hundreds of articles and studies examine virtual worlds, none has addressed the interplay between the law and best practices of human subjects research in those worlds. This article fills that gap.

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Review: Greg Lastowka’s Virtual Justice

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.

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Schwarzenegger, Entertainment Merchants Association, and Irony

First, thanks so much to Danielle and the other authors at Concurring Opinions for taking me aboard for a while!  Let’s get right down to it: I wanted to talk about Schwarzenegger v. EMA before the month was out, given that oral argument was on November 2.  Oral argument always goes in twisty directions, but the court seemed to me to be just barely grazing two huge issues that go to the realities of the video game industry — first, how content for games is produced, and second, how games are now distributed.  More after the leap.

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