【无标题】virtual law footnote

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/static-secondlife-com/screenshots/ web/int_open mic.jpg (available at https://perma/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/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/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/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/2007/05/31/code-is-law/ and https:// perma/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 regime”); Grimmelmann, Feudalism, supra note 10 (the provider both grants property rights and sets the law relating to those rights); Burke, supra note 83, at 2.

104

Woman Arrested for “Killing” Her Virtual Husband, NY Times (Oct. 24, 2008), available at www.nytimes/2008/10/24/world/asia/24iht-virtual.1.17223730.html.

105

Virtual marriage and divorce falls in the virtual sovereign/virtual laws dimension, though they likely fall under community norms.

106

Lessig, supra note 66, at 192; Joshua Fairfield, Mixed Reality: How the Laws of Virtual Worlds Govern Everyday Life, 27 BERKELEy Tech. L.J. 55 (2012) (discussing how virtual rules affect real-world users).

107

Joshua A.T. Fairfield, The Magic Circle, 11 Vanderbilt J. Ent. & Tech. L. 823, 829-30 (2009), hereafter Magic Circle (“The fundamental question of online regulation is not the balance of power between nation-state sovereigns. Rather, it is the balance between sovereign and citizens”); cf Castronova, supra note 4, at 151 (“It is frankly impossible to deny that the gold pieces of fantasy worlds are money, just like the money in your pocket. They are sustained by exactly the same social mechanisms and perform exactly the same functions”).

108

Lessig, supra note 66, at 190 (“Whenever anyone is in cyberspace, she is also here, in real space. Whenever one is subject to the norms of a cyberspace community, one is also living within a community in real space. You are always in both places if you are there, and the norms of both places apply”) (emphasis in original).

109

Castronova, supra note 4, at 152-3.

110

111

Jonathon W Penney, Understanding the New Virtualist Paradigm, 12(8) J. Internet L. 3,4 (2009) (“Virtual people in virtual communities are real people with real-life concerns”).

112

Lastowka & Hunter, Laws, supra note 6, at 63-5, for example, discuss the projection of the user into an avatar, rather than the projection of the avatar onto the user. Despite differing terminology, the authors still consider the user’s wellbeing as the end goal: “Yet while an avatar’s owner may be perfectly comfortable with killing the avatar when she grows sick of it, she may feel genuine anger when a more powerful avatar decides to use her avatar for target practice.” Id at 63.

113

become more interested in Norrath and similar virtual worlds as they realize that such places have begun to mean a great deal to large numbers of ordinary people”).

114

Castronova, supra note 4, at 154-5, rightly points out that “fun” is part of the economic utility (compensation, jollies, or utils) that one gets from playing in the virtual world. Ironically, though, the less “fun” a character is, the more valuable it is, because there are fewer of them. Id. There is a limit to this argument—people will choose not to play games that are no fun. The argument discussed here is slightly different—this chapter places less value on “fun” where the world is used for entertainment only and has no business component.

115

Castronova, supra note 4, at 152 (“Should something happen to the conditions of being a wizard—say, a formerly powerful spell gets weakened—all those who are settled into wizarding as an occupation experience a genuine loss of well-being”); Balkin, supra note 10, at 2071 (“If virtual items have real-world equivalent values, though, the game designer may be destroying a considerable amount of value by turning off the game, and the more value that is destroyed, the less likely the law will stand for it”).

116

Tateru Nino, Can an Avatar Sign a Contract? (May 4, 2009) (pointing out the “shocking” fact that humans are not, in fact, the same as their avatars), available at http://dwellonit.taterunino. net/2009/05/04/can-an-avatar-sign-a-contract/ and https://perma/M7HF-6FFV.

117

Zittrain, supra note 97, at 168 (“One sovereign cannot reach every potentially responsible entity on a global network, and while commercial forces can respond well to legal incentives, the amateur technology producers that are so important to a generative system are less likely to shape their behavior to conform to subtle legal standards”).

118

See generally Fairfield, Anti-Social, supra note 89. See also Balkin, supra note 10, at 2071-2 (predicting that courts will not enforce all user agreements); but see Dibbell, supra note 72, at 143 (To the extent that users have input with providers, “[t]he EULA starts to look less like a contract of adhesion . . . and more like a social contract”).

119

Fairfield, Anti-Social, supra note 89, at 432; Goldsmith & Wu, supra note 12, at 137 (even with informal dispute resolution, contract enforcement is critical to online business); but see Lessig, supra note 66, at 197 (contracts in cyberspace are entered nearly costlessly, which might warrant real-world limitations on the rights that might be signed away by contract); Stoup, supra note 13, at 338-9 (provider implemented rules are more effective than community policed norms); but see Christopher Cifrino, Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds, 55 B.C. L. Rev. 235 (2014) (arguing that contracts are better than property for regulation of virtual worlds).

120

Castronova, supra note 4, at 151 (“Users are a community of interests who are affected by the decisions of a coding authority”); Grimmelmann, Comparative, supra note 54, at 150 (property rights are possessory—one has exclusive control as to other game players only so long as one holds onto the property); Fairfield, Anti-Social, supra note 89, at 441 (“The question of whether these private-law contracts can deliver the public goods they promise is the centrepiece of this chapter”) and 443-5 (describing why contracts cannot create all background law for virtual worlds); Kerr, Criminal, supra note 16, at 428 (breach of agreements should not be criminalized, because terms of such agreements are “arbitrary, and can reflect the whims and biases of whoever sets them”). But see Balkin, supra note 10, at 2065 (restricting ownership of virtual property can enhance game play).

121

Dibbell, s upra note 72, at 143 (describing importance of provider agreement in defining acceptable behavior and problems of uncertainty caused by ignoring the agreement).

122

But see Dibbell, supra note 72, at 144 (providers might overstep their own agreements in suits against users); Michael Meehan, Virtual Property: Protecting Bits in Context, 13 Rich. J.L. & Tech. 7, 26 (2006) (provider agreements allow for arbitrary revocation of property).

123

Fairfield, Anti-Social, supra note 89, at 468-9.

124

Fairfield, Magic Circle, supra note 106 (users consent to package of game rules even without reading them, including agreements and community norms).

125

David P. Sheldon, Claiming Ownership, but Getting Owned: Contractual Limitations on Asserting Property Interests in Virtual Goods, 54 UCLA L. Rev. 751, 768 (2007).

126

Users must typically agree to new terms before every game session or forfeit their account, much like credit card agreements. But see Castronova, supra note 4, at 208 (user agreements provide no “due process” of enforcement or amendment).

127

See, e.g., Nicolas Suzor, Order Supported by Law: The Enforcement of Rules in Online Communities, 63 Mercer L. Rev. 523 (2012) (discussing how contracts in virtual worlds should be administered).

128

Castronova, supra note 4, at 152-3; Dibbell, supra note 72, at 143.

129

Wagner James Au, Tax Revolt in Americana! New World News (Sept. 12, 2003), available at New World Notes: TAX REVOLT IN AMERICANA! and https://perma/LFW4-9BGV

130

Susan W Brenner, Fantasy Crime: The Role of Criminal Law in Virtual Worlds, 11 Vand. J. Ent. & Tech. L. 1, 65-6 (2008).

131

Many likely went “underground.”

132

Adam Holisky, New Add-On Policy Makes Selling Add-Ons Against the Rules (Mar. 20, 2009), available at https://web.archive/web/20100407034821/http://www.wow/200 9/03/20/new-add-on-policy-makes-selling-add-ons-against-the-rules/ and https://perma/7MJ D-X5HN.

133

Mike Schramm, Addon Devs Respond to Blizzard UI Policy Changes (Mar. 23, 2009) (“Already, the creator of the popular QuestHelper has responded on his changelog, saying that the addon is ‘dead’”), available at https://web.archive/web/20090606075349/http://www.wow. com:80/2009/03/23/devs-respond-to-addon-changes and https://perma/6LVV-HSWE.

134

Id. (“word is going around that Blizzard released these new policies to put the kibosh on [one particular add-on provider]”).

135

Castronova, s upra note 4, at 127. See note 74, supra, for discussion about whether such change complied with the agreement.

136

James Grimmelmann, Virtual Power Politics, The State of Plat: Law, Games, and Virtual Worlds 148 (Jack M. Balkin and Beth Simone Noveck, ed. 2006), hereafter Power (describing a variety of targeted responses to user conduct); Fairfield, Anti-Social, supra note 89, at 468-9.

137

Dibbell, supra note 72, at 143 (provider agreement for EverQuest “effectively renegotiated on a daily basis”).

138

Fairfield, Anti-Social, supra note 89, at 436-8 (contracts create confusion); Dibbell, supra note 72, at 144 (there are questions that agreements cannot answer).

139

Stoup, supra note 13, at 319 n.43.

140

Tateru Nino, Policies. . . (“New and ambiguous content policies from Linden Lab left everyone in doubt as to what was and was not allowed in Second Life”), available at http:// dwellonit-comic.taterunino/archive/25 and https://perma/43SN-QE68.

141

Tamahana, supra note 7, at 90 (indeterminate legal systems need not be unpredictable).

142

This may be a reason why providers disfavor the third party beneficiary doctrine. See generally Michael Risch, Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 415 (2009).

143

United States v. Nosal 844 F.3d.1024 (2016) (access without permission can constitute violation); United States v. Lowson, No. CRIM. 10-114 KSH, 2010 WL 9552416, at *6 (D.N.J. Oct. 12, 2010) (upholding indictment for bypassing Ticketmaster’s Captcha). See generally, Orin Kerr, Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. Rev. 1596, 1643 (2003) (discussing concerns about imprisoning individuals for breaching website terms of service).

144

Courts seem to recognize this. United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (“We need not decide today whether Congress could base criminal liability on violations of a company or website’s computer use restrictions. Instead, we hold that the phrase ‘exceeds authorized access’ in the CFAA does not extend to violations of use restrictions”).

145

Castronova, supra note 4, at 208 (user agreements provide no “due process” of enforcement or amendment); Radin, supra note 94, at 4 (consistent enforcement of contracts only a hypothetical); Nicolas Suzor, The Role of the Rule of Law in Virtual Communities, 25 Berkeley Tech. L.J. 1817 (2010).

146

These sanctions could be written in the form of game rules, which might technically be considered provider-enforced liquidated damages.

147

Fairfield, Anti-Social, supra note 89, at 472-3 (strict rules are needed to keep the riff-raff out even though a majority do not want such rules, leading to limited targeted enforcement); Stoup, supra note 13, at 331-2. Indeed, lack of enforcement may be a deliberate choice to maximize profits. Grimmelmann, Comparative, supra note 54, at 181 (“If driving away five $10 per month players causes a $100 per month player to double her spending, the game administration will happily make such a trade”).

148

Fairfield, A nti-Social, supra note 89, at 436-8.

149

Risch, supra note 141.

150

Fairfield, Anti-Social, supra note 89, at 429.

151

Fairfield, Anti-Social, supra note 89, at 451.

152

Fairfield, Anti-Social, supra note 89, at 448-9.

153

Grimmelmann, Feudalism, supra note 10 (“Second Life land barons have no recourse but self-help” to deal with disputes among tenants).

154

Grimmelmann, Comparative, supra note 54, at 159-60; Lastowka & Hunter, Laws, supra note 6, at 51-2; Balkin, supra note 10, at 2062; Stoup, supra note 13, at 319-20.

155

Lastowka & Hunter, Laws, supra note 6, at 69-71; Fairfield, Anti-Social, supra note 89, at 459-61 and 471-2 (adverse selection caused by lax rules causes only the most abusive members to stay in a world).

156

Fairfield, A nti-Social, supra note 89, at 459-61; Fairfield, Magic Circle, supra note 106 (“penalties” are breaches of game rules that are not legally actionable); Kerr, Criminal, supra note 16, at 422.

157

Balkin, supra note 10, at 2044 (too much money is at stake for the law to allow community norms to settle all disputes); Goldsmith & Wu, supra note 12, at 135 (reputation model of eBay did not “scale up” to large number of users); Lessig, supra note 64, at 159 (norms may not be effective where the community of enforcers does not include those who bear the cost of the norms); Stoup, supra note 13, at 328-30 (too many users to regulate); Arias, supra note 4, at 1340-41 (community norm enforcement fails to regulate users); Matthew Williams, Virtually Criminal: Crime, Deviance and Regulation Online 138 (2006). But see Fairfield, Magic Circle, supra note 106 (to the extent that sovereigns consider norms, then norms can have real-world effect).

158

Castronova, supra note 4, at 217; Burke, supra note 83, at 17; John Rothchild, Protecting the Digital Consumer: The Limits of Cyberspace Utopianism, 74 Ind. L.J. 893, 967-8 (1999) (LambdaMOO’s self-regulation failed because community norms are unenforceable); Stoup, supra note 13, at 328; but see Grimmelmann, Comparative, supra note 54, at 170-71 (discussing importance of guilds in forming and enforcing social norms despite their technical weakness).

159

Bartle, supra note 14, at 37.

160

Castronova, supra note 4, at 214 (“Even when guilds become powerful, their use of power rarely feels legitimate in the sense of being in the service of the community as a whole. Rather, they tend to act like a family of mighty people whose projection of their own power happens, coincidentally, to keep the peace on occasion”).

161

But see Zittrain, supra note 97, at 143 (arguing that community enforcement in Wikipedia, though not coercive, satisfies several indicia of the rule of law).

162

Bartle, supra note 14, at 35 (discussing unwritten rules of virtual worlds).

163

See, e.g., Grimmelmann, Comparative, supra note 54, 155-6 (Describing complexities of different communities dealing with “kill stealing,” a practice whereby one person or group attacks a monster that others are already fighting). The author recalls feeling incredibly awkward at having said the wrong thing or entered the wrong building without permission in an early non-graphical virtual world.

164

Grimmelmann, Comparative, supra note 54, at 180-81, suggests that providers might want such vagueness so that they may cater to their users by terminating accounts of unwanted users, or sometimes to allow a user to harass others if they pay a higher fee than users that might be driven away.

165

Stoup, supra note 13, at 332-3.

166

Stoup, supra note 13, at 333-4.

167

Balkin, supra note 10, at 2067.

168

Fairfield, A nti-Social, supra note 89, at 440-41.

169

Fairfield, Magic Circle, supra note 104 (consent is key to determining allowable conduct in virtual worlds).

170

Balkin, supra note 10, at 2068-9. But see Fairfield, Anti-Social, supra note 89, at 460 (“The process is just as simple as the one determining that tackling is not a tort, but high-sticking is”).

171

Williams, supra note 156, at 138; Tamahana, supra note 7, at 97 (following a rule is generalized while ad hoc actions are not); Zittrain, supra note 97, at 198-9 (discussing need for rule of law to avoid the abuse of community power when “[v]irtue [gives] way to narrow self-interest and corruption”); Grimmelmann, Comparative, supra note 54, at 168 (“When we look at the mechanisms by which players might enforce their notions of fair play and good behavior, an odd paradox emerges. The set of unpleasant and wrongful acts players might wish to deter is identical to the set of unpleasant and effective sanctions available as deterrence. To prevent violence, annoyance, and non-cooperation, players can engage in violence, annoyance, or non-cooperation”); Stoup, supra note 13, at 330-31 (shaming ineffective).

172

Castronova, supra note 4, at 209 (describing drop in world population when player versus player combat was allowed).

173

Grimmelmann, Comparative, supra note 54, at 173-4 (discussing limitations of provider designed political systems and norms enforcement).

174

Lastowka & Hunter, Laws, supra note 6, at 50-51 (provider agreements make simple inworld dispute resolution difficult).

175

Dibbell, supra note 72, at 144 (“Ruling the EULA to be a valid contract, on the other hand, would have sent the question back where it belonged—into the much more finely tuned evaluative process that is the ceaseless, grinding struggle between players and designers over the shape of the game”).

176

Arias, supra note 4, at 1340-41 (“Unfortunately, internal regulation methods have proven ineffective, because after most internal investigations, the MMORPG developer does not restore the stolen virtual goods to the victim”).

177

Lucille Ponte, Leveling up to Immersive Dispute Resolution (IDR) in 3-D Virtual Worlds: Learning and Employing Key IDR Skills to Resolve in-World Developer-Participant Conflicts, 34 U. of Ark. L. Rev. 713 (2012) (discussing need for in-world dispute resolution).

178

See, e.g., Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 609 (E.D. Pa. 2007) (“Such [arbitration] schemes are unconscionable where they ‘impose[] on some consumers costs greater than those a complainant would bear if he or she would file the same complaint in court’”) (citation omitted).

179

But see Bradley & Froomkin, supra note 14, at 130-31 (code can influence social structure in virtual worlds).

180

Lastowka & Hunter, Laws, supra note 6, at 53 (“As we explain, even when these owners are not wholly adverse to democratic governance within the virtual spaces they maintain, their exclusive ability to exert absolute control over these environments hopelessly complicates attempts to map traditional notions of democratic governance onto these settings”); but see Lessig, supra note 66, at 192-3 (arguing that there is a battle for supremacy between real world laws and other forms of regulation in cyberspace).

181

Grimmelmann, Comparative, supra note 54, at 175-6 (code can implement new laws without having to “bribe, bedazzle, brainwash or bully” anyone in the way a dictator would, such as the ability to revoke property without any kind of resistance by the avatar possessing it); Grimmelmann, Feudalism, supra note 10 (“What offline governments can do only after lengthy legal proceedings, Linden does unilaterally, just by changing an entry in a database”), available atwww.yalelawjournal. org/forum/virtual-world-feudalism; Radin, supra note 94, at 11.

182

Grimmelmann, Comparative, supra note 54, at 153-4 (“But in the world of software, increasing complexity does not bring with it increased discretion. This is so because software operates by itself . . . Even as code-based property rights become increasingly complex, with more exceptions and special cases, they never become any less hard-nosed in their application”).

183

Cf. Grimmelmann, Comparative, supra note 54, at 159-60 (describing how code allows for low-risk contracting in sale of goods due to software mechanisms that allow for clean transactions and nondefective goods).

184

Burke, supra note 83, at 9 (“Who decides, how they decide, and when they decide, are almost always unknowns”).

185

Bartle, supra note 14, at 39 (describing complaints when code reduces number of killable monsters); Burke, supra note 83, at 8 (“Most MMOG developers have treated communication with their customers as something of an afterthought, and have regarded it as a specialized activity to be managed independently from the development of the game itself”).

186

Lastowka & Hunter, Laws, supra note 6, at 55; Burke, supra note 83, at 7-8 (“A precious few such changes are entirely neutral or positive, affecting all players equally”); Castronova, supra note 4, at 152 (describing how different segments plead to providers to enhance the benefits of their group, such as warriors); Dibbell, supra note 72, at 143 (describing user complaints leading to frequent changes in virtual world); Balkin, supra note 10, at 2051; Lessig, supra note 66, at 199 (“My main concern is accountability—these architectures and the values they embed should be architectures and values that we have chosen”); Bartle, supra note 14, at 39 (discussing repercussions of changes to coded prices for goods); Radin, supra note 94, at 13 (discussing industry group capture of intellectual property and digital rights management laws).

187

Zittrain, supra note 97, at 168-9 and 172 (discussing “rough justice” of a single private party providing code that regulates what actions others can take on the internet: “These private programs are serving important functions that might otherwise be undertaken by public authorities—and their very efficiency is what might make them less than fair”).

188

Grimmelmann, Comparative, supra note 54, at 181 (“One of the most frequently given pieces of advice is that almost nothing is more destructive to a thriving game community than regular intervention by its designers. Since designers are not bound by the same ‘laws’ of code as regular players, their presence can be destabilizing. When designers engage in conduct not available to players, it highlights their distance from players and their apparent unaccountability”).

189

Lastowka & Hunter, Virtual Crimes, supra note 2, at 309-10 (Ultima Online allows “harassment” by code, but game rules disallow such harassment, excluding theft and player killing, from the definition of harassment).

190

Nino, supra note 99 (“people aren’t used to the idea of having to make their own behavioral choices within software. They simply assume that that which is not permissible is simply not coded, and therefore not possible . . . They don’t understand. ‘If it’s not allowed,’ they demand to know, ‘then why does it let me?’”') (emphasis in original). Bartle, supra note 14, at 36.

191

Grimmelmann, Comparative, supra note 54, at 151-2 (discussing complexity of programming code for property rules); Nino, supra note 99 (“Every time you encode a restriction, exceptions crop up. Every exception you encode lets a few cases slip through the cracks. Soon your code starts to look like the US Tax Code, with more exceptions and encoded governance than environment simulation”); Bartle, supra note 14, at 36; Burke, supra note 83, at 4 (“In many cases, this is because the real-world capacities of human agents essentially outstrip the technical capacities of law-as-code”).

192

Grimmelmann, Comparative, supra note 54, at 158 (“While online games have strong protections for property, they have nothing that we would recognize as a comparable body of contracts law. Most games have no way to draft any contract more complex than an immediate sale of goods for cash”); Nino, supra note 115 (avatars are not legal entities that can make a contract).

193

Radin, supra note 94, at 12 (describing code as more like a fence than a trespass law).

194

Grimmelmann, Comparative, supra note 54, at 153 (“Code may be clear and free from doubt, but where ‘loopholes’ come up, the need for rules is present—humans will take advantage of the shortcomings of code, and there are always shortcomings”) (emphasis in original); Nino, supra note 99 (“The absence of code to allow you to perform a specific task or action does not necessarily constitute governance. The presence of code to allow you to perform a specific task or action does not necessarily constitute governance”).

195

Grimmelmann, Power, supra note 135, at 147-8 (describing provider responses to user exploits).

196

Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 597 (E.D. Pa. 2007) (“Linden sent Bragg an email advising him that Taessot had been improperly purchased through an ‘exploit.’ Linden took Taesot away. It then froze Bragg’s account, effectively confiscating all of the virtual property and currency that he maintained on his account with Second Life”).

197

Lastowka & Hunter, Laws, supra note 6, at 72.

198

Bartle, supra note 14, at 41 (discussing complexity of determining whether benefits of an exploit should be reversed by provider: “Who decides it’s wrongful? What makes some actions in the virtual world ‘exploits’ when other, similar actions, aren’t?”); Grimmelmann, Power, supra note 135, at 148 “[E]very change . . . will privilege some players while hurting others”) and 149 (“There is nothing ‘wrong’ with the exploit, as far as the software is concerned”); Balkin, supra note 10, at 2051 (providers should be free to adapt game to preserve quality game play).

199

Grimmelmann, Power, supra note 135, at 147 (user agreements allow providers to do whatever they want in response to an exploit); Lastowka & Hunter, Virtual Crimes, supra note 2, at 315 (those harmed by exploits include the provider).

200

See, e.g., Grimmelmann, Comparative, supra note 54, at 150 n.11 (Ultima Online has a “steal” function built into the code); Fairfield, Anti-Social, supra note 89, at 460 (“For example, one virtual world called EVE Online is a science-fiction world of corporate fraud, yankee trading, and piracy. The game’s designers have openly stated that deception is part of the game—that, in fact, ‘fraud is fun’”).

201

Lastowka & Hunter, Virtual Crimes, supra note 2, at 304-5; Kerr, Criminal, supra note 16, at 419; Balkin, supra note 10, at 2062; but see Brenner, supra note 129, at 60 (arguing that real-world crimes map directly to virtual crimes).

202

Balkin, supra note 10, at 2067.

203

See, e.g., Jason T. Kunze, Regulating Virtual Worlds Optimally: The End User License Agreement, 7 Northwestern J. Tech. & Intell. Prop., at 4 (2008) (describing how user bank that absconded with deposited funds in EVE Online was not punished because such fraud was part of the game).

204

Lastowka & Hunter, Virtual Crimes, supra note 2, at 298; Kerr, Criminal, supra note 16, at 417-19 (most crimes cover actions taken with respect to physical reality rather than what happens to avatars).

205

Castronova, supra note 4, at 237; Lastowka & Hunter, Virtual Crimes, supra note 2, at 298; but see Fairfield, Magic Circle, supra note 106 (if one shares password information, there can be no liability for unauthorized access).

206

Koster, supra note 13, at 56 (“It’s pretty clear that there are some rights which leak over from the real world”); Kerr, Criminal, supra note 16, at 423 (describing unauthorized use of password as crime); Balkin, supra note 10, at 2067-8 (consumer protection laws will apply to shopping in virtual worlds); Brenner, supra note 129, at 52-3.

207

Edward Castronova, The Right to Play, The State of Play: Law, Games, and Virtual Worlds 73 (Jack M. Balkin and Beth Simone Noveck, eds 2006), hereafter Right to Play.

208

Lastowka & Hunter, Virtual Crimes, supra note 2, at 296-7; Kerr, Criminal, supra note 16, at 421 (“Yet if the rules of the game trump, this raises the important question of what ‘the rules of the game’ in a virtual world actually are . . . [V]irtual worlds are open. In a practical sense, a user has an infinite number of moves he can make. Which moves are permitted and which are not may be difficult to know”).

209

Grimmelmann, Comparative, supra note 54, at 167-8 (“[T]hanks to the wildly varied set of rules and conventions for games, it is not possible to identify specific acts as right or wrong in a way that holds true across games . . . The right response to the question of ‘what is a virtual crime?’ turns out to be ‘any activity that genuinely bothers most players of the game in question’”).

210

Lastowka & Hunter, Laws, supra note 6, at 71 (“Nonetheless, in urging courts to avoid recognizing virtual law, the cyberskeptics may have a point. Given the complexity of ascertaining a virtual world’s emerging legal rules and balancing them with avatar rights and wizardly omnipotence, the prospect of real-world courts entertaining virtual disputes is in some ways not very appealing”); Fairfield, Anti-Social, supra note 89, at 438 (“[A] combination of resistance on the part of virtual-world creators (expressed through their EULAs) and reticence on the part of courts to take on unfamiliar technologies has left these communities without the legal rules they need to thrive”).

211

Koster, supra note 13, at 56 (Legislation has not “caught up to the notion of virtual spaces very well”); Post, supra note 4, at 185.

212

Castronova, supra note 4, at 152-3 (discussing political decisions in virtual worlds); Dibbell, supra note 72, at 142-3 (describing user input to providers for rules). See also Castronova, Right to Play, supra note 206, at 68 (suggesting that real-world laws be used to require all in-world activity to be separated from real-world activity); Lastowka & Hunter, Virtual Crimes, supra note 2, at (suggesting that virtual communities should define virtual crimes); Stoup, supra note 13, at 338-9 (recommending that virtual worlds implement all-encompassing legislation); Burke, supra note 83, at 16.

213

Lastowka & Hunter, Laws, supra note 6, at 55-9; but see Castronova, supra note 4, at 217 (democracy failed and the provider retook authority).

214

But see Lastowka & Hunter, Laws, supra note 6, at 70-71 (discussing reasoned deliberations in LambdaMOO after virtual sexual assault). Of course, that deliberation imposed a penalty for an offense that was not defined beforehand, which presents a separate rule of law problem.

215

Lastowka & Hunter, Laws, supra note 6, at 71 (“Perhaps, therefore, it would be best to require that the laws of the virtual worlds develop within their own jurisdiction. Perhaps, even if we accept that real lives, economic values, and substantial investments are at play within virtual worlds, the wiser course may be for courts to keep their distance”); Post, supra note 4, at 185 (“So why not begin by recognizing their right—perhaps even their inalienable right?—to govern themselves as they see fit? Why not let those who choose to enter, and to interact within, these online communities make their own law, deciding for themselves how they’d like to order their affairs?”).

216

Fairfield, Anti-Social, supra note 89, at 460-61; Dibbell, supra note 72, at 144; Balkin, supra note 10, at 2073-4; Stoup, supra note 13, at 337-8.

217

Lastowka & Hunter, Laws, supra note 6, at 55-9 (wizards did not have enough time to handle all disputes); Dibbell, supra note 72, at 142-3. But see Beth Simone Noveck, Democracy— The Video Game: Virtual Worlds and the Future of Collective Action, The State of Play: Law, Games, and Virtual Worlds 258-60 (Jack M. Balkin & Beth Simone Noveck, eds 2006) (democracy is more likely to thrive in virtual worlds than in other internet-based applications due to social interaction); Post, supra note 4, at 185-6 (if lawmaking institutions were created in virtual worlds, self-governed laws will follow).

218

Bradley & Froomkin, supra note 14, at 139-43 (describing different areas that could be legislated differently in virtual worlds); Fairfield, Anti-Social, supra note 89, at 429 and 432 (“Instead, they fail because contracts cannot cheaply create default rules that bind large and shifting populations”).

219

But see Bradley & Froomkin, supra note 14, at 143 (virtual worlds are much less complex than the real world with respect to areas that need to be legislated).

220

Fairfield, Anti-Social, supra note 89, at 472 (“[M]any communities currently have strict anti-harassment rules. Consider what would happen if a new virtual community were to relax those strict rules. If the new community were to state that it will have a higher tolerance for harassment, then a higher proportion of harassers would enter the community, eventually driving off even those who initially had a higher tolerance for such behaviour”); Rothchild, supra note 157, at 967-8 (LambdaMOO’s self-regulation failed because community punishment is unenforceable); Grimmelmann, Feudalism, supra note 10 (pre-emption of contracts “could leave [providers] powerless against abusive users who spoil the experience for others”).

221

Fairfield, A nti-Social, supra note 89.

222

Castronova, Right to Play, supra note 206, at 73; Fairfield, Anti-Social, supra note 89, at 459; Kerr, Criminal, supra note 16, at 419 (“But misconduct that draws social significance from its meaning in virtual reality normally will have no resonance with criminal statutes”); Lessig, supra note 66, at 198 (“As the rules that govern real space compete, cyberspace increasingly wins out”).

223

Lastowka & Hunter, Virtual Crimes, supra note 2, at 303 (“Indeed, one might reasonably predict that since Ultima Online is commonly understood to be a computer game, the gut reaction of state and federal prosecutors would be to view the legal status of thefts that take place in Ultima Online as similar to the gruesome murder of PacMan at the hands of Inky, Blinky, Winky, or Clyde”). This is especially true where players do not really die, but are instead simply weakened and sent far away. Castronova, supra note 4, at 305, note 3. But see Brenner, supra note 129, at 87-9 (problem with virtual murder is that it may incite users to commit real acts of violence).

224

Castronova, Right to Play, supra note 206, at 73; Lastowka & Hunter, Virtual Crimes, supra note 2, at 301-3; see also Arias, supra note 4, at 1306-8 (describing several types of theft: embezzlement, deception, pickpocketing, and hacking).

225

Fairfield, A nti-Social, supra note 89, at 459; Fairfield, Magic Circle, supra note 106 (“The proposed model of self-governance is not sovereign lawmaking, but industry self-regulation and the scope of consent in online play”).

226

Balkin, supra note 10, at 2063 (communications torts will apply in virtual worlds as well as real-space).

227

“Magic circle” is a term of art that describes the barrier between in-world activities and real-world activities. Fairfield, Magic Circle, supra note 106. This circle, however, is routinely breached. Fairfield, Anti-Social, supra note 89, at 434.

228

In-game prohibitions are not as problematic, because behavior that is barred in-game because of real-world illegality will also bear real-world consequences.

229

Balkin, s upra note 10, at 2063 (communications torts will apply to conduct in virtual worlds); Brenner, supra note 129, at 54-5. Edward Castronova argues that any permeability between virtual and real worlds will necessarily harm human well-being. Castronova, Right to Play, supra note 206, at 68.

230

4 7 U.S.C. § 230 (immunizing providers for content provided by users).

231

See notes 148 and 149, supra, and accompanying text.

232

As discussed in the conclusion, allowing users to exercise third party beneficiary rights may enhance the rule of law.

233

Zittrain, supra note 97, at 172-3 (discussing complexity of applying “company town” jurisprudence from Marsh v. Alabama, 326 U.S. 501 (1946), to private actors in cyberspace); Balkin, supra note 10, at 2076-9 (same); Lastowka & Hunter, Laws, supra note 6, at 59-60; but see Benkler, supra note 14, at 182 (virtual worlds are not company towns, and users are free to leave virtual worlds).

234

Lastowka & Hunter, Virtual Crimes, supra note 2, at 305-6 (discussing conflict between sports rules and tort laws); Fairfield, Anti-Social, supra note 89, at 459-61 (discussing sports rules and exceeding allowed conduct); Fairfield, Magic Circle, supra note 106; Balkin, supra note 10, at 2046 (determining how law will apply to worlds is important because they can preempt norms) and 2066-7 (discussing whether fraud laws should apply to in-game fraud); Tal Zarsky, Privacy and Data Collection in Virtual Worlds, The State of Play: Law, Games, and Virtual Worlds 221-2 (Jack M. Balkin and Beth Simone Noveck, eds 2006) (discussing privacy rights in virtual worlds and real-world preemption); Lessig, supra note 66, at 199 (“Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty”); Brenner, supra note 129, at 67-9 and 79-81 (discussing “victimless” cyber crimes such as prostitution and “consensual” virtual rape).

235

refuse to defer to the private orderings created by contract and software. But we cannot, at this point, predict under what circumstances legislatures and courts will be willing to depart from the current default rule of nearly absolute wizardocracy”); Fairfield, Anti-Social, supra note 89, at 440-41; Post, supra note 4, at 182-4 (describing complications of regulating virtual banks and determining which laws apply to activities); Balkin, supra note 10, at 2071-2 (discussing uncertainty about enforceability of provider agreements).

236

Fairfield, A nti-Social, supra note 89, at 435.

237

Dibbell, supra note 72, at 144 (“Considering the novelty of this realm, we might reasonably hope for future case law and legislation to do a better job of it, I suspect it will be a long time before enough of those ambiguities are ironed out to make a difference”).

238

Cf. Post, supra note 4, at 184.

239

Post, supra note 4, at 163 (“The tricky part, though, is: Which law? Whose law? . . . [O]n the inter-network, information moves in ways that seem to pay scant regard to [national] boundaries, and mapping them onto network activity is a profoundly difficult challenge”).

240

Post, supra note 4, at 164-5. As a result, those users might be subject to penalties if they ever enter that country.

241

Post, supra note 4, at 169.

242

Post, supra note 4, at 183-5.

243

Stoup, supra note 13, at 337-8; Fairfield, Magic Circle, supra note 106 (worlds can selfgovern by creating penalties for breach of game rules); cf. Grimmelmann, Comparative, supra note 54, at 169 (“In deterrence terms, what a virtual world needs, in some sense, is a properly graded scheme of punishments”); Kerr, Criminal, supra note 16, at 428 (“virtual crimes should trigger virtual remedies”).

244

Grimmelmann, Comparative, supra note 54, at 181-3 (comparing real world rules with potential virtual world rules: “For similar reasons, administrative agencies issue guidance documents not only to put others on notice of the applicable law, but also to send a signal that they are constraining their own discretion with respect to particular issues”).

245

Compare Risch, supra note 141 with Fairfield, Anti-Social, supra note 89.

246

Grimmelmann, Comparative, supra note 54, at 181-3 (describing the beneficial implementation of certain rule of law features in virtual worlds: “I suspect that the ‘best practices’ of good games, ones which players think are basically fair, will closely resemble some of the ‘best practices’ of good governments”).

247

Cf Grimmelmann, Comparative, supra note 54, at 169 (“The key is that the community as a whole needs sanctions not available to individuals”); Noveck, supra note 216, at 260 (virtual worlds provide mechanisms for large-scale deliberations); Goldsmith & Wu, supra note 12, at 132 (discussing early dispute resolution on eBay by “Uncle Griff”); Lastowka & Hunter, Laws, supra note 6, at 50 (“For instance, in LambdaMOO and other textual MUDs, the ethos is one of sharing and community, and property disputes seem capable of resolution within the confines of the virtual world”); Zittrain, supra note 97, at 142-3 (describing dispute resolution mechanisms by the Wikipedia community).

248

Arias, supra note 4, at 1340-41 (discussing community based dispute resolution); cf. Goldsmith & Wu, supra note 12, at 137 (discussing SquareTrade online mediation service).

249

In the alternative, the avatar death penalty could be barred absent real adjudication by some neutral party.

250

* Originally published in the Berkeley Technology Law Journal (citation: 27 Berkeley Tech. L.J. 55 (2012)).

251

See Alexander Fidel, Art Gets Unmasked in the Palm of Your Hand, N.Y. TIMES (Dec. 1, 2010), http://www.nytimes/2010/12/02/arts/02iht-rartsmart.html (discussing the use of smartphones, overlaying digital content onto real spaces that effectively connects the content to a realspace anchor, creating “augmented reality”—for example, a museum patron who points his or her smartphone at a sculpture, and the artist appears on the screen ready to be interviewed).

252

Id. (discussing the use of Layar, an augmented reality app that can tap into multiple layers of reality tied to realspace locations, like the MoMA).

253

Id.

254

Id. (identifying the MoMA’s application as one of the most popular).

255

See Woodrow Barfield, Commercial Speech, Intellectual Property Rights, and Advertising Using Virtual Images Inserted in TV, Film, and the Real World, 13 UCLA Ent. L. Rev. 153, 158-59 (2006) (discussing the use of a mobile computer that is used in conjunction with a wireless network resulting in the use of information from the Internet to mediate reality, such as virtual advertising on real objects); see also 3 Janna Quitney Anderson & Lee Raine, Ubiquity, Mobility, Security: The Future of the Internet 297-99 (2009).

256

Brian X. Chen, Always On 4-7 (2011) (discussing the far-reaching impact of the iPhone and its role in weaving data with physical reality).

257

Sometimes, literally into the street, as in the example of augmented reality windows in upcoming Toyota vehicles. See Toyota’s “Window to the World” Offers a Taste of Driving Technology to Come, Independent (London) (July 28, 2011), http://www.independent.co.uk/life-style/motoring/ toyotas-window-to-the-world-offers-a-taste-of-driving-technology-to-come-2327504.html (“In the future . . . drivers can expect windshields to act in a similar manner, able to overlay digital information for practical, rather than educational or entertainment purposes.”).

258

See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) (detailing the use of a Term of Service, or “TOS”). TOSs—or End User License Agreements (“EuLAs”) as they are often called—are the dominant form of legal relationship in virtual worlds. See Joshua A.T. Fairfield, Anti-social Contracts: The Contractual Governance of Virtual Worlds, 53 McGill L. J. 427, 429 (2008) (discussing the prevalence of EULAs in virtual worlds). EULAs, as contracts, define the terms of the relationship between the company and the user. Not unlike Linden Research’s game Second Life, mobile phone carriers and the creators of mixed reality applications use EULAs and TOSs to control their software. This is already evident in any app downloaded from the Apple Store. See Legal Information & Notices, Apple, Apple - Legal terms/site.html (last updated Nov. 20, 2009).

259

See, e.g., Rosenberg v. Harwood, No. 100916536, 2011 WL 3153314 (D. Utah May 27, 2011) (awarding Google’s motion to dismiss because Google was found not negligent). The Plaintiff sued Google after she used the Google Maps direction feature and was struck by a car. See also Kirit Radia, Google Nearly Starts a War. Seriously., ABC News: Note (Nov. 11, 2010, 12:43 PM), http:// blogs.abcnews/thenote/2010/11/google-nearly-starts-a-war-seriously.html (describing how two nation-states in Central America almost started a war after Google Earth showed a border in the wrong location).

260

See, e.g., Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 Va. L. Rev. 2043 (2004); Gregory Lastowka & Dan Hunter, The Laws of the Virtual Worlds, 92 Calif. L. Rev. 1 (2004); Juliet M. Moringiello, What Virtual Worlds Can Do for Property Law, 62 Fla. L. Rev. 159 (2010).

261

See Doug Gross, New Wave of Location-Based Apps Mark a “Paradigm Shift,” CNN Tech (July 29, 2011), http://wwwn/2011/TECH/mobile/07/29/discovery. apps/index.html; see also Fidel, supra note 1.

262

between virtual worlds and the real world and the role of “real-world” law such as property); Leandra Lederman, “Stranger Than Fiction”: Taxing Virtual Worlds, 82 N.Y.U. L. Rev. 1620,

263

See Jason W Croft, Antitrust and Communications Policy: There’s an App for Just About Anything, Except Google Voice, 14 SMU Sci. & Tech. L. Rev. 1, 1-4 (2010) (discussing the widespread growth in smartphones, in particular the iPhone, and the extensive offerings of the app store); see also Dan Fletcher, 10 Tech Trends for 2010, TIME (Mar. 22, 2010), http://ti.me/AfOUk4 (detailing the rise in augmented reality particularly among iPhone apps).

264

Gregory K. Laughlin, Digitization and Democracy: The Conflict Between the Amazon Kindle License Agreement and the Role of Libraries in a Free Society, 40 U. Balt. L. Rev. 3, 5 (2010) (“Amazon . . . retains ownership of the ‘Digital Content’ (i.e., the e-book) and imposes a number of restrictions that are inconsistent with transfer of ownership to the purchaser, including prohibiting redistribution.”).

265

Harv. J. L. & Tech. 429 (1998); Andrew D. Schwarz & Robert Bullis, Rivalrous Consumption and the Boundaries of Copyright Law: Intellectual Property Lessons from Online Games, 10 Intell. Prop. L. Bull. 13 (2005); Allan R. Stein, The Unexceptional Problem of Jurisdiction in Cyberspace, 32 Int’l L. 1167 (1998); Richard S. Zembek, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 Alb. L.J. Sci. & Tech. 339 (1996).

266

See Barfield, supra note 5 (discussing the use of augmented reality exclusively in the virtual advertising context).

267

Compare Greg Lastowka, Virtual Justice: The New Laws of Online Worlds 9 (1st ed.

2010) (“[I]n 2009, by conservative estimates, about 100 million people were interacting in some sort of virtual world . . . [and] about 10 percent of adults in the United States have participated in some kind of virtual world.”), with Michael K. Cheng, iPhone Jailbreaking Under the DMCA: Towards a Functionalist Approach in Anti-circumvention, 25 BERKELEy Tech. L. J. 215 (2010) (discussing the rapid growth to date, predicted growth, and impact of smartphones along with their associated app stores), and Elaine Glusac, Travel Apps 2.0, N.Y Times: In Transit (Jan. 4, 2010), http:// intransit.blogs.nytimes/ 2010/01/04/travel-apps-20/ (discussing how augmented reality is “the hot new thing” for smartphones, and specifically the targeting of augmented reality travel apps to everyday travelers), and Jane L. Levere, Penney Sells Back-to-School Clothes the Digital Way, N.Y. Times (Aug. 2, 2010), http://nyti.ms/y41xjU (detailing the use of augmented reality to sell clothes to teenage girls).

268

See Evelyn M. Rusli, Google’s Big Bet on the Mobile Future, N.Y Times: Dealb%k (Aug. 15,

2011) , http://nyti.ms/z2PB9d (“Google made a $12.5 billion bet on Monday that its future—and the future of big Internet companies—lies in mobile computing, and moved aggressively to take on its arch rival Apple in the mobile market.”).

269

See Gross, supra note 11.

270

See Chris Crum, Is Augmented Reality the Future of E-Commerce? eBay Lets You Virtually Try On Sunglasses, Webpronews/Tech. (Jan. 7, 2011), Is Augmented Reality the Future of E-Commerce? (“Augmented reality could potentially be the biggest thing in e-commerce since the search engine.”).

271

See Jerry Kang & Dana Cuff, Pervasive Computing: Embedding the Public Sphere, 62 Wash. & Lee L. Rev. 93, 98 n.10, 99 (2005) (“What we can expect [if active RFIDs stood in our shoes], then, are networks of miniaturized, wirelessly interconnected, sensing, processing, and actuating computing elements kneaded into the physical world.”).

272

See Nancy J. King, When Mobile Phones Are RFID-Equipped—Finding E.U.-U.S. Solutions To Protect Consumer Privacy and Facilitate Mobile Commerce, 15 Mich. Telecomm. & Tech. L. Rev. 107, 112 (2008) (discussing the use of RFID tags in mobile phones and RFID readers while also discussing location-based services). RFID chips are present but are being used as support tools for mixed reality apps.

273

Id.; see also Lesley Fair, Fed. Trade Comm’n, Information Technology Law Institute 2011: Navigating the New Risks in Mobile Technology, Social Media, Electronic Records and Privacy, 1043 PLI/Pat 417, 483 (Apr.-May 2011) (noting that the FTC convened to explore the emergence of RFID only in 2004).

274

See CHEN, supra note 6, at 20, 31 (discussing the mobile app store as a digital gold rush, which is a strong indication that the Apple App Store is still in its infancy and is the sequel to the dot-com boom).

275

See Jacqueline D. Lipton, Bad Faith in Cyberspace: Grounding Domain Theory in Trademark, Property, and Restitution, 23 Harv. J. L. & Tech. 447, 448-9 (2010) (detailing the origins of the domain name rush and the negatives that ensued such as cybersquatting); see also Anupam Chander, The New, New Property, 81 Tex. L. Rev. 715, 724 (2003) (discussing the domain name “land rush”).

276

See Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (Sup. Ct. 2010) (discussing claim by dentist for defamation and deceptive acts and practices against Yelp!).

277

See Paul Milgram & Fumio Kishino, Taxonomy of Mixed Reality Visual Displays, E77-D IEICE Transactions on Info. & Sys. 1321, 1322-29 (1994), available at http://ci. nii.ac.jp/ naid/110003209335.

278

See A Quick Look at Google+, GOOGLE, http://www.google/+/learnmore/ (last visited Feb. 18, 2012).

279

Google+ profiles show other users whom the profile owner has placed in his “circles” and facilitates the sharing of the owner’s daily life (depending on how frequently he uses Google+). Medieval gossip circles would have similarly indicated whom someone knew, and would have also revealed the goings-on of the person’s life. Thus, both have the same fundamental function; the difference now is that this information is readily accessible through a smartphone, whereas one would have to actually sit in a gossip circle to gain this information.

280

See, e.g., ZipRealty, ZipRealty Real Estate, Apple iTunes, iTunes - Apple us/app/ ziprealty-real-estate/id340513671 (last updated Jan. 30, 2012).

281

See In re Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 (Data Traffic Growth), 25 FCC Rcd. 11407, 11412-25 (2010); id. 1 4 (“Data traffic has grown significantly, due to the increased adoption of smartphones and data consumption per device.”); see also The State of Mobile Apps, Nielsenwire (June 1, 2010), Audience Is Everything® - Nielsen nielsenwire/online_mobile/the-state-of-mobile-apps/ (“21% of American wireless subscribers have a smartphone at Q4 2009, up from 19% in the previous quarter and significantly higher than the 14% at the end of 2008.”).

282

See Data Traffic Growth, 25 FCC Rcd. 11407, 1 4 (“As of the end of 2008, 90 percent of Americans had a mobile wireless device.”).

283

See, e.g., SHAPE Servs., Barcode Reader, Apple iTunes, ‎Connecting to App Store barcode-reader/id340825499 (last updated June 9, 2011).

284

See acrossair, Nearest Tube, Apple iTunes, http://itunes.apple/app/nearest-tube/id32 2436683 (last updated July 16, 2010).

285

See GoTime, Happy Hours, Apple iTunes, http://itunes.apple/us/app/happy-hours/ id303814652 (last updated Oct. 17, 2011).

286

See In-Car Teen Mentoring Device, Am. Nat’l Prop. & Cas. Co., http://www.anpac/ DriveSmart/WhatIsDriveSmart/Mentoring/default.aspx (last visited Feb. 18, 2012).

287

See Data Traffic Growth, 25 FCC Rcd. 11407, 1 4 (“Data traffic has grown significantly, due to the increased adoption of smartphones and data consumption per device.”).

288

See CHEN, supra note 6, at 4 (“Data has become so intimately woven into our lives that it’s enhancing the way we engage with physical reality.”); see also, e.g., SHAPE Servs., supra note 33 (describing the Barcode Reader app as permitting the user to instantly compare prices by scanning items in a physical store).

289

network.”). This literature is either behind the times, or has managed to identify the new trend, that data tagging is driving the virtualization of realspace.

290

See Ian Austen, Pictures, with Map and Pushpin Included, N.Y Times (Nov. 2, 2006), http:// www.nytimes/2006/11/02/technology/02basics.html (defining geotagging in the photography context as a technology “which, broadly speaking, is the practice of posting photos online that are linked to Web-based maps, showing just where in the world the shutter was pressed”); see also Andrew Adam Newman, Appearing Virtually at a Store Near You. . ., N.Y Times, Jan. 19, 2011, at B9.

291

See AB InBev, Stella Artois—Le Bar Guide, Apple iTunes, ‎Connecting to App Store id335624129 (last updated June 29, 2010).

292

See Groundspeak, Inc., Geocaching—The Official Global GPS Cache Hunt Site, GEOCHACHING, Geocaching (last visited Feb. 18, 2012) (detailing the user base at “1,648,021 active geocaches and over 5 million geocachers worldwide”).

293

See Mark Couhig, Geocaching Is Catching On, SequiM Gazette (Dec. 15, 2010), http:// www.sequimgazette/news/article.exm/2010-12-15_geocaching_is_catching_on.

294

See Groundspeak, Inc., supra note 42; see also bulpadok, The Hidden Park, Apple iTunes, http://itunes.apple/us/app/the-hidden-park/id314518306 (last updated Mar. 5, 2010).

295

See Bryan Pardo, Finding Structure in Audio for Music Information Retrieval, 23 Signal Processing Mag., May 2006, at 126, 127 (referring to Shazam and similar products as “identification services”); Chris Crum, Augmented Reality + Location = The Holy Grail for Marketers?, Webpronews (Feb. 28, 2011), Augmented Reality + Location = The Holy Grail for Marketers? (discussing how adding a visual element to GPS-based services makes consumer engagement much stronger than simple GPS-based applications).

296

See Shazam, http://www.shazam (last visited Dec. 8, 2011) (featuring a music identification service).

297

See Andy Vuong, Wanna Read That QR Code, Get the Smart Phone App, Denver Post (Apr. 18, 2011), http://www.denverpost/business/ci_17868932.

298

Other types of two-dimensional barcodes developed include DataMatrix, Cool-Data-Matrix, Aztec, Upcode, Trillcode, Quickmark, Shotcode, mCode, Beetagg, and Microsoft’s new Microsoft tag.

299

See About NFC, NFC Forum, http://www.nfc-forum/aboutnfc/ (last visited Aug. 15, 2011).

300

See Fumio Kishino et al., Augmented Reality: A Class of Displays on the Reality-Virtuality Continuum, 2351 Proc. Spie 282, 283 (1994), available at Proceedings resource/2/psisdg/2351/1/282_1 (identifying Milgram’s Reality-Virtuality Continuum).

301

Milgram & Kishino, supra note 27, at 1321.

302

See Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127, 1131-32 (2009) (“These ‘augmented reality’ technologies push virtual experiences and object down into real space, erasing the boundary between the virtual world and the real world.”); see also Marc Jonathan Blitz, The Freedom of 3D Thought: The First Amendment in Virtual Reality, 30 Cardozo L. Rev. 1141, 1144 (2008) (noting that engineers “erase the perceptual barriers” with mixed reality by “mak[ing] illusory three-dimensional people and objects spring up in the more familiar settings in front of us”).

303

See M. Scott Boone, Ubiquitous Computing, Virtual Worlds, and the Displacement of Property Rights, 4 I/S: J.L. & Pol’y Info. Soc’y 91, 108-9 (2008).

304

Id.

305

See Milgram & Kishino, supra note 27, at 1324-25; see also Boone, supra note 53, at 109.

306

See Milgram & Kishino, supra note 27, at 1322 (“[T]he most straightforward way to view

a Mixed Reality environment, therefore, is one in which real world and virtual world objects are presented together within a single display ....”).

307

See Eric Taub, Storing Your Files Inside the Cloud, N.Y Times (Mar. 2, 2011), http://www. nytimes/2011/03/03/technology/personaltech/03basics.html (“Cloud backups are appealing for another reason: as computing becomes more mobile—on laptops, tablets and smartphones—you need to have reliable access to the data anywhere over an Internet connection.”).

308

See id; see also Edward Lee, Warming Up to User-Generated Content, 2008 U. Ill. L. Rev. 1459, 1500-501 (discussing that cloud computing is a major component of Web 3.0 in which the Internet converts traditional desktop-based applications into web-based applications that run off of massive amounts of data on remote servers).

309

See Milgram & Kishino, supra note 27, at 1321 (“The conventionally held view of a Virtual Reality . . . environment is one in which the participant-observer is totally immersed in, and able to interact with, a completely synthetic world.”).

310

See Jonathon W Penney, Privacy and the New Virtualism, 10 Yale J.L. & Tech. 194, 220 (2008) (discussing virtual reality and the two-way interaction between virtual technology and the user).

311

See id. at 220 (“The amount of information processing power necessary for such seamless interaction has not been developed and might never be.”).

312

See Jacqueline D. Lipton, Mapping Online Privacy, 104 NW U. L. Rev. 477, 480-81 (2010) (referencing the social nature of Web 2.0, for example the expanded options for people to magnify their voice through blogs, wikis, social networks, and MMOGs).

313

See Benjamin Duranske, Virtual Law: Navigating the Legal Landscape of Virtual

Worlds 12 (2008) (“Most people who enter virtual worlds do so to interact with other users. This makes virtual worlds highly social spaces ....”).

314

See Edward Castronova, Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier 6 (CESifo, Working Paper Series No. 618, 2001), available at http:// papers.ssrn. com/sol3/papers.cfm?abstract_id=294828 (noting that successful virtual worlds combine 3D computer graphics with “chat-based social interaction systems”). The graphics in the games mentioned are not part of complex, full-immersion virtual reality experience, but rather they are experienced merely through one’s computer.

315

To see how simple graphics interfaces in highly social games can be more appealing than less socially-oriented games with high end graphics, compare Zynga, Farmville, Facebook, http://www.facebook/FarmVille (last visited Aug. 3, 2011) (identifying 34,070,983 monthly active users), with Press Release, Blizzard Entm’t, World of Warcraft Subscriber Base Reaches 12 Million Worldwide (Oct. 7, 2010), About - Blizzard Entertainment press/pressreleases. html?id=2847881 (stating a 12 million subscriber population).

316

See The State of Mobile Apps, supra note 31 (highlighting that Facebook is the most popular app on the iPhone and BlackBerry, and the second most popular on the Android platform).

317

See Reza B’far, Mobile Computing Principles: Designing and Developing Mobile Applications with UML and XML 5, 12-13 (1st ed. 2005) (describing the evolution of mobile computing).

318

See Zynga, supra note 65 (describing a popular virtual world game, Farmville, which is browser-based and does not require high-performance graphics hardware and computing power).

319

See B’far, supra note 67, at 6, 13.

320

See Castronova, supra note 64, at 5-6; see also Duranske, supra note 63, at 2.

321

See Duranske, supra note 63, at 12.

322

See Penney, supra note 60, at 221 (detailing that avatars are not only a visual representation of the user in the virtual world where the user has full control over the avatar’s appearance and actions, but often, the avatar becomes the person in the virtual world). An example is a recent lecture given by Professor Lastowka and this author at the Governance in Virtual Worlds Conference at the ASU Sandra Day O’Connor Law School. Participants attended with their own avatars and were able to interact with the professors’ avatars. The avatars served as a means to convey social information: social focus, gaze, proximity, experience, and engagement are all conveyed via the avatar. Although avatar-mediated discourse is not as immediate as person-to-person conversation, the use of avatars as markers for social discourse permits a feeling of increased social engagement despite the limitations of the virtual environment.

323

See UChicagoLaw, Judge Posner (or at Least His Avatar) Talks to Second Life, U. Chi L. Sch.: Faculty Blog (Nov. 29, 2006), The University of Chicago Law School Faculty Blog: 40 posts from November 2006 judge_posner_or.html.

324

See Joshua A.T. Fairfield, The Magic Circle, 11 Vand. J. Ent. & Tech. L. 823, 838 (2009).

325

See Douglas Macmillan, Zynga and Facebook. It’s Complicated, Bloomberg Businessweek (Apr. 22, 2010), http://www.businessweek/magazine/content/10_18/b4176047938855.htm (detailing the close relationship between Zynga and Facebook).

326

See Presidential Debate Festivities in Second Life, Game Pol. (Sep. 29, 2008), http:// www. gamepolitics/2008/09/29/presidential-debate-festivities-second-life.

327

See John D. Sutter, Bing Wows Crowd with Live-Video Maps, CNN Scitechblog (Feb. 12, 2010), Bing wows crowd with live-video maps – SciTechBlog - CNN Blogs (discussing the live-feed feature in Bing Maps); Viewing Layers—Maps Help, Google, http://support.google. com/maps/bin/answer.py?hl=en&answer=144359 (last visited Feb. 18, 2012) (stating that one of Google Map’s viewing layers contains live images from webcams around the world).

328

See Blaise Aguera y Arcas Demos Augmented-Reality Maps, Ted (Feb. 2010), http:// www. ted/talks/blaise_aguera.html (discussing the work of Microsoft with Bing Maps, the integration of cartography, imagery, and user content to augment realspace).

329

See King, supra note 22, at 211 (discussing Near Field Communications (“NFC”) technologies and how they rely on RFID chips in mobile handsets, the software on the mobile handsets, and how NFC will deliver mobile advertising and other location-based services).

330

See Wendy A. Adams, Intellectual Property Infringement in Global Networks: The Implications of Protection Ahead of the Curve, 10 Int’l J.L. & Info. Tech. 71, 89 (2002) (identifying geolocation services as referential databases that are arguably inferior to GPS technologies).

331

See Shira Ovide, Esquire Tries Out Digital Reality, Wall St. J., Oct. 29, 2009, at B10.

332

See bulpadok, supra note 44.

333

See Mark Sutton, Soar Valley College: Augmented Reality in the Classroom, Guardian (London) (Dec. 2, 2010), http://www.guardian.co.uk/classroom-innovation/video/soar-valley-college (discussing a professor’s successful effort to interact with underachieving students by using an augmented reality experience to engage students with the solar system).

334

See Mobilizy GmbH, Wikitude, Apple iTunes, http://itunes.apple/us/app/wikitude/ id329731243 (last updated June 29, 2011).

335

See, e.g., Dinosaur Games, PBS Kids, http://pbskids/games/dinosaurs.html (last visited Oct. 15, 2011) (providing dinosaur-themed games for children to learn various skills and subjects).

336

See Webcam Greetings, Hallmark, http://www.hallmark/online/webcam-greetings. aspx (last visited Aug. 8, 2011).

337

See id. The example above includes a feature where you can print out a free sample from Hallmark complete with the mobile tag. If you simply hold the card up to a webcam, your image pops to life.

338

See Mark Burdon, Privacy Invasive Geo-mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws, 2010 U. Ill. J.L. Tech. & PoL’y 1, 4 n.62 (explaining Fishing Lake Map, an app that provides geotagged updates on fishing holes).

339

See Nick Bilton, Augmented Reality on Your Phone, N.Y Times Bits (Dec. 20, 2010), http://bits.blogs.nytimes/2010/12/20/augmented-reality-on-your-phone/ (identifying, based on a recent report from Forrester research, that augmented reality apps will become an integral, and common, part of using a mobile phone); see also Thomas Husson, Mobile Augmented Reality: Beyond the Hype, a Glimpse into the Mobile Future, Forrester: Thomas Husson’s Blog BLOG (Dec. 20, 2010), http://blogs.forrester/thomas_husson/10-12-20 mobile_augmented_reality_ beyond_the_hype_a_glimpse_into_the_mobile_future (stating that while augmented reality is not new, it is moving to mobile platforms). Although augmented reality is currently overhyped due to unrealistic expectations, it is growing rapidly and drivers for growth are in place.

340

See id.; Burdon, supra note 88, at 7-9 (discussing the expanded use of GPS, location-oriented, and function-oriented geo-mashups which overlay information onto a map of the real world). This use of software to tag information, such as a new cycling or running route, is substantially the same as the overlay of property boundaries upon realspace.

341

For a nonexhaustive list of virtual worlds literature, see sources cited supra note 15.

342

See Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. Rev. 1048 (2005).

343

See Beth Simone Noveck, Introduction: The State of Play, 49 N.YL. Son. L. Rev. 1 (2005); see also Jankowich, supra note 15

344

See Jankowich, supra note 15, at 207-8 (discussing the use of licensing by Linden Labs and Sony to control property in virtual worlds).

345

See Fairfield, supra note 8.

346

Joshua A.T. Fairfield, Escape into the Panopticon: Virtual Worlds and the Surveillance Society, 118 Yale L.J. Pocket Part 131 (2009).

347

See Camp, supra note 15.

348

See Michael H. Passman, supra note 15.

349

See Jankowich, supra note 15, at 189 nn.85-86 (discussing open source virtual worlds and the norms generated in them and how this is comparable to the common law process).

350

are jurisgenerative spaces. When courts apply law to the new technologies of virtual worlds, they incrementally adapt traditional concepts to a burgeoning technological world. In short, Lastowka demonstrates that virtual law is common law.”).

351

See id.

352

See, e.g., Barfield, supra note 5, at 159-60 (discussing virtually-enriched advertising but failing to address issues surrounding mobile applications of such advertising); Burdon, supra note 88, at 8 (discussing GPS and RFID technologies and their use in mobile phones to record a new wealth of geographic information and turning humans into geographical sensors but not delving deeper into mixed reality); King, supra note 22, at 125-27 (detailing the growth of mobile advertising but only in the context of RFID chipped mobile phones); see also Kang & Cuff, supra note 21, at 109 (discussing augmented reality in the context of embedded computing, not mobile computing, and arguing that augmented realities will occur through pervasive computing).

353

See Mark W Bell, Toward a Definition of “Virtual Worlds,” 1 Virtual Worlds Res. 1, 2-3 (2008) (requiring synchronous communication in the definition of a virtual world).

354

See Castronova, supra note 64, at 5-6.

355

See Milgram & Kishino, supra note 27, at 1324-25; see also Boone, supra note 53.

356

See Shan Li, Businesses Quickly Adopting Augmented Reality Apps for Consumers, L.A. Times (Oct. 13, 2011), Archives - Los Angeles Times (describing the current proliferation of augmented reality apps).

357

See Yelp for Mobile, Yelp, Yelp Mobile - Yelp (last visited Aug. 4, 2011); FouRsquARE, Foursquare - Independent Location Data Platform (last visited Feb. 18, 2012).

358

See Utsushiomi, U-Tsu-Shi-O-Mi at Asiagraph 2007, Youtube (Oct. 16, 2007), http:// www.youtube/watch?v=htkVlCfCV2M (demonstrating virtual reality overlays on robotic substrates); Joseph L. Flatley, CirculaFloor Robot Floor Tiles Keep You Moving in Virtual Reality, Engadget (Feb. 26, 2009), Yahoo

359

See Vernor Vinge, Rainbows End (2006) (exploring a possible future in which mixed reality would layer 3D virtual experiences on the real world).

360

See Flatley, supra note 108.

361

See Rosenberg v. Harwood, No. 100916536, 2011 WL 3153314 (D. Utah, May 27, 2011) (granting Google’s motion to dismiss because Google was not negligent).

362

Id.

363

364

See Kang & Cuff, supra note 21; King, supra note 22; see also Boone, supra note 53, at 104-5 (discussing two traits of pervasive computing: embeddedness and mobility). The first trait has not come to pass but the second characteristic is closer to the mark.

365

See E. Casey Lide, Balancing Benefits and Privacy Concerns of Municipal Broadband Applications, 11 N.Y.U. J. Legis. & Pub. Pol’y 467, 472 (“‘[T]he Internet of Things,’ in which tiny, inexpensive radio transceivers are installed in various everyday items, ‘enabling new forms of communication between people and things, and between things themselves.’”).

366

See Kang & Cuff, supra note 21, at 112 (detailing that PerC is a digital nervous system grafted into the real world space around us, resulting in a networked system).

367

See King, supra note 22, at 109 n.1 (discussing an International Telecommunications Union report on different technologies, in particular RFID chips, that will lead to an “Internet of things”).

368

See Justin M. Schmidt, RFID and Privacy: Living in Perfect Harmony, 34 Rutgers Computer & Tech. L.J. 247, 250-52 (2007) (discussing the disparity between active and passive RFID tags: passive tags are small and cheap but have fewer applications while active tags are significantly larger and more expensive and have different uses).

369

Compare Derek E. Bambauer & Oliver Day, The Hacker’s Aegis, 60 Emory L.J. 1051, 1069-71 (2011) (discussing the use of RFID chips ranging from access cards to buildings, toll payment systems, and passport readers), with Adam Powell, Benchmark Legislation: A Measured Approach in the Fight Against Counterfeit Pharmaceuticals, 61 Hastings L.J. 749, 759-60 (2010) (discussing the use of RFID chips in drugs that are counterfeited and varied benefits such as being written on and the speed of scanning, but also the lack of widespread use due to high and variable costs along with privacy and accuracy concerns), and Boone, supra note 53, at 10 (identifying ubiquitous computing as “still relatively new and still developing” and the mix of terminology which can include “mobile computing”). Boone’s article continues with other terminology that is often included in the ubiquitous computing literature, specifically, “wearable computing, augmented reality” and “near-field communications.” Id. at 101; see also King, supra note 22. RFID chips are largely an industry tool for tracking. See Schmidt, supra note 118. They are present to an extent in mobile computing and in other tools that are consumer driven, for example credit cards, but they act more as a support system for the more widespread and commercially viable mixed reality systems in smartphones. See King, supra note 22.

370

See Kevin Werbach, The Network Utility, 60 Duke L.J. 1761, 1812-13 (2011) (“Most experts participating in a 2010 Pew Foundation Future of the Internet Survey expected that within a decade, remote servers would be the primary means of accessing applications and sharing information, rather than local applications.”). Mobile phones also continue to grow and aid in the growth of cloud computing. Id. at 1814.

371

See Konstantinos K. Stylianou, An Evolutionary Study of Cloud Computing Services Privacy Terms, 27 J. Marshall J. Computer & Info. L. 593, 604 (2010) (“Web 2.0 may have made the Internet more interactive, but it is cloud computing that signifies the transition to ubiquitous always-on networking which has the potentials to substitute part of the desktop computer.”).

372

See Croft, supra note 13; Fletcher, supra note 13.

373

See Werbach, supra note 120.

374

See Kang & Cuff, supra note 21, at 109-12 (presenting the idea of computing in the air, walls, and in our sunglasses, but later identifying the augmentation of experiences with realspace with layers of contextually relevant information). But see Jesse Hicks, DARPA’s Next-Gen Wearable Display: Augmented Reality, Holographic Sunglasses, Engadget (Apr. 12, 2011), http:// www.engadget/2011/04/12/darpas-next-gen-wearable-display-augmented-reality-holographi/ (reporting that sunglasses are driven by AR technologies, meaning they are not driven by embedded chips). Kang & Cuff envision “software [that] will manage our datasense and constantly seek out and filter information . . . .” Kang & Cuff, supra note 21, at 110; see also Chen, supra note 6, at 20, 35 (writing that “[t]he iPhone took Apple’s core belief—that software is the key ingredient to hardware’s success—and expanded it” and, further, that software is now pervasive). Smartphones are not just one device, but literally hundreds of thousands of things due to apps. Chen, supra note 6, at 9--10. Software is what has become truly pervasive and not computing; instead, computing has become mobile.

375

Inc., 962 F. Supp. 1015, 1021 (S.D. Ohio 1997) (finding that an owner of a computer system has a possessory interest and that electronic signals are “sufficiently physically tangible to support a trespass cause of action”); see also Richard A. Epstein, Cybertrespass, 70 U. Chi. L. Rev. 73, 79-80 (2003) (identifying servers as physical property thereby allowing for a trespass to chattels as the server can functionally be touched).

376

See generally Kang & Cuff, supra note 21 (discussing the idea of a mall that makes full use of embedded PerC technologies).

377

See generally Bradford L. Smith & Susan O. Mann, Innovation and Intellectual Property Protection in the Software industry: An Emerging Role for Patents?, 71 U. Chi. L. Rev. 241 (2004) (finding a strong link between software, its emergence as a vital part of the U.S. economy, and the protections provided by intellectual property laws).

378

See John Markoff, Data Center’s Power Use Less Than Was Expected, N.Y. Times (July 31, 2011), http://nyti.ms/wilXuU (identifying that Google not only rents servers but also “generally builds custom computer servers for its data centers”).

379

See Google Terms of Service, GooGLe (Apr. 16, 2007), http://www.google/accounts/ TOS (outlining the relationship between Google and the user with regards to “Google’s products, software, services, and websites”). Google is overhauling its terms of service as of March 1, 2012. Id.

380

Id.; see also Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9 th Cir. 2010) (outlining how a software vendor can phrase its license agreement to avoid characterization of the transaction as a sale).

381

See Kang & Cuff, supra note 21, at 110 (“Preliminary implementations of such augmented reality already exist. For instance, contractors can walk through construction sites with a visor that paints a digital overlay of the approved architectural drawings on the building in progress.”).

382

Id. at 98-99 n.14 (detailing the use of micromotors, and the reliance on nanotechnology, in addition to varying sizes and forms of devices for pervasive computing). Kang and Cuff detail the infrastructure of pervasive computing under the idea of embeddedness, where computers are embedded everywhere and are capable of wireless communications. Id. at 97.

383

See also Jamais Cascio, Filtering Reality, How an Emerging Technology Could Threaten Civility, Atlantic Mag. (Nov. 2009), http://www.theatlantic/magazine/archive/2009/11/ filtering-reality/7713/ (detailing augmented reality and current apps, such as Layar, that allow users to “see location-specific data superimposed over their surroundings” in addition to upcoming technologies planned by Sony, for example wearable AR devices like sunglasses).

384

See Chen, supra note 6, at 194-99 (detailing different AR technologies, such as smartphones, headwear, eyewear, and sensory specific options that go beyond just visual, such as audio cues from earpieces).

385

See King, supra note 22.

386

See Jeffrey Paul Jarosch, Reassessing Tying Arrangements at the End of AT&T’s iPhone Exclusivity, 2011 Colum. Bus. L. Rev. 297, 330-31 (detailing the growth in wireless networks from 2000 to 2009).

387

See, e.g., Jack M. Balkin, Law and Liberty in Virtual Worlds, in State of Play: Law, Games, and Virtual Worlds 86, 94 (Jack M. Balkin & Beth Simone Noveck eds., 2006) (arguing that real world laws and legal bodies should allow virtual worlds to construct their own standards for internal needs); Edward Castronova, The Right To Play, 49 N.Y.L. Sch. L. Rev. 185, 204 (2005) (arguing for a law of iteration where, for example, virtual economies would be governed by a body of law that was completely separate from real world economies).

388

1181 (E.D. Mo. 2004), aff’d sub nom. Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005) (“The defendants in this case waived their ‘fair use’ right to reverse engineer by agreeing to the licensing agreement.”).

389

See Vernor, 621 F.3d at 1111; see also Mark A. Lemley, Terms of Use, 91 Minn. L. Rev. 459 (2006) (finding that contracts, such as license agreements, “clickwrap” and “browsewrap,” and Terms of Use, have grown in popularity and, critically, are increasingly enforced by courts).

390

See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 939 (9th Cir. 2010) (setting out the contractual terms that limit the scope of a license as a “condition” and all other license terms as “covenants”). A user can still violate a covenant and thereby breach a contractual term. If a user were to violate a condition of a license agreement, copyright would be implicated. See also Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C.). The DMCA contains three provisions that create a framework to address circumvention of technological measures that protect copyrighted works. See 17 U.S.C. § 1201(a)(1)-(2), (b)(1) (2006); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996) (describing that UCC § 2-204(1) provides for different formations of contracts, such as a prompt on a computer screen, which can prevent access). ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure.

391

See MDY, 629 F.3d at 938 (detailing a particular Term of Use and the prohibition of cheats, hacks, or other third party software, essentially requiring fair play).

392

See Castronova, supra note 137, at 200-205.

393

See Fairfield, supra note 74.

394

Id. at 825.

395

See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) (“While the property and the world where it is found are ‘virtual,’ the dispute is real.”).

396

See Bowers v. Baystate Techs., Inc., 320 F.3d 1317, 1323-34 (Fed. Cir. 2003) (evaluating the issues using copyright and patent law); Davidson & Associates, Inc. v. Internet Gateway, Inc., 334 F. Supp. 2d 1164, 1187 (E.D. Mo. 2004), aff’d sub nom. Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005) (finding in favor of licensor); see also MDY, 629 F.3d at 938-43 (framing the claim of improper use of software in copyright); Lemley, supra note 139, at 460 (placing shrinkwrap, clickwrap, and browsewrap licenses under the umbrella “terms of use” because they all seek to control the extent to which buyers of software, or visitors to a site, can use that software or site).

397

See Miguel Helft, Facebook Wrestles with Free Speech and Civility, N.Y Times (Dec. 12, 2010), http://www.nytimes/2010/12/13/technology/13facebook.html (“‘Facebook has more power in determining who can speak and who can be heard around the globe than any Supreme Court justice, any king or any president,’ said Jeffrey Rosen, a law professor at George Washington University who has written about free speech on the Internet. ‘It is important that Facebook is exercising its power carefully and protecting more speech rather than less.’”); Ashlee Vance & Miguel Helft, Hackers Give Web Companies a Test of Free Speech, N.Y Times (Dec. 8, 2010), http:// www.nytimes/2010/12/09/technology/09net.html (detailing the tension between the high praise received by Twitter and Facebook as outlets of free speech and their corporate aspirations of both because both rely so heavily on advertising).

398

See Chen, supra note 6, at 92 (discussing the negative feedback to Apple’s App Store and its legal agreements with developers). “[I]f a person makes an app for the iPhone, he has to make it Apple’s way or it won’t be offered in the App Store. He has to play by Apple’s strict rules.” Id. “Apple must approve every iPhone app before it goes up for sale in the App Store, and this means that the corporation can regulate and censor content however it wishes.” Id.; see also Lemley, supra note 139, at 470-72 (“The problem is that the shift from property law to contract law takes the job of defining the Web site owner’s rights out of the hands of the law and into the hands of the site owner.”).

399

See Brian X. Chen, Programmer Raises Concerns About Phone-Monitoring Software, N.Y Times Bits (Dec. 1, 2011), http://bits.blogs.nytimes/2011/12/01/programmer-raises-concerns-about-phone-monitoring-software/ (discussing the newly discovered data-collection software, Carrier IQ, that major cellular phone carriers have installed and that collects data such as users’ locations and telephone activity).

400

ability of a company to write a contract such that the buyer owns or licenses the software and further that restrictions can be placed within such a license agreement that would allow a company to later sue for violations of that agreement based on a breach of its terms resulting in a contract breach or even copyright infringement); Lemley, supra note 139, at 466-68 (discussing the rise in enforcement of license agreements and TOSs by courts).

401

Michael Grynberg, The Judicial Role in Trademark Law, 52 B.C. L. Rev. 1283, 1335 (2011) (“Intellectual property gives functional property rights to the creators of intangible goods.”).

402

See Gideon Parchomovsky & Peter Siegelman, Towards an Integrated Theory of Intellectual Property, 88 Va. L. Rev. 1455, 1466-67 (2002) (stating that absent legal protections, competitors would be able to copy expressive works and inventions without incurring the initial costs of production which, in turn, would drive down the market price leaving original authors and inventors without the ability to recover their initial production costs).

403

See Smith & Mann, supra note 127, at 241-42 (discussing the role of IP protection in incentivizing developers to invest in their programming as it prevents copying by protecting the original expression and aids in preventing copies that diminish the return on development costs).

404

See, e.g., Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1231 (D.C. Cir. 2003); Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999).

405

See John Schwartz, Record Industry May Not Subpoena Online Providers, N.Y Times (Dec. 19, 2003), http://nyti.ms/GSNpVq.

406

See Kier Thomas, Cloud Computing: The Executive Summary, PC WORLD (Dec. 29, 2010), http://www.pcworld/businesscenter/article/215134/cloud_computing_the_ executive_summary. html (noting that cloud computing is cheaper than maintaining local files for businesses).

407

See Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1201 (Fed. Cir. 2004) (discussing The Chamberlain Group’s arguments as seeking to control consumers options); Walter S. Mossberg, Media Companies Go Too Far in Curbing Consumers’ Activities, Wall St. J., Oct. 20, 2005, at B1, available at http://on.wsj/yiv0Sv (explaining that DRM comes in several forms, is widely used, and controls not just whether something can be copied, but also whether it can even be accessed, such as with TiVo and a given TV program expiring after a certain period of time).

408

Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. Rev. 889, 901 (2011) (“Today, device makers and content distributors can easily introduce barriers to compatibility . . .. [S]hifting legal and technological landscapes, marked by the introduction of digital works and technological measures designed to restrict lawful access, have created serious concerns over lock-in.”); see also Chamberlain, 381 F.3d at 1201 (finding that the copyright holder, Chamberlain, sought “to leverage its sales into aftermarket monopolies—a practice that both the antitrust laws . . . and the doctrine of copyright misuse . . . normally prohibit”); Chen, supra note 6, at 6 (discussing the emerging use of app stores by TV makers and car companies such as Ford, “all with the common goal of trapping consumers inside their product lines”).

409

See, e.g., Phillip A. Harris Jr., Mod Chips and Homebrew: A Recipe for Their Continued Use in the Wake of Sony v. Divineo, 9 N.C. J.L. & Tech. 113, 134 (2007) (“Prior to the DMCA, courts took a very liberal view on reverse engineering of video game protections and allowed it for ‘intermediate copying.’ After the creation and implementation of the DMCA, however, courts showed a stricter approach to copying and held that the interest in protecting copyright holders’ security measures is greater than the interest of fair users that may attempt to use the functional components of intellectual property to create new platforms and software” (citation omitted)); Joseph E. Van Tassel, Remote Deletion Technology, License Agreements, and the Distribution of Copyrighted Works, 97 Va. L. Rev. 1223, 1236 (2011) (“Furthermore, [the] balance of intellectual property rights arguably already skews in favor of the copyright holder, so courts should be wary of further curtailment of users’ rights through the use of license agreements.”).

410

See Wall Data, Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006) (finding that because defendant was a licensee and not an owner, it therefore infringed the plaintiff’s copyright by copying the software and installing it on multiple computers in violation of the license agreement); Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330 (9th Cir. 1995); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) (creating the random access memory (“RAM”) copy doctrine: “[S]ince we find that the copy created in the RAM can be ‘perceived, reproduced, or otherwise communicated,’ we hold that the loading of software into the RAM creates a copy under the Copyright Act.”).

411

The RAM copy doctrine makes it a copyright violation to violate any term of a license agreement where the software is copied into the computer’s RAM. See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 941 (9th Cir. 2010) (“The rationale would be that because the conduct occurs while the player’s computer is copying the software code into RAM in order for it to run, the violation is copyright infringement.”).

412

Serv., Rl34719, Cartoon Network Lp V Csc Holdings, Ing.: Remote-Storage Digital Video Recorders And Copyright Law 10 N.90 (2009), available at http://ipmall.info/hosted_resources/ crs/RL34719_090706.pdf (noting that in June 2009 the Supreme Court denied certiorari for review of the apparent circuit split created by the Second Circuit’s ruling). The Supreme Court’s denial of certiorari suggests that the circuit split is not significant enough to justify review. The circuit split has not affected the large bulk of client-server architecture applications, in which there is undoubtedly a copy of the creator’s content made on the local client.

413

See 17 U.S.C. § 504(c) (2010) (creating a framework of awards for infringements of one particular work, instead of multiple copies of one work, no less than $750 and no more than $30,000 based on the court’s determination). Where the infringement was committed willfully, and the copyright owner sustains the burden of proving as such, the damage award jumps to no more than $150,000 but where the infringer is able to demonstrate they were not aware and had no reason to believe they were infringing a copyright, the damage is reduced to no less than $200 at the court’s discretion. Id.

414

See Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 Wm. & Mary L. Rev. 439, 441 nn.4 -5 (2009) (“Although Congress intended this designation to apply only in ‘exceptional cases,’ courts have interpreted willfulness so broadly that those who merely should have known their conduct was infringing are often treated as willful infringers.”). There have been several cases in which courts awarded amounts as large as $80,000 per infringed song and a final award as large as $1.92 million, even where the actual damages determined were near $50. Id. at 442- 43 nn.13-14.

415

See § 504(c) (providing for an award of “statutory damages for all infringements involved in the action, with respect to any one work”).

416

See id. (outlining statutory damages for copyright infringement).

417

See Viva R. Moffat, Super-Copyright: Contracts, Preemption, and the Structure of Copyright Policymaking, 41 U.C. Davis L. Rev. 45, 64 (2007) (“Although these terms may rarely be enforced, at least for now, their consistent inclusion and their consistent, but not uniform, language indicates that the lawyers or website developers who are including these terms seek to reserve their rights to bring breach of contract actions (or to send cease-and-desist letters), possibly coupled with copyright infringement claims seeking copyright’s statutory damages.”).

418

See, e.g., MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 938 (9th Cir. 2010) (requiring users to use software only in the ways allowed by the agreement).

419

See Statement of Rights and Responsibilities, Facebook, § 2(1), http://www.facebook/ terms.php (last updated Apr. 26, 2011) (“[Y]ou specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”).

420

See CLIP Roundtable: Internet Switch—National Security or Public Repression?, Facebook (Feb. 10, 2011), http://www.facebook/event.php?eid=194151337269200 (missing the “kill” in the title after being edited).

421

See Matt Richtel, Email Gets an Instant Makeover, N.Y. Times (Dec. 20, 2010), http://www. nytimes/2010/12/21/technology/21email.html (noting how many people in the younger generations prefer other communications media, such as Facebook, to email).

422

See Davidson & Associates, Inc. v. Internet Gateway, Inc., 334 F. Supp. 2d 1164, 1184 (E.D. Mo. 2004), aff’d sub nom. Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005) (finding consent to the software agreement); see also Fairfield, supra note 74, at 831-35 (noting how games allow individuals to alter even the rules of society with regards to one another through consent).

423

One of the most notable examples of this is the iTunes splash screen, displaying the iTunes terms of service. See Terms and Conditions, Apple, http://www.apple/legal/itunes/us/terms. html#SALE (last updated Oct. 12, 2011).

424

do if they did read it and objected? Use the Internet without Google?) The confluence of these technologies means that all of a user’s activity—online and off—is tracked and recorded.

425

See Julia Angwin & Jennifer Valentino-Devries, Apple, Google Collect User Data, Wall St. J. (Apr. 22, 2011), http://on.wsj/zp2Euo (“Google and Apple are gathering location information as part of their race to build massive databases capable of pinpointing people’s locations via their cellphones. These databases could help them tap the $2.9 billion market for location-based services—expected to rise to $8.3 billion in 2014.”). “[S]ome of the most popular smartphone apps use location data and other personal information even more aggressively than this—in some cases sharing it with third-party companies without the user’s consent or knowledge.” Id.

426

See Privacy Center—Privacy Policy, Google, http://www.google/intl/en/privacy/ privacy-policy.html (last modified Oct. 20, 2011) (outlining Google’s use of personal information, which includes using location data to “improve” its services for users).

427

See Anne Klinefelter, When To Research Is To Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking, 16 Va. J.L. & Tech. 1, 6-9 (2011) (detailing how web browsing, searching, and online activities in general—including the use of Google—give rise to attorney-client confidentiality concerns due to the data being saved and indexed).

428

See Elec. Privacy Info. Ctr. (EPIC), Investigations of Google Street View, Epic, http:// epic/privacy/streetview/ (last visited Oct. 31, 2011) (summarizing the various investigations around the world into Google’s practice of collecting data from unencrypted wireless networks).

429

Id.

430

See Google Terms of Service, supra note 129.

431

See Elinor Mills, Carrier IQ Faces Lawsuits, Lawmaker Seeks FTC Probe, CNET (Dec. 2, 2011), Carrier IQ faces lawsuits, lawmaker seeks FTC probe - CNET (describing the lawsuit filed against Carrier IQ as performing surveillance without consumer consent). Carrier IQ responded to the criticisms by claiming that it was assisting carriers in gathering data, and at least one carrier stated that its practices of using Carrier IQ did not violate its privacy policy. David Sarno & Tiffany Hsu, Carrier IQ Defends Itself in Furor over Smartphone Users’ Privacy, L.A. Times (Dec. 2, 2011), http://lat.ms/GSNVmp. At the time of this writing, Carrier IQ has not issued a formal response to the suits.

432

See Lemley, supra note 139, at 468-70 (citing ProCD’s questionable legal reasoning based on incomplete reliance upon the UCC, in particular §§ 2-204, -207, and -209, with the subsequent legal reality that these rigid contracts are typically upheld in favor of their corporate authors).

433

See John Biggs, iOS 5 To Have Powerful Face Detection, Techcrunch (July 27, 2011), Yahoo (reporting on Apple’s purchase of a facial recognition software company, Polar Rose, and the plan to incorporate it into Apple’s iPhone operating system); Ben Parr, Top 6 Augmented Reality Mobile Apps, Mashable (Aug. 19, 2009), Top 6 Augmented Reality Mobile Apps [Videos] (describing a mobile app called Augmented ID that recognizes a person’s face and pulls up information about that person).

434

See RESTATEMENT (SECOND) OF TORTS § 569 (1977) (“One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to liability to the other although no special harm results from the publication.”).

435

Kai Ma, Dan Savage Threatens To ‘Google Bomb’ Rick Santorum, Yet Again, Time Newsfeed (July 28, 2011), http://newsfeed.time/2011/07/28/dan-savage-threatens-to-goog le-bomb-rick-santorum-yet-again/.

436

Tom McNichol, Your Message Here, N.Y. Times (Jan. 22, 2004), http://www.nytimes. com/2004/01/22/technology/your-message-here.html (explaining the phenomenon of “google bombing”).

437

See Marziah Karch, Google Bombs Explained, About, http://google.about/od/ socialtoolsfromgoogle/a/googlebombatcl.htm (last visited Dec. 12, 2011) (noting that Santorum’s name was linked to the definition of a lewd phrase through a Google bomb).

438

See id.

439

See Employers Google Applicants, ABC News (Apr. 28, 2007), ABC News – Breaking News, Latest News, Headlines & Videos - ABC News Business/video?id=3083837.

440

See What Is LinkedIn?, LinkedIn, http://www.linkedin/static?key=what_is_ linkedin&t rk=hb_what (last visited Oct. 31, 2011) (describing the professional networking qualities of LinkedIn).

441

See Detailed Seller Ratings, eBay, http://pages.ebay/help/feedback/detailed-seller-ratings.html (last visited Oct. 31,2011) (describing eBay’s seller rating system and how it is used to determine seller quality).

442

47 U.S.C. § 230 (2010).

443

See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009); Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008); Fair Hous. Council v. Roommates, LLC, 521 F.3d 1157 (9th Cir. 2008); Chi. Lawyers’ Comm. for Civil Rights v. Craigslist, 519 F.3d 666 (7th Cir. 2008); Mazur v. eBay, No. C 07-03967 MHP, 2008 WL 618988, at *1 (N.D. Cal. Mar. 3, 2008); Doe v. SexSearch, 502 F. Supp. 2d 719 (N.D. Ohio 2007) (dismissing claim against online site SexSearch on grounds that plaintiff’s claim based on SexSearch’s promise that all users were over 18 was barred by CDA § 230 when a minor entered false data as to age), aff’d, 551 F.3d 412 (6th Cir. 2008) (affirming on grounds of failure to state a claim, but declining to adopt district court’s reading of CDA § 230).

444

Joshua Dubnow, Ensuring Innovation as the Internet Matures: Competing Interpretations of the Intellectual Property Exception to the Communications Decency Act Immunity, 9 NW J. Tech. & Intell. Prop. 297, 307 (2010) (“While the courts have reached two competing interpretations of § 230(c)(1) and (e)(2) of the Communications Decency Act, this split must ultimately be resolved because of the vastly different outcomes to which each interpretation leads.”).

445

See § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).

446

See Barnes, 570 F.3d at 1109 (denying Yahoo! § 230 liability where a Yahoo! associate made a direct promise to remove nude pictures of plaintiff posted by a third party); Fair Hous. Council, 521 F.3d at 1176-77 (denying Roommates § 230 immunity where it exercised such control over the statements of the users that it functionally became the source of their illegal housing advertisements); Mazur, 2008 WL 618988, at *14 (denying eBay § 230 immunity where eBay itself made representations about the nature of certain auctions).

447

See SexSearch, 502 F. Supp. 2d at 727-28.

448

See David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 397, 411, 479 (2010) (explaining that the first empirical study of § 230 reveals that the statute has been haphazardly applied by courts and has led to mixed—but generally positive— outcomes for providers).

449

Id. at 379 (citing § 230(c)(1) and stating that it effectively grants “operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties”).

450

Android’s application programming interface (“API”) allows developers to use a code feature called RatingBar which allows them to assign a default star rating for an app. See RatingBar, Android Developers, http://developer.android/reference/android/widget/RatingBar.html (last updated Oct. 27, 2011).

451

See, e.g, Google Moves To Delete ‘RuFraud’ Scam Android Apps, BBC News (Dec. 14, 2011), http://bbc.in/GSOqNl.

452

See Ardia, supra note 198, at 481 (analyzing statistics of decisions under § 230, concluding that “overall, defendants won dismissal in 76% of the cases studied”).

453

Id. at 493 (“[Defendants won dismissal on section 230 or other grounds in more than three-quarters of the cases studied.”).

454

Biggs, supra note 183; Nick Bilton, Facebook Changes Privacy Settings To Enable Facial Recognition, N.Y Times Bits (June 7, 2011), http://bits.blogs.nytimes/2011/ 06/07/facebook-chan ges-privacy-settings-to-enable-facial-recognition/.

455

See Face, Face - Premium category defining domain names for sale, exact match domains (last visited Feb. 19, 2012); see also The Facial Recognition Software That Will Put a Name to Every Photograph in the Internet, Daily Mail Rep. (Aug. 23, 2010), http://www.dailymail.co.uk/sciencetech/article-1305191/Facial-recognition-software-allow-ability-identify-people-photographs-internet.html.

456

Instant Upload Settings, Google, http://www.google/support/mobile/bin/answer.py? answer=1304820 (last visited Aug. 14, 2011).

457

See John C. Havens, Who Owns the Advertising Space in an Augmented Reality World?, Maskable (June 6, 2011), Who Owns the Advertising Space in an Augmented Reality World? (noting that “[m]ultiple apps feature the ability for ads to appear on your mobile screen as miniature virtual billboards assigned to GPS coordinates”).

458

See supra note 25.

459

See Lipton, supra note 25, at 448.

460

See Trademark Act of 1946, Pub. L. No. 79-489, 60 Stat. 427 (codified as amended in scattered sections of 15 U.S.C.).

461

Cong., reprinted at 113 Stat. 1501A-545 to -548 (1999) and codified as amended at 15 U.S.C. § 1125(d)).

462

See Susan Thomas Johnson, Internet Domain Name and Trademark Disputes: Shifting Paradigms in Intellectual Property, 43 Ariz. L. Rev. 465, 476 (2001) (listing various types of cybersquatters, including one “who registers a domain name using the same or a very similar version of another entity’s name to harass or criticize that entity” and “one who intentionally appropriates a famous trademark or tradename as a domain name for financial gain”).

463

See Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 9 Yale J.L. & Tech. 111 (2006); see also David Segal, The Dirty Little Secrets of Search, N.Y Times (Feb. 12, 2011), http://www.nytimes/2011/02/13/business/13search.html.

464

See William Sloan Coats & Jennifer L. Co, Kaye Scholer LLP, The Right of Publicity & Celebrity Licensing, 1065 PLI/PAT 277, 298 (2011) (describing Twitterjacking as the phenomenon of someone creating a Twitter feed and pretending to be a famous individual).

465

See Noam Cohen, For Dueling BP Feeds on Twitter, Biting Trumps Earnest, N.Y. Times (June 7, 2010), http://www.nytimes/2010/06/07/business/media/07link.html.

466

See Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (Sup. Ct. 2010).

467

See, e.g., Catherine Bolsover, German Foreign Minister Joins Criticism of Google’s Mapping Program, Deutsche Welle (Aug. 14, 2010), http://www.dw.de/dw/article/0,,5910738,00. html (describing complaints against Google Maps in Germany); Google Street View Blacked Out in Greece, CNN (May 13, 2009), http://articlesn/2009-05-13/world/greece.google.street. view.blocked_1_google-earth-search-giant-google-maps (describing the same in Greece); Call To ‘Shut Down’ Street View, BBC News (Mar. 24, 2009), http://news.bbc.co.uk/2/hi/7959362.stm (describing the same in the United Kingdom).

468

See Google Maps, Google, http://maps.google (last visited Oct. 31,2011) (containing a drop-down menu that enables the viewing of various live camera feeds in areas all over the world).

469

See Occupy Movement (Occupy Wall Street), N.Y Times, http://nyti.ms/AmZh25 (last updated Feb. 13, 2012) (containing articles chronicling the anti-Wall Street movement and the accompanying protests).

470

See Trademark Policy, Twitter, https://support.twitter/groups/33-report-a-violation/ topics/148-policy-information/articles/18367-trademark-policy (last visited Aug. 14, 2011).

471

See Havens, supra note 207 (suggesting that Google Goggles will be a dominant player given Google’s current dominant market position).

472

See id. (“Google will own the virtual air rights within Goggles.”).

473

See CHEN, supra note 6, at 47 (“[A]rmed with a camera-equipped smartphone and live streaming-video software, every citizen will have the power to broadcast anything to the world in real time, thus creating a collectively omniscient society of watching eyes.”).

474

See Kevin J. O’Brien, Germany Asks Apple About iPhone’s Data Gathering, N.Y. Times (June 28, 2010), http://www.nytimes/2010/06/29/technology/29apple.html (“[I]t had improperly collected 600 gigabytes of personal data, including fragments of e-mail messages and unencrypted passwords, on individuals around the world as it scanned home Wi-Fi networks while it gathered information for its Street View map archive.”).

475

See Emily Steel & Geoffrey A. Fowler, Facebook in Privacy Breach, Wall St. J. (Oct. 18, 2010), http://on.wsj/xVVPKF (describing how Facebook apps violate user privacy).

476

Noam Cohen, It’s Tracking Your Every Move and You May Not Even Know, N.Y Times (Mar. 26, 2011), http://www.nytimes/2011/03/26/business/media/26privacy. html (discussing the practice of how cell phone providers track users’ latitude and longitude).

477

See Peter Whoriskey, Every Click You Make, Wash. Post (Apr. 4, 2008), http:// wapo.st/ xpbudQ (describing the growing phenomenon of internet service providers tracking individuals’ online activity).

478

See Lauren Effron, Facebook in Your Face: New Facial Recognition Feature Raises a Few Eyebrows, ABC News (June 10, 2011), Facebook In Your Face: New Facial Recognition Feature Raises a Few Eyebrows - ABC News (describing Facebook’s facial recognition feature).

479

Cf. Kevin Werbach, Sensors and Sensibilities, 28 Cardozo L. Rev. 2321, 2325 (2008) (explaining the massive surveillance power of individuals resulting from the proliferation of cameraphones coupled with widespread mobile phone usage, and noting that cameraphones function as “sensors hooked into end-user devices”); see Mark Milian, U.S. Sent Google 8,888 Requests for User-Data in 2010, CNN Tech (June 27, 2011), CNN International - Breaking News, US News, World News and Video 2011/TECH/web/06/27/ google.data.requests/index.html.

480

See Cohen, supra note 226 (“One product, CitySense, makes recommendations about local nightlife to customers who choose to participate based on their cellphone usage. Many smartphone apps already on the market are based on location but that’s with the consent of the user and through GPS, not the cellphone company’s records.”).

481

See Andrew Munchbach, Apple Sued over iPhone Location Tracking Scandal, BGR (Apr. 25, 2011), Apple sued over iPhone location tracking scandal.

482

See Jared Newman, Google’s Schmidt Roasted for Privacy Comments, PCWorld (Dec. 11, 2009), http://www.pcworld/article/184446/googles_schmidt_roasted_for_privacy_comments. html (quoting Schmidt as stating, “[i]f you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place, but if you really need that kind of privacy, the reality is that search engines including Google do retain this information for some time . . . .”).

483

See Helen A.S. Popkin, Privacy Is Dead on Facebook. Get Over It, MSNBC (Jan. 13, 2010), MSNBC News - Breaking News and News Today | Latest News.

484

See Newman, supra note 232; see also O’Brien, supra note 224 (“60 percent of households in Germany use a retail bonus card . . .. By participating, consumers give the company the right to collect and market data on their purchasing habits, as well as send them advertising.”); Popkin, supra note 233.

485

See Chen, supra note 6, at 188 (discussing how the conception of privacy has been forced to change and how the focus should be on developing new technologies to combat privacy concerns rather than simply decrying the existing framework); see also Nick Bilton, Privacy Isn’t Dead. Just Ask Google+, N.Y Times Bits (July 18, 2011, 12:59 PM), http://nyti.ms/ GSOUTE (outlining how Google benefited by learning from privacy issues on Facebook and focusing on privacy concerns in Google+).

486

privacy front as including “one company [that] is trying to make privacy policies that are both easy for consumers to read and easy for mobile application developers to create”).

487

See John Markoff, Do We Need a New Internet?, N.Y. Times (Feb. 14, 2009), http://nyti.ms/ GSOVHg; Kate Murphy, New Hacking Tools Pose Bigger Threats to Wi-Fi Users, N.Y Times (Feb. 17, 2011), http://nyti.ms/GSOY5D.

488

Angwin & Valentino-Devries, supra note 175; Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 MD. L. REV. 681, 705-6 (2011) (stating that if cell phone data of one individual were recorded, “it could create a . . . virtual map of all the places the person went and how much time he spent at each place along the way”); Ki Mae Heussner, Apple Tracks Location with iPhone, iPad Data, ABC News (Apr. 20, 2011), http://abcn. ws/wghaeh (noting that the “Apple iPhone and iPad 3G record the device’s geographic position and corresponding time stamp in a hidden file”).

489

See Fed. Trade Comm’n, Protecting Consumer Privacy in an Era of Rapid Change (2010), available at A Preliminary FTC Staff Report on Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers | Federal Trade Commission (advocating that companies adopt “privacy by design” as a means of protecting consumer privacy by limiting disclosure of consumer data through product design).

490

For background on privacy by design, see generally Ira S. Rubinstein, Regulating Privacy by Design, 26 Berkeley Tech. L.J. 1409, 1431-43 (2011) (describing various reasons why privacy by design has not enjoyed the amount of success anticipated).

491

Simply put, the technology today has been developed with collection of user data in mind. The privacy by design concept is seemingly contradictory because it would be used to enhance privacy in systems that have been designed specifically to gather consumer information.

492

See Klinefelter, supra note 177, at 18 (identifying major concerns, in particular for the legal community stemming from confidentiality, and the concerns raised by viruses, third parties, and other bad actors with regard to online research and data saved by third party tracking).

493

See Vega, supra note 236 (discussing the difficulty with online privacy policies, the importance of privacy policies on data collection, and the growing concern over data collection).

494

See David Goldman, FTC ‘Do Not Track’ Plan Would Cripple Some Web Giants, CNN Money (Dec. 3, 2010), FTC 'do not track' plan would be a Google killer - Dec. 2, 2010 (identifying several industry leaders, such as Google, who are against “do not track” due to unforeseen security problems and loss in e-commerce and advertising revenues).

495

See Rubinstein, supra note 240, at 1412 (noting that the profits derived from online advertising make firms reluctant to voluntarily impose systems that will increase consumer privacy to the detriment of their ability to collect consumer information).

496

See Vega, supra note 236.

497

See CHEN, supra note 6, at 188; Bilton, supra note 235 (praising Google+ for its default privacy settings).

498

See Vega, supra note 236 (harmonizing the needs of users with the needs of companies to create a balance on the privacy front, but noting how online advertising reduces the costs of mobile applications). Mobile apps are free or cheap largely because of mobile advertising. See also Jim Harper, The Great Privacy Debate—It’s Modern Trade: Web Users Get as Much as They Give, Wall St. J. (Aug. 7, 2010), http://on.wsj/ArHG25 (“The reason why a company like Google can spend millions and millions of dollars on free services like its search engine, Gmail, mapping tools, Google Groups and more is because of online advertising that trades in personal information.”).

499

See Harper, supra note 248 (arguing the same point on behalf of consumers in that protections for consumers would invite them to abandon personal responsibility).

500

See Newman, supra note 232.

501

See Rubinstein, supra note 240, at 1412 (listing various reasons why consumers may not want privacy, such as lack of knowledge, behavioral biases, or simply not caring about the issue).

502

See Chen, supra note 6, at 188-89 (“Perhaps we have already given up our digital privacy, but we still have control over boundaries . . .. In a modern online context a violation of privacy may only occur when we are manipulated into sharing more than we were told we would be sharing.”).

503

See Lawrence Lessig, Code Version 2.0, at 88-111,228-30 (2006) (arguing for a property model to protect privacy).

504

See Chen, supra note 6, at 189 (“Online privacy advocates criticize online services when they are unclear or dishonest about what they are doing with our data, not when they are using our data—because, of course, they are.”).

505

See Boone, supra note 53, at 114-15 (detailing that underlying code is what controls a virtual world). See generally Chen, supra note 6 (describing how the iPhone collapsed the physical and virtual world); Barfield, supra note 5, at 161 (describing advertising in augmented reality); Gross, supra note 11 (describing an augmented reality mobile application); Wilson, supra note 52, at 1133 (describing the potential of near field communications).

506

See Lyria Bennet Moses, Recurring Dilemmas: The Law’s Race To Keep Up with Technological Change, 7 U. III. J.L. Tech. & Pol’y 239, 279-80 (2007); see also Perzanowski & Schultz, supra note 158, at 892.

507

See Fairfield, supra note 8, at 475-76 (“For online communities to thrive, courts must recognize that private property, torts, and other community-critical rights and obligations can be adapted from the familiar rules that already govern communities in the real world to suit the realities of the virtual world.”).

508

See Perzanowski & Schultz, supra note 158, at 892 (“[C]opyright exhaustion, like many principles recognized in the Copyright Act, was created by and should continue to develop through common law judicial reasoning.”).

509

56 Stan. L. Rev. 901, 902 (2004) (“Higher-level protocols, such as those utilized in most web interactions, involve exchanges that should be considered express consent: the formation of a legally binding contract.”).

510

See Lemley, supra note 139; see also sources cited supra note 255.

511

See text accompanying supra notes 211-12.

512

See 17 U.S.C. § 106(1) (2010) (giving the exclusive right to reproduce work that is copyrighted). But see id. § 117(a)(1) (providing for the essential step defense for the software context where an owner of a lawful copy does not infringe the reproduction right of the copyright owner if the reproduction is an essential step in the utilization of the software); id. § 109(a) (providing for the first sale doctrine where a lawful owner of a copy of a copyrighted work is able to sell or otherwise dispose of the possession of the relevant copy at the owner’s discretion). Both of these affirmative defenses are limited to owners of lawful copies of copyrighted works.

513

§ 109(a).

514

See RealNetworks, Inc. v. Streambox, Inc., No. C99-2070P, 2000 U.S. Dist. LEXIS 1889, at *1, *3 (WD. Wash. Jan. 18, 2000) (“Streaming is to be contrasted with ‘downloading.’”).

515

Id. at *34-35 (halting Streambox’s continuance of its product, a virtual VCR). But see Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 128 (2d Cir. 2008) (“Accordingly, we construe MAI Systems and its progeny as holding that loading a program into a computer’s RAM can result in copying that program. We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying.”).

516

See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1110-12 (9th Cir. 2010) (establishing a three point framework to determine if a purchaser of software is an owner or licensee).

517

See UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 1183 (9th Cir. 2011) (finding resale of a music CD not to constitute copyright infringement despite a label claiming a license limitation restricting such a sale).

518

See Moses, supra note 256.

519

See Lyria Bennet Moses, Toward a General Theory of Law and Technology: Why Have a Theory of Law and Technological Change?, 8 Minn. J.L. Sci. & Tech. 589, 595-96 (2007) (“Overemphasis on the technological angle in discussing legal and social problems is evident in various contexts. . .. Judges occasionally fall into the same trap of assuming that because events took place on the Internet, the law must be different.”).

520

DMCA, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 U.S.C.). The DMCA contains three provisions that create a framework to address circumvention of technological measures that protect copyrighted works. See 17 U.S.C. § 1201(a) (1)-(2), (b)(1) (2010).

521

See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996); see also 17 U.S.C. § 1201(a)(1)(A) (“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”).

522

See Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 529 (6th Cir. 2004); Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203-04 (Fed. Cir. 2004).

523

§ 1201(a)(1)(A).

524

See Paul Miller, Library of Congress Adds DMCA Exception for Jailbreaking or Rooting Your Phone, ENGADGET (July 26, 2010), Yahoo gress-adds-dmca-exception-for-jailbreaking-or-root/ (noting the Library of Congress’s exception to the DMCA).

525

Lexmark, 387 F.3d at 529.

526

Chamberlain, 381 F.3d at 1182.

527

See Harris v. Blockbuster Inc., 622 F. Supp. 2d 396, 397-400 (N.D. Tex. 2009) (holding that an arbitration clause was illusory because the drafter could alter it at will).

528

See, e.g., Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 611 (E.D. Pa. 2007) (finding that a unilateral modification provision was unconscionable).

529

See Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008).

530

See CHEN, supra note 6; Bilton, supra note 89; Glusac, supra note 17; Husson, supra note 89; King, supra note 22.

531

See News Release, Fed. Trade Comm’n, FTC Announces Settlement with Bankrupt Website, Toysmart, Regarding Alleged Privacy Policy Violations (July 21, 2000), http:// www.ftc.gov/ opa/2000/07/toysmart2.shtm (discussing the FTC’s suit against Toysmart and the company’s attempt to take action directly in violation of its privacy policy). Cases that have found otherwise only serve to emphasize the problem that lies in interpreting privacy as non-contractual. See, e.g., In re Jet Blue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299 (E.D.N.Y 2005); Dyer v. Nw. Airlines Corp., 334 F. Supp. 2d 1196 (D.N.D. 2004). This does not, however, undermine the notion that the FTC still enforces privacy policies as promises to consumers.

532

See Lessig, supra note 253; Feigin, supra note 259.

533

See Yen-Shyang Tseng, Governing Virtual Worlds: Interration 2.0, 35 Wash. U. J.L. & PoL’y 547, 556 (2011) (“Generally speaking, courts have tended to enforce all of these forms of licenses, even though the licenses may unilaterally impose one-sided terms with little to no room for negotiation.”).

534

See Lessig, supra note 253; Feigin, supra note 259.

535

See, e.g., Woodrow Hartzog, Website Design as Contract, 60 Am. U. L. Rev. 1635, 1662 (2011) (noting various problems with trying to achieve privacy by consumer contracting).

536

See Newman, supra note 232; Popkin, supra note 233.

537

See Lessig, supra note 253; Feigin, supra note 259; see also Severine Dusollier, The Master’s Tools v. The Master’s House: Creative Commons v. Copyright, 29 Colum. J.L. & Arts 271, 272 (2006) (discussing the purpose of Creative Commons to address the “recent expansion of copyright” and how it is “overreaching and detrimental both for future creators and for the users of copyrighted works”); About the Licenses, Creative Commons, When we share, everyone wins - Creative Commons licenses/ (last visited Feb. 19, 2012) (providing for a standard option set of contractual licenses that have revolutionized online exchanges).

538

See Yukari Iwatani Kane & Scott Thurm, Your Apps Are Watching You, Wall St. J. (Dec. 17, 2010), http://on.wsj/wq7Wiw (describing how iPhone and Android transmit various data about the phone without the user’s knowledge).

539

See Perzanowski & Schultz, supra note 158; see also Moses, supra note 256, at 241.

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