Anti-social Contracts: The Contractual Governance of Virtual Worlds - by Joshua Fairfield

SYNOPSIS
Virtual worlds have seized the imaginations of millions of people who now live, work, and play together in these new environments. But all is not well. These online communities are ruled nearly exclusively by contract law, through end-user licence agreements, terms of service, and codes of conduct. Contracts are a critical means of helping two (or a few) people negotiate their preferences. But online communities are made up of enormous and shifting populations that have no time or ability to
negotiate agreements with every other community member. Relying on contracts alone thus threatens the investments and creativity that go into these communities.

Prof Fairfield's talk will be based on his recent scholarship in the McGill Law Journal. This article seeks to demonstrate that contracts cannot, by their very nature, provide for all the legal needs of online communities. Public law needs to be developed to allow these communities to thrive. The author argues that common law, rather than legislation, can be most effective in this task. Courts can draw on existing and familiar areas of common law to provide the private-property, dignitary, and personal protections these communities need according to the specific behavioural norms their creators and users have fostered. The common law method, being iterative, incremental, and experimental, is well suited to modifying these areas where needed. It allows for the more immediate resolution of problems while also being sufficiently flexible to permit rules to be expanded or contained as required.

The year since the publication of the paper has given rise to a new twist. The dysfunctional regime governing virtual worlds is being pushed down into realspace. Through Mixed Reality technology, the rules governing virtual worlds have come to govern real citizens as they go about their daily lives. The licence agreements that once governed virtual worlds now govern the books we read, the places we drive, and access and control over data governing every aspect of our public and private lives. Thus, the problem of the Anti-Social contract is not long one merely for citizens of virtual worlds; but one for citizens of the real world.

ABOUT THE SPEAKER
An expert in the law and regulation of e-commerce and videogames, Prof. Fairfield’s research and scholarship explores the law and economics of online contracts and the application of standard economic models to virtual environments.

In addition, Prof. Fairfield is one of the nation’s leading voices in the analysis of virtual worlds, such as the popular Second Life. He has briefed intelligence officials on terrorist activity and law enforcement within virtual worlds and has written on strategies for protecting children online. In October 2008, Fairfield organized and hosted a first-of-its-kind symposium at the School of Law exploring the legal and social challenges of virtual worlds built specifically for children, the fastest growing area of virtual environments.

Before earning his JD magna cum laude from the University of Chicago in 2001, Prof. Fairfield directed the development of the award winning Rosetta Stone Language Library, a leading language teaching software program for educational institutions. After law school, Professor Fairfield clerked for Judge Danny J. Boggs at the U.S. Court of Appeals for the Sixth Circuit. He then joined Jones Day in Columbus, Ohio, where he litigated cases in commercial law and software/technology law. Before coming to Washington and Lee, Professor Fairfield taught at Columbia Law School and the Indiana University School of Law in Bloomington.