Dan Hunter is the Executive Dean of the Dickson Poon School of Law at King’s College London. He was previously the Executive Dean of the Faculty of Law at Queensland University of Technology and the Founding Dean of Swinburne Law School in Australia.
He is an international expert in Internet and intellectual property law, AI & law, and legal tech and legal innovation. He holds a PhD from Cambridge on the cognitive science of legal reasoning, as well as computer science and law degrees from Monash University, and an LLM by research from the University of Melbourne.
In 2003, he and Gregory Lastowka, a late professor at the Rutgers School of Law–Camden and an internationally recognized scholar in the area of cyberlaw and intellectual property, wrote a seminal article called “The Laws of the Virtual Worlds”, published in California Law Review 2004-1.
Lastowka and Hunter argued that virtual objects replicated many of the traits that also make up real world property. The fact that virtual property is artificially created and only exists within a virtual world database might not disqualify it from being actual property.
“The Laws of the Virtual Worlds” was a massive success. The article was discussed, referenced, and cited in detail by legal scholars, game designers, and within social studies. At one point, it ranked in the top 250 most downloaded papers at SSRN. Subsequent articles and books by Lastowka and Hunter became standard works in the field and were even quoted by the Dutch Supreme Court in rulings on virtual theft.
Even more important for the topic of the metaverse, the article brought together a community of highly talented people that went out to shape the field of virtual worlds forever.
I sat down with Dan for the 20th anniversary of the article to discuss how it came about, the impact it had, and what happened since then.
20 years of “The Laws of the Virtual Worlds”
Dirk Songuer: Dan, thank you so much for taking the time, I really appreciate it. Before we get to the article itself, let’s start with how you met Gregory Lastowka.
Dan Hunter: The “Law of the Virtual Worlds” came about when I was an assistant professor at The Wharton School. Greg was an attorney at Dechert LLP, also in Philadelphia.
We met at a lunchtime event that I was organizing together with David Post, who was a professor of law at the Beasley School of Law at the time, and a couple of others. The idea was to get together academics and practising attorneys that were doing interesting work around Internet law in Philadelphia.
Dirk Songuer: What was the state of Internet law at the time?
Dan Hunter: In the early 1990s, everyone was thinking about the Internet as this brand-new thing. David Post and David R. Johnson published a seminal article in 1996 called “Law and Borders: The Rise of Law in Cyberspace.” In it, they argued that cyberspace needed to be an entirely deregulated space, untouched by territorial sovereigns.
This was interesting as a reference point, because it was the first debate around what we should do with the Internet: “What laws applied to it? Are they completely unique or derived from existing laws? Should the laws be separated out from the geographical accident of living in Germany, America, or the UK? Because surely, we were now living in cyberspace!”
This thinking was heavily influenced by the cyberpunk movement, driven for example by William Gibson’s “Neuromancer”, and Neal Stephenson’s “Snow Crash”. In any case, the ideas got kicked around, dealt with in different ways, and at the end of the day the guys with the guns won. That turned out to be the territorial sovereigns, which simply imposed their laws onto the Internet.
This is when I met Greg at one of these meetings, probably around April or May in 2000.
Dirk Songuer: How did you decide to write an article together?
Dan Hunter: Greg had an interest in computers and ran a fairly significant case at the time as a pro bono co-counsel (with William McSwain) for Ken Hamidi in the California Supreme Court case of Intel Corp. v. Hamidi.
We happened to get talking about this new thing called virtual worlds that we were both interested in. The catalyst was The Sims Online. The game had just come out and a few people were looking at it in a professional sense. I remember reading a Wired article about it, and thinking “Wait, there is a whole anthropology that needs to be written about this.”
The game was obviously very rudimentary by modern standards, but people were already creating city halls in inside it, setting up their own voting structures to decide how to govern things. It looked a bit like the flowering of a brand-new kind of political system inside this purely virtual environment. For us there was this sense of excitement. Everything was being replicated inside this virtual world in different and interesting ways.
We both had read Ted Castronova‘s economics paper [Virtual Worlds: A First-Hand Account of Market and Society on the Cyberian Frontier], which got a huge amount of press. And that was in many ways a validation that this is a relevant topic to look at academically. It wasn’t just playing around with games.
Greg was a practicing attorney at the time and wanted to become an academic, so I said: “I think there’s an article here.”
Dirk Songuer: What really struck me about the article is how cutting edge it was. You mentioned Ted Castronova’s paper on the economics of EverQuest. But it also incorporated works by Julian Dibbell around social dynamics in virtual worlds, like “A Rape in Cyberspace” and “My Tiny Life”, as well as political pieces like Raph Koster’s “Declaration of Rights of Avatars”. The article was almost a snapshot of everything that was going on in virtual world studies at the time.
Dan Hunter: That article was the first time Greg and I really dug into the topic. We had no kind of context around game design, building games, or shipping them. What we knew about games was from what we had played, and a little bit about game theory. We also didn’t know anyone in the games industry back then. We met Raph Koster way later. We didn’t know Richard Bartle, Julian Dibbell or Ted Castronova. We didn’t really know anything.
Greg deeply immersed himself in this world. He got friends with everybody in that in the space and that perspective was central in bringing their viewpoints into the article.
I remember we had both read Julian Dibbell’s “A Rape in Cyberspace” and “My Tiny Life” and then heard that he was doing a course at Stanford, together with Lawrence Lessing. And Lawrence was a god in the space. He had already written “Code and Other Laws of Cyberspace” and was about as influential as anyone has ever been, or will ever be. We thought that obviously both would be working on an article about the laws of virtual worlds, so we quickly wrote ours to beat them to it!
I wrote a lot of the article while I was on vacation at a beach in Indonesia. We were really driven to bang it out as fast as we could. I remember quite specifically that I was visiting Singapore one day and all I could think about was getting back to writing.
We rushed to finish the article and placed it in California Law Review.
Dirk Songuer: The article itself is surprisingly accessible. I don’t read or engage with legal theory and yet I was able to follow it quite easily. Was that because you needed to explain and define so many things to even get to the legal aspects?
Dan Hunter: Thank you for the compliment, I really appreciate that. Greg and I worked very hard for it to be smart yet accessible. At the time we wrote a number of pieces for a magazine called Legal Affairs and they explicitly asked us to create these “smart but accessible” articles. That turned out to be our sweet spot.
If you are writing a piece around American constitutional law, you don’t have to do a lot of foundation laying to explain what’s going on. Whereas with this piece, it was really out there for many reviewers and readers. Maybe some of them had heard of cyber law, but most of them would have never heard or even thought about logging into The Sims Online, Second Life, EverQuest or Ultima Online. It just wasn’t the kind of thing that the audience would do.
We had to make sure that they understood where we were coming from, otherwise they would just dismiss it out of hand. So, “smart but accessible” was a very useful framework for us.
Dirk Songuer: The core of the article is property law and legal implications of virtual possessions. You approached the topic very carefully by examining if virtual items replicated the traits that also make up real world objects. For example, if they satisfied the normative demands of property.
Was this step-by-step approach also a side effect of this “smart but accessible” approach, or was it something else?
Dan Hunter: The article was already very long as we had to explain all this background, so we had to keep the focus on virtual property. And property law was kind of the “cool thing” at the time.
But the other reason to approach it that way was that we were both uncertain about whether this made any sense at all. We discussed our case with other lawyers, and we always found ourselves arguing about the mechanics, like the virtual world being some encrypted database in California. But by leaving the technical aspects aside, we could focus on the features that made up things within that virtual world.
Property law is also a very complicated thing in itself. For example, why do we think of copyrighted works or patents as property? They are obviously very different from the physical objects in front of you. They don’t have any physical characteristics or aspects. The fact that there are these things already that don’t have physical characteristics but are still considered property is great, as they carry over the principle into some kind of virtual space already.
We tried to keep it simple and looked at the similarities, going through each of the elements that we thought were important for determining whether something was property or not. While that approach was not definitive, I think it allowed the widest possible audience to come to their own conclusions.
Dirk Songuer: This sounds similar to how Raph Koster started his “Declaration of the Rights of Avatars”, basing it on something existing – in his case the “Declaration of the Rights of Man and of the Citizen.” It wasn’t definitive, but it forced a new perspective on some issues and sparked a subsequent discussion.
I think “The Laws of the Virtual Worlds” poses a similar question: “Can virtual worlds ever be separate from reality, or can we fend off attempts to bring reality into them?”
Dan Hunter: Both our piece and the “Rights of Avatars” can be read as an argument between the users and the owners of virtual spaces. The owners see this issue in purely capitalistic terms. And the last thing they want are constraints on what they’re allowed to do and not to do with their world.
When we would talk to them about rights and property interests, they would just refer to the fact that it all lives inside their database and on their servers. Whereas the users were very invested in their avatars and their items. For many this was a part of their real life – a version of them inside that virtual world. And they thought in terms of human rights and property rights, as opposed to a purely instrumental perspective.
Dirk Songuer: What happened after the article was published?
Dan Hunter: We handed in “The Laws of the Virtual Worlds” in May 2003 and it was published in California Law Review 2004-1. It was one of those articles that a lot of people thought was crazy. But a whole lot of people also really liked it. And it came at exactly the right moment.
I remember it got a lot of downloads because I knew Cory Doctrow. He was running Boing Boing at the time and I just said: “Hey, this article about this weird legal issue might be interesting.” He put it out there, a whole lot of people downloaded it, and it sparked a lot of interest. It was probably the only time I’ve ever been good at PR.
Dirk Songuer: But people weren’t taking it seriously?
Dan Hunter: A lot of people we would have thought would take this topic seriously just didn’t. They thought virtual worlds were games, whereas we took them seriously.
Games for me and Greg were always the pathway into computing. We thought it was amazing what these virtual worlds could do. But when you start taking them seriously, then there are all these questions around politics, or constitutional questions, or property rights. And I remember this was the bit that freaked out the lawyers the most.
In the article, we talked about Donna Haraway’s “A Cyborg Manifesto”, which proposed the idea of a computer and a human being deeply embedded within each other, to the point where they might be somehow different from being purely human. And all the lawyers just scratched their heads on what to do with this.
The second that you log into these environments, you are projecting yourself into these spaces, and somehow that’s conceptually different from walking around in the physical world. You are in a different place. You are having an experience in that space. So, we thought we needed to take that space seriously.
Another thing that Greg and I brought to the discussion was that we had both worked on Internet related cases before. We already knew a little bit about the technology, but also a lot about the relevant law. We were able to be respectful of both of those disciplines and say: “Well, have we seen this before? Can the law handle this particular type of problem?” And we felt that it probably could.
In that moment, we had the right kind of orientation to be able to say that virtual worlds actually mattered. But I remember having lots and lots of fights about it in different ways. One scenario we argued about was: “What about a game where you are role-playing as a Nazi guard in a concentration camp? Is it OK to be torturing others that might be players that willingly chose to be inmates?” What are the ground rules for virtual world settings and for entry? Do these worlds have implications, affecting me or other human beings? Especially after we logged out of that world. What effect do horrific acts within these worlds have on a person? What are human rights within these walls? What are legal implications if they spill out? How do we deal with all that?
Dirk Songuer: This is essentially the concept of the magic circle, right?
[A concept first described by Johan Huizinga, a Dutch historian, cultural theorist, and philosopher, in his 1938 book “Homo Ludens: A Study of the Play Element in Culture.” Huizinga explored the role of play in human culture and society and argued that play, including games, had a distinct quality that sets it apart from ordinary life, existing within a separate and special space, called the “Magic Circle.”]
Dan Hunter: The magic circle is not enough. It only gets you part of the way because there are still harms or other aspects that leak outside the circle into the real world. It doesn’t answer the really naughty questions. What if theft was allowed inside a virtual environment, but people are so affected by it that they go and harm others in real life? That did happen.
Dirk Songuer: Besides the immediate legal arguments, what were some of the long-term things that came out of the article?
Dan Hunter: The article created this momentum and we asked ourselves: “Well, what are we going to do with this?” Ted Castronova had written the first piece on economics in virtual worlds. Julian Dibbell was a freelance journalist for Wired back then, writing about the social impact of gold farming. One day Greg and I reached out to Ted and Julian and asked them if they wanted to create a blog together: “Let’s find some interesting people that write about virtual worlds in a serious way.”
We found Thomas Malaby, who was a professor at the University of Wisconsin-Milwaukee. He was an anthropologist and really interested in virtual worlds. There were some people in game studies, like Kurt Squirec and Constance Steinkuehler, who were at Wisconsin-Madison.
We collected this scruffy bunch of academics and writers that were thinking about virtual worlds from different perspectives and launched Terra Nova, which became the foremost place to talk about virtual worlds.
I remember after one particular article where the CEO of Project Entropia wrote to the president of my university, demanding that I’d be fired. The blog was influential enough that people really cared about it.
And we continued to gather people, some dropped off, others came in, and it became a great community.
The other thing that came from the article is probably not as well known, but I don’t think I’m giving away any secrets now. We created a guild in World of Warcraft where all the Terra Nova folks and our PhD students were playing together. We would just hang out and talk about interesting observations in the game and otherwise.
Timothy Burke, who was a historian at Swarthmore, was one of the smartest guys on Terra Nova. He was also an absolute animal when it came to player versus player combat in World of Warcraft. It was this combination of the research and the playfulness that was a lot of fun. The guild became a genuine institution.
The only rule was that you were not allowed to do any studies on our server. If you were doing a study as a game researcher, you had to do it on a different server. I think the people from Xerox Park breached that rule at one point. They had a bot that was sitting there collecting data. I remember running past it outside the bank in Ironforge and going “Wait a minute!” and I called Nick Yee out for that.
So many people who now are influential in different kind of areas were in that guild at that time. Another one was Dmitry Williams, now at University of Southern California. It was a really high-powered bunch. And a lot of fun.
Dirk Songuer: It has been 20 years since the article came out. What do you think of it today? Especially with the evolving understanding of virtual worlds and the ongoing entanglement of real and virtual.
Dan Hunter: Professionally speaking, I think it is still one of the most thoughtful and interesting pieces that I’ve written. And maybe the one that I feel the proudest of.
Unlike other pieces, it stands the test of time. Everything that we said in the article is as defensible today as it was back then. It led to the creation of a wonderful guild and the Terra Nova blog. It marked the point at which virtual worlds became a field of study, a genuine discipline within Internet and intellectual property law. So, professionally, it’s in many ways the most significant piece that I’ve ever written.
Personally, it was also the start of a true friendship. Greg was my best friend for the longest time until he died far too early. So, for me, it was and remains a meaningful piece in more than one sense.
Dirk Songuer: Thank you so much for your time and the insights, Dan.
Dan Hunter: Thank you!