Interview with Julian Dibbell: The Laws & Governance of Virtual Spaces

Julian Dibbell is an attorney in the Technology & IP Transactions practice of Mayer Brown LLP in Chicago.

Before joining Mayer Brown in 2014, Dibbell worked as a journalist and author, writing about digital communities, how they function, and the limits of free speech online. Publishers included Wired, the New York Times, Rolling Stone, and the New York Village Voice.

In December 1993 Dibbell wrote an article for the Village Voice headlined “A Rape in Cyberspace”, now famous for being the first public account of sexual abuse in a virtual world. In his book “My Tiny Life: Crime and Passion in a Virtual World” (1998) he provided an intimate and personal view into the social life, politics, and relationships within LambdaMOO, the first “Town Square”-type virtual world. The book “Play Money: How I Quit My Day Job and Made Millions Trading Virtual Loot” (2006) followed his adventures as a businessman dealing with virtual items, in the process uncovering many positive and negative externalities of the rising demand for virtual currencies and goods.

Dibbell co-founded the influential gaming research blog Terra Nova and his articles and books had a lasting impact on the virtual world community, from designers to operators to inhabitants.

Julian Dibbell received his Juris Doctor degree in 2014 from the University of Chicago Law School, where he was a staff member of the University of Chicago Law Review and co-founder of the Law and Technology Society. He now advises on a range of complex commercial transactions, including those involving digital platform and other hosted service agreements, data center leasing, technology licensing, cloud computing, and privacy and security issues.

In our conversation, we talked about the legal, technological, and societal implications that virtual worlds are really just programs running on someone’s computer.

The Laws & Governance of Virtual Spaces

Dirk Songuer: Julian, thank you so much for taking the time, I really appreciate it.

Julian Dibbell: I feel I have to start with a disclaimer on my part. It’s been a while since I’ve paid much attention to the topic of virtual worlds. Moderation, IP, and virtual property issues were my bread and butter as a journalist and shaped me on my professional path. They are definitely near and dear to my heart, but I have not been paying a ton of attention to them since I became a lawyer in 2014.

There is nothing in my day-to-day practice as a lawyer that directly intersects with my understanding of virtual worlds. I do not work with any of the major metaverse companies. Our firm does have some clients in that space, but I’m focusing on technology services and data protection, data monetization, and agreements between companies. So, apologies if my memories are hazy or not necessarily correct.

Dirk Songuer: That makes sense. But it also offers an interesting new perspective. In My Tiny Life you wrote about social dynamics and governance in virtual worlds. A lot of that was documenting the life inside and around LambdaMOO, and the efforts of the community to create some sort of legal system to allow it to function as a virtual society.

As an attorney, how do you look at these attempts today?

Julian Dibbell: I suppose there were some borderline utopian elements to my examination of self-governance in LamdbaMOO. This was in line with the utopian, or semi-utopian, thinking that was bubbling up around the Internet at the time. Think of John Perry Barlow’s Declaration of the Independence of Cyberspace:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

John Perry Barlow, Declaration of the Independence of Cyberspace.

Julian Dibbell: There was a sense that the Internet was a whole new realm that could evolve independently of the real world’s governance structures, mechanisms, and institutions. And I think the legal scholars – people like Lawrence Lessig, Dan Hunter, Greg Lastowka, and others who were already coming at this topic – they had a better sense of how, in fact, no, the law has been around for thousands of years and it keeps rolling with the punches. It absorbs new phenomena, and shapes them in its likeness. Or it’s maybe being reshaped in their likeness to some extent as well.

I think that’s what folks like Lessig, Hunter and Lastowka were doing, because it is the classic approach you take as a legal scholar: How do we fit this in the existing structures of the law? How do we have to change the law to accommodate it?

That said, I think everybody agreed, and we would all still agree, that there are new kinds of issues coming up. And some issues that were initially restricted to narrow parts of the population are now becoming broader issues for everybody.

Dirk Songuer: What would you say is a question that came up back then and escalated into a broader issue, now that many more people use virtual worlds and social media?

Julian Dibbell: That question of LambdaMOO was really a question of moderation: How do you govern what people can say and do online? Do you let the law be the final, the only word? Or do you devolve some of that governance to the community? In the case of LambdaMOO, that’s what Pavel Curtis was trying to do. He was sort of the grand experimenter, who wanted to see if a community can govern itself around these issues of transgressing community norms online.

Dirk Songuer: They tried by creating a form of “Government of LambdaMOO” at one point to achieve that self-governance.

Julian Dibbell: Initially when I wrote up “A Rape in Cyberspace” in the Village Voice, the ending was: “Hey, they figured out a way to govern themselves.” But there was an asterisk to it.

Sure, the community found a way to deliberate about this particular problem. But at the same time, in order to enforce their will an admin had to step in. Someone who was part of the ownership of LambdaMOO, part of the organization that owned and operated the underlying computers, had to execute their wishes.

So, when we look back and see what was invented anew within this “Tabula rasa of utopian cyberspace” the basic problem was already visible: You got people trying to live their lives online to a greater and greater extent, and they are doing it on somebody else’s computer.

And the kind-of absolute sovereignty that property regimes grant to owners of things, for example houses or cars, also extends to machines sitting in somebody’s basement. That’s hard to escape from the perspective of a community that is trying to live on those machines.

Dirk Songuer: When we talk about virtual worlds, we use the metaphor of them being other places. We “go there”, we “do things there”, we “own things there”. But as you say, it’s all just database entries on a server somewhere, owned by the operator of the virtual world. The opening statement of Barlow’s argument “I come from Cyberspace” only makes sense if you are living within the Internet, as an actual place.

Julian Dibbell: Right. And it has never been “in” the Internet from the get-go. Again, because of the problem that the infrastructure is sitting in physical space somewhere. And that space is owned by somebody that isn’t you. So, yeah, it is sometimes hard for people to wrap their mind around the fact that they don’t necessarily own the rights even to their own data.

But also, I don’t think that’s a hard problem for the law to solve.

Dirk Songuer: Well, the law did solve it: Transactions in virtuality, including copyright, liability, contracts, have been professionalised over time. Today companies are selling virtual goods and services all the time.

Julian Dibbell: The “Software as a Service” (SaaS) agreements that I work on are basically that. You’ve got one company that’s trying to run its business in the cloud, but you maybe have heard the saying: “There is no cloud, it’s just somebody else’s computer.

These SaaS agreements are basically the negotiation between the people who own the computer and the people who are trying to do something on that computer. It’s all the same question.

Dirk Songuer: And yet, games and virtual worlds are seen as something new – just because you buy pixels representing a sword “in” a game, instead of pixels representing an eBook “on” a tablet. Why is there still a difference in perception?

Julian Dibbell: Well, one way to slice it is the nature of the thing we are talking about. We can talk about this as a question of what kinds of property are recognized by the law more readily than others. Take a SaaS agreement. That’s a well established and mapped out set of liability risks and ownership allocations that comes down to: “I’m providing you this service on my server.” This creates scarcity by tying the service to a scarce physical good: I run a server, and I can include or exclude you from it. Once you agree to the SaaS contract, then there’s a whole legal regime around that physical good.

Then there is the game world and its virtual assets. These virtual assets are invented and managed by the developer of the virtual world, which is running on a computer owned by someone. So that’s a second order scarcity: “I have the right to exclude you from my virtual world because I own the physical server. But also, within this server lives a virtual world with a different property regime where I have granted you specific ‘rights’”.

These are “rights” in quotes because they are not broad legal rights, they are rights within the rules of the virtual world. You “kill” this dragon. You “get” the sword and based on the rules I built into the code you “own” it now. The fact that the server owner can take it away from you at any time makes it a little squishier, right? It’s a little harder for us to wrap our minds around the way in which this sword could actually be property.

In very reasonable ways, people do say it’s not necessarily the same kind of property as the virtual world owner’s property rights to its server.

Dirk Songuer: The State of Play conference was founded back in 2003 to address these kinds of questions. That was 20 years ago, and yet we still look at these questions as if they are new. Are they really this new and something separate?

Julian Dibbell: The question of “Is this a separate place?” is not discussed anymore. Today it’s more about: Are there different kinds of affordances to social interactions that arise from this technology?

Your question remains though: “How new is this space?” And again, I’m falling back to the metaphor of space, but I really mean is “How new is this set of technological tools that we use for connecting with each other?”. From a legal perspective, the question is: What are the degrees of freedom in this space and is it warranted to rethink how we interact with each other? Or is this space similar enough that we’ll just apply all the old laws and don’t need to think too hard about it?

I think this continues to be an issue. We see it in the question of moderation for example. Does it all devolve to the server owners? Does it devolve to the community? Does it have to be regulated? Recently we saw these congressional hearings on content that’s harmful to minorities on social media. Do we need to revise Section 230, which has been the underpinning of how moderation works online since the 1990s? This is a provision of federal law that in effect gives technology companies a free pass for content that is provided by users. Do we need to rethink that?

And then the conversation continues in those same dimensions: Given the technology that we have, how do we approach governance overall? And given that the technology we have is quite malleable, what can we change about the technology that would make governance more responsive and more effective?

Dirk Songuer: Change the technology to avoid centralized ownership and governance in the first place?

Julian Dibbell: Maybe all of this doesn’t have to unfold on the computer of a single entity. Maybe we can distribute this community, this social organism, across various computers. And that way you allow for a democratic approach, or an anarchistic approach to governance. Some of that I think we see in the blockchain space and in the revived metaverse discussions.

You have a lot of legal scholars gravitating towards those technological phenomena to try to think through the possibilities. Dan Hunter among them. Then there is the question whether there is a better way to moderate. If the governance of these spaces was not entirely in the hands of corporations or corporate startups, if there were some way to more organically, technically distribute governance, would these kinds of incidents be handled more resiliently, more robustly? I don’t know. That would be the hope.

This is a technical question. But it’s also a question of economics and how property regimes work today in almost every part of the world. Then you have things like blockchain assets, where people try to build in hard distributed rights into the virtual assets themselves to make them transferable outside of a given server. And that starts to add another layer of complexity to it, and it creates technical problems. Anytime you scratch the surface of an experiment in distributing virtual assets or property rights within the blockchain space, there is always some kind of loophole. Is this really distributed or is this just you running a blockchain on your own server? Often, it’s the same setup as before, but they are running it through magical encryption that makes it only feel different.

Again, I’m saying I haven’t been paying attention, but you know, I couldn’t help noticing that all these blockchain discussions seem to lead naturally to a revival of a lot of the virtual world discussions and experiments we had during my time. On the one hand, it’s gotten so complex and ramified compared to when I was writing about these things that it’s hard to find my way back in. And on the other hand every time I go back it’s still the same questions over and over again.

Dirk Songuer: Another approach is to formalize the social contract between operators and inhabitants of virtual worlds, similar to the SaaS agreements you mentioned. Raph Koster for example suggested a “Declaration of Rights of Avatars” that goes both ways. The idea was to clarify the terms of what it means to engage in a specific virtual world.

Julian Dibbell: I agree. Like I was saying before, the law is probably perfectly equipped to deal with the issues of ownership and bad behaviour that arise in virtual spaces. But this doesn’t get to the issue of how people experience problems within that virtual world. And I think it’s a good approach to formalize what the rules are, or what they should expect within a given world. That makes a ton of sense.

It’s hard to say whether such an approach can ever be practical given the cost of building these worlds and the economic constraints. Because these organizations are game developers, not political scientists. But I think it probably behooves people who are trying to build these worlds to remember that they’re not just making a game, they are creating a social space. And like it or not, they are in charge.

There is still a lot of room for evolution in online interaction, but it’s not “Tabula Rasa”, we know that. We’ve seen how things work. We know what flame wars are. We know what trolling is. We know what griefing is. We are not dealing with a whole new world.

Dirk Songuer: You say that we know what trolling and griefing is, but do we really? You wrote “A Rape in Cyberspace” in 1993. That article is referenced every other year, when yet another sexual assault happens, in yet another form of virtual world, and yet another journalist writes another article about it.

Julian Dibbell: Well, what are you trying to solve, really? The way you describe this cycle is very apt: There is some kind of sexual assault in the virtual space, and there’s a flurry of newspaper articles that wave their hands around as if this was a new thing. But then they do the “obligatory citation of Julian Dibbell’s 1993 article”.

The questions from journalists always focus on “What is this?” or “Why is virtual rape a recurring phenomenon?” But I think we should pull back and ask: What set of behaviors is virtual rape a part of?

My opinion is that the concept of virtual rape itself is a subset of trolling. There are griefers and trolls out there, and in any new given space they will try to figure out ways to push other people’s buttons. I mean, misogyny in general is a problem in the real world that we’re not going to solve through governance in virtual worlds. So, the fact that it recurs is not surprising to me. Have we really evolved community responses to these occurrences as a society? And that I don’t know.

But I do I think these incidents slowly create a little bit of institutional memory within the minds of people who build these worlds. To some extent there is still a “Move fast and break things” approach to building these worlds that sometimes doesn’t give enough consideration to question like: “What kind of tools do users have? What kind of governance mechanisms are in place do deal with people misusing these tools to be jerks, or worse?”

The solutions will tend to be more ad-hoc, will tend to be more incremental. And you know, with every incident there we also gain a little bit more ability to deal with trolling, griefing, and all these things more generally and collectively.

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