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Friday, October 07, 2005

LAYING DOWN THE LAW: JUDGING US

From the moment I read their FAQ at the Second Life Herald, I knew I'd want an in-world sit-down with Judge Mason and Judge Churchill, who very recently came into SL with the intent of creating a mediation court. (They describe themselves as real life law students specializing in Internet issues, but decline to specify which college they're attending.) After a few rounds of IM tag, the dark-robed, white-bearded gentlemen came by my office in Shipley to explain more.

On why they're creating a court

Judge Mason: Well, we both saw a need here in Second Life for a system such as this to be in place... some people have not been happy with the way Lindens have handled disputes in the past. Also, some property owners would like to know that there are additional avenues out there. At some point in the future, it is foreseeable for houses to be sold with clauses that homeowners follow certain rules. I believe there have been situations already where a certain theme for a land area is chosen and property owners are expected to abide by the rules. What we are doing is simply adjudicating matters subject to certain rules and regulatipns.

On who has sought them out, since announcing their intent

Judge Mason: We have had maybe six-seven residents contact us. We have received a few cases. But it is a slow process, and we are still setting up shop. Property disputes mostly seems to be the issue.

We have also received a free speech case. The Resident believes they have a cause of action under free speech rights [principles]. In general terms, a Resident is upset that certain actions were taken against them by the Lindens and feels that such action volated their free speech rights.

Judge Churchill: We are here to render judgment. The remedy also depends on the case. Some may result in a mediated dispute between parties, where both parties have stipulated to the use of the court.

On the remedy they'd seek, if the defendant was Linden Lab itself

Judge Mason: The remedy in an instance involving Linden Lab would be different. We are unable to issue a restraining order, force them to pay sanctions, etc. But, a judgment against LL would not be completely valueless. For example, the UN World Court has no enforcement power. Countries choose to follow their decisions or not. The United States, for example, has not. This does not mean that the court is useless. Merely that certain people choose not to recognize the decisions. At the very least, the party is afforded their opportunity to be heard, state their case, and have it objectively analyzed and decided.

On whether a court with no power of enforcement is a joke

Judge Churchill: No, there is a theory of law that starts from the ground up...

Judge Mason: Just because we cannot enforce a decision against the Lindens does not mean we cannot enforce any decisions. Often in cases where both parties appear in front of the court, the property in dispute will be held in trust, pending the court's decision. I foresee in the future that property owners would love to have a system in place where disputes could be resolved.

On whether a court decision might gain enough public acclaim from Residents that it would pressure Linden Lab to respond accordingly

Judge Churchill: Yes, exactly... this is the ground up theory. If the court returns respected decisions and the public backs them, it doesn't require enforcement in the traditional sense.

Judge Mason: Our Supreme Court faced this very issue when they were first starting out. The Court was trying to establish that they had the right of constitutional review.

On the credentials they bring to their judgements

Judge Mason: We are both law school students who have a particular interest in Internet law.

Judge Churchill: I think it is something that develops over time as we return decisions. We could give you all the legal credentials you want to hear, but that doesn't mean [the Residents] should respect us.

On how the judges will process evidence, since chat logs can be faked and screenshots can be altered

Judge Mason: We understand that. Just as people can get on a witness stand in real life and commit perjury. The same things will carry over (consistency of a side with the evidence.)

Here we also have other observers... [witnesses n]ot called by the court, but by the parties. The court is an adversary process where each side presents their best case. Thus each side will take it upon themselves to present the evidence in the best way possible.

On whether this "court" is actually just a mediator service

Judge Mason: That is one way you could put it. But, not many people understand what mediation is. Hence, we market this as a court.

Judge Churchill: I think it will be interesting to tackle issues of cybercrime and more difficult topics that are not cut and dry. Second Life is really and interesting place to see how the law can evolve.

Posted at 12:13 AM | Permalink

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Comments

Do ya think "Dredd" will ever become a last name? ;)

Posted by: Torley Wong/Torley Torgeson at Oct 7, 2005 12:25:00 PM

I agree whole-heartedly that this virtual court, even with just a couple of law-school students in a game-like atmosphere, can begin to create a climate for the rule of law which someday itself may force the powers-that-be to themselves create or admit a real rule of law. As decisions with precedent force are built up, even with only rhetorical value, there is a sense of public opprobium and a sense of justice that can begin to be established.

The problem is that because everyone thinks they're reinventing the wheel in cyberspace, these students and those who bring cases before them could illegitimately aquire a sense of "being right" -- a sense we see all too frequently on the SL forums and other venues where small cores of active and intense people carrying out a project begin to feel a sense of entitlement and ownership in the world that has not been granted them by everyone.

I can see these two judges will take their cues from all the forces in the world, starting with the Lindens, and go slow if they think any case will damage there overall project of establishing the court itself -- or a deeper project involving polishing their resumes for post law-school employment. (In that sense, I'm going to think thrice myself before entrusting to resume-polishers and world-users an issue like my beef with the Lindens on some issue, which might lead to them gearing up to perma-banning me and seize my property -- no thanks.)

In that sense, this court will be like the ICC, not taking on something hugely controversial like Russia's war in Chechnya or the war in Iraq, but safer cases that can establish the court's identity itself.

Already, this court lost the first round in the very hard battle for the rule of law in a metaverse so far owned and operated by entertainment companies. When asked to change their name from Second Life Superior Court, they immediately capitulated and changed it to "Metaverse" -- a concept that in fact nobody dare really say they "own" yet. LL told them essentially that SL is their trademarked term, created by their company, and they don't want any confusion among residents or outsiders about what that term means, and confusing LL itself as the body beyond the superior court -- or has having any obligations ensuing from that court.

Thus, in a world where we are promised "Your World" and "Your Imagination," our imagination about making a supreme court in the world we believe we own, too, when it comes to having a proprietary feeling about the concept of "Second Life," has been rudely rejected. The first cave-in will be indicative of other dodges to come.

There's also a new challenge coming from the latest TOS to drop down even without a patch, which, while apparently the result of a mere administrative imperative, directly bangs up on this court's potential role. LL now declares itself the sole mediator in resident disputes, if I've understood it correctly (in fact, job one would be to bring a suit to obtain a ruling, or better yet seek a chair's statement from the court, precisely on that issue).

The court appears not to require that residents first exhaust all remedies, i.e. through ordinary appeals to support@lindenlab.com or abuse-manager@lindenlab.com -- that seems an oversight because until a Linden has had a chance to review an issue first-hand and perhaps dispense with it right way, the court shouldn't waste its valuable time -- and they'll also be handling some freebies to the Lindens they don't need to be handing by skipping that step.

I hope this court stays out of the mediation business -- and not in favour of SL Mediators, which I also think should stay out of the mediation business. Mediation has its values, and it's normal that some non-profits or commercial operations will emerge that conduct mediation among companies. In the SL environment, however, there are often very clear-cut senses of violation of the law, with one party appearing as violator and the other party appearing as violated. That should not be stepped on, in favour of making both parties artificially equal and sitting them down at the table in the name of greater community harmony, when the job ought to be to sharpen the distinctions of the law -- what has consequences and what does not in terms of behaviour. Unless courts robustly determine that violators have violated the law -- whatever set of laws they establish as law -- there is a continued sense of impunity (always erasable through "mediation") that does a great deal of long-term harm.

I'm troubled by this curious statement: "At some point in the future, it is foreseeable for houses to be sold with clauses that homeowners follow certain rules." What is being discussed here? Is Hamlet or these judges saying that it would be just fine to overthrow "first sale doctrine" -- in a place where it is heatedly disputed yet established as law (by the TOS, EULA, and the law of the land where the servers are located)?

This sounds like something from the creator-fascist movement. Just because a prefab house builder or even custom house builder has some oppressive notion of how he would like his house rezzed, revised, or situated, doesn't mean he has the right to impose it on the customer. Once it leaves his hands in a sale, the customer has a piece of property that he can dispose of at his will. If an architect is really stuffy, they can put their work on "no modify" under SL rules and the customer can't change the color. They can just not put it on "transfer" if they don't want it sold. But they have no right to insist that it be situated in a certain way, not built on or added to or whatever. This is a particular issue for rentals companies because some prefab makers (a very small minority) become incredibly retentive about their creations to the point that they believe no one should gain additional value from renting them, even if they have sold a no-copy, no-mod item.

If what is meant here is that certain *properties* in zoned sims will be sold under certain rules, that's already occuring, and these sorts of rules established by powerful landowners are precisely what some residents are going to want to -- and should -- dispute because sometimes they are arbitrary and arbitrarily or selectively enforced.

Posted by: Prokofy Neva at Oct 10, 2005 6:26:04 AM