Free for a Fee

When I was doing my law degree I unfortunately chose not to do the course on Law & Technology (it had too much internal assessment required and a lot of it had to be done online – I didn’t have regular Internet access so that was a no-goer). I did however inevitably get exposed to bits and pieces of the theory behind it through my other courses – like Evidence and Intellectual Property. One of the technology-and-law related things that I got shown intrigued me and stuck with me, and I think it’s incredibly relevant to Second Life. And I’m going to share it with you, you lucky wee things.

When new technology emerges it is essentially unregulated. Some law will exist that can be stretched or interpreted to cover it – such as trying to apply classic copyright law to digital images. This is often awkward though, and applied in an inconsistent way. A body of law will slowly build up through the court system and there will come a point when the government steps in to regulate “properly” – through new express statutes that either clarify how current law applies to the new technology or (and more likely) creates entirely new law to cover it. The government usually steps in under pressure from lobby groups, and they sometimes even listen to the legal fraternity (shock horror).

The pressure groups should be familiar to you, they say things like “but think of the children!” and “zomg, no, people have freedom!”. And don’t lose sight of the effect of regulation that is of most interest to the government: tax revenue *nahm nahm nahm*.

Now that I’ve told you the theory (and it does seem to hold true in my observations), I’m going to tell you what I think of it and where I think things go wrong in the regulation.

Law should be based on core unchanging principles that can be applied to any new situation. Figuring out how it applies can take a while, but it does not require entire new swags of law to deal with it: Law that comes out of the nothingness like that often ends up contradicting other areas of the law and being counter-intuitive. You often get a flood of new law coming out to fix the new technology, and it tends to whittle down to something more sensible and concise over time, but you still seem to end up with a bunch of silly over-complicated laws trying to cover discrete situations instead of being based on the application of core principles. Intellectual law in the virtual environment seems to be going through this process right now.

You’ll always get a bunch of anarchists saying “leave my new technology alone, man, this is the way of the future, we don’t need no laws” (throw in a few extra “dudes” too). I sympathise with this to a point: I agree that freedom is awesome and society is way over regulated, but there is good law and bad law – don’t throw the baby out with the bath water. For a while this view is very popular, and it was true of the Internet too. It was quite popular for people to state that the Internet was the great unregulated world of the future and that law should never touch it. It was quite popular. These days people who hold that opinion are slowly but surely becoming the minority and people are becoming more aware of the trend I’ve told you about: That with new technology will eventually come regulation and law – it appears to be an inevitable process of progress.

Each side ends up accusing the other side of being stuck in the past: The anarchists think the law-lovers are not realising the “true nature of the Internet”, while the other side think the anarchists need to realise that law doesn’t magically stop existing just because some new technology was discovered – that it is rather the anarchists who are stuck in the past in thinking the and not realising that the Internet (for instance)  is part of the world and people’s real lives too. Both sides thinking they see the “true nature of the Internet” and trying to convince the other of who’s right.

Don’t forget too that new technology will evolve to be able to control the new technology that was at issue. Let me make that clearer: The Internet supposedly gave people anonymity and the ability to get away with all sorts of things that would have been illegal in the real world. But the ability to trace people and their behaviour, to lock down their identities and thereby hold them accountable, has similarly evolved. Does anyone still think they are completely anonymous just because they’re behind a computer screen? It definitely used to be the popular opinion. In turn governments find ways and permissions to trace your money as it moves around the Internet so they can tax you “properly”.

All of this applies directly to Second Life of course. I’ve already mentioned here the issues of intellectual property and tax, but don’t forget what happened to gambling there too. And I have no doubt you can think of more Second Life specific examples. The application of intellectual property to Second Life needs a heck of a lot of work – there is a lot of clarification and cleaning up required here, in fact I believe it is the unpleasant and confusing mix of over-regulated and under-enforced. Gambling should have never gone from Second Life, the plonkers – it was fun and I miss it. Remember how everyone was saying Second Life would die when gambling went..? I’d love to see what actually happened to their user numbers and profit when it went.Gambling is of course tied up with taxes *shudders*and morality. Taxes and morality are huge discussion areas that require whole blogs to themselves, I’ll tackle those separately some other time.

I’ve followed this pattern of behaviour for new technology and the internet at a local level too – particularly in regards to a New Zealand website called www.trademe.co.nz, it’s essentially our version of E-Bay. It is apparently the most used New Zealand site. It started off a free haven with very few restrictions but the restricted and immoral items (porn and alchohol for instance) got cracked down on, and soon enough the government started rubbing its hands together with it realised how many household wives were making money off selling their old books and children toys to other household wives *shock horror*. There are lots of people making real money off it too of course but lots of small timers were suddenly having to calculate their earnings and decide if they were selling for profit etc as the tax collectors made their rumblings and settled in for evermore. I’m sure you have some local examples and experiences too, feel free to share them.

So where does that put us now? The great thing is we have the chance to effect and direct this process since it’s ongoing. The regulation and application of law will happen, let’s accept that right now. Instead focus on what we want it to look like; there is good law and there is bad law, the trick is trying to make it the good kind.