Материал: disser_arhipov

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about further developments in computer and informational technologies.284 The authors considered a question of allocating a “real” object in a “real” park. However, modern informational technologies allow for alternative scenarios as well. We mean technologies of virtual and, specifically, augmented reality. Let us emphasize that the example of augmented reality is especially important for the subject matter of this research.285 Let us imagine a heteronomous legal text that contains a norm preventing from allocating vehicles to parks. Let us now imagine that certain company specializing in innovative informational technologies developed a software product that contains precise image of park that is updated in real time. Finally, let us imagine that this software product contains functionality allowing users to allocate at their discretion any objects in virtual representation of a park. Now, let us assume that one of the users allocated certain “virtual” vehicle in “virtual” copy of the park. At the first glance, this innocent situation is outside of

284 The very first experimental stage of the development of information and telecommunication technologies is usually attributed to the 1960s. XXth century, but even then it was the province of specialists involved in various public, including military and classified, research, as well as enthusiasts in the field of technology, and not the philosophy of law. See: Rustad M.L., D’Angelo D. The Path of Internet Law: An Annotated Guide to Legal Landmarks // Social Science Research Network Website, URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1799578 (accessed: 24.01.2019). At that stage, it was basically too early to even predict (beyond science fiction and futurology) the development of virtual and augmented reality technologies, which will be discussed in the next paragraphs of this paragraph of the study, in terms of social practices and the relationship with legal issues.

285 As the experts note, “the authorship of the term ‘augmented reality’ belongs to Thomas Preston Codell, an engineer at the Boeing Research Laboratory. In 1992, he applied the principles of technology to a system designed to help workers install electrical cables in aircraft. Augmented reality (AR) is a technology that superimposes information in the form of text, graphics, audio and other virtual objects on real objects in real time. It is the interaction of computing devices with the picture of the real world that distinguishes the augmented reality from the virtual one (emphasis added – V.A.)”. See: Yakovlev B.S., Pustov S.I. History, Features and Prospects of Augmented Reality // Proceedings of Tula State University. Technical Sciences. 2013. No. 3. P. 479. See also: Kravtsov, A.A. Use of Augmented Reality Technology for Visualization of a Virtual Object in a Real Environment [Electronic resource] // Scientific Journal of Kuban State University. 2012. No. 84. – [Site]. – URL: https://cyberleninka.ru/article/n/ispolzovanie–tehnologii–dopolnennoy–realnosti–dlya–vizualizatsii– virtualnogo–obekta–v–realnom–interiere (accessed: 24.01.2019). Among the modern technologies of augmented reality are noted (part of these technologies, however, is experimental or already outdated or not used for various reasons, including legal reasons) Google Glass augmented reality glasses, Microsoft Hololens glasses, DARPA virtual reality neural chip, BMW driver's glasses, etc.. See: Drokina K.V., Darbinian T.A. The Analysis of the Possibilities of Application of the Augmented Reality Technology in the Modern Conditions // International Scientific Journal «Innovation Science». 2016. No. 2. P. 114– 116. The experience of augmented reality technologies in the gaming industry is doubly interesting in the light of this work. Author’s top-level practical analysis of the legal problems of one of these games – Pokémon Go (see: Pokémon Go [Electronic resource] // Pokémon Go. The Pokémon Company International, Inc. – [Site]. – URL: https://www.pokemongo.com/en-us/, accessed: 24.01.2019) – is presented in the following video lecture: Arkhipov V.V. Information Relations Within the Framework of Pokémon Go [Electronic resource] // LF Academy. – [Site]. – URL: https://lfacademy.ru/course/13479 (accessed on 24.01.2019).

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law. However, there can be nuances. The park does not belong to software developers. The vehicle may be allocated to a “live” digital copy of the real park. This alone could mislead the visitors of the park. Then, what if the vehicle would not be a simple one, but reflecting some information limited for dissemination? We also can assume that as a result of such kind of actions incorrect image of the park emerged and started to be disseminated outside of the application which leads to substantial distortion of legally significant accurate information about the park. And so on. The question that we are interested in now is the question of whether we can extend the initial rule on prohibition to “allocate vehicles in parks” to the relationships that have specific and live simulation of “vehicle”. In the context of this paragraph of the research, we have to emphasize that this question is slightly more technological than it should be in order to refer to moral philosophy. A possible view that a position, inspired by L. Fuller, that here we also face a question of the purpose of law, looks quite simplified – at first we need to answer the question of why, at least in theory, we can allow that such a purpose could extend to virtual vehicles, and why this is not absurd.286 The teleological approach does not eliminate the problem.

Let us go back, however, to the moral philosophy. The direct source of the previously presented generalization of J. Stanton-Ife about the limits of law and the indirect theoretical reason for the discussion of L. Fuller and H. Hart is the basic principle of utilitarian moral philosophy. J. Mill’s views were based on the idea that “harmless” (i.e., incapable of harming others) behavior cannot be a subject of legal regulation. Later H. Hart rethought this approach.287 It should be noted that “harm” as a criterion determining the possibility of the application of law is considered in the philosophy of utilitarianism and its subsequent interpretations as a kind of main feature of a special subject of social relations,

286 The question posed in this judgment is similar to that of whether writers should ensure that their characters always “observe” the rules of traffic in their works of art. It is not absurd, however, to pose the question in the light of the noted trends in legislation to restrict the dissemination of information.

287See: Hart H.L.A. Positivism and the Separation of Law and Morals.

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which serves as a criterion for the applicability of law and defines the standard of legal interpretation. However, this paper demonstrates that “harm” is not the only possible such criterion. From the perspective of the theoretical sociology model that defines the methodology for this study, “harm” stands out in utilitarianism precisely because it has “socio-currency value”, a concept that will be explained in more detail by the end of this Chapter 2. We believe, however, that J. Mill’s theory, while respecting classical utilitarian thought, does not fully meet the challenges of modern law enforcement, interpretation, and law-making.

Let us conduct a thought experiment, referring to one of the through examples of this work – computer games and interpretation of Article 105 of the Criminal Code of the Russian Federation in such a way that it extends to the “infliction of death” to another “person” (character) in a multiplayer online game. A key question in the light of the applicability of the utilitarian concept (and its subsequent interpretations) is whether it is possible to simulate a situation in which “harm” in the J. Mill’s sense will be present and the possibility of appropriate interpretation and application of the law will continue to raise intuitive doubts. Yes, it seems so. In some multiplayer online games that allow some characters to be “killed” by others, the following situations are possible, for example:288

1) Where the game permits the arbitrary “killing” of one character by another at any time. Player A of a low level performs “peaceful” tasks of the open game space. Player B of a high level suddenly attacks Player A and “kills” him for no apparent reason. When Player A returns to the starting point and continues his “peaceful” activities, Player B waits for him, and “kills” him again. The situation repeats itself several times. On the one hand, it is obvious that Player B interferes in the gameplay of Player A, perhaps even spoiling the game from the subjective point of view of the latter. On the other hand, such situations, if

288 Note that the following examples are constructed in relation to virtual worlds, which are inherent in the quality of virtual social reality, in whole or in part (see § 5.8 of Chapter 1 and § 1 of Chapter 2 of this study).

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allowed by game mechanics, are part of the gameplay process, even if it is unpleasant (here it is appropriate to recall the views of J. Feinberg discussed above). It is probably a case where harm is present, however, to file a lawsuit for the protection of rights, if any, is quite difficult for Player A, although we will not rule out such a possibility in principle.

2) If the game allows the free exchange of “virtual property” between players. Player A, by performing in-game tasks, has accumulated a significant amount of “virtual currency” and decided to buy an expensive item from Player B. However, there is no possibility to purchase “virtual currency” for “real” money. Although the game mechanics provides a multistage confirmation interface, Player B finds a way to deceive Player A: he pretends that his game client gives a software failure, cancels the exchange and resumes it again, but replaces the item desired by Player A with another, similar, but much cheaper one. Assuming that Player A does not double-check the second “deal”, which he considers similar. In this case, Player A will also probably be offended and disappointed, but even in this case it is difficult to imagine a lawsuit to protect the rights of Player A, even though they could have invested a lot of time and intellectual effort in earning a “virtual currency”.289

Examples in this area can be continued for a very long time.290 Let us note the main thing: in each of the cases under consideration we can state the presence of “harm” in the J.

289 Such cases of fraud were observed by the author of this work in some games, for example, in the game Allods

Online.

290 In fact, these practices are found in almost all computer games of the group, the game mechanics which allows you to perform such actions. But the most striking example, perhaps, is still the virtual world of Ultima Online. See: Leonov A. Killing History in Ultima Online: How Criminal Players Opposed the Developers [Electronic resource] // DTF.RU. July 5, 2018. – [Site]. – URL: https://dtf.ru/games/22604–istoriya–ubiystv–v–ultima–online–kak–igroki–prestupniki–protivostoyali– razrabotchikam (accessed on 23.01.2019). The author highlights the following examples from the key developer of the game: “If Dashing Harry is waiting for travelers on the big road and tells them, ‘I’m sorry, gentlemen, but I’ll take either your wallet or your life,’ it’s much less problematic than Basha, who teaches bears and sets them on unsuspecting travelers, or Lord D’eath, who finds it funny to test his new scroll of the ‘Fire Wall’ right in the middle of the forge. D’eath has no forgiveness. However, all three options are perfectly legal”. Original source of the text: Koster R. A Theory of Fun for Game Design (in Russian). Moscow: DMK Press, 2018. – 288 p. Raph(-ael) Koster (b. 1971) is known not only for Ultima Online, but also for other virtual worlds that have left a noticeable mark on the history of computer games. See: Raphael Koster [Electronic resource] // MobyGames. – [Site]. – URL: https://www.mobygames.com/developer/sheet/view/developerId,327570/ (accessed: 23.01.2019).

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Mill’s or close to the J. Mill’s sense. At the same time, there are intuitive doubts that such “harm” corresponds to the object of legal regulation. However, the situation may change if in each case, in the presence of appropriate established social practices, there are quite “real”, for example, monetary relations in parallel with “virtual” ones, for example, if it is possible to calculate the value in the “real” currency of the game character as a whole or in the “virtual” currency owned by him with the possibility of converting (converting) one into another.291 The fact that philosophers and legal scholars of the past did not take these examples into account is not surprising – there were no social practices related to “persistent” simulation of the game environment at the time, as there were no tools to do so at that time – computer and information and telecommunication technologies.

Summing up, we note that the main conclusion that can be drawn from this preliminary consideration of the relationship between law and morality in the light of the problems of teleological interpretation and semantics of normative prescriptions, is that the semantic limits of law as they are understood in this paper, cannot be explained based on the philosophy of morals. The question of the relationship between law and morality turns into the question of the possibility, admissibility and expediency of teleological interpretation. In turn, the latter question goes beyond moral discourse and forces us to turn to the logic and semantics of legal texts. At the same time, these circumstances become especially noticeable in the current socio-cultural context of the medial turn, which actualizes the problem of the semantic limits of law.

291 This is the way it is argued in some court decisions, where the relationship between the user and the gaming company, the subject of which is “virtual property” acquired for real money, is qualified as a relationship between the consumer and the professional party.