Материал: disser_arhipov

218

metaphor (emphasis added – V.A.), it is useful to understand why the metaphor has proven so durable in virtual worlds».397 According to the author, there are three main functions of the magic circle metaphor.

The first of these functions is to protect the “virtual play” in the case of both computer and conventional games. J. Fairfield gives the example of children playing cowboys and Indians; however, we can add to this “adult games”, such as historical reconstruction, as well as phenomena close to sports or sports being – say, paintball or strike ball games. As long as the game is going on, law should not interfere. However, if someone violates the rules of the game and causes others, for example, injury, law should interfere into the process. J. Fairfield clarifies this thesis on the example of American jurisprudence, mentioning the case of Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).398 However, it should be noted that similar practices exist in many other countries, and, of course, the Russian Federation is no exception. Furthermore, this perspective does indeed form an important part of the meaningful field of discussion relevant to the subject matter of this study.

The second function of the metaphor of the magic circle is to protect artistic creation and freedom of speech. It should be noted that this perspective is extremely important for the context of the work, as it essentially echoes a number of dichotomies that form the basis of its methodology. Artistic, imaginary, unserious, absurd – all this determines the main content of the hypothesis about the semantic limits of law. As the researcher notes,

«[i]n works of fiction, characters commonly engage in illegal acts. Likewise, movies or theatre productions sometimes include depictions of sex or violence that may fall outside the realm of social and legal acceptability. Yet the authors of those plays, books, or movies are not themselves liable for the illegal actions of their characters (emphasis added – V.A.)».399

397Ibid. P. 826.

398See: Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979) [Electronic resource] // OpenJurist. –

[Site]. – URL: https://openjurist.org/601/f2d/516/hackbart-v-cincinnati-bengals-inc (accessed: 24.02.2019). 399 Fairfield J. The Magic Circle. P. 826.

219

This requires a polemical retreat, which may provide additional clarity to the subject matter of this paper. Yes, we can agree with J. Fairfield that an author should not be held responsible specifically for the actions of their character. However, we emphasize that this thesis can be perceived as obvious in certain, but not in all legal cultures, not in every historical situation and not in all meanings.400 Rather, it is appropriate in the context of a strong constitutional and legal tradition of freedom of speech in the widest interpretation existing in the U.S. specifically in the beginning of the XXIst century, but the evidence of this statement is not universal. In the conditions of the information society and in the situation of a more conservative legal policy, the rigor of the notion that the artistic, no matter how cruel, immoral or other scenes may be, cannot assume immunity from interference of law, is somewhat erased. Yes, the author will not be held responsible for the actions of the characters as if they had been committed by the author. However, the very question of whether it is lawful or illegal (in the legal sense of the word) to touch upon certain topics or, for example, to include in the content of the scene, something strongly contrary to public morals, has the right to life. It is here that the question arises about the semantic limits of law in the sense that this phenomenon is proposed for conceptualization within the framework of this study.

The third function of the metaphor of the magic circle, as described by J. Fairfield, is to protect the ability to enjoy the gameplay as a “tabula rasa” that does not require investment of material resources and assumes equal opportunities for players in the virtual world, regardless of social, property and other status in the “real” world.401 This function is quite specific and, in our opinion, has certain methodological prospects for the

400Of course, we do not consider cases of “objective imputation” to the author of legal responsibility for the actions of the character in the fictional world, but we want to emphasize that in some cases the author may be responsible for the information disseminated. How to distinguish the case of “dissemination of information” from the exercise of freedom of artistic creation is the subject of this study.

401Ibid.

220

development of ideas about the right to play as a new independent constitutional right or as a part of any of the known rights (for example, the right of access to cultural heritage). In a certain sense, and this perspective corresponds to the problem of the semantic limits of law, since such a “human right” may result in another semantic limit of law, implying noninterference in the game processes for the reasons indicated. At the same time, this approach clearly needs to be further developed, as it once again clearly demonstrates the non-obviousness of the differences between the “virtual” and the “real”. We would like to emphasize that one of the pioneers of game research, E. Castronova, directly advocated this approach.402

As an attentive researcher of the magic circle problems, professor J. Fairfield directly views virtual property issues as an illustration of these problems. It should be noted that the concept of magic circle within the framework of the formulated hypothesis represents one of the historical variants of conceptualization of the semantic limits of law. As the author notes,

«[t]he interaction between money and the magic circle deserves special mention, since it is the intrusion of real-world dollars into virtual worlds that precipitated the current spate of virtual-world litigation. Game gods403 use the metaphor of the magic circle to justify blocking real dollars from entering virtual worlds, in order to protect play and preserve the level playing field».404

However, believing that the virtual property issue itself is directly related to the discussion under consideration, the author rejects the idea of explaining the de facto semantic limits of law by referring to the magical circle of the gameplay.

402 See: Castronova E. The Right to Play // New York Law School Law Review. – 2004. – Vol. 49. – No. 1. – PP. 185–

210.

403Context-wise – game developers or game organizers, because in early online games (using the example of the “MUD” genre) gameplay administrators, who often acted simultaneously as developers, were conditionally called “Gods” or “Immortals” for the purpose of distinguishing from “ordinary mortals”, players.

404Fairfield J. The Magic Circle PP. 837–838.

221

«The question is not whether real-world economics can or should impact virtual worlds; they can and they should. The question is how much of an impact the players can expect».405

J. Fairfield gives analogies with classical sports – for example, in the case of a higher quality tennis racket, which is more expensive, or with a high-level baseball club, which can afford to pay a higher salary to players. The author questions the principle underlying the rules of the game established by the game companies, doubting that the question of the possibility or impossibility of one player to “exchange” virtual property for real money and vice versa, which is traditionally regarded as an unacceptable practice, is fundamentally different from the purchase of an expensive game computer and high-speed Internet access, which in principle is not considered an area where a game company can intervene.406

This question is certainly quite interesting, but for the limited purposes of the main subject of this study – the semantic limits of law – we note here that the judgment of J. Fairfield only emphasizes the theoretical urgency of the problem. In fact, according to the researcher, the reductionist concept of the magic circle does not allow solving the conflict between users and game companies in terms of the limits of virtual property turnover for real money – whether it is the prerogative of developers, or the players themselves can enter into transactions with this subject among themselves. On the contrary, more is needed to explain this relationship. We believe that this may be a case in point for the application of the general and well-considered concept of the semantic limits of law.

Actually, J. Fairfield’s legal approach to the magic circle itself is expressed in the following terms:

405Ibid. P. 838.

406Ibid. P. 839.

222

«…the relevant inquiry is not whether actions are “real” or “virtual”, but whether a given action falls outside the parties’ scope of consent (emphasis added – V.A.)».407

When the user agrees to the user agreement, he or she not only agrees to a strictly formal legal component, but also to the fact that some of his or her actions are excluded from the scope of the “real law” since the playing area is as if reconstructed by the subject matter of the agreement with the game company and, by doing so, with the other users who have agreed to the same. Users do not read user agreements specifically, notes Fairfield, but this is not so important because, in any case, their agreement to unread rules means de facto agreement (at least from a sociological and psychological point of view) to any rules included in the agreement, at least up to the point of common sense.408

«Instead of asking what is “real” or “virtual,” lawyers examining actions related to virtual worlds should ask who has agreed to what and with whom. In a legal conflict between player and game god409 the contractual EULA provisions might well prevail For example, suppose that a player used off-color chat in a public chat channel in “The Barrens,” an area within the virtual world World of Warcraft that is well known for rough-and-tumble language. In a player/gamegod dispute, a court might decide that the game god was well within its contractual rights to ban the player from the game».410

However, if one player sues another player on the same object, the court may, on the contrary, consider that by continuing to read the foul language chat, the first player has agreed to a certain measure of this. Actions between players that are the subject of agreement between them may go far beyond the virtual world in the narrow technical sense of the word, for example, in terms of illegal access to accounts, virtual property turnover, etc.

407Ibid. P. 831.

408Ibid. P. 832.

409In Russian version we have used an adapted translation, literally, “administrator of game”.

410Ibid. PP. 832–833.