Материал: disser_arhipov

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«Under the old conception of the magic circle, such a result [differentiated attitude to virtual property depending on the subjective composition of the legal relationship participants] makes no sense: either virtual property is “virtual,” and interests in it are utterly unprotected by law, or it is “real” and fully protected against all comers. Under the new conception articulated by this Article, players in virtual worlds are real, the actions are real, and even the digital objects of their actions are real (emphasis added – V.A.). The critical question is not whether the property is real or not, or whether a theft of property is real or virtual, but whether a given act as relates to the property is inside or outside the scope of consent of the parties. As between the game god and the player, the EULA may clearly indicate that the god may alter or delete a given digital object at will. But as between players, one player’s theft of another’s property may well

exceed the scope of consent and thus be actionable in fraud or conversion».411

J. Fairfield’s concept really looks quite delicate and elaborate. Obviously, it can be used in legal reasoning in many cases. Nevertheless, we will put forward two interrelated critical arguments.

The first critical argument stems from an understanding of the author’s further text. Thus, J. Fairfield distinguishes between the cases of purely “in-game” actions and actions that are connected with any external practices. For example, player A can threaten player B in the real world, and can threaten player B’s avatar in such a way that this action is as if carried out in the virtual world. In the real world, we can give a legal assessment of such an action, in the virtual world – it depends on what the player has agreed to. However, the author is developing an example. In the real world, player A can grab a real knife and attack player B physically. Such an action is obviously a criminal offence under the general rules. In the virtual world in PvP mode412 the same player can do the same virtual actions with player B’s avatar. Here you can talk about agreeing to the rules of the game.

But we say that the situation is resolved through the application of the principle of consent, precisely because we implicitly assume that this principle can be applied, and also because in the former case consent will not “correct” the situation. Similarly, J.

411Ibid. PP. 834–835.

412“Player versus Player” is a game mode that involves a battle between players (avatars of players), not a battle between players with objects of virtual environment controlled by software algorithms.

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Fairfield further cites the example of hacking into the account of player B, noting that hacking is “outside of the game”. But in order to make this statement, we still need to understand where the line between in-game and out-of-game activities is.

The second critical argument leads to similar conclusions, but is based on the real law. It is known that the consent of the parties in the U.S. can be used as a legitimizing factor more often than in other countries. But what about other jurisdictions, where the consent of the victim may not always be the legitimizing (and legalizing) factor in determining the action? Obviously, for example, the question of criminal liability of a person making extremist statements about a particular user online will not be resolved in Russia in such a way that the fact of the listener’s consent will be taken into account.413 A counterargument easily presents itself: even if the “theory of consent” in the narrow sense of the word is not applicable in many jurisdictions other than the U.S., why not reconstruct the entire legal concept of the magic circle, relying on high-level generalizations and fictions? For example, based on the fact that a multinational people, acting as a sovereign, has defined its consent or dissent through the legislation in advance? The problem is that such an approach will still be fundamentally limited – it will not rid us of cases of potential or perceived absurd interpretation of the law, because even so, we will be left alone with the still ambiguous legal texts that still contain ambiguous concepts. The argument of consent will not help us if the right (as we believe, by mistake) will be applied to the player, “extremist” statements of which, say, about the game race of orcs will serve as a basis for criminal responsibility in accordance with Article 282 of the Criminal Code of the Russian Federation.

At the same time, however, Fairfield’s concept of course has a significant advantage

– “social contract” (in the terminology of J. Stenros), which partially overlaps with the

413 Unless it is counted – because such cases involve a public interest – that the “listener” is the State and that consent (or dissent) is expressed in law. However, there is nothing to exclude the possibility of building such a model, but it is beyond the immediate scope of the present study. Please see further discussion.

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legal contract on the game, can be used as an explicit way to create or exclude the sociocurrency value of external referents of value (for more details on these concepts, see § 6 of Chapter 2 and Chapter 3 of this study).

The third approach is “topological” or “object-oriented” (there are nuances and differences in these two variations). The essential difference between such an approach and the two previous ones is that it is distracted from individual cases of communication between subjects and is explained by inter-subjective communication. As we have noted earlier, J. Stenros extends the physics of the magic circle from a specific place (“topos”) to a time interval (example with the “The Fool’s Day”) or even a specific object (example with game production). We believe it is reasonable to separate the first case from the last two and, in fact, to formulate two variations of the approach – the “topological” one, which implies an emphasis on the place as a concept from rather the area of physical reality or, conditionally, psychophysical reality (i.e., as a real place is experienced and understood by the subjects of social communication), and the “object-oriented” one, which implies an emphasis on the object of social relations. To spread the metaphor of a place for a certain day, saying that it is a kind of “place in time” seems to us to be somewhat redundant, especially since such a case is not fundamentally different from the case with game production. Both fit perfectly into the ideas about the object of social relations. At the same time, the topological approach seems to be the least convincing due to the same reasons why it was criticized earlier by M. Consalvo within the framework of game studies. Let us first turn to this criticism.

While the methodological potential of the magic circle concept as such seems very promising, attempts to develop and apply it in the narrow field of multiplayer computer games have given several grounds for criticism, and this mainly concerns the topological interpretation. It should be noted that, in our opinion, the currently known objections to the concept in question do not deprive it of its fundamental value, even if the criticism looks

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convincing and can be agreed with in general. The fact is that the concept of the magic circle cannot really be considered as a special concept within the framework of game studies, while its critics develop counterarguments to it from this perspective. In addition, the concept of the magic circle is mainly criticized in the framework of culturological and game studies, and it is crucial that they have a different subject of study which varies from the subject of legal science. Let us consider the work of one of the most popular researchers and critics of the magic circle in the West, Mia Consalvo “There is No Magic Circle”, published in 2009.414

The author begins to consider the problem of the magic circle with an example of the situation in the game world of multiplayer online role-playing games Final Fantasy XI Online, in which players angrily condemn the behavior of one of their “colleagues”. The reason for resentment of other players was that the subject of criticism was seen trading virtual gold for real money, which did not correspond to the principles of the game, but the offender did not receive sufficient punishment.415 According to the author, cheating, as defined by Internet slang,416 is a good perspective on the magic circle issue, allowing us to understand the limitations of the concept.

As a starting point for criticism, M. Consalvo takes J. Huizinga’s representation from the 1930s, based on the idea of

«a magic circle for play, which bounded a space and set it apart from normal life. Inside the magic circle, different rules apply, and it is a space where we can experience things not normally sanctioned or allowed in regular space or life».417

414See: Consalvo M. There is No Magic Circle [Electronic resource] // Games and Culture. – 2009. – Vol. 4, Issue 4. PP. 408–417. – URL: http://journals.sagepub.com/doi/10.1177/1555412009343575 (accessed: 02.07.2018).

415Ibid. PP. 408–409.

416There is a clear methodological parallel with L. Fuller’s approach about the necessity to study pathology in law and M. Klatt’s that if the use of words in a normative context can be systematic, it implies the possibility to use them semantically incorrectly.

417Ibid. P. 409.

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The methodological value of the analysis of the players’ dishonest actions in relation to the maintenance of the integrity of the gameplay, according to M. Consalvo, stems from the fact that dishonest players, in fact, are different from the real “spielbrechers”418 in Huizinga’s terminology.

«…the spoilsport… rejects the rules entirely (e.g., sweeping the chess pieces onto the ground) and thus destroys the magic circle. The cheater wants you to think you are both playing the

same game but in actuality you are not. The spoilsport simply wants to destroy the play/game experience ».419

For our part, we note that the difference between these two approaches may not be logically obvious at all, because a dishonest player cannot but disrupt the gameplay at least by his own actions, but let us see what approach the author suggests next.

Quite rightly, M. Consalvo says that

«…[such a] conceptualization of the magic circle was developed in the 1930s, long before the advent of digital games (emphasis added – V.A.), by a theorist with particular views of what did and did not constitute play»,420

and offers to study the phenomenon of unfair play in modern games more carefully and deeply. Thus, the author also draws attention to that in game researches the concept of unfair play should be studied in a context of the concept of the isolated game space. However, even here the times have changed.

«When Huizinga (1950) wrote about the magic circle, our sense of space and place was radically different from what it is now. In suggesting a place ‘‘set apart’’ from everyday life,

418The original text by M. Consalvo uses the term “spoilsport”. We consider it right to use in this context, which implies an adapted translation, the term suggested by J. Huizinga, which seems to us to be more in line with the tradition of transliteration into Russian, that is a “spielbrecher”, literally, “one who breaks the game”.

419Ibid.

420Ibid.