Материал: disser_arhipov

73

phenomenon under study, designated by the term the “semantic limits of law”, is a phenomenon that is actualized at the present stage of the information society, the culture of which is characterized by the dualism of the fictional (artistic, virtual, simulative, unserious) and the actual (documentary, real, genuine, serious), the epitome of which are the contexts of virtual games. On the other hand, in the light of such a methodology, the metaphor of “language game” can be applied to law itself since it is a communicative practice constituting the institution of a subjective-objective social reality. The explanation of the semantic limits of law is very organically built on such a methodology, which is based on the linguistic turn of the post-classical type of scientific rationality and social constructionism. Thus, it is natural that law itself can be considered as a [language] game. In this very view, despite some, perhaps, apparent controversy stemming from a conservative aesthetic and ethical position, a model of description of law, – and we have to emphasize that it is one of the possible models, – suggesting reliance on game metaphors seems to be quite workable. Moreover, oddly enough, such experience of understanding the legal reality has already encountered in the socio-humanitarian discourse in general, and the philosophy of law in particular in precisely this direction, as demonstrated in this study.

§ 2. Legal collisions of game activity in digital environment as the main premise of the research

Game activity in digital environment,81 not related to gambling in the legal sense,82 and the resulting legal collisions define the starting point of this study. In the present

81 Here, in the context of this paper, we refer to the hypothetical and current legal conflicts that arise in the interaction between players and game companies, as well as between the players themselves, without the involvement of game companies, primarily in relation to various “virtual worlds” and multiplayer online role-playing games, as the products of the digital entertainment industry of this genre most manifests the feature of persistence of the virtual world, understood in a narrow technological sense. Examples are meant from the classical object of social and humanitarian sciences – Second Life – to

74

paragraph of the study, we will focus on the most relevant aspects of the problem, in order not to repeat (apart from a few fundamental things) the provisions and theses relating to legal research in the field of games that have been developed by the author since 2011.83 It should only be noted that interest in this issue is only growing, as evidenced by recent publications that reflect ideas that are essentially in tune with those presented by the author of this study more than five years ago, which can probably only be welcomed in terms of legitimizing the problem in the scientific discourse.84

In our opinion, both practical and theoretical85 the problems of multiplayer online games with a permanent (persistent) environment represent a very effective snapshot of the legal issues of the digital era and the medial turn86 – not only “so far” (the main stage of research took place during the first decade of the XXIst century), but also “especially now”, since it is precisely the rethinking of the general socio-cultural significance of this problem that makes one think that it is probably not only about games, but also about changing social practices in the context of the medial turn as a whole. This point of view is based, among other things, on the assessment given to the methodological potential of

modern projects such as The Elder Scrolls: Online, as well as poorly researched, but very promising for game studies classic text games – Achaea, Aardwolf, etc.

82Legal criteria for gambling in Russia and abroad suggest a significant difference between gambling and nongambling, both immersive and cyber-sports. The distinction between gambling and non-gambling is explored in more detail in the next paragraph, as these phenomena remain in many ways in the same context of discussion and criticism. Interestingly, the law has long developed approaches to gambling, but not yet to modern computer games, and from time to time legal collisions are caused by the mismatch between the approaches applicable to gambling and the nature of relations arising in connection with immersive computer games.

83This implies, in particular, the following publications: Arkhipov V.V., Virtual Worlds in Legal Studies. An Inquiry into the Subject of Research / 25th IVR World Congress of Philosophy of Law and Social Philosophy Paper [Electronic resource] // Social Sciences Research Network. – [Site]. – URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117762 (accessed: 04.02.2019) and Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies // Proceedings of Higher Education Institutions. Jurisprudence. 2013. No. 2. P. 93–114, and also later works referred to in this research.

84See e.g.: Baturin Y.M., Polubinskaya S.V. What Makes Virtual Crimes to Be Real // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2018. Vol. 13. No. 2. P. 9–35.

85In practice, these problems are periodically manifested, but it is impossible to say that the number of cases and their importance for the economic and socio-cultural space are so great that such a state of affairs could be considered critical for the entire society. At the same time, we adhere to the thesis that this does not cancel the fundamental importance of the example for the digital age and society in the conditions of the medial turn.

86More detailed justification for this thesis was presented in the following publication: Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies // Proceedings of Higher Education Institutions. Jurisprudence. 2013. No. 2. P. 93–114.

75

legal collisions in the digital environment by leading contemporary legal theorists, including R. Posner.87

For simplicity, but without losing meaning, we can use the term “virtual world” to reflect the area of social practices that are the main subject of the present paragraph. In the context of information technology, the term refers to the relatively constant environment simulated by computer media in which users interact with each other through separate virtual representations (“avatars”). Thus, one of the first contemporary researchers of virtual worlds in the legal context, B.T. Duranske, noted that all virtual worlds are computer-simulated spaces (environments), all designed to be “populated” by avatars, all allow interaction between users, many ensure the preservation of user-generated content (“UGC”), many have economic systems.88 The history of virtual worlds goes back for more than a few decades, and the first significant ones appeared at the turn of the 1980s.89 From the perspective of both theoretical sociology and game studies, it may be of interest that games develop a separate context of communication that allows us to think about the qualification of relationships as a “virtual social reality”, just as social reality itself is conceptualized in social constructionism.90 In such circumstances, certain artifacts in the virtual world are beginning to be perceived by users as valuable enough to spend real resources on them. This has also created an economic model for game products, with the

87See e.g.: Au W.J. Second Life of Judge Richard A. Posner [Electronic resource] // New World Notes. – [Site]. – URL: https://nwn.blogs.com/nwn/2006/12/the_second_life.html (accessed: 04.02.2019).

88Duranske B.T. Virtual Law. Navigating the Legal Landscape of Virtual Worlds. – Chicago, Illinois: ABA Publishing, American Bar Association. 2008. P. 2.

89See: Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies. P. 96–97.

90Arkhipov V.V. Virtual Law: Main Problems of the New Direction of Legal Studies. P. 98. This line of thought was developed in more detail by the author in the work prepared for participation in the 25th World Congress of the International Association of Philosophy of Law and Social Philosophy, see: Arkhipov V.V., Virtual Worlds in Legal Studies. An Inquiry into the Subject of Research / 25th IVR World Congress of Philosophy of Law and Social Philosophy Paper [Electronic resource] // Social Sciences Research Network. – [Site]. – URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117762 (accessed: 04.02.2019).

76

possibility of “selling” virtual content for real money to users by game companies, as well as the “[mostly] grey91 market” of trading virtual objects between the players themselves.

The emergence of a relatively real economic component of virtual legal relationships has given rise to three interrelated questions. First, whether and when “real” law can be applied to the game, and if so, in which cases. Second, how to qualify “virtual property” from a civil law perspective. Third, if we allow for the possibility of “real” law interfering with “virtual property”, to what extent and in what cases “real” law may interfere in other areas of virtual relations. The context of these questions can be clearly seen in the abstract to the book “Virtual Justice” (2010)92 by G. Lastowka, a professor at Rutgers University School of Law (now, unfortunately, deceased), one of the key researchers of the legal aspects of virtual worlds:

«Tens of millions of people today are living part of their life in a virtual world. In places like World of Warcraft, Second Life, and Free Realms, people are making friends, building communities, creating art, and making real money. Business is booming on the virtual frontier, as billions of dollars are paid in exchange for pixels on screens. But sometimes things go wrong. Virtual criminals defraud online communities in pursuit of real-world profits. People feel cheated when their avatars lose virtual property to wrongdoers. Increasingly, they turn to legal systems for solutions. But when your avatar has been robbed, what law is there to assist you?»93

Let us look at examples of legal conflicts of play in the digital environment, but we emphasize that for the purposes of this study we need to identify a general theoretical problem, of which they are a representative example. The questions of approach and legal qualification of game relations and virtual property in the narrow sense of the word are interesting for us only in that part, in which they serve to develop the main content of

91 “Grey” – since user agreements most often contain prohibitions for players to make “transactions” with virtual

objects.

92See: Lastowka G. The New Laws of Online Worlds (Annotation) [Electronic resource] // Yale University Press. – [Site]. – URL: https://yalebooks.yale.edu/book/9780300177749/virtual-justice (accessed: 04.02.2019).

93Lastowka G. The New Laws of Online Worlds (Annotation) [Electronic resource] // Yale University Press. – [Site].

–URL: https://yalebooks.yale.edu/book/9780300177749/virtual-justice (accessed: 04.02.2019).

77

the research. Therefore, the present paragraph will not present the whole range of cases related to the relations within the framework of computer games, but only certain illustrative examples, otherwise we run the risk of departing from the main thesis of the present work, which is that in the conditions of the medial turn (which is reflected in the full and perfect sense of the word in the virtual relationships in games), the universal problem which can be defined as the problem of the semantic limits of law may and should be reconsidered.94 For this purpose, we will refer to several representative cases from the Russian legal system, followed by brief references to the development of legal practice in this area in foreign countries.

One of the first cases in Russia to address this issue was a claim by a user who had been blocked in several online games because of a suspected violation of the rules of the game. The user believed that his rights as a consumer had been violated, but the court found it necessary to apply the provisions of Chapter 58 of the Civil Code of the Russian Federation (“Conducting Games and Wagers”). It should be reminded that Item 1 Article 1062 of the Civil Code of the Russian Federation provides that claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, except for claims of persons who took part in games or bets under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of the games or bets, as well as claims specified in Item 5 of Article 1063 of the Civil Code of the Russian Federation (the claims related to the failure of the organizer of the games to comply with the obligation to pay the prize). The application of this article, which is aimed at in-game events proper, be it gambling, sports and other, including multiplayer computer games, is doubtful, but this is the essence of the

94 As much as the author would like to turn this research into a book similar to “Virtual Justice” by G. Lastowka or “Virtual Law” by B. Duranske.