Материал: disser_arhipov

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real value of the virtual property, the court did not have any fundamental doubts about the possibility to apply the “real” law in this case. In particular, since the defendant himself positioned the mechanics of the virtual world in such a way that it had allowed him to have some property rights in virtual property.100 In turn, in the case of Blizzard Entertainment (copyright owner of World of Warcraft), that was heard in Berlin in 2014,101 the court found it possible to apply consumer protection law to the relationship between the game company and the players, assessing the validity of certain clauses of the user agreement. However, the court had no particular difficulty in applying the substantive law to the virtual relationship, since the aspect in which the case was considered feasible.

Nevertheless, we emphasize that all the above examples relate to the relationship between game companies and individual players (users). Unfortunately, the court practice has so far,102 contains no known cases of disputes between users themselves, whereas the issue in question would probably be fully addressed. It is possible that such disputes may no longer arise in the case of former virtual worlds, since technologies, in particular, and information products in general, are changing very rapidly. Nevertheless, let us try to theoretically simulate another possible direction of legal conflicts.

At first glance, “virtual property” (understood in the narrow sense of the word as objects “existing” in virtual worlds and representing value for users within the framework of imitation of the economic system – houses, mounts, weapons, currency, etc.) is a special social institution related to game practices. However, it is on the example of virtual property that the problem of the semantic limits of law, which is less obvious in the context

100Memorandum of May 30, 2007 / Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D.Pa. 2007) [Electronic resource] // U.S. Government Info Portal. – [Site]. – URL: http://www.paed.uscourts.gov/documents/opinions/07D0658P.pdf (accessed: 20.02.2019).

101See: Ostanina E.A. Grounds for Joining a Multiuser Online Game – Contract with the Participation of Consumers [Electronic resource] // Law in the Internet: Collection of Articles / Ed. by Rozhkova M.A. Moscow: Statute, 2018. – Access from the legal system «ConsultantPlus» (accessed: 02.10.2018).

102From the point of view of nonprofessionals, an ethical assessment of the interest of lawyers of this kind is probably akin to an ethical assessment of the interests of a pathologist who is eager for new knowledge in his or her professional field and who regrets the lack of empirical material.

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of “classical” artistic creation or in the space of unserious communication, is most directly exposed. Moreover, it is the problem of virtual property that clearly affects the special legal aspects of the problem, to which this study is devoted.

Let us consider this implication on the famous example of one of the first really mass multiplayer online role-playing games Ultima Online, which turned twenty-one years old on September 24, 2018. This game has largely predetermined the further development of the interactive entertainment industry. The game belongs to the genre of graphic MMORPG. It was not the first in this genre; however, it was included in the Guinness Book of Records as the first game of its kind, which numbered one hundred thousand players in 2008. Four years later, in 2012, she was listed as one of the 100 greatest computer games in history by TIME magazine. The examples of the game’s material are relevant for the social and human sciences in general, and for law in particular.

«Architectural properties of the game, including the absence of any guarantees laid down by game mechanics on certain servers with the oldest, most stringent rules in terms of absence of ensuring the inviolability of virtual property, clearly contributed to this state of affairs. Note that most of the new multiplayer role-playing games after Ultima Online until now, mainly provide a kind of “technical inviolability” of virtual property, prohibiting arbitrary actions with the property of other players at the level of the software code... Now, this trend may again be replaced by a model of “open” in this regard virtual worlds, but new projects with similar mechanics are mainly experimental in nature. In the format of the classic rules of the game Ultima Online objects of virtual property exist not only in the inventory of players, when they are removed from which they are “destroyed”, but as it were objectively in the virtual world: if a player throws the item out of his inventory, then conditionally the same item can be, for example, picked up by others.103 At the same time, the market for exchanging virtual objects in the game for “real” money is formed in parallel, which eventually became the reason for a completely non-standard situation: inside the game the object can be stolen by one character from another, and it is allowed by the rules of the game, but such an object could be bought for “real” money. Accordingly,

103 This feature of mechanics is important because in the virtual world it contributes to the imitation of both the objectivity of virtual property and the illusion of “actual dominance” over [virtual] things.

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there is a contradiction: the rules of the game allow for “theft” in the virtual world, but such theft allowed in the game actually leads to some damage in the real world».104

This example also makes us wonder if and how players in the virtual world can be qualified in any way in terms of real law, and if so, how.

Consideration of virtual property issues already provides good food for thought on the extent to which the right can reasonably be applied to the virtual world. Nevertheless, it is also possible to take another step towards building high-level theoretical generalizations. By moving away from the industry specifics of virtual property problems, it is possible to change the angle of consideration and reformulate the problem. Indeed, it is quite possible to look at the situation differently and to put the question as follows: under what conditions, legal texts can be interpreted in such a way that the scope of possible meanings will include social relationships mediated by virtual reality (and, let us note in advance, in the broad sense of the word)? This approach to the question of the semantic limits of law, which is caused by the quite straightforward problems of virtual property, is very promising for the theory of law as a whole, the objectives of which now, in the context of the medial turn, should be partially rethought.

Indeed, the semantic limits of the law are often understood intuitively, including by law enforcement officials themselves. The practical problem, as already noted, is the lack of a developed legal position on how to solve this problem, resulting from theoretical generalizations of a high level, since the problem of the semantic limits of law is a problem of legal ontology. Thus, one of the mass media materials reflects examples from Roskomnadzor employees, which also relates to the context of multiuser games:

104Arkhipov V.V. Premises of the Concept of Semantic Limits of Law in the Context of Modern Information Culture

//Information Space: Ensuring Information Security and Law. Collected Academic Papers / Under edition of T.A. Polyakova, V.B. Naumov, A.V. Minbaleyev. MOSCOW: IGP RAN, 2018. P. 279–280.

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«We once received a court order to block a site with information about making dynamite in Minecraft. The site said that if you mix sand and coal, you get dynamite. And you think what to do with this court decision: you can’t execute it and block Minecraft (highlighted by me – V.A.). As a result, we talked to the lawyers and wrote to the prosecutor’s office to ask them to review the decision».105

The decision of the Zavodoukovsky District Court of the Tyumen Region, which is implied in this passage, has already been mentioned on the pages of this study.106 The problem that has been raised in such a seemingly minor matter is, in fact, very serious. In an attempt to rationally explain why it is “impossible to execute the decision and block Minecraft”, there are difficulties.

In terms of positive law, there is no statutory criterion for assessing potentially blockable information in this case. This situation is different from other grounds, such as information related to child pornography or drugs.107 Current law enforcement practice is characterized by the following situation: if any information contradicts the public order in one way or another, but there is no direct basis or criteria for such qualification, it can be blocked by a court decision made after the request of the prosecutor acting in the interests of an indefinite number of persons in accordance with Article 45 of the Civil Procedure Code of the Russian Federation. In reaching its decision, the court de facto enters the area of “penumbra” or “borderline situation” because it relies only on Item 2 Part 5 Article 15.1 of the Federal Law of 27.07.2006 No. 149-FZ “On Information, Information Technologies

tum.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=25808719&delo_id=1540005&new=0&text _number=1 (accessed: 02.10.2018).

107 For this purpose, there are direct criteria established both in Article 15.1 of the Federal Law of 27.07.2006 No. 149FZ “On Information, Information Technologies and Protection of Information Protection” and at the level of subordinate legislation.

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and Protection of Information” (hereinafter, the “Information Law”).108 In such a “penumbra area”, there is obviously some rational reasoning to be implied. In addition, as in the case of Minecraft, the question arises as to the reasonable scope of law in relation to game, artistic and other “unserious” information. Returning to the decision in the example itself, we cannot explain this position by freedom of speech and creativity, or by doing so alone, because we are not talking about these freedoms as such in principle – in some cases, it is clear that such information may be restricted. The fact that information is linked to a “game” in itself also suggests little. On the one hand, it is clear to anyone who has played Minecraft that this game as such is unlikely to constitute a security threat (except for the content of possible communication of unscrupulous users in rare and, perhaps, hypothetical cases). On the other hand, the word “game” is clearly not defined enough to serve as a criterion, because e.g. “Russian roulette” is also a kind of game. Alternatively, card games for money. This example is interesting in that it makes one think about what arguments, among those, which could be used to explain why the court decision criticized by Roskomnadzor’s employee, is wrong. In addition, he points out that the problems faced by the law in relation to virtual worlds may not be limited to a narrow gaming context, but are rather related to the broader context of changing communication practices at the current stage of development of the information society, which will be discussed below.

The significance of the representative empirical material considered in this paragraph is as follows: competition of approaches, one of which implies the possibility of “real” law to interfere in the “virtual” gameplay (including qualification of relations as consumer, consideration of virtual property as other property, etc.), and the other is to exclude such interference (based on provisions that the relationship inside the games is not subject to judicial protection or, for example, on the basis of the licensing nature of the

108 This Item establishes that the basis for inclusion in the Unified Register [of Prohibited Sites] is, among other things, the court’s decision to recognize information disseminated via the Internet as information the dissemination of which is prohibited in the Russian Federation.