Saturday, August 05, 2006

Cyberspace Law Committee Opening Session

Our first Committee meeting will begin in 15 minutes. Blogmaster and Chief Meeting Correspondent Michael Fleming is off at another meeting for an initiative about which he will fill you in later. That leaves me to try to report on our guided discussion. Our discussion topics:

Prof. Eric Goldman will lead a discussion of the various legal issues that arise in the blogosphere – employment, First Amendment, securities, IP, privacy, election law and the list goes on. In advance of this session, you may want to visit Prof. Goldman’s blog for a compilation of blog legal issues.

Nick Abrahams, a partner in the Sydney, Australia office of Deacons, will lead a discussion about multi-player on-line games. Have you figured out why anyone pays real money for “assets” that exist only in a game? An economist at Indiana University actually studies this stuff: Edward Castronova

And a late addition -- Judie Rinearson will be presenting an update about recent stored value card developments.

If you are planning to participate in the meeting in cyberspace, please post your comments, and we'll keep track and respond as the discussion continues.


Candace Jones said...

If anyone is out there, please identify yourself and add your contribution by comment.

Candace Jones said...

Prof. Goldman thinks blogs are just another form of human communication, and current law (particularly publishing law)fits them relatively well.

What's unique or different about blogs that may require some new thinking?

1. Blogging has lowered the barrier of entry to publishing. As a result, a whole host of people who don't know about the law or responsibilities associated with publishing are now getting a lot of exposure. Also, it's easy to replicate what's blogged.

2. Are bloggers reporters? Are they entitled to the protection of shield laws?

3. Joint/guest blogger issues -- are they partners? employers? independent contractors? Who owns? Who has liability?

Candace Jones said...

Nick Abrahams, who practices in Australia, perceives particular difficulty in obtaining remedies for defamation. Bloggers may not have resources that could satisfy claims -- assuming they could be found. It may not even be possible to get a retraction.

Eric notes that you don't really even have leverage over a third-party blog host because they aren't directly liable for the defamation.

Michael Geist takes a view contrary to Nick. He thinks its very important to insulate bloggers from liability, particularly for comments to original posts. Otherwise, their ability to speak is inhibited. Bloggers shouldn't have to be put in the position to decide what's right or wrong about posts on a blog and they need some protection so that speech is not chilled.

Candace Jones said...

Eric's wrap-up:

Lots of good behavior in the blogoshpere. Also some bad behavior.

Hard part about the discussion -- no rigid definitions of blog or blogger, e.g., for purposes of reporter shield law -- so people spend a lot of time talking past each other.

Same discussion could have applied at some time to usenets, websites, etc. There will be some unique aspects, but maybe not as much as we might think.

Action items: Some members have worked on an article for Business Law Today highlighting some of these issues.

IP Subcommmittee may be working on a project. Stay tuned.

Neil A. Smith said...

I am participating from San Francisco, and can say that blog participation will not replace attendance at a live meeting.. Not only do I miss the surf, but also the flaver of the debate. I will resist the tempatation to defame anyone, in view of the potential liability.
What liability does a blogger have for reproducing by cut-and paste in, with attribution, copyrighted material (text or pictures or artwork) on the web? What about the blogger providing deep links directly to content on the web, with critical comments about the linked to material?

Neil Smith
San Francisco

Note my contact information. I am a partner at Sheppard Mullin in San Francisco

Neil A. Smith
Sheppard Mullin
Four Embarcadero Center
San Francisco, CA. 94111
Phone 4157743239
Fax 4154343947

Candace Jones said...

Nick is now talking about massively multiplayer online games. Some statistics: US$2 billion annual license fees; US$160 million trade in virtual assets ("game gold"); average age of players -- 25-35. In China, a group of players organized their avatars at a location in a MMORG to stage a protest -- 10,000 people participated.

South Korea is leading the way in legal issues. They have enacted legislation, for example, protecting virtual assets.

Candace Jones said...

What's the right analogy? Airline miles? Airlines can change the rules any time, just like game developers.

Is there real value that creates real economies and real legal issues?

Candace Jones said...

Judie's now giving us an update about stored value cards. Prepaid cards (not debit or credit cards)such as gift cards.

Simon Mall case (New Hampshire, Connecticut): involves prepaid cards subject to expiration and service fees. Regulators said the cards were not really bank cards.

New Hampshire court just decided the Simon Mall cards are bank cards (issued by Bank of America), and states were preempted from regulating the terms of the agreement for the cards. Also, it didn't matter that BofA let Simon Mall sell the cards. They were still considered bank card products subject to federal regulations.

Non-bank issuers would be subject to state regulations, such as restrictions on expiration and fees.

The other hot payments issue is anti-money laundering. Increased concern about use of prepaid cards to smuggle and launder money (although a fair number of skeptics who don't think this is a significant issue because cards can be tracked and turned off).

Roland Trope said...

Many thanks to Candace for posting the discussion from the meeting for those of us far away, but keenly interested in following it. Suggest that we consider creating podcasts of discussino in future to address the need, highlighted by Neil Smith, to capture more of the debate.

Jeff Aresty said...

How do you resolve disputes in virtual worlds? Online dispute resolution technology is being deployed in online games and virtual justice systems are beginning to emerge - at least that's what I'm told by the gamers and the people at the University of Massachusetts ( who are following these issues.

In other words, will there ever be a virtual justice system to resolve disputes arriving from conduct in virtual worlds?

Candace Jones said...

For those of you interested in virtual worlds, Nick Abrahams has provided a paper as part of the materials for today's Cyberspace Committee program. Remember that Business Law Section program materials are available online ( to Section members.

Also, Eric Goldman has written on the topic of virtual worlds. Eric's essay is available at

For reference, I clipped the Abstract: "This Essay considers the rights of virtual world providers to terminate their customers or otherwise control their worlds. The Essay argues that virtual worlds are not meaningfully different from other online environments and therefore do not warrant virtual world-specific legal rules. The Essay also explains why society benefits by letting virtual world providers decide how much control they want to exercise over their environments."