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Lord Linden

James Grimmelmann, Associate Professor of Law at New York Law School, published a short opinion piece in the online version of Yale Law Journal, likening Second Life to a feudal society. He purports that the relationship between virtual world users and its developer is exactly congruent to that of a medieval tenants and their lords. The article explains:

“We can [describe] a user’s interest as seisin rather than as ownership. A tenant seised of land had sworn homage to the lord from whom he held. In exchange, the lord symbolically delivered the tenant into possession. Thereafter, the tenant owed the lord various services and feudal incidents, and in return the lord was obliged to defend his possession against outsiders to the relationship. Every element of this system maps cleanly onto Second Life. A user swears homage by clicking “I agree” to Linden’s terms and conditions; Linden delivers her into possession by changing an appropriate database entry. She owes tier fees in place of feudal incidents; Linden defends her possession via software-based access controls.”

When one hears “feudal” they automatically think “how awful!” Grimmelman, however, believes that this is not such a bad thing, and that “this analysis of the feudal dimensions of Second Life should make us optimistic about the legal future of virtual worlds.” The feudal system makes sense for now, and as virtual worlds grow and begin to interact more with the “offline world,” modern property rights will organically catch up online, too.

While I agree with Professor Grimmelmann’s interesting analysis, I am not so sure about his conclusion. The pace of growth of virtual worlds is much faster than what the law can catch up with (I think it is safe to say that technological breakthroughs and their applications always precede the laws built around them). Moreover, virtual worlds interacting with the traditional offline world will not happen in some abstract future, but is happening all the time, right now. Legitimate business activities in virtual worlds need to be protected by the law with the same agency that offline businesses are afforded, and Linden’s Terms of Use can’t be used as a magic shield that protects them from obvious breaches against its users.

For example, let’s say I rent a retail store on 5th Ave and a giant pipe in the ceiling bursts, damaging my inventory and causing a major loss of business. The landlord in this case is clearly responsible, and he or his insurance would pay for the damages. Now what if I operate a similar retail business in Second Life, and the servers go down without warning? Clearly the situation is analogous, but the protection of the business is completely off-kilter. My guess is that the legal system will only start paying attention to these issues when the money involved reaches a much higher scale, at which point, once again, it will be a bit too late.