What inspired you to organize “The State of Play: Law, Games and Virtual Worlds” conference?
Noveck: These 3-D graphically immersive environments represent the interface of the future, the next frontier of Cyberspace. We wanted to understand how this is changing our understanding of Cyberspace, and what we’ve come to understand over the last ten years to be cyberspace law. It’s also a very opportune time to examine some of the legal issues relating to ownership of intellectual property and property within these virtual worlds.
We also wanted to examine whether we could think about games as a good space to use as test-beds for trying out new legal roles, for trying out new political institutions, for seeing how people interact with each other in a way that’s much more cost-effective than trying them out in the real world.
I was particularly fascinated by the question of why people in their own communities, in real space, are increasingly dropping out – they don’t vote, get involved or participate. Then with their free time they are joining these other communities. People are doing precisely the things in virtual worlds that they are not doing in real space. An interesting question is why this happens, and what we can learn from virtual space about how to reinvigorate community in real space.
More importantly, I think, is whether courts are going to protect the rights of characters in game spaces. I think they should protect your rights of ownership in your character. Especially as we move from the use of virtual worlds not simply as games but integrated more into business and work. In the same way that now we have an email address, we’re going to start to create characters in virtual spaces and we’re going to care about them the same we do about our identity in real space. I think we’re going to see more of a move toward extending identity into the virtual space, and the law will come to protect some form of identity within the virtual worlds.
You do a lot of work on information and technology law and policy, in particular technology and civil liberties. What are the main issues facing policy makers today?
Noveck: One is ensuring adequate protection of the public domain and the ability of people to communicate ideas, share information and share and trade cultural assets in the digital world. We have a very careful balance that we’ve achieved between copyright – the right of creators to monopolize and control reproduction and distribution of their work as an incentive for creativity – and the First Amendment.
We are now at risk of upsetting that balance. Not simply through law but also through technologies that are being used to create new schemes of privatization of information that vastly exceed this balance. Owners of information and content are effectively locking down content and not only attempting to control how it’s reproduced and distributed but how people use the information. This is upsetting this balance and the importance for First Amendment purposes of maintaining free information.
The second thing is encouraging civic innovation and the design of software to support democratic purposes. We should design tools that actually promote what citizens want to do, and that’s not the e-government systems that we’re building. So we need to think about what kind of uses we want to make of the technology, and how this new interactive technology is making new forms of participation possible.
How do you see government and industry working together to address these challenges?
Noveck: I think government and industry have to work together to think about how to put values back into the design process, particularly the design of technology that’s used by the public sector. For example, the U.S. government, like other governments is now working to move all of the federal agencies online, to put the whole administrative apparatus of government into one web site. By law citizens have a right to participate in how agencies do their work. The way that is reflected in the current design of the new electronic systems is a box for your name, a box to type a comment and a send button.
From a design perspective this is a disaster. It doesn’t promote the kind of accountable, useful participation that anyone who understands the process would actually want to promote. This is a place in which government and industry should work together; where industry understands the state of art of technology and could apply this knowledge to bring about civic innovation – to think about how our legal system interacts with technology and how through better design we can bring about more just results.
What are some of the biggest challenges facing lawmakers who are trying to regulate e-commerce? Are there loopholes that need to be closed?
Noveck: One is how information is treated on a global scale. There are tremendous disparities and distinctions over questions like how we regulate advertising, how we regulate jurisdiction and the sale of goods in cyberspace, how we handle the treatment of personal information as used in transactions, and the ability to create and use information stored in databases. We are still struggling to come to terms with a defined and workable solution that respects European and American conceptions of privacy. Europe, the U.S. and Asia have fundamentally different underlying legal traditions that have translated into different structures for regulating information and content and we’re going to see for a while that this is going to increase costs for global e-commerce providers. It’s also going to become more vexing as we see people doing business within virtual worlds or the sophisticated cyberspaces where people can interact and yet which don’t exist in any jurisdiction.
The second issue is the disparity and inconsistency about how intellectual property is treated, who owns it, who has the rights to specific information. There’s a race to lock down intellectual property as a way to extract as much profit from it as possible, and people aren’t really certain of the extent to which their intellectual property will be protected in different jurisdictions. These loopholes or inconsistencies are not necessarily a bad thing in that the disparity may encourage innovation.
In what ways should lawmakers be addressing Internet security issues, in particular how to punish hackers and virus producers?
Noveck: First we need a much greater degree of transparency and information sharing within the industry about how our critical infrastructure is managed. Much of the technology of which the lifeblood of our economy depends is in private hands. We must look at how we are sharing information, and whether companies in an interest to protect their proprietary interests, are in fact jeopardizing critical infrastructure within this country. Therefore, the industry that manages, owns and runs this infrastructure has a responsibility to give us a better picture of the threat posed.
Also, I think we need greater global cooperation in the criminal investigation and prosecution of people who engage in malicious destruction of property and the destruction of computer systems. Clearly this should be punished, but we have to better understand how it’s happening and who’s to blame.
What is your vision of the perfect marriage of cyberspace and democracy?
Noveck: We now have technology creating new opportunities to realize participatory self-governance and that is where groups can come together to create legitimate solutions to problems. They can even use networking technology where groups don’t have to come together, the network itself creates the group and is able to aggregate the decisions of many disparate individuals into the legitimate decision of the group. The vision is to use the tools of cyberspace, virtual worlds and new interactive technology to promote and reinforce greater participatory and collaborative practices in both real and virtual worlds.
When do you see this happening?
Noveck: It’s started already – we’re getting there in a couple of different ways. There are a number of people around the world who are engaged in the process of building new tools designed particularly around civic values to realize these new forms of participation collaboration. I don’t think it’s an organic process that will take place of its own accord. Public goods like democracy, education and culture need to be cultivated and promoted through legislation, case law and industry’s leadership in technology design. This is something that could take place in the next few years, but only if we’re vigilant about it and if government articulates the demand and industry takes up the call.