RESEARCH HANDBOOK ON THE LAW OF VIRTUAL AND AUGMENTED REALITY
RESEARCH HANDBOOK ON THE LAW OF VIRTUAL AND AUGMENTED REALITY
Woody Barfield dedicates this book to his daughter Jessica, his best friend Bailey, his former students, and the future generations which will spend significant amounts of time in virtual and augmented reality. As always, his wonderful parents are thanked for their support, affection, and guidance.
Marc Jonathan Blitz dedicates this book to his parents, Bernard and Alma; his brothers, Jeff and Andrew; and his wife, Holly, and daughters, Rachel and Gabrielle. He thanks his students and colleagues for the many conversations that have helped him think about how to address the challenges of applying First Amendment and other law to emerging technologies.
Both editors greatly acknowledge Stephen Gutierrez, acquisitions editor at Edward Elgar Publishing for his early support of the project, and throughout. Further, we thank Erin McVicar, Sue Sharp, and Laura Mann from Edward Elgar Publishing for their assistance with the project, and the production team for their work to produce a publication-quality work. We especially thank the authors for producing outstanding and forward-looking chapters and for their professionalism as they responded to our many queries for more information and for meeting deadlines. We also thank our colleagues for the many conversations we had with them on law and virtual and augmented reality and for their contribution to this emerging field of law.
Research Handbook on the Law of Virtual and Augmented Reality
Edited by
Woodrow Barfield
Professor Emeritus, USA Editor, Virtual Reality Journal, USA
Marc Jonathan Blitz
Alan Joseph Bennett Professor of Law, Oklahoma City University School of Law, USA
L1 L1 Edward Elgar
I -J n PUBLISHING
Cheltenham, UK • Northampton, MA, USA
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Edward Elgar Publishing, Inc.
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A catalogue record for this book is available from the British Library
Library of Congress Control Number: 2018946021
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Law subject collection
DOI 10.4337/9781786438591
ISBN 978 1 78643 858 4 (cased)
ISBN 978 1 78643 859 1 (eBook)
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Contents
List of figures
List of contributors
Preface
PART I INTRODUCTION TO THE LAW OF VIRTUAL AND AUGMENTED REALITY
1 The law of virtual reality and increasingly smart virtual avatars
Woodrow Barfield and Alexander Williams
2 Starting up in virtual reality: examining virtual reality as a space for
innovation
Crystal Nwaneri
3 Virtual rule of law
Michael Risch
4 Mixed reality: how the laws of virtual worlds govern everyday life
Josh A.T Fairfield
PART II INTELLECTUAL PROPERTY LAW
5 Virtual copyright
Michael Risch and Jack Russo
6 Trademark law and the right of publicity in augmented reality
Brian D. Wassom, Amber M. Underhill, and Andrew L. Rossow
7 Trade dress in virtual worlds
Jack Russo
PART III ISSUES OF CONSTITUTIONAL AND CRIMINAL LAW
8 The First Amendment, video games, and virtual reality training
Marc Jonathan Blitz
9 Virtual reality, haptics, and First Amendment protection for sexual sensation 275 Brooke Lewis
10 Augmented and virtual reality, freedom of expression, and the personalization of public space
Marc Jonathan Blitz
11 Beyond unauthorized access: laws of virtual reality hacking
Gilad Yadin
12 The law and ethics of virtual sexual assault
John Danaher
13 Criminal liability for intellectual property offenses of artificially intelligent
entities in virtual and augmented reality environments
Gabriel Hallevy
PART IV APPLYING THE LAW TO DIFFERENT APPLICATIONS OF VIRTUAL AND AUGMENTED REALITY
14 Advertising legal issues in virtual and augmented reality
S.J. Blodgett-Ford, Woodrow Barfield, and Alexander Williams
15 Data privacy legal issues in virtual and augmented reality advertising
S.J. Blodgett-Ford and Mirjam Supponen
16 Reordering the chaos of the virtual arena: harmonizing law and framing
collective bargaining for avatar actors and digital athletes
Jon M. Garon
PART V CONTRACT, PROPERTY LAW, AND JURISDICTION
17 Property rights in virtual and augmented reality: Second Life versus Pokemon
Go
Hannah YeeFen Lim
18 Freedom of contract in augmented reality
Scott R. Peppet
19 Law and property in virtual worlds
Wian Erlank
20 Legal jurisdiction and the deterritorialization of social life
Paul Schiff Berman
Index
685
Contributors
Woodrow Barfield served as Professor of Engineering at the University of Washington’s Department of Industrial and Systems Engineering with a courtesy appointment in the Departments of Environmental Health and Civil Engineering. He holds a PhD, a JD, and an LLM; is currently Associate Editor for the Virtual Reality Journal, is a former senior editor of the MIT journal Presence: Teleoperators and Virtual Environments, and was on the editorial board of the Washington Journal of Law Technology & Arts. Further, he was Visiting Professor in computer science at University College, London, and was on the program committee which established the first conference on wearable computers and augmented reality. He also edited the first academic books on the same topics. He is a recipient of the National Science Foundation’s Presidential Young Investigator Award and was an External Fellow for Stanford’s Center for Internet and Society. His writings, which include more than 300 scholarly papers, discuss the law of virtual and augmented reality, and how the law applies to artificial intelligence and to humans enhanced with implanted technologies such as neuroprosthesis and brain-computer interfaces. His most recent books are Cyber Humans: Our Future with Machines and the edited collection Fundamentals of Wearable Computers and Augmented Reality (2nd edition), and he is coediting, with Professor Ugo Parallo, the forthcoming Research Handbook on Law and Artificial Intelligence. In addition, he frequently lectures on systems of the future at Duke University and publishes in engineering journals and law reviews, actively reviews for several journals, serves on various program committees, and gives invited keynote talks and lectures.
Paul Schiff Berman is Walter S. Cox Professor of Law, George Washington University. He is one of the world’s foremost theorists on the effect of globalization on the interactions among legal systems and is the author of more than 60 scholarly works, including Global Legal Pluralism: A Jurisprudence of Law beyond Borders, published by Cambridge University Press in 2012. He was also among the first legal scholars to focus on legal issues regarding online activity, and he is coauthor of one of the leading casebooks in the field. In addition to his scholarly work, Professor Berman has extensive experience in university and law school administration, having served as Vice Provost for Online Education and Academic Innovation at The George Washington University, Dean of the George Washington University Law School, and Dean of the Sandra Day O’Connor College of Law at Arizona State University. Professor Berman has previously served as the Jesse Root Professor of Law at the University of Connecticut School of Law and was a Visiting Professor and Visiting Research Scholar at Princeton University in the Program in Law and Public Affairs. Since 2016 he has served as a Distinguished Visiting Professor at the Queen Mary University of London. He has served on the Organizing Committee of the Association for the Study of Law, Culture, and the Humanities and was cochair of the International Law and Technology Interest Group of the American Society of International Law from 2014 to 2016. Prior to academia, he clerked for Chief Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit and for Justice Ruth Bader Ginsburg of the Supreme Court of the United States.
Marc Jonathan Blitz is Alan Joseph Bennett Professor of Law at Oklahoma City University School of Law. He is a graduate of Harvard University and has a law degree and a PhD in Political Science from the University of Chicago. His scholarship focuses on constitutional protection for freedom of thought, freedom of expression, and privacy law—and especially on how each of these areas applies to emerging technologies. He has written articles on how First Amendment free speech doctrine and/or Fourth Amendment doctrine on search and seizure law should apply to government use, or regulation, of, public video surveillance (using fixed CCTV camera systems, or drone-mounted cameras, or policy body cameras), biometric identification methods, and electronic information systems. His articles also include analyses of the First Amendment status of video gameplay and other uses of virtual reality technology, and his recent work has focused on the intersection of constitutional law and neuroscience and psychology. Prior to entering academia, he worked as an attorney at Wilmer Cutler Pickering Hale and Dorr in Washington DC, where his work focused on telecommunications, privacy law, computer law, intellectual property, constitutional law, and antiterrorism security measures. While working in Washington, he was also one of the reporters for the Constitution Project’s Liberty and Security initiative and was one of the drafters of its Guidelines on Public Video Surveillance.
John Danaher is Lecturer at the National University of Ireland School of Law, Galway, Ireland. He holds a BCL from University College Cork (2006), an LLM from Trinity College Dublin (2007), and a PhD from University College Cork (2011). He was lecturer in law at Keele University in the UK from 2011 until 2014. He joined NUI Galway in July 2014. His research interests lie, broadly, in the areas of philosophy of law and emerging technologies and law. In the past, he has published articles on human enhancement, brain-based lie detection, the philosophy of punishment, and artificial intelligence. He maintains a blog called Philosophical Disquisitions, and he also writes for the Institute for Ethics and Emerging Technologies.
Wian Erlank is Associate Professor of Law, North-West University, Potchefstroom, South Africa. His current and previous lecturing experience takes in the areas of property law, land reform, research methodology, legal skills, and legal writing. He was involved with the creation of the first compulsory three-year language and communication course as part of a legal degree. He is a member of many committees, including Teaching, Re-Curriculation, Research, Ethics (as chairperson), the Student Disciplinary Committee, and the Work Group on Teaching and Learning Technology. He is a board member of the Association of Law Property and Society (ALPS) and an advisory board member of the Young Property Lawyers’ Forum (YPLF), and the South African Literary Awards board (SALA). Additionally, he is a founding member and treasurer of the South African Association of Intellectual Property Law and Information Technology Law Teachers and Researchers (AIPITL). Finally, he is a member of the Academy of Science for South Africa’s Committee on Scholarly Publishing in South Africa (CSPiSA), a member of the Scholarly Publisher Editors’ Forum, and a Fellow of the European Law Institute (ELI).
Josh A.T. Fairfield is Professor of Law at Washington and Lee University. He is an internationally recognized law and technology scholar of digital property, electronic contract, big data privacy, and virtual communities. He has published articles in top law journals, as well as the New York Times, Forbes, and the Financial Times. He is a Fulbright grant recipient and member of the American Law Institute.
S.J. Blodgett-Ford is Member and Chief Privacy Officer, GTC Law Group PC, and Adjunct Professor, Boston College Law School (Privacy Law and Mobile App Development), CIPP/US. Blodgett-Ford focuses on intellectual property strategy and transactions, mergers and acquisitions, and data privacy and security, and was previously General Counsel, Tetris Online, Inc. and Senior Manager, Intellectual Property, Nintendo of America Inc. Blodgett-Ford taught advertising law in the University of Washington IP LLM program.
Jon M. Garon is Dean of Nova Southeastern University Shepard Broad College of Law. He is a nationally recognized authority on technology law and intellectual property, particularly copyright law, entertainment, and information privacy. Prior to joining Nova Southeastern University in 2014, Garon was the inaugural director of the Northern Kentucky University Salmon P. Chase College of Law, Law + Informatics Institute from 2011 to 2014, and has been active in legal education since 1991. He is the author of four books and numerous book chapters and articles, including The Entrepreneur’s Intellectual Property & Business Handbook (Manegiare Publications 2018); Pop Culture Business Handbook for Cons and Festivals (Manegiare Publications 2017); The Independent Filmmaker’s Law & Business Guide to Financing, Shooting, and Distributing Independent and Digital Films (A Cappella Books, 2d Ed. 2009); Own It—The Law & Business Guide to Launching a New Business Through Innovation, Exclusivity and Relevance (Carolina Academic Press 2007); and Entertainment Law & Practice (2nd edition 2014 Carolina Academic Press).
Gabriel Hallevy is Full Professor at the Faculty of Law, Ono Academic College, Israel. He lectures in criminal law, criminal justice, evidence law, corporation law, conflict of laws, bankruptcy law, and game theory in law. He has published more than 30 books (as to 2018) in Israel, the US, and Europe, most of which are cited by the Israeli Supreme Court, and a few dozen articles in the US, Australia, Europe, India, and Israel. He earned his LLB and LLM magna cum laude from Tel-Aviv University, and his PhD summa cum laude from Haifa University. The Knesset, the Israeli Parliament, granted him a special honorary prize for research in criminal law. In 2013 he was chosen as one of the 40 most promising Israelis under the age of 40 (“Top 40 under 40”) by Globes magazine in Israel. He is a long-distance runner, holds a pilot’s license, and speaks Hebrew, English, French, and German.
Brooke Lewis holds a JD degree from Rutgers Law School, where she graduated with honors and a certificate in Criminal Law and Procedure. At graduation, she was awarded the Rutgers Blaine E. Capehart Award for Legal Writing Excellence. As a research assistant to Professor Ellen P. Goodman, she worked on issues related to “algorithmic transparency” and contributed to the Rutgers Institute for Information Policy and Law blog. She also served as a Senior Notes and Comments Editor for the Rutgers University Law Review.
Hannah YeeFen Lim is Associate Professor of Law, Nanyang Technological University, Singapore, where she is utilizing her dual expertise in computer science and law in research projects tackling the legal and ethical issues of artificial intelligence (AI) machines and autonomous systems including autonomous vehicles (AVs). Her book Autonomous Vehicles and the Law: Technology, Algorithms and Ethics will be published in 2018 by Edward Elgar Publishing. She graduated with double degrees in Computer Science and Law from the University of Sydney, where she went on to complete a Master of Laws by Research with Honors under a Telstra Scholarship. She was a full-time visiting professor at the Faculty of Law, National University of Singapore from 2007 to 2011. Prior to that, she taught at the University of Sydney and UNSW In 2013, she was Visiting Scholar at the University of Cambridge; in 2010, she was Visiting Researcher at Berkman Center for Internet & Society, Harvard University. Hannah is an internationally recognized legal scholar in Technology & Internet Law, IP Law, Data Protection and Privacy Law, and Cybercrime Law. She wrote one of the pioneering and seminal books on Internet law, Cyberspace Law (Oxford University Press 2002), and her research has been cited with approval by senior judiciary, most notably by the High Court of Australia. Hannah is the author of six scholarly books published by internationally established publishers.
Crystal Nwaneri is a former fellow with the Berkman Klein Center for Internet and Society and is based in Silicon Valley. Her research covers a wide range of topics, including intellectual property law, virtual reality, innovation, and online media. She received her JD from Harvard Law School and her BA from Stanford University in Communication with a minor in Science, Technology and Society. At Stanford, she spent a year working as research assistant at the Virtual Human Interaction Lab, which studies the implications of human interactions in immersive virtual reality. She is the author of “Ready Lawyer One: Legal Issues in the Innovation of Virtual Reality,” published in the Harvard Journal of Law and Technology, and “Internet Retransmissions in the Real World: A Comparative Analysis of the Legal and Economic Effects of Over-the-Top Broadcast Services in Singapore, the United States, and Abroad,” published in the Information & Communications Technology Law Journal.
Scott R. Peppet is Professor of Law and Wolf Getches Fellow at the University of Colorado Law School in Boulder, Colorado, where he has taught since 2000. His scholarship is focused on two areas: the ethics of alternative dispute resolution; and privacy, technology, and contract. In the former area he has published both an award-winning book, Beyond Winning (Harvard University Press 2004), and various academic articles on the use of contingency fees by mediators, the use of mediation in transactions as opposed to disputes, and the ethics of collaborative law. His more recent scholarship on privacy, technology, and contract has focused on the privacy problems of self-disclosure, the privacy implications of the Internet of Things, the impact of new technologies on consumer contract law, and the ways in which technology is changing prostitution markets.
Michael Risch is Associate Dean of Faculty Research and Development and Professor of Law at Villanova University Charles Widger School of Law. Professor Risch’s teaching and scholarship focus on intellectual property and internet law, with an emphasis on patents, trade secrets, and information access. His articles have appeared in the Stanford Law Review, among others, and his work has been cited by the U.S. Supreme Court. Prior to joining the Villanova faculty in 2010, he was an Associate Professor at the West Virginia University College of Law, an Olin Fellow in Law at Stanford Law School, and a partner at boutique IP law firm Russo & Hale LLP. Professor Risch graduated from Stanford University with honors and distinction in public policy and distinction in quantitative economics. He earned his law degree at the University of Chicago, where he graduated with high honors and was an Olin Fellow in Law & Economics and a Bradley Fellow in Law & Economics.
Andrew L. Rossow is an internet attorney, adjunct Professor of Cyberspace Law at the University of Dayton School of Law, and contributor for many publications including Forbes Crypto, Blockchain Magazine, Thrive Global, and Cyber-Defense Magazine. Andrew concentrates his practice on cyberspace law and internet law, criminal defense, intellectual property law, contractual disputes, and most recently blockchain technology evaluations.
Jack Russo is Managing Attorney of ComputerLaw Group, LLP, in Palo Alto, California (www.computerlaw.com). He specializes in internet, computer law, and intellectual property litigation, in the federal and state trial and appellate courts. He is a member of the California, New York, DC, Oregon, Washington and Hawaii State Bars and Chairman of the Foundation for Creativity in Dispute Resolution (www.ffcdr.com). He has undergraduate and graduate degree from CUNY in administration and computer and information science and a JD from UCLA School of Law where he was both on the law review and the Moot Court. Jack also holds an MBA from Columbia University. He has written many articles on computer law, and he has spoken on IP, Internet, AI, and other computer industry issues to, among others, the American Bar Association, the Practicing Law Institute, the Computer Law Association, and the San Francisco Bay Area Intellectual Property Inn of Court. More about him and his firm can be found on www. computerlaw.com.
Mirjam Supponen is Associate at GTC Law Group PC and focuses on technology, internet and data privacy law. Supponen is a certified Information Privacy Professional in Europe (CIPP/E) and the United States (CIPP/US). Supponen holds a Master of Laws (LLM with a specialization in international data privacy law) from the University of Helsinki in Finland and a JD from the University of Hawaii.
Amber M. Underhill is Associate at Warner, Norcross & Judd LLP, Grand Rapids, Michigan. Amber is a member of the firm’s Intellectual Property practice group, specializing in trademarks and copyrights. Before becoming an attorney, she worked for seven years as an IP paralegal. Amber is also a member of her firm’s Emerging Media and Technologies Team, and has significant experience managing the portfolios of companies in the augmented and virtual reality industry, among many others. Amber’s true passion is client service and providing the most practical advice to protect and enhance each client’s valuable intangible assets.
Brian D. Wassom is Partner, Warner, Norcross & Judd LLP, Southfield, Michigan. Brian litigates disputes and provides counsel for clients in a wide range of commercial and intellectual property matters. He has developed a particular focus in matters of creative expression, commercial identity, and privacy, which spans the legal doctrines of copyright, trademark, privacy, publicity rights, advertising, journalism, and related fields. A futurist at heart, Brian has become a globally recognized thought leader in the brand new legal issues raised by augmented reality and other cutting edge emerging media. He leads his firm’s groups focused on Emerging Media and Technologies, Media Litigation, and Privacy Litigation, and regularly writes and speaks on these topics. An accomplished litigator, Brian has achieved victories for his clients in federal and state trial and appeal courts across the country. He was the lead counsel for the plaintiff in Candy Lab, Inc. v. Milwaukee County (E.D. Wis. 2017), resulting in the first judicial decision applying First Amendment free speech rights to the medium of augmented reality.
Alexander Williams is Research Associate in Law and Technology, Chapel Hill, NC. Alex’s research focuses on the integration of technology into the body, and intellectual property law applied to virtual and augmented reality displays. He holds a degree in philosophy from the University of North Carolina and is trained in Six Sigma and principles of Experiment Design. He is the coauthor, with Dr Woodrow Barfield, of “Law, Cyborgs, and Technologically Enhanced Brains” and “Cyborgs and Enhancement Technologies,” both accessible online at Philosophies.
Gilad Yadin is a Senior Research Fellow at the University of Haifa Center for Cyber Law and Policy. He holds a PhD from the Haifa University Center for Law and Technology. Dr Yadin consults on technology law and ethics and teaches at several academic institutions. In the past he drafted cybercrime legislation for the Israel Ministry of Justice, clerked for a criminal court judge, and managed a research and development group at a top cybersecurity firm. His research has been published in leading law and technology journals such as Cardozo AELJ and Vanderbilt JETLaw.
Preface
Recent advances in computer display technology are changing the way we perceive and interact with the world—and, by doing so, are challenging the law on several fronts. Not the least of these are disputes that involve the design and use of virtual and augmented reality worlds. Once fledgling technologies that resulted in theoretical discussions of what law “might” apply, virtual and augmented reality are now mainstream, giving rise to legal disputes in the here and now. Courts are already struggling with questions of who has property rights in virtual content and they are beginning to wrestle with questions that arise when our interaction with virtual and augmented reality spills out into “brick and mortar” interactions. The goal of the Research Handbook on the Law of Virtual and Augmented Reality is to provide an up-to-date discussion of such legal questions, as well as those which may arise as the technology continues to develop and find use in more and more spheres of our daily lives. Just as consumers’ embrace of the Internet transformed the way people communicated, worked, shopped, invested their money, and shaped and tended to their reputations—and raised numerous legal questions as it did so—so might virtual and augmented reality change the way we experience public space and interact with each other, and, in doing so, require a rethinking of many areas of law.
The transformation of society generated by virtual and augmented reality technologies is likely to bring novel changes. These technologies will allow users to enter worlds which are far beyond our normal experience. When they do so, they can allow people to learn new skills, explore new places, and experience times and events in ways that otherwise would have been impossible. With the aid of virtual reality, an individual can have the experience of flying to, or walking upon, Mars, or scaling down and traveling inside the human body, or defying gravity, or hovering over an imaginary city—or a real city (such as New York or Paris) when they are miles away from it. The virtual world viewed on a headmounted display becomes the world one sees and hears, replacing the physical environment blocked out by the headgear.
More recently, newer versions of virtual reality have also provided haptic or olfactory feedback, thus stimulating more of the human senses (and raising further issues for the law to consider). Augmented reality extends this virtual reality technology in another way: it supplements our experience of the physical environment rather than replacing it. It overlays information (or images such as fantasy game creatures) over real-life visual scenes that continue to reach our eyes from the surrounding environment—through the lenses of glasses, smartphone screens, or some other interface that can display what is in front of us, but also blend in virtual pictures or words. Moreover, thanks to such augmented reality technology, what was once tied to a specific physical setting can now be experienced with mobile technology in the form of augmented reality provided by smartphones or low-cost virtual reality gear. A benefit of augmented reality is that it allows computer-generated information to be accessed by the user any time and at any place.
Until recently, virtual and augmented reality technologies were used mainly by researchers and test subjects in research laboratories. However, due to dramatic cost reductions in display technology and a proliferation of applications, virtual and augmented reality are now mainstream technologies used by millions of people around the globe. In fact, virtual and augmented reality technologies have been used for a wide variety of applications. They have been used in hospitals to train physicians to perform complex surgical procedures. They are increasingly used in psychotherapy. They have also been used in online virtual games for play, such as Second Life, a virtual reality world visited by millions of people yearly.
In the past few years, technology companies such as Google, Sony, HTC, Microsoft, and Apple have raced to provide consumers virtual reality videogame consoles (such as Oculus Rift, HTC Vive, and Playstation VR) and enter a growing commercial market. Some of the same companies have touted new augmented reality platforms that enable the development of applications that superimpose upon real world images a smartphone camera image—such as an illusory monster (as part of a location-based virtual game), a virtual piece of furniture (that a home owner can thus better envision in her own home before a purchase), or historical information about the neighborhood or building by which the viewer is wandering (as part of a self-directed tour).
As noted earlier, this increasing use of augmented and virtual reality has raised a host of questions about how to apply legal doctrines developed for the brick and mortar world, or for earlier information and Internet technologies, to the new, less familiar realm of virtual and augmented reality. Many of the chapters in this Research Handbook discuss some of these ongoing lawsuits. Individuals, for example, have filed suits (alleging nuisance and other tort violations) against users and the designer of Pokemon Go, claiming that this augmented reality game is leading droves of players to trespass onto private land and cause damage or create nuisances there as they hunt for the fictional Pokemon monsters they must target in the game. Milwaukee has likewise taken action to limit such use of augmented reality, focusing not only on Pokemon Go, but on all location-based augmented reality games. More specifically, that state has enacted an ordinance—under legal challenge at the time of writing—restricting the “introduction” of certain virtual and augmented reality games in its public parks. Additionally, Linden Lab, the company that operates the Second Life virtual world, was sued by an individual whom it barred from future access to its virtual world. This, said the individual, effectively deprived the individual of virtual property he had spent years obtaining, and which he had spent substantial money to acquire. Further, individuals in virtual worlds have considered themselves to have been sexually assaulted when subjected to “unconsented to” touching of their virtual world avatar (the character they control within a virtual world), even though the touching occurs in virtual reality and not in physical space.
And still other legal questions are on the horizon. Avatars, for example, are becoming increasingly smart and autonomous: They are no longer simply virtual world puppets, controlled in every action by a flesh and blood person. They are artificial intelligences that can generate their own decisions. When, in such situations, do legal rights or liabilities attach to their Al-generated actions? Are they subject to criminal liability for the acts they perform? Do smart avatars receive legal protections against restrictions of their activities? Which activities occurring in virtual and augmented reality should be considered speech under the First Amendment and what degree of protection should courts afford such speech? And how should copyright law apply to virtual reality worlds? Further, when individuals reuse virtual and augmented reality content that is meant to faithfully represent the real world, is this an infringement of a copyright owned by the creator of such an image?
The Research Handbook on the Law of Virtual and Augmented Reality contains 20 chapters from US and international legal scholars on a wide range of topics, such as whether virtual sex experienced using haptic technology is a form of protected speech under the First Amendment, or the extent to which virtual images projected in real space for advertising purposes can be regulated by the government. The federal and state law of the US is the focus of the book but to provide the reader a broader view of legal issues related to virtual and augmented reality, especially given its global proliferation, this book also contains chapters from legal scholars in Asia and the European Union exploring how the law of these jurisdictions might apply to virtual and augmented reality technology and applications. Additionally, since the use of augmented reality raises challenges to established legal doctrine that may be distinct from those raised by virtual reality technology, several chapters focus specifically on questions about how the law applies to augmented reality—for example, whether a virtual image projected over the real property of another person can be considered a trespass or a nuisance, and how the law of contract might be challenged by the use of augmented reality.
One of the central issues addressed in the Research Handbook on the Law of Virtual and Augmented Reality is the extent to which “real-world” legal doctrine (in its existing form) can be applied to activities occurring in virtual and augmented reality—or whether lawmakers (or virtual and augmented reality creators or users) need to instead generate new or modified legal doctrines that are a better fit with this technological landscape. For example, in virtual and augmented reality worlds, the law of tort may be relevant if one’s virtual avatar is defamed by, or has her privacy invaded by, another avatar. But this depends on whether (and when) avatars can be liable for torts, or the subject of a tort— and where they cannot be, the ways in which avatars’ actions can and cannot establish tort liability for the individuals (if any) who exercise some control over them. And in the area of criminal law, as more people use virtual reality for a range of tasks, new vulnerabilities may be created for people within virtual worlds, and new ways for criminals to exploit the virtual environment may develop. But how criminal law will apply here depends in part on what virtual law harms generate criminal liability (and when virtual reality designers, individuals operating virtual avatars, or the avatars themselves) can be liable for virtual-world crimes.
Additionally, intellectual property law is especially likely to be relevant for activities occurring in virtual and augmented reality worlds, given that both technologies rely on use of visual images and that the storylines they use to engage participants may be protected by copyright law. If a company’s trademark is visible on a virtual billboard displayed in virtual or augmented reality, and if the image is used without permission, there may be a cause of action for trademark infringement. And if a virtual avatar resembles the appearance of a famous actor, there may be a “right of publicity” cause of action to protect the celebrity from misappropriation of his/her name, likeness, voice, image, or other recognizable element of personal identity. The above examples suggest that the law developed for the real world will likely be applicable for some activities occurring in virtual and augmented reality. But as both technologies evolve and allow more senses to be realistically stimulated, established law may be insufficient to account for the new experiences that virtual and augmented reality will provide for users.
While the chapters discuss the current law, which applies to virtual and augmented reality, they are also “forward looking” in that they raise interesting questions about how the law may respond to continuing advances in virtual and augmented reality technologies. We hope the book will stimulate discussion on how the law should apply to virtual and augmented reality worlds and that it provides a valuable resource to legal scholars, judges, and legislators in determining how to protect the rights of all parties involved in the design and use of virtual and augmented reality.
Woodrow Barfield, Chapel Hill, North Carolina
Marc Jonathan Blitz, Oklahoma City, Oklahoma