This story, on the growing phenomenon of virtual divorce, prompts thoughts of John Barth, metafiction and madness. It’s all possible, out there online and especially on Second Life, as illustrated in the piece below.
Way back in 1968, when the internet was little more than a twinkle in a fancy postmodernist’s eye, the American writer John Barth wrote a collection of loosely connected short stories entitled Lost in the Funhouse. In the title story, 13-year-old Ambrose sets off with his family on a trip to the beach but, once there, they decide to visit a funhouse instead. Young Ambrose, with his older brother Peter, engages in sexual fantasies of going through the funhouse maze with Magda, a 14-year-old neighbour who is accompanying them. But once inside Ambrose realises that the funhouse is not for him. While the narrator asks, in the first line, “For whom is the funhouse fun?” and answers “Perhaps for lovers”, it is clear that Ambrose is not ready to immure himself in the dark secrets of the funhouse. The experience is disorientating, the funhouse a place of fear and confusion.
It may be that someone has created a replica of Barth’s funhouse, complete with avatars called Ambrose, Peter and Magda, thanks to www.secondlife.com, which enables the downloading of the popular online virtual world Second Life. All things appear possible on Second Life, a phenomenon with millions of registered users and its own economy and currency. Linden dollars are used by individuals and corporations on Second Life, a cyber civilization whose charms have wooed major brands such as Sears Roebuck & Company, Starwood Hotels and Harvard University. So, too, a number of casinos. Users can easily navigate their way through the Second Life metaverse and play poker, slot machines and blackjack.
But just as Ambrose’s progress in the funhouse was constantly interrupted by his creator, with Barth either inserting his own writerly ruminations or having his narrator do so, those who avail themselves of the gaming facilities present on Second Life might pause to wonder with whom they are rubbing virtual shoulders. Concerns that gaming on Second Life infringes the controversial and unpopular Unlawful Internet Gambling Enforcement Act 2006 [UIGEA] have led to the site co-operating with the FBI, to the extent that at least some of the avatars on Second Life are, in fact, investigative agents.
So far, so postmodern. John Barth and the other remaining heavyweights from American literary postmodernism would be tickled pink by Second Life; perhaps they are roaming the site for material even now. But is it really the case that anything goes on Second Life? Is it truly a metaverse “created, imagined and owned” by its residents, one free of such prosaic constructs as the rule of law and a statute like UIGEA?
David Naylor, a partner in the technology group at City law firm Field Fisher Waterhouse LLP, cautions that “a very common mistake is to assume that the law stops outside Second Life’s doors. A similar assumption was made with the internet. Statutes and case law have since shown that national governments and courts do not take the view that just because something is done digitally, it is unregulated. This is undoubtedly the case with Second Life. Although there may sometimes be questions about which jurisdiction’s laws apply to any particular matter and there can certainly be some enforcement issues, Second Life and the conduct of people who inhabit it are undoubtedly subject to law.”
Kiran Sandford, a technology partner with Mishcon de Reya, agrees. “Second Life is far from being exempt from U.S or other laws and in its short existence the site has already thrown up a myriad of legal issues. Individuals and corporations who have created a presence on Second Life have had difficulty in protecting their intellectual property, not because IP law is inapplicable but because finding the perpetrators of infringement is so difficult.”
Here, indeed, is the rub. For the most part (occasional celebrities excepted), Second Life users are conferred anonymity ab initio in the fact that the site all but makes it impossible to use one’s real name. If a disgruntled third party wishes to obtain the identity of a miscreant avatar, it has to serve a notice for disclosure on Second Life. Albeit that Second Life makes much of its desire to be compliant with prevailing legislation, the cost implications of doing so will deter many prospective litigants: it is one thing for the due process of the law to foot the bill in a criminal investigation, quite another to stare at a lawyer’s bill in a civil case which might, in any event, yield the fact that the infringer is based in Timbuktu.
What, though, of betting and gaming on Second Life? If the FBI has already created avatars to wander into its casinos and poker rooms there may yet be formal charges that Second Life has contravened the terms of UIGEA, not least when one recalls the rationale behind UIGEA. Its goal was simple: to stop Americans betting online. In what was variously seen as a sneaky or a highly intelligent move, UIGEA did this by targeting not the casinos and poker rooms themselves but their lifeblood: the banks and other financial processing houses. Accordingly UIGEA banned banks and other entities from processing payments for internet gambling transactions, and decreed that the Treasury Department and Federal Reserve issue regulations to guide financial institutions in identifying and blocking such transactions.
This remarkably unpopular piece of legislation was initially greeted with horror by the betting and gaming sector (and, indeed, many of its stakeholders), but reports of gambling’s death in America appear to have been exaggerated. Various high-profile executives may have fallen foul of UIGEA, but the sector remains buoyant thanks largely to its time-honoured adoption of offshore servers. In addition, a sea-change appears to be underway, with the demise of UIGEA seemingly on the cards thanks as much as anyone to U.S. Congressman Barney Frank who, last April, introduced a bill to overturn the gambling aspects of the Act, saying “The existing legislation is an inappropriate interference on the personal freedom of Americans and this interference should be undone.”
But Linden Lab, the San Franciso-based company behind Second Life, uses servers based in the U.S – and UIGEA is still law. As such, is Linden Lab breaking the law?
Second Life says that it doesn’t know if gaming on the site breaches UIGEA, but for a number of lawyers the answer is clear-cut. Chief among them is Professor Anita Ramasastry, an Associate Professor of Law at the University of Washington School of Law in Seattle. As Professor Ramasastry has said: “So long as Second Life’s Linden dollars can be converted back into actual U.S. currency, I believe a good case can be made that Second Life may have a duty, under UIGEA, to prohibit gambling transactions in its community.”
Professor Ramasastry’s analysis – first published in April on www.findlaw.com – hinges on the convertability of the Second Life currency. Despite a number of caveats in Second Life’s terms and conditions, the reality is that users can exchange Linden dollars for U.S dollars, as Professor Ramasastry explains: “Residents of Second Life may purchase Linden dollars directly through Linden Lab, or they may use Linden Lab’s currency exchange to buy or sell their Linden dollars, or use other third-party currency exchanges to convert between Linden dollars and U.S. dollars. The exchange rate fluctuates daily based on usage.”
That being the case, Second Life almost certainly falls foul of UIGEA, for it prohibits the wagering not merely of “conventional” currency but “something of value.” Clearly Linden dollars fall within this category if they can be converted into U.S dollars. Moreover, Second Life would be unlikely to evade liability were it to contend that it is not itself an online gambling operator, but instead merely a host site. As Professor Ramasastry puts it: “Second Life might still be liable for aiding and abetting Internet gambling… the definition of aiding and abetting is quite broad: It sweeps in anyone who ‘aids, abets, counsels, commands, [or] induces’ a criminal act, or ‘procures its commission’; and anyone who ‘willfully causes’ an act that, if he had done it directly, would count as a federal crime. And it states that such persons are punishable as if they were the perpetrators themselves.”
All this looks rather bleak for Second Life, and it gets worse. Linden Lab could also be viewed as a “financial transaction provider” under UIGEA, which means that, as a payment processor, it has a duty to block transactions to online gambling sites. How, though, can it do this? Linden Lab may be based in California, but its online casino and poker rooms could be anywhere. Professor Ramasastry hypothesizes that one solution might be for Linden to ask users to provide the source of their funds before allowing them to exchange their currency into U.S. dollars by selling it to willing buyers. Even this, though, creates a conundrum: “On one hand, this would block at least some virtual gambling in Linden dollars from being translated into real-life gambling in U.S. dollars (that is, if users were truthful as to the source of funds). On the other hand, users could lie, leading to the need to verify fund sources.”
If it is obvious that Linden’s hosting of in-world betting and gaming activities has created a problem that will need to be solved, whether voluntarily or by means of formal enforcement, David Naylor says that Second Life faces another, perhaps even thornier issue: money laundering: “Given the convertability of Linden dollars, there is certainly scope for money laundering activity in Second Life. Some people might argue that since you can’t buy or sell Linden dollars unless you have a credit card or a Paypal account, money laundering shouldn’t be possible because financial services providers should be ensuring their customers are not engaging in criminal activity, but determined criminals can acquire these just like the rest of us. If you accept that criminals have credit cards and Paypal accounts, you must also conclude that there is plenty of scope for money laundering on Second Life.”
Way back in 1968, in Lost in the Funhouse, Barth’s narrator admits that he would “rather be among the lovers for whom funhouses are designed,” but settles instead for the vicarious pleasure of being their “secret operator”. Today, a writer’s joy in metafiction seems almost quaint. For even in the funhouse, lawsuits were unimagined. On Second Life, they could be coming to a (virtual?) courthouse near you.
For a certain poet, an unspoiled stretch of seaside was like “the holy hush there is in the land on Christmas morning. The roads fairly empty, the sky almost free of aeroplanes and you begin to hear and see and smell once more”.
But who uttered these lines?
(It’s a Monday, and this is your starter for 10 – and yes, we’re fresh to the metropolis, from a coastal sojourn.)
The following words appeared in a Times article in 2003, about the paper’s recently departed Head of Legal, Alastair Brett. They’ve been doing the rounds in the wake of Brett’s sudden exit last week, though without attribution. Who, we wonder, wrote them? Two suspects present themselves – our own occasional scribe, Alex Wade, and Dominic Carman, son of the late, great George (an old mucker of Brett’s). Or was someone else the author? Whatever: the fact remains that Brett was a fearless, tenacious and excellent newspaper lawyer, a man whose commitment to press freedom coursed through every vein in his body. We don’t know the precise reasons for his departure, but he will be missed.
“[He] is known for his impassioned commitment to press freedom – so impassioned that he has been described as “certifiably insane”. Capable of an intimidatory snarl or two, and prepared to be stubborn, Brett is far from mad. He is erudite, charming (so the ladies say), and not known for sitting on the fence. If his sanity has, tongue firmly in cheek, been questioned, one thing not open to doubt is that Brett epitomises the old school Fleet Street lawyer”.
Pictured: Fleet Street - not the same as it used to be.
A curious observation leaps at us from Roy Greenslade’s piece about whether Conrad Black, shortly to roam the high-class hotels of the world again as a free man, will return to the UK and carry out his threat to sue his biographer, Tom Bower, for libel:
I somehow doubt that he would have the appetite, or the funds, to pursue a libel action, but Black marches to the sound of his own drummer, so he might just do that. Even if he did, my money would still be on Bower winning.
Hang on, Roy – what about suing via a no win, no fee deal? Funds or no funds, a CFA would see Conrad through – though maybe he’ll remember what happened to the last press baron who sued Bower. Anyone for Richard Desmond’s curious dalliance with libel?
Pictured: the kind of place in which Conrad Black may be spotted (if not at the Royal Courts of Justice).
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A good decision is based on knowledge and not on numbers.
Πλάτων, Greek philosopher.
