About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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November 15, 2003

Second Life and Machinima

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Posted by Ernest Miller

Thanks to the new Second Life license, discussed here (New IP Rules for Second Life), there has been a request by a director of machinima to "film" in the world of Second Life. Permission has, of course, been granted.


Comments (0) + TrackBacks (0) | Category: Culture | Games | Machinima | The State of Play

America's Army for Xbox?

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Posted by Ernest Miller

Just a quick note from The State of Play: Games, Law and Virtual Worlds.

The developers and people behind the US Army recruiting/education game America's Army are well-represented. I asked one of them whether they were developing a version of America's Army for use on the Xbox through Xbox Live. Seemed like an obvious extension of what they were doing to me. His response? Quite seriously, "I can neither confirm nor deny." I'll take that as a qualified, "yes," although it will be interesting to see how the US Army gets along with Microsoft's proprietary Xbox Live network.

Comments (0) + TrackBacks (0) | Category: Games | News | The State of Play

November 14, 2003

Games as Speech

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Posted by Ernest Miller

One of the issues near and dear to my heart.

Rebecca Tushnet

Games are different, because they were interactive, better, richer, more empowering, more speechy. The implication for free speech is that they are closer to the core of speech. When you defend porn, you talk about James Joyce, when you defend about Grand Theft Auto you talk about Second Life.

Is choice really speech? Exercising what is artistically relevant (such as in bricolage or collage) is generally considered speech, no problem. Recording the action from a game looks like a movie. On the other hand, a football player also makes choices that create a result that looks like a movie.

The analogy is often made to "choose your own" adventure books. The problem with video games is not simply that you make choices, but that you also have skills (hand-eye coordination). The extra element is manipulating control, which seems more like the sort of thing football players do.

What would happen if videogames did encourage violence (just an assumption)?

Regulate conduct, not speech. Regulate the joystick, not the speech.

Existing regulations target "realistic" violence, not shooting bubbles. So, can we target certain conduct tied to specific types of speech? [My initial response can be found here: Michigan State Professor Argues Against Free Speech for Videogames.]

Analogy to hate crimes, targeting some actions/conduct for harsher penalties is they are joined with certain types of speech.

Second aspect to this idea of interactivity. The availability of choices are determined by the game designer. Constraints can vary from very limiting, such as Pong, or with lots of choices, like a canvas and paint.

The point being that interactivity is not an important aspect of our arguments as to why regulation is not a good response to regulating games.

UPDATE 2 1245 ET

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games | The State of Play

Blogging the State of Play

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Games | The State of Play

Century 21: Property, IP and Creativity in the Virtual World

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Posted by Ernest Miller

More notes from: The State of Play: Law, Games and Virtual Worlds

Dan Hunter is talking about various property regimes in virtual worlds and their analogies to real world property law. Read his paper (Virtual Property [PDF]). He is showing a live feed of the notorious Category 1654 on eBay, where you can buy and sell avatars, swords, etc. Conclusion ... Prof. Hunter believes that there is property here and we are going to have to figure out how to deal with it.

How did Edward Castronova get involved in this issue? He thought that eventually, there would be lawsuits. Lawsuits would create a need for expert testimony. Why not him? Read his conference paper (The Right to Play [PDF]).

UPDATE 2 1035 ET
UPDATE 3 1045 ET
UPDATE 4 1100 ET

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play

New IP Rules for Second Life

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Posted by Ernest Miller

Currently, I am in New York attending the New York Law School/Yale Law School conference on videogames and the law (The State of Play: Law, Games and Virtual Worlds).

This morning's panels is a discussion by founders of two of the most interesting MMORPGs, and Second Life.

Philip Rosedale, founder and CEO of Linden Lab, creators of Second Life, had a very interesting announcement at this conference.

One of the most interesting things about Second Life is that the world is created by its users. They build and script many (if not most) of the models in the system. Second Life has been one of the leaders in such user-centered creativity.

The announcement is that there has been a change in the terms of service for Second Life. Second Life users will now be able to retain intellectual property rights in the things they develop for the MMORPG. Indeed, you will be able to actually transfer, buy and sell these copyrights in the real world. The new EULA does not yet seem to be available online yet, but this is very interesting.

UPDATE 0910 ET mentions that they have a dispute resolution process for copyright violations in their world. For example, members create virtual clothing that they "sell" to other members using Therebucks. Some complaints have arisen that some sellers see other members wearing clothes they designed but did not sell. Other members of There, apparently, are selling "knock-offs" - so runs a dispute resolution system. How it relates to existing copyright law is not clear.

Second Life expects, with their new EULA, that real world courts may have to resolve these issues.


In response to an excellent set of questions from copyright expert Yochai Benkler, Rosedale notes that they hope to embed Creative Commons licenses into their new system of copyright.

Prof. Benkler was skeptical about the purpose of embedding copyright law (which is a mess) into these virtual worlds ... why not enable a better system for sharing?


New Terms of Service are up.

A brief excerpt (but read the fine print):

5.3 Participant Content. Participants can create Content on Linden's servers in various forms. Linden acknowledges and agrees that, subject to the terms and conditions of this Agreement, including without limitation the limited licenses granted by you to Linden herein, you will retain any and all applicable copyright and/or other intellectual property rights with respect to any Content you create using the Service. . . .


Read the Linden Lab press release: Second Life Residents To Own Digital Creations. There is a quote from Larry Lessig:

Linden Lab has taken an important step toward recognizing the rights of content generators in Second Life. As history has continually proven, when people share in the value they create, greater value is derived for all. Linden Lab is poised for significant growth as a result of this decision.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play