LAW, VIRTUAL REALITY, AND AUGMENTED REALITY.

Author:Lemley, Mark A.
 
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INTRODUCTION 1053 I. THE RISE OF THE MACHINES 1058 A. The Technological Background 1058 B. The Practical Applications 1059 C. The Effect on our Interaction with the World 1063 1. Distraction 1063 2. Immersion 1064 3. Image 1066 4. Data 1069 II. CRIME ON THE VIRTUAL STREET 1070 A. What Would VR/AR Street Crimes Be Like? 1070 1. Disturbing the Peace and the Bangladesh Problem 1071 2. Indecent Exposure 1076 3. Virtual Intrusion 1080 4. Strobe Lighting and Virtual Assault 1081 5. "Virtual Groping" 1082 6. Crimes that Can't be Easily Technologically Avoided--Extortion, Threats, and the Like 1085 7. AR Crimes that Can't Be Easily Technologically Avoided--Startling 1086 B. Diversity of Sensescape 1087 C. Defaults and the Initial Intrusion 1091 D. Beyond the Audiovisual: Haptic Assault 1094 E. Consent 1096 F. Consent and Impersonstion 1100 III. TORT, INTELLECTUAL PROPERTY, AND VR/AR PROVIDER LIABILITY 1101 A. Direct Tort Lawsuits Against Offenders: The Causes of Action 1101 B. Direct Tort Lawsuits Against Offenders: Practicalities (and Impracticalities) 1103 C. Tort Lawsuits for Physical Injuries to Outsiders 1104 D. Using Tort Law to Draft VR/AR Operators into Preventing Misbehavior by Users 1106 E. Copyright and Trademark Liability to Outsiders 1111 F. 47 U.S.C. [section] 230 as a Limit on VR/AR Operator Liability 1113 G. Tort Liability for Physical Injury to Users; Terms of Use as Contractual Limits on Liability 1114 IV. How OTHER PEOPLE SEE YOU, EVEN IF YOU DON'T SEE IT 1117 A. Your Role in Other's Personal Sensescapes 1117 B. Display to Others 1120 C. Pervasive Display 1122 V. PERVASIVE INFORMATION CAPTURE 1125 VI. COMPULSORY VR EXPERIENCES 1128 VII. PRIVATIZATION 1130 A. Monopolis 1130 B. Free Speech 1132 VIII. THE LIGHT VR AND AR CAN SHED ON LEGAL DEBATES MORE BROADLY 1134 A. Order Without (Much) Law 1134 B. Virtual Reality and the Speech-Conduct Distinction 1136 C. The Virtual, the Real, and the Nature of Harm 1137 CONCLUSION 1138 INTRODUCTION

In 2016, the world suddenly went crazy for Pokemon GO. Millions of people were traveling to spaces public and private to catch, train, and fight with monsters that only they could see. As the mania spread, cities and parks held Pokemon GO parties. (1) Hospitals and the Holocaust Museum put up signs warning players that no Pokemon could be found there.2 At least one police station politely asked people who came searching for Pokemon to do so outside the building.3

Gamers and those nostalgic for the Pokemon card game loved the Pokemon GO phenomenon. People whose property was invaded by dozens or hundreds of Pokemon GO players hated it, or adapted to it, or tried to make money from it. (4) Many others were puzzled by it. And us? We're law professors, so naturally our first thought was "just imagine how many potential legal questions this raises!" That's why lawyers are so much fun at cocktail parties.

Pokemon GO was the first exposure most of the world had to augmented reality (AR). AR allows digital content to be layered over the real world. Using special glasses or, more commonly for now, a smartphone, AR users can see the real world as it actually exists, but with digital images superimposed on the world so that they seem to exist as part of the world. And while gaming is the first application to reach the mass market, it won't be the last. Our experience of the real world will increasingly be overlaid with information and images--sometimes related to what we physically see, sometimes not. (5)

Beyond AR, there is virtual reality (VR). While AR adds visible digital content to a persons perception of the real world, VR replaces the real world altogether. Using goggles and speakers, VR places people inside a virtual environment, letting them move around in it and interact with it as if it were the real world.

In some ways, VR is a competitor technology to AR: business meetings and social interactions with remote parties could happen either via VR or AR, depending on which technology evolves most quickly. In other ways, VR can be complementary, with people using AR technology for adding to physical-world interactions, and VR for creating entirely fictional worlds.

VR also got big in 2016. Four major VR hardware platforms were deployed; so were many applications--mostly games, but also immersive news reporting and social experiments.6 And the technology, already impressive in its realism, continues to develop at a breakneck pace. While most applications of VR today remain games, before long we will interact more and more in virtual rather than real space (especially as avatars become realistic enough, and begin to reliably track user facial expressions). Work, training, sales, social life, (7) education, exercise, (8) even psychotherapy: VR will affect all these and more. (9)

AR and VR both present legal questions for courts, companies, and users. Some are new takes on classic legal questions. People will kill and die using AR and VR--some already have. (10) They will injure themselves and others. Some will use the technology to threaten or defraud. Sorting out who is responsible will require courts to understand the technology and how it differs from the world that came before. But it won't necessarily require a fundamental rethinking of legal doctrines. A death threat via AR or VR is legally the same as a death threat via an oral conversation, a letter, an email, or a fax. (11)

But AR and VR will also create new legal questions. Virtual interactions will be conducted through privately owned and operated devices and networks. Those interactions may therefore be subject to contractual terms and conditions that users will likely never see or consider, but that significantly limit the privacy, property, and liberty rights of those users.

The interactions may not happen in any one physical jurisdiction, and therefore may be harder to regulate effectively. This move--from conducting most of our business in public spaces with public rules, largely located in a single jurisdiction, to private spaces with private rules in which the parties seem next to each other but are really physically in many jurisdictions--may cause us to rethink just what constitutes a legally binding contract and what things we want governed by public rather than private rules.

And AR and VR can also raise more fundamental questions. VR isn't "real" in the way we normally use that term: It is bits cobbled together to produce artificial sounds and images that we observe. But it feels real in a way that is hard to understand until you've experienced it. The same may be true with AR, if it can overlay vivid and realistic images of people and objects over the real reality that we see.

This gut feeling of realness can cast doubt on legal doctrines that tend to distinguish between physical contact and physical danger and things that are "mere" audio and visual communication. We base many rules on the distinction between the mental and the visceral, between things we perceive and things we experience. We also draw significant legal lines between speech and conduct. VR and AR will make it harder to draw those lines, and may push us to think hard about why we punish certain kinds of conduct and not others in the physical world. Indeed, they may even lead us to rethink the notion of what is "real" in a world where more and more of our most significant and emotionally real experiences aren't "real" in the classic physical understanding of that term. But they feel real, and they can have real physiological consequences. 12

VR and AR aren't the first technologies to challenge legal doctrine. We can, for instance, learn some important lessons from our efforts to apply legal rules to the Internet over the past quarter century,13 and from some cutting-edge scholarship a decade ago on the law of non-immersive virtual worlds. (14) But most of those legal rules developed haphazardly, not deliberately. Thinking deeply now about how the law will apply to VR and AR requires us to tread new ground. The reward--hopefully--will be not only a solid framework for applying legal doctrine to some tricky new questions, but also a better understanding of doctrines we take for granted in the physical world.

We begin in Part I by discussing the rise of VR and AR and how people experience those technologies. We then turn in Part II to how the law is likely to treat "street crimes" in VR--behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and "virtual groping." (15) Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-protection (which will offer an attractive alternative to legal enforcement, but also a further excuse for real-world police departments not to get involved).

In Part III, we consider tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators. In Part IV, we discuss whether it is a tort to alter other users' avatars or create your own avatars that borrow someone else's name and likeness.

We then consider in Part V the likelihood that VR and AR systems will pervasively store all the sensory information that they present to their users (and that they gather in the course of presenting it), and discuss the privacy implications of such data collection and potential disclosure. We turn in Part VI to some implications of the virtual street being privately owned, unlike most public streets. And we close in Part VII by talking about three overarching issues--order without law, the speech-conduct distinction, and the nature of harm--that can reflect on broader debates even outside VR and AR.

Our article primarily aims to identify the...

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