Order Supported by Law: the Enforcement of Rules in Online Communities - Nicolas Suzor

• Publication year: 2012

Order Supported by Law: The Enforcement of Rules in Online Communities

by Nicolas Suzor*

I. Introduction

As online social spaces grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This Article examines two issues that go to the core of legitimate governance in online communities: (1) how are rules enforced and punishments imposed, and (2) how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules ofvirtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for "real" crimes, and the private, internal resolution of "virtual" or "fantasy" crimes. In this structure, the punitive effect of internal measures is downplayed, and the harm that can be caused to participants by internal sanctions is systemically undervalued. At the same time, because the contractual framework does not adequately address

* Lecturer, Queensland University of Technology, Brisbane, Australia; Visiting Researcher, Georgetown University Law Centre, Washington, D.C., 2010-11. Queensland University of Technology (LL.B., 2003; BinfTech, 2003; LL.M., 2005; Ph.D., 2010).

I would like to thank Brian Fitzgerald, Greg Lastowka, Matthew Rimmer, Sal Humphreys, John Banks, Louise Longdin, Brendan Nerdal, Kylie Pappalardo, Ren Reynolds, and Ray Marshall for comments on drafts of this Article.

punishment, providers are struggling to use various private law doctrines to achieve punitive ends when internal sanctions prove ineffective. This Article addresses this conceptual gap and provides a normative framework for enforcing community rules and imposing punishments for their breach based upon the values of the rule of law.

Online communities, from virtual worlds to social network sites, provide extremely popular platforms for diverse forms of social interac-tion.¹ They are used extensively for sociability, play, artistic expression, commerce, politics, and many more constantly developing forms ofsocial discourse. As the importance of these spaces grows, it should come as no surprise that tensions begin to emerge in the relationships between the providers and the users.² Users of online communities are seeking to assert certain recognitions offairness, due process, freedom ofspeech, and entitlements to virtual property, most of which are typically disclaimed in the contractual documents that purport to set the terms of participation. Courts are increasingly being asked to determine disputes over the contractual terms of service in virtual communities and to resolve the interactions between the contracts,³ copyright,⁴ tort,⁵

1. See, e.g., Danah M. Boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13 J. Computer-Mediated Comm., no. 1 (2007), http://jcmc.india na.edu/vol13/issue1/index.html (describing the key features of social network sites); T.L. Taylor, Play Between Worlds: Exploring Online Game Culture 10 (2006) (arguing that massively multiplayer online games are "fundamentally social spaces").

2. See, e.g., Jonathan F. Fanton, Rights and Responsibilities Online: A Paradox for Our Times, 13 First Monday, no. 8 (2008), http://firstmonday.org/htbin/cgiwrap/bin/ojs/index. php/fm/article/view/2196/2012 (discussing the tension between the liberal democratic potential of the internet and the lack of rights of participants in privately owned social online spaces).

3. See Dan L. Burk, Authorization and Governance in Virtual Worlds, 15 First Monday, no. 5 (2010), http://firstmonday.org/htbin/cgiwrap/bin^ojs/index.php/fm^article/ viewArticle/2967/2527 (explaining that the contractual framework of virtual world governance is being used to condition "authorization" as applicable under copyright, anti-circumvention, tort, and criminal law).

4. See, e.g., MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928 (9th Cir. 2010) (concerning the development and sale of a computer program designed to interoperate with World of Warcraft that enabled players to cheat by automating their actions), amended and superseded on denial ofreh'g, No. 09-15932, 09-16044, 2011 WL 538748 (9th Cir. Feb. 17,

2011).

5. See, e.g., Complaint, Blizzard Entm't, Inc. v. In Game Dollar, LLC, No. SACV07-0-589 JVS (C.D. Cal. May 22, 2007), http://virtuallyblind.com/files/in_game_dollar_complaint .pdf (concerning the sale of virtual goods against the terms of service and alleging causes of action including tortious interference with contract and trespass to chattels); Consent Order, Blizzard Entm't, Inc. v. In Game Dollar, LLC, No. SACV07-0589 JVS (C.D. Cal Jan. 28, 2008), http://virtuallyblind.com/files/Peons_Injunction.pdf.

property,⁶ and criminal computer trespass.⁷ There is no easy doctrinal solution to these emerging issues, and the inquiry is somewhat confused by the awkward conceptual position of punishment for breaches of private rules. The boundaries ofcontract and its intersection with other private and public law doctrines, however, are of great importance in setting the limiting bounds-the constitutive limits-of virtual community governance.⁸ In analyzing these limits, a conceptual framework based upon constitutional values is a useful tool in determining policy that will simultaneously encourage innovation, autonomy, and legitimacy.⁹ I have previously argued that the rule of law, as a contested discourse about limits on the exercise of governance power, provides a useful model that is more sensitive to the constitutional role ofcontract law in limiting private governance and the role of other legal doctrines in delineating freedom of contract.¹⁰ This Article develops a set of normative principles for the enforcement of community rules based on the values ofthe rule oflaw-particularly the avoidance ofarbitrariness and the importance ofboth predictability and due process, tempered by an overarching requirement of consent. This approach provides a method that is able to address governance tensions in the enforcement of the rules of online communities that formal, liberal freedom of contract principles cannot.

This Article traces a distinction between acts that are deemed to be wrongful by territorial states, acts that merely depict wrongful acts, and acts that are wrongful only when viewed through the interpretative framework of the norms of particular virtual communities. The first category of acts are already proscribed by the state and the second, in the vast majority of cases, should not be. The third category presents the most interesting questions. Enforcement by territorial states of these rules can be problematic-primarily because the virtual community lacks the legitimacy required to create rules whose breach is punishable by the full weight of the state. In the contractual framework, breach of

6. See, e.g., Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) (concerning the confiscation of virtual property within Second Life).

7. See, e.g., United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) (attempting to apply the Computer Fraud and Abuse Act to a person who breached the MySpace terms of service by creating a false persona).

8. See generally Nicolas Suzor, The Role of the Rule of Law in Virtual Communities, 25 Berkeley Tech. L.J. 1817 (2010).

9. See Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to "Private" Regulation, 71 U. Colo. L. Rev. 1263, 1269 (2000); Brian F. Fitzgerald, Software as Discourse: The Power of Intellectual Property in Digital Architecture, 18 Cardozo Arts & Ent. L.J. 337, 384 (2000).

10. See Suzor, supra note 8.

these rules will only give rise to compensatory remedies; there is, accordingly, a fundamental tension between the justified reluctance of states to punish citizens for the breach of private rules and the need for virtual communities to be able to maintain order in situations where participants can avoid punishments for their wrongdoing.

This Article makes several normative arguments about how community rules should be enforced in a way that encourages both autonomy and legitimacy. Part II of this Article examines the way in which rules are enforced within virtual communities and what limits may be imposed on the imposition of internal punishments. I argue that the limits imposed by contractual doctrine should be read in a way that allow providers to enforce legitimate rules that accord with community norms but restrain the enforcement of rules that are not sufficiently promulgated, enforced, or consensual.

Part III examines how providers and participants are seeking to have internal rules enforced in territorial courts and highlights the quest for punishments that extend beyond the bounds of the community. This part considers the interplay between virtual community contracts and copyright, tort, and criminal law and suggests that these doctrines should not be used to impose effectively punitive sanctions for breach of consensual internal rules.

In Part IV, recognizing that providers will sometimes need the assistance of territorial states in enforcing community rules, this Article provides an argument for the use of equitable relief in a way that encourages both legitimacy and autonomy in community governance. This Article concludes that, while territorial states should not impose punitive sanctions for breach of community rules, equitable relief should be available to support legitimate community governance where internal sanctions are ineffective.

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