Mischief and Grief: Virtual Torts or Real Problems?

Mischief and Grief: Virtual Torts or Real Problems?

DOI: 10.4018/978-1-61520-795-4.ch008
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Perhaps more that any other branch of the law, tort has been the battleground of social theory (Prosser, 1977). According to Black’s Law Dictionary (1990), a tort is “a private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages (K.Mart.Corp.v.Ponsock, 732 P.2d 469 (Nev. App.) A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction (Coleman.v.California.Yearly.Meeting. of.Friends.Church, 81 P.2d 469 (Ca. App.). There must always be a violation of some duty owing to plaintiff (claimant), and generally such duty must arise by operation of law and not be mere agreement of the parties.” Individuals wish to be secure in their person against harm and interference, not only as to their physical integrity, but as to their freedom to move about and their peace of mind. This is important whether they are at home in Bournemouth or at home in a virtual world like Second Life. When an individual is at home in Second Life, they are represented by their avatar. This avatar is the characterisation of them which is valuable and persistent. Avatars embody real people who want food and clothing, homes, goods, money, entertainment, and to be secure and free from disturbance in the right to have these things in their virtual environments. They want to work and deal with others whilst protected against the interference with their private lives, their relationships, and their honour and reputation. In any society, it is inevitable that these interests shall come into conflict. The gaming community calls people who promote conflict “griefers”. Griefers are people who like nothing better than to kill team-mates or obstruct the game’s objectives. Griefers scam, cheat and abuse, often victimising the weakest and newest players. In games that attempt to encourage complex and enduring interactions among thousands of players, “griefing” has evolved from being an isolated nuisance to a social disease.
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A. Are Virtual Worlds Games Or Societies?

Games are hard to define. Game scholar, Johan Huizinga (1971), identifies them using the notion of irrelevance. Nothing can be a game if it involves moral consequence. Whatever is happening, if it really matters in an ethical or moral sense, cannot be a game. Rather, he believes that games are places where we only act as if something matters. Indeed, play-acting seriousness can be one of the most important functions in a given game. According to Huizinga (1971), if some consequence really does matter in the end, the game is over. In fact, the only act of moral consequence that can happen within a game is the act of ending the game, denying its as-if character, spoiling the fantasy, and thereby breaking the collective illusion that the game matters. The collective illusion happens in a specific place, an arena specifically intended to host the game. Games, he says, happen in designated spaces (Id.). This is also known as the magic circle of game play.

With virtual worlds, society seems to have begun an exploration of the dimension of significance that may be attributed to a game. Massively multiplayer online role-playing games (MMORPGs) are complex and persistent worlds which are particularly vulnerable to negative behaviour, not only because they offer more rules to break than the average first-person shooter, but also because there is more at stake for players. For every player who is content to view the virtual world as a game, there is another who gleefully buys and sells the game’s wands, armour, and gold pieces for U.S. currency on eBay. For every player who does not care if the virtual world is hacked and accounts are robbed, there is another who views the breach as a computer crime of the highest order. For every player who sleeps soundly after being banished from a guild, there is another who thinks about committing suicide (Castronova, 2005)

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