5.1 Conceptualisation and History of VWs and Games

(a) Definitions and a Brief Historical Account

The concept of virtual worlds (VWs) pre-dates the Internet. The history of VWs began with text-based, offline role-playing games, created based on different works of fiction, such as, for instance, JRR Tolkien’s books and the idea of world-building. The first text-based interactive computer game appeared in 1970, Colossal Cave Adventure, with real-time interactive computer games called multi-user dungeons (MUDs) appearing by the end of the 1970s. These were the first VWs. MUD1 was created by Richard Bartle and Roy Trubshaw in 1979, at Essex University, being the first online network computer game. However, the most famous game in this group (text-based VWs) was LambdaMOO, created by Pavel Curtis in 1990.

The literature analysing social, economic, technological and legal aspects of virtual worlds starts from the late 1990s, concerning the text-based VWs, and continues throughout the 2000s, discussing visually represented

VWs and massively multiplayer online playing games (MMOPGs). The focus of the early literature was mainly on the technical, philosophical and governance issues of MUDs. More substantive legal discussion started at the beginning of the twenty-first century, with seminal works on the legal aspects of VWs, which tackle the following issues: economies and taxation; governance of VWs; property and IP; contracts and consumer protection; and virtual crime.

There is a variety of academic literature discussing death and VWs from anthropological, sociological, psychological, educational and other perspectives, but little, almost nothing, from a legal angle. Literature about VWs and games has been decreasing steadily in the last two decades. However, issues around their legal nature have remained.

Legal aspects of transmission of other digital assets on death (e.g. emails, social network accounts, online banking accounts, photos, domain names) have been explored to an extent following the growing importance of these assets in life and on the death of the users, only sporadically mentioning VW accounts as types of digital assets. This literature has been explored in more detail in other chapters.

This chapter addresses the gap in the literature and sheds light on the post-mortem legal status of different in-game assets (e.g. avatars, weapons, houses, land).

Possible solutions for the issues identified in previous chapters will be grouped loosely into technology and market solutions, followed by legal and policy solutions, reflecting Lessig’s taxonomy of the four regulatory modalities of cyberspace: ‘code’ (i.e. technology and architecture), market, law and norms.

The main idea advanced in this book is that the interests of individual users to decide what happens to their data on death should be recognised and protected. In other words, the book promotes user autonomy, privacy, identity and technological options that correspond with the offline, traditional ones (i.e. freedom of testation). The solutions also recognise novel phenomena of immortality, considered under the concept of postmortal privacy. This is not to say that some other legitimate interests should be disregarded, such as public interest, the need to maintain archives and historical records, freedom of expression or the freedom to conduct business. However, due to the scope of this book, an in-depth examination and balancing of these interests is not viable.

All these solutions are tentative. They originate from the analysis in this book, and I will aim to develop further the principles established here in future research projects and publications. The ambition of this book was to set the scene, introduce and explore critical theoretical and legal issues, and offer a framework for future thinking, rather than to offer precise solutions for each issue.

7.1 ‘Code’ and Market Solutions

‘Code’ or technology solutions, using Lessig’s taxonomy mentioned above, are online services aiming to assist in the disposition of digital assets on death, digital estate planning, succession and remembrance. A significant category of stakeholders is online services, which aim to help with the disposition of digital assets on death. They aim to shift the control of digital assets to users by enabling the designation of beneficiaries who will receive the passwords and content of digital asset accounts. This way, the services impliedly recognise user property in digital assets and attempt to bypass restrictions imposed by the terms of service discussed in this book. Understandably, they also see a growing market and an opportunity for investment and profit.

These services, still primarily US-based but increasingly hosted in the UK, are categorised in this book as follows:

• • Digital wills, for example Legacy Locker, now part of the True Key service, Cirrus Legacy, Beyond Life or SecureSafe.

6.1 Conceptualisation and a Brief History of Emails

‘Electronic mail’ (email) is an electronic system for exchanging messages over the Internet. The common usage of the term ‘email’ refers to individual electronic messages, and usually only to the textual content of the messages and their attachments. This chapter will adopt this terminology and refer to email messages (hereinafter email) in terms of their content. Email accounts (hereinafter accounts) enable access to emails, and an analogy usually used here is that of letters. Along this line, accounts are some form of ‘physical’ representation of emails, enabling and regulating access to their content, just as paper is a physical representation of letters and their content, defining access to this content. This analogy will be used and evaluated in more detail later in this chapter.

The history of emails started in 1965 when Van Vleck of MIT invented ‘the first popular computer-based electronic mail service as a posting/delivery construct with addressing’. In the subsequent twenty years, many other system components (e.g. transfer protocol, content or user feature) were developed to create the system as it is nowadays. The technical features of the system are as follows: flexible form (plain text, right format, attachments, pictures, videos); asynchronous character (people send and receive messages on their own time); broadcast (the ability to send messages to many people simultaneously); push technology (the sender decides on the content and timing of a message); and threaded conversations.

Email still represents the core of all online communications, along with social networking. Usage of emails is relatively evenly spread across different age groups, making it the most used activity online in the UK and US. Today, communication is almost impossible to imagine without this quick, relatively reliable and convenient system used for various purposes, such as communication, task and contacts management, and sharing of documents, pictures, videos and other content as attachments, both for personal and business purposes. One could argue that social media and instant messaging will gradually supplant emails in online communications. However, research has found that similarly to emails complementing telephone and face-to-face communication, the use of social networks has complemented the use of emails so far, without resulting in a significant decrease in their use.

The consumer market is dominated by the email providers Google (Gmail), Microsoft (Outlook.com) and Yahoo! (Mail).

This chapter sets out a basic conceptual foundation for this book, which will be used in the case study chapters to determine the fundamental question of the nature of assets exemplified in this book. We will consider whether certain types of digital assets fit within the notion of property and consequently transmit on death like some of the more traditional types of property.

Suppose digital assets analysed in this book are found to be property or protected by IP rights (copyright in particular). In that case, their transmission is clear: property transmits on death, and copyright protection lasts for many years post-mortem (seventy years in the referent jurisdictions, US and UK). To confirm or discard this proposition for each of the case studies, we will explore the meaning of property, its incidents and justifications in this chapter. This discussion will be further applied to examine whether social networks, emails, games and virtual world asserts are property objects.

The analysis sits alongside the discussion in Chapter 3, where autonomy and privacy are examined as further examples of the conceptual underpinning of the book. I, however, do not rely on any claim about the relationship between property, privacy and autonomy. I make no claim, for example, that autonomy underpins property or that the concept of privacy somehow ‘mediates’ between the concepts of autonomy and property. Instead, property is examined from various angles simply to determine whether virtual assets could (doctrinal question) and should (normative question) be regarded as property. If the answer to either of these questions is ‘yes’, then these assets can be transmitted on death by testate and intestate succession laws. If the answer is ‘no’, because some assets are primarily made of information and personal data that cannot constitute property, privacy and autonomy take precedence in this conceptual framework.

This chapter will not discuss copyright from a theoretical perspective. The reason for this is that copyright’s transmission on death is clear and settled in law, so if a digital asset meets copyright protection requirements, this right will be passed on to the heirs of a deceased user. Instead, the chapters discussing case studies will assess whether some of their content satisfies copyright requirements from a doctrinal perspective. Although the transmission of property is also evident, property features are not as settled or harmonised in law or theory.

4.1 Conceptualisation and a Brief History of Social Networks

Social network sites (SNSs) can be defined as:

boyd and Ellison use the term ‘social network sites’ as opposed to the term ‘social networking sites’ that is often considered its synonym. They argue that these terms are different in that ‘networking’ emphasises relationship initiation, often between strangers, which is not the primary purpose of social network sites, ‘nor is it what differentiates them from other forms of computer-mediated communication (CMC)’. Instead, social networks are primarily used to maintain and continue existing offline relationships between their users. This varies across SNSs and is more accurate for Facebook than for Instagram, where users follow and interact with a more significant number of ‘strangers’ who choose to leave their profiles open.

Grimmelmann, in his comprehensive early study on Facebook, accepts this definition and adds the feature of ‘explicitness’, noting that social networks are ‘the explicit representation of connections among users’. These connections and interactions, according to Grimmelmann, have three most important aspects: identity (they enable users to create and build their identities, so they are ‘as much performative as informative’), relationship and community. Regarding the relationship aspect, research finds social networks have significant social impact, including their use to maintain social ties, revive ‘dormant’ relationships and avoid social isolation. Social networks carry many negative connotations and consequences, such as addiction, bullying, harassment and trolling. A great range of credible research has emerged over the years to evidence these phenomena. However, this aspect of SNSs is outside the scope of this book.

Another critical aspect of SNSs is that they facilitate the posting and sharing of user-generated content (UGC), discussed in Chapter 1. The individual terms in the UGC phrase take the following meanings: user –a computer or Internet user and amateurs; generated –created by these users, including a degree of creativity, something not merely uploaded or copied; content –digital content, the content available online. White, for example, when defining UGC, notes that ‘Blogs, wikis, social-networking sites and video-sharing sites (for example, YouTube) are among the most popular UGC technologies.

It has been nearly twenty years since the issue of digital assets and death was first discussed in the media. Nevertheless, there is still little clarity in the law in most places. In 2005, a judgment was handed down in the US, In re Ellsworth, where the family of a US Marine, Justin Ellsworth, killed in Iraq, requested access to his emails stored in his Yahoo! account. Yahoo! refused, referring to its terms of service, which banned access to all third parties on death. Yahoo! claimed that the law prohibits it from disclosing deceased users’ personal communications without a court order. The family argued that as his heirs, they should be given access to Justin’s emails and the account, his sent and received emails, as his last words. Yahoo!, on the other hand, had a non-survivorship policy, and there was a risk that Ellsworth’s account could have been deleted for good. The judge allowed Yahoo! to enforce its privacy policy and did not order the transfer of the account credentials. Instead, he made an order requiring Yahoo! to enable access to the deceased’s account content by providing the family with a CD containing copies of the emails. The media reported that Yahoo! initially provided the emails received by Justin Ellsworth on a CD and, after the family complained again, allegedly subsequently sent paper copies of the emails.

In a more recent case in Germany, the parents of a fifteen-year-old girl who allegedly committed suicide wanted to access the account and private messages to understand why it happened. Facebook refused to grant access to the deceased girl’s Facebook account to her parents, arguing that its duty of confidentiality was owed to her and her contacts. The Court of Appeal in Berlin upheld Facebook’s decision, but the Federal Court of Justice overturned this, applying the law and the principle of universal succession (i.e. that heirs ‘step into the deceased’s shoes’ for all her rights and obligations).

In another US case, In re Scandalios, Ric Swezey died unexpectedly in 2017. His will did not explicitly authorise his husband, Nicholas Scandalios, to access his digital assets, including many family photos in his Apple account. Unsurprisingly, Apple iCloud’s terms and conditions stated that ‘any rights to your Apple ID or content within your account terminate upon your death’, unless required by law.

This chapter examines the primary underpinning value of the book, namely autonomy, and its relationship with the concept of post-mortem privacy. This analysis will be relevant to the case studies of emails and social networks due to the prevalence of personal data and privacy issues in these digital assets. The analysis can also apply to any other highly personal digital asset, any aspect of digital legacy and remains that intrinsically relates to what we consider our ‘self ’, who we are, or, as Floridi puts it, our ‘informational body’. The issue of post-mortem privacy is less relevant to games and virtual worlds since players usually take up imaginary identities and do not share their personal data and the real-life identities therein. It is also less relevant to highly monetary assets, such as virtual currencies.

In my earlier work, I have set up foundations for the theory and law of post-mortem and, later, postmortal privacy. The discussion in this chapter will consolidate these foundations and deepen the analysis of all the relevant concepts, including autonomy, privacy and data protection.

As discussed in Chapter 1, various stakeholders are concerned with the issues and the analysis in this book (users, families, service providers, friends, society). When considering choices amongst their interests, both doctrinal law and theoretical justifications for recognising the property status of digital assets do not always give a clear answer. I thus take a normative stance and promote the user’s interests over their family or intermediaries in this instance. The reason is that autonomy is asserted as the key concept driving the development of the law in this area, as seen in the discovery of post-mortem privacy. Simultaneously, the technology market has a clear drive to provide such autonomy via Google Inactive Account Manager or Facebook Legacy Contact. Furthermore, the US Uniform Law Commission work in the area and some data protection statutes in Europe illustrate a significant policy drive towards greater recognition of post-mortem privacy.

I contend that if one of the digital assets analysed in the subsequent chapters can be considered property, then the answer is clear, and they do transmit on death. Conversely, if this conclusion cannot be established, then the user’s interests and autonomy might not be met. In such circumstances, reform of the law might be required.

When, in 2017, the European Parliament adopted the Resolution with Recommendations to the Commission on Civil Law Rules on Robotics, it introduced the topic in an unusual way, for a legal document:

By evoking in a legal text some of the most recognisable figures from literary fiction, the Parliament confirmed, if confirmation was indeed necessary, the wisdom behind the Gikii conference series, which since 2006 has brought together in an annual event, lawyers, technologists, sociologists, political scientists and other researchers, from industry as well as academe, to explore the intersection between law, popular culture and technology. This book grew out of this ongoing effort not just to bridge the gap between different intellectual traditions and communities, but to explore and leverage the power of human imagination in understanding, critiquing and improving the legal responses to technological change.

Arts and popular culture play a complex role in mediating between law and technology. For scholars, critics and media observers, they can act as an expression of both the enthusiasm and unease that a society feels about technological development, and in this way shape demand for regulatory intervention. They can also provide us with the creative space to think about how societies governed by new laws may look. Asimov's Three Laws of Robotics, first introduced in the short story ‘Runaround’ in 1942, long before autonomous intelligent robots were any kind of real-life possibility, are one key example that has had a palpable impact on the discussion around regulatory theory and jurisprudence. Asimov's laws have been frequently invoked in scholarship, both to explore the limits of legal formalism (i.e. making legal rules into computable code) and as a model for ‘compliance by design’ (think digital rights management or content filters, which operate without any need for enforcement in courts or by police). Since their creation, they have often been mentioned, for example when designing codes of ethics for researchers and have even influenced legislatures, as in South Korea's Robots Charter.