Ready For VR? Legal May Not Be

Ready For VR? Legal May Not Be
July 18, 2018
Virtual reality is already reshaping the way we interact with the world. Is the law ready for that shift?


Law professors Mark Lemley of Stanford and Eugene Volokh of UCLA explore some of the issues in an intriguing paper “Law, Virtual Reality and Augmented Reality.” Written last year, the paper is about to be published by the University of Pennsylvania Law Review and came on my radar with a tweet from Lemley:


The authors say they reacted to the Pokemon Go craze of 2016 by asking “Just imagine how many potential legal questions this raises!” They distinguish between “new takes on classic legal questions” and more novel controversies based on interactions that occur not in a physical jurisdiction, but in “private spaces with private rules.”


As Lemley and Volokh write: “[It] won’t be long before more and more of our interactions occur 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, education, exercise, even psychotherapy: VR will affect all these and more.”


The legal implications cross from civil to criminal. Take the case of virtual “street crimes”—that’s right, infractions like “disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and ‘virtual groping.’” While Lemley and Volokh concede that users “generally needn’t worry about being really murdered in a virtual space,” nor “beaten or raped,” they note that “many of the early legal flashpoints” for VR will probably “involve nudity and sex.”


Consider a nude perp that “pops right in front of you, wherever you look,” in an instance where it’s impractical leave (say, your job is in a VR arena). The authors note that in the physical world, such a perp would “probably be arrested for indecent exposure or public lewdness,” but “whether this law can be applied in VR turns out to be surprisingly complicated.” The Supreme Court, they point out, held that “public displays of films containing nudity, even on drive-in theater screens visible from the street, where unwilling drivers and pedestrians may see the nudity,” are protected by the First Amendment.


Then there’s the question of jurisdiction. If a user in San Diego calls the police to file a noise complaint about a user in Dubai, is there a real likelihood that one police force will contact the other? Would something like one user’s initial triggering of another’s epileptic seizure “be enough to lead the police to be willing to intervene? Or would they likely not think this to be worth triggering a possible interstate or international investigation, when, at least going forward, the victim could avoid such harms through technological means?”


This may all seem far fetched, but perhaps not as much as you think. Augmented reality game Pokemon Go has remained largely popular since its launch, rarely dropping from Google Play and Apple’s App store’s top 100 daily downloads, reports Wired.


What’s more, legal experts are already predicting VR / AR will run into legal issues around intellectual property. As Venable counsel Kimberly Culp told Legaltech News, “We certainly see in the video game context players who want to use images of companies they like, or games that they like, and the appropriation of those images is arguably a copyright infringement if one wanted to make that argument.”


>> Look Ahead: We’re just on the precipice of VR, and legal institutions will take some time to work through issues that blur the lines between the virtual and physical worlds.

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