RESEARCH HANDBOOK ON THE LAW OF VIRTUAL AND AUGMENTED REALITY

RESEARCH HANDBOOK ON THE LAW OF VIRTUAL AND AUGMENTED REALITY

Woody Barfield dedicates this book to his daughter Jessica, his best friend Bailey, his former students, and the future generations which will spend significant amounts of time in virtual and augmented reality. As always, his wonderful parents are thanked for their support, affection, and guidance.

Marc Jonathan Blitz dedicates this book to his parents, Bernard and Alma; his brothers, Jeff and Andrew; and his wife, Holly, and daughters, Rachel and Gabrielle. He thanks his students and colleagues for the many conversations that have helped him think about how to address the challenges of applying First Amendment and other law to emerging technologies.

Both editors greatly acknowledge Stephen Gutierrez, acquisitions editor at Edward Elgar Publishing for his early support of the project, and throughout. Further, we thank Erin McVicar, Sue Sharp, and Laura Mann from Edward Elgar Publishing for their assistance with the project, and the production team for their work to produce a publication-quality work. We especially thank the authors for producing outstanding and forward-looking chapters and for their professionalism as they responded to our many queries for more information and for meeting deadlines. We also thank our colleagues for the many conversations we had with them on law and virtual and augmented reality and for their contribution to this emerging field of law.

Research Handbook on the Law of Virtual and Augmented Reality

Edited by

Woodrow Barfield

Professor Emeritus, USA Editor, Virtual Reality Journal, USA

Marc Jonathan Blitz

Alan Joseph Bennett Professor of Law, Oklahoma City University School of Law, USA

L1 L1 Edward Elgar

I -J n PUBLISHING

Cheltenham, UK • Northampton, MA, USA

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher.

Published by

Edward Elgar Publishing Limited

The Lypiatts

15 Lansdown Road

Cheltenham

Glos GL50 2JA

UK

Edward Elgar Publishing, Inc.

William Pratt House

9 Dewey Court

Northampton

Massachusetts 01060

USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2018946021

This book is available electronically in the Elgaronline

Law subject collection

DOI 10.4337/9781786438591

ISBN 978 1 78643 858 4 (cased)

ISBN 978 1 78643 859 1 (eBook)

Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

Contents

List of figures

List of contributors

Preface

PART I INTRODUCTION TO THE LAW OF VIRTUAL AND AUGMENTED REALITY

• 1  The law of virtual reality and increasingly smart virtual avatars

Woodrow Barfield and Alexander Williams

• 2  Starting up in virtual reality: examining virtual reality as a space for

innovation

Crystal Nwaneri

• 3  Virtual rule of law

Michael Risch

• 4  Mixed reality: how the laws of virtual worlds govern everyday life

Josh A.T Fairfield

PART II INTELLECTUAL PROPERTY LAW

• 5  Virtual copyright

Michael Risch and Jack Russo

• 6  Trademark law and the right of publicity in augmented reality

Brian D. Wassom, Amber M. Underhill, and Andrew L. Rossow

• 7  Trade dress in virtual worlds

Jack Russo

PART III ISSUES OF CONSTITUTIONAL AND CRIMINAL LAW

• 8  The First Amendment, video games, and virtual reality training

Marc Jonathan Blitz

• 9  Virtual reality, haptics, and First Amendment protection for sexual sensation 275 Brooke Lewis

• 10 Augmented and virtual reality, freedom of expression, and the personalization of public space

Marc Jonathan Blitz

• 11  Beyond unauthorized access: laws of virtual reality hacking

Gilad Yadin

• 12  The law and ethics of virtual sexual assault

John Danaher

• 13  Criminal liability for intellectual property offenses of artificially intelligent

entities in virtual and augmented reality environments

Gabriel Hallevy

PART IV APPLYING THE LAW TO DIFFERENT APPLICATIONS OF VIRTUAL AND AUGMENTED REALITY

• 14  Advertising legal issues in virtual and augmented reality

S.J. Blodgett-Ford, Woodrow Barfield, and Alexander Williams

• 15  Data privacy legal issues in virtual and augmented reality advertising

S.J. Blodgett-Ford and Mirjam Supponen

• 16  Reordering the chaos of the virtual arena: harmonizing law and framing

collective bargaining for avatar actors and digital athletes

Jon M. Garon

PART V CONTRACT, PROPERTY LAW, AND JURISDICTION

• 17  Property rights in virtual and augmented reality: Second Life versus Pokemon

Go

Hannah YeeFen Lim

• 18  Freedom of contract in augmented reality

Scott R. Peppet

• 19  Law and property in virtual worlds

Wian Erlank

• 20  Legal jurisdiction and the deterritorialization of social life

Paul Schiff Berman

Index

685

Contributors

Woodrow Barfield served as Professor of Engineering at the University of Washington’s Department of Industrial and Systems Engineering with a courtesy appointment in the Departments of Environmental Health and Civil Engineering. He holds a PhD, a JD, and an LLM; is currently Associate Editor for the Virtual Reality Journal, is a former senior editor of the MIT journal Presence: Teleoperators and Virtual Environments, and was on the editorial board of the Washington Journal of Law Technology & Arts. Further, he was Visiting Professor in computer science at University College, London, and was on the program committee which established the first conference on wearable computers and augmented reality. He also edited the first academic books on the same topics. He is a recipient of the National Science Foundation’s Presidential Young Investigator Award and was an External Fellow for Stanford’s Center for Internet and Society. His writings, which include more than 300 scholarly papers, discuss the law of virtual and augmented reality, and how the law applies to artificial intelligence and to humans enhanced with implanted technologies such as neuroprosthesis and brain-computer interfaces. His most recent books are Cyber Humans: Our Future with Machines and the edited collection Fundamentals of Wearable Computers and Augmented Reality (2nd edition), and he is coediting, with Professor Ugo Parallo, the forthcoming Research Handbook on Law and Artificial Intelligence. In