Trapped in Virtual Reality!

Millions of people went crazy for Pokemon GO in 2016, venturing into private and public locations to catch Pokemon characters that were only visible to them. The game Pokémon GO was the first to introduce the public to the concept of augmented reality (AR).

AR users can see the real world as it is, but with visible digital images overlayed such that the images appear to be part of the real environment.

There’s also virtual reality, which goes beyond augmented reality (VR). Users can enter a virtual environment and move around and interact with it as if it were the real world by wearing a headset.

“Around 25 million people in the United States consider themselves to be active video gamers. The sector is worth $30 billion in the United States and $90 billion globally. It has its own popular television network,, and in 2015, the finals of a League of Legends tournament drew more viewers than the NBA basketball finals. In the last year, over $1 billion in income was produced by Pokémon Go alone.”

AR and VR, on the other hand, raise legal issues for courts, businesses, and users. People will use AR and VR to kill and die, and some have already done so. They will harm themselves as well as others. Players have already fallen down a cliff or walked into oncoming traffic while playing Pokémon GO. Some will take advantage of the technology to threaten or scam others. To determine who is to blame, courts will need to grasp the technology and how it varies from the world before it.

CRIMES. In the real world, people sexually harass strangers and expose themselves indecently; there’s no reason why they wouldn’t do it in virtual reality. They are undoubtedly more likely to do so if they believe it will be difficult for law authorities to apprehend them. That ambition, though, may be difficult to fulfill. Extradition’s additional hurdles are likely to outweigh the greater ease of proving. As a result, traditional police forces may effectively ignore numerous VR street crimes. Suspension or exclusion from the virtual reality environment will most likely be the consequences. Participants who have been kicked off can simply re-enter by generating a new user ID.

The exhibitionist would almost probably be charged with indecent exposure or public lewdness if this happened in real life. Is it possible to apply the same law to virtual reality? Would you expect police forces to welcome the prospect of extraditing a person from another state or county simply because their internet avatar is nude? Because the exchanges may occur in multiple physical jurisdictions, it will be more difficult to regulate them effectively. As a result, police arrests and prosecutions will become more expensive, and law enforcement will be less willing to intervene. This is especially true in circumstances where there appears to be no “real” harm. As a result, police will be less likely to take this issue seriously, leaving VR users to fend for themselves.

We may see crimes and other issues occur in VR without the legal system doing anything about it since enforcement will be too tough for the less serious crimes that are likely to be witnessed in VR and AR. To the layperson, virtual reality is merely a game. Courts and police departments may determine that the wrongdoing took place within the game or server and is a personal matter. The VR data will be owned by commercial corporations, who will impose terms of use that bind users and disclaim liability for harm. As a result, police will be even more hesitant to act. The capacity of VR and AR operators to contractually waive liability, together with 47 U.S.C. 230, will certainly deter lawsuits against them.

Virtual reality and augmented reality will also test our understanding of what constitutes speech, which is protected by the First Amendment, and what constitutes non-speech activity that requires regulation. Is nudity on a drive-in screen, speech, the same as indecent exposure, conduct? In the physical world, the basic distinction between words and actions makes sense because we believe that the harm that words may inflict at a distance is generally smaller and easier to avoid than the harm that physical touch can cause.

Virtual reality and augmented reality, on the other hand, are designed to make conveyed pictures and sounds feel as real as possible. They challenge our perception of reality because they blur the cognitive boundaries between imagery and physical existence. People react as if they’ve been slapped in the face when they receive a virtual slap. The reaction is intuitive; it is not based on actual physical contact, but it seems real in a way that words or images outside of VR do not.

With respect to injury in the actual and virtual worlds, VR and AR will offer legal challenges that may necessitate adjusting existing doctrines or changing legal laws. Now, I’d like to pose a question to you. Virtual reality isn’t “real” in the traditional sense. We see data that has been stitched together to create artificial audio and video. It does, however, feel real in a way that is difficult to explain until you’ve experienced it. The same might be said about augmented reality if it can overlay vibrant and lifelike representations of people and objects over the real-world reality we experience. Do you think we should punish specific types of conduct if a VR/AR misconduct experience feels genuine and has significant emotional and physiological consequences? How would you differentiate between virtual reality and physical wrongdoing in terms of punishment?

Social Rift

Another day, another questionable Facebook acquisition, and as put it, another instance of the “Facebook” effect.  This particular acquisition is the $2 billion purchase of virtual reality headset manufacturer “Oculus Rift.”  Oculus Rift is a particularly unique purchase by Facebook because of its crowdfunding roots.  Oculus Rift got its start through the crowdfunding website “Kickstarter.”  Kickstarter allows individuals to contribute money to upstarts and projects often essentially pre-purchasing the product they are supporting.  Oculus Rift was able to successfully get funded and shipped its VR headsets to qualifying supporters.  Oculus was deemed to be a device that will change the gaming industry and supporters, many of them developers, wanted to get in on the ground floor.  Since its funding the Oculus Rift has improved and has been used for numerous projects, demos, and games by developers, artists, and gamers alike.

The future of the Oculus Rift will now however will be determined by Facebook its new owner to the dismay of many of Oculus’ former supporters.  Which poses an interesting legal question that Kickstarter and startups like Oculus have to consider.  What happens when your hundreds of investors on a crowdfunding site like Kickstarter think they are funding something like a unique grassroots revolution in gaming and it turns out to be bought by a social media juggernaut who may have intentions to take the company in a completely different direction?  Kickstarter has maintained that supporters on their website are not entitled to shares of the company they are supporting, viewing supporters as donators more than investors.  Many of the 9,522 initial Kickstarter backers of Oculus are now demanding their money back and expressing their displeasure online through social media such as on twitter and on Oculus’ Facebook page (irony noted).  Oculus’ Kickstarter page is riddled with comments condemning the acquisition and expressing their feelings of betrayal believing Oculus received a windfall on the shoulders of their supporters who made them who they are today.

Facebook may be able to now provide Oculus funding much greater than they have ever seen before, but their future in gaming is at risk by a number of factors.  The “Facebook effect” for instance, caused by the feeling of distrust of the social media giant by many, is already having an adverse effect with not just their Kickstarter supporters, but also by huge players in the gaming industry the platform needs to rely on.  The creator of “Minecraft,” an immensely popular game on a large number of platforms including game consoles, mobile phones, and PC’s tweeted, “We were in talks about maybe bringing a version of Minecraft to Oculus. I just cancelled that deal. Facebook creeps me out.”  Oculus also will soon no longer be the only game in town as far as virtual reality is concerned, with Sony announcing recently their own headset, Project Morpheus, for their PlayStation 4 game console. offered a quote by Sam Biddle from the blog Valleywag to offer a strong perspective to sum up the concerns of many in the crowdfunding community, “For me, it’s now simple: post-Oculus, if you back a large Kickstarter project, you’re a sucker.”

Read more at: Engadget & Kotaku

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