In 2004, Edward Castronova suggested that a sharp distinction between 'open' and 'closed' synthetic environments – between worlds which are play spaces and worlds which are “merely extensions of the territory of the Earth”.¹⁾ The value of the play worlds, Castronova asserts, comes from their isolation from territorial rules – a separate place of synthetic play.²⁾ However, given the incentives which exist for any one actor (whether player, developer, or external regulator) to break the shared illusion, the play value is likely to be eroded through a tragedy of the commons.³⁾ Because we have a “fundamental right to access [the] joy and […] self-esteem”⁴⁾ that comes from playing in synthetic worlds, it follows, Castronova argued, that we have a responsibility to protect those worlds from regulatory interference.⁵⁾

The model that Castronova proposed to do this is the 'Statute of Interration' – similar to statutes of incorporation, the developer of an open synthetic world ratifies a charter and acquires a guarantee of a separate fictional play space, where “the acts and assets inside it are exempt from most laws of the Earth.”⁶⁾ In return, the “chartered interration would be subject to strict rules”⁷⁾ - such as conforming to 'standards' of 'construction' and 'policy'. After interration,

“The State intervenes in closed worlds only under conditions defined within interration law. To the extent that outside law applies in closed worlds, it should protect the freedoms of users.”⁸⁾

This last sentence foreshadows an interesting critique of Castronova's proposal. To the extent that we believe that participants in play spaces ought to be protected, the law will continue to apply to apply to those closed worlds. The closed world cannot be a haven from territorial law - as Castronova recognises, “the rules by which such a place receives its charter will, and in fact must, impose restrictions on the decrees of owners; no one can legally interrate a world that is designed to immiserate people or violate their dignity.”⁹⁾ Jack Balkin suggested a similar approach, but focused on protecting the free speech rights of players.¹⁰⁾ If we are serious about protecting the freedoms of users, the category of laws which we do apply to 'closed' worlds may be quite large. The nature of the interration, then, is less a separate place removed from legal oversight, than an express articulation of the nature of the shared fiction – mainly, in Castronova's conception, a recognised declaration that property rights will not vest in participants.

Statutes of interration may not provide an impermeable boundary at law, but they may serve a very valid signifying purpose. In Castronova's construction, they allow developers to declare the terms of the shared fiction a priori, and here is their greatest strength and greatest weakness. Well executed, a charter for 'closed' worlds would provide certainty for both developers and participants. Participants will be able to know and understand the rules before they invest themselves in the game, and developers will benefit from greater certainty in enforcing those rules. The drawback of this gain in certainty, however, is likely to be a loss of flexibility. If the developers do not rule with an iron fist and enforce the rules exactly as written (which is itself an expensive process), participants may collectively change the internal norms to the point where they no longer reflect the charter. The participants who invest themselves in the evolving space in emergent ways are then likely to suffer when the rules are strictly enforced. Castronova suggests that these players must be sacrificed for the greater good of protecting the fantasy.¹¹⁾

On the other hand, if the developers do rule with an iron fist, the world is effectively immunised from change.¹²⁾ Assumedly, unless we express a preference for unchanging rule-sets, the process of interration must have some scope to modify the charter once implemented. The vision of play-spaces Castronova has in mind, then, appears to be a vision of spaces which are tightly controlled by the developers, and in which any evolution is also strictly controlled. These spaces may well be worth protecting in the manner Castronova claims – but this does not mean that other spaces, which evolve much more organically from within, are not also deserving of protection as play spaces. The sharp dichotomy drawn by Castronova between open and closed worlds, and the formal nature of the statute of interration does not properly account for these other possibilities.¹³⁾ As Andrew Jankowich notes, it “is unclear how statutes of interration […] will manage this difficult middle ground […] which may well account for the bulk of virtual worlds”.¹⁴⁾

For the spaces Castronova has in mind, however, the statutes of interration may provide the legitimacy and certainty that game developers are anxious to receive. If the internal practices of a community roughly match the description on the charter, and the norms which are developed are ones which we allow the community to develop, then there is no conflict and enforcement of those rules by a court would be virtually indistinguishable from enforcing the distinctions drawn up in the charter. If the internal norms differ from the charter, however, then the decision whether to enforce the internal norms or enforce the charter is crucially important. Either the developer's vision or the expectations of the community must be sacrificed. Castronova appears to suggest that both players and developers interests will have to be sacrificed, to some extent. Participants who involve themselves beyond the scope delineated for the game by the charter will receive no protection. On the other hand, the charter must be narrowly tailored and developers will not be permitted to interfere with the legitimate rights of participants, whatever those may be. Assuming, for the moment, that Castronova is correct that the sanctity of the developer's vision ought to be protected, we still need to decide what limits we will impose on that vision. What participant interests do we need to guarantee through the charter?

Once the charter has been accepted and the play space interrated, the question then arises as to where liability will fall if and when the internal norms shift away from their expression in the charter. Presumably, where the developer is at least partly responsible for deviating or allowing the world to deviate from it's idealised expression in the charter, then the developer may not be able to rely on the charter as a complete defence to a participant's claim of damage.¹⁵⁾ This returns us to our original question – in what circumstances ought the law uphold the developer's vision for a synthetic world, and in what circumstances will the interests of a participant prevail?

Seen in this light, statutes of interration can be thought of as a handy tool to do away with the factual questions, to the extent that the developer is successful at keeping the community in line with the a priori rules expressed by the charter. In these circumstances, for example, when presented with a claim of theft of virtual property, we do not have to ask whether the virtual object has the nature of property and whether its removal by another player or by the developer amounts to a non-consensual taking – both of these are likely answered negatively in the charter, and the charter accurately reflects the internal norms of the community.¹⁶⁾ In the difficult cases, however, where the charter does not provide an answer or where the internal norms of the community differ, the statute of interration provides us with little help unless we choose to always side with the developer over the player – a blunt approach which remains unsatisfying.

Statutes of interration provide a mechanism for allocating risk and liability on certain issues at the outset, but they do not provide an easy solution to the normative problem at hand in hard cases. Where a question of liability or duties arises which does not fall squarely within the explicit wording of the charter, or where the internal norms of the community have shifted away from the vision expressed by the charter, then a choice to uncritically prefer the developer's vision over the interests of the participants merely obscures and assumes away the normative question. If Castronova is correct, and we ought to allow developers near-absolute discretion in the running of the game world in order to protect these spaces from destructive legal interference, then the fundamental question is: what responsibilities will we impose on developers in return for this guarantee of non-interference?