I use Hein Online a lot, but have recently become sick of having to manually reformat the citations it gives me for journal articles (to the format I use, following the Australian Guide to Legal Citation. So, procrastinating, I wrote a quick script to do exactly that. Someone else may find it useful.

Input example:

82 Ind. L.J. 261 (2007)
On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age; Reuveni, Erez

AGLC formatted output:

Reuveni, Erez , “On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age” (2007) 82 Ind. L.J. 261

Get the script here: Ruby script to convert Hein Online citations to AGLC

(Photo by Steve Rhodes, CC BY-NC-SA.)

I've found Google maps to be incredibly useful on my recent trip to San Francisco. I've come to rely on it. Google evidently encourage me to rely on it - there are trains all over SF advertising their new public transport integration (http://maps.google.com/bayarea), which, for the most part, works really well.

The problem comes when it is completely and horrendously incorrect. California has a very low tax rate on alocohol, and I was looking for a BevMo to take some bottles back home. I used Google's public transport planner and came up with what looks like a reasonable trip from the SF CBD to a store close by: map

My first problem was not checking the terrain. Not being local to SF, I didn't realise that Pioneer Park was in fact Coit Tower, and would require a very steep walk up Filbert St. That's ok, it was worth the walk, so we headed up.

When we arrived at the top of Montgomery St, we seriously began to doubt whether anyone would build a liquor warehouse on the top of a practically inaccessible hill. We spent a great deal of time walking along Montgomery looking for the mythical store, and ended up walking back down the hill to check on the other side, closer to the wharves, before concluding that we must have incorrectly remembered the street number, and the shop must have been further South than we looked.

It seems my second mistake (really, my first), was trusting Google maps at all. I looked again, and there was a review on the search for BevMo, which shows someone else who had been confused: Eric says,

“I have no idea where Google is getting its information, but there is no Beverages & More at this address. The address they've given is for an apartment building in a residential neighborhood. There aren't even any businesses close by (with the exception of a hillside restaurant). This location is difficult to find, hard to reach, and will leave you sorely disappointed when you arrive. If you're looking for a Bevmo, don't waste your time going here!”

Wish I'd read that first.

Is it reasonably foreseeable to Google that I may suffer damage if they supply me with incorrect information?¹⁾ I think it's fairly clear that reliance on incorrect information could cause some damage, although I wouldn't really like to have to argue for compensation for damages for 2 hours walking around like a headless chook. The question then becomes - is my reliance reasonable? Is there a sufficient relationship of proximity?²⁾

I think that you'd be hard pressed to argue that Google generally owes a duty to provide completely accurate information. However, where Google Maps are actively encouraging commuters to rely on their service (eg, by painting entire trains blue with advertisements for their new transit integration), I think that they may be coming dangerously close to acquiring a duty of care. I would think that duty would be strongest with regards to the actual timetabling information, but could it extend to the entire trip planner?

The only disclaimer that is even close to readily visible on Google Maps pages is the text:

These directions are for planning purposes only. You may find that construction projects, traffic, or other events may cause road conditions to differ from the map results.

I think that this would be fairly limited to temporary scheduling changes. I am doubtful that it would extend to the situation where the destination doesn't exist at all.

There are other purported disclaimers, linked to as 'terms and conditions' from the bottom of the map page. If these are validly incorporated (remember, they're only browse-wrap, and the terms can only be incorporated if there is sufficient notice), they state, at the first linked level:

The Google Maps service includes search results such as business listings, images, and related information provided by third parties. Additionally, you may choose to access other third party content made available in Google Maps through services such as Google Gadgets. Google makes no representations or warranties regarding the accuracy or completeness of the information provided by these third parties. Your use of third party content may be subject to additional terms that can be found on our Legal Notices page.

And at the bottom of the referenced page:

When you search for local listings, Google displays business listings which may be supplied by Acxiom or infoUSA. This information is proprietary to those corporations and is protected under U.S. copyright law and international treaty provisions. This information is licensed for your personal or professional use and may not be resold or provided to others. You may not distribute, sell, rent, sublicense, or lease such information, in whole or in part to any third party; and you will not make such information available in whole or in part to any other user in any networked or time-sharing environment, or transfer the information in whole or in part to any computer other than the PC used to access this information.

The magic words are “Google makes no representations or warranties regarding the accuracy or completeness of the information provided by these third parties.”

The problem here is that there is no indication that the content is provided by a third party and not Google itself. When you search Google maps, as I did, for “BevMo, SF”, you are presented with a number of results, and no indication that they were user generated or are submitted by trusted third parties. In these circumstances, I think there is a valid argument that the disclaimers aren't effective - first, not validly incorporated, and second, if they are, it is not clear that these are third party listings.

Which leaves us with Google's catch-all disclaimer, contained in the general Google Terms of Service, cl 14.3 and cl 15.1:

14.3 IN PARTICULAR, GOOGLE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
[…]
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, […]

15.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 14.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT GOOGLE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:

(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;

Once again, if you don't have a Google account, you probably have never seen these before. They're linked off the terms which are linked off the maps pages. If you have a Google account, doubtless you checked the box which said “I agree to the terms of service” without reading the terms themselves. If these are validly incorporated, it would appear that Google may have effectively disclaimed liability.

I think that if Google is going to disclaim liability in this way, it ought to behave more transparently when providing results which it has not validated. A warning to users may be sufficient to encourage them to check the official websites rather than relying on Google's results. But then again, people probably wouldn't. I certainly didn't - I have grown used to Google generally providing accurate results, and had no real reason to doubt that it would this time.

The problem here is that if we impose these high standards on Google, we may well throttle their ability to provide any results - the automated, non-verified searching and presentation of results would seem to be the only way in which Google can provide a service which seeks to be as comprehensive as Maps is. So what's the answer? Unfortunately, it may just be 'searcher beware'…

Creative Commons Australia is hosting a conference on 24 June 2008, entitled ”Building an Australasian Commons”.

It will be at the State Library of Queensland, in South Brisbane. The conference is followed at 5.30pm by the second Australian ccSalon, which will showcase some local artists and be a lot of fun.

Both events are free, but registration is required. I'll be there - hope to see you too!

More information:

• Program
• Registration form
• RSVP by emailing the above form to elliott@creativecommons.org.au

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?

Where the proprietor of a virtual community generally fails to enforce the rules, could it be estopped from doing so in any particular instance?

Despite a clear contractual right to terminate, a provider may be estopped from terminating in circumstances where it would be unconscionable to do so.¹⁾ In order to prevent the provider from terminating, a participant would have to show that the provider had represented that it would not terminate, that the participant relied on that representation to his or her detriment, and that it would be unjust or inequitable for the provider to terminate in those circumstances.

The representation that the provider would not rely on the right to terminate does not need to be explicit, but it must be unequivocal.²⁾ The representation does not need to be made to a particular person, but can be made to a class of people.³⁾ Where breaches of a particular rule are widespread, a long-standing failure to enforce the rule could conceivably be construed as a representation that the provider will not enforce the rule in future. However, such non-enforcement could also be construed as not making any representation as to the future.⁴⁾ The requirement that the representation be unambiguous does not mean that “it cannot possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed.”⁵⁾ Whether a representation has been made is a question of fact, and its existence “must be decided on ordinary common law principles of construction and of what is reasonable, without fine distinctions or technicalities.”⁶⁾ In practice, while possible, it may be quite difficult for a participant to establish that the provider represented that it would not enforce a rule in future or against any particular person.

If a representation can be shown, the participant must also be able to show that he or she reasonably relied on that representation. While showing reliance may be straightforward – in that the participant would not have engaged in conduct that technically broke the rules if he or she did not believe that the rule would not be enforced – showing that the reliance was reasonable may be more difficult. In Galaxidis v Galaxidis, Tobias JA (with whom the other members of the NSW Court of Appeal agreed) held that

the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely.⁷⁾

Brennan J, in Walton Stores v Maher, held that it was “essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation”.⁸⁾ Again, whether it is reasonable for a participant to rely on a representation that the provider will not enforce a strict contractual right will depend on the circumstances.

It may be difficult to establish in many cases, but it would certainly be open for a judge to find that a platform owner is estopped from terminating a particular participant's access to the virtual community where it takes no action against others who have habitually broken the same rule. If an estoppel can be established, it is important to consider that estoppel does require that that the representation or promise be fulfilled, but instead only provides a remedy for the detriment suffered as a result of reliance upon the representation.⁹⁾ For this reason, an estoppel, unlike an election, is not permanent – if the detriment to the relying party can be cured, the provider will once again be entitled to exercise its rights. For practical purposes, this means that given sufficient warning, a provider may be able to begin to enforce rules which it had largely ignored in the past.

There is a lot of flexibility in the doctrine of estoppel, and a significant normative question arises as to whether it ought to apply in any given case.¹⁰⁾ In the most extreme cases, it will almost certainly be effective as a brake on the ability of platform owners to rely on strict contractual rights which it has encouraged participants to believe would not be enforced. Its application in other circumstances, however, will depend in a large part on the discretion of the court as to how the alleged representation is interpreted and how reasonable the court believes the reliance on that representation to be. Like the other ways in which strict contractual rights can be read down, I believe that these considerations will depend particularly on the importance which the court attaches to the interests of the participant at issue.