Virtual crime and punishment vs. free thought

My world view of what you can and cannot do in life is rooted in the lyrics of the 19th century German song Die Gedanken sind frei, which my German-born father used to sing because the Nazis had forbidden it. The beginning stanzas say in rough English translation:

Thoughts are free for who can ever guess them?
They fly about like evening shadows.
No man can know them … thoughts are free.

I've been musing about the mysteries of free thinking as I try to make my way through a mass of legal issues that have started arising as people begin immersing themselves in virtual computer worlds.

If thinking is free, does this mean that there is no legal remedy available for the woman whose virtual persona — her avatar — has been raped in a virtual world?

What about finding out that your wife's avatar been going out with another man's avatar in an on-line video game while you've been in the U.S. Army in Iraq? Can you sue for divorce based on your belief that you have been virtually cuckolded?

What if your real life husband's avatar has married another woman's avatar on line — is that the equivalent of real world bigamy?

What happens if you have been playing a game and through sheer talent have won a "cloak of invisibility," which somebody then hacks into your computer and steals? Will the police take down a complaint?

Is it a crime to appropriate someone else's virtual sex toy bed — you know, the place online where you can perform an incredible 150 sexual acts — and sell it on the internet as your own?

What about making the evil other in your virtual world a parody of someone you hate in real life? Or assaulting a hated avatar with a barrage of flying, virtual penises?

Do you commit vandalism by defacing somebody's virtual palace?

What's the crime for laundering virtual money?

And this legal thicket may only get more complicated if Gartner Inc., an information technological research firm based in Connecticut, is right in its estimations that in a decade or so 80 per cent of people online will have avatars and two per cent of marriages in the U.S. will be consummated between virtual beings — some of whom may never meet in real life.

All of which makes my brain hurt, because while I know avatars and the imagined worlds they exist in aren't only ideas, they also don't seem to me to be real.

So in my state of confusion I have been communing — appropriately, as you might guess, via e-mail — with Dani Lemon, a lawyer with a specialty in video games and entertainment law at the Vancouver office of Davis LLP. I confess I was drawn to seek her advice because her virtual world incarnation, Lemon Darcy, has been described as a "sexy avatar who sashays through the corridors of the web world dispensing legal advice about internet privacy and video game laws."

Lemon writes (without sashay) that all the lawsuits she knows to date have relied upon existing property law. "If a person began making and selling unauthorized copies of some product you sell in real life, and caused you some real life economic harm, you'd think about suing them, wouldn't you? Same thing with virtual property."

This is especially so since virtual property can be sold in real life on places like eBay and has resulted in a German woman being proclaimed the first virtual world property millionaire.

Okay, I understand that if money is involved then the laws of property attach, but how do we rate slander/violence/sexual predation against someone who doesn't really exist?

"Defining online assault is really difficult. Violence is de rigueur in a lot of online games. Where do you draw the line? Obviously, where a real world assault results from an online dispute. But is there some point before virtual life becomes real life where there might be a cause of action? That's a good question," Lemon writes rather gnomically.

But it is also true that virtual worlds like Second Life have what is known as Terms of Service and Community Standards (TSCS), which describe what avatars can and cannot do. Its TSCS says: "Actions that marginalize, belittle, or defame individuals or groups inhibit the satisfying exchange of ideas and diminish the Second Life community as whole. The use of derogatory or demeaning language or images in reference to another resident's race, ethnicity, gender, religion, or sexual orientation is never allowed in Second Life."

That may be Second Life, but what about the virtual world where the TSCS rule is that there are no rules, where you can do and say exactly what you want, where slander and violence and theft is the norm? What about a nihilist virtual heaven? What about a place where pedophiles all agree to virtually take sexual advantage of each others' virtual selves?

Lemon responds that, "It's a misconception to think that people set up virtual worlds to escape 'real world' laws and get away with things they will never be able to do in real life."

My reading of what has gone on in the virtual universe suggests that hers is an idealistic notion.

What about some virtual country whose participants decide that a virtual marriage is as real and bona fide as that performed in, say, Vegas. Take a look at the virtual weddings which have already taken place. On what grounds will the courts decide whether non-existent, maybe non-humanoid avatars can truly say they are legally wed?

Not to mention the ugly stuff like the Second Life sex site called Wonderland where the British television channel Sky News found sex taking place with avatars that looked like children.

What's the crime when all the participants have agreed this is a site where perversion is the norm and where non-existent virtual children — probably created by pedophile-fantasizing adults — are being virtually abused by virtual adults who also don't actually exist? It seems to me the legal issues are almost entirely mental, and as such, the only legal principle that makes any sense to me is Die Gedanken sind frei.

However much it goes against the reason my father sang the song, you have to let virtual, reality-based expressions of thoughts, even vile or contradictory or foolish thoughts, be thought. You have to let fantasies, even vile fantasies, be expressed. Ultimately, if there are no real humans involved, you must say:

Thoughts are free for who can ever guess them?
They fly about like evening shadows.

Quite, quite reluctantly, but still say Die Gedanken sind frei.