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References
[1] See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); Lloyd Corp v. Tanner, 407 U.S. 551 (1972); Hudgens v. National Labor Relations Bd., 424 U.S. 507 (1976); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980).
[2] See, e.g., CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997); Am. Online, Inc. v. Cyber Promotions, Inc., 948 F. Supp. 436 (E.D. Pa. 1996); Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir. 2000); Island Online, Inc. v. Network Solutions, Inc. 119 F. Supp. 2d 289 (E.D.N.Y. 2000); Nat'l A-1 Adver. v. Network Solutions, Inc., 121 F. Supp. 2d 156 (D. N.H. 2000).
[3] See Jack M. Balkin, "Virtual Liberty: Freedom To Design and Freedom To Play in Virtual Worlds," 90 Virginia Law Review 2043 (2004).
[4] See generally F. Gregory Lastowka & Dan Hunter, "The Laws of the Virtual Worlds," 92 California Law Review 1 (2004), discussing The Sims Online extensively.
[5] Peter Ludlow's university website is located here.
[6] The newspaper, really a blog, is located here. It has been renamed the Second Life Herald.
[7] See Amy Harmon, "A Real-Life Debate on Free Expression in a Cyberspace City," New York Times, Jan. 15, 2004, at A1; Farhad Manjoo, "Raking Muck in 'The Sims Online,'" Salon.com, Dec. 12, 2003.
[8] See Harmon, supra note [7].
[9] See id.; Manjoo, supra note [7].
[10] See Manjoo, supra note [7].
[11] See Harmon, supra note [7].
[12] See Manjoo, supra note [7].
[13] It's virtually impossible to determine the exact terms of the EA-Ludlow user agreement. However, many (maybe all?) EA user agreements contain the following language: "EA and you both have the right to terminate or cancel your Account or a particular subscription at any time." See EA Online Terms of Service (last visited Mar. 20, 2005).
[14] See Harmon, supra note [7]; Curt Feldman, "Q&A: Banned Sims Blogger Bites Back," GameSpot.com, Dec. 17, 2003.
[15] See Harmon, supra note [7].
[16] See Hiawatha Bray, "Justice Has Its Price in Sim World," Boston Globe, Jan. 14, 2004.
[17] See CNN: Paula Zahn Now (CNN television broadcast Feb. 19, 2004), available at 2004 WL 72847478.
[18] See Mark Ward, "The Dark Side of Digital Utopia," BBC News, Dec. 22, 2003.
[19] See Manjoo supra note [7].
[20] See Balkin, supra note [3], at 2075–76.
[21] See, e.g., Don Peppers & Martha Rogers, The One to One Fieldbook (1999) (discussing the value of firing a company's least profitable customers, called "below zero customers"); Gary McWilliams, "Minding the Store: Analyzing Customers, Best Buy Decides Not All Are Welcome," Wall Street Journal, Nov. 8, 2004, at A1 (describing an initiative by the Best Buy retail chain to get rid of unprofitable customers).
[22] James Grimmelmann, "Sims Online Censors Online Journalist," LawMeme, Dec. 14, 2003.
[23] See, e.g., Jim Hu, "AOL Error Underscores Spam Filter Challenge," May 22, 2000. ("Many of AOL's subscribers have applauded the company for installing email filters that can drastically cut down on the junk email that bombards their in-boxes.")
[24] See Lastowka & Hunter, supra note [4], at 9.
[25] See Andrew Weiner, "Wanted: Homeland for 300 Webheads," Nov. 22, 2000.
[26] See Balkin, supra note [3], at 2047. This value, in turn, may create flourishing in-game economies, in some cases expressly encouraged by the provider. See Noah Shachtman, "Will Gamers Buy What Game Sells?," Wired News, May 24, 2002, (discussing Project Entropia, which encourages entrepreneurship within the game).
[27] See Lastowka & Hunter, supra note [4], at 10–11, 37–39. However, some providers (most prominently EverQuest) actively discourage these out-of-game transactions. See Greg Sandoval, "Sony To Ban Sale of Online Characters from Its Popular Gaming Sites," CNET News.com, Apr. 10, 2000.
[28] See Points.com (last visited Mar. 20, 2005).
[29] See Balkin, supra note [3] (emphasizing, in particular, the role of consumer protection laws).
[30] See Eric Goldman, "Termination of Accounts in Virtual Worlds," Technology & Marketing Law Blog, Feb. 13, 2005.
In Hall v. EarthLink Network, Inc., 396 F.3d 500 (2d Cir. 2005), an EarthLink subscriber used a personal email account for business purposes. EarthLink terminated the account based on a mistaken belief that Hall was a spammer. The Second Circuit rejected all of Hall's claims for legal redress.
[31] See Lastowka & Hunter, supra note [4], at 61–62; see also Balkin, supra note [3], at 2051, 2077; Neal Stewart, "Editorial: Simulating Free Speech in Virtual Lives," Second Life Herald, Mar. 4, 2005.
[32] Edward Castronova has proposed some techniques that competitors can use to overcome their potential customers' switching costs. See Castronova, "Switching Costs Fall," Terra Nova, July 24, 2004.
[33] See Bray, supra note [16] (discussing the disengagement of The Sims Online players in response to EA's perceived abdication of control).
[34] Indeed, there is some evidence that The Sims Online has suffered in the marketplace for these very reasons. See id.
[35] See John Markoff, "Home-Computer Network Criticized for Limiting Users," New York Times, Nov. 27, 1990, at D1, D5. The users were upset over a new surcharge Prodigy imposed on high-volume email users, and some irate subscribers went so far as to complain to Prodigy's advertisers. See Peter H. Lewis, "On Electronic Bulletin Boards, What Rights Are at Stake?," New York Times, Dec. 23, 1990, at F8.
[36] See Geoffrey Moore, "The 1st Amendment Is Safe at Prodigy," New York Times, Dec. 16, 1990, at F13.
[37] Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. 1995).
[38] Communications Decency Act of 1996, [ss] 509, 47 U.S.C. [ss] 230 (2005).
[39] The major exception being, of course, intellectual property claims. See 47 U.S.C. [ss] 230(e)(2). In 1998, Congress attempted to provide some protection for intellectual property claims via the Digital Millennium Copyright Act, codified at 17 U.S.C. [ss] 512, but [ss] 512 has proven significantly less useful for online providers than 47 U.S.C. [ss] 230.
[40] See Bray, supra note [16] (discussing Sociolotron, an adults-only game that allows players to engage in illicit behavior that isn't permitted in The Sims Online).
[41] For a general policy argument in favor of letting online providers exercise discretion over their community spaces, see Eugene Volokh, "Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex," 1996 U. Chi. Legal F. 377.
Castronova and Balkin have proposed "interration" statutes to give virtual world providers a safe harbor from liability if they agree to protect participant interests. See Edward Castronova, "The Right To Play," 49 New York Law School Law Review 185 (2004–2005); Balkin, supra note [3], at 2090–97 (endorsing and extending Castronova's proposal). Of course, 47 U.S.C. [ss] 230 already insulates providers for participants' actions and words, although it excludes coverage for intellectual property claims. Therefore, the only reasons to consider interration are to plug the intellectual property hole in [ss] 230 or to give new substantive rights to participants at providers' expense.
[42] See Ward, supra note [18] (discussing how The Sims Online was touted as a virtual utopia but has never fulfilled that promise).