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Monday, May 04, 2009

Can an avatar sign a contract?

Short version: no. Slightly longer version: Don't be silly, of course not.

Let's start with what signing a contract actually means. Signing a contract means that you, in your capacity as a legal entity, are capable of understanding the contract, are making an intentional choice and have agreed to abide by the terms of the contract and any obligations or protections that it specifies.

In Second Life an avatar is actually only a placeholder representation of two rather more subtle concepts. All in all, there's an account, an agent, and an avatar. The avatar is the bit that you actually see. The agent is the bit that moves, talks and takes actions. The account mediates permissions.

You log into your account, your agent is placed at a location in-world, and your avatar is drawn in the vicinity of your agent. Usually the agent is an invisible point near your avatar's crotch, but the avatar can be drawn up to ten metres away from the agent.

When you choose to take an action the account is tested to see if the action is permissible, the action is then performed through the agent, and lastly there may be some side-effects on the avatar to represent visually what action is taking place.

None of these three items is a legal entity. None of them are capable of understanding the contract. None of them are able to make an intentional choice.

Anne Loucks made a device so that her cat could make the necessary key-press to click through EULAs (End User License Agreements). Did the cat agree? No. Did Ms Loucks agree? Yes.

Let's compare this with a more practical example away from the keyboard. I am handed a contract. I pull out my pen and sign it. Did my pen agree to the contract, leaving me free of obligation? No. The pen is an instrument (a proxy, if you will) with which I am causing agreement to be signified. The pen can't agree to a contract, so I must have to have done so.

I can't reasonably claim the pen is a party to the contract. Ms Loucks cannot reasonably claim that the cat is either, as she engineered the means by which agreement was given. Likewise, an avatar can't be a party to a contract any more than a pen, a cat, a sock-puppet or a houseplant.

Any reasonable court would immediately identify me, Ms Loucks or the user of an avatar as the responsible party -- because there is no other party that could be.

Now I'm going to say something just a little shocking. You aren't your avatar. Let's pause a moment for the obligatory, involuntary gasp of horror and perplexity.

Your avatar is a digital creation that shadows your actions within a virtual environment and visually represents them. Those visual representations aren't even entirely under your control. Assorted bits of software cause the avatar to do some things that are independent of your actions too.

Your avatar can't agree with anything. Walk away from the keyboard and come back when your avatar agrees with something. Better yet, read the rest of this blog, or maybe the comics. Because you'll have a whole lot of time to kill. Your avatar can't think or act or understand or agree. You are the one who does all of that.

Now, does that mean that Tateru Nino can't agree to a contract? No. Because that's me, and I'm a legal entity and all that. Tateru Nino is a nom de plume which is also attached to my account, agent and avatar. I can (and do) sign contracts with that name. It goes on my tax forms. Did Reginald Dwight sign his contracts as Elton John or as Reginald Dwight? (Answer: as Elton John).

It is legal to do in most jurisdictions, so long as you demonstrably have "no intent to deceive". If you're using an alternative name to avoid your obligations, then that's pretty much going to add fraud to any penalties for breach-of-contract.

How is it that Tateru Nino can agree to a contract (in Second Life or not), but the Tateru Nino avatar cannot? Because I'm not my avatar either. It's my faithful, and tastefully-dressed servant. My sock-puppet of digital pixels.

And sock-puppets can't agree to contracts either.

15 comments:

  1. I made a few contracts in SL - or the closes to a contract you can get: the exchange of "sealed" notecards.

    You and your partner agree on a text, then each of you paste the text into a freshly created notecard (bearing your name as creator), rename it to "XYZ contract (Your Name)" and set it to no-mod/copy/trans. Then you give a copy to your partner and the partner gives a copy to you.

    The result is that you hold a non-modifyable notecard in your hands, containing the text of the agreement and bein "watermarked" with your partners name.

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  2. That would certainly be no *less* valid than most EULAs or any verbal contract.

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  3. The problem with contracts between avatars is that there is effectively no enforcing agency. If someone, acting through their avatar, broke their contract - for example, the landlord evicted a tenant for no reason - there is nobody to complain to. Contracts in themselves do not have any binding power - they call on the binding power of the government legal system.

    Which have, so far, largely ignored whatever contracts have been signed through avatar proxies, save for very few high profile cases which rose the dispute scale high enough to take notice.

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  4. You and I are already subject to the binding power of our governmental legal systems. Breaches like that can be taken to a small-claims arbitrator, because usually they're too small to bring before a court.

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  5. In the main, the fact that an agreement is entered into via avatars is no more germane than if it was done via fax.

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  6. Yeah, if you replace "avatar" with "body" in the above, it's still pretty much the same. An AV can't sign a contract, but neither can a body. Only a person can. Which is basically what you're saying, I think :) but it would be easy for an SL-basher to conclude that you're saying that SL is different from (inferior to) RL in this way...

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  7. I see what you mean. Fundamentally, though, the process of contract law is *almost* entirely independent of the medium used to enact it.

    I seem to recall that a US court accepted a contract written on the side of a cow, once.

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  8. Oh, we didn't see the contract on a cow in my contracts class. Lots of contracts about cows, though. Nice post.

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  9. And then there is the international component as well. What may be legally binding in say Germany, may not be elsewhere.

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  10. Nice post, as was your post in secondlifeinsider on "Code is Law". I'll note that many laws are now allowing electronic agents to enter contracts (automated stock trades, for example). I think this means that "yes" your agent can enter a contract, even if it is your cat pressing the key.

    I'm writing a law review article on the rule of law in virtual worlds. I would be interested in your thoughts on it (a draft should be done by the end of the month). If you want to take a look at it, please drop me an email.

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  11. It isn't, of course, your agent that is held responsible for fulfilling the contract (or for breaches of it), though. It's still you :)

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  12. Relevant to this issue: Today's Straight Dope Staff Report, Does it matter if you sign a contract with a name that's not your own? Short answer: No. Courts have held that it's the person that agrees to a contract, not the name they sign with, that matters.

    Agreeing to a contract as an avatar would seem to be analagous to signing a contract with an assumed name. Obviously, if you sign a contract as "Tateru Nino" or I sign one as "Erbo Evans," it's going to be easy to tie those back to our RL identity. Which would reflect our intent in the first place, as we're honest folks. Intent to deceive, however, would be another matter...

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  13. "It isn't, of course, your agent that is held responsible for fulfilling the contract (or for breaches of it), though. It's still you :)"

    Fair enough, but I can envision a (virtual) world whereby the avatar makes the agreement, and where that agreement is enforced in world with in world penalties against the avatar.

    Such a world may be useless, as folks will just abandon their avatars, but to the extent that reputation is important (see, e.g. eBay), users might hold onto their avatars and take the online punishment.

    I'm not optimistic about such a world working for everyone, but it could work for most.

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  14. I suppose such a thing *could* be handled in-world, but it couldn't conflict with any existing laws that would already apply. Both users would have to agree to an in-world enforcement, *and* the in-world processes and penalties would have to be lawful for the applicable jurisdictions. Seems simpler to handle it the regular way.

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  15. Wow. More reason for me to stay "cash and carry" in-world.

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