Law, Virtual Reality, and Augmented Reality

Networks, the Internet, and Cloud Computing, Media and Content, Innovation and Economic Growth, Intellectual Property and Copyright and Trademark

Article Snapshot

Author(s)

Mark Lemley and Eugene Volokh

Source

University of Pennsylvania Law Review, Vol. 166, No. 5, pp. 1051-1138 (2018)

Summary

Virtual Reality (VR) and Augmented Reality (AR) will be widely used for social and commercial purposes. AR and VR will sometimes be used to harm others, testing the limits of criminal, civil, and constitutional law.

Policy Relevance

For now, regulation of AR and VR systems should be avoided, to support innovation.

Main Points

  • AR and VR cast doubt on legal doctrines that assume we can distinguish between physical harm and mere messages.
     
    • AR and VR feel real, and people respond to being struck in a VR environment much as if they had actually been physically struck.
       
    • VR avatars allow people to obscure their physical appearance.
       
    • VR will record and retain data about our behavior.
       
  • The police will face difficulty responding to crimes in VR environments such as harassment or indecent exposure, because the perpetrators might be in another jurisdiction; VR users will often have to use self-help measures.
     
  • Many people will use pseudonyms when they enter VR systems; the courts are likely to recognize that damage to a pseudonym's reputation could be defamation.
     
  • When users are injured using VR or AR systems such as Pokémon Go, the user might sue the designers of the VR or AR system for defective design; courts are likely to treat VR and AR systems as physical products similar to navigational charts.
     
  • If a provider gives a user with a criminal history of fraud access to a VR environment, and the user defrauds another user, courts should hesitate to make the VR provider liable for the harm to the second user, if this would lead the provider to impinge on the freedom and privacy of other users (for example, by doing background checks of all users).
     
  • In a VR or AR system, someone could use another's image in disturbing ways without the latter's consent; companies and virtual societies should restrict some kinds of alteration or touching of others' avatars.
     
  • For now, a hands-off approach to the regulation of VR and AR systems is best, so that legal rules do not stifle technology; however, operators will try to insulate themselves entirely from liability for harm to users, and courts should push back when the result is unfair to consumers.
     
  • Traditionally, the First Amendment protects free speech (like a movie on a drive-in screen), but not conduct (indecent exposure); VR and AR make it hard to distinguish speech from conduct.

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