Virtual and augmented reality can be used to project advertisements in the real or virtual world. This chapter discusses case law, statutes, and regulations that apply to advertising in virtual and augmented reality as well as the possible evolution of the current law due to new challenges. Particular issues of interest include the Lanham Act, nuisance law, virtual trespass, right of publicity, and copyright.
S.J. Blodgett-Ford, Woodrow Barfield and Alexander Williams
Marc Jonathan Blitz
Free speech protection is not absolute. Even as it protects individuals’ rights to speak to each other in public spaces, it leaves government with room to assure these public spaces are suitable for shared activities: It lets officials regulate, for example, to assure the free flow of traffic or protect against “visual blight.” Virtual and augmented reality have the potential to alter this aspect of free speech law by enabling individuals to “privatize” public space: Signs, art work, or other expression that may have once been forced on unwilling audiences might now instead emerge only in the custom-designed VR or AR world of a willing viewer. This chapter looks more closely at this First Amendment implications of VR and AR, and also at the reasons that some VR or AR images and words may still be subject to government regulation, either because they do not count as First Amendment “speech” or because they count as speech which government has power to regulate.
This chapter presents the crime of virtual reality hacking and suggests that it challenges the inherently flawed legal doctrine governing unauthorized access to computers and data. Thirty years ago, lawmakers in countries all over the world enacted new and specialized computer misuse legislation, acting on the notion that existing criminal law is insufficient to the task of prosecuting and resolving computer hacking cases. Unfortunately, the resulting unauthorized access regime has created significant problems. One is the potential criminalization of everyday technological behavior, brought about by an overly extensive normative scope; another is chronic underenforcement; and yet another is a wider chilling effect on creativity and digital freedoms. Lately, interest in virtual reality, a fairly old concept, has reawakened. Unlike other information technologies, virtual reality is built to deliver a psychological effect believably simulating the physical world; it possesses three-dimensional spatial characteristics, infuses users with real legal expectations, and mirrors human social institutions and values. Many actions within virtual reality, lawful and criminal, are subjectively and conceptually closer to physical acts than to user actions in cyberspace. Consequently, considering some forms of virtual reality intrusion may warrant reverting back to the ancient common law doctrines of burglary and trespass as an alternative to the severely flawed modern computer misuse laws.
Virtual worlds are created by computer code that generates each aspect of the virtual environment, which includes the visual scene, the 3D spatialized sound presented to the user, and the tactile and force feedback that the user may experience interacting with virtual objects. Criminal offenses may be committed in any environment, including real, virtual, or augmented. From a criminal law perspective, when considering a human offender immersed within a virtual environment and performing criminal activities, the nature of the virtual environment may not be a major factor considered by the court; instead, the law will generally focus on the offender’s understanding of what can be termed the physical reality of the crime (which consists of what is true about the physical world and the person’s beliefs about the physical world); that is, the “real” reality associated with the offense, and not the virtual reality associated with the offense. When the virtual or augmented reality experienced by the user is different than the physical reality in a certain level of detail, the question of criminal liability then focuses on the offender’s belief which is the basis for determining the offender’s fault. Most legal systems around the world prefer using the offender’s belief as the basis for fault rather than what actually happened (that is, the factual reality of the crime). To legal actors in these jurisdictions, it seems more just and fair to impose criminal liability on the basis of the offender’s subjective view of reality. This is, in short, for the factual mistake doctrine (“mistake of fact”): we prefer the offender’s factual mistake (subjective) rather than the factual situation (objective) that actually occurred as the basis for the offender’s fault. This chapter discusses the above concepts in the context of offenses occurring in virtual reality.
S.J. Blodgett-Ford and Mirjam Supponen
This chapter discusses US and European data privacy and data protection case law, statutes, and regulations (including the General Data Protection Regulation) that apply to advertising in virtual and augmented reality, as well as the possible evolution of the current laws due to new challenges.
Marc Jonathan Blitz
In 2011, the Supreme Court made clear (following the example of many lower courts in the previous decade) that video games count as protected “speech.” Although the video games it addressed in that case were generally two-dimensional ones, the Court’s reasoning seems to apply just as forcefully to games in immersive 3D environments. But this does not mean that all activities performed in virtual reality count as First Amendment speech – and it is therefore with exploring more carefully how courts and legal scholars might answer questions about whether (and when) a particular VR activity counts as “speech.” This chapter addresses such questions, focusing on the specific example of whether and when use of VR environments for training and development of skills (such as flying a plane or shooting a gun) counts as protected First Amendment activity.
Scott R. Peppet
In the past decade, digital information has invaded our experience of physical space. Whether on a smartphone, tablet, connected watch, smartspeaker, or other device, this surge in ubiquitous internet access has opened the door to a range of mobile applications designed to saturate our daily experiences with previously unavailable information. In this increasingly “augmented reality,” a consumer shopping in a bricks and mortar retailer can learn instantly about a product’s capabilities, safety record, environmental friendliness—or contract terms. This chapter considers the implications of these developments for contract law, and, particularly, for freedom of contract.