In “Avatar Rights: A person chooses, a tool obeys,” Tateru Nino manages to be both wrong and to miss the point. She argues that since an avatar is simply “a representation, a vehicle and a tool,” the notion of “avatar rights” is impossible. She says

Your avatar isn't a citizen of a place under different laws. It can't be in fact, because it is just a tool. When the law reaches out, it reaches out to you, the person in the chair. An avatar has no will or intention in much the same fashion as a screwdriver, a cigarette, a ladder or a firearm has none. But you do, and the law will hold you accountable for your actions when or if you choose to break it, regardless of the tools you choose to do it with.

Likewise, a tool has no rights, no responsibilities and no obligations. A tool cannot have citizenship as it is basically not capable of choice. Only you have the ability to make choices, so only you can have these things. (It is to be noted, that the law has certain exceptions and allowances for situations where a human being has no will, choice or intention).

This is both factually incorrect, ignoring over 400 years of history regarding one of the most powerful tools ever to shape human society, the corporation. It’s also misguided, since much of the issue of “avatar rights” goes past Nino’s focus on the tool to focus on two issues she misses entirely: what rights does a person have in synthetic worlds as opposed to other places, and who is the person the avatar represents?

Let’s take corporations first. I’m not a legal scholar; I discovered this issue through Edward Castronova’s article “The Right To Play” in The State of Play, proceedings from a 2003 conference on law and virtual worlds. I’m open to – and I expect! – correction from lawyers who are much more familiar with the field than I am. Nonetheless, the basics seem pretty clear. Since the 17^th Century, European and later American law has given legal recognition to virtual persons: corporations. See the “juristic person” article on Wikipedia:

the legal personality of a corporation was established to include five legal rights -- the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance).

Since the 1800s, juristic personhood has been further construed to make it a citizen, resident, or domicilliary of a state….There are limitations to the legal recognition of juristic persons. Legal entities cannot marry, they usually cannot vote or hold public office,^[7] and in most jurisdictions there are certain positions which they cannot occupy.^[8] The extent to which a legal entity can commit a crime varies from country to country. Certain countries prohibit a legal entity from holding human rights; other countries permit artificial persons to enjoy certain protections from the state that are traditionally described as human rights.^[9]

Castronova says

the practice of treating corporate organizations as fictional people is like playing a little game of make-believe…..Not every collective entity is allowed to become a make-believe person. No, inventing a fantasy person is serious business. There are firm rules about it.

In short, there was a moment some four hundred years ago when this set of fantastical rules – defining who or what could be a make-believe person and how that make-believe person would be treated – seemed sensible to large numbers of serious people. And no one since (certainly not any serious person, anyway) has been troubled by this collective fantasy.

Most transactions in the atomic world are with virtual persons, where the “real people” involved are sheltered not by the thin tissue of anonymity but by something much thicker – the “corporate veil” – the entire power of the nation-state in a barrier between the virtual person and the biological one, in all but extreme and rare cases.

This is why so many of the objections to digital anonymity, and so many comments during the SL banking scandal were so idiotic: people were going on about how they would never give their money to someone whose identity they didn’t know – and then went to buy their groceries from a global corporation, and sign over their paychecks to some “fake name” with a fake address in a post office box in Delaware. “Bank of America” isn’t some guy in a blue suit in San Francisco, and if it loses your paycheck, you can’t go to the CEO and demand your money back: the law forbids it. You deal with the virtual person “Bank of America,” you don’t get to deal with the atomic persons who run it, let alone the millions of shareholders who own it.

So, just as the corporation was created to enable activities in a new era of commerce, there’s absolutely no reason in law or philosophy why a new category of “juristic person,” the avatar, can’t be created to enable activities in a new era of synthetic worlds. And the same reasons for doing so apply: corporations were created exactly in order to enable to people to start businesses without fear for their personal reputations or savings should that business fail.

The same logic applies in synthetic worlds. People need the freedom to act in synthetic worlds without risking the reputational, emotional and financial capital they’ve accumulated elsewhere. That’s the entire value of synthetic worlds, right there. Otherwise, they’re just another chatroom, another telephone.

 
Okay, have we finished off “a tool has no rights, no responsibilities, and no obligations?” Four hundred years of law say otherwise.

 
Let’s take the next one: rights in places. This is what most of the writing on avatar rights that I’m familiar with is about, and Nino misses this entirely. If I understand Raph Koster’s argument in “A Declaration of the Rights of Avatars,” what he’s saying is that people shouldn’t have to give up the rights they have in the atomic world when they enter a synthetic world. I’m sure Nino would agree with this.

But, people do give up their rights when they enter synthetic worlds. Let’s take this provision of the Second Life Terms of Service:

2.6 Linden Lab may suspend or terminate your account at any time, without refund or obligation to you.

Linden Lab has the right at any time for any reason or no reason to suspend or terminate your Account, terminate this Agreement, and/or refuse any and all current or future use of the Service without notice or liability to you. In the event that Linden Lab suspends or terminates your Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees, any content or data associated with your Account, or for anything else.

No government in human history that I know of has claimed as policy that they can confiscate all your wealth and kill you at any time they feel like. Yet LL does. LL says that your rights to your property end the moment you enter their world (well, the front page still says, “Your World. Your Imagination,” but, just no).

Koster responds to policies like that with

7. No avatar shall be accused, muzzled, toaded, jailed, banned, or otherwise punished except in the cases and according to the forms prescribed by the code of conduct. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished, even if said individual is one who has been granted special powers or privileges within the virtual space. But any avatar summoned or arrested in virtue of the code of conduct shall submit without delay, as resistance constitutes an offense.

These are rights that civilized people in atomic spaces take for granted. Why should they give up those rights on entering a digital space?

 
“Avatar rights” in this reading is just the statement that a person manifesting as an avatar should have the same rights as a person manifesting as an atomic body. There are arguments on the other side, but Nino misses this issue altogether.

 
The third issue in “Avatar rights” is another one she misses outright: the question of who the person is behind the avatar. Digital People such as myself claim that we are unique and autonomous individuals manifesting as avatars in digital spaces and not equivalent to any person in an atomic space. This is related to the “juridical person” argument: I’m the equivalent of Bank of America, which is not, in law and practice, the atomic person Kenneth D. Lewis, Chariman, CEO and President.

But it goes beyond that, and is rooted in lived experience (I’m not the atomic Other Personality – I know when I was born and separated from OP, I know the feel of “me” versus “not me”), philosophy and possibly cognitive science (I’d bet good money that an fMRI of the brain we both use would generate different “cognitive fingerprints” when each of us is running, enough maybe even to establish in court today that we’re different personalities).

What Digital People want is for their autonomous existence to be recognized, in custom if not in law. I want my statements to be attributed to me, and not assigned willy-nilly to OP. I want to be able to make transactions in my own name, with my own cash, rather than have to use OP’s credit card. I want to be able to use my identity information on social networking sites without being in violation of their Terms of Service. I want social customs that regard “Oh, you don’t use Voice? You must really be a guy” as being as crass as making racist remarks or spitting on the floor. I want to be accepted as me, as a Digital Person, and not whitewashed and subsumed into the dominant culture of atomic persons.

Tateru Nino: the avatar is the person, yes. But the avatar is not the atomic body. Nor is there a one to one correspondence between body and person. Also in The State of Play, law professor Susan P. Crawford says that

identities are no longer rationed one per physiological specimen. A person may adopt different identities at various times during a life-span, and some individuals maintain several at once….Typical instances include women working in the professions, artistst and novelists, and people working in positions which involve security exposure.

She quotes Richard Bartle, saying that “the celebration of identity is the fundamental, critical, absolutely core point of virtual worlds.”

Even the claim that each biological human was a person has been a deeply radical notion through most all of human history. The circle of personhood has steadily increased through history. Women were not persons before the law in most places through most of history; still in much of the world they are not full legal persons. African Americans were not persons in Unted States law for centuries.

Expanding the circle of personhood is human moral progress. One body, one person is not the end of progress, but a midpoint. I claim equal rights, at least in my digital world, as the person who lives in the atomic world. In time, fully artificial intelligences will make the same claim. Enhanced members of other species - dolphins, chimps, great apes - may before too long make these claims themselves. Will we say that the shape of the meat marks the soul, or will be expand our moral ambit to include all those who claim their own cognition, their own moral agency, their own soul? 

Deal well with me and my fellow Digital People now: it'll be good practice for what lies ahead.

 
So there we have three arguments for Avatar Rights:

• they are an extension of vehicles for investment and exploration that have proven their usefulness for over four hundred years;
  
• they make the simple claim that persons should have similar fundamental rights whatever space, digital or atomic they may occupy; and
  
• the exploration and development of new concepts of identity and the self will be enabled and empowered through recognizing avatar identities apart from physical ones.