Mixed Reality: How the Laws of Virtual Worlds Govern Everyday Life

Author(s): Joshua A.T. Fairfield

Source: Berkeley Technology Law Journal , Spring 2012, Vol. 27, No. 1 (Spring 2012), pp.
55-116
Published by: University of California, Berkeley, School of Law

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 Mixed Reality: How the Laws of
Virtual Worlds Govern Everyday Life
Joshua A.T. Fairßeldf

Abstract

Just as the Internet linked human knowledge through the simple mechan
hyperlink, now reality itself is being hyperlinked, indexed, and augmented w
experiences. Imagine being able to check the background of your next date throu
phone, or experience a hidden world of trolls and goblins while you are out st
park. This is the exploding technology of Mixed Reality, which augments real
and things with rich virtual experiences.
As virtual and real worlds converge, the law that governs virtual experi
increasingly come to govern everyday life. The problem is that offline and on
significantly diverged. Consider the simple act of purchasing something. If y
book offline, you are its owner. If you purchase an e-book, you own nothin
Reality technologies merge realspace and cyberspace, the question is whethe
offline law will determine consumers' rights over their property and data. There
risk that courts will continue to reason from online analogies rather than turnin
common law rules to determine consumers' rights.
This Article offers a modest proposal for rebalancing the law. The c
proceeds by reasoned progression based on the closest available analogy.
suggests that the common law has long evolved internal checks and balances f
govern citizens' everyday lives. The Article proposes rebalancing the law of Mixe
using analogies to real world situations, rather than limiting legal analysis to
property and online licensing law.

"We have got to stop using the Internet like a typewriter!"

—Anonymous

1 2012 Joshua A.T. Fairfield.

f Associate Professor of Law and Director, Frances Lewis Law Center, W
& Lee University School of Law. Thanks to all of the participants at SFLA.RP
Reality: When Virtual Plus Real Equals One, for incredible insight and inspiration.
to Ted Castronova, Greg Lastowka, Leo A. Holly, and Scott Boone f
conversations and suggestions. Thanks to Kelley Bodell, Michael Bombac
Maurrasse for research assistance. All errors, opinions, and errors of opinion are

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56 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

Table of Contents

I. INTRODUCTION 56

II. MIXED REALITY 63

A. The Technology 63
B. A Taxonomy of Experiences Along the
Reality-Virtu ality Continuum 67

1. Virtual Reality 69
2. Virtual Worlds 71

3. Augmented Virtuality 72
4. Mixed I Augmented Reality 73
5. "Reality+" 74
C. The Gap Between the Legal Literatures of Virtual
Worlds and Pervasive Computing 75

1. The Legal Titerature of Virtual Worlds 75

2. Pervasive Computing 79
3. Mixed Reality: Patching the Gap 82
III. THE LAW OF MIXED REALITY 84

A. Contract Law: EULAs and Intellectual Property

Licensing Will Govern Everyday Life 86
B. Tort Law: Cyberdefamation and Mixed Reality
Reputation Systems 93
C. Property Law: The Digital Land Wars 97
D. Privacy Law: Privacy's Death and Resurrection 101

1. Privacy Is Dead, Long Live Privacy 103

2. Privacy by Design 104
3. Privacy as Control. 105
IV. BALANCED LAW FOR MIXED REALITY 107

A. Constraining Intellectual Property 109

B. Limiting Online Contractual Control 110
C. Returning Control over Privacy to Consumers 113

V. CONCLUSION 115

I. INTRODUCTION

Imagine a museum. The museum has statuary,

located in the atrium. As you enter the museum, y
offer you four different experiences. You select t

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 2012] MIXED REALITY 57

docent appears and begins to

presentations of each of the e
comments on each note writte
visitors.2 Curious, you flip to c
experience conversations with
engage you in entertaining bant
exhibits that occupy physical
and last channel displays an ava
the city have experimented wit
subde ways, adding lighting
modifying the exhibits so that
type of technology may soun
Modern Art ("MoMA") has alre
Now, let us interject reality.
future. In the future rather than four channels there will be thousands of
channels offering experiences in the museum from the fantastical to the
statistical, and everything in between. The merging of the Internet with the
physical world around us—"realspace"—is called Mixed Reality. Mixed
Reality technology is already in use and its adoption is only accelerating.5
Imagine a world in which your clothes are free but your clothes carry
shifting advertisements on smart fabric. Imagine a world in which your
communication and interaction with others are so extensively digital that you
can choose to edit your ex-husband out of your existence—you won't have
to see him, hear him, see anything he has written, hear any phone calls,
nothing. The future of Mixed Reality, where virtual world technologies

1. See Alexander Fidel, Art Gets Unmasked in the Palm of Your Hand, N.Y. TIMES (Dec. 1,
2010), http://www.nytimes.com/2010/12/02/arts/02iht-rartsmart.html (discussing the use
of smartphones, overlaying digital content onto real spaces that effectively connects the
content to a realspace anchor, creating "augmented reality"—for example, a museum patron
who points his or her smartphone at a sculpture, and the artist appears on the screen ready
to be interviewed).
2. Id. (discussing the use of Layar, an augmented reality app that can tap into multiple
layers of reality tied to realspace locations, like the MoMA).
3. Id.
4. Id. (identifying the MoMA's application as one of the most popular).
5. See Woodrow Barfield, Commercial Speech, Intellectual Property Rights, and Advertising
Using Virtual Images Inserted in TV, Film, and the Real World, 13 UCLA Ent. L. Rev. 153,158—
59 (2006) (discussing the use of a mobile computer that is used in conjunction with a
wireless network resulting in the use of information from the Internet to mediate reality,
such as virtual advertising on real objects); see also 3 JANNA QuiTNEY ANDERSON & LEE
Rainie, Ubiquity, Mobility, Security: The Future of the Internet 297-99 (2009).

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58 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

govern our everyday life, is already here.6 Through mobile tec

computing has finally come out from behind a desk and into the str
result, the laws that govern virtual worlds have a greater and gre
on our everyday lives.8 However, the law is playing a desperate
catch-up in order to adapt as disputes and lawsuits over Mixed Realit
Most scholarship to date has assumed that modern society is in
virtualized.10 It is more accurate to note that virtual data is inc
realized as it becomes tied to realspace features and geography.11
virtual experiences are entering real life at an ever-increasing pac
literature on visualization technologies lags badly. The bulk of vir
research focuses on the impact that real world regulatory regim
online spaces and communities.12 This Article proposes that the

6. BRIAN X. Chen, Always On 4-7 (2011) (discussing the far-reaching im

iPhone and its role in weaving data with physical reality).
7. Sometimes, literally into the street, as in the example of augmented realit
in upcoming Toyota vehicles. See Toyota's 'Window to the World' Offers a Tas
Technology to Come, INDEPENDENT (London) (July 28, 2011), http://www.indepe
life-style/motoring/toyotas-window-to-the-world-offers-a-taste-of-driving-t
come-2327504.html ("In the future ... drivers can expect windshields to act
manner, able to overlay digital information for practical, rather than educ
entertainment purposes.").
8. See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007)
the use of a Term of Service, or "TOS"). TOSs—or End User License A
("EULAs") as they are often called—are the dominant form of legal relationsh
worlds. See Joshua A.T. Fairfield, Antisocial Contracts: The Contractual Governan
Worlds, 53 McGill L.J. 427, 429 (2008) (discussing the prevalence of EUL
worlds). EULAs, as contracts, define the terms of the relationship between the
the user. Not unlike Linden Research's game Second Life, mobile phone carr
creators of mixed reality applications use EULAs and TOSs to control their sof
already evident in any app downloaded from the Apple Store. See Legal Informati
APPLE.COM, http://www.apple.com/legal/terms/site.html (last updated Nov. 2
9. See, e.g., Rosenberg v. Harwood, No. 100916536, 2011 WL 3153314 (D.
27, 2011) (awarding Google's motion to dismiss because Google was found no
The Plaintiff sued Google after she used the Google Maps direction feature an
by a car. See also Kirit Radia, Google Nearly Starts a War. Seriously., ABC NEWS: N
2010, 12:43 PM), http://blogs.abcnews.com/thenote/2010/ll/google-nearly-s
seriously.html (describing how two nation-states in Central America almost s
after Google Earth showed a border in the wrong location).
10. See, e.g., Jack M. Balkin, Virtual Liberty: Freedom To Design and Freedom
Virtual Worlds, 90 VA. L. Rev. 2043 (2004); Gregory Lastowka & Dan Hunter, Th
Virtual Worlds, 92 CALIF. L. Rev. 1 (2004); Juliet M. Moringiello, What Virtual W
for Property Law, 62 FLA. L. Rev. 159 (2010).
11. See Doug Gross, New Wave of Location-Based Apps Mark a 'Paradigm
TECH (July 29, 2011, 9:46 AM), http://www.cnn.com/2011/TECH/mobile/07/
apps/index.html; see also Fidel, supra note 1.
12. See Lastowka & Hunter, supra note 10, at 1, 11, 29 (discussing the perm
between virtual worlds and the real world and the role of "real-world" law such a

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 2012] MIXED REALITY 59

focus is backwards—that the

increasingly coming to gove
accelerating as Mixed Realit
experiences into the real world.
The growing application of o
offline and online law have sign
purchasing a book. If you pur
purchase an e-book, you own no
real and cyberspace, the critical
determine consumers' rights ov
that courts will continue to r
rather than turning to offlin
rights.
This Article proposes rebalancing the law governing Mixed Reality by
using analogies to real world situations rather than limiting legal analysis to
intellectual property and online licensing law. Because the common law
proceeds by reasoned progression based on the closest available analogy, it
seems more in line with the American legal tradition to look to "real world"
law for Mixed Reality, despite the increasing virtual enhancement enabled by
Mixed Reality applications. For example, imagine that a disgruntled neighbor
defaces your home with an obscene word that appears when your house is
viewed using a Mixed Reality application. The most appropriate analogy may
be to the law of property and trespass rather than referring to the online
licensing agreements of the application creator.
In proposing a rebalancing, this Article bridges serious gaps in two sets
of legal literature. First, there is a gap in the legal literature with respect to the
impact of Mixed Reality applications. Over 200 articles have been published
on law and virtual worlds or virtual reality in recent years.15 To date none

Leandra Lederman, "Stranger Than Fiction": Taxing Virtual Worlds, 82 N.Y.U. L. REV. 1620,
1623-24 (2007) (outlining potential frameworks for taxation within virtual worlds).
13. See Jason W. Croft, Antitrust and Communications Polig: There's an App for just About
Anything Except Google Voice, 14 SMU SCI. & TECH. L. Rev. 1, 1—4 (2010) (discussing the
widespread growth in smartphones, in particular the iPhone, and the extensive offerings of
the app store); see also Dan Fletcher, 10 Tech Trendsfor 2010, TIME (Mar. 22, 2010), http://time/
AfOUk4 (detailing the rise in augmented reality particularly among iPhone apps).
14. Gregory K. Laughlin, Digitisation and Democray: The Conflict Between the Amazon Kindle
License Agreement and the Role of Libraries in a Free Society, 40 U. BALT. L. Rev. 3, 5 (2010)
("Amazon ... retains ownership of the 'Digital Content' (i.e., the e-book) and imposes a
number of restrictions that are inconsistent with transfer of ownership to the purchaser,
including prohibiting redistribution.").
15. See, e.g., Balkin, supra note 10; Bryan T. Camp, The Play's the Thing: A Theoy of Taxing
Virtual Worlds, 59 HASTINGS L.J. 1 (2007); Jack L. Goldsmith, Against Cyberanarchy, 65 U.

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60 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

have focused on the legal impact of Mixed Reality applications16 e

Mixed Reality is far more common and commercially importan
pure virtual worlds.17 This gap is all the more important because
has begun a great migration away from desktop computers and
laptops, tablets, and most of all, smartphones.18 Mobile computin
the augmentation of real people, places, and things with virtual e
and data.19 For example, when you compare prices on eBay or Am
your desktop, there is not a pressing need to tie the data to
location. But if you use a smartphone barcode scanner to compar
you shop in the local supermarket, the actual, physical location of
products at lower prices matters. Stores that augment their brick-an

Chi. L. Rev. 1199 (1998); I. Trotter Hardy, The Proper Legal Regime for "Cyber
PITT. L. Rev. 993 (1994); Steven Hetcher, User-Generated Content and the Future
Part Two—Agreements Between Users and Mega-sites, 24 SANTA CLARA COMP
TECH. L.J. 829 (2008); Andrew E. Jankowich, Property and Democracy in Virtual W
J. SCI. & TECH. L. 173, (2005); Sarah K. Jezairian, Lost in the Virtual Mall: Is Tradit
Jurisdiction Analysis Applicable to e-Commerce Cases?, 42 ARIZ. L. REV. 965 (2000
Hunter, supra note 10; Juliet M. Moringiello, What Virtual Worlds Can Do for Pro
FLA. L. Rev. 159 (2010); Michael H. Passman, Transactions of Virtual Items in Virtu
Alb. L.J. SCI. & TECH. 259 (2008); David G. Post, Against "Against Cyber
BERKELEY TECH. L.J. 1365 (2002); Steven R. Salbu, Who Should Govern the Interne
and Supporting a New Frontier, 11 HARV. J.L. & TECH. 429 (1998); Andrew
Robert Bullis, Rivalrous Consumption and the Boundaries of Copyright Law: Intelle
Lessons from Online Games, 10 INTELL. PROP. L. BULL. 13 (2005); Allan
Unexceptional Problem of Jurisdiction in Cyberspace, 32 INT'L L. 1167 (1998); Rich
Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspac
SCI. & TECH. 339 (1996).
16. See Barfield, supra note 5 (discussing the use of augmented reality exclu
virtual advertising context).
17. Compare GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAWS
WORLDS 9 (1st ed. 2010) ("[I]n 2009, by conservative estimates, about 100 m
were interacting in some sort of virtual world . . . [and] about 10 percent of
United States have participated in some kind of virtual world."), with Mich
iPhone Jailbreaking Under the DMCA: Towards a Functionalist Approach in Anti-ärcu
BERKELEY Tech. L.J. 215 (2010) (discussing the rapid growth to date, predicted
impact of smartphones along with their associated app stores), «»(/Elaine Glusa
2.0, N.Y. TIMES: In Transit (Jan. 4, 2010, 4:17 PM), http://intransit.blogs.ny
2010/01/04/travel-apps-20/ (discussing how augmented reality is "the hot ne
smartphones, and specifically the targeting of augmented reality travel apps
travelers), «»t/Jane L. Levere, Penney Sells Back-to-School Clothes the Digital Wa
(Aug. 2, 2010), http://nyti.ms/y41xjU (detailing the use of augmented reality
to teenage girls).
18. See Evelyn M. Rusli, Google's Big Bet on the Mobile Future, N.Y. TIM
(Aug. 15, 2011, 9:47 PM), http://nyti.ms/z2PB9d ("Google made a $12.5 billion b
that its future—and the future of big Internet companies—lies in mobile com
moved aggressively to take on its arch rival Apple in the mobile market.").
19. See Gross, supra note 11.

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2012] MIXED REALITY 61

locations with virtual data

competitive advantage.20 With
importance and depth of adopti
that of pure virtual reality applic
The second gap lies in the l
("PerC"). PerC is the predicted f
physical environment. In the fut
microprocessors—such as radio
credit cards, shoes, toasters, wall
literature has missed the mark
PerC by at least twenty years.2
the environment is still in its
Parallel Kingdom, and other mi
from these applications will come
Thus, the PerC literature ass
prevalence of physical object
throughout our everyday lives
developed in a different way, a
Mixed Reality here and now—h
discussing PerC.
While the World Wide Web re
it together, indexing it, and
revolution is underway: the rea
indexed. One example of hyper
codes ("QR-codes")—tags in the
or contain information about t

20. See Chris Crum, Is Augmented Reali

Try On Sunglasses, WebPRONews / TE
com/is-augmented-reality-the-futur
potentially be the biggest thing in e-co
21. See Jerry Kang & Dana Cuff, Per
WASH. & LEE L. Rev. 93, 98 n.10, 99 (
our shoes], then, are networks of
processing, and actuating computing e
22. See Nancy J. King, When Mobil
Solutions To Protect Consumer Privacy
Tech. L. rev. 107,112 (2008) (discussin
readers while also discussing location-
used as support tools for mixed reality
23. Id.; see also Lesley Fair, Fed. Trade
Navigating the New Basks in Mobile Tech
PLI/Pat 417, 483 (Apr-May 2011) (not
of RFID only in 2004).

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62 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

found. Once a smartphone recognizes the QR-code, it provides the user with
access to websites, free e-books, streaming videos, or even three-dimensional
("3-D") overlays onto the physical reality perceived by the smartphone user
through the device.

Figure 1: QR-Code Linking to This Article on BTLJ.org

Thus, the Mixed Reality revolution is already happening. The real world
is already alive and crawling with attached data. Data is routinely attached to
real-world people, places, and things, and mobile devices permit users to
experience this local data in the place to which it is attached. Well in advance
of the advent of the pervasive computing world, data tagging has already
hyperlinked and virtualized the real world—our world today.
The remainder of this Article proceeds in four Parts. Part II explores and
defines Mixed Reality technologies and demonstrates the gaps in the legal
literature on virtual worlds and the legal literature on pervasive computing.
Part III analyzes the legal implications of the ongoing extension of virtual
governance regimes into realspace and projects future trends. Part III also
anticipates several legal problems including a Mixed Reality land rush24
similar to the domain name rush of the late 1990s,25 the advent of new forms
of cyberdefamation or reputation poisoning, and dignitary harms based on
false information propagated through Mixed Reality applications.26 Part IV
modestly proposes that as real and virtual worlds converge, the best available
analogy for governing Mixed Reality are the background principles of the
common law, not the law of online intellectual property licensing. Part V
offers a brief conclusion.

24. See CHEN, supra note 6, at 20, 31 (discussing the mobile app store as a digital gold
rush, which is a strong indication that the Apple App Store is still in its infancy and is the
sequel to the dot-com boom).
25. See Jacqueline D. Lipton, Bad Faith in Cyberspace: Grounding Domain Theory in
Trademark, Property, and Restitution, 23 HARV. J.L. & TECH. 447, 448—49 (2010) (detailing the
origins of the domain name rush and the negatives that ensued such as cybersquatting); see
also Anupam Chander, The New, New Property, 81 TEX. L. Rev. 715, 724 (2003) (discussing the
domain name "land rush").
26. See Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (Sup. Ct. 2010) (discussing claim by dentist
for defamation and deceptive acts and practices against Yelp).

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 2012] MIXED REALITY 63

II. MIXED REALITY

This Part places Mixed Reality experiences on

virtual and real worlds. It first describes the v
techniques for creating Mixed Reality experiences
developed taxonomy for describing the various type
technology can create.
A. The Technology

Mixed Reality is exactly what it sounds like—the mixi

"actual" reality.27 The core of Mixed Reality is not new.
of Mixed Reality is the tying of data to an anchor in th
person, geographic location, or structure. Some early exa
are gossip circles in medieval villages or land records tha
ownership. In gossip circles, the act of gossiping "tagg
information about that person. Land records—although
in medieval times—similarly linked a person to an own
property. Today the same type of data can be tied to a p
through virtual technology. For example, circles in Go
information about a person, much like a medieval goss
applications that list land ownership and property values w
a photo of a house with a smartphone now link that in
property.30 In both of these examples, information that ha
to an object (a person's reputation through gossip, or re
through land records) is now being made available s
technology. What makes Mixed Reality significant is th
data-enriched realspace.
One new aspect that Mixed Reality introduces is th
mobile computers with geotagged data and the ext

27. See Paul Milgram & Fumio Kishino, Taxonomy of Mixed Rea
E77-D IEICE Transactions on Info. & Sys. 1321,1322-29 (1994),
nii.ac.jp/naid /110003209335.
28. See A Quick hook at Google+, GOOGLE, http://www.google.
(last visited Feb. 18, 2012).
29. Google+ profiles show other users whom the profile ow
"circles" and facilitates the sharing of the owner's daily life (dependin
uses Google+). Medieval gossip circles would have similarly indicated
and would have also revealed the goings-on of the person's life. Thu
fundamental function; the difference now is that this informati
through a smartphone, whereas one would have to actually sit in a g
information.
30. See, e.g., ZipRealty, ZipRealty Real Estate, APPLE iTUNES, http://itunes.apple.com/
us/app/ziprealty-real-estate/id340513671 (last updated Jan. 30, 2012).

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64 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

combination is a part of our everyday lives. Through mobile dev

see data that is tied to particular places, objects, or people
encounter.31 Smartphone technology and other miniaturized co
permit a more mobile and interactive experience with our surrou
Coupled with the growth in mobile computing is the growth in Mixe
applications. Now, a husband who goes shopping can peer th
smartphone camera at a product and immediately see tagged loc
local competing stores with better prices.33 A lost tourist in Lond
through her smartphone and see virtual arrows overlaid on top o
world that guide her to the nearest Underground station.34
Boston bar-crawler can use his cell-phone to examine the virtua
other patrons have left behind describing the best drinks served
hotspot.35 Parents can install geolocation devices in cars th
overzealous teenage drivers and provide parents with instant in
about their teen's driving.36 In short, Mixed Reality takes computing
behind the desk and into the real world.37

As we do so, what matters is not that computers are everywhere,

they are with people. Given that a person can carry a smartpho
pocket and access data that other people have tied to a given locat
or person, people now move through a world augmented with dat
the same way that people can click the "like" button on a F

31. See In re Implementation of Section 6002(b) of the Omnibus Budget Re

Act of 1993 ÇData Traffic Growth), 25 FCC Red. 11407, 11412-25 (2010); id. If 4
has grown significantly, due to the increased adoption of smartphon
consumption per device."); see also The State of Mobile Apps, NIELSENWIRE (J
http://blog.nielsen.com/nielsenwire/online_mobile/the-state-of-mobile-app
American wireless subscribers have a smartphone at Q4 2009, up from 19% in
quarter and significantly higher than the 14% at the end of 2008.").
32. See Data Traffic Growth, 25 FCC Red. 11407, Tf 4 ("As of the end of 2008,
of Americans had a mobile wireless device.").
33. See, e.g., SHAPE Servs., Barcode Reader, APPLE iTUNES, http://itunes.ap
app/barcode-reader/id340825499 (last updated June 9, 2011).
34. See acrossair, Nearest Tube, Apple iTUNES, http://itunes.apple.com/a
tube/id322436683 (last updated July 16, 2010).
35. See GoTime, Happy Hours, APPLE iTUNES, http://itunes.apple.com/us/
hours/id303814652 (last updated Oct. 17, 2011).
36. See In-Car Teen Mentoring Device, Am. Nat'L PROP. & CAS. Co., http://
com/DriveSmart/WhatlsDriveSmart/Mentoring/default.aspx (last visited Feb.
37. See Data Traffic Growth, 25 FCC Red. 11407, f 4 ("Data traffic has grown si
due to the increased adoption of smartphones and data consumption per device
38. See CHEN, supra note 6, at 4 ("Data has become so intimately woven in
that it's enhancing the way we engage with physical reality."); see also, e.g., S
supra note 33 (describing the Barcode Reader app as permitting the user to instan
prices by scanning items in a physical store).

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2012] MIXED REALITY 65

comment, they can now cli

colleague, or a neighborhood.
already turned this practice int
Thus, data tagging—the tyin
location or realspace anchor
virtualization of realspace.3
different ways. Global Positi
Based Services, tagging throu
("IDS"), mobile tagging, and
forms of data tagging. Each
Reality in a unique way.
By far the most common
(colloquially, "geotagging").40
given reputation bar on top o
system has identified the locati
knows its longitude and latitu
location. A simple example an
from the world of outdoor hik
phenomenon.43 A geocacher i
hikers to find by using a GPS
smartphones or GPS device, h
relying on the data that is tag
They can then log their visits
that located the geocache bef

39. See Kang & Cuff, supra note 21; se

Century, 265 SCI. Am. 94, 104 (1991
stereos and ovens help to activa
interconnected in a ubiquitous netw
managed to identify the new trend, t
40. See Ian Austen, Pictures, with
http://www.nytimes.com/2006/ll/
the photography context as a technol
photos online that are linked to W
shutter was pressed"); see also Andr
You..., N.Y. Times, Jan. 19,2011, at
41. See AB InBev, Stella Artois—Te
us/app/id335624129 (last updated Ju
42. See Groundspeak, Inc., Geoca
GeocHACHING, http://www.geocach
base at "1,648,021 active geocaches a
43. See Mark Couhig, Geocaching
http: //www.sequimgazette.com/new

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 66 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

hiking, augments it with data tagged to real-world physical loc

transforms it into a hidden world of treasure hunting.44
Due in part to the success of GPS, it has been coupled rece
another type of data tagging, sometimes called Identification Ser
difference between GPS and IDS is that, while GPS relies on GPS
coordinates, IDS relies on some visual or audio cue within the local
environment, be it a corporate logo, a face (for facial recognition software),
or even a fragment of a musical tune (as in the case of the popular Shazam
music-identification app). The real and virtual worlds connect through the
smartphone's lens or audio pickup.46 This requires the user to be in front of
the real world cue. For instance, a user must be in front of a Starbucks and
view the Starbucks logo through the camera lens before the application will
"check in" using an IDS.
Mobile tagging also hyperlinks reality. While closely related to IDS it
relies on barcodes or other machine-readable codes to retrieve virtual
information. Mobile tagging, such as QR-codes, is more involved than ID
because information is not tagged to a visual or audio cue but rath
embedded within the barcode or image itself. The mobile tag contains t
code that creates the virtual experience, whereas IDS merely identifies th
point where information is tagged. Mobile tag data can be a web address,
connection to a wireless network, a free e-book, a Sudoku puzzle, or even
animated graphic of a tank bursting through the wall.47 The most prevale
examples of mobile tagging are QR-codes that act as a link to an online w
presence, but there are numerous other applications.48

44. See Groundspeak, Inc., supra note 42; see also bulpadok, The Hidden Park, APPL
iTUNES, http://itunes.apple.com/us/app/the-hidden-park/id314518306 (last updated Mar
5, 2010).
45. See Bryan Pardo, Finding Structure in Audio for Music Information Retrieval, 23 SIGNAL
PROCESSING Mag., May 2006, at 126, 127 (referring to Shazam and similar products as
"identification services"); Chris Crum, Augmented Reality + Location = The Holy Grail for
Marketers?, WEBProNEWS (Feb. 28, 2011), http://www.webpronews.com/augmented-reality
plus-location-the-holy-grail-for-marketers-2011-02 (discussing how adding a visual element to
GPS-based services makes consumer engagement much stronger than simple GPS-based
applications).
46. See SHAZAM, http://www.shazam.com (last visited Dec. 8, 2011) (featuring a music
identification service).
47. See Andy Vuong, Wanna Read ThatQR. Code, Get the Smart Phone App, DENVER POST
(Apr. 18, 2011), http://www.denverpost.com/business/ci_17868932.
48. Other types of two-dimensional barcodes developed include DataMatrix, Cool
Data-Matrix, Aztec, Upcode, Trillcode, Quickmark, Shotcode, mCode, Beetagg, and
Microsoft's new Microsoft tag.

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 2012] MIXED REALITY 67

Near Field Communication49

NFC, the application is close
literature. NFC relies on com
objects that are able to com
extremely short range radio fie
NFC technology might be a
function as a credit card and th
order to be "swiped." However
chips in order to function,
geolocating data than GPS, IDS
B. A Taxonomy of Experiences Along the Reality-Virtuality
Continuum

As will be seen, infra, understanding where a given communication l

the continuum between virtual and real will be of some h
understanding what legal analogy should apply to a given phenomeno
Section provides a practical set of terms for discussing the technolog
baseline, the Article uses Milgram's Reality-Virtuality continuu
continuum") as one potentially useful scheme for measuring out th
from the virtual to the real.50 As can be seen below, the term "Mixed R
sometimes refers to the various experiences between fully virtual an
real. This Section therefore builds out the continuum to provide a
complete picture of the range of experiences offered by virtua
technologies and explains how Mixed Reality—as used in this Artic
used much more narrowly than the broad concept of Mixed Realit
description of experiences on the RV continuum.
Figure 2: Milgram's Reality-Virtuality (RV) Continuum51

Mixed Reality (MR)

Real Augmented Augmented Virtual

Environment Reality (AR) Virtuality (AV) Environment

49. See About NFC, NFC FORUM, http://www.nfc-forum.org/aboutnfc/ (last visite

Aug. 15,2011).
50. See Fumio Kishino et al., Augmented Reality: A Class of Displays on the Reality- Virtuah
Continuum, 2351 PROC. SPIE 282, 283 (1994), available at http://spiedigitalLibrary.org/proc
dings/resource/2/psisdg/2351 /1 /282_1 (identifying Milgram's Reality-Virtuality Continuu
51. Milgram & Kishino, supra note 27, at 1321.

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68 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

Mixed Reality occupies the space between virtual worlds and r

Like any in-between technology, Mixed Reality is defined both by
and what it is not. The first problem in defining mixed reality is ho
definition from spilling over into generalized network technologi
of the word "virtual" exacerbates this challenge.53 Virtual has com
anything electronic.54 Thus, without care, it is easy to expand the d
Mixed Reality to include almost all data used by people in the r
that is, all data. A definition that broad is unlikely to be of much us
A more accurate definition characterizes a virtual object or exp
a digital representation of something that we would typically expect
the real world.5" Mixed Reality then re-injects or repositions th
object back into our real world experience. For example, conside
One can build a virtual table in a video game or virtual world, but it
appear in the real world. But with Mixed Reality technologie
experience a virtual table in the real world; one can see an i
manifested in the real world through mobile computing techno
perhaps decorate it with virtual flowers as well. A table is an ove
example but the point remains clear: Mixed Reality involves the
virtual places, objects, experiences, or other data into real-world cont
The second problem with defining Mixed Reality is how to loc
Reality in the range of technologies from virtual worlds to
computing. Over-breadth is again a real risk. Simply defining Mix
as any application of mobile or pervasive computing, when couple
"virtual" fallacy above, would mean that one might classify nearly an
phone app as a Mixed Reality experience. In fact, the term means
quite specific: it means the projection of virtual objects and exper
our physical lives.56

52. See Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 WASH. & L
1127, 1131—32 (2009) ("These 'augmented reality' technologies push virtual exp
object down into real space, erasing the boundary between the virtual world
world."); see also Marc Jonathan Blitz, The Freedom of 3D Thought: The First A
Virtual Reality, 30 CARDOZO L. Rev. 1141, 1144 (2008) (noting that engineer
perceptual barriers" with mixed reality by "mak[ing] illusory three-dimension
objects spring up in the more familiar settings in front of us").
53. See M. Scott Boone, Ubiquitous Computing, Virtual Worlds, and the Disp
Property Rights, 4 I/S: J.L. & PoiTY INFO. SoCy 91, 108-09 (2008).
54. Id.

55. See Milgram & Kishino, supra note 27, at 1324—25; see also Boone, supra note 53, at 10
56. See Milgram & Kishino, supra note 27, at 1322 ("[T]he most straightforward way
view a Mixed Reality environment, therefore, is one in which real world and virtual wor
objects are presented together within a single display ....").

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2012] MIXED REALITY 69

Mixed Reality and PerC fund

is stored and processed.57 Per
power is embedded in objects
the cloud to virtual points in
information in computers in
PerC, Mixed Reality utilizes d
locally; it is tied to real p
connectivity and location base
go hand-in-hand.58 With thes
explore the broader range of
offer and attempt to locate Mix

1. Virtual Reality

One end of the virtualization

Virtual reality is virtualizatio
immerse the user in a virtual e
reality is the "goggles and glo
sensation possible.60 Due to ba
the required gear that tends t
technology has not progres
occasional appearance in movie
The technology is visually inter
thing to spring to the layman's
Yet full goggles-and-gloves rea
of virtual experiences—know
"Web 2.0." The reason is simp

57. See Eric Taub, Storing Your File

■www.nytimes.com/2011 /03/03/te
are appealing for another reason: as
and smartphones—you need to have
connection.").
58. See id, see also Edward Lee, Warm
1459,1500-01 (discussing that cloud
the Internet converts traditional de
run off of massive amounts of data o
59. See Milgram & Kishino, supra
Virtual Reality .. . environment is on
in, and able to interact with, a compl
60. See Jonathon W. Penney, Priv
220 (2008) (discussing virtual reality a
and the user).
61. See id. at 220 ("The amount of
seamless interaction has not been de

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70 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

technological.62 Virtual experiences matter because they are sh

because they utilize exceptionally rendered 3-D computer graphic
exists a sweet spot where the technology is simple enough to
adopted, yet complex enough to offer a compelling virtual experie
explains why smartphones—not virtual reality goggles and glov
current carriers of Mixed Reality experiences. The reality is that mo
will have these shared experiences if they are enabled by readily avai
relatively inexpensive mobile devices. Shared experiences, not c
immersive experiences, are driving the current push into the most s
mobile apps.66
Consumers have clearly indicated that they seek socially rich
experiences. But mobile computing depends on smaller compute
virtual worlds have become simpler, isometric social spaces t
effectively accessed through a smartphone, rather than the full
immersive 3-D spaces that require bleeding edge (and large) com
Mobile means smaller, and smaller means more social and less g
intensive.69 Thus, in considering virtual worlds technologies in th

62. Jacqueline D. Lipton, Mapping Online Privacy, 104 NW. U. L. REV. 47

(2010) (referencing the social nature of Web 2.0, for example the expanded
people to magnify their voice through blogs, wikis, social networks, and MMO
63. See Benjamin Duranske, Virtual Law: Navigating the Legal Landscape
OF VIRTUAL WORLDS 12 (2008) ("Most people who enter virtual worlds do so to interact
with other users. This makes virtual worlds highly social spaces . . ..").
64. See Edward Castronova, Virtual Worlds: A First-Hand Account of Market and Society on
the Cyberian Frontier 6 (CESifo, Working Paper Series No. 618, 2001), available at http://
papers.ssrn.com/sol3/papers.cfm?abstract_id=294828 (noting that successful virtual worlds
combine 3D computer graphics with "chat-based social interaction systems"). The graphics
in the games mentioned are not part of complex, full-immersion virtual reality experience,
but rather they are experienced merely through one's computer.
65. To see how simple graphics interfaces in highly social games can be more appealing
than less socially-oriented games with high end graphics, compare Zynga, Farmville, FACEBOOK,
http://www.facebook.com/FarmVille (last visited Aug. 3, 2011) (identifying 34,070,983
monthly active users), with Press Release, Blizzard Entm't, World of Warcraft Subscriber
Base Reaches 12 Million Worldwide (Oct. 7, 2010), http://us.blizzard.com/en-us/company/
press/pressreleases.html?id=2847881 (stating a 12 million subscriber population).
66. See The State of Mobile Apps, supra note 31 (highlighting that Facebook is the most
popular app on the iPhone and BlackBerry, and the second most popular on the Android
platform).
67. See Reza B'Far, Mobile Computing Principles: Designing and
Developing Mobile Applications with UML and XML 5, 12-13 (1st ed.
(describing the evolution of mobile computing).
68. See Zynga, supra note 65 (describing a popular virtual world game, Farmville, wh
browser-based and does not require high-performance graphics hardware and computing p
69. See B'FAR, supra note 67, at 6, 13.

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 2012] MIXED REALITY 71

Section, this analysis includes

virtual worlds that are based on
2. Virtual Worlds

A virtual world is a persistent, interactive, avatar-mediated, simulated 3-D

space (much like virtual reality), but with more social and fewer immersive
features than pure virtual reality.70 Virtual worlds facilitate social interaction
and enrich it with a shared graphical context.71 At the nexus between social
networking technology and 3-D game environments, virtual worlds follow a
very different aesthetic from virtual reality. Virtual worlds do not place the
user directly "inside" a virtual environment. Rather, virtual worlds often
make use of avatars—characters viewed in the third person that represent the
players in the virtual world. Avatars permit an increased range of interaction
within the world by indicating a user's focus of attention and that of other
players.72 Judge Posner illustrated the unique ability for avatars to convey
user focus when he conducted an interview in the virtual world of Second
Life entirely through his virtual avatar.73
Although graphically engaging and immersive, virtual worlds continue to
utilize the lower end of graphics capabilities in order to capture as many users
as possible. Some virtual worlds remain graphically rich and only run on
high-end computers, but the number of players in such worlds has been
rapidly outstripped by browser-based games, such as those running on
Adobe's Flash platform. Thus tension exists between the immersiveness of
the environment and accessibility to large numbers of users, many of whom
may not have high-end computers.74

70. See Castronova, supra note 64, at 5—6; see also DURANSKE, supra note 63, at 2.
71. See DURANSKE, supra note 63, at 12.
72. See Penney, supra note 60, at 221 (detailing that avatars are not only a visual
representation of the user in the virtual world where the user has full control over the
avatar's appearance and actions, but often, the avatar becomes the person in the virtual
world). An example is a recent lecture given by Professor Lastowka and this author at the
Governance in Virtual Worlds Conference at the ASU Sandra Day O'Connor Law School.
Participants attended with their own avatars and were able to interact with the professors'
avatars. The avatars served as a means to convey social information: social focus, gaze,
proximity, experience, and engagement are all conveyed via the avatar. Although avatar
mediated discourse is not as immediate as person-to-person conversation, the use of avatars
as markers for social discourse permits a feeling of increased social engagement despite the
limitations of the virtual environment.
73. See UChicagoLaw, Judge Postier (or at Least His Avatar) Talks to Second Life, U. CHI L.
SCH.: FACULTY BloG (Nov. 29, 2006, 10:38 AM), http://uchicagolaw.typepad.com/faculty/
2006/11 / judge_posner_or.html.
74. See Joshua A.T. Fairfield, The Magic Circle, 11 VAND. J. ENT. & TECH. L. 823, 838 (2009).

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 72 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

The trend towards ease of access has led to the popularity of several flash
games, in particular, Zynga Networks' Cityville and Farmville, which run
Facebook.75 These games have exploded both in the traditional compute
setting and in mobile computing with smartphones and tablet PCs. The
games demonstrate the principles outlined in the following Sections: they are
graphically simple and run over social networks.

3. Augmented Virtuality

Augmented virtuality is the point at which realspace begins to enter

virtual worlds. Virtual worlds—such as Second Life—include the capacity
import real events into the virtual space for virtual world denizens to view. A
real-world presidential debate can be imported and streamed live to tho
virtual world denizens.76 Avatars can sit in an auditorium within an entir
virtual environment and watch events unfolding in the real world.
Google Maps and Microsoft's Bing Maps provide other examples. Both
now include a "drill down to reality" function.77 Whereas before a Goo
Maps or Bing Maps user might have ended her journey with a real worl
photograph of her destination (taken by the Google Streetview cars
geographically tagged photos taken by passers-by), the currently evolvi
functionality augments the virtual world with a drill down to a live came
view. Thus the drill down of a motorist using Bing Maps might be to a traffi
camera, or the drill down of a remote viewer might be to a handheld cam
that is currently active in the location. One example of this technology is the
subject of Blaise Agüera y Arcas's TED talk, in which he demonstrated t
ability to drill down all the way from a virtual world into realspace real-time
live handheld cameras.78 These technologies permit users of virtual world
access to the real world. In so doing, they begin to mix even more reality into
the virtual environment.

75. See Douglas Macmillan, Zynga and Facebook. It's Complicated., BLOOMBER
BUSINESSWEEK (Apr. 22, 2010, 5:00 PM), http://www.businessweek.com/magazine/conten
10_18/b4176047938855.htm (detailing the close relationship between Zynga and Facebook
76. See Presidential Debate Festivities in Second Life, GAME POL. (Sep. 29, 2008), http:
www.gamepolitics.com/2008/09/29/presidential-debate-festi vi ties-second-life.
77. See John D. Sutter, Bing Worn Crowd with Live-Video Maps, CNN SciTechBlog
(Feb. 12, 2010, 4:50 PM), http://scitech.blogs.cnn.com/2010/02/12/bing-wows-crowd-wit
live-video-maps/ (discussing the live-feed feature in Bing Maps); Viewing Layers—Map
Help, GOOGLE, http://support.google.com/maps/bin/answer.py?hl=en&answer= 144359
(last visited Feb. 18, 2012) (stating that one of Google Map's viewing layers contains liv
images from webcams around the world).
78. See Blaise Aguera y Areas Demos Augmented-Rea/ity Maps, TED (Feb. 2010
http://www.ted.com/talks/blaise_aguera.html (discussing the work of Microsoft with Bi
Maps, the integration of cartography, imagery, and user content to augment realspace).

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 2012] MIXED REALITY 73

4. Mixed / Augmented Reality

This leads to the narrow d

continuum. Although the ter
stages of data-enriched real o
continuum), for purposes of t
point in the spectrum where n
identification services, mobil
enrich the real world with vir
technology is also sometimes c
The November 2009 issue of
Mixed Reality. It contained Mi
and several internal advertise
appeared when the magazine w
camera.81 Another Mixed Rea
children to see fantastic dragon
park are viewed through a smar
the smartphone camera and se
look over a field to see elve
opportunities for play, these
as educational tools.83 The com
most popular augmented realit
goal of many parents and tea
technology that provides an i
like math or history may beco
might be more likely to learn m
the park and might be more l

79. See King, supra note 22, at 21

technologies and how they rely on
mobile handsets, and how NFC will
services).
80. See Wendy A. Adams, Intellectual Property Infringement in Global Networks: The
Implications of Protection Ahead of the Curve, 10 INT'L J.L. & INFO. TECH. 71, 89 (2002)
(identifying geolocation services as referential databases that are arguably inferior to GPS
technologies).
81. See Shira Ovide, Esquire Tries Out DigitalReality, WALL ST. J., Oct. 29,2009, at BIO.
82. See bulpadok, supra note 44.
83. See Mark Sutton, Soar Valley College: Augmented Reality in the Classroom, GUARDIAN
(London) (Dec. 2, 2010), http://www.guardian.co.uk/classroom-innovation/video/soar-valley
college (discussing a professor's successful effort to interact with underachieving students by
using an augmented reality experience to engage students with the solar system).
84. See Mobilizy GmbH, Wikitude, APPLE iTUNES, http://itunes.apple.com/us/app/
wikitude/id329731243 (last updated June 29, 2011).

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 74 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

world overlay of revoludonary-era Boston life.85 This blending o

with fun using technology is not new. The difference now is t
computing combined with data tagging and the resulting virtuall
realspaces are far more social and dynamic than these earlier media.
Mixed Reality applications sit at the midpoint of the RV con
They are grounded in real objects and space but augment those
places with computer-generated data. For example, some greeting
contain a virtual enhancement.86 The card includes a code that the se
customize with an animated message and the receiver can scan it
phone or web-cam and see the cartoon. The computer layer
representation onto the object. Often identifying which image to dis
not even rely on server architecture. Rather, in many cases, the
reality object contains a mobile tag that provides sufficient dat
computer to render a three dimensional image.87 In these instan
world mobile tag provides the data for the virtual application; the
augments realspace with data that links directly to that physical pri

5. "Reality+"
The final point on this continuum is Reality+. I borrow and use
reality plus—rather than simple reality—because realspace has a
enriched by information ever since the first fisherman told the seco
fishing holes were especially good.88 What is worth noting about
that we have always augmented reality with crude data tagging
charts have served as crude data tagging devices tied to lat
longitude. The revolution is in the accuracy, availability, and acce
such markers89 and of the propagation of information on a global sc

85. See, e.g., Dinosaur Games, PBS KlDS, http://pbskids.org/games/dinosaur

visited Oct. 15, 2011) (providing dinosaur-themed games for children to learn
and subjects).
86. See Webcam Greetings, HALLMARK, http://www.hallmark.com/online/webcam-greet
ings.aspx (last visited Aug. 8, 2011).
87. See id. The example above includes a feature where you can print out a free sample
from Hallmark complete with the mobile tag. If you simply hold the card up to a webcam,
your image pops to life.
88. See Mark Burdon, Privacy Invasive Geo-mashups: Privacy 2.0 and the Limits of First
Generation Information Privacy Lam, 2010 U. ILL. J.L. TECH. & PolA 1, 4 n.62 (explaining
Fishing Lake Map, an app that provides geotagged updates on fishing holes).
89. See Nick Bilton, Augmented Reality on Your Phone, N.Y. TIMES BITS (Dec. 20, 2010,
3:40 PM), http://bits.blogs.nytimes.com/2010/12/20/augmented-reality-on-your-phone/
(identifying, based on a recent report from Forrester research, that augmented reality apps
will become an integral, and common, part of using a mobile phone); see also Thomas
Husson, Mobile Augmented Reality: Beyond the Hype, a Glimpse into the Mobile Future, FORRESTER:
THOMAS Husson'S Blog (Dec. 20, 2010), http://blogs.forrester.com/thomas_husson/10-12

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 2012] MIXED REALITY 75

It is important to remark
information-enriched environments because of how law works. Much of law
is a primitive form of augmenting real spaces and objects with data tags.
Think about the title recording system for land. Land is not naturally divided
into three-acre parcels. An entry in a paper or (increasingly) an electronic
database tags specific land as "yours." Property is, therefore, a form of
information-enriched geotagging.90 Like all of law, property is a consensual
fiction based on information-enriched reality.
C. The Gap Between the Legal Literatures of Virtual Worlds
and Pervasive Computing

Having discussed the technology and terminology of Mixed Real

Article now turns to the two closest legal literatures: virtual wor
pervasive computing. There is an extensive legal literature on virtua
and a less extensive, but still fascinating, legal literature on p
computing. This Section examines the gaps within and betwee
literatures and then demonstrates that a developed legal theory o
Reality fills those gaps.

1. The Tegal Literature of Virtual Worlds

Legal academics have written several hundred articles focusing on

worlds in past years.91 This rich literature has addressed issues in
virtual property,92 democracy,93 control over land,94 the use of contr
govern virtual worlds,95 the impact of policing and surveillance in
worlds,96 the taxation of virtual currency,97 and the sales of virtual g

20-mobile_augmented_reality_beyond_the_hype_a_glimpse_into_the_mobile_futu
that while augmented reality is not new, it is moving to mobile platforms). A
augmented reality is currently overhyped due to unrealistic expectations, it is growin
and drivers for growth are in place.
90. See id;, Burdon, supra note 88, at 7-9 (discussing the expanded use of GPS
oriented, and function-oriented geo-mashups which overlay information onto a m
real world). This use of software to tag information, such as a new cycling or runni
is substantially the same as the overlay of property boundaries upon realspace.
91. For a nonexhaustive list of virtual worlds literature, see sources cited supra n
92. J-«« Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. Rev. 1048 (2005).
93. See Beth Simone Novek, Introduction: The State of Play, 49 N.Y.L. SCH. L. Rev.
see also Jankowich, supra note 15.
94. See Jankowich, supra note 15, at 207-08 (discussing the use of licensing b
Labs and Sony to control property in virtual worlds).
95. See Fairfield, supra note 8.
96. Joshua A.T. Fairfield, Escape into the Panopticon: Virtual Worlds and the Sur
Society, 118 Yale L.J. Pocket Part 131 (2009).
97. See Camp, supra note 15.
98. See Michael H. Passman, supra note 15.

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76 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

The articles share an intuition that virtual worlds are not only an in
and novel technology, but that they also represent a compelling
the law's development through the common law process. 9
communities encounter new technologies, they first develop no
they develop practices that are adopted by courts and eventually the
are codified by statute.100 The way that communities respond to
technologies drives, in significant part, the development of the law.
However, one notable lack of the otherwise extremely success
worlds literature is the failure to address issues of mobile comp
Mixed Reality.102 There are several reasons for this. First, virtual w
been traditionally defined as graphically rich 3-D persistent space
social groups can gather. But a hidden criterion of virtual worlds is
be both synchronous103 (interaction within the world occurs a
who are logged in continuously and at the same time) and persist
world exists without the user's presence). Most Mixed Reality app
not seem at first blush to map to the synchronous or persistent
virtual worlds and they use many fewer processor-intensive graphics
The failure to fully address Mixed Reality leaves a significant
virtual worlds literature. Synchronicity and persistence are, in fact,
Mixed Reality experiences, although the "world" that provides the
in Mixed Reality is the real one. Thus, although the technology itself
create synchronicity or persistence, Mixed Reality does sh

99. See Jankowich, supra note 15, at 189 nn.85—86 (discussing open sour
worlds and the norms generated in them and how this is comparable to the c
process).
100. See Joshua A.T. Fairfield, Castles in the Air: Greg Lastowka's Virtual Justice, 51
JURIMETRICS J. 89, 90 (2010) ("In so doing, Lastowka frees the field of virtual law from
niche status and demonstrates that virtual worlds are participating in the core processes of
the common law—they are jurisgenerative spaces. When courts apply law to the new
technologies of virtual worlds, they incrementally adapt traditional concepts to a burgeoning
technological world. In short, Lastowka demonstrates that virtual law is common law.").
101. See id.

102. See, e.g., Barfield, supra note 5, at 159—60 (discussing virtually-enriched advertising
but failing to address issues surrounding mobile applications of such advertising); Burdon,
supra note 88, at 8 (discussing GPS and RFID technologies and their use in mobile phones to
record a new wealth of geographic information and turning humans into geographical
sensors but not delving deeper into mixed reality); King, supra note 22, at 125-27 (detailing
the growth of mobile advertising but only in the context of RFID chipped mobile phones);
see also Kang & Cuff, supra note 21, at 109 (discussing augmented reality in the context of
embedded computing, not mobile computing, and arguing that augmented realities will
occur through pervasive computing).
103. See Mark W. Bell, Toward a Definition of "Virtual Worlds, " 1 VIRTUAL Worths Res. 1,
2-3 (2008) (requiring synchronous communication in the definition of a virtual world).
104. See Castronova, supra note 64, at 5-6.

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 2012] MIXED REALITY 77

characteristics of a virtual wo
its characteristics from the rea
date is that virtualized appl
asynchronous or impermanent
fact do form part of a virtual w
between the virtual and the real.

This Article broadens the virtual worlds literature by examining a new use
of virtualization technologies: the augmentation of the real world with rich
sets of virtual objects and data. This immeasurably widens the subject matter.
Virtual worlds articles are most often about games. Mixed or augmented
reality applications can be games, but they are just as commonly shopping,
travel, health, or fitness apps. This results in an enormous number of
applications. The offerings in the Apple App Store are growing by leaps and
bounds and Mixed Reality applications are among the most popular
offerings.106 Services like Foursquare and Yelp, which offer game-like rewards
for providing information about locations, goods, and services, have
transformed nightlife and fine dining.107
Finally, it is possible that Mixed Reality applications may realize certain
goals of virtualization technologies before virtual worlds or virtual reality do.
For example, although many elements of virtual worlds—including badges,
ranks, experience points, and layered fantasy elements—have entered the real
world through Mixed Reality, the real world sense of touch has struggled to
enter the virtual. Because it is difficult to import touch into virtual worlds, it
may be possible to build fantasy worlds on top of real world physicality long
before we will import kinetics (i.e., the sensation of touch and balance) into a
virtual world. The former is cheap and just beginning to proliferate; the latter
is still the stuff of science fiction—imagine the Star Trek holodeck, which
provides kinesthetic sensation through force fields. A more practical
approach would be to take real objects, such as a blank-faced robot or a
moving floor panel (both of which have already been the subject of
fascinating demonstrations) and use them as the underlying surface on which
to layer augmented reality experiences.108 So the blank-faced robot becomes

105. See Milgram & Kishino, supra note 27, at 1324—25; see also Boone, supra note 53.
106. See Shan Li, Businesses Quickly Adopting Augmented Reality Apps for Consumers, L.A.
Times (Oct. 13, 2011), http://lat.ms/GSPDEh (describing the current proliferation of
augmented reality apps).
107. See Yelp for Mobile, YELP, http://www.yelp.com/yelpmobile (last visited Aug. 4,
2011); FOURSQUARE, https://foursquare.com/ (last visited Feb. 18,2012).
108. See Utsushiomi, U-Tsu-Shi-O-Mi at Asiagraph 2007, YouTube (Oct. 16, 2007),
http://www.youtube.com/watch?v=htkVlCfCV2M (demonstrating virtual reality overlays
on robotic substrates); Joseph L. Flatiey, CirculaFloor Robot Floor Tiles Keep You Moving in

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78 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

the kinetic element of a knight or fair maiden; a larger robot p

kinetic surfaces for a dragon, and in fact whole different landscapes
layered onto the real one.109 Or, another example: one company h
a Mixed Reality "floor" consisting of tiles that constantly move
user's feet, giving the user the perception that she can keep walking
in any given direction.110 Mechanical malfunctions of such kinetic in
will lead to broken limbs. From the legal perspective, one simple
care that kinetics will come sooner to augmented reality than p
thought is that kinetics lead to personal injury lawsuits.
Even today's Mixed Reality applications have implications for
harm and personal injury suits. By integrating virtuality into the re
Mixed Reality applications create the threat that people will inevitabl
some of the real-life aspects of Mxed Reality experiences. Co
recent unsuccessful case against Google for harm to a pedes
followed Google Maps' driving directions and was struck by a c
information provided was accessible on the Internet and the direc
up in other services as well. The cause was the driver and not the
themselves. Google did not interact with the end user in a o
manner.112 Neither realspace nor virtual reality caused the harm.113
was the underlying reality of the car and the road that imp
pedestrian. While the court rejected the claim in this instance, it is c
Mxed Reality can have very real legal consequences if users sue f
harm caused while using these Mxed Reality applications. For th
alone, a developed legal literature of Mxed Reality will have serio
effects for law that is currendy in the process of being develo
courts.

Virtual Reality, ENGADGET (Feb. 26, 2009), http://www.engadget.com/2009

floor-robot-floor-tiles-keep-you-moving-in-virtual-realit/ (demonstrating inte
flooring technology); see also Cliff Kuang, Augmented Reality Floor Simulates W
Pebbles, and Grass, FAST Co. (Apr. 29, 2010), http://www.fastcompany.com
mented-reality-flooring-simulates-sensation-of-walking-on-snow-pebbles-and-grass;
YouTube (Nov. 6, 2006), http://www.youtube.com/watch?v=DnNWfJveZDL
109. See VERNOR VlNGE, RAINBOWS END (2006) (exploring a possible fut
mixed reality would layer 3D virtual experiences on the real world).
110. See Flatley, supra note 108.
111. See Rosenberg v. Harwood, No. 100916536, 2011 WL 3153314 (D.
2011) (granting Google's motion to dismiss because Google was not negligent
112. Id.
113. Id.

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2012] MIXED REALITY 79

2. Pervasive Computing

The fewer than five legal arti

Reality have done so in the co
computing.114 The literature on
share a common definition. P
through the actual embedd
ubiquitously throughout the e
in walls, floors, ceilings, and t
update your shopping list, wh
in-time delivery to your h
presence would run constan
everywhere. Objects would be
would permit objects to comm
pervasive computing environme
But pervasive computing is
pervasive computing have a
slighdy.119 The processors th

114. See Kang & Cuff, supra note 21

104-05 (discussing two traits of pe
first trait has not come to pass but th
115. See E. Casey Lide, Balancing B
Applications, 11 N.Y.U. J. Legis. &
which tiny, inexpensive radio transc
new forms of communication b
themselves.' ").
116. See Kang & Cuff, supra note
system grafted into the real world sp
117. See King, supra note 22, at 10
Union report on different technol
"Internet of things").
118. See Justin M. Schmidt, RFID a
COMPUTER & Tech. L.J. 247, 250-5
passive RFID tags: passive tags are s
tags are significantly larger and mor
119. Compare Derek E. Bambauer &
1069-71 (2011) (discussing the use o
toll payment systems, and passport
Measured Approach in the Fight Agains
(2010) (discussing the use of RFID ch
such as being written on and the sp
to high and variable costs along with
53, at 10 (identifying ubiquitous com
the mix of terminology which can
with other terminology that is oft
specifically, "wearable computing, a

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80 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

stream of user data are in the cloud; they are not present ubiquitous
local environment.120 Actual computer processors are more remote t
rather than ubiquitous and embedded all around.121
On the other hand, the ability to richly augment the real world w
has grown quickly.122 Information is accessed locally but stored rem
phenomenon of hyperlocal data has gone hand-in-hand
development of remote cloud computing. Thus, there is a non-tr
the pervasive and ubiquitous computing literature: computer proc
not necessarily be located locally in order to provide rich hyperlo
Examples are easy to provide: Google Maps augments realsp
significant virtual data and pushes that data out to mobile phone
Google Maps data itself is managed and maintained remotely. A
necessarily so. Massive data sets still require massive amounts of
power somewhere. The consumer carries the light client pro
mobile device while remote servers perform the heavy computati
elsewhere. Pervasive wireless connectivity replaces pervasive computi
Conversely, the nanotechnology or micro-microprocessing te
envisioned by pervasive computing has not, largely speaking, come t

at 101; see also King, supra note 22. RFID chips are largely an industry tool for
Schmidt, supra note 118. They are present to an extent in mobile computing
tools that are consumer driven, for example credit cards, but they act more
system for the more widespread and commercially viable mixed reality
smartphones. See King, supra note 22.
120. See Kevin Werbach, The Network Utility, 60 DukeL.J. 1761, 1812—13 (
experts participating in a 2010 Pew Foundation Future of the Internet Survey
within a decade, remote servers would be the primary means of accessing app
sharing information, rather than local applications."). Mobile phones also cont
and aid in the growth of cloud computing. Id. at 1814.
121. See Konstantinos K. Stylianou, An Evolutionaiy Study of Cloud Compu
Privacy Terms, 27 J. MARSHALL J. COMPUTER & INFO. L. 593, 604 (2010) ("Web 2
made the Internet more interactive, but it is cloud computing that signifies the
ubiquitous always-on networking which has the potentials to substitute part o
computer.").
122. See Croft, supra note 13; Fletcher, supra note 13.
123. See Werbach, supra note 120.
124. See Kang & Cuff, supra note 21, at 109-12 (presenting the idea of comp
air, walls, and in our sunglasses, but later identifying the augmentation of exp
realspace with layers of contextually relevant information). But see Jesse Hic
Next-Gen Wearable Display: Augmented Reality, Holographic Sunglasses, ENGADG
2011, 11:39 PM), http://www.engadget.eom/2011/04/12/darpas-next-gen-wear
augmented-reality-holographi/ (reporting that sunglasses are driven by AR t
meaning they are not driven by embedded chips). Kang & Cuff envision "softw
manage our datasense and constandy seek out and filter information . . . ." Ka
supra note 21, at 110; see also CHEN, supra note 6, at 20, 35 (writing that "[t]h
Apple's core belief—that software is the key ingredient to hardware's

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 2012] MIXED REALITY 81

Computing surrounds us toda

not because it is ubiquitous, alre
The difference between mobil
legal implications.
Property law would likely g
with the property owner as dom
PerC-enabled mall, in which
communicate to the shopper
attendant licenses govern softw
the application provider or de
current mobile computing regim
servers that produce Mixed Re
the corporate entities128 that a
virtual objects or experience
programs subjects the users t
users' rights.130

expanded it" and, further, that sof

device, but literally hundreds of thou
10. Software is what has become tru
become mobile.
125. See eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1067 (N.D. Cal. 2000)
(analyzing an intrusion of hardware under a property regime with the finding that an owner
of a computer system has a property right and can exclude others from it); CompuServe Inc.
v. Cyber Promotions, Inc., 962 F. Supp. 1015,1021 (S.D. Ohio 1997) (finding that an owner
of a computer system has a possessory interest and that electronic signals are "sufficiently
physically tangible to support a trespass cause of action"); see also Richard A. Epstein,
Cybertrespass, 70 U. CHI. L. Rev. 73, 79—80 (2003) (identifying servers as physical property
thereby allowing for a trespass to chattels as the server can functionally be touched).
126. See generally Kang & Cuff, supra note 21 (discussing the idea of a mall that makes full
use of embedded PerC technologies).
127. See generally Bradford L. Smith & Susan O Mann, Innovation and Intellectual Property
Protection in the Software industry: An Emerging Role for Patents?, 71 U. CHI. L. Rev. 241 (2004)
(finding a strong link between software, its emergence as a vital part of the U.S. economy,
and the protections provided by intellectual property laws).
128. See John Markoff, Data Center's Power Use Less Than Was Expected, N.Y. Times (July
31, 2011), http://nyti.ms/wilXuU (identifying that Google not only rents servers but also
"generally builds custom computer servers for its data centers").
129. See Google Terms of Service, GOOGLE (Apr. 16, 2007), http://www.google.com/
accounts/TOS (outlining the relationship between Google and the user with regards to
"Google's products, software, services, and websites"). Google is overhauling its terms of
service as of March 1, 2012. Id.
130. Id.-, see also Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010) (outlining
how a software vendor can phrase its license agreement to avoid characterization of the
transaction as a sale).

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82 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

In short, the literature on pervasive computing has discussed two

topics: the first Mixed Reality,131 and the second nanotechn
infrastructure.132 The literature has focused overwhelmingly on the
such, the current phenomenon of data tagging and hyperlinkin
(Mixed Reality) remains under-examined. This Article fills this signif
and provides a legal foundation for a world dominated not by Pe
Mixed Reality.

3. Mixed Reality: Patching the Gap

In place of the converging trends predicted by PerC—th

processors and the data processed will become hyperlocal—Mixed
characterized by divergent trends in the location and access of da
becomes available hyperlocally, information is increasingly proc
maintained globally. Data is and will progressively be accessed loc
remote and distributed networks. Whether nanotechnology or
computing ever takes off is of secondary importance. Currently
that a migration to remote computing, with increased reliance on
wireless connectivity, is what lies on the computing horizo
developers will continue to create tools that permit consumers
maintained and processed on the cloud in hyperlocal applications,
focuses on the legal significance and implications of this t
virtualizing realspace.133
This different approach requires attention to different techno
Prior discussions of pervasive computing have focused heavil
technology: short-range radio that will permit objects to interac

131. See Kang & Cuff, supra note 21, at 110 ("Preliminary implementation
augmented reality already exist. For instance, contractors can walk through cons
with a visor that paints a digital overlay of the approved architectural draw
building in progress.").
132. Id. at 98—99 n.14 (detailing the use of micromotors, and the r
nanotechnology, in addition to varying sizes and forms of devices for pervasiv
Kang and Cuff detail the infrastructure of pervasive computing under
embeddedness, where computers are embedded everywhere and are capable o
communications. Id. at 97.

133. See also Jamais Cascio, Filtering Reality, How an Emerging Technology Could Threaten
Civility, ATLANTIC MAG. (Nov. 2009), http://www.theatlantic.com/magazine/archive/2009/
11/filtering-reality/7713/ (detailing augmented reality and current apps, such as Layar, that
allow users to "see location-specific data superimposed over their surroundings" in addition
to upcoming technologies planned by Sony, for example wearable AR devices like
sunglasses).
134. See CHEN, supra note 6, at 194—99 (detailing different AR technologies, such as
smartphones, headwear, eyewear, and sensory specific options that go beyond just visual,
such as audio cues from earpieces).

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 2012] MIXED REALITY 83

environment. RFID will play a r

role for Mixed Reality apps.1
reach of mobile telecommunications broadband networks—Evolution Data
Optimized ("EVDO" or "3G") and Long-Term Evolution ("LTE" or
"4G")—that deliver broadband technology to smartphones and tablets.136
This Article also fills an important gap in the virtual worlds literature.
The virtual worlds literature has not addressed Mixed Reality technologies.
This is a significant oversight given that browser and mobile delivery are the
fastest growing methods of delivery of virtual experiences. Further, the
virtual worlds literature has been characterized by a willingness to treat virtual
worlds as a separate reality governed by distinct rules separate from realspace
(i.e., the rules of intellectual property).137 Mixed Reality necessarily puts an
end to that distinction. Virtual worlds cannot be regulated independently
from realspace when virtual objects and places increasingly are a part of
realspace itself.
In the Part that follows, this Article grapples with some of the problems
that Mixed Reality applications raise for law, both broadly and as a matter of
specific challenges that will arise within individual legal contexts. In so doing,
this Article highlights that the law that governs virtual worlds—mostly
intellectual property and licensing law—increasingly supplants or subverts
the legal regimes that traditionally govern everyday life.138 What we once
owned, we will in the future only license.139 What was once a simple breach

135. See King, supra note 22.

136. See Jeffrey Paul Jarosch, Reassessing Tying Arrangements at the End of AT&T's iPhone
Exclusivity, 2011 COLUM. Bus. L. Rev. 297, 330—31 (detailing the growth in wireless networks
from 2000 to 2009).
137. See, e.g., Jack M. Balkin, Taw and Liberty in Virtual Worlds, in STATE OF PLAY: LAW,
Games, and Virtual Worlds 86, 94 (Jack M. Balkin & Beth Simone Noveck eds., 2006)
(arguing that real world laws and legal bodies should allow virtual worlds to construct their
own standards for internal needs); Edward Castronova, The Right To Play, 49 N.Y.L. SCH. L.
REV. 185, 204 (2005) (arguing for a law of iteration where, for example, virtual economies
would be governed by a body of law that was completely separate from real world
economies).
138. See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111—12 (9th Cir. 2010) (finding that
the software owner was not the owner and therefore could not sell it to other users); see also
Bowers v. Baystate Techs., Inc., 320 F.3d 1317, 1325—26 (Fed. Cir. 2003) (detailing that
private parties are able to contract out of the limited ability to reverse engineer software, a
fair use under the exemptions of the Copyright Act); Davidson & Associates, Inc. v. Internet
Gateway, Inc., 334 F. Supp. 2d 1164, 1181 (E.D. Mo. 2004), aff'd sub nom. Davidson &
Associates v. Jung, 422 F.3d 630 (8th Cir. 2005) ("The defendants in this case waived their
'fair use' right to reverse engineer by agreeing to the licensing agreement.").
139. See Vernor, 621 F.3d at 1111; see also Mark A. Lemley, Terms of Use, 91 MiNN.L.REV.
459 (2006) (finding that contracts, such as license agreements, "clickwrap" and

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84 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

of contract may now be a hacking crime or potential c

infringement.140 The following Sections chronicle the replaceme
systems designed to secure citizens' reputational, property, and
interests with intellectual property licenses that endanger a
141
interests.

III. THE LAW OF MIXED REALITY

The technological revolution of Mixed Reality is well under

being hyperlinked, data tagged, indexed, and made search
way that the bulk of human knowledge was made accessi
surprisingly through the hyperlinked Internet. The coming l
response to Mixed Reality will both resolve existing legal
new, and potentially troubling, questions. For example, a d
Mixed Reality finally puts an end to the enduring and err
idea of the Magic Circle, a metaphorical legal boundary th
have supposed separates the real world from virtual ones.1
cannot be deemed legally separate from the real one.143 All v
to some extent mixed: they are experienced by real w
interject elements of reality into the virtual world.144 T
virtual, but the economic, artistic, and even romantic lives of
are quite real.143

"browsewrap", and Terms of Use, have grown in popularity and, critic

enforced by courts).
140. See MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928, 93
(setting out the contractual terms that limit the scope of a license as
other license terms as "covenants"). A user can still violate a covenant
contractual term. If a user were to violate a condition of a license a
would be implicated. See also Digital Millennium Copyright Act (DM
304, 112 Stat. 2860 (1998) (codified as amended in scattered sections
DMCA contains three provisions that create a framework to address
technological measures that protect copyrighted works. See 17 U.S.C.
(2006); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996) (
§ 2-204(1) provides for different formations of contracts, such as a pr
screen, which can prevent access). ProCD proposed a contract that a b
using the software after having an opportunity to read the license at leisu
141. See MDY, 629 F.3d at 938 (detailing a particular Term of Use
of cheats, hacks, or other third party software, essentially requiring fair
142. See Castronova, supra note 137, at 200-05.
143. See Fairfield, supra note 74.
144. Id. at 825.

145. See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) ("Whil
the property and the world where it is found are 'virtual,' the dispute is real.").

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 2012] MIXED REALITY 85

Although the Magic Circle is

Reality revolution are uncertain
both elements of the Mixed R
commercial contracts will con
the devices; real-world proper
users can go and what they ca
issue between these two spher
contracts into realspace via th
property law come to govern
own real and chattel property
consumers may use on their
Mixed Reality, IP and e-comm
torts in realspace.
To supplement these basic c
the law, the following Sections
contract law, tort law, proper
other important legal shifts th
for space reasons. An example
too, when most of human dis
corporate-controlled social net
However, the Article presents
the legal shift: an accelerat
consumer choice in a free m

146. See Bowers v. Baystate Tec

(evaluating the issues using copyr
Internet Gateway, Inc., 334 F. Supp.
& Associates v. Jung, 422 F.3d 630
MDY, 629 F.3d at 938-43 (framing t
Lemley, supra note 139, at 460 (pla
under the umbrella "terms of use"
buyers of software, or visitors to a si
147. See Miguel Helft, Facebook Wre
2010), http://www.nytimes.com/20
more power in determining who can
Supreme Court justice, any king or
George Washington University wh
important that Facebook is exercisin
than less.' "); Ashlee Vance & Miguel H
N.Y.TIMES (Dec. 8, 2010), http://ww
(detailing the tension between the h
free speech and their corporate a
advertising).
148. See Chen, supra note 6, at 92 (discussing the negative feedback to Apple's App
Store and its legal agreements with developers). "[I]f a person makes an app for the iPhone,

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86 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

control over consumers,149 exercised by the threat of intellectual pro

lawsuits based on mass-market consumer application End User Li
Agreements ("EULAs") or website Terms of Use ("TOUs").150
A. Contract Law: EULAs and Intellectual Property Licensing
Will Govern Everyday Life

Mixed Reality technologies on mobile computing devices augm

daily lives with rich data. But these technologies also bring the da
flawed law of copyright to the real world. The laws governing the lice
intellectual property were intended to govern intangibles, not the
world.151 The basic economic assumption underlying intellectual prope
is that expression is costly to produce and cheap to copy.152 T
foundation of the copyright system.153 Since expressions are so
copy, fewer people would invest time and money in creation. An

he has to make it Apple's way or it won't be offered in the App Store. He has t
Apple's strict rules." Id. "Apple must approve every iPhone app before it goes up
the App Store, and this means that the corporation can regulate and censor conte
it wishes." Ids, see also Lemley, supra note 139, at 470—72 ("The problem is that the
property law to contract law takes the job of defining the Web site owner's rights
hands of the law and into the hands of the site owner.").
149. See Brian X. Chen, Programmer Raises Concerns About Phone-Monitoring Sof
TIMES BITS (Dec. 1, 2011 4:58 PM), http://bits.blogs.nytimes.com/2011/12/01/p
raises-concerns-about-phone-monitoring-software/ (discussing the newly discov
collection software, Carrier IQ, that major cellular phone carriers have installed
collects data such as users' locations and telephone activity).
150. See Lemley, supra note 139, at 470—72; see also MDY, 629 F.3d at 938—39
the ability of a company to write a contract such that the buyer owns or licenses th
and further that restrictions can be placed within such a license agreement that wo
company to later sue for violations of that agreement based on a breach of its term
in a contract breach or even copyright infringement); Lemley, supra note 139,
(discussing the rise in enforcement of license agreements and TOSs by courts).
151. Michael Grynberg, The Judicial Rjole in Trademark Taw, 52 B.C. L. REV.
(2011) ("Intellectual property gives functional property rights to the creators of
goods.").
152. See Gideon Parchomovsky & Peter Siegelman, Towards an Integrated Theory of
Intellectual Property, 88 Va. L. Rev. 1455, 1466—67 (2002) (stating that absent legal protections,
competitors would be able to copy expressive works and inventions without incurring the
initial costs of production which, in turn, would drive down the market price leaving original
authors and inventors without the ability to recover their initial production costs).
153. See Smith & Mann, supra note 127, at 241-42 (discussing the role of IP protection
in incentivizing developers to invest in their programming as it prevents copying by
protecting the original expression and aids in preventing copies that diminish the return on
development costs).

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2012] MIXED REALITY 87

many of the early internet f

Industry Association of Am
grandmothers across the nation
Copying—the driving concer
paradigm for internet technolo
stream content rather than c
maintain a local copy of a file o
As a result, the copyright sy
surrounding internet technol
because copyright holders
customers from rote copying o
over their customers.157 Bey
holders often asserted the abi
with the copyright holder's com
Unfortunately, copyright la
regard.159Early case law in t

154. See, e.g., Recording Indus. Ass

F.3d 1229, 1231 (D.C. Cir. 2003); Rec
Sys., Inc., 180 F.3d 1072 (9th Cir. 19
155. See John Schwartz, Record Indu
(Dec. 19, 2003), http://nyti.ms/GS
156. See Kier Thomas, Cloud Comp
2010), http://www.pcworld.com/b
executive_summary.html (noting th
files for businesses).
157. See Chamberlain Grp., Inc. v.
2004) (discussing The Chamberlain
options); Walter S. Mossberg, Media
Watt. St. J., Oct. 20, 2005, at Bl, a
DRM comes in several forms, is wid
be copied, but also whether it can
program expiring after a certain peri
158. Aaron Perzanowski & Jason Sc
(2011) ("Today, device makers and c
compatibility .... [SJhifting legal an
of digital works and technological m
serious concerns over lock-in."); se
copyright holder, Chamberlain, soug
practice that both the antitrust law
prohibit"); CHEN, supra note 6, at 6 (
and car companies such as Ford, "all
their product lines").
159. See, e.g., Phillip A. Harris Jr., Mo
in the Wake o/Sony v. Divineo, 9 N
courts took a very liberal view on rev

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88 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

technologies) held that copyright could be used to control beha

entirely new set of cases to which it had been previously inapp
According to these cases, merely loading a computer program fo
outside of the software license agreement may constitute
infringement.161 Thus, while flipping through a book at a book
implicated copyright law (because no copy was being made), acc
same material on a Kindle or iPad does implicate copyright law
Ninth Circuit's reading of the copyright statute.162

it for 'intermediate copying.' After the creation and implementation of the DMC
courts showed a stricter approach to copying and held that the interest in
copyright holders' security measures is greater than the interest of fair users tha
to use the functional components of intellectual property to create new pla
software." (citation omitted)); Joseph E. Van Tassel, Remote Deletion Techno
Agreements, and the Distribution of Copyrighted Works, 97 VA. L. Rev. 1223
("Furthermore, [the] balance of intellectual property rights arguably already ske
the copyright holder, so courts should be wary of further curtailment of users' r
the use of license agreements.").
160. See Wall Data, Inc. v. Los Angeles Cnty. Sheriffs Dep't, 447 F.3d 7
2006) (finding that because defendant was a licensee and not an owner, it therefo
the plaintiffs copyright by copying the software and installing it on multiple
violation of the license agreement); Triad Sys. Corp. v. Se. Express Co., 64 F
Cir. 1995); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9t
(creating the random access memory ("RAM") copy doctrine: "[S]ince we find t
created in the RAM can be 'perceived, reproduced, or otherwise communica
that the loading of software into the RAM creates a copy under the Copyright A
161. The RAM copy doctrine makes it a copyright violation to violate any
license agreement where the software is copied into the computer's RAM. See
LLC v. Blizzard Entm't, Inc., 629 F.3d 928, 941 (9th Cir. 2010) ("The rationale
that because the conduct occurs while the player's computer is copying the so
into RAM in order for it to run, the violation is copyright infringement.").
162. See MAI, 991 F.2d at 519—20; MDY, 629 F.3d at 941. But see Cartoon N
v. CSC Holding, Inc., 536 F.3d 121 (2d Cir. 2008) (finding that an embod
durational requirement needed to be met in order for a data stream to be "fix
not require a durational requirement, only an embodiment. See MAI, 991 F.2
(finding temporary storage on RAM to constitute a copyright violation). Circuits
in their adoption of the MAI holding, and the Second Circuit's decision presen
split concerning, for example, whether streaming data results in a momentar
apparent split caused the parties to Cartoon Network to seek further review.
Manuel, Cong. Research Serv., RL34719, Cartoon Network LP v. CS
Inc.: Remote-Storage Digital Video Recorders and Copyright Law 10 n.90
(2009), available at http://ipmall.info/hosted_resources/crs/RL34719_090706.pdf
that in June 2009 the Supreme Court denied certiorari for review of the apparent circ
created by the Second Circuit's ruling). The Supreme Court's denial of certiorari su
that the circuit split is not significant enough to justify review. The circuit split h
affected the large bulk of client-server architecture applications, in which t
undoubtedly a copy of the creator's content made on the local client.

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 2012] MIXED REALITY 89

Shifting a simple breach of

property infringement has s
generally generates expectatio
entails a statutory remedy s
statutory regime is the me
millions of dollars in dama
separate registered work const
significantly increases corpor
shift from the traditional
damages also changes con
overreaching online contract
from a consumer's breach of
damages regime of copyright
from a losing strategy to a prof
The shift away from consum
consumers' daily lives via EUL
shifts in law of our generatio
require consumers to comp

163. See 17 U.S.C. § 504(c) (2010) (c

one particular work, instead of mu
than $30,000 based on the court's d
willfully, and the copyright owner s
jumps to no more than $150,000 bu
not aware and had no reason to be
reduced to no less than $200 at the co
164. See Pamela Samuelson & Tara
Remedy in Need of Reform, 51 W
Congress intended this designat
interpreted willfulness so broadly t
was infringing are often treated as
which courts awarded amounts as l
large as $1.92 million, even where t
43 nn. 13-14.
165. See § 504(c) (providing for an award of "statutory damages for all infringements
involved in the action, with respect to any one work").
166. See id. (outlining statutory damages for copyright infringement).
167. See Viva R. Moffat, Super-Copyright: Contracts, Preemption, and the Structure of Copyright
Policymaking, 41 U.C. DAVIS L. Rev. 45, 64 (2007) ("Although these terms may rarely be
enforced, at least for now, their consistent inclusion and their consistent, but not uniform,
language indicates that the lawyers or website developers who are including these terms seek
to reserve their rights to bring breach of contract actions (or to send cease-and-desist letters),
possibly coupled with copyright infringement claims seeking copyright's statutory
damages.").

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90 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

unrelated to the making of copies.168 Facebook provides one exam

copyright law significantly shifts the balance of power to produ
consumers of internet technology. Facebook asserts a perpetual li
of its users' private information.169 Facebook also ferociously l
users can say. For example, a recent academic conference focusing
of internet kill switches in stifling speech was itself ironically stifle
tried to advertise via a Facebook page because Facebook does not
of the term "Internet kill switch."170 One might not be bothere
decisions were it not that Facebook surpasses email as the means
for communication by many Americans.171 Threats of copyright lia
the threat by Facebook—attach any time someone purchases softw
a website, or uses a social media site.
As intrusive as copyright licensing is for purely online computing
more so for the next generation of internet technologies—Mixed
mobile computing. Now, there exists the danger that the copyr
dominating online interactions will flow into Mixed Reality and
users in realspace. This new breed of online contracts impacts leg
across the board because our current system of law permits part
almost any background legal arrangement via consent.172 To ent
store a consumer must agree to the store's terms.173 By remain
website, a consumer ostensibly signs a contract. Engaging

168. See, e.g., MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928, 938
2010) (requiring users to use software only in the ways allowed by the agreement
169. See Statement of Rights and Responsibilities, FACEBOOK, §2(1), http:/
book.com/terms.php (last updated Apr. 26, 2011) ("[Y]ou specifically give us t
permission, subject to your privacy and application settings: you grant us a n
transferable, sub-licensable, royalty-free, worldwide license to use any IP cont
post on or in connection with Facebook (IP License). This IP License ends when
your IP content or your account unless your content has been shared with oth
have not deleted it.").
170. See CLIP Roundtab/e: Internet Switch—National Security or Public Repression?
(Feb. 10, 2011), http://www.facebook.com/event.php?eid= 194151337269200
"kill" in the title after being edited).
171. See Matt Richtel, Email Gets an Instant Makeover, N.Y. TIMES (Dec. 2
http://www.nytimes.com/2010/12/21/technology/21email.html (noting how
in the younger generations prefer other communications media, such as Facebo
172. See Davidson & Associates, Inc. v. Internet Gateway, Inc., 334 F. Supp
1184 (E.D. Mo. 2004), aff'd sub nom. Davidson & Associates v. Jung, 422 F.3d 6
2005) (finding consent to the software agreement); see also Fairfield, supra note 7
(noting how games allow individuals to alter even the rules of society with re
another through consent).
173. One of the most notable examples of this is the iTunes splash screen
the iTunes terms of service. See Terms and Conditions, APPLE, http://www.app
itunes/us/terms.html#SALE (last updated Oct. 12, 2011).

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2012] MIXED REALITY 91

transactions also requires a co

conditions of the site.

For example, on smartph

application that permits use
Maps, like other Mixed Reality
collect, package, and resell th
users to a broad array of thi
must consent to Google's te
tracking process just mention
tracking activities are protect
(EULAs and TOUs) because use
the services. But this is a poor
fails to recognize the "reality" a
how Mixed Reality applications
A comparison may clarify: co
surveillance of its customers
retains all of its users' searches,
ties all users' online browsing
the company's own sites, or t
on third-party sites, or some co

174. There are multiple layers of

world location information, telephon
IP addresses assigned to their sm
information, which is the informatio
indicated by the cell towers that t
companies did not record this infor
consumer information databases to
without anything more than the figl
that no consumer ever sees or reads
objected? Use the Internet without
that all of a user's activity—online an
175. See Julia Angwin & Jennifer
WALL ST. J. (Apr. 22, 2011), http:/
location information as part of thei
people's locations via their cellphone
market for location-based services—
the most popular smartphone apps
more aggressively than this—in some
user's consent or knowledge." Id.
176. See Privacy Center—Privacy
privacy/privacy-policy.html (last m
information, which includes using loc
177. See Anne Klinefelter, When To Re
Client Confidentiality from Online Tra

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92 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

met with some criticism, it is generally accepted that users of th

consent to these practices. But a similar practice of data collect
injected into the real world, got Google into serious legal troub
Streetview cars accessed individuals' open home wireless networks
roamed around taking pictures for Google Maps, collecting data
networks.178 Even though the result was basically the same—co
user data—the fact that the activity took place in a tangible wa
significant difference in the way the practice was perceived. A
lawsuits were filed across the United States, and state attorneys gene
to investigate the search giant for possible illegal wiretapping an
of communication privacy.179 The real difference in this compa
between "online" and "offline" collection of data—after all, the
cars tapped into wifi connections—but whether there was the ba
of contractual consent in place. Google ostensibly secures conse
enormous amount of intrusive surveillance on its customers as soon as users

surf to its web page.180 Streetview cars did not have any such contractual figleaf.
The fighting question for Mixed Reality applications will be whether such
online contracts of adhesion will finally be pushed down into the real world,
such that courts will protect intrusions—like those of the Streetview car—
under the theory that consumers have consented to the surveillance.181
Google already engages in online surveillance operations gathering data far
more comprehensive than any of the data gathered by Streetview, but it is
privileged to do so under a strained reading of contract law.182

browsing, searching, and online activities in general—including the use of Google—give rise
to attorney-client confidentiality concerns due to the data being saved and indexed).
178. See Elec. Privacy Info. Ctr. (EPIC), Investigations of Google Street View, EPIC.ORG,
http://epic.org/privacy/streetview/ (last visited Oct. 31, 2011) (summarizing the various
investigations around the world into Google's practice of collecting data from unencrypted
wireless networks).
179. Id.
180. See Google Terms of Service, supra note 129.
181. See Elinor Mills, Carrier If) Faces Lawsuits, Lawmaker Seeks FTC Probe, CNET (Dec.
2, 2011, 1:09 PM), http://cnet.co/xgWjcX (describing the lawsuit filed against Carrier IQ as
performing surveillance without consumer consent). Carrier IQ responded to the criticisms
by claiming that it was assisting carriers in gathering data, and at least one carrier stated that
its practices of using Carrier IQ did not violate its privacy policy. David Sarno & Tiffany
Hsu, Carrier IQ Defends Itself in Furor over Smartphone Users' Privacy, L.A. TIMES (Dec. 2, 2011),
http://lat.ms/GSNVmp. At the time of this writing, Carrier IQ has not issued a formal
response to the suits.
182. See Lemley, supra note 139, at 468-70 (citing ProCD's questionable legal reasoning
based on incomplete reliance upon the UCC, in particular §§ 2-204, -207, and -209, with the
subsequent legal reality that these rigid contracts are typically upheld in favor of their
corporate authors).

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 2012] MIXED REALITY 93

We have come full circle. Th

intended to govern intangible,
walkabout lives of U.S. citizen
their private information and
data about their everyday live
Internet. What is needed is
established contract, tort, pr
muddled by a strained readi
consumers, scale back untr
information, and return copyri
creativity, rather than controll
The following Sections expl
offering proposals for re-balan
B. Tort Law: Cyberdefamation and Mixed Reality
Reputation Systems

The Mixed Reality future will include facial recognition software

able to access reputational ratings of people the user runs across
everyday life.183 Tagging real people with data raises obvious issues relat
the law of reputational interests, which acts to protect individuals agains
publication of false statements made against their image.184 Where empl
now Google applicants, in the future they will merely check the pe
online reputation with a range of online reputation providers and s
networks. Once personally-tagged reputation and personal infor
becomes ubiquitously available to everyone with a smartphone
temptation to manipulate or poison that information to cause reputa
harms will inevitably arise.
Such reputational harms can already be found in the purely o
context. 185 For example, an early Google bomb—using search e

183. See John Biggs, iOS 5 To Have Powerful Face Detection, TeCHCRUNCH (July 27
http://techcmnch.com/2011 /07/27/ios-5-to-have-powerful-face-detection/ (repor
Apple's purchase of a facial recognition software company, Polar Rose, and the p
incorporate it into Apple's iPhone operating system); Ben Parr, Top 6 Augmented Realit
Apps, MASHABLE (Aug. 19, 2009), http://mashable.eom/2009/08/19/augmented-reality
(describing a mobile app called Augmented ID that recognizes a person's face and p
information about that person).
184. See RESTATEMENT (SECOND) OF Torts § 569 (1977) ("One who falsely pub
matter defamatory of another in such a manner as to make the publication a libel i
to liability to the other although no special harm results from the publication.").
185. Kai Ma, Dan Savage Threatens To 'Google Bomb' Rick Santorum, Yet Again
NEWSFEED (July 28, 2011), http://newsfeed.time.com/2011/07/28/dan-savage-t
to-google-bomb-rick-santorum-yet-again/.

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94 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

optimization to prioritize the results of the "bomber" on Google

Senator Rick Santorum.186 Political detractors of the senator cre
color definition of the senator's name and then raised the search rank of the
alternative result by crosslinking and referencing the neologism.187 The end
result was that searches on Google for the senator's name would find the
alternative definition in the first page of results.188
Because the Internet has become the primary purveyor of both personal
and professional reputational information, the risk of harm is magnified.
Employers Google prospective applicants.189 Social networks like Linkedln
manage professional connections.190 eBay maintains reputation systems for
third party vendors, facilitating transactions between parties that otherwise
would not trust one another.191

Under the current legal and statutory regime, however, companies that
create and maintain reputational networks lack incentive to keep reputational
data accurate. This is because § 230 of the Communications Decency Act
("CDA")192 generally immunizes interactive computing services providers
from tort lawsuits stemming from inaccurate data supplied by users of the
service.193 Defamation law governs reputational harm offline—where there is
no corresponding immunity for providers of reputational information. Thus,

186. Tom McNichol, Your Message Here, N.Y. TIMES (Jan. 22, 2004), http://www.ny
times.com/2004/01/22/technology/your-message-here.html (explaining the phenomenon
of "google bombing").
187. See Marziah Karch, Google Bombs Explained, ABOUT.COM, http://google.about.
com/od/socialtoolsfromgoogle/a/googlebombatcl.htm (last visited Dec. 12, 2011) (noting
that Santorum's name was linked to the definition of a lewd phrase through a Google
bomb).
188. See id.

189. See Employers Google Applicants, ABC NEWS (Apr. 28, 2007), http://abcnews.go.
com/Business/video?id—3083837.
190. See What Is Linkedln?, LlNKEDlN, http://www.linkedin.com/static?key=what_is_
linkedin&trk=hb_what (last visited Oct. 31, 2011) (describing the professional networking
qualities of Linkedln).
191. See Detailed Seller Ratings, EBAY, http://pages.ebay.com/help/feedback/detailed
seller-ratings.html (last visited Oct. 31, 2011) (describing eBay's seller rating system and how
it is used to determine seller quality).
192. 47 U.S.C. § 230 (2010).
193. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009); Doe v. MySpace, Inc.,
528 F.3d 413 (5th Cir. 2008); Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157
(9th Cir. 2008); Chi. Lawyers' Comm. for Civil Rights v. Craigslist, 519 F.3d 666 (7th Cir.
2008); Mazur v. eBay, No. C 07-03967 MHP, 2008 WL 618988, at *1 (N.D. Cal. Mar. 3,
2008); Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007) (dismissing claim
against online site SexSearch on grounds that plaintifFs claim based on SexSearch's promise
that all users were over 18 was barred by CDA § 230 when a minor entered false data as to
age), ajfd, 551 F.3d 412 (6th Cir. 2008) (affirming on grounds of failure to state a claim, but
declining to adopt district court's reading of CDA § 230).

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 2012] MIXED REALITY 95

online service providers general

liability. This duality makes the
reputational information tha
Section will explore these probl
An example may help to cla
problems Mixed Reality raises
users that its users are unmar
lies about her marriage status a
harmed as a result. Let us also
failed to implement measures
On these facts, the caselaw as to
clearly seems to bar any lawsu
entered.195 However, courts are
for its failure to live up to pr
Some courts seem to lean towar
representation was caused by th
be immune to any lawsuits
interpretive approaches might
the claim that the dates we
company, not a representation b
This system of online con
incentives. The corporate curato

194. Joshua Dubnow, Ensuring Innovat

the Intellectual Property Exception to t
INTELL. PROP. 297, 307 (2010) ("While the courts have reached two competing
interpretations of § 230(c)(1) and (e)(2) of the Communications Decency Act, this split must
ultimately be resolved because of the vastly different outcomes to which each interpretation
leads.").
195. See § 230(c)(1) ("No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information
content provider.").
196. See Barnes, 570 F.3d at 1109 (denying Yahoo! §230 liability where a Yahoo!
associate made a direct promise to remove nude pictures of plaintiff posted by a third party);
Fair Horn. Council, 521 F.3d at 1176-77 (denying Roommates.com § 230 immunity where it
exercised such control over the statements of the users that it functionally became the source
of their illegal housing advertisements); Ma^ur, 2008 WL 618988, at *14 (denying eBay § 230
immunity where eBay itself made representations about the nature of certain auctions).
197. See SexSearch.com, 502 F. Supp. 2d at 727—28.
198. See David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of
Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 LOY. L.A. L. Rev.
373, 397, 411, 479 (2010) (explaining that the first empirical study of § 230 reveals that the
statute has been haphazardly applied by courts and has led to mixed—but generally
positive—outcomes for providers).

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96 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

suit based on third party false representations of trustworthiness,199 b

directly profits from a high overall reputation average within the n
For example, new apps in the Android app market appear to receiv
star rating at the outset.200 This rating is then modified by third party
of the software. The overall sense that this generates is that Android ap
high quality and safe, when the reality is that many are merely new. In
due to Android's popularity, dangerous and fraudulent apps are at an
high201 and benefit disproportionately from the appearance of trustwo
that the Android market creates. Legal precedent appears to incenti
network to make untrue statements about the high level of trustworthi
the network. This exacerbates the tension between the network's financial
stake in a good reputation and the very point of such a network (to help
users detect bad actors). Even if a bad actor's false inputs into the reputation
network render the reputation provider's statements untrue, there is a high
likelihood that network provider will be immune from liability.202
This leads back to the problem of online licensing and increasing control
over consumers. At the same time that copyright law has given online service
providers unprecedented power over consumers, courts have also granted
providers unprecedented immunity against even claims based on the
companies' own promises. Consider a standard online EULA or Terms of
Use contract. That contract can impose strict controls on the consumer, on
pain of copyright infringement and statutory damages. But the return
promises of the company to keep the network safe or to provide accurate
reputational information regarding other users of the network may well be
largely unenforceable under CDA § 230.203
The advent of Mixed Reality technologies will aggravate this liability
imbalance significantly. Again, the core example is mobile technology that
can recognize another person and then report reputational data to the user.

199. Id. at 379 (citing § 230(c)(1) and stating that it effectively grants "operators of Web
sites and other interactive computer services broad protection from claims based on the
speech of third parties").
200. Android's application programming interface ("API") allows developers to use a
code feature called RatdngBar which allows them to assign a default star rating for an app. See
RatingBar, ANDROID DEVELOPERS, http://developer.android.com/reference/android/widget/
RaringBar.html (last updated Oct. 27, 2011).
201. See, e.g., Google Moves To Delete RuFraud' Scam Android Apps, BBC NEWS (Dec. 14,
2011), http://bbc.in/GSOqNl.
202. See Ardia, supra note 198, at 481 (analyzing statistics of decisions under § 230,
concluding that "overall, defendants won dismissal in 76% of the cases studied").
203. Id. at 493 ("[Defendants won dismissal on section 230 or other grounds in more
than three-quarters of the cases studied.").

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 2012] MIXED REALITY 97

Facial recognition technology

And such technology does not
also recognize people in photo
Face.com's facial recognition
albums and identifying anyon
picture and video uploads ar
cautious with permissions, G
movies from the user's teleph
auto-uploaded.206 Facial recogni
that it takes indicia from t
augments it with data (here,
facial recognition, reputation,
online reputation down to the
to be at a desk to Google y
networking sites, now facial re
of online reputation into real
legal framework governing r
perverse incentives for Mixed R
for online reputation networ
amount of liability pursuan
applications, while their creator
C. Property Law: The Digital Land Wars

Mixed Reality augments real world objects, places, and pe

virtual experiences. The augmentation of objects and places n
implicates property law. Imagine that someone "augments" your
a virtual tag that contains an obscene word viewable through a M
application. Can you assert rights as a property owner to re
offensive virtual sign?207 This Section tracks property shifts in
technology and predicts shifts based on emerging Mixed Reality appl

204. Biggs, supra note 183; Nick Bilton, Facebook Changes Privacy Settings To E
Récognition, N.Y. TIMES BITS (June 7, 2011, 4:30 PM), http://bits.blogs.nytim
06/07/facebook-changes-privacy-settings-to-enable-facial-recognition/.
205. See FACE.COM, http://face.com/ (last visited Feb. 19, 2012); see also
Recognition Software That Will Put a Name to Every Photograph in the Internet, D
(Aug. 23, 2010), http://www.dailymail.co.uk/sciencetech/article-1305191/Facia
software-allow-ability-identify-people-photographs-internet.html.
206. Instant Upload Settings, GOOGLE, http://www.google.com/support/
answer.py?answer= 1304820 (last visited Aug. 14, 2011).
207. See John C. Havens, Who Owns the Advertising Space in an Augmented Rea
MAshABLE (June 6, 2011), http://mashable.com/2011/06/06/virrnal-air-righ

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98 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

One perennial feature of the digital landscape is that of the d

war.208 The cycle goes as follows. First a range of options for the
information is proposed. There is a divergence, and many different
applications, or networks are considered candidates for the "be
internet real estate. There is then convergence once one address,
or network becomes the "best," and people shift attention t
attention shifts to only one address, application, or network, legal b
follow as the owners of pre-existing property rights try to tak
pieces of internet real estate away from the people who bet on
technology.209
For example, early in the Internet's development, there w
different top-level domain names. Some of these were restricted, lik
.edu. Some were general, like .net, .org, and .com. It was not im
apparent that a .com domain name would become the most valua
land on the Internet. It was only after the cycle of divergence—m
level domain names existed—and convergence—to the .com dom
as the first choice of the searching consumer—that the legal wa
.com domain names began. When they did, they did so in ear
Congress enacting legislation in support of the rights of trademark
allowing them to take domain names from people who had regist
The Anticybersquatting Consumer Protection Act permits the o
registered trademark to take a domain name that references the
from the registering party.211 This permits trademark owners to w
riding by parties who wish to use the trademark to sell goods, but it
the trademark owner another tool to quell critics of the trademark
critics of the goods and services that the owner sells.212

reality/ (noting that "[mjultiple apps feature the ability for ads to appear on
screen as miniature virtual billboards assigned to GPS coordinates").
208. See supra note 25.
209. See Lipton, supra note 25, at 448.
210. See Trademark Act of 1946, Pub. L. No. 79-489, 60 Stat. 427 (codified
in scattered sections of 15 U.S.C.).
211. Pub. L. No. 106-113, § 1000(a)(9), 113 Stat. 1501, 1536 (1999) (enact
§ 3002 of the Intellectual Property and Communicadons Omnibus Reform A
S. 1948, 106th Cong., reprinted at 113 Stat. 1501A-545 to -548 (1999) and
amended at 15 U.S.C. § 1125(d)).
212. See Susan Thomas Johnson, Internet Domain Name and Trademark Dispu
Paradigms in Intellectual Property, 43 ARIZ. L. Rev. 465, 476 (2001) (listing var
cybersquatters, including one "who registers a domain name using the same or a
version of another entity's name to harass or criticize that entity" and "one who
appropriates a famous trademark or tradename as a domain name for financial

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 2012] MIXED REALITY 99

These land wars are far from settled. Another wave of land batdes
occurred over the use of metadata—mechanisms to drive customers to one
site or another via search engine optimization.213 Another modern-day wave
is "Twitterjacking."214 As Twitter became a social networking phenomenon,
certain Twitter handles became valuable property. Immediately following the
BP Gulf oil spill in 2010, some enterprising individual registered the handle
"BPGlobalPR" and began a series of sardonic, self-involved, and hilarious
tweets supposedly on behalf of BP.215 It is not immediately clear that BP has
the right to any Twitter handle that contains its name, especially ones that are
being used for parody, or to convey truthful critical consumer information to
the market.

The land wars continue in the sphere of Mixed Reality. For example, land
wars are currently being waged over geolocated data tags. Yelp, a company
that places GPS-located tags on businesses, includes reviews from ostensible
customers. Litigation is now pending in New York against Yelp. The
plaintiffs' goal is to force Yelp to remove negative reviews and stop
removing positive reviews that are geotagged to the plaintiffs' businesses.216
Furthermore, some European countries have voiced unrest because of the
lack of control over the virtual representations of houses and property in
Google Earth and through Google Maps.217
A coming wave of digital land wars will likely involve mirror worlds.
Mirror worlds are virtual worlds that mirror the real world. The full 3-D
version of Google Earth is a good example. With the latest software,
consumers can see 3-D representations of buildings and view real-time relays

213. See Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 9
YALE J.L. & Tech. Ill (2006); see also David Segal, The Dirty Little Secrets of Search, N.Y.
Times (Feb. 12, 2011), http://www.nytimes.com/2011/02/13/business/13search.html.
214. See William Sloan Coats & Jennifer L. Co, Kaye Scholer LLP, The Right of Publicity &
Celebrity Licensing, 1065 PLI/PAT 277, 298 (2011) (describing Twitterjacking as the
phenomenon of someone creating a Twitter feed and pretending to be a famous individual).
215. See Noam Cohen, For Dueling BP Feeds on Twitter, Biting Trumps Earnest, N.Y. TIMES
(June 7, 2010), http://www.nytimes.com/2010/06/07/business/media/071ink.html.
216. See Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (Sup. Ct. 2010).
217. See, e.g., Catherine Bolsover, German Foreign Minister Joins Criticism of Google's Mapping
Program, DEUTSCHE WELLE (Aug. 14, 2010), http://www.dw.de/dw/article/0„5910738,00.
html (describing complaints against Google Maps in Germany); Google Street View Blacked Out
in Greece, CNN (May 13, 2009), http://articles.cnn.eom/2009-05-13/world/greece.google.
street. view.blocked_l_google-earth-search-giant-google-maps (describing the same in
Greece); Call To 'Shut Down' Street View, BBC NEWS (Mar. 24, 2009), http://news.bbc.co.uk/
2/hi/7959362.stm (describing the same in the United Kingdom).

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100 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

from cameras at specific locations.218 Fights over data tagged mirr

will be intense. Imagine if a global anarchist protest movement gr
mirror world location of local Wal-Mart stores and targeted them for
world protests by tagging the GPS location with anti-Wal-Mart
slogans; or imagine if members of the Occupy Wall Street moveme
the locations of Wall Street firms with accusations and criticisms.219
the virtual defacing of a political headquarters in lieu of the more tra
brick through the window.
The land wars leave open a number of legal questions. The first
is whether owners of intellectual property rights—here, generally tra
owners—should be permitted to take prime internet locations aw
first movers. Second, and more significandy, the land wars leave
question of whether intellectual property law is itself the cor
framework to apply.
The law of intellectual property tends here, as elsewhere, to ex
the trend towards increasing corporate control at the expense of p
individuals. For example, imagine that a user Twitterjacks @Fairf
begins to tweet as this Article's author. The author does not have t
celebrity that would give rise to a misappropriation of likeness c
trademark or other IP ground on which to assert a claim to ownership
new internet real estate. Yet Fairfield Inn & Suites would have a reasonable
expectation of success in seizing the Twitter designation from a new
registrant if someone were to register @Fairfield and begin tweeting hotel
deals.220 Thus, while I must register @Fairfield preemptively to protect my
online persona, intellectual property owners often have the luxury of waiting
to see which emergent technologies become dominant and then moving to
secure the most valuable digital real estate. This gives IP holders a significant
advantage.
Mixed Reality will only intensify the trend towards corporate control. As
Mixed Reality causes real and virtual experiences to converge, there is a
serious risk that the "virtual" rights holders (IP owners) will prevail and that
"real" rights holders (real people and owners of physical property) will lose

218. See Google Maps, GOOGLE, http://maps.google.com (last visited Oct. 31, 2011)
(containing a drop-down menu that enables the viewing of various live camera feeds in areas
all over the world).
219. See Occupy Movement (Occupy Wall Street), N.Y. Times, http://nyti.ms/AmZh25 (last
updated Feb. 13, 2012) (containing articles chronicling the anti-Wall Street movement and
the accompanying protests).
220. See Trademark Policy, TWITTER, https://support.twitter.com/groups/33-report-a
violation/topics/148-policy-information/articles/18367-trademark-policy (last visited Aug.
14,2011).

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 2012] MIXED REALITY 101

out. Further, Mixed Reality is

applications and which chan
dominant is anyone's guess.221
become dominant, those users w
being sidelined in favor of I
property owners—the owne
example above, for instance—
regarding their real world proper

D. Privacy Law: Privacy's Death and Resurrection

The advent of mobile computing has enabled the totalitarian

nightmare) of tracking citizens at all times. For the most part, how
not the government that tracks citizens. Tracking is largely ac
through the technology consumers themselves use.223 Tracking tech
rampant and widespread. Google Streetview cars captured un
personal data as the cars passed private homes.224 Facebook initia
architecture for its developers that permits almost anyone to ca
amounts of information through an app installed by a friend of
GPS-enabled cell phones constandy record the real-world location
users.226 Internet service providers do the same, tracking their
across the digital landscape.227 It follows that mobile broadband
can not only track users' physical locations, but also correlate tho
with the users' online browsing habits.

221. See Havens, supra note 207 (suggesting that Google Goggles will be a
player given Google's current dominant market position).
222. See id. ("Google will own the virtual air rights within Goggles.").
223. See CHEN, supra note 6, at 47 ("[Ajrmed with a camera-equipped sma
live streaming-video software, every citizen will have the power to broadcast any
world in real time, thus creating a collectively omniscient society of watching e
224. See Kevin J. O'Brien, Germany Asks Apple About iPhone's Data Gathering
(June 28, 2010), http://www.nytimes.com/2010/06/29/technology/29apple.h
improperly collected 600 gigabytes of personal data, including fragments of e-
and unencrypted passwords, on individuals around the world as it scanned
networks while it gathered information for its Street View map archive.").
225. See Emily Steel & Geoffrey A. Fowler, Facebook in Privacy Breach, WALL
18, 2010), http://on.wsj.com/xWPKF (describing how Facebook apps violate u
226. Noam Cohen, It's Tracking Your Every Move and You May Not Even
Times (Mar. 26, 2011), http://www.nytimes.com/2011/03/26/business/med
html (discussing the practice of how cell phone providers track users' latitude an
227. See Peter Whoriskey, Every Click You Make, WASH. POST (Apr. 4, 2
wapo.st/xpbudQ (describing the growing phenomenon of internet service prov
individuals' online activity).

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102 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

Likewise, even our friends and family can track us using widely av
technology. As soon as one person takes a photograph and upload
Facebook, facial recognition technology can recognize and tag the peo
the photograph with metadata (often including date and real-world ph
location).228 The government need not do much more than ask for
information from the mass of third parties who have already collect
indexed it.229

A discussion of online privacy is necessary in the context of M

Reality because Mixed Reality technology permits companie
governments to know not only a person's digital profile, but also hi
world habits.230 There is nowhere to hide. Offline, real-world activity is
coded and recorded, parsed, and re-sold—thanks to the integration of
Reality applications in our everyday lives—just as online activity ha
Where I drive every day can be cross-compared to my web surfing habits
Where a consumer walks during the day is as marketable as which we
she has visited—and a combination of the two is more potent still.
Mixed Reality makes privacy increasingly elusive and unattainable. In f
some urge that those who care about privacy should give up netw
technologies. Former Google CEO Eric Schmidt implied that users w
not want to be tracked by Google all across the Internet, including an
that serves Google ads reporting back to Google, should simply not u
Internet.232 Thus, in more recent years the move by privacy advocat

228. See Lauren Effron, Facebook in Your Face: New Faâal Recognition Feature Raises
Eyebrows, ABC NEWS (June 10, 2011), http://abcn.ws/wFWrBG (describing Faceb
facial recognition feature).
229. Cf. Kevin Werbach, Sensors and Sensibilities, 28 CARDOZO L. Rev. 2321, 2325
(explaining the massive surveillance power of individuals resulting from the prolifer
cameraphones coupled with widespread mobile phone usage, and noting that camera
function as "sensors hooked into end-user devices"); see Mark Milian, U.S. Sent Goog
Requests for User-Data in 2010, CNN TECH (June 27, 2011, 6:49 PM), http://www.cn
2011 /TECH / web/06/27/ google.data.requests/index.html.
230. See Cohen, supra note 226 ("One product, CitySense, makes recommen
about local nightlife to customers who choose to participate based on their cellphon
Many smartphone apps already on the market are based on location but that's wi
consent of the user and through GPS, not the cellphone company's records.").
231. See Andrew Munchbach, Apple Sued over iPbone Location Tracking Scandal, BGR (
2011), http://www.bgr.com/2011 /04/25/apple-sued-over-iphone-location-tracking-sc
232. See Jared Newman, Google's Schmidt Roasted for Privacy Comments, PCWOR
11, 2009), http://www.pcworld.com/article/184446/googles_schmidt_roasted_for_p
comments.html (quoting Schmidt as stating, "[i]f you have something that you don
anyone to know, maybe you shouldn't be doing it in the first place, but if you really n
kind of privacy, the reality is that search engines including Google do retain this info
for some time . . . .").

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2012] MIXED REALITY 103

been to move some activity of

datamining corporations.233
forecloses even this option.

/. Privacy Is Dead, Long Live P

The ubiquity of technology th

movements and cross-refere
government and corporate acto
Section explores the questions o
Mixed Reality and mobile com
the current bleak situation. This
an end state, but rather a point
disclosure. Because privacy is
category, it is inaccurate to state
mobile computing on privacy a
systems used to locate, retain, an
Since people will always seek
other people will always seek
dispense with the "privacy is de
battle cry of consumer disempo
dead because the law has preven
tools necessary to protect their
nearly impossible to surf the I
phone without constantly re

233. See Helen A.S. Popkin, Privacy

13, 2010), http://on.msnbc.com/xUn
234. See Newman, supra note 232
households in Germany use a retail b
company the right to collect and ma
them advertising."); Popkin, supra note
235. See CHEN, supra note 6, at 188
forced to change and how the focus
privacy concerns rather than simply d
Privacy Isn't Dead. JustA.sk Google+, N
GSOUTE (outlining how Google bene
and focusing on privacy concerns in
236. See Tanzina Vega, Industry Tries
Times Mobile (Aug. 15, 2011), http:/
on the privacy front as including "one
are both easy for consumers to read a
237. See John Markoff, Do We N
http://nyti.ms/GSOVHg; Kate Murphy,
N.Y.Times (Feb. 17, 2011), http://ny

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 104 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

financial information.238 The goal, then, should be to provide consum

the simple, built-in tools necessary to protect privacy.

2. Privacy by Design

The FTC has made much of "privacy by design."239 This is an im

meme to explore because it is both widespread and ineffective in
privacy. Technologies that have been designed from the ground up
package, and sell information cannot "by design" keep that infor
private. This Section explores the privacy by design meme, critiqu
then discusses some more viable alternatives in the following Sections
Privacy by design is an incorrect approach for two reasons.240
idea that privacy needs to be designed complicates a very simple
Corporations do not need to design for privacy because corporatio
need to record their customers' information in the first place. Th
privacy design arises only because the existing technologies have alr
designed to gather and sell customers' information. Once one
"privacy by design" as "designing systems and services with the p
collecting and disseminating information to not collect or dis
information,"241 the futility of the approach becomes apparent.242 T
first reason that privacy by design has not produced privacy online is
the technologies have been designed not to allow for privacy.

238. Angwin & Valentino-Devries, supra note 175; Susan Freiwald, Cell Phon
Data and the Fourth Amendment: A Question of Daw, Not Fact, 70 Md. L. Rev. 6
(2011) (stating that if cell phone data of one individual were recorded, "it cou
a . .. virtual map of all the places the person went and how much time he spent
along the way"); Ki Mae Heussner, Apple Tracks Location with iPhone, iPad Data,
(Apr. 20, 2011), http://abcn.ws/wghaeh (noting that the "Apple iPhone and iPa
the device's geographic position and corresponding time stamp in a hidden file").
239. See Fed. Trade COMM'N, PROTECTING CONSUMER PRIVACY IN AN
RAPID Change (2010), available at http://www.ftc.gov/os/2010/12/101201privacy
(advocating that companies adopt "privacy by design" as a means of protecting
privacy by limiting disclosure of consumer data through product design).
240. For background on privacy by design, see generally Ira S. Rubinstein,
Privacy by Design, 26 BERKELEY Tech. L.J. 1409, 1431—43 (2011) (describing var
why privacy by design has not enjoyed the amount of success anticipated).
241. Simply put, the technology today has been developed with collection of u
mind. The privacy by design concept is seemingly contradictory because it woul
enhance privacy in systems that have been designed specifically to gathe
information.

242. See Klinefelter, supra note 177, at 18 (identifying major concerns, in par
the legal community stemming from confidentiality, and the concerns raised by vi
parties, and other bad actors with regard to online research and data saved by
tracking).

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 2012] MIXED REALITY 105

The second, and related, re

consumers do have are designed
attention required to use them.
to argue against regulatory enfor
would follow the model of the
Instead, consumers must navig
application provider, online s
Drawing an analogy to the tele
not-call list, each telemarketer
people who did not wish to be c
each telemarketer (never mind th
it such that telemarketing was h
list permitted consumers to exp
serially on the phone serially wit
Privacy by design is to some
commercial data architecture
packaging, and reselling consume
Further, the privacy options
exhaust and confuse the user b
their privacy concerns with each
system designed not to work.

3. Privacy as Control

The solution to the privacy p

legally enforceable consumer co
only necessary; it is an effecti
conceptions with regard to priva
a matter of control rather than
consumer control regime would

243. See Vega, supra note 236 (discuss

importance of privacy policies on da
collection).
244. See David Goldman, FTC 'Do Not Track'Flan Would Cripple Some Web Giants, CNN
MONEY (Dec. 3, 2010), http://money.cnn.com/2010/12/02/technology/ftc_do_not_track/
index.htm (identifying several industry leaders, such as Google, who are against "do not track"
due to unforeseen security problems and loss in e-commerce and advertising revenues).
245. See Rubinstein, supra note 240, at 1412 (noting that the profits derived from online
advertising make firms reluctant to voluntarily impose systems that will increase consumer
privacy to the detriment of their ability to collect consumer information).
246. See Vega, supra note 236.
247. See CHEN, supra note 6, at 188; Bilton, supra note 235 (praising Google+ for its
default privacy settings).

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106 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

personal information and allow internet companies to use it.248 If imp

effective consumer-side privacy controls can provide a true m
information.

Additionally, the decision as to whether or not to permit online or

tracking can more easily and effectively reside in the customer's h
is clear in light of the unworkable alternatives to consumer c
privacy. The current regime of privacy policies (that contain no
protections) and EULAs (that bury invasive privacy terms twenty p
in electronic documents) has proved unworkable. Similarly, leavin
controls in individual companies' hands has proven to be a longsta
in-the-henhouse type failure.
Implementing a consumer control regime would be relatively
simple, expedient solution such as legally enforcing the "do not tr
already available in browsers would do the trick. A consumer-sid
track" option would test the economic arguments of privacy nay
These naysayers argue that there is no privacy because consumer
want it, or at least that consumers want products more than priva
example, Eric Schmidt has stated in relation to Google Streetview
you have something that you don't want anyone to know, m
shouldn't be doing it in the first place."250 Milder versions of th
strange argument include the assertion that consumers who do no
be tracked are free to not use Google, or are free not to use the In
are free not to use the telephone. And with the advent of mobile c
technology, we might say that a consumer who does not wish to b
and recorded is free not to leave her house.

The market for consumer privacy has yet to be tested because "privacy
by design" policies shift all of the transaction costs of privacy onto
consumers. To discover what consumers make of privacy online, the
transaction costs of privacy should be shifted from consumers to the owners
of internet technology. Shifting the transaction costs from consumers and

248. See Vega, supra note 236 (harmonizing the needs of users with the needs of
companies to create a balance on the privacy front, but noting how online advertising
reduces the costs of mobile applications). Mobile apps are free or cheap largely because of
mobile advertising. See also Jim Harper, The Great Privacy Debate—It's Modern Trade: Web Users
Get as Much as They Give, WALL St. J. (Aug. 7, 2010), http://on.wsj.com/ArHG25 ("The
reason why a company like Google can spend millions and millions of dollars on free
services like its search engine, Gmail, mapping tools, Google Groups and more is because of
online advertising that trades in personal information.").
249. See Harper, supra note 248 (arguing the same point on behalf of consumers in that
protections for consumers would invite them to abandon personal responsibility).
250. See Newman, supra note 232.

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 2012] MIXED REALITY 107

offering consumers simple and

offline privacy would also te
internet technology industry t
internet technology companie
privacy settings, companies will
consumers.

A true market for privacy requires customers to have

are not overwhelmingly burdened by transaction cos
approach to the private information market i
characterized by decentralized, complex, and unenfor
has resulted in full market failure. Simple, legally
consumer-side browser-level protections for consum
problem by centralizing decision-making in consu
corporations or the government.
Privacy as control represents an alternative to pr
Privacy as control assumes that consumers have effectiv
enforceable controls in their own hands,253 rather t
controls that vary according to each service provider.
consumer control over privacy is particularly important
context. Without real control over information, consu
as subject to constant tracking in their real lives as
online habits.

IV. BALANCED LAW FOR MIXED REALITY

Mixed Reality merges the real world and cyberspace. It pr

opportunities for consumers to augment realspace wit
experiences. But the merging of real and virtual worlds also
legal problem. Law online has ventured far away from its offli
is a very real risk that as virtual and real merge, the law in

251. See Rubinstein, supra note 240, at 1412 (listing various reasons w
not want privacy, such as lack of knowledge, behavioral biases, or simpl
the issue).
252. See CHEN, supra note 6, at 188—89 ("Perhaps we have already given up our digital
privacy, but we still have control over boundaries .... In a modern online context a
violation of privacy may only occur when we are manipulated into sharing more than we
were told we would be sharing.").
253. See LAWRENCE LESSIG, CODE Version 2.0, at 88-111, 228-30 (2006) (arguing for
a property model to protect privacy).
254. See CHEN, supra note 6, at 189 ("Online privacy advocates criticize online services
when they are unclear or dishonest about what they are doing with our data, not when they
are using our data—because, of course, they are.").

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108 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

intangible assets will come to govern everyday life.253 The law g

intangible assets was not designed to apply to the real world. If and wh
applied to the real world, the result will be extremely problemat
specialized law of intellectual property and online contracting is no
rule set from which to draw rules about everyday human life. R
analogies, not online analogies, are the best source for legal rules g
the convergent technology of Mixed Reality.256
Solutions that have proven useful in law historically should be a
the emerging legal problems generated by Mixed Reality.257 The law h
evolved internal checks and balances. For example, the common law
imposed restrictions on how much control an intellectual propert
may assert once she has sold a product.258 Similarly, the law has long
limits on contracts—limits that should be given new life in the online
generally, but also particularly in the context of Mixed Reality. Very
needed to solve one of the major problems, that of protecting co
data. Here the law need only enforce consumers' expressed prefer
maintain their privacy and reject the pernicious myth of consent t
of personal information. Simple, unitary, default, and legally en
privacy controls will generate a much better market in c
information.259 The following Sections demonstrate through three
that the law of intangible assets applied online should not be a
Mixed Reality applications.

255. See Boone, supra note 53, at 114—15 (detailing that underlying code is wh
a virtual world). See generally CHEN, supra note 6 (describing how the iPhone co
physical and virtual world); Barfield, supra note 5, at 161 (describing advertising in
reality); Gross, supra note 11 (describing an augmented reality mobile applicatio
supra note 52, at 1133 (describing the potential of near field communications).
256. See Lyria Bennet Moses, 'Recurring Dilemmas: The Law's Race To Keep U
Technological Change, 7 U. ILL. J.L. TECH. & PolV 239, 279—80 (2007); see also Per
Schultz, supra note 158, at 892.
257. See Fairfield, supra note 8, at 475—76 ("For online communities to thriv
must recognize that private property, torts, and other community-critical ri
obligations can be adapted from the familiar rules that already govern communi
real world to suit the realities of the virtual world.").
258. See Perzanowski & Schultz, supra note 158, at 892 ("[C]opyright exhaus
many principles recognized in the Copyright Act, was created by and should co
develop through common law judicial reasoning.").
259. Cf. Eric J. Feigin, Architecture of Consent: Internet Protocols and Their Legal Imp
STAN. L. Rev. 901, 902 (2004) ("Higher-level protocols, such as those utilized in
interactions, involve exchanges that should be considered express consent: the fo
a legally binding contract.").

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 2012] MIXED REALITY 109

A. Constraining Intellectual Property

The first and largest problem that this Article has ident
virtual and real legal interests merge, the law appears set to gr
rights to intellectual property holders than it does to holder
rights, like personal dignity or real property.260 Copyright
culprit, but other areas of intellectual property are also at faul
as seen in Section III.C, supra, owners of trademarks h
advantage in the race for prime online real estate.261
The law has already developed checks on the ability of a
property holder to exert continuing control over its custom
sold its product, but courts have not applied these checks to
Copyright is meant to prevent copying. Once a copy is s
copyright owner no longer has the power to control the c
common law doctrine of "first sale," which has been en
Copyright Act.263 The doctrine hinges on whether a copyri
been "sold" or merely "licensed." The answer to this questi
and courts rarely get it right. Again, online law has diverged
offline law. For example, although Netflix can buy a physic
it out to any customer (thus ensuring that almost any prog
available through Netflix's mail service), Netflix must seek i
deals on a per-provider basis in order to stream the very same
while Netflix's ability to use the physical copy of the same
restricted, its ability to utilize an online copy is curbed by
copyright law—in this case, the IP holder has much more
online version.

There is, however, one interesting development. Courts seem to draw a

distinction between electronic data that is recorded or embedded in a
physical medium, and data that is merely free flowing.264 This is an improp

260. See Lemley, supra note 139; see also sources cited supra note 255.
261. See text accompanying supra notes 211—12.
262. See 17 U.S.C. § 106(1) (2010) (giving the exclusive right to reproduce work tha
copyrighted). But see id. § 117(a)(1) (providing for the essential step defense for the softwa
context where an owner of a lawful copy does not infringe the reproduction right of
copyright owner if the reproduction is an essential step in the utilization of the software)
§ 109(a) (providing for the first sale doctrine where a lawful owner of a copy
copyrighted work is able to sell or otherwise dispose of the possession of the relevant c
at the owner's discretion). Both of these affirmative defenses are limited to owners of law
copies of copyrighted works.
263. § 109(a).
264. See RealNetworks, Inc. v. Streambox, Inc., No. C99-2070P, 2000 U.S. Dist. LEXI
1889, at *1, *3 (W.D. Wash. Jan. 18,2000) ('Streaming is to be contrasted with 'downloading

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110 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

distinction from a functional point of view: there is no relevant d

between a song encoded on a CD and a song downloaded as an
courts continue to apply real world physical analogies to digi
embedded in physical objects and apply the law of intangible assets
goods that are not so embedded. Thus, while a consumer may reco
on her TiVo, there is a serious question as to whether she may
streaming movie with a virtual VCR.265 Similarly, recent cases in
Circuit indicate that although a seller may not resell copies of a
program on e-Bay (since the original license agreement purported t
such resale),266 she would be free to sell music CDs that purporte
the self-same restriction.267 The presence of some physical element—
TiVo physical box or the music CD—seems to provide courts w
comfort that analogies to the law of the sale of physical objects i
analogy than the law of licensing of intellectual property.
These cases may provide a ray of hope for Mixed Reality. Although
is tied and not embedded, there is hope that the link to the real world
courts more likely to use analogies drawn from the full range of l
than analogies drawn solely from online intellectual property law.268
B. Limiting Online Contractual Control

The second step to returning balance to the law as

realspace merge is to restore balance to online contra
application of intellectual property law and increasing t
traditional principals of contract and property law can large
in online contracts.269 This will return contract law to its n
the constellation of legal tools as the tool of bargained-f
expectation damages.

265. Id. at *34—35 (halting Streambox's continuance of its product, a

Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121,128 (2d Cir. 2
construe MAI Systems and its progeny as holding that loading a prog
RAM can result in copying that program. We do not read MAI System
matter of law, loading a program into a form of RAM always results in
266. See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1110—12 (9th C
a three point framework to determine if a purchaser of software is an
267. See UMG Recordings, Inc. v. Augusto, 628 F.3d 1175,1183 (9t
resale of a music CD not to constitute copyright infringement des
license limitation restricting such a sale).
268. See Moses, supra note 256.
269. See Lyria Bennet Moses, Toward a General Theory of Taw and Tec
Theory of Taw and Technological Change?, 8 MlNN. J.L. SCI. & TECH. 58
emphasis on the technological angle in discussing legal and social pr
various contexts. . . . Judges occasionally fall into the same trap of a
events took place on the Internet, the law must be different.").

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 2012] MIXED REALITY 111

As things stand, online contr

statutory damages that have n
when a user modifies her phys
the console seller can pursue s
copyright infringement. Howe
applied, the console seller woul
approach follows logically beca
be able to do with it what she will

A return to basic principles of

trends elsewhere in the law. A
control over contracts is being sc
of the Digital Millennium Copy
between contract and copyrigh
used to protect the copyrighte
classic "click I Agree or exit") c
technological protection measu
contract cannot be accessed witho
If the DMCA's prohibition
measures is relaxed, users can
devices despite overreaching co
have been persuaded by analogi
the DMCA.272 Whereas hacking
seems to be a clear violation
embedded into physical objects
Library of Congress recently
DMCA that would allow users
but legally-obtained software.27

270. DMCA, Pub. L. No. 105-304,

scattered sections of 17 U.S.C.). Th
framework to address circumvention
works. See 17 U.S.C. § 1201(a)(l)-(2), (
271. See ProCD, Inc. v. Zeidenberg,
§ 1201(a)(1)(A) ("No person shall cir
controls access to a work protected und
272. See Lexmark Int'l, Inc. v. Stati
Cir. 2004); Chamberlain Grp., Inc. v.
2004).
273. § 1201(a)(1)(A).
274. See Paul Miller, Library of Congress Adds DMCA Exception for Jailbreaking or Rooting
Your Phone, ENGADGET (July 26, 2010, 11:33 AM), http://www.engadget.com/2010/07/
26/library-of-congress-adds-dmca-exception-for-jailbreaking-or-root/ (noting the Library of
Congress's exception to the DMCA).

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112 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

held that circumventing controls that limited the number of times th

could refill printer cartridges that she had purchased was not a v
the DMCA.275 Similarly, the Federal Circuit held that a universal g
opener that bypassed the garage door manufacturer's rolling nume
code did not trigger the sanctions of the DMCA.276 It may seem obvio
universal remotes do not violate anti-hacking laws, but legally spe
issue is an extraordinarily close one, since software is embedd
remote. Courts' willingness to give weight to the consumer's expect
a garage door would be compatible with universal remotes over t
letter of the DMCA affirms the importance of consumers' proper
and expectations with respect to their own property.
Two ancient but basic limits on overreaching contractual cont
slowly coming back into fashion online: consideration and it
illusoriness. The common law has long declined to look into the v
particular bargained-for exchange, but has instead used the doct
consideration and illusoriness to ensure that some bargain wa
struck—that promises were made on both sides.277 But in the onli
it is not clear that enforceable promises are being made on b
EULAs and TOUs are lists of promises that the user makes. Ostens
return promise by the corporation is that it will permit the user
valued service. But courts are increasingly questioning contracts th
unlimited modification clauses.278 These are a staple of online cont
they are becoming more and more dangerous for companies. Jud
begun to reason that if a company is free to change the EULA or
any time and in any way, then the company has not made any tr
promise.279 This is an important legal development since it increases t
that the contract to which a consumer agrees will state t
responsibilities that may eventually be enforced against the c
Similarly, such legal rulings increase consumers' confidence that t
promises of the company are equally enforceable.
Constraining overreaching contracts—especially those contrac
forbid the user to customize or accessorize her own property—is
for Mixed Reality. Mixed Reality devices will increasingly control

275. Lexmark, 387 F.3d at 529.

276. Chamberlain, 381 F.3d at 1182.
277. See Flarris v. Blockbuster Inc., 622 F. Supp. 2d 396, 397-400 (N.D.
(holding that an arbitration clause was illusory because the drafter could alter it at
278. See, e.g., Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 611 (E.D.
(finding that a unilateral modification provision was unconscionable).
279. See Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008).

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 2012] MIXED REALITY 113

view the world around them. T

see the data-enriched experie
things.280 The devices that contr
in citizens' hands. Owners of M
those devices in order to con
alternative is imaginable but un
the sole right to control what
pain of criminal sanction and i
Reality providers would claim
citizens experience and share.
C. Returning Control over Privacy to Consumers

In the privacy context, a very simple but fundamental rebal

contract law as applied online will resolve many problems. Privacy
as a matter of contract under U.S. law.281 That is not the probl
problem is that the law of contract as applied online has denied c
the power to draft contracts. Even in the strangest circumstan
enforce contracts written by corporations, including legal language c
on pages that the user has not even seen.
Yet that reasoning ought to cut both ways. Citizens—as pa
contract—have as much of a right to add binding terms to a co
corporations do.282 If a consumer sets a "do not track" flag in he
courts should enforce it as a matter of contract law. Courts have
that consumers "agree" to online contracts by continuing to use a
online service.283 It would be nonsensical not to apply the same

280. See CHEN, supra note 6; Bilton, supra note 89; Glusac, supra note 17; H
note 89; King, supra note 22.
281. See News Release, Fed. Trade Comm'n, FTC Announces Settlement wit
Website, Toysmart.com, Regarding Alleged Privacy Policy Violations (July 21, 2
www.ftc.gov/opa/2000/07/toysmart2.shtm (discussing the FTC's suit against T
the company's attempt to take action direcdy in violation of its privacy policy
have found otherwise only serve to emphasize the problem that lies in interpretin
non-contractual. See, e.g., In re Jet Blue Airways Corp. Privacy Litigation, 379 F.
(E.D.N.Y. 2005); Dyer v. Nw. Airlines Corp., 334 F. Supp. 2d 1196 (D.N.D.
does not, however, undermine the notion that the FTC still enforces privac
promises to consumers.
282. See LESSIG, supra note 253; Feigin, supra note 259.
283. See Yen-Shyang Tseng, Governing Virtual Worlds: Interration 2.0, 35 WAS
POL'Y 547, 556 (2011) ("Generally speaking, courts have tended to enforce all of
of licenses, even though the licenses may unilaterally impose one-sided terms wit
room for negotiation.").

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114 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

corporation: by continuing to provide service to a customer who

"do not track" flag, the corporation should be legally bound by that t
This proposal is of course not uncontroversial, but it exposes
reasoning underlying the law of online contracting.285 Functionally s
under current law only corporations are allowed to draft online c
Citizens are only granted the pro-forma right to agree to pre-set
terms. Citizens are denied a voice in setting the terms under wh
information is gathered.286 It is this perverse state of affairs tha
correct before the law of online contracting can govern everyday life
Giving consumers control does not mean that control sho
complicated. To impose all of the transaction costs of privacy pro
consumers—the current state of affairs—is planned failure. In o
consumers to be able to express their preferences effectively, privacy
must be simple, unitary (in one place, applicable to all counter
default, and legally enforceable.287 Only under these circumstance
transaction costs of private agreement over privacy be manag
consumers. The alternatives are significantly less attractive:
paternalistic government regulation on the one hand, or the current w
of data protection on the other.
The advent of Mixed Reality technology makes this return to c
control over personal data of significant importance. Consider th
smartphone, which comes pre-loaded with numerous apps, each o
has different permissions to track the consumer's real-world locat
network interactions, and even tap into the basic reality that the cons
experiencing—what she is hearing and seeing.288 Consumers m
control over their own reality, and this includes the ability to con
own information as it is propagated through these networks.

284. See LESSIG, supra note 253; Feigin, supra 259.

285. See, e.g., Woodrow Hartzog, Website Design as Contract, 60 Am. U. L. Rev
(2011) (noting various problems with trying to achieve privacy by consumer contr
286. See Newman, supra note 232; Popkin, supra note 233.
287. See LESSIG, supra note 253; Feigin, supra note 259; see also Séverine Duso
Master's Tools v. The Master's House: Creative Commons v. Copyright, 29 COLUM. J.L. &
272 (2006) (discussing the purpose of Creative Commons to address the "recen
of copyright" and how it is "overreaching and detrimental both for future creat
the users of copyrighted works"); About the Licenses, CREATIVE COMMONS, htt
commons.org/licenses/ (last visited Feb. 19, 2012) (providing for a standard opt
contractual licenses that have revolutionized online exchanges).
288. See Yukari Iwatani Kane & Scott Thurm, Your Apps Are Watching You, W
(Dec. 17, 2010), http://on.wsj.com/wq7Wiw (describing how iPhone and Android
various data about the phone without the user's knowledge).

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2012] MIXED REALITY 115

V. CONCLUSION

The proposals here are not exhaustive. Rathe

potential benefits to be gained through applic
method involves applying the common law appr
limited, and iterative decision-making based on t
order to find potential solutions to emerging techno
Mixed reality tools are pushing intellectual
realspace. In some senses, this is nothing new. Boo
property governs our ability to copy them. B
property licensing online has drifted from its mo
copyright has generally been limited to restrictin
make copies, perform unlicensed performances or
parody derivative works. Not so online, where copyr
control the social rules of multiple-million mem
Mixed Reality technology brings this online ove
licensing back into everyday life.
As Mixed Reality merges virtual experiences with
very real risk that courts will continue to dr
intellectual property licensing. The confluence of
pro forma corporate contracts coupled with the stre
by out-of-proportion copyright infringement dama
online contracting and intellectual property lice
offline, everyday life.
In everyday life, when a consumer buys a car, the
able to paint it any color. Yet when a consumer buy
non-trivial question of law as to whether the manuf
may force the consumer to buy new remote cont
door manufacturer. And when a consumer buys
very real legal threats from Sony when the con
property and teaches others how to do the same.
This overextension of copyright licensing and
undermining property rights in the real world, pro
for online reputation purveyors to whitewash t
users, and burying consumers under thousands of
many of which are not enforceable or which may
the software provider.

289. See Perzanowski & Schultz, supra note 158; see also Mo

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116 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:55

But there is hope. This Article proposes applying simple rules ev

the full context of real-world situations to merged virtual
experiences. A consumer's property interest in her goods should pe
to make aftermarket modifications of her own property. A copyright
rights in a given copy should be exhausted when the copyright hol
given copy away, never mind that the transaction is spuriously cha
as a license. And history has shown that consumers not only want
but can enforce their preferences quite effectively. However, co
must be granted simple, unitary, and default tools that permit the
an active say in the information gathering regimes to which they are
rather than the option to pick which one of a set of corporate-drafted
they may agree to.
As Mixed Reality merges virtual and real space, it provide
challenges to law, but also offers serious hope. The law of in
property as applied to the real world is subject to traditional constr
render it much less problematic than the unconstrained law of in
property as applied to Mixed Reality. The law of contracting in the re
grants both parties, not just corporations, the ability to contribute
the contract. Consumers actually can police their privacy quite effecti
given simple, opt-in, and default options to do so. Mixed Reality o
door to the application of common sense rules that have very ef
mediated the tensions between corporation and consumer, citizen
Mixed Reality need not be a dystopian vision. It may be the method by
we can restore balance to the law.

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