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metaphor (emphasis added – V.A.), it is useful to understand why the metaphor has proven so durable in virtual worlds».397 According to the author, there are three main functions of the magic circle metaphor.

The first of these functions is to protect the “virtual play” in the case of both computer and conventional games. J. Fairfield gives the example of children playing cowboys and Indians; however, we can add to this “adult games”, such as historical reconstruction, as well as phenomena close to sports or sports being – say, paintball or strike ball games. As long as the game is going on, law should not interfere. However, if someone violates the rules of the game and causes others, for example, injury, law should interfere into the process. J. Fairfield clarifies this thesis on the example of American jurisprudence, mentioning the case of Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).398 However, it should be noted that similar practices exist in many other countries, and, of course, the Russian Federation is no exception. Furthermore, this perspective does indeed form an important part of the meaningful field of discussion relevant to the subject matter of this study.

The second function of the metaphor of the magic circle is to protect artistic creation and freedom of speech. It should be noted that this perspective is extremely important for the context of the work, as it essentially echoes a number of dichotomies that form the basis of its methodology. Artistic, imaginary, unserious, absurd – all this determines the main content of the hypothesis about the semantic limits of law. As the researcher notes,

«[i]n works of fiction, characters commonly engage in illegal acts. Likewise, movies or theatre productions sometimes include depictions of sex or violence that may fall outside the realm of social and legal acceptability. Yet the authors of those plays, books, or movies are not themselves liable for the illegal actions of their characters (emphasis added – V.A.)».399

397Ibid. P. 826.

398See: Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979) [Electronic resource] // OpenJurist. –

[Site]. – URL: https://openjurist.org/601/f2d/516/hackbart-v-cincinnati-bengals-inc (accessed: 24.02.2019). 399 Fairfield J. The Magic Circle. P. 826.

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This requires a polemical retreat, which may provide additional clarity to the subject matter of this paper. Yes, we can agree with J. Fairfield that an author should not be held responsible specifically for the actions of their character. However, we emphasize that this thesis can be perceived as obvious in certain, but not in all legal cultures, not in every historical situation and not in all meanings.400 Rather, it is appropriate in the context of a strong constitutional and legal tradition of freedom of speech in the widest interpretation existing in the U.S. specifically in the beginning of the XXIst century, but the evidence of this statement is not universal. In the conditions of the information society and in the situation of a more conservative legal policy, the rigor of the notion that the artistic, no matter how cruel, immoral or other scenes may be, cannot assume immunity from interference of law, is somewhat erased. Yes, the author will not be held responsible for the actions of the characters as if they had been committed by the author. However, the very question of whether it is lawful or illegal (in the legal sense of the word) to touch upon certain topics or, for example, to include in the content of the scene, something strongly contrary to public morals, has the right to life. It is here that the question arises about the semantic limits of law in the sense that this phenomenon is proposed for conceptualization within the framework of this study.

The third function of the metaphor of the magic circle, as described by J. Fairfield, is to protect the ability to enjoy the gameplay as a “tabula rasa” that does not require investment of material resources and assumes equal opportunities for players in the virtual world, regardless of social, property and other status in the “real” world.401 This function is quite specific and, in our opinion, has certain methodological prospects for the

400Of course, we do not consider cases of “objective imputation” to the author of legal responsibility for the actions of the character in the fictional world, but we want to emphasize that in some cases the author may be responsible for the information disseminated. How to distinguish the case of “dissemination of information” from the exercise of freedom of artistic creation is the subject of this study.

401Ibid.

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development of ideas about the right to play as a new independent constitutional right or as a part of any of the known rights (for example, the right of access to cultural heritage). In a certain sense, and this perspective corresponds to the problem of the semantic limits of law, since such a “human right” may result in another semantic limit of law, implying noninterference in the game processes for the reasons indicated. At the same time, this approach clearly needs to be further developed, as it once again clearly demonstrates the non-obviousness of the differences between the “virtual” and the “real”. We would like to emphasize that one of the pioneers of game research, E. Castronova, directly advocated this approach.402

As an attentive researcher of the magic circle problems, professor J. Fairfield directly views virtual property issues as an illustration of these problems. It should be noted that the concept of magic circle within the framework of the formulated hypothesis represents one of the historical variants of conceptualization of the semantic limits of law. As the author notes,

«[t]he interaction between money and the magic circle deserves special mention, since it is the intrusion of real-world dollars into virtual worlds that precipitated the current spate of virtual-world litigation. Game gods403 use the metaphor of the magic circle to justify blocking real dollars from entering virtual worlds, in order to protect play and preserve the level playing field».404

However, believing that the virtual property issue itself is directly related to the discussion under consideration, the author rejects the idea of explaining the de facto semantic limits of law by referring to the magical circle of the gameplay.

402 See: Castronova E. The Right to Play // New York Law School Law Review. – 2004. – Vol. 49. – No. 1. – PP. 185–

210.

403Context-wise – game developers or game organizers, because in early online games (using the example of the “MUD” genre) gameplay administrators, who often acted simultaneously as developers, were conditionally called “Gods” or “Immortals” for the purpose of distinguishing from “ordinary mortals”, players.

404Fairfield J. The Magic Circle PP. 837–838.

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«The question is not whether real-world economics can or should impact virtual worlds; they can and they should. The question is how much of an impact the players can expect».405

J. Fairfield gives analogies with classical sports – for example, in the case of a higher quality tennis racket, which is more expensive, or with a high-level baseball club, which can afford to pay a higher salary to players. The author questions the principle underlying the rules of the game established by the game companies, doubting that the question of the possibility or impossibility of one player to “exchange” virtual property for real money and vice versa, which is traditionally regarded as an unacceptable practice, is fundamentally different from the purchase of an expensive game computer and high-speed Internet access, which in principle is not considered an area where a game company can intervene.406

This question is certainly quite interesting, but for the limited purposes of the main subject of this study – the semantic limits of law – we note here that the judgment of J. Fairfield only emphasizes the theoretical urgency of the problem. In fact, according to the researcher, the reductionist concept of the magic circle does not allow solving the conflict between users and game companies in terms of the limits of virtual property turnover for real money – whether it is the prerogative of developers, or the players themselves can enter into transactions with this subject among themselves. On the contrary, more is needed to explain this relationship. We believe that this may be a case in point for the application of the general and well-considered concept of the semantic limits of law.

Actually, J. Fairfield’s legal approach to the magic circle itself is expressed in the following terms:

405Ibid. P. 838.

406Ibid. P. 839.

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«…the relevant inquiry is not whether actions are “real” or “virtual”, but whether a given action falls outside the parties’ scope of consent (emphasis added – V.A.)».407

When the user agrees to the user agreement, he or she not only agrees to a strictly formal legal component, but also to the fact that some of his or her actions are excluded from the scope of the “real law” since the playing area is as if reconstructed by the subject matter of the agreement with the game company and, by doing so, with the other users who have agreed to the same. Users do not read user agreements specifically, notes Fairfield, but this is not so important because, in any case, their agreement to unread rules means de facto agreement (at least from a sociological and psychological point of view) to any rules included in the agreement, at least up to the point of common sense.408

«Instead of asking what is “real” or “virtual,” lawyers examining actions related to virtual worlds should ask who has agreed to what and with whom. In a legal conflict between player and game god409 the contractual EULA provisions might well prevail For example, suppose that a player used off-color chat in a public chat channel in “The Barrens,” an area within the virtual world World of Warcraft that is well known for rough-and-tumble language. In a player/gamegod dispute, a court might decide that the game god was well within its contractual rights to ban the player from the game».410

However, if one player sues another player on the same object, the court may, on the contrary, consider that by continuing to read the foul language chat, the first player has agreed to a certain measure of this. Actions between players that are the subject of agreement between them may go far beyond the virtual world in the narrow technical sense of the word, for example, in terms of illegal access to accounts, virtual property turnover, etc.

407Ibid. P. 831.

408Ibid. P. 832.

409In Russian version we have used an adapted translation, literally, “administrator of game”.

410Ibid. PP. 832–833.

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«Under the old conception of the magic circle, such a result [differentiated attitude to virtual property depending on the subjective composition of the legal relationship participants] makes no sense: either virtual property is “virtual,” and interests in it are utterly unprotected by law, or it is “real” and fully protected against all comers. Under the new conception articulated by this Article, players in virtual worlds are real, the actions are real, and even the digital objects of their actions are real (emphasis added – V.A.). The critical question is not whether the property is real or not, or whether a theft of property is real or virtual, but whether a given act as relates to the property is inside or outside the scope of consent of the parties. As between the game god and the player, the EULA may clearly indicate that the god may alter or delete a given digital object at will. But as between players, one player’s theft of another’s property may well

exceed the scope of consent and thus be actionable in fraud or conversion».411

J. Fairfield’s concept really looks quite delicate and elaborate. Obviously, it can be used in legal reasoning in many cases. Nevertheless, we will put forward two interrelated critical arguments.

The first critical argument stems from an understanding of the author’s further text. Thus, J. Fairfield distinguishes between the cases of purely “in-game” actions and actions that are connected with any external practices. For example, player A can threaten player B in the real world, and can threaten player B’s avatar in such a way that this action is as if carried out in the virtual world. In the real world, we can give a legal assessment of such an action, in the virtual world – it depends on what the player has agreed to. However, the author is developing an example. In the real world, player A can grab a real knife and attack player B physically. Such an action is obviously a criminal offence under the general rules. In the virtual world in PvP mode412 the same player can do the same virtual actions with player B’s avatar. Here you can talk about agreeing to the rules of the game.

But we say that the situation is resolved through the application of the principle of consent, precisely because we implicitly assume that this principle can be applied, and also because in the former case consent will not “correct” the situation. Similarly, J.

411Ibid. PP. 834–835.

412“Player versus Player” is a game mode that involves a battle between players (avatars of players), not a battle between players with objects of virtual environment controlled by software algorithms.

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Fairfield further cites the example of hacking into the account of player B, noting that hacking is “outside of the game”. But in order to make this statement, we still need to understand where the line between in-game and out-of-game activities is.

The second critical argument leads to similar conclusions, but is based on the real law. It is known that the consent of the parties in the U.S. can be used as a legitimizing factor more often than in other countries. But what about other jurisdictions, where the consent of the victim may not always be the legitimizing (and legalizing) factor in determining the action? Obviously, for example, the question of criminal liability of a person making extremist statements about a particular user online will not be resolved in Russia in such a way that the fact of the listener’s consent will be taken into account.413 A counterargument easily presents itself: even if the “theory of consent” in the narrow sense of the word is not applicable in many jurisdictions other than the U.S., why not reconstruct the entire legal concept of the magic circle, relying on high-level generalizations and fictions? For example, based on the fact that a multinational people, acting as a sovereign, has defined its consent or dissent through the legislation in advance? The problem is that such an approach will still be fundamentally limited – it will not rid us of cases of potential or perceived absurd interpretation of the law, because even so, we will be left alone with the still ambiguous legal texts that still contain ambiguous concepts. The argument of consent will not help us if the right (as we believe, by mistake) will be applied to the player, “extremist” statements of which, say, about the game race of orcs will serve as a basis for criminal responsibility in accordance with Article 282 of the Criminal Code of the Russian Federation.

At the same time, however, Fairfield’s concept of course has a significant advantage

– “social contract” (in the terminology of J. Stenros), which partially overlaps with the

413 Unless it is counted – because such cases involve a public interest – that the “listener” is the State and that consent (or dissent) is expressed in law. However, there is nothing to exclude the possibility of building such a model, but it is beyond the immediate scope of the present study. Please see further discussion.

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legal contract on the game, can be used as an explicit way to create or exclude the sociocurrency value of external referents of value (for more details on these concepts, see § 6 of Chapter 2 and Chapter 3 of this study).

The third approach is “topological” or “object-oriented” (there are nuances and differences in these two variations). The essential difference between such an approach and the two previous ones is that it is distracted from individual cases of communication between subjects and is explained by inter-subjective communication. As we have noted earlier, J. Stenros extends the physics of the magic circle from a specific place (“topos”) to a time interval (example with the “The Fool’s Day”) or even a specific object (example with game production). We believe it is reasonable to separate the first case from the last two and, in fact, to formulate two variations of the approach – the “topological” one, which implies an emphasis on the place as a concept from rather the area of physical reality or, conditionally, psychophysical reality (i.e., as a real place is experienced and understood by the subjects of social communication), and the “object-oriented” one, which implies an emphasis on the object of social relations. To spread the metaphor of a place for a certain day, saying that it is a kind of “place in time” seems to us to be somewhat redundant, especially since such a case is not fundamentally different from the case with game production. Both fit perfectly into the ideas about the object of social relations. At the same time, the topological approach seems to be the least convincing due to the same reasons why it was criticized earlier by M. Consalvo within the framework of game studies. Let us first turn to this criticism.

While the methodological potential of the magic circle concept as such seems very promising, attempts to develop and apply it in the narrow field of multiplayer computer games have given several grounds for criticism, and this mainly concerns the topological interpretation. It should be noted that, in our opinion, the currently known objections to the concept in question do not deprive it of its fundamental value, even if the criticism looks

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convincing and can be agreed with in general. The fact is that the concept of the magic circle cannot really be considered as a special concept within the framework of game studies, while its critics develop counterarguments to it from this perspective. In addition, the concept of the magic circle is mainly criticized in the framework of culturological and game studies, and it is crucial that they have a different subject of study which varies from the subject of legal science. Let us consider the work of one of the most popular researchers and critics of the magic circle in the West, Mia Consalvo “There is No Magic Circle”, published in 2009.414

The author begins to consider the problem of the magic circle with an example of the situation in the game world of multiplayer online role-playing games Final Fantasy XI Online, in which players angrily condemn the behavior of one of their “colleagues”. The reason for resentment of other players was that the subject of criticism was seen trading virtual gold for real money, which did not correspond to the principles of the game, but the offender did not receive sufficient punishment.415 According to the author, cheating, as defined by Internet slang,416 is a good perspective on the magic circle issue, allowing us to understand the limitations of the concept.

As a starting point for criticism, M. Consalvo takes J. Huizinga’s representation from the 1930s, based on the idea of

«a magic circle for play, which bounded a space and set it apart from normal life. Inside the magic circle, different rules apply, and it is a space where we can experience things not normally sanctioned or allowed in regular space or life».417

414See: Consalvo M. There is No Magic Circle [Electronic resource] // Games and Culture. – 2009. – Vol. 4, Issue 4. PP. 408–417. – URL: http://journals.sagepub.com/doi/10.1177/1555412009343575 (accessed: 02.07.2018).

415Ibid. PP. 408–409.

416There is a clear methodological parallel with L. Fuller’s approach about the necessity to study pathology in law and M. Klatt’s that if the use of words in a normative context can be systematic, it implies the possibility to use them semantically incorrectly.

417Ibid. P. 409.

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The methodological value of the analysis of the players’ dishonest actions in relation to the maintenance of the integrity of the gameplay, according to M. Consalvo, stems from the fact that dishonest players, in fact, are different from the real “spielbrechers”418 in Huizinga’s terminology.

«…the spoilsport… rejects the rules entirely (e.g., sweeping the chess pieces onto the ground) and thus destroys the magic circle. The cheater wants you to think you are both playing the

same game but in actuality you are not. The spoilsport simply wants to destroy the play/game experience ».419

For our part, we note that the difference between these two approaches may not be logically obvious at all, because a dishonest player cannot but disrupt the gameplay at least by his own actions, but let us see what approach the author suggests next.

Quite rightly, M. Consalvo says that

«…[such a] conceptualization of the magic circle was developed in the 1930s, long before the advent of digital games (emphasis added – V.A.), by a theorist with particular views of what did and did not constitute play»,420

and offers to study the phenomenon of unfair play in modern games more carefully and deeply. Thus, the author also draws attention to that in game researches the concept of unfair play should be studied in a context of the concept of the isolated game space. However, even here the times have changed.

«When Huizinga (1950) wrote about the magic circle, our sense of space and place was radically different from what it is now. In suggesting a place ‘‘set apart’’ from everyday life,

418The original text by M. Consalvo uses the term “spoilsport”. We consider it right to use in this context, which implies an adapted translation, the term suggested by J. Huizinga, which seems to us to be more in line with the tradition of transliteration into Russian, that is a “spielbrecher”, literally, “one who breaks the game”.

419Ibid.

420Ibid.