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“criterion of reality” is used to correlate the fact of media reality with a concept-word used in a legal text. This criterion allows to explain the principle of applying the concept of “family resemblance” in the terminology of L. Wittgenstein, but its meaning is limited by this – it is a formal criterion. The object itself may not have a convertible socio-currency value. In turn, the “criterion of seriousness” is a substantive criterion, the purpose of which is to determine this value or its absence. By paraphrasing and, to the extent necessary, complicating the pervasive common sense formula, the following can be said: “If, in principle, something behaves as property – it is functionally consistent with the peripheral area of meaning of the concept-word “property” used in legal text and may513 be included into the subject matter of legal regulation”, then “if something behaves as property in a way that is of inter-subjective significance, it must be included in the subject-matter of legal regulation”. Of course, the example can also be extrapolated to other external referents of value and generalized symbolic media.

§ 5. Theoretical modeling of application of the criteria of socio-currency value and functional adequacy

The sequence of application of the criteria of reality and seriousness in practice will vary depending on the specific process we face. If it is a question of determining the public significance of the object of relations for the purpose of lawmaking, the first and main criterion will be seriousness (socio-currency value), and the criterion of reality will allow us to determine the further choice of linguistic means for solving the problems of legal

513 In the general context of the work and the references to the concepts of “weighing” or “balancing”, which is required if only one of the criteria of the semantic limits of law is met, it must be emphasized that the decision to include an object of social relationships into the field of law cannot always be dictated by its intersubjective significance in the sense that “family resemblance” is defined. Thus, for example, symbolic and ceremonial weapons may be functionally adequate to the scope of the concept of “weapons”, but excluded from the scope of legal regulation because for some reason they cannot be regarded as having inter-subjective significance (“no one uses them this way”). Or, on the contrary, to be included in the scope of legal regulation, but not because it may pose a threat to life and health, but because in a given conventional society, for example, any action with any weapon is contrary to religious dogma

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technique. At the same time, if it is a question of defining the meaning of the concept used in a legal text for the purposes of interpretation of law or application of law, it makes sense to first establish the reality of the subject and then determine its seriousness. At the same time, in this case, both criteria will be equal. The sequence of consideration of the criteria reflected in the structure of the main text of this study – first, of seriousness, then, of reality – reflects the objective sequence of methodological search implemented by the author. At the same time, the main provisions put forward for defense reflect the reverse sequence characteristic of the process of interpretation of legal texts and application of law, since it is in this section that the relevance of the concept of the semantic limits of law to the problem area of philosophy and law theory can be most clearly demonstrated.

The practical program, based on the content and conclusions of this study, is to provide the principle of reasoning and arguments for law enforcement and interpretative decisions in the area of “penumbra”, as well as law-making in innovative areas, primarily related to the consequences of the medial turn and its components. From a pragmatic point of view, it may not be necessary to change the verbal final point of legal reasoning (i.e. the “it is absurd” formulation). If we evaluate the situation from the point of view of sociology, references to the absurd are perceived as self-sufficient if they correspond to common sense (i.e., there is no explicit counterargument to the conclusion of absurdity). Common sense can be figuratively explained as the “unconsciousness” of legal rationality.

Let us now try to assess the application of the concept to individual representative examples. Since the present study focuses primarily on the problems of the area of “penumbra” in the context of the medial turn, the first of these examples will relate to the innovative phenomena of virtual worlds.

We emphasize that this theoretical modeling is conditional and preliminary, and not final, because for an unambiguous conclusion on a case-by-case basis it is advisable to conduct empirical research in the field of sociology and/or economy. Examples of this

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kind of theoretical modeling are, in fact, distributed throughout the text of the paper, so let us focus on only a few of them.

Three variants of the first example are related to the topic, which has already become a classic one in legal works related to game studies – the question will be about virtual property. The assessment is carried out in the “borderline area” of legal interpretation.

Example No. 1 (Scenario А). Online games’ virtual property (free circulation). Let us consider a generalized example of legal collisions related to the turnover of objects in virtual environments simulated by computer media, which at the same time are the subject of turnover for real money.514 For the purposes of this example (Scenario A), let us look at the situation in which virtual objects can be alienated after acquisition and can be freely shared between players for real money.

The special object of the relationship in this case is an object whose “existence” is imitated in the virtual environment. It can be purchased by the user for real money from the game company and (or) from another user. For the purposes of this mental experiment, we do not address industry-specific legal qualification issues, but rather seek to provide a fundamental assessment of whether or not it is absurd to apply law to such an object.

In the light of the proposed methodology, the virtual object is considered as an external referent of value (hereinafter referred to as the “ERV”), which expresses the value corresponding to such a generalized symbolic media (hereinafter referred to as the “GSM”) as money. Since money is the “unconditional” GSM, we can already conclude that the subject is “serious” on this basis. Since one of the criteria of the semantic limits of the law is satisfied, it is at least possible to apply procedures of “weighing” legal values in order to determine the possibility of application of law – in other words, the interference of the law in certain social relations. The application of law will no longer be absurd in itself.

514 A detailed description of such mechanics is given by the author earlier, including in the following article: Arkhipov V.V. Virtual Property: Pervasive Legal Problems in the Context of Computer Games Industry Development // Zakon. 2014. No. 9. P. 69–90.

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However, how real the object is? To assess the “reality” of the object, we will assess the functional adequacy of the object to one of the objects included in the “core” of the legal norm of interest to us. These can be, for example, norms of civil or criminal law on property. For example, we have established that a virtual object is used within the framework of established social practices in the same way as property is functionally used

– this is possible due to the additional condition that this object can be freely shared between players and subsequently. It is this circumstance that testifies to the functional adequacy of the special object of “virtual” relations to the object on which the relevant legal norms are focused.

In this context, there is no obstacle to the subject matter being regulated by law (which, for example, may involve the creation of special rules or the application of rules by analogy) – this will no longer be absurd, and this will no longer imply the reference to any substantial values, for example, from the perspective of moral philosophy.

This example has at least two practical meanings. First, it represents a philosophical and legal substantiation of the legitimacy of the question of the legal qualification of virtual property as such, in the same way as, for example, it was done by A.I. Savelyev.515 Second, the above approach, although it does not contain any specific guidelines as to what exactly the current legal structure should be applied to the virtual object (or what structure should be developed), it fundamentally answers the question that such relations cannot be excluded from the scope of legal regulation, for example, on the basis of Item 1 Article 1062 of the Civil Code of the Russian Federation, according to which the claims of citizens and legal entities related to the organization of games and bets or with participation in them, are not subject to judicial protection, except for a narrow circle of specifically

515 See: Savelyev A.I. Legal Nature of Virtual Objects Purchased for Real Money in Multiplayer Online Games // Civil Law Herald. 2014. No. 1. PP. 127–150.

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defined cases that are not relevant for current discussion. The subject is “serious” and “real” and therefore does not belong to the isolated game world as such.

Example No. 1 (Scenario B). Online games’ virtual property (purchase from the game provider only). If we change the free circulation condition previously presented in the case of Scenario A of the first example and study cases in which an item for real money can only be purchased from a game provider, but cannot act as a tradable item on the “secondary market”, what will change? The object of social relations will lose the quality of “reality” if we compare it with such a regulated subject as property or assets.

In such circumstances, however, the subject matter will continue to be a ERV in relation to money as a GSM, and it would not be absurd to apply law to the relationship with it, but whether or not to apply law to it would have to be determined on the basis of a balance of legal values. For the time being, in such cases, it is in terms of the property aspect (rather than the tax aspect) that such an approach is expressed in cases, including those mentioned in this study, in which the courts have taken a position on the qualification of the relationship between a player and a game company based on a license agreement.

Example No. 1 (Scenario C). Online games’ virtual property (no connection to real money). The variations of the virtual property case would be incomplete if we did not consider another example for theoretical purposes – cases of virtual property, which refer exclusively to the “imitation plane” characteristic of virtual reality. Virtual objects of this kind cannot be traded for real money with other users and are not purchased from the game company. They refer exclusively to the games’ fictional world.

In this case, both “seriousness” and “reality” are missing. The virtual object itself is not related to GSM – it is not an ERV, at least from the perspective of ownership. At the same time, the functionality of the object is of fantasy nature in relation to property, assets and similar concepts. The application of law to this special subject of social relations, which we assess in a specific “proprietary” perspective will be absurd by definition.

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The example, which clearly explains the difference between this case and the previous ones, was presented by the author earlier on the illustration of World of Warcraft:

«Let us say the players... have agreed on a certain option for the distribution of the loot that resulted from the victory over the dragon Deathwing. The raid leader refused to distribute the loot in this way and took it all for himself. The players went to a court of law demanding that the raid leader be compelled to distribute the loot in accordance with the original agreement, stating that it (the agreement) is an untitled civil contract».516

The evaluation of the example from the point of view of the concept of the semantic limits of law, however, may change if the conditions returning the situation in question to the context of the previous examples change accordingly – this depends both on the emergence of certain ERVs in the system of relations and on which specific subject of relations we highlight in terms of its compliance with the relations already regulated by law.

The second example relates to an area that has already been the subject of high-level discussion in the EU. The example also refers to the “borderline area” of legal interpretation.

Example No. 2. Extending the legislation on gambling to lootboxes. In the videogame industry, the term “loot box” means game mechanics that involves a connection to real money and hazard in a broad sense. The user acquires a “chest” or other functionally similar object for real money, opening which she gets a random in-game object, usually of random value. The user can get either a very valuable object and a very cheap.

Lootbox as an artifact of social communication is like virtual property in this case as an object of turnover for real money. Accordingly, it also represents the ERV of money as a GSM. Thus, the subject is “serious”, and it is no longer absurd to apply law to it.

516 Arkhipov V.V. Virtual Property: Pervasive Legal Problems in the Context of Computer Games Industry Development // Zakon. 2014. No. 9. P. 77.

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To which extent the object, however, is “real”? In this case, the assessment of the functional adequacy of the object involves comparing it not with property or assets, but with a rather specific (based on the provisions of the Russian law) object relating to the “core” of the norms of legislation on gambling – with bet. Bet implies the possibility of accidental receiving of one property due to the risk of loss of another property. In such circumstances, we can assume that the object of relations in this case is still of fantasy nature.

Thus, the possibility of applying gambling legislation to the relationships that lootboxes are subject to depends on the conclusions based on the weighting of values in a particular society and situation.517 Notably, Belgium and the Netherlands have introduced separate restrictions on the mechanics of lootboxes and the provision of information to players on such mechanics518 – slightly adjusted for point differences in the definition of gambling in these countries and in the Russian Federation, however, we believe this confirms the evolving approach.

The third example’s scenarios involve a legal assessment of the prohibitions on the dissemination of information on the Internet (and similar areas of application of the law, also in the context of “borderline situations” of interpretation) in the case of Minecraft, which has already been mentioned several times on the pages of this paper. Let us focus only on brief characteristics, since the detailed logic of applying the concept of the semantic limits of law in this case is given in Annex 2 to this study as one of the most obvious examples.

517“Weighing” or “balancing” in itself is accepted for the purposes of this work in the generally known understanding in jurisprudence (taking into account, of course, possible discrepancies in the interpretation of individual issues), but their development is not part of the subject of this study and is obviously not required to achieve the goals and objectives of this study – it is a separate subject of academic analysis

518The situation is described quite exhaustively (and with references to official positions and documents) in the following source: Belgium Joins the Netherlands in Ruling that Declares Some Loot Boxes Illegal [Electronic resource] // IGN. 25 Apr. 2018. – [Site]. – URL: https://www.ign.com/articles/2018/04/25/belgium-joins-the-netherlands-in-ruling-that-declares- some-loot-boxes-illegal (accessed: 25.02.2019). In contrast, the UK, for example, did not consider that the lootboxes complied with the concepts of gambling law.

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Example No. 3 (Scenario A). Blocking a game resource containing a recipe for dynamite (fictional recipe, entertainment game). In this case, the fantasy recipe is also devoid of functional adequacy, since dynamite cannot be made out of it, and it is not seen as an ERV/GSM in the sense that it is implicit in the anti-terrorist legislation. We are dealing with pure fiction and entertainment, so it would be absurd to apply the law in this situation.

Example No. 3 (Scenario B). Blocking a game resource containing a recipe for dynamite (real recipe, entertainment game). Since the game embodies entertainment, we do not see an unambiguous ERV/GSM. At the same time, in this variant the recipe is not fantasized – its functionality is adequate to the real recipe. To apply the law in such a situation will not be absurd anymore, but depends on the balancing of constitutional legal values – the classical political-legal collision between freedom [of speech] and security.

Example No. 3 (Scenario C). Blocking a game resource containing a recipe for dynamite (real recipe, the game is used as terrorists’ propaganda instrument). In this variant the recipe is also not of fantasy nature – its functionality is adequate to the real recipe. At the same time, for the purposes of theoretical modeling, we change one of the actual circumstances – let us imagine that the previously “innocent” Minecraft game is now used as an ideological tool for terrorists (perhaps, such a fate may befall not the game as a whole, but a separate add-on to it). In this case, it is not only not absurd to apply the law, but also there is no necessity to apply any special balancing of values, if one follows the logic of the developed concept of the semantic limits of law – the situation is strictly within such semantic limits.

As the fourth example, let us consider a situation that seems absurd enough without further explanation, but can also serve the purpose of demonstrating the functionality of the concept of the semantic limits of law.

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Example No. 4. “Murder” of a computer game character. An event in a “virtual world” (a computer simulation mediated by software code) that happened to a player’s avatar whose character “died”. It should be emphasized that this is a generalized example of a “moderate” degree of “violence” (as in the case of Dota 2 or League of Legends cybersports disciplines, for example). As part of the approach taken in this study between violence in truly violent computer games (e.g. the Manhunt series), some functional adequacy, at least in virtual representation or its perception, is present.519 Is the legal interpretation of the phrase “intentionally causing another person’s death” admissible so that the disposition of the rule of law includes “murder” in a computer game? It explores the “socio-currency value” of an event in the virtual world from the perspective of the prohibition of murder (rather than on the propaganda of violence as such), with the GSM being rather health (and life) in S. Abrutyn’s terminology. The ERV is apparently a character in a computer game. At this stage, it becomes clear that the GSM does not coincide here. There is no functional adequacy of the event in the “virtual world” (expression) of violence in the real world, interpreted as a phenomenon of social reality (violence in the real world is not only a fact, but also a part of subjective-objective social reality). At the same time, it is in this perspective that there is no “socio-currency value” of the special object of relations (see, by analogy, the example of blocking the resource with the recipe for making “dynamite” in the game Minecraft – Annex 2).

As the fifth example with several options, we will present some situations directly related to the challenges of the development of legislation in the digital economy. The application of the concept of the semantic limits of law at a high level, corresponding to the situation of law-making, rather than a “borderline situation” in the interpretation of

519 Strictly speaking, we do not compare real violence and statements about [virtual] violence, but statements about real violence and statements about [virtual] violence. From the point of view of the theoretical and sociological approach, this is justified by the fact that social reality (for which the application of the concept under development is considered) is subjectively objective – it is formed and supported through.

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law, is somewhat simpler – we only need to establish the existence of a ERV corresponding to a certain GSM. The conclusion can only contain a fundamental conclusion about the presence or absence of fundamental absurdity in the creation of new legal norms, but the law-making situation with the need to balance values, because there is nothing yet to assess in terms of the functional adequacy.

Example No. 5 (Scenario А). Development of special legal norms aimed at regulating relations regarding legal liability for actions committed by robots. In today’s environment, robotic objects are already becoming a source of harm, which is the subject of empirical examples, and such cases are the subject of legal research.520 The damage is caused, among other things, to the property, respectively, and there is an ERV corresponding to the GSM – money. Development of such special legal norms will not be absurd. The specific content of the new rules should be determined using balancing mechanisms or similar.

Example No. 5 (Scenario B). Development of special legal norms aimed at regulating relations regarding the circulation of big data. At the current stage of development of relations within the digital economy, the turnover of big data is a fact. In this case, it is also obvious that this turnover is of a property-money nature and that the relevant legal and economic prerequisites are in place,521 and we are again confronted with the obvious ERV and the well-known GSM. The development of such special legal norms would not be absurd, but, as in the past, would require the use of balancing tools.

520See: Robotics Regulation: Introduction to “Robolaw”. Legal Aspects of Robotics and Artificial Intelligence Technologies Development / V.V. Arkhipov [et al.]. Edited by A.V. Neznamov. – M.: Infotropics Media, 2018. – PP. 137–166; Arkhipov V.V., Naumov V.B. Artificial Intelligence and Autonomous Devices in Legal Context: on Development of the First Russian Law on Robotics // Proceedings of SPIIRAN. 2017. Issue. 6 (55). P. 46–62; Arkhipov V.V., Naumov, V.B. Informational and Legal Aspects of Designing Robotics Legislation // Information Law. 2017. No. 1. P. 19–27.

521See: Arkhipov V.V. Personal Data as Non-Material Values (or There is Nothing More Practical Than a Good Theory) // Zakon. 2018. No. 2. P. 52–68; Arkhipov V.V., Naumov V.B. A Concept of Personal Data: the Interpretation Under the Development of Informational and Telecommunication Technologies // Russian Law Journal. Ekaterinburg, 2016. No. 2. P. 186–196; Arkhipov V., Naumov V., The Legal Definition of Personal Data in the Regulatory Environment of the Russian Federation: Between Formal Certainty and Technological Development // Computer Law and Security Review. Dorchester (UK), 2016. – Volume 32. – Issue 6. PP. – 868–887.