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Berkeley Technology Law Journal

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Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people, and things with rich virtual experiences.

As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that offline and online law have significantly diverged. Consider the simple act of purchasing something. If you purchase a book offline, you are its owner. If you purchase an e-book, you own nothing. As Mixed Reality technologies merge realspace and cyberspace, the question is whether online or offline law will determine consumers’ rights over their property and data. There is a very real risk that courts will continue to reason from online analogies rather than turning to offline common law rules to determine consumers’ rights.

This Article offers a modest proposal for rebalancing the law. The common law proceeds by reasoned progression based on the closest available analogy. The Article suggests that the common law has long evolved internal checks and balances for rules that govern citizens’ everyday lives. The Article proposes rebalancing the law of Mixed Reality by using analogies to real world situations, rather than limiting legal analysis to intellectual property and online licensing law.


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