Abstract
With the emergence of the metaverse, some problems relating to trader responsibility, which had previously long been addressed, have now resurfaced and come back to life. One of these problems is the question of who should be held accountable for harm inflicted by defective or counterfeit products sold by third-party vendors in metaverse marketplaces. Under the common law, liability for defective or counterfeit products rests with the immediate seller of the product. But, unique aspects of the metaverse may make holding sellers liable unwise, difficult, or even impossible.
The law confronted a similar question after online platforms emerged. Currently, common law principles of negligence and product liability still assume liability rests with the seller. But, in some cases, courts have modified the law to impose contributory liability on online platforms in addition, as these platforms are viewed as the cheapest cost avoiders and are in the best position to distribute the damage. As the metaverse, an augmented reality platform, gains momentum, it poses new problems for products liability. Imposing liability on these augmented reality platforms does not necessarily follow the same rationales as imposing liability on e-commerce platforms. This is because, unlike traditional e-commerce platforms, metaverse platforms are operated on the blockchain and are governed by decentralized autonomous organizations (DAOs) enabled by algorithms. Metaverse platforms do not reside on a single server. Instead, content is distributed across an infinite number of servers in a peer-to-peer network. This means metaverses have no single point of authority making it essentially impossible to assign liability to the platforms.
Even if it were possible to assign liability to individual DAO members, there would be tenuous economic justification for assigning such liability, as members on the metaverse lack the ability to monitor transactions on the platform. As such, unlike typical online platforms such as Amazon, metaverse members are likely not the cheapest cost avoiders. Applying the law for e-commerce platforms to metaverse platforms risks generating an accountability gap resulting from diffusion of responsibility where many entities are involved in a transaction and none of them act to prevent harm. This also risks leaving victims of defective products or fraudulent transactions without recourse. For these reasons, holding metaverse platforms responsible for the merchandise sold on them may be undesirable as a policy matter.
In this Article, we propose a “know your trader” rule for marketplaces. Under this new approach to the long-standing financial trading rule of “know your customer,” traditional online marketplaces and innovative metaverse marketplaces would have to verify the identity of their traders before the traders could enter the system. The marketplace would confidentially maintain traders’ identities to protect the anonymity that draws many to the metaverse in the first place. However, a plaintiff could pierce the veil of anonymity when they present prima facie evidence that their case could survive a motion to dismiss. This idea builds on several statutory proposals and laws in the European Union and the United States that require online marketplaces to identify and verify traders. The Article explains why this rule would be more effective and more efficient than the current application of the rule. Finally, the Article addresses potential free speech objections based on trader anonymity, concluding that the proposed framework is permissible under the First Amendment.
Recommended Citation
Hadar Y. Jabotinsky & Michal Lavi,
Regulating the Metaverse: Reducing Diffusion of Trader Responsibility,
58
U. Mich. J. L. Reform
881
(2025).
Available at:
https://repository.law.umich.edu/mjlr/vol58/iss4/4
Included in
Commercial Law Commons, E-Commerce Commons, Internet Law Commons