Hot on the heals of yesterdays discussions (both Jas & I) regarding contractual prohibitions on the legalities/cases dealing with the re-sale of digital property (as well as Michela’s musings on digital property – scroll down under “What is Your Take”), check this out:
German Consumer Advocacy Group Files Complaint Against Valve for Steam’s Used Games Resale Policy:
Any thoughts/opinions?
jon
The Chinese government is reviewing its nationwide ban on the sale of game consoles, China Daily reports.
According to an anonymous source inside the Chinese ministry of culture, the government has opened discussions between the seven ministries that agreed on the ban in 2000.
“We are reviewing the policy and have conducted some surveys and held discussions with other ministries on the possibility of opening up the game console market,” the source said, though any change in policy would have to be agreed by all seven ministries.
The ban on the import, manufacture and sale of consoles was introduced 13 years ago, largely due to fears over the impact they would have on the physical and mental development of younger generations. The gaming culture in China is now defined by free-to-play online gaming, which will be a considerable challenge for console companies should the ban be lifted.
Speaking to Reuters, Sony Computer Entertainment spokeswoman Yoshiko Uchiyaman would not comment directly on the situation, but she reiterated Sony’s interest in the market. “China [is] a promising market for our business, and we are always considering and preparing business opportunities and possibilities,” she said.
Earlier this month, a report released by the market research company Techweb indicated that the Chinese games industry grew by 35 per cent in 2012. Total revenue for the year hit $9.7 billion – 90 per cent of which was generated online – and that is expected to more than double by the end of 2017.”
In the hopes of continuing the discussion from Wednesday’s guest lecture as well as Jon’s portion of the class, Brendan and I have outlined a few key topics below. If anyone has any additional thoughts or questions on these matters or anything else related to the class, please feel free to get involved here.
Parody
At the end of his talk, Ian discussed the double standard with which parody is permitted in media. From his experience developing games, and specifically a game based on a TV franchise, it seems that some things that might fly in consumption media (TV/film) may not be permitted in interactive media (video games). There does not appear to be any clear precedent from the courts on this issue, rather courts have recently been strong advocates of technological and media neutrality (i.e. these rights should apply uniformly regardless of the medium – see SCC decisions in CCH; ESA v SOCAN; Robertson v Thomson, etc.). Do you think this double standard is perhaps a risk averse strategy (i.e. overly cautious approach to an issue with uncertain rules)? Does it perhaps have something to do with the interactive nature of video games as compared to TV and film?
The Fair Use/Dealing exception of Parody also came up in the context of creativity. Specifically, how important is the right to parody to the developer when creating a game? With the growing popularity and success of indie game developers, there are many titles with clear similarities to classic large studio titles. Some examples that come to mind include Super Meat Boy which has several pop culture references and scenes clearly intended to imitate popular scenes from classic games; FEZ which uses various Tetris-shaped artwork; and Braid which incorporates a lot of Super Mario elements with modern graphics and some unique game mechanics. Patent/trademark/copyright in game code aside, at what point does the parody of other work become simply copyright infringement?
Right to Mod: User Generated Content
As it stands today, copyright law appears to recognize some right (or at least a lack of a competing right) for the user to modify game content (iRacing; Game Genie; Micro Star) but that the scope of any such right is dictated by the terms of the EULA/TOS as well as DMCA prohibitions (note also new Copyright Act provisions that prevent circumvention of digital locks). Absent any finding of unconsionability in these contractual terms, the right to mod will only exist when and where the developer permits. If, however, creating modified game content can somehow be protected by freedom of expression, would the user’s Constitutional right alter what the developer is capable of enforcing contractually? I think this is the point Jon was alluding to at the end of his lecture so please clarify if I missed the mark here.
What is also interesting is the trends in what developers permit the user to do with their software. From a personal perspective, I recall a time when map/level editors were standard features of any game and sharing your creations was not only permitted but encouraged (particularly in the RTS and FPS genre). It seems with the proliferation of DRM this has become less and less common or, at least, heavily regulated and controlled by the developer. If this is true, why do you think developers have moved away from a feature that provided free marketing and free programming for new content? Alternatively, do you feel this is an inaccurate observation?
Virtual Property
This is a topic that unfortunately did not get much time for discussion on Wednesday but that has been touched on briefly in previous classes. The issue is whether a user has any right to claim ownership of virtual items. This is particularly relevant in the context of micro-transactions and the “pay to win” format of online games. Games like Family Guy Online and Mechwarrior: Tactics (Roadhouse Interactive) both have in-game shops where a player can spend real money on virtual items (weapons, skills, character archetypes, maps, etc.) to use in the game. This is an increasingly popular game modal in an industry that has had to adapt to the ubiquity of piracy. By providing the game for free, the developer makes their money from users’ in-game purchases. Keeping in mind the traditional justifications of property that already seem to have some application to virtual goods (recall Ken’s discussion of Locke’s labour theory, as well as the Utilitarian and Personality theories), does the direct payment of real world money for specific virtual goods further endorse the idea that the user somehow has property rights in these items? Is this claim (if one exists) irrelevant given that the EULA/TOS for any modern game vests these rights in the developer?
After such an interesting guest speaker last week who talked a bit about in-game purchases, I got to thinking a lot about virtual property – the acquisition of it, the sale of it, the theft of it – and how the rise of virtual property might change the face of the law.
Consider the following article:
Now consider the ownership rights of that property……
There really aren’t any. (not in North America anyway)
Virtual property created in virtual worlds has yet to be formally recognized by law in Canada or the United States despite the fact that property obtained in the realm of video games is often given real-world, monetary value. This is corroborated by the fact that there are countless examples of the sale of virtual property in the real-world marketplace. My question is, since virtual property is being bought and sold in the real world, shouldn’t there be real-world legal implications for the theft of it?
I feel like North American courts and judges have consistently showed disrespect towards the gaming community, over-emphasizing violence and undermining and even belittling the importance of video games to many people’s lives (fodder for another blog post at a later time). This lack of respect towards gamers and their subsequent virtual property, has led to injustices that, currently, cannot be remedied by law.
Presently, ownership rights are determined by contract – which is an underlying theme of the course, often in the form of an end-user license agreement. While the specific terms of this agreement vary, most of them place virtual property rights with the developers, not the gamers who acquire the property. I looked up the World of Warcraft end user license agreement out of curiosity and sure enough, under the title “Ownership”:
All title, ownership rights and intellectual property rights in and to the Game and all copies thereof (including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialog, catch phrases, locations, concepts, artwork, character inventories, structural or landscape designs, animations, sounds, musical compositions and recordings, audio-visual effects, storylines, character likenesses, methods of operation, moral rights, and any related documentation) are owned or licensed by Blizzard.
http://us.blizzard.com/en-us/company/legal/wow_eula.html
It is important to mention that there are signs of other countries beginning to recognize virtual property rights as per the case in our class text about Li Hongchen (p 158-159) whose stolen virtually property was actual restored.
While this discussion is much too large for a simple blog post, my intention is to provoke a discussion of virtual property, mainly, should virtual property be legally protected? Who should be the owner of virtual property? Should gamers be allowed to sell their virtual property for real money? (Indeed, some end-user license agreements restrict this) And finally, how can the law adapt to issues surrounding virtual property? Should it?
Obama calls for game violence research:
http://www.gamespot.com/news/obama-calls-for-game-violence-research-6402483
It is truly baffling to me that people immediately jump to blame violent video games when a shooting happens and that now $10 million dollars will be spent on game violence research. What ever happened to plain old criminology? There are a myriad of other ways to explain such tragedies but for political leaders to be so quick to point the finger at video games reeks of intolerance, stereotyping, sexism and ultimately disrespect. Violent video games are so pervasive now that, in my opinion, it is akin to saying that there is a connection between young men who wear shorts and violence. Virtually every young man wears shorts. Virtually every young man plays violent video games. There are no actual numbers that I could find regarding the percentage of men who play violent video games but we can assume from the fact that since over 85% of video games include violence (in whatever capacity) that the numbers are high.
But what’s with talking about men all the time anyways?
I take offence to the fact that violent video games are being blamed for shootings because, like a large portion of the gaming culture, it completely disregards the fact that women play violent video games too and make up nearly half of all gamers. 62 mass shootings — defined as a single spree that killed at least four people — have been carried out in the U.S. since 1982. Only one was perpetrated by a female. In 2006, Jennifer San Marco fatally shot her former neighbor, then drove to work and killed six colleagues before turning her gun on herself (http://theweek.com/article/index/237938/why-are-there-so-few-female-mass-murderers). If women play these games too, then why are there virtually no mass shootings committed by women? Probably because there are other criminological factors such as simply being male, having a mental illness (Adam Lanza, Dylan Kleebold anyone?), checking off the majority of boxes on Hare’s psychopathy checklist (Eric Harris anyone?). Or maybe because they interact with anti-social peers (differential association) or for whatever reason feel they cannot achieve popularity, fame, wealth etc through legitimate means and therefore attempt to obtain these things through crime instead (theory of anomie, strain theory). Or perhaps they do not play sports or have pro-social relationships? (social control theory). These are much more plausible reasons for a mass shooting.
Ultimately, we are asking the wrong question.
The question should not be asking why people commit mass shootings. It should be asking why people don’t commit mass shootings. Since there are so many gamers, we must ask why young men who play violent video games do not commit violent acts if we really want to find out what actually causes these mass shooting tragedies. And I am willing to bet that video games are not the cause.
First check out: How the Video-Game Industry Already Lost Out in the Gun-Control Debate by Ian Bogost.
What do you think? How are real and virtual guns the same/different from the perspective of causality? Are they lines on a continuum or “apples and oranges”?
Comments/critiques/thoughts?
jon
Lawrence Lessig is a well deserved legend in digital media legal circles. See Prof. Lessig’s comments below, but before you do to better understand the background at least scan the introductory article (or many others like it you will find this morning on the web). Prof. Lessig’s comments go to one of the themes of the course and one of most useful filters/tools as we navigate through the challenges and confusion of the law & ethics of digital media – the double standards test. In this iteration should those who hold others accountable be held accountable (within the law)?
Ironic that this question, here applied to prosecutorial conduct around IP related court actions finds (far less tragic) application in many digital media situations from take-down demands to IP holders being a bit more lax on “borrowing” the constituant elements of what became their IP then ultimately allowing their work to be “borrowed”…but that topic is most certainly for another day….
Tragic web pioneer commits suicide at 26: Co-founder of popular message board Reddit is found dead in New York after battling depression: http://www.dailymail.co.uk/news/article-2261277/Aaron-Swartz-Co-founder-popular-message-board-Reddit-dead-New-York-battling-depression.html#ixzz2HnhJL9va
Prof. Lawrence Lessig’s perspective: http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully
Aaron Swartz obituary from The Guardian: http://m.guardian.co.uk/technology/2013/jan/13/aaron-swartz
Aaron Swartz and the Corrupt Practice of Plea Bargaining: http://www.forbes.com/sites/timothylee/2013/01/17/aaron-swartz-and-the-corrupt-practice-of-plea-bargaining/
Opening arguments in the court of public opinion after Aaron Swartz’ death: http://arstechnica.com/tech-policy/2013/01/opening-arguments-in-the-trial-of-public-opinion-after-aaron-swartz-death/
Eugene Patterson and Aaron Swartz: Ghosts speaking across the page » Nieman Journalism Lab: http://www.niemanlab.org/2013/02/eugene-patterson-and-aaron-swartz-ghosts-speaking-across-the-page/?
jon
Tyler has kicked us off in fine style – click “replies” to explore….
Follow