Thanks to the new Second Life license, discussed here (New IP Rules for Second Life), there has been a request by a director of machinima to "film" in the world of Second Life. Permission has, of course, been granted.
Cool.
Just a quick note from The State of Play: Games, Law and Virtual Worlds.
The developers and people behind the US Army recruiting/education game America's Army are well-represented. I asked one of them whether they were developing a version of America's Army for use on the Xbox through Xbox Live. Seemed like an obvious extension of what they were doing to me. His response? Quite seriously, "I can neither confirm nor deny." I'll take that as a qualified, "yes," although it will be interesting to see how the US Army gets along with Microsoft's proprietary Xbox Live network.
One of the issues near and dear to my heart.
Games are different, because they were interactive, better, richer, more empowering, more speechy. The implication for free speech is that they are closer to the core of speech. When you defend porn, you talk about James Joyce, when you defend about Grand Theft Auto you talk about Second Life.
Is choice really speech? Exercising what is artistically relevant (such as in bricolage or collage) is generally considered speech, no problem. Recording the action from a game looks like a movie. On the other hand, a football player also makes choices that create a result that looks like a movie.
The analogy is often made to "choose your own" adventure books. The problem with video games is not simply that you make choices, but that you also have skills (hand-eye coordination). The extra element is manipulating control, which seems more like the sort of thing football players do.
What would happen if videogames did encourage violence (just an assumption)?
Regulate conduct, not speech. Regulate the joystick, not the speech.
Existing regulations target "realistic" violence, not shooting bubbles. So, can we target certain conduct tied to specific types of speech? [My initial response can be found here: Michigan State Professor Argues Against Free Speech for Videogames.]
Analogy to hate crimes, targeting some actions/conduct for harsher penalties is they are joined with certain types of speech.
Second aspect to this idea of interactivity. The availability of choices are determined by the game designer. Constraints can vary from very limiting, such as Pong, or with lots of choices, like a canvas and paint.
The point being that interactivity is not an important aspect of our arguments as to why regulation is not a good response to regulating games.
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David Greenfield, author of the book Virtual Addiction.
He wonders why people use this technology and why it has such an impact.
Social Connections vs Social Isolation
Are games a form of communication?
What is being communicated and is it constructive?
When you're existing in a virtual game world are you the same person as you are in real-time interaction?
Inner-tainment pulls us away from real-time social interaction
Entertaining in small doses, but seems to be psychologically damaging/limiting in larger doses, over longer durations.
We are genetically predisposed to socially connect and communicate
The question is whether virtual communications are as healthy as real-time relationships
I believe all communication technologies are attempts to connect to others more efficiently, but perhaps with the cost of less depth and quality.
Does the internet affect our ability to judge and obtain social relationships
The power of the internet
A-moral: we imbue positive or negative value based on how we use or abuse it
Computer and internet technology have a positive valance associated with them
Just because the technology exists, and is profitable, doesn't mean it is harmless, and does not improbe the quality of life.
When we are gaming we are NOT doing other things (wasting time?)
Many factors contribute to the power of the net
Accessibility: Open 24-7
Intensity: The power of connecting to the world and something bigger than ourselves
Stimulation: An online High
Time Distortion: Time has not meaning when you're online
Anonymity: A virtual Mardis Gras
Disinhibition: Let it All Hang Out
Acclererated Intimacy: feel closer to people more quickly
Ease of Access: Convenience is the mother of Invention
Addiction is addiction: My brain made me do it....
All pleasurable behaviors change our mood and brain chemistry. The internet probably do this as well.
The neurotransmitter dopamine, may be common to many, if not all addictive processes.
Definitions of use, abuse, dependence and addiction (tolerance and withdrawal)
Any pleasurable behaviors (enhanced dopamine) will tend to be continued and repeated:
Anecdote: Cable company guy says people really, really upset when internet goes down (much less upset than when cable goes down)
Rothko vs. Pong: If painter Rothko's minimalism can be protected, why not Pong?
In April, Judge Stephen Limbaugh ruled that computer and video games had "no conveyance of ideas, expression or anything else that could possibly amount" to free speech. So, Costikyan provides a short history of games as political speech (whole presentation will be on his website later):
The Landlord's Game
Boardgame. Patented 1904, published in 1910.
Design by Lizzie J. Magie.
The original version of "Monopoly," which is a clearly derivative product. Magie was a "Single Taxer," an adherent of the political and economic theories of Henry George. Clear didactic purpose for game.
Class Struggle in 1978 ... designed by Bertell Ollmann, a Marxist professor. The players are "workers" with one as the "capitalist."
Capital Punishment, published 1981
Get your criminals into death row or life imprisonment. Heavily pro-death penalty.
Hidden Agenda - first computer game on list, published in 1989
Clearly intended as criticism of Reagan-era policy
Blance of the Planet, published in 1990 by Chris Crawford.
Purpose is to maintina economic growth, but minimize death from pollution, the greenhouse effect, the political beliefs are quite explicit and can be changed in the game.
Violence published in 1999 by Greg Costikyan
RPG, a lot like D&D but you break into people's houses and kill them. Attack on easy reliance on violence in games.
Re-inventing America II (1999 & 2000)
Sponsored by Markle Foundation by Costikyan, examined every major federal program.
September 12th: A Toy World 2003
Gonzalo Frasca - Commentary on the war on terrorism
Only strategies, don't bomb, or bomb and kill everyone.
Under Ash (2003)
Arabic FPS, play a Palestinian Freedom Fighter working to overthrow the evil Zionest regime. The main purpose is explicitly pro-Palestinian propaganda.
www.underash.net
Movies weren't officially protected expression until 1952.
Improvisational theater is the better analogy, no one seriously believes they aren't protected by First Amendment.
Games and morality? A lot of art is directly connected to morality, touching on and playing with the conventions of morality. Similar arguments can be made
First Amendment is an insufficient ground on which to locate importance of playing. Reason is the Benkler's diagram of all the different relationships. 1st Amendment is being between state and players or state and platform producer. However, 1st Amendment doesn't get into relationship between players and platform.
Purpose is to create a democratic culture, to let people create themselves.
Deals with free speech on the internet generally, in particular, you can see how it applies to gaming.
Game designer has the clearest case for protection under the first amendment. State can regulate speech acts, if the purpose is unrelated to regulation of expression. For example, regulation of gambling. If virtual currency was convertible with real world currencty ... then you can regulate gambling in the virtual world. The same problem we see with internet gambling are present in the design of the games as well.
When one avatar murders another avatar ... usually no problem, but there is a crossover effect in the real world. There are things like communication torts,
Violation of copyright and trademark: not insulated by occuring in a game world
Defamation against person in real world, but also defamation of a avatar (falsely accused of being an eBayer) ... if the injury is serious enough, the law will intervene.
Fraud ... take money from someone by trick, but currency and items become convertable with real world money.
Destruction of property, mayhem and rape. Freedom of speech perfectly protects these virtual actions, but the problem is that as soon as you start structuring games so that they blur and cross over into the real world, then you get into what the law in interested in. Bankruptcy court takes over a game and force the game to continue until everything in the game can be sold. The is a result of the propertization of the game. If you want to create certain types of spaces, you have to avoid both commodification and real-world commodificatin. FoS will protect you to the extent that your space if about speech, but if your space is about property, then FoS won't protect you.
Weaknesses of US free speech law doesn't really protect the interest of the players as against the platform designer (not a state actor), the law protects the rights of the designer quite strongly (IP, property, designers own free speech). If you want to protect the right to play, you have to see past existing FoS doctrine. The values of the players will place limits on the FoS and contractual rights of the designers ... FoS values. Part can be gotten at by good design, some might come through laws like consumer protection (not well-structured to vinicate these rights). Must rethink how we restructure contract and freedom of expression, platform owners and players.
Q & A
Existing games (i.e., football) and the law question:
JB: You generally can't sue in sports, such as for an injury for a foul. However, if you are really, really egregious, then the law can step in (one player shoots another on the court).
What if commodification happens, against free speech wishes of game designer? Should there be 1st Amendment protection?
JB: Yes. Amount of protection may turn on the commecial interests of the specific medium.
Analogy to Company Town cases
JB: Very important to helping to determine rights. However, doctrine is withering on the vine, such as the shopping mall cases. But this is important for how we think of the rights of the game players. But even if that is the way to think about it, it might not be best to view as constitutional rights. Might be better to use ordinary legislation and code.
Body of contentious law about how 1st Amendment law applies to institutions (universities, "private" clubs).
JB: Autonomy and freedom of association also play a role here. Dale in cyberspace claim.
Some bloggers are here, I'll try to update this list as I find other posters:
LawMeme:
Second Life Allows Players to Retain In-Game IP
Michael Froomkin
Random Notes on 'The State of Play'
Virtual Worlds: A Dystopian Thought Intrudes
Abandon All Hope Ye Who Quote Here (Warning - Lawyer Humor)
How Not To Pick Up Women Online
More notes from: The State of Play: Law, Games and Virtual Worlds
Dan Hunter is talking about various property regimes in virtual worlds and their analogies to real world property law. Read his paper (Virtual Property [PDF]). He is showing a live feed of the notorious Category 1654 on eBay, where you can buy and sell avatars, swords, etc. Conclusion ... Prof. Hunter believes that there is property here and we are going to have to figure out how to deal with it.
How did Edward Castronova get involved in this issue? He thought that eventually, there would be lawsuits. Lawsuits would create a need for expert testimony. Why not him? Read his conference paper (The Right to Play [PDF]).
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He provides a bit of a pitch for the excellent Terra Nova blog.
Of course, Castronova got the chance to provide courtroom testimony, if only at a mock trial about rights in the "Staff of Viagra" at a moot court in Las Vegas. Part of the cross examination questioned why we even care about something as silly as games.
The state has long created fictional things with real world legal ramifications, such as the fictional person known as the corporation ... which has a number of utilitarian uses, though it is fictional. But games, according to Huizinga, cannot matter. There is no moral concern, except in breaking the rules of the game. Yet games do have external meaning. The example, the Cubs fan who caught the ball and interfered in the American League championships.
What of online games? Is it play? (Role-players and happy tailors) Is it life? (Power-gamers and eBayers). The government of Korea is getting quite involved. The police, for example, are becoming somewhat willing to hear cases about people who may have stolen virtual castles, etc. How far this has gone is not clear, but Prof. Castronova is encouraging people to Korea and find out (and write papers).
Play-ness is shared cultural assumption. The lack of moral weight for games is a weak alternative to the "games matter" and "games have real-life consequences" meme. How will this conflict be resolved? By courts, perhaps.
How to protect play-ness? Assert a "right to play" as a core element of human dignity. This is somewhat eroded and there has been little political struggle over this issue. New opportunities for protecting play-ness are coming about.
Castronovas initial concept:
Interration
- Not corporation, interration
- Special legal status, for a fictional locale
- Extends the precedent of incorporation to groups of people who play
- It must meet certain requirements (no eBaying - to avoid real world consequences - such as money laundering, banking, etc.)
- In return some benefits (protection from taxation)
The results of this?
Open and closed worlds ... a lot of variety.
So we would have social worlds with different rules. Escapism is pretty important ... the ability to kill dragons and have power in a virtual world that one lacks in the actual world. He quotes from the Star Wars: Galaxies forum where people complain about not having enough power as a squad leader ("welcome to the world of the useless and ignored"). These games have real emotional importance.
UPDATE 3
Deja Vu all over again?
Is cyberspace a space? Who whould govern it?
Not a declaration of independence ... but very much a spatial metaphor undergirding a claim to institutional insularity
Who owns computer generated documents?
A new context for an old question?
What is unique about these technologies that make them different? What old discussions can we learn from.
Collaboration Platform or Game?
We must distinguish between technology and social practice.
MMORPGs provide a powerful collaboration platform
- Rich rendering of
--participants
--actions
--effect
Persistence - richly rendered asynchronicity
Developed in the contect of a particular social practice - escapist play
Offering the possibility of a new cultural form: Participatory play
Hollywood could be considered to be play ... but play as a passive, consumptive activity. Now there is the possibility of the reemergence of active participatory play, not simply consumption.
This not about online games, but crossover technologies ... this is about next year's front page interface for AOL.
UPDATE 4
The real question from Castronova's paper, is that the power of the platform will overwhelm the social practice, unless we create law that preserves game play from incursion by the real world practices, and the institutions we have developed to govern non-play interactions. [I think this is a pretty good summary]
Benkler responds, Do we need a special law? Will existing private/public law regimes suffice?
Hunter & Lastowska via Benkler
Avatars, representations of people - that "make" representations of "objects" - entail property rights of the people in representations.
- Functional, historical, and theoretical reasons to answer yes.
- But: "is it property"
Mapping the relevant relationships:
State - Platform Provider - Non-player X - Player A - Player B
Between players:
Within game (In game rules and dispute resolution - appeal to platform provider)
Without game interaction (you failed to deliver the sword you sold me on eBay)
How much freedom of contract do we allow? Boxing is a game, but we let people do things consensually that is illegal non-consensual (assault and battery).
Platform Provider and Player
Service contract
Propery Law?
- standard questions of contract (market power, ability to negotiate)
- amount of investment, emotionally, time, money (not much liquidity, perhaps)
--number portability for telephone, avatar portability?
- regulatory law; consumer protection (do you force people to permit eBaying)
Player and non-players
Standard law (property, tort, contract)
State and players
No role for law in capacity with regard to "players"
Contract and property create a private sphere
Summaries
Law can overwhelm the game if it intervenes too seriously in what is really play
The form of the platform and its social function should not be confused
It is the social function and the relative positions of power, vulnerability, and freedom of action that determine the need or rol of law
A new freedom to make together?
Not like a book or a movie, a platform for collaborative creativity
Would we conceive of a world in which JK Rowling is subject to suit for killing Harry Potter in the seventh book? No. [Great question ... people would be as greatly affected by this as about anything that happens in MMORPGs]
However, what does the fact that users "own" the storyline in MMORPGs tell us about this cultural form?
In the world of games, we somehow consider the possibility of regulation platforms to some extent, or at least that there is some moral question.
Dangers:
A lack of imagination about human social capacities will import imperfect forms of constraint on social creativity into these emerging cultural contexts.
Habits of controlled interaction bleed into real world interactions where There becomes the front end of AOL.
Do we need Law?
Technology and social structures as a workaround (such as Free software and distributed platforms)
Currently, I am in New York attending the New York Law School/Yale Law School conference on videogames and the law (The State of Play: Law, Games and Virtual Worlds).
This morning's panels is a discussion by founders of two of the most interesting MMORPGs, There.com and Second Life.
Philip Rosedale, founder and CEO of Linden Lab, creators of Second Life, had a very interesting announcement at this conference.
One of the most interesting things about Second Life is that the world is created by its users. They build and script many (if not most) of the models in the system. Second Life has been one of the leaders in such user-centered creativity.
The announcement is that there has been a change in the terms of service for Second Life. Second Life users will now be able to retain intellectual property rights in the things they develop for the MMORPG. Indeed, you will be able to actually transfer, buy and sell these copyrights in the real world. The new EULA does not yet seem to be available online yet, but this is very interesting.
UPDATE 0910 ET
There.com mentions that they have a dispute resolution process for copyright violations in their world. For example, There.com members create virtual clothing that they "sell" to other members using Therebucks. Some complaints have arisen that some sellers see other members wearing clothes they designed but did not sell. Other members of There, apparently, are selling "knock-offs" - so There.com runs a dispute resolution system. How it relates to existing copyright law is not clear.
Second Life expects, with their new EULA, that real world courts may have to resolve these issues.
UPDATE 0935 ET
In response to an excellent set of questions from copyright expert Yochai Benkler, Rosedale notes that they hope to embed Creative Commons licenses into their new system of copyright.
Prof. Benkler was skeptical about the purpose of embedding copyright law (which is a mess) into these virtual worlds ... why not enable a better system for sharing?
UPDATE 1100 ET
New Terms of Service are up.
A brief excerpt (but read the fine print):
5.3 Participant Content. Participants can create Content on Linden's servers in various forms. Linden acknowledges and agrees that, subject to the terms and conditions of this Agreement, including without limitation the limited licenses granted by you to Linden herein, you will retain any and all applicable copyright and/or other intellectual property rights with respect to any Content you create using the Service. . . .
UPDATE 1105 ET
Read the Linden Lab press release: Second Life Residents To Own Digital Creations. There is a quote from Larry Lessig:
Linden Lab has taken an important step toward recognizing the rights of content generators in Second Life. As history has continually proven, when people share in the value they create, greater value is derived for all. Linden Lab is poised for significant growth as a result of this decision.
