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About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com

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July 12, 2005

July 06, 2005

Podcasting for the XBox 360?

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Posted by Ernest Miller

So, the next generation XBox360 is going to have all sorts of cool multimedia abilities and its connectivity through XBox Live is being heavily touted (XBox360 Fact Sheet).

So, will Microsoft dare permit podcasting to the XBox? If they do, which artists will they allow to try to reach this market? How might podcasting be integrated with games? I think of the faux-radio stations in Grand Theft Auto, as a very basic example.

Dare we imagine the possibities for broadcatching video content, say for example, machinima? Doesn't it make sense to deliver machinima film festivals to gamers who would subscribe?

How forward thinking is Microsoft?

UPDATE 1530PT

What better way to deliver short video reviews of upcoming XBox titles? Of course, Microsoft could simply use it as some sort of advertising channel, but why not let known, responsible outlets have access to provide podcasts/broadcatch for their independent reviews?

Imagine a Penny Arcade feed - why not?

Comments (1) + TrackBacks (0) | Category: Broadcatching/Podcasting | Games | Machinima

June 29, 2005

June 24, 2005

Window Into a Virtual World

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Posted by Ernest Miller

New World Notes reports something extremely cool coming from Linden Lab: live video from Second Life, the most innovative virtual world out there (Links of the Week!: An SL Simulcast and a Movie Trailer...). Très très cool! Go to the Second Life homepage and click on the television set labeled "live video." Be prepared for loud music that I couldn't figure out how to turn off. It is, literally, a window into a virtual world. How long will it be before we hear the cry: "I Want My Second Life TV!"?

Reuben Steiger, who works on Second Life at Linden Lab, explains the reasoning behind this very amazing innovation (Video From a Virtual World).

Second Life is a 3-D virtual world that is 100% created by its 32,000 residents. The challenge this presents us at Linden Lab is that all the action that takes place in Second Life is very compelling; whenver we sit down and show it to someone, their mind is summarily blown and they very often sign up for an account. The problem is a chicken and the egg one -- showing Second Life in person isn't scalable and screenshots just don't do it justice. You really need to see avatars flying around, building amazing creations, chatting with eachother in order to get it. The energy of that experience is what sells Second Life -- the raw, unedited magic, but until recently we couldn't bottle the magic.
He says this is profound. It is. Read the whole thing.

When are we going to get a "Best of Video," Reuben? How long do you think it will take before members of Second Life demand the right to broadcast out on their own? Will Cory Doctorow's book signing be carried on Second Life TV? I can't wait to see what happens with this.

Very exciting, innovative stuff.

Comments (2) + TrackBacks (0) | Category: Culture | Games | Internet | Machinima

June 22, 2005

June 20, 2005

June 18, 2005

June 14, 2005

June 13, 2005

June 08, 2005

Pharmaceutical Patent Law Boardgame, No, Seriously

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Posted by Ernest Miller

Patential is the boardgame for pharmaceutical patent geeks everywhere! Patential Details:

Be the first to reach $1 billion. Get rich. Become famous. Help millions of people solve their health problems - show us your Patential Game!!
Patential - a whirlwind tour through the exciting and in-depth business and legal world of the drug development process - is the first game of its kind.
The game dives deep into the realms of the drug approval process. You see your pharmaceutical's development from inception to sales as you learn everything you need to know about securing a patent, the Government drug approval process, and bringing your newly-developed product to market.
Read a fairly in-depth and positive review from RPGNet: Review of Patential.

via I/P Updates

Comments (0) + TrackBacks (0) | Category: Games | Patent

June 07, 2005

June 06, 2005

June 04, 2005

May 30, 2005

May 27, 2005

May 25, 2005

The Annotated AB450 - California's Latest Anti-Violent Videogame Bill is the Most Poorly Written Legislation I've Seen in a Long Time

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Posted by Ernest Miller

Once more into the censorship breach my friends. Once again it is the California Assembly that is seeking to require the labeling of violent videogames and restrict their sale to minors, see, AB450. The bill is scheduled to be considered next week. The Int'l Game Developers Assoc. is asking for citizens to write their state representatives in opposition to the bill (AB450 Letter).

You know, one of the things that I don't like about this bill is not only is it anti-free speech, but it is incredibly poorly drafted. It is like adding insult to injury. Geez.

As I've done before, another obsessively annotated look at this farcical (and free speech attacking) bill...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Games

May 24, 2005

Baudrillard and the Virtual Cow

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Posted by Ernest Miller

Eric Goldman points to an interesting and amusing paper on the real world impact of virtual worlds (Compartmentalization v. Immersion in Virtual Worlds). The paper discusses whether a virtual cow farm game (Vacheland.com "cow country" [French]), developed for a French agricultural region "to explain the complexities of agriculture while creating a new image of farming," succeeded in changing citizens' attitudes towards farming (conclusion: only limited success, if that).

Read the 10-page paper: Can Simulation Games Influence Citizen's Attitude and Behaviour Vis-a-Vis Online Public Debate? [PDF]

Although more than 320,000 people visit the website daily to care for their virtual cow, it has not changed their attitudes toward actual cows much (though cow merchandise has done well). For some the game was a nostalgia trip to the simple farm life. Others viewed the game as just another fiction, like Babe. The concern however, was a creeping Disneylandization of consumption:

"When I go to a market, I am in 'real life' so I buy milk and yoghurt without thinking about my cow. Breeding games stay at home in my PC". "For me, my virtual breeding never mix with my real life. Thus, when choosing butter, milk or whatever, I absolutely do not think about my virtual cow. I may think of it when going to the countryside, if I see a cow or a Massey-Fergusson tractor, I'd smile and say 'I've the same at home!' but usually there's no crossover."

..."However, I am a big plush fan, and it's different! When I am in a store in the toy department, I have to restrain myself from running to the plush and check for cows or pigs. Plush cows are quite easy to find, for pigs it's more difficult."

Of course, technical problems in the game caused some serious negative feedback:
My opinion on this institution [the Regional Council] has really changed. I started with a very happy and positive image. Now it makes me sick! This institution has manipulated us all, as politicians manipulate everybody. If I were French and coming from this region, I'd be ashamed of my local officials!"
Well worth reading.

Comments (0) + TrackBacks (0) | Category: Culture | Games

May 21, 2005

A Copyrighted Chicken, an Egg and Replacementdocs.com

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Posted by Ernest Miller

Replacementdocs.com hosts full-color scans (or PDF originals) for thousands of videogames. For anyone who has rented or purchased used games, which frequently lack manuals, or simply have lost the box and documentation, this is an incredible resource ... and clearly a case of massive copyright infringement of the manuals.

It is also a resource for copyright infringement of the games themselves, in that infringing copies seldom come with full documentation. Indeed, game companies have gone after sites that host manuals for this very reason. Likely, this is the reason that Blizzard asked Replacementdocs.com to remove their manuals from the site (Manuals requested removed by game companies (i.e. - don't bother asking for these)).

Replacementdocs.com responds to this argument in their FAQ:

As for the piracy issue... What good is a manual without the software? None at all. What good is software without the manual? Plenty to most people. With this in mind we believe that the true problem of piracy is the copying and distributing of the software itself not the documentation. If you stop the software piracy then having documentation online will no longer be an issue. However, If you stop the distribution of electronic documentation, software piracy will still thrive. Besides, game companies are in the business of selling games, not selling replacement manuals for the games. And therefore, we believe this is not affecting their business. A testament to this is the increasing number of companies who freely distribute their documentation online already because they have realized that providing good customer service is more important than protecting ultimately supplemental materials. Some of these companies include Square Enix, Konami, and even Sony's and Microsoft's respective in-house game studios. But it is still woefully few compared to the available catalog of games.

In addition, many of the games listed herein are out of print and the game companies are not making money on them anymore if they even still exist. Yes, technically, they still own the copyrights to the games and manuals, but they aren't making money off of them and we're not making any money off of them. There is no profit to be lost and none to be gained. And if you're some lawyer or company drudge tracking down pirates, come on... it's really all about the money anyway, isn't it? Spend your time tracking down the software pirates that release stuff on the internet before the software hits the stores, they are the real problem.

Replacementdocs.com is right (which doesn't mean it still isn't copyright infringement). And it seems that many game companies are beginning to agree, not only the ones mentioned above, but several have given permission for Replacementdocs.com to host their manuals. Even Blizzard has since given permission (Blizzard manuals to return!).

One of the interesting things about these sorts of copyright infringements, however, is how they accomplish something that the market would be unlikely to accomplish. Sure, one could argue that those who created the site should have first gone to every copyright holder and asked for permission to do this. But the reality is that they would have been entirely ignored. Without a track record, without traffic, without money to throw around, with nothing more than an idea and an empty website, no videogame company legal department would have given Replacementdocs.com five minutes. A bit of a chicken and egg problem, and a serious one for copyright.

via BoingBoing

Comments (0) + TrackBacks (0) | Category: Copyright | Games

May 18, 2005

Actors and Videogame Industry Headed for a Showdown?

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Posted by Ernest Miller

The Silicon Valley Media Law Blog reports that two major Hollywood unions, the Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists (AFTRA), have announced that contract negotiations with the videogame industry have broken off over profit participation for talent (SAG Interactive Talks Break Off Over Residuals). I wonder if the game industry is resisting this because some of their programmers might start getting big ideas?

UPDATE 0615 PT

From Backstage.com (Actors Tilt Toward Video Game Strike):

"Voice-over work represents a small fraction of a video game's development and consumer enjoyment," Fabrick [attorney and the videogame companies' lead negotiator] said. "The union's demand for an equity stake, or residual structure, is unreasonable and not fair to the hundreds of people who often spend years in developing a game."
Hmmm.

Comments (0) + TrackBacks (0) | Category: Games

May 17, 2005

May 16, 2005

May 11, 2005

May 10, 2005

April 06, 2005

Videogame Golf, Copyright and Drunken Bar Patrons

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Posted by Ernest Miller

Michael Madison points to a very interesting Seventh Circuit decision regarding copyright and trademark issues involving virtual golf on arcade machines (Access to Video Games: Methods of Operation). Read the 14-page decision: Incredible Technologies v. Virtual Technologies [PDF].

The case is quite amusing, for a judicial decision:

As anyone who plays it knows, golf can be a very addicting game. And when real golfers want to tee-it-up, they head for their favorite course, which might be a gem like Brown Deer in Milwaukee, a public course that nevertheless plays host to an annual PGA Tour event every July. What most golfers do not do when they want to play 18 is head for a tavern. Also, most people are quite familiar with Tiger Woods. But who knows Jeff Harlow of Florissant, Missouri? This case is about “golfers” who prefer taverns to fairways and aspire to be more like Harlow than Tiger. Our case concerns video golf.
I guess I'm easily amused.

Anyway, this case is a good look at "methods of operation" and functional exemptions to copyright, such as the trackball, which is a a method of operation and functionally located (following Lotus v. Borland). Relatedly, the Court looks at the minimal creativity in explaining how to operate the trackball. The case also dives into "scenes a faire" doctrine, determining that depictions of a golf course with wind indicators is a necessary part of a game of video game golf. More commentary on this from barrister Warwick A Rothnie here: Scenes a faire and creativity: copyright in golf simulations in the USA.

So, although there seem to be an awful lot of similarities between the two games, the Seventh Circuit upholds the lower court's denial of a preliminary injunction.

Finally, gotta love this smackdown regarding the claimed trade dress violations in the control panel:

IT argues, however, that the district court did not take into account what happens in the marketplace. IT says, “Bar and tavern patrons, often in dimly lit spaces, typically approach and play these video games while consuming alcohol; they are not consumers using high degrees of care in selecting, identifying, or differentiating the Golden Tee and PGA Tour games”! One wonders how different the control panels would have to be to avoid confusing such users.

Comments (0) + TrackBacks (0) | Category: Copyright | Games

November 06, 2004

Podcasts in Videogames

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Posted by Ernest Miller

Okay, so I'm in the Podcasting session at Bloggercon and a fellow named Kieran made a very cool suggestion as a possible market for podcasts: videogames.

Grand Theft Auto: San Andreas, like previous games in the series, includes the most realistic radio simulations of any game. There is even a roundtable discussion of violence on a faux-talk show. So why not download podcasts that you can select in GTA's radio?

Sounds cool to me. What other games could benefit from podcasts?

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Games

August 31, 2004

City of Heroes and Machinima

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Posted by Ernest Miller

If you haven't noticed, I'm a big fan of machinima. So, I'm excited when companies promote and support its creation. In this case, the superhero-themed MMORPG City of Heroes is sponsoring a short film contest (City of Heroes: Film Festival Contest). The films don't have to be machinima, but they can be and I'm sure many of them will be.

Attention all you budding Raimis, Spielbergs and Jacksons! The time has come to show us what you’re made of! The chance to demonstrate your cinematic skills by creating a City of Heroes short film has arrived. We proudly invite you to participate in our first ever Paragon City Film Festival!

Using game footage, animation, live action or whatever you can dream up, show us the city through the eyes of your hero or team. Take us on flights of daring; show us spectacular battles, heroic rescues or zany antics. Be the ultimate CoH film director by exhibiting your editing skills, creating your own exciting story, adding captions, music, voiceovers—be creative, for the sky is the limit (just make sure nothing in your film infringes any patent, copyright, trademark or other intellectual property right, or any privacy, publicity or publishing rights of any third party, or is libelous, obscene or otherwise contrary to law!).

They even have instructions on how to record action from the game if you want to make machinima (How to Demorecord).

Unfortunately, copyright is, of course, a major concern for those who sponsor these contests:

Due to copyright music laws, if you’re going to “score” your cinematic masterpiece, you MUST do so with the musical pieces located here: ftp.coh.com/music/....

Feel free to combine music selections and/or splice them if you wish, but you may NOT add your own or use music created by someone else. For this same reason, you may record your own voiceover but copyrighted sound bytes from television programs, movies, etc are strictly prohibited. Film entries that violate intellectual property laws will be automatically disqualified from the contest!

If you manage to survive the copyright gauntlet, there is (among other prizes) a nifty bonus:
Not only that, but the winning movies will be featured on the game disc included in the Special DVD Edition of City of Heroes, being released this holiday season.
One of the interesting features of this contest is that there are two categories: action and comedy. Drama remains underdeveloped, mostly because of the difficulties in using machinima to render complex emotional states in virtual actors, but I think a good machinima comedy (*cough*RedvsBlue*cough*) can be and is as good as anything on broadcast television or in theaters.

via Joystiq

Comments (1) + TrackBacks (0) | Category: Games | Machinima

August 23, 2004

Videogame Character Bears All in Playboy - No, Seriously

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Posted by Ernest Miller

BloodRayne is a game about a female vampire hunter, a very attractive female vampire hunter with daddy issues:

In 1932 an American teenage girl was apprehended in Europe after carving a path of destruction trying to track down and kill her biological father. The girl's name was Rayne and she claimed the people she killed, and her father who was still at large, were vampires. Before more information was attained, the girl disappeared.

That girl is a Dhampir; a product of her human mother's rape by her vampire father. Born with powers of a vampire without all of the weaknesses. She was taken in by an underground organization calling themselves the Brimstone Society -- a top-secret fraternity that hunts down and destroys supernatural threats. Agent BloodRayne, as she is now known, protects humanity from things that ordinary people shouldn't have to deal with.

Except that part about appearing topless in Playboy (BloodRayne 2 News):
Rayne Makes Her PlayBoy Debut

If you felt teased by her sexy Girls of Gaming cover, then this new feature art is going to blow your mind! Rayne is 100% topless and smokin' hot in the October issue of Playboy magazine. This is a first in videogame history and trust us when we say that Rayne does not disappoint. The magazine hits newsstands in early September so here's a great excuse to get a copy!

Um, okay. The line between airbrushed photos and Renderotica is getting a lot more blurry. BloodRayne image gallery here: BloodRayne.net Gallery.

I can't wait until concerned parents get word of this (among others). In any case, this certainly is a milestone ... or something.

via Fleshbot

Comments (1) + TrackBacks (0) | Category: Games

August 18, 2004

Calif. Legislature Passes Requirement that Retailers Post Video Game Ratings

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Posted by Ernest Miller

GameSpy reports that the California legislature has passed a bill requiring videogame retailers to post ratings labels and provide information about ratings on videogames (Video game bill passes Senate). The bill now awaits the signature or veto of Gov. Schwarzenegger. Read the legislative analysis of the AB 1793 here: AB 1793 - Bill Analysis.

While this is better than original versions of the bill, it still shows the prejudice legislators have against this particular media. Why not similar requirements for bookstores, movie theaters, music stores and magazine stands?

via Joystiq

UPDATE

Here is an AP article on the cybercafe regulations in Los Angeles that quotes your humble correspondent (Violence Tackled at Online Gaming Parlors).

Comments (3) + TrackBacks (1) | Category: CyberCafes | Freedom of Expression | Games

August 06, 2004

Internet Archive Game Videos Section Now Available

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Posted by Ernest Miller

Woohoo! Lots of Machinima, speed runs and other goodies! Go, enjoy!

Internet Archive: Game Videos Archive

Note: This isn't the Videogame Archive, this is the Game Video archive. A new art form of which I am a fan.

via GameWag

Comments (1) + TrackBacks (0) | Category: Games | Machinima

July 16, 2004

Washington's Violent Videogame Law Held Unconstitutional

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Posted by Ernest Miller

Federal District Judge Robert Lasnik of the Western District of Washington held, on summary judgement, that Washington's video game law was unconstitutional on free speech grounds. The law, which had been blocked by a preliminary injunction, "would have imposed a $500 fine on anyone, such as a store clerk, who sold a video game depicting violence against 'law enforcement officers'" to minors under age 17," according to Reuters (Judge Strikes Down Washington Video Game Sales Law). The Seattle Post-Intelligencer also has a report (Ban on violent videos struck down). Read the 15-page decision and order: Video Software Dealers Assoc. v. Maleng [PDF].

The case overall is a big win for free speech. However, the court also makes clear that this controversy will not be leaving us soon (See, for example: Opposition to Violent Videogames Continues).

Read on for some quotations and a summary of the case ....

...continue reading.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Games

July 05, 2004

Opposition to Violent Videogames Continues

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Posted by Ernest Miller

WIRED publishes an AP wirestory on the opposition to violence in videogames (Violent Video Games Under Attack). Why violence? Perhaps it is because not too many games feature sex. I expect this to change over the next couple of years. In any case, this article is yet more evidence that the fight for free expression for this media form is not even close to over.

Of course, the good AP editors must still be on holiday:

There is also the inescapable fact that the military uses video games to train its soldiers. A 2003 University of Rochester study found that young adults who played a lot of fast-paced video games showed better visual skills than those who did not.
It is also an inescapable fact that the military uses movies, pictures and print media to train its soldiers. Why is this relevant? Is the military using the games to teach aggression? Perhaps they are using them to train for better visual skills, at least that is what the second sentence of the paragraph seems to imply, or maybe it isn't related to the first sentence at all. Who knows?
Author Evan Wright ponders the effects of video games on U.S. soldiers in the current Iraq war in his new book Generation Kill. In an endorsement that Grand Theft Auto creator Rockstar Games would probably rather not get, he quotes one U.S. soldier as saying an ambush felt just like playing the game.

"It felt like I was living it when I seen the flames coming out of windows, the blown-up car in the street, guys crawling around shooting at us," the soldier says.

A truly touching anecdote. Go back to the first Gulf War and you will undoubtedly find references to the resemblance or non-resemblance of war to the movies' depiction of war. A reader-submitted review of the book on Amazon claims that the book includes a similar anecdote about another media form as well, "someone recites gangsta rap lyrics as he ecstatically sprays machine gun fire on the enemy (A very admirable piece of wartime journalism). Read the book and I'm sure you'll find other shocking examples of our culture being invoked by our soldiers in Iraq. Imagine that, our soldiers evoking our culture to describe war.
Still, the notion that games should be restricted is accepted elsewhere. New Zealand, Brazil, Germany and several other nations have outlawed some games.
They are also restricted in countries like China, too. However, the article doesn't note some other censorship characteristics. Germany outlaws all media (including games) that depict Nazism in particular ways, something our First Amendment wouldn't allow. New Zealand's Office of Film and Literature Classification has outlawed some movies as well.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

May 28, 2004

Who Says Videogames Aren't Political Speech?

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Posted by Ernest Miller

According to Xinhuanet, the Chinese government has banned a computer game for "distorting history and damaging China's sovereignty and territorial integrity" (Swedish computer game banned for harming China's sovereignty):

Moreover, "Manchuria", "West Xinjiang", and "Tibet" appeared as independent sovereign countries in the maps of the game. In addition, it even included China's Taiwan province as the territory of Japan at the beginning of the game.

Nor is this the first videogame banning. Other games banned include Project IGI2: Covert Strike ("The game was accused of intentionally blackening China and the Chinese army's image as a freelance mercenary fights in [China]") and Command and Conquer Generals: Zero Hour Expansion ("Also for smearing the image of China and the Chinese army").

via Techdirt

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

May 25, 2004

Virtual Drugs in Virtual Worlds

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Posted by Ernest Miller

Fascinating story in WIRED about the addition of virtual addictive drugs in virtual worlds (Virtual Dopers Crave High Scores):

"In every game, having some danger and having the sense that there's some danger is exciting," said [Andy] Tepper [lead designer for A Tale in the Desert]. "So if you can make it so the danger to you is you, that's nirvana."

More than that, Tepper said, the game's other players love talking about it when someone falls victim to Speed of the Serpent. "It's not good for business to kill your customers, but overall it makes it a much, much more interesting world."
Spoken like a true tobacco executive. Seriously, though, this is immensely interesting.

Comments (0) + TrackBacks (0) | Category: Games

May 10, 2004

Attending E3

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Posted by Ernest Miller

Thanks to the folks at the Entertainment Software Association, I'll be attending the E3 Expo this coming Wednesday - Friday. I plan to write some reports on the expo focusing on issues of interest to this blog. If any readers plan to attend as well, drop me a note.

Comments (0) + TrackBacks (0) | Category: Games | News

March 24, 2004

Videogames Inspire Speedy Movie Zombies

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Posted by Ernest Miller

Slate has an interesting piece on the increasing speed of zombies in recent movies such as 28 Days Later and the recent remake Dawn of the Dead (Dead Run - How Did Movie Zombies Get So Fast?). The author traces at least some of the inspiration to fast-paced first-person zombie shooter (aka "Survival/Horror") videogames such as Resident Evil, and not just the fact that some bad movies were adaptations of the games. Games having a cultural effect on movies. Cool.

For more traditional, slow-moving walking dead, you can download for free (and legitimately) George Romero's classic Night of the Living Dead, which is in the public domain (George Romero's Night of the Living Dead in PD; on Archive.org).

Comments (1) + TrackBacks (0) | Category: Culture | Games

March 10, 2004

Dangermouse, the Jay-Z Construction Set and the Videogame Content Creation Model

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Posted by Ernest Miller

DJ Dangermouse's release of the controversial Grey Album has brought the question of reusing and remixing content to the forefront. Now, another group has taken the next logical step and released the Jay-Z Construction Set:

The Jay-Z Construction Set is a toolkit with all of the necessary software and raw material to create a new remix of Jay-Z's Black Album. It includes nine different variations on the Black Album, over 1200 clip art images, and a couple hundred meg of classic samples and breaks. The Jay-Z Construction Set is available on-line through filesharing networks and protocols such as BitTorrent.

This collection of material is certainly a violation of copyright, yet it points the way to a much richer vision for culture. I would hope that, in the near future, artists and publishers will see the value of releasing not only polished works, but the bits and parts used to create a work, including those parts that were rejected.

This is good not only for fanboy obsessives, but could serve to train people's musical ears, helping them hear the difference between different mixes of music. It would obviously be a boon to unexperienced musicians who could learn much from the choices other musicians and producers make. DJs would certainly have more opportunity to creatively add to the originals with this sort of access. And, likely, such efforts would help identify new talent.

Combine this with a system that permits "recipe" mixes as I've written about before (A History Palette for Music and The Grey Album - No Copying Necessary) and there is no danger of the artists and producers losing money. Indeed, such a model has already been quite successful in another media - videogames.

Many videogames permit players to create new content for the game engine, such as levels, maps and mods. This new content is freely distributable (at least for noncommercial purposes) and frequently incorporates content created by the original game designer along with new user-created content. This has been incredibly successful for videogame companies. The more content there is, the more popular the game becomes. The ability to create and add content creates feverish and committed communities of fans for a game. Imagine if musicians had such communities working for them.

The videogame model works for the game companies for a couple of reasons, but could also work for music companies:

1) You need to purchase the game engine for the content to be useful. In my recipe model, the mixing software that recreates the mix from the recipe would serve this role. However, it wouldn't be a significant revenue stream for the artist.

2) Often, the levels, maps and mods created by fans include content originally created by the game creator and shipped as part of the game engine. The shared levels and maps generally don't include copies of this content, since it is assumed that the downloaders already have the content and it saves on file size. In essence, many of these shared levels are what I would call "recipes" that remix the existing content in the game. Of course, there are full mods with entirely new content, but those are relatively rare (though they can be extremely popular and creative). Here is where the music recipe model can compensate the artist. In order to create the remixed version of the music, a downloader of the recipe file is going to have to have access to the original works, which, presumably, would be paid for in some manner through a legal download system.

Of course, the Jay-Z Construction Set points to an advantage for musicians that game companies don't share. Generally, game companies don't really have the luxury of shipping alternate takes on a level or unfinalized content for the game. However, when a musician releases a wide variety of takes and alternates, which were created organically, they create a much richer ore that remixers can mine. The more material you release, the more things people can do with it, which means the more people will want it. Heck, musicians might eventually ship only the construction set along with their favored recipes.

In a related note, Furdlog pointed out a brief Billboard interview with DJ Dangermouse (Danger Mouse Speaks Out On 'Grey Album')

Comments (8) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games

February 26, 2004

Machinima and Games in Law School

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Posted by Ernest Miller

Cardozo Law Professor Susan Crawford gives me an excuse to talk about one of my favorite topics - machinima (Susan Crawford Blog :: Machinima). For those who are unaware, machinima is a media form in which creators use pre-existing 3D engines (typically game engines, such as Unreal) to create new video works. Basically, machinima is a cheap and easy way to make animated movies.

Apparently, Crawford is planning something called "Property Law: The Video Game" and had the whole machinima concept introduced to a bunch of law professors. "Property Law: The Video Game" actually is an intriguing concept. I don't know what Crawford has planned but it will be interesting to see, as we already have property law videogames out there, in a sense, such as EverQuest. Certainly there are both implicit and explicit (not to mention intriguing) notions of property law in games like There and Second Life. Interested in more examples? Check out Virtual Worlds Review. Property Law: The Video Game is worth keeping an eye on, I think.

Back to machinima, however. Honestly, I'm not quite sure how useful this video form will be in law schools. Law is primarily and will, hopefully, remain textual for quite some time. Who wants to watch a video of a document? Sure, you could make machinima reenactments of accidents or crime scenes, but that is fairly trivial. Although ... I do think back to the final exam for one of my torts classes and remember the horrible accident involving Macy's Parade Balloons that was the hypothetical to be analyzed. It would have been very cool to have a machinima version of the accident instead of the paragraphs. Of course, professors will seldom have the desire, time or resources to create such things (many barely have the time to write the traditional page-long hypothetical).

Comments (0) + TrackBacks (0) | Category: Games | Machinima

February 19, 2004

Do Not Be Alarmed Citizen - The Computer is Your Friend

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Posted by Ernest Miller

Greetings, Citizens!

PARANOIA XP. AUGUST 2004. MONGOOSE PUBLISHING.

PARANOIA XP WILL BE FUN. FUN IS MANDATORY.

THANK YOU FOR YOUR COOPERATION.

Brought to you by The Computer's brilliant researchers in the R&D service firms of MNG Sector, PARANOIA XP is the entirely updated and perfected version of the darkly humorous RPG originally published by West End Games. The new edition's writers include PARANOIA co-creator Greg Costikyan, longtime paranoiac Allen Varney, and Famous Game Designer Aaron Allston. There are also devious and subtle new contributions from the original PARANOIA line editor, Ken Rolston.

Do not fileshare PARANOIA. Filesharing is Communism! Fortunately, The Computer's loyal Central Processing service firms have devised many innovative digital-rights management methods to shield you from temptation. The most promising methods manage your actual physical digits. Would you care to get your fingerprints remapped?

Citizens, do not read these words from creator Greg Costikyan, a known subversive and traitor (Rabble Rousing):

Paranoia XP, should that be what we call it, is not an attempt to bring back an old RPG for the nostalgic, or not only that. Today, distrust and fear of government is as high as it has ever been. The fear and uncertainty around digital technology is as great as it has ever been, although it has shifted; it is not, as it was in the mid-80s, so much fear of being displayed by this new thing, the desktop computer; more, it is fear that scumbags will hijack your computer for their own ends and steal your financial information and destroy your reputation; that the Powers that Be will monitor your online behavior, to sue you into submission, or to indict you as a terrorist, or a child molester. That companies like Microsoft and the record labels will limit and restrict your freedom in ways no one could previously have contemplated.
The basic themes of Paranoia--totalitarianism, fear of technology, mistrust, and loathing--are, if anything, more relevant than they were in 1984, or whenever the fuck it was we published this thing first.
.... Networking. Spammers. Scammers. Blackhat hackers. Weapons of mass destruction. Totally dysfunctional government. Paranoia XP is not an excercise in nostalgia. Paranoia XP is today. Paranoia XP is what we're living through--writ large, and excessively, and humorously.
.... We need to encompass everything that has happened with computing technology over the last twenty years: the universality of digital media, the Internet, the cultural struggle over intellectual property. Information wants to be free. But nothing is free in Alpha Complex.

Reading the PARANOIA blog is treason. Treason is punishable by summary execution. Have a nice day.

Comments (1) + TrackBacks (0) | Category: Games

February 02, 2004

CyberCafe Ordinance Decision - First Amendment Victory - Privacy Defeat

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Posted by Ernest Miller

Larry Lessig has written a brief note about a California Appeals Court decision that eviscerated privacy rights in cybercafes (mandated telescreen upheld). There is a Law.com article here (Internet Cafe Ordinance Sparks War of Words). Read the decision (Thany Thuy Vo v. City of Garden Grove [PDF]). The issue that has Prof. Lessig rightfully incensed is an operational requirement for cybercafes that forces them to monitor (read over the shoulder) what people are doing on cybercafe screens, whether it is reading email, browsing the web or playing a game of Counter Strike. However, there are other major issues involved and the decision has some very important victories in it for those who care about the First Amendment.

...continue reading.

Comments (5) | Category: CyberCafes | Freedom of Expression | Games | Privacy

January 16, 2004

Dress Warm in North Miami

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Posted by Ernest Miller

C|Net News has published a Reuters wirestory on yet another First Amendment-violating anti-violent games law (Florida city targets computer game violence). Mayor Joe Celestin of North Miami City is apparently offended by the line "Kill the Haitians" in the videogame Grand Theft Auto: Vice City, calling the phrase "incitement" to violence.

Retailers would be fined (up to $500/day for repeat offenders) for renting or selling violent videogames to minors without parental permission (although one wonders why anyone should have access to the games is they are "incitement"). Violent videogames being games in which players kill or cause harm "to a human form." This is sooo not-Constitutional.

There is a great quote in the story:

"Have they ever watched Cartoon Network?" North Miami video store owner Bob Richardson told the Miami Herald newspaper. "It's the most violent network on television."

Grand Theft Auto: Vice City was partially inspired by the classic Al Pacino movie Scarface, which had the following quote, which seems apropos.

You wanna waste my time? Okay. I call my lawyer. He's the best lawyer in Miami. He's such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Games

Why Not Run Your Own Game Server?

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Posted by Ernest Miller

Terra Nova has an interesting little article on so-called "rogue servers" that host MMORPGs (Free Rogue Server Achieves Significant Population). Most, if not all (any P2P MMORPGs out there?), MMORPG are based on the client/server model, where each user has a client that talks to a centralized server. The client programs are either sold for a one-time fee or given away. The business model is based on charging subscriptions for the client programs to have access to the server. The issue of rouge servers arises when hackers reverse-engineer or obtain by other means the server software and begin running their own servers.

From a free speech and copyright overreach point of view there are serious legal and policy issues in any attempt to thwart many of these "rogue servers." See, EFF's work on the Blizzard v. BNETD case for some details on some of them.

The discussion on Terra Nova is quite interesting and there is the suggestion of franchising the running of servers. But why not go farther? Compete with these rogue servers by creating server subscriptions. That is, you can have a client and subscribe to the main server farms, or you can run your own server (for you and your friends/clan, perhaps). As a server manager, you subscribe to a service that keeps your server up-to-date with patches and new content (which you use to keep your friends happy).

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | File Sharing | Games | Open Access | Open Standards

January 13, 2004

Mod-Chipping Legal in Italy

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Posted by Ernest Miller

Thanks to Derek Slater for pointing out an incredible decision in the Italian courts (Mod-Chippers Win in Italian DMCA Case). I'm not terribly familiar with Italian law, so I have no idea how important this decision is, but it is wonderfully drafted, though lacking the copious footnotes of a US decision. The decision, which was first noted by IP Justice, essentially defends mod-chipping of consoles vs arguments based on the European version of the DMCA as well as on copyright grounds (Italian Court Rejects First EU Copyright Directive Seizure). Read the decision (English translation by Electronic Frontiers Italy) here: Tribunal of rehearing of Bolzano. The original Italian here: Tribunale di Bolzano.

The arguments are very straight forward, mostly hinging on the rights of the consumer to make whatever private uses of the device they want. Although it is acknowledged that mod chips can be used for playing infringing versions of games, that is dismissed out of hand in light of the numerous legitimate uses enabled, such as avoiding region coding, allowing third party game developers, making backup copies and using the PlayStation as a computer.

Indeed, the court seemed most enamored of the use of consoles as full-fleged computers. For example, there is this quote (something similar will eventually arise in US courts as well):

Ironically, [it is Sony who first] had supported strongly the thesis that a playstation is a true computer and not just a game console, when asked by the EU to pay for custom duties imposed over the consoles (while computers aren’t subjected to this tax).

Ooops. Avoid those taxes, create an opening for the argument that the PlayStation is a computer (the use of which should be unrestricted). Later, the decision notes that:

But if the device [Xbox], with a few hacks, may run Linux, why in the world shouldn’t a user be free of use it in all the ways he likes?

Good stuff. Unlikely to be persuasive to a US judge, but great news for the Europeans.

Comments (1) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Games

November 15, 2003

Second Life and Machinima

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Culture | Games | Machinima | The State of Play

America's Army for Xbox?

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Games | News | The State of Play

November 14, 2003

Games as Speech

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Posted by Ernest Miller

One of the issues near and dear to my heart.

Rebecca Tushnet

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.

UPDATE 1240 ET
UPDATE 2 1245 ET

...continue reading.

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Blogging the State of Play

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Posted by Ernest Miller

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Century 21: Property, IP and Creativity in the Virtual World

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Posted by Ernest Miller

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]).

UPDATE 1030 ET
UPDATE 2 1035 ET
UPDATE 3 1045 ET
UPDATE 4 1100 ET

...continue reading.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play

New IP Rules for Second Life

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Copyright | Games | The State of Play

November 09, 2003

America's Army 2.0 Released

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Posted by Ernest Miller

If you are not familiar with it, you should definitely check out America's Army, the videogame produced for and about the US Army. The videogame itself is excellent and the concept, videogames that stress realism as a recruiting tool, is not exactly revolutionary, but not far from it. The game itself has been out for a year now, with a major update released just this past week. For a good overview of the game and some of the issues being raised, see this Chicago Tribune (reg. req.) article (Army targets recruits with new game). Once you've read the article ... give the game a try. It's free and if you don't want to hassle the 500MB download, get a copy on CD from your local Army recruiter.

via En Banc

UPDATE 0915 PT

MIT's Technology Review has an interesting article regarding some of the issues surrounding realistic war-based videogames (War Games). The article discusses America's Army, of course, but also September 12th. There is also quite a provocative quote from one game company:

In a world being torn apart by international conflict, one thing is on everyone’s mind as they finish watching the nightly news: 'Man, this would make a great game.'

It'll be interesting to see where Kuma Reality Games goes with their news-based game Kuma War ("From the Headlines to your PC").

Gonzalo Frasca, a game theorist and author of September 12th, thinks his ideas were somewhat misinterpreted by the article (Henry Jenkins on War Games).

Comments (0) + TrackBacks (0) | Category: Culture | Games

October 28, 2003

Videogames Big in Baghdad

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Posted by Ernest Miller

According to the Iraqi blog Healing Iraq, "videogames are a huge part of [Iraqi] society" (Gamers of the world...UNITE):

Almost everyone I know, regardless of their socioeconomic status, either owns a console or has regular access to one. Almost every neighbourhood in Baghdad has what you might call a 'videogame cafe' with several consoles where people can play for about a dollar an hour.

LAN parties are also quite popular. Interesting.

via Due Diligence

Comments (0) + TrackBacks (0) | Category: Culture | Games

Fictional Quebecker Terrorists Out of Bounds

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Posted by Ernest Miller

The Globe and Mail has an interesting story about Sony Computer Entertainment America and some changes they've made to their upcoming game "Syphon Filter 4: The Omega Strain" (Sony deletes separatist terror attack). The game's story involves a fictional world-wide terrorist organization that intends to release a deadly biological weapon and takes place in Chechnya, Yemen, Brazil, Uganda, Myanmar, Tokyo and Toronto. All the terrorist groups are fictional, and the elements of the game set in Toronto are no different, except that the virtual terrorists are radical Quebec separatists. As in most videogames of this genre, you kill lots and lots of virtual terrorists. The idea that you would be shooting Quebeckers, however, has upset Quebec politicians and the public outcry has forced Sony to remove the offending elements of the game.

Sony is going to enjoy having set that precedent.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

October 27, 2003

Fire Rages - Hundreds of Thousands Left Without Gov't

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Posted by Ernest Miller

Yesterday, the excellent Terra Nova reports that a real life tragedy, the Southern California firestorms, has knocked out support services for two of the most popular MMORPGs - Star Wars Galaxies and EverQuest (Earth Fires Destabilize Virtual Governments). From Sony:

All Sony Online Entertainment customer service support is closed due to the wild fires raging throughout San Diego and the proximity of those fires to the SOE offices. Normal operations will resume once this local emergency is over.

In the words of Terra Nova's Edward Castronova:

In other words, a firestorm has knocked out the government that rules over 750,000 accounts. There will be no police officers on the streets tonight. If you're in the mood to do some random looting and griefing, now's the time. [Link added]

We tend to think of synthetic worlds as decentralized because the users are spread over the globe. They are still highly centralized on the production side, however, a state of affairs with clear implications for the relationship of synthetic worlds not only to Earth's weather, but to its politics as well. This time it was a fire; next time, it might be an injunction. [emphasis added]

Yep.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Games

October 19, 2003

Endgames: Waco Resurrection Debuts

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Posted by Ernest Miller

C-Level is a videogame art/lab based out of a basement in Los Angeles' Chinatown. This past week they debuted Endgames: Waco Resurrection, the "first chapter of Endgames, a new 3D multiplayer computer game series based on alternative utopias and apocalyptic moments." Waco is, of course, about the Branch Davidian tragedy of 1993:

Each player enters the network as a Koresh and must defend the Branch Davidian compound against internal intrigue, skeptical civilians, rival Koresh and the inexorable advance of government agents. Ensnared in the custom "Koresh skin", players are bombarded with a soundstream of government “psy-ops”, FBI negotiators, the voice of God and the persistent clamor of battle. Players voice messianic texts drawn from the book of revelation, wield a variety of weapons from the Mount Carmel cache and influence the behavior of both followers and opponents by radiating a charismatic aura.

Fascinating stuff.

Comments (8) + TrackBacks (0) | Category: Games

October 16, 2003

The Public/Private Distinction in Gaming Servers

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Posted by Ernest Miller

Furdlog points to an article on private gaming servers in the Boston Globe (Using private servers, clubs keep serious players in, headaches out). For many PC games you can play via the internet, such as Battlefield 1942 and, of course, Counter-Strike, you need a server to act as a host for games. A server can either be public (anyone can come play), semiprivate (the server's managers can restrict entry), or private (only members can play). Playing on a public server is free, while semiprivate and private servers cost money to run (though the price can be spread among the members). Interestingly, fully private servers are less expensive to run than semiprivate servers.

But if playing on a public server is free, why pay money for a private server? The reason is that the public servers are full of lame-os, cheaters, flamers, etc. The public service is degraded and people are willing to pay money to ensure reliability and quality. Hmmmm ... sounds sort of like an argument I've heard before (How the Future of File-Sharing Might Be Like Sex).

Comments (0) + TrackBacks (0) | Category: File Sharing | Games