The Transition From Art to Entertainment: Copyright’s SystemFailure()

Transistor is really, really beautiful. Through every minute of play, I truly enjoyed the graphics, the game design, the story, the characters, the artwork—I even have the soundtrack on my iPod. It has some astonishing aesthetic quality. All of that said, I did not particularly enjoy playing it. The combat was awkward and annoying, the customization feature was poorly explained, and I never felt like I’d really accomplished anything more than some bothersome errands.

Transistor succeeds magnificently as a work of art. It fails as a piece of entertainment.

I’ve talked about games as art before, but I think a distinction between art and entertainment can help explain the perverse twists of copyright law we see today. One analysis of the current state of copyright is that it has not kept up with time, and even the DMCA provisions fail to bring copyright law fully into the digital era.

I.

Entertainment is marked by an ultimate aim at financial gain. Entertainment needs money. For this reason, it is often symbiotic with advertising. It is frequently exploitative [LINK] because it needs attention to thrive. It fails when ignored and succeeds when it sells.

Art wants to be enjoyed (or sometimes it only wants to express its artist). Art is probably the origin of entertainment, but art does not require the financial success that entertainment seeks. Art can be evaluated on aesthetic terms of beauty or expression, rather than ticket sales or ad revenue.*

II.

Copyright law is meant for entertainment, not art. Art does not have the same legal concerns that entertainment has because it does not have the same financial concerns. In the US, copyright law focuses largely on economic questions, not moral questions (as it is in Europe). The treatment of damages (money you can get if you win in court) in copyright law makes sense for large entertainment entities (e.g., movie studios or record labels) in the 20th century, though it makes hardly any sense when applied to small-scale artists and typical citizens in the 21st century.**

Most copyright laws are enforced at the discretion of the rights holder, and artists often decline to enforce their rights the way that entertainment companies do (though one reason could be the cost of enforcing those rights, rather than a desire to enforce them).

III.

Judges have always made a pointed effort not to make aesthetic judgments while applying the law. This means that both bad art and bad entertainment get the same legal rights. It also means that the law will not distinguish between art and entertainment.

Understanding this difference between art and entertainment makes sense of why an area of law is applied vigorously by some people and ignored by others. It also explains why smaller artists are less favorable toward many parts of copyright law while large studios are stronger proponents of strong copyright law.

Transistor is a good case study for illustrating this distinction. It is a game made and produced as entertainment, but it acts and feels more like art. I’m sure Supergiant studio would protect it as entertainment, as would [PUBLISHER??] and distribution services like Steam. And under US law, that’s fine. Just because something is artistic doesn’t mean it should be subject to piracy or hampered from monetization. But it’s worth remembering that the copyright law isn’t about protecting the artistic integrity or beauty of Transistor’s sounds and images—it’s all about protecting its potential to maximize profits.

Too many discussions around copyright law and reform fail to address this fundamental difference in the genus of media. Recognizing this distinction could make discussions about copyright (and copyright reform) much more clear and productive, and would help in presenting the issues at stake.

*Obviously, these traits can overlap and diverge: a work can be artistic and commercially successful, and a person can have goals of creating something beautiful and charging lots of money for it. However, a work can be evaluated independently under both of these categories.

** One of the exciting effects of networked digital technology is that it made the entire area of copyright law suddenly relevant to the bulk of the population (who previously had very little reason to think about it).

Games Can Be The Textbook, But A Teacher Is Still Essential

Only a villain would argue against the education of children, as a social policy. But despite all of the arguments about which curriculum is best or how to approach learning or education as an institution, there is little debate given to the fundamental issue of why we educate our young, and what it means to educate them. Presumably, it has something to do with nurturing or cultivating their intelligence. There are different theories of intelligence, different theories about the importance of intelligence, and different theories about how to increase intelligence. Some people also think that “increasing intelligence” is the goal of teaching. How we interpret the educational value of games reveals a lot about how we think these concepts (“teaching,” “learning,” “education,” “intelligence,” etc.) work.

Many of the educational games I played as a child were terrible. Not only did they fail to amuse or delight, but they also did a bad job of teaching me anything. Games can serve to educate both as the instructor and as the text. In the first case, we learn by playing the game alone. In the second case, we learn by sharing the experience of the game—often, by teaching it (or debating the method of play).

1) Games Teaching Us: Learning From Games

As Tycho put it: All games teach—it’s just a question of what they teach. Games can teach on three levels. At the surface, the strict content of the game is educational. Most of the “Educational” “Games” I’ve played are terrible because they think this is the only level at which learning can occur. A game can take, as its subject, biochemistry or European history, and present a great deal of material in an interesting, interactive way. However, games are generally more fun when they are more than merely clicking to turn the page of a storybook (though the storybook can be quite good). At the second level, games teach through the mode of interaction. This is the level of puzzles, challenges, and problems. This level requires observation, data processing, critical thinking, and everything else that games are nearly universally good for emphasizing. Often, playing a game at a high level requires excellence at these skills, and the best players will focus, carefully and deliberately, on honing these abilities. The third level is more personal, emotional, and meta. Games can be the medium through which we learn about patience, creativity, teamwork, persistence, and ultimately our own strengths and weaknesses. Each of these three levels connects with at least one serious theory about intelligence, and can cause students to develop transferable skills and mental prowess to be used outside of the game.

2) Sharing Games with Others: Learning From Ourselves

Inspirational posters have told me that people learn best the material that they teach to others. Those fuzzy animals may or may not have scientific backing for their claim, but it seems to be true in my experience. One reason may be that I have to think carefully about what I know in order to articulate or demonstrate it to my pupil. In the case of games, I have to think about how I execute a maneuver or why I make a particular decision. Sometimes, the teaching is more of a group therapy session—such as talking about horrible trolls and teammates after a game of League of Legends. The social interactions of games teach us valuable tools for interpersonal connection, both as we come in conflict with adversaries and as we communicate constructively with allies.

Conclusion: Gamification requires an excellent instructor.

There is an emerging trend in education called “gamification.” Skeptics assert that this is just an excuse for kids to be lazy and play mind-rotting, violent games in place of going to school. I think the best approach for learning through games involves incorporating them into a larger discussion and seriously reflecting on the experience of playing (or teaching) the game. Because games involve processing data, problem solving, and some social dimension (e.g., competition and/or cooperation), games are poised to be an excellent tool for education and instruction—if, and only if, their powers for holding the focus and attention of the pupils can be harnessed and directed by a skilled teacher.

The Easiest Target: Nazis in Wolfenstein, War, and the World

 Wolfenstein: The New Order is a game of killing Nazis. It is also a game about killing Nazis. It is about resistance of totalitarianism, about how and why we fight, and it rests securely on the accepted fact that Nazis are the enemy. I’m no defender of the Third Reich, but I have noticed how often we involve Nazis, symbolically, in our lives. We make films and video games about killing Nazis. In online debates, we often compare adversaries to Hitler or other members of the Nazi High Command (even if, according to some, this means immediate defeat in the debate). We frequently draw on comparisons to the Holocaust, the Weimar Republic, Sudeten Land Grabbing, Appeasement, the invasion of Normandy, Kristallnacht, or other major events, episodes, or people from 1936-1946. Somehow, that chunk of the 20th century manages to linger in our culture in some surprising ways. Not that it was unimportant or forgettable—it shaped economies and geopolitics in ways we still feel. However, I wonder why we have maintained such a cultural obsession with the manifestation of evil displayed in brown shirts and synchronized, high-stepping marches.

There are many possible reasons, each explored from diverse backgrounds and approaches. One relevant point is that Nazis intersect with US history in a way that many other genocidal totalitarian regimes do not. One factor that likely keeps Nazism as nugget of cultural dialogue is the place of World War II in public education: Everyone who gets half-way through high school (which is a lot of the US, and even more of the people who participate in public dialogue) gets exposed to the concept of 1930s-40s Nazi Germany.

I will draw on Wolfenstein: The New Order to consider three points about the continued use of Nazis in media and culture. I will consider two of these points from the game with comparisons to Just War Theory.

                Over 1,000 years ago, St. Augustine developed an explanation to reconcile Christian values of peace, love, and harmony with the apparent need for the Holy Roman Empire to defend itself (or aggress against others) through force of arms. In the 1960s, an American philosopher re-examined this “Just War Theory.” He explained that there were two levels at which one may evaluate the ethics of warfare: jus ad bellum and jus in bello. The first is an analysis of the reasons for going to war (defense of homeland is a better justification than an aggressive act to amuse the aristocracy). The second level considers the way in which the war is fought (on battlefields, by designated combatants is considered more ethical than secretly releasing biological weapons in the water supply of non-combatant civilians). Philosophers, political scientists, soldiers, and others have debated on many points for the last 50 years, and it continues to be re-examined and refined. I do not necessarily support or defend it, but I find it a useful tool for this examination.

1) We feel justified in making war against Nazis. During the final boss fight of the game, the enemy rebukes the player for killing so many soldiers. He accuses the player of killing husbands and fathers, honest working men. Just War Theory holds designated combatants, such as soldiers, as entering warfare willingly and knowingly. Perhaps it was less clear in 1941 than it is in 2014, but there is no doubt that stopping the advancement of the Nazi agenda could be among the highest justifications for a declaration of war. A lot of it is the result of cultural conditioning, but it is nearly impossible to understand Nazis as anything besides the enemy—or to feel that they could or should be anything else. In a society that has grown to question whether we can really label things “good” or “bad,” and promotes that we need to be “more tolerant,” Nazism remains unquestioningly bad and the tolerance thereof remains entirely impermissible. We might describe Nazis as “always already in the crosshairs,” as they cannot be understood except as a villainous target.

2) We feel justified, even obligated, in resisting evil. We feel free to exercise all available means in undermining them. This is more a matter of jus in bello. Around the midpoint, the game presents the player with a variety of diary entries from a young woman (“Ramona”) who carries out a series of terrible, sometimes brutal, attacks against local Nazi soldiers. Her methods straddle some line between guerrilla-warfare resistance, assassination, and terrorism. And yet, despite the horror and gore—indeed, because of it—, one may feel almost sympathetic for her as she struggles against her enemy. A key element of Just War Theory is proportionality: it is unethical to respond to the throwing of a stone with nuclear annihilation. But if your oppressors deceive, rape, murder, torture, slaughter, pillage, and inflict all manner of suffering and agony (particularly beyond what is necessary to achieve military success), there is a case for the use of deeply subversive methods. Ramona’s diary entries reminded somewhat of the film The Battle of Algiers, which depicts the struggle for Algerian independence and considers the question of what methods or forces are ethical or reasonable for both sides to use.

3) Our cultural stance against Nazis goes beyond warfare and violent resistance. It saturates our dialogue, our debates, politics, and judgments. Nazism has become a landmark on our ethical landscape: we orient ourselves, and our judgments, between evil and good by locating Nazism and relating the subject of our judgment to that point. The closing cutscene of Wolfenstein: The New Order includes a recitation of the poem inscribed on the Statue of Liberty. That landmark and its inscription are symbolic of a set of values entirely antithetical to those of Nazism.

Nazis are easy to hate, easy to kill, always wrong, and everyone knows it. The inscription (and other texts and documents precious to the fabric of cultural ideals) is not about death and destruction. It is about life and creation. That oppression must be resisted and that sometimes violence must stand against violence seem an unpleasant realities (necessary or not) of this world.  However, there is more to evil than Nazism, and there is more to goodness than slaughtering Nazis.

A Pandemic of Buttcheese: How Shame Ended the Human Species

                One of the games I scooped up in the Steam Summer Sale was “Plague,. Inc.” I played a version of this on Newgrounds many years ago, and I only found out that there was a tabletop version of it a few months ago when it I found it played on Wil Wheaton’s “Tabletop.” The mechanic of the game is the creation of a disease and management of its evolution, symptoms, and resistances as it spreads and infects the human population of Earth. The goal is to infect and kill everyone in the world, while avoiding being cured and eradicated. At the start of the game, you can name your disease. Because games are meant to be fun, I choose something immature and amusing: I called the disease “Buttcheese.” I don’t know what it meant, but I knew that I didn’t want to know.

                Over the course of about 3 years, Buttcheese infected and killed every human on Earth. One problem was that it went almost 2 years before getting noticed, by which point it was spreading within every country. The fun part about a game like this is that when presented with bare facts and data, you are free to craft your own story to connect the data. As I watched humanity succumb to Buttcheese, I wondered: How did it all come to this? How did so many tens of millions get infected without any report, without any notice?

                I created a story to explain it. You see, whatever Buttcheese is, it’s embarrassing and unpleasant. It’s taboo and shameful, and no one wants to talk about it. Even if you have it, and everyone around you has it, you just don’t talk about it. You just live with it, and don’t think about it or talk about it. Especially, you wouldn’t admit it to a doctor. People don’t like to feel awkward, uncomfortable, or ashamed. So, in order to avoid shame, millions of people remained silent about the subject of their ailment. Buttcheese went unnoticed for years. Then it killed everyone.

                What did more to destroy humanity: The pulmonary edema that evolved as a symptom of the disease, or the shameful stigma that prevented any kind of honest discussion about the disease before it was life-threatening?

                The feeling of shame goes deep in humans. We think of those without a capacity for feeling it as severely ill and dangerous (“sociopaths”). Shame is a key component of developing and enforcing social norms that hold communities together. Inasmuch as Lessig is right to posit “norms” as a type of law, shame is a sort of internal officer of the law.

                In the 21st century, many of us are interested in breaking free of shame. We want to feel free from the oppression of societal norms that we think are unfair. Maybe there was some kernel of this in the counter-culture revolution of the 1960s and 70s, though it was articulated a little differently. Brene Brown has done some great research on the relationship between vulnerability and shame. One of her findings was that although shame often caused disconnection from others, vulnerability was necessary to forging meaningful connections with others.

                Although shame can feel isolating and oppressive, I think it can be a signal to take action. That the pretend inhabits of my Buttcheese-infested world felt shame is understandable. But their shame led them to be silent and blind about their condition, and they were ultimately destroyed. What if their shame inspired them to take action to cure what ailed them? When we feel shame in our own lives, we usually have a choice as to our reaction: we can withdraw and disconnect, or we can work to identify and resolve the cause. Feeling bad is a sign something is wrong: pain tells us of physical threats, and impels us to remove ourselves from danger. Maybe shame isn’t really so bad if we use it as a tool to seek a cure for our ailments rather than use it as an excuse to not talk about them.

Escape Through the Creation of Play: Owning a Story.

[In a summer swamped with regulatory policy about telecommunications and copyright and patent law, I should have at least one blog entry that actually relates to a game.]

I’ve never felt completely comfortable with the name of one of my favorite games journalism outlets: “The Escapist.”
Shouldn’t games and entertainment be about something besides escape?
What’s so wrong with our world that we spend so much time trying to escape it? We consume (to the point of addiction) so much: music, movies, drugs, alcohol, physical relationships, food, fashion, money- anything to try to get us distracted for a few minutes and put just a few molecules of dopamine in our brains to help us (as the ballad goes) “forget about life for a while.”

I thought that all of this was only tangentially related to games until I played through the Borderlands 2 Down-Loadable Content, “Tiny Tina’s Assault on Dragon’s Keep.” It’s a fun game- filled with lots of humor that is by Nerds, for Nerds. Especially, Nerds who have played Dungeons and Dragons (or some similar tabletop gaming). It’s what I think DLC should be: Mostly more of the same, but with a few slightly-new monsters and levels.

Borderlands is proud to be macabre—it’s filled with gore, a cartoonish disregard for life, comic over-celebration of excessive force and explosions. It’s an FPS in a long tradition of FPS games, and it recognizes what it is and celebrates it. In the reflexive nature of my generation, it’s a game that recognizes it’s game-ness, and plays a game with its own recognition of itself as a game. Then it recognizes how pretentious that sounds, laughs it off, and encourages gore and explosions. But in “Assault on Dragon’s Keep,” the characters and that meta-recognition took a turn that wasn’t so much uncharacteristically dark as it was uncharacteristically sad.

The fantasy game (which provides the setting for the DLC) is ultimately revealed as a coping mechanism for one character to deal with the death of her quasi-father-figure in the main game. In the climax of the story, other characters tell the bereaved that her guardian is dead and cannot be imagined back to life. Overcome with grief, she cries out, “I know,” and, through soft sobs adds, “but it’s my story.” The other characters gently allow her to end her story happily, in the way that the world of the main game (between the fantasy world of the DLC and the world of the player at the screen where you sit reading this blog) did not.

There are 3 lessons to take away from Tina’s coping in this DLC.

1) You must recognize the difference between the game and reality. Tina knew that Roland was dead. She knew that she was trying to deal with that pain. She knew that Roland would remain dead no matter what happened in a game she created. If any of Tina’s coping is healthy, it’s because she knows the truth. I think the reason I squirm at the thought of games as “Escape” is that it’s an unhealthy effort to pretend that the world just doesn’t exist. I think emphasizing that distinction helps put a healthy context to what a game is and can be.

2) The storyteller tells the story. I almost wonder if this is a response by a game studio to a consumer base that often seems to think they know better. I didn’t get involved in the Mass Effect 3 ending debacle/conflagration/fiasco. I don’t know the details. But I do know that gamers and fans – whether for webcomics, games, business decisions—are quick to tell artists, designers, programmers, marketing executives, etc. when they’re wrong. It’s good to have feedback. It’s good to take your customers into account. It’s good to think of the audience.

3) The game is a story, and playing is both active and passively engaging that story. I don’t really know if telling stories is useful, good psychological therapy or if it’s incredibly dangerous and unhelpful. Right or wrong, people deal with their pain, grief, and stress with artistic outlets of all kinds. Creating a story to deal with pain is not uncommon: the graphic novel for the story “The Crow” was born out of grief for an unexpected death.

I don’t know of any instances of creating interactive entertainment as a way of coping. I’d be interested to know the opinion of clinical psychologists and therapists as to whether creating dynamic, interactive media is substantially different from the therapy of other artistic outlets. Or, for that matter, if interacting with the media is substantially different. I’ve seen a lot of uses of interactive software for physical therapy, and even some uses of basic puzzle-solving games as a way of preventing the onset of Alzheimer’s disease—but I am completely without bearing as to the possible emotional therapeutic potential of interactive media. I think if there is a therapeutic medicine in it, it’s related to the ability to take control of a situation— to create a result through your play.

7 Words Around the Hearth[stone]: A Game Between Structuralism and Post-Structuralism of Limiting Meaning

“Talking, talking. Spinning a web of words, pale walls of dreams, between myself and all I see.”

Grendel, by John Gardner

I’ve played a few games of Hearthstone. With no serious experience with either World of Warcraft or trading card games (like Magic: The Gathering, or Yu-Gi-Oh or even the Pokemon card game), I’ve still had quite a bit of fun.

In one game, an unexpected bout of hilarity ensued as my opponent and I began selecting random emotes incessantly throughout the game. It was silly, nonsensical babble: two apologies, followed by an expression of gratitude and then a salutation was met with an admission of error, two threats, and two congratulatory remarks. As a fan of both surreal comedy and comedy that turns on wordplay and tricks of language, I was immensely amused. The punchline of this joke is the impossibility of understanding meaning.

There are 6 options you can select to convey “Emote” in Hearthstone:

“Thanks”

“Well Played”

“Greetings”

“Sorry”

“Oops”

“Threaten”

But these words are isolated. They are not connected to larger ideas, facial expressions or body language. Consider the extent of a rudimentary conversation that could be had through the use of these emotes. The difficulty (or impossibility) of conversation can be explained with the models of structuralism and the response offered by post-structuralism.

Structural linguistics is the approach to language that says words are part of a web of meaning. Generally, it’s about structure (surprised?) and connection. We know what something means by the way it connects (or does not connect) to other things- like how the word “chair” connects to our concept and image of the actual thing (or idea of the thing) we associate with that word. (On some views, an authority figure looking at you while pointing to a chair in a room and saying “chair” might further convey an edict for you to be seated in the indicated chair- all of these parts being further parts of the web.) Any single node on this web, by itself, can do very little (or nothing at all). For structural linguists, meaning lies in interconnection between words and concepts, which then gives interconnection between speakers and audiences. We base a connection on the words that are thrown at us because we see the connection between the words, the concepts behind the words, and the interlocutors or subjects involved. One interpretation from structuralism is that the speaker intends a meaning, and understanding meaning is a matter of aligning the mind of the audience with that intended meaning of the speaker.

Post-structuralism is skeptical of this model. One alternative suggests that meaning must account for intent of the audience, not just the speaker (a lot of post-structuralism uses the underlying theme of wresting power from authority). From here, different thinkers have different specific ideas of what this looks like. Some models are chaotically radical, but this general concept plays out in the game of Hearthstone: the limits of the available emotes put more power in the hands of the audience to interpret meaning. But the difficulty of any serious communication is that we would almost never be very satisfied that the minds of the two players are in harmony. We cannot be sure that the audience has grasped the intended meaning of the speaker. We cannot even be sure that the speaker had a meaning (a non-English speaker could be clicking on emotes, or an animal, or even a computer could be programmed to randomly select emote- all of these possibilities raise questions which are the subject of many works in philosophy of language).

The fun irony in all of this is that the hearth was the traditional gathering place for small, intimate collections of humans, where ties were forged and strengthened as emotions found connections through full human expression. Now, Hearthstone represents the opposite of civilization’s precedent, as two strangers struggle with basic communication in order to make some sense of their trifling, playful competition. Around the ancient hearth, words formed a sacred connection among humans as they came to understand the meaning of one another. In Hearthstone, words (re-imagined as “emotes”) mock meaning and the idea of understanding can only be the subject of a cruel, surreal, post-structuralist joke.

Software [Non-]Ownership: EULAs and Thinking About Property

We don’t really own most of the software we buy. As one writer put it a few years ago, “the software on my computer may as well be tied to a long piece of elastic, just waiting for the publishers to give it a tug.” That “piece of elastic” is a license, as in “End User LICENSE Agreement.” Almost all of the software we buy- especially what we download rather than physically purchase- is licensed to users by publishers and developers. These licenses vary from one piece of software to another*, but for a lot of games, the licensor (publisher or developer) has the legal right to take the game away from the licensee. Usually, the licensor will include specific reasons why they might do this, but will often round out the list with something like “or for any other reason.” There are not many limits on what this license cannot contain, must include, or how it has to be structured.

This model has been around for a long time, but I think it is fast becoming a serious problem. The core of the problem is that almost all users think, feel, and act as though they do own the software they have purchased. The American concept of property is still fundamentally rooted in John Locke’s Second Treatise of Government (a text that was a tremendous influence on the Founding Fathers and early US statesmen, politicians, and writers): if you work on something (or pay for it, or both), you have a claim of ownership on that thing. It is how we understand all of the other ownership paradigms in our society, and makes it easy to determine where ownership begins and ends. I cannot think of a single instance where one might purchase a physical object and not have full ownership rights over that object. Any arrangement where something is transferred with some kind of “elastic string” still attached is not called a “sale.” It is called “renting,” “leasing,” “borrowing,” or possibly “putting under mortgage.”

For most American minds, the concept of a “sale” includes the concept of a complete ownership transfer. I think it is easy to consider this one of the central reasons why there is so much resistance to copyright law, digital piracy laws, and other abstract controls on ownership of non-physical property. The laws that guide physical property do not apply to digital property, even though the only model we have for thinking about digital property is our history of thinking about physical property (Locke). A key point of contention is whether the legal concepts underpinning physical property must be different from the legal approach to digital property. The fact that US law does take these two different approaches does not mean that US law must take these two different approaches.

It may turn out that changes in net neutrality will affect how publishers and developers rethink this business model. As internet use becomes a worse experience, especially for data-intensive games, it is more important that companies ACTUALLY sell the product, not just license it. A data-choked internet will increase the need for offline gaming. It will create a whole new level of challenges for always-online DRM and increase the potential for server-crashing launch fiascos (e.g., Diablo3 and SimCity). A big reason that companies went to online-DRM models was to combat piracy. If net neutrality slips away, the ISPs might make piracy difficult enough (intentionally or unintentionally) to make developers feel more comfortable with moving to a sale-not-license model.

The only games currently practicing this kind of model are “abandonware” games: games whose developing companies have closed up, or have simply allowed their works to pass into the public without fuss. It is not clear that all presumed “abandonware” games are actually “orphan works” according to actual US copyright law. Indeed, a lot of games I’ve seen peddled under this banner are decidedly NOT orphan works and are not subject to the same freedom of transfer that the seller implies. But the videogame world operates on the legal principle of developers declining to enforce their civil rights against consumers as heavily as its programmers rely on the principle of “last in, first out.”

*I think the analysis is different for different software. Stricter license make sense for, say, reduced-cost versions of editing, publishing, or creative suite software for “Academic Use Only.” My position in this post is certainly not that “all licenses are bad,” or anything remotely close to that sentiment.

 

EDIT/ UPDATE:  Another recent blog post on this subject, from a slightly different angle.