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:


“Well Played”





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.


Public Performance, Performing Public.

TwitchPlaysPokemon” has a morbidly fascinating quality. I was never very in to Pokemon- despite my best efforts-, but TPP is like watching one of those funny animal GIFs, except with much longer watchability.

I’ve found really interesting, both culturally and legally. I’m still unreasonably elated about the idea of videogames as a professional spectator sport, but the potential for legal issues for Twitch’s service (EULA and ToS agreements not withstanding) is deeply fascinating. I think TPP is a great example of what I mean. I am going to be overly broad in this analysis to make a more general point about how new uses of new technology challenges copyright law. A more thorough explication of the details of this issue can be found here.

The core legal ISSUE I want to pick on is the potential to claim that Twitch Plays Pokemon is a copyright infringement. Of course, copyright law is aimed primarily at prohibiting the distribution of unauthorized copies of a work to the public. Copyright law also prohibits unauthorized works based on an original work. These are called “derivative works.” Derivative works can be permitted either if the original author gives permission, or if the new work is fair use.

THE ANALYSIS hinges on how we define TwitchPlaysPokemon. If TPP is a way to allow thousands of unauthorized users to use a product, it’s definitely infringement. This is the argument that it’s basically Napster for Pokemon- you log on, you play a game made and owned by Nintendo that you didn’t pay Nintendo to play.

In contrast, we might define TPP as a new experiment in gaming perspectives; a sort of social performance art project. We might highlight the difference between playing Pokemon, alone and on your own personal device, and playing Pokemon with thousands of other simultaneous users, with confusing and incoherent gameplay. Seen this way, TPP is derived from Pokemon, but is Transformative: something new and original has been added that changes the fundamental character of the copyrighted work. This transformative quality (if it exists), combined with the point that TPP is a non-commercial project (at least to some extent; let us suppose that the creator is not monetizing views), is a strong case for finding an exception to the derivative works rule under fair use (see Campbell v. Acuff-Rose, 1988).

THE POINT is that I personally favor the argument that TPP is transformative, even though most legal minds seem likely to agree that it is just an infringing derivative work. I think there’s good reason for lawyers to think that way. If it went to court, I think the law favors Nintendo’s side. But this is why I think TPP (and Twitch, generally) is an interesting innovation: it raises some new twists on IP law, and the outcomes aren’t always clear, obvious, or incontrovertible.

Of course, the BUSINESS bottom line is that Nintendo probably doesn’t want to raise any of these legal questions or file any kind of legal action because the free advertising is amazing. Pokemon probably hasn’t gotten this much buzz in at least a decade- why fight that?

“Realistic” Simulations: Foreboding in Alito’s Concurrence in Brown v. Merch.?

In June of 2011, the US Supreme Court struck down a California law that wanted to prevent the sale of violent or “adult” videogames to children who did not have parental permission. Scalia wrote the majority opinion, and for him it was a mostly clear-cut First Amendment case: Videogames count as the kind of protected speech that is covered by the free speech clause, and the California law gets in the way of that free speech. Straightforward. (The two dissenters wrote separately: Thomas took up the issue of parents, minors, and law, while Breyer took issue with an apparent incongruence in curtailing the sale of pornographic magazines and films but not of potentially pornographic videogames.)

I found the concurrence by Alito (joined by Roberts) particularly interesting. Alito still thought the law should be struck down, but seemed less sure than Scalia that video games were just another medium of expression, just like books or motion pictures. After playing some violent videogames, Alito writes, “[s]ome amici who support respondents foresee the day when “ ‘virtual-reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel the splatting blood from the blown-off head’ ” of a victim.” Alito goes on to criticize Scalia’s opinion for failing to recognize differences of interaction between video games and other media.

As a Justice of the Supreme Court, Alito’s role is to look to arguments and evidence as presented. I am not so restricted. I propose three different lenses for considering Alito’s concern to evaluate whether it is justified: psychology, phenomenology, and Aristotelian catharsis.

1) Psychology. By psychology, I mean both clinical analytic psychology and something closer to neuroscience. Given the right scientific tools, the experiment is an easy one to conduct: subjects are exposed to a book, a movie, a platformed video game, and an immersive virtual-reality simulation each depicting the same act of violence. The brain of the subject is monitored (using MRI or whatever is better by the time such an experiment occurs) and the brain activity for each stimula is compared. This would, at least, determine whether there is a difference in the way the brain interacts with different media. Psychologists would also be able to observe and interview subjects to provide another means of evaluating the effects of each medium.

2) Phenomenology. Here, I mean “metaphysics through the filter of experience.” The ardent scientist might derisively call this approach “science without the hassle of experimentation.” While I think philosophy is no substitute for science, I also think science is no substitute for philosophy, and the two ought to go together as they did before the 18th (or 17th) century. The core of this approach is determining the distinctions between experience, imagination, imagined experience, and experienced imagination. I think there is a need for considerations from the field of aesthetics in determining just how we so casually mentally suspended reality to allow ourselves to be “drawn into” books, shows, plays, and now videogames. Until science can probe the brain effectively, it is here that we ask questions like “If movies and videogames become visually indistinguishable from reality, will the two media also be equally experiential?” And I think most phenomenologists (particularly Merleu-Ponty) answer “No.”

3) Catharsis. Until my last year of college, I did not know that the ancient Greeks performed their plays as part of very big festivals, a core part of which was tremendous mourning and wailing and weeping in response to the tragedy presented before them. Knowing this gives context to why Plato despises poets and playwrights, and why Aristotle thinks this is even a subject worth discussion. There are two understandings of what Aristotle meant by Catharsis in this context. One school holds that he thought it was important to let loose a torrent of emotion in the way the Greeks culturally did, and so cleanse their emotions. A different approach is that Aristotle believed emotions were to be expressed in the right way and for the right reason, and the expression of sorrow, as a community, at a tragic story, is an appropriate expression of emotion. We might ask whether hyper-real videogames are a positive outlet of catharsis, and it may be that the answer turns on the sort of videogame one plays.

Baudrillard famously addressed issues of simulation in the post-modern context. He probably argued that as we understand reality in terms of simulation, our reality becomes the simulation, and the simulation becomes our reality. For him, this was a way of understand post-modern society, politics, economics, and culture. A version of his reasoning might one day become a way of understanding our relationship with technology we used to call videogames.

The Bitter and Sweet Saga of Trademarks

I am not a lawyer and this is not legal advice. (If my blog was more legally-themed, I might have given it this title.)

TL;DR/WR: Trademark law is more complex than the angry mob imagines. Candy Crush can only get limited protection (if any), but there are reasons to protect the name of your product. Trademark law isn’t “broken” just because someone may have tried too hard.

I was ready to give up on ever blogging about law and videogames again. I thought there might opportunities for broader technology-and-law issues, but I felt that my posts on videogames and law were inorganic, forced, unclear, and boring.

     Then, the makers of “Candy Crush Saga” decided to file for a federal trademark registration. And lo, the analysis by the critics and journalists was poor. Not that I blame them- but I’m happy to write about something I’ve actually studied and grasped and is based on existing law. Most emerging videogame law issues are just massive question marks with no prior cases or statutes to guide an analysis. Trademark law still has its wrinkles and questions, but it has a lot of established material to consider.

     THE ISSUE, as I understand it, is that developer King has decided that its product “Candy Crush Saga” is valuable enough to protect as a trademark. Accordingly, it has filed for a federal trademark registration (currently pending and open to comment) and has opposed the trademark registration of “Banner Saga” by developers of the recent release “Banner Saga” for use of the word “Saga” in a videogame title on the basis of likely consumer confusion.

     Few people in the games journalism world seem pleased about any of this. Leading the angry pack, as always, is a profanity-laced rant by Jim Sterling, with Penny Arcade in strong agreement. Kotaku doesn’t like it, and neither does Joystiq  or Rock, Paper, Shotgun. Lots of gamer resources are taking note of the trademark dispute. Some have looked at a broader scope than others, but I have not seen any serious measure of support for the protection of the intellectual property of a product raking in approximately one million dollars per day in revenue. After reading a few emotionally charged reports, I am not so sure people fully grasp what trademark law is or why we have it.

      There are lots of interesting parts of trademark law, but the role of language is one of my favorites. The Penny Arcade comic hits at what I love about Trademark issues- they are wrapped up in language, and I love philosophy of language and linguistics. (I love copyright issues because of their relationship with metaphysics, but that’s for another day.) One of the tangles trademark law must face is to avoid allowing words to become property in a way that gets in the way of competition (or, more jokingly, everyday speech). But, as with other IP areas, trademark law is about more than words. It is about the effort that has gone into making an abstract into something valuable. Ten years ago, how many t-shirts could you sell with the words and logo of what we now know as the Candy Crush Saga logo? Maybe a few to some hipsters who treasure the obscurity? Would you rather own a store selling Candy Crush Saga merchandise today or try to sell the same merchandise 10 years ago? Trademarks have little market value until they are known. No one knows a trademark until a lot of work has gone into marketing, branding, and making a product that people like and care about.

     THE ANALYSIS is straightforward, once trademark law is rightly understood. All property law is an effort to sort out competing claims about ownership. While the subject of intellectual property law can’t be physically touched like the subjects of personal property or real estate can, it is still rooted in some Lockean  notion of “I worked hard for this and it isn’t fair for you to just take it for yourself.” Trademark law can be understood in this way: “A company works very hard to make the public associate its mark with its quality product. No one else is entitled to reach out and benefit from that effort for their own gain.” Trademark law allows a company like King to to prevent other companies from using the goodwill built up by King to promote other company’s products. (What if Coca-Cola tricked you into buying a Coke when you thought you were getting a Pepsi, or vice-versa?) Many of the journalists have pointed out that no one is going to confuse Candy Crush for Banner Saga, and consumer confusion is at the core of trademark law. If the court (or trademark examiner) finds that there is no risk of consumer confusion, King’s complaint will almost certainly be thrown out. But the fact that King can bring this kind of complaint does not mean trademark law is entirely broken or obsolete. There are other factors at play as well, such as whether “Candy Crush Saga” is a suggestive mark or even a descriptive mark (which is a very weak kind of mark, compared with fanciful or arbitrary trademarks, which are prone to enjoying easier protection). So the tension in this case is understood this way: King has a valuable product they want to protect according to their right, but protecting their product may clash with the efforts of others to promote their products. (And I think that describes at least a third of trademark law.)

     We notice the law most when it doesn’t work the way we want or expect. When a jagged corner of the law fails to match our intuitive understanding of justice and fairness, we can become disturbed that our system is inappropriate or inadequate- and maybe we have noticed a particular part of the system that is exactly that. But the law is always an effort to balance the multitude of possible competing claims that might be brought into a legal contest. We should always keep in mind how a solution to one problem will affect other parts of the law. Even writing this makes me feel that trademark law can be a bit like a blanket that doesn’t quite cover you right (e.g., the old idea that when you pull it over your toes, your shoulders get cold, so when you pull it up to your shoulders, your toes get cold). I don’t think that means the blanket is really bad and should be destroyed- it just means we need to figure something out to cover everything we need to cover at the same time.




Maybe if King didn’t just make a knock-off of Pop Cap’s Bejeweled (which was itself preceded by a game called Saint-Tropez, which can probably be traced all the way back to the strategy game “Go”) with a really unimaginative and descriptive name, none of this would even be a problem. But hey- I’m not making a million dollars a day. No one pays that much for understanding language or law.

Deus Ex: Human Revolution. Humanism, Post-Modernism. Lyotard and Turkle.

Deus Ex: Human Revolution (“DX: HR”) presents an old philosophical question in a new way. The dour critic could well argue that there’s nothing new or original about asking “What does it mean to be human?”, but DX:HR adds depth to this question by placing it in a context of realistic social, economic, moral, and political realities. It also presents a specific path to approach this question: How might physical augmentations transform an individual (and a society that uses such augmentations)? For me, the game is about exploring a world in which such augmentations (“Augs”) are possible and prevalent. This is more exciting than a game in which you simply run around playing as a someone with superhuman powers.

One of the other interesting twists on the approach of DX: HR is the way it measures up to other sci-fi approaches to artificial intelligence and robots. These focus on the idea of a “man-in-machine.” Augmentations are a sort of “machine-in-man.” Somehow, this seems more imminent a possibility, and a more deeply personal one. However, in one ending of the game, it is suggested that the augmentations can make people so powerful as to lose their humanity, so maybe there isn’t much difference between the two. The world of DX:HR (and the thought experiments it poses) match well with the work of two authors who have likewise explore the boundary of technological progress and humanity.

Sherry Turkle’s most recent book describes our current condition, on the edge of both recognizing machine life outside ourselves (e.g., robot pets) and inhabiting the world through machines (e.g., cell phones and continual internet connection). Even as we recognize that robots can be “alive enough” to merit our emotional involvement, we can feel disconnected from others despite living an over-connected life. As we are increasingly open to robots and AI as friends and companions, and we expect technology to be more entertaining, useful, and fulfilling,  it seems arguable that people are preparing to accept the kind of technological integration that DX:HR’s Augs offer.

Though he is best known for coining the term “Postmodernism”, Jean-Francois Lyotard wrote an essay asking the question “Can Thought Go On Without A Body?” as part of an inquiry into the advances of inhuman technology (married with capitalism) into all things human. In the context of DX: HR, this question could be reformulated at asking whether the essence of being Human is in the physical body of human beings or in the thought processes we have. For Lyotard, the question is as much a matter of living in a postmodern society as a literal question of science. But whether in the face of advances in biotechnology or in the face of the death of the metanarrative, questions of how to preserve and enhance our humanity seem more important every year.

My own conclusion from the game is that such augmentations have great potential to help humanity, but also have tremendous potential for abuse and misuse of all kinds. Whether it’s a boardroom of shadowy figures, a mad scientist-hacker, or the socio-economic implications of dividing a society further into haves and have-nots, there are many ways such a great achievement in biotechnology could be enormously dangerous and destructive. Turkle’s work indicates that we are moving towards acceptance of such advancements, but fundamental questions asked by the likes of Lyotard remain unanswered.

Dues Ex: Human Revolution isn’t the first exploration of what it means to be human, or even the first approach to that question through the idea of some kind of biotech-augmentation. But it places the question in a context that presses the importance of finding useful, practical, helpful answers to questions about our humanity. What I find exciting is that we are approaching a point in human history when this question achieves new significance. Like so many other questions in philosophy, we are finding ways to stretch and challenge what we considered the limits of physical and metaphysical reality.