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 are generally illegal, unless the original author gives permission, or 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.

Dragonrend: The Power Of Language is the Expression of Ideas

Language is a difficult and important thing. It is the bridge between two minds. Skyrim subtly poses a question about what happens when those two minds are phenomenological incompatible (experience reality in different ways).

     I recently finished the main storyline in Skyrim (I’m usually not very fast at finishing videogames). I was quite pleased with the story’s depth and writing quality. My favorite part, by far, was the idea of the Dragonrend shout. For those who haven’t played Skyrim, “Shouts” are a sort of magical spell the player can employ in the game. The story holds that the famous fire-breath associated with mythical dragons is actually the ability of the dragon to speak (or shout) in a way that its voice commands  and becomes a force in itself. This interpretation of the dragon allows for great writing opportunities, as the very concept of “words” and “speech” have a rich history in human (especially Western) civilization and history.

     In gameplay, the Dragonrend shout has the effect of temporarily weakening a dragon, forcing it to rest on the ground (rather than fly overhead), thereby making it easier to attack with a sword (or even an easier target for arrows). It is extremely helpful in defeating dragons (especially if you have specialized in melee weapons).

     The Dragonrend shout is enormously philosophically interesting for a few reasons. Some of these reasons have to do with what the shout is, what it refers to, what it represents for humanity, and what it implies about language and experience. Language is sometimes discussed as technology, and this makes Dragonrend interesting because it was invented by humans, not passed on from dragons. While it is spoken in the Dragon language, it is not entirely comprehensible to dragons. As far as I can tell, it exposes the dragon to the concept of morality, temporality, and the finite. The implications of this are delightful.  Is this shout an interpretation of Nietzsche’s famous “Abyss” or the “Despair” spoken of by so many nihilists and existentialists? Does the shout summarize Being and Nothingness, thereby weakening the dragon’s will to go on? Is the struggle of a Dragon to comprehend the finite analagous to the struggle of a human to comprehend the infinite? If so, is the effect of Dragonrend similar to Kant’s account of the mathematical sublime, in which we experience an aesthetic awe when presented with sheer vastness (such as the stars in the sky or tremendous landscapes)? Is Dragonrend a blend of aesthetic pleasure and agonizing despair?

     More interesting than “what” the shout is, is the question of “why” it works. Can language bring us to perceive what we cannot phenomenologically experience? What is the relationship between the phenomena we experience (or may possibly experience) and the language that describes it? The effect of the Dragonrend shout seems connected to the question of how our experience relates to the language we employ to describe our experience. How can words expose our minds to what we cannot comprehend or experience? (For that matter, what is the connection between comprehension and experience?) This is what I loved about the concept of Dragonrend in the game Skyrim. This device synthesized gameplay and story in a way that opened up speculation both in the gameworld and in the real world.

     More generally,  this is an example of where I think most good videogames are right now: Games don’t often directly educate, but I think they often provide a great deal of material that is ripe for teaching. Skyrim doesn’t quite posit philosophical questions of language as explicitly as Deus Ex poses questions of humanism, cyborg theory, or post-humanism. But for those who are curious, interactive simulations of stories are tremendous resources for exploring any issue the game designers choose to present.

The Todd Howard Thesis

I’m getting rather busy with some law school projects at this point. For my E-commerce and Law course, I’m doing a final project on Privacy Policies that requires me to read around 50 policies and evaluate them (after I develop a system for evaluating privacy policies). I’m also undertaking a really fun but unnecessarily ambitious final project for my professional ethics course, in which I will posit some new ways to approach legal ethics (something similar to virtue ethics). There are three other law courses in addition to these more exciting projects. 
I have a few blog entries I’m working on, but they’re so much like the schoolwork I’m doing now that I would rather take a break from that. I’ll post some entries about privacy, data management, legal ethics, and trademarks in the coming weeks. For now, I want to post a little about videogames.
Here is one of my favorite discussions of videogames, by the project leader of two of the best videogames I have ever played (Fallout 3 and Skyrim):

I like a lot of what he talks about, especially his concluding remarks about the need for game developers to step up and show the world what games can be and do. I like his use of the clip from “Good Will Hunting” as an analogous reenactment of online competitive gaming. I really like his approach to a game as a loop of learning, playing, challenging, and surprising. One of the most interesting points I think he makes is the distinction between a game and a toy.

One of my ongoing projects is a look at what it is to play, what the appeal is in playing, how people play in a variety of contexts, and so on. One of my starting points was Kant’s description of aesthetics, which is the idea that our perception of beauty is the result of a sort of “play” between imagination and understanding. I liked the idea that something of our approach to playing might be linked to an internal “playing” between two mental faculties. The game/toy distinction fits into this because it raises the question of whether a game can be played by oneself (without dividing the self into two), and whether a toy can be played with by more than one person without necessarily creating a game. My initial reaction is that a game cannot be played by one entity alone, even if the second entity is the environment, and any toy that is played with by two people becomes a game unless their play is merely incidentally side-by-side. Of course, I am not convinced that my initial reaction is accurate or that it captures even a reasonable part of the full picture of games, toys, and play. Thinking about this would be a toy with which I could happily play for many hours.

There is a worthwhile point to be made about discussing the philosophy of games, toys, and play: Philosophers ask questions like these most to explore the meaning and understanding of the concepts that comprise our lives. It would be nice if a discussion about the game/toy distinction resulted in impeccably clear and universally-acceptable understandings of those concepts, but the more likely payoff from such a discussion is a better understanding of what it is to play, why we play, and how we can play better or resolve conflicts that come up as a result of playing.

Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.