How You Play The Game Doesn’t Matter If You’re Losing the Sport.

This year started with the gaming news that Blizzard bought MLG. With Overwatch in beta, Hearthstone and Heroes of the Storm enjoying steady, casual game play, and Warcraft capping off its gaming legacy with a transition to a different medium, Blizzard is in an interesting place to double-down on its efforts to dominate the eSports market.

I’m skeptical of the prospect of Blizzard creating the “ESPN of eSports,” of course. The NFL doesn’t own ESPN. If they did, who would get prime air time when football and baseball season overlap? Blizzard is incentivized to promote their own products over the products of their competitors. I don’t think there’s anything wrong or shameful about that, but it should be pretty obvious that there is a glaring conflict of interest in Blizzard prioritizing between tournaments for Overwatch and DOTA2 (owned by Valve).

 

Games: Sports :: Art: Entertainment. (Remember the SAT? Wait, they removed the analogy section?)

I’ve written a little about the distinction between art and entertainment before. While they can overlap, they really have different goals: art wants to explore or express something about the world, while entertainment wants to sell something (usually itself, sometimes also a sponsor). Games want to be played; sports want to be won.

Games* are meant to be fun in themselves, and they are played well whenever they are enjoyed by the player. Features such as scores and objectives can orient the player within the game, and provide context and direction, but a game need not rely on these features to achieve delight. Playing a game is, at its core, an aesthetic experience**, and how well you are playing can be judged largely by the extent to which you are aesthetically engaged.

Sports might be fun to play, but their raison d’être is “play to win.” The joy of sports is derived from victory, not from the mere act of competing in them. Features like scores and objectives are core to the experience, and their absence would be disorienting and entirely destroy the endeavour. The activity itself doesn’t need to be enjoyable, and there are right and wrong ways to play. A good sport might also function as a good game, but it must function as good entertainment in order to be successful. A stronger delineation between games and sports would allow developers to understand and focus on the proper goals and objectives.

 

2016: The Year of the Mouse?

With the year starting with some esports hype, and steady growth in esports for the last 5 years, will this year be the year of esports? No. It will be a year of esports, but not the year of esports. There are still the same barriers for esports that Extra Credits noted almost 4 years ago, and an ESPN of esports won’t solve those problems. Indeed, a true ESPN of esports (with even half of that level of cultural penetration) can only be possible after overcoming most of those barriers. The photo at the start of The Guardian’s article is pretty telling: the photo itself clearly captures a massive logo that reads “ALL-STARS,” and the caption calls it the World Championship finals in Paris (not to mention that the Paris finals were held theatre-in-the-round style, which the photograph clearly does not depict). It’s a simple, harmless error, but I think it reveals two things about the mainstream relationship with esports at the start of 2016: 1) no one knows about it (to catch simple things obvious to anyone “in the know”), 2) no one cares about it (enough to do simple fact-checking). Esports will grow this year, but I’m not sure how much or in what ways.

 

*Philosophers of Language have talked about the difficulty in defining a “game.” Wittgenstein also outlined a theory of language that treats language as a game, in which words are pieces within the game, and their meanings are the moves a piece can perform.

** Kant’s philosophy of aesthetics centers on the concept of “play” between the mental faculties of reason and imagination.

“Come At Me, Copyright Bro” –Google Legal Team, 2015

Making Trades

Most competitive games involve the concept of trading. The idea of a trade is to risk some of your resources in order to deprive your opponent of some of their resources. This is part of a smaller skirmish which is only part of the overall game. The goal is to lose less than your opponent, thus putting you ahead. For most games, successful trades require a proficiency that comes with study and experience. It requires knowing both what you and your opponent are capable of and thereby knowing what will happen. The best players are not surprised by the outcomes of their choices; they know before they act how the exchange will unfold. When chess masters think about future moves, they are performing this kind of trading calculus.

Attorneys make the same kind of considerations. Particularly, those who litigate (though many attorneys don’t) use their knowledge and experience to predict the outcomes of various legal strategies. For a master attorney, the outcomes of legal choices are as unsurprising as the outcome of a chess move is for a chess master. Good attorneys don’t pick legal battles wildly or whimsically. They know in advance what the risks are. They know the possibilities and probabilities, the parameters and requirements.

I have no doubt that YouTube’s new fair use policy comes to us after many, many hours of careful thought by many legal experts. It is bold and brazen, but calculated and deliberate. It is not, strictly speaking, a defiance of a federal law. But this new policy does cast aside some of the protections offered by the law.

Picking A Skirmish

The Digital Millennium Copyright Act (DMCA) covers a wide range of topics, including questions of copyright infringement on the internet. To incentivize websites to host material, as well as to incentivize their cooperation with the policing of copyright infringement, the DMCA offers “Safe Harbor” protections to those websites that promptly take down those materials suspected or accused of copyright infringement. The system is called “notice and take down”: When someone gives a website notice about infringing material, the website simply needs to take it down. This is why so many US-based companies are quick to take down content when a copyright claim is filed: the compliance of the host protects them from a lawsuit for the copyright infringement.

For many years, YouTube took advantage of the protections offered by this law. When a copyright infringement claim was filed, YouTube promptly removed the content in question. It could often be uploaded again, with the content uploader asserting that the video did not infringe a copyright. The dispute would then be between the user and the [self-proclaimed] content owner, Google having excused (or protected) itself.

Google’s new policy is to reject some copyright complaints in certain cases. Those cases are those in which Google thinks that the video does not infringe copyright and is protected by the fair use doctrine. What sounds most impressive is that Google will even defend legal claims against those videos in court for up to 1 million dollars in legal costs. That isn’t actually as impressive as it sounds, because Google has left the Safe Harbor protections when it refuses to remove disputed content. In this act of defiance, Google is on the hook for copyright infringement as though they had been the ones to upload the video.*

The DMCA does not give license to content hosts to make judgments about fair use. That remains the purview of the courts. Google is relying on their legal team’s expertise to predict how a court would rule regarding a video. If they are wrong in this prediction, they could lose rather badly.

Uncertain Factors, Unpredictable Trades

The fair use doctrine is not extremely well-developed. American law schools require all students to pass certain courses, and many of these core courses** feature cases that are over 100 years old. One of the most famous cases in Contract Law is from 1854 (and from an English court, no less). The most famous cases on Fair Use are from the 1980s and 1990s, and they don’t give a thorough, detailed explication of this legal concept. They only apply fair use to some specific sets of facts.

Fair use is far less certain a legal doctrine than the two-hundred (or seven-hundred) year old precepts that guide areas of law such as property, tort, or contract. This makes it harder to predict the outcomes of taking some cases to court. There are no masters for making “trades” with fair use in court. It hasn’t gone to court enough times with different cases for anyone to know exactly what it’s capable of.

This is an incredibly exciting challenge that Google has thrown down. They have stepped out of their sanctuary. They have taken up a weapon that is uncertain and largely untested. They are risking substantial damage if they lose. And they really didn’t have to do any of it. They could have stayed safe and sound, risk-free, and followed the pattern of notice and take down. They didn’t need to change anything. I can only guess what might motivate them to make the world a better place for others. Perhaps Google decided that if they are going to control the world, they want it to be a world more worthy of their control.

(Or maybe Google is throwing their weight behind fair use now that it is it the next defense for Java APIs after a ruling earlier this year that Oracle can copyright the structure, sequence, and organization of an API.)

 

*A little over-simplified to avoid a discussion about the difference between joint and several liability.

**Copyright law is not a required course, and isn’t always even offered as a full subject by itself—making fair use a small part of a lesser-known area of law.

 

Individuals or Groups in Fallout?

Bethesda released Fallout 4 this month. It’s the sequel to one of my all-time favorite games, so I’ve talked about it with most of my friends. As with books and movies, people often ask “so, what is the game about?” I think there are two general ways to answer this question for the Fallout games, and which of those two choices you pick may reveal something important and fundamental about how you see the world. Like seeing glasses of water as half-empty or half-full, some people tend to see Fallout (and the world) as about individuals, while others understand the game and society in terms of the relationships between groups.

1) Wasteland v. Shelter

The entire Fallout Universe is set in an alternate future Earth that results from a history that diverges from our timeline around the 1950s. In The Fallout Universe, dwindling natural resources ultimately lead to global nuclear annihilation in the year 2077- though the happy-go-lucky hokey culture of the iconic 1950s middle-America never went away. Pockets of the population survived the nuclear holocaust in large underground Fallout Shelters, called Vaults. In each of the four main Fallout games, the player controls a character that emerges from one of these Vaults to explore the desolate American ruins (called “the Wasteland”) and navigate the emerging post-apocalyptic civilization.

My own interpretation is that a Fallout game is “about” an individual: the player’s character, who emerges from the vault and explores the Wasteland. The alternate understanding is that the games are about a post-nuclear war America, and the societies and choices that might exist there. I think that the design (e.g, the isolation in the player character’s generic identifier) and mechanics of the game (a first-person RPG) focus the game on the player, rather than the world. The contrast with another Fallout game, Fallout Shelter, makes this distinction even more clear.

When project lead Todd Howard announced Fallout 4 at this year’s E3, he also announced a simple game for tablets and phones: Fallout Shelter. This game allows a player to design, build, control and manage a Vault of their own. This game requires players to optimize work assignments within the vault, balance resources, manage growth, and face disasters. In contrast, Fallout 1-4 require a player to create and manage a single character. Then the player must move that character through the Wasteland to find supplies, fight enemies, and make individual decisions in their interactions with non-player characters. Other game design elements also emphasize the difference between the focuses of Fallout and Fallout Shelter. For example, Fallout Shelter continues after a Vault Dweller’s death, whereas a game of Fallout ends when the player’s character dies.

2) Kierkegaard v. Hegel

It can be difficult to talk about some things that are extremely basic to our experience. We don’t stop to think about how we could describe the primary colors or define some commonly used word, much less explain three-dimensional space or what it feels like to feel. So, most people don’t reflect on some of the axioms they use in interpreting the world. Luckily for we plebeians, it is the business of philosophers to ask questions that “normal” people never get around to asking.

Soren Kierkegaard is known as the father (or grandfather) of existentialism, as well as one of the most prolific Christian theologians. He focused much of his philosophy on a concept of “subjectivity,” or “inwardness.” While we think of “subjective” as a term to describe something uncertain, indeterminate, or disputable, Kierkegaard rarely means anything like this. His use of the term refers to individual experience and existence—the things that no one else can feel or be on another’s behalf. (See also: phenomena, ownmost) For some people, this is the fundamental operation of the world: reality is only ultimately understood as individual subjective experience. This is not to say that the rest of the world does not exist, but only that the world is understood as an individual experiencing that world. This might be more clearly understood by a comparison to an alternative view.

G.W.F. Hegel is one of the most influential philosophers in history (just look at the last paragraph of his intro on Wikipedia!). His ideas still influence most of the humanities and social sciences, and in turn influence public policy and law. His most enduring ideas— synthesis-antithesis-thesis, slave-master dialectic, and other ideas assorted the End of History—all find their basis and application in a particular understanding of the world. Hegel understood the world in terms of broad groups and populations. Though he paid more attention to nationalities and cultural groups, Karl Marx would pick up his ideas with a sharper focus on economic classes, and 20th and 21st century branches of feminism similarly rely on understandings of groups of sexes, genders, race, and so forth. Whatever they type of group, criteria of classification, or mode of organization, this view sees the world as sets of people. What matters, fundamentally, is the structures and systems that guide the interactions and relations of these groups.

Except in the most extreme cases, neither of these contexts aims to deny the existence of the other. Hegel’s view of people as masses and classes does not deny that individual humans exist or have experiences. Despite his more polemic and attention-grabbing assertions, Kierkegaard acknowledges that large groups of people may have enough in common to be grouped together for at least the purpose of discussing issues at a large scale. However, these two base concepts are so different that they can have trouble understanding one another, and apparent conflicts between them can be frustrating for both sides.

3) War Never Changes, Even on the Internet

I’ve seen a few disagreements in cyberspace. (I’ve seen them in physical reality, too; the same precepts apply, but arguments are easier to dissect and consider when they are recorded in unaltered writing… because logos.) Particularly on subjects of social or political concern, parties can reach an impasse which I think stems from the same kind of difference that I find between Kierkegaard and Hegel.

Many disagreements feature an assertion of some fact about the world (in the form of statistics or data about large groups, large scales, or general systems and structures), which finds a response in the form of a personal anecdote (a friend’s experience, a single individual counter-example, a personal story, etc.). This personal experience appears to contradict the first assertion, and both parties reaffirm their positions without exploring the difference in the kind of evidence offered. Progress is rarely made, and each combatant will leave the fight feeling certain of their own victory, and annoyed that their opponent was too stupid to even understand such a clear and convincing outcome.

One significant effect of these different viewpoint axioms is what kinds of things can constitute valid evidence. For those associated with Hegel’s position, most single, individual experiences can be dismissed as statistically outliers or generally poor basses for public policy decisions. However, for those who embrace Kierkegaard’s understanding, individual experience is of paramount importance in shaping individual thought and opinion; larger scales may certainly be considered, but can never replace personal, subjective experience.

4) Believing in the Atom: Quantum Mechanics v. Classical Physics

In Fallout, there is a religion that believes in an inherent divinity of the nature and structure of the atom. Adherents to this sect view nuclear devastation as an act of creation rather than destruction, and see nuclear radioactivity as a source of both physical and spiritual power. The fact that atoms comprise all matter and can be split to unlock tremendous energy inspires awe and wonder for these worshipers. While that is awesome, I find it more amazing that the particles which make up atoms obey entirely different laws than the objects which the atoms themselves make up.

It seems self-evident that the all of the physical world ought to be governed by the same set of laws. We expect all objects, from apples to planets, to behave the same way everywhere in the universe. The fact that sub-atomic particles don’t behave like planets is a vexing concern for many scientists (even those not spending their lives trying to resolve this contradiction by developing String Theory). What seems to annoy scientists the most is that each law clearly works in its respective domain. Neither disproves or overpowers the other, yet they remain incompatible. In the same way, viewing humanity from either the individual perspective or from a scope of large populations seems functional, and neither viewpoint disproves or obliterates the other.

I don’t know whether it’s even the right question to ask, whether Kierkegaard or Hegel was “right.” Maybe that’s the wrong way to think about the matter. But I think understanding these two approaches brings coherence to a lot of apparent noise in internet discussions, and makes comprehensible what might otherwise just appear to be deranged ranting. It will be a lot of work to bring these two worldviews into harmony, but just recognizing them might be a very fruitful first step.

 

 

The High Volume of Online Harassment

I. Robin Hood’s Legend Rings Loud in our Moral Ears

Five years ago, Mike Bithell released a simple game about personal identity and friendships. Expanding his scope from “Thomas Was Alone,” Bithell gives us new questions about social justice and law in “Volume.”  As protagonist Rob Locksley, a player navigates stealth-based challenges simulated by an artificial reality system called The Volume. He broadcasts his depictions of stealing from the homes and offices of powerful public officials (particularly one Guy Gisborne), who are corrupt and tyrannical.

What people often forget is that Robin Hood was, fundamentally, a criminal. We glorify him as an outlaw because he forcibly carved out social justice from authoritarian injustice. In some ways, he was the precursor to Thoreau’s vision of Civil Disobedience (though our evaluation of Robin Hood follows naturally from Thomas Aquinas’ definition of a law). We often find the moral justification of such acts in our conception of ends-based morality: any minor evil is justified if it is done in an attempt to stop a worse evil (and evil laws are undeserving of regard or obedience). But we aren’t comfortable with the idea of Robin Hood stealing from just anyone (especially if he doesn’t give that wealth to someone less poor than the victim of the theft).

In “Volume,” Locksley’s actions seem deliberately inclined to incite crime on a level that would raise a very close question for the extent of first amendment protections (if the game were set in the US, instead of futuristic England). Interestingly, it doesn’t seem that Locksley’s behavior is prohibited by the Computer Fraud and Abuse Act or the Stored Communications Act, though more information about the technical details behind his operation might cover that (he seems to have stolen his blueprint information while employed, which might be comparable to the case “US v.  Sergey Aleynikov,” which was decided as a trade secret theft.) However, Locksley does announce personal information about public officials, which likely falls under 18 U.S.C. 119. Whether he has an “intent” to “incite the commission of a crime” would be a question of fact for the court.

“Volume” raises questions about online harassment and who is justified in attacking whom. The internet is often seen as a tool to “level the playing field” for business, the arts, social discourse, and other important social dimensions. It can also be a tool that makes it easy to attack any other human being, often without much risk of retribution. What is the difference between a level playing field and a frontier beyond the protective boundaries of society? Is a wild frontier an opportunity for freedom or an opportunity for predation? In the context of the current state of the internet, these questions are timely, to say the least.

II. Does Online Harassment only Occupy Digital Space, or Does it Fill a Real, Physical Volume?

Some citizens of the internet promote a panacea to cyberbullying:  leave the website, or turn off the computer. It’s so easy that Cavemen already did it! Exploration of this solution reveals that some harassment can be ignored, but some cannot. I have muted many strangers in online games over the years, and I have left more than a few chatroom and forum threads that made me needlessly unhappy. Sometimes, walking away works.  However, these are consistently not the kinds of situations that make headlines. Cyberbullying that leads to teen suicide is often vindictive and deliberate, including unwanted contact by bullies. One does not simply log-off from SWAT teams knocking in your door, or from the nonconsensual publication of intimate photographs. Some online harassment stays online— but very often, it bridges from virtually to reality.

When Rob Locksley is raided and arrested for his thinly-veiled anarchist broadcast, his defense is not “Well, if Gisborne doesn’t like me telling people how to rob his house, he should just not watch broadcast.” That is the equivalent of attempting a defense against defamation by asserting, “If the plaintiffs don’t like bad things about them in the newspaper, they should just not read the newspaper.” I don’t know if anyone ever tried using this defense, but I bet it has never worked in a US Federal Court.

III. Turning Down the Volume On the Discussion About Harassment

This week, organizers of SXSW Interactive announced they would cancel two panels on the subject of online harassment because they received harassment about it online. As event affiliates pulled their support in response to the cancellations, I have to wonder how thrilled the trolls must feel with their new found power.

Technology is always dangerous. Technology lets people do things. It lets more people do more things, more efficiently, more often, more easily. If people want to do good things, technology is great: more good things will get done. Despite Lincoln’s plea, people do not always listen to the better angels of their nature. Indeed, many online participants seem determined to adhere to the moral edict: “we must be enemies.” The internet can create and foster relationships, but it clearly has as much power to destroy discourse as facilitate it.

Should the promise of free speech protect those who want to silence the speech of others? If the question seems difficult in the abstract, it seems much simpler for us when we can narrow the question to a single case—one where we can easily identify the good guy and the bad guy.

IV. Hearing on a “Case By Case” Basis is Rarely the Case

When people use the phrase “case by case basis” they often mean to indicate a flexible structure of evaluation, in which a variety of factors may be considered and weighed. Despite the use of the term “case” in law, judicial systems do not aim for the kind of flexibility that this phrase often suggests.

Courts evaluate cases to determine whether a certain law applies to a certain set of facts. Unless there is something in that law which provides for some kind of flexibility, or the weighing of countervailing circumstances, there is no flexibility in the court’s finding. Nor is there meant to be. Most of the judiciary is invested in building consistency, predictability, and reliability in the law: the same case should always come to the same result. (Hence, the task of many attorneys is to argue which cases are similar or different.)  When an action is justified by the particulars of the circumstance, individuals often recognize those particulars and make a positive moral evaluation. However, the legal question is often about the larger structure in which that action is carried out, because the law is concerned about the application of that structure to many thousands of other persons and circumstances.

Rob Locksley might have some moral justification for his broadcast (e.g, Gisborne is evil and dangerous and cannot be stopped any other way). But these justifications arise from the particulars of the circumstance. The legal question is whether other people should be permitted to make similar broadcasts about other targets. Without some kind of clause in the relevant laws about “excusability” or “justifiability” (such as those found in homicide laws to permit self-defense, or to recognize extenuating circumstances), the law cannot abide a good use of a socially impermissible kind of act. It does not matter that “in this case, there was a moral reason to do something illegal,” because moral reasoning is deliberately kept distinct from legal findings, and a law needs a specific clause for exceptions.

V. How to Blow Out a Speaker: Too Loud for Too Long

I am increasingly concerned about the problems of online harassment. It is moderately concerning that internet “hate communities” exist (with settlements in Reddit, 4chan [their capital city], and Tumblr), but it’s a phenomenon that has been noted and described before. What is far more concerning is that these communities are mobilizing their hatred to affect the world. I don’t know if hate is winning right now, but I’m not altogether prepared to rule that out that possibility. I don’t know if hate and harassment will eventually destroy social media, or the internet entirely.

I do know that this volume of threat, violence, and malice is not sustainable. Very soon, governing bodies will have to decide whether to curtail speech in the name of preserving the common good. This is controversial enough, but the technical challenges of internet anonymity and instant broadcasting will make it even more difficult to craft and execute appropriate laws. However, I think this project is neither impossible nor dispensable.

Reactions and “Buzz” from E3 Couldn’t Happen Without Trademarks

When Juliet famously mused “What’s in a name?” she meant to downplay the importance of names, contending that the thing which is named (say, “a rose,” or maybe a family name of “Montague”) persists beyond whatever we call it. The world of trademarks insists on the importance of names to help us understand the differences between roses in a flourishing garden. The current state of the video game industry illustrates this point well.

I didn’t do any dedicated E3 coverage this summer, but looking back, the entire conversation happens around trademarks. The video game industry has always made use of sequels and developing franchises, and one of the biggest reasons for this has to do with the philosophy behind trademarks.

I. Building a Brand…

Trademarks exist on the theory that the creator of a product, or provider of a service, has some consistency in their work. They might rely on the same materials or recipe, they might maintain a certain standard of quality, etc. Trademarks allow an owner to benefit from consistent quality. While trademark litigation is often an argument about preventing someone else from wrongfully benefiting from an owner’s legacy of quality, the norm is just the preservation of one’s own legacy.

In the world of video game developers and publishers, this legacy is reflected in the fan reactions. Why was there such elation over “Fallout 4”? Sure, the trailers looked visually appealing, and might have even hinted at a fun game—but many other games do that every year. Why is “Fallout 4” special? Because of everything it rests upon: Fallout 3, the Fallout franchise, Bethesda Game Studio’s demonstrated caliber of game production, ZeniMax’s proven management of product launches, game director Todd Howard’s numerous awards and consistent excellence in executing his game design philosophy.

The consumers in the game industry (“gamers,” one might call them) know many ways that a game can disappoint—but because of Bethesda’s history of developing and releasing great games, the consumers are steeled against the kind of doubt that would otherwise creep in to counter excitement over an E3 trailer.

II. Destroying a Brand…

In contrast, the games industry also shows how little excitement a tainted company can generate. The perineal whipping boy of the industry has been Electronic Arts for many years now. EA continues to be the foremost example of game industry failure because they (EA and any developer they ensare) seem sadly prone to incidents which only dig itself deeper into a pit of shame and universal contempt. After “Aliens: Colonial Marines,” EA will face increased difficulty in securing game pre-orders (or having consumers believe pre-release game footage trailers). After “SimCity,” EA will find it more difficult to have the kind of participation in a product launch that game studios often rely upon in their entire marketing campaign. But unlike Blizzard, who had their own launch fiasco with “Diablo3,” EA does not have many instances of excellent games and excellent player experiences in their recent history to restore consumer faith in their brand.

III. The Law of the Brand

Trademark law is sometimes a difficult thing to explain. Intellectual property law is necessarily a little bit abstract, but copyrights and patents protect a concrete thing (a book, a painting, a movie, a chemical process, a mechanical procedure, etc). Trademarks are really anchored in the “goodwill” that a company generates though its products and services. The vagueness behind explaining trademark law can lead some to think it is not important.

Trademarks are rooted in the abstract, unquantifiable difference between the excitement over a new Bethesda game and the bitterness over Konami decision to let go of Hideo Kajima. Economists and businesspeople find that their models work best when every factor in their equations and algorithms can be carefully determined.  However, they have long understood that brand loyalty and social popularity or prestige of a brand can influence the market in ways that are difficult to mathematically predict. That weird, unseen, abstract force that pushes the market in ways numbers fail to predict is both the effect of brands and the reason for trademark law.

Victorious Remilia: Strats for Using a Lack of Regulation as Permission to be Excellent

I was extremely surprised by a blog post from Jerry Holkins (Penny Arcade’s Tycho) several months ago. It was jarring to hear a figure who is regarded as a gaming guru and internet maven seriously conclude, “I’m prepared to call the entire Web a net loss.” [I’m still not sure if the pun was intentional or unavoidable.] This man feeds his family only by the operations and functions of the world wide web, but he has done so while dodging death threats and wading through endless swamps of hate.

Any of us who spend time online see a great deal of hate and ignorance, even if it is not directed at us. The question to ask here is the same one King Théoden posed at the Battle of Helm’s Deep: “What can [we] do against such reckless hate?” While Aragorn’s solution was to “Ride out and meet them,” I see a more appealing option from the words of Coach Herb Brooks (played by Kurt Russel in the 2004 film Miracle): “Play your game.” The recent decision of Renegade’s support player Remilia illustrates exactly how to do that.

However, understanding which answer is better requires recognizing the problem in the speed at which technology appears in our lives.

Enumeration

A recent Op-Ed in the Wall Street Journal argued that the FCC’s increased regulatory measures over internet technologies would ultimately slow and stifle innovation. I disagree that this is entirely true, and to the extent that it is true, I do not think taking time to consider the impacts of new technologies is a categorically bad thing. We have already seen several kinds of unexpected results from recent technological improvements in our lives.

The most apparent set of challenges on the internet comes in the arena of public discourse on the internet. Whatever anyone thinks Gamergate was about, it was certainly characterized by the drama of extreme threats of tremendous violence in place of a public discourse about a social issue. John Oliver featured the problem of death threats and revenge porn on his HBO program, making particular note the difficulty in trying to explain to authorities a problem when they do not understand the medium in which it occurs. This, he observes, is like trying to explain that someone tried to drown you, yet the audience does not know what water is.

In addition to the horrible-tragedy-waiting-to-happen that is “Swatting,” social media has seen cyber-bullying that has led to suicide and the misreporting of information that caused a severe and sudden stock-market dive.

We also run into uncomfortable situations when we allow algorithms and software to take the reins. Flickr has caught flak for software that, as reported by WSJ, “tagged a photo of a black man with the word ‘ape’ and a picture of a concentration camp as a ‘jungle gym.’” Google’s photo-tagging software has encountered similar problems, and other automated processes have led to disparities in targeted advertising for jobs based on gender: “CMU researchers examining Google’s ad-targeting system recently found that male Web users were six times more likely than female users to be shown ads for high paying jobs.”

Other problems are more squarely in the field of economics and law. The Author’s Guild wrote a letter to the Department of Justice this month asking for an official investigation into Amazon.com’s potential antitrust violations, as they maintain the price of books at suspicious (allegedly anti-competitive?) rates. Meanwhile, some states have noticed a decrease in tax revenues as a result of declining sales of physical copies of music, movies, books, and software. Efforts to tax the digital alternatives sought by consumers (e.g., Netflix) have proven unsuccessful, resulting in lower tax revenues overall.

Remilia’s Example

Remilia faces no small amount of adversity for playing professional eSports, particularly among a community that has built a reputation for vitriolic hate speech, even within the context of a society known to offer some, well, sub-par treatment of women in digital spaces. I don’t have a reliable source to explain her decision to continue playing after qualifying for next year’s League Championship Series, but I imagine that at least some part of her decision was based on her desire to simply play the game, as she wants to play it.

Remilia hasn’t shied away from social media- she still streams almost every night-, but she’s making choices in spite of the technology without rejecting the technology itself. She plays the game she wants to play, the way that she wants to play it. There is room for regulation and innovation, the way there is room for discussion and disagreement- but in both cases, an excellent result requires that both sides be excellent. The internet will never be a useful tool for discourse if we learn to use it as a tool for venting frustrations and substituting sloppy assertions in place of careful conclusions. No technology can ever be any better than our use of it. But the bad use of technology by others does not require us to also make poor choices.

Even while on the receiving end of a bad use of technology, Remilia persists in making a better use of it. I imagine that a lot of her victory is attributable to a certain authenticity: she does not play “for wrath, for ruin, and the red dawn”; she just wants to play the game. By being sincere about her goals, she leaves no room for the kind of abuse that characterizes the trolls that would undermine her. If tech companies and innovators were as genuine and dedicated to their goals, I suspect we would all be in a better position to face a lot of the new problems we confront in the digital landscape.

I’d be happy if we started by addressing this problem in the digital landscape, which has apparently plagued humanity since December of 2001: “no-more-sweaty-mouse-hands”

The Tort of Throwing: Causation and the Reasonable Corki

This is a really emotionally difficult post for me to write, and I have to start with a hard, personal truth: I lost a game of ranked League of Legends, and it might have been my fault. … :(

Now that that’s out there, we can use my reprehensible failings at a video game to see how American tort law might view a claim about whose fault it is that my team lost. Corki’s poor positioning matters, but how can we parse out individual responsibility in a complex and interconnected situation?

I. Facts

I’ll keep the facts simple: I was valiantly leading my team to victory with my high-quality Corki play, and after more than 40 minutes of grueling effort and heart-pounding combat, both teams were in a position to win a game after just one convincing teamfight. As my team emerged from blue base toward mid, I expected that red team had just secured a 3rd dragon. A lone enemy appeared from around a corner. I saw an opportunity to pick off one opponent and thus gain a 4v5 advantage on the map, so I engaged. Then I found out that the rest of his team was behind him. I was immediately destroyed, and my team lost the ensuing battle. The game ended in defeat less than a minute later.

II. Bringing Charges

To their credit, my team didn’t rage at me. (Though perhaps this is not to their credit, as it may indicate that they simply failed to understand my error or the role it played in our defeat.) But if they were upset, perhaps they could have charged me with the tort of negligence. Negligence is a civil wrong resulting from a person’s failure to meet a “reasonable” standard of care. Most of the elements of negligence are easy to agree upon in the case of my Corki failure: I owed some kind of duty to my team, which I probably breached, harm or damages occurred (my team lost), and the harm was caused by my breach of my duty. (I’m stipulating that I had a duty just as a function of the idea of the game as a “sport,” which is a subject for another post.)

The most interesting part of accusing Corki of negligence is the question of cause. For all of the criticisms of our legal system as unreasonable, there is a common law requirement that someone be held negligent only if the person’s actions actually caused the harm. In tort law, the basic test for cause is the “but-for” test: “The team would not have lost but for Corki’s irresponsible engagement that got him caught and killed.” Corki’s defense here is to claim that the team may still have lost even if he did not get caught in a bad position: the team may have lost the fight anyway, the game may have continued for 10 more minutes before losing a different teamfight or losing to a split-push, etc. However, it would not be an adequate defense to claim that the rest of the team should have warded, or the rest of the team should have been in a better position, etc.  Those claims (no matter how true!) do not address the question of whether the caught Corki caused the catastrophic collapse of his team’s nexus.

III. Reasonableness (What online gamers are most famous for)

An infamous feature of tort law is the “reasonable person” standard. It is infamous because it expects an uncommonly high standard—it imagines a person who behaves according to textbook, carefully thought-out behaviors, who takes every expert-recommended precaution, every time. The “reasonable Corki” would always maintain proper position, communicate with exactness with his team throughout the game, and would err on the side of caution in every engagement. This is a particularly controversial standard to apply in this case because delicate caution is not always the optimal strategy when playing a competitive sport, dependent on reaction-time and seizing opportunities quickly. Indeed, if Corki went to trial for his negligence, he would call expert witnesses* (professional players, Riot employees and shoutcasters, coaches, analysts, etc.) to testify on the subject of whether Corki’s aggressive positioning was “reasonable.” The plaintiff would call their own expert witnesses who would testify to the contrary. In most tort cases, there is some consensus about how the “reasonable person” would behave because there is some industry or government standard on the subject (even if most people do not abide by that standard, and the standard is presented in a 1950’s short film in which a 13 year old in a collared shirt says “Golly Gee” at least 5 times in 12 minutes).

IV. Verdict: Guilty

Ultimately, it’s likely that Corki’s positioning will be found unreasonable according to the “reasonableness” standard in tort law, if only because it wasn’t the safest positioning.  However, remember all those claims about what Corki’s team could have done to prevent the loss?  Those claims might satisfy the possibility of contributory negligence, in which a harm may be found to have multiple causes and multiple defendants. Not all jurisdictions accept the doctrine of contributory negligence, but those that do may ascribe percentages of responsibility to multiple defendants, and make each pay according to their decided contribution to the harm. There is also the possibility of an argument for using the “substantial factor test” to determine cause in a complex system such as a game of League. (For this test, Corki would argue that the entire team’s actions combined an co-mingled to bring about the loss.).

*I imagine some testimony would look like this…

C9Sneaky: You have to be aggressive, especially if you’re the one with all the kills on your team. You have to carry, and if you’re the only one who can burst someone down quickly, you have to take that opportunity and your team needs to back you up. A fed Corki has a lot of burst, so you need to use that.
CrsCop: The ADC should be way back, stay safe, and just poke and kite back. Your job is to just stay safe and provide support, and let the team engage and fight.

CLGDoublelift: You just lost because you’re trash. Corki should never get caught. He’s so easy to play. Your positioning doesn’t even matter. If you can’t outplay while ahead, you deserve to lose.

Doublelift would not be a helpful expert witness.