The Hatred That is Gamergate is Legal—The Threat of Violence is Not

It’s kind of weird to see the mainstream media attention about “Gamergate” this week, since I’ve been reading about Zoe Quinn and Anita Sarkeesian for months. The fight within the “gaming community” has a lot of different threads, and I could fill multiple blog entries just on the issues in feminism  (which would require multiple posts of background material to put in proper context). But I’m going to focus on a common theme in all of those threads and look at the “discussion” very generally.

The overarching theme of Gamergate is hatred. This is convenient timing because of the recent announcement of a game called “Hatred,” by the studio Destructive Creations. (WARNING: Graphic violence, disturbing content.) “Hatred” and Gamergate have a lot in common: legal justification, cultural ignorance, and poor quality. They’re both about hate and violence, and though they could be an important and useful exploration of serious concepts, they aren’t. Hate is legal; violence is not. I could write about the legal obligations in journalism, but Gamergate is not about game journalism.

The Very Broad Freedom of Speech

The context of the legal justification for saying unpopular and controversial things is important for both of these subjects. Gamergate’s central threads are about the creation of an unpopular, controversial game (Depression Quest), and the unpopular, controversial criticism of games and gamer culture (by Sarkeesian). “Hatred” is already an unpopular and controversial game, and it isn’t even due to be released until next year. Part of all unpopularity and controversy is a response—especially in an age of 2-way media conversations. Under the US Constitution as interpreted by the Supreme Court, Quinn, Sarkeesian, and Destructive Creations all have legal protection. Further, anyone who wants to voice that these things are bad and wrong, or great and wonderful, is also protected. Art, art criticism, and criticism of the criticism are all protected. Even this critique of the debate over criticism of the criticism of art is protected from government censorship. (WordPress has no obligation outside of its promulgated policies to host this content, and you have no obligation to read it.) However, this lauded expanse of free speech protection is finite, and both Gamergate and “Hatred” push those boundaries.

  1. The Limits on the Freedom of Speech

Two  limitations of 1st amendment free speech are “incitement” and “threats.” Telling a group of armed militia that “it’s time to take back city hall! Let’s go!” is probably going to fail a 1st amendment defense in court, especially if a gunfight for city hall follows after that speech. Similarly, threatening to shoot up a school if a media critic is allowed to speak there, is not protected speech. Neither are threats against the critic. It makes a lot of sense to limit speech that curtails speech: if the aim is to promote and preserve opportunities for discourse, then at least one limit on speech must be forbidding speech that would limit speech. More simply put (and without deliberately playing on the seeming contradiction), it just makes sense to have a rule that keeps speech alive—and it isn’t actually contradictory to kill speech in order to preserve other speech.

So, criticizing “Depression Quest” for being a bad game is legal. Criticizing it for having a stupid, smelly, dumbface developer is legal (speech doesn’t have to be eloquent, meaningful, valid, or even non-hateful to be protected). But threatening to kill, rape, maim, or torture its developer is illegal. Violating the developer’s privacy by publicly posting personally identifying information with encouragements to assault the developer really undermines any defense that the threats were “obvious hyperbole” and not meant to be taken seriously. A game about senseless murder and mayhem is legally protected, although game stores and platforms have no legal obligation to carry, sell, or promote it. If a court finds that the game incites violent acts through its promotion and glorification of violence, it could find itself outside of 1st amendment protections (though very unlikely). This is extremely difficult to do: while institutions within society consistently ban Mien Kampf or The Anarchist Cookbook, the law does not forbid the sale or possession of these texts. Incitement is a very high and specific standard, and even a game specifically telling players to “go carry out your own Hatred rampage” would be unlikely to meet the historical standard (though it has never been tested against doxing).

  1. Cultural Context

Cultural context matters in our legal system. Laws change around war, legal requirements embrace the development of technology, and law famously alters its own standards over time.

Law only provides a fundamental framework for society. It is a skeleton upon which we layer the flesh of culture, giving specific contours and shape to society. While some speech may be within legal boundaries, it may be culturally problematic. When speech becomes sufficiently toxic or polluted that a media critic has to disable comments on a YouTube video meant to draw out meaningful discussion about an important issue, discourse is impoverished. The purpose is somewhat defeated. This is, of course, a victory for the trolls who wanted to shut down that area of discourse, which is why critics interested in pursuing meaningful discourse need a better strategy.

Similarly, a game might push boundaries of taste or moral mores, but the cultural context of actual events makes a difference as to its reception. There is a somewhat interesting question of whether “Hatred” is fundamentally different from other games that include violence, shooting others with guns, or depictions of hate. I think cultural context helps answer that question, too. The reality of frequent tragic shootings carried out by psychotic men is a relevant backdrop for a game about the same subject. I think Destruction Games places itself on a dangerous edge in producing a game glorifying and promoting the kind of violence that is an active, sensitive, cultural reality. It would be a new exception to protected speech to argue against the legality of such a game, but it would be the kind of exception that has moderately strong cultural pull.

  1. Signs of Weakness

The poor quality of both Gamergate and “Hatred” is reflected in the analysis of legality and culture. If the most compelling response to criticism is “shut up or else I’ll hurt you,” the conversation has reached a sort of rock-bottom (and really, the person who appeals to violence admits defeat by doing so). If the best presentation of a non-art game is a re-creation of 2 decades of angry, psychotic rampages, the project is weak from its inception (and let’s be honest: the gameplay and graphics look pretty weak, too). There are definitely strong, important, and true things to say about games and the criticism of games, and there is room for criticism of critics. There are definitely projects that can explore the non-artistic elements of gameplay and games that can explore and incorporate violence. However, neither of those things is happening here. Just playground bullying and sad, immature efforts at shock-value. And lots of hate.

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

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

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

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

I.

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

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

II.

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

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

III.

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

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

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

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

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

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