In Which I Use Multiple Materials To Write About Separating Separability

Crafting and Separability

Crafting became the must-have feature in a video game after Minecraft’s astounding success. Since this game mechanic became the bandwagon that no studio could NOT jump on, games varied the complexity, the modularity, and the reversibility of the crafting. (They also varied the intuitiveness of the system, but that’s a different complaint.)

In some games, players can get either raw materials or modular pieces back by deconstructing items that they have crafted: Diablo 3 (random chances for raw materials when salvaging items), Fallout 4 (gives modular pieces rather than raw materials, Elder Scrolls Online, Fortnite (weapons, but not buildings), Destiny 2 (arguably, this deconstruction is functionally more like selling it), Borderlands: Pre-Sequel (the grinder will turn a trio of items into an item of equal or greater value, with random chances for quality).

In other games, players do not have the opportunity to recover resources after crafting an item (though frustrated players have created game mods to allow deconstruction): Minecraft, Darkmoon (the Sword of Talon cannot be unmade), Skyrim, Warframe, Don’t Starve, Stardew Valley, Dragon Age: Inquisition (in Single Player you can remove addons; you can deconstruct in multiplayer), Dead Rising, Terraria.

For video games, the decision to allow players to salvage or reuse item parts is about game balance. When crafting an item includes a random chance of an additional benefit, game designers are aware of the possibility for players to deconstruct and reconstruct until they get the additional benefit they want. When the crafted item does not bring new benefits, game designers still have to evaluate the way that players will obtain resources.

There is another concern about balance when courts examine the possibility to conceptually deconstruct an object into the raw materials of function and aesthetic. Courts must be careful to afford the correct category of intellectual property protection based on the nature of the subject matter seeking legal protection. Unfortunately, determining function vs aesthetic is controversial at best, and it can sometimes feel more like a game with an RNG element added to item deconstruction.

 

Star Athletica v. Varsity Brands

In 2017, the Supreme Court ruled on a dispute between two companies that make cheerleading outfits. The court did not rule about whether a copyright infringement actually happened in this case. Instead, the court sent the case back to a lower court to decide that—but the court sent the case back along with a new rule about copyright protections. The new rule is that if a part of something can be “perceived” as art that would qualify for copyright protection, then the whole thing can be protected by copyright:

“an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

“Useful articles” are generally not protectable by copyright (they should instead usually be subject to patents, which work very differently from copyright protection).

Before this ruling, many lower courts had created (often similar) tests to evaluate the aesthetic elements of a larger object or article. One effect of this ruling is that it forges, out of the raw materials of many separability tests, one single separability test for all US courts.

 

Is Star Athletica compatible with 17 USC 9?

In the 1980s, computer hardware manufacturers were concerned about getting the right kind of protection for computer chips for the new micro processors that were becoming popular. More specifically, they were concerned about protecting a very specific piece of the chip production process: the photomask (aka mask work). The mask work is the 3-D blueprint and stencil for the manufacture of a silicon microchip.

The concern was that patents would either not apply or not give adequate protection (as far as I was able to find in research, this fear was never put to the test in courts, and I remain unpersuaded that the mask works would not qualify for either a design or a utility patent). However, the functional nature of the photomask device (as a key part of a manufacturing process) precluded it from copyright and trademark protection. The computer industry successfully lobbied congress, and a new section was added to chapter 17 of the United States Code. Despite the fact that the title of chapter 17 is simply “Copyrights,” section 9 is distinctly unlike the copyright protections described in other sections: it protects a specific, functional category of objects (mask works), offers a different length of protection, and prescribes different statutory damages for infringement.

Generally speaking, the law tries to avoid redundancy and overlap. Does Star Athletica decision create some kind of redundancy or overlap with 17 USC 9? Star Athletica allows for functional articles to be subject to copyright if there is an aesthetic element found in the functional article. The court does not carefully explain whether an aesthetic element must be, in itself, not functional (nor is the term “functional” defined). There is no overlap if Mask Works lack an aesthetic element—despite the fact that they look like art in themselves, there is probably no element of the Mask Work which is not functional, which may preclude the possibility of an aesthetic element. Inasmuch the Star Athletica decision should be read as not creating redundancy or overlap with existing statutes, this decision must be interpreted as a ruling that there are no aesthetic elements that are separable from the mask work that would be subject to copyright protection.

Separating Hard Cases of Inseparability: Ribbon Racks

Measuring Star Athletica against 17 USC 9 is important because of the difficult cases in Intellectual Property where functionality and aesthetics are not clearly distinct. Function and aesthetic are often broad cues for which type of protection a thing may be subject to receive (or prohibit from receiving). A seminal example is “ribbon rack” bicycle racks: the ubiquitous bicycle racks that take the form of an undulating metal ribbon were the subject of a copyright lawsuit (as well as trademark). The SDNY court ruled that:

“While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices. . . . Thus there remains no artistic element of the RIBBON Rack that can be identified as separate and ‘capable of existing independently, of, the utilitarian aspects of the article.’”

The dissent in the case felt that this thinking entirely destroyed any hope of conceptual separability. This disagreement draws out the challenging questions: whether, when, and how aesthetic elements can be distinguished or delineated or extracted from a functional article.

 

Star Athletica In the Context of the Intellectual Property Landscape

Design Patents cover the non-functional ornamental elements of an invention. The Star Athletica case might expand copyright closer to design patent territory. Most cases will be able to still separate the two, mostly on the basis of subject-matter and/or whether the subject was issued a copyright registration or a design patent. Nevertheless, I predict that either (1) there will be a case to settle an argument between the USPTO and the Library of Congress as to who ought to have jurisdiction over a specific subject-matter, or (2) a case will have to decide on something that could conceivably be claimed by either, and a court will need to effectively adjust either Star Athletica or a patent statute in order to make a coherent ruling.

The Star Athletica decision demonstrates that intellectual property is both unified and divided by questions over functionality and aesthetic: IP is unified by these questions because no other area of law is so focused on this philosophical point; IP is divided by the answer to this question because different categories of IP will apply based on the functional or aesthetic nature of the object or article under question. At the same time that more academics and attorneys are pushing for less use of the term “intellectual property,” cases like Star Athletica and Converse v ITC push patents, trademarks, and copyright analysis closer together, focusing on two common questions: What is functional and what is aesthetic? How do we separate them when both are present?

 

Inseparable Bundle of Distinct Intellectual Properties

There is an ongoing push to separate the pieces of Intellectual Property Law (copyright, trademark, patent, and trade secret). Some attorneys and academics want people to stop using the term “intellectual property” entirely, citing confusion for both the public and the courts.

One of the core arguments is that “intellectual property” can be broken into more fine, discrete elements (copyright, patent, trademark, and trade secret). However, each of these categories can be broken into subcategories, areas, and elements. One author recently wrote that a discussion on fair use has nothing to do with patent law. However, a discussion on fair use of academic papers also has nothing to do with ephemeral recordings, royalties for mechanical licenses, or protection for mask works (which are explicitly not subject to copyright but are still included in chapter 17 of the USC). The mere fact that a broad category can be understood as made up of smaller categories is not sufficient reason to entirely reject the notion of the broader category… But this issue should be fully addressed separately, in a different blog post.

Conclusion

In a game with crafting, the designers have established a method for deconstruction or they have decided not to include such a method. A player can either have the expectation of deconstructing an item, or the player knows that item crafting will permanently destroy the materials used (except in Elder Scrolls Online, when some items just don’t show up for deconstruction and no one knows why except that it’s a Bethesda game). In cases of intellectual property, the courts may or may not find that an object or article can be conceptually separated into functional and aesthetic elements. However, when the court does find that such separability is possible, Star Athletica will guide the court’s evaluation of the separated elements.

 

 

 

 

 

 

 

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The Scare of Abandonware

It’s nice to have law in a society to bring a sense of predictability. Clear and organized laws allow us to understand the consequences of our actions. Knowing the law lets us make choices based on the expected outcomes. However, there are a few areas of law where outcomes are not so obvious. Abandonware is an interesting case of 21st century law. Copyright law simply doesn’t outline what to do when a company publishes a game and then closes its doors. It’s scary for cautious lawyers to discuss because of that uncertainty. As always, this blog post is NOT legal advice– in fact, it’s mostly about why giving legal advice about abandonware is difficult.

How Games Get Abandoned

Abandonware isn’t entirely limited to software, but the differences in technology and industry norms and structure make it a far larger problem for software than any other media. It’s no surprise that book, radio, television, film, or music industries ever needed a statute on abandoned works.

When game studios close, they are often bought by other, larger studios- or at least their IP assets are. However, sometimes the IP of a studio doesn’t get purchased – it just gets abandoned. Copyrights in the US last at least 70 years. Although courts have ruled that not every work has a recognized owner at the time of creation, courts have not definitively addressed the issue of abandoned works. (It is possible to officially declare a work abandoned and part of the public domain, but this is not automatic for IP that is simply left behind by a defunct company.)

Who Would Have The Right To Sue?

There are a few fundamentals that have to be in place for a case to even get seriously looked at by a judge. There must be an allegation of a violation of a law, for one thing. Additionally, the plaintiff must have “standing.” This means the plaintiff was harmed by the breaking of the law. A case must also be “ripe” (the allegation cannot be speculated or predicted to occur sometime later), and the case cannot be “moot” (resolving the case must make an actual difference to the injured party).

In the case of abandonware, could these fundamentals be met? Sometimes revenue is still given to developers whose companies have closed shop, but it’s unclear how often this is the case.  In most cases, it seems that no one can claim to be damaged by the unauthorized distribution of the software, because no one can claim they lost money as a result. Further, any case would be moot because ceasing the distribution would not make any difference to a non-existent competitor.

Despite the unlikely odds of an abandonware suit even getting to trial, distributing abandonware still feels a little risky for two reasons. First, unlike trademarks, copyrights are not contingent on use in commerce, and unlike abandoned property there is no law describing how to treat abandoned works. Second, it’s an unexplored area of law, which means that there isn’t precedent either to argue in court or to consider when advising a client.

Who Gets the Loot of the IP License When a Company Dies in the Dungeons?

Despite the murkiness, some abandonware cases seem clearer than others. Some games from the 80s and 90s seem well and truly abandoned. However, if a copyright is assigned to a corporation and that corporation then goes defunct or is bought, it’s sometimes unclear who owns the copyright.  Other games may carry a sort of tangential active ownership that could complicate a case. For an example of both of these complications, let’s consider a game from 1991 that featured a licensed IP to a game developer and a publisher (who are now both defunct): Eye of the Beholder.

Dungeons and Dragons was owned by TSR, Inc until that company went out of business and sold most of its D&D intellectual property assets to Wizards of the Coast (a company owned by the toy company Hasbro, Inc). Eye of the Beholder was a game made by Westwood Associates (bought by Electronic Arts and defunct since 2003), though the title screen clearly identifies it as an Advanced Dungeons and Dragons game. The game was published by Strategic Simulations, Inc (bought by Mindscape and defunct since at least 2011), who worked with TSR on dozens of licensed D&D games.

With Westwood and SSI now out of the picture, can Wizards of the Coast claim ownership in the use of their D&D mark in 30 year old games?  Wizards of the Coast would probably not prevail on a claim of direct ownership of these games. As far as I can tell, courts have not addressed a case in which a party bases a claim on IP that is inside another product. The closest cases involve the use of a person’s likeness in a game, but the plaintiffs don’t try to claim ownership over the entire product. It may be that the original license agreement puts the “D&D” IP out of the reach of claims by TSR, and therefore out of the reach of WotC.

Ideally, the licensing contract between TSR, Inc and Westwood Associates has a paragraph for just this kind of question (this is why it pays to draft contracts with the worst possibilities in mind- like your company going out of business). If a court faced the claim that WotC has a claim on the distribution and sales of games featuring D&D settings and characters, I suspect* it would rather dismiss the claim on the basis of laches rather than address the tangled mess of IP licensing claims.

Conclusion: We Can Know The Risks, If Not the Outcomes

Abandonware seems to be technically illegal, but it also seems to be nearly unenforceable. That’s an uncomfortable place to be. It’s a strange state, and there are hardly any appropriate analogies that would help explain it. The best analogy might be a comparison to an old game that, despite being technically functional, won’t run on a current operating system. Abandonware’s legal challenge might be best described by its technical challenge.

 

*There is always a small risk of a surprise in court: A court could create the principle that when a party does not exist to protect a licensed IP, the licensor may step in and act as owner of that IP for some limited purpose. Some would call that “legislating from the bench.” The judge would call it “meeting the demands of justice in the face of technological development.”

The Race for Data: Consumer Privacy in a Red Shell

Mario Kart hasn’t outsold the standard Mario formula, but it has been the most successful adaptation of the characters. The lack of multiplayer wasn’t a big deal for games on the original 80’s Nintendo Entertainment System; just running to the right and jumping on boxes was good enough. As demand for multiplayer games grew, Mario Kart proved to be one of Nintendo’s best ideas. Racing games don’t need a lot of explanation, and getting to steer your favorite characters to the finish line made for hours of fun for family game night, birthday parties, and college dorms. Nintendo also made their fun additions to their racing game easy to understand: banana peels make your opponents lose control and crash, mushrooms provide a speed boost to help you catch up (especially useful after a crash), and getting hit by a turtle shell the size of your cart is never good. The weaponized shells come in a few colors, but the red shell was particularly powerful because it follows its targets movements, making it nearly impossible to dodge.

So, when the minds of marketing, data science, and software development came together to create a way to track gameplay data and correlate it to advertising for each unique player, a popular video game weapon that followed a target seemed like a good fit for the name of the product. Maybe a representative from customer relations or ethics would have raised a concern about naming a product after something aggressive and destructive. That kind of name raises a red flag for some people—and  it raises two red flags if it also shares the name with a known malicious virus. Unfortunately, it fell to the players to explain that secretly targeting customers to collect data is an unpopular choice.

 

Red Shell Discovered

Earlier this year, a few Steam users discovered a tracking program hidden inside some game software. The tracking program was called Red Shell. I have not found any indication that users were informed (at least explicitly) of the presence of this tracking software within the games that consumers purchased, downloaded, and installed. The stated purpose of Red Shell is to track user data that can be matched with marketing data to optimize marketing strategies. Despite the fact that the data collected from a user is called a “fingerprint,” developer Innervate is on record as believing that the clandestine program that does not allow opt-in (or even opt-out) decisions is GDPR compliant because it does not collect personally identifying information- just a broad mass of data associated with a user.

Software companies got a different kind of marketing feedback as outraged customers spoke out on forums and social media, attacked games with negative reviews, and called for boycotts against the offending games. I did not find any evidence that Red Shell is harmful or pernicious in any way, and most users seem to agree with that assessment. But actual, or even potential, harm does not seem to be the problem. Rather, the issue seems to be that the customers feel betrayed, deceived, and… well… played.

 

Lessons from the Wreckage

In Mario Kart, red shells cause your opponents to crash. In June of this year, the program Red Shell caused player trust to crash. Red Shell may be GDPR compliant, but the scandal now serves as an example of why mere technical compliance is not always enough.

I think Red Shell would have enjoyed reasonable success if players were given the choice to opt-in. Other companies use clear, voluntary methods to collect data from users—from surveys to system scans. I understand the appeal of “having all of the data,” and the appeal of letting computers do the bulk of the gathering and processing automatically. The efficiency and scale would be hard to match – computers often outperform humans in efficiency, speed, and scale. But computers don’t understand the values of trust, preferences, and autonomy.

Innervate lost sight of the real, ultimate reason for gathering player data in the first place: improve a developer’s bottom line through a better understanding of the player. By failing to connect empathy with the notion of “understanding,” they overlooked what they were losing in exchange for the increased efficiency and scale of their product. The effort to understand brand loyalty undermined the trust and loyalty to the brand. Data that is properly collected and carefully understood in the right context can be a powerful tool for better products and better service. But taking a shortcut around your goals to try to achieve them is just driving faster with no sense of direction.

 

Red Shell Takeaways:

ALWAYS remember that data is not an end in itself- think about WHY you want data.

Other things matter besides the data you think you need- consider the competing values.

Consider ways to get data that don’t interfere with other goals. Consider ways to get to your goals that don’t rely on the data you are chasing.

Don’t lose sight of your larger goals/objectives during your search for data; don’t let your race for data undermine your quest for success.

 

 

 

 

Horizon: The Dawn of Zero Privacy?

Horizon: Zero Dawn is a problem because I don’t know which game I have to slide out of my top 5 in order to fit it into that list. (It might be have to replace “Child of Light,” which pains me, but replacing any would pain me… maybe “Outlaws” will move to #6 …) It’s an incredible game in its own right, with beautiful artwork, well-written characters, and genuinely fun gameplay. I find its story especially fascinating—and particularly relevant as we grapple with a framework for governing and living in an age of digital information and interconnected devices. Though its central technological focus is on Artificial Intelligence and the future of humanity, it touches a multitude of topics- including data privacy.

Although Judge Richard Posner famously decried privacy as a way for bad people get away with bad things, privacy is important for personal development and free association. Privacy is essential to our culture, and it is only valuable inasmuch as it is protected and reliable. Our expectations of privacy follow us into our digital extensions. However, one of the best methods of securing privacy is impractical in the face of consumer demands for interconnection and convenience.

I. Can We Have Privacy by Design When We Demand Designs that Compromise our Privacy?

The Federal Trade Commission’s favored method for protecting Privacy is “Privacy By Design.” In simple terms, this often means designing a product to rely as little on privacy as possible. After all, if no data is collected, there is no data to steal. However, there are serious questions about the feasibility of this approach in the face of consumer expectations for interconnected devices.

Privacy by Design is a much better idea than the sophomoric idea of increasing security measures. Designing a house not to be broken into is better than trying to just put a good lock on the front door. To put it another way: Think of it as building a dam without holes rather than trying to plug all of the holes after you finish building.

I’ve heard tech entrepreneurs talk about “The Internet of Things” at conferences for many years, now. They talk about it like it’s a product currently in development and there’s an upcoming product launch date that we should be excited about- like we can line up for outside of a retail store hours before the doors open so we can be the first to get some new tech device. This is not how our beloved internet was created. Massive networks are created piece by piece- one node at a time, one connection at a time. The Internet of Things isn’t a tech product that will abruptly launch in Q3 of 2019. It’s a web of FitBits, geolocated social media posts, hashtags, metadata, smart houses, Alexas and Siris, searches, click-throughs, check-ins, etc. The “Internet of Things” is really just the result of increasingly tech-savvy consumers living their lives while making use of connected devices.

That’s not to diminish its significance or the challenges it poses. Rather, this highlights that this “Coming Soon” feature is really already here, growing organically. Given that our society is already growing this vast network of data, Privacy by Design seems like an impossible and futile task. The products and functions that consumers demand all require some collection, storage, or use of data: location, history, log-in information- all for a quick, convenient, personalized experience. One solution is for consumers to choose between optimizing convenience and optimizing privacy.

II. A Focus on Connected Devices

Horizon: Zero Dawn is a story deliberately situated at the boundary of the natural world (plants, water, rocks, trees, flesh and blood) and the artificial world (processed metals, digital information, robotics, cybernetics). As a child, Aloy falls into a cavern and finds a piece of ancient (21st century) technology. A small triangle that clips over the ear, this “Focus” is essentially a smart phone with Augmented Reality projection (sort of… JawBone meets GoogleGlass and Microsoft Hololens). This device helps to advance the plot, often by connecting with ancient records that establish the history of Aloy’s world (it even helps with combat and stealth!).

It’s also a privacy nightmare. The primary antagonist first sees Aloy -without her knowledge- through another character’s Focus. Aloy’s own Focus is hacked several times during the game. A key ally even reveals that he hacked Aloy’s Focus when she was a child and watched her life unfold as she grew up. (This ultimately serves the story as a way for the Sage archetype to have a sort of omniscience about the protagonist.) For a girl who grew up as an outcast from her tribe, living a near-solitary life in a cabin on a mountain, with the only electronic device in a hundred miles, she manages to run into a lot of privacy breaches. I can’t imagine if she tried to take an Uber from one village to the next.

Our interconnected devices accumulate deeply astonishing volumes of data- sometimes, very personalized data gets captured. In a case heard by the Supreme Court this month, a man in Ohio has his location determined by his cell phone provider. The police obtained this information and used it as part of his arrest and subsequent prosecution. The Supreme Court recently heard a case about the use of warrants for law enforcement to access cell phone data. (This is different from the famous stalemate between the FBI and Apple after the San Bernadino shooting, when Apple refused an order to unlock the iPhone of a deceased criminal.)  As connected devices become omnipresent, questions about data privacy and information security permeate very nearly every side of every facet of our daily lives. We don’t face questions about data the way that one “faces” a wall; we face these questions the way that a fish “faces” water.

From cell phone manufacturers to social media platforms, the government confronts technology and business in a debate about the security mechanisms that should be required (or prohibited) to protect consumers from criminals in myriad contexts and scenarios. In this debate, the right answer to one scenario is often the wrong answer for the next scenario.

Conclusion: Maybe We Don’t Understand Privacy In a New Way, Yet

The current cycle of consumer demand for risky designs followed by data breaches is not sustainable. Something will have to shift for Privacy in the 21st century. Maybe we will rethink some part of the concept privacy. Maybe we will sacrifice some of the convenience of the digital era to retain privacy. Maybe we will try to rely more heavily on security measures after a breakthrough in computing and/or cryptography. Maybe we will find ways to integrate the ancient privacy methods of the 20th century into our future.

 

The Potential Dangers of Minds Getting Played

I clearly remember hearing about a new kind of game back in the late 90s- a friend handed me a magazine while I was playing Descent. The article detailed a new genre of game: Alternative Reality, in which the content of the game connected with the real world, and the gameplay was woven through physical space as much as game space. The article focused on a game called Majestic. Even before law school secured my youthful cynicism, I was already concerned about the potential for disaster with this game: trespassing, distracted operating of motor vehicles, unfortunate confusion with actual crime- by both police and criminals, etc. The game, and the genre, never really took off, and so a lot of the issues got pushed aside and ignored for a decade and a half.

Then Pokemon Go came out.

I) How do we Distinguish Alternative, Augmented, Virtual Realities from Plain Ol’ Boring Reality?

As Jerry “Tycho” Holkins has pointed out, when someone is experiencing a reality that differs from the reality that others are experiencing, we usually conclude that the singular experience of reality is a hallucination of some kind. So, inviting a parallel version of reality is a bit ambitious for a species that still has some fundamental questions about the nature of reality and the capacity to perceive it. But humans tend to be ambitious.

Metaphysics has tried for several millennia to explain what reality is, and epistemology and philosophy of mind (now backed up by nascent efforts of neurobiology) have tried to understand how the human mind interacts with whatever reality is. These kinds of questions seem tiresome and sophomoric because they seem to be trying to solve a problem that we don’t have. Fortunately for philosophers, scientists, and lawyers, humans are good at creating interesting problems.

II) Augmented Reality, Virtual Reality, Social Media, and AI: A Combination for Confusion

The biggest danger isn’t really just immersing the human mind in an alternative reality. Literature and media have been doing that since the first tools of imparting imagination were created. However, there have always been clear markers about the borders of fiction and reality: the edges of pages, the entrance to the theater, the “play” button. Since video games started making recognizable depictions of reality, political bodies have been concerned with the ability of the mind to keep the fiction of the game separate from reality.

Some games have recently made a deliberate effort to blur the distinction between the game and reality. In Batman: Arkham Asylum, the villain Scarecrow created a visual effect that looked to the player as though the game-machine itself was having technical problems. Metal Gear Solid villain Psycho Mantis had similar behaviors, interfering with the usable controller ports on the Playstation, reading memory cards to learn what other games the player plays, and giving the appearance of technical problems with the visual display.

The connection of games to social media platforms and profiles perforates some barriers between games and reality. These perforations tear wider the more the game uses them. How much more of a leap would it be for a game to read the social profiles of a player and allow a villain to make threats against the actual friends and family members of the player?

This trajectory, combined with increasingly better artificial intelligence programs that can learn and affect both game worlds and real worlds, creates the potential for some bizarre problems that will still seem like science fiction even after the first time we read an article reporting on why a 22 year old is dead after a cat walked across her keyboard while she got a soda. It may not be long until someone is arrested in real life for a murder committed in a game due to a bug or an AI program getting out of control. Or, perhaps even more likely, some hacker will make use of the obfuscated and blurred boundary between the game and reality to either commit a crime or frame someone for one.

III) Pokemon Go: Traps, Muggers, Molesters

If these possibilities seem like pure fantasy, we should remember that we’ve already seen some of the first iteration of the dangers of people trying to handle two realities simultaneously. Pokemon Go serves as an example the nature of the problems and the sometimes tragic stakes of not handling the problems well. There have been reports of muggers and sex offenders using the game to their own malicious ends, as well as reports of accidental deaths and car accidents from the simple carelessness of distracted (or overly-ambitious) players.

If you die while playing Pokemon Go, you die in real life.

IV) Philosophy is still relevant

In 1967, Phillipa Foote introduced the famous “Trolley Problem”: a hypothetical dilemma of choosing to allow a train (or trolley) to kill several people, or choosing instead to intervene and divert the train to kill only one person. The problem was meant to probe people’s moral intuitions, as the goal was not so much the answer to the problem but the justification for the choice. Many people outside of philosophy dismissed this hypothetical as irrelevant nonsense that showed how stupid and meaningless academic philosophy had become in the enlightened, advanced age of the 20th century. Then, in the early 21st century, automotive engineers and programmers confronted the exact problem in determining how to program self-driving cars when confronted with similar dilemmas.

The story for the philosophical field of Aesthetics (the area concerned with understanding art and beauty) is similar. In the coming years, the interactive entertainment media industry will have to confront problems of understanding the boundaries of how, when, and why fiction is experienced. The analysis of essays on the use of the fourth wall and meta-humor will be important to cutting-edge games looking to balance novel thrills with consumer safety.

V) Solutions: Design for Safety, Be Helpful

The law can make some efforts to protect the public, but it’s almost always going to be reactive, not proactive, in these matters.

Developers should design for Audience Meta-Awareness. Yes, the much-touted quality of immersion adds fun to the experience. However, it is necessary to provide safety outlets for that immersion. The game creates a space- players need to always be able to see the door to the space and get out of it. They need to be clear about when they are in that space and when they are not. Games that actively seek out players to update them about the game undermine that distinction. Games that don’t allow players to put down the game, or don’t allow players to know when they have put down the game, are looking for problems.

The community can create safety nets, as we saw with Pokemon Go players acting as safety guards in potentially dangerous scenarios. However, if we’ve learned anything from the internet, it’s that groups of people knit together by cyberspace are not always a recipe for safety and well-being. Still, the more that games resemble mind-altering drug experiences, the more important it is to have a sober friend nearby.

 

4/14/17 UPDATE: One of my favorite web series on game design, Extra Credits, apparently also thinks this is an interesting subject. They provide a lot of examples of the concepts I addressed.

 

I’m Betting That Overwatch Loot Boxes Aren’t Gambling (under 31 USC 5362)

Disclaimer: As with all of my posts, this is NOT LEGAL ADVICE. This is academic analysis on a subject of law – and I don’t even have a good tool set (WestLaw, Lexis, etc) for that.

1- Introduction: Micro Transactions and Loot Boxes

The business model for free to play games is to include micro-transactions for aesthetic, trivial add-ons. For Counter Strike: Global Offensive, this manifests as the opportunity to pay a few dollars to buy a key to unlock boxes which are randomly distributed during play. Paying to unlock a box gives a play a random chance to receive aesthetic enhancements for a weapon (a “skin”). The rarity of the skins varies widely. Some of the most rare and prized ones are occasionally sold on eBay (or other 3rd party sites) for over $1,000.*

The question is: Are Loot box systems gambling? What about cereal boxes, TCG booster packs, or other things that allow children to participate in contests involving chance?

Some internet-folk grew a discussion thread to eight pages on the Overwatch forums discussing this topic, and not a single one of them reached for a legal definition of the subject at hand. People just talked about how they felt about the subject. Apparently, it takes a law degree to find the first search result on Google. Law has some flexibility – and that makes these questions difficult-, but there are rules, people!

2- What is the Definition of Gambling?

(For simplicity, I removed references to Insurance, Commodities, and Securities.)

31 U.S. Code § 5362 – Definitions

(1)Bet or wager.—The term “bet or wager”—

(A) means the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance, upon an agreement or understanding that the person or another person will receive something of value in the event of a certain outcome;

[Lotteries and gambling administration]

(E) does not include—

[Insurance, Commodities or Securities]

(viii) participation in any game or contest in which participants do not stake or risk anything of value other than—

(I) personal efforts of the participants in playing the game or contest or obtaining access to the Internet; or

(II) points or credits that the sponsor of the game or contest provides to participants free of charge and that can be used or redeemed only for participation in games or contests offered by the sponsor; or [Fantasy Sports]

3- Analysis: Winning the Gamble Must be Distinct from Winning the Prize

The real key is in part (1)(A): “upon the outcome of a contest of others, a sporting event, or a game subject to chance, upon an agreement or understanding that the person … will receive something of value in the event of a certain outcome.”

Let’s take three examples that are not legally considered gambling: buying TCG booster packs, putting random prizes in cereal boxes, and… *sigh* there are a lot of reasons I don’t want to mention a certain online service that sends subscribers monthly boxes containing a random assortment of goodies… but imagine that such a thing exists.

My best guess** is that the law requires the “certain outcome” and the prize (“receive something of value”) to be two different and distinct things. In the case of cereal boxes and booster packs, the “certain outcome” is the prize. There is a chance of getting a Holographic Charzard, but winning only means getting the Holographic Charzard. You cannot “win” the card without, at the very same time, having the card: winning the prize always already entails having the prize.

In contrast, consider some examples that are legally considered gambling: slot machines, lottery tickets, and blackjack. In each of these cases, the outcome entitles the player to a prize: the slot machine dispenses quarters (“makes it hail”) as a result of the outcome. For a slot machine, the outcome itself is only a sequence of matched cherries or bars; for a TCG booster pack, the outcome of opening a pack is having a stack of cards.

This distinction may seem pedantic or petty, but it allows people to play games of chance without involving money. It allows people to play poker among friends for no money, or to made idle wagers for fun. It allows Disney to sell boxes of figurines with one shrouded “mystery” figurine included and it allows schoolteachers to play “Science Bingo” in class. It’s a tiny distinction that allows a lot of innocent behavior.

4- Application To Loot Boxes

However, there is still an interesting metaphysical investigation required to conclude this legal analysis: is the opening of a loot box like the opening of a booster pack, or is it like playing a slot machine? Is it actually two different events, or only one? Does the computer run the RNG when it is unlocked, and then determine the prize based on the outcome of the RNG? Or does the loot box already “contain” the prize before the opening?

Blizzard already told players not to bother hoarding loot boxes in the hope of getting future skins, because the contents of the box are already determined when the box is given to the player. If this is true (and if my guesswork-analysis is correct) then there is good reason to think that loot boxes are not legally considered gambling under 31 USC 5362.

I don’t know if a judge would actually go to this level of technical granularity, but there has been a long-standing debate about whether electricity should be legally classified as a “good” or as a “service” – and the distinction relies on a scientific understanding of whether you are being given electrons at your home, or just having your electrons vibrated. It seems like the order of operations carried out by a computer program is somewhat of a macro-level question than the movement of sub-atomic particles.

 

*A tiny cottage industry grew out of this: 3rd party websites that allowed people to wager their digital property from Valve’s game. Several of these sites were recently issued cease-and-desist letters after one of them was revealed to be promoting itself under false and misleading pretenses on YouTube.

** I looked around, and was surprised that I didn’t find a case, law review article, or law that dove into this issue with more specificity. I suspect that there has been a case about this, or at least an article – I just don’t have access to a law library right now.

 

UPDATE: I try to add some extra links when the rest of the world catches up to me.

Robot Congress did a podcast on this subject.

The Verge wrote about it.

 

Darkness In The Dungeon of the Mind

Unknowable Darkness

Humans are instinctively afraid of the dark because it hides – indeed, it is – the unknown. Lovecraft’s mythos is horrific because of the themes of the unknowable and incomprehensible. His most terrifying monstrosities are not horrible in their descriptions, but in their defiance of description. As subjects for the unspeakable, Lovecraft included entities from unknowable dimensions, beings of size and power that operated on cosmic scales and geologic time frames. The heart of his weird fiction was the powerlessness and smallness of humanity in comparison to the size and age of the universe. The difference in scope is highlighted by his use of characters of science and academia – those who focused on intellectual pursuits, those best suited to understanding, describing, and explaining anything in existence – and their utter inability to psychologically approach the weirdness confronted in the tale.

We can get through life because we know that Lovecraft’s writings are fiction, and the threat of Cuthulu’s or Azathoth’s indifference evaporates when we turn off the screen of our e-reader. But there is something as unfathomably vast, as untouched by scientific comprehension, and as potentially horrifying that we live with each day: the human mind.

 

How To Explore The Darkest Dungeon

Darkest Dungeon is a mechanically and graphically simple game. It is a roguelike dungeon-crawler (one of the oldest genres of computer games), with turn-based combat and a small world (though each visit to one of the five locations is a different procedurally-generated iteration). The general structure of the game is not a novel concept: you arrange, equip, and direct a party of adventurers through an unexplored region in which you randomly encounter monsters, traps, or treasure. True to the game’s name, the dungeons are always dark, and so the party must bring a supply of torches in order to see. The level of the light provided by the torch is one major factor that will impact the stress your characters suffer. As the stress of your characters builds, they may become overwhelmed and develop traits which undermine their performance on the adventure.

I’m not very plugged into the survival horror genre, but I remember thinking that the sanity bar in “Amnesia” was a clever idea because of the affect it had on actual game play: making the screen blur and making running actually more difficult. Developers have to make careful decisions about how to guide game play functionality, because too many factors on game play with make the game confusing and disorienting. Because game play is, categorically, what sets games apart from other media, those factors which underpin game play are core to any careful analysis of a game.

 

Stress and Psychological Damage As a Game Play Mechanic

In Darkest Dungeon, characters overwhelmed by stress will develop a random trait (e.g., Paranoia, Hopelessness, Fearfulness, etc.). This will cause them to have a chance of being uncontrollable—they might refuse to act during combat or act of their own (impaired) volition. The brilliance is making the mental state of the character directly impact game play: rather than telling me that my archer is overwhelmed by the descent through gloomy and perilous ruins, the game shows me that my combat-trained adventurers cannot connect their will to their actions via their mind—that their mind cannot function in that expected capacity.

My most horrifying moment in this game was when my warrior cut himself with his own sword during combat, while madly raving about his need to bleed. Maybe it struck a dormant chord with my memories of people I knew in high school who struggled with self-mutilation as coping effort for their depression and anxiety, but I stared dumbly at my screen for long moments after that turn. Stunned and aghast, I suddenly understood what the game was actually about: the struggle with one’s own mind in coping with a terrifying, hostile, dangerous world. This game is about watching adventurers break and falter as stress overwhelms them, and trying to save them from the total destruction of succumbing to psychological injury while pressing toward a noble objective.

 

Darkest Dungeon is an Exploration of Something Universally Terrifying: Our Human Psyche.

In the game, you are summoned to your ancestral estate, bequeathed to you by a relative who explored forbidden depths beneath the grounds. As you explore an ancient estate, festering with a recently unleashed and mysterious evil, the real exploration is of the corners of the human mind. As stress illuminates those recesses of impermissible thought and taboo contemplation, characters are set upon by their own inexplicable urges, vices, and fears. However, in an inspired and inspiring design decision, there is occasionally a heroic reaction to the overwhelming stress. A minority of the time, when a character is overwhelmed by the stress of their circumstance, a positive trait (in place of a negative one) bursts forth, imbuing that character with additional power and capacity to carry on.

The exploration of the mind mirrors the exploration of the dungeon: as you explore the unknown, you are likely to encounter danger and harm, but occasionally, you find treasure. Stress becomes the torch by which you discover the parts of yourself that otherwise remain hidden and unknown.

Darkest Dungeon is an impressive example of a game that incorporates mental health directly into the core game play and story without being either patronizing or pitying about it. Indeed, the entire mechanism seems so obvious: would repeatedly wandering into dangerous, scary places have a noticeable impact on your mental functioning? Probably! Yet most RPG-adventures and dungeon-crawlers have the kinds of heroes who are impervious to fear or stress, so this kinds of interaction is scarcely considered in most games.

 

Dismissing Horror With the Light of Science

Andrew Scull documented the shift in Western social approaches to mental illness over the course of the last few centuries. The general shift was from the view of mental illnesses as supernatural and unknowable to scientific, psychological, and neurobiological. As science began to understand the brain, mental illness became a thing that could be understood and addressed. This progress continues to steadily lessen the fear and stigma around depression, OCD, schizophrenia, autism, and other diseases and conditions whose bearers would previously have been ushered out of functioning society entirely. As afflictions of the mind are understood more as chemical imbalances or neurological disconnections, rather than as demonic possessions or as indications of a subhuman status, the terror of the unknown recedes, as shadows from a torch.

In Darkest Dungeon, keeping your torch at the brightest level minimizes the stress your party absorbs. As much as darkness imposes fear, light invites confidence. Just as Lovecraftian horrors would lose their terror if they could be seen, understood, or described, mental illness is losing its own grip of social terror as science begins to see, understand, and describe the tremendously complex organ that is the human brain.

May your torch burn bright.