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.


After thinking a little more about it, I need to add something: Blizzard has some incentive to promote any eSport, because eSports is still relatively new. The NFL doesn’t get as much value from promoting other sports because most people know about traditional sports, which have over a century of history. Perhaps Blizzard could promote competitor’s games on the theory that “a rising tide lifts all ships.”

*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.

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.


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.*


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).


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).

Perspective And Video Games.

Art is twice-over about perspective: people have different perspectives on art, and art offers different perspectives on the world. I posit that the objective viewpoint is only the amalgamation of a variety of subjective points cobbled together. Video games offer a unique manipulation of perspective inasmuch as a player is both a character and a player simultaneously. That is to say, when I play Splinter Cell, I “am” Sam Fischer: a highly trained, top secret clandestine operative on a mission of international import… but I am also a non-spy guy just sitting in his living room, eating pizza and drinking soda and playing a video game.

I first noticed the manipulation of perspective while playing (of all games) Duke Nukem 3D. I remember that game as one of the first I played with the ability to mouse-look up and down (in contrast to Doom and Wolfenstien3D). I noticed that when I fell from a very high height (after using the jetpack), my own legs would go icy and I would feel a little as though I were falling (not to mention a tremendous rush of adrenaline, a deep tension in the pit of my stomach, etc.). The surprise was this: playing a game in which I either died a lot or was invulnerable could make me suddenly and deeply aware of my fragile mortality. This opened worlds of new ideas, experiments, and possibilities; the vastness of the possible implications still excites me.

Remixed Culture

The Eiffel Tower, Gangam Style remixes, and the protest marches of the mid-20th Century are all pieces of culture. They represent people in a robust way—their dreams, their identity, their values, how they spend their time, how they see themselves, how they want the world to see them—, and it amazes me that those kinds of things can be represented in a photograph or 3 minute video. Entertainment media is fascinating to me because of the way it captures and represents people, and at the same time shapes them as they react to the captured representations of themselves. Whether they represent struggles, joys, triumphs or defeats (or any combination of events and the feelings that accompany them), our pieces of culture form a patchwork of symbols that tell the story of our civilization.

The law must grow in a way that allows that patchwork to continue to be stitched, even if it sometimes wants to stitch itself in ways we did not think the laws of physical space would allow. With so much of our culture digitally recorded, we can rework, remaster, remix, rewind, review, and all but redo the pieces of our culture. The process and tools of this cultural reworking become their own cultural artifact, symbolizing a culture of reflection, creative generation, and communal response.

The Legal Analysis is this: works derived from copyrighted works, if they use protected elements of the work, can be infringements. The 17th Chapter of the United States Code (a massive collection of federal laws passed by congress) addresses copyright and describes derivative works. However, a landmark 1991 Supreme Court case (Fiest v. Rural) is famous for establishing originality as the key and core precept of copyright. Recent developments in remixing and layering expose the tension between the case law and the statutory law. If remixes use copyrighted material, they can be considered derivative works. However, if remixes are original works, they are subject to their own copyrights. A 1994 Supreme Court case dealt with the creation of parody songs, and is noted for its emphasis on whether the new work is “transformative.” One question that can be posed is this: “Is a remix or mashup transformative or is it derivative?” Seeing some uses of technology to create new works as transformative rather than derivative can abate much of this discord. Generally, the two tools I think have the best potential to help resolve this tension are the Public Domain and Fair Use (which permits transformation of works). By expanding the meaning, significance, and use of these tools, the law can be made friendly to 21st century techno-culture while retaining the basic principles of copyright law.

The Social Analysis is this: When Time magazine named YOU the person of the year, they weren’t merely being pithy or lazy (benefit of the doubt being given). They were trying to capture this new era of Web 2.0, user-generated content, and remixes. They wanted to signal a shift in our culture. We are moving away from the old days of established entities determining who will be the next superstar and toward a future in which blogs and vlogs or a webseries may simply “catch on” and gather tens of thousands of subscribers with millions of views.

Yet as technology gives artistic, political, and social voice to so many new people, I worry that any kind of constructive progress is hindered by the sheer quantity of new material. If millions of people can easily and immediately tweet, blog, comment, post, text, e-mail, message, etc. a CEO, president, senator, secretary, etc., is democracy really served? If there are millions of blogs out there, and even hundreds which I might find greatly important and personally enriching, do I have much hope of finding them, much less reading all of their content? Tagging, categorizing, and searching are all useful tools, but they can only take us so far… we need something better if we are to get the most out of this Era of User Generated Content, the Digital Age, Web 2.0, YOU.

Technology and history have conspired to create a culture delighted by blurred distinctions, reflexivity, and overlap. The remix, the mashup, and other layered works are the cultural artifacts of the upcoming generations. The law must grow very carefully if it is to mete justice here, walking a delicate line between a communal culture of layered uses of ideas and a moral and economic requirement for proper respect for ownership of those ideas being layered.

C.P. Snow and the Digital Divide.

C.P. Snow lamented a gulf between science and literary intellectuals. That gulf still exists (perhaps it is a little different now than in the mid-20th century), and the explosion of technological development highlights it. Video games (and other entertainment media) offer a chance to bring together the left and right sides of society’s brain.

It may be that the law feels the distance between art and science that Snow considered in the context of academia. Patents may be associated with the protection of the scientific world (though they protect technology, not science) while copyright protects artistic expression. Does a distance between science and art keep a distance between two halves of IP (Trade secrets and Patents vs. Copyrights and Trademarks)? I think it does, but I’m not convinced this is altogether terrible: there are good arguments for treating patents and copyrights differently.

Law is sometimes seen as being an institution of order, measurement, and judgment. However, law is also the tool by which we gauge and weigh other institutions in society— and it is not reasonable that the instrument of measurement can measure itself. Law is often an effort to balance art and science, logic and experience, is and ought, the many and the individual—yet, if it is fair, it cannot wholly be any of these things. Perhaps an effort to bridge Snow’s Gulf could benefit law as it could bring a more holistic context to choices about either art or science. Understanding the technology and science underpinning patents as well as understanding the cultural implications of artistic expressions help each respective discipline grow. More importantly, this cross-information becomes essential as these disciplines overlap. Legal practitioners are better able to make proper legal decisions if they understand both what YouTube is (how the technology works) and what the economic and cultural implications of posting videos with copyrighted materials on YouTube are.

The Law and Art

Art can be at odds with law at times. The law is the essence of order and structure, in the tradition of Apollo. Art, especially in the last 50 or 75 years, has something rebellious, chaotic, and even destructive or reconstructive about it—it smacks more of the orgiastic tradition of Dionysus. Yet the law sees a need to protect art. In the US it does so through both constitutional free speech provisions as well as through copyright protection.

What makes art powerful? Art takes the small pieces of our lives that we don’t notice or don’t want to think about and magnifies them for us. It helps us (or compels us) to see what we don’t [want to] notice. Art is necessarily always a little closer to the edge, because its function is to explore those fringes and bring back to us the parts of ourselves and our realities that we omit. It is easy to be afraid or critical of art in society because if it is done properly, it brings us face-to-face with some truth—and that can be an uncomfortable experience. From the protest songs of the 1960s to the Gothic Architecture of the high Middle Ages, art has felt a need to express the feeling of a generation distinct from its predecessors; art is forever dabbling in change, shift, exploration, progression (even if through regression), or rebellion or some sort.

How can something rebellious and chaotic be protected by order and law? Why should it be? Perhaps it is because the law sometimes understand its own need for growth and transformation—a need to endure through flexibility rather than to break as a thing brittle and rigid. Perhaps art both crafts and chronicles the human condition and our human experience. Inasmuch as “the life of law… has been experience,” it is entirely fitting that art and law be friends.

The Subjective and the Objective: A Difficulty of Censoring Art.

I usually use these two terms to distinguish circumstances about which one may reasonably draw a variety of different, even conflicting conclusions (subjective) from circumstances about which there is a significant limit on the number or types of conclusions one can make. The easiest example may be a preference about food or art contrasted with a mathematical equation or the mass of an object. The first sorts of things can be disputed without a “right” or “wrong” answer (generally). The second category of things really can’t accommodate mutually exclusive conclusions; an object can only have one mass, two numbers can only sum to a single value.

The question does not seem to be whether these categories exist (though that may be disputed), but rather which types of circumstances fall into which categories. Can an explanation of a concept be objectively good or bad, or is the good explanation the one that conveys meaning and results in understanding? (Can someone be objectively good or bad at teaching?)

Another issue arises from this categorical dichotomy: how can we deal normatively with the subjective? It is easy enough to enforce objective laws and reward objectively positive performance—but how can we pass judgment on the subjective? The more circumstances we consider subjective, the less our tools of the modern, industrial era seem equipped to handle the world.

These questions apply readily to most issues related to art. It is often said that “art is subjective,” yet there are some things we are more comfortable considering art than others (a still life by a Dutch master vs. a pile of dog poo on a photo of a pop star). Further normative questions arise for art when we become concerned about untoward implications of the medium: Do violent movies, music, and games make us more violent as a culture? Although it is easy enough to make to the judgment to the effect that “a violent society is bad,” it is more of a challenge to say “this particular art ought not be published because of its possible results.” While issues of violence and suffering seem to be almost entirely objectively bad (except perhaps to a sadist), art remains subjective even while it depicts violence and suffering. Many focus on the question of whether such depictions cause mirroring realities, but I think there is also a question of what the depiction itself says. Art is a sort of text, and texts (may or may not) have intentions, goals, and meaning. The trend towards seeing more of the world in increasingly subjective ways has freed art in one way: to give it more flexibility and fluidity, particularly in interpretation. However, it may have restricted art in another way: by making it less clear what (if anything) a work means, it is less clear that it ought not to be censored.

The more subjective art is, the greater the danger of legitimate arguments for its censorship. The more objective art is the less flexible and fluid its interpretations become, perhaps undermining a core purpose of its existence.