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.

 

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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.

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.

EDIT:

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 Todd Howard Thesis

I’m getting rather busy with some law school projects at this point. For my E-commerce and Law course, I’m doing a final project on Privacy Policies that requires me to read around 50 policies and evaluate them (after I develop a system for evaluating privacy policies). I’m also undertaking a really fun but unnecessarily ambitious final project for my professional ethics course, in which I will posit some new ways to approach legal ethics (something similar to virtue ethics). There are three other law courses in addition to these more exciting projects.
I have a few blog entries I’m working on, but they’re so much like the schoolwork I’m doing now that I would rather take a break from that. I’ll post some entries about privacy, data management, legal ethics, and trademarks in the coming weeks. For now, I want to post a little about videogames.
Here is one of my favorite discussions of videogames, by the project leader of two of the best videogames I have ever played (Fallout 3 and Skyrim):
http://www.youtube.com/watch?v=7awkYKbKHik

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

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

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

Five Practical Lessons From League of Legends

1) Not everything that counts can be counted; not everything that can be counted counts. At least weekly, I see a game won by the team with fewer kills—and sometimes with fewer turrets. Often, I hear players with the most kills on their team assert their excellence at the game as they deride others (often on their own team) with fewer kills. Yet there is no record kept of who bought the most wards. There is no quantification for ward placement turning games around, or the timing of a stun that won a teamfight. Stats are fun to look at, but they can never tell the full story. Despite the fact that the game is played on a program based on mathematical algorithms with pre-specified parameters, the experience cannot be reduced back to numbers and raw data.

2) Five Ingenious, Great Plans are a disaster; One Moderately Good Plan is usually a Victory. Some of my worst gaffs have occurred when I have had the most specific, clear plans in my mind—and when the rest of my team had their own specific, clear plans, too. It is not rare enough that one person wants to retreat while the other leaps in to attack while another feels it is important to sneak around for an ambush from the side, etc. Each plan is clever and well-reasoned, but each ends in disaster because everyone is carefully trying to execute their own incompatible plans.

3) It is easier to tell people that they “suck and should uninstall” rather than provide any useful, helpful advice. People talk a lot about being “team players” with “communication skills” on resumes and in interviews 90% of the time. These skills are actually displayed in LoL about 10% of the time. Proper, useful, effective communication is more difficult than people think. Expressing displeasure is easy (most teens, even children, know a good collection of four-letter-words—for that matter, even babies can cry). Being helpful, constructive, and positive is a real skill that takes effort and thought and does not come easily or naturally to most people-especially if they feel frustrated or discouraged at the time. Games in which teammates encourage and build one another up are both more enjoyable and more likely to result in victory than games in which players focus on one another’s failings. Despite the fact that everyone knows there is a post-game chat available in which you can spend hours dissecting and analyzing and blaming, people would prefer to do that in-game while trying to play. It is no accident that directors and coaches give notes on how to improve after a performance or competition. League of Legends reinforces the value of saving some feedback for later.

4) Trajectory Is Predictive. Most games are won or lost in Champion Select: if people are arguing and fighting each other before the game starts, there is a good chance there won’t be good teamwork in the game. Once the game starts, if things start to look bad early (maybe with a few early kills against us), they will get worse if frustrated players spend more time blaming than playing. (Press BLAME to lose.) The larger lesson is to remain focused on working towards goals and not allow yourself to be completely derailed by setbacks.

5) We play for the Experience, not the Outcome. I like victories, sure. But what makes the game fun is the experiences that happen within the game. I really don’t remember my wins and losses, but I remember the time I was Garen and I chased Vayne all over her jungle with her entire team in pursuit, and how my heart was actually pounding by the time I caught up to her and ended her 23-streak killing spree. I remember the time I was Nidalee and I ran an entire lap around the map while getting chased, juking in and out of brush. I remember wining a 1v1 against a Caitlyn as Nami, and how excited and proud I was to win that underdog fight. There are dozens more of such memories. There have been plenty of games I’ve won, but still felt annoyed or frustrated or bored: winning doesn’t mean the experience was satisfying. And I’ve had plenty of losses that I would happily play again because the game was just fun, whether because my team was a lot of laughs to play with, or I had a really cool play I was proud of, or something else that made it a rewarding and enjoyable experience.

Does Theorycrafting Take the Magic Out of the Game?

I could never get into competitive RTS play because it seemed to amount to a speed-clicking competition. The “strategies” became so pre-baked and scripted that it never felt like I was really a commander of a force, but rather that I was an accountant who had researched and crunched the numbers. So much of the fun of games is finding creative solutions to surprising challenges. Predictability is the enemy of this endeavor, and nothing indicates predictability like “optimal strategy.”

The term “optimal strategy” is used in both video games and game theory (the study of decision making, discussed often in economics and philosophy), but I think there is an important (if subtle) distinction between their usages in these areas. In game theory, an optimal strategy is the one which yields the best outcome given the values selected. In a video game, an optimal strategy is the mathematically calculated best combination of skills and gear to produce the highest ratings of armor, DPS, or some other selected trait.  The important difference is that the game prescribes and directs the nature of the optimal strategy in a way that a game theory scenario does not.

For game theory, an optimal strategy depends on what you value as an outcome. For a scenario involving distribution of ice cream among 3 children, one person might value equality of distribution while another might value giving the children the illusion of equality (to keep them happy), while a 3rd might value teaching a lesson about the unfairness of life (and so distribute it unequally). That’s a terrible example because it’s not really about game theory, but it’s quicker than a proper game theory scenario would be, and you get the idea: in this type of “game,” you can value almost anything.

Most video games don’t have this kind of value flexibility, in that they only reward specific outcomes or achievements (“winning”). Therefore, the optimal strategy is always directed toward winning (in the sense defined by the game, not the player). An optimal strategy (in a game theory sense), could involve collecting pretty flowers in a video game because that makes me happy. However, the optimal strategy in the video game sense is not interested in my happiness, only in achieving the goal designed by the developer (who has proudly assumed this goal will bring me happiness).

Theorycrafting—the practice of finding the optimal strategy for a video game—is a great way to mathematically calculate a path to doing what the developer tells you to do: win. However, for those of us who play games to play them (not win them), theorycrafting can feel misguided, even undermining the point. Winning feels good, but so does playing. And somehow, a victory never feels as good if it came from someone else’s script rather than my own intuition or as a result of my own experience. Perhaps your feelings toward theorycrafting are a direct result of why you play games: to WIN, or to PLAY.

Why are Video Games Art?

An ongoing debate that interests me is whether video games are art. Some critics feel this debate is meaningless, impossible, or pointless. I disagree on all counts. This requires careful definitions of both “art” and “video game,” and neither side in this debate seems good at defining either. Film critic Roger Ebert has said that video games are not art because they have a point and you can win. Others agree that fine art can’t result from player choices, so the structure of video games precludes them from being art. I argue that most understandings of “art” require involvement by the viewer, and video games only underscore that involvement – but do not deviate from the structure of art.

Art has been defined variously through history: Plato (the forms), Hume (discerned taste), Kant (play between imagination and understanding), Schopenhauer (romanticism), Hegel (expression of universe), Collingwood (emotion), Bell (formalism), Benjamin (art as political), Merleau-Ponty (phenomenology), Sontag (erotics). Under any serious definition that allows architecture, sculpture, painting, poetry, music, and film to be dubbed “art”, video games must also be embraced as art. Note that I speak of potentiality: one may crudely smear paint on a canvas or crack one rock against another, we do not call these artistic paintings or the broken rocks sculptures. Likewise, we are not inclined to call the latest Hollywood summer blockbuster remake of an action film “art like Citizen Kane.” We need not defend Call of Duty or Madden ’12 or pretentious broken indie game #403 as “art.” My argument is not so much that “video games are art” as it is “there are no inherent barriers to prevent video games from consideration as art.” As I present it here, the argument will have two parts.

The first part of the argument is defensive: Why should player choice negate the artistic quality of a game? A good portion of thinkers, artists, and critics (if there is any difference) have valued the interpretation of the artistic piece. Is not a player’s control over the gameplay only a manifestation- a bringing forward- of the interpretations of art? Is it truly an act different in kind to navigate a character through a room than to navigate one’s eyes through a painting? If fine art involves a spectator and interpretation—someone to appreciate the form or interpret the content—there should be no qualm here. I posit that controlling gameplay is aesthetically identical to appreciating and interpreting other art: the viewer makes choices of what to see, where to “go”, and how to approach what is encountered. If there is a complaint about video games, it is that they make clear and obvious the processes that are often hidden from ourselves about our interactions and interpretations with The Aesthetic.

The second part of the argument is affirmative: Video games are art because they meet the requirements of the definition (of art).  I don’t have space here to outline each of even the major theories of art. But many concepts of art center around either the nature of the art itself (“formalism”) or the content it expresses (a focus on emotion). Video games have shown they can excel in either or both of these categories. Kant’s explication of beauty (in Critique of Judgment) relies on a notion of “play” between one’s faculties of imagination and understanding. Certainly, no medium “plays” more with a person than a game. Perhaps, on this view, all other beautiful art- paintings, sculptures, movies, and the rest- are actually games. And what’s more— the better the game is, the more beautiful it is.

If video games are not art, they are “superart:” some new mesh of artist and patron, their combined efforts of creativity and interpretation brought to new levels of involvement and interactivity. Perhaps the complaint that video games are not art is a cry of jealousy that no previous medium has the potential to explore the Aesthetic at this level.