What Slay the Spire can Teach About Digital Media Access Decisions

When I heard that iTunes was scheduled for destruction, I was baffled and alarmed. I have since learned that the service is being split and re-branded, in a sort of platform-mitosis. But I had several conversations in which my interlocutors were not persuaded of the merits of media ownership over streaming media. Having collected my thoughts, and faced with Google’s Stadia announcement as well as even the phantasmal threat of an iTunes closure, I hope to make a case here that media ownership reduces wildly unpredictable and uncontrollable elements of media consumption.

Slaying The Spire, With Just a Little Luck (Or a Lot of It)

Slay the Spire is a rare case in which combining a lot of ideas into a game doesn’t make the game feel chaotic and confusing. The game consists of progressing through the levels of an eponymous spire, each level consists of some encounter or event—very, very often, a combat event. Combat in this game is a resource-management card game: using a limited pool of “energy,” cards are played that either deal damage or prevent damage from being taken. Each card costs a different amount of energy, so strategic choices have to be made to optimize offense and defense. At the end of a combat, the player is presented with three choices for a new card to add to the deck. The same deck is carried through the spire, so each completed combat presents an opportunity for new cards for future encounters.

Slay the Spire gets its replay value from the unpredictable factors that permeate the game. There is randomness within the combat encounter, as a player’s options are defined by the cards that are drawn from the deck on any given turn. Then there is further randomization in the events themselves (what enemies you fight, if any, on any particular level of the Spire). Slay the Spire adds randomness in the building of the player’s deck: there are no guarantees that you will even have the option to add a certain card to your deck in a particular run of 50 levels in a Spire. (I once spent an entire run through a Spire trying to assemble a deck centered around one specific card that would greatly amplify my defensive capabilities—I never even saw that card, and inexplicably still got to the final level.) And I haven’t even discussed the role of Relics in the game, which can provide small bonuses or fundamentally alter game mechanics. All of these unpredictable, randomly-generated chances and choices give the game replay value and make it interesting, fun, and challenging. Putting choices out of a player’s control can be an element of a great game, but it’s not a part of a great day.

 

Unpredictable Elements

There are a lot of components involved in the everyday digital tasks that fill (and sometimes sustain) our lives. The device has to work properly, it has to connect to a network, the network has to function, and we also rely on the server that hosts the data we want. Anything from dropping a cell phone to a power outage to an unplugged cable somewhere in a distant city can cause the entire process to fail. It is really amazing and awe-inspiring that the entire system works as well as it does. Of course, sometimes, something goes wrong.

For purposes of today’s discussion, I think it’s helpful to divide the possible problems into two categories: those in the user’s control, and those outside of the user’s control. So, whether I charge my cell phone, whether I spill water on my computer, whether I use a program correctly—those are, practically speaking, in the domain of the user. However, the city’s electrical power grid is not something a user can single-handedly maintain or repair. Similarly, the user cannot control conditions at a distant server farm, or control the telecommunications network that links the user to those servers.

This, it seems, is where I diverge from so much of my demographic cohort. I don’t want my access to media to rely on these two additional components (telecommunications and data-holding servers). Maybe I would feel differently if I had better experiences, but I have repeatedly been unable to play games or watch movies because at least one of these components has failed. I have encountered this setback for over a decade- in some cases, I have experienced it daily, over the course of months. In contrast, when I think back to those halcyon days in which I owned my media, the only obstacle was a scratched DVD or a VHS tape that was just too-well-loved (we all have a childhood story of the tape that we watched so many times that the playback became warped and distorted).

Conclusion

The unpredictable nature of the available choices in Slay the Spire keeps an otherwise repetitive game novel and engaging. By forcing the player to consider various probabilities and possibilities, the game creates challenge and the kind of frustration that invites a player to learn, try again, and do better next time. I cannot understand the kind of person who willingly invites this kind of challenge and frustration into the process of trying to listen to music or watch a movie. Conversely, if a player had control over any of these random elements in Slay the Spire, the game would be easier. For both Slay the Spire and media access, generally, the same rule applies: the more control one has over the variables, the less challenging the experience.

There are other issues implicated in this debate that I didn’t touch on: the data privacy questions that come with streaming and DRM protections, the reasonable efforts of artists and publishers to protect their copyrights and profit from their works, the legal status of digital goods, etc. Those issues deserve consideration (which is why I have written about them before and will do so again), but I wanted to keep my focus narrow for the sake of clarity. My perspective on this question can be distilled to one personal point: I do not feel that there is evidence to support the claim that US telecommunications networks are more reliable than I am. I simply trust myself more than I trust those corporations, their services, and their infrastructure. Likewise, I trust myself more than I trust the media companies that provide the platforms and media. This is true on a day-to-day basis (for telecom), and it is true for long-term planning (media providers make no promises that they will last longer than my interest in the media they provide).

I can trust electricity providers—they have proven themselves. Power outages certainly do occur, but their frequency, cause, and duration are within acceptable parameters.* Maybe it comes down to what inconveniences, unknowns, and probabilities we are willing to accept. I can live in a world where my electricity is out for maybe 30 minutes per year. I’m not excited to choose a world in which I can access my own leisure at the leisure of so many other people.

 

 

 

 

*The fact that power failures necessarily cause network failures would be a meaningful riposte if my point were strictly confined to unadjusted uptime comparisons.

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How Pirates Change Games (It’s Usually Not An Improvement)

Sea Of Thieves: It’s Not Called “Sea of Cool Guys” – Mike Krahulik

Sea Of Thieves is a game where people who want to be pirates can be pirates. Some players really, really  get into the role. Every online game community has experienced some trolling and griefing; there are always players who invent their own game, though it’s always the same game, in which the objective is to make other players unhappy. The developers of Sea of Thieves specifically designed space for that kind of player—unlike other games which seek to curtail negative behavior and ban players who ruin a good time for others. In a game about pirates, wanton aggression has a place.

 

When You’re a Professional Pirate…

It took me a while to understand how copyright infringement (and counterfeiting) came to be called by the same term that was previously reserved for attacking a ship, killing the crew, and stealing their stuff. The two crimes don’t really look similar: copying a digital file rarely involves a cutlass or a flintlock pistol, taking barrels of rum or chests of gold, and typically doesn’t involve boats at all (except when moving a lot of counterfeit goods internationally, I guess).

I think the term makes more sense from the perspective of the owners of the rights. Pirates of the 15th-19th centuries were hard to find, hard to predict, and hard to pursue. Sometimes their attacks wouldn’t be noticed for months, as it was hard to get good cell phone reception in the mid-Atlantic in the 1600’s. So, when music, movies, books, and games started getting copied and distributed, and rights owners struggled to identify who was doing it, where they were, or what they might do next, as they completely disrupted the industry’s ability to sell and distribute their wares, I imagine pirates came to mind.

 

Countermeasures

Media industries reacted to piracy differently, as best fit the particular medium. The music industry moved away from physical goods and into the digital marketplace. The iTunes Music Store was, in many ways, like the P2P networks that had threatened the industry, except that Apple was the only one seeding and they charged for each song.

The video game industry took a different approach. After a short-lived effort to encrypt physical copies, the industry moved to a digital distribution system. This was easy enough, and platforms like Steam and the Play Station Store were already moving the industry in this direction. The next move, however, was for the internet to start shaping the way games were played: online gaming became increasingly popular, and developers and publishers realized that it was easier to keep track digital copies if devices had to connect to the company’s servers. It was a natural fit: the games already involved internet connection, so it wasn’t much more work to have the serves check to see if players had authentic copies of the games. Because the game required player to be always online, this method became known as Always-On DRM. When it worked well, it was something that honest players would never notice or think about. But it didn’t always work so well.

Rebellion

The new system worked well for some games. Other games… well, suffered. Sometimes, the online connection requirement was obviously completely artificial and frustrated players because the setup made no sense. This exacerbated problems in cases of poor execution: when a server couldn’t connect, it was even more frustrating when the server wasn’t necessary for the game experience. Even today, not everyone has a consistent, stable, high-speed internet connection (especially in the US). Many players just wanted a simple, single-player experience, and Always-On DRM interfered with that. The method created an environment that only allowed players to play when the company was able to facilitate it; if the server was down, or the connection was slow, the game was unplayable. This upset people who paid for a leisure product and then found out they could not use it at their leisure. By increasing friction and fuelling resentment against the game industry, some game companies suffered as they tried to implement Always-On DRM. The artificial inclusion of Always-On DRM to the reboot of the incredibly popular and successful video game SimCity is credited with its failure (notably, the execution of the Always-On DRM was sub-par, as the server was frequently down or buggy).

 

Pirate By Design

Sea of Thieves found success as a game by embracing a certain attitude that the rest of the industry had been fighting for decades. The developers made a space for people who want to undermine the work of others. So far, it’s been an interesting experiment that I can only predict will culminate in the coagulation of that particular kind of trolling, griefing player. I see it as a kind of prison in which the inmates believe they are at a theme park. Maybe the game will eventually give us some kind of data about trolls who revel in ruining the joy of others. Maybe it will teach us something about pirates.

There is already a lesson about piracy for video games. In the early 90s, piracy was built into the business model of some companies. They called it “shareware,” and the idea was that people would copy and distribute a portion of a game. The developer hoped that this would serve as a sort of advertising, and people who enjoyed the shareware portion of the game would then purchase the full game. In 1993-4, idSoftware proved that this model was feasible with one of the most popular games of the 90s: Doom was distributed widely as a shareware product and the company made enough profit for the head programmer and the lead level designer to each purchase a high-end sports car. This year, idSoftware released Rage 2; unsurprisingly, the new parent company, ZeniMax, did not opt for a shareware distribution model. The video game industry has changed over the last 30 years. It takes a special combination of product, customer, and ecosystem for it to be a smart choice to give away a third of your product for free—but it’s not an impossible dream.

Today, piracy remains a problem for the video game industry, but new legal challenges (some with more legitimate basis than others) have proven more urgent: legislation of loot boxes, esports contracts, prosumer sponsorship deals and disclosures, copyright infringement within the game, and copyright infringement for streaming and video uploads.

Maybe that’s the best reason to keep the term “piracy” for copyright infringement that involves copying the entire work and distributing for consumption as a counterfeit or inauthentic product: there are so many ways copyright can be involved in a video game in the current digital ecosystem, have different terms for the different infringements is nice.

K/DA and Holographic Performance: Computer Code or Dance Choreography? 

Copyright applies when a creative expression is fixed in a tangible medium. This has presented questions and problems for certain kinds of creative works, of which my two favorite examples are fireworks and dance. Like a beautiful explosion of color in the night sky, the dancer does not leave a fixed expression in a tangible medium after leaving the dance floor. However, it is possible to fix the dancer’s choreography in a tangible medium—and maybe there is a new way to do that.

“So Keep Your Eyes On Me Now/ The Show Is About To Start”

At the 2018 League of Legends World Finals, some 90 million spectators (including some 23,000 live at Munhak Stadium) were treated to a musical performance that featured life-sized augmented reality projections of fictional pop-star characters dancing alongside physically present, corporeal, non-fictional dancers. This is not the first time a hologram has performed at a live concert: Tupac graced Cochella with his digital and photonic presence in 2012, despite the inconvenience of his death in 1996.

My idle, speculative quandary in the case of K/DA Pop/Stars is whether a dance routine performed by holograms can be registered as choreography for the copyright office. For a lot of reasons, it really doesn’t matter in this case—Riot isn’t going to litigate around this issue (though people may change their tune about copyright), and to the extent that they do need a copyright registration for this, it’s unlikely to matter whether it’s classified as choreography or as a computer program.

Still, it’s an interesting issue to explore because the finer details of technology can sometimes inform how a judge will rule (as in the case of embedded Tweets).  Can someone register copyright for a computer program that directs the lights and projection machines to present the images of the hologram in such a sequence and manner as to create the illusion of a dancing individual? It would be interesting to see how the Copyright Office or courts would parse a computer program for a dancing hologram.

 

Drawing Distinctions

Law can take controversial twists around new technology because an adjudicator struggles with the technology involved. Typically, this means someone has either embraced the extreme of refusing to recognize a substantive difference in a new technology, or someone has gone to the other extreme of imagining a difference with a new technology that isn’t supported by reason.

When faced with new technology, the easiest move is to look back at other technology and see if an analogy can be made. The obvious subject for comparison is traditional animation. In broad concepts, there are plenty of similarities between creating a hologram dancer and drawing and animating a dancer. The tools are clearly different- so how similar is a keyboard to a pencil? The uses, purpose, function, and the end results of the tools are similar enough—but there are also very clear distinctions. Copyright law has made an effort to be medium-neutral: it doesn’t matter if a novel is written on paper, caved into rock, or saved in a PDF.

It might be that augmented reality and holograms are simply a new flavor of animation, and, from a copyright perspective, there’s simply nothing new to see here. However, the combinations of new technologies are more likely to produce something substantively new. Anthropologist Thomas de Zengotita is fond of the point that a hurricane is just a lot of breeze—yet everyone treats the two as substantively different. I take it that he means that a sufficient accumulation of non-substantive changes, at some point, creates a substantively new category. This is the core distinction that adjudicators have to make: is a new technology substantively different, or just a different medium for something that is already established?

 

“So Can You Handle What We’re All About?”

Is a computer program of choreography is substantially different from a recording of a dance? The choreography is the script for the dance. A recording of a dance is how a particular dancer happened to perform the dance. Copyright distinguishes between the sheet music and a recording of the performance. In the case of a computer program that simultaneously generates a dancer and dictates the movements of that dancer, can the performance be separated from the script? The choreography only exists as it is embodied in the performance itself.

This raises a further question as to whether effects of the performance are also part of the choreography: for example, the moment in which Kai’Sa fires a firework-like lighting effect during the performance. If it is part of the code, and the code is the choreography, then this effect is part of the choreography—although it seems like something that should be a production direction, not part of the dance itself.

As unlikely as it sounds, some adjudicators might look to the question of whether the computer code recognizes a difference between pixels and limbs. That is, the question might turn on whether humans can recognize the code as dance instructions. An adjudicator might reason that the computer cannot dance, and so the execution of the code is not the performance of a dance– thus, someone who can dance must be able to interpret the instructions so as to perform the dance.

If we want to make this more interesting, we can imagine this technology combined with an AI that creates new dances. Here, the AI dancer is also the author (unless the author is the rights holder of the program). We can further ramp up the question by putting this AI choreography in a robotic humanoid body and turning it loose on the dance floor, where it transcribes its own choreography as it creates it.

 

Fortnite Is Dead, And So Are The Copyright Claims (Hyperbole or Prognostication?)

If Riot (I assume Riot holds the rights for the K/DA performance) can register the work as a dance, they will probably need to register the entire dance. The Copyright Office has rejected the attempts to register the brief dances (micro-choreography?) of several plaintiffs who are bringing suit against Epic Games. As I already discussed, these plaintiffs may still have claims under some use of personal likeness laws, but it looks like their copyright claims are unlikely to get off the ground after the Copyright Office denied registration.

 

The Bigger Picture: “Wish ya luck”

Ultimately, this is exciting because this is what it looks like when technology, culture, and law meet. This is exactly what it is: Epic Games monetizes dance moves that are popular and known and publicized, and before the lawsuits can even be dismissed, Fortnite has already lost its player base to Anthem and Apex (odd twists of identity theft included for added 21st century flavor). These fringe, unimportant, idle explorations form the basis for decisions that affect the bottom line of corporations and the constraints on artistic productions. For the adjudicators of copyright law, this only gets harder: As computers become increasingly sophisticated and increasingly common tools for the production of works of art, the Copyright Office will face increasingly difficult questions.

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.”

Computers Are Not Problem Solvers- Computers Are the Problem We Must Solve.

The New Checkout Cashier That Doesn’t Care If You Starve

There is an effort to use a simple AI at the office where I work. Some slick salespeople sold the building 2 cutting edge, top-of-the-line, automated checkout machines. These machines have a camera that stares at a designated check-out square. People simply select the items they wish to purchase and place it in the designated area. The camera recognizes the items, registers the purchases, and the person then swipes their card and completes the purchase process. However, the camera sometimes does not recognize the item- and there’ s no other method for buying the item when this happens. I leave my snack or drink by the incredibly expensive and completely useless machine. Betrayed by technology and the salespeople who sold the devices to the facilities management, I walk back to my desk in anger and disgust.

It’s a simple story, but an increasingly common one: we start to rely on technology, and when it fails, we just hit a wall. It’s not clear to me what advantages the camera offers over a scanner (which is used elsewhere in the same cafeteria for self-checkout). This kind of story will be more common as more people rely on smart homes, smart fridges, smart dishwashers, smart alarm clocks, etc. The “smartness” behind each of these is rudimentary AI- recognizing patterns and sometimes making simple predictions. The hope is that the technology will understand its role and take a more proactive approach to helping humans.

However, the technology doesn’t understand its role, and it really doesn’t care about helping humans. When AI encounters an error, it doesn’t go into “customer service mode” and try to help the human achieve its goal. It doesn’t try to resolve the problem or work around it. It just reports that there was an error. If a retail employee did this, it would be the equivalent of being told “I can’t ring up this item,” and then the employee just walks off to the break room. Most people wouldn’t return to a store that had that level of customer service. People born before 1965 would probably even complain to the manager or local community newspaper.

These problems can be resolved, but the fixes are rarely designed into the technology at release. I’ve had this problem with the checkout machines at work about 7 times over 7 months (I don’t even try to use them more than about once a week)- I am aware of no effort to improve the situation. Because the designers probably never use the machines, there’s a good chance no one in a position to fix the problem is aware of the problem.

More Dangerous Places to Put AI: Cars and Financial Markets

The fundamental problems for AI are annoying and disappointing when they deny us snacks or try to sell us shoes that we already bought. But these problems are amplified from “annoying” to “tragic” and “disappointing” to “catastrophic” when they manifest in vehicles and financial markets. If our AI checkout machine doesn’t care if people can purchase food, what else are we failing to get AI to care about in other applications?

AI is the newest technology, which means it is subject to all of the failures of previous technology (power outage, code errors, physical tech break) and also the new failures of technology (AI-specific problems that sometimes actively resist resolution).

None of this is anti-technology- on the contrary, I think AI is a fantastic development that should be used in many applications. But that doesn’t make it a great (or even acceptable) tool for every application. A warning that hammers should not be used to put screws through windows is not a diatribe against hammers, screws, or windows. It’s just a caution that those things may not mix in a way that will yield optimal results.

Regulating The Internet? Not the Tubes Themselves…

If Net Neutrality is an argument about economics (and federal administrative law), Content Regulation is an argument about ethics and culture.

Net Neutrality is becoming an old hobby horse for a lot of people. It gets a lot more attention than most telecommunications policy issues. Even though questions about copper wire lines vs fiber optic cables actually affects more people, the internet is generally united by the fact of its own existence.  This is about regulation at the highest level, determining the equality and/or equity of access to content. No one online is indifferent to the internet—the only debate about net neutrality is which policies are best for the consumer and the telecommunications marketplace (or, in the United States, “telecommunications marketplace”).

But there is another layer of regulation that is quickly gaining attention. If Net Neutrality is about the form of the internet (its structure and broad organization), there is a growing need to consider questions about the regulation of the content of the internet. Over the years, the internet has been a vector for some amazingly good and amazingly bad actions by humans. The differences in the kind of regulatory concept at play are hard to understate. Rather than comparing it to different video games, I would compare it to the difference between a video game and a tabletop game.

1) I’ve always been fascinated by the dawn of the computer age. My childhood was the tail-end of a world in which homes did not have internet access. By the start of law school, everyone looked up famous cases and Latin phrases on Wikipedia during class (except for the people who did the reading the night before- they looked it up before class). I’ve often compared the early days of the internet to a kind of Wild West setting: a lawless frontier where fundamental questions about the mold of civilization were not yet settled. I thought most of those questions would be settled by 2015. We are not close to a consensus on rules. Indeed, we are still testing what types of rules are feasible or desirable.

Video games are literally made of rules: the computer code that constitutes the game itself. Tabletop games are made of… usually cardboard, or some kind of paper. (Occasionally, they have some plastic – or even metal if you got the collector’s edition.) This may sound like a silly or vacuous distinction, but it has important ramifications for the kinds of problems that can happen in a game, and the kinds of solutions that will (or won’t) be effective.

2) Lawlessness can lead to problems. This was probably not known until 2 decades of unfettered internet, but now we know. Free to do anything, people have tried very hard to do everything. Every app, platform, hosting site, game, or program online that gets big enough eventually starts to experience just about every problem type that humans can present. From intellectual property disputes to death threats, from fraud to manslaughter, the internet has been a way for people to discover criminal behaviors that past generations could never have the opportunity to access. The unethical choices of both multi-national companies and village simpletons are available for repeated viewing.

In a video game, the code can sometimes glitch and create problems for players. The code can also execute perfectly, but there may be complaints about the design of the game itself (a level being too difficult or some power or tactic being of an unsuitable level of power). With some difficulty, players can cheat by actually breaking the code, but more games can detect this (and especially so in professional e-sports settings). In a tabletop game, anyone can cheat, the rules may be wrongly applied (or not applied at all), and all manner of chaos can ensue. DDoSing an opponent during a game might be a little bit akin to literally flipping a table during a game of Monopoly or checkers,

3)  YouTube’s takedown system is already an example of an effort to regulate content, and it already shows some of the challenges with instituting a content regulation system: people will find ways to game that system. Any system of regulation will have two negative outcomes: it will penalize the innocent, and it will be dodged by the guilty. The most you can hope for is that it will protect most of the innocent and it will penalize most of the guilty. The US justice system, even when working as intended, will sometimes produce undesirable results: a guilty person will go free, and an innocent person will go to prison. The hope is that this happens very infrequently.

The most common reaction to bad behavior online has been for authoritative parties to do nothing. The most common reaction by authoritative parties to actually do something has been to ban the bad actor. The most common reaction to this ban is to come back with a different username or account.

In video games, cheaters are often banned (if they are making the game worse for other players). But in table top games, people who ruin the game are just not invited back. No one will play with them anymore. People might hang out with someone less if they behaved in a wildly unacceptable way during a casual weekend game of Risk or Werewolf. In a video game, bad behavior has very limited consequences. In a tabletop game, bad behavior can have lots of meaningful implications.

 

4) What would it look like to regular content? Getting it wrong is easy — which is the primary reason that’s what’s going to continue to happen. Whether trying to penalize criminals or regulate behavior online, creating a fair and ethical system that consistently produces more good results than bad ones is difficult. One problem is that incentives are at odds: most platforms want to turn a profit, and if bad behavior yields a net gain, the platform needs a solution that will actually make more money than the current bad behavior (plus the cost of implementing the remedy). Another problem is that platforms tend to think of regulating their content the way that most Americans think about regulations: an appointed governing authority (or combination of authorities).

 

Conclusion

You can’t make people be good, but you can keep deleting all of their manifestations of their behavior on the internet: You can suspend or ban accounts, and eventually IP addresses. You can automatically censor strings of characters, and continually update the list of banned strings. These will continue to be the solutions offered, and they will continue to mostly fail while they almost half-succeed.

Over a decade ago, Lawerence Lessig asserted that laws are of four types: market, cultural, legal, and architectural. It turns out that enforcing the legal type of law in a digital space is very difficult. But cultural norms practically enforce themselves. And architectural laws are always already enforced. Market rules can be fickle, but persuasive. A lot of efforts to regulate content will fail because they will hinge on the concepts of legal enforcement.

The lack of rules and regulations is what made the internet a place where amazing things could happen. Without rules to stop imagination and creativity, people created art, solved problems, built positive communities, and enriched themselves and each other. In that same landscape: without rules to stop hate and anger, people created harassment and bullying, invaded privacy, ruined lives, occasionally killed people, and destroyed a lot of good in the world. Lawless frontiers are the best opportunity for the most beautiful, important, and inspiring expressions of humanity. They are also the best opportunities for the most despicable, dangerous, and damaging expressions of humanity. What the internet becomes will be decided—has always been decided—by what people bring to it.

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.