What the Internet of Things can Learn from “The Order 1886”

Great (Sounding, Looking) Potential

The Order 1886 has great quality graphics, but is a poor quality game. Just because the technology involved is cutting edge doesn’t mean the final product is good. The internet of things relies on some cutting edge technology and novel ideas, but that doesn’t mean the final product is always favorable.

I’ve been hearing about the “Internet of Things” for several years now. Middle-aged entrepreneurs are just sure that this “the next big thing,” except it’s going to be bigger than the car or the light bulb. From what I’ve seen, IoT is a glossy, shiny, pretty gimmick that hasn’t shown it’s poised to really solve problems that consumers feel they have. So far, we don’t think a fridge that buys eggs for us is really what’s missing in our lives.

Having sophisticated technology isn’t the same as having a great (or even marketable) tech product. In the same way, having glossy graphics isn’t the same as having a good (or even marketable) game. Both IoT and Order 1886 are impressive at a glance, but fail to live up to expectations as one spends more time with them.

Burger King Sets Itself Up For Trolling

The broad IoT idea continues to reveal vulnerabilities and half-thought-out applications. A few months ago, Burger King aired an ad in which the actor in the commercial asked the viewer’s smart phones to read the first paragraph of the Wikipedia page about Burger King’s flagship product, The Whopper. The completely predictable result was that people started vandalizing the Wikipedia page in question, leading the ad to tell people that The Whopper contained humans and cyanide.

There’s a lot I could go into about this example, especially about troll behavior and the weaknesses of IoT’s reliance on unsecure nodes. I want to highlight that the problem wasn’t about hacking into Burger King or Android systems. There are some concerns with IoT and that sort of hacking, but there’s another problem: Entrepreneurs rely on the web without knowing what 4Chan is or having have never been verbally abused by a stranger for the length of an entire League of Legends match. That is a mistake.

This example also illustrates why IoT hasn’t gotten traction: It’s still a gimmick that breaks often. Even when it works at its best, IoT is a fun and surprising answer to a question no one asked. The best case for Burger King’s commercial is that they surprise a few consumers, but also stir fears about privacy and security in doing so. The success of IoT still hangs on the uncomfortable reality of diminishing personal privacy, and many consumers haven’t completely reconciled leaving the past with entering the future.

The Order 1886 Fails as a Game, IoT Still Fails as a Tech Product

One of the reasons people were so angry about The Order 1886 is that the trailers looked so good. People bought into the promise and the hype, and then it failed to deliver in meaningful ways. Similarly, the more glossy the presentations about IoT get, the more consumers will feel the gap when they don’t experience a meaningful impact as a result of using it.

It’s the applications that go on top of the tech that really matter. Platforms and apps that balance consumer’s emotions about privacy and security will be the only thing that can really bring about the kind of pervasive, omnipresent IoT about which I keep hearing (excited and vague) presentations.

Things that look really good but don’t do anything are called art. Things that do something useful are called products. Usefulness is not the sole factor in a product’s quality or its marketability, but it is important- especially if it wants to be more than a fad or gimmick that ends up with a discount sticker in the bargain bin.

Law Without Accountability is DOOM

St. Thomas Aquinas wrote that there are four essential components to the concept of a law: 1) an ordinance of reason 2) for the common good 3) given by the entity who has charge (or authority) over those subject to the law, and 4) promulgated, so that those subject to the law are aware of the law. For example: It would be an ordinance of reason, for the common good, for government to promulgate rules against turning humans into demonically possessed hellspawn when you are supposed to be mining supernatural energy from the bowels of the underworld. It seems so obvious- so what happened in this year’s reboot of the classic game DOOM?

Aside from a contract with the rulers of hell, it doesn’t look like there’s much law in DOOM. Though there are several types of law from a certain perspective, the absence of common legal structures is both understandable and important.

Lessig’s Four Flavors of Law

In an effort to explain the problem of copyright infringement in the context of the digital era, Lawrence Lessig suggested that there are really four categories of law: statutory (the laws “on the books”), economic (market incentives and disincentives), cultural (social norms, traditions, etc), and architectural (limits of physical possibility). Through this lens, we see an abundance of law in DOOM.  Each of the four main characters presents each of these types of law:

VEGA, the non-judgmental AI Architecture

Created by Hayden, VEGA is an artificial intelligence that monitors and operates the facility. He explains state of affairs and limits of possibility and explains the architectural laws that govern the situation they face. VEGA does not have his own agenda, but only wishes to serve by providing factual information.

“Dr.” Samuel Hayden, Economics and market

The President and CEO of the Union Aerospace Corporation, Hayden is concerned with the economic impacts of the Doom Slayer’s choices. The massive loss of human life at the facility is secondary to his focus on efficiency and scientific progress.

Olivia Pierce: Corporate Cult-ture

The antagonist Olivia creates and enforces cultural law throughout her cult and her corporation. Hologramatic announcements and documents gathered in the game reveal the overlap between Olivia’s demonic cult and the corporate policies and guidelines at the UAC. Presumably, Hayden allowed this culture because it served his economic interests. Olivia maintained this culture because it served her interests of climbing Hell’s social ladder… or descending into Hell’s cesspool. I don’t know how that metaphor works for demons.

The Doom Slayer: Statute, Adjudication, and Enforcement

The Doom Slayer is the embodiment of statutory law. He is there to fix the runaway obsessions of cults and markets. He is there to ensure a fundamental floor of safety. As a bonus, he’s going to take care of the enforcement, too. In the first iteration of Doom, the player was a Marine stationed on Mars as part of a United Nations force. In this year’s version, he is an eternal killer of demons. In both versions, his purpose to ensure the safety of humanity and balance the risks and dangers of the UAC’s activities. His role is both to decide what the rule should be, and then ensure that the rule is followed.

 

Energy Law: Laws of physics, laws of people.

The core principle behind energy law is preventing energy extraction and distribution from wrecking needless destruction. Energy law works closely with limits of science and technology, and recognizes certain risks and dangers that are likely or inherent in certain situations. This is why there are rules about where and how oil companies can drill, or what levels of hazardous emissions are permissible for factories. Laws have to be adapted to the relevant circumstances. Sensible energy policies facilitate the extraction, processing, and use of fuels while minimizing risk and harm to the environment and humanity. In DOOM, this might include regulations and safety measures against unleashing extra-dimensional monstrosities upon mankind.

 

Conclusion: The Need For Enforcement and Monitoring.

Americans tend to fervently and piously believe in law as an institution – and that belief alone goes a long way to creating a stable society. However, the mere existence of a set of laws is not enough to bring order or safety. The laws must also be followed and enforced. Having laws that permit or forbid actions isn’t enough to change how people feel about the subject matter. Without proper enforcement, people will just act in whichever ways seem most convenient.

Upholding the law isn’t just abiding by it individually – it’s also the social effort of maintaining institutions and practices that hold people accountable. That’s why we monitor, audit, and certify. Someone needs to actually go check secret laboratories for secret underground catacombs for ritualistic sacrifices and 10-story high cyberdemons. Rules against opening up transdimensional portals to fulfill blood contracts with demonic powers are an important start, but they are not enough. Even obviously important laws can be ignored, and they are likely to be ignored if there is no enforcement or accountability.

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.

Watching Over Copyrights and Brands, Part II

You can protect a brand in a lot of ways. You can wave the law around like a sword, or hide behind it like a shield. Or you can not worry about using the law to your advantage and just make a product that others can’t top. One of the most fun things about law school was learning about all of the ways around the law – not breaking or circumventing it, but bridging over the gaps and cracks. Gaps and cracks happen most when the law hasn’t kept up with culture or technology, which is where I think the law is most exciting and interesting.

One of the most genius aspects of the overwhelming media hype-package of Overwatch is the way it manages concerns for copyright and trademark infringement. Blizzard achieved a level of branding and promotion that reduces their concerns for infringement. Overwatch is inimitable. That doesn’t make it invulnerable, but it might be the next best thing.

I. “Junk” from “Rats” Can’t Hurt the Bastion of the Marketplace

Even before I ever visited New York City, I knew that people sold cheap, counterfeit Rolexes on the streets. Having this explained to me as a child is also how I heard about Rolex, incidentally – and learned that it was different from Rolo. I always thought it was interesting that everyone knew about this black market for counterfeit goods, but no one seemed extremely worried. I think one reason for the lack of concern is that Rolex knows they won’t go out of business because of cheap knock-offs.

The best games, from the biggest studios­, have less to worry about when their IP is infringed or “heavily borrowed.” Dominating the games market is less about legal force than it is about marketing and loyalty. For one thing, Activision can’t claim copyright over the concept of a military-shooter and force other studios to not make games that compete with Call of Duty. So Activision makes Call of Duty a brand, because brands command loyalty. A given Call of Duty game may be worse in every respect to a competitor’s game, but fans will still choose the inferior product because of its franchise. (This is one of two reasons anyone rooted for the Cubs from 1945- 2015.) Blizzard created something powerful: a genuinely superior product that commands tremendous brand loyalty.

II. Just Palette-Swap For A New Game! Sounds Pharah- don’t you McRee?

Of course, just because no one can succeed in really ripping off Overwatch doesn’t mean people won’t try. League of Legends had this experience, also. Generally, game knockoffs like these are about as much of a concern as e-mails from dispossessed millionaire Nigerian princes. It’s a reprehensible practice that creates clutter and will accidentally trick some people, but they aren’t going to displace the original.

Companies can compete with Overwatch, but they can’t replace it. The entire experience is too complete and interconnected. No parasitic effort can trick a gamer into thinking they have the real deal, no one can deliver a superior version of the same experience, and no one pull more brand loyalty in online gaming.

III. Leaving your Trace[r] Mei Show that You’ve been a [Road]Hog, and You’ll Get No Mercy

Although Blizzard won’t feel the financial impact of the feeble efforts of clones, there are things that can still undermine the game. For example, a company could make an add-on that allows players to cheat at the game. Of course, a company called Bossland did exactly that. Rather than simply ban the players who use this add-on (per violations of EULA and ToS agreements), Blizzard has gone after the makers of the program – who are super proud of what they do.

I am a little bit surprised that they cite copyright infringement in their claim. This is interesting because it seems well outside the scope of traditional copyright law, but copyright law has been slowly evolving in the last decade. I think the technical details of how Bossland’s program interacts with Blizzard’s game could be essential to determining if applying copyright law is appropriate. After the recent ruling in Google v. Oracle, courts are more likely to find infringement just from making two programs talk. (The fair use defense that saved Google is not going to help Bossland.) In this case, it seems extremely likely that Bossland had to access and take (or manipulate) some of Blizzard’s code, which may be enough for infringement. But the ways that 3rd parties can interact with programs is still an interesting question for copyright law to resolve.

Regardless of the copyright claim, I think the other claims made by Blizzard are plenty strong enough to win, so I don’t think a court will end up going into detail about it.

Watching Over Media and Brands, Part I

More than any game I’ve ever seen, Overwatch is a multi-media, total brand experience. The trailers for the game could compete with Pixar shorts in every respect. The game is supplemented with comics, toys, and a professional eSports scene. It sets new industry standards in showmanship, advertising, and storyline. This is a lot more than just a video game. This is the new model for integrating a concept across every medium and platform to reach every possible audience in every way. This isn’t just the new benchmark in video games. This is the blueprint for every successful future entertainment product. Blizzard understands “today’s media landscape” as more than a business-boardroom buzzword. Other industries also have successful examples of dominating multiple platforms, though none quite on this scale.

Today’s musicians can’t get away with merely releasing music. They need to tweet and vlog, and most crucially, they need to do live performances. Katy Perry recently set the record as the most followed person on Twitter, even though publishing 140-character quips was never in the job description of a musician or a pop star. Similarly, writers can’t just write books anymore- they need to write about their writing, and then talk about writing about their writing with other writers who want to talk about talking about writing. John Green aspired to be a writer when he took a job doing data entry at a publishing company. At the time, he didn’t hope to become a transmediaplatformleader-we-don’t-have-a-word-for-this-thing. However, his understanding and use of YouTube and Twitter allowed him to promote his young adult fiction beyond what a traditional book publisher would imagine. His new media fed his career in the old media, and vice-versa. (And compared to Twitter and YouTube, video games are old media.*)

Movies won’t succeed just by creating more epic battle scenes in 3D to justify the expense of going to the theater. They need to change the experience in more fundamental ways- they probably need a smooth integration of social media, but they also need some interaction the viewers can’t get outside the theater. They need to learn what Prince knew: you can’t get the live-show experience sitting alone in your home. One way movies could adapt to the 21st century is to turn an evening at the movies into a kind of social event, akin to a concert, sports game, or convention. Another way is to make it an even more technologically-driven experience, with augmented reality or virtual reality – a kind of entertainment-themed, futuristic, individualized experience like a museum or library. That is a lot more expensive, though, and all of the theaters near me just spent a lot of money upgrading their seats.

The media channels of the 21st century aren’t just more avenues for information – they are layers of information interacting with the other layers. Television programs and movies also have to adapt to the way consumers use the newest technology. Adaptation looks like spreading out- growing to cover a larger area – but it’s also about moving to new places entirely. Entertainment has to infiltrate and flow through multiple channels. It also still relies heavily on sponsorship in many cases, which means advertising also has to be integrated across these media.**

There are other ways of adapting, such as just adding alcohol to a bookstore.  Don’t rule anything out, I guess. Especially if you don’t think anyone under 21 even knows about your store or your product, anyway.

 

 

*Not that video games are mainstream yet. My Facebook newsfeed recently informed me that Torbjorn was set to be “‘nerfed’ for consoles in future update.” The word “nerfed” was in quotations, which tells me that mainstream journalists don’t know what it means and don’t think it’s a word. (Or they’re very conscious about not genericizing Hasbro’s trademark, even though that trademark is, strictly speaking, in all-caps.)

**The alternative to advertising is some form of upfront pay-to-play, which is what Overwatch did.

 

 

The Long Road to an Ever-changing Future to Return Again to the Past: A 14th Century Solution to the 21st Century Digital Renaissance Problem of Law and Economics

This is my longest post yet, so I’ll give a tl;dr: Copyright law is immovable and unavoidable, and we keep talking about because things around it change constantly. Navigating copyright for the next century can’t look like successful navigation of the last century’s copyright- but it might look a lot like something from 7 centuries ago, and it might shift some of the focus from Copyright to its older sibling, Trademark.

 

I love the history of copyright because I can’t separate it from the history of technology. The core thrill of copyright law is the thrill of technological possibilities warping and toying with long-standing concepts of objects and economics.

It’s too bad I don’t have the graphic design tools to put a timeline up, with the legal progressions listed on one side and the technological milestones listed on the other side. But here’s a text version:

Laws and Philosophy:

The printing press was invented in 1440. Statute of Anne was passed in 1709.  Immanuel Kant wrote “On the Wrongfulness of the Unauthorized Publication of Books,” 1785. The US Constitution was written in 1787, with a clause establishing copyright as a federal law, followed by the copyright act of 1790. In 1831, 1909, 1962-74, 1976, and 1998, the US government passed modifications to US copyright law. Throughout the 20th century, photographs, moving pictures, radio broadcasts, phonographic records, videocassette tapes, and internet search caches are each brought face to face with copyright law.

Technologies:

1837 Samuel Morse sent the first telegraph message. In 1878, a moving picture of a horse at a gallop is recorded. Gugliemo Marconi transmitted radio signals 1.5 miles in 1895. In 1926, Kenjiro Takayanagi created the first television receiver; Philo Farnsworth worked on an improved television the following year in 1927-1928.  Raymond Tomlinson sent the first e-mail on ARPANET in 1971. Tim Berners-Lee published the first web page in 1991. Microsoft released Windows Media DRM software in 1999; Napster also launched in 1999. YouTube launched in 2006. In 2014, a monkey took a selfie.

In February of 2016, YouTube channels and personalities asked: #WTFU. (Which spurred me to write about copyright yet again.)

 

The Times are Always Changin’.

It’s a long history to arrive at such a contentious and unsettled point. Contract, torts, and property law are so much more settled and uncontroversial (particularly in the ways that affect average citizens in our daily lives). Why has copyright always been a recurring issue? Why does it seem to be getting less settled and stable, despite the increase in attention from jurists and scholars?

The problems are not going away because their two main causes aren’t going away. Technological progress isn’t going away. The drive of human creativity isn’t going away. But if we can move copyright law through the end of the 20th century, we might be able to reconcile law and art.

From the Ayssirian Tablet to Bob Dylan, human civilization has repeatedly confronted the distance between “old” and “new.” Generations are defined by the space between them that cannot be bridged. History bears out Marshall McLuhan’s observation that, particularly with regard to new technology, “we march backwards into the future.” But when we arrive in the future, we have to grapple with its residents and their customs and culture. There are always “The New Kids.”

The New Kids: Popcorn Time and Social Media “Prosumers.”

One fine afternoon last year, Gabe and Tycho talked about how terrible piracy was, and how funny it was that the ESA was going to allow Social Media Mavens to attend their E3 show alongside the press. This whole podcast is about these two topics, and the two of them seem unaware that the same theme actually permeates the entire discussion. These are two examples of how new media and technology shape culture in a way that dictates how established industries must change – two industries in particular. Though one of these industries was established 83 years before the other, they both face upheaval from the effects of the internet.  The ubiquitous availability of devices that connect the world is the result of a collection of forces that has – and will – entirely change society.

In their comic, “The New Kids” are ostensibly the “Prosumers,” set to arrive at E3 and replace the Old Guard, Traditional-Role Press. But there’s a layer built into this that Mike and Jerry don’t even know about: “The New Kids” are the technologies and media and cultural shift that change ESA’s thinking about who should be at E3. The New Kids are all of the reasons Popcorn Time can exist and even thrive, and why AMC needs to think very fast about how to avoid the fate of Borders Books. A society always has New Kids. Progress doesn’t happen without New Kids.

One Reason Copyright Discussions Never End: They Go the Wrong Direction

Copyright affects a lot of people on the internet, so it gets a lot of attention and discussion. Too much has already been said about copyright law – most of it is pretty unhelpful. Comparisons to the theft of physical objects only invite a hyperfocus on the distinction between copying and theft, which is just misunderstanding the issue in a different way. Arguing one misunderstanding against another will not lead to a better solution, just a different, less obviously-bad problem.

I think a better analogy is in spaying the goose that lays the golden* egg, or gelding some equally bounteous and mythical stallion. Analogies about terminating reproductive capacities are sometimes slow to catch on, for some reason—but maybe we could at least speak of taking an engine out of a car.

Ultimately, I think all of these analogies are really the wrong route. The most significant and salient point is lost in the effort to analogize: the way that digital media allows the manipulation of art is entirely unlike what human civilization has seen so far. It just isn’t like tools or farm animals or agriculture or cars or anything else to which we are tempted to analogize. The digital replication and transmission of images, text, and sound is entirely unlike the things that have happened in last 5 millennia (or 20 millennia) of recorded human history.

The internet, and the bundle of technological developments that have come with computing and telecommunication, fundamentally changes the potentials for human expression and connection. A fruitful discussion about copyright needs to consider how we got to this point, and where we can, must, and mustn’t go next.

 

Technology Giveth, and Technology Taketh Away.

Justice is a tricky thing, because it seems so obviously favorable and desirable when it’s on your side. The raw, unrestrained, unadulterated, unfiltered, concentrated justice is very difficult and very dangerous – much of the role of the legal and political process is to temper that justice with reason and mercy.

There is an important truth in this discussion which does not get mentioned often enough: through new possibilities in efficiency and distribution, technology made artists and entertainers wealthier and more famous than they could have been without those advances. There was once a time when an actor had to perform every single time the actor wanted to be paid. Now, the actor performs, and then enjoys the rewards of technology repeating that actor’s performance—hundreds of thousands of times, for millions of people. (Not to mention the role that technology plays in editing or reusing art!) No content creators complained when the technology allowed them to make more money for less work, and they aren’t worried about any potential benefits they now reap from increased exposure and dissemination of their products.**

Reaping benefits from digital technology is no justification for the violation of copyrights, of course—but it is important to see the broad picture of how technology has interacted with artistic creation and distribution, and consider at least three important facets of this realization. First and foremost, no one wants to argue that the technology is inherently bad. Anyone concerned about the protection of their works has profited from the efficiency of some technology – even the same technology that threatens to harm them.

Second, it raises questions about what “fairness” really means in this scenario: as we move into the future, how should we evaluate the benefits for creators against the costs to the audience? Who ought to benefit from the powers of digital technology, and what harms and benefits should be considered? There is a very big picture here, and evaluations of fairness will change as one’s values narrow or expand the scope of one’s view. A good discussion can only happen when the whole picture is really considered.

Third, the power of new technology makes us consider what is now possible: the separation of fame from fortune. As I have discussed, the internet allows someone to become famous without becoming wealthy. In ages past, the opportunity to gain fame usually required a lot of money, but now, propagating art does not require the same mountain of resources that it once did. As we move toward new structures to support art and entertainment, fame will become a prerequisite for wealth.

 

The Way Forward: The Return to Patronage.

IndieGoGo launched in 2008. Kickstarter launched in 2009. GoFundMe launched in 2010.  Patreon launched in 2013. It’s harder to demonstrate mathematically, but I will make the wild assertion that game pre-orders have been more heavily promoted and used in the last 10 years than in the preceding 30 years. (I would love to know if pre-orders are proving more successful than DLC or MicroTransactions as a business model.)

When people pay the creator up front, the creator is less concerned about piracy, because the money is already guaranteed. Presumably, the farmer cares less about the goose that has already filled a basket with golden eggs than the one that is expected to eventually fill a basket.

In the world of patronage, reputation (sub-categories: hype, public relations, image, trust) is everything. Creators rely on their history of quality and integrity to secure funding for their next project. Creators who fail to deliver quality products, or who demonstrate shady or unsavory business practices, will suffer for their failings in their future endeavors. Some artists and companies are already carving out their reputations, through repeated successes, unfortunate failures, public statements, and choices.

Navigating copyright in the conditions of Digital Patronage will be shaped by a different power dynamic than the familiar, one-to-many, gate-kept, closely-owned media structures of the 20th century. Clutching at straws of hard-line, traditional copyright enforcement will not secure survival. Thriving will require earning trust through performance. Creators must give more consideration to next year’s potential earnings than to next quarter’s bottom line. They must create a functional, interactive, cooperative, collaborative relationship with their audience. The successful creators of the 21st century will be those who treasure their reputation as they will rely on the good will of others.

… And reputation and good will are what Trademark Law is all about…

 

 

 

*“By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas” (p. 558) Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985)

 

** Those who manufactured physical products did not enjoy this same boon through the 20th century. Advances in 3d printing now give them a direct stake in the outcome of this transformation. There’s room for everyone at this party— I can’t wait for Physical Objects to show up with their partner, Patents!

 

Darkness In The Dungeon of the Mind

Unknowable Darkness

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

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

 

How To Explore The Darkest Dungeon

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

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

 

Stress and Psychological Damage As a Game Play Mechanic

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

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

 

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

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

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

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

 

Dismissing Horror With the Light of Science

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

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

May your torch burn bright.