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  • 1. Controlling the ControllersPart C “Controlling” | Talk 10Video Game Law 2013UBC Law @ Allard HallJon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy
  • 2. Follow ups to last week…Violence & Games: “Video Games and Societal Violence:Cause for Urgent Action or a Bridge Too Far?” & Games: Donkey Kong: Pauline Edition (Princess savesMario) Kimberly Voll creating a 48-hour weekend game jam thissummer – theme is games with strong female leads (@TheCentre for Digital Media “hangar”) IN RESPONSE TOindustry pre-conceived notions - SEE: You cant have afemale character in games’S (past)
  • 3. This Week (Topic 1): PRIVACY• Evolving & difficult; not a natural topic: Much of video gamehistory = single player• Gaming modalities: Hard-drive to CD-ROMs to online tomassively on-line now to cloud• On-line communities about games (forums) to multi-player tomassively multiplayer to “life-stream”• Not news to gamers: “Which Twitter tribe are you? Researchersdiscover new wave of online communities which even have their ownlanguages”• From a 3 Nov 2002 post by “Monza” on GP Forums on thesubject “GPL Monza Megapac!”: “There is a zip with all the updatesdone for Monza right here This projectstarted as a small thread, now the thread is fifty pages long!”
  • 4. Privacy as Role ReversalLast week: rights of society from the consequences ofgames & gamersThis week: rights of gamers as members of societyCore conundrum: Gamers initiate content, not justpassively receive it (Television as “transmitter” to gameras “transmitter” - see Talk 1 “If Picasso…”)YIN & YANG• What we looked at previously in terms of IP complexity• NOW THROUGH LENS OF PRIVACY COMPLEXITY
  • 5. Layers of Control (Privacy Edition)12. Theft, assault (criminal law)11. Currency/taxation (statutory/regulatory).10. Gambling (regulatory body – criminal law back-drop)9. Unfair competition (Competition/anti-trust)8. Misleading promises/advertising, physical or psychological harm(consumer protection)7. Medium specific regulation (constitutional)Out of the Game Norms------------------------------------------------------------------------------------------------In the Game (Magic Circle) Ethics (of Originality, Creativity & Expression)6. Industry self regulation5. Personality rights (tort, IP)4. EULA/ToS (contractual, private)3. IP (copyright, patent, trademark – statutory)2. Technology (quasi extra-legal)1. Community (extra-legal)
  • 6. STAYING WITH: The new video game (hypothetical)Real-world “play” (“Ingress” – Capture the Flag mechanic)+ Immersive control mechanism (Google Glass)+ Anywhere/any device capability (the “cloud”)+ “Open World” design (literally & Google Earth)+ Tools/weapons (AR Drone Quadra Copter; Google Car)IS THIS REALLY A GAME?Surveillance as fun: “The Plays and Arts of Surveillance: StudyingSurveillance as Entertainment” Anders Albrechtslund and Lynsey Dubbeld
  • 7. Expanding Digital Footprint Through Games• Facial recognition• Cell tracking (geographic)• Demographic data• Data re friends, connections• Brain pattern data (control mechanism)• Reflex & physical data (heart-rate etc.)• Enormously deep data re psychology of choice & decision making• Data re preferences & biases (Google/FaceBook using now)• All very “B.F. Skinner”…• “Netflix used subscriber data to make „House of Cards‟ a hit”
  • 8. Scholarship & Discovery• “What Privacy is For” Julie Cohen 126 Harv. L. Rev.(draft)“Privacy shelters dynamic, emergent subjectivity from the efforts of commercialand government actors to render individuals and communities fixed, transparent,and predictable.”• “The Law of Friction” William McGeveran (U. of Minn. Law School)“…the article proposes a general law of friction for the internet: it should not beeasier to “share” an action online than to do it. The inevitable moment ofdecision to click a link or purchase an item should also be the moment when aperson chooses whether to disclose it. When there is a PLAY button to stream amovie, there could be a PLAY AND SHARE button right next to it.”Linux ubuntu screen
  • 9. Remember: “Sports Example Wish-list”?(Talk 7 “From Wheelbarrows to Holodecks)1. VIRTUAL ARENA EXPERIENCE• “Who is in the crowd?”• “Pick your seat”: view the game from any any seat/any angle (emulated?).• Live Shared experience (Hangout). Friend and rival group options.• Scalability of closed to contact ranging to fully open (E.G. game v. between periods).• Fully interactive: voice, text, content sharing, search & content creation.• Play crowd games, trivia.• Infinite inputs including alternate audio feeds (plus “do your own”) & bonus video feeds(E.g. USTREAM‟s and/or extra broadcast cameras – “you compose your own “broadcast”).• Live feedback (Twitter, text, Skype etc.) loops to teams, leagues, (players), (coaches) –the “techno heckle”.2. “I KNOW SPORTS BETTER, LET ME PROVE IT.”• Infinite replays from infinite inputs.• Coaching tools (virtual Telestrator ).• Library of games & plays (by team, year & player).• Recreate or watch the game live in EA NHL 14 (watch replays in 1st person as any player).3. SECOND SCREEN STUFF (Sx3)• Useable live in-arena on a tablet.• Full live stats including distance skated, shot-speeds, goalie.• Gamification for every possible challenge/bet.• Create your own sports music-video.
  • 10. Layers of Privacy in Video Games9. Access to law enforcement by Search Warrant8. Access by law enforcement to information where gamer does not have a “reasonableexpectation of privacy” (highly interpretive)7. Aggregated Gamer/Game information available to advertisers/sponsors/purchasers having relationships with game/developer/game network/social network/(ISP-carrier?) as permitted by EULA/ToS6. Gamer/Game information available to ISP/network carrier/mobile carrier (often includeslocation information)5. Gamer/Game information useable by game network/social network(permissions)/ISP (Steam, XBLive, Facebook) per ToS (often includes locationinformation)4. Gamer information useable by developer/publisher per EULA3B. Audio gaming layer – quasi-public (through game)3A. Audio gaming layer – private (Ventrilo)2. Gamer shares information for “magic circle” purposes (multiplayer; forums etc.)1. Gamer creates information
  • 11. Two (yet unanswered) Questions• Legal: Where among the Layers does the gamer‟s “reasonableexpectation of privacy” begin? - Impact of the “Magic Circle”?• Practical: Is this even an issue to the “Digital Generation”?(trade-off with convenience/features/trans-border compatibility)WHAT HAPPENS BETWEEN THE LIMITS OF PRIVACY LAW & THESTARTING POINT FOR SEARCH WARRANTS?See: Location Tracking and Biometrics Conference (YaleLaw) “The Spies We Trust: Third Party Service Providers and Law EnforcementSurveillance” Christopher Soghoian (Indiana University August 2012) GREY AREA
  • 12. PRIVACY ACT [RSBC 1996] CHAPTER 3731. (1) It is a tort…for a person, wilfully and without a claim of right, to violate the privacyof another.(2) The nature and degree of privacy to which a person is entitled in a situation orin relation to a matter is that which is reasonable in the circumstances, giving dueregard to the lawful interests of others.(3) In determining whether the act or conduct of a person is a violation ofanothers privacy, regard must be given to the nature, incidence and occasion ofthe act or conduct and to any…relationship between the parties.(4) Without limiting subsections (1) to (3), privacy may be violated byeavesdropping or surveillance, whether or not accomplished by trespass.2. (2) An act or conduct is not a violation of privacy if any of thefollowing applies:(a) it is consented to by some person entitled to consent;…(c) the act or conduct was authorized or required under a law in force in BritishColumbia, by a court or by any process of a court;(d) the act or conduct was that of (i) a peace officer acting in thecourse of his or her duty to prevent, discover or investigatecrime…(3) A publication of a matter is not a violation of privacy if (a) the matter published was ofpublic interest or was fair comment on a matter of public interest, or (b) the publicationwas privileged in accordance with the rules of law relating to defamation.
  • 13. PerspectivesSearch Warrants: Criminal Code (R.S.C., 1985, c. C-46)487. (1) A justice who is satisfied by information on oath…thatthere are reasonable grounds to believe that there is in a building,receptacle or place (a) anything on or in respect of which anyoffence against this Act or any other Act of Parliament has been oris suspected to have been committed…“Internet Surveillance Bill is Dead but Canadas TelecomTransparency Gap is Alive and Well” Michael Geist v. Tsige Ont. C.A. recognises new tort for invasion ofprivacy v. Cole SCC finds reasonable expectation of privacy in worklaptop extendable to video gaming spaces?)
  • 14. MAKING SENSE OF PRIVACYRemember THE LITTERALIST DICHOTOMY?Symptom: Seemingly opposite political positioning betweenPrivacy literalists & IP literalists• Privacy literalists tend to be more “open source” / “free info”oriented• “IP literalists” tend to be more comfortable with commercialexploitation of personal dataApplying the Double Standards Test
  • 15. Unified Theory 1 Privacy/IPCore Common Denominator?"Feeling" those 1s and 0s "belong" to me“That is mine!” (whether IP or private info)Therefore common/unified approach possible?+ factor in the idea/expression dichotomy=What were once Private Ideas are now PublicExpressions*** Privacy as a Moral Right (right not to be attributed)
  • 16. Restated CoreWhat is the core common denominator of privacy & IPin the digital age?One answer that may be a helpful starting point - information.IP is in fact information designated as having been created bysomeone and therefor designated as belonging to thatsomeone. Personal information similarly is felt by us to becreated by us, personal to us and therefor belonging to us.Accordingly they are essentially the same and should betreated according to the same principles.What might those principles be? A Moral Rights model wouldsuggest they are the right of attribution (or not) & the right tothe “integrity” of the work/information.
  • 17. Europe: The Right to be Forgotten“EU judges to hear Google right to be forgotten case: Spanishofficials have taken Google to the European Court of Justice in a bid to force thesearch giant to delete information that breaches a persons privacy” (Feb. 26, 2013)“Bullying and the Right to be Forgotten: A Right to End Victimization” (Amanda Todd) for a REGULATION OF THE EUROPEAN PARLIAMENT AND OFTHE COUNCIL on the protection of individuals with regard to the processing ofpersonal data and on the free movement of such data (General Data ProtectionRegulation) Jan. 25. 2012“Article 17 Right to be forgotten and to erasureThe data subject shall have the right to obtain from the controller the erasure of personaldata relating to them and the abstention from further dissemination of such data,especially in relation to personal data which are made available by the data subject whilehe or she was a child, where one of the following grounds applies: (a) the data are nolonger necessary in relation to the purposes for which they were collected or otherwiseprocessed; (b) the data subject withdraws consent on which the processing is based…orwhen the storage period consented to has expired, and where there is no other legalground for the processing of the data;…”REMEMBER: 32% of gamers are kidsDefamation analogy? - Reputational
  • 18. EULA‟s now Sword not Shield?PREVIOUSLY: Discussion of WHY/IF EULA’S necessary given:• 1. Ineffective to 1/3 of gaming population (kids)(generally not mentioned in EULA‟s & ToS‟)• 2. Very limited if any true litigation need(no decisions where other remedies were not more significant)• 3. Warnings re bad behavior can be accomplished in othermore limited ways• 4. Intellectual Property statutory & doctrinal baseline fairCorporate answer (?) = leverage re bad behavior + consumercontracting out of IP freedomsAlso: Contracting out of PRIVACY PROTECTIONS ???
  • 19. Unified Theory 2 Privacy/Free Speech -Expression• Reconciling Privacy & Free speech/expression• Right of Expression NOT TO BE CHILLED• Right of Privacy as a RIGHT TO NOT EXPRESS(or “be expressed”, or have your expression collectedor used against your will)
  • 20. Privacy’s chilling effect on creativityAn Important Question?• Have parsed possible effects of “IP chill” onUser Created Content (mods, machinima etc.)• Does LACK OF PRIVACY also chill User CreatedContent?• Insidious Result?: lack of privacy as “tool” ofIP “Literalism” & enforcement
  • 21. “Identities”• Avatar v. real names – what should be disclosed & to whom?“Googles Vint Cerf explains why Facebooks real-name requirementis flawed”“Facebook wins legal battle to force Europeans to use real names online”• Avatars deeply embedded in history of gaming - core to play -suspension of disbelief - “magic circle”• Anonymity also deeply embedded in history of the “web”• Extra Legal Measures (“Doxxing” – outing real identities)“Do trolls have privacy rights”• State Action: “Five More Game Companies Join New York State‟s„Operation Game Over‟ Initiative, 2100 More AccountsPurged”“State Laws Restricting Social media Use by Sex Offenders Are Failing inCourt”
  • 22. Video Game Privacy Breaches“UK regulators fine Sony for preventable 2011 PSN hack (update:Sony will appeal)” (2011 hack)“Blizzard Faces Class Action Over Battle.netSecurity”“Data Breach Class Action against Popular Video Game DeveloperDismissed for Failure to Plead Adequate Damages”(Valve/STEAM) “Steam’s Sub Agreement Prohibits Class-ActionLawsuit“FTC fines Path mobile social networking app $800,000 for privacybreaches”“Bug in EA’s Origin game platform allows attackers to hijack playerPCs”
  • 23. This Week (Topic 2):Regulatory Jurisdiction Over Video Gaming?• New Media, Broadcasting Public Notice CRTC 1999-84/Telecom Public Notice CRTC 99-14, 17 May 1999 (&amendments) +• Policy Governing the Distribution of Video Games ProgrammingServices Public Notice CRTC 1995-5 (Sega game downloadsthrough cable) +• Capital Cities Comm. v. C.R.T.C., [1978] 2 S.C.R. 14(cable) FEDERAL JURISDICTION ???• BILL 19 – 2001 VIDEO GAMES ACT (B.C.) - passed but repealedprior to coming into force („mature‟ & „adult‟ games not saleable to minors) + various Provincial motionpicture classification legislation containing definitions relating tovideo games +• Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 (ads directed atchildren prohibited by Province)= PROVINCIAL JURISDICTION???
  • 24. Bringing us to KIDS (once again)• “SpongeBob app pulled over childrens privacy complaint”(wide range of personal info from children w/o parental consent)• “Apple to settle lawsuit on inadvertent app purchases bykids”• “Kids Reveal The Real Flaws Of Free-To-PlayGames”• “FTCs Second Kids App Report Finds Little Progress inAddressing Privacy Concerns Surrounding MobileApplications for Children”• “Children’s Online Privacy Protection: U.S. DevelopmentsCompared to Canada”• “No Do Overs: Children, Personal Information AndMarketing In Canada”
  • 25. Next: Meme 4 – Conciliation begins…The Terminator & the Orc - a tale of two cases
  • 26. Our Academic Partners