Ethics & GamesPart D “Conciliation” | Talk 12Video Game Law 2013UBC Law @ Allard HallJon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy LLP@gamebizlawhttp://email@example.com
Follow-ups• ReDigi case - “A Setback for Resellers of DigitalProducts”:http://www.nytimes.com/2013/04/02/business/media/redigi-loses-suit-over-reselling-of-digital-music.html?nl=technology&emc=edit_tu_20130402• EULA constraints on creativity: Berkman Luncheonseries April 2, 2013 – Anil Dash ―The Web We Lost‖(video will be posted)http://cyber.law.harvard.edu/events/luncheon/2013/04/dash• Wednesday 4/3: Livestream 4 PM PST – ―AppropriationArt‖ (HLS Copyright Course with Prof. TerryFisher)http://cyber.law.harvard.edu/node/8191
Stories That Struck Me…• ―Icelandic teenager sues state for right to use hername‖http://www.telegraph.co.uk/news/worldnews/europe/iceland/9778304/Icelandic-teenager-sues-state-for-right-to-use-her-name.html• ―What to make of Ai Wei Wei‘s ‗GanghamStyle‘‖http://www.ethanzuckerman.com/blog/2012/10/25/what-to-make-of-ai-wei-weis-gangnam-style/• + ―Egyptian protestors trade Harlem Shake taunts withIslamist regime‖http://www.theverge.com/2013/3/3/4061498/harlem-shake-meme-becomes-political-in-egypt• ―French broadcasting authority proposes cultural exception tonet neutrality‖http://www.lexology.com/library/detail.aspx?g=5a015cc3-da1f-456d-90ee-7e2b233e7dca
Common Denominators of4Stories1. EXPLORING CREATIVITY: Law = free expression/speech/―right to create‖2. EXPLORING ―IDENTITY‖: Law = privacy(in realm of connection)3. CONSTRAINTS/RESTRAINTS = censorship + EULA‘s etc.CREATIVITY = IDENTITY + (PLAY?)
1st Principles: Ethics Before LawEthics Must Dictate Law;Law Must Not Dictate Ethics;Where Law Dictates Ethics, that is Repression.Unlike the chicken and an egg, we should knowwhat comes first…
1st Principles: Everything is Connected(including creativity/identity)• “We are the sum of all the people we have ever met; youchange the tribe and the tribe changes you.” Fierce Peopleby Dirk Wittenborn - undeniably true of information, creativity,ideas, art, methods etc.• ―Neurologist Oliver Sacks on Memory, Plagiarism, and thenecessary Forgettings of Creativity‖: ―We, as human beings, are landed withmemory systems that have fallibilities, frailties, and imperfections — but also great flexibility andcreativity. Confusion over sources or indifference to them can be a paradoxical strength: if wecould tag the sources of all our knowledge, we would be overwhelmed with often irrelevantinformation.‖http://www.brainpickings.org/index.php/2013/02/04/oliver-sacks-on-memory-and-plagiarism/• Bruce Springsteen SXSW keynote @ 24:27 - 26:40 & 27:35 - 30:00http://www.youtube.com/watch?v=JWbv0SUVQjM&list=PLEqpzAExPV-xr9gIhSqLMxTSXrimGF6pA&index=2
Another Take on Original-ism“More then ever, the narcissistic interests of those whomake art count for more than the human needs of thosewho desire and supposedly benefit from it – and how muchthey benefit from it is the contemporary question about art.”Donald Kuspit, “Signs of Psyche in Modern and PostModern Art” (1994)* Is there a game without the gamer?* Mods through objective content measurement??* Personal creation mythology appears unsound byresearch, less sound still from a human perspective
Also: Original-ism (the “HollywoodModel”) as Neo-colonialismSee “Intellectual Property: The Global Spread of a LegalConcept” Alexander Peukerthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218292
Another Factor: Preponderance ofHuman Creativity Test of “Good”• Derek Parfit 1: “My life seemed like a glass tunnel, through which I wasmoving faster every year, and at the end of which there was darkness...[However] When I changed my view, the walls of my glass tunneldisappeared. I now live in the open air. There is still a difference between mylife and the lives of other people. But the difference is less. Other people arecloser. I am less concerned about the rest of my own life, and moreconcerned about the lives of others.” Reasons and Persons (1984)• Derek Parfit 2: Objective v. Subjective Theories of ―(Non-Religious) Ethics‖ On What Matters (2011)* Demonstrate through GPL & other mods that preponderance ofcreativity lies with the co-creators* Add in players playing as co-creators then every creative work iscomprised mostly of others creativity/work/effort* With respect to art, music, TV, film add in viewing, dancing, fanfiction & “fan-ish behavior” (tougher then games but same result)
1st Principles:Creativity is MoreImportant Than Property
Consequence:Is It Barter Not Theft(Piracy) IF We Are AllCreators?
“Barter Not Theft”?…* Plethora of digital information means we increasingly see very differentpoints of view and accordingly have to create our own stories/ versions. This isa good thing.* This connects with the reality that everything we create is a storymade up of other stories.*Illustrates how digitization has made storytelling easier. It is our abilityto story-tell that is so fundamental to our humanity. So it is that ability thatmust be safeguarded. The temptation is to say that copyright rewardsstorytelling but it likely constrains storytelling by constraining the viral-ity of itsconstituent elements.* It is storytelling that is so basically human and so it is storytelling thatis our basic human value...and right…STORYTELLING = IDENTITY ?
1st Principles:Prior Restraints Are ProblematicBlackstone: ―Every freeman has an undoubted right to lay whatsentiments he pleases before the public; to forbid this, is todestroy the freedom of the press; but if he publishes what isimproper, mischievous or illegal, he must take the consequence ofhis own temerity.‖ (4 Bl. Com. 151, 152.)IP as “Prior Restraint” to Creativity?EULA’s &ToS’ as even greater “PriorRestraints” to Creativity
Constraints Distort CreativityLayers of Control12. 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)
Unifying Principles?IP LiteralismsPrivacy LiteralismsContractual LiteralismsUnified Source: CREATIVITY (expression)+ IDENTITY (privacy)+ HUMAN INSTINCT TO CENSOR (restraint)“1. Those 1’s & 0’s are of me.2. They are therefore my property.3. Therefore I can do what I want withthem – control them in any way Iwish..”ALLRESTRICTFREEDOM
Another Way: Enter Moral RightsRegime of ATTRIBUTION + INTEGRITYIF TO IP = 1. commercial impact test irrelevant;2. right to be attributed3. right to protect work‘s integrityIF TO PRIVACY = Attribution & Integrityincludes non-attribution (“right to be forgotten”)IF TO CONTRACTS = ??? (but cannot assign – only waive)NOTE: Bill C-11 Copyright Modernization Act, Canada,Sections 17.1 &17.2 extend moral rights to ―performers‖ in their―performances‖.
Enter User Rights: SCCPenatalogyAbella J. for the majority in Alberta (Education) v. CanadianCopyright Licensing Agency (Access Copyright) 2012 SCC 37“…fair dealing is a “user’s right”, and the relevantperspective when considering whether the dealing is for anallowable purpose…is that of the user…”Abella J. for the Court in Society of composers, Authors and MusicPublishers of Canada v. Bell Canada 2012 SCC 36“Further, given the ease and magnitude with which digitalworks are disseminated over the Internet, focusing on the“aggregate” amount of the dealing in cases involving digitalworks could well lead to disproportionate findings ofunfairness when compared with non-digital works.”See also: ―Copyright Fair Use Cases of the United States Supreme Court‖http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/Abella J. for the majority in Alberta (Education) v. CanadianCopyright Licensing Agency (Access Copyright) 2012 SCC 37“…fair dealing is a “user’s right”, and the relevantperspective when considering whether the dealing is for anallowable purpose…is that of the user…”Abella J. for the Court in Society of composers, Authors and MusicPublishers of Canada v. Bell Canada 2012 SCC 36“Further, given the ease and magnitude with which digitalworks are disseminated over the Internet, focusing on the“aggregate” amount of the dealing in cases involving digitalworks could well lead to disproportionate findings ofunfairness when compared with non-digital works.”See also: ―Copyright Fair Use Cases of the United States Supreme Court‖http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/
Re-enter Sony v. Universal (& a sequel)* Sony Corporation of America et al. v. Universal City Studios, Inc.,et al. 464 U.S. 417 (1984) Supreme Court of UnitedStateshttp://scholar.google.ca/scholar_case?case=5876335373788447272&hl=en&as_sdt=2&as_vis=1&oi=scholarr&sa=X&ei=tspbUeHmOerJiwLsy4DQAg&ved=0CCoQgAMoADAA―If vicarious liability is to be imposed on Sony in this case, it must rest on thefact that it has sold equipment with constructive knowledge of the fact that itscustomers may use that equipment to make unauthorized copies of copyrightedmaterial. There is no precedent in the law of copyright for the imposition ofvicarious liability on such a theory.‖* UMG Recordings v. Shelter Capital Partners (Veoh video site) USCA9th Circuit https://www.eff.org/sites/default/files/filenode/09-55902.pdf―Appeals court rejects record label‘s effort to neuter DMCA safe harbor‖http://arstechnica.com/tech-policy/2013/03/appeals-court-rejects-record-labels-effort-to-neuter-dmca-safe-harbor/
Enter Statute: Non-commercial User-generated Content, S.29.21 Copyright ActNon-commercial user-generated content29.21 (1) It is not an infringement of copyright for an individual to use anexisting work or other subject-matter or copy of one, which has been publishedor otherwise made available to the public, in the creation of a new work or othersubject-matter in which copyright subsists and for the individual — or, with theindividual‘s authorization, a member of their household — to use the new workor other subject-matter or to authorize an intermediary to disseminate it, if(a) the use of, or the authorization to disseminate, the new work or othersubject-matter is done solely for non-commercial purposes;(b) the source — and, if given in the source, the name of the author, performer,maker or broadcaster — of the existing work or other subject-matter or copy of itare mentioned, if it is reasonable in the circumstances to do so;(c) the individual had reasonable grounds to believe that the existing work orother subject-matter or copy of it, as the case may be, was not infringingcopyright; and(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, onthe exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including thatthe new work or other subject-matter is not a substitute for the existing one.
The buck stops here…―Judges as Bad Reviewers: FairUse and Epistemological Humility”Rebecca Tushnet, GeorgetownUniversity Law Center“…the future of fair use as a formaldoctrine in the United Statesdepends on whether judges act likebad reviewers on Amazon.com, orwhether they behave differently ininterpreting challenged works thanthey do in almost every otheraspect of judging.”
So What Exactly Does This Have ToDo With Video Games???EVERYTHING.GAMES ARE AND REMAIN AT THECUTTING EDGE CROSS-ROADS OFFREEDOM OF SPEECH/EXPRESSION, COPYRIGHT/IP &CONTRACTS. NO LENS FOR THELAW IS CLEARER OR LESSFORGIVING BECAUSE VIDEOGAMES IMPLICATE CREATIVITY,INTERACTIVITY & CUTTING EDGETECHNOLOGY LIKE NOTHING ELSEDOES.