What’s it all about…Alpha?Part B “Connecting” | Talk 6Video Game Law 2013UBC Law @ Allard HallJon Festinger Q.C.Centre for...
Taking Stock: Where Are We?Part A: Memes of “Creating”* Meaning & purpose of creating (in a video game context);* Right to...
Leading to THE POST IP WORLD• Talk 4 (con‟d) - whether the dominance of contractsmeans we are already in a “The Post IP Wo...
TodayAn early stage assessment ofthe utility of EULA’s (etc.)
Constraint/Restraint - Coercion/Control• con·strain/kənˈstrān/VerbSeverely restrict the scope, extent, or activity of.Comp...
A Pattern?CREATION goes with COPYRIGHT/IP LAWCONNECTING goes with CONTRACT LAWBECOMESCREATION goes with COPYRIGHT/IP LAW a...
Talk 5: Game EULA‟s etc. as restraintsSLIDE NOW INSERTED:WARNING &NOTICEThe materials that follow are filled with often de...
The problem with drafting…(where do the humans go?)
Emergent from Talk 5Copyright - serious consequences (injunctions, fines)/serious defenses(fair use/dealing) >>> constrain...
Trends in the Cases?COPYRIGHT (constraint)vvvUSER RIGHTS(e.g. reverse engineering, fair use, right to create {?})vvvCONTRA...
Double Standard TestsCore problem: EULA’s, ToS’ etc. we “agree to” are all differentin specifics; yet apply to billions of...
Question last week re developer’s liability:Isn‟t EULA/ToS needed for the “really bad” stuff?* Would a short notice would ...
A More Insidious Result?Censorship controls effectively delegated to privateinterests (without free speech/expression over...
…but the “functional” answer may be…Causes of action other then violation of EULA& ToU available in ALL relevant cases…1. ...
Proof of non-EULA claims in EULA cases (con’d)6. Zynga Game Network, Inc. v. Labrasca: Claims oftrademark infringement, un...
WoW example* Blizzard v. In Game Dollar Complaint appended (2007)WoW EULA = 6 pages + ToU = 11 pages.* WoW today: http://u...
Unfairness?1. Un-contract like uncertainty: Termination clausesthat aren’t….eg. WoW EULA:“This License Agreement is effect...
Unfairness? (con’d)2. Average Privacy Policy Reading Level is that of a CollegeSophomore while Average U.S. Reading Level ...
The Common Law explainsitself• “Every expression of a common intention arrived at bythe parties is ultimately reducible to...
Roads to explore…Are consumercontracts/license agreements redundant &/orunnecessary?• If EULA’s, ToS, & (non) Privacy Agre...
Other Alternatives1. Market uprising: e.g. “Instagram’s revised terms of use: Willthe Facebook generation fightback?”http:...
The Future?• “The privacy policy required by this section shall be no more than100 words and shall be written in clear and...
Further Reading1. “Empirical studies on software notices to inform policy makersand usability designers”; Jens Grossklags,...
Further Reading 23. “Terms Of Service, Terms Of Play In Children’s OnlineGaming”; Sara Grimes (2007)http://www.academia.ed...
NEXT TIME….• FROM WHEELBARROWS TO HOLODECKS:“CONNECTING” LIVING ROOMS…AND WAYBEYOND… ON THE LEGAL IMPLICATIONS OF TRUECONV...
& just so you have something toponder in anticipation…• “ARE YOU LIVING IN A COMPUTER SIMULATION?” NickBostrom – Faculty o...
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  1. 1. What’s it all about…Alpha?Part B “Connecting” | Talk 6Video Game Law 2013UBC Law @ Allard HallJon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy LLP@gamebizlawjon_festinger@thecdm.ca
  2. 2. Taking Stock: Where Are We?Part A: Memes of “Creating”* Meaning & purpose of creating (in a video game context);* Right to CREATe (mod)* Copyright as power & constraintPart B: Memes of “Connecting”How connecting creativity transforms and restrains it• Talk 4: Creation as Connection:Connection as pre-requisite to Creation;Connection as the purpose of Creation• Connections>>>Creation>>>Greater Connections• Creation as the merger points in a connected network – thinksubway map)• Video-games themselves as merger of Creativity & Connection ofboth Developer/Creator & Player/Creator
  3. 3. Leading to THE POST IP WORLD• Talk 4 (con‟d) - whether the dominance of contractsmeans we are already in a “The Post IP World”>>>• Contractual restraints (digital re-sale; transferability bywill, contracting out of copyright law allowances e.g.ToS prohibitions of reverse engineering)CREATION goes with COPYRIGHT/IP LAWCONNECTING goes with CONTRACT LAW
  4. 4. TodayAn early stage assessment ofthe utility of EULA’s (etc.)
  5. 5. Constraint/Restraint - Coercion/Control• con·strain/kənˈstrān/VerbSeverely restrict the scope, extent, or activity of.Compel or force (someone) toward a particular course ofaction.Synonyms: force - compel - coerce - oblige - necessitate• re·strain/riˈstrān/VerbPrevent (someone or something) from doing something;keep under control.Prevent oneself from displaying or giving way to (a strongurge or emotion.Synonyms: curb - check - hold - repress - control - contain
  6. 6. A Pattern?CREATION goes with COPYRIGHT/IP LAWCONNECTING goes with CONTRACT LAWBECOMESCREATION goes with COPYRIGHT/IP LAW asCONSTRAINTSCONNECTING goes with CONTRACT LAW as RESTRAINTS
  7. 7. Talk 5: Game EULA‟s etc. as restraintsSLIDE NOW INSERTED:WARNING &NOTICEThe materials that follow are filled with often dense,repetitive and difficult to follow legal language. You will findyourself scrambling to understand what the quoted textsays and why those particular words and concepts arebeing conveyed……..It will be difficult to understand…..AND THAT IS THE POINT(because those were pretty well the cases – not very many.)
  8. 8. The problem with drafting…(where do the humans go?)
  9. 9. Emergent from Talk 5Copyright - serious consequences (injunctions, fines)/serious defenses(fair use/dealing) >>> constraint orientedContract - less serious/few defenses (generally damages only)>>> restraint orientedCases – (vaguely) consumer/user rights (constraint) orientedConsidering:1. Companies draft; consumers don‟t2. Click-wrap “fiction”3. Lack of standardization (Industry Assoc./Treaty/Consumer Protection)4. All cases had multiple causes of action, not just contractQuery:Morality of contracting out of:a.) free speech/expression rightsb.) prevailing statutory copyright laws/rightsc.) {& we have not even mentioned privacy yet}
  10. 10. Trends in the Cases?COPYRIGHT (constraint)vvvUSER RIGHTS(e.g. reverse engineering, fair use, right to create {?})vvvCONTRACTING (restraint)vvvREMOVING USER RIGHTS(no reverse engineering, mods)vvvRE-EMERGEANCE OF USER RIGHTS(same user rights as copyright?)*Fairness of this process of moving from constraints toadditional restraints without user understanding?
  11. 11. Double Standard TestsCore problem: EULA’s, ToS’ etc. we “agree to” are all differentin specifics; yet apply to billions of people.ETHICAL SOLUTION?: Embedding a “Do UntoOthers” algorithm rule-set which permits us to use thedigital bits of others if we share ours to the samestandard. Barter not infringement.
  12. 12. Question last week re developer’s liability:Isn‟t EULA/ToS needed for the “really bad” stuff?* Would a short notice would be as effective as EULA/ToS?“Cheating, illegal &/or intolerant behavior is not acceptable. In suchevent (determined in our sole discretion) we may take such legal orother actions we deem appropriate in our sole discretion."* EULA cases do tend to relate to commercial threats, not “really bad”stuff. See Davidson & iRacing for examples.* Bot/gold-mining cases more ambiguous, being about both;a) gamers experience; &b) company possibly offering gamer same features.* Consider: Blizzard Entertainment, Inc. v. In Game Dollar, LLC,USDC Cal.2007 (gold-farming) followed by “Blizzard Introduces Buying in-Game WoW Items” (Nov/09)http://www.tomshardware.com/news/World-Warcraft-Blizzard-MMORPG-Microtransactions,9003.html
  13. 13. A More Insidious Result?Censorship controls effectively delegated to privateinterests (without free speech/expression overrides).* “Apple rejects game based on Syrian civilwar”http://killscreendaily.com/articles/news/apple-rejects-game-based-syrian-civil-war/* “iOS games chafe under Apples directions: If you want tocriticize a religion, writea book’”http://www.theverge.com/2013/1/16/3879194/apple-app-store-guidelines-tell-game-developers-to-avoid-serious-themes* “Turns Out Sexist Talk on Xbox Live Wont Earn You aLifetime Ban” – but racist talkwill.http://www.gamepolitics.com/2012/11/07/turns-out-sexist-talk-xbox-live-wont-earn-you-lifetime-ban#.URsttVpAR3c* & less insidiously: “Blizzard Bans Several Thousand DiabloIII Players for Cheating” – using botts (would “Notice”do?)http://gamepolitics.com/2012/12/19/blizzard-bans-several-thousand-diablo-iii-players-cheating#.URswDFpAR3c
  14. 14. …but the “functional” answer may be…Causes of action other then violation of EULA& ToU available in ALL relevant cases…1. Davidson & Associates, Inc. v. Internet Gateway:Breach of Digital Millennium Copyright Act (DMCA) found.2. Blizzard Entertainment, Inc. v. In Game Dollar, LLC:Claims of intentional interference with contract; unfaircompetition & unjust enrichment. Case settled.3. MDY Industries, LLC v. Blizzard Entertainment, Inc.:Breach of DMCA found.4. Blizzard Entertainment, Inc. v. Marshall:Claims of copyright infringement, circumvention of copyrightprotection systems in violation of the DMCA & tortiousinterference with contract. Case dropped (settled).5. iRacing Motorsports Simulations, LLC v. TimRobinson: Copyright infringement found.
  15. 15. Proof of non-EULA claims in EULA cases (con’d)6. Zynga Game Network, Inc. v. Labrasca: Claims oftrademark infringement, unfair competition, passing off, andintentional interference with contractual relations. Consentjudgment.7. Evony, LLC et. al. v. Holland:Default judgment based on copyright infringement(Copyright Act & DMCA), trademark & trade dressinfringements, tortious interference with contractualrelations & prospective economic advantage.Footnotes - other cases not on-point8. Vernor v. Autodesk, Inc.: Judgment for copyright infringement (non-game case).9. Smallwood v. NCSOFT: EULA as defense in gaming addiction case not fullyupheld10. Hernandez v. Internet Gaming Entertainment, Ltd: Action by gamer againstgold farming company seeking to use ToU & EULA gold farming company musthaveagreed to. Settled.
  16. 16. WoW example* Blizzard v. In Game Dollar Complaint appended (2007)WoW EULA = 6 pages + ToU = 11 pages.* WoW today: http://us.blizzard.com/en-us/company/legal/EULA = 5 pages + ToU = 7 pages + Remote Terms of Use =2 pages + Annual Pass Terms of Use = 1 page.
  17. 17. Unfairness?1. Un-contract like uncertainty: Termination clausesthat aren’t….eg. WoW EULA:“This License Agreement is effective until terminated.You may terminate the License Agreement at any timeby (i) permanently destroying all copies of the Game inyour possession or control; (ii) removing the GameClient from your hard drive; and (iii) notifyingBlizzard of your intention to terminate this LicenseAgreement. Blizzard may terminate this Agreement atany time for any reason or no reason.”Are we party to hundreds of contracts (ormore) we don’t use?
  18. 18. Unfairness? (con’d)2. Average Privacy Policy Reading Level is that of a CollegeSophomore while Average U.S. Reading Level is 8th Grade.“Examination Of Privacy Policies Shows A FewTroubling Trends”http://techcrunch.com/2011/11/30/examination-of-privacy-policies-shows-a-few-troubling-trends/3. “Microsoft Attacks Google on Gmail Privacy” | NY Times“The ads will showcase research that shows most peopledon’t know that Web e-mail providers like Google scan thecontents of their e-mail messages to deliver personalizedads to them — and when they do find out, they don’t like it.”http://bits.blogs.nytimes.com/2013/02/06/microsoft-attacks-google-on-gmail-privacy/4. “Terms of Service: Didn’t Read” (website) “I have readand agree to the Terms” is the biggest lie on theweb. We aim to fix that.” http://tos-dr.info
  19. 19. The Common Law explainsitself• “Every expression of a common intention arrived at bythe parties is ultimately reducible to question andanswer.” Anson, Principles of the English Law ofContract, 2nd Edn., p.15 (1882).• Common Law is „concerned not with the presence of aninward and mental assent but with its outward and visiblesigns.” Cheshire and Fifoot‟s Law of Contract, 9th Edn.P.26 (1976).• …not much comfort……when there is anobvious issue?
  20. 20. Roads to explore…Are consumercontracts/license agreements redundant &/orunnecessary?• If EULA’s, ToS, & (non) Privacy Agreementsdisappeared suddenly would the gaps be filled by:* Copyright* Competition-antitrust law* Privacy law* Consumer protection laws* International law/treaties* Legislation & regulationSee: “Peer Progress and Regulation 2.0” Nick Grossman on principles ofregulation in the digital networked agehttps://citp.princeton.edu/event/grossman/ (video)http://www.avc.com/a_vc/2013/02/peer-progress-and-regulation-20.html (slides)
  21. 21. Other Alternatives1. Market uprising: e.g. “Instagram’s revised terms of use: Willthe Facebook generation fightback?”http://www.lexology.com/library/detail.aspx?g=d3ce96bc-2b40-4c0c-8a36-c855e6f2207e2. Technology (DRM+): e.g. “Examining Sonys Internet-freemethod for blocking used game sales”:“…patent application…outlines a content protection system thatwould use small RFID chips embedded on game discs to preventused games from being played on its systems, all without requiringan online connection.”http://arstechnica.com/gaming/2013/01/examining-sonys-internet-free-method-for-blocking-used-game-sales/
  22. 22. The Future?• “The privacy policy required by this section shall be no more than100 words and shall be written in clear and concise language at nogreater than an eighth grade reading level. The privacy policy shallinclude a statement indicating whether the personally identifiableinformation may be sold or shared with others, and if line so, how andwith whom the information may be shared.”• Context: Act amends Section 22575 of the Business andProfessions Code, which requires that an operator of a commercialWeb site or online service operators collecting personal informationabout consumers to make its privacy policy available.• California BILL No. 242; Assembly Member Ed Chau - February 6,2013 (BILL No. 242 was 336 words perTechdirt)http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0201-0250/ab_242_bill_20130206_introduced.pdf
  23. 23. Further Reading1. “Empirical studies on software notices to inform policy makersand usability designers”; Jens Grossklags, Nathan Good (Universityof California Berkeley, 2007)“Abstract: We evaluate the usability of End User License Agreements(EULAs) of popular consumer programs. Results from an empiricalevaluation of 50 popular programs show the lack of accessibility andreadability of notices. Our data from a recent study with 64 usersinvolved in installation tasks confirms the public perception that noticeto and consent by the user is not achieved.”http://people.ischool.berkeley.edu/~jensg/research/usec.html2. “Examination Of Privacy Policies Shows A FewTroubling Trends”http://techcrunch.com/2011/11/30/examination-of-privacy-policies-shows-a-few-troubling-trends/
  24. 24. Further Reading 23. “Terms Of Service, Terms Of Play In Children’s OnlineGaming”; Sara Grimes (2007)http://www.academia.edu/183319/Terms_Of_Service_Terms_Of_Play_In_Childrens_Online_Gaming4. “Confess and protest against the Biggest Lie!”;http://www.biggestlie.com5. “The Cost of Reading Privacy Policies”; A. McDonald, L.Cranor. 4 ISJLP 543 (2008-2009)http://lorrie.cranor.org/pubs/readingPolicyCost-authorDraft.pdf6. “New Analyses of EULA”; Xiang Yuan, Carnegie MellonUniversityNew Analyses of EULA (End-user License Agreement)7. “CLICK AND COPY: BREACH OF ONLINE LICENCEAGREEMENTS AND COPYRIGHT INFRINGEMENT”; RichardStobbe (2012) 28 C.I.P.R. 227http://www.ipblog.ca/wp-content/uploads/2013/01/cipr-28-2-click-and-copy-breach-of-online-license-agreements-and-copyright-infringement-c1380000.PDF
  25. 25. NEXT TIME….• FROM WHEELBARROWS TO HOLODECKS:“CONNECTING” LIVING ROOMS…AND WAYBEYOND… ON THE LEGAL IMPLICATIONS OF TRUECONVERGEANCE
  26. 26. & just so you have something toponder in anticipation…• “ARE YOU LIVING IN A COMPUTER SIMULATION?” NickBostrom – Faculty of Philosophy, Oxford University.http://www.simulation-argument.com/simulation.html• “Physicists devise test to see if were living in TheMatrix”http://www.theverge.com/2012/10/11/3487710/computer-simulation-silas-beane-university-bonn
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