The Game Behind the Video Game

Business, Regulation, and Society in the Gaming Industry

April 8-9, 2011 at The Heldrich in New Brunswick, NJ

Conference Proceedings

Table of Contents
Mapping Gold Farming Back to Offline Clandestine Organizations: Methodological, Theoretical, and Ethical Challenges Brian Keegan, Muhammad Ahmad, Dmitri Williams, Jaideep Srivastava, Noshir Contractor — Northwestern University, USA Trends In the Video Games Software Industry. Toward New Business Models? Giuditta de Prato & Jean Paul Simon — European Commission, Spain Claudio Feijoo — Universidad Politecnica de Madrid, Spain Hacktivism in Online Games: Negotiating Transparency, Privacy, & and Policy Making Peter Ludlow — Northwestern University, USA Burcu S. Bakioglu — Indiana University, USA Layers of Influence In Multiplayer Gaming Nadav Lipkin — Rutgers University, USA A Business History of Video Games: Revenue Models from 1980 to Today Joost van Dreunen — Columbia Institute for Tele-Information, USA The ‘Active’ Video Game Consumer: What Is at Stake in the Narratives Surrounding the Video Game Prosumer Paolo Ruffino — Goldsmiths, University of London, UK Call of Duties: The Arbitration of Online Game Disputes Ren Reynolds — the Virtual Policy Network, London, UK. Melissa de Zwart — The University of Adelaide, Australia Games are Not Coffee Mugs: Games and the Right of Publicity William K. Ford & Raizel Liebler — The John Marshall Law School, USA New Media Censorship & the First Amendment: Understanding the Origins of EMA v. Schwarzenegger Thomas H. Rousse — Northwestern University, USA Designing for Diversity: Can Regulation Promote Diverse Experiences in Game Worlds? Melissa de Zwart — University of Adelaide, Australia Kate Roth — Monash University, Australia Productivity Games: Improving Software Quality through Fun and Play Ross Smith — Microsoft Corporation, USA Let’s Play Super Rutgers RPG: Interactivity by Proxy in an Online Gaming Culture Kris Ligman — University of Southern California, USA For Constitutional Control of New Media: Examining the Judicial Obsession with Causality in Video Software Dealers Association v. Schwarzenegger Ju Young Lee — Penn State University, USA The Private Regulation of Virtual Worlds Versus “Real World” Laws: European and American Perspectives Sevan J. Antreasyan — University of Geneva, Switzerland Copyright’s Middle Ground: The Interaction of Players and Video Games Bruce E. Boyden — Marquette University Law School

Mapping Gold Farming Back to Offline Clandestine Organizations: Methodological, Theoretical, and Ethical Challenges

Brian Keegan, Muhammad Ahmad, Dmitri Williams, Jaideep Srivastava, Noshir Contractor

Abstract “Clandestine”, “covert”, “dark” and “illicit” organizations are primarily characterized by the need to engage in coordination and collective action while also emphasizing secrecy and security (Ayling, 2009). However, empirical analyses of offline clandestine organizations’ structures have received scant attention because traditional data collection is difficult by design. Studies of clandestine organizations employ methods which censor their embeddedness within particular historical contexts and larger licit spheres of peripheral and legitimate actors. These studies rely on descriptive, single-level methods. However, the explosion of behavioral data available in online databases has opened up new avenues of social research. To the extent that individuals in online worlds operate under similar social and psychological motivations and constraints as the offline world, it is possible to use generative models of clandestine networks from online virtual worlds to test and inform theories of clandestine networks in offline contexts (Williams, 2010). We use gold farmers in massively multiplayer online games (MMOGs) as a case to examine how clandestine organizations assemble and maintain their operations in the face of pressure to remain competitive and secret. We review our recent research findings employing methods in network analysis and machine learning to detect and identify gold farmers in a popular MMOG based on distinct structural motifs in trade exchanges, patterns of behavioral similarity, and appropriation of in-game affordances. Although these findings on virtual clandestine organizations comport with many existing theoretical predictions as well as observations from offline criminal behavior, we discuss how they fail to map from online to offline in other contexts. Finally, we discuss the ethical implications of attempting to develop abstract


heuristics for identifying clandestine behavior in data rich contexts and conclude by identifying future directions for analytic and theoretical research. 2 .

Wasserman. the exhaustive behavioral data of individuals’ interactions and attributes in virtual spaces such as massively multiplayer online games (MMOGs) provides a venue to examine a variety of social and organizational processes. constituents. these comparative network analysis methods do not solve the data scarcity problem outlined above. In particular. Recent developments in the statistical analysis of network data now permit confirmatory and inferential techniques. pranksters. members obviously resist traditional data collection methods as they seek to avoid detection.Introduction The analysis of criminal and clandestine organizations presents unique theoretical and methodological problems. This is primarily a consequence of the fact that the data on these organizations is necessarily had to come by. hackers. However. a comparative approach allows us to leverage observations from one domain to support inferences in another. 2006). To the extent that individuals operate under similar motivations and constraints as the real world. empirical analyses of these organizations have received scant scholarly attention despite pervasive popular ideas about terrorists. & Faust. multilevel. In of themselves. multitheoretical analyses. and time. The differences or similarities in these generative models allow us to analyze the extent to which task and other contextual features influence both micro-level actor tendencies and macro-level structural characteristics of clandestine social organization. Furthermore. However. and other malfeasors as flexible and evasive network organizational forms. and hybrid models that account for both network topology and actor attributes (Contractor. it is possible to compare networks despite differing widely in size. it is possible to use clandestine data from virtual worlds to inform the development of theories of clandestine behavior in the “real” world. relationship. the few analyses that have been done have been handicapped by a theoretical and methodological approach that emphasizes descriptive analysis of structural features at a single level of analysis but fail to account for how network topology and actor attributes influence each other. including clandestine and criminal activity. By using these generative statistical approaches to network analysis. 3 .

“clandestine”. Milward & Raab. analyze. and norms are built – 4 . 2008). communication scholars. Morselli et al. 2007). To this end. we adopt the perspective of organizational network theory where networks are not only the means of transmitting resources and information among a group of individuals. & Tsai. and map the social organization of illicit activities from the online world back to the offline world. 2002). organizational theorists. Shortcomings of previous covert network analysis Traditional sociological and criminological examinations of deviant behavior have wholly avoided the relational and interactional forms of criminal activity (Vaughan. The organizations actors co-construct to support covert or illicit behavior are the primary focus of this paper as opposed to individuals’ covert/illicit behavior against overt/licit organizations (Pinto. & Pil. Leana. but are also the skeleton of upon which tacit and implicit practices such as hierarchies. Throughout the paper we will employ “covert”. coordinate their activities and adapt their structure to achieve their mission while avoiding detection and maintaining resilience (Ayling. secrecy. 2006). Galaskiewicz. status. cooperation. and “illicit” interchangeably to describe organizations primarily characterized by the need to engage in collaboration.A specific case of deviant behavior in online communities. control. 2004) and only recently have network analysis methods been applied to understand how actors in “dark” networks. and security (Baker and Faulkner 1993. Greve. and collective action while also emphasizing invisibility. The possibilities and drawbacks for mapping online behavior to offline contexts are then discussed followed by a multilevel and comparative network analysis and review of the covert and criminal network analysis literature. 2009. gold farming. and sociologists increasingly rely on network analysis methods to understand how actors within organizations interact and how these structures constrain and enable social behavior (Brass. is first introduced to ground the review of social processes in covert network organizations. However. The paper concludes with a discussion on the opportunities and limitations on using virtual world data to inform the development of computational social science in the domain of criminology. such as drug traffickers and terrorist cells. Waring. 2002.

These factors all complicate traditional data collection approaches such as observation or surveying. Sparrow.g. a structural approach examining more generalizable patterns of relationships predicated on transactions. S Wasserman & K Faust. anecdotal accounts. 1971. covert organizations assume a variety of forms in response to the shared goals. and skills of its members (Cressey. and authority permits comparative analysis into how individual agency and variation interact with structural tendencies and other exogenous features governing how covert organizations assemble themselves (Coles. 1994). Covert actors are usually a tiny minority of the general population. family members. or data gleaned from judicial processes (Davis. 1982. these approaches run afoul of network analysis research design. The choice of sampling units. lawyers and accountants who tacitly abet illicit activities) and peripheral facilitators (e. 1981). 1991). The organization forms assumed by covert networks and other secret groups demand conformity to extreme demands and thus serve as boundary conditions to test extant theories of organizing (Simmel. However.. 2003. 2001. organizational studies of covert groups have traditionally been limited by the scarcity of data on these groups. McIntosh.they are sources of structure as well as carriers of process (Borgatti & Foster. Problems of boundary specification abound in characterizing covert organizations as legitimate actors (e. communication. 1906). These actors are likely unobserved by investigators and therefore unrecorded in judicial proceedings or omitted from historical accounts (Sparrow. 1991). purposefully difficult to identify. and the level of data analysis all bear on the validity of any network analysis (Knoke & Kuklinski. the relational content. However. 5 .g. and obviously resist entrée from outsiders who wish them to disclose their relationships with trusted affiliates. task demands. Because of these data collection difficulties. 1975). corrupt officials) are simultaneously loosely-affiliated with the core tasks of the organization but nevertheless play crucial roles in enabling criminal activities (Morselli & Giguere. the form of relations. 2009). As with any organization. Rather than focusing on case or culturally specific constructions of organizational relationships. the theoretical and methodological literature examining covert networks has traditionally relied upon historical case studies. 1981. environmental factors. G Robins. 2006). Erickson. kinship..

the assumption that qualities of the actors have little or no variance or should not influence linking patterns may be justifiable. reachability. and both of these (McIntosh. centrality. geodesic lengths. or routers. organizations. intensity. The nature of relationships between actors in a network analysis likewise differentially affects validity of any analysis. etc. 1997). routinized. mathematicians. frequency. Approaching these relations as dichotomous entities has substantial topological implications for the density. and equivalence of the network. biologists. instrumental. although network analysis permits the collection of data at multiple levels of analysis (actors. & Borgatti. the strength or weakness of ties in these organizations are proxies for durability. Granovetter & Swedberg. and other domains leading the “new science of networks” in particular emphasize topological features and distributions of graphs such as degree distribution. biologists. predispositions. 2001). motivations. dyads.). In the context of interactions among populations of homogenous entities such as atomic particles. this claim is completely untenable for human social systems.Some overt organizations are assembled on an ad-hoc basis. and have substantial turnover in membership. duration. communicational. 1975). and trust. triads. and dependent on trust. improvise. 1992) which ignore the possibility that the larger structural context may also play a role (Jones. proteins. and other descriptive characteristics (Newman. and mathematicians fail to model the variance among individual actor attributes and how these in turn influence local and 6 . while others are highly stable. and authority relations which independently only capture a single dimension of the network and certainly do not reliably align themselves in every case (Coles. Finally. The graph theoretic approaches very much in vogue among physicists. However. The literature is rife with examples of “dyad atomization” (M. especially studies of covert and clandestine organizations where variation among individuals’ attitudes. 2003). criminal organizations depend upon a variety of transactional. and resources fundamentally interact with the processes that cause them to have relationships. Hesterly. The topological approaches employed by many physicists. kinship. These relations are not binary either. many types of network data unfortunately are transformed and simplified into a single level of analysis under simplifying assumptions. groups.

e. & Petit. exchange. Individualized trust proceeds from personal qualities or past behavior. Following Granovetter (1973). and covertness. 2003). the existence of these strong ties should lead to the accumulation of closed. maintenance. clique-like structures. the stronger the tie is likely to be and the greater the likelihood that the dyad interacts in other relational contexts as well (Erickson.. trust. balance theory processes such as common adversaries (i. 1993.) and exchange theory processes such as resource dependence (arms dealers supplying both sides of a conflict) are also examples of structural factors governing the creation of strong trust ties (G Robins. covertness is necessarily at the level of the actor and cannot be the construct of the network itself (Robins 2009). shared background. Multi-level processes of covert organizational assembly Covert organizations rely upon processes of social exchange and reciprocity regulate the provision and distribution of illicit goods. loyalty. 2009). von Lampe & Johansen. protections. Processes of social selection are also likely to dominate the formation. and shared trust based on group membership. 2007). the presence of many strong ties can increase the risk of detection. in particular. network structures. regulation.S. the more these overlap. Morselli. 1999). and extortion of these services (McIllwain. 1981. al Qaida and the Taliban both resist the U. or comparative advantage may also govern organizational assembly practices (Coles. In the context of clandestine networks where balancing the twin purposes of covertness and collaboration are paramount (Baker & Faulkner. reputational trust is developed on the basis of others’ relations/endorsements. While these structures have advantages by allowing members to monitor and sanction each other’s behavior to ensure control. 2001). is the foundational relationship for subsequent types of interaction such as communication. and dominance (von Lampe and Johansen 2004). Other individual-level attributes such as trust predicated on identification via familial ties. and dissolution of these trust-oriented antecedent relationships as individuals fixate on shared backgrounds and values. It may be the case that “cognitive-cultural mechanisms” such as 7 . role specialization. Because covert behavior requires individual action. Giguère.

These may be actors strategically employed by the leadership to insulate themselves from outside interdiction (Dorn. and the theoretical paradigms outlined above still exhibit a tendency towards densely connected cliques/cells rather than decentralized. However. & White. Guetzkow & Simon. Thus. entrepreneurs brokering information. and covertness to foster trust in the absence strong relational ties of communication or exchange (Milward & Raab. McIntosh. Actors in covert organizations likewise face a major dilemma between ensuring operational secrecy and efficiency (Ayling. 1955). 2009). although these findings are primarily based on small groups in a laboratory setting with specific types of tasks. 1971. In particular. These mechanisms can support trust within particular cliques and cells as well as maintaining identification between cells despite the lack of strong ties and possibility that inter-clique ties can be revealed and disrupted (G Robins. Networks characterized by high centralization and low diameter are associated with high levels of performance (Bavelas. but still wellconnected.shared background and ideology can also internalize organizational imperatives for control. it is difficult to identify brokers by extrapolating the behavior of typical network members to these individuals in this distinctive roles (G Robins. 1998). Brokers are vulnerable insofar as both sides of a structural hole can betray them. 2009. the loss of these brokers can also significantly disrupt the effectiveness of the network (Morselli. 1950. covert organizations. 2006). 2010). or legitimate actors facilitating illicit activity (Morselli & Giguere. terrorists. 2009) However strong ideological identification and commitment is not universal to all types of criminal organization (Cressey. traditional “bright” organizations operate under considerably different constraints than “dark” organizations like gangs. 2006). or arms dealers where dense networks of ties and prominent bridging leaders are 8 . loyalty. However. brokers are highly autonomous agents who bridge structural holes between the cliques or core of the network to the periphery of the network can serve multiple purposes. drug traffickers. 2006). The fact that brokers remain can autonomous reflects the fact that they much less likely to buy into the ideological identification or share the identity that motivates core participants. 1975). Milward & Raab. 2006). More recent analyses have emphasized that teams with dense ties as well as leaders who are central in intergroup networks are more committed and successful (Balkundi & Harrison. Oette.

2007) and organizational resilience with operational flexibility (Milward & Raab.. How do covert organizations balance security with efficiency then? Erickson’s study of six diverse clandestine organizations concludes organizations with an established reputation are committed to emphasizing security over efficiency (Erickson. 2007). multi-level framework 9 . 2006). closure. Baker & Faulkner. et al. 1998). et al. Clandestine operations must to balance efficiency with security (Morselli. multi-level model of clandestine activity thus needs to account for a variety of simultaneous tendencies outlined above: some covert actors will seek balance and closure. Compared to the network of al-Qaida terrorists.liabilities which increase the likelihood of detection (Ayling. preferential attachment. et al. However. a drug trafficking enterprise engaging in regular activity exhibits higher centralization and a core of closely-linked participants with stable roles (Morselli. how do the tendencies towards or away from reciprocity. 1981).. 1993). other “entrepreneurial” actors will have tendency to bridge structural holes and remain unembedded. Decentralization has also been observed to be a key tactic adopted by members of a criminal network in response to targeting and asset seizure by lawenforcement (Morselli & Petit. and homophily simultaneously influence the ultimate structure of the network? A multi-theoretical. 2003). efficiency drives tendencies towards centralization. Borm. & Hamers. taken together. The addition of other actors to the core of a criminal network can serve to extend its periphery and insulate participants at the core (Dorn.. 2009). 1993. 2009. Baker and Faulkner’s study of price fixing and collusion in a white collar crime ring revealed that peripheral players were less targeted and less sanctioned than more central players (Baker & Faulkner. Toward a multi-theoretical. but exogenous threats of detection demand low densities. 2007). these are all distinct and potentially dynamic processes and this research has only examined them at a single level of analysis. Computational models attempting to optimize efficiency against likelihood of detection will still assume star-like structures such as “wheels” and “windmills” (Lindelauf. Raab & Milward.

and reconstitution of organizational networks.” Do the individual-level and network-based effects have independent explanatory capacity. geographic origin. Monge & Contractor. Certainly. few analyses of clandestine networks have been performed let alone modeling the dynamics by which organizational forms emerge. we previously outlined the shortcomings of topological approaches to network analysis for often failing to account for variation in individual-level factors.Although the novelty of contrasting emergent and formal organizations has waned and been replaced by an emphasis on examining how organizational structures emerge (Contractor. or can one be subsumed parsimoniously by the other? Monge and Contractor (2003) identify nine broad classes of theoretical mechanisms that have been used to explain the creation. Selection processes emphasize how individuals select certain partners or positions in the network based on individual attributes while influence processes emphasize how individuals’ attributes are influenced by their position in the network and behavior of their partners. or contradictory manifestations in network structure. family) are fixed within individuals but vary substantially between actors. maintained. parallel processes of selection and influence occur. et al. Crucially.. It is important to specify models that control for the respective contributions of endogenous and exogenous mechanisms that can also potentially account for what network ties are created. they can potentially lead to confounding. 2003) There are at least five levels of analysis one might employ for network analysis (Contractor & Monge 2003. “How [does] the network provide constraints and opportunities for the individuals within it and how are those individuals [attempting] to shape the network to maximize the opportunities and limit the constraints. do they interact in important ways. one would 10 . In a network composed of friendship or sexual relations. Wasserman. As Robins (2009) argued. some factors such as demographics (gender. Across all these levels of analysis. we review these below and identify the shortcomings of only examining each particular level of analysis. Contractor et al. 2006. Robins 2009). dissolution. complimentary. and dissolved (Contractor. 2006. Faust 2006). maintenance. because these theoretical mechanisms operate at multiple levels of analysis. Individual level factors. ethnicity.

Dyadic level factors. von Lampe & Johansen. for example. subservient. reciprocated (mutuality or exchange may cause A and B to have ties with each other).clearly expect an individual-level factor like gender to strongly influence the evolution of either type of network. In the context of criminal network analysis. Individuals’ psychological and cognitive factors are likewise internally held and dynamic states which may predispose them to be risk-takers. or knowledge (e. it omits important 11 . Criminological studies emphasize how geographic origin or familial relations are the foundational attributes by which criminals evaluate whether or not to trust an individual (Erickson. Finally. in which they share many types of relationships such as trust and communication. Simply looking at individuals’ psychological states absent network structure potentially omits how positive or negative affect can develop as a result or the presence or absence of ties with other parties.g. or law enforcement. dominant or submissive). knowing who is an informant) status might be expected to vary over time. A pair of actors may have multiplex ties. As before. expertise. competing organizations. On the other hand. Balance theory. However. or valued (strong to weak. charismatic. short-term to long-standing) (Robins 2009). 1981. individuals’ capacities to learn new information may strongly influence who they trust and thus with whom they interact. individuals may have various types of economic capital which can be lost or exchanged as a result of interactions with members of their own organization. valenced (positive or negative. A dyad is a pair of individuals and the relationship(s) they do or do not share. 2003). but are can be altered as a result of other actors’ beliefs which can diffuse like a disease via shared relationships in the network. if this is the sole level of analysis. The tie may also be directed (A’s relationship with B is distinct from B’s relationship with A).. emphasizes how the absence of a friendship or trust tie between two individuals with a mutual friend or trusted counterparty leads to heightened stress and less affect (XXX). individual-level capacities such as age. or violent. individuals’ information states are not independent. These psychocognitive factors clearly influence processes of social organization in clandestine and criminal contexts by governing the roles assumed by various actors.

the presence of absence of ties in a network may be a function of the structure of existing ties irrespective of individual attributes. Although they begin to bridge local and global levels of analysis. A clique is a sub-group in which every member of the clique has a connection to every other member of the clique. It is also possible to define properties using the whole network as a unit of analysis. 1999). Traditional approaches to network analysis have emphasized understanding descriptive statistics such as centrality. The presence or absence of a tie could also be affected by exogenous factors such as the number of other ties each of the actors have (adding ties above one’s Dunbar number may be very costly or unlikely). Glocal factors. For example. the likelihood of a dyad having a relationship may be a function of their mutual similarity (homophily) or dissimilarity (heterophily). and plexes (Hanneman & Riddle 2005). As has been alluded to before. the extent to which it spans structural holes in the network (betweenness centrality). analyzing these meso-level structures alone confounds unique processes that can generate similar structures. Depending on the context. Global factors. how proximate it is to the rest of the nodes in the network (closeness centrality). or is connected to other well-connected nodes (Bonacich power or eigenvector centrality) (Wasserman & Faust 1994). clans. reciprocation in a triadic context is qualitatively different from reciprocation in a dyadic context (Krackhardt. Measures such as diameter describe the length between the two most distant. These metrics capture how many connections a node has (degree centrality). Local structural factors.interactions with other levels of analysis. but indirectly 12 . A variety of definitions also exist to specify individuals’ membership and embeddedness in sub-groups defined by a shared pattern of ties with each other such as cliques. Processes of closure are particularly observed in trust-based relationships such as friendship where individuals with mutual friends themselves become friends with each other. other structural processes such as transitivity or cyclicality may influence the types of ties created. Unfortunately. Individual actors can have properties that are functions of the rest of the actors’ position and behavior in the network. centrality metrics capture superficial structural tendencies and can confound individuals with very different attributes and/or qualitatively different positions and roles. cores.

relational data used in network analysis usually show strong interdependencies. the range of possible networks and their probability of occurrence under the model are represented by a probability distribution on this set of all possible graphs.” This is an empirical claim. but testing this assertion has only become possible in recent years because in addition to the difficulty of obtaining data. what other friends the focal node has and/or the relations between the existing friends and the potential friends. the existence of a tie from A to B is not independent from the observation of other ties involving A and B. 1994). These structural 13 . In an exponential random graph model. and assortativity suggests whether well-connected nodes tend to have other well-connected nodes as neighbors (Newman. the existence of one friendship relation may depend on the total number of friends the focal node has. and star tendencies. As we review in greater depth in the methods section.connected nodes. statistical models like exponential random graph models (ERGMs) allow us to test hypotheses about the network without losing information about interdependencies among relations by estimating the probabilities that local network substructures are observed more frequently than by chance. For example. cyclicality. The interdependencies among relational data make it inappropriate to analyze network data using traditional statistical analysis approaches. multi-level statistical models of networks McIllwain (1999) asserts that networks as social system of organized crime exhibit “remarkable consistency of the process of organizing crime across time and space. Unlike other types of data collected from individuals. such as regression analysis or ANOVAs (S Wasserman & K Faust. Comparing generative. 2003). the complex dependencies within network data and confounding processes that generate similar topological features makes it difficult to readily compare network structure. The model is constructed by specifying parameters corresponding to the structural characteristics(s) which are more likely to occur in the distribution. centralization conveys the distribution of links among nodes. transitivity. density capture the prevalence of ties relative to the theoretical maximum number of ties. There are numerous structural tendencies to characterize these networks and the particular parameters employed must be theoretically relevant such as reciprocity.

to compare networks. et al. A fourth type of analysis asks whether data on similar types of relations from different actors in roughly similar settings and contexts are comparable. 2001). 2003). represent the similarities among networks. A third type of analysis examines when the same relation is measured on two or more sets of actors.” By characterizing each network using a statistical ERGM capturing the likelihood for the graph to assume structural properties. it will be possible to measure the similarity between networks based on these parameters estimates. Thus. Holland and Leinhardt (1970) used triadic census approaches to examine the distribution of structural features across various network types. 2008). in turn. we adopt the approach suggested by Faust and Skvoretz (2002) that “networks are similarly structured to the extent that they exhibit the same structural tendencies. However. 2006.tendencies. The Add Health studies measure friendship networks of adolescents across different schools permitting analysis of general properties of adolescent friendship formation (Moody. and interpret the resulting distributions of tendencies using contextual information about the networks. can be interpreted within a multi-theoretical framework that accounts for various endogenous and exogenous processes occurring at multiple levels of analysis that potentially govern the evolution of the graph (Contractor. Despite the fact that networks can vary substantially in size and density. Two straightforward cases of comparative network analysis examine how the same set of actors either change their patterns of interactions over time or have different structures for different types of relationships. The majority of network analyses are cross-sectional case studies of individual communities and do not attempt to compare networks. the most challenging type of comparison involves networks of different sets of actors of very different sizes and with substantially different relationships. It is possible to calculate pair-wise 14 .. to the same degree. these are differences of scale rather than process. Two networks with estimates similar in both magnitude and direction are similarly structured because the same structural tendencies are important and important to the same degree in predicting tie probabilities in both networks. Studies of organizational networks reveal informal structures based on trust and friendship overlapped and revealed latent leaders (Kilduff & Krackhardt. Monge & Contractor.

1981. or 15 . 2002). 1991). the explosion of behavioral data available in online databases has opened up new avenues of social research (Lazer et al. 2009). Mapping behavior from the online to the offline To the limited extent that networks of criminal or clandestine have been analyzed. expertise. capacity (skill. it is possible to analyze comprehensive cross-sectional and longitudinal behavioral data on a scale that would be unethical. the data often lack rich actor-level attributes such as demographics (gender. Moreover. it omits the embeddedness of these practices in larger social structures and the enabling roles played by legitimate and peripheral actors as discussed above. because the organizations that operate MMOGs maintain archival databases of all player actions and attributes. However. Third. motivations.. or how these interaction patterns changed over time as individuals entered and left the system. or behaviors. knowledge). psychology (attitudes. online worlds may provide a parallel in which researchers can test general hypotheses of human behavior (Bainbridge.. 2009. it only captures particular types of relationships (such as phone communications) and the subset of actors that are parties to the relationship instead of than the multiplex ties that bind actors together. they fail to capture the communication dynamics preceding the onset of surveillance. Huffaker et al. To the extent that individuals in online worlds behave and interact under similar constraints and motivations as they do in an offline context. Williams. 2007.. Finally. Second. beliefs). this approach is limited for several reasons.(dis)similarity statistics for each network using Euclidean distances or correlation coefficients for predicted tie probabilities or direct parameter estimates themselves (Faust & Skvoretz. Sparrow. 2009). age). the data has generally been obtained from court documents such as wiretap records to capture whom talks to whom (Davis. these data are often cross-sectional and/or temporally censored. possessions. ethnicity. However. 2010). Massively multiplayer online games (MMOGs) are largescale social environments contain players of varying levels of expertise who join cooperative teams to accomplish complex tasks (Huang et al. First. impracticable. how the organization was formed.

but the behavior must operate the same as one would expect in the real world (Williams. concurrent validity. However. 2010). physics are negotiable. In the context of a game like EverQuest 2 where players interact and engage in behaviors known to lead to administrative banning. This is particularly exciting in the context of analyzing covert organizations. Not only must the measure predict the appropriate outcome in the virtual world. If the social organization of covert actors in an online game is to have external validity offline. prosecution. the act of banning someone from the game should be similarly punitive as detainment. and predictive-external validity. In the context of understanding how clandestine groups organize themselves. and consequently human behavior in them may not map at all from the online back to the offline. and forfeiture of freedom and property in the offline context such that it motivates covert organization and promotes similarly evasive responses. However. virtual worlds also offer substantially different affordances than the real world: death is impermanent. the second standard of predictive validity by characterizing as operating as one would expect in 16 . Concurrent validity is the extent to which the measured phenomenon correlates to other measures of the same phenomena by checking against other criterion. members of clandestine organizations should feel the pressure to operate secretly and avoid detection. and online administrators should allocate resources to detect and actions to destabilize these organizations. Predictive-external validity tests whether a measure relates to other measures as expected. These remain open empirical questions for future research. Face validity captures whether the measure reflects the phenomenon of interest. there appears to be face validity on the mapping online clandestine activities to offline clandestine activities as there are motivations and incentives to organize in both. the general population should see these covert organizational members as deviants that authorities should control. it is necessary to establish that there are individuals who both act in a covert manner and interact with each other to accomplish shared goals.impossible to do in the real world. In both contexts. It is crucially important to establish three constituent components of mapping: face validity.

Just as these game economies exhibit macroeconomic characteristics observed in real-world economies (E Castronova et al. 2008). and increase their social standing (E Castronova. Clearly. This. in turn. and abilities for their characters. Heeks.the real world is complicated by the discussion above that little is known about the particular dynamics of many clandestine operations – there is nothing to compare it against. It is essential to identify a particular type of practice in a virtual world that has a ready and proximate mapping to offline virtual world practices. there are very diverse forms of covert organizations as well as substantial variation in the code supporting the social architecture of virtual worlds. we review the background on the practice in the next section and describe some parallels it offers to support the mapping hypothesis. in-game economies are designed with carefully-calibrated activities and products that serve as sinks to remove money from circulation. Gold farming has been constructed as a deviant activity by both the game developers as well as the player communities for a variety of reasons. Gold buyers purchase this virtual capital to obtain more powerful weapons. 2005). confront more interesting and challenging enemies. Gold farming as a model type of online deviance Massively-multiplayer online games (MMOGs) such as World of Warcraft. EverQuest II. Because gold farmers and 17 . armor.. and Lord of the Rings Online are examples of fantasy-based game worlds in which millions of players interact in a persistent virtual environment. a practice involving accumulating and distributing virtual currency. virtual worlds also contain black markets for acquiring goods and skills. “Gold farming” and “real money trading” refer to practices that involve the sale of virtual in-game resources for real-world money via exchanges outside of the game itself. accelerates players to higher levels and allows them to explore larger parts of the game world. The name stems from a variety of repetitive routines (“farming”) which are employed to accumulate virtual wealth (“gold”) which is sold to other players who lack the time or desire to accumulate their own in-game capital (J. 2006. 2009). Dibbell. First. bears a strong resemblance to the task demands of drug trafficking or money laundering. we suggest that gold farming.

G. these organizations’ distribution channels should be characterized by high levels of brokerage/structural holes (alternatively. and engaging in the outright theft of account and financial information from their customers (Heeks. and other perverse incentives for market agents. 2008. Third. mules. 2006. 2007).buyers inject currency into the economy. dealers. Like other types of criminal organizations and dark networks. 2003. game developers actively and publicly ban accounts engaged in gold farming (Tyren. farmers’ activities often overtly affect other players’ experiences by excluding them from shared game environments. taxation. distillers. 2003). distributors. and torts) of sanctioning a multinational industry estimated to generate between $100 million and $1 billion in revenue annually (Edward Castronova. the game developers are risk-averse to the legal implications (such as property rights. For these reasons. Lehtiniemi. Drug trafficking chains are characterized by non-hierarchical. farming upsets the meritocratic and fantasy-based nature of the game. Because exchanges from individual to individual are highly dangerous are dangerous to the rest of the organization as the break of any one link can allow authorities to back-track and roll up the rest of the organization. or regulation (J Dibbell. precedent. 2007) while lacking legal jurisdiction. they create inflationary pressure. F. Finally. G. Second. and users (Brzezinski. Lastowka & Hunter. the pressure exerted by game developers to identify and disrupt gold farmers requires to balance tendencies towards decentralized networks which provide the greatest security and resilience against the high efficiency and trust of centralized networks (Morselli. Raab & Milward. Both types of activity involve accumulation and distribution of commodities with large profit margins in exchange for cash. 2006). non-vertically integrated supply chains of producers. et al. 2002. 2006). Because “gold farming” networks potentially operate under similar constraints as other covert organizations. 2007). some players may cease to play if other players can buy rather than earn accomplishments (Consalvo. 2006). Lastowka. a lack of closure) and large distances to insulate core members 18 . unintended arbitrage opportunities. the structure and dynamics of these organizations can be used to characterize and understand deviant and criminal activity such as drug trafficking or money laundering. employing anti-social computer scripts (“bots”) to automate the farming process..

the mapping potentially crumbles. However. covert organizations may have heuristics about which behavioral patterns authorities are known to select on and have structured their operation such that these actors are more likely to be identified and banned while they can continue to rely on peripheral actors who remain undetected via other types of relationships or behavioral attributes. Although organizations operate in a competitive marketplace. the demands of balancing secrecy and efficiency require the actors forgo exclusivity and allows individuals contract with individuals at various other levels. We might also expect that gold farmers and drug traffickers could potentially rely upon unaffiliated legitimate actors who tacitly or unknowingly abet the operation (one might imagine a fellow dungeon raid member could be as unsuspecting of his or her partner as one’s spouse being a dealer). or gender. we might expect that gold farmers and drug traffickers are both characterized by large. However. class. Moreover. Furthermore. gold 19 . While traditional criminal organizations rely on trust to recruit co-offenders and engage in their tasks (von Lampe & Johansen. These legitimate and peripheral actors may support covert organizations becoming larger and more efficient than if they remained perfectly insular. gold farmers can effectively create new or replacement co-conspirators at low costs by registering new accounts. interactions and transactions among gold farmers are online manifestations of situated offline organizations that need not manifest itself with similarly homophilous selection biases along demographic categories of character race. Thus. Thus. where narcotics organizations rely on ethnically homophilous distribution channels to ensure kinship-based trust as well as violence to enforce compliance. the most central actors in a gold farming or drug trafficking network are actually strategically positioned to increase their likelihood of detection relative to the true leaders who seek to avoid detection. 2003). disputes cannot be resolved by appealing to the authorities but must be negotiated and enforced in other ways.from infiltration from the outside. In this context. as was the case with Baker & Faulkner’s analysis of a price fixing conspiracy. it may be the case that homophily operates along other attributes such as play style/frequency or character level/age. because the organization is operating extra-judicially. the mapping laid out here is imperfect. As such. but weakly connected giant components.

G Robins. Just as computing means. The consequences of being identified and banned are largely pecuniary rather than the long-term or even mortal risks in the real world. In reality. this is an unreasonable assumption as the presence of a friendship tie between two actors in a social network may in fact be strongly influenced by a variety of exogenous factors such as whether the pair of actors have a friend in common. share the same race or gender. and the whole network. evaluate the differences. do not need to recruit or convert existing players. and pair-wise significance tests do not themselves provide meaningful insight into the relationship between gender and income (for example). 20 . density. Metrics such as centrality. Furthermore. subgroups. these data violate the fundamental assumptions of traditional statistical approaches such as linear or logistic regression. and equivalence fulfill valuable roles for describing the properties of nodes. 2009). engage in processes of ideological identification or control over existing members. distributions. because network data is fundamentally Methods Statistical modeling of social networks Techniques for measuring local and global properties of a social network have existed for decades. simply calculating the aforementioned descriptive network metrics does not permit inferences about the underlying social and behavioral processes that govern how social networks are created or maintained. or threaten violence against defectors to accomplish their mission (Milward & Raab. clustering. and the number of other friends they have. Nevertheless. and thus confirm whether particular structural processes influenced the configuration of the network more than by random chance. unlike other criminals. these approaches are only descriptive in nature. cliques. A statistical approach to network analysis uses generative approaches to simulate similar network structures. diameter. A regression model of whether or not a tie exists between a pair of actors would assume the presence of a tie is independent from the occurrence of other ties in the network and probability for each tie being created is identically distributed. 2006.

or other structures in the network may emerge as a result of distinct processes occurring in parallel. Garry Robins. 1996. As such. Wasserman. An accurate and parsimonious model of the processes which govern the structure of a network can be a highly efficient representation of the network. Kalish. the models are stochastic and this “noise” allows us to understand the distribution of possible outcomes for a model and the associated uncertainty of its estimates. Again analogous to multivariate regression. & Lusher. Faust. 1. analogous to multivariate regression. 1999. Following Robins. Pattison. a statistical modeling approach allows for hypothesis testing about multiple social processes that may lead to the over. 1999. 1981. Frank. Pattison. The presence of ties. Thus. This is substantively important because 21 . simply counting frequencies of these structures potentially confounds a variety of processes which could have lead to their emergence. & Wasserman. a class of statistical models called P* or exponential random graph models (ERGM) have been developed which explicitly incorporate dependence assumptions for network analysis (Anderson. 1999. Kalish. Frank & Strauss. 4. there are at least five distinct motivations for developing statistical models of network data. 1986. Wasserman & Pattison. a statistical model of networks should include controls which allow the analyst to evaluate the relative contribution of each main effect to the network’s structure as well as the possibility that these independent parameter variables also interact with each other to generate particular network configurations.or underrepresentation of structural configurations of theoretical interest. Pattison. 1994. 2005). & Crouch. 2. Wasserman & Robins. Robins. Over the past 25 years. Rather than trying to make perfect deterministic predictions. Statistical models of networks require the specification of statistical parameters and the estimates for these parameters indicate whether or not the structure occurs more or less often than would be observed by chance. Pattison & Wasserman. clusters. Social behavior is a highly complex system which implies that even small changes can dramatically change how the system evolves and stabilizes. S. & Lusher (2007). Wasserman & K. G. 2007. 3.Developing a statistical model of social networks thus requires a framework which accounts for the intrinsic interdependencies in network data.

Fourth. A statistical model thus assigns a probability to all possible networks such that networks exhibiting properties of interest are more likely to 22 .e. positive or negative affect) of a tie.e. If there is a reason to suspect that reciprocation should more often in a given part of the network (women are more likely to reciprocate than men. We can evaluate the extent to which a particular process contributed to a network’s structure by comparing the observed network to other networks generated by the hypothesized process. complex complete representations.accurate statistical models permit comparative network analysis by assessing the similarities or differences between the models themselves rather than either single-level descriptive statistics or large. one might expect that processes of reciprocity would occur over and above the chance that reciprocated ties occur at random. rather than the value (i. a model is composed of parameters which correspond to the structural features of interest and apply homogenously across the network. each ties in the network is regarded as a random variable. First. Exponential Random Graph Models P*/ERG models make several assumptions. 5. the model assumes a self-organizing and stochastic process of generating ties based on the surrounding context (what ties already exist). then this process needs to be modeled with yet another parameter (such as a gender attribute effect). Third. A model to test this process would then consist of two parameters: a parameter corresponding to the tendency for links to occur at random and a parameter corresponding to the additional tendency for links to be reciprocated. the models only predict the presence or absence of ties. The observed network is only one possible realization of links among a given set of actors and the goal is propose a model for the stochastic process which generated this network. the number of nodes is fixed: models are compared against networks of the same size and do not account for the introduction or removal of nodes. for example) rather than occurring uniformly across the network. Because global network structure emerges from local processes.. strength or frequency) or valence (i.. Taking a friendship network as an example. Second. statistical models of networks should rely upon parameters that are specified at a local level. Fifth.

then reciprocation occurs more often than one would expect by chance. Thus. the sample space permitted by networks’ relational data is enormous because the addition or removal of a single link between any pair of actors necessarily results in a different network. However. and a huge number of permutations in between. if high levels of reciprocation are found in the observed network. a distribution of random graphs is simulated based on a starting set of parameter values. Because evaluating and assigning these probabilities to each distinct configuration of the network obviously becomes computationally intractable for graphs of even a seemingly trivial size like n=17. The number of permutations for a network is a function of the number of nodes (n) it contains. The estimation of parameters relies upon a maximum likelihood criterion to choose parameter values such that only the parameter which maximizes the structural tendency found in the observed network is selected for the model. then reciprocation occurs less often than chance. In the friendship network used as a basis for comparison. If the parameter for reciprocity is equal to zero. the completely connected graph in which a connection is present between every pair of nodes. If the parameter is negative. there are possible permutations for the network while a directed graph has possible permutations. these values are refined by comparing the distribution of the simulated graphs against the observed graph. The whole sample space of a network includes the completely empty graph in which no connections are present between any nodes. and the process 23 . These other networks may have substantively similar local and global metrics or very different structural properties. the model should assign higher probabilities to the simulated graphs that also have high levels of reciprocation and use these as the basis for comparison. If this parameter is positive. a directed network of just 17 nodes has 2272 potential configurations which means there are more unique configurations for a 17-node network (2272 ≈ 7. then reciprocation occurs purely by chance.58x1081) than there are atoms in the universe (~1x1080). statistical models relying upon sampling and maximum-likelihood estimation are employed instead to generate parameter coefficients for p*/ERG models. For a directed graph. Using a Markov chain Monte Carlo maximum likelihood estimation (MCMCMLE) approach.

and have statistically problematic estimates and standard errors given the loss of degrees-of-freedom. a model may fail to converge because it maximizes on a set of parameter values without sufficiently exploring the sample space for other maxima or because it lacks parameters which account for higher-order non-Markov processes in large networks (S. Wang. Goodreau. As a consequence.) against the observed network is a necessary confirmatory step for evaluating the validity of an estimated model. Alternatively for large networks.e. 2006). Pattison. M. Snijders. iterated until the parameter estimates stabilize (Handcock. These data include both cross-sectional attribute data about 24 . The modeling approach and methods used in this analysis are outlined below. Hunter. & Pattison. & Handcock. a proposed model may be insufficiently specified such that the observed network is unlikely to occur even under the maximum likelihood coefficients. Goodreau. overspecification of models with too many parameters results in networks which are substantively difficult to interpret. Gold farmer networks in EverQuest II Anonymized database dumps were collected from Sony Online Entertainment’s massivelymultiplayer online game EverQuest II. For example. stabilization and convergence of parameters is not guaranteed. and evaluation of model fit. Hunter. Handcock. 2007). embeddedness. & Handcock. estimation of models can also result in degeneracy when a model implies that every possible graph has a very low probability or the completely connected or unconnected graphs have a very high probability (Handcock. Similarly. Snijders. degree distribution. Garry Robins.or underestimate the amount of reciprocation or transitivity which is actually observed in the network. Using a goodness-of-fit approach to generate simulated networks and compare the resulting distribution of their network metrics (i. Butts. 2008). Snijders. diameter. the proposed model may vastly over. etc. 2003. On one hand. Goodreau. & Morris. 2002.. tremendously expensive to compute. 2008. iteration. Robins. the estimation of networks using P*/exponential random graph model approaches is as much an art as it is a science as it requires the inclusion of theoretically well-motivated parameters as well as careful model construction. On the other hand. 2007.

and other reasons was parsed to extract rationales related to “plat”. “coin”. Srivastava. “spam”. Farmers are the characters whose accounts have been identified as gold farmers by the administrators at any point in time and the trade relationships among them. Williams. the nonaffiliates are the characters that have never interacted with identified gold farmers. we identify three distinct types of character classes. & Contractor. Affiliates are the farmers as well as any characters that have ever transacted with a character whose account was later banned as a gold farmer. Previous research using a machine learning approach to classify gold farmers based upon demographic and behavioral variables generated a large number of false positives.individual characters as well as longitudinal data cataloging character-to-character transactions. All three networks are directed. Keegan. non-payment. Furthermore. directed edge list of all transactions between characters on that server between for 36 weeks between January and September 2006. The list of banned gold farmers was intersected with the trade activity database based on common account identification numbers to identify counterparty characters in which at least either the transaction sender or receiver had been banned by game administrators using gold farming-related rationales. Because activity within the game is spread amongst several unique servers running instances of the game in parallel. Given the presence of identified gold farmers. and non-gold farmers. Finally. Just as a list of judgments from criminal proceedings is not an exhaustive account of all criminal activity. which means that a tie from actor A to actor B is distinct from a tie from actor B to actor A. representative player versus environment (PvE) server was condensed to generate a weighted. 2009). we specify four specific subclasses of network relationships to capture unique behavioral patterns. the cancellation table is not a complete list of all gold farmers.000 nodes. and “launder”. A separate table recording instances of accounts banned by the developer for abuse. “farm”. unidentified gold farmers. The first is market exchange in which the transaction involved one character sending only currency and the other party 25 . which may be evidence of unidentified gold farmers in the data (Ahmad. Because P*/ERG models become computationally intractable to run as the network size grows above approximately 1. a record of player-to-player exchanges on a single. we employ a subset of the transaction data for analysis. “bot”. “gold”.

323 connections. This network has 1. Modeling approach Table X describes the relative fit as measured by maximum likelihood estimation as well as the Akaike information criterion. The model fits are reported in Table 1.239 connections. We use these as a heuristic to evaluate model fit. 26 .Figure 1 about here --- We also use network data on a drug trafficking ring obtained from a Canadian law enforcement taskforce called Project Caviar to contextualize our findings for the gold farming network (Morselli.138 characters and 1. The fourth and final is gifts. Subsequent models are built upon this skeleton and their fit are compared against the baseline. basic parameter like the number of edges in the network) can be assumed to better predict the observed network. in which the transaction involved the exchange of items rather than currency. --. The second is bartering. small changes in fit indicate a relatively poor model while large changes in fit suggest a better model.022 characters and 768 connections.318 connections. Wasserman.461 characters and 9. 2007). in which one character gave another an item but nothing was reciprocated in that transaction. Large differences in fit between a baseline model and a model of interest may be evidence that an effect is present in the latter (Contractor. E=295). Values closer to 0 indicate superior fit.sending only an item. Although orders of magnitude smaller in network size (N=110. Morselli & Petit. The change in the level of fit against a baseline (such as a model containing only a single. 2008. 2006). This network has 1. a model with a simple set of parameters is estimated to use as a baseline.519 characters and 1. First. in which one character gave the other party currency but nothing was reciprocated in that transaction. This network is the largest with 5. et al. The third is donations. This network has 1. the Caviar data is also directed longitudinal data of criminals and co-offenders which makes it a direct real-world analogue against which we can compare network statistics and dynamics.

  Cyclicality: the tendency for characters to engage in indirect exchange or generalized reciprocity. we see that the in-game gifting network exhibits the same pattern of valence and similar types of significance as 27 . Mixed 2-star: the tendency for characters to be brokers between other characters. In edge: the tendency for characters to be the recipients of transactions.Figure 2 about here --- Results The eight parameters estimated for each of the five networks had varying levels of valence and significance across the networks. donation. Reciprocity: the tendency for characters to initiate transactions with characters they previously received transactions from. we are primarily interested in identifying which pattern of behavior in the four types of gold farming networks generate networks that should exhibit similar structural tendencies as the offline CAVIAR drug trafficking network.Table 1 about here --- The full model incorporating all of the parameters of interest are the best fitting models across the five networks. and gifting). By visual inspection alone.       Out edge: the tendency for characters to initiate transactions. This analysis is primarily motivated by Faust and Skvoretz (2002) definition that “networks are similarly structured to the extent that they exhibit the same structural tendencies. In 2-star: the tendency for characters to be the recipient of many transactions.--. Transitivity: the tendency for characters to be embedded within hierarchical relationships --.” As such. bartering. to the same degree. Out 2-star: the tendency for characters to initiate many transactions. These parameters are visualized in Figure 2. We review the substantive interpretation of each of these parameters below wherein transactions refer to the particular relationship (market exchange.

it suggests that characters in the game trade network as well as drug traffickers avoid engaging in indirect transactions or generalized reciprocity while this structural tendency appears to strongly influence the evolution of the network in the other relationship types. However. the positive estimates for the in-two-star and out-two-star parameters suggest that. This is an unsurprising result for the simple fact that being a broker is not only risky but it is also an expensive position to maintain. First of all. links are relatively rare in these networks. However. Second. there are substantially more instances of characters engaging in multiple trade incoming and outgoing gifting transactions than one would expect by chance alone. the negative mixed-two-star parameter implies that actors engaged in brokering transactions are relatively rare. but its significant absence for the type of transaction it ostensibly best captures whilst matching the same behavior observed for drug trafficking 28 . This suggests latent specialization or hierarchy among the actors in each as they preferentially form ties with third parties based on the pattern of ties observed with another alter. Reciprocity also plays a similarly strong effect in both networks. gifting is the type of transaction one might naively expect to see indirect or generalized reciprocity most strongly occurring. the negative parameters for cyclicality in both the gifting and CAVIAR networks where strong positive parameter estimates are observed in the other relationships types is doubly notable. The negative estimates for in-edge and out edge suggest that links occur much less often than is to be expected by random chance. net of the effect that ties are relatively rare in the network to begin with. This comports well with both theoretical and intuitive notions that people choose their trade partners selectively rather than randomly. First. We also find that transitivity plays similarly strong influences in both the gifting and CAVIAR network.the CAVIAR network. We will elaborate on these in the context of the gifting network and then highlight the differences in the other relationship classes from this seemingly ideal type below. the large estimate suggests that the existence of a tie between characters almost always results in the other character reciprocating. Across the four in-game trade relationship types as well as the CAVIAR trafficking network. This suggests that the gifting in online transactions exhibit similar structural tendencies as we observe for an offline drug trafficking operation.

P*/ERG models are immensely computationally intensive above networks of approximately 1. 29 .000 actors (S. the movement of items through the network as gifts rather than bartered or market exchanges appears to operate under similar constraints and potentially the same motivations as an offline drug trafficking network. Although the evidence for mapping online behaviors. The framework laid out here offers the potential to develop comparative statistical models of how individual level attributes and structural tendencies influence the interaction patterns on covert networks in both online and offline contexts. the tiny amount of work done to date has tended to emphasize analyses that failed to account for network processes occurring at other levels of analysis. the analogues appear valid and worthy of further analysis. Despite the surfeit of data available from virtual worlds databases which we have extolled repeatedly throughout this paper. Approaches to graph sampling are imperfect and ultimately undermine the original motivation to understand large-scale behavior without resorting to estimates. 2007). this result suggests that the structure and dynamics of gifting transactions may be the best place to start. Moreover. In other words. if one wished to characterize offline drug trafficking behavior by using data from MMOGs. Thus.suggests that the gifting transaction is not really gifting at all. Goodreau. 2009). in some task contexts such as gold farming and drug trafficking. and embeddedness. and surveys. Discussion Recent advances in both statistical techniques for performing multilevel analyses of social networks as well as the growth of virtual worlds as sites for immersive social interaction have opened up new avenues of inquiry for organizational and sociological research. sampling. motivations. The processes that undergird assembly and maintenance of covert organizations have eluded scholarly attention for decades by virtue of the difficulty of collecting both rich and complete data on actors’ attributes. interactions. and affordances to offline contexts is mixed. much less the tens or hundreds of thousands of actors in many games which would demand peta-scale level computing power (Poole.

There are substantial ethical implications that accompany theorizing about how to leverage large aggregations of unobtrustive data with indistinct consent and privacy (Lazer, et al., 2009) as well as developing theories and methods to identify and destroy organizations (Canter, 2000). It is certainly the responsibility of researchers to be reflexive about the normative judgments made by political and institutional actors about other organizations. Grounded ethnographic work is likewise needed to more fully explain actors’ motivations and attitudes as well as the contexts in which they perform these activities that may undermine prevailing narratives about these being deviant entities to be controlled or destabilized.

Acknowledgements This research was supported by the National Science Foundation via award number IIS-0729505, the Army Research Institute via award number W91WAW-08-C-0106, and the Air Force Research Laboratory by contract number FA8650-10-C-7010. The anonymized data used for this research was provided by Sony Online Entertainment. We thank members of the Virtual Worlds Observatory team for their support and feedback.







Market exchange


A Donation


A Gifting
Figure 1: Four relationship subclasses


Parameters Model 1 Model 2 Model 3 Out edge + In edge + Out 2 Star + In 2 Star Model 1 + Mixed 2 Star + Reciprocity Model 2 + Transitivity + Cyclicality (Study 1)

Barter -6658.91 13323 -816.47 1645.0 -799.79 1615.6

Market -6278.016 12526 -6188.07 12388 -6178.40 12373

Donate -11129.53 22267 -9278.22 18568 -8798.86 17614

Gift -81928.57 163865 -62132.38 124277 -59382.71 118781

CAVIAR -990.82 1989.7 -714.24 1440.5 -677.01 1370.6

Table 1: Model fitness for five networks. Maximum likelihood estimate (MLE) on top, Akaike information criteria (AIC) on bottom.


istar1 istar2 ostar1 ostar2 m2star mutual ctriple ttriple

Est. -7.357 0.913 0.853 -0.324 -2.159 12.681 2.699 -0.094

Barter SE 2.52E-01 1.41E-01 0.00E+00 1.72E-01 2.88E-02 1.09E-01 1.07E+01 9.43E-02

P *** *** *** . *** ***

Est. -7.075 0.126 -0.039 0.181 -0.314 3.524 2.843 1.228

Market SE 4.89E-02 4.58E-02 4.89E-02 4.01E-02 4.76E-02 3.93E-01 1.12E+00 6.84E-01

P *** ** *** *** *** * .

Donations Est. SE -6.786 4.57E-02 0.090 4.57E-02 -0.122 4.57E-02 -0.461 6.91E-02 -0.480 4.46E-02 6.408 6.32E-01 0.147 8.56E-01 3.004 2.71E-01

P *** * ** *** *** *** ***

Est. -8.811 0.135 -0.040 0.074 -0.035 7.195 -0.642 1.359

Gifting SE 1.83E-02 3.77E-04 1.83E-02 1.30E-02 2.12E-03 6.06E-02 2.07E-02 1.25E-02

P *** *** * *** *** *** *** ***

Est. -5.559 0.044 -0.002 0.099 -0.012 4.163 -0.533 0.434

Caviar SE 1.35E-01 2.86E-02 0.00E+00 2.07E-05 4.40E-05 1.31E-03 6.98E-05 4.77E-05

P *** *** *** *** *** *** ***


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Toward new business models? Giuditta de Prato (IPTS). Jean Paul Simon (IPTS) Abstract A description of the structure of the global video market together with an assessment of its economic weight is proposed first. the likeliness that disruptive technologies will emerge in the online and mobile games market is investigated. followed by a review of its value chain. in a scenario of rapidly increasing convergence of digital technologies and integration of media services.1 The Game Behind the Video Game Trends in the video games software industry. virtual items. Claudio Feijoo (Universidad Politecnica de Madrid). assessment of the value added. in order to highlight the evolution of the relationships between the different players of the value chain. value chain analysis. 1 . Then. media and content industry new business models. Key words: digital economy.

The research is based on our syntheses of the current state of the knowledge.1 The size of the global video game market Figure 1 shows estimates of the total size of the global video game market up until 2013. The global video games market In less than 40 Figure 1: Global video games market. In the UK. said that the global games industry now makes more money than the box office" 3 Ofcom Communications Market Report. products converting into (on-line) services. The investigated research question is how and to what extent new channels of distribution such as on line games and mobile transformed the structure of the industry with connectivity becoming permanent. August 2010.. Assessing the future competitiveness of the EU video games software industry” was released in November 2010. 2007).pdf 2 .3 and concentrates on one aspect of this research. on internal and external expertise. This paper is organised as follows. Section 1 introduces the available data on the economic dimension of the market. Section 2 investigates the roles of different actors in the value chains and business models on which revenue schemes are based. literature reviews and desk research. This report reflects the findings of our study on the video games industry. Wednesday 24 March 2010: " Rupert Clark. million US$. OECD (2005) mentioned that US games revenue in 2001 had already surpassed that of film box office tickets. It also emphasized the less noted role of middleware. section 3 examines the impact on on-line and mobile distribution of video games. with a focus on two specific activities: on-line and mobile videogames. and the progressive integration of media services and technologies.ofcom.2 Introduction This paper is based on a comprehensive survey of the video games software industry with a focus on the EU comptetitiveness1. 1. software games developed from scratch into an industry producing billions of profits and today. Finally. the global video game market is expected to grow from less than 30 billion to over US$ 70 billion. In the period 2004 to 2013. it stresses the essential role of hardware owners in the industry. BBC News. an analyst from consulting firm Deloitte. 2 Cinema market: theatres and DVD. as well as several validation workshops with industry participants and experts. PWC 2009 1 The report “Born digital/ Grown digital. the video game market outgrew the cinema market in 20092 and playing games online is now as popular as downloading music and video. its revenues and investments give the video games industry a relevant position among other mainstream media industries (Deuze et al. Available at: http://stakeholders.

the size of the global market for video games in 2009 was estimated at €46 billion. newspaper publishing. 1. internet advertising. recorded music. It is estimated that in 2009 these regions accounted for over one half. of the video games market. In spite of being still a rather young industry. an increase of 28% against 2006 (ESA. video games. video games already managed to become a significant and growing share of the media and content industries.3 Other sources report similar values of the size of the video games market. According to IDATE (2008). 2008). TV advertising. consumer magazine publishing. book publishing. radio. 4 5 Europe is the core market of this region. in 2009. The former is expected to grow by almost 70% to over US$ 70 billion by 2013. the video games market accounted for around 3% of the media and entertainment market. Spain and UK. Media & Entertainment includes: internet access fees.5 billion.5 billion. whereas the latter is expected to grow by only 17%. accounted for nearly 30% of the global video games market. the US and Japan are the main markets for video games. 3 . Italy. The growth dynamics forecasted for the video games sector are exceptional. and business-to-business publishing. the recorded music and filmed entertainment represented 2% and 6% of the global media and entertainment market respectively.2 The relative importance of the video game market within the media and entertainment market Table 1 presents the value of the video games market against the background of the entire media and entertainment market. the global value of video games sold worldwide was US$ 43. In comparison. or €26 billion. In 2009. in 2007. when compared with the entire market for media and entertainment products and services. Germany. Developed regions such as Europe. the combined computer games and video games sales in 2007 accounted for US$9. TV fees. filmed entertainment.5 According to these figures. The Europe-Middle East-Africa (EMEA)4 region is the biggest market for video games: France. For the US market alone.

Business-to-business publishing 1. Newspaper publishing. by segment. TV fees.354. by 2012 the value of console hardware will drop to around €6. The value of home consoles was around €10.258 million.408. million US$. Book publishing. 2007-2013.173 * Media & Entertainment includes: internet access fees.513 Total Media & Entertainment* 1.4 Table 1: Global video games and global media and entertainment market. PWC 2009 2007 2008 2009 2010 2011 2012 2013 Total Video Games 43.613.3 The value of hardware and software in video games Figure 2 reports the value of software and hardware for consoles and handheld video games and the value of software for the remaining product segments. whereas the value of software is expected to increase to over €16. Recorded music.068 1.383 61.460 51. internet advertising.e.291 million.026 73.559 million. TV advertising.390 55. Filmed entertainment. 2008 – 2012. in million euro.359.506.409 1. IDATE 2008 4 . Radio.941 1.788 1.495 1.373. Consumer magazine publishing. i. Video games.587 million.411.604 67. whereas the value of software dedicated to this platform exceeded €12. It is estimated that this gap will increase even further and. PC and wireless.089 58.950 1. Figure 2: Value of hardware and software in video games.


2. The value chain in the video games industry 2.1 The main platforms 2.1.1 PC games platforms When taking into account the video games industry as a whole, the PC-based market is smaller than the mainstream one, represented by that of consoles. Nevertheless, it holds some peculiar characteristics, mostly related to the fact that it is on this platform that imaginative programming and risk-taking perform best (Williams, 2002). Figures on the dimension of the PC games market in terms of units of games sold are necessarily more difficult to collect, due to the much bigger number of producers, to the loose linkage with the hardware architecture, and to the much more fragmented market in general. A list of PC game titles which sold at least 1 million copies comprises 96 PC games, without taking into account different sub-releases of the same game. The first three of them, namely The Sims, The Sims 2, and StarCraft, shipped respectively 16 million units, 13 million units, and 11 million units. It can be easily understood that products and economics differ from those of consoles and handhelds segments: in the case of the PC, a common standard is available for the architecture, which can also host different peripherals and powerful additional devices. Microsoft still holds the biggest share of operating systems installations. This implies that third party hardware manufacturers on one side, and independent developers on the other, have a well known and rather stable environment in which to operate. The PC business context reflects low entry barriers which are free from proprietary restriction (Williams 2002) and manufacturers’ licensing fees, and benefit from lower development costs (no need for specific –and highly expensive- software development kits, very low costs of duplication and deployment). These conditions allowed for the exponential increase of game titles: Williams (2002) reports that, in 1998, 4,704 PC titles were available, versus only 44 for the Nintendo 64 (handheld) and 399 for the PlayStation console (NPD Group data). 2.1.2 Console and handheld games platforms Consoles and handheld game platforms are currently the best known set of products in the video games industry, with console products such as the Playstation (Sony), the Xbox (Microsoft), the Wii (Nintendo) and handheld devices such as the Nintendo Ds and PlayStationPortable. This market is dominated by the almost monopolist Nintendo, by means of the long lasting sales success of the GameBoy. By the end of March 2009, 878 million units of GameBoy and its variations had been sold. For the current generation Nintendo DS handheld devices, 596 million were sold. The number of units sold for the recent Nintendo DS are 101.78 million (Nintendo, 2009). Supply has always been highly concentrated in a very small number of producers. As regards consoles, the situation is similar.The total number of home consoles sold from 1977 to date is estimated at more than 664 million units. Even though the number of actors is a higher than that of handheld manufacturers, the supply is still very concentrated. 5

6 In terms of structure of the market and of behaviour of the supply actors, console and handheld systems show pretty similar situations and dominant players. Technological achievements, gaming diffusion across ages and competitive pressure have changed the market. However, high entry barriers still limit the competition in the handheld market to two big players: Nintendo and Sony. In the console market, the main actors are basically three: Microsoft joins the two other giants of handheld devices games. The oligopolistic position of companies in handheld and console segments is evident from the above tables and figures, and is frequently reported in the literature. The reasons can be identified as the high market entry costs related to technology, distribution and the investment needed to develop prototypes. This role of the console is all the more important as the console is the platform managing the network effect in this two-sided market (connecting the two groups of users: developers and players) (Bounie, D., Bourreau, M., 2008). Besides offering a choice of successful games, key aspects to maintain the leadership seem to have been the capacity to reduce costs, successful design, availability of best developers and publishers, high sales capacity, etc. Applications for consoles and handhelds used to share a characteristic which differentiated them from PC applications: it used not to be possible to retroactively fix bugs in software applications for console and handheld devices by means of ‘patches’, while this was common in the case of PC applications. This implied that imperfect products needed to be returned. The diffusion of downloadable games has partly solved this limitation, which in the past represented the source of high risks and costs to producers. The most relevant fact in both markets is related to the proprietary characteristics of the devices: each manufacturer defines the technical features and characteristics of its device and the technologies adopted, and, due to the quasi monopoly it holds, is able to impose its solution. The manufacturers control the decision about allowing external developers ("third parties") to develop applications for their devices and hence a common standard is lacking. This, in turn, makes platform interoperability and portability of applications impossible. 2.1.3Mobile platforms The demand for mobile-based video games is relatively new and rapidly evolving, being represented by users of mobile phones and, most of all in recent years, of smartphones. Games started to appear on mobile handsets (mobile phones) about a decade ago (Nokia started installing Snake in 1997), and did not at first raise much interest. In recent years, the rise in the number of developers has been much faster, following the creation of specific mobile game subsidiaries by traditional video game publishers. The investment by telecoms operators has intensified as well, and has differentiated in a number of business activities (publishing, aggregation, distribution, platforms, licensing, etc.). Telecom operators are maintaining the privileged position of being favourite gatekeepers for provision of services to customers, and are preserving their revenues by updating business models towards mobile business. To sum it up, to invest in the sector, high financial capacity is required. Growth of this sector is conditioned by tight technical constraints concerning latency, speed and handset capacity in terms of storage, computation and display.


7 2.2 The value chain in the video games industry 2.2.1 The main actors of the value chain A video game developer is a company that invents and develops video games, and in particular develops the necessary software to run the video game. A video game developer may specialize in a specific video game console, or may develop for a variety of platforms including the PC or the mobile platforms.6 It can also specialise in certain types of games. Developers are usually studios, with multidisciplinary teams. Such companies are small and numerous. In Europe, a large population of these highly creative small development studios is found mainly in the UK, France, Germany, the Nordic countries and to a lesser extent in Spain. Taking into account the specific relation of developers to publishers (see below), and the existence of independent7 developer companies, some developers publish their own games and therefore can be regarded as publishers and developers. This is, for example, the case for the majority of the Norwegian developers.8

A video games publisher is a company that publishes video games that it either develops internally or has ordered from a video games developer. The publisher is responsible for licensing the rights and the concept on which the game is grounded, for handling the marketing and often even the distribution. While the gatekeeper role is played by several hardware platform owners, publishers rarely specialise in only one platform. They opt for platform diversification, but this strategy has its own limits as often titles released for one platform are not compatible with another. Video games distributors usually market the games, handle the packaging and transport, organise the infrastructure for distribution, and sometimes even provide user support. Together with the retailers, they cover the logistics of the chain. Though they are not the publishers themselves, they are usually specialised distributers for video games (and often other digital products). In particular, as large publishers are primarily interested in promoting their own games, independent game companies find small specialised distributors for their titles. There are also large international collaboration agreements such as those for Sony and Nintendo, in which the games and hardware are handled respectively by Nordisk Film (DK) and Bergsala (SW) in Scandinavian countries. Retailers are usually electronic chains, multimedia shops and specialist shops but nowadays video games can be easily found in ordinary distribution stores such as FNAC, Wal-Mart, the Metro group or even Carrefour.

2.2.2 The traditional value chain Figure 3 shows a simplified and traditional view of the value chain for video games. It looks like a classical and linear retail distribution value chain. The product, from its creation to its

In this case, the availability of platform-independent middleware is a key factor in reducing development costs and allowing multi-platform development. Please refer to Chapter 5 for details on layers of software and middleware in particular. 7 Independent companies aim to maintain and grow their business without having to develop games on demand from publishers. 8 See in: Norwegian Ministry of Culture and Church Affairs, 2008. Video games. Report 14 (2007-2008) to the Storting (Norwegian parliament.).


J. For example. and. The core game engine allows the higher level application (the part of the game containing the content) to more easily interact with the lower layers. usually small studios. This presentation excludes the hardware production part. The game engine is meant to be in charge of heavy and 9 At 8. the retailer will keep US$18. within a strongly oligopolistic market. drivers and operating system. Microsoft) develop. the wholesaler US$10. This dominant position creates tensions with the complementary need to develop an active community of developers. different actors with different objectives and competences are occupying the various positions in the value chain. and shed light on the potential transformations that this value chain might incur in the case of disruptive trends. and production cost will require another US$10. and Solinski B. (2010) are offering the following break-up of a 55 euros retail price: game designer: 14%. 2. With further digitalisation and standardisation. According to Wi. gathering multidisciplinary teams around the creation of the games. which leaves a profit of US$20 for the developer. Figure 3 Video games traditional value chain Obviously. + "diffuseur" – e. in the case of an off-line game where the retail price is US$58. retail outlet 35%. printer (16%). the balance of power between these actors could be affected. editor 29%.3 A core technology: the middleware Video games are built upon a (software) game engine.8 consumption goes through a series of necessary intermediaries to allow for its commercialisation. the cost structure a book is split as follows: author (11%). strategies reinforced by the proprietary characteristics of the operating systems and by the vertical integration of the industry. each of the intermediaries exercising its specific role and aiming to optimise its profit and position. VAT (5. 9 In the traditional value chain. publisher (14%). partly because the production of video games and all digitalised creative content goods is characterised by high fixed costs and low marginal costs. console manufacturer 22%. the platform hardware owners (Sony. reserved domain of the console manufacturers dealt with in the previous section.g. sale force. as a consequence.H (2009). 8 . distributor (wholesale part. The distribution of revenues between the stakeholders is difficult to apprehend. which will position themselves in the video games value chain as video games go progressively online and mobile.: 7%). Genvo S. Their mutual relations create the value chain dynamics. with the hardware. Nintendo. Publishers used to occupy a position of strength. which represents the core technology. A growing number of new actors is therefore foreseen. 11%: logistics.5%). retailer (36%).

g. The engine is in charge of detecting the interaction of entities in the game. and iii) commercial engines. usually founded by a few brilliant young developers. The presence of an additional layer. ii) freeware engines. The typical duration of the whole development cycle of applications in general. Then they are either integrated into the buyer’s company structure to work in-house (as a first-party development entity) or kept as satellites dedicated to second party development. game engines are distributed under different types of licences. is needed for two reasons. and secondly it improves efficiency and effectiveness in the applications' development process. or on different platforms in the case of video games. 9 . the reactions to each action. In terms of the business model behind game engines distribution. which are proprietary engines distributed under the payment of a royalties or similar commercial contracts. nevertheless Figure 4 shows the distribution of companies among European Union countries. which are sets of development tools. They usually come in the form of Software Development Kits. Between the OS and device driver layer and the end-user application. Successful companies. e. it ensures the reduction in application development costs by allowing reuse of components on one side.9 repeatedly accessed routines. The reduction of developing and testing time is a requirement of highest importance. Firstly. other countries and the United States for 212 middleware applications listed by GameMiddleWare. which are meant to be used (called) by higher level applications and are designed to provide them with specific functionality. Moreover. is usually longer than the application’s life.Org. it deals with graphics rendering and with the "intelligence" of the game. generally distributed under a licence of the GPL (General Public Licence ) type together with the source code (along with the open source approach). In general. This layer mainly refers to applications like engines. It is quite difficult to maintain an updated list of all the available middleware products for video games. Basically engines divide into: i) free open source engines. are often bought by big studios or platform producers. including libraries and applications which allow software developers to develop applications faster and in a portable way. The purpose of Software Development Kits and engines in general can be very diverse. It must be underlined that the third party middleware producer environment is still changing fast. distributed freely but without the source code. and with regard to video games there are several types of engines. is generally referred to as portability. though it is usually hidden from the applications’ end users. besides that of drivers. and games in particular. the middleware provides the developers with an effective development environment. survival as third-party independent development companies is directly connected to the success of the games their modules are built in. which licence the core middleware portion of their software. and so on. thus making it possible to develop cross-platform applications. an intermediary layer can be identified. The possibility for an application to run under different environments.

6% of modules are produced by companies based in one of the European Union countries10.10 Figure 4: Geographical distribution of middleware producers Source: IPTS elaboration on information provided by GameMiddleWare. 4 in Ireland and 4 in Sweden. 14 of these have been developed by firms in Canada. online games (Massively Multiplayer Online Games . and the transition to handheld devices and the newest generation consoles (PWC 2009). 12 in Germany. The United States provides 93 of the 212 analysed items.1 Online value creation Online games benefit most from the increase in electronic diffusion of content. 3. on the one hand. or 16. the innovation in available games. and on the other 10 Middleware from Unity3d (a Danish firm) is used by 10 to 20% of the top 100 games. 3. Unity3d.and also easier to play browser-based. 5 in the Netherlands. the online and wireless market has grown with remarkable rapidity. come from other countries. The figure shows that 39. The coming of an era: online and mobile games Several trends are expected to affect the current and future dynamics of the video games software industry. which could bypass the publishers and create different revenues streams. as this guarantees. The sales of online and wireless video games have been increasing rapidly over the last few years and are likely to grow further in the foreseeable future. presentation at the IPTS workshop. Of these 84 (accessible online at: http://www. single user online games) are offering users a new role. growth in the number of users and demand. Since 2004. 35 items. 43. This shows that the dynamics of this market are driven by technological novelties and new applications. June 2010. Steffen (last accessed: 17 December 2009).gamemiddleware. 10 . driven by the increase in the number of broadband subscribers. Moreover.5% of the total. 19 by companies in France.MMOGs .9% of the total. Mobile games are challenging the monopolies of existing operating system owners and are offering a new distribution channel to developers. 22 were developed by companies in the UK.

com/view/de_DE/de/branchen/article/5bcc6816ec574210VgnVCM100000ba42f00aRCRD.11 hand.11 Publishers can also opt to distribute games through Internet Service Providers (ISPs). are making the most out of their online possibilities. Valve's Steam Service or Manifesto Games). leaving distributors with a marginal role. and opening new subsegments as it becomes possible for millions of players to interact simultaneously. where the increase in structure and negotiation power of big retail chains has allowed them to interact directly with publishers. two browser-based game companies (Bigpoint. directly distributes games. very powerful. The progressive but impressively fast switch to online gaming introduced new distribution methods and started to rearrange the relative roles and interaction dynamics among the actors at the different levels in the supply chain. Independent application stores and console-oriented gateways are differentiating the type of digital content. console-oriented gateways are also increasing their importance and audience by differentiating the type of content and services made accessible to users. multiple entry points and continuously updated plots enriched by the inclusion of user-determined content. consumers are 11 Disintermediation is also taking place in the case of off-the-shelf games. network platforms for console games. ISPs act as content aggregators and provide portals for game distribution which allow easier promotion and localisation of new games by users. 12 For instance in Germany in 2009. logistics has lost relevance in the online games segment due to the fact that digital goods are reproduced and distributed over the network at low cost. and on a few.13 The alternative business models which users face when entering the world of online games are actually rather different from those they were used to. which normally allow a non-linear interaction with the user. In the same way. Video games. without the need for a distributor to act as intermediary between the publisher and the retailer: i. (2008).h tm 13 The key dynamics of video games in general are described in a more general framework in Mateos-Garcia et al. The increasing importance of ISPs has triggered a process that is often labelled "re-intermediation": ISPs are taking on the role previously played by distributors. allows games to be improved by adding new functionalities. distributors and retailers has basically disappeared as there is no longer any need to duplicate physical products because these can be distributed over the network. Independent application stores are growing rapidly. In the past years. 11 .e. resources and services made accessible to users. Going online enables them to exploit the promises offered by massive multi-player interaction: the creation of persistent virtual worlds and cutting out the role of the distributor. music. among many others. in many cases.12 providing online games access to PC users together with the possibility to download not only games but also movies. and related contents and communities. As regards demand. at the same time they attract advertising which brings an added source to the mixed revenue models. Source: http://www. "disintermediation" is taking place. The publisher. A whole part of the core business involving publishers. Clearly. they are more and more offering different kinds of digital contents and resources. Having started as gateways for accessing video games. and additional content. each controlled by the console's hardware provider. Gameforge) were among the five fastest growing IT companies of the country. the distribution of online games has been progressively concentrated on some internet portals serving the PC-based side (like.

The success of mobile gaming is linked with the appearance of consolidated and scalable business models. payment for an additional level or piece of weaponry on a game). once they already know the game itself and enjoy playing is possible to access to new functionalities. items. With the success of application stores. typical costs for a mobile game were already in the range of the hundreds of thousands. the low entry barriers for mobile games have helped spawn a proliferation of small mobile-game software developers and the possibility to account for the long-tail of potentially interested gamers. these costs may even be an order of magnitude less. These can include time-based billing for game subscriptions.through the game) or item-based billing (e. sometimes even less (Soh & Tan. In the new platforms.14 Thus. applications downloaded from an application store from which -during its use. characters. and any in-game good which are not a full game in themselves. which completes those of mobile operators. event-based billing (subscribing to an event –music. In the case of games publishers (content providers). etc. there has been a recent interest in finding new business models which could build on their particular features. video. 2009).e. 2008) before the emergence of platforms.derive from the discussion in the proceeding sections and basically rely on their market power in the mobile ecosystem to arrive at some form of sharing revenues with the games publisher. premium retailing (the game with basic functionalities is free) and subscription (for gaming online). has appeared with considerable strength: the application stores and the platforms that support each of them. Currently. The virtual items model allows gamers to buy individual digital components such as virtual currency.. 3. It is expected that this 14 According to Nokia sources. content providers (game publishers) and device suppliers. or to benefit from their position (gatekeeper role. as mentioned before) in the ecosystem. Users are more confident and more willing to pay small sums for digital items offered to enhance their gaming experience. There are no big surprises in the main business models for mobile games. because they see it as less of a financial risk. i. suppliers and application stores owners.2 Going mobile The mobile gaming ecosystem allows three basic mechanisms to deliver and consume mobile games: over mobile telecommunications networks. The business models for the other main types of players – operators. provide a way for mobile game developers and publishers to utilise business models which have evolved beyond the traditional pay-per-download to incorporate billing from within the app itself for a variety of additional content and services (Holden.12 attracted by the free-to-play (F2P) approach to the video game main product.g. Value-added applications. A new approach to mobile games. the emerging revenue stream from selling virtual goods online is attracting a lot of attention in the online video games industry. over some short-range wireless system (context delivery) and over some fixed “Internet access” and later side-loading. the impact of new platforms and application stores has been considerable from the perspective of mobile gaming development. While development and marketing costs for a console or PC game can ran to millions of Euros. In fact. this costs would be in the range of the 10 000 euros in 2010 for an average application 12 . they are fundamentally a translation of the existing business models of the software game industry into the mobile domain: retailing (pay-as-you-go).

and as far as the mobile industry is concerned. off-line and mobile) that manage to reach a growing share of the population. The lack of mobile broadband. These entries will bring new form of intermediation that may or may not be welcomed by incumbent players. games are just another type of content/application. the technological move toward network gaming is also allowing some disintermediation. ubiquity. This is in line with the process of digital convergence and which is based on digital distribution of different types of content on the one hand. Vodafone) or telecom equipment manufacturers companies (e. context awareness). Problems related to pricing. co-creators of content. pogo. This phenomenon is not only affecting the video game industry. in addition to many features offered by the mobile platform to support a massive adoption of gaming (wide demographics. One of the disruptive trends in the video games business is the emergence of new actors from different businesses. as the section on online games has clearly shown. video. the echoes of these difficulties surface in the complexities of the mobile ecosystem. at least in most parts of the developed world. there was first a business culture clash between mobile operators and content / applications providers. is also becoming an issue of the past. However. Internet service providers. but also the movie. such as online portals ( Born digital. community involvement. online social networks (Facebook) or even telecom operators (Orange. music and mobile communication industries and the whole publishing sector in general. Yahoo. The videogames software industry appears to be one of the most innovative labs for the coming Digital Economy: it is developing and experimenting new digital services (on-line.13 new type of business model will bring in a relevant part of the overall revenues of the mobile content and applications market The necessary conditions for the success of mobile content and applications seems already met in most developed countries. Conclusion Online and mobile games have a role in the digital content convergence process. which has been only lately and partially solved as application stores have burst onto the mobile scene. and on the diffusion of the availability of interactive capabilities to the consumers on the other. Nokia) may become essential intermediaries in the video games value chain. mobile devices are just another distribution channel. Consequently new business models are emerging. it is not yet known which the most successful business models will be and when they will be in place. the industry shows a digital growth that is taking advantage of many opportunities to offer user13 . personal devices linked to social networks. with broadband mobile data networks increasingly available and affordable. The case of mobile gaming is paradigmatic. ranging from technology and economics to the institutional/ regulatory framework. which may be able to bypass existing actors in currently dominant positions. From a historical perspective. in the fight for the control role in the emerging platforms within the ecosystem. Google. which has impeded on-line and social gaming. For instance. Fewer parties involved in the value chain may mean more revenue for the remaining parties. and in the different perceptions of mobile game evolution: still for many game developers. Notwithstanding the above accomplishments. At the same time. however. usability and the processing power of mobile phones were next to be solved with the market success of smartphones and other smart devices.g. New companies. mobile gaming also faces a number of challenges. developers may benefit from direct contact with the consumers which will make them less dependent on the established publishers.

17 multiplying the supply-side actors. to access and to play) spanning all genres. 15 16 Casual game: ease of use games (to learn. intuitive services at a very large scale. 17 Edutainement: games with educational outcomes targeted at specific groups of learners. mainly based on software development. Such services. allowing for other uses than entertainment).e. Advergames: a subset of the so-called serious games (i.14 friendly. sponsored and distributed for free to advertise a product or an organisation. 14 . are progressively invading other areas in the sector such as casual games.15 advergames16 or edutainement.

15 The video games report is part of the European Commission COMPLETE Project (20072010). "Les marchés à deux versants dans les médias".. Feijóo. Essential Facts about the computer and video game industry. C.. 2. Paris. J. C. M.. Xavier Greffe and Nathalie Sonnac (eds). Sage Publications.... London. C. M. Chapter 26.. ESA Entertainment Software Association (2009). Bowen M.0.europa. I. Exploring a heterogeneous and fragmented digital ecosystem: mobile content... 2008 Sales. ESA. Los Angeles. M. Content and applications in the mobile platform: on the verge of an explosion. Maghiros. De Prato. (2010. Compañó. Objectives: Analyse the future competitiveness of the EU ICT sector in emerging ICT technologies. Abadie. G. & Gomez-Barroso.P. Feijóo. RFID. R. (2008). Feijóo... Maghiros. COMPLETE is co-financed by JRC-IPTS and DG ENTREPRISE and INDUSTRY of the EC. Bacigalupo. Assessing the future competitiveness of the EU video games software industry” available at: 
 http://ipts. New Delhi and Singapore. Game Developer Top 20 Publishers 2009 Report.jrc. Bogdanowicz. 477-491. F.. 2009 Sales.cfm Deuze M. Bourreau. ESA. D. (2009). Telematics & Simon. Dalloz. Abadie. Essential Facts about the computer and video game industry. 15 . Convergence: The International Journal of Research into New Media Technologies. D. COMPLETE aims at producing 6 reports. F. focused on the future industrial European competitiveness in the following emerging technologies: WEB Displays.. Seville: Institute for Prospective Technological Studies Game Developer Research (2009a). Nepelski. & Robotics. I. C. Allen Christian (2007). Demographic and Usage Data. C. Demographic and Usage Data. forthcoming). Vol 13(4): 335–353. Video Games Software Embedded Software in automotive Semiconductor design with DG INFSO... J. The Professional Identity of Gameworkers. References Bounie. 26(3). (2010) “Born digital/ Grown digital. pp. Culture Web. ESA Entertainment Software Association (2008). 282-292.

Communication & Society. Williams Dmitri (2003). European Commission DG Information Society and Media.juniperresearch. 4(1). 35. In-Stat (2010b).org/dataoecd/54/35/36854745. and Corina Pascu. Digiworld Yearbook 2009. Distribution and Access. Ioannis Maghiros. IN1004828WHT. OECD. (2010). Williams Dmitri (2002). Mobile apps . DSTI/ICCP/IE(2004)13/FINAL. Digital Broadband Content: The online computer and video game industry.16 Game Developer Research (2009b).S. Available http://stakeholders. Information.. Spain. IDATE. Profile Book. 41-54. INA Global. pp. 6:4. OECD (2005).com (last accessed: 12 March 2010). Game Developer 2009 Government Game Incentive Report. The Video Game Lighting Rod. Interactive content and convergence: Implications for the information society . IDATE (2009).pdf at: PriceWaterhouseCoopers (2009). February 2010. not mass production: The power of Mass Creativity. We-think: Mass innovation. 2008. Genvo S.. Steinmueller W. Technical report. Report 14 (20072008) to the Storting. White Paper. Jong H. Rightscom Ltd (2006). W. August 2010. F. 16 . 2006. Global Entertainment and Media Outlook 2009-2013.ofcom. The Digital Entertainment Revolution. (Eds). CMS Hasche available at www.inaglobal. http://www. Sevilla. The Future Digital Economy: Digital Content Creation. International Journal on Media Management. F. Top 50 Developers 2009. Game Developer Research (2009c).16-17. Video games.Three Discussion Holden. A Structural Analysis of Market Competition in the U. 523–550.E. Imperial College Press. "The video game: a cultural asset ?".34. p. IPTS. Screen Digest Ltd.taking a bit of the apple: Juniper Research. 12 May 2005. Montpellier. & Solinski B. Retrieved from http://www. Mateos-Garcia J. October 2006. (2009). Norwegian Ministry of Culture and Church affairs. pp. Constructions of a new media technology. The Future Evolution of the Creative Content Industries. http://www. Digiworld Yearbook 2008. Ofcom Communications Market Report.pdf IDATE (2008). Geuna A.oecd. 1970–2000. 10th Annual IDATE. Goldmedia Gmbh. Working Party on the Information Study for the European Commission DG Information Society and Media. Innovation and Strategy of Online Montpellier. University of Michigan. Leadbeater Charles (2008). Fabienne Abadie. priceWaterhouseCoopers. Home Video Game Industry. 2003. OECD. Final Report. p. (2008). (2009). Wi. USA.

these operations have been part of guild-on-guild psyops. Game companies have a responsibility to protect the privacy of their users. we examine the leaking operations that take place in Massively Multiplayer Online platforms and argue that any case that can be made for protecting whistleblowers in the physical world extends into virtual worlds and online games. content theft. Therefore. & and Policy Making Peter Ludlow Northwestern University Department of Philosophy Crowe 3-159 1880 Campus Drive Evanston. Hacktivist movements inside virtual worlds raise a series of interesting questions that have direct relevance to the real world. For example.
 Bloomington. which was providing the group with god-mode capabilities that facilitated the operation. and more important. These programmers. a 4Chan-related group in Second Life known as “The Wrong Hands” infiltrated an online vigilante group (JLU) and exposed a wide surveillance operation that this group had been conducting. the leaked evidence suggested that these illegal activities were being backed by Linden Lab (Second Life's parent company). Introduction
 In 2010 Wikileaks blew up in the international media and the subsequent 4Chan Operation Payback helped “hacktivism” become a household word around the world. question our understanding of online privacy. to whom does the responsibility belong in securing personal information and intellectual property. Less well known is that hacktivist movements and “leaking” operations have also taken root in Massively Multiplayer Online Games and other virtual worlds.
 Hacktivism in Online Games: Negotiating Transparency. Privacy. operating under the disguise of white-hat hackers. but just how far does this responsibility extend? In this paper. ingame vigilante groups. we interrogate to what extent transparency and privacy could be established under the policies set forth by the current terms of service. folded shortly after the exposé. but in a few recent cases the in-game hacktivists have exposed secrets about online organizations. The Wrong Hands. in one recent case. the game companies and their affiliated service providers. The Wrong Hands exposed the shady past of the key programmers of a software company (Modular Systems). we review the above incidents. this time. In a later development. uncovered an even bigger surveillance/datamining operation conducted through the Modular Systems's viewer. which was developing a viewer for Second Life. they don't just expose shady particular. and then argue that any case that can be made for protecting whistleblowers in the physical world extends into virtual worlds and online games. which had several former Linden Lab employees on staff. reported in Ludlow (2010) and Jenkins & Ludlow (2010). We also 
 . IL 60208 Burcu S. More important.
St. For instance. but also other activities that violated the terms of service -. Bakioglu Indiana University Department of Communication & Culture 800
E. In some cases. but rather. had backgrounds not only in writing malicious code. The company.
47405 Abstract
 In our paper.

an SL real estate mogul and the co-founder of Proactive Security (a virtual world security business in SL that competed with the JLU for business). September 3) that the JLU had become a bunch of “power hungry crazed nutjobs that think being an SL Police gives them the right to get away with whatever they want. and persistent harassment of other residents. But the issue was to figure out who was the griefer and who was the bystander. or attack. the owner of the Furnation region in SL was later to explain to Alphaville Herald (2010. For example The Alphaville Herald. an active. To be clear. 2006. There were other actors who were complicating this play. the JLU presented itself as an anti-griefer organization dedicated to keeping peace and order in the virtual world. breathing entity where its students could study and creatively experiment with these social relationships and online cultures in an educational setting. they designed their headquarters with a NASA quality control room with monitors that displayed constant updates from all over SL. Corsi Mousegard. From the beginning. Edward Clift. Predictably. they did spar with griefers and fight disruptive behavior. The editor of the online newspaper. in turn. & Design at WU at the time. had made a name for itself in SL through its transgressive and scatological behavior. To make the fantasy complete. asked to join Proactive Security. they were organizing them to raid. feigned racism and intolerance.” Likely. a griefer group called the Patriatic Nigras (PN). In line with the role-playing that SL has become famous for. and more important. Wonder Woman. The JLU was founded by a user named Kalel Venkman on April 4th.1 JLU. which had been reporting on virtual world griefing since 2003. (Ludlow. Pixeleen Mistral. JLU had close contacts with Linden Lab employees and utilized those relationships in filing abuse reports against other players. including a small university from Southern California: Woodbury University (WU). was viewed to be just as culpable of griefing as those who were its subject matter. etc. created his group to fight the likes of the PN. According to Dr. living. JLU wasn’t just falsely accusing innocent users. Kalel Venkman. Culture. These raids justified the existence of JLU as a necessary force in SL and the estate owners were. 1. which had originated from the 4Chan message boards. As it later turned out. 2010). but rather. then.
 probe to what extent transparency and privacy could be established under the policies set forth by the current terms of service. were claiming that Intlibber had hired the PN to grief his enemies in the virtual real estate business. there were economic motivations that drove the aggressive abuse reports filed by the JLU. JLU was banned from Furnation (a region in SL where players appear in anthropomorphized animal likenesses) because of their excessive vigilantism. newly found estates. this seemingly innocuous and heroic role-playing initiative turned sour as the overzealous JLU members began heavily abuse reporting even the unlikely groups in Second Life. At the time of the JLUs founding. Kalel took on the likeness of Superman and named his group the "Justice League United" (JLU) whose members assumed the guise of comic book superheroes such as Green Lantern. Their activities included grid attacks. Established in SL in 2006. to whom does the responsibility belong in securing personal information. their campus was not just a static virtual mock-up of their actual campus. but instead of using these moles to destroy the griefing group. WU had always adopted an alternative and experimental approach to education. The updates also informed the League members what representatives of the game company (Linden Lab) were online. Batman.2 Not surprisingly some WU students embraced the 4Chan 
 . As reported by Ludlow (2010). was later to find out that she was on the JLU target list. JLU had already penetrated the PN. According to a Intlibber Brautigan.0

 Our story begins with a Second Life user-created vigilante group called The Justice League United (JLU). the Director of Media.

Three days after the security breach.. There are a few of you who I would like to thank by name. similar alliances between Linden Lab and third party developers had existed in the past. These charges were dismissed by the JLU. a certain Haruni Thespian volunteered to become a JLU member.Lex Luther Well boys and girls. The same could not be said of some of the members of the Emerald team who had been banned from SL on several occasions for content theft and other crimes against the Linden Lab Terms of Service (ToS) agreement. Even though some of the Emerald developers had a shady past. Early January of 2010. According to Tizzers Foxchase (a. The note even started with a pertinent quote from Superman’s arch-nemesis. in the case of libsecondlife developers). To be sure. 
 . Jordan Bellino). a group of hackers.a. fed up with JLU’s aggressive abuse reports. I want my cut’ . and they were viewed with equal suspicion. which was developing the Emerald viewer for SL. I just want to bring fire to the people. claiming that they were keeping massive intel on SL users. Ultimately. In the meantime. I don't want to be a *god*. Getting tired of constantly being banned for no reason other than their association with the PN. Haruhi politely sent a letter to all of the JLU members ironically thanking them for their hospitality. However. also made the Woodbury region their regular hangout and even had an office there. the WU group was paying the price. a group of Woodbury students formed a subgroup called The Wrong Hands. the university bought four new regions that the students designed with Soviet themes to tweak a famous Second Life troll with ties to the former Soviet Union. Another curious alliance was with a programming company called the Modular Systems. the chief officer of WU. During that time. (for example. he was granted full access to the BrainiacWiki only after a four-day wait period – without a non-disclosure agreement.” After infiltrating the group and gaining access to its secret Wiki. were abuse reporting people capriciously. No. none of the libsecondlife hackers had intentionally been mixed up in criminal activity nor did they engage in black-hat hacking. Lex Luthers: ‘Gods are selfish beings who fly around in little red capes and don't share their power with mankind. detailing the operations of the JLU. Interacting with the PN.k. The stated goal of the Wrong Hands was to enlighten the SL community about some of the more scandalous behind the scenes happenings on the grid. I wanted to give you all a nice big thank you on behalf of Woodbury University for the Wiki and all the information your loose lips have slipped. After the resulting ruckus led to the university losing its educational discount and its students getting mass banned (mostly thanks to the aggressive abuse reports of JLU). Because these regions had open access (unlike most other educational spaces). and they are…” And thus. who continued their disruptive activities while they were hanging out in the Woodbury region. WU began to plot an infiltration operation. led the WU to be seen as part of this notorious group of virtual world punks. they quickly became Linden Lab's development team du jour. a member of the JLU quit the group and gave an interview to the Alphaville Herald. She opened the doors of their land to the PN. Nevertheless. This in turn led the students to befriend the PNs. It was clear to them that something foul was going on. Haruhi enacted the role of a young girl who sought the fatherly assistance of Kalel Venkman in her personal affairs (boy troubles in particular) while at the same time reporting her findings to the Skype chat group which was put together for what was soon to be called “The Wrong Hands. people were beginning to sense curious connections between Linden Lab and some of the vigilante groups in SL.
 culture and their memes. the League was officially pwned. For example. sometimes successfully getting them banned without cause. it’s been real. Haruhi leaked its 1700-pages of confidential information. did the unthinkable. and much to WU’s surprise. The Wrong Hands started its operations with JLU in their sights. and while they were no angels. Tizzers Foxchase. the JLU appeared to have a hotline to the offices of the Governance Team (G-Team) of Linden Lab and were able to have SL users banned on a whim. And that they did. In 2008.. And. the chief officer of the Woodbury group in SL. who were developing a viewer (browser) for SL called Emerald. and that employees of Linden Lab were complicit in these operations.

Consequently.000 unique users. 2010. Of course. and chose to deal with the other at a later date. and that he was never asked to sign a non-disclosure agreement. This interview. In the face of a DMCA take down. along with Linden Lab's apparent cover up of Crystal’s past and its support of the viewer.
 As Second Life denizens and Alphaville Herald reporters dug into the contents of the Wiki. In retrospect these speculations were not unfounded. As residents were voicing their reactions to this unexpected cover-up. but also led some of the SL users to avoid the client all together. But in the process.e. they discovered that it was not only used to track suspected griefers and compile information on SL users. became one of the most popular viewers. April 19. a secret that he had been guarding for six years. that he was granted legitimate access to the Wiki. Once leaked. the decision to have Woodbury be booted out of SL as revenge for their probing questions. this leak damaged JLU’s reputation and credibility because it became obvious that the papers contained a considerable amount of misinformation and suggested curious links between them and the Linden Lab Governance Team. the editor-in-chief of Alphaville Herald. in which Crystal openly admitted to ToS infringements. Fortunately. but it also contained records of chatlogs from JLU meetings with unsuspecting parties and it recorded JLU plots to entice the Linden Lab Governance Team into banning players. Under the questioning of the Wrong Hands agent Cam Scientist. Pixeleen Mistral. possibly because of the exposé of Crystal on YouTube. these papers were posted on at least five file-sharing sites free to download for anyone who was interested. Yet the ongoing rumors of questionable conduct on the part of some of the development team. The JLU incident was soon followed by another scandal – this one involving some of the developers of a Second Life viewer called Emerald. in particular Fractured Crystal (Jcool410). the incident raised serious questions about the ToS of SL and copyright policies in general. Crystal noted. seized the moment to use this as an excuse to put one griefer group out of business. which at one time boasted of 76. The Alphaville Herald (SL newspaper). Venkman. Crystal's shady past made the statement all the more alarming and undermined the credibility of the viewer. others speculated that Fractured Crystal knew. the DMCA take down request was an attempt to cover up the extensive surveillance operation that the JLU was conducting and to keep the SL users from understanding the full scope of its abuses in SL. the Emerald team closed their bureau in the Woodbury region and pulled out their advertising for their viewer from that region. Exposing the inner workings of the controversial anti-griefing group. While some assumed that this was an attempt on the part of the Emerald team to clean up their act. Suspicious of some underhanded dealing that may be going on through this client. Haruhi had kept all the chatlogs to prove that he had done nothing wrong. Some even suspected that Linden Lab. for various ideological and pragmatic reasons. shed a questionable light on the Lab’s motives. was posted on YouTube on April 11. was that he and his friends were in charge of this one. two days prior to the 
 . there have been several groups of programmers who actively work on developing third party viewers to log onto SL and for the most part they are more functional than the default client that Linden Lab provides. filed documents disputing Venkman's claims of copyright infringement on the grounds that the materials were a clear case of fair use for journalism. griefing) and openly agreed that the Emerald viewer had functionalities similar to those of other viewers that were favored by griefers. The video of the interview. Linden Lab has had an ongoing policy of working with third party developers who actively reverse engineer the code of Second Life to provide a more flexible. Pixeleen was forced to reveal his real life identity as Mark McCahill. and various bloggers who published the contents of the Wiki that he believed to be copyrighted. user-friendly environment for its end users. Crystal confessed to his other alt accounts having been banned as a result of ToS violations (i. frantically threatened to take legal action against not only Haruhi. The Wrong Hands interrogated Fractured Crystal about the Emerald viewer. Whatever JLU's ultimate motives might have been. When Venkman failed to counter-file. The only difference between Emerald and other griefer viewers. or even was involved in. Among these. not only led the viewer to be labeled as a “griefer” client (because it was permissive enough to commit ToS violations). Upon finding out about the breach. In effect. Typepad restored the content it removed from Alphaville Herald's site. the Emerald viewer.

because the actions of The Wrong Hands exposed privacy violations far worse than those they themselves were undertaking. Linden legal counsel Marty Linden. It wasn’t long after Crystal's questioning that the Wrong Hands hacked into the Modular System's database and leaked incriminating documents. But when exactly are such actions justified? Unfortunately there are no easy answers here. Woodbury University was permanently banned yet again as they were days away from getting their educational island. chatlogs of Crystal saying that the consequences for the Woodbury faction. Such relationships are toxic for many reasons. avatar key. The Wrong Hands had strong reason to believe that something was amiss – for example. the real question is what the role of the coding authority should be in all of this. of course.
 Woodbury ban. concerns which were apparently shared by the Linden Lab developers. Perhaps the justification hinges on the evidence one has that more pernicious violations of privacy lie behind the curtains. could be severe. but also raised some serious privacy concerns. and a picture of the Emerald developers in a meeting with the Linden Lab CEO at the time. as a result of the leak. The first and most obvious fact is that platform owners and coding authorities like Linden Lab have no business whatsoever collaborating with user organizations that engage in surveillance on their users. the company that developed Emerald. and geo-location information for players who created SL accounts at the site. Soon enough. M Linden. In the case of the JLU. a database containing over 39. Questions about whether to hack or not to hack into a user created organization like the JLU is a kind of moral question for individual users to weigh. but it also exposed the involvement of the coding authority (Linden Lab) in the matter. From a policy perspective. This revelation not only exposed the close relationship between Linden Lab and the Emerald developers (whose reputations had already been tainted). their lifeline was unplugged. The leaked documents included e-mail exchanges. and correlatively feed into the sense that they are the agents of power 
 . IP addresses. is that sometimes intrusions into private networks by hacking operations can expose and dismantle far more dangerous and systemic violations of privacy by institutions and coding authorities. 2. Modular Systems. It would certainly take a powerful battery of arguments to make the case that hacking was justified on the basis that one simply wants to be sure nothing is amiss behind the curtain. hinting at a possible mass ban. The paradox.000 entries tracking 16. the Emerald developers had compiled a database of avatar names.740 SL users. an intrusion by the Wrong Hands into the private archives of the JLU not only exposed a systemic surveillance operation that was violating the privacy of thousands of unaware users. In both the case of their JLU infiltration and their hacking of Modular Systems. and the revolving door between the makers of the Emerald viewer and Linden Lab was also clearly problematic in view of the discovery that Emerald was a black hat technology engaged in violating the privacy of users. source code for portions of a datamining application. Coding authorities like Linden Lab need a zero tolerance policy towards any association with user groups that are engaged in surveillance of other users or that engage in other forms of vigilantism. And so during a meeting in which WU was negotiating its legitimate return to SL. This naturally raises the question of when such operations are justified. rolled out their new viewer compatible with Linden Lab regulations and was approved as one of the official viewers. detailing avatar name. It was wrong for Linden Lab to encourage and assist the JLU. however. and several other SL staff. Under what conditions are hacktivist operation like those undertaken by The Wrong Hands warranted? Answers like “never” and “always” don’t seem to be fruitful here. They give the vigilante groups the impression that they have the blessing of the coding authority. previous JLU associates had reported the existence of a surveillance system and database on innocent users. and IP address. Apparently.0
 These events bring into sharp focus the fragile status of user privacy in online worlds as well as the apparent role that hacktivist action can play in preserving privacy.

Virtual worlds. Retrieved from http://henryjenkins. September 3). (2010. and P. but of course not every such group is known to the coding authorities. Works Cited Alphaville Herald. ( Mistral. April 14). and as our lives more and more move online these questions become pressing. Emerald site security broken! Datamining shocks Linden Lab!!! 
 .com/2010/05/did-lindenlab%E2%80%99s-emerald-dev-coverup-lead-to-woodbury-ban. P. Did Linden Lab’s Emerald dev coverup lead to Woodbury ban? Retrieved July Retrieved July 12. Emerald’s dev’s Modular System datamine tracks 16. but clearly there is a difference between a standing organization that systematically engages in surveillance of a broad group of users.html Jenkins. their social lives. The principle seems to be this: systematic violations of user privacy are not to be tolerated. What then should be the reaction of a coding authority to a group like The Wrong Hands.html Mistral. But coding authorities need to do more than remain at arms length from organizations that would violate the privacy of their users – they also need to make it clear that such violations will not be tolerated and that any operation engaged in such activities will be shut down immediately. and further that coding authorities need to act decisively against groups that commit these violations. Indeed. As virtual worlds become more and more important to us. May 19). Many people now depend upon virtual worlds like Second Life for their business lives. and their love lives. (2010. One-off intrusions designed to expose harm (say an operation like JLU or criminal activity) must be justified and they must be kept at arms length from the coding authority. Pixeleen. and a one-off operation that seeks to expose a specific vigilante organization on the basis of reliable testimony from within the organization.html Mistral. May 17).org/2010/04/watching_the_watchers_power_an. May 11). Ludlow. It does us no good to have battled for centuries to win the right to privacy in the terrestrial world if we lose it the minute we log in to our jobs or relationships in virtual worlds. Corsi Mousehold: JLU Are Power Hungry Crazed Nutjobs. which brought the surveillance operations to light? Clearly the kind of reaction favored by Linden Lab – banning the associates of The Wrong Hands – seems inappropriate. But how do we distinguish surveillance operations like the JLU from a hacktivist intrusion by a group like The Wrong Hands? How can a coding authority reject one set of actions while endorsing the other? Here again there are no easy answers. 2010 from Alphaville Herald: http://alphavilleherald. Watching the Watchers: Power and Politics in Second Life. Retrieved from http://henryjenkins. Retrieved from http://alphavilleherald.740 avatars. but if they can be justified then the participants should not be punished. Choose Your Fictions Well. Pixeleen. Pixeleen.
 and are untouchable. as both the JLU and the makers of Emerald (Modular Systems) were successful in getting Linden Lab to shut down a University Campus without due process or even a hint of transparency. (2010. H. 2010 from Alphaville Herald: http://alphavilleherald. We’ve made the case that coding authorities must abstain from cozy relationships with vigilante groups that do not respect the privacy of other users. (2010. like the terrestrial Ludlow. (2010. need to protect their whistle blowers. April 9). they often do become nearly untouchable.


 1 2 Private interview with Burcu S.
 Retrieved July12. Private interview with Burcu S. Retrieved July 12. Emerald Viewer: 76000 unique visitors could be wrong. Bakio lu conducted on 25 May 2010. Retrieved July 11. Paladin. May 17).html Proto. June 3). 2010 from Alphaville Herald: http://alphavilleherald. 2010 from Alphaville Herald: Retrieved July 12. (2007. Paladin. 2010 from Krypton Radio: http://kryptonradio. Interview with Woodbury University’s Edward Clift. Modular System Hacked: Woodbury University hacker(s) claim responsibility. 
 .html April 12). Linden Lab’s Woodbury cleanup effort continues. 2010 from Alphaville Herald: http://alphavilleherald. April 20). (2010.html Mistral. (2010. (2010. 2010 from Krypton Radio: http://kryptonradio. Retrieved July 12. Bakio lu conducted on 24 Deecember 2010. Pixeleen.

and aesthetic influence baring sites that.The Game Behind the Video Game: Business.’” Blogger Josh Smith (2006) performed an amateur quantitative analysis of the profanity in Halo 2. the feeling that others are in a social environment with you.’ ‘But Gosh. This is Xbox Live. While individual accounts suggest many players resort to barbarism in online play.” A satirical video on how to play Halo multiplayer (Fireb0rn) explains. Parallel to a number of layers are three other layers: interface. The article. Lin. influence. 2011 
 Layers of Influence in Multiplayer Gaming Nadav Lipkin Rutgers University 4 Huntington Street. echoes the sentiment expressed across the internet: video game players online. Social presence. and aesthetics and content.” Existing literature already has suggestions as to why online players might collapse into this sort of barbarism despite being well-adjusted in their unmediated lives. USA ABSTRACT Video game studies literature has not yet been able to theorize multiplayer interaction in a cohesive way. 119). 2). Users may not care if they hurt other users because they have little sense that others are ‘real. mechanical. the platform. This diagram serves to provide the means of integrating disparate studies on multiplayer activity to reach a more comprehensive understanding of player agency. True identities are difficult to pin down in online social spaces. community. USA. (Bleahy. INTRODUCTION “Breaking News: People Curse on Xbox Live. citing the frequency of “individuals with IAS (internet Ahole syndrome). Davis (2002) outlines a few reasons for bad behavior on the internet: Anonymity and deindividuation have each been shown to cause aversive behavior in ‘the real world’ of face-to-face social interactions.” says the headline of an article on G4tv. mocking the media’s surprise that video game players do not always behave in the most civil ways. April 8-9. New Brunswick. Billy. To better conceptualize the nature of player agency in multiplayer environments. New Jersey. research often indicates the opposite. The diagram demonstrates that player subjectivity develops through the interaction of virtual. this essay proposes a diagram describing nine layers of influence on player interaction: the body. subjectivity. forums. KEYWORDS: Multiplayer. video game studies literature finds these assertions unsupported in observations. constitute a more unified system than currently conceptualized. game code. server groups. Regulation. and especially Xbox Live members. Sun and Tinn (2003) find that teenager MMO players “carefully evaluate risks and benefits to avoid being Lipkin 1 
 . individual servers or play spaces. social. and Society in the Gaming Industry New Brunswick.’ little expectation that their bad behavior has consequences for them. mister!’ ‘I know. and little expectation that they will ever have to interact with the other person in the future (p. and other players. NJ. and reputations do not carry the same weight online that they do in face-to-face interactions. but I don’t. game developer policies. is also diminished in online settings. while subject to existing in different ways or not existing at all in some multiplayer scenarios. and they are even more pronounced in online settings. Act like he pimp-slapped your mom. 2010) ran a story on “Racism and homophobia in gaming: Hate speech corrodes online video game experiences. clans. 2008). can be really terrible people. The Associated Press (Geranios. Somehow. McKenna and Greene (2002) echo that notion that deindividuation “may increase aggressive behavior by decreasing one’s self-awareness” (p. platform developer policies. But that doesn’t matter. “’Act like you have a personal vendetta against this person.

that we cannot consider only the materiality and design of the game interface. and socio-culture” (p. and the circumstances that surround its deployment” (p.. program code. LAYERS OF MULTIPLAYER INFLUENCES 1. aesthetic influences to individual players. Therefore. for example.” (p. what is now a discrete difference between code and interface could theoretically vanish if some indie programmer were to design a game eliding the two layers so thoroughly that they could not be identified separately. serve to encourage or discourage certain actions. which claim players are typically unpleasant. meaning. necessity dictates that labels be designated. surrounding Montfort’s model is “context. While there may not be a permanent essential character within any particular platform module. One would expect more curses at a Red Sox-Yankees game. moreover.) and not human interactivity. social and aesthetic “layers” available to players in each multiplayer environment.” The model herein described most closely resembles Montfort’s with a key exception.p. 2006. referentiality.p. platforms exist in cultural space. but also the setting in which that game interface is deployed. this essay specifies that platforms are. 3) but they do not exist as platonic ideals. the focus of this model is more separate from individual games and more focused on social influences. 297). “Modern multiplayer games… rely heavily on the cooperation between players” (n. digital. and so on) do not incite enough controversy to warrant complicating. n. How can this difference between qualitative experience and communication theory. Smith (2007) explains. 3). The layers in this model bare similarity to the model composed by Lars Knozack (2002) as “a method of analysis for computer game criticism” (p. Adding to the concept of platform studies. platform. the labels used in this essay (operating system.
 cheated. and lower their expectations of strangers in a manner that we considered very practical” (p. The essay will establish the different layers of influence that I propose provide substantive virtual. there is no deterministic cause and effect. The Body Lipkin 2 . server. and reception and operation. 115). Pena and Hancock (2006) found that “players produced many more positive than negative messages” (p. therefore. which “investigate the relationships between platforms—the hardware and software design of standardized computing systems—and influential creative works that have been produced on those platforms. at least partially. game code. Even blogger Josh Smith’s (2006) data on the number of curses per hour in Halo 2 reveal 18. Parisi (2009) explains “. That is to say that the visible expression of a game. multiplayer behavior mediated through a game. such as implemented in Racing the Beam by Nick Montfort and Ian Bogost (2009). interface. social. or constrains particular forms of computational expression” (ibid. functionality. Montfort indicates that referentiality and socio-culture are not subordinate to reception and operation but rather inform the entire model. These layers do not operate in a behaviorist paradigm. In both Knozack’s and Montfort’s essays.. which Montfort (2006) modified to. p. These modules. game form.). while this model follows a similar course of analysis in some respects. or in the case of this essay. 89). 106). “layered—from hardware through operating system and into other software layers—and they relate to modular components. game designer. mechanical and. the majority of which were not specifically derogatory. facilitates. but it does not suggest technological determinism. This essay will attempt to fill the gap in video game studies literature “on how the hardware and software of platforms influences. 2).” (p. as Montfort and Bogost (2009) claim. These definitions will be satisfactory until some future game design revolution deconstructs them. and players play with them using culturally significant gestures—different players might hold controllers different ways or have different combat tactics in a game. however. from bottom-up. online forum. game play.91 curses per hour. derives fundamentally from certain material and virtual systems. with findings that see players working together more often than splitting apart? This essay argues that differences in civil and sportsmanly behavior and communication between platforms and games on platforms are influenced by different mechanical. the models function as means to “analyze computer games” (Montfort. 89). He outlines seven layers of potential analysis in games: “hardware. This analysis will rely heavily on platform studies.

Playstation Network. sex. the vast majority of players will experience hardware as the firm limit on the capacity of play. toasters into Nintendo Entertainment Systems. the hardware boundary is like the other boundaries in the diagram. players on some platforms navigate game developer restrictions through an already restricted Lipkin 3 . has a strong history with players possessing the skills and ambitions to transform the very physical boundaries of their platforms. not for player interactivity. the major influence of the platform developer is on the software governing the multiplayer interactions. however. On the other hand. Because play is restricted by the mechanical capacities. In theory. and cartridges into hand-held versions of the games on those cartridges. 3). it is a very rigid one. For players. peripherals. however. Even if the body does not play a significant role in a particular examination. for example. Of course. While game developers have a great deal of room to have different kinds of multiplayer experiences in their games. This is most commonly associated with game content and not significantly with multiplayer interactions. at its core. “Sometimes the influence is obvious: a monochrome platform can’t display color. even if it is for game developers and publishers. and Satan in games receiving the Nintendo seal of approval are frequently cited examples of platform developers intruding on content decisions. it too can be broken. it is now hailed as a participant in the game text” (p. approval of what games can be sold is not the major boundary-at least. processing speeds. a player who cannot speak will not use the microphone built into their platform hardware. the fact that it has a microphone and speakers means that. for instance. even if no games actually enable that interaction. Therefore. pushing players to use a particular set of communications that are available most efficiently. Moreover. is indeed a critical initial component to understanding a social phenomenon which is. Platform Hardware Needless to for example. As Montfort and Bogost (2009) explain. and its ban on blood. a community of hackers could collectively modify their Super Nintendos with microphones and internet connections to provide more avenues for multiplayer interactivity. However. the DS as platform hardware does not provide the means for that contact. 112). In all fairness. it is a required component of any such discussion. from turning real guitars into Guitar Hero guitars. I have yet to find such an example.
 Perhaps claiming that the body is the foundational module in such a diagram is unnecessarily complicating. Nintendo's policy of restricting the number of games published by individual developers in a year. what actions a player is able to take in a multiplayer game are restricted by the mechanical capacities of the platform mediating that game play. Xbox Live. letting them play Star Fox with each other from different places. Hardware hacking. at least in contemporary video games. 2. 3. the vastly dominant group lacks both the technical expertise and the motivation to break this boundary. “The body is no longer static and disengaged. the only directly material boundary that constrains player activity. As Parisi (2009) claims. the model could just as easily begin with the highest module being God or the laws of physics. The human body has physical and perceptual limitations which should be considered in discussions of how the social body interacts with other bodies. modifying them for their particular needs. The gaming platform’s hardware is. As such. even if people playing each other using a Nintendo DS want to type-chat with each other. another tier ought to precede the hardware limitations: the laws of physics. other limits could exist in the form of software or distribution restrictions by the platform developers. inevitably mediated through the player's body. and a videogame console without a keyboard can’t accept typed input” (p. even in such a case. as a platform at least. however. Beginning with the body. Platform Developer Policies Beyond hardware limitations on players. or Blizzard’s Battle. Obvious as it may be. it is theoretically possible for the DS to provide players a chance to voice-chat with each other. and interfaces available to that platform.

developed by Blizzard. Microsoft filed a patent for software designed to censor real-time audio (Bangeman. one must also consider the proliferation of mods and patches. the head of developer Valve and the PC platform Steam. in their names (see Ashcraft. the very possibility for intrusion by the developer into decisions made by the players on their platforms means that the boundary can exist.p. rather than a fully subordinated one. without which the world would lack the glory of one Leeroy Jenkins. however. Both are easily standardized between players and modify game code often in very dramatic ways. 5. then. and Gabe Newell. By the nature of the platform. Still. software developers are subordinate to the platform developers. while game and platform developers may have similar abilities to shape player interactions. The attempts have at least been made: in 2004. Mods and patches as a layer operate similarly to game boundaries. but the fact remains that the possibilities remain. normal players have no ability to kick a player out of the game. Blizzard's flagship. 2006). like in the case of the Windows XP OS. this is a parallel structure. not all games enable that interaction. As an example. such as using chat boxes or voice-chat. Lipkin 4 . World of Warcraft is in/famous for its use of voice chat. such as curses. They are parasitic.” or a variety of different crass expressions. In considering the code limits of a game. rude words for private parts. Diablo II. such as the ability to squelch players so as not to read messages from them or the ability to kick players out of a game in Left 4 Dead 2. what the platform demands the game developer must accommodate and not necessarily the other way around. 4. forbid players from using certain words. even if it does not currently in any significant way. Whether this should be considered a welcomed administrative intrusion or one to be feared cannot yet be debated. is a computeronly game which ought to be capable of voice-chat. 2011. In Team Fortress 2. rather than at the administrative levels above it. 2011). the implementation of developer-based boundaries (as opposed to those established in a particular game) tends to be restricted to the level of curse words and racist remarks. Both Xbox Live and Playstation Network. as such. or in terms of what abilities players have in relation to each other. consider that most arcade games cannot prevent players from naming themselves “ass” or “poo. either in terms of available communicative channels. yet. Developer Constraints More often than platform developers. does Diablo II lack the ability to have voice-chat when other games running on Blizzard's platform can? The answer is not particularly relevant. as well as the new platform for Nintendo's 3DS.
 entry put in by the platform developer. In this way. however. suggested. The important aspect to this distinction is that differences between games in terms of what is and is not permitted within the game's code establish boundaries that guide interactions. Game Code As most platforms and developers do not have grand over-arching policies governing the degree to which players can interact across all of the games under their watch. game developers play the more significant role in restricting player behavior. and racial slurs. you might want to make that person watch a bunch of ads to help compensate for the negative externalities the[y] create” (Purslow. While platforms may have the mechanical capacities for voice-chat or video-chat. and. Why. the levels of game developer constraints and platform developer constraints are not especially distinguishable—most “physical” influence occurs at the level of the game. players who have administrative powers through the Sourcemod program gain that ability and others. so even when new abilities are created in a mod or patch. they are differentiated by their relationships to each other. as they both limit players by forcing them to play through the limits of the code. Still.). While this current implementation ostensibly has little impact on players’ interactions in multiplayer gaming. n. mods and patches are subservient to game code in order to operate. the most significant mechanical influences on player behavior derive from the software capacities within individual games themselves. “The person who is hated and everyone else leaves. they are still bound to the original code.

and individual servers all have spatial components. such as those on Incgamers. ask help regarding technical problems. This sense of membership. these lower layers are distinct in their social qualities. 2006). SOCIAL LAYERS While the above layers dealt with platforms as they have been traditionally considered. their associated hardware. this information would be blocked. While these interactions may not be intended by designers. Still. Interface with company policies—in connection with platform developer and game developer layers—is certainly far less common. “As group membership becomes increasingly salient. This type of interface likely plays little significance in most discussions of games and player interactivity. but it is still relevant to discuss. Official forums serve as the interface between players and developers. Forums Forums serve as hubs for communal activity. a player looking for a map hack will be able to find information about it in such a forum instead of the official one. do not need to tow an official position the same way that Blizzard does with its official forum. The case of the now infamous Playstation 3 “jailbreaker” George Hotz is only the most recent and most controversial form of this interface with code (see Reisinger. they typically function in a community. or it may be as drastic as hacking the company for theft. 122). Interface with these companies might be as simple as an email or a letter. and what the forum moderates is not completely or Macrumors. as is the case with a group of hackers who exploited a problem in Xbox Live’s Microsoft Points system to generate over a million dollars in “stolen” money (Warren 2011). independent from community Presumably. provides players a space to make suggestions. software. While interface in games most typically refers to the screen or controllers (see Parisi. The layers 6 through 9 focus primarily on social influences on interactivity. However. either welcomed or unwelcomed. consider the proliferation of the Counter Strike mod or home-brew skins. p. members become highly sensitive to prototypical aspects and use the prototype as a model for evaluating the self and the other group members” (McKenna and Green. use Trojans. housing everything from homemade strategy guides to fan fiction to trading posts. Bashiok. even if informal. has significant impact on a player’s sense of belonging and conformity to it broadly refers to any location of communication between user and machine. or presented interface on screen and in-hand can all be accomplished in isolation from any community. they demonstrate the inability of the current literature on platforms for explaining social behavior independent of the games. 2009. they certainly exist and can become an integral component to players’ interactions with a game. While both Lipkin 5 . and their peripherals. The Diablo II official forum on Battle. acting as the orthodox line for game-related discussion. Exploiting company policy likewise fits into this category. It also includes the player’s ability to hack hardware and software. and post character build suggestions. if a player were interested in how to hack the game. As a result. However. or cheat. as opposed to the above layers which typically exist in a more static form. physically or virtually modifying content at a more visceral level. server groups. it bears mentioning. not only including the communication of game content to a player’s eyes or a player’s hands to game code. Not all forums are created equally. and Montfort. interference with company policies requires contact. Significantly.
 1-5a: Interface 
 The interface of a game—the location of interaction and manipulation between player and technology—is too nebulous a concept to be isolated into a single layer for interpretation. 2002. most players do not interfere with the men behind the curtains. Unofficial forums. it is notably moderated by a Blizzard poster. While interference with games at the level or hardware. forums. texture packs and graphics patches to Minecraft. they occupy virtual space to which users can refer and have software components that can be manipulated and interacted with in the same ways as the above layers. for example. 2011). 6. however.

The play space might be called a server. spread information and construct communal consensus. In other words. names. Individual Servers/Play Spaces Individual servers here refer to the virtual spaces in which players play the game. this server is the map. and evaluated by other members. The result is the development of a more centralized community of players outside of the boundaries of the games themselves. Players wishing to contact a developer will not be able to use unofficial forums. and so on. Counter Strike. in Minecraft. players whose consoles are not in the same places as their computers may rely on forums less often for guidance to casual questions because it would require more effort to physically leave the game to consult with the forum. Regardless of the platform a game is on. this layer could be divided into an infinite number of sublayers particular to the game in question. refers to the virtual location of player interaction with what is considered the actual game. and so on—could be considered a server group. generally. and players wishing to subvert the developer will not be able to use the official one. forums provide connections between players. such as in trade servers in Team Fortress 2 or the free market portals in Maplestory. In a shooter. should be understood more nebulously. one for action. for example. However. a game. servers have consistency of location. a server in which a central location branches off into different areas—one for trade. and Day of Defeat players on a number of servers run by a central administration. physical proximity to the forum is important to how it is used and what questions it will answer. and information that comes from one might quickly end up in another. this would be where players attack each other. for a website outside of the game that acts as a homepage.
 types of forums are largely the same. a match. the fact is that no current term fully captures the range of possibilities this layer represents. cataloged. it would be where they race each other. when players do combat. one for rest. and/or identities to which players can Lipkin 6 . This layer. In such a case. there is the potential for a physical distance between the player’s access to the game and their access to the forum. It also includes places where trading takes place in-game. When a player looks for the best location to loot or the fastest place to level up. players can use Steam’s own commands to access the internet without exiting the game. they have stable IP addresses. The use of the term “server. however. they are not identical because of their affiliations. this layer is where play happens. because forums do not exist automatically on the same platforms as the games they discuss. 8. a child playing a Gameboy game at summer camp may only be able to have internet access in a single distant location with limited availability. However. Server Groups The “server groups” layer refers to an amalgamation of individual game servers under some central authority. they will go to the forum where that information is developed. sometimes.” however. all forums have a central function. A more typical example would be a console player. for the most part. In other cases. would be unproductive. it would be where players build and destroy together. 7. While in a game on Steam. They are significant because they have the capacity to provide the central constitution of rules that all constituent individual servers must obey—much in the way that platform developer policies on content trump the desires of game developers. such as playing Gears of War on Xbox360. allowing players to quickly switch between servers and track statistics between them. For MMOs and many computer games. and each has significant impact on the reactions players have in them. as in the above layer. and so on. To label and describe every permutation of the idea. In theory. What is most significant about this layer is that it exists in many different forms. One other element of forums is worth considering. In a more extreme case. consists of a community of Team Fortress 2. even in cases of single player games. in Gran Turismo. the group itself is often decentralized except. allowing players to visit forums while still playing. The Free Frag Network. Server groups are significant not because of their consistent virtual locations. Each individual server is connected to the others in the same video game. hosted by a particular player.

glitches. These server spaces. of course. specifically in terms of sports games but arguably true in any game. As it relates to the nature of player interactions. constructive. and players in one realm may not be able to migrate to another. The same applies to Halo or Gears of War which select teams from a lobby of all available players. Prior to large scale internet access. developing rapport not only between individual players but also to the larger community of players who frequent that server and arguably to the server itself. that there is “one guaranteed rule of computer games: whatever a player can do within the environment of a game is allowed and is therefore good” (n. fun) interplayer relationships require time to develop. now. takes place. in theory. they can return to it. “Over time. 9. means one can always come back to the club to fight—even if not always with the same exact people—eventually befriending other fighters who do the same. joyful. but it does not take place within the scope of the game itself. Moeller. MMO public servers combine elements of the consistency of location in computer games and the anonymity of players and inconsistency of the console model. Logically. While ostensibly. The stakes. Fighting at a boxing club. cheats. given that matches are created from a pool of all available opponents. but once that fight ends. In the case of a game of Soul Caliber 4 on a console. When a player leaves that game. For the majority of games in video game history. these two types of interaction are not automatically identical. Communal debate about whether or not exploiting code is ethical. it would not be possible to discuss multiplayer interaction without multiple players. then. Other servers. however. Their approach is to deplete a game of all its time efficient achievements as quickly as possible and then move on. Players Certainly. the more they can connect to one another and develop their ideal play environment. these same debates span the globe on game forums. unique players may be able to play each other multiple times. it can be found again. A player who creates a character in the Arcania realm in Maplestory has a consistent location to which to return. developing tactics intended to beat the system: exploits. The result is a server with an affective identity that develops over time. the server ceases to exist and cannot be recovered. for such arguments are low. Jakobsson explains that what seems to oppose hunter activity is the community of players who believe that “having a high gamerscore does not equate to any admirable Lipkin 7 . however. The servers have no names or identities. friends might argue about an exploit over lunch at school. Espin and Conway (2009) explain. they will not likely find each other again. Pena and Hancock (2006) explain. Accordingly. the shear size of the playing area means that it is not unlike looking for a single person in New York City using nothing but their name. users may also acquire the necessary experience to encode relational (socioemotional) communication using text” (p. players in games with robot opponents might appear to be playing in similar ways as they would against human beings. The difference between consistent and inconsistent play environments is the difference between a boxing club and a street fight. In contrast. it cannot be picked up again with the same participants. Players acquire to opportunity to learn from each other over a more extended period of play.“ (n. affectively positive (that is. host games on the machines of the players that start the games.p. but unless one adds the other as a friend.). the more players can be around each other. If a player leaves such a server. or simply clever tactics to take advantage of their tendencies. players played against computer-controlled opponents.).p. even if the servers are hosted by individuals and not on large-scale external servers. a street fight could take place in any alley with any participants. using cheats and exploits to quickly acquire achievements is personally satisfying and enables them to show off. have a concreteness to them. despite lacking a material location in the real world. Jakobsson (2011) describes achievement hunters who “typically care more about the accumulated gamerscore than getting all the achievements in any given game. 96). however. many PC games that run on user-generated servers have consistent locations to which players can return and where the players they previously played with are likely to return. and as soon as the hosting player leaves that game. this layer is the most important because it establishes the potentiality for relationships based on the duration and proximity of consistent play.
 refer. they cannot return to it without blind luck. such as those in many console games such as Street Fighter IV or Halo. For these players. if the player who owns the server puts the server back online.

g. they cannot be considered a layer above or below a specific layer in the hierarchy. frankly. such as experience and the server’s affect. they do not consider the importance of hierarchies in their analysis. Most multiplayer platforms now also have friend lists. this is called being a troll or a griefer. helping others with quests. clans are community organizations developed outside of a game. “Wyrd Angles. and the page also lists unwelcomed behavior: “Don't spam. clan members will monitor. it does not directly affect any other players.g. players likely take into consideration the differences between playing a human and playing a machine. Even within games when they may not own or control the entire server space.p. 103). “We want to be the best clan out there for people that just want to enjoy the game without being scammed. This means taking an active part in the Guild. In general. there might be administrators or moderators that police acceptable behavior—players who realize that these other players have authority over them will no doubt change behavior to avoid punishment.p.). they encompass the full scope of social layers: they often host their own forums and websites that act as subcultural hubs parallel to more global official and unofficial forums.p. The interaction with human beings can have this achievement and skill based mentality. and certainly players will interact differently between friends than they would random players they know nothing about. This layer is the last space between the individual player and their actions in the game. they establish and run their own server communities. That same study found that negative comments were less frequent than positive ones (p. pvp [player-versus-player]. yet can themselves do nothing about it. not all people are trolls. doing what you can to help the Guild as a whole” (n.). it is probable that when players do communicate. In many cases and most often in MMOs. “Participants will focus on playing the video game rather than displaying a social orientation when communicating. 6-9b: Clans Clans (or guilds or corporations) form a particular side-influence for many players in a host of different games. as would be expected in most competitive spaces. What is at stake here is personal pride and recognition.). is there any true adrenalin-shooting. it tends to be productive. somewhere. don't get caught up in abusive arguments and don't intentionally train” (n. It likewise enables players to create and enforce rules in games where they cannot otherwise be enforced. participants should produce more task (e. While many factors go into the way a player might expect their fellow players to act.).. In other places. Bartle (1996) describes what he calls a “spade” player as having the following motivation: “Only in the knowledge that a real person. clans serve as the center for regulating and directing player behavior and activity. or forced to do unwanted things” (PureSaint. Lin. don't kill steal. typically over the internet. On many servers. grouping with other Guildies on a fairly regular basis. Typical player behavior is more nuanced because. While Pena and Hancock (2006) demonstrate a general tendency. Then again. Rather. a new player on the server might consult one of these regular players for details about the rules on that particular server. 2011. Pena and Hancock (2006) explain. This opening line establishes the social nature of the guild. juicy fun” (n.p. One Diablo II clan recruiter explains.p.” (2009) explains their operating rules: “The Guild is its members. n. designed to allow players to develop community and have consistent players. Sun. 96). Because clans exist in a separate virtual space outside of the game (or are totally decentralized). and Tin (2003) explain one of the other motivations for players to join clans: “inexperienced players are happy to find more experienced Lipkin 8 . 'How can I perform a special move?') than socioemotional communication (e. There may also be non-administrator players who simply play on a server very often and are enculturated into that server’s individual culture.. and protect each other. Thus. it is a form of normal face-to-face interaction. good to see you captain')” (p.). police. there are many cases when players learn their place in the virtual social order. One World of Warcraft guild. is very upset by what you've just done. joining in events.
 skills” (n. The very existence of trolls and griefers depends on the availability of human players who can be offended and upset. However. and they operate their own games. don't ninja-loot. 'Hey. While this may not be as important in all situations. as a hierarchy is dependent on how much players know and can know about each other.

“Media effects” based social science research puts a huge amount of influence in this category (see Anderson and Dill. Unfortunately. rather. 2001). they may influence behavior from separate forums. distinct groups of servers. the affective role of aesthetics and game content must be placed in a space outside of all of the layers. Depending on the severity of the infraction. Repeated offenses will lead to being kicked from the guild. Membership in a strong clan is thus viewed as a means of self protection” (p. 2006). and this is certainly the case. Anderson and Bushman. not unlike reasons for joining a prison gang for protection. contribute to an affective environment which not only changes a player’s perspective in that multiplayer environment but can also induce a mimetic response to the context. Players are not defined exclusively by their environments but they are not autopoetic either. many guild rule pages list only what actions are unacceptable without even mentioning disciplinary practices. Lipkin 9 . By examining the ways in which players mediate their actions through this maze of pressures and influences. and the visual content of the game as separate areas of inquiry. CONCLUSION This diagram of influence is only a starting line. It demonstrates that player subjectivity is mediated through a number of potential barriers and affects. it would not be wise to completely separate behavior from content entirely. along side the spectrum of social layers. The "Time Out Chair" may also be used as a cooling off period if excessive spam is being posted to the guild chat channel or as a 'fun' warning that you are getting close to crossing the line. as well as during play according to clan-specific codes of conduct. the council may kick on a first offense at their discretion. 2-9c: Aesthetics and Content Just as “context” served as the miasma for Montfort’s (2006) diagram. activity shapes around what content exists and its appearance: websites dedicated to Minecraft use many clean lines and voxel art in reference to the game’s content. Clan membership is held as an honor. Rather than examining the mechanics of the platform. this demonstrates the range of potential locations clans can influence their members.p. the code of the game. many World of Warcraft guilds feature dragons and other fantasy elements. What can be said is that content and aesthetics. but most video game scholars dismiss their findings for good reason (see Pena and Hancock. 292). The complexity comes in defining how significantly content actually changes multiplayer behavior as opposed simply its appearance and aesthetics. it exists as a parallel layer to the social layers. not unlike membership in real-life fraternal orders.
 comrades to show them the ropes and to back them up against bullies. We will not discriminate. As such. researchers can better understand the nature of player subjectivity generally and extend that into the particular. In sum. the social nature of the gaming process.). attempting to determine the exact power of content on the individual is not a task that can be accomplished at this time and will need to be addressed in the future. While this backlash against the influence of content on behavior is a legitimate reaction. Its purpose is not to reduce video game studies to a formula. The guild rules for the Intemperance guild (2005) specified disciplinary process: Most infractions will be handled with a warning for a first offense. it seeks to expand video game studies by increasing its interconnectivity. clearing new ground and enriching the field. While the punishment of being expelled from a guild may not seem to carry tremendous weight. Researchers who approach games from an interpretive cultural studies perspective found their research on the assumption that content has meaning. it appears to hold a tremendous about of power over members. On purely aesthetic grounds. clan membership can be a practical importance. 2000. We will put all parties involved in whatever is going on in the Time Out Chair without preference to who may or may not think it right or wrong (n. this diagram seeks to link them together in service of better understanding the nature of the social action that lies at the heart of analysis. In games such as MMOs consisting of large numbers of people at varying levels of skill and ability. the politics of the development process.

org.rpgforums.A and Lipkin 10 .E.T. Frans Mayra (ed. 9. I. Nov 2003).. S. Available at (2006).1. Tampere University Press 2002.htm Jakobsson.mud. Available at http://gamestudies. K. B. Espin.html Purslow.1. Retrieved from http://www. P. G4tv. (1996). (2002): Computer game criticism: a method for computer game analysis. (2002). Retrieved from www. The Gaea Times. Fireb0rn. and Conway. Handbook of Research on Effective Electronic Gaming in Education. Available at http://www. and Tinn. 78. (2002). D. 353-359. Combat in context. Bad behavior on Xbox Live [Video file]. Virtual group dynamics. Sun. May 6).Y. pullers and glitchers: the rhetoric of sportsmanship. Effects of violent video games on aggressive behavior. clubs. 6. and Bushman. Bangeman. 33. 772-790. Game Montfort. and prosocial behavior: a metaanalytic review of the scientific literature. Retrieved from http://www. Cambridge. aggressive cognition. Theory. J. Journal of Personality and Social Psychology. Ars Technica. 11. 89-100. (2009).A. Research.1. February 19).com/thefeed/blog/post/685552/breaking-news-people-curse-on-xbox-live/ Davis. Moeller. The achievement machine: understanding Xbox 360 achievements. Exploring clan culture: social enclaves and cooperation in online gaming. Ferdig (Ed).com/scg/papers/Bad%20Behavior%20survey. (2011.S.K.T. 288-299. M.intemperance.4. R. Bleahy. sexist and vulgar character names. Kotaku.M. Pena. R. Video games and aggressive Montfort. 111-126. C. and Practice.pdf Lin. Game Studies. A. C.pcgamer. N (2006). 92-109. April 17). 1. MA: MIT Press. aggressive affect. March 1). February 26) physiological (2001). 12. Parisi. spades: Players who suit MUDs.2. Jerks should be 'charged accordingly' in multiplayer says Valve's Gabe.htm. (2003). feelings. Journal of Online Environments. Microsoft files for *bleep*ing good patent. in Richard E. Game interfaces as bodily techniques. and Bogost. Retrieved from http://www. (2010.. 116-127.Kotaku. (2009). Anderson. and J. (2009). [Web log comment].pdf.A. (2011. J. TEEP Clan recruiting.1. An analysis of socioemotional and task communication in online multiplayer video games. Retrieved from http://www. (2005). (2011). N. Hearts. H. and behavior in the laboratory and in life. B. Psychological Geranios. B.5. N. (2000). McKenna.
 Anderson. and Dill.gamestudies. Ashcraft. Retrieved from http://research. K. Retrieved from http://www. PureSaint. Guild rules. C. (2008.. Communication Breaking news: people curse on Xbox Live. Racism & homophobia in gaming: hate speech corrodes online video game experience. Available at http://gamestudies. 6. Racing the Beam:The Atari Video Computer System. The experience of ‘bad’ behavior in online social spaces: A survey of online users. In proceedings of Level up: Digital Games Research Conference ( (2011. Retrieved from http://tech. L. (2006).. Retrieved from in CGDC conference proceedings. diamonds. Nintendo 3DS allows racist. Game Studies.H.1.ars Bartle. PC Gamer.). Cheesers. Retrieved from E. Holland.php/archive/racism-and-homophobia-in-gaming-hate-speechcorrodes-online-video-game-experiences/

com/8301-13506_3-20028540-17. Game Retrieved from http://tech. Frequency of profanity in Halo Microsoft Points exploit may have cost the company over $1 million. D. Game Studies. (2009).
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USA ABSTRACT This paper shows that video games are in the midst of a transition from a revenue model centered on packaged software sales to one that charges players small amounts of money for game play. but from online. Uris Hall – suite 1A New York. virtual goods sales. we need an alternative point of departure from which to describe this industry. The following discusses the business history of the video games industry and how its underlying revenue models are changing. NY 10027. It documents 30 years of video game sales history according to revenue model— Arcade. KEYWORDS: video games. virtual goods 1 INTRODUCTION To document an industry’s history. USA. Financial analysts.D. for example. 2011   A Business History of Video Games: Revenue Models from 1980 to Today Joost van Dreunen. and primary research reports from market researchers and company information. retail. Ph. subscription. Columbia Institute for Tele-Information 3022 Broadway. when high production values and mesmerizing graphics are no longer key selling points. Figure 1 shows the per capita spending (in 2010 dollars) for the music. and Society in the Gaming Industry New Brunswick. arcade. Consequently. Retail. So far. Subscription. digital distribution. a substantial part of the industry’s recent growth has come not from the traditional. Drawing on financial data. and as a reliable handle in evaluating its various companies. this has been an effective way to chronicle the development of the overall industry. describing the history of video games this way becomes problematic when technology ceases to be the driving force behind the industry’s growth. Typically. Digital Download and Virtual Goods—and explains key concepts to each of these. both in comparison to similar entertainment markets and an economic recession. despite its merits. Yet. As the following will show. Regulation. 2009). we may look at different strata. New Jersey. mobile and browser-based games that cost less to develop and publish. will map the video games industry according to the processing power of the various hardware generations (Pachter.The Game Behind the Video Game: Business. the technological progress is used as a way to delineate one generation from the next. . movie and video games industry in the United States from 1980 to 2011. retail-based blockbuster title sales. April 8-9. 2 RELEVANCE The underlying motivation of this paper originates in the video game industry’s growth. it makes the case that other entertainment and media industries may follow its example.

be explained by examining how money is made.S. it becomes clear that its growth. originates in the popularization of several new revenue models. All missing values averaged between years. Data for movie revenues for period between 1995 and 2010 from Noam (2009). If we segment the total industry’s income by revenue model. Combined. Numbers for 2011 (‘11E) are estimates. and include both hardware and software sales. these three models have grown from representing 1% of annual video game sales in 2000 to 23% in 2010. 251 – 263. subscription and virtual goods.$70 $60 $50 $40 $30 $20 $10 $0 '80 '81 '82 '83 '84 '85 '86 '87 '88 '89 '90 '91 '92 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11E Video Game Retail Music Retail Box Office Figure 1: Per Capita Spending on Video Games. chapter 10. produces the Figure 2.bls. Data for the period between 1980 and 1993 taken from Vogel (2001). Data for movie revenues for period between 1995 and 2010 from Nash Information Services (2011). at least in part. table van Dreunen Page 2 of 11 . namely digital download. Inflation calculated using Consumer Price Index figures from Bureau of Labor Statistics (http://data. Data for music retail for the period from 2001 to 2010 from DeGusta (2011).census.5. Expressing the amount of money a single person spends each year on video games according to revenue.                                                                                                                 1 Numbers shown for video game industry are retail sales only. particularly in recent years. Data for period between 1994 and 2003 from Noam (2009). pp. Data for music retail for period 1980 to 1990 from Noam (2009). Census (www. Population data from U. Music and Movie Tickets in the United States1 The obvious difference in year-to-year sales for the video games business can. Data for music retail for period between 1990 and 2001 from Ziemann (2002).gov/popest). Data for the period starting in 2004 and ending in 2011 are originally from Pachter (2009).

For example.S. Second. In order for a particular revenue model to become a reliable source of income. Advertising is not part of this business history. Before we dive into each of them. Play Meter (2011) and van Dreunen (2010). In some instances the technology to. the American video games industry has gone through five different revenue models. a key differentiating factor here is not the shift from one model to the next. companies risk missing out on critical a large enough audience base must adopt it. Inflation calculated using Consumer Price Index figures from Bureau of Labor Statistics (http://data. And it is the relationship with the end-user that characterizes the various revenue models. but rather their popularization as a critical area of growth for the overall industry. This warrants investigation. Retail. Subscription and Virtual Goods. by ignoring one. Digital Distribution. two observations demand attention. and often alongside each other. existed long before consumers began to do so en masse.                                                                                                                 2 Data sources for Figure 2 (in alphabetical order): Bagga (2011). in turn show a decline. Noam (2009). Pachter (2009). They are All others here discussed involve direct consumer payment. All numbers are in 2010 dollars.$90 $80 $70 $60 $50 $40 $30 $20 $10 $0 '80 '81 '82 '83 '84 '85 '86 '87 '88 '89 '90 '91 '92 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11E Arcade Retail Subscription Digital Download Virtual Goods Figure 2: Per Capita Spending on Video Games in the United States by Revenue Model2 The traditional ways of monetizing interactive entertainment software. download games directly to a console.census. the different models are by no means mutually exclusive.bls. people will spend money both at the video game arcade and on home consoles. for instance. Census (www. Conversely. 3 A HISTORY OF VIDEO GAME REVENUE So far. buying a game for a mobile phone can coexist perfectly with a subscription to an online multiplayer game. Similarly. through retail and arcade. because it is an indirect revenue stream. van Dreunen Page 3 of 11 . First. Population data from U.

3.1 Arcade—Coin-Ops Charging people a quarter at a time was the first revenue model for the video games industry. In Entertainment Industry Economics, Hal Vogel pinpoints the origin of this pay-to-play model in the late 1880s, with the “nickel-in-the-slot machines in the gambling halls of San Francisco.” (257) Fifty years later, the emergence of the “amusement-only machines” provided the blueprint for pinball machines and video game arcades. (258) The coin-op model is deceivingly complex. For players, the ‘quarter per play’ proposition is simple enough. But the underlying mechanics that need to both reward players and entice them to continue playing, require complex algorithms to “monitor, incentivize, and ultimately exploit the players,” according to Ely (2009). He explains: “The goal was to ensure that a fixed percentage, say the top 5% of all scores would win a free game. The score level that would implement this varies with the machine, location, and time. The algorithm would compute a histogram of scores and set the replay threshold at the empirical cutoff of 5%. Later designs would allow the threshold to rise quickly to combat the wizard-goes-to-the-cinema problem. The WGTTC problem is where a machine has adjusted down to a low replay score because it is mostly played by novices. Then anytime an above average player gets on the machine, he’s getting free games all day long.” Suffice to say that as a business, both pinball and video game arcade, has a relatively high barrier to entry. According to Vogel, game design can cost up to $1 million per model. In addition, it also requires expertise in other areas, such as manufacturing and assembly, distribution, and maintenance. (260) The heavy machines have to be placed, emptied regularly and kept in working condition, which makes this a labor-intensive business. As a result, the remaining strongholds are venues that can build economies of scale, housing many machines at a single location, rather than having lonely coin-ops scattered geographically. The arcade business model still exists today. But margins have shrunk substantially. The average weekly gross revenue for a single video game machine declined from $129 in 2005 to $69 in 2009. (Play Meter, 2011) Unsurprisingly, year-over-year investments in new machines have also declined by 22% during the same period. In 2010, the Arcade revenue model generated $1.1 billion in sales, down from a peak in 1995 of $6.2 billion (in 2010 dollars). 3.2 Traditional Retail Historically, the video games sector has made the bulk of its revenues through brick-andmortar retail. There are several key characteristics to this model. First, the retail business is largely hardware-driven. Already during its early years, console manufacturers figured out that offering more advanced hardware capable of providing a more sophisticated experience was a strong motivator for consumers. But building, distributing and bringing cutting edge entertainment is expensive. Consequently, the retail model for entertainment software is that of a razor-blade model, where manufacturers accept a loss on the sale of the hardware in the hopes of making a profit by selling software. When Microsoft first launched its Xbox console in 2001 it accepted an estimated $250 loss per unit. Retailers like Wal-Mart, Target and Amazon are examples of outlets that sell video games. In addition, a specialty retailer like GameStop focuses exclusively on selling video game hardware, software and related third-party products. Generally speaking, a retailer demands 20% of the sales price. Table 1 shows the breakdown of margins on different entertainment software sales.

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Retail Price Retailer Take Wholesale Price to Publisher Cost of Goods Sold (COGS) Manufacturing/Packaging Hardware Royalty Fee Licensed Content Royalties Development Costs Total COGS Low High Average Publisher Gross Profit Margin High Low Average Third-Party Distributor

Table 1: Sample Gross Margin Calculation3 PC CDCurrent Gen Next Gen ROM Console Console DVD DVD $49.99 $39.99 $59.99 $10.00 $8.00 $12.00 $39.99 $31.00 $47.99

DS Game Card $34.99 $7.00 $27.99

PSP UMD $39.99 $8.00 $31.99

$2.00 $0.00 $0 - $8.00 $1.00 $7.00

$2.00 $6.00 $0 - $6.00 $1.00 -$5.00

$2.00 $10.00 $0 - $9.50 $1.00 $10.00

$3.00 $4.00 $0 - $6.00 $1.00 $3.00

$2.00 $5.00 $0 - $6.00 $1.00 $4.00

$3.00 $17.00 $10.00

$9.00 $19.00 $14.00

$13.00 $31.50 $22.25

$8.00 $16.00 $12.00

$8.00 $17.00 $12.50

92% 57% 75% $0 - $4.00

72% 41% 56% $0 - $4.00

73% 34% 54% $0 - $4.00

71% 43% 57% $0 - $4.00

75% 47% 61% $0 - $4.00

In this traditional model, the retailers control the value chain because they interact directly with the end customer. This has allowed them great influence on the overall distribution of revenues. For one, a retailer may refuse to carry certain titles that are rated “M,” for Mature, or “A,” for Adult. The high degree of concentration in this segment of the value chain—with GameStop, Wal-Mart, Target and Best Buy holding a combined market share of 76% of total retail sales—gives retailers a lot of leverage over game publishers. (Pachter, 2009) Secondly, retailers follow tightly organized inventory cycles, which can be very problematic for developers who often have to commit to strict deadlines, early in the development process. This is further compounded with retailers’ strict rules regarding in-store placement and how long a title is given premium placement. And, third, retailer GameStop also generates revenue from second-hand sales. Allowing customers to trade their used games in for in-store credit is an effective way to cultivate loyalty and repeat purchases. Much to the chagrin of publishers, however, this practice yields them no income. Whereas game companies receive between 34% and 74% on the sale of a next gen console game, the $2.4 billion on GameStop annual balance sheet goes entirely to the retailer (approximately 26% of annual revenue). (GameStop, 2009)


Pachter, 2009, table 31, page 105.

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Important to the retail-based revenue model is its seasonality. About half of annual sales for interactive entertainment software occurs in November and December (Figure 3).






0% Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Packaged Software

Figure 3: Month-to-Month sales for Packaged Entertainment Software4 With a two-month window to generate that much revenue, game companies spend a lot of money and effort on marketing. The inevitable crowding that happens as a result, forces publishers to continuously increase their efforts and, ultimately, the involved costs. The retail model still accounts for the bulk of revenue, about 73% in 2010, down from a peak of 81% just four years earlier. Despite this the retail model is depressed. According to the NPD Group, which tracks U.S. retail video game sales, overall revenue for the industry in January 2011 has dropped 5% compared to a year earlier. (Orland, 2011) Retail generated $17.4 billion in total revenues in 2010.5 3.3 Digital Distribution Selling video games directly to an end-user using online connectivity first showed up only a few years after the invention of the home console. But it was not until the mid 90s that this channel would reach critical mass. (Lowensohn, 2009) Because users download the game straight onto their PC, for example, this model side steps physical retail and its cost structure. Here, we distinguish three platforms: console, PC and mobile. It was not for lack of want by the console industry that digital distribution did not reach critical mass earlier. Early initiatives such as PlayCable (1981) and GameLine (1983) died a premature death because of limited hardware capacity, network difficulties, and the video game market crash in late-1983. (Horowitz, 2004) Even efforts in the mid 90s by well-known

4 5

Copeland, 2008. The total retail sales in the U.S. consists approximately of 60%, or $10.3 billion in software sales, and $6.9 billion in hardware sales. (Pachter, 2009)

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insisted that games were playable across the entire portfolio of supported handsets.companies like Sega. Initially developers were able to charge around $20 for a downloadable casual game. After the company released the first iteration of Doom as shareware in acquired casual game developer Reflexive in October 2008. In short order.6                                                                                                                 6 Source: company information and app store websites. Palm’s App Catalogue (1%) and Windows’ Marketplace (0. With the Internet growing steadily. failed to gain traction. mobile gaming remained in its infancy until the mass adoption of the Smartphone. The current generation of consoles is the first to generate substantial revenue through digital distribution. Carriers. to the chagrin of mobile content developers. Unsurprisingly the bottom fell out of the market. Similarly. web-based game play quickly emerged as a common activity for online audiences. a slew of low-cost game development companies flooded the market with cheaply produced imitations of popular titles. who did not to see themselves as content providers.3%). On the wings of this development. a host of design companies reinvented themselves as game companies. it further lowered the average price point to $9. XBLA and Wii’s Virtual Console all feature both old and newly released. approximately 663. Earlier efforts to publish games on mobile handsets suffered from inertia by telecom carriers. When Amazon. (Kushner. which drafted the original design documents for one of the most popular casual games Diner Dash. such as the now-defunct Gamelab. which ultimately eroded product quality and triggered commoditization. there were immense difficulties associated with the process of developing for up to 100 different handsets. Apple’s App Store led the pack with more than two-thirds of total availability. In this vertically integrated business model—in which hardware platform. even at price points lower than those at retail. 2003) Since the PC was a more open platform compared to the walled garden of the console. the appetite for digitally distributed content and connected game play started to gain momentum. And a growing number of boxed games is available for digital download. game companies are able to reach a wider. Blackberry’s App World (2%). The PSN. By offering a large library of titles. Further fueled by a growing number of households coming online. As a third platform. a company’s ability to compete depended on successfully cutting of costs. and Nintendo. A group of second-tier app stores accounted for the remaining share: Nokia’s Ovi (2%). it addressed a much larger market. in the early 90s. By January 2011. And since then the average price of a casual game has crept further down to about $6. Developers found themselves both under pressure of lower prices to stay competitive and in a weakening position with portals who controlled access to the audience. But because of its relatively low barriers to entry. PopCap’s hit title Bejeweled began as a humble Flash game. ‘digital exclusive’ titles. Key drivers behind this change are broadband penetration and initiatives by console manufacturers to lower the barriers for smaller studios to develop and publish on their platform. Furthermore.99. with the Japan-only Satellaview (1995) and RandNet (1999). It was Apple’s 2007 release of the iPhone that re-invented the market for mobile games by offering both developers and consumers a unified platform. This policy effectively strangled the potential for an economy of scale. Consequently. van Dreunen Page 7 of 11 . it had reached 10 million installs by the time it appeared in physical retail stores two years later. games were by far the most popular category in terms of consumer sales. each with their own technical specifications. technologies like HTML and Adobe Flash became more sophisticated and popular. software and distribution all played nice together—developers are able to publish games with relative low barriers to entry.99. software developers like Id Software began distributing software directly to consumers over the Internet. All sites visited January 2011. On the PC side.957 apps were available across all mobile app stores. more mainstream audience. Among these apps. the market has exploded. with its Sega Channel (1994). which is elsewhere so integral to digital media. at retail price. Consequently. followed by Android Market with about a quarter.

by Origin System (a subsidiary of Electronic Arts). Ultima Online (1997). the children’s segment grew explosively around 2005. Roy Trubshaw and Richard Bartle.000 subscribers by year’s end. or MMOs. Making additional levels available after a user has completed the game is an increasingly popular practice. Six years later. According to KZero. The first commercial MMO. (Chang. this opens an opportunity to up sell an existing customer. once installed. 2010) With approximately 14% of total sales. has the video game sector attempted to persuade people to commit long-term. setting the standard for the MMOs that characterize the early days of online game play. AOL finally changed from an hourly to a monthly rate. (Gamestop. This initial success caught the attention of others and soon the increasing competition set a price decline in motion. the monthly expense hovers around $6 a month. accumulated 100. Islands of Kesmai. cuts out the traditional brick-and-mortar retailer. companies like BigFish and PlayFirst began offering subscriptions to lock users in. Requiring a unique identifier for a user in order to play the game prevents people from playing without paying.4 billion. But even at such a low price point. the predecessor to AOL. new characters. too.) Beyond MMOs. Quantum Link. two Essex University students. such as Club Penguin (Disney). an issue that worries many entertainment companies. Secondly. Lineage I and II (NCsoft). BigFish still managed to generate $130 million in revenues in 2010. has been successful in persuading its customers to pay a monthly fee. a virtual worlds market researcher. began charging $10 per hour for its graphics-based online service. Thirdly. for Red Dead Redemption and Borderlands (e. And Marc Jacobs established the company that would later become Mythic Entertainment. new missions. Other titles that have successfully adopted this model include EVE Online (CCP Games). casual game companies also discovered the subscription model. “the ten to van Dreunen Page 8 of 11 . allowing for further vertical integration. 2010) Companies focused on younger audiences developed their own subscription-based games. costing $6 per hour. Digital distribution also. after its launch in November. around $5. That same year. such as new missions and characters. totaling $3. and approximately $500 million in annual revenues for the region. or about 9% of its fourth quarter revenues. Charging less. it circumvents piracy. and released EverQuest (1999) and Asheron’s Call (1999). Sony and Microsoft added their horses to the race. driving growth in overall subscription revenues. the MMO market was in full swing and. and launched a $40 a month MMO called Aradath from a server in his house. The size of this market is substantial. digital download is the second largest revenue model for video games in the United States.g. Not longer after. a game cannot be transferred to another user. respectively. yielded Take Two Interactive $34 million in digital sales in late-2010. In particular the market for online role-playing games. released a commercial version of their text-based multi-user dungeon. So. Final Fantasy XI (Square Enix/Sony) and Runescape (Jagex. Releasing additional content. Finally. Here. And shortly thereafter. First. World of Warcraft is still the largest subscription-based MMO in the world. Within the first two month of operation. By 2004. with roughly three million active users in North America. Ltd.The benefits of digital distribution make sound business sense. World of Warcraft (Blizzard Activision) reached an impressive 500. of course.000 subscribers. General Electric’s Information Services division released a competing service called GEnie.99 per month. and cost $12 per hour. launched in 1984 on CompuServe. as the Internet started to gain momentum in the early 90s. this counters second-hand sales because. each paying $10 a month.4 Subscription Charging users a monthly fee has been a tried and true monetization model for a variety of entertainment industries. After a race to the bottom due to a flood of cheaply produced products. 3.

in more than one way emulate the mechanics behind trading card games. there exist various product categories. this also forces game companies to play the role of retailer. In the retail model. a next generation of subscription-based game services presented itself in the form of OnLive and GaiKai. like functional items (e. once an item is created.5 Virtual Goods As the fifth and final revenue model. 2010) Although the audience base may not be as large—in an average free-to-play game only between 1-3% of users actually pay to play—the revenue per customer can be substantially higher. inventory changes.73 for a boxed game for the PlayStation 3 a virtual item may only cost as little as a penny. in fact. This model. enables people to see if they like the game. however. beyond the use on game play. An important additional benefit of this model is that purchase patterns are a lot less seasonal. distribution and customer service. compared to 288 million for people aged 15 to 25 years old. (Pachter.” The principle of selling items and upgrades incrementally as part of a larger game mechanic is a tried and true practice in the toy industry. (Takahashi. virtual items present a more gradual purchasing experience. having to deal with payment method preferences. (KZero. For 2010. Virtual item sales.3 billion dollars. it can be copied ad infinitum at no additional cost. at relatively little cost to the developer. where people do not own computers. temporary abilities like invincibility. in both cases.85.15 years old age group […] totaled 468 [million] registered users” in late 2010. and pay as they go.1 billion. Different than the average selling price of $56. the production process of virtual items allows regular updates. 3. and vanity items. This type of service enables multi-platform play and does not require the user to own any of the software. 2011) Subscriptions currently represent approximately 5% of total video game expenditure in the United States. This forces companies to reorganize their production schedules and resource allocation. 2011) Finally. on average in the United States. a busy holiday season forces many companies to spend a lot of money on marketing in order to persuade customers to spend their annual holiday budget on their game. many of the developers and publishers that used to build a boxed product. virtual goods are here defined as “in-game items or game-related services. And. does require a game company to be actively involved with their audience. While still in early stages of development. However. approximately 5% of the total video game sales in the United States. or about $1. such as a new character or weapon. In addition. All of these can be tweaked and modified to find the optimal equilibrium between supply and demand. Secondly. access (for instance to a certain area in the game). (van Dreunen. (van Dreunen. Digital Distribution and Virtual Goods—presents several important benefits over the packaged software van Dreunen Page 9 of 11 . Currently. that enable or enhance game play. The lower average cost of virtual items alleviates the dependence on this seasonal cycle. such as a virtual currency or item. and even seasonal specials and sales events. both trading card games and virtual items can be collected and traded. The absence of a high initial cost to the consumer. 2009) Selling items incrementally has proven especially effective in countries like South Korea. which serve a social function. In the retail model customers are asked to shell out over $50 before they can play a game at home. the average monthly fee is expected to be around $10. the North American market for virtual goods was $1. 2010) 4 INTERACTIVE ENTERTAINMENT ECONOMICS The video game industry’s transition to new revenue models—Subscription. now find themselves with a lot of extra work (up to 60% of the necessary resources) after the game has been launched. when looking at a customer’s entire lifetime—the total amount of money spent over the course of game play—the number shoots up to $166.g. First. Consequently. a sword). and instead play at cybercafés. Within the context of video game revenue models.

E. O. M. As these new models continue to evolve. ThinkEquity LLC. (2011). Chang. K. J. further research will prove valuable for the games industry and its peers. K. J. Virtual Worlds: 2011 and Beyond: Key Industry Trends and Market Development. Annual Report. A. A. U.” (2009) Other characteristics affecting the interactive entertainment industry’s overall way of making money are likely to emerge. December 21. December 17. (2011). Pachter. Third. (2011). A Brief History of Downloadable Console Games. New York. allows for “approaching perfect price discrimination. Kzero Worldswide. January 24. (2010). (2010). Horowitz. 2011. Toys R Us: Video Games Part of ‘Weakest’ Holiday Sales Category’. (2009). (2009). such as presented by virtual goods. Masters of Doom: How Two Guys Created an Empire and Transformed Pop Culture. further research into the fundamentals of the Subscription. (2003). Glukhov. Lowensohn. Money For Nothing: How Ancillary Revenues Can Extend The Console Cycle. November 22. State of the Industry Report. Gamasutra. Equity Research. Seasonality 2. Bureau of Economic Analysis.S. Office of the Chief Statistician. GameStop. Carret & Co.S. Virtual Goods Sales: New Requirements for Business Modelling? (Graduate Thesis in Information Systems Science). com. and Virtual Items models is necessary to understand how they may serve other entertainment industries. M. U. it loosens the grip retailers have on the overall production schedule and distribution timelines. (2009). and creates room for small studios to work independently. Hamari. Jen.” Random House Publishing Group. Kushner. Casual Games Publisher Big Fish On Track to Make At Least $130M This Year.0. CNET News. For Ely. (2009). September. TheNumbers. it alleviates the traditional dependence on seasonality. Media Ownership and Concentration in America. Noam. 2010. Dept. A. 2010. (2010). (2008). This both improves the margins for existing top-tier publishers. (2009). are much more evenly distributed throughout the year than retail sales. Wedbush Morgan. February 2011. January 6. The sales of virtual goods. 2011. Oxford University Press. University of Jyväskylä. van Dreunen Page 10 of 11 . Therefore. June 5. of Computer Science and Information (2011). Sega16. Multi-Channel Game-As-A-Service II: Ubiquitous Games in the Cloud. The Sega Channel: The First Real Downloadable Content. Copeland. Nash Information Services.. Los Angeles. Department of Commerce. Boston. San Francisco. Forbes. Orland. 2004. (2011). for instance. as Juho Amari points out. Movie Market Summary 1995 to 2011. Play Meter. D.model. (2004). Brean Murray. (2009). since we are only in the early stages of the transition toward digital revenue. 2010. 6 REFERENCES Bagga. Seattle. Live Gamer. Second. Seasonality and Prepackaged Software Price Indexes. Holiday Sales Strength Buoys Take Two. Digital Distribution. J. 2009. 5 SUGGESTIONS & RECOMMENDATIONS More flexible revenue models benefit both consumers and producers of digital entertainment. The Economics of Pinball. a more flexible pricing scheme.

December 11. (2010). Van Dreunen. D. (2001) Entertainment Industry Economics: a Guide for Financial Analysis. Vogel. G. 2010. February 1. H. 2002. VentureBeat. (2011) OnLive launches its PlayPack library of games for $ Azoz.Takahashi. Ziemann. (2002). (fifth edition). September 22. RIAA's Statistics Don't Add Up to Piracy. 2011. Cambridge University Press. J. van Dreunen Page 11 of 11 . SuperData Virtual Item Sales Research Series: North America.99 a month.

USA. From an archaeological perspective (Foucault. Second Life (Linden Lab. 2003). 1969). I analyse how the producer and consumers of early games and consoles (Spacewar. UK ABSTRACT In this paper I will analyse what is at stake in the narratives surrounding the video game prosumer. or even a revolution. I argue that the assumptions underpinning these narratives of production and consumption are not technologically-determined and do not describe a completely new phenomenon. Additionally. Other examples. narratives of production and consumption. 2011 The 'active' video game consumer: what is at stake in the narratives surrounding the video game prosumer Paolo Ruffino Goldsmiths. and Society in the Gaming Industry New Brunswick. made different assumptions about the role of the players and developers. 2004) and The Movies (Lionhead Studios. London. in which the gamers are finally introduced to the process of production.The Game Behind the Video Game: Business.1 They are no longer consumers. media archaeology 1 INTRODUCTION In the last ten years. New Jersey. The Sims 2 (Electronic Arts. April 8-9. KEYWORDS: video game culture. press agents. and gamers communities as a novelty. software modifications or productions from 'the bottom' (as in the independent gaming scene). Although increasing attention is given to the contribution of video game consumers in terms of usergenerated content. prosumer. consumer culture. such as the Xbox Live Arcade. inviting them to create and share content. gamers can submit their productions and see them distributed to a wider audience. 2005) are based mostly on user-generated content. University of London New Cross. Instead. the video game industry has become increasingly concerned with consumer involvement in the production of content. historical perspective on the role 1 For more information on the Independent Games Festival see http://igf. Magnavox' Odyssey. including the game construction sets of the '80s and the 'open engines' of the '90s (id Software's Doom). showing the ways in which these narratives are historically embedded. Some games have met with unexpected success as a result of modifications produced by the gamers. Regulation. SE14 1 Ruffino . Taking a broader. but prosumers. they are a redefinition of practices that were already part of the video game industry. 2008). with crucial lessons for the design and advertising of new video games. I would like to argue that this is actually a re-definition of practices that were already present among video game consumers. we can highlight the ways in which current discourses of the video game prosumer have been structured. there is little awareness of how the discourses describing and justifying these practices are structured. new phenomena such as 'independent gaming' seem to be shaping a new video game industry. In some cases. While this is usually described by video game magazines. Other video games welcome the activity of the players. Video games such as Little Big Planet (Sony Computer Entertainment. Computer Space) have been discussed at different times.

though he also suggests that 'the increased access to the means of media production does (. This is historically and culturally placed in a specific age of the medium of the video game.. as 'gamers culture' has been brought into the academy without any real consideration being given to the assumptions behind its framing and its historical and cultural contextualization. The 'active' video game consumer. Discourses around the 'active' video game consumer are based on narratives of production and consumption where the two processes are seen as separate and subsequent.played by video game consumers in designing and sharing content. T.2 2 METHODOLOGY AND LITERATURE It is my argument that the narratives of production and consumption in video game culture are based on simple structures.. or how they are structured. Particularly this appears in 1997-1998 with the release of development kits like Sony's NetYaroze. as statements about video game culture which helped establish the field. I will further analyse these examples in this paper. has already been analysed by several previous authors. are actually reinforced by such a designation: 'production and consumption can be brought together like this in the guise of the prosumer only if they are positioned as having somehow been separate and distinct in the first place — which they generally are in narratives of this kind' (Hall 2008: 23). who becomes a producer of content. I will look at what these discourses and narratives exclude. video game culture is described through structures that frame and enable certain possibilities. Through an examination of specific case studies and examples. I will look at how discourses surrounding the video game consumer have. Following the methodology of discourse analysis as described by Michel Foucault (1969). Alexander Galloway (2007) and Jesper Juul (2009). One such narrative is that of the video game prosumer. while blurring into the prosumer. Although acknowledging some issues common to the study of consumer production. This process will show how the video game prosumer and. Here. while limiting others. the release of the open engine of the game Doom and the first edition of the Independent Games Festival. I do not intend to argue. See. I turn to Hall's critique of the idea of the prosumer. I will also provide an original perspective from which to approach the history of this medium and current debates in video game studies. its market trends.L. in fact. more generally. these texts do not consider how specific narratives of production and consumption initially appeared. in which characters and semantic values are organized schematically. Sotamaa maintains that media consumption and production should not be studied separately. instead. developed in 1962. Though useful for an understanding of the issues at stake. I will show the extent to which their emergence and success was shaped by narratives surrounding the video game consumer. the consumer culture and also cases of 'counter-gaming' (Galloway 2007) where video games are modified by players. both of whom have written on the processes of video game production. demanding awareness from its practitioners. however.) not necessarily equate to increased freedom' (2009: 99). shaped different representations. approaching the issue from a perspective grounded in the methodologies of political economy. and contribute to shape it. Kücklich (2005) suggests that game modification is a form of precarious labour. Aphra Kerr (2006). including Kücklich (2005) and Sotamaa (2009). All these texts describe the video game industry. I will show how they are at the basis of the structures with which we make sense of video gaming as a cultural phenomenon. Ruffino 2 2 . This narrative is framed through the schematic opposition of producers and consumers. Hall argues that the distinct roles of producer and consumer. The narratives that describe the production and consumption of games are different in these cases from those that framed earlier cases such as the development kits of the '80s or an 'open' game like Spacewar. Giddings and Kennedy (2006). both positions are premised on a basic opposition between production and consumption. that the narratives represent a false or misleading description of a culture. 'as the media practices are becoming increasingly participatory and co-operative' (2009: 4). Dovey and Kennedy (2006). for example. Such descriptions are a part of the object of my research. Taylor (2006).

is that a priori separation of producers and consumers. The article goes even further and questions to which extent the 'indie' world of game development is making it easy to reach a wide public. published on Edge magazine in February 2011 (issue 224.. the linear framing of the narratives conceal contradictory assumptions.. However.. and this precluded the possibility of blurring the two into a new word. He suggests then that we should look at the 'regularity of dispersion': the constant interconnection of elements that 'do not obey any underlying or essential principle of structuration' (1995: 435). when the audience of the video game industry begins to shift and change. as a succession of 'parasites' constantly emerging to supplant their predecessors. Serres suggests that a communication model can be re-framed according to a different narrative. he understands that the episteme does not say much about discursive formations. He first finds it in the episteme.nytimes.] Now anyone can do it[. obscurity [and noise are] part of communication' (1980: 12). in the mid-'90s.4 In these statements. as summarized by Laclau in his piece on “Discourse” (1995) as an attempt 'to isolate the totalities within which any production of meaning takes place'. some elements are continually excluded by these discourses. statements originating from the world of open source software began to influence the discourses of video game culture to a significant In the article “New year. which he calls 'discourse' (1995: 434). wavy lines. [. as common knowledge. the very distinction between producer and consumer was far from presumed when the first examples of video games appeared in the '60s. often teleological visions of the video game industry. in the press releases of consumer games festivals and public events. the framing of the discourses about the video game prosumer appear in a specific period. we can see the narratives of opposition. discourses about the video game prosumer cannot have been determined by a technological innovation or opening of the means of production.] which is not how the mainstream video-game industry works'. Later. Similarly. a few elements seem to be constant. Such isolation results in a 'stratum of phenomena'. fundamental ways. In this complicated succession of views and perspectives. Future Publishing) it looks clear that the age of high-street retailers and high costs of development is oriented to a decline. and in the hospitable reception guaranteed by video game publishers for user-generated content. narratives which attempt to describe the subversion of the production models of the video game industry can be (and are) re-framed continuously in the attempt to create a 'grand' narrative (as intended by Lyotard. as described earlier. 1979). in the interviews with video game players who decide to be producers. Firstly. As such. In order to preserve clarity and overlook eventual contradictions some points are taken outside of the narratives of prosumption. I follow Foucault's work on discourse analysis. In video game magazines. engagement and independence mixing and contradicting each other. Firstly. this attempt is endlessly frustrated by the constant redefinition of these structures. new challenges”. [. in which 'mistakes. with partially new perspectives appearing in any new statement. taking it as an established assumption that nowadays small-scale developers have more opportunities to generate revenue. In this same period. Instead. Secondly.html?_r=1) Ruffino 3 3 .com/2009/11/15/magazine/15videogames-t. confusion. One of which. The teleological vision where the development and distribution of games is going to make it possible for everyone to design and publish a successful video game is taken for granted. His main concern is to understand what constitutes the principle of coherence in a discourse. In The Parasite (1980). I will follow this method and look at how the discourses surrounding some previous cases of prosumption in video game culture were framed differently from their current configuration. Here.. oriented to a progressive opening of the means of production. Available at: (http://www.I agree with Hall and I also argue that the video game prosumer has not been considered as a result of the processes of its role in structuring the discourses of video game culture. in a historical sense.] They have even the potential to be meaningful in deep. The journalist Joshuah Bearman interviewed the independent game designer Jason Rorher: 'A realization is dawning that games can be much more than what they are now. we can witness the apparent simplicity and linearity of these narratives.3 Sometimes they describe the clash between the publishers of mainstream products and the gamers who want to take control of the content. this approach is evident in an article published in the New York Times (15th November 2009). specific to a certain age and which unifies the cultural production of a period. 4 Among the many possible examples. a general outlook.

I will compare these documents with Ralph Baer's manuscript about the development of Odyssey (1972). an article published in 2009. while working at the Brookhaven National Laboratory in Upton. Magnavox' Odyssey and Computer Space Reconstructions of the history of video games generally agree in situating the 'year one' of digital gaming as 19585. Kent (2002: 18) while acknowledging Tennis for Two as the first video game. at the Massachusetts Institute of Technology. Spacewar. claims it was an isolated case which did not influence either Stephen Russell or Ralph Baer. The idea that computers could be domestic tools was still remote and implausible. with Spacewar intended only for gamers with extensive programming skills. There was no sense of progress towards a final. Stephen Russell (also known as Steve 'Slug' Russell in the hacking community) designed Spacewar. where most code was freely shared and implemented without fear of copyright or patent infringement'. producer and consumer. A few years later. the history of the earliest video games were seen from a perspective based on assumptions about the roles and the distinction of producers and consumers that were of little perceived importance in the discursive formations of that period. Furthermore. John (1983). It is also a period in which the first historical reconstructions of the history of the medium were published. I will analyse how the narratives of production and consumption were different in these two Indeed. Ruffino 4 5 . In “The History of Spacewar!: the Best Waste of Time in the History of the Universe”. Herz (1997).1 Spacewar. complete version. Here. In this cultural context. was conceived explicitly as software to be shared among researchers with access to one of the first computer models. it could be said that the possibility to 'close' it. Matt Barton and Bill Loguidice highlight the fact that: 'far from the secretive and highly competitive world of modern software development. and make the code inaccessible. the video game's imagined player was an academic researcher who might work at and expand the software. looking closely at the ways in which its development has been narrated in historical reconstructions. In a similar vein to Russell. And then there was Higinbotham" in Creative Computing Video and Arcade Games (Spring 1983 issue). rather. one of the first texts to describe the video game culture to a large audience. Russell was influenced by the hacker culture that developed during the early '60s at the MIT and in computer laboratories elsewhere. Poole (2000: 15) and Anderson. the PDP-1 (Programmed Data Processor-1). the idea of sharing the game's software appeared as the most obvious solution (see Lister et al. J. in contrast. Higinbotham would later comment on his own invention by See Bittanti (1999: 48). there was Fermi. who should be regarded as the 'fathers' of digital gaming. it was possible to add or change parts of it. the first game console. 3 THE 'OPEN ENGINE' AND THE 'BROWN BOX': NARRATIVES OF PRODUCTION AND CONSUMPTION IN THE VIDEO GAME INDUSTRY 3. The game required two players and was a simulation of a fight between two spaceships. the software itself was always open: at any time. there was Edison. and how the distinctions set by Ralph Baer's console between software and hardware. would have been inconceivable. when William Higinbotham. used an oscilloscope to design a game called Tennis for Two for entertaining students visiting the research centre. and was not advertised anywhere other than the Brookhaven National Institute.C. Russell worked in what is now called an "open source" environment. openness and closure. in 1962. 2009: 290). In these instances. Higinbotham's Tennis for Two was addressed directly to students and visitors. Spacewar was modified by Russell's colleagues at the MIT and in other research centres across the United States. "Who really invented the Video Game? There was Bell. New York. framed further developments in the narratives of production and consumption. I turn to the case of Spacewar (1962). ignores Tennis for Two and places the beginning of the medium of the video game with the invention of Spacewar.

This was the first product for the video game home market. a closed object which would contain the hardware necessary to run a limited number of games. also known as VCR). Reaching an agreement with Nutting Associates. He decided to work on a new version of the game that could be commercialized. Ruffino 5 6 . Ralph Baer reconsidered the possibilities of television devices and Philips/Magnavox applied a model that was already framing their products. In both cases. Stephen Russell's Spacewar. an American engineer and inventor. envisioning the user as a consumer. inventor Nolan Bushnell had the opportunity to play Spacewar on a PDP-1. imaging his invention literally as a box. In presentations and the documentation of their invention. in the process that was about to be initiated by Ralph Baer and his Odyssey game console. with an influx of statements and assumptions that had originated elsewhere. 'boxes' that could be connected to the TV set. Indeed. occupied a place in a structure originally created for other kind of entertainment devices. which could be sold separately. Video games became known to the general public mostly thanks to Ralph Baer and other inventors with an approach to the gaming software that was very different from that of Russell. Ampex and RCA released video tape recorders for domestic use. The fact that Ralph Baer thought about his game console mostly as a device for televisions is confirmed by the 'declaration of intents' that introduces his documents for the design of the 'brown box': 'the purpose of the invention is to provide a large variety of low-cost data entry devices which can be used by an operator to communicate with a monochrome or color TV set of standard. however. he produced Computer Space. was continually modified – to the extent that to attribute the authorship of Spacewar to one single person can only be described as a simplification. Ralph Baer referred to his new invention as 'the brown box' in all his personal documents. the notion that hardware had to be connected to the television set was already firmly established. worked on machines which supported dedicated software. It is my argument that this drastic change in the 'obviousness' of the processes of video game development and distribution can be attributed to a shift in the discourses about video games. the software was embedded in the hardware. restaurants and malls. on the other hand. The product on sale was the device. Russell first conceived Spacewar as an application of the PDP-1. Sony. In 1965. there are explicit references to the television and pinball industries. There are several issues involved in the passage from Stephen Russell's game to Ralph Baer and Nolan Bushnell's vision of game software. external devices such as tape recorders began to appear on the market. both Magnavox and Nutting Associates were not selling video game software. Steven Poole offered a full credits list. and not the content. It quickly became popular and appeared in public places all over the United States.saying that it looked so obvious to him that he had never thought about patenting it (Bittanti 1999: 50). Ralph H. so much as machines with video game software installed inside and inseparable from it. At roughly the same time. a huge departure from Stephen Russell's vision of the user as a potential contributor. which was presented as a coin operated machine for public spaces. Baer. These were sold as pieces of hardware. in turn. This distinction is crucial. the reason why these solutions were obvious for them. such as pubs. Baer and Bushnell introduced discourses and visions from other domestic industries. Ralph Baer and Nolan Bushnell. For later commentators and analysts. I propose that video games. by which time. The 'brown box' was a technology for playing games by using a TV set. Ralph Baer and Nolan Bushnell reshaped the vision of video game software. as a result of the emergence of the video recorder. made for the sake of providing a straightforward historical narrative. started working on what he called the 'brown box' in 1966. As televisions became a widel distributed domestic technology.6 He applied an existing business model to his product. Philips' American division (Magnavox) released the game console Odyssey in 1972. is often far from clear. while Philips developed its own video cassette format and a specific recorder in 1970 (the N1500. In the book Trigger Happy. but even this cannot account for the innumerable modifications that appeared in the following years (2000: 16). The product was sold on the market from March 1972 and was named Odyssey. framing it as something similar to the existing television peripherals. commercial unmodified type' (Baer 1966: 1).

as the limits are continually re-defined. relying on motivations wholly dissimilar to those that. with no beta to be released before its time' (Raymond 1999: 29). When Stephen Russell offered Spacewar to the community of researchers who had access to PDP-1. there is an additional separation which marks them apart from the work of Stephen Russell. in a way that resembles a disorganized but efficient bazaar. This vision. with an unknown. with a narration that tends to mythologise the work by Russell and his friends at the MIT. in doing so. we can see how discourses 'act both to constrain and enable what we can know'. Spacewar is described as a concrete example of this ethic. We cannot reasonably argue what their intentions may have been. it is better to release software as often and early as possible. the restricted access required for commercial exploitation. later reconstructed their story. Russell's decision was in accordance to that which underpinned the discourses on computer programming at that point in time. the visitors face an entrance and an exit. Russell's game Spacewar was a bazaar. as McHoul and Grace (1993: 37) write in their discussion of Foucault's methodology. it appears as an ethical and near-heroic choice. According to Levy. and the space can be expanded or closed with no restrictions. but we do know that the discourses that frame video games now are very different from those of 1984. borrowing from the rhetoric of the open source movement of the '90s. In a cathedral.7 Similarly. the architecture is complete. Between For an analysis of the theories of Brooks and Raymond see Frabetti F. self-sufficient. and. In Levy's view. in reality. on the other. is criticized by Raymond. Ruffino 6 7 . Russell considered the possibility of commercializing Spacewar only when it was already too late: 'at one point the thought crossed Slug Russell's mind that maybe someone should be making money from this. a distinction which was carried forward in all following discourses about gamers' games. The fact that Russell and his colleagues at the MIT failed to even consider this option highlights a difference between their vision and that of those who. and not to be modified. In a bazaar. the way it should be. PhD thesis. the hacking culture is defined as inspired by a 'hacker ethic'. and. Goldsmiths. and the non-commercialization of the game is explained as an example of the opposition between freedom to share and modify software. Raymond (1999) in his discussion of software engineering. University of London. Steven Levy includes Stephen Russell in the history of the most famous hackers in the history of computing. number of contributors. In this book. who.Further to the commercial interests involved in Ralph Baer and Nolan Bushnell's projects. on the one hand. he applied a 'bazaar' vision of game software. where authorities are not to be trusted and the only reigning principles are freedom of access (to the computers) and freedom of use. Here. There is a certain secrecy about the engineer's plan. From this perspective Russell's behaviour of not selling the game appears as an ethical decision. I will now look at an historical reconstruction of Russell's story: Hackers: Heroes of the Computer Revolution (1984) by Stephen Levy. like Levy. and did not include in his work any conditions on how to limit or close it. inspired directly by the theories on software engineering of the '70s and '80s. This difference can be best understood through recourse to the metaphors introduced by Eric S. Technology Made Legible: A Cultural Study of Software as a Form of Writing in the Theories and Practices of Software Engineering. It is what Baer and Bushnell aimed to achieve with their 'boxes': closed environments that could be accessible only for a specific purpose (to play the game). In Levy's successive description. allowing users to contribute by finding errors and improving the software. (2009). He criticized Frederick Brooks' vision of software as a 'cathedral': a work designed by an engineer. states that software can be engineered instead as a 'bazaar'. According to Raymond. monetizing one's work is the normal condition. moved Russell and his colleagues to action. Levy presents a narrative where Russell acts as one of the heroes of the 'computer revolution'. despite the fact that such a hero/villain opposition is unnecessary to the story. theoretically limitless. the use of which is authorized only after completion. when Levy wrote his piece. Ralph Baer and Nolan Bushnell designed two cathedrals instead. invented the video game industry and the concept of the video game consumer as a user who could only 'consume' the product. however. but by then there were already dozens of copies circulating' (1984: 65). one that resembles a form of magic or esotericism. 'carefully crafted by individual wizards or small bands of mages working in splendid isolation. there is no entrance or exit.

it wouldn’t make any money anyway because the game platform was $120. the first use of the word in a DEC catalog spelled it wrong. Ruffino 7 . This is also evident when looking at other contemporary articles about Spacewar. was the answer' (Fleming 2007: 4). as a consequence of still not being a defined object). one. between software and hardware. It was something you did to make a computer do things but it had no existence apart from the computer. fifteen years later. In Jeffrey Fleming's “Down the Hyper-Spatial Tube: Spacewar and the Birth of Digital Game Culture”.000. in December 1972. It is interesting. the emphasis was on the liberating effects of computers for the masses. Bushnell struggled to make the game work on a Data General 1600 minicomputer. Unable to get the economics into the black. Even after it had a name. The first few lines made this clear: 'ready or not. Tennis for Two or any other early example of video game as a missed opportunity for the opening and exploitation of a new market is misjudging the field.G. but they did not consider the full implications: There was a very brief discussion. as the required hardware was unavailable on a large scale. nobody knew what it was (2007: 4). one of the authors of Spacewar. Thus.G. […] Nobody knew what programming was. the final paragraph appendix of the article explains how to 'make your own Spacewar'. and the consequences of this separation were not considered (in fact. could be considered as such.Russell and his commentator.. and re-presented by Levy. However. as a coin-operated machine by a video game company (Space Wars by Larry Rosenthal. Spacewar is a prophetic appearance of the world to come. Indeed. That's good news. In 1972. The separation between the two. Bushnell managed to commercialize a video game (actually a clone of Spacewar) only by considering the distinction between the video game software and hardware. a tournament played among the engineers who had access at the Stanford's Artificial Intelligence Laboratory in Palo Alto. computers are coming to the people. remembers the days when the game was in (permanent) development. It was only after Baer and Bushnell invented the video game consumer that the story of Russell. this level of attention towards the commercialization of the game could not appear in a previous article published in Rolling Stone magazine. as such. when the Rolling Stone article first appeared. lies the emergence of the video game market. rather than software. When asked about his feelings when a similar game was released. but there were two things. From the 'open engine' designed by Russell and his colleagues. Graetz's comments about the lack of copyrighting for Spacewar also implicitly assumes that the way Spacewar was designed prevented its commercialization. to notice how both Russell and Higinbotham report having failed to consider their software as a potential commercial product. rhetoric which questions the emergence of Spacewar. While glorifying the game and its makers. he acknowledges that the idea of copyrighting Spacewar crossed their minds. we can see how the conditions established by the discourses in their cultural frame made it incapable to address the production and consumption of a 'video game' (which was not even named as such. such concerns were external to the his frame of what was considered possible. In fact. two. for example. one where computer will be used not just for work but also for entertainment purposes. [. probably less than a minute. There was no inkling that computers would develop the way they would. about finding some way to copyright Spacewar. as a result of Brand's context and circumstance. The market had not yet been established and. nobody knew if it was copyrightable. Writer Stewart Brand describes the first 'Spacewar Olympics'. J. Graetz underlines how the very word 'software' had not even been coined at the point when they were designing the game). California. 1977). this narrative lacked the historical knowledge needed to discuss the possibilities of its commercialization. extending the spirit of contribution to a never-ending project. Graetz.. J. and Higinbotham before him. maybe the best since psychedelics' (1972). […] The word ‘software’ didn’t come into existence until just about the time that we got Spacewar done. If we look at these games from an archaeological perspective. Levy. There could be no such possibility. The same article echoes the story of Nolan Bushnell and his Computer Space coin-operated video game for public spaces: 'working out of his home. In this article.] We were just having fun. the notion of video game consumers would have been inconceivable. Bushnell realized that reproducing Spacewar in hardware.

10 This is how the story of the game is considered in Kushner. have changed and have played a significant role in shaping this medium. video game software has started to display again features which were characterised as typical of the 'bazaar'. Single and multi-player modes spread over the internet. game construction sets were instrumental in introducing questions of 'ownership' into the discourses about the video game a medium.the video game as a medium had to become a 'box' – a piece of hardware – in order to be consumed on a large scale. this issue later provided a base for one of the main discursive fields in the narratives of prosumption. Though not consciously problematised at this stage. London: Piatkus. possibly. Construction sets were designed as games that included a variety of options for personalizing the game. One example of how this later posed a problem can be found in the release of Doom's game engine in 1997. Masters of Doom. or combining elements of both. 1986) and the Racing Destruction Set (Electronic Arts. 3. It is described as such because the narratives surrounding this process were Originally designed in 1980 by Bill Budge and his BudgeCo game company. In this way. the opening of the game engine is an act that subverted the existing processes of production and consumption. invite players to join them in this position of power and authorship. as the game engine was intentionally released so as to guarantee a longer life for their product. Other popular cases from the same period include Boulder Dash Construction Kit (First Star Software. with the framework of available options provided in advance and protected from further modification.8 which is commonly known as the first game-construction set ever released. Construction sets date back to 1983. either suspended between the two notions. far from being crystallized. Ruffino 8 8 . the documents about its release insisted on considering this structuring of the game as a deliberate decision rooted in a hacker culture of freedom and openness. later. One example of this can be found in the 'construction set' trend of the '80s. This separation was presented as a narrative whereby an original creator/source would release software to the mass market and then. it was later sold to Electronic Arts which took control of its distribution and publishing. In fact. How two guys created an empire and transformed pop culture. 9 Another popular example was the Shoot'em up Construction Set (1987) by Sensible Software. However. Id Software never claimed the ownership or any copyright infringement. The question of who owns the outcome of the player's performance is something that can be only discussed when the roles of player and developer are separated from each other. most often. By the end of 1983. it shows how the narratives of production and consumption in video game culture. it has re-invented the player/user along the line of that imagined by Russell. as it is. 10 In the case of Doom. The various examples of this 'construction set' game type9 fell short of bringing back the approach used by Stephen Russell's Spacewar in terms of openness and incompleteness. in Frederick Brooks' terminology. David (2003). as such. introducing the separation between producers and consumers as a potential opposition. Emphasizing the opportunity to become a 'game author' was a first step in separating the role of the producer from that of the consumer.2 Other narratives: construction sets and Doom The understanding of video game software either as a locked 'box' or as an open application of preexisting hardware is something that shifts and changes over the history of gamers' games. I argue that this distinction is historically embedded and. This is not a linear relationship. the community surrounding the video game began designing modifications of the game at an impressive pace. even to the extent of creating a new one. They were still 'cathedrals'. Here. the Pinball Construction Set was one of the best sellers of the year. In recent decades. which is still considered one of the most successful example of a video game construction set. when the newly founded Electronic Arts company released the Pinball Construction Set. Doom continued to be played and shared and the community of players provided contributions that moved far beyond those of the original game. As soon as the game engine was freely available. 1985).

concerned about the unexpected uses of its products. In this mutual influence. in 1997. pre-set discourses of production and consumption. indeed. Open engines were not only a feature or an added value to a video game. even as they patented the source code of their games. From this point. a development kit for its Playstation game console addressed to players who wanted to design and share their own games. superior actor – an original source detached from the multitude of users. the situation of the video game industry in the mid-'90s was not essentially 'new'. but can be applied to other issues in the video game culture. the availability of the means of production and the opposition against those who limited freedom of access. as the game developer became a hierarchical and. Homebrew recalled the idea of an illegal development of software. A deep. this change arrived when the video game industry was booming as both an economic and a cultural force. It is important to notice how these discourses established the game developer as an external figure. in considering the future development of games and consoles. Furthermore. corporate business. the figure of the active game consumer assumed a new characteristic. it was possible to label video games made with a low budget as 'independent'. we can better understand the 11 In the same year. 4 CONCLUSION From the late '90s. that narratives of production and consumption in the video game culture are not determined by technological advancements.11 The kind of structures that Stephen Russell had achieved with Spacewar were beginning to reappear. and this forced a change both in distribution and the relationship between customers and game publishers. to leave to the players legal control of their inventions was considered a new and original concession. Sony Computer Entertainment released NetYaroze.those of a growing industry where the two steps were considered distinct and separate. modifications to an existing video game software as 'modding'. not just in extending our understand of the current configuration of the video game market. Furthermore. often linked to a re-use of old and abandoned hardware in an unauthorized way. Modding evoked an imagery of a subversive 'Do-It-Yourself' approach to game software. and welcome their participation. discourses surrounding gamers' games changed. in conclusion. polarized only under specific discursive conditions and from certain perspectives. it was redefining pre-existing. Magnavox and Nutting Associates were never described as opposed to the gamers. with openness. I would like to maintain. From this perspective. From the release of Doom's engine. engaged game players began to surface. Video game software was no exception. emerging as issues in the discourses about software. the producer could either be opposed to the consumers or could host them. Game engines offered the possibility to transform a 'brown box' into an open project. Where active participation of gamers was initially described as a novelty. Moreover. It was not the first case of a development kit but it was the first to be fully supported by its developer with dedicated contests and competitions. Ruffino 9 . Meanwhile. The degree of hospitality of the 'original' developer towards user generated content became an issue for discussion and concern. Open engines were demanded by gamers in each new release. This perspective of the prosumer phenomenon is useful. Independent gaming established the image of a 'dependent'. historically-based understanding of how a culture represents itself and shapes its values and beliefs is not limited to the current scenario of the video game prosumer. a category of the active. it appears that representations of the video game culture and technological innovation are engaged in a mutual feedback loop. but became a just and fair concession from the development team to its audience of gamers. never allowing it to be available. Instead. productive. also hosted on the Official Playstation Magazine. but also. Instead. more generally. the distinction between producers and consumers is far from inherent to the industry or cultural form. As I have argued in this paper. and video games designed without the necessary license as 'homebrew'. defining it as an actor potentially opposed to the gamers in a process of distribution and fruition. the open source movement was becoming increasingly popular. but on a scale far wider than that of the original PDP-1 users.

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The unique characteristic is that this form of play requires technological artefacts in the form of computer. the idea of play and the legal-cultural traditions that have developed around games and sport have been largely excluded from the discourse about computer games. Scholars (Reynolds 2002) (Humphreys 2008) (Taylor 2002). online games have been framed in terms of intellectual property and contract. This framing has excluded many of the values that are increasingly at stake. We also make the positive proposal that one can draw upon the rich traditions of law and governance that have arisen around sport when looking at online game conflict resolution. In many respects online gaming is just an everyday activity – people get together and play. law and governance. which has served to exclude competing discourse about what is at stake (Reynolds 2009) particularly where conflicts arise. aggression and addiction among others (Williams 2003). KEYWORDS: Governance. Australia. Computer gaming has been subject to rhetorics of triviality. Regulation. Game. However these material characteristics and the socio-commercial environment in which this form of gaming has emerged has meant that online gaming has tended to be constructed (Law & Hassard 1999). In this paper we argue normatively that online games should be viewed as games by both the legal and policy institutions. consoles or phones and the Internet. UK. New Jersey.The Game Behind the Video Game: Business. Further we shall make the positive proposal that policymakers and industry alike should draw upon the structures of sports governance to establish a body to arbitrate in certain cases of conflict resolution. From the legal perspective. Law Sport. April 8-9. (Law 2001) (Cypher & Richardson 2006). and other bodies (Hogben 2008) have long challenged the legitimacy of this view of online games as mere contract and intellectual property and an increasing number of legal actions and court rulings are further problematizing it. some online gaming professionals (Koster 2000). We suggest that policy makers and the industry should consider establishing an Online Dispute Arbitration Board modelled legally. MMO 1 INTRODUCTION Online gaming has grown from its origins in the late 1970 as a niche hobby for a handful of people who had access to a DEC-10 mainframe computer (Bartle 2003) to being a global pastime that is becoming a part of everyday culture in many countries. and Society in the Gaming Industry New Brunswick. Adelaide. Melissa de Zwart Adelaide Law School The University of Adelaide. values which a growing number of court rulings and statute are re-establishing. In this paper we argue normatively that one should take cognizance of the fact that online games are ostensibly games. policy discourse and the law. USA. de Zwart 1 . 2011 Call of Duties: the arbitration of online game disputes Ren Reynolds the Virtual Policy Network London. online games have been framed as mere objects of contract and intellectual property. Instead. This is especially the case in the institutional construction of computer gaming generally in the popular media. ABSTRACT When conflicts between players and publishers have arisen. This we believe gives access to a rich cultural tradition that encompasses a nuanced relationship between practice. constitutionally and functionally along the lines of sports bodies such as the Court of Arbitration of Sport. Reynolds. which is the focus of much of this paper. outside of the standard frames of play or sport.

Virtual Items. some element of the state of affairs involves things such as actions in official game forums or ‘lobby’ areas. massively multiplayer online games e.e. While this emerging state of Reynolds. crosswords. 2. Halo. and Virtual Currency.g. 2. When disputes arise. several statutory changes specially addressing online gaming. griefing etc. We can characterise the conflicts that arise in on-line games in terms of the actors that it involves: player. The general trend of these judgment and statute has been to erode the standing of publishers’ default EULA/IP position. Farmville. traditional two-player or multiplayer games e. multi-billion dollar generating activity. generate misunderstandings and conflicts of various types between every possible permutation of the actors involved. rule disagreements. because online games are games. especially those that threaten legal action . de Zwart 2 .g. mandated arbitration and / or sanctions such as a suspension from a game or forum.g.g. publisher or third party e. global. Lastly. and the domain that the conflict (and resolution) occurs within: in-game. Publishers even make reference to this in debates on official forums. In addition to being ‘games played over the Internet’ there are a number of characteristics that are common to many of the games that fall into the classes listed above. This heightens the possibility of conflict and adds ‘sportsmanship’ i.2 Publishers’ default EULA/IP stance In conflicts that involve a publisher of an online game. and not all the attributes operate in the same way across any two games. Linden Research 2007).g. What we mean by in-game is a conflict that exists and is resolved within the context of the game itself e.2 ONLINE GAMES Gaming online is a diverse. to the run of the mill misunderstandings. chess or bingo. In some cases publishers’ defence of their EULA has been seriously challenged (Bragg v.g. and ‘social games’ e. Not all online games have all of these attributes. By in-context we mean situations where the conflict and / or the resolution sit within the general context of the game i. The types of games played online include: traditional single player games that can be played within a community e.e. The characteristics that are chiefly notable from a governance perspective are the existence of: Accounts / Characters / Avatars. group (guild / clan etc. arguments over loot drops within MMOs. like any group human activity. cross boundary conflicts are those that involve actions such as hacking and resolutions such as legal action. publishers have traditionally looked to the legal primacy of contract (generically termed End User Licence Agreement (EULA)) and intellectual property (IP) law as the single frame in which to determine the legal relations between themselves and players of the game and thus the source of conflict resolution (de Zwart 2010). single player PC and Console games that have a multi-player component e. and a number of other forms of regulatory action. individuals are often competing with each other and / or working to attain goals. regulatory body. in-context or cross boundary.they tend to involve a conflict over one or more of these attributes (Boyd & Green 2006).). a number of cases (both criminal and civil). that occur within online games. Furthermore. 3 CROSS-BOUNDARY CONFLICTS AND REGULATIONS Various forms of cross-boundary conflict have given rise to a rash of threats of legal action. generating conflict for competitive advantage. however some combination of these tends to exist in all online games. World of Warcraft.1 A typology of on-line game conflict Online games.g.

the Ministry of Commerce announced RMT related ‘rules’ in both 2009 and 2010. In 2002 Blacksnow Interactive (BSI) initiated an action in California (US) against Mythic Entertainment . Furthermore.meaning the defendants were acting within Korean law irrespective of the prevailing EULA. The case fell apart when the individuals behind BSI seemingly disappeared leaving their lawyers unpaid and it has was later alleged that BSI had established the first virtual sweatshop (Dibbell 2003). The situation is rather different in Asia – particularly in China and South Korea where judicial guidance and statute have started to define what is permissible in respect of RMT. Korea) in-game currency ‘Aden’ was brought before it. it also required ‘real-names’ to be used when registering for online games (People's Republic of China 2009). 3. users of a game selling virtual items. The 2010 rules banned minors from games where hard currency can be exchanged for virtual currency. In effect this makes it possible for individual players to sell things earned from games but prevents so-called ‘gold farmers’ from running their businesses. This is a constant activity in the publishers’ struggle with so-called ‘gold farmers’ and is seldom challenged. One of the first actions that was threatened on behalf of users in respect of RMT related bans was the 2001 Gravity Spot threat of a US based class action against Sony and Verant for closing down auctions of virtual items on sites such as eBay. extortion or duping (Hogben 2008). This may be illustrated by examining a number of incidents and related statutes and regulations from a range of jurisdictions. in a general sense. Reynolds.e.2 Theft This first set of incidents and related cases arises where individuals (or groups) take virtual items from a player account.1 RMT – Real Money Transactions Much of the debate about the status of virtual items has centred on so-called Real Money Transactions ((RMT) i. de Zwart 3 . whatever the EULA might state. South Korean law makes it legal for an individual (not commercial online exchanges) to sell virtual items derived from ‘games of skill’ provided that such virtual items were gained through ‘normal play’ and the earnings were declared and within prescribed income limits. whereas those defending such actions (or seeking to recover their in-game assets) have argued along the lines that they accumulate rights to ‘virtual property’ through their labour. noting that ‘constant efforts to get as much Aden as possible can also be regarded as a game that requires much time and effort’. In China. In summary. The Supreme Court of South Korea clarified the law in relation to MMOs in 2010 when a case of RMT trading of Lineage (NCSoft. This case included the issue of Mythic banning accounts and used the concept of unfair business practices to argue against it. in online games and a greater uncertainty as to their legal status. This set of acts falls within the general categories of hacking. goods or services. The 2009 rule prevented virtual currency being traded for out of game currency.affairs is recognizing more rights in players it is also problematic as it indicates both a greater value. South Korea introduced the Game Industry Protection Act that was subsequently amended in 2007. 3. In 2006. no evidence was provided to demonstrate that any of the currency had been gained through abnormal play .publishers of Dark Age of Camelot. While this seemed not to get anywhere beyond a web page and a few headlines (the web site no longer exists) it did strike the tone taken up by later user complaints and actions. gain money from a player for virtual items through deception or gain personal and credit card details from individuals through deception centred on virtual items. Here the Supreme Court overturned the lower court’s view that MMOs are a game of chance. money or accounts for hard currency). Generally publishers have argued that RMT is in breach of contract. Publishers act on the basis of the EULA when they ban players for selling virtual items.

Another player reported this to the company and Ms Andrews was sanctioned under Blizzard’s Terms of Use section on “Harassment – Sexual Orientation”. The defendants were sentenced with 180 hours of community service and 'youth detention’ for four weeks with a probationary period of two years. 3. Ltd. Also in The Netherlands in 2007 a 13 year-old player of the online game RuneScape (Jagex Games Studio. which the judgment termed ‘the player’s property’. de Zwart 4 . UK) was kicked and threatened with a knife by a 14 year old and a 15 year old until he transferred virtual items to one of their accounts.Typically when many of these cases have been reported in western media they have been headlined ‘player convicted of virtual theft’. noting that the virtual items qualified as goods under Dutch law. The person had hacked into accounts and transferred items out of them – the plaintiff was charged with crimes related to Computer Intrusion and Destruction (because the items were effectively destroyed from the hacked accounts) and also theft. in Europe. As the Dutch authorities said ‘they were also charged with theft and receiving stolen virtual goods because they still represent a value’ [authors translation based on Google translation]. This year in the UK an individual was arrested and admitted to hacking into the accounts of online game provider Zynga. In China in 2003 Li Hongchen brought a case against Beijing Arctic Ice Technology Co. While the serial nature of Mr Estavillo’s litigation following this action has caused the press to raise questions about his motives. Following a public outcry (Calleja & et al 2006) and the threat of a lawsuit Blizzard backed down and apologised to Ms Andrews for the incident. At the time of writing the plaintiff awaits sentencing. transferring around 400 billion virtual poker chips into his own account. brought an action against Sony with respect to Sony banning him from the PlayStation 3 Network (PSN) for use of bad language within the game ‘Resistance’. In 2009. theft of money in the form of the Reynolds. He then began selling the poker chips on the black market at a price much lower than the cited $12 million face value (Anon 2001). In this first case. who is a serial litigant against computer game platform providers. From a player perspective this has been like arresting someone for breaking your front door but not for anything they did in your house. computer fraud or similar. (Estavillo v Sony Computer Entertainment America 2009) Erik Estavillo. In 2008 a Dutch court found the both defendants guilty of robbery under Article 310 of the Dutch Criminal Code. The most well known of these actions is the so-called Blizzard GLBT incident that occurred in 2006 when player Sara Andrews advertised in in-game open chat for new members of a GLBT friendly guild. all brought by users. the nature and fact of the cases is very interesting.3 Other cross boundary disputes The cases summarised above all focus on virtual items but while they offer quite different legal views of the nature of virtual items they still put notions of property (or its rejection) at the centre of the rhetorical stage. Estavillo made claims on three grounds: restriction of free speech. This case concerned a player whose account was hacked and virtual items transferred to another account. There are however exceptions to this approach in both Asia and. domestic courts have usually dealt with these cases on the basis of laws relating to unauthorised access to a computer. The publisher refused to provide the details of the other account holder or re-instate the items. In 2007 a 17 year old was arrested in The Netherlands for stealing virtual items in Habbo Hotel. where such notions are either incidental or irrelevant. The suspect was not convicted. Despite these headlines. There is another set of actions. Beijing's Chaoyang District People's Court ruled that the publisher had a duty of care to the player and was ordered to restore the items. more recently. and was convicted of 4 counts of Converting Criminal Property and 1 count of Unauthorized Access (under the English Computer Misuse Act (Great Britian 1990)).

This is complicated further by the international nature of online games particularly where people from a range of countries are playing in the same online space. depending on the context in which it is viewed – so we would expect a similar plurality with things as complex as online games and the various practices associated with them. In particular. who had visual and other learning difficulties. a piece of fuel. This would have a direct and no doubt chilling impact on the online game industry. Sony is merely providing a robust commercial product. but also the way that they function within the Reynolds. To return to our initial assertions.. where law and regulation does intersect with online games it must take into account not only the values attributed to virtual items by virtue of the commercial and ludic relation to them that players have. 4 DISCUSSION OF TRENDS The events summarised above provide a range of interpretations of what is at stake when a crossborder conflict occurs in respect of an online game.. The meaning and value attributed to various aspects of online games vary depending on the nature of the conflict. an instrument etc. It is unlikely that domestic consumer protection authorities would allow this state of affairs to continue indefinitely. and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State. the plaintiff. But the situation where virtual credits such as Xbox points (Microsoft) are bought for hard currency and immediately contractually defined as something that a user has almost no rights to seems untenable. The claim based on the fact that inability to fully participate in the games limited the plaintiff's ability to participate in gaming conventions organised by Sony was also dismissed. A policy maker or regulator might view this state of affairs and conclude that virtual items and especially virtual currency are so akin to e-money that they demand an equal level of protection and due diligence on behalf of the publisher.virtual currency held in the PlayStation Network Wallet Fund (which was confiscated when he was banned from PSN) and inconsistent application of governance and game rules e. Opinions range on whether the underlying merits of the case would be successful if a slightly different legal approach were adopted (Lastowka 2010a). The judge denied Estavillo’s claim stating that: ‘Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users. In providing this electronic space that users can voluntarily choose to entertain themselves with.' Lastly in 2010 Stern brought an action against Sony (Stern v Sony Corporation of America 2010) claiming that they should make reasonable modifications to their games to accommodate players with disabilities. After all a humble stick can be variously: a weapon. the theft and Chinese duty of care cases discussed above. under 18s regularly playing 17+ games. We would expect this. de Zwart 5 . required Sony to provide or enable mods which would provide visual and auditory cues. these items can be stolen and their value should be protected. as publishers would have to take a large step closer to being banks.these "spaces" serve solely to enrich the entertainment services on Sony's private network. all suggest that virtual items have a value that is not merely that of the publishers’ intellectual property. The judge dismissed the claim on the basis that the relevant provisions of the Americans With Disabilities Act (ADA) apply only to physical places or goods or services connected to physical places. the fact that online games are games. What is more problematic are the conflicting and potentially inconsistent views of how they should be treated. For example. That is. The case essentially failed on the basis that it was brought under a ‘public accommodation’ clause of the ADA and online games were held not to fall under this part of the Act. and thus virtual items are game objects adds yet another level of complication.g. While the authors view games as a social good this could prove to be increasingly difficult for publishers to manage should there be an increase in conflicts brought before the courts – which we predict will be the case.

Infractions of rules. and a court can overrule a governing body. credit card fraud. These are governed by the physical nature of the sport e. clubs and other bodies. despite the overwhelming number of witnesses and records of the events (Lastowka 2010b). Central to this relationship is the fact that when stripped of their context. de Zwart 6 . a court does not ask – did the rugby player hit the other player (as of course they did. For example while a space ship in the game EvE Online (CCP. When cases do go to court they are judged contextually i.1 Assumptions and a way forward Given the trends indicated above we suggest that a number of things are likely to occur in the short term: Increased theft of virtual items. even those that might otherwise be considered criminal. Reynolds. In practice. However we also believe that many of the issues that may arise have a close analogy with sport and that there is a rich tradition of sports law and regulation whose underlying principles and possibly analogous governance structures may be applied to online gaming. then in the last resort – law. acts that occur in many sports would be seen as curious at best and illegal at worse. What we wish to highlight in the following discussion is the role and recognition given to bodies that sit between participants and national laws. the power to exercise practical sanctions. Iceland) might have an apparent value of many thousands of euro – the rules and practice of the game make it clear that that any ship might be irretrievably blow up or stolen via subterfuge at any time – and any form of regulation should protect not put into jeopardy this state of affairs (de Zwart 2009). especially the more physical ones such as boxing or rugby. 5 THE GOVERNANCE OF SPORT The relationship between sport and law is complex.g. Increased third party sales of virtual items and related crimes e.g. on the ground officials of Figure 1: Governance of Sport some type e. they do all the time) but rather did they do so with intent and in a manner that is outside what would be reasonably expected given the context and rules of the sport.g. More players will seek legal remedies for publisher acts that they do not agree with.g. dynamic way. but it does so in a complex. sanction and hierarchal standing e. Policy makers and regulators will increasingly focus on the virtual items and currency – probably creating regulations that inadvertently harm at least one sector of the industry. Rather.e. are regularly left to non-state actors who have the requisite governance and normative power e. the shape of the ball. a governing body can overrule and official. Contact sports. However all of this occurs within an eco-system of governance made up of a set of inter-related actors each of which have relevantly well understood domains of consideration. things are more complex than this as there may be disputes regarding jurisdiction. However sports people are not regularly arrested for their acts. 4. resulting in injury and sometimes death. thereby also harming citizens that enjoy participating in that sector. are made up of a series of acts that in any other context would be considered as assault. the law accommodates the cultural values embodied within sport. umpires and referees.g. and.context of a given game. Sports by their nature have rules. More judgements will be found in favour of players overturning EULA and copyright primacy.

Governing bodies tend to have direct contractual relationships with the bodies above and beneath them in the governance hierarchy. That is. Today governing bodies tend to be companies limited by guarantee. the role of rules in generation of value and the adherence to stated rules in the resolution of conflict are also given primacy. All of this appears to have direct application to online gaming. The proposal here is not incompatible with this. team. 6 APPLYING SPORTS GOVERNANCE TO ONLINE GAMES We believe that the lessons of sports governance are applicable to online games as in both cases the governance structures relate to and act upon a state of affairs whose value and meaning are defined by a practice that is outside of the ordinary and would be treated differently by law if it were not for its context. Reynolds. The purpose of these bodies is to define the rules of a sport. In cases of legal dispute courts typically infer contractual relations between players and governing bodies through conduct on both sides (there are some exceptions to this (Hartley 2009). a punch thrown in a boxing match is akin to the value an individual places on virtual item held in an online game account: one is-and-is-not just a punch the other is-and-is-not just a pile of data. 6. Court of Arbitration of Sport. the player may appeal this through the national governing body or against the national governing body via an international governing body.1 Sports Governing Bodies Typically in sports there is a hierarchy of governance: event officials. and that courts recognise the regulatory power of these bodies with understood and negotiated limits. de Zwart 7 . Historically sports governing bodies were formed by practitioners and / or ex-practitioners of a given sport and were loosely defined associations of peers. National law may be involved in cases where the infraction might be considered criminal and / or if the player takes action again a governing body for misapplication of rules (typically brought under breach of contract (James 2010). For example a player may face an in-game sanction for breaking a rule.1 Online Dispute Arbitration Board: ODAB Therefore. For the purposes of this paper we will title the putative governance body the: Online Dispute Arbitration Board. international governing body. Often players either have no written contract (in amateur sport) or a contract of employment with their club (in professional sport) – hence no direct contractual relationship with a governing body. Appeals against decisions do not simply flow up a governance hierarchy. An alternative arrangement is an Ombudsman (Online Dispute Ombudsman ODO) system that could exist on a publisher-by-publisher basis. recognize how the limits of those values are negotiated. to apply them and to regulate their application. often leaving those closest to the sport or given event precedence over certain matters. What’s more. henceforth ODAB. regional governing body. following this a national governing body might suspend that player for a period of time. Further it should be noted that sports in general have constructed normative governance structures that resolve conflicts and apply sanctions as a layer between participants and national law. 5. league. The Court of Arbitration of Sport for example tends not to review in-game decisions of sports officials (James 2010). value and harms. in a sense. as each level tends to define its scope of jurisdiction. we argue that there is a possible role for a governance body in online games. however we feel that a federated body is simply less costly to implement considering logistics of multiple terms of reference etc. and.What is significant for our purposes here is that all parties recognize both the centrality of game derived meaning. national governing body.

g. Figure 2: Online dispute resolution Social networks have been included in the definition above as it seems that many of the same issues and disputes and modes of resolution that apply to in-game items. associations or other online game / social network related bodies. Who would serve on it? ODAB would be made up of both publisher and players. we believe that ODAB would be of most benefit sitting across a set of online games that accept it’s governance. Publisher error e.The ODAB sets in operation Panels which have the task of providing for the resolution by arbitration and/or mediation of disputes arising within the field of online games and social networks in conformity with its Procedural Rules.g. The responsibilities of such Panels are. The bodies would fund ODAB through fees related to the number of users they have – the system of charges needs to be detailed due to variations in business models e. the most useful role for ODAB would be to sit between players. EU and Australasia. Removal of items through means outside the rules of the game e. (2) to resolve through the appeals arbitration procedure disputes concerning the decisions of publishers. What’s more it seems to us that the issues that arise while having some online game specifics tend to be of a generic nature relating to the application of the publisher’s own rules. nerfing. It is envisaged the operational scope of ODAB would likely include: Appeals against bans from games / social networks. How would it be constituted? ODAB would be a company limited by guarantee / not for profit legally constituted in the US. Why is this better than the current arrangements? If the assumptions above relating to the number of conflicts over online games that go to court are correct. inter alia: (1) to resolve the disputes that are referred to them through ordinary arbitration.Where in the hierarchy would the body sit? Given that the issues that are starting to arise tend to be between users and publishers of online games. then the benefits already found in sport governance should accrue to online games.g. accidental deletion. A constitution would be required to determine what individuals held what roles for what periods etc. the ODAB attends to the constitution of Panels and the smooth running of the proceedings. The scope of ODAB would exclude: Changes to game mechanics e. Hence. insofar as the statutes or regulations of the said online game / social network bodies or a specific agreement so provide . User vs User disputes. What would be its scope of action? Applying the language of the Court of Arbitration of Sport the Mission of ODAB might be defined as: Mission . while we see an argument for a governance layer made up of publisher / game specific ombudsmen (and do not rule this out as an additional option). apply equally to access to the network itself. these are: Reynolds. and. hacking.g. To this end.g. de Zwart 8 . User vs Group e. What would be its relationship with other actors? ODAB would have contractual relationships with either individual publisher and / or trade bodies. freemium where there is a non-lineal relationship between users and revenue. Exclusion from virtual items be this through: Ban. It places the necessary infrastructure at the disposal of the parties. publishers and national / international law. Guild disputes. especially those in games based within social networks.

as with sports.Arbitration tends to be cheaper than law.Assuming that ODAB can attract the right mix of individuals it should provide a better process than the courts. More broadly the lack of self-identification of online publishers is seen as a barrier to the creation of an arbitration body. Better . Regulatory burden . As we stated in the assumptions above we feel that the number of cases will increase but we concede that it is difficult to know when the best time to set up an arbitration body would be and that it may initially be financially inefficient.1 Objections Insufficient volume – currently there is a low volume of disputes that are taken to court hence costs of any arbitration body are likely to outweigh any savings from the few disputes it might hear. the existence of an arbitration body does not preclude the option of legal action.g. the same will happen with an arbitration board with players simply wanting a cheap way to grief publishers. This is because. It will be ‘griefed’ – almost all systems of online game norming are exploited by some players (Foo & Koivisto 2004). an independent arbitration board may give states confidence that citizens will be sufficiently protected as customers of online games such that they do not need to pass the legislation and create statutory bodies noted above. This is particularly important as online games tend to be international and states tend to act first on a heterogeneous national basis and then take some years to come to forms of international consensus – all of which is time consuming and costly. Regulatory peril . This is a challenge for the body especially as funding is likely to come from publishers. as we see in sport. hence will understand the issues at stake for all the actors. some publishers of online games are members of general publishing associations such as UKIP in the UK and ESA in the US. There is no publishers’ association – the online game industry has no recognised body hence it is unlikely that publishers will recognize the arbitration board. Further.Cheaper . Thus the constitution of the body that publisher agreed to must ensure representation of players either through other bodies or non-publisher individuals. at least in part. ODAB will have individuals that understand the details and culture of online games. The scope of the arbitration board must be defined such to filter out griefing. Here again the sports model is apt as states tend to regulate by law the rules of individual sports.A governing body that has normative power on players and publishers relieves the burden on states. The peril for publishers is that any such action runs the risk of having serious intended or unintended consequence on the industry as it is hard to pass laws that capture the nuance and dynamic of individual games. 6. 7 CONCLUSION The rise in popularity of online games and the social function that they and in-game virtual objects are accruing is changing the values and meaning given to those objects. from enacting legislation and creating statutory bodies to deal with the issues that begin to arise in greater numbers from online games. for example a rule would be that publisher’s dispute systems are fully exhausted before the arbitration body is evoked.From a publisher’s perspective. It is not peer based / lack of player representation – it is likely that the body will be made up of publishers only hence will be bias and fail due to lack of credibility.1. Courts are recognizing this in Reynolds. Initially the arbitration board will have to work directly with publishers and existing associations e. de Zwart 9 . at least in the short term. Even when quasi-judicial bodies are established these tend to be less costly than legal actions.

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C. 2008 WL 515858 at 8). magazines.P. books. 2003)).C. But uncertainty remains about how much flexibility game producers have to incorporate individuals into games without their consent. 2007). 2007. Code § 3344(d). (Feb.. Chicago Illinois. meaning that the uncertainty in this area of the law should be settled by treating games in the same way as more traditional mediums of expression. Inc. Distribution and Marketing. v. Distribution and Marketing. Generally speaking. Merchandising Ford/Liebler 1 .B. Inc. C. (Petition for Writ of Certiorari. C. Some commentators think C. April 8-9.. the majority rule in the United States is that using someone’s name or likeness (or “identity”) in advertising without that person’s consent is a violation of the person’s right of privacy or. the dominant approach of the courts made games more vulnerable to right of publicity claims than more traditional mediums of expression. books. 071099). Winter v. 22. 69 P. USA.B. Right of Publicity. 60604 ABSTRACT The right of publicity protects individuals from the unauthorized commercial exploitation of their identities. First Amendment INTRODUCTION On October 16.3d 818 (8th Cir.B. Should games be judged differently than other expressive mediums when it comes to this right? For approximately four decades. Regulation. films. 505 F.3d 473 (Cal. Plymouth Court. McCarthy 2011: § 7:76.B.C. Distribution and Marketing. and Society in the Gaming Industry New Brunswick. and television programs. such as newspapers. (ALI 1995: § 47 cmt d. We argue that the value of free expression outweighs the value of licensing. 22. 2011 Games are Not Coffee Mugs: Games and the Right of Publicity William K. 07-1099). 2008) (No. Ford The John Marshall Law School 315 S.C. As a matter of state law. Civ. using the more modern terminology.B. but courts usually resist finding infringement or find the First Amendment provides a defense. the United States Court of Appeals for the Eighth Circuit upset the “settled order of things” when it comes to the right of publicity and games. television programs. 2008) (No. due to the interest of preventing conflicts with the First Amendment. magazines. Commentators and courts are resisting a further weakening of the right of publicity beyond what C. (Feb. Cal.The Game Behind the Video Game: Business. 2008 WL 515858 at 8). upset the view that “licensing [is] the settled order of things” when it comes to games. 60604 Raizel Liebler The John Marshall Law School 315 S. New Jersey. or films. (ALI 1995: § 47 cmt c). Chicago Illinois. Major League Baseball Advanced Media v. L.C.. Law. accomplished. C. no consent is required to use someone’s name or likeness for news or entertainment purposes in newspapers. Inc. a person’s right of publicity. Major League Baseball Advanced Media v. Major League Baseball Advanced Media. DC Comics. Some states’ laws potentially make fictional works infringing for incorporating the identity of a real individual. Plymouth Court. (Petition for Writ of Certiorari. KEYWORDS: Games. itself went too far.

2007). images. What about games? Wittgenstein famously wondered what counts as a game. but given the courts’ reluctance to curb political speech and by analogy to politically themed posters. are more commercially exploitive than informational or expressive. Ct.B.3d 797. According to the defendant and numerous amici.Y. 21 P. a trivia question in Trivial Pursuit.uses occupy a somewhat difficult middle ground between advertising uses and traditional expressive uses. but concluding there is not. 809-810 (Cal.. the Eighth Circuit found that the unlicensed use of Major League Baseball players’ names in fantasy baseball games violated Missouri’s right of publicity.C. likeness.3d 818 (8th Cir. game publishers needed permission to use someone’s name or likeness in a game. which is another way of saying the use is incidental. The classic rule is wrong.g. 31 states Some sources very casually link video games to merchandise. It’s not clear to us why this distinction makes sense. which is usually more costly than one without a celebrity likeness. the courts would treat games like a coffee mug. or at least overbroad. in C. images. (Wittgenstein 1997: § 66). like coffee mugs. or other indicia of identity for purposes of trade[. each of which ruled against the game publisher defendants who used the plaintiffs’ identities without permission. 59 Misc. the “sum and substance” of the expressive portion of the work is the celebrity likeness. (Pollack (2011)). Most others seem to agree with Suits.B. DISCUSSION In the leading treatise on the topic. the safest prediction was that other than incidental uses (e. However. the law was settled in favor of individuals controlling their appearances in games because games. Less famously. the Eighth Circuit got it wrong. such as books and films. Inc.” (Suits 2005: 48-49). at 823824). 505 F. 2001)). or more like merchandise. and/or music.3 Therefore.]” (ALI 1995: § 46). and music are combined with a rule-governed process to create games. many of these games communicate information and express ideas and emotion. Distribution and Marketing and Marketing. such as coffee mugs and posters?1 As Ian Bogost (2007) emphasizes. v. The reason for someone buying the product. Like newspapers. According to the “settled” view. using only means permitted by rules. where the rules prohibit more efficient in favour of less efficient means. They incorporate words. Sup. Karcher (2007: 570) argues Trivial Pursuit is less of a concern than fantasy baseball apparently because fantasy baseball is about present on-field performances and Trivial Pursuit is about the past. Major League Baseball Advanced Media. 2 1 Ford/Liebler 2 . but consent is usually required to use someone’s identity on a coffee mug or other item of merchandise like a poster or keychain. (Comedy III Prods v. (Paulsen v.. such that one or more individual’s name or likeness could feasibly be incorporated into it.]” (McCarthy 2011: § 1:3). then what? Are they more like expressive works. but also that Missouri law conflicted with the First Amendment. until the Eighth Circuit’s decision in C. and films. Karcher also argues Trivial Pursuit takes less commercial advantage of individuals’ identities than fantasy baseball. Bernard Suits disagreed: “to play a game is to engage in activity directed towards bringing about a specific state of affairs. for there is none. 3 We are not aware of any litigation involving a politically-themed game. We disagree. the addition of processes need not undermine the expressive capacity of a work but can contribute to it. (Id. The Restatement 3d Unfair Competition defines it as the right to prevent the appropriation of “the commercial value of a person’s identity by using without consent the person’s name. at least about the rules. 1968)).. The games of interest to us are a subset of the games within Suits’ definition: commercial games sold in some physical or electronic form. It suggests trivia games should not use questions tied to closely to the present. McCarthy describes the right of publicity as “a right inherent to everyone to control the commercial use of identity and persona[. is presumably the presence of the likeness rather than the mug or poster maker’s expressive contribution. But when words. 2d 444 (N. books. and where the rules are accepted just because they make possible such activity. a right of publicity claim targeting a politicallythemed game would likely fail. (Galloway 2006: 1). This conclusion was reinforced by three cases from the late 1960s and early 1970s. Personality Posters.2 or uses of politicians’ names or likenesses in politically themed games). According to McCarthy’s most recent count. Nevertheless. Where a literal celebrity likeness appears on a coffee mug or in a poster. Saderup. asking his readers to “look and see whether there is something in common to all” games.C.

5 Despite this language. 22. Civ. v.D. (McCarthy 2011: §§ 11:8. (Donovan v. 11:12. Uhlaender v. Inc.. Dist. and district court decisions are not binding in subsequent cases. unimportant. Hendrixlicensing. at *15-16 (S. the longest defined period in the United States. as in New York. 894 F. (Ind. LEXIS 110204.S. Dist.2d 579.. they will not protect against a right of publicity claim.. (15 U. 316 F. The fact that Major Taylor died elsewhere is. 09-275. A recent decision held that the Washington provision ignored a decedent’s state of domicile unconstitutional.. Illinois substantive law should apply. whether an individual’s right of publicity passes through his or her estate depends on whether the individual’s state of citizenship recognizes a post-mortem right of publicity. For deceased individuals.S. No. 2006 U. Bishop. Ind. 585 (2d Cir. 1977).e. The starting point for the present discussion is what qualifies as a “commercial use” or a “use for purposes of trade. Bilal v. Feb. § 1125(a)(1)(A). does not recognize a post-mortem right of publicity. 2011 U. Inc. 1953)). Super. Ford/Liebler 3 4 . Code 32-36-1-16(6)).2d 866 (2d Cir. § 1125(a)(1)). 2010 U. Restatement 3d of Unfair Competition § 46 cmt b). No. While federal law does not recognize a right of publicity. *14 (S. Nimmer 1954. Inc. Only two states have rejected the right of publicity as a matter of common law. 20.J. LEXIS 112072.D. at *41 n.13 (9th Cir.C.L. . 2. Wash.5 Moreover. 11:15. 2010) (“Bishop claims that because Major Taylor died in Illinois and was apparently domiciled there at the time of his death. Dist.”). 556 F. § 50. § 50. referring to games as examples of merchandising uses with citations to the three classic game cases. therefore. (McCarthy 2011: § 6:3). 72 (N. 09-285Z. Civ. Dist. Oct.1970). Supp.S. The right of publicity is a property right. one judge of the United States District Court for the Southern District of Indiana thought sixteen legendary Major League Baseball players’ state of domicile at death defines their rights of publicity. 52 (W. (CMG Worldwide.N. LEXIS. or citizenship” (Ind.” Section 47 of the Restatement defines uses for purposes of trade as advertising uses or uses “on merchandise. and the Commerce Clause. No. (Starbuck v. In commenting on the merchandise category. Schonhorn Enterprises. Palmer v. R. 2008 U. Prosser 1960). Inc. Dist. (N. Disclaimers may protect against a successful Lanham Act claim (Food Scis. (ALI 1995: § 47 cmt b).com. 2006)). . 14. (15 U. . 202 F.S. 08-761. residence. R.C. Without discussing the statutory language. When the identity of an individual is used without permission in connection with some good or service. 1277 (D. like Washington’s. Lehman. the protection of the Indiana statute lasts 100 years. LEXIS 85497. Oct.J. Ltd. Minn.” (ALI 1995: § 47). but both of these states have statutory provisions. Code 32-36-1-8(a)). The critical difference between a right of publicity claim and a Lanham Act claim is that the Lanham Act requires a likelihood of consumer confusion. a variation due to the fact that the right of publicity’s origin lies in a broader right of privacy. The state of Washington was not a party to the litigation. baseball cards. at *25-27 (D. for example. 457 n. Nebraska and New York. Another decision of the same district court explicitly held that the state of domicile at the time of death of a famous American cyclist. 96 N. the right of publicity is labelled a right of privacy. New York.Y. LEXIS 93152.D. Indiana’s statute.have recognized the right of publicity either by statute or common law or both.D. 11:16).4 applies to acts occurring within the state “regardless of a personality’s domicile. according to the Statute.). Warren & Brandeis 1890.. 2010)). v. 1990)). Sometimes. at *16-17 (W. it does recognize an analogous unfair competition claim under the Lanham Act. Corp. decisions are split on the meaning. Wash. was irrelevant under the statute.S. (N.. v. 04-2507. Oct. v. Ct. 2010 U. L. No. the Lanham Act requires a likelihood that consumers will be confused about whether the individual approved of the use. No. 8. 21. the Full Faith and Credit Clause. Pirone v.C.J.S. 09-1798. Indiana’s statute deserves special mention. the Restatement specifically mentions posters. violating Due Process Clause. i. Marshall “Major” Taylor. Code 32-36-1-1-(a)) and can pass by operation of a state’s laws of intestate succession “regardless of whether the state recognizes the property rights set forth” in the statute (Ind. (Experience Hendrix. Topps Chewing Gum. Inc. The judicial opinion that coined the term “right of publicity” was about merchandise. 2008) (“Topps has not established that any of the Legends were domiciled in Indiana at the time of each of their respective deaths. courts generally apply the law of the deceased individual’s citizenship at the time of death to determine whether the individual has a postmortem right of publicity.Y. Super. 42. and “other memorabilia” as examples of merchandising uses. 1967).2d 450. Nagler. buttons. MacMillan. The Reporter’s Notes to this section are more explicit. (Haelan Laboratories. 2011)). Henricksen. however. San Francisco.S. Ind. Oct. Upper Deck Co.

May Stores Shopping Centers. the celebrity of the moment would quickly be used up. Urban Systems. but only one of the three is a binding authority and then only in New York. v. 227-237 (2005)).J. Inc. Even if there is a small incentive effect. TMF Tool Co. 215.C.J.2d 544. 967 (8th Cir. v. 664-665 (N.I. including monetary benefits. Mazza v. of North America. Ct. or services” (§ 765 ILCS 1075/5). (In re Kelvin Manbodh Asbestos Litig.E. as generally understood and applied in the United States. Major League Baseball Players Ass’n. Inc. The justification for the right of publicity is the subject of substantial controversy. Illinois’ statute refers to an individual’s right to control uses for “commercial purposes” (765 ILCS 1075/10). Insurance Co. Posner 1981: 258). Raubar.6 and as a state law doctrine.3 (N.J.” (Cal.2d 1185. Decisions of federal district courts are not binding on other courts or even within the same district court. 345 N. The same rule applies in New Jersey.2d 788.” Whether a provision adopted in 1957 makes a restatement published in 1995 binding is an interesting question. 353. Inc. Ford/Liebler 4 6 . 1990)). is binding state-wide. Super. to celebrity status separate from the revenue tied to the right of publicity.Y. 130. 51). (People v. the expressive quality of the gaming medium is much more substantial than it was when these three cases were decided.). (ALI 1995: § 46 cmt c). The dominant arguments are tied to either an economic analysis or a Lockean natural rights analysis. coffee mugs. Proponents of treating games as merchandise were perhaps too quick to declare the matter settled. §§ 50. Inc. (Cardtoons. Super. Whether it makes sense to do so requires some consideration of the reasons for the right of publicity. 72 N. but this argument is not widely accepted. explicitly deals with games. v. The lack of specificity in these and other state statutes leaves the question open for the courts as to whether games qualify as commercial uses or uses for purposes of trade. An economic argument works much better for advertising. in the number of professional athletes. Sup. L. The three classic cases provided an initial answer decades ago. Super.2d 144 (Sup. (Raubar v.C. California’s statutory right of publicity provisions refer to uses of someone’s identity “on or in products.3d 959. In terms of advertising value. Div. 840 N. 519 (N.2d 123. Div. (Cardtoons. merchandise.D. Grady (1994: 119-120) extends this same reasoning to merchandising uses. Ct.Y. 2009). While highly persuasive. 1996). New York’s statutes prohibit uses “for purposes of trade” without explicitly referencing merchandise. v.Ct. and to the extent not so expressed. (N. shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply. Hartz Mountain-Free Zone Center. would drive the celebrity’s advertising value to zero. 358 n. the Restatement is usually not binding. Div. 102 A. 1996).Y. worrying that overexposure to celebrities on t-shirts.Y.1(a)(1)). Law. Ch. Code § 4 (2011): “The rules of the common law. posters. 95 F. Sup. goods.Y. Overuse of a celebrity in advertising. Storms. 62 (N. aff’d as modified 42 A. Am. 72 Misc. Muller. Civ. such as 1 V. Sup.S. as expressed in the restatements of the law approved by the American Law Institute. in the fullness of time. Ferro Trucking Co. Civ. 3344. Ferraro v. or goods.2d 663. 162 N. the social benefits tied to the cheaper exploitation of celebrity identities likely outweigh a small increase in the number of celebrities.. and other similar uses will similarly dissipate the value of a There are some exceptions.J. R. 1977). Mountain View Coach Lines. (ALI 1995: § 47 Reporter’s Notes).D. 913 F. v. Code §§ 3344(a). 1998) (collecting cases). Major League Baseball Players Ass’n. which is defined in part to include uses “on or in connection with the offering for sale or sale of a product. 47 V. The New York appellate decision in Rosemont Enterprises. The Restatement concedes that the arguments for protecting the right of publicity are weaker than the arguments for protecting other kinds of intellectual property. No state statute. the status of games could vary from state to state. 7 Only the New York decision was affirmed by an appellate court. Turner. Series.3d 959. Div. more competitors offering fantasy baseball to consumers without passing on the cost of licensing fees is preferable to a tiny increase. however.J. however. in the absence of local laws to the contrary. Eagle Design Build Studio.J. L. 127 (N. 2005).S. Grady: 110-112 (1994)). 136 (N..I. 149 N. 1191 (7th Cir. Super. Ch. 340 N. 588 F. 975 (10th Cir. 60.7 Moreover. (Southeastern Stud & Components. 1978). v. Ct.J. 1962). Sup. In other words. Separate from the value of endorsements—and false endorsements are already prohibited by the Lanham Act—another value of using a celebrity in an advertisement is to grab people’s attention. 95 F.J. There are many benefits. Inc. merchandise. One economic argument is that the right of publicity creates incentives to create an identity. Ct.3d 963. a probable consequence if no consent is required. App.and Rosemont Enterprises. v.2d 17 (1973). 974 (10th Cir. 315 N. 1984).

but courts will not restrict tabloid publishers from providing extensive or even excessive coverage of celebrities because the coverage is so clearly protected speech. 2001)). 609-610 (Mass. Kendrick.celebrity’s name or likeness. But other interests are at stake as well. there was a threat of dissipation and rational actors managing the commercial uses of their identities acted to reduce the supply of merchandise.3d 572 (7th Cir. one equivalent to the more traditional forms of expression (Video Software Dealers Ass’n v. Int’l News Serv. Crowell. 781. Reed v. 98 (Tenn. This recommends caution in enforcing publicity rights against game publishers. and it is difficult to think of any examples where extensive celebrity merchandising began to threaten the value of the celebrity’s image. at 1282). however. including the protection of speech. As a related point. LEXIS 1496. Schwarzenegger. Although many commentators rely on an economic analysis. Minn. Rock against Racism. 556 F. State ex rel.2d 89. 1983)). Ct. Many games are expressive in ways that implicate First Amendment concerns. a Lockean natural rights analysis is also clearly relevant in the recognition of the right of publicity. suggesting both the economic and Lockean justifications contribute something to the analysis of the right of publicity. courts should hesitate to ignore widely held beliefs even if it is difficult to find an economic rationale in support of them. which fits the literal scope of the text. Wash. free riding on the work of celebrities who have invested in their identities. many courts state that an individual should not reap where they have not sown by. 248 U. The Supreme Court has held that in determining whether conduct is sufficiently communicative to raise First Amendment concerns. The famous 1976 Farrah Fawcett poster may be an example. as Grady (1994: 108-109) notes. 418 U. 215. 450 N. (Bennetts 2009). 2009). either written or spoken. 1987)). Early cases involving video games rejected First Amendment protection for them on the ground that they failed to communicate or express ideas (Marshfield Family Skateland. Game historians assume the earliest games available in the United States were imported from England. Marshfield. Grady offers no plausible examples of this occurring. 733 S. 1991). v. such as Royal Genealogical Pastime (1791).E. 950 (7th Cir. 405..S. 17. but also suggests. Even if we accept that celebrities and other individuals are entitled to the fruit of their labours. App.. Courts end up balancing these competing interests. If Grady is right. But video games are not the only types of games that can be fairly described as sufficiently communicative or expressive to warrant First Amendment protection. Jan. for example is protected. then we should predict that in the rare cases where celebrities managed to saturate the market with merchandise. v. quoting Spence v. 410-411 (1974)).’” (Id. (Tex. v. 1983).S. 397. 491 U. Uhlaender. that every person is entitled to the fruit of his labours unless there are important countervailing public policy considerations. Dist. 239-240 (1918). 491 U. 790 (1989). Inc. American Amusement Machine Assoc. Early American games illustrate a long tradition of expressive content in games. the question is “whether ‘[a]n intent to convey a particularized message was present. and [whether] the likelihood was great that the message would be understood by those who viewed it. Village of Shorewood. Overexposure in tabloids seems more plausible. They tell stories. 1991 U. v. at 404. Associated Press. (McFarland v.2d 943.W. for example. an axiom of the most fundamental nature. but the recent spate of cases finding government restrictions on minors’ access to video games unconstitutional suggests video games have graduated to a recognized medium of expression. Early English games focused on education.S. to identify even plausible examples. (Ward v. but the courts interpret the First Amendment broadly to protect more than just words.S.3d 950 (9th Cir.2d 605. 704 F. this explanation for the right of publicity fails to explain cases where celebrities do not prevail even though someone has benefitted in some way from using their names or likenesses. No. and one related to intellectual property generally. 244 F. Johnson. Music. McCarthy (1987: 1711) suggests commentators are reluctant to rely on “visceral feelings of fairness.” Many judicial decisions echo this view. On the other hand. (Lange & Powell 2009: 155. E & K Corp. Elvis Presley Mem’l Found. but it does not assist with Nimmer’s qualification by explaining when there are countervailing policy considerations. It is difficult. even without lyrics. Games often feature words. 404 (1989)). v. at *4 (D.S. Nimmer (1954: 216) put it this way: “It would seem to be a first principle of Anglo-American jurisprudence. They have themes. a race across shield-shaped Ford/Liebler 5 . the economic analysis poorly explains the application of the right of publicity rule for merchandise. This explanation may provide a starting point. 4-89-727.

history. How the game is As some games teach virtue. his discussion makes clear the use was licensed. was to reach “Happy Old Age” through good behaviour rather than “Ruin. Landing on a virtue sent the player forward. 1894). and geography.spaces for 52 monarchs. At least some licensing did occur in the Nineteenth Century. current events became popular topics too. Profiles and playing charts of 23 famous golfers.” each with biographical and factual information on the famous golfers. Gary Player. Doug Sanders. Ball markers. The object of the notorious German game Juden Raus! (Jews Out!) is to be the first player to force six Jews from their stores and out of the city. for example.” the game included caricatures of William Henry Vanderbilt. Goodfellow 1998: 70). Autograph Authors (1886) was an educational card game incorporating contemporary authors.8 With games incorporating trivia and current events.” The first case. (Whitehill 1999: 118). but it is unclear how he determined that the game publishers actually licensed the use of the players’ names and likenesses.. 96 N. but by the 1880s. 9 Cooper (1995) identifies three Nineteenth Century and numerous Twentieth Century games as player endorsed. (Whitehill 1999: 119-122). the plaintiffs in the case. According to the opinion. (Orbanes 2004: 71-72. Flag. (Whitehill 1999: 125-127). endorsed Zimmer’s Baseball Game (c. (Hofer 2003: 101). but it seems unlikely. In some cases. The names of the 23 golfers were not revealed on the box. In the 1920s. Theodore Roosevelt appeared in Roosevelt at San Juan (1899). Cooper (1995: 23-29) identifies three baseball games from the Nineteenth Century that were endorsed by players. The Mansion of Happiness (1843). (Shea 1969: 60-61. Schonhorn Enterprises. and Cyrus Field.J. Admiral Winfield Scott Schley appeared in Schley at Santiago Bay (1899). all three investors in the railroad industry. these cases presumably solidified the legal argument in favour of treating games like other forms of merchandise and provided the basis for describing licensing as “the settled order of things. Super. An early example is Bulls and Bears: The Great Wall Street Game (1883). (Hofer 2003: 82). who was depicted on the box. The spaces labelled “idleness. (MorrisFriedman and Schädler 2003: 48). sent players to “poverty. most prominently Mark Twain. Inc. It is not surprising then that the topics of these early imports included travel. Among the 23 were Arnold Palmer. 72 (1967). Whether any of these games licensed the use of these individuals’ names and likenesses is unclear. The two earliest known games produced in the United States are Travelers’ Tour Through the United States (1822) and Travelers’s Tour Through Europe (1822).” Many other games used similar mechanics to teach the benefits of good behaviour and the penalties for bad behaviour. Jay Gould.” (Shea 1969: 48). Dice. AS CHALLENGING AND EXCITING AS GOLF ITSELF. especially for Bulls and Bears. (Hofer 2003: 100). the box of the game featured a drawing of a generic golfer and the following caption: PRO-AM GOLF GAME. illustrates the emphasis placed on moral education in early American games. We have not found an actual copy or images of this game outside this case and therefore know only what the opinion says about it. with history and geography being popular topics. landing on a vice sent the player backward. but inside were 23 “Profile and Playing Charts. (Hofer 2003: 66). Parker Brothers licensed Charles Lindbergh’s name (or nickname) for a series of games. and Jack Nicklaus. Whitehill 1999: 120).” for example. While it is likely that a significant norm of licensing names and likenesses for games predated the three classic games cases. some will inevitably teach wickedness. Parker Brothers also licensed the use of Eddie Cantor’s name and likeness for Eddie Cantor’s Tell It to the Judge (1936). Tee. Score cards. but in other cases it’s unclear whether he just assumed the use of a player’s identity was licensed. The goal of Milton Bradley’s first game. (Id. concerned a game apparently entitled Pro-Am Golf. Ford/Liebler 6 8 . 18 Championship holes.9 Professional baseball player Charles Louis Zimmer (and possibly other players). Parker Brothers begin licensing celebrity identities at least as early as the 1920s. Palmer v. at 74). Many games published throughout the Nineteenth Century were educational. Described as a “subtle commentary on the making of financial empires at the public’s expense. Players attempted to make it to the Mansion of Happiness at the center of the board. The next known game published. it is no surprise that game designers even in the Nineteenth Century used the names and likenesses of individuals. Yardage ruler. Around the same time. The Checkered Game of Life (1860).

Roberts published the first modern board wargame in 1954. The result. the court considered two board games. and factual information in the same way a newspaper article or a biography could use their names without needing their consent. The booklet included with the game said it is “designed to teach players about the life and business ventures of Mr. (Id. The court held the defendant game company violated the golfers’ rights of privacy. While the current edition is silent on the question.” As in Palmer.) McCarthy objects that people who criticize these cases mainly point to games about the political process. earlier editions of McCarthy’s treatise also endorse these outcomes.” (The Howard Hughes Game (1972)).” (Id.” The information was “merely the medium used to market a commodity familiar to us all in its varied types and forms. puzzles. “a person has the right to enjoy the fruits of his own industry. he thinks the use of non-political celebrities should not be permitted because “board games and wall posters featuring these celebrities are not traditional media in which ideas are conveyed and should usually be viewed as more exploitive than informational or educational. v. was that the defendants were not “disseminating news” or “educating the public. “It is. at 1282-83).” (Id. but this booklet came with a board. and the like that are designed to teach as well as entertain. At least a subsection of gamers. While Charles S. The 1970s were a period of great advances in the gaming industry. balancing the interest in free expression with the “preservation of inviolate personality and property. 1277 (D. The plaintiffs claimed misappropriation.” Instead. (Jenkins 2006: 203).played is unclear. Sup. In Uhlaender v. but Howard Hughes and his objection to the The Howard Hughes Game.). are demographically not children – by 2006. Inc. After another three years. 72 Misc. at 790). Negamco’s Major League Baseball and Big League Baseball.” Nevertheless. Minn. (ALI 1995: § 47 Reporter’s Notes). the defendants were “selling a commodity.” (Id. “We are all familiar with childhood board games. according to the court. Urban Systems.” said the court.” nor think of the few exceptions to juvenile games only in terms of political games. rejecting the argument that the game should be able to make use of the golfers’ names.” But one of the factors to consider in the balance is the medium. McCarthy (2009: § 7:30) noted. The court added that the use of Hughes’ name and biographical information was “not legitimate to the public interest.) Those that play games themselves are likely to be much more familiar with the variety of games available and would not characterize the medium primarily in terms of “childhood board games. making some use of these statistics in the game. Henricksen. and other playing pieces. card games. the outcome of which is determined by maneuvering tokens on a game board by the throw of the dice. it was in the 1970s that historical board wargaming experienced a period of explosive growth. Why? According to the court. the booklet included not only the rules of play but also the background on various Hughes’ activities like his The Hughes Tool Company. the Uhlaender court explained that celebrities invest considerable time to make their names valuable and are therefore entitled to the fruit of their labours. likenesses.” (Id. Games were not a preferred medium. but it did describe the game as a “commercial use.Y. Ct. 316 F. Rosemont Enterprises. tokens. Supp. This time it was not professional athletes. (Id. completed the trilogy. 2d 788 (N. at 79). These are not a small exception to a board game category Ford/Liebler 7 . 1970). Three years later. It may also be relevant that the courts decided these three cases just before some of the most important developments in the history of gaming.. reputation or accomplishments merely because the owner’s accomplishments have been highly publicized.) The court said it was not offering a “hard and fast rule. 1973). adults constituted over sixty percent of the market. “unfair that one should be permitted to commercialize or exploit or capitalize upon another’s name. an entertaining game of chance. The booklet would surely be protected by the First Amendment.” adding that each case must be decided on its own merits.” (Id. including whether the golfers’ real-world statistics played a role in the game. the Gulf Brewing Company. The defendants were offered a license but turned it down. Inc. which the court treated as a claim for infringement of the right of publicity. video gamers. Each game used the names and statistics of 500 to 700 major league players. The court did not explain why games are different than news articles. baseball board games suffered a similar fate. As already noted. Toward that end. these three decisions are endorsed by the Restatement. and Hughes Aircraft. a commercial product. Hughes.

Clue. Dungeons & Dragons uses a fantasy setting. a recently published example. Some playing pieces represent various military units. but numerous role-playing game systems use settings where actual individuals would be relevant. potentially has a veto on the production of games like this through 2045. Code 3344.dominated by familiar children’s games. who is used in several other games. While this particular game is fairly simple by the standards of the genre. The Godfather II (E. Civ. California provides a post-mortem right of publicity for 70 years after an individual’s death. Inc. (Nat’l WWII Museum 2011). The Patton family history published by Robert H. 2002)). however. specifically his grandchild. The 1970s also saw the invention of a new genre of game. Gary Gygax and Dave Arneson released Dungeons & Dragons in January 1974. thereby reducing the relevance of incorporating living individuals into the game. There are numerous computer wargames as well. the designers and playtesters extensively debated whether one World War II game properly represented the moral of American units relative to other nationalities. Patton (Jan. Nov. all of these games sacrifice some degree of realism for playability. (California Registration of Claim as Successor-in-Interest. but that had the producers done so. Patton and German Field Marshall Erwin Rommel. Scott’s Patton (20th Century Fox 1970) did not obtain permission from the estate. is registered as the claimant for General Patton’s publicity rights with the California Secretary of State. however. though we lack any estimate of the number. paving the way for thousands of games. 27. creating the commercial roleplaying game industry. Code § 3344. 1943 (Decision Games 2010). No.10 Even Rommel is apparently covered through 2044. but his estate also actively seeks to enforce his post-mortem right of publicity. the estate would have refused. Cal. These games allow players to recreate history in a stylized manner and numerous games use the identities of relevant military leaders. Electronic Arts. (Cal. App. the National World War II Museum now incorporates an annual wargaming event into their schedule. 2006). (Gygax 1987: 20). covering numerous eras and events. Depending on the game. Patton’s estate. the highest possible rating we can hope for with paper and cardboard is a 2. Recognizing this. includes a map of Tunisia and Eastern Algeria and includes pieces that represent the units that participated in the battle. (Patton 1994: 295296). and Chutes and Ladders surely outnumber the sales of (probably close to all) individual historical wargame titles. including United States General George S. LLC. While the sales of well-known board games like Monopoly. (Gamers Digital. v. and Amazing Heists: Dillinger (Gamers Digital 2009). 2011). Dillinger. would be unlikely. 2009). Mishon 1983). The Godfather (E. including Dillinger (BSO Games 2002). Ford/Liebler 8 10 .A. Greenwood 1983. File No. a 1920s roleplaying game. the number of published titles is in the thousands. Cover (2010: 168) defines these games as “a type of game/game system that involves collaboration between a small group of players and a gamemaster through face-to-face social activity with the purpose of creating a narrative experience. for example. In one exchange. (Collier 1983. Prevailing against the producers of a film as opposed to a game. 2009) (complaint).” One book claims to catalogue over 250 different tabletop role-playing game systems and their even more numerous supplements. Phillips v. As one example. Patton strongly implies the producers of George C. It demonstrated the commercial appeal of video games. 09-3204 (D. Minn.A. Inc. Patton’s First Victory: Tunisia. (Donovan 2010: 29-37 Patton’s family. (Kirschenbaum 2009: 360). though World War II dominates the genre (Steambubble Graphics 2003). Civ. 778 N. according to one leading wargame designer.” (MacGowan 1980). McNamara 1983. 25. Atari’s Pong (1973) was not the first video game. John Dillinger. Aug. which actively seeks licensing opportunities. Scalf. 09-3965 (N. 2009) (complaint).E. “On a realism scale of 1 to 10. Indeed. v. the 1970s were the beginning of the video game industry. (Cal. Dillinger. but it was the first video game blockbuster. GangBusters (TSR 1982). the tabletop role-playing game. 2002-001 for General George S.D. Dillinger. is notable because he is not only covered by the Indiana statute through 2034. Estate of. 17. (Patton. Ct. Others represent individual leaders.2d 480 (Ind. LLC. Jr. (Schick 1991). 2002).1(g)). No. provides statistics for assorted criminals and law enforcement agents like Al Capone. As one last major development. designers in the industry often go to great lengths to maximize the historical elements that can reasonably be incorporated into a game of this fashion and then debate the historical veracity of the results. Under Indiana’s statute.1(a)(2)). To varying degrees these games are one way among many to study historical conflicts. and Elliot Ness.

C. or whether the depiction or imitation of the celebrity is the very “sum and substance” of the work in question.C.Campbell-Kelly 2003: 269. Inc. C.B. Fantasy baseball is very closely tied to real world events and involves grinding through statistics. directly trespassing on the right of publicity without adding significant expression beyond that trespass. An entire book of essays is devoted to the meaning of Grand Theft Auto. half-worm characters based on two musicians. The court’s reference to adding expression as a way to satisfy the transformative use test is critical. Inc.B. Some new releases remain simple. In Comedy III Productions v.D. which as already noted led judges to doubt their expressive qualities in the 1980s. but it is also less likely to interfere with the economic interest protected by the right of publicity. The court agreed C.).B. infringed the players’ rights of publicity under Missouri’s right of publicity statute. When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain. when a work contains significant transformative elements. in other words. a similar result followed in a case involving the National Football League players.R. one of which is from a district court in the Eighth Circuit. but video games eventually went well beyond Pong and other early games in terms of expressive qualities. but many mundane video game feature significant expressive elements.” (Id. Johnny and Edgar Winter. it is not only especially worthy of First Amendment protection. Minn. but it further held the First Amendment provided a defense. According to the California Supreme Court. case.B. opinion is underwhelming. Comparing games generally to items like coffee mugs and posters seems somewhat absurd. v. . The court added that baseball players are highly paid. In the C. In two cases. the California Supreme Court dealt with two ends of the spectrum. . at 809). the court said C. but numerous games provide elaborate stories and narrative structures. but the court was right to focus on the interactive use of information. sought a declaratory judgment from the United States Court of Appeals for the Eighth Circuit that it could use Major League Baseball players’ names and statistics without a license in operating fantasy baseball games. 398.3d 473 (Cal.. A poster with a conventional celebrity image lacks any expression beyond the image itself. “Another way of stating the inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized. (C.B. which probably elevates its status as something involving the dissemination of news and information. provided it is properly applied.C. the cases would have come out differently. (Comedy III at 808 (emphasis added)).C.C. The image is neither transformed itself nor part of a larger work that makes the celebrity image raw Ford/Liebler 9 . 2001).C. the work was a Jonah Hex comic book with two half-human. the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. Elsewhere the court explained. at 820. (CBS Interactive. whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. Saderup. 2003). decision.C. even today.B.B. Distribution and Marketing. which isn’t even a requirement for infringement.B. We ask. The court also noted that consumers are unlikely to be confused about the players’ endorsing C. The court further clarified that the reference to expression means additional “expression of something other than the likeness of the celebrity. . 259 F. DC Comics. engaged in protected expression by providing an interactive form for the use of the players’ information. 2009)). In a relatively brief discussion that did not refer to the three classic game cases. Perhaps if the courts of the late 1960s and early 1970s better understood the expressive capacity of games. 419 (D. On the other hand. NFL Players Ass’n. 823-824). In Winter v. 69 P. Grand Theft Auto is an exceptional example. and the court did not question this point. After the C. (Garrelts 2006). Early video games were very simple in design.” (Id. The parties agreed Missouri law applied. a fact that seems odd to rely upon because the right of publicity is usually of primary interest to celebrities. One plausible response to balancing the right of publicity against the First Amendment is the transformative use test adopted in California. 21 P.C. An opportunity to reconsider the question finally came in 2005. Games offer vastly different options for interacting with ideas and information. as numerous courts have noted in responding to constitutional challenges to various state restrictions on violent video games.3d 797 (Cal. The C. the work was a conventional charcoal drawing of The Three Stooges. 272).

Inc. Surely a fictional entertainment broadcast that included explicit references to “Samuel Michael Keller” would be protected by the First Amendment. That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing.’” (Id. Moreover. no matter what else occurs in the game during the depiction of the No Doubt avatars. there were significant differences. The brothers were altered and surrounded by a larger story. Arts. Kirby is near the Winter end of the spectrum and Sega prevailed.. (Kirby v..C. Based on this test. the avatars perform those songs as literal recreations of the band members. it nevertheless zeroed in specifically on the depiction of No Doubt: In Band Hero .” something that is “conventional ‘speech. 4. 2010). at *18. Ford/Liebler 10 11 . Moreover.B. an intermediate California appellate court was right to conclude the First Amendment protected Sega of America from a right of publicity claim brought by Kierin Kirby a. weight. 740 F. 2d 658 (D. The “sum and substance” of Saderup’s drawing was The Three Stooges. Elec. In the wide range of uses of celebrity identities from Comedy III to Winter.a.” (Id. Feb. the same activity by which the band achieved and maintains its fame. Hart v. While the players are not given their real-world names. Feb. App. he is represented as what he was: the starting quarterback for Arizona State University. (Id. height. the court claimed the Winter decision (and Kirby) “show that this Court’s focus must be on the depiction of Plaintiff in ‘NCAA Football. however. does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities. The “sum and substance” of the comic book.L. 192 Cal. While EA urged the court to look at the work as a whole. the court ruled the First Amendment did not protect Saderup’s portrayal of the Three Stooges but it did protect DC Comics’ portrayal of the Winter brothers. To the extent the court truly believes context does not count. Arts. at 1034). at *6-7). Despite a literal use of Keller’s name rather than a transformed (and perhaps barely recognizable) version.S. In re Student-Athlete Name & Likeness Litig. and state of origin. Sega of America. The court said EA does not depict the plaintiff “in a different form. half-human characters to report on the band. The critical issue of how the transformative use test will be applied in games is now being further tested in litigation in the federal courts involving amateur athletes and Electronic Arts’ NCAA football games. a documentary film maker would not need to turn the members of No Doubt into half-worm. . Elec. 4th 47 (2006)). or that the avatars appear in the context of a video game that contains many other creative elements.N. at 1018).P. courts have pushed back against the loosening of the right of publicity started in C. the consequences for uses of a celebrity’s name are striking. Lady Miss Kier.. (Id. App. No.material for a larger work. Inc. Inc. at 59-60).” (Id. a court would presumably look at the larger context and recognize Keller is not the “sum and substance” of such a work. Presumably.). No. at 1040). Cal. 8.’ not the game’s other elements. the court held that Activision’s use of No Doubt in Band Hero (2009) did not pass the transformative use test because “the creative elements” were only “literal. Dist. (Id. Although the court acknowledged that the context in which a celebrity’s likeness is supposed to be relevant to the transformative use test. 09-1967. the avatars perform rock songs. at *16). 2011). Activision Publishing.J. 2010 U.. 144 Cal. and they have done so in reliance on the California Supreme Court’s transformative use test. .11 Recently.. The district court held the uses of the players’ identities was not sufficiently transformative as a matter of law to support a motion to dismiss. There was nothing more. Supp. Although there were arguably traces of Lady Miss Kier in Sega’s Space Channel 5. 2011 U. The reason a game is treated in this way is likely found in another section of the opinion where the court contrasted a video game with “an artistic work. 4th 1018 (2011). consumers can name the players themselves with rosters widely available for download on third-party websites.” (Id. Dist. 2010)). The plaintiff in Keller is a former college football player who seeks class action status to challenge EA’s use of players in the various NCAA titles who match the descriptions of their real-world counterparts in terms of jersey numbers. LEXIS 10719 (N. including the 25th Century setting.D. (Keller v. 2212. at least games with celebrity images must be very close to Winter to qualify Given this approach. fungible reproductions of [the band’s] likenesses. went far beyond just the Winter brothers. In No Doubt v. LEXIS 11394 (J. the setting is a football field.S.k.M.

Campbell-Kelly. Yellow Ant. (2003). Their identities must be transformed. Gaming: Essays on Algorithmic Culture. Schiffer. markets[. F&M Interview John Hill All American. Donovan. McFarland. Tristan. From Airline Reservations to Sonic the Hedgehog: A History of the Software Industry. Bogost. Comparing games to coffee mugs and other celebrity trinkets makes little sense. (2010). Applied consistently to uses of identity. Design Team Replies. Galloway. Princeton Architectural Press. Hofer. The Creation of Narrative in Tabletop Role-Playing Games. Cooper. Vanity Fair.I. (2006). According to Karcher (2007: 571). however. the First Amendment should usually prevent them from doing so. Henry. (2003). Sept. Cover. Ford/Liebler 11 . (2006). (2006). MacGowan. 1 Board Game Studies. as quite normal and routine. Patton cannot be literally depicted in a historical wargame.]” We are among the nobodies. Gary. Role-Playing Mastery.for a First Amendment defense. The Development of the English Board Game. St. 42. Richard T. The General. Mark F. Matt. and Powell. May-June. Univ. (1995). McFarland. (Sept. Review 557-585. Ugly Choices. (2007). (2009). Jefferson. Dungeons & Desktops: The History of Computer Role-Playing Games. Fire & Movement. Gygax. Matthew. Bloggers. Leslie with Becker. (1995) Restatement (Third) Unfair Competition.I. 1770-1850. book. 28-29. despite the transformative context of the game as a whole. . David L. May-June. MIT. Nate. Mark. 302. Kirschenbaum. Collier. Garrelts. (1994). REFERENCES American Law Institute. and the result is viewed as improper commercial exploitation. H. Perigee.-Oct. Minnesota. “nobody would suggest that players should not have the right to be compensated for the use of their identities in the video game . Add a rule-governed process to the material contained in these other mediums. Roger. Fans. Replay: The History of Video Games. thereby undermining the medium of many opportunities to inject realism into games involving recent history or the present. AK Peters. Beautiful People. Glass Anvil: A Dissenting View of G. Jennifer Grouling. television program. (1998). 44. Stanford. (2010). (1983). or movie. . (1987). The General. 1 UCLA Entertainment Law Journal 97-126. Press. (1983). 2009. A Positive Theory of the Right of Publicity. Ian. Anvil of Victory. by name or image. Alexander R. Baseball Games. The G. magazine. Don. (2007). Persuasive Games. The Use of Players’ Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims. Margaret K. Caroline G. (2009) No Law: Intellectual Property in the Image of an Absolute First Amendment. 111 Penn. The Games We Played. M. Grady. Lange. Martin.) Third Person: Authoring and Exploring Vast Narratives Jenkins. Barton. Karcher. New York Univ. Bennetts. (2008). J. Law. Goodfellow. Jonathan. War Stories: Board Wargames and (Vast) Procedural Narratives. even if highly critical or unflattering. 70-80. When states attempt to extend the right of publicity to make game uses infringing. Nor can Al Capone or John Dillinger be literally depicted in a historical role-playing game. CONCLUSION The public has come to accept an unlicensed use of a celebrity’s identity in a newspaper. 24-27. The Meaning and Culture of Grand Theft Auto. and Gamers: Exploring Participatory Culture. In Pat Harrigan and Noah Wardrip-Fruin (Eds. Greenwood. 1980). Games are often highly expressive and should be treated as such rather than as a second class medium of communication. MIT.

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EMA is not the first time the regulation of electronic games has come before the judicial system. both the informational theory and its application are critiqued.The Game Behind the Video Game: Business. If a medium is deemed worthy of protection and no significant changes in its structural capabilities have occurred (certainly. Regulation. KEYWORDS: Schwarzenegger v. that period was almost sixty years.rousse@gmail. First Amendment. film did not undergo a technical revolution in 1952 that suddenly made it expression). IL tommy. Missile Command INTRODUCTION:
 Schwarzenegger v. establish a set of precedents with little coherence and scant precedence in a newfound “informational standard” for what constitutes speech. new media. regulation. then a significant period exists where rightfully protected speech can and will be restricted or censored. it may conceal a larger problem: novel media which are eventually designated as protected speech often pass through a significant period of censorship or uncertainty about their legal status as expression. and Society in the Gaming Industry New Brunswick. Schwarzenegger Thomas ABSTRACT Schwarzenegger v. While a Supreme Court ruling in favor of electronic games as fully protected speech would be a major victory for the medium and its supporters. EMA. Rousse Northwestern University 1104 Garnett Pl. 2011 New Media Censorship & the First Amendment: Understanding the Origins of EMA v. EMA is poised to be the most significant case involving the free speech categorization of electronic games. confronting local ordinances contested by small business owners in the arcade business. while electronic games have gone a little over three decades without a definitive ruling. Rousse 1 . This problem can be significantly exacerbated by the fledgling state of many new media industries: their lack of trade organizations or legal resources can lead to weak legal cases. from their case history beginning in the early 1980s. This paper explores the early case history of electronic games and questions the origins and usefulness of the “informational standard” that became the basis for widespread electronic game regulation in the 1980s. which in turn establish precedent for ruling against the expressive capacity of new media. In the case of film. April 8-9. USA. EMA decision and will carefully analyze the “informational standard” and its deficiencies. By examining contemporary games and the relevant court cases. exhibit exactly this pattern. This instructive example of how the American legal system deals with the First Amendment status of new media points to a need for a more robust definition of speech. Electronic games. New Jersey. Evanston. from the earliest commercial exhibitions to the Burstyn v. Wilson decision in 1952. This paper will recount the early case history of electronic games ultimately leading up to the Schwarzenegger v. Municipal and state courts. electronic games.

states and local governments must also abide by the First Amendment. But not all legal scholars are convinced they have made the right decision. including video games. 170 (E. legislators must meet few requirements when drafting regulations or bans. subject matter. the government from the municipal to the federal level can stifle expression in ways that few other actors can.While video games attracted negative attention from media outlets and parents shortly after they became commercially available. and expressive capacity of the medium has developed and public attitudes have changed. heard by the Federal District Court for the Eastern District of New York in 1982. The legal battle for the status of video games does not take place in a vacuum.2 America’s Best Family Showplace sought a ruling that the restriction violated the First and Fourteenth Amendment rights of the arcade operator and his customers. cities and towns passed ordinances to restrict the use of early electronic games. At stake is more than the freedom to play video games: a Supreme Court ruling that denies electronic games First Amendment protection could have far-reaching consequences.Y. 171-172. as coin-operated arcade machines became ubiquitous. and the Supreme Court has yet to weigh in on the matter. rightfully protected expression in the form of electronic games was vulnerable to restriction for nearly three decades. television. Future media may be stunted in their development or stifled altogether if such a ruling is taken as precedent that traditional media warrants more protection than novel forms. ‘Mere


 The issue of whether or not electronic games are constitutionally protected speech first received court attention in America’s Best Family Showplace Corporation v. Without a clear definition of speech. When electronic games are recognized as speech. 172. City of New York Department of Buildings.D. Nonetheless. the classification of electronic games has shifted and still remains controversial. 3 Ibid. Arcade operators and others contested these regulations by claiming that electronic games should be protected as speech under the First Amendment. This point of contention would remain at the heart of litigation on electronic games for the next two decades. Through the Fourteenth Amendment. ultimately. still periodically pass laws which either fail to meet constitutional standards or are currently on appeal to a higher court. Since expression within the ambit of the First Amendment is considerably more difficult to regulate than conduct or expression outside of it. it would take a few more years for the emerging medium to become the subject of legal regulation.S.” Ibid. Supp. By 1982. A previous ordinance restricted the number of arcade machines in a business location to four unless the operators received a license for an “arcade. only a few regulations meeting stringent guidelines will pass constitutional muster. 1982) Hereafter.” a process that was essentially impossible to complete. the whole of First Amendment tradition can be sullied or reaffirmed by the legal reasoning behind electronic games-related cases. Censorship and regulation often take place without government intervention. government regulation and censorship can be particularly pernicious due to its potential effectiveness and legitimacy. the categorization of electronic games as speech is one of the fundamental considerations for determining permissible regulations or censorship. These regulations ranged from restrictions on the location of arcades and their hours of operation to outright bans on all coin-operated machines. and print.1 America’s Best Family Showplace planned to open a restaurant which would feature video game screens at each table. “America’s Best.N. The majority of courts have gradually recognized electronic games as speech after declaring them ineligible for such protection during the medium’s formative years. When they are not. N. 2 1 Rousse 2 . This lack of a useful definition has led to a shaky enough precedent for the appropriate protection of electronic games that cities and states around the U.3 536 F. Through the majesty of its authority and the punitive threat of monetary fines or imprisonment. As the complexity. Regulation of violent content in video games may lead to similar regulation in film.B.

S. (1992) 7 But cf. 777. several conditions must be satisfied: first. 793. the regulation would be upheld.S. Ct. Notably. 505 U. They may affect public attitudes and behavior in a variety of ways. Adam. but fatal in fact. Vol. Ephraim provided in Schad was found to be insufficient to show that the ban on “live entertainment” was narrowly tailored enough to pass constitutional muster. the government must demonstrate that this specific regulation is necessary to advance a compelling state interest. This is distinct from a method that would require each individual example of a format to demonstrate some prerequisite to qualify for protection. When dealing with a right such as speech.A. City of St. To overcome this presumption. (1938). v Wilson (1952). Under the strict scrutiny standard.”4 In footnote four of United States v. it would have to meet the “strict scrutiny” standard. 5 4 Rousse 3 . as a standard to determine the speech status of electronic games. The Ibid.The court recognized that the case hinged on whether or not video games receive First Amendment protection as speech: “A dispositive threshold question is whether video games are speech or expression protected by the First Amendment. the Supreme Court decided that a “usually nude” dancer behind a coin-operated view hole was constitutionally protected speech. 72 S. 6 R. second.”9 This emphasis on a “form of expression” supports the media-centric approach of the expressive germ perspective. If they are not. or even if it had not but such a relationship could be reasonably assumed by the court. Ephraim (1981)8 to establish electronic games as protected speech under the same criteria accepted by the Schad court. This threshold is so difficult to reach that strict scrutiny in free speech. in all its non-obscene forms.”7 The plaintiff’s case in America’s Best relied on Schad v. p. 395.10 the landmark case which established film as protected speech. 9 America’s Best. 10 343 U.”6 For a regulation to be valid under strict scrutiny. 59. however. v. given the traditionally heavy presumption of constitutionality accorded to a local government’s exercise of its zoning powers. government regulation or censorship of speech is assumed to be invalid. intended to protect expression and other civil liberties from all but the most carefully considered and empirically-supported regulations. the Supreme Court established that most city ordinances are presumed constitutional if they have a “rational basis”: if a legislature presented evidence supporting a relationship between the regulation and its intended goal. “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts.V. Inc.S. it must restrict protected speech as little as possible. If that regulation dealt with a fundamental right such as those protected by the First Amendment. 173. 2006. 377. particularly when applied to “suspect classes” of vulnerable groups like racial minorities. 304 U. The America’s Best court then invokes Joseph Burstyn. ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. United States v. Carolene Products (1938). has long been considered a form of expression protected by the First Amendment. They quote: “It cannot be doubted that motion pictures are a significant medium for the communication of ideas. the America’s Best court also reiterates a point made in Schad: “Dancing. 495. the likelihood of plaintiff’s success on the merits at trial is minimal. footnote 11. In Schad. the evidence that Mt. Carolene Products. Borough of Mt.5 Under strict scrutiny. 8 452 U. has been described as “strict in theory. the government must provide extensive evidence connecting the means of regulation and its intended goal. Paul. 144.S. no less restrictive alternatives can exist. 61. third. Winkler.” Vanderbilt Law Review. The courts independently examine this evidence to determine if the regulation is “narrowly tailored” and serves a “compelling state interest. Winkler finds that laws survive Supreme Court strict scrutiny 30% of the time on average (but local ordinances survive only 17% of cases). the government must overcome a prohibitively high standard of evidence.

and has no relationship to the test adopted in America’s Best. 343 U. Inc. is pure entertainment with no informational element. 507 (Hereafter. 546.establish the capacity to transmit ideas or information as the sole definition or test of protected speech. 20 Ibid.” 21 It simply says that mixing entertainment and information does not remove constitutional protection. the court concludes that video games are not protected speech: “In no sense can it be said that video games are meant to inform. the America’s Best court asserts: “… it seems clear that before entertainment is accorded some First Amendment protection there must be some element of information or some idea being communicated. Rousse 4 . Ltd. New York (1948):12 “The line between the informing and the entertaining is too elusive for the protection of that basic right [a free press]. “idea” is present only in a dissent. not that information is the only important element of protected speech.”20 A careful reading of the final sentence of the Burstyn quotation does not exclude pure entertainment or establish information as the sole arbiter of protected status: “The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. 13 America’s Best 173. does not use information as the sole determination of a format’s status as protected speech. 15 America’s Best. which states: “We do not accede to appellee’s suggestion that the constitutional protection… applies only to the exposition of ideas. Wilson (1952) and Southeastern Promotions. which may be adulterated but not discounted by the presence of entertainment.17 The genesis of the standard adopted by the America’s Best court is unclear at best.”14 Nonetheless.). 65. like a pinball game. v. Ohio.Joseph Burstyn. (1952) 333 U. (1952) 22 Jacobellis v. 184. This standard is no more sustainable than Justice Potter Stewart’s infamous “I know it when I see it. Rather. 72. 495. Inc. v.S. 14 Winters. Hereafter Southeastern Promotions. 173-174. quoting Joseph Burstyn.S.19 The America’s Best reading of the Burstyn standard fixates on information and jettisons the rest of the quotation they cite for support. Stewart’s concurrence. 17 America’s Best. Wilson. 173. Wilson.”11 The court includes in this quotation the Burstyn court’s quote of Winters v. while clearly establishing film as a protected format of speech and citing it as “a significant medium for the communication of ideas”.importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. a game of chess. 16 Ibid. 501.”16 Since video games were not found by the court to qualify for First Amendment protection. quoting Joseph Burstyn. 343 U. v. the Court recognizes in Burstyn that films “may affect public attitudes and behavior … from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. not determining whether or not the material at issue (the Broadway musical Hair) contains information or ideas. 72. Winters.” 22 definition of obscenity.S. Beyond information. Burstyn. 495. 11 12 America’s Best. 174. a video game. or a game of baseball.S. 18 420 U. 173-174. Conrad (1975)18 .”13 They neglect to quote the sentence in Winters directly proceeding the Burstyn quotation.”15 On this standard. The only justification for the informational capacity test given in the America’s Best decision is that it “seems clear” to the court that this is a component of protected speech. 378 U.S. Inc. 176. The word “information” does not even appear in Southeastern Promotions. 21 America’s Best. v. the ordinance and its justification met the reduced requirements of the rational basis test for constitutional regulation. 19 Burstyn. Neither of the cases cited in the decision . The segments of Southeastern Promotions cited deal mainly with prior restraint of speech.

v. In a lengthy footnote. this court. is protected… . did not meet the information requirement established by America’s Best. Because the court found that no fundamental right was involved. 1984) focused on a citywide regulation that restricted individuals under seventeen from playing a video game in public unless a parent or guardian was present. United States.29 As indicated by the oddly wistful description of their own deliberation (i.”26 A careful review of their respective texts reveals that none of the other cited cases27 clearly establish the information test used in the America’s Best or Caswell decisions.C. The City of Warren Court found no precedent to support that claim. did not present any video game to the court that served as an example of this capacity but argued instead that the format was already an accepted category of protected expression. To support this assertion. 270. 135 Mich. Caswell submitted Space Invaders to the record. 1983). the Caswell court used the standard of the communication of ideas for First Amendment protection. as well as political and ideological speech. the denial of his proposal was found constitutional. 275. Licensing Commission for Brockton. 29 Ibid. and no form of speech is given or denied constitutional protection based on such a test. City of Warren v. The city planning commission denied his proposal. many mention ideas or information obliquely at best. 28 City of Warren v. App.24 Thus. Salem Inn. Southeastern Promotions. 31 Ibid.”30 Furthermore. Caswell’s example of the expressive power of a video game. 546 (1975). 422 U. Plymouth. 1984. 273. 30 Ibid. Walker (Mich. 24 Caswell. 420 U. Hereafter.S. 267. Pg. but “this observation does not reach the constitutional question. was more hesitant to rule that video games lacked any expressive elements. Rousse 5 . Caswell claimed that this restriction on electronic games violated the First Amendment because of the medium’s similarity to television and film. Hereafter City of Warren. App.28 The City of Warren court “searched in vain” to find a justification or precedent that qualified electronic games as protected speech.e. Caswell wanted to open an arcade featuring seventy machines.S. The court found that Space Invaders. and Schacht v. 422 U.Video games received similar treatment in Caswell v. 1983. such as this excerpt from page 65 of the Supreme Court’s decision in Schad v. While the previous two cases concern the denial of license to individual businesses. 444 NE 2d 922 – Mass: Supreme Judicial Court.23 As a local business owner. Caswell.S. Walker. emphasizing the physical element of video game interaction and comparing it to recreational rollerblading. footnote 3. 58. 274.31 These cases provided a solid precedent for courts to deny video games First Amendment protection for the rest of the decade with little pause. 26 452 US 61 27 Doran v. but ruled that they did not possess the expressive element established in other cases. Mt Ephraim (1981): “Entertainment.25 The connection between the cases the Caswell court cites and the informational standard formerly seen in America’s Best is not apparent. however. City of 23 Caswell v. 25 Ibid. 872-74. Conrad. Court of Appeals of Michigan. “searched in vain”).S. As seen in America’s Best. 398 U. There are no significant cases that reached a district court or further that considered a different conclusion for electronic game until 1991’s Rothner v. some of the specific page citations contain segments that seem to directly contradict the court’s narrow construction of information as the sole prerequisite for First Amendment protection. footnote 2. In fact. The plaintiff. Inc. 869-871. Jacksonville. stressing in particular that electronic games are capable of articulating a plot. 205 (1975). Erznoznik v.J. Caswell’s contention that the ordinance was unconstitutionally vague and violated his freedom of assembly and association was also denied. citing concerns about pedestrian safety and juvenile loitering. Ltd. the court recognizes a tradition of youth recreational activities restricted for their purported immoral influence represented by the “Trouble in River City” scenario from The Music Man. 922 (1975). Licensing Commission for Brockton (Mass. S. the court acknowledged that video games may already possess some expressive capacity and may develop the requisite informative capacity to be considered speech. while coming to the same conclusion as Caswell and America’s Best.

Tron. 33 32 Rousse 6 . 389 Mass.” 37 The Killer List of Video Games. City of Chicago. Donkey Kong. in Marshfield Family Skateland v. either for the purpose of demonstrating electronic games’ capacity to transmit ideas or information. they mimicked previous examples in that genre. Supreme Judicial Court of Mass. 2010. By mimicking sports. game developers were making a safe bet: they could adapt proven game mechanics to a digital interface and potential players would be already familiar with the premise. Atari Football.36 Because electronic games are seen as interactive entertainment. It could be fairly argued that the relationship between Space Invaders and its plot was roughly equivalent to the relationship between chess and its medieval setting—aesthetically helpful for setting the mood for the player. 35 As has been and will soon be even more apparent.35 Like many other emerging forms of media. We should consider.” KLOV. Accessed February that the weighty issue of establishing an entire format representing hundreds of games and billions of dollars as constitutionally protected was left to individual business operators to litigate. 436. (1991) Marshfield Family Skateland v. 7th Circuit 929 F. The City of Warren court seemed especially unsatisfied with the examples presented to the record: the plaintiff made no specific arguments about the speech-related merits of electronic games but instead relied on previous acceptance of the genre as constitutionally protected without making a case to that effect when in fact no such precedent existed.S. and Kangaroo. Walter Benjamin’s seminal essay “The Work of Art in the Age of Mechanical Reproduction. Kangaroo and Donkey Kong are “platform” games where players are given a simple premise: the playercontrolled title character must avoid danger to proceed up a series of platforms to rescue an innocent. No industry-wide establishment charged with representing the legal interests of video game operators participated in the cases previously considered. 444. Atari Basketball. especially sports.” and his discussion of early film enthusiasts’ desire for the classics of literature to be made into films likened to “heroes crowding the gates.. first of all.33 While these games were popular. In Zaxxon and Space Invaders. the plaintiffs submitted video excerpts of five games: Ms. Zaxxon. Are
 While the cases reviewed here are unanimous in their rejection of electronic games as protected speech. early electronic games were highly derivative of other formats that shared cultural or structural characteristics. they may not have been the most relevant examples. Thus. or more broadly as a form of expression. players pilot a spaceship and fire at oncoming enemies for points. In a similar vein. Town of Marshfield. released Atari Baseball. but unrelated to any message or information conveyed by gameplay. Atari Mini Golf. (1983). Questions remain as to whether the standard to which electronic games were held was appropriate or if the evidence presented did justice to the state of the medium. 2d 297. “Coin-Op Museum Index: A. However. Were video games of the early 1980s simply “technologically advanced pinball machines”34 or were the courts simply not presented with examples that effectively showcase their expressive capacity? The
 The majority of games in the 1980s may well have lacked a sufficient informational element to meet the standard applied in America’s Best.32 Cities and towns were required to meet only the rational basis test for the regulation of video games because they found no evidence that video games met the requirements of protected expression. not all of the courts were confident in this characterization. Pac-Man. Court of Appeals. I do not find this standard compelling in theory or by precedent. and Atari Soccer. another case seeking First Amendment protection for arcades. Caswell relied only on a description of the rudimentary plot of Space Invaders. Town of Marshfield. Atari.Chicago.37 Other games submitted to court record may not be particularly compelling arguments for the informational capacity of electronic games. Rothner v. 36 Cf. from 1978 to 1979. U. then a major player in the industry. likely because no industry-specific trade association existed until 1994. 34 Marshfield. it was the relevant standard embraced by the courts judging electronic games in this era.

As the game progresses. In Missile Command. Rousse 7 38 . but our legal history does not have an excellent track record in this regard.39 In Missile Command. courts might have been persuaded that electronic games warranted First Amendment protection much sooner. narrowly focused judgments on a small subsection of games have had far-reaching influence in the decisions of other courts regarding the entire format. it was widely cited in the previously discussed cases of free speech regulation. Protecting cities and destroying incoming missiles increased the player’s score. Some oncoming missiles even mimicked the capabilities of real warheads. This segment intends to demonstrate that electronic games were capable of meeting even the narrow definition of speech embodied by the information standard.html. Missile

 While the informational capacity standard may not be most appropriate for determining what media constitute speech. Yet. As we have seen. but more general claims as to the unsuitability of electronic games to convey informational content are too broad. Assuming for the sake of argument that the capacity for communicating ideas or information is a valid test of speech. and the ability to fire counter-missiles. 39 Lawrence Buchonnet.It seems reasonable to speculate that the majority of games released in this period would not meet the informational capacity standard applied by the respective courts. February 1976). meets the criteria applied by the courts to the cases we have examined. The material submitted in the respective cases did not provide an adequate overview of the expressive range of electronic games at the time.gwu. By striking these oncoming missiles. The original arcade release provided the player with no background story to situate the gameplay – the player was simply faced with a barrage of oncoming missiles. the player fires counter-missiles from the missile battery to defend his or her cities against an increasing onslaught of missiles raining down from above. Examining only the material submitted to the record. the player is presented with a flat landscape featuring six representations of cities and control of a missile battery. the game continues. a popular game released in 1980 by Atari and designed by Dave Theurer. or continues to put quarters into the machine. a variety of nuclear warhead capable of striking multiple targets in a single missile developed during the Cold War. the trail of missiles splitting into multiple paths increases the challenge for the players and invokes the threat of the hundreds of MIRVs pointed at the United States by the Soviet Union at the time of the game’s release. Identifying media that have achieved expressive capacity is vital to protecting the First Amendment sphere. This mimics the capability of multiple independently targetable reentry vehicles (MIRVs). with each new line capable of damaging the player’s cities and silo. the courts may have come to the correct conclusion using this standard. it seems likely that many players viewed this situation not as fantasy but as a (possibly imminent) hypothetical or an extrapolation of the tense nuclear standoff in the real Like many arcade games of the time.38 subsequent courts might be led to believe that the entire medium of electronic games was unworthy of First Amendment protection. Via a trackball and button. as cases are inevitably condensed and simplified when cited for precedent. there is no winning condition – as long as the player is good enough. It is difficult to evaluate Missile Command. http://www. outside of the context of the Cold War and fears of nuclear warfare and subsequent Mutually Assured Destruction. If other games had been examined more carefully and with a more open mind towards their expressive potential. As we see here in the initial establishment of the informational capacity standard for free speech as a valid means to judge electronic games in the first place without a clear point of origin or coherent argument for its implementation. MIRV: A BRIEF HISTORY OF MINUTEMAN and MULTIPLE REENTRY VEHICLES (Lawrence Livermore Laboratory. Missile Command. released in 1980. unprotected cities. During the height of the Cold War.. lines representing missiles split during their descent. but that the record presented to the court by the legal representatives of small business owners and the ability of the court to interpret a novel medium led to incorrect decisions regarding whether electronic games should be considered speech. the player defends his or her missile battery and cities.

There is simply the premise of the game: defending cities from a nuclear attack. could respond to contemporary culture. If electronic games are held to the same standard as other media. should have received protection as speech under the First Amendment. Furthermore. Rather than the typical “GAME OVER” common to most games of the period. the pulsing crescendo of its soundtrack and the increasing speed of the alien menace are capable of conveying an emotive message of increasing anxiety. An examination of the early case history of electronic game censorship does more than provide a context for Schwarzenegger v. America’s Best. Players must make tactical decisions when counter-missiles run low.” Conclusion
 The message of the game may be difficult to interpret to those who have not engaged in the material and are not familiar with the techniques of the medium. when all of his cities have been destroyed. Missile Command is an extremely rudimentary electronic game. further highlighting the weakness of the informational standard. and thus should have been addressed as speech under the First Amendment. which may contain significant flaws. are mistaken: electronic games. the player’s decisions are somewhat moot. New York40 suggests that we should not attempt to draw the line between entertainment and information within a medium capable of expression. and thus establishes a workable definition for what media should be granted the protection of strict scrutiny. the player must make these choices-– a grim task given the subject matter of the game. lower courts may classify new media as speech according to their own schema. 40 Winters. No one “wins” in Missile Command. If there are too few missiles to protect all of the cities. Many who have played Space Invaders will likely recognize that while it may not have much of a plot or feature cultural commentary. this information commented on a major political and cultural issue of its time period – Missile Command shows that video games. The player likely applies the lesson to his or her experience of the real world as well: no one wins in nuclear warfare. the courts in Caswell. Informational elements of many forms of protected high art with formal and abstract themes are far more obscure than that of Missile Command. even in the infancy of their development. the graphics are simple (the missiles are simply straight lines) and there is virtually no plot. before any of the court cases previously examined. The landscape never changes. In Missile Command. City of Warren. Missile Command offers a stark black background with the text “THE END. but so is much of expression protected by the First Amendment. 65. which would best be sacrificed? Which could be better defended? In order to play the game effectively. This point is further driven home by the unusual screen shown at the end of a player’s game. If we are to accept that a video game conveyed a message in 1980. even in their early years when they were far from the contemporary products that have resulted from the rapid and unceasing development over the last three decades. there is a never ending and steadily increasing number of incoming missiles and a finite supply of counter-missiles. Thus.The fatalism of never-ending levels eventually resulting in the player’s defeat at the hands of an unending array of enemies built into the structure of most games of this period takes on a special poignancy in the context of nuclear war. and Marshfield. EMA: it demonstrates that our current system of First Amendment protections is inadequate. Compared to the medium’s later development. There are certainly other expressive elements present in video games of this era. and this information is transferred to the player through the process of playing the game. information was conveyed by a video game to its players in 1980 at the latest. If the First Amendment only protects media once they have become well-respected by mainstream culture and the narrow subset of mostly older and less technically savvy. Ultimately. 8 Rousse . then Winters v. Because there has not been a clear Supreme Court precedent that establishes a workable definition for speech. either. using even the restrictive standard of informational capacity. it fails to deliver on its anti-majoritarian promise.

135 Mich. App. Salem Inn. V. Town of Marshfield. 304 U.gwu. U. R. February 1976). 333 U. 395. 922 (1975) Erznoznik v. 1982) Caswell v. 398 U. 72 S. 267. 422 U.” KLOV. 536 F. 777. 2006 Rousse 9 . 793.” Vanderbilt Law Review. http://www.S. 7th Circuit 929 F. (1992) Rothner v.. 378 U. Jacksonville. Court of Appeals. (1981) Southeastern Promotions. (1983). (1952) Marshfield Family Skateland v. Adam. 444 NE 2d 922 – Mass: Supreme Judicial Court.Y. 389 Mass.S. 61.N. Inc. The Killer List of Video Games.S. 144.S. 377. New York. City of St.S. 436. Walker. MIRV: A BRIEF HISTORY OF MINUTEMAN and MULTIPLE REENTRY VEHICLES (Lawrence Livermore Laboratory. 170 (E. Carolene Products. Ohio. 205 (1975) Jacobellis v. 59. Paul. (1991) Schacht v. Plymouth.References
 COURT CASES America’s Best Family Showplace Corporation v. LTd. Supreme Judicial Court of Mass. “Coin-Op Museum Index: A. Conrad. 452 U. Lawrence. Accessed February 15th. (1970) Schad v.V. United States. 2d 297. Winters (1964) Joseph Burstyn. Licensing Commission for Brockton.S. 343 U. Borough of Mt. 2010. v Wilson. 505 U.S. Ephraim. Supp. City of Chicago. 1983 City of Warren v.D. 507 (1948) OTHER WORKS 420 U. Winkler. Vol. p. City of New York Department of Buildings. Inc. v. Ct. 546 (1979) United States v. 184.S. 58.S. “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. 1984 Doran v.S. Court of Appeals of Michigan.html. (1938). 495.A. 422 U.

’ (OECD Working Party on the Information Economy. Australia ABSTRACT ‘The creation of UCC [user created content] usually boosts the availability and diversity of local content in diverse languages. regulation de Zwart and Roth . and attempts to both encourage and control User Generated Content (UGC). (Kerr. DSTI/ICCP/IE(2006)7/FINAL. Although there is an increasing recognition that cultural diversity is desirable as a function of democracy and participation in the public sphere. KEYWORDS: online games. the creation of content and overall cultural wealth could be positively influenced and the identification of artists facilitated. user generated content. these environments are still the exception. This paper recognizes that one of the key values of MMOGs is their capacity to deliver a diversity of experiences and it is essential that this diversity is respected. Australia Kate Roth. It will analyse and discuss examples such as the ‘swastika controversy’ in Call of Duty. Regulation. such as the highly successful Final Fantasy franchise (Consalvo. With lower entry barriers downstream and increased demand for content and lowered entry barriers upstream. diversity. and Society in the Gaming Industry New Brunswick. 41) This paper will consider the regulatory factors that impact upon game diversity. Black Ops. This paper will consider if increased regulation will encourage or stifle diversity. Participative Web: UserCreated Content. It will consider the effect of regulatory measures such as the Council of Europe/ ISFE Human Rights Guidelines for Online Games Providers (2008). there is potential for this to be stifled by internal and external regulation. 12 April 2007. There have been some deliberate attempts to create merged environments. New Jersey. protests over the alleged appearance of a Rising Sun flag in the Chinese MMOG Fantasy Westward Journey (Chan 2009). de Zwart 2010). USA. which reflect elements of key cultural attributes of their target markets. Whilst input of UGC goes some way to embody and reflect diversity and user interest. April 8-9. 2010) game worlds still largely reflect their cultures of origin. 2006). Law School. Thus governance and regulatory intervention from domestic governments (and potentially through multilateral treaties and other regulatory instruments) must respect and support content diversity in order to ensure that MMOGs are able to continue to deliver valued user experiences (de Zwart 2009. 2011 DESIGNING FOR DIVERSITY: CAN REGULATION PROMOTE DIVERSE EXPERIENCES IN GAME WORLDS? Dr Melissa de Zwart. However. University of Adelaide Adelaide.The Game Behind the Video Game: Business. Monash University Melbourne.

content that is least offensive to the widest number of people. would suggest that sufficient diversity exists to cater to different user expectations. such as was reflected in US TVI policy of ‘Least Objectionable Programming’ up to the 1970s (Nelson 2007). anyone other than young. Despite this. might this trend suggest a drive towards the lowest common denominator. Australia currently has no 18+ classification for computer games. PC and online games and MMOGs.’ (Ozmodan. as noted above in the OECD paper on User-Created Content (2007) the input of user created content and user-experience may increase the accessibility of local content and certainly has appeared to improve the commercial success of certain games. and hence. so any violent or sexual content must be accommodated at the lower level of classification (suitable for children of 15 and above).com. into the game industry (IGDA 2005). post to MMORPG. 2 DIVERSITY ‘While I fully support diversity in real life. gays. white males. encompassing console.e. defamation and content which is inconsistent with the developer’s vision for the game. the expectation of global delivery of game titles suggests that. in terms of language. Any regulatory environment requires careful management given the impact on user activities. • Cultural diversity: Cultural diversity reflects and respects ‘the manifold ways in which the cultures of groups and societies find expression’ (UNESCO Convention 2 de Zwart and Roth .1 INTRODUCTION The sheer size and output of the videogame industry. people of any colour other than white. Further. such as racial stereotypes. largely bland? Thus commercial imperatives for game and MMOG developers would suggest adherence to a set of production values that appeal to the broadest possible audience. The discussion on MMORPG. reference to historical and contemporary events. However. rather than reflecting and fostering diversity. All of this ignored the fact that the games themselves are steeped in particular cultural norms and tropes. For example. Thus this paper asks if regulation could have any role in fostering diversity and if in fact this would be desirable. and more generally. through government regulation. cultural references and contexts. 11 December 2009) What is meant by ‘diversity’ in the game context? Clearly gamers themselves have differing views on the value of diversity. such games may reflect a single homogenous norm. uncontrolled copyright infringement. I don’t necessarily find the need for it in my fantasy life. portrayal of children. Therefore. unsuitable content. audience expectations may differ significantly between regions. the way users interact with the game or other regulatory frameworks. i. In addition. For example. managerial techniques. The International Game Developers Association is undertaking a project on diversity to encourage underrepresented groups. with little agreement about the purpose that might serve. this paper will consider the need for diversity in games and how that may best be fostered. user created content brings with it risks of its own. It will also focus upon the role that UGC may serve in this context. does the existence of blue-skinned avatars legitimately encompass and represent different races? How do you portray actual historical events without glorifying acts of racism and xenophobia? We have identified several contexts for the consideration of diversity: • Industry diversity: There have been some studies undertaken regarding the lack of diversity reflected within the game industry cited above involved in-depth discussion of the need for greater representation of women. However. culture and content. and male and female avatars in games. needs and tastes. There are also issues of cultural norms.

A Hollywood blockbuster movie such as ‘Avatar’ is a safer commercial investment than an entirely new title. sport. derived from their belief that ‘digital gaming [is] a cultural practice that is rapidly becoming a part of everyone’s everyday life everywhere in the world’. FPS. for example. is concentrated in a small number of Japanese and US production houses. verbal. identifying expanded player categories and motivations. Diversity of user experience: Users choose games and online worlds that suit their skills and interests. However. casual games currently provide little user customisation or choice. but that at least it is ‘seen as a normative ideal for many and linked for some to a properly functioning public sphere and democracy’. casual games such as Farmville on Facebook Plants vs Zombies on iPad. including. Within games there is frequently significant choice regarding player experience.• • • on the Protection and Promotion of Cultural Diversity of Cultural Expressions) (Burri et al 2009). However. graphic. role-playing games. MMOGs. Other authors such as Yee (2007) have continued this work. for example. action. this may assist a larger number of people in identifying themselves as ‘gamers’. Their analysis reflects the fact that people may ‘game’ in different contexts and for different reasons and by identifying the gaming style rather than the gamer. market and platform. Diversity of player type / motivation: This has been discussed at length elsewhere. and other mobile devices. reflecting particular forms of language and content. Kerr also notes that player preferences vary by gender. As Kerr (2010) has observed. socialisers and killers (1996). The intellectual property rights will also be cheaper to secure due to existing arrangements with the film studio and advantageous tie-in and marketing rights. both at home and more commonly in places such as South Korea in group environments. we argue that diversity is desirable in all of these contexts. Western Europe and the Asia-Pacific (Kerr 2010. this is occurring in the face of the fact that game production. such as PC Baangs. including PCs. and should be subject to similar forms of protection as other forms of cultural expression. at least at the higher production end of the spectrum. user needs and 3 de Zwart and Roth . to reflect cultural backgrounds. character choice and customisation. ‘to play with their friends’. console games. Notably Bartle divided players into achievers. Thus ‘diversity’ can have different meanings according to context. Kallio. explorers. Recently. Several European countries now provide financial assistance to the production of games with sufficient cultural content (Graber 2010). Johns 2006). PvP mode. etc. such as art and literature: ‘Digital games are undoubtedly a form of creative expression similar to other works of art. sculptural or audiovisual art. These may also include social motivations. children’s games etc. without their practices being isolated from their broader social experiences. Game environment diversity: Games are now accessible on a broad variety of platforms. FPS games dominate the Xbox market in the US. Graber (2010) states that games are recognised as a form of cultural expression in the digital environment. with the market divided into three regions: America. games should recognised as cultural productions. i. However. such companies are also increasingly looking for safe marketable content that will justify production and development costs. Thus one player’s experience of World of Warcraft may be very different from another’s. In an age of increasing production costs. quests. and increasingly.e. Diversity also exists in the types of games.’ It seems reasonable to argue that as digital manifestations of art and story-telling. Mayra and Kaipainen (2010) have developed a classification of gamers based on gamer mentalities. the concept is far from uncontested. but do not sell well in the Japanese market (2010). musical.

In any event. Character names are often derived from the history. racism or intolerance in general including when such messages are concealed. ethnocentrism. character names. there are recurring elements of FF including: ‘plot themes. and multilateral agreements such as the General Agreement on Tariffs and Trade (GATT). Changes can also be made to the underlying game engine to speed up or slow down certain elements of play and to comply with local hardware requirements. changing local idioms and incorporating changes to take account of local content regulation laws or guidelines and user expectations (Carlson and Corliss 2010). Final Fantasy XIII. The guidelines suggest that. one of the most popular iterations of the game. 2010). regard should be had to: Content which conveys messages of aggressive nationalism. Whether it is possible to mandate diversity is another matter. text and images that appear in the game. languages. such as the group described by Consalvo (2006) 4 de Zwart and Roth . For example. (Council of Europe. Thus existing regulation does not significantly foster diversity in game content. such as the US-Australia Free Trade Agreement. It now has subsidiary corporations in North America. Final Fantasy (FF) installments were originally defined as ‘independent stories’ with various settings and leading roles. FFXIII continued the tradition of having a racially mixed and ambiguous band of reluctant heroes. it is not clear how this translates to imaginary realms. Plots center on a group of heroes battling a great evil while exploring the characters' internal struggles and relationships. Carlson and Corliss also remind us that these ‘user expectations’ are heavily mediated through the understandings of local marketers and localisers. Again. Bilateral agreements. the UK and China.1 Final Fantasy Final Fantasy is a highly successful game franchise developed by Square Enix. xenophobia. Featuring the glamorous warrior ‘Lightning’ as the main protagonist. Square Enix has sold over 62 million units of the various Final Fantasy games worldwide. 3 GAMING CASE STUDIES The section will present four case studies that explore different aspects of game content that give rise to issues of cultural diversity. by removing the protection of local content benefits granted to cultural goods and requiring them to compete without the benefit of subsidies or tariffs in a global marketplace. resizing text and pop up boxes which contain text. was released in Japan in 2009 and in North America. there is greater emphasis upon ‘protecting the children’. 2008). As Consalvo (2006) explains ‘the most important reason that Square Enix has been so successful in the American market (and other foreign locales) is the sophisticated and extensive localization used in translating its games for the USA and other markets. It involves the musical score. Thus cultural values are placed second to removing barriers to trade in goods. however. 3. following the merger of Square (originally founded in Tokyo in 1985) and Enix. Europe and Australia in 2010. and mythologies of cultures worldwide’ (Final Fantasy Collection.experiential levels. The Council of Europe has recommended that in developing and publishing games. a Japanese company created in 2003. inextricably link intellectual property (and hence cultural products) and trade. than fostering cultural content or diversity. and game mechanics.’ This localisation involves far more than merely translating the dialogue. It would not be desirable to allow trade and regulation policy to create a situation of global game homogeneity. another Japanese company. Such trade agreements may provide the avenue for economic domination by a limited number of global players in the game industry. the provider (defined as designers and publishers) should consider how such games may ‘impact on human dignity’ with a particular emphasis on children (although it is worth noting that this is not necessarily a target group of the games and MMOs discussed below). amongst other things.

with respect to FFX (released in 2001 in Japan and 2002 in the US). Lightning is 171cm tall, with light pink hair, and pale skin. She is only 21 years old, but a seasoned warrior. She is clad in a highly stylized outfit, which emphasizes her long legs, and wields the Blaze Edge, a combination of a gun and a sword. Her character, as with all of the others, is voiced by different actors in the Japanese and the English versions. She is accompanied by a band of male and female characters of diverse appearance, including Oerba Yun Fang, who is of vaguely Indian appearance sporting a stylized sari, although her accent is Australian, and Sazh Katzroy, who has dark skin and a large afro, which conceals a baby Chocobo (a flightless bird featured throughout the Final Fantasy series). Critics were divided by the game, generally loving its visual richness and the relationship between the key characters, however, there was significant criticism regarding the linear nature of the game, which limited side adventures and exploration of the environment. In an interview, the game director Motomu Toriyama responded: ‘We think many reviewers are looking at Final Fantasy XIII from a western point of view. When you look at most Western RPGs, they just dump you in a big open world, and let you do whatever you like... [It] becomes very difficult to tell a compelling story when you're given that much freedom’ (Ingham 2010). One further point worthy of note was the ‘translation’ of the musical soundtrack to the game. In the US version of the game the original theme song ‘Kimi ga Iru Kara’ by Sayuri Sugawara was replaced by ‘My Hands’ by Leona Lewis. Naturally fans were divided about the use of a nonoriginal song for the soundtrack and one that did not have the same cultural flavour as previous theme songs. Many expressed the view that Lewis, as a former winner of the X Factor, was too mainstream for a computer game, and that this was an instance of the developer ‘selling out’. In another interview, producer Yoshinori Kitase and director Motomu Toriyama explained: ‘We felt that with a song that's sung in a language that's understandable to North American or European users would bring the game closer to the player and depart from the idea that Final Fantasy is a game that comes from overseas.’ Further, they claimed: ‘Overall, it would tighten the relationship between the player and the game, so that's why we decided to go with an English theme song’ (Jackson 2010). On 30 September 2010 the latest instalment of the franchise Final Fantasy XIV was released as an online game. The next day online discussion groups flourished with sentiments expressing gamers’ disappointment with the styling, levelling, game-play and lack of direction. The critics were similarly scathing, with ratings of 49 out of 100 from Metacritic and 4 out of 10 from Gamespot. Subsequent activity by the developers has seen a whole new team put in place and announcements of re-release after re-release. The development of an online game is a change in direction from the franchise’s typical projects, and fans seem to be wedded to the video game platform. However, with a series of upgrades to the online version attitudes may change. This development is in line with the range of other spin-off projects developed from the Final Fantasy franchise branching into ‘motion pictures, anime, printed media, and other merchandise’ (Final Fantasy Collection, 2010). Notwithstanding the past successes of the game, Final Fantasy XIV online is still plagued with problems and, since commencing this paper, a further three major disruptions to the environment have prevented significant game play. The Final Fantasy experience would suggest that game developers themselves strive to achieve ‘glocalisation’ for their games (Consalvo 2006) in order to ensure commercial success. Although as Carlson and Corliss (2010) point out, this appears to run directly counter to the current popularity of specifically Japanese games, anime and manga in the US, Europe and Australia. 3.2 Call of Duty, Black Ops Call of Duty, Black Ops (CoD-BO) is the seventh instalment in the successful Call of Duty franchise and is available on multiple platforms, including Xbox 360, PS3, Wii and DS. It is set in
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the Cold War environment of the 1960s, and features a number of CIA initiated ‘black ops’ behind enemy lines. Notably, one of these is a failed assassination of Fidel Castro, which generated significant controversy in Cuba (BBC 2010). However, the event that generated the most controversy to do with the game was the request by an Xbox Live user to use a swastika as his online profile symbol. The request was met with outright refusal by Microsoft’s XBox Live Director of Policy and Enforcement, Stephen Toulouse, who tweeted: ‘Yes, you will get banned using a swastika as your Black Ops emblem. I don’t care if you “just like the design”’. Following a barrage of criticism and Twitter-fuelled debate over the rights arising under the US First Amendment, Toulouse went on to blog about his decision as follows: The Xbox LIVE profile and in game content you create is accessible by everyone. You do not have the context inside of it to explain your long winded contrarian view that your pithy text that violates the Terms of Use or Code of Conduct is actually intended to change people’s minds about a commonly held understanding. It’s not political correctness, it’s fundamental respect. If you think the swastika symbol should be re-evaluated by societies all over the Earth, I think that’s great. Your Xbox LIVE profile or in game logo, which doesn’t have the context to explain your goal, is not the right place to do that. (Toulouse, 2010) Journalists and newspapers carried the story and tried to generate arguments and controversy. Despite this, the majority of blogs and responses indicated support for Toulouse’s stance as well as understanding the level of censorship that Xbox Live placed on CoD-BO content (Guardian 2010; TG Daily 2010). Naturally, this was not the first time Call of Duty had attracted controversy. Call of Duty: World at War is set during World War II. It features extensive cut scenes, using actual archival footage. For example, the introductory sequence shows the Nazi swastika bleeding across Europe and the red sun bleeding across Asia, followed by a very rapid sequence of images showing airplanes, soldiers marching, the mass shooting of civilians, the bombing of Pearl Harbour and the US declaration of war (Baron, 2010). All of this occurs in one minute and twenty-four seconds and provides the perfect introduction to the player being transformed into ‘Private Miller’ a soldier ready to do battle against the forces of evil. Baron argues that this provides the sense that history marches only in one direction and indeed legitimises the violence to be used by the player against the Germans and the Japanese for the rest of the game. Baron suggests that, rather than merely forming the prologue to the violence, archival footage might be used across a range of scenarios, dependent on the user's actions within the game-play, thereby, ‘proposing other possible histories that might have occurred if certain battles had not been won’. It is inevitable that games dealing with war will cause offence to some sector of the community. For example, the use of the swastika and other Nazi symbols is banned in Germany. However, it is also true that war games may be used to reinforce racial stereotypes and to alienate the ‘other’. ‘Authenticity’ and ‘realism’ can be used as a cover for killing ‘Gooks’ and ‘Towel Heads’ with impunity and to imbue certain races with stereotypical behaviours (Chan 2005). These examples indicate that different nationalities and cultural groups have varying limits upon freedom of content in gaming contexts. 3.3 Rising Sun Controversy Fantasy Westward Journey is a very popular Chinese MMOG, with a peak of over 25 million registered player accounts in 2006 at the time of the events discussed below. It is an adventure
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game based on a classic of Chinese literature. In July 2006, a high level player was asked by the game administrators to change the name of his avatar, which was called ‘Kill the Little Japs’. He refused to do so and, as a consequence, the avatar was suspended from engagement with the game. He had also established a guild, called ‘The Alliance to Resist Japan’ which boasted around 700 members, making it one of the largest in the game. The game administrators also informed the guild members they would be dissolving the guild (Chan 2009). On 7 July 2006, thousands of avatars congregated at an area in the game known as the ‘Jianye city government office’ protesting these actions, and directed attention to a wall of the office, claiming that it depicted the Japanese Rising Sun flag. The alleged appearance of a Rising Sun flag in the game prompted other in-game protests and challenges of corporate interference, claiming that such icons resulted from a proposed Japanese take over of the game, through a sell out of NetEase (the game owners) to a Japanese company (Chan, 2009). Notably, this all occurred on the anniversary of a significant battle between the Chinese and Japanese in 1937. Chan’s recounting of the story canvasses the conspiracy theories behind the break up of the guild, such as a belief by the game providers that the particular guild was too big or too powerful and the claim that the actions were undertaken as the game owners were looking to sell and were conscious of minimising any potentially offensive content or activities in world. An alternative theory which Chan explores is that these actions were in fact manipulated to generate ‘spontaneous’ nationalistic sentiments which would be adopted by gamers in-world to promote strong patriotic Chinese cultural identification in a significant and relevant online environment. Carlson and Corliss (2010) also explore the political elements of ‘localisation’ which adopts a particular stance regarding what is acceptable in a particular zone and targets modifications accordingly, for example, to pre-empt the requirements of national ratings boards or by the use of a particular language or dialect as the dominant language in translations. For example, in Australia, it is a legal requirement under the National Classification Scheme that computer games be classified before sale. The highest rating which may currently be applied with respect to a computer game is MA 15+, meaning that the game must be suitable for players aged 15 and above. Thus content can be manipulated to serve multiple purposes, both to promote and deny diversity. 3.4 User Generated Content As Burri et al (2009) observe, although the empowerment of the user through engagement in cultural production through UGC creates the promise of ‘better, more efficient and flexible accommodation of the goal of cultural diversity’, it also carries with it challenges which may demand ‘additional regulatory intervention’. However, UGC brings with it at least a promise of greater user engagement and involvement in the process of production and consumption. The ability for UGC to be incorporated into game development and associated products (such as fan fiction, machinima, mods, add-ons, walkthroughs and web sites) provides more timely and more genuinely ‘local’ responses to the game or the franchise than the developer or publisher can provide as it is unmediated by professional marketers. Publishers are aware of the value of this, and have generally assisted, supported or at least turned a blind eye to these activities, despite the fact that they are largely in breach of the EULA. However, they are of course concerned with UGC quality and content, the risk of infringing third party intellectual property rights, content regulation issues and potential damage to the brand through undesirable associations. Some games actively seek to co-opt the energy and appeal of UGC, such as Sony’s Little Big Planet (LBP). However, LBP experienced significant difficulties when it provided a platform for user generated levels. A large number were found to contain material which infringed third party intellectual property rights and were therefore removed, aggravating users who had been led to believe that they had free reign over their creations, only to find them removed without warning (Graft 2008). In addition, many
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entertainment. while based on tested as well as perceived realities. result in alterations to a game environment only where it is seen as financially efficient. different games may adjust story lines and outcomes in releases across the globe. If the adjustments are too expensive for a particular title. it does not follow that users realise that their labour may result in a commercial product with no financial benefit flowing back to them. The intentions of game developers and providers need to be reflected in the EULA. and mood management needs. The development of games and their customisation for local markets and tastes provides an interesting basis for consideration of elements of diversity. The events in the games discussed in this paper demonstrate the commercial imperatives for customising games for local markets. drawing upon real life footage and events to create new gaming experiences. intellectual property issues need to be resolved. conceived here as always arising from the meeting point of existing. in attempting to ensure the national popularity of a title. often based on a stereotypical understanding of that culture. Call of Duty uses historical imagery to set up in-game story lines. For example.users are unaware of the terms of the EULA which provide Sony with a right to commercially exploit UGC material. rather than bolted on as a ‘one size fits all’ by the legal department to cover all contingencies. the political potential of games and the effectiveness and limitations of user generated content in facilitating development of local ‘flavour’. EULAs should be drafted for a specific environment. it may not be released in that region or released with basic customisation only. rather than there being a mismatch between the legal constitution of the game and its underlying logic and intent. Intervention may only be necessary to support funding for niche domestic cultural reasons or to accommodate smaller ethnic groups. Some would argue this perpetuates stereotypes and others see this as an evolution in gaming. These issues will need to be settled before UGC can be advocated as a viable solution to a lack of local content. He observes: The complex contingency of today's large-scale online games has powerful effects on meaning. regulators should allow games to evolve to meet user demand. and Fantasy Westward Journey appears to serve a role in bringing traditional folklore to life and in promoting modern-day nationalistic sentiments. noting the limiting frameworks of national regulation of content. This paper concludes that rather than mandating and regulating for diverse content. However. 4 CONCLUSION Games should be as diverse as their players: Final Fantasy builds on a successful franchise of activities from the last 27 years. This would suggest that users engage with games and produce UGC for largely non-commercial reasons. they participate through interacting with the content. relevant or not. for UGC to provide a significant role in localisation and diversity. interpretations. In online gaming. pitting bands of youthful warriors against the forces of evil. developing significant meanings. and they produce their own contents for self-expression and self-actualization. in turn contributing to an ongoing evolution of further development and understandings. by their choice to be and remain part of the environment. Indeed. UGC provides an opportunity for the development and continuation of games and the cultures they develop. Malaby (2010) has recently argued that one of the key attributes of games is 'semiotic contingency' or the unpredictable and changing nature of meanings that can be attached to game related acts or consequences. Guoshong (2009) argues that players who engage in UGC creation ‘consume’ contents for fulfilling their information. These adjustments. the choices of subscribers to a particular environment provide the ultimate decision. However. as well as with other users for enhancing social connections and virtual communities. as we have seen. shared 8 de Zwart and Roth . These activities should not be impeded by agreements forged to regulate interstate commerce.

htm. 8. and Corliss. L. spades: Players who suit MUDs. M. Cheltenham. M. J. In this regard. not by mandating particular cultural norms but by supporting development of games that reflect cultural values.interpretive frameworks and unique. Classification Policy Website. M. Eludamos. 2010. (2009) The protection and promotion of cultural diversity in a digital networked environment: Mapping possible advances to coherence. (2010) Digital Historicism: Archival Footage. BBC (2010) ‘Cuba says Castro video game tries to legitimise murder’.3. (ed. M. and Chan. Work should also be undertaken by game providers to ensure they have EULAs that are consistent with their expectations and encouragement of UGC. http://www. clubs. Graber.mud. the shared engagement of contingency is a powerful means for the development of trust and belonging. D. as appropriate.wikipedia. de Zwart. Working Paper No 2009/36. (2006) Console video games and global corporations: Creating a hybrid culture.82 Chan. Burri. Attorney General Website http://www. NCCR Trade The very nature of development and evolution in games responds to consumer and regulator requirements and provides examples and experiences of diversity. Routledge. 6. T. de R. 117 -137.) Gaming Cultures and Place in Asia-Pacific. 4 (2). M. R. Journal for Computer Game Culture. 605-627. (2010) ‘User created content in virtual worlds and cultural diversity’ in Graber. http://www. M. New Media University of New South Wales Law Journal. 303-314. Only then will diversity flourish for all gamers regardless of their field of endeavour. (1996) 9 de Zwart and Roth . Edward Elgar. (2009) Piracy vs Control: Models of Virtual World Governance and Their Impact on Player and User Experience. C. C. Digital Interface. pp 61 .bbc. (2009) Beyond the “Great Firewall” The Case of In-Game Protests in China. and Historiographic Effects in Call of Duty: World at War. The protection of these frameworks ensures evolution and enables diverse experiences in such environments. 5 REFERENCES AND CITATIONS Bartle. Chan. trade related aspects of intellectual property enforcement should be carefully monitored to respect and protect local content production. 11 November 2010.. Final Fantasy Collection.2. Hjorth. and Burri-Nenova. and (2005) ‘Playing with Race: The Ethics of Racialized Representations in E-Games’ International Review of Information Ethics 4.nsf/Page/Classification_policy. (eds. 33. (2008) Human Rights Guidelines for Online Games Providers. http://en. Consalvo. Carlson. UK. Games and Culture. (2010) Contractual Communities: Effective Governance of Virtual Worlds. Baron. New York. Accessed 6 March 2011.2.30. J. Council of Europe. (2010) ‘Imagined Commodities: Video Game Localization and Mythologies of Cultural Difference’. Governance of Digital Game Environments and Cultural Diversity. as games themselves show most powerfully. D. 24. D. Journal of Virtual Worlds Research. contingent circumstances. It is important that any regulation of games seeks to facilitate and support diversity.

CyberPsychology and Metacritic Website. TG Daily. 19 Iss: 1.) Governance of Digital Game Environments and Cultural Diversity. (2010) ‘Beyond billiard balls: transnational flows. Edward Elgar. T. R. C. 23 November 2010. 22 November 2010. (2010) Journal of Economic Geography 6. (2006) ‘Video games production networks: value capture. Graber. '(2007) Beyond Play: A New Approach to Games'.metacritic.computerandvideogames.B. S. 5: 16 February 2010. Accessed 20 February 2011. http://www. (2010) Leona Lewis brings Final Fantasy XIII 'closer to the West'. http://archives. A. Games and Culture. and Burri-Nenova. Graft. DSTI/ICCP/IE(2006)7/ UK.thumb. 12 April 2007.B. F. Cheltenham. :>’ 20 November Toulouse Twitter account.html?tag=topslot.computerandvideogames. K. Edward Elgar. K. Mayra. (2009) Understanding the appeal of user-generated media: a uses and gratification perspective. UK. K. http://www. S.tgdaily.stepto.gamespot. Accessed 20 February M. M.aspx?ID=635 Yee. 41 Stuart. Guosong. M. Vol.B. (2008) ‘Sony: Be Mindful of LittleBigPlanet Content’ Edge.1177/1555412010391089. TG Daily (2010) http://www.) Governance of Digital Game Environments and Cultural Diversity. 9: 772-775. (2010).com/Stepto/status/6196258494484480 Toulouse. K. Call of Duty spurs strong anti-swastika message on Xbox. 13 November – 25 Ingham. New Review of Film and Television Studies. The Guardian (2010) http://www. http://www. (2007) HBO Premium: Channelling distinction through TVIII. Johns. http://www. 25-40 OECD Working Party on the Information Economy. International Game Developers Association (2005) Game Developer Demographics: An Exploration of Workforce Diversity. 15 February 2010. Participative Web: User-Created Content. and Burri-Nenova. DOI:10. C. (2010) ‘At Least Nine Ways to Play: Approaching Gamer Mentalities’ Games and Culture. and Kaipainen. C. http://au. ‘Context. (eds. Jackson. pp. 10 de Zwart and Roth . J. http://www.. no you don’t get to apply your Internet niche knowledge to me doing my job. (eds.tgdaily. Or.Gamespot Website. (2010) ‘Final Fantasy XIII boss responds to review scores’ Computer and Video Games. (2010) ‘State Aid for Digital Games and Cultural Diversity: A Critical Reflection in Light of EU and WTO Law’ in Graber. cultural diversity and digital games’ in Graber. http://www. M. (2007) Motivations for play in online games.php. (2010) Call of Duty: Black Ops – is Microsoft right to ban the swastika? The Guardian. power relations and embeddedness’.igda. Internet Research. N. 151-180.

The idea of 1 2 http://www.merriam-webster. by user across these dimensions. While it‘s important to understand the relationship between compatibility. and value – it‘s also critical to focus on customer satisfaction. and around the company. April 8-9. we can make use of successful game mechanics to help motivate employees to participate in work-related http://www. It‘s important to incorporate principles of portfolio selection and risk diversification when evaluating where to invest resources. Several thousand Microsoft employees in Windows. cost savings. USA ABSTRACT There are a wide variety of definitions of quality. As the nature of the workforce shifts – with incoming ―Gamer Generation‖ employees. KEYWORDS: Productivity Games.1 Around the world. 3 http://www. in her book. which may 4 http://www. supported by the structure of game mechanics.reviewsofelectronics.merriam-webster. The idea of play certainly resonates with humans. Employees desire many of the same things from the workplace that gamers demand from games This paper will take a look at productivity games successfully deployed at Microsoft over the last 7 years. and fun allow novices to experiment with new strategies with the freedom to fail in game play that might not exist in the traditional workplace. Software Test. New Jersey. USA. especially: the spontaneous activity of children‖3 Jane Mcgonigal. security. recently became the fastest selling consumer electronics device in history. focusing on the tasks that game players can accomplish. Washington. We see games appearing everywhere these days – except in the Productivity Games: Improving Software Quality through Fun and Play 1 . employee engagement. Collaborative Play. 2011 Productivity Games: Software Quality through Fun and Play Ross Smith Microsoft Corporation One Microsoft Way. and organizational trust actually improves software quality by varying defect detection techniques. From ISO 9000 to Six Sigma. Risktaking. animals. leaving a degree of freedom in how we pursue software quality. play. it‘s depression‖4 This paper suggests that perhaps it‘s time to consider game play as a new way to work. We have learned much about what makes for a successful – and an unsuccessful productivity game – well beyond game design – and more importantly. suggests that ―the opposite of play isn't work. Regulation. Office.The Game Behind the Video Game: Business. Merriam-Webster defines work as ―activity in which one exerts strength or faculties to do or perform something‖ 2and defines play as ―recreational activity. Software test professionals face the law of diminishing returns when testing – and re-testing – software. and Society in the Gaming Industry New and even computers themselves. usability. hundreds of millions of people play games. Fun 1 INTRODUCTION Kinect. reliability. and more. the natural user interface add-on to XBox. Productivity games – games in the workplace – can help enhance traditional workplace methodologies including effective communication. collaborative play. Redmond. Reality is Broken. have played productivity games to help improve the quality of our software. the diversity of viewpoints offers an opportunity to expand how we test software. The principles of trust.

2 SOFTWARE QUALITY 2. or new ideas – can lead to creative and innovative output. any organization will have an extremely difficult time choosing metrics to provide an accurate picture of the progress. Weinberg: Value to some person  Robert Pirsig: The result of care  American Society for Quality: A subjective term for which each person has his or her own definition. Figure 1 shows nine dimensions of software that are critical to user perception of quality. we must decide on a definition of quality. Without knowing the mission and goals around the quality-related efforts.  Six Sigma: Number of defects per million opportunities  Philip B. Productivity Games: Improving Software Quality through Fun and Play 2 . associations. while keeping fun alive in the cold. Juran: Fitness for use by the customer  Gerald M. To begin. each of which seems reasonable and applicable. play. In technical usage. and game rules . The variance in definition is a leading indicator of the importance of introducing variance and diversity in to our quality assurance processes. 2. All of these are perfectly viable. and experts. Crosby: Conformance to requirements  Joseph M. we find hundreds of definitions of quality. Software quality is important across several different dimensions.for people to experiment with new the context of gaming.providing a structure . o A product or service free of deficiencies. cruel. quality can have two meanings: o The characteristics of a product or service that bear on its ability to satisfy stated or implied needs. Surveying several industries. competitive world of work.1 Definition High quality is always an admirable goal for any software development project. new roles. How to decide and pick a single definition to work towards? Here are a few examples:  The perception of the degree to which the product or service meets customer expectations  ISO 9000: Degree to which a set of inherent characteristics fulfills requirements." The answer is that we can‘t pick just one.2 Metrics and Measurement Any discussion of metrics must start with clear identification of the organization‘s mission and goals.

and broad diversity of user base and infrastructure.Figure 1 – Nine dimensions of quality 2. Therefore. an explosion of usage scenarios. Productivity Games: Improving Software Quality through Fun and Play 3 . the more cost effective and impactful those fixes are to the product. Whether the development process follows an agile or waterfall development model.3 Software Testing Software testing is more effective when defects are discovered early. With the advent of the internet. rather than on a pure ―quality assessment‖ scale. One common fallacy is that the testing process can fully measure and quantify the degree of quality of the software. Early identification of an all-encompassing ―test matrix‖ is untenable. it is virtually impossible for a test team to understand everything. it‘s critical to apply test effort and resources on a riskmitigation basis. multiple platforms. the sooner in the process that defects can be uncovered.

In this model. unsafe supervision of the development process.wikipedia. system test can assess a reasonable level of quality across common scenarios. permitting "a trajectory of accident opportunity". and the unsafe acts themselves. preconditions for unsafe acts. As the complexity of the connected world continues to grow. The system as a whole produces failures when all individual barrier weaknesses align. with individual weaknesses in individual parts of the system.6 Software defects may occur in very similar circumstances – organizational or project management related influences. both active failures and latent failures. it is just not possible to test quality in to the software. At best. http://en. "given enough eyeballs. or more formally: "Given a large enough beta-tester and co-developer base. it‘s important to have as large a set of testers in as many configurations as makes reasonable sense.Figure 2 – Diminishing Returns for Defect Discovery 2. and the unsafe acts (simple programming errors) themselves. Therefore. all bugs are shallow". hypothesizes that most accidents can be traced to one or more of four levels of failure: Organizational influences. so that a hazard passes through all of the holes in all of the defenses. an organization's defences against failure are modelled as a series of barriers. and are continually varying in size and 4 Productivity Games: Improving Software Quality through Fun and Play . Even that. almost every problem will be 5 6 http://www. only scratches the surface of how software is used in ―real life‖. preconditions for unsafe acts – such as lack of knowledge of the end user leading to a failure.4 Risk and Mitigation James Reason. in the causal sequence of human failures that leads to an accident or an error. The model includes. unsafe supervision. author of ―Managing the Risks of Organizational Accidents‖5. As Linus Torvalds describes Linus‘ law in "The Cathedral and the Bazaar".

and more hands-on experience than candidates of even 10 or 20 years ago. An unprecedented number of international. the annual Bachelor‘s degrees awarded in Computer Science grew from less than 100 to over 46. Baby Boomers.associatedcontent. today. and. In the period from 1966 to 2001. As societal demographics shift. both in the given the demand.eventually leading to its demise. p4. and Cryptography. 7 8 9 http://en.hrmreport. economic landscape alterations. 3.organizations has always mirrored that of society as a whole. for example. Tucker. ―Corporate America is as diverse as ever. These changes in the quality of education obviously influence talent levels entering the workforce. globalization.wikipedia. college candidates entering the computer industry today have more education.George Orwell We are currently facing demographic and societal changes. Employers are facing immediate challenges when it comes to optimizing productivity. in the quality of education as well. for the modern organization to meet employee needs and productively move forward. organizations have no choice but to consume the http://www.html?cat=17 10 Allen B. Curriculum development has progressed dramatically as well – particularly in software quality. As a result. Rutgers. how can you motivate a broad set of users to perform tasks in their discretionary time to help test? Productivity games offer one possibility. ―Introduction to Basic Programming‖. .characterized quickly and the fix will be obvious to someone. recruitment and retention. if not impossible."7 So a broad set of pre-release users can help mitigate risk through broad test coverage. Gen Xers and Generation Y/Millennials – are working alongside one another and bringing their own values. and the continuing rise of the knowledge worker that have led us to a workplace in the United States where members of four generations sit side-by-side. productivity. Algorithms. A ―failure to respond to the demographic changes of society will make it difficult. Such generational dynamics affect morale. Computer Science Handbook. Productivity Games: Improving Software Quality through Fun and Play 5 . protecting profits and growing their businesses.‖9 This will leave the organization unprepared to compete – for talent or in the marketplace .000 – annually. for the first time. But.10 The dot com boom fuelled continued growth. and wiser than the one that comes after it. offers undergrad courses in Compiler Construction. While graduate level CS programs in the 1980‘s might have offered courses such as. goals and communication approaches to the workplace.‖8 The makeup of formal – and informal . 3 21ST CENTURY EMPLOYEES Each generation imagines itself to be more intelligent than the one that went before it. more training. multi-cultural workers from four generations – Traditional.1 Computer Science Education The quality of computer science degrees has grown dramatically over the last 40+ years.

For example. Chapter 5 – www. with Spacewar and PONG. reaching 3. Typically. many of these same people grew up with video games as a significant part of their daily environment and were taught basic principles through their heavy interaction (Booz & Company.aspx 18 The Practical Guide to Defect Prevention. May 2007) (link) 13 (Economist. educational. February 2010) (link) 16 www. and political boundaries requires management 2. and is for sale along most toy aisles and in game stores.16 The royal game of Ur was played in the fourth century B. The market for talent will continue to be highly online_tours/games/the_royal_game_of_ur. April 2010) (link) 14 (Trendsniff.18 Although the current generation of electronic games has its roots in the 1950s and Global Workforce The GDP growth dominance of emerging economies will continue to change the landscape and makeup of the workforce. Productivity games are a part of the new management orthodoxy. and distributed. Perhaps it is unfair to attribute the start of a generation to a single game. geographic. the game of Go was played in ancient China in 500 B.12  Kenya leads the world in money-transfer by mobile phone.15 The world is indeed getting flat.2007).6 exabytes per month by 2014. You can play it online today on the British Museum Web site17 . December 2009) (link) 15 (Cisco. 2009) (link) (MGI. there is an element of fun.C. mobile data traffic will double every year through 2014. The ability to manage employees across social.3.C.defectprevention. the majority of the programmers or engineers are relatively recent college graduates.57M14  Globally.11  India‘s middle class will swell by more than ten times its current size of 50 million to 583 million by 2025.gnu. Mobile data traffic will grow at a compound annual growth rate (CAGR) of 108 percent between 2009 and 2014. You find the fun and—SNAP— the job’s a game! —Mary Poppins Games have been around for centuries. increasing 39 times between 2009 and 2014.3 Gamer Generation In every job that must be done. Nintendo published Donkey Kong. as well as online. 3.thebritishmuseum. Evidence even seems to indicate that games were used to motivate workers to build the pyramids of Egypt. 91% of the increased R&D staff was in China and India.html 17 www.  83% of the new global R&D facilities were in China and India (2004 . generational.13 Mobile Phone Subscribers: 738. technical.0 thinking. cultural. but in 1981. networked. computer and game console developments over the last few decades have taken gaming to a new 12 11 Productivity Games: Improving Software Quality through Fun and Play 6 . which really was a defining moment in mainstream gaming.

Covey.jsp?storyId=12160414 21 The Speed of Trust. Mike Armour.with video games. But the sum of those risks and dangers. the dividends are not just in increased speed and improved economics. 3. the researchers found that if that same amount of trust is lost. cannot make the quest foolish. Even if jobs are unrelated or people are not in physical proximity. Covey. partnering.‖20 There are many reasons why trust is important.‖21 The Kids Are Alright. In their book ―The Kids Are Alright‖. in his book "Leadership and the Power of Trust" defines trust as the "complete confidence that a person or organization will consistently try to do what is right in every given situation. It is important to pay attention to these principles when designing games to motivate the work force to invest time in defect detection and defect prevention activities. they don‘t understand even the basics of this new world. to be successful. Reina. p.4 Organizational Trust ―In a recent University of British Columbia report. you‘ll get an infusion of gold to tide you over. innovation.  Trial and error is the best strategy and the fastest way to learn. creativity. you win. http://www. the decline in employee job satisfaction is like taking a 36 percent pay cut. talks about the trust dividend – ―high trust significantly improves communication. energy.  You will confront surprises and difficulties that you are not prepared for. they are also in greater enjoyment and better quality of life. John Beck and Mitchell Wade The HR Executive‘s Role in Rebuilding Trust. by definition." Employees who work together must rely on one another. maybe even profits). John Beck and Mitchell Wade enumerate the basic principles that video games have taught this generation:19  If you get there first.  If you choose the right combination.  Although there may be momentary setbacks. and community. and relationships with all stakeholders. Dennis S. passion. either directly or indirectly. high trust significantly improves your excitement. 19 20 19 Productivity Games: Improving Software Quality through Fun and Play 7 . Dr.  Elders and their received wisdom can‘t help.hreonline. the success of the firm depends on the ability of everyone to produce. They report that. customers. the game will reward you. in terms of job satisfaction.R. In your personal life. in his book. Stephen M. friends. and joy in your relationships with family. prototype. Stephen M. a small increase in trust of management equates to a 36 percent pay increase. and it is certain that some combination will work. execution. overall the trend will be up. ―The Speed of Trust‖. Trust is a mechanism that people can deploy to deal with uncertainty. economists found that trust in management is the most valued determinant of job strategy. Conversely.  There is a limited set of tools.  Once you collect the right ―objects‖ (business plan. Reina and Michelle L. collaboration.R. Obviously. The result is that they identify with and will respond to the idea of using games in their work activities. engagement.

are challenging to identify and understand.wikipedia.1 Introduction From a Productivity Games viewpoint. Table 1 illustrates the areas where Productivity Games can be the most successful. and about 15% who are actively disengaged. Forty-five percent of Millennials worldwide say they use social networking Web sites at work. across this diverse set of behaviours. January 2010) (link) (Pew. There is a five-factor model consisting of altruism. and sportsmanship. 25  Altruism is helping a specific work colleague with an organizationally relevant task or problem. It is very hard to find common themes to engage employees.23 Two-thirds of teen and Gen Y Internet users use social networking sites. Employee Engagement Gallup does their annual survey – and typically.24 The most successful employee engagement techniques. January 2009) (link) http://en.Trust is a foundational element of all successful workplaces. Questions such as ―I have the opportunity to do what I do best every day‖ or ―I know what is expected of me at work‖ imply a level of trust – not only by the employee for their manager or organization. civic virtue. or Organizational Citizenship Behaviors (OCB‘s) that require core skills are the best way to ensure the success of the game. Organizational leaders would like to believe that a strong mission and vision statement will suffice – and while that helps – it‘s not necessarily all that is required. 3. the concerns over engagement continue to rise. the employee categorization and the organizational classification overlap in a way that can help identify whether or not a game will be successful in modifying behavior and having people ―play‖. Gallup uses a Q12 survey to measure workgroup effectiveness and employee engagement22. with about 55% who are passively disengaged. 4 PRODUCTIVITY GAMES 4. conscientiousness. the numbers have been very similar over the past few years. but reciprocal as well. About 30% of employees are engaged at work. The attributes of effective organizations all find their origins in trust. less than 10% of 55-63 year-olds do.aspx ( 8 24 25 Productivity Games: Improving Software Quality through Fun and Play . There are several dimensions of citizenship behaviours. As generational changes in the workforce continue to Focusing either on expanding skills in role. 22 23 http://www. regardless of whether their organization or company prohibits their use.

Organ et al. games which encourage good organizational behavior (or OCBs). 2005). are the most valuable domain for Productivity Games. no one‘s employment is threatened by the success of another team member. Additionally. (2006) further define sportsmanship as an employee‘s ―ability to roll with the punches‖ even if they do not like or agree with the changes that are occurring within the organization. all employees in an organization are able to participate. Courtesy has been defined as discretionary behaviors that aim at preventing workrelated conflicts with others (Law et al.1. all players are given a fair chance to contribute. 2005). Examples of why specific segments work or don‘t work are described below.Productivity Game Deployment Matrix The most successful games tap in to core skills and apply them in areas that are outside the ―regular job‖ 4. 2005). described briefly below.. Games are designed to encourage learning. Since the games rely on core skills. Wong.. & Chen. All employees in a given department are familiar with the items. This provides a great place for everyone to participate on equal footing. Players are best rewarded by Productivity Games: Improving Software Quality through Fun and Play 9 . since the behaviour is not closely linked to any individual‘s job. and many examples are available in the marketplace for children of all ages. But wrapping the sorting and prioritization work in a game-like interface. Civic virtue is characterized by behaviors that indicate the employee‘s deep concerns and active interest in the life of the organization (Law et al. and with how the organization prioritizes it‘s work. but one that works to prevent problems from arising. but rely on core skills that most employees have in common. and then test for the learning within the context of play.    Conscientiousness consists of behaviors that go well beyond the minimum role requirements of the organization (Law. It also includes the word‘s literal definition of being polite and considerate of others (Organ et al. This dimension is a form of helping behavior. Table 1 . Games in this space work because they focus on the development and growth of the individual. Sportsmanship has been defined as a willingness on the part of the employee that signifies the employee‘s tolerance of less-than-ideal organizational circumstances without complaining and blowing problems out of proportion. 2006).1 Thought Examples: Where Games Work Based on our game experiences.. imagine a game that helped sort a complicated list of items. Games for Learning are a well-established genre of software. For example.

games don‘t demand lengthy reading or studying of manuals in order to play. we see how competitive games focused on ‗in-role‘ behaviors can introduce some awkward situations into the workplace and existing performance review processes. imagine a game which encompasses the daily tasks and work of a single employee.showing how they have improved themselves. gamers have learned from games that the cost of failing is very low. Joshua hasn‘t won. an employee has the opportunity to Productivity Games: Improving Software Quality through Fun and Play 10 . expecting the workplace to have transparency and a clear feedback loop. and they can always retry. fairness and transparency are in place.2 Engagement One indirect consequence of Productivity Games is the increased engagement of employees in the organization. For example.1. A feedback loop demonstrating success or failure clearly teaches and trains employees how to change their behavior. Gamers always expect the game to be fair. In a properly designed game.2 Thought Examples: Where Games Don‘t Work To illustrate where Productivity Games can be unsuccessful. They also expect fairness in how they are treated and in how they should treat others. They map these same expectations in a game into their job. they will not continue to play. which can quickly show disparity between students. otherwise. Players are given points for doing tasks Joshua would ordinarily do in his work. These two issues provide examples why games focused on ‗unique‘ skill sets are difficult to deploy. Games which rely on actions from the bucket of ‗unique‘ skills inherently limit the breadth of players available to play the game. And finally. we find another challenge. Similarly. let us provide some example scenarios which might better illustrate possible games. rather than comparing raw completion numbers. instead of a lengthy manual or memo. 4. Finally. game play maps directly to the ‗unique‘ skills that Joshua uses to earn his paycheck. Productivity Games provide an opportunity for an organization to communicate an organization objective or priority in a method that easily meets the needs of this younger generation. In the ―Joshua Game‖. And it is interesting to identify some of the attitudes and lessons which this younger generation has taken from playing these games. From this we can see that the younger generation values a feedback loop and transparency in the consequences. yet from this they expect clear feedback as to what they need to do to change their play in order to succeed later on. in the workplace. This presents our first problem: games which exclude players are not in the best interest of the organization. At the end of the ―Do Joshua‘s Job Game‖. the lengthy corporate memo outlining detailed reasons for organizational priorities carries less impact than is desired. Back to the example. From literature referenced above we know the ―gamer‖ generation have invested a significant portion of their lives in playing games. Additionally. will that reflect poorly on his performance in his ―real‖ job? Will it affect his manager‘s opinion of him? One thing for certain is that Joshua does not feel secure in his job anymore. Most games provide an introductory training mode where the player is given the opportunity to learn what they must know in order to move forward into the game. Joshua. Since Productivity Games require a broad number of players to have an impact. but the value of play is not lost. Some players are able to do most of the tasks Joshua is capable of. 4. First. and some are limited because they do not have the same ‗unique‘ skills that Joshua has. the objective of most games must be to add as many players as possible.

700 Table 2 Language Quality Game Statistics Success in the game was defined as the number of screen reviews across the 36 languages tested. for the Windows International Test Team.600 > 530. The results here demonstrate an immense amount of effort applied to the game. international population were invited to play. finding two independent vendors can be difficult and costly. With the incredible response.42projects. because the ―teaching‖ or ―coaching‖ is framed in a game. Productivity Games: Improving Software Quality through Fun and Play 11 . but the goal of the game was to achieve reviews of screenshots and dialogs for translation accuracy and clarity. The traditional business process uses specific language vendors to perform translation work. defect reports were not included in players‘ scores. To address this problem. the Language Quality Game was developed to encourage native speaking populations to do a final qualitative review of the Windows user interface and help identify any remaining language issues.comi.3 Language Quality Game The Windows Language Quality Game has been a successful Productivity Game. and then a secondary vendor to assess the quality. Table 2 illustrates the success that the Language Quality Game achieved as run against interim builds of Windows 7. The list of Windows languages can be found on Microsoft. Because of the latency in reviewing the feedback. most languages had several reviewers provide feedback per screen. 4. But. The goal was to ensure a high quality language release and using the diverse population of native language speakers within Microsoft has enabled the pre-release software to be validated in a fun and cost-effective way. Native language speakers from across Microsoft‘s diverse.engage quickly and easily in a ―training‖ mode which provides the basic information required for the employee to play the 119 > 9. they receive the feedback in a manner they are accustomed to learning from already. The business challenge has been that.300 > 6. Game Duration Total Players Total Screens Reviewed (Points Earned) Average Screens per Player Top Player Reviewed Total Defect Reports One Month > 4. It addresses organizational citizenship behaviors by calling on employees within Microsoft to apply their core native language skills to help assess the quality of Windows localization and translation work. This isn‘t to imply that employees are more apt to receive criticism (constructive or otherwise). defect reports were the most valuable output of the game. for some languages and locales. A more detailed description of gameplay can be found online at www. Rather.

4 Communicate Hope: A Benefit for Disaster Relief .000 in May 2010 to 18.26 http://blogs. During that time. The number of Microsoft Lync 2010 dogfood program participants has increased from an initial 5. a defect report would be created.000 in September 2010. 4. Reviewed screens lacking consensus were quickly reviewed. Over 47. The response to this productivity game-based beta program has been very positive.” ―Communicate Hope – A Benefit for Disaster Relief‖. The idea that ―giving once‖ – in terms of trying scenarios and sharing feedback with the team would ―help twice‖ – helping the quality of the product and helping disaster relief efforts.Logistically. such that the screens with the highest likelihood of fixable defects were handled quickly and efficiently. Each player earns points for one of five teams . The ―Moderator‖ role was filled on a per-language basis from the ranks of the international team. and allowed the review of multiple pieces of feedback per screen quickly and easily. over 10.000 ―Send Us Feedback‖ comments have been received from participants and key surveys such as ―Your First Week with Communicator ―14‖ have generated over 4200 responses.“Giving once helps twice. is a productivity game that enables Microsoft employees to ‗play‘ by providing ad-hoc and directed feedback on the Microsoft Lync 2010 Productivity Games: Improving Software Quality through Fun and Play 12 26 . Where there was obvious consensus from the game players. Forrester Research has referenced Communicate Hope in a report on Microsoft Serious Games. the massive amounts of feedback were handled by an international team with tools specially designed to display aggregated feedback.playing for a disaster relief agency .by accomplishing beta testing related achievements and tasks.forrester. but at a lower priority and more quickly. At the conclusion of the game.000 ―This or That Scenario‖ comparisons have been completed by almost 1600 participants to prioritize which Lync 2010 product scenarios are most important to them. Microsoft donates sponsorship funds to the disaster relief agencies based on the performance of the associated teams.

or if all players played cards from the same suit as the lead player. the suits in the EoP deck are the six elements of the "STRIDE" framework of threats Card decks are available for download http://microsoft.Figure 3 – OC Sonar – Communicate Hope Instrumentation 4. Tampering. and is designed to provide a fun and educational introduction to the concepts and practice of Threat Modeling. Denial of Service and Elevation of Privilege). To this end. or play a card of the declared "trump" suit. Repudiation.5 Elevation of Privilege Elevation of Privilege (abbreviated "EoP") is a card game developed by Adam Shostack. so that these threats can be enumerated.but the purpose of the game is to encourage the players to think of credible threats to an application design. in which a player leads a card of a particular suit. EoP can be played with the goal of simply accruing tricks. discard a card of a different suit. The basic gameplay is similar to that of many "trick-winning" card games. The winner of each trick then leads for the next trick until all cards have been used. analysed and and other players have to play a card that will match the suit. Productivity Games: Improving Software Quality through Fun and Play 13 . the player who plays the highest-value card from the led suit is the winner of the trick. Information disclosure. The winner of the trick will be the player who plays the highest-value trump card. Each card has a more specific threat on it. The deck contains 74 playing cards in 6 suits: one suit for each of the STRIDE threats (Spoofing. and gaining points for each trick won in this matter .

Alan Page. Games and play are natural activities and can be found almost everywhere. we need to think differently about how we engage employees and attract talent to high www. but another two hundred people did and therefore. even millions of ―players‖ to help assess and improve the quality of software. www. Dan Bean. that uncertainty is unmanageable. we got the ―work‖ completed. in today‘s connected world. In a traditional sense of work. Software testing is a discipline that has already benefitted from the use of games and game mechanics to attract short term bursts of effort across hundreds.Figure 4 . However. bonus. many people don‘t believe that work can be a game – or that games can be used to get real work done. large scale problems.defectprevention.). Cari Dick. the unmanageability can be overcome with scale. Anne Legato. So why don‘t we play games at work? For some reason. James Rodrigues. The game player decides when to stop or start playing. Fifty people may decide not to show up today. etc. 7 REFERENCES www.blogspot.productivitygames. As the demographics of a global and multi-generational workforce continue to change our landscape. Animals play games. Windows International team.Elevation of Privilege game 5 CONCLUSION Humans have played games as far back as we have existed. The definition of play is that it‘s recreational – not required. The obstacle may be the competition between game score versus the paycheck and other traditional workplace rewards (promotion.42projects. Robert Musson. 6 ACKNOWLEDGEMENTS Harry Emil. Joshua Williams. Games can be used to attract players in a voluntary Productivity Games: Improving Software Quality through Fun and Play 14 . Lync Test Team. Adam Shostack.

msdn.wmv Google Testing Blog – Using Games to Improve Quality http://googletesting. Windows XP and Windows Server 2003‖.com/story/organizational-trust-20-42projects Forbes London Business School – Business Strategy Review i Productivity Games: Improving Software Quality through Fun and Play 15 .aspx Trusted Advisor Interview http://trustedadvisor.php?/weblog/the_hobson_holtz_report_podcast_400_ november_24_2008/ – about 4:10 mins into the show Microsoft Help and Support: Knowledge Base.html Hobson and Holt interview Video TechFlash: Microsoft uses Video Game to help Windows speak like a local Dr. ―List of languages supported in Windows MSDN Game Theory : http://blogs.pdf CNBC blog Innovation Exchange http://www.html MSDN Tester Spotlight Dobbs Interview http://www.

Let’s Play Super Rutgers RPG: Interactivity by Proxy in an Online Gaming Culture Kris Ligman University of Southern California School of Cinematic Arts 25 March. 2011 .

a noninteractive record is easily produced which can then be experienced by countless subsequent audiences. and the . by the singular player with her hands on the controller. Background: Of Performance and Spectatorship In “Watching the Game”. games are not played nor experienced in this sort of theoretical vacuum.Kris Ligman – “Let’s Play Super Rutgers RPG” . These two categories I deemed the spectator. As should be abundantly clear by the ways in which we refer to “gaming culture.” I will begin by covering some of the foundational work begun in that paper. the multimedia videogame walkthrough. and especially so in an era where digital record-making is commonplace. both of which bias a particular assumption about how games are received and in what contexts: that is. who watches competitive play or other tests of skill and behaves similarly to sport spectators. “Watching the Game: Videogames as a Function of Performance and Spectatorship. especially those known as Let’s Plays. Much of this paper expounds upon research begun in my 2008 paper for UCLA. before moving on to how these ideas may be applied to the sharing of web assets through online communities. through the process of interactivity. However. whose in-person presence inarguably shapes play and yet is conventionally left unaccounted for.1 Introduction The literature of game studies has so far attended primarily to examinations of affect and aesthetic. This oversight is of course understandably motivated by the conventional ways in which we discuss games as being defined by their interactions with players.” however. This paper will seek to look specifically at one particular result of this coalescence of technologies. Yet our discourse does not reflect this. in which I discuss motivations for game watching and exhibition. I identified two major taxonomic categories of what I called non-playing videogame audiences.

”4 On the side of the player. I refer to Sports Fans: The Psychology and Social Impact of Spectators (Wann et al. he too invokes the sports metaphor. like books or movies. However. “I've always liked videogames and I like showing my favorites to others. adding. then you probably enjoy watching it. performance is again seen to be quite key. self-esteem benefits. it allows them to share in the actual ritual of spectatorship as a performance of identity.Kris Ligman – “Let’s Play Super Rutgers RPG” .3 Without prompting. group affiliation. often a sibling or friend whose “shotgun” perspective in the home media setting allows her to take in a different perspective as well as provide unique feedback to the singleplayer enactor of a game’s narrative or process. and aesthetic. one of the few rare female Let’s Players. “I've played games for friends of mine before I knew what LP was and they were bored. “If you like playing the game. “I think some people see video games as just another form of media. 23.1 In cases of both spectators and passengers. leading Let’s Player for the LP collective Freelance Astronauts. We will see that this performance factors quite strongly into rationales of viewership in the case of video walkthroughs. Particularly with respect to spectators.” says Voidburger. And they didn't wanna play .2 passenger. where we find the top five reasons for spectatorship of sporting events identified as entertainment value.2 We can trace each of these reasons as existing within videogame watching as well. likening game players to athletes. whose observation often takes place in a public setting. […] People love this stuff. ‘Would you like to watch someone play a video game?’ is like asking them ‘Would you like to watch someone watch a movie?’” says Maxwell Adams. there remains some ground to be covered in analyzing why players play for others and in what situations. Asking them. 2001). to varying degrees of importance depending on the setting and the observer’s relationship to the player. stress relief. watching the gameplay of others doesn’t simply excite others to competition or investment. as is the social aspect.

soon after. compressed video clips as forums (the Awful Forums/SA Forums) in 2005.6 All Let’s Players interviewed placed an emphasis on style.” says Let’s Play Archive administrator Baldur Karlsson. the motivation that is at the heart of Let’s Play. character art. It is not until the rise of media sharing sites such as Youtube and Photobucket in the mid 2000s that we begin to see multimedia walkthroughs. because they weren't into (founded in 1995 by Jeff Veasey and currently owned by CBS). the walkthroughs themselves are “something to be taken with a little bit of pride. technical standards and accuracy. 1990). extracted audio and hyperlinks become increasingly common. This emphasis was second only to the frequency with which they mentioned showing and sharing their love of videogames to others—indeed. as the name implies.”5 While many LPers deny doing the walkthroughs for status or praise. It's nice to play a game for an audience who actually wants to see that.3 either. screenshots.7 usually as descriptive text interspersed with screenshots. Beginning with renowned LPer and current Awful Forums moderator slowbeef and his video walkthrough of The Immortal (Electronic Arts.Kris Ligman – “Let’s Play Super Rutgers RPG” . when various forum members began posting long threads sharing their complete playthroughs of favorite childhood games. indicating that presentation is central to the performing player’s ethos. multimedia walkthroughs which combine video. largely as textual how-to documents on websites such as GameFAQs. first in the form of screenshots and. emphasizes the sort of collectivity and media share culture popularized by these sites. The term and its practice first appear in the gaming section of the SomethingAwful. Let’s Play: A Genesis (But Not a SEGA One) Videogame walkthroughs have long enjoyed popularity online. Let’s Plays. with Let’s Plays like Luisfe’s .

Youtube). depending on the LPer and the intended audience. are hosted on archive.9 At present. demystifying or devaluing game properties. Andrew Armstrong. since retired.8 This provided Let’s Play videos a safe haven from takedown notices by publishers and risk-averse video sharing sites like Vimeo and Youtube. these walkthroughs represent unique. still primarily drawn from the Awful Forums (which requires paid memberships to post and should not be taken necessarily as open to participation as. According to Archive administrator Baldur Karlsson. which are all too easily interpreted as simple infringement. In 2008. when concerns were raised that memorable walkthrough threads were being lost in the inactive backlogs of Something Awful’s fast-paced message boards. . 138 of the Let’s Play Archives 433 video walkthroughs. which we will look at in detail later in this paper. As of March 2011.Kris Ligman – “Let’s Play Super Rutgers RPG” .org). cult and fan favorites. including much of the more popular titles. the Let’s Play Archive hosts over 670 videogame walkthroughs for roughly as many titles. The support of the Internet Archive in protecting these documents of gameplay makes its own statement on the perceived value of these videos. the Let’s Play Archive (’s servers. becoming the norm. many of them obscure. Karlsson stepped up into the administration role and in the same year was approached by an editor for the Internet Archive (archive. who were typically attend to fairly stringent technical standards but can vary wildly in terms of format and content. as we will see by next looking at the documentation style of several LPs. 2004).4 walkthrough of Digital Devil Saga (Atlus. who offered to host the community’s video walkthroughs on archive. On the contrary. for was founded in 2007 by Awful Forums user From Earth. These walkthroughs. creative reconfiguration of game texts.

Opening with screen captures providing an expository shot of the temple. Luisfe then includes a link to Sahasrara’s Wikipedia entry. yet instead of ascension they find themselves transported into the “real world.10 Further . the information nexus at the center of the Junkyard. A sampling of one of the chapters in “Cannibal Hinduism in Digital Devil Saga” illustrates Luisfe’s format. as does its theme of ascension or descent through samsara. Luisfe shows to his readers protagonist Serph’s first visit to Sahasrara. “The Karma Temple”. Traveling to Nirvana with Hypertext: “Cannibal Hinduism in Digital Devil Saga” A relatively obscure but cult favorite for the Playstation2. Characters and locations often allude to elements within Hinduism. Let’s Player Luisfe organizes his walkthrough thread around a Hinduist model of spiritual enlightenment. Digital Devil Saga and its 2005 sequel are offshoot games of Atlus’s long-running Shin Megami Tensei role-playing game franchise. tracking the plot’s movement across chakra and providing outside links to the mythological concepts the game references. The games tell a Matrix-esque story of a group of combat AI attempting to defeat their rival tribes and thus ascend to Nirvana. let us turn our attention to two specific Let’s Plays present on the Archive’s homepage: Luisfe’s screenshot and video walkthrough of Atlus’s 2004 Shin Megami Tensei: Digital Devil Saga and archive administrator Karlsson’s own video walkthrough of Remedy Entertainment’s 2001 thirdperson shooter Max Payne. both attest to the Let’s Play community’s commitment to particular definitions of quality which have helped make their walkthroughs enduring documents. In Part 6.” which may itself be a second stage of simulation.5 Walking Through Walkthroughs: Digital Devil Saga and Max Payne To gain deeper insight into how a Let’s Play functions and is received by audiences. Picking up on this. Although quite distinct from one another in terms of format and visuality.Kris Ligman – “Let’s Play Super Rutgers RPG” . describing it as the seventh chakra in Hinduism.

Cryptic to a fault. Luisfe subtitles these stills with interpretations of the tattoos to explain their significance according to the game. glitches and speaks in a distorted voice—shows us the implied result of Luisfe’s decision. both referring to Serah. as well as their particular tattoos which signify their demonic alter-egos. but the way in which Luisfe builds up his procedure and uses commentary only as a supplement coalesces into what Karlsson describes as an “added value” Let’s Play. allowing the game text to speak for itself.” Luisfe notes in his textual commentary beneath the screenshot. Coordinated Voyeurism: Editing a Better Max Payne Compared with Luisfe’s encyclopedic Digital Devil Saga LP. which helps elucidate key concepts but remains for the most part hands-off.6 screen captures provide us with stills from a long cutscene in which we meet the leaders of the rival tribes. Later in the chapter. reminding readers that “that girl” has already been foregrounded for us in previous chapters of the walkthrough. “We already know the name. Baldur Karlsson’s video walkthrough of Remedy Entertainment’s 2001 third-person shooter Max Payne exhibits a more . In this authored instant. we become privy not just to a choice made by the LPer but his reasons for it. the young girl who will serve as a catalyst for the plot. It is a subtle moment.” the voice commanding the tribes to Nirvana. Digital Devil Saga benefits from this sort of minimalist commentary.”11 The second question is highlighted for us.Kris Ligman – “Let’s Play Super Rutgers RPG” . Supplemental video of gameplay and cutscene sequences are linked without audio or textual commentary. but the subsequent screenshots –in which “Angel. we come to one of the rare moments where the player is asked to make a verbal response: a choice between asking “What is the girl’s name?” and “Who is the girl?”. We see no animation indicating the choice made. a walkthrough where the foundational text is presented objectively save for particular procedural enhancements meant to improve comprehension. so it’s the other question that matters. “This is important.

Each video chapter is overlaid with Karlsson’s audio commentary. which otherwise would have to be witnessed awkwardly crouched behind a crate. noting enemy AI behaviors and the locations of items as well as occasional summary of the plot. carefully placing the camera and loading/reloading I was able to produce something I feel was more interesting than pure game recording.Kris Ligman – “Let’s Play Super Rutgers RPG” . Karlsson then takes his video one step further by editing his footage creatively. as though opening a fireside chat: “Hey guys. Though Karlsson’s methods break with objective documentation of his own gameplay.7 deliberately authored gameplay experience through several key techniques. beginning with a casual address to the unseen audience. he does so in order to enhance the “cinematic” feel of the game’s scripted events. welcome back to Max Payne. By cutting out the [HUD]. […] For this game specifically it also allowed me also to cut to an appropriate camera to overhear henchmen conversations. as he describes in interview: I used the developer tools that were still accessible in the game to splice in different camera angles that were as cinematic as I could manage. Toward a General Taxonomy of Let’s Play We have seen by looking at the above two walkthroughs that though format and intentions may differ.”12 The video is a fairly linear documentation of Karlsson’s playthrough supplemented with gameplay tips.13 In this instance we’re able to see how a Let’s Player is able to use developer tools and other available editing techniques to enhance the unique visuality of the game. Let’s Plays exhibit an attention to thoroughness and communicating to an . These are dramatic moments which can only exist with the creative application of tools by motivated fans seeking to draw out the essence of their play. The assertiveness of Karlsson’s voice in directing the viewer’s attention is already a departure from Luisfe’s approach.

Luisfe’s Digital Devil Saga walkthrough. we can identify several key characteristics of the Let’s Player and begin to develop an operational taxonomy. who may or may not be showing off expertise at the same time. like those we hear in Baldur Karlsson’s Max Payne LP. from single-player voiceovers reacting to some dated title or recordings of multiplayer plays among friends. comprehensive historiography of a videogame deemed valuable and memorable.Kris Ligman – “Let’s Play Super Rutgers RPG” . The style of these can vary wildly. With this in mind. The Comedian Humor is found frequently in LPs across all categories. As Let’s Plays evolved to include more multimedia content such as embedded or hyperlinked video. committed to telling the game’s narrative and supplementing the meaning of its highly referential text. sarcastic and oppositional walkthroughs which seek audience attention specifically for their humor. can be seen as a chronicle Let’s Play. game documentation threads on the Awful Forums which were dedicated to providing a single. as in the next type. but there are also explicitly satirical.8 audience those aspects of gameplay the LPer deems most valuable. the expert or showman Let’s Player is seeking to create a document of authority. such as the often schadenfreude- . are clearly of this particular sentiment. The Chronicler Possibly the earliest form of Let’s Play was the chronicle. The presence of the Let’s Player’s personality is also more commonly found in these documents. The Expert/Showman Contrasted with the chronicler. The expert/showman wants to share not simply a comprehensive play but an idealized version. Skill tips. these walkthroughs began to focus on representing all that there is to see and experience.

“The original thread was mainly in screen shot format which didn't .14 As Karlsson notes. but how funny and entertaining the situation and antics were. the main Let’s Play Archive hosts two separate walkthroughs of LucasArts’s 1998 Grim Fandango. and adjusting the objective record. The first record is a screenshot and textual walkthrough by Luisfe. Chief among them are the ways in which particular records of games crystallize in the minds of players how the game is or should be perceived. Let’s Play contains some inherent limitations. While most walkthroughs are presented as comprehensive documents. For instance. whose procedural style seen in his Digital Devil Saga LP returns here in the form of minor notes translating Manny’s Spanish. with works like Freeman’s Mind16 blurring the boundary between what is annotated play and what is pure creative performance. “The game was a medium to join in on a shared experience almost. One way of examining this practice is to look at instances where two or more Let’s Plays exist for a particular title. 2009) on four-player mode. It is also here that we see the greatest potential crossover with machinima. Thus. counter-historiographers take it upon themselves to offer alternative documents which allow for the revisiting of gaming artifacts. but otherwise few interventions.9 laden recordings of New Super Mario Bros Wii (Nintendo.17 When asked in the beginning of his walkthrough why he was covering the same title.Kris Ligman – “Let’s Play Super Rutgers RPG” . opening up new interpretations. a 3D point-and-click adventure game notable for lead writer Tim Schafer’s unique writing style. Counter-Histories As a practice of record-making.”15 Also of note is that this is the form of Let’s Play that has found the greatest success in short form. It wasn't about how funny and cool the guys were. humorous Let’s Plays are also enjoyed by viewers in the form of short excerpts and clips. second LPer Vexation answers.

”19 . Here we see the Let’s Player strongly interested in providing his own chronicle for the dual reasons that he feels it is underserved by the existing record and also potentially underserved by technological advancement.”18 Vexation also cites a personal vested interest in having a video record on hand. Identity performance is thus far more central to the counter-historiographer Let’s Player than the other types and may demand the most rigorous investigation in the future. that his uploaded encoded video will weather these same technological changes much better than the game itself. is also worth noting. lead writer of the Dragon Age series: “We have a lot of fans. Although both franchises have male and female default avatars. […] [They] have just as much right to play the kind of game they wish as anyone else.Kris Ligman – “Let’s Play Super Rutgers RPG” 10 included alot [sic] of the excellent voice work and music that the game features. the aesthetic choice of a player to adjust their protagonist’s appearance can in turn become a reflection on the player in a subtle but defining way. A good example of this would be the proliferation of video walkthroughs on Youtube which feature the customizable protagonists of Bioware RPGs Dragon Age (2009-2011) and Mass Effect (20072010). this is a topic of particular relevance already among certain developers. such as women gamers claiming a sense of empowerment from playing (and documenting themselves playing) the female Commander Shepard never present in Mass Effect’s official promotional materials. such as David Gaider. Furthermore. fearing that it would be a “hassle” to have the game play properly on future hardware. many of whom are neither straight nor male. Counter-histories are also means by which players can test the limits of their influence on a game engine to record their own preferences or personal stamp upon the game. Vexation’s unstated assumption. It may be especially valuable to further explore how minority representation is emboldened by these personal histories. and they deserve no less attention.

The amateur digital tools now at the disposal of the vast majority of web users has led to walkthrough content that is raw or refined. industries. genres. markets. esoteric or encyclopedic. Nevertheless. the main Let’s Play Archive attends to particular technical and content standards which may potentially prove the biggest obstacle to its widespread expansion. handpicking the Let’s Play standards they happen to prefer. gamic as well as non-gamic. depending on the format and content of the walkthrough. Convergence alters the logic by which media industries operate and by which media consumers process news and entertainment. which sees the web not simply pulling together media but redefining how that media is engaged. Youtube channels and personal blogs. the crowdsourcing of knowledge found in other fan activities in Convergence Culture would seem to predicate an increased acceptance of games wholly or partially experienced second-hand through documentation. Karlsson answered. As noted earlier. While nothing can fully predict how this practice will expand. imitators are free to set up their own video walkthrough sites. “The motto wasn't actually . When asked why the Archive’s former tagline (“We’ll play it so you don’t have to!”) is no longer present on the Archive’s website. and audiences. Let’s Play as a form of game watching may appeal to spectators and passengers alike.”20 Let’s Plays do not merely create documents of games but develop shareable assets infused with the Let’s Player’s interests and personalities. It “alters the relationship between existing technologies. That these walkthroughs have managed to develop in such a diverse fashion over the last few years speaks positively of the way they might still expand and take on additional influences.Kris Ligman – “Let’s Play Super Rutgers RPG” 11 Conclusion The what and why of the Let’s Play phenomenon can be located at the heart of Henry Jenkins’s 2006 Convergence Culture.

As game platforms diversify and even core titles adopt social characteristics. “I come from a computing background and I know how often they end up being wrong!” he says. a fun invitation to collective media engagement. today does not represent the obviation of play but a welcome message to those already with an interest in gaming who wish to self-educate and explore. making the practice one in which group membership is enhanced and validated. Let’s Play is but one example in which the practice of game watching and Web 2.Kris Ligman – “Let’s Play Super Rutgers RPG” 12 removed consciously really […] But I think also that Let's Plays have moved on from exclusively showing off a game just for people who haven't played it. noting that while Let’s Plays will certainly change depending on how games themselves change.23 Although relatively specialized within the larger context of media sharing among online gaming communities. Baldur Karlsson. waves off attempts to make projections on where games or social media will go. or any other purpose?”24 . we will see how the multimedia game walkthrough continues to adapt.”21 The name Let’s Play itself. noting he currently receives more volunteer offers than the Archive’s 18. In the conclusion of our interview.0 websites have interacted to create something far more prevalent and widely recognized than in the past.000 hits-per-day need. by day a programmer for Crytek UK.either for advertising. asking. it’s hard to make specific predictions. both in terms of value-adding to a basic playthrough. and in doing something different. There's a lot more to LPs now.22 Nevertheless. he seems optimistic about Let’s Play’s future. Karlsson turned the investigative lens onto me. “How do you think developers currently would feel about LPs were they aware of them? Do you think that LPs could ever be utilized by developers as a tool . or community building.

5 Voidburger.bioware. Web. et al. Print.” Let’s Play Archive. 22 Ibid. <http://social. 12 Jan. 15-25> 10 Luisfe.freelanceastronauts. 3 Maxwell Adams. 2008. 20 Mar. 2010. Baldur. 14 Maxwell Adams et al. 4 Ibid. Email interview. Baldur. 6 Karlsson. Email interview. See 3. Web. The series is a relatively dressed-down (for machinima) recording documenting Gordon Freeman’s journey through the locations of the original Half Life (Valve. 19 Mar. 2011. 18-23 Mar. 2011. Web. <http://www. Web. New York: New York University Press. 3 Mar. 18 Mar. “Re: Bioware Neglected Their Main Demographic: The Straight Male Gamer. <http://www. 16. 2011.htm> 2 Wann. 23 Ibid. Let’s Play Archive. 3> 13 6661775&lf=8> 20 Jenkins. 17 Luisfe. New York: Routledge. Let’s Play Grim Fandango!” Let’s Play> 11 Much of the subversive humor of Freeman’s Mind. 12 Karlsson. 18 May. supplemented by Freeman’s inner monologue (provided by Scott). Should we take a prohibitive stance to a practice which reinvigorates interest in littler-known. often out-of-print titles and puts a creative spin on more popular ones? Do Let’s Plays simply demystify and devalue games as products? Are they tantamount to piracy? Or are they potentially some of the best advertising a publisher could ask for? References 1 Ligman. 31. Web. Web. “Cannibal Hinduism in Digital Devil Saga”. 09 May. 2011. 8 Ibid.” dichtungdigital.php?id=52> 15 Ibid. <http://lparchive. “New Super Mario Bros Wii”. 16 A comedic machinima series by Ross Scott. 18 Feb. 2011. “Watching the Game: Videogames as a Function of Performance and Spectatorship. <http://www. <http://lparchive. David. 10 Mar. <http://bd. 2011. Sports Fans: The Psychology and Social Impact of Spectators. Web.” Bioware Social Network.Kris Ligman – “Let’s Play Super Rutgers RPG” 13 It serves as both a general question and an overt concern. See 3. 21 Karlsson. Freelance Astronauts. 4-22 Mar. Internet Archive. “Get your tickets ready for Grim Fandango: The Movie. Henry. 2011. 9 “Let’s Play”. “Max Payne – Part 1 Chapter 2: Live from the Crime Scene”. Email interview. 7 Ibid. Baldur. 2011. Web. 2011. Kris. 24 Ibid. Daniel L. “The Day of the Dead is coming. . 11> 18 Vexation. 2001. 2011. Freeman’s Mind began its run in 2007 and continues to be a popular series on Machinima. Email interview. 1998). 2006. is in lending a provocative personality to a traditionally silent protagonist. 2007. 2008. <http://lparchive. 2011. Convergence Culture: Where Old and New Media Collide. Baldurdash.> 19 Gaider. 20 Mar. Email interview. then.archive.

USA ABSTRACT On November 2. the U. Lee 1 . as a legal precedent. Inc.S. comic books. First. Playboy Entertainment Group. strict scrutiny. 2010. which have First Amendment protection and have never been regulated. the Court asked questions about whether a category of violent video games. April 8-9. it might be conjectured that the Court would adjudicate Video Software Dealers Association v.” Third.S.” This Playboy Court’s approach provides meaningful insights into balancing between controlling negative effects of new media and formulating regulations that do not stifle the development of new forms of media content. 2011 For Constitutional Control of New Media: Examining the Judicial Obsession with Causality in Video Software Dealers Association v. PA 16802. it expressed doubt about how the State could determine the “deviant” violence of video games coupled with the question of the definition of “minors. defined by the California statute. the Court questioned why violent video games should be treated differently from other forms of media content such as violent films.The Game Behind the Video Game: Business. Supreme Court heard arguments from the State of California. the U. fairy tales and rap music. Schwarzenegger Ju Young Lee Penn State University University Park. freedom of expression. showing a different approach from the Playboy Court. violence. Specifically. The Schwarzenegger case generated that balancing problem by placing too much emphasis on the causality between violent video games and the actual harm for establishing a compelling interest. the existence of a compelling government interest was questioned. Schwarzenegger (2009) focusing on the legal and practical effectiveness of the state restriction on video games in protecting minors from violent video games rather than on the identification of a compelling government interest. In this hearing. USA. This approach is in line with the decision made by the Court in United States v. (2000) that struck down Section 505 of the Telecommunication Act of 1996 due to the availability of a less restrictive and allegedly more effective means to shield children from “signal bleed. and whether parents can fully supervise and control what games are being played by their children (Oral Argument before the Supreme Court. Analyzing Schwarzenegger using Playboy lenses will provide a useful framework to evaluate the regulation of new forms of expression. 2010). the Court appears to recognize possible harmful effects of video games and the necessity for protecting children from that harm. As a result. and the Schwarzenegger decision. who attempts to adopt a statute that prohibits the sale or rental of “deviant” and “morbid” violent video games to minors. 2010. obscenity 1 INTRODUCTION On November 2. Supreme Court heard arguments from the State of California. This study stemmed from the criticism of the court’s obsession with the practically unverifiable causality and compared the Playboy decision. Second. KEYWORDS: videogame. New Jersey. In this hearing. the Court’s questions revolved around the following three points.” violent video games to minors. which attempted to adopt a statute prohibiting the sale or rental of “deviant” and “morbid. Regulation. is harmful to minors. and Society in the Gaming Industry New Brunswick.

2010) Is the actual harm of a violent video game testable or verifiable? Under strict scrutiny. 1998. Louis County (2003). scrambling or time-channeling requirements on cable operators. Lee 2 . Second. the vagueness of the California law. 706). 2009. and Entertainment Software Association v. Schwarzenegger (2009) and repeatedly contested in other Circuit and district courts that have struck down the similar laws restricting minors’ access to violent video games. is the ‘least restrictive means’ standard only an element of the ‘narrowly tailored’ means standard? (Is there a 1 There are four circuit court cases on video game laws including the Schwarzenegger case: American Amusement Machine Association v. rather than on the identification of a compelling government interest. v. United States.1 However. some of the Justices. This approach is in line with the decision made by the Court in United States v. some important questions can be asked. As a result.” and because the government failed to prove that there exists no less restrictive alternative to further the purported government interest (VSDA v. Blagojevich (2006). killing. 967). under the standard of strict scrutiny. it might be conjectured that the Court would adjudicate the Schwarzenegger case focusing on the legal and practical effectiveness of the state restriction on video games in protecting minors from the deviant and morbid violence of certain video games. p. With regard to this decision. First. Henry (2006). Inc. The Playboy Court also questioned whether a compelling government interest is achieved by imposing the blocking. the Court considered parents’ concern about their children’s access to the highly offensive material. the government must prove that the alternatives are less effective and not less restrictive than the regulation at issue. Although the Court also considered the overbreadth of the Act. Maleng (2004). Foti (2006). and Entertainment Software Association v. Kendrick (2001). 2 The existence of the signal bleed problem was not a critical factor in the decision. actually exists.” the “partial reception of video images and/or audio sounds on a scrambled [sexually explicit adult programming] channel” (Playboy Entertainment Group. due to the availability of a less restrictive and allegedly more effective means to shield children from “signal bleed.In short. Yet. These concerns seem to be merely an extension of the questions that were considered in Video Software Dealers Association (VSDA) v. Schwarzenegger (2009) is a case involving the balancing problem. The Playboy Court’s approach provides meaningful insights into balancing between controlling the negative effects of new media and formulating regulations that do not stifle the development of new forms of media. the Court was concerned with the qualification of violent video games for First Amendment protection. Playboy Entertainment Group. Entertainment Merchants Association v. Schwarzenegger.S. Is the “video game in which the minor commits violent acts of maiming. Court of Appeals for the 9th Circuit affirmed that. in deciding to shield children from certain speech protected by the First Amendment. Granholm (2006). the Court struck down Section 505 of the Telecommunications Act of 1996. the U. and the necessity of the governmental intervention in video game sale or rental to minors. or more precisely. which provide sexually-oriented programming. Swanson (2006). In Schwarzenegger. seemed to recognize possible harmful effects of video games and the necessity for protecting children from that harm. Inc. St. In that case. Interactive Digital Software Association v. which must be addressed by government regulation. the Court. there are several district court cases that have struck down similar video game restrictions: Video Software Dealers Association v.2 In relation to the debate on the protection of minors from arguably harmful violent video games. (2000). setting people on fire” not harmful to minors? (Oral Argument before the Supreme Court. when there are alternative ways to achieve a compelling interest. Entertainment Software Association v. Additionally. the California statute is unconstitutional because the state government failed to demonstrate the causal relationship between violent video game playing and “psychological or neurological harm to minors. Its concern was in whether the signal bleed problem. Video Software Dealers Association (VSDA) v. the implications of the decision in Playboy are twofold. Entertainment Software Association v. p. the key reason for its holding appears to consist in whether the State successfully established a compelling interest by providing sufficient evidence that violent video games cause actual harm to minors. the Court’s question does not necessarily mean that it doubts the harmful effect that indecent content might have on minors.

political. or sexually assaulting an image of a human being. 31) However. (2000) will be reviewed for a comparative analysis of the two cases. the government must demonstrate that the statute “is necessary to serve a compelling state interest and is narrowly drawn to achieve that end” (Arkansas Writers’ Project. In many cases. Anderson. 2 CONTENT-BASED RESTRICTION AND STRICT SCRUTINY In First Amendment jurisprudence. 2009. In this section. 1987. The Court mentioned United States v. the State argued that the Act is allowed by the First Amendment based on the “variable obscenity” or “obscenity as to minors” standard established in Ginsberg v. Lee 3 . to lack serious literary. or scientific value for minors. Playboy Entertainment Group.5). 2009).” making its enforcement impossible. which has First Amendment protection based on its content. The Act defines a “violent video game” as follows: (d)(1) "Violent video game" means a video game in which the range of options available to a player includes killing. the state of California enacted a law (Civil Code §§ 1746-1746. 2005. Nevertheless. cited in Franklin. would find appeals to a deviant or morbid interest of minors. “[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor” (California Civil Code § 1746. Schwarzenegger (2009) and United States v. according to Franklin. Therefore. Specifically. Anderson. only as a precedent that applied the least restrictive means standard to strike down a government restriction on speech. if those acts are depicted in the game in a manner that does either of the following: (A) Comes within all of the following descriptions: (i) A reasonable person. On the other hand. Inc. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. the State asserted that there is a compelling government interest in “[preventing] harm to children and [enabling] parents to guide their children’s upbringing. in order for a statute restricting protected speech to be valid and constitutional. The VSDA argued that the Act is unconstitutional on the grounds that video games are speech protected by the First Amendment. the implications of the Playboy decision for the evaluation of the constitutionality of video game regulations seem more than that. which provides information about video game content and therefore helps parents control what games their children can purchase and play (VSDA v. Playboy Entertainment Group. Petitioners’ Brief. the ‘least restrictive means’ standard is not always applied by the Court as the third requirement.possibility that the least restrictive means standard could be an independent factor determining the constitutionality of the speech restriction?) This paper addresses these questions by comparing the Playboy decision. the facts and decision of Video Software Dealers Association v. 2009). restricting speech. maiming.1(a)). Schwarzenegger. 2. and that content-based restriction is subject to strict scrutiny. They also asserted that the Act was not narrowly tailored because there is a voluntary rating system. & Lidsky. New York (1968). Schwarzenegger (2009) In October. implemented by the Entertainment Software Rating Board (ESRB). and the Schwarzenegger case. artistic. is presumptively unconstitutional. Inc. & Lidsky (2005). p. as a legal precedent.” and that the Act is the least restrictive means to further the State’s compelling interest because the ESRB self-regulating rating system – “a voluntary system without the force of law or civil penalty” – and the technological system for parental control may not adequately protect minors from “unquestionably violent” video games (VSDA v. v. Ragland. and that the definition of “violent video game” provided in the Act was “unconstitutionally vague. Analyzing Schwarzenegger using Playboy lenses would provide a useful framework to evaluate the regulation of new forms of expression. (iii) It causes the game.1 Video Software Dealers Association v. whether the government regulation is the least restrictive means has been examined to determine the narrowly tailoredness of the regulation. as a whole. which states that. 2005. dismembering. Schwarzenegger. considering the game as a whole. Inc.

m. the court did not uphold VSDA’s argument that the definition of violent video game is unconstitutionally vague (VSDA v.” and that the State must choose. § 561). Schwarzenegger.C. Inc. It was assured that the statute must be narrowly tailored to respect “adults' viewing freedom” in order to “restrict no more speech than necessary. Playboy Entertainment Group. p. Inc.. in effect. Playboy Entertainment Group. 953). §560). Congress passed the Communications Decency Act (CDA).2 United States v. Section 505 of the Act required cable television operators providing channels “primarily dedicated to sexually-oriented programming” either to “fully scramble or otherwise fully block” those channels or to broadcast them during the "safe-harbor" hours of 10 p. P. 807. “would provide as much protection against unwanted programming as would Section 505” and be less restrictive on “Playboy's First Amendment rights” because it was a contentneutral regulation (United States v. “either or both audio and visual portions of the scrambled programs might be heard or seen. 2. 3 PROTECTION OF MINORS AND FREEDOM OF EXPRESSION The two cases reviewed are representative cases holding the unconstitutionality of government regulation of a new form of media content for the purpose of protecting minors from allegedly harmful speech. which requires a cable operator to fully scramble or block any channel a subscriber does not want to receive upon the subscriber’s request (Telecommunications Act of 1996 §504. 811). the court found that the State did not “demonstrate a compelling interest in preventing psychological or neurological harm” of violent video games to minors.. These cases are similar in that they address the constitutionality of the regulations intended to protect minors (or children) from the possible harm of controversial media content such as indecent Lee 4 . a content-based restriction on indecent speech protected by the First Amendment. 810-813).” The Court found that Section 504.” The court asserted that the California statute is a content-based restriction and thus “subject to strict scrutiny and not the variable obscenity standard from Ginsberg.” Applying strict scrutiny.S. the 9th Circuit held that “the Act violates rights guaranteed by the First and Fourteenth Amendments. as well as speakers’ right to “adult speech” (United States v. The main complaint about Section 505 is related to the fact that most cable operators providing adult-oriented programming channels had “no practical choice” but to adopt the “time-channeling” option so as to avoid “the penalties imposed… if any audio or video signal bleed occur” during the regulated sixteen hours except the safe-harbor hours. Inc. and that even if the State established a compelling interest.” However. p. Inc. The court held that the mandatory labeling is “impermissibly compelled speech” under the First Amendment because the label would provide “the State’s controversial opinion” rather than “purely factual information.m. to 6 a. was unconstitutional because the Government failed to demonstrate that Section 505 was the least restrictive means to achieve the compelling government interest. “when children are unlikely to be viewing” (Telecommunications Act of 1996 §505. 2000.S. 2000. Inc.C. 47 U.Despite the State’s arguments. The labeling requirement was also held to be unconstitutional. Playboy Entertainment Group. meant the removal of “sexually explicit adult programming” from the time slot outside the safeharbor period. which is Title V of the Telecommunications Act of 1996.. The Court recognized that the extensive adoption of time channeling. Playboy Entertainment Group. 2000. (2000) In 1996. p. 2009. the Court concluded that Section 505. Based on the reasoning above. an alternative means “that would further the compelling interest in a “less restrictive” but “at least as effective” way. challenged the constitutionality of Section 505 by arguing that the Act is an “unnecessarily restrictive content-based” regulation violating the First Amendment. 47 U. the Act was not narrowly tailored because there exist less restrictive means to promote the purported interest. and was narrowly tailored. and that the elimination of adult programming infringes on adults’ constitutional right to view it. 806).” Section 505 was enacted to protect children from that “signal bleed” problem resulting from imperfect scrambling (United States v. if any. Although scrambling was already being used by cable operators to allow only subscribers to watch the premium channels. Playboy Entertainment Group.

If the restriction is a contentbased regulation of protected speech. Considering a number of documents – “legal analyses. the court questioned the existence of the State’s interest that justified the protection of minors from the alleged harm of violent video games. (VSDA v. general background papers. the court required the government to “demonstrate that the recited harms are real. The validity of the governmental restriction on speech depends on whether the speech at issue has First Amendment protection and whether the restriction is content-based. Schwarzenegger. which involved a restriction of violent and sexual video games. and the California video game law is subject to strict scrutiny. It is enough for the purposes of this case that we inquire whether it was constitutionally impermissible for New York . the court also cautioned against expanding “the boundaries of the legal concept of obscenity under the First Amendment” based on the opinion in Miller v.” – including studies on the negative effect of violent video Lee 5 . California (1973) that expressly limited “the permissible scope of regulation” to sexually explicit material (VSDA v. 3. the government must first demonstrate that there exists a compelling government interest in regulating the speech. p. 2009. Therefore. the least restrictive means standard will be regarded as the third prong independent of the narrowly tailored means standard. However. 960). there is no historical tradition that violent speech was regulated (Oral Argument before the Supreme Court. position papers. Although the State constructed the definition of violent video games by incorporating the three prongs of the Miller standard.2 Compelling Government Interest When imposing a restriction on protected speech based on content. That is. p. v. the State pointed out the “obscene level of violence” (Oral Argument before the Supreme Court. under the assumption that parents might not fully supervise and control what their children play and watch. FCC. Accordingly. In American Amusement Machine Association v. Schwarzenegger and Playboy will be analyzed based on this First Amendment principle. enacted the law that directly restricts the speech at issue to facilitate parental controls. 960) In addition. 664. Based upon the decision of Turner Broadcasting Sys. Nevertheless. p. to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see. violent video games should be assumed as protected speech. etc. the harm of these materials to minors might be prevented by parental controls of minors’ access to them. Access to the controversial content at issue in these cases is very limited. even extremely violent video games. Schwarzenegger. Inc. 1994. cited in VSDA v.programming and violent video games. 2009. not merely conjectural” (Turner Broadcasting Sys. 962 ). Inc. 3. which could be constitutionally restricted by the California statute. in applying strict scrutiny. However. it is presumptively unconstitutional and must pass strict scrutiny to be valid. The unique implication of the least restrictive means standard will be shown in the following analysis. FCC (1994). . . are based on plot lines and could have some artistic values. 2010) of certain video games and argued that violent video games were not protected speech. the Seventh Circuit distinguished violence from obscenity.1 Qualification of Violent Video Games for First Amendment Protection In VSDA v. Schwarzenegger. Most video games. In Schwarzenegger.. Moreover. Schwarzenegger (2009). v. video game violence should not be interpreted or treated as obscenity in consideration of the Court’s original intention. 2010). the government. 2009. Kendrick (2001). the court declined the State’s application of the Ginsberg rationale – the “variable obscenity” or “obscenity as to minors” standard – to violent video games by quoting the Ginsberg Court’s holding that shows the Court’s intention to limit the application of the variable obscenity standard: We have no occasion in this case to consider the impact of the guarantees of freedom of expression upon the totality of the relationship of the minor and the State. and the adult-oriented programming is scrambled and offered on a subscription basis.. video games should be purchased or rented for playing. p.

games (i. Gentile.. and Justice Scalia join. The dissenting opinion in Playboy asserted that the “[g]overnment has a compelling interest in helping parents by preventing minors from accessing sexually explicit materials [which are assumed to be harmful to minors] in the absence of parental supervision. 2003. This simulation feature of video games has been regarded as a unique characteristic that makes video games an effective tool to educate or develop a certain skill (e. parents’ concern about the possible negative impact of violent video games needs to be viewed as an important factor that determines whether there is a compelling government interest in restricting the minor’s access to violent video games. as other courts found (e. p. However. 2010). the 9th Circuit found that those studies did not provide sufficient evidence of a causal link between playing violent video games and psychological or neurological harm to minors. 2004. 2009. at 665. 2004.e. Blagojevich. cited in VSDA v. 2009. setting them on fire..” in justifying the application of the lowest level of scrutiny (i. American Amusement Machine Association v. St. some Justices expressed serious concern over violent video games that enable the minor to commit violent acts. Granholm. 2006) (VSDA v. Playboy Entertainment Group. 2009).” (Ginsberg v. there is no consensus on the harm of violent speech. Aldrich. v. at 50) In conclusion. the characteristics of video games as a new form of media content should not be overlooked.. Additionally.g. (p. and sexually assaulting virtual human beings. 2004). That simulation feature and the interactivity of video games could support the conclusion of many studies that violent video games may have a larger impact on minors’ behavior and cognition than violent movies. 1968. Schwarzenegger. (2000).. 963-964). That conclusion also supports the State’s argument that “sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable. 2006. The Court recognized that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.. Anderson. Lee 6 . the court’s rejection of the existence of the compelling government interest appears to overlook an important interest that might justify the State’s regulation of the sale or rental of violent video games. FCC. cited in Petitioners’ Brief. Louis County. books. dissenting.g. In the Supreme Court hearing of the oral argument for VSDA v. the Court considered the parent’s concern. 2004. 1994. 2001.e. the Court should consider the parents’ concern about their children’s access to highly offensive violent video games. Inc. New York. 959) While it has been recognized that sexually-oriented indecent speech is harmful to minors. 811) This indicates that parents’ concern about their children’s access to harmful speech may constitute a compelling government interest. Therefore. p. In Ginsberg. Interactive Digital Software Associationn v. rational basis standard) to the prohibition of the sale of sexually-explicit material to minors. Justice O'Connor. the Court assumed that: many adults themselves would find the material highly offensive. Entertainment Software Association v. “the [g]overnment disclaims any interest in preventing children from seeing or hearing [them] with the consent of their 3 Justice Breyer. Entertainment Software Association v. 2000. with whom The Chief Justice. such as killing. as well as the state’s “independent interest in the wellbeing of its youth. Maleng.. and urinating on them (Oral Argument before the Supreme Court. and songs. 8433) Accordingly.” (Turner Broadcasting System. p. instead of requiring unobtainable proof of actual harm of violent video games. Playboy Entertainment Group. it is practically impossible to test or verify the causal effect of both sexual and violent speech on minors because longitudinal studies of that effect would involve exposing minors to the allegedly harmful content. Video Software Dealers Association v. maiming. 2009. Schwarzenegger. 639-640. Schwarzenegger.” (United States v. Smith. Funk et al. and [that] when … the material comes unwanted into homes where children might see or hear it against parental wishes or consent. the proof of the causal relationship between sexually explicit material and actual harm to minors was not required. However. In protecting children from the signal bleed of sexually-oriented programming channels. Inc. Kendrick. In United States v. there are legitimate reasons for regulating it. Inc. p.

Inc. p. Playboy Entertainment Group. A narrowly tailored means may mean a measure that effectively promotes the government goal by restricting only targeted speech but does not affect other legitimate speech or rights. Maleng (2004). prohibiting “the distribution to minors of video games involving violence against law enforcement personnel. 807. This case indicates how the narrowly tailored means standard can be distinguished from the least restrictive means standard. 966).parents. The Court found that the time channeling requirement may not prevent minors from being exposed to inadvertent signal bleeding of adult programming channels in the absence of parental supervision.5 states that “[t]he provisions of this title are severable. 811).” was “both over-inclusive and under-inclusive because the set of [video] games covered by the statute did not reflect the harms the legislature sought to alleviate. 2005. p. the court did not uphold their argument. Although VSDA continuously argue that the definition of violent video game covered by the Act is unconstitutionally vague. would not likely affect the adult right to play those video games. In sum. Section 505 is not narrowly tailored for furthering the compelling interest. Section 505 provides a clear definition of the targeted speech. p. 953-956). 2) is the definition of the targeted speech not vague?. because retailers might not like to sell “labeled” video games. The court held that the severability clause in Civil Code § 1746. 2009. the Court doubted Section 505’s efficacy in achieving the compelling interest of protecting children from signal bleed under the premise that most cable operators complied with Section 505 by time-channeling their programs. However. or depraved in that it involves torture or serious physical abuse to the victim. 2000. that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.. in relation to the decision of Playboy and Schwarzenegger. the California state could argue that there is a compelling interest in empowering parents to control their children’s access to allegedly harmful violent video games by banning the sale or rental of violent video games.m. Inc. signal bleed. which means the “partial reception of video images and/or audio sounds on a scrambled [sexually explicit adult programming] channel” (Playboy Entertainment Group. v. cruel. This statute.” Lee 7 4 . Taking this approach. the government restrictions on speech were found to be not narrowly tailored because less restrictive alternatives to achieve the government end existed. three questions can be asked: 1) can the statute achieve the government’s child-protecting objective?. the statute was therefore not narrowly tailored. p.. 706).” 5 Section 1746(d)(1)(B): “Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous. 2009. as well as Playboy’s First Amendment right to transmit “adult speech” (United States v.54saved the Act despite the unconstitutionally broad definition of violent video game in Section 1746(d)(1)(B)5 (VSDA v. Schwarzenegger. 811) By the same token. in principle. Inc. and 3) does the statute infringe adults’ right to the targeted speech? In Playboy. 2000. p. The court did not provide a clear opinion on the effectiveness of the Act in achieving the State’s interest in protecting minors from psychological or neurological harm. this retailers’ tendency could reduce the number of video games that are available to adults. whether the government regulation at issue meets the narrowly tailored means standard can be examined from a different perspective. In Video Software Dealers Association v. in practice. Schwarzenegger. and 10 p. and thereby infringe on adults’ constitutional right to view them.” (Video Software Dealers Association v.” (United States v. Schwarzenegger. time-channeling adult-oriented programs may result in eliminating those programs from the time period between 6 a. Playboy Entertainment Group. United States. p. but it appears to assume that the ban on the sale or rental of violent video games to minors and the labeling requirement would keep violent video games from being “legally purchased by anyone under 18 years of age” (VSDA v. 1044). 3. The Schwarzenegger decision can be analyzed using the same frame.3 Narrowly Tailored Mean In both Playboy and Schwarzenegger. Furthermore. However. 1998. the court ruled that the statute. indirectly infringing both the adults’ right to play video games and the video Civil Code § 1746. If any provision of this title or its application is held to be invalid.m. However.

815) However. 2000. Also. Inc. such as the Internet and video games. Contrary to Playboy. unlike the Playboy Court. the Court asserted “[i]f a less restrictive alternative would serve the Government’s purpose. the court. In determining whether the less restrictive means is feasible and effective. 816) Applying those principles to VSDA v.” (p. 4 CONCLUSION Prior court cases dealing with government regulation of violent video games including VSDA v. producer’s right to communicate with adult video gamers through video games. the legislature must use that alternative. The Court recognized that voluntary blocking might not be effective because it required parents to take action with adequate information. Schwarzenegger. the court hinted that the labeling could make legitimate video games prevented from being sold to minors by holding that the label provides “the State’s controversial opinion” rather than “purely factual information. the Schwarzenegger court did not discuss the comparative restrictiveness and effectiveness of the alternative means compared to the proscription of violent video game sales and rentals. Schwarzenegger (2009). the government must prove that the alternative means. 967). the relative efficacy of Section 504 compared to Section 505 – especially the time channeling requirement – was controversial. full blocking. Playboy Entertainment Group. Schwarzenegger.4). this third prong needs to be discussed separately because it is very difficult to determine whether or not a means is the least restrictive and. The court also pointed out that the Act does not speak about “an exception for sales to minors accompanied by a parent. Inc. including Schwarzenegger. enhanced educational campaigns.. not to stifle the development of new media and new forms of content.” (United States v. Lee 8 . it seems evident and clear that there was a less restrictive alternative to Section 505 requiring full scrambling. The Court held that Section 504 was a less restrictive and more effective means to promote the compelling government interest in that it facilitated parental controls “without affecting the First Amendment interests. This shows that the court struggled to protect First Amendment principles rather than to find a better way to manage a new form of media and to cope with the problem related to the new media. the least restrictive means standard would play an important role for establishing a system where freedom of expression and government control of the side effects of the new media can harmonize. at the same time.” (or “voluntary blocking”) which is a content neutral regulation. at the same time. Playboy Entertainment Group. Also. In United States v. the key point is that “it is the government’s obligation to prove that the alternative will be ineffective to achieve its goals.” restricting the minor’s access to video games that are allowed by parents (VSDA v. 2009. 3. 813) The importance of the least restrictive means standard consists in finding less restrictive and more effective means to control the problem and. and parental controls. this standard is a safety valve that prevents the unduly restrictive regulation of new forms of media. most effective means. (2000). p. 953) Despite the problems examined above. If parents fail to ask cable operators to block the programming.4 Least Restrictive Means There appears to be no disagreement on the principle that the existence of less restrictive alternatives presumes the over-inclusiveness of the measure at issue and automatically constitutes a violation of the narrowly tailored means standard. the compelling interest in protecting children from signal bleed would not be served. With regard to the labeling requirement. In deciding the video game cases. or time channeling because the statute included Section 504 providing free “targeted blocking. n.” (p.” (VSDA v.” are less restrictive and more effective alternatives to a ban on the sale or rental of violent video games (p. This leaves many questions that should be addressed in the Supreme Court. Nevertheless. 2009. did not specify those problems in its opinion by evaluating whether the Act was narrowly tailored mainly in terms of the availability of less restrictive means to promote the compelling interest. such as “the improved ESRB rating system.

Media Violence: The Effect Are Both Real and Strong. Anderson. Mass Media Law: Cases and Materials (7th ed. & Baumgardner. Journal of Adolescence. A. R. P. Anderson. K.. New York. 1212-1230. Franklin. for providing invaluable guidance in writing this paper. A.. B. Jr. An Update on the Effects of Playing Violent Video Games. Linderc. 51(8). Journal of Adolescence. obscene speech) by requiring the government to provide a clear link between video games and the actual psychological and neurological harm to minors. (2004). H. the core value of the First Amendment should not be compromised by the institutional control over the new media. video games are challenging many existing rules and necessitating new rules in diverse areas. and the Internet: Is There Desensitization?. 2010).scotusblog. The court’s obsession with the causal relationship between violent video games and the alleged harm to minors may frustrate society’s effort to develop efficient tools to manage new media and technologies.. NY: Foundation Press. CA: Wiley (Pfeiffer). Entertainment Merchants Association. Violence Exposure in RealLlife. & Lee 9 . Attorney General of the State of California. (2009). Retrieved from http://www. R. (Nov. (2009). Palmer Chair of Telecommunications Studies and Law and Co-Director of the Institute for Information Policy at Penn State University.).Schwarzenegger (2009) demonstrate that the court attempted not to expand the boundaries of unprotected speech (i. Baldacci. J. J. Gentile. Murray. D. However. (2008). (2004). B. The Playboy decision suggests that the Supreme Court should encourage the government to formulate more effective regulation by reviewing the Schwarzenegger case mainly in terms of the narrowly tailored means and the least restrictive means American Behavioral Scientist.. D. Television. 6 REFERENCES Aldrich. C. Video Games.. J. Playboy Entertainment Group. As a new form of speech. T. it is important to find the way to harmonize free speech rights and the compelling government interests such as protecting minors from video game violence. The Complete Guide to Simulations and Serious Games. M. 27.. Orlando. Saunders. Instead. C. United States v. Pasold. The First Amendment is one of the rules that are challenged by video games. as well as the compelling government interest standard. aggressive behaviors. P. (2000) provides useful insights into such rule-making. Inc. London: Duke University Press.aspx?argument=081448 Brief for Petitioners Arnold Schwarzenegger. A.e. Governor of the State of California and Edmund G. Movies. J. and school performance. D. A. D. J. Even though the court strove to preserve the existing rule. Although applying the Ginsberg rationale to justify the government regulation of violent video games is inappropriate. FL: Modelbenders Press. 23-39.. Funk. San Francisco. Smith. A.supremecourt. (2004) The effects of violent video game habits on adolescent hostility. W. Richard Taylor. B. Oral Argument before the Supreme Court: Schwarzenegger v. Durham. Brown. (2005). 27. A. 2. & Lidsky L. Schwarzenegger can be regarded as an attempt to establish a new system and rule. Journal of Adolescence. Lynchb. Violence As Obscenity: Limiting the Media’s First Amendment Protection... (1996). 5-22. 113-122. 5 ACKNOWLEDGEMENTS I would like to express my special thanks to Dr.. Military Simulation & Serious Games. 27. the underlying purpose of regulating sexually explicit material deserves to be considered in deciding Schwarzenegger. Retrieved from http://www.

). Wash. 556 F. Playboy Entertainment Group. 2d 1180 (W. v. Entertainment Software Association v. 529 U. Kendrick. Ginsberg v.S.3d 641 (7th Cir. Interactive Digital Software Associationn v.D. 2006). Blagojevich. 2d 823 (M.S. Maleng. Swanson. 2006 WL 2927884 (W. Turner Broadcasting System. to ortizj@rutgers. v. Foti. 512 U. 72% of adults support gaming laws? Well. La. 451 F. Mich.3d 572 (7th Cir. 803 (2000). 2001). 622 (1994). Entertainment Software Association v. Okla. Entertainment Software Association v. Video Software Dealers Association v. Reno v.S. Inc. Blagojevich. Schwarzenegger.D. Supp. Supp.d. 2006). United States v.D. 2005). 244 F. 404 F.Kuchera. from http://arstechnica. Entertainment Merchants Association v. Entertainment Software Association by March 25th 2011. 2005). 426 F Supp 2d 646 (E. 2010.D.. 401 F. United States. 2009). Cal. Granholm. 519 F. Entertainment Software Association v. Ill. Henry. 390 U. 469 F. Louis County.2d 1051 (N.S.. Supp.D. Lee 10 . Video Software Dealers Association v. 2006). 629 (1968). Schwarzenegger. 2d 702 (D. 329 F 3d 954 (8th Cir 2003). 2006).3d 768 (D. Video Software Dealers Association v.3d 950 (9th Cir. 2d 1034 (N. ACLU. Playboy Entertainment Group.Supp. Inc. Minn. 30 F. FCC.1998). 2004). B. (n. Inc. 2006). Retrieved September 17.. Del. kinda. 844 (1997).D. St. 325 F.ars American Amusement Machine Association v. New York. 521 U.

consumer protection. drafts the EULA clearly in favor of its own interests. underlining the importance of EULAs (part two). given the growth of the virtual world market in Europe. Antreasyan University of Geneva 12 Avenue Edmond-Vaucher. the game behind EULAs involves two players. this paper proposes to evaluate the impact of End-User License Agreements (EULAs) of the most popular virtual worlds on their users. every user has to accept its EULA.The Game Behind the Video Game: Business. whether they live in the United States or in Europe. 2011 The Private Regulation Of Virtual Worlds Versus “Real World” laws: European And American Perspectives Sevan J. The consideration of E. These circumstances raise various sets of questions that will be addressed in this paper. New Jersey. the private regulation of virtual worlds and the “real world” law – and their effects on users rights.U. “real world” law. The user of the virtual world (player 2).e.U. After a brief presentation of the governance of virtual worlds. unconscionability. 2006). conflicts between the private regulation of virtual worlds and “real world” laws will be analyzed. to enter a virtual world. Switzerland ABSTRACT As the popularity of virtual worlds increases all over the world. This fact certainly influences how contracts regulating these virtual worlds are drafted and – since they do not have any real world boundaries – raises questions concerning the enforceability of these rules in other countries. conflict-of-law. These agreements – which are binding as soon as they are accepted – contain a variety of rules that apply to users as if they were “residents” in a new jurisdiction. regulations could prove important to virtual world providers. It may be recalled that. “real world” law acts as a referee that has the power to balance some of these inequities.S. Fortunately.) regulation limit the enforceability of EULAs for its residents? What would be the consequences of such limitations for virtual world providers? By answering these questions. the validity analysis of EULAs under E. due to the inequitable provisions in these contracts. Regulation. and as aggressively as U. 1203 Geneva. If only the rules of the game were applied. April 8-9. jurisdiction.U. does not have much choice but to accept the non-negotiated contract if wanting to enter the virtual world. intellectual property 1 INTRODUCTION At a time when virtual worlds are expanding their user base all around the world. These questions are interesting both on a scholarly level (the debate concerning private regulations) and on a practical level (concerning residents’ rights limitations). on the other hand. state regulation. the purpose of this paper is to draw attention to the conflicts between two different sets of regulation – i. Europe. Essentially. for users of virtual worlds. What is the nature of virtual world EULAs? How do these agreements interact with “real world” law? Does one set of regulations prevail over the other? To what extent does American companies’ private regulation apply to European users? Can European Union (E.U. KEYWORDS: private regulation. Moreover. on the one hand. In this Antreasyan 1 . (Jankowich. EULA. and more specifically in the E. it is interesting to observe that most of them are operated by companies in the U. The goal of this paper is to evaluate the role of this referee and the scope of its powers. standards allow.S. and Society in the Gaming Industry New Brunswick. regulations in the drafting of EULAs would most certainly prove to be beneficial for these entities in the future. The provider of the virtual world (player 1). then users would always be on the losing side. USA.

as they can be tailored to their specific needs (Sites et al. 2010).g.e. In order to enter a virtual world.U.U.U. if an issue is not covered therein (a rare occurrence since virtual worlds providers tend to comprehensively regulate their relationship with customers) or to redress terms which do not comply with state regulation. as was shown previously (section 2..1). users must agree to the EULA. Users are bound by this non-negotiated agreement once they accept it (for more information on the acceptance of EULAs.. This could explain why virtual world providers do not feel any urge to take state regulation into account. as well as state law. which can affect the relationship between users (U2U). see e. 1255 of the Spanish civil code) – provides that agreements legally formed shall be held as the “law” of the parties that made them. regulation. 1999). 2 THE GOVERNANCE OF VIRTUAL WORLDS Virtual worlds are essentially governed by two kinds of regulation: private (2. Jankowich. To date. 2. Providers view EULAs as a great tool to allocate rights – e. However. 2010). whether they are issued by a legislative body (i. “Real world” law is applied to complement the EULA.S. which the providers of virtual worlds have previously drafted. the discussion will rather focus solely on the vertical relationship.g. standards) – with the exception of Bragg v. 1134. but rather the relationship between users. 2006. The former – which allows the provider to directly control the behavior of users and/or objects in the virtual world – will not be considered because the legal issues it raises are not contractual (See generally Lessig.g. EULAs contain all sorts of rules that govern the vertical relationship between the virtual world provider and the user (B2U). State regulation is secondary because. while the fourth section will focus on E. 2009). regional/national/federal law. U. Antreasyan 2 . section 3). Even though this aspect is interesting. 2008). Risch.. and state issued legislation) or by a court of law. Quinn. Constitution and in all E. and includes international law. Lastowka. this expression is used as a synonym of state regulation.g. private. 2008. the primary source of “law” lies with the EULAs.g. The majority of these EULAs also tend to include behavior provisions. i. 2010). courts have not limited the enforceability of their aggressive terms (aggressive at least according to E. Two additional sources of regulation should also be mentioned: (computer) code and community rules (see e. intellectual property rights (IPR) and virtual property rights – and to limit as much as possible their responsibility toward users. The expression “law” should be construed as including all forms of law. We will see in the fourth part of this paper why this posture should change. Although the majority of authors argue that EULAs are not appropriate for comprehensively and exclusively regulating virtual worlds (see e. The freedom of contract doctrine – anchored in the Fifth and Fourteenth Amendments of the U.S. Linden Research Inc. Member States’ legal systems (see e. these contracts would be used by courts throughout the world as the primary source of “law” when they deal with cases related to virtual worlds.g.e.2 “Real world” law The “real world” law is the second component in virtual worlds’ regulation. Sites et al.1 Private regulation The first level of regulation is contractual (Duranske.respect. 2011).1 of the French civil code and Art. Art.2) (see e. regulation. Fairfield.U.1) and public (2. In the context of this paper. E. (discussed below. it exceeds the scope of this paper and will thus not be considered. directives and regulations. neither will be considered in this paper. The latter (community rules) will not be considered because they do not directly concern the relationship between the virtual world provider and the user. 2010. Sites et al. 2. the third part of this paper will briefly present conflicts with U.S.

In casu.e. Linden Research had it amended and modeled after the eBay dispute resolution mechanism: “mandatory jurisdiction/venue in Second Life’s home court except for permissive [non-appearance-based] arbitration for […] disputes [where the total amount sought is less than USD 10’000. 12.00]” (Goldman. 2007). The evolution between these two cases. see also Art. it was held procedurally unconscionable due to Second Life Terms of Service (ToS. such as fraud. but the contentious arbitration clause had changed. Tax concerns were also raised in the U. the right to terminate users account without notice. In 2008. case). duress. The same question was brought before the Court in Evans. which is interchangeable with EULA) being considered a contract of adhesion (Bragg v.g. 2011.S. If a term is so one-sided as to be unfair to the weaker party. Both of these cases relate to the arbitration and the choice-of-forum provisions found in Second Life’s EULA. Linden Research Inc. Linden Research and Evans v. and due to the unreasonable cost of arbitration (i. the liberal U. shows that control over virtual worlds is not evolving toward more protection for consumers in the U.S. a report from the ENISA (European Network and Information Security Agency) addressed a fair amount of legal issues originating from virtual worlds (e.1 Second Life ToS). The Federal Arbitration Act provides that an arbitration clause shall be valid. if Evans constitutes a precedent. it remains unclear whether any jurisdiction in the U. The substantive claims – whether Linden Research had rightfully closed Bragg’s account and (in effect) extorted all his virtual properties by applying its EULA – were thus not addressed by a court of law. the issue was whether that binding arbitration term was unconscionable. The court held the arbitration clause substantively unconscionable for several reasons: in particular due to the lack of mutuality (Linden had self-help remedies. which is quite understandable given the recent emergence of this area. In Bragg.S. O'Melveny & Myers. substantive unconscionability focuses on the one-sidedness of contract terms. § 2. which. at the time of the dispute. 2010). as required by California law (see e. would hold such terms unconscionable. 3 PRIVATE REGULATION VERSUS U. Consequently. In the few cases litigated in the U.S. the Bragg and the recent Evans v.S. Doctor's Assocs. some regulators are well aware of issues pertaining to virtual worlds.S.C. 2008). the People’s Republic of China imposes a personal income tax of 20% on profits from virtual money (Ye. Bragg’s sole remedy was arbitration”). subject to “generally applicable contract defenses. Linden Research. the court focused primarily on the binding arbitration term... privacy risks. Linden Research. Casarotto. Linden Research. 1996). risks to intellectual property (IP). at 605-607). 11. 517 U. REGULATION This section will provide an overview of conflicts between the private regulation of virtual worlds and state regulation in the U.S. such term shall not be enforceable. The case was ultimately settled.S. On the contrary. the cost of arbitration itself and the cost linked to the arbitration venue in San Francisco) (see Bragg v. Nonetheless. Second. relying particularly on two cases: Bragg v.S. “before arbitrating a dispute. the Court applied general laws to this new phenomenon. whereas Mr. e. see Art.g.g. First.There is no legislation that directly aims at regulating virtual worlds. without considering whether mutuality was lacking (Linden Research still has the drastic selfhelp remedy of user account termination. The Court held that this mere change was sufficient to enforce that term. The Court found that both procedural and substantive unconscionability requirements were met.3 Second Life ToS). v. at 607-611. 681. and problems with online dispute resolution in virtual worlds). By way of example. compelled users of Second Life to bring their claims to arbitration in San Francisco. see also Sites et al. (e.g. Davis v. regulation allows private entities – namely virtual world providers – to retain a lot of control over users of their service. Antreasyan 3 . (see the National Taxpayer Advocate's 2008 Annual Report to Congress). or unconscionability” (9 U.

Member States’ legislation) could impose to U. Tang. Additionally. Then.1 The law applicable to consumer contracts According to Article 6. The first step will be to justify.g.U.S. or the federal laws of the United States of America and the laws of the State of Delaware in the case of World of Warcraft).U. the latter is substantially weaker than the former. regulation be applicable to “U.U. unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply. resident (4. this section will focus on EULAs’ enforceability under E. on the one hand. It could thus validly be argued that – at least – “partly professional” users of virtual worlds should benefit from the special protection of this provision (supporting the view that the predominance test should be Antreasyan 4 .4). However.2) will be analyzed because some provisions of these types of contracts may trigger the application of E. the application of E. 4. Accordingly. law to govern the contract – and. the fact that the private element is predominant being irrelevant in that respect” (§ 54). and intellectual property (IP) law (4.2). regulation apply to these agreements and potentially limit their enforceability? In this context.1) and IP contracts (4.” Article 6 of the Rome I Regulation defines the consumer as a natural person.1. REGULATION After assessing the conceptual importance of virtual world EULAs. courts over contractual virtual worlds disputes involving an E. Piedelièvre. 4.U. some authors have argued that it should be interpreted narrowly (Garcia. Essentially for financial and practical reasons. law to U. Lastowka. 2009). even the very few users who make a living in virtual worlds. mandatory rules. However.1) – which is not a trivial issue given that virtual world EULAs generally elect U. we can validly ask: why would E. it could be argued that users who conduct business in virtual worlds should not be regarded as consumers – they need to access the service (and thus to enter into the EULA) to pursue their trade or profession. regulation.U.3 and 4.e.4). Duranske. which would render such provisions unenforceable (see section 4. 2009).1 Why would E. consumer contracts “shall be governed by the law of the country where the consumer has his habitual residence. directs such activities to that country or to several countries including that country.U.S. another interesting question to be answered in this section – prior to discussing the limitations that substantive E. i. regulation (or E. Member States’ legal system (Tang. the jurisdiction of E. the European Court of Justice (ECJ) said: “[A] person who concludes a contract for goods [or services] intended for purposes which are in part within and in part outside his trade or profession may not [be considered as a consumer]. who enters into a contract “for a purpose which can be regarded as being outside his trade or profession”.S.U. the laws of the State of California in the case of Second Life. 2008.1. This negative definition is widely accepted in E.e.U. by any means. on the other hand. and the contract falls within the scope of such activities.U.S.3). The rationale of Article 6 of the Rome I Regulation is to protect the weaker party who is not a professional (Ragno.S.4 PRIVATE REGULATION VERSUS E. provided that the professional […]. 2005.U.g. regulation.1. and their conflicts with U. virtual world EULAs will be scrutinized under two important European substantive laws: consumer protection law (4. virtual world providers usually elect the law of the state where they are headquartered (e.U. 2010). conflict-of-law rules applying to consumer contracts (4. contracts (4. contracts – concerns which “real world” law is applicable.1 of Council Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I Regulation). in case of an agreement between a virtual world provider and its user. Tang. 2008. Therefore.” EULAs ? There has been several discussions about how general “real world” laws should apply to virtual worlds (see e. 2009). 2009. it is assumed that a person acting as a “professional” cannot be weaker. i. In Johann Gruber v Bay Wa AG. the law of which state or region governs the contract? All of the EULAs studied contain a choice-of-law provision.

and Tang. However. 6 Rome I Regulation a contrario. the language or currency which a website uses does not constitute a relevant factor”. 6. on the other hand. neither will the Directive (on this issue. Ragno. 2005.1 of Second Life’s Terms of Service states that “Linden Lab makes no representation that any aspect of the Service is appropriate or available for use outside of the United States”. 2009). 6.applied: Giuliano/Lagarde. only technical measures should be deemed satisfactory to find that activities of virtual world providers are not directed toward the E. Second. Although the wording of Recital 24 seems to suggest that the interpretation of “directed activities” should be narrow. if the user is considered a consumer. see Nishitani. which uses the English language and solicits the conclusion of contracts with consumers.1 (according to Art. should be deemed to direct its activities to every country in the world. For example. Another condition for Article 6. In spite of that term. this distinction should not have any impact. if Article 6 of the Rome I Regulation is not applicable.1 should prevent a company – which is not a natural person – as well as a natural person who accesses a virtual world with the main purpose of conducting business. It should thus be asked whether the “direction of activities” could be excluded through a EULA provision? It should not. Recital 24 of the Rome I Regulation states (citing a joint declaration by the Council and the Commission on Article 15 of Council Regulation (EC) No 44/2001 (Brussels I Regulation)): “[T]he mere fact that an Internet site is accessible is not sufficient for Article [6] to be applicable. If including such a term in a EULA would suffice to prevent the application of Article 6 of the Rome I Regulation.g. First.2). see Ragno. In that respect. the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (the Directive) adopts a different conflict-of-law rule based on the “close connection” between the contract and the Member States (Art. The latter has been defined above.1 and 6. Art. In any case. However. although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance.g. 2009). from invoking this protective statute. the fact is that its service is available (and widely used) outside of the U. 2009. Three considerations should be pointed out as regards the law applicable to consumer contracts. the clear wording of Article 6.e. in the context of virtual world EULAs. and. e. 2007. 2009). 6. Both of these measures are technical. i.U. Nielsen (2007) goes so far as to state that a website. Third. EULAs cannot derogate from domestic mandatory rules of the consumer’s habitual residence (Art.S. Nielsen. Mr. 3 and 6.2).2 The law applicable to intellectual property contracts Two situations shall be distinguished in this context: whether users of virtual worlds are considered as consumers on the one hand. it should be noted that Article 6 applies only when a contract is concluded between a “professional” and a “consumer”. legal scholars recommend interpreting it “as broadly as possible” (see e. Thus. it is precisely made outside of their “real” trade or profession. 2007). Accordingly.1 to be applicable is that the provider shall direct its activities toward a Member state. and the former’s definition needs not to be discussed further in context of this paper because it is clear that virtual world providers are “professionals”. we could argue that even if they made a profit in the virtual world. by whatever means. 1980). block website’s access for certain countries or exclude consumers from certain countries to enter into the EULA (Nielsen.2 Rome I Regulation). 2004). Regarding users who conduct virtual business in addition to a real world “trade or profession” (e. contracts entered into with a consumer shall not deprive “the consumer of the protection afforded to him by [IP] provisions that cannot be derogated from by agreement by virtue of the law [of the country where the consumer habitually resides]” (Art. First. Antreasyan 5 . even if a choice-of-law provision may still be valid if it complies with Article 6.1. whether they are not. it has to be pointed out that – since Rome I Regulation’s entry into force in December 2009 – IP contracts are not excluded from the substantive scope of the consumer contracts provision (Art. it would be contrary to Article 6’s purpose (Magnus/Mankowski. the provider can take steps to prevent that outcome. 13. De Meyer.g. 2009). thus qualifying them as consumers. 4. Bragg who traded virtual goods in Second Life and is an attorney in the real world).2) (see Tang. In this respect.

Booyah’s ToS does not include any choice-of-forum provision.S.As a matter of fact. if the case is litigated before U.U. in principle (Art.U. 17 Brussels I Regulation. Nishitani. to select whatever forum they like. 3 (1) Rome I Regulation). as the freedom of contract doctrine allows parties.g. the E.4 for some examples). it is important to point out. hence potentially hindering their enforceability (on the definition of consumer. 6 Rome I Regulation. in Art.U. which usually specifies a forum in the U. Consequently. 2004. – in their EULA. consumers. The Brussels I Regulation provides that choice-of-forum terms – in contracts entered into with consumers – are invalid unless: (1) the contract was entered into after the dispute has arisen. 15). As a result of the invalidity of the choice-of-forum term. It should be noted however that Article 22 Brussels I Regulation (listing exclusive jurisdictions which shall not be derogated from) sets the forum in the Member State where the IPR is registered in disputes pertaining to the existence and validity of IPR required to be deposited or registered. i. when concluded with E. 23-24 Brussels I Regulation). For instance. virtual world providers generally tend to regulate IP aspects (e. Two elements are noteworthy. 15 Brussels I Regulation and Art. Member State.S. as seen in section 4. forum and the consumer resides in an E.e. the default jurisdiction. but could potentially have an impact on all U.1. the virtual world provider) may only bring legal action against a consumer in the Member State where the consumer is domiciled (Art.e. only the “public policy” provision of the forum state applies. virtual world EULAs usually designate a forum – in the United States – in case a dispute arises.S. public policy in the field of IP in Europe can be very restrictive.U. see section 4. the parties have an extensive freedom to choose the law applicable to the contract (Nishitani.1. 2009).2). would apply. It can thus be assumed. that Art. Most virtual world EULAs include a choice-of-forum term. 21 Rome I Regulation could restrict the application of the chosen law if such application would be manifestly incompatible with the public policy of the forum.U. in cases where virtual world EULAs select exclusively a U.S. The “direction of activities”.U. courts jurisdiction will not be discussed hereafter. the previous development is not constrained to virtual worlds. On the one hand. 2009). that virtual world providers from the U. see also Tang. 16. Antreasyan 6 . E. 2009). the assignment of rights) in their EULAs. 16. a consumer can bring proceedings against the other party in the country where he is domiciled or where the other party is domiciled (Art. Consequently.1. restricts choice-of-forum provisions involving consumers. The second situation regards users of virtual worlds that are not considered consumers.S. software or social network contracts. courts’ jurisdiction over contractual related disputes As mentioned above. Nonetheless. provided they do not technically prevent European users from accessing their service. especially in countries where authors’ moral rights are distinctively protected (see section 4. similar to what was discussed about choice-of-law terms.1). regulation and/or Member States legislation could interfere with the enforceability of such provisions (see section 4. direct their activities toward Europe. 4. the choice-of-forum term will not be valid.4). in the context of virtual world EULAs. On the other hand. or (2) if the consumer can still bring proceedings before courts of his habitual residence. so that they can be regarded as IP contracts. the other party (i. Other grounds for E.2 E.1). However. basically impacting all EULAs with IP aspects. public policy will not be enforced (see Dessemontet. This provision applies only if the provider directs its activities to that Member State (Art. It can thus not be stressed enough that providers intending to prevent the application of such mandatory policy must specify a forum state – outside the E. shall be construed uniformly (Recital 24 Rome I Regulation). In accordance with the party autonomy principle (Art. the application of E. general conflict-of-law principles apply. Courts. provided for in Section 4 Brussels I Regulation. Furthermore. or (3) if the selected jurisdiction is also the habitual residence of the business and the consumer at the time of entering into the agreement (Art. Second. In that case.U.U. First. But some do not.

2010). unfair terms’ definition) of the Directive will be presented (4. 288 of the Treaty on the Functioning of the European Union).” Accordingly. Stuyck. regulation has the potential to considerably affect the enforceability of U.U. 4. this particular Directive is a minimum standard of protection.2 Subject matter of the Directive: what are “unfair terms”? Unfair terms are defined at Article 3 of the Directive. that Council Directives are usually not self-executing. 2009).3. specific provisions will be evaluated in relation to the unfair terms provision.3 Consumer protection law This substantive E. Some authors debate the good faith requirement on the issue of knowing if it is a procedural or substantive requirement (see e. containing no concealed pitfalls or traps. 4. the consumer should be understood in the same way as in Art. Under Art. the objective scope (i. at precisely the time that U. for practitioners not familiar with the E. A contractual term which has not been individually negotiated shall be regarded as unfair if. it will be important to briefly refer to the future of E.1. see also Stuyck. After evaluating its personal scope of protection (4. In France for instance.4. 8 Directive. which states: “1. It has to be noted. Member States must implement them into their national legislation before they become binding for natural or legal persons (Art. case law where available (4. given that its reconsideration is an important work in progress (4.U.g.3.3. it causes a significant imbalance in the parties' rights and obligations arising under the contract.] the consumer's necessity.). Openness requires that the terms should be expressed fully.U. E. consumer protection. Member States could adopt a wider definition of “consumers”.U. contract law has turned away from public regulatory models”. As Winn & Webber (2006) put it. indigence. whether deliberately or unconsciously. see Quinn.K. i. legal persons can be considered consumers (Piedelièvre.3.e. to the detriment of the consumer. legal system.3. Nebbia. but the Directive on unfair terms in consumer contracts is particularly relevant. with reference to U. 6 Rome I Regulation (see Nebbia.S. the benefit of consumer protection regulations in the E.1 Personal scope of protection of the Directive Following what was introduced in section 4.g. Then. […] 3. However. take advantage of [e. point of view – that safeguard consumers’ interests in Europe (on a brief history of E. unfamiliarity with the subject matter of the contract. and thus the only one that will be discussed in this paper. consumer protection law. Several Council Directives aim at the protection of consumers.S. Finally. is logically limited to “consumers”. contrary to the requirement of good faith. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.1).S. 2009). since the Directive is a minimum standard of protection. 2008). i. clearly and legibly.3).S. 2010. […] Fair dealing requires that a supplier should not. consumers. 2010).e.U. two criteria are needed to consider a term unfair: the term must be contrary to good faith and (cumulatively) cause a significant imbalance between parties to the agreement.U.4). weak bargaining position” (Director Antreasyan 7 .U. Moreover. 2010).] regulators have been expanding their oversight of consumer markets and expanding the role of administrative agencies in enforcement.1.2).3. Lord Bingham of Cornhill explained that the requirement of good faith “is one of fair and open dealing. In a case brought before the House of Lords (in the U. 2 of the Directive. Member States may adopt more stringent provisions to ensure a maximum degree of protection for consumers (Art. “[E. lack of experience. That stems from the (very) protective provisions – especially from a U. virtual world EULAs for E.U. natural persons who do not enter into contracts predominantly for “professional” purposes (see Nebbia.e.

6. The significant imbalance criterion “involves a lack of symmetry in parties’ rights and obligations. To comply with this requirement Blizzard uses a different EULA for European consumers.g. Widespread terms in virtual world EULAs will precisely be confronted to this test in the next section (4. Second Life. Furthermore. On a side note. it will not be binding on the consumer. The question of alternatives or the absence of choice can be left unanswered in this context. it would not be contrary to the Directive – which constitutes a minimum standard of protection toward consumers. arguing that the interpretation of unfairness lies with national courts (Freiburger Kommunalbauten.3. but except where issues pertained to choice-of-forum or arbitration terms. 2009). which is usually not the case for virtual world EULAs (e. MyTown.1 Directive). to all the circumstances attending the conclusion of the contract and to all the other terms of the contract (Art. Finally. as most virtual worlds would not pass the “negotiation” test. Moreover.U. it is interesting to notice that Facebook and Twitter have localized their EULAs. However. The ECJ was asked several times to interpret the unfairness of contract terms. the consequence of the fairness test is that if a term is deemed unfair. deriving the unfairness of a term solely from the significant imbalance test. EULAs. In addition. It is interesting to note that the majority of E.html). That definition of good faith clearly supports the idea that the good faith criterion is procedural. 4. see also Nebbia. terms shall be written in “plain. 1994).3). This is convincing because if it were to be understood as a substantive requirement it would merge with the significant imbalance requirement (Nebbia. Whether that would be satisfactory for French courts remains unclear. 4.2 Directive). In its implementation. or that the seller’s or supplier’s rights or remedies are excessive and disproportionate” (Nebbia.U.3. Nebbia (2010) states that the assessment of good faith would include verifying whether the consumer had the chance to influence the terms of the agreement.1 Directive). the unilateral Antreasyan 8 2010). which is a component of the English good faith requirement (see above). it refused to rule. see Quinn. which means that each of the list’s terms is deemed unfair. the French legislator provided that terms must be available in the French language (Law No 94-665 of August 4. a term requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions ((q) Annex of the Directive) would be unfair.3 The AOL case and endangered EULA terms A significant case brought before the French Court of Appeal of Versailles in 2004 will help to put the last section into perspective. at the time of conclusion of the contract. It has been implemented as a black list in some E. This criterion cannot be evaluated in abstracto. they both provide that only the English version shall be enforceable. 2010). whether there was a choice in agreeing to the terms or if there were alternatives. For instance: the requirement that users constantly update their data or see their account terminated.General of Fair Trading v. The Directive provides an annex containing a list of terms which may be regarded as unfair. Member States did not implement the good faith criterion (Stuyck. the rest of the contract remains binding if it is capable of continuing in existence without the unfair terms (Art. The severe verdict held that 31 of those terms were unfair or illegal.U. the assessment of unfairness shall be made by referring. according to Article 5 of the Directive. 2010). the transmission of subscribers data to third parties without their prior consent.S. and FarmVille) with Blizzard being the exception (World of Warcraft ToS are available in French at http://eu. Users of virtual worlds have to accept EULAs on a take-it-or-leave-it basis. The French consumer protection organization “UFC Que Choisir” asked the Court to challenge 36 terms of AOL’s EULA. intelligible language”. and E. First National Bank Plc). Nonetheless. The assessment of the unfairness shall not relate to the contract’s subject matter or to the adequacy of the price or remuneration (Art. which is actually intelligible as opposed to most virtual world EULAs (on the other differences between Blizzard’s U. as opposed to the good faith requirement (that is in the context of virtual world EULAs). 4. 2010). As this kind of implementation is more consumer-friendly. and thus have no chance of negotiating with the provider. For instance. Member States.

Other providers. 2010). and in which such property can be “extorted” from them by the provider (e.4 Intellectual property law As seen above. consumer protection regulation In 2008. 34). in a more explicit way. Winn & Webber.3. a general transfer of IPR shall not be permitted in France (Art. courts. the standard of protection would be reduced (Brichacek. that choice-of-law and choice-of-forum terms were unenforceable against E. Another “classic” term. 2010. The Proposal introduces a new way of controlling unfair terms. Member States will be briefly presented below.1. consumers.U.U. 7.1 Second Life ToS). but in some countries. shifting it from several minimum standard Directives to one comprehensive Directive on consumer rights which shall be transposed “as is” in all E.U. Member States (Tichy. such as Blizzard. We have already seen. and Art.U. Furthermore. Member States the Proposal would increase consumer protection. public policy pertaining to IPR may apply in some circumstances (4. Other terms commonly used in these EULAs will be reviewed hereafter. especially in consideration of the efforts/investments committed by users. which provide that users do not have any virtual property rights. Some thoughts about what could be called “intellectual property private policy efforts” will then be offered. This provision could have disastrous effects for providers that did not draft their EULAs in compliance with E. Consequently.” Antreasyan 9 .4 The Future of E. unequivocal and informed. For instance. the Court ordered AOL to publish the judgment on its website and erase the unfair/illegal terms from its EULA. could be considered unfair by E. e.3 of the French Code of Intellectual Property). 2006).1 and 4. L-131.U. means of enforcement in relation to unfair contract terms. the right of AOL to terminate the account without prior notice for EULA breach. section 4. courts. it can safely be assumed that EULAs. mandatory arbitration (Art.3. where they select a law or forum outside the consumer’s country of residence.g. 35). E. but in various ways. 4. which are thus exposed to the review of E. Such consent must be limited in scope [i. Without assessing the legal nature of virtual property.U. thus interfering with EULA provisions. grant themselves ownership of all IPR relating to the virtual world (Ownership section in World of Warcraft ToS). 32 provides general principles to assess the unfairness of terms (which are not listed in any category). Moreover. 4. the Proposal reaffirms.3). These kinds of terms can be found in many virtual world EULAs. In this respect. the E.U. authors’ rights are not (§29 German Copyright Law).4). in Bragg and Evans – is invalid in Europe (Quinn. which are classified in three categories: the “black list” includes terms considered unfair in all circumstances. the European Copyright Code – which is a restatement of law project drafted by European IP scholars – states: “[t]he author can consent not to exercise his moral rights. the “grey list” includes terms presumed to be unfair (Art. Article 38.U. Commission proposed a Directive on Consumer Rights (Proposal).3. For example. which hinders users’ access to justice. regards dispute resolution through binding arbitration – a question that was adjudicated in the U. but an author may consent to particular uses]. like Germany or Finland.g. by terminating their account). or the non-exclusive assignment to AOL of rights to all content put online by subscribers (see Joslove & Krylov.S.right of AOL to modify the agreement. It changes the approach of consumer protection regulation in Europe. in sections 4. Germany has a more rigid approach: only the execution of IPR shall be transferable. general waivers are not possible.2.e. In the majority of E. Selected examples of such policy found in E. 4. see also the Directive on consumer rights proposal. This last kind of term could prove troublesome under certain European countries’ legislation on copyright.2). 2005.U. regulation (see the AOL case.U. 2010). Virtual world EULAs routinely address IPR issues pertaining to user-generated content.3 states: “Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent traders from continuing to use terms which have been found unfair”. Second Life is famous for leaving all IPR for such content to its creator (Art.

Facebook’s policy is similar and it has raised concerns at the World Intellectual Property Organization (WIPO): “[f]or example. providers are not immune from a U. providers do. or in the U. It is unclear whether the procedure is adequately equipped to deal with territorial conflicts. Antreasyan 10 . additionally. Exactly how that cost would be estimated is beyond the scope of this paper. the form states a preference for US registration numbers.. So what should U. The latter put the Digital Millenium Copyright Act (DMCA) into effect and. this system benefits only owners of U. thus discriminating against international trademark owners. created a trademark infringement notification system (Linden Lab Official: Intellectual Property). Interestingly.S.g. policy change and more importantly – at least in the foreseeable future – from litigations initiated. in the E. The first strategy is unpredictable.S. complaints of brand owners lacking a US registration. Moreover.U. did not use its whistle once in a virtual world context.S. or brand owners simply asserting common law rights in their marks. which would be drafted according to the most consumer-friendly standards (currently found in the E. provided they do not want to stay away from the European market? There are several possible course of action: (1) adopt a wait-and-see approach (i. some providers have implemented IP policies. Courts applying E.e. However. disputes in a relatively near future) and amend their EULA on a case-by-case basis (e. virtual world providers should consider the consequences of their current EULA strategy: one should know the rules before playing the game. (2) use different EULAs depending on the country/region where users are located (e. Second Life. and more interestingly in the context of this paper. depending on the chosen solution).S. particularly in view of the stringent consumers protection in Europe.U. This is the case of Facebook.U. Blizzard). organizational costs. who could potentially have much more influence. The second and third approaches appear more cautious. by European consumers (or consumer organizations).” (WIPO. the stronger opponent clearly is the provider. To assess which one to choose. Trademarks and the Internet). the current form for reporting an infringing username requires a trademark registration number. Twitter..Following some concerns about how they handle IP infringement on their websites/virtual worlds. referee does not have a substantial influence over the game. trademarks. referee. and the E. law would in fact declare most terms of EULAs unfair and thus would not enforce them.U.g. actually rendering the private regulation of virtual worlds ineffective. The latter could have immense effects on virtual worlds’ regulation. or (3) use one EULA for all users around the world. but a few elements could be mentioned: drafting costs.U. keep using an aggressive EULA and probably face E. virtual world providers should evaluate the cost of each approach.S. Linden Lab).U.) (see Quinn. The U. At the very least. 2010). 5 CONCLUSION In the battle between virtual world providers and their users. and litigation costs (which could increase or decrease in the E.

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video games. that games are not copyrightable.The Game Behind the Video Game: Business. KEYWORDS: copyright. USA ABSTRACT What is copyrightable about a video game? Copyright law treats the appearance and sound of a video game in play as an audiovisual work. translations. one in which the user’s perceptual experience of the work melds with the work as it unfolds. WI 53201-1881. copyright law should apply a different rule to video games. Among other things. April 8-9. players. By eliding player contributions to the game in play. play is free from liability. statues. pieces. it treats a player’s recording of their own game play as a verbatim reproduction of the work—something that would have difficulty qualifying as a fair use. charts. Like thought. its logic had been extended to creative endeavors in several other media: maps. This limit on game copyrights also has implications for copyright law generally. USA. This categorization fails to recognize the unique characteristics of video games and has some potentially deleterious consequences for users. are not. under Section 102(a) of that Act. has revealed a structural weakness at the heart of copyright law. there was little Boyden 1 . drawings. the second-order design that gives rise to play. regardless of what form the author’s creativity takes. interactivity. in reading a book. such as intriguing challenges or novel traps. By the adoption of the Copyright Act of 1976. it has the salubrious effect of insulating the activity of play from the reach of copyright. one that originated in the context of ordinary card and board games: namely. or watching a film. however. cards.O. and photographs. Copyright law as originally formulated protected books from being reprinted without the author’s permission. Regulation. board. the process was complete. musical compositions. New Jersey. copyright avoids doctrinal complexity at the expense of overprotection. games. Instead. Although the original purpose of the rule is obscure. That extension of form. 2011 Copyright’s Middle Ground: The Interaction of Players and Video Games Bruce E. That limit on copyright is important because game play represents a “middle ground” between the author’s expression and a user’s use. Milwaukee. plays. The “middle ground” is where a user actually experiences the work—for example. The result is that while a video games surface elements are copyrightable. But by the end of the nineteenth century. paintings. Copyright has long excluded games from its protection. just like films and television programs. even though each of the component elements of a game—rule sheet. Boyden Marquette University Law School P. Box 1881. and Society in the Gaming Industry New Brunswick.—can be protected. When copyright was restricted to a limited number of well-understood cultural forms. etc. all “works of authorship” fixed in a tangible medium of expression are protectable under copyright law. system 1 INTRODUCTION: MODERN VIDEO GAMES AND THE PROBLEM OF PLAYER INTERACTION In the beginning there were only books.

Ironically. such as virtual property rights (Fairfield. Sarony. video games pose challenges about readership. (Boyden. § 2. 181). from the activity of players in playing the game. the “creative expression. it became more difficult for courts and legal scholars to identify the acts of authorship in each. 1982. the case law involving pre-electronic games at some level recognized this difficulty and adopted a rule to address it. 1983). 2009). which would mean that a player recording his or her own performance is engaged in a verbatim reproduction of the audiovisual work. the player often has unfettered control over the camera angle. 2010. Burk. Williams. like photographs. Courts ultimately resolved the issue by scrutinizing the act of taking the photograph in order to locate the discrete creative elements in its creation.need to identify precisely in the law what it was in those works that was protected. Philips. could be considered the “director” of the movie that appears on the screen. 2005. the problems with video games lie at the other end of the process: in the mix of activities at the moment of perception. and Centipede (Atari v. 2010. v. p.” (Nimmer & Nimmer. Pac-Man (Atari v. But whereas the problems for photographs lie in the mix of elements at the moment of creation. video games. who has questioned the continued vitality of the old arcade-game cases.18[H][3][a]) Although there is now a voluminous legal literature on video games. Joss Nichols (Nichols. Am. Courts continue to struggle with photographs. The player. for example. 1981). completely discounting the role of the player in shaping the game display. Artic Int'l. game designers own the audiovisual display of the game each time it is played. 2006) Video games occupy a similar place in the copyright universe. Mannion v. Lastowka & Hunter.18[H][3][a]) The purpose of this rule has been somewhat obscured by time.” Photographs were an early example. the rule insulates the activity of game play from the reach of copyright. as they more saliently than other media present a troubling mixture of fact and fiction. (Farley. (Burrow-Giles Lithographic v. 1884. That rule has yet to be applied to video games. But video games in play contain something else: the contributions of the player. Nevertheless. Atari v. 1982). 2005. Amusement World. p. Photographs pose challenges about authorship. under current law strictly applied. with Hemnes concluding that such questions were of “academic interest” only (p. such as software code and the graphical elements that appear on the screen during play. 2004). the game maker’s creative expression. N. Fairfield. Nimmer has suggested only that “the blanket rule of exclusion for games must be rethought as must so much else in the copyright arena insofar as it applies to works of technology heralded by the computer revolution. Thomas Hemnes (1982. Artic Int'l. Instead. of reality and expression. It has been blackletter law for decades that “games are not copyrightable. Galaxian (Midway Mfg. In today’s games. or enduser modifications (Ochoa. v. They contain aspects that are uncontroversially copyrightable. a strike against any fair use defense. 174) and William Patry (1983.” (Nimmer & Nimmer. it was decided that such games are essentially audiovisual works just like cartoons. 2011) That is. because the activity of game play represents the audience’s encounter with the work. 1981). Those decisions involved early arcade games such as Defender (Williams Elecs. § 2. and substantial control over the pace and sequence of events. in the same way that reading a book or listening to music is beyond the reach of copyright. that scholarship has largely focused on other issues. 2004. pose challenges for traditional copyright doctrine. but I have recently argued that it serves the function of separating the copyrightable elements of the game. Asteroids (Atari v. 52). 2004). 2004). Those early decisions have not been revisited by either courts or scholars. But as the number of forms increased. Coors Brewing. however. the relationship between players and game developers (Balkin. in other words. early in the history of video games. Armenia. by contrast. 2007). An exception is W. but in the context of an argument that players own the copyright in video game play. accepted the classification of games as audiovisual works and rejected the challenges posed by game play. Boyden 2 . Since those player contributions cannot be part of the video game copyright. 1981).

and even a particular description of the rules. paintings. video games are not audiovisual works. a starting position. I examine what is left of video game copyrights once the uncopyrightable system is excluded. just like other games. Marvel Enterprises. that makes game rules similar to another poorly understood exception from copyrightability: systems. 4).g. it must be minimally creative. recorded or written down in some fashion. (Copyright Act. (Juul. and $23 billion for DVDs in the U. A “system” as used in this context is what in computer science is called a “state machine”: it is a means of transforming a large but constrained set of inputs into a correlated and defined set of outputs. Game rules are not instructions in the sense that is excluded from copyright. methods of operation. procedures. all of their individual components are. there is the doctrine of fair use. (Video Game Industry.) Boyden 3 1 . There are three prerequisites to obtaining a valid copyright under the modern Copyright Act: a work must be original to the author. § 2. the rules determine how the game state changes in response.. 2 COPYRIGHT PROTECTION FOR GAMES First. The explanation does not withstand scrutiny. there are a number of exclusions meant to draw a line between copyright and patent. 1976. Samuelson. processes. but also against later works that are “substantially similar” to the original. 2011. even though descriptions or illustrations of those things might be. under which a use can be made that would otherwise be infringing if it does not sufficiently intrude on the copyright owner’s work. There a number of other limiting doctrines in copyright law as well.As both video games and user-generated content become increasingly important economically. The explanation that is usually given is that the essence of a game is its rules. Rather. 2005) In this paper I argue that the rule against the copyrightability of games ought to be applied to video games as well. n. Legal controversies are certain to arise in which players are not only recording or transmitting themselves playing. $27 billion for films. 2007) Third. Second. p. because courts rarely stated the reasons for it. § 102(a)) (Registration with the Copyright Office and the inclusion of a copyright notice on the work are no longer required.S.9 billion in sales worldwide (Caron. one of which will concern us here: the rule that games are not copyrightable. 1879. I conclude by considering the implications for copyright law. Selden. 50). they are systems. and some or all of that information is output back to the players. not general plot concepts or ideas. Second.) Copyright protects an author’s expression against not only verbatim duplication by others without permission. There are several important limits on the extent of copyright protection.18[H][3][a]) The rule has long been a puzzling one. however. but that activity is being commercialized in some way. however. music. One is the doctrine that only expression is protected. NCSoft Corp. pp. films. cards. Copyright protects creative expression in works such as novels. however. unlike instructions to build a house or make a cake. game rules do not specify the steps necessary to achieve an end result. such as boards. 457-58) The idea that games are systems has also been embraced by game scholars such as Chris Crawford (1984. computer software. they specify a set of constraints and affordances. It is well-established law that games are not copyrightable. As I have argued previously.d. and because it is fairly limited in scope: while games themselves are not copyrightable. Katie Salen and Eric Zimmerman (2004. Finally. 36). rather. which has much stricter requirements. p. e. “Systems” of this sort are excluded from copyrightability because they do not At least one report concludes that in 2007 video games reaped $41. p. newspapers. (Boyden. and end conditions. and rules are uncopyrightable instructions. 60) When you make a move in a game. and systems are not copyrightable. 2010.” that is. That is. pieces. p.1 courts will no longer be able to avoid determining the scope of video game copyrights. and more. v. a brief synopsis of basic copyright law. and it must be “fixed in any tangible medium of expression. 2005b. 2008). and Jesper Juul (2005b. (Baker v. Thus. Inc. compared to approximately $40 billion for music. (See.. (Nimmer & Nimmer.

Lawsuits followed. in that they contain far more expressive content. shortly after video arcade games became a commercial and social phenomenon. The infringers were emboldened by not only the gold-rush atmosphere of the market. because the game itself is not copyrightable. But the game itself.primarily express ideas to users. (Fig. the scholarship on video games suggests an alternative argument: that video games are importantly different from nonelectronic games. not systems or even games. The financial success of early arcade games such as Pac-Man. Stern involved the early ‘80s arcade game. stripped of all of its ornamentation. but does not duplicate any of the earlier game’s ostensible features. . not the author. are also not registrable since they are created randomly by the player and not by the author of the video game. The leading case of Stern Electronics.1 Video Games as Audiovisual Works Courts first confronted video games in the early 1980s. First. First. 1989. Scramble. 1) The defendant in Stern was unsympathetic. In the case of games. courts have held since the early days of arcade games that video games should be treated as ordinary audiovisual works. Asteroids. but rather serve as empty vessels into which the users pour meaning. 616) Playing a game in public. therefore. Inc. p. It is important to reiterate that the rule against the copyrightability of games does not leave games unprotected. they argued that the audiovisual display of the game in play failed the originality requirement.” that is. it had produced a blatant Figure 1: Scramble in play mode This argument received some support in the Copyright Office. several defendants tried to challenge the validity of the plaintiffs’ copyrights in their video games. 3. Kaufman (1982) is typical. 1996. and Galaxian generated a wave of knock-offs or close copies by manufacturers attempting to share some of the game-makers’ good fortune. Second. . First.2 Second. . does not infringe. that meaning is in the form of the choices made by players. because it was not wholly original to the author of the game. (Allen v. All of the designed elements of a game can be copyrighted. recorded—each game was different. what appeared on the screen was to some degree under the control of the player. . The defendants tended to make two related arguments. but also by a state of considerable uncertainty at the Copyright Office and elsewhere over whether video games and computer programs were protectable at all. created by playing the video game .” (Atari Games Corp. Instead. In those early cases. and none of those games could possibly have been in the version that the plaintiffs deposited with the Copyright Office when they registered their copyrights. Oman. In reviewing whether the arcade game Breakout should be registered. playing a game is not the performance of a copyrightable work. cannot. a game that plays like an earlier game. This has two consequences of practical significance. Defender. 880) Boyden 4 2 . v. the Office initially concluded that the “images . 3 VIDEO GAMES ARE UNCOPYRIGHTABLE SYSTEMS Should the rule against the copyrightability of games apply to video games? Courts and commentators have supplied two reasons opposing such an outcome. v. they argued that for similar reasons the game in play was not “fixed. Second. in particular in the audiovisual display of the game in play. a side-scroller in which the player maneuvered a space ship over mountains while trying to destroy targets. is not an infringing public performance. Academic Games League. Space Invaders. p.

the sequence in which the various missile bases. one of the paintings stored in its collection. But the overall game as it appears on the screen is not. At some point.” (p. The most he can do is choose one of the limited number of sequences the game allows him to choose.” choosing where to look and for how long. is toward games that are able to generate game environments and action sequences on the fly. cannot create any sequence he wants out of the images stored on the game's circuit boards. The player of a video game . 853) The court in Midway Manufacturing v. the player has complete control over the “camera. The player also has considerable control over the sequence in which events occur.knock-off of Scramble by duplicating the entire game. There are obviously limits to this freedom. they have been undermined by subsequent developments. the work becomes less of a fixed set of options and more the sort of toolbox envisioned by the Midway court. he merely chooses one of the sentences stored in its memory. He is unlike a writer or a painter because the video game in effect writes the sentences and paints the painting for him. in both the sense of being fixed in the code and in the sense of being fixed in a certain time and place in the game. In many modern games. It is no longer necessary to fit copyrightable works into one of the Figure 2: A crucial moment in System Shock 2. however. (p. The Stern court held that the amount of variation between different sessions of the game did not undermine the copyright. Locations and items tend to look and sound identical to each other. 1012) Whatever the validity of these opinions for the early arcade games before the courts at the time. allowing users to create or act in ways that the author could not have foreseen in detail. for Scramble to qualify “for copyright protection as an audiovisual work. and there are usually a limited number of non-player characters in such games. the appearance of the player’s spaceship and enemy craft. The trend. Any in-game dialog or plot is also fixed. reviewing a case involving Galaxian and Pac-Man. and the sounds that occurred whenever items were destroyed all remained constant. the Stern court concluded that video games are essentially “cartoons in which some of the action is controlled by the player. . from two perspectives Boyden 5 .” (p. Obviously elements of the images and sounds that appear during gameplay are fixed and original. That was sufficient. the court noted. 856) For example. The influence of the player over the display also undermines the courts’ classification of videogame displays as audiovisual works. fuel depots. Modern games afford the player far more control over the sights and sounds that appear during game play. 856) In fact. There are typically boundaries to where a player can travel. and terrain appeared. reached a similar conclusion: Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture. in response to a player’s actions. And the appeals court had little trouble rejecting the defendant’s arguments.” (p. Artic International (1983). . according to the court. right down to the cabinet (which bore the same name) and the ROM boards. as “many aspects of the sights and the sequence of their appearance remain constant during each play of the game.

eight specifically named categories listed in the Copyright Act. For purposes of this paper. characters. setting. together with accompanying sounds. ix). The images and sounds of a game in progress are merely part of the external The concept of the “middle ground” between two cultures was developed by historian Richard White (White. rather. Game designers create experience. somewhat baffling to an outsider. 2006. 168) This quickly leads to a thicket of literature. known as the ludology-narratology debate. 672-73. (Shaw v. unlike a film reel or even digital media such as a DVD. 1997. This problem of control is reflected in the definition of audiovisual work itself in the Copyright Act: an audiovisual work consists of “a series of related images which are intrinsically intended to be shown by the use of machines . 2005a). 3. A player’s play of the game is the way the game is experienced. characters. there are only the elements of that display. pace.” (p. 1356-57). that their purpose is more to provide a forum for experience or information supplied by the user than to convey a particular experience or information from the author to the user. It makes sense to look at these elements in films and television programs because in such works.” (Copyright Act. 2006) Clearly some games have important narrative aspects to them. 1991. often contain plot. dialogue. however. themes. Lindheim. 1976. pace. share a number of features in common with audiovisual works that make application of the traditional rule that games are not copyrightable inappropriate for video games. but in general they determine the average player response and hope for the best. . . it will not vary at all from one showing to the next. mood. Boyden 6 3 . 1990. none of that matters. pp.3 Similarly. others do not. § 101) Modern video game displays are not typically. 3) Video games obviously fall short of this standard. Juul. pp. for reasons that have often been noted: a player’s ability to affect the events on the screen is inconsistent with the authorial control behind most audiovisual works. (Jenkins. they are generated by the program from abstract elements and data in response to the player’s actions. p. this paper has the potential to bridge the divide by denying both that video games are sufficiently storylike to be copyrightable audiovisual works and that designing for game play is copyrightable expression. for example. the act of play is a game’s middle ground. p. (Mateas & Stern. Video games. if any. “[a]s a game designer. and various algorithms to calculate when and how to arrange them into a display. and sequence of events. dialogue. but rather the vehemence with which it is carried out. . The difference is that some aspect of that middle ground is visible to third parties—the player’s influence over the display of the game. It is rather a rule based on the fact that games are systems.2 Video Games as Systems It might be objected that even if video games are not audiovisual works. the precise nature of the display of the work is the result of a series of careful choices by the authors. there is in a modern video game no fixed set of images to display to the player. and a sequence of events. and still others lack any meaningful narrative at all. themes. unlike nonelectronic games. a series of images that are permanently embodied (“fixed”) in the work. Courts traditionally look for creativity in audiovisual works by analyzing a discrete set of elements: plot. and once the scene has been captured correctly. As Salen and Zimmerman (2004) note. But that classification affects how courts determine what the protectible expression is in that type of work. they. 2) Game designers may hope a given scene plays out in a certain way. Reading is the “middle ground” between author and reader where the reader’s thoughts meet the author’s expression in a conceptual space that is neither wholly thought nor wholly text. That is. (Fig. (See Aarseth. It is not the substance of the debate that is confusing. but only indirectly. That act of reading is outside of the scope of the author’s copyright in the creative material in the book. setting. you can never directly design play. Directors such as Stanley Kubrick may make dozens of attempts to ensure a single scene occurs exactly as he envisions it. But the rule against the copyrightability of games is not a rule based on the lack of complexity in the expression contained in games. mood. Somewhat dangerously. You can only design the rules that give rise to it. in the same way that a reader’s reading of a book is the way that the book is experienced.

Just like nonelectronic games. 37). the affordances it gives—and also aspects of level design that are intended to shape play. a situation put into the game in order to encourage emergent play. 168). p. 315-16)4 While part of this loop is external to the conscious mind. or the solutions to what Katie Salen and Eric Zimmerman (2004) call “a second-order design problem” (p. because game play does not directly interact with and alter the copyrighted software. (Salen & Zimmerman. plot. under the theory espoused here. which alters the display and sounds. 21) model for all ergodic literature. 2004.component of a feedback system that is a necessary component of the experience of the game. many of the component elements of a video game audiovisual display can be protected: textures. sound. music. 1997. and medium. (Fig. which in turn is perceived by the player. No game designer should have a monopoly over real-estate games with groups of properties or over the prison shoot-out in Half-Life 2. lighting. All of these elements exist at what Ernest Adams (2009) has called the “presentation layer” (p. What is uncopyrightable are the design elements that give rise to game play. Boyden 7 4 . 3 resembles Espen Aarseth’s (Aarseth. a particularly clever trap is an uncopyrightable gameplay idea. Hosting a game server might well be a public performance of the underlying game program. dialog. which in turn affects the computer running the game. visual effects. objects. A player recording themselves playing may well copy some The diagram in Fig. it is inseparable from the player’s private apprehension of the game. producing new responses. text. characters. pp. 3) The player’s thoughts and reactions in response to the game shape his or her operation of the game’s controls. and more. scripted sequences. and thus beyond the reach of the game designer’s copyright. First. the limits on what the player can do. playing a video game is not a performance of a work. they are directly conveyed to the player. but the display of any particular game session is not a performance. of operator. which means that playing a video game in public does not infringe on the copyright owner’s public performance right. For example. because the video game in play is beyond the scope of the copyright. along the same lines as the idea of color groups in Monopoly or triple-word scores in Scrabble. Figure 3: The video game system 4 IMPLICATIONS FOR VIDEO GAMES What are the implications of all this for video game copyrights? Does the rule against the copyrightability of games leave video games unprotected? Not at all. That includes the “rules” of the video game—the laws of physics it simulates. Some other results follow from the argument here.

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