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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


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

& Faust. multilevel. it is possible to use clandestine data from virtual worlds to inform the development of theories of clandestine behavior in the “real” world. Furthermore. it is possible to compare networks despite differing widely in size. However. 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. and time. hackers. 3 . members obviously resist traditional data collection methods as they seek to avoid detection. relationship. and other malfeasors as flexible and evasive network organizational forms. including clandestine and criminal activity. and hybrid models that account for both network topology and actor attributes (Contractor. This is primarily a consequence of the fact that the data on these organizations is necessarily had to come by. multitheoretical analyses. In of themselves. By using these generative statistical approaches to network analysis. Recent developments in the statistical analysis of network data now permit confirmatory and inferential techniques. 2006). constituents. To the extent that individuals operate under similar motivations and constraints as the real world. However.Introduction The analysis of criminal and clandestine organizations presents unique theoretical and methodological problems. 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. In particular. these comparative network analysis methods do not solve the data scarcity problem outlined above. pranksters. a comparative approach allows us to leverage observations from one domain to support inferences in another. 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. Wasserman. empirical analyses of these organizations have received scant scholarly attention despite pervasive popular ideas about terrorists.

Morselli et al. and norms are built – 4 . 2009. 2008). & Tsai. gold farming. Galaskiewicz. organizational theorists. such as drug traffickers and terrorist cells. To this end. 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. and “illicit” interchangeably to describe organizations primarily characterized by the need to engage in collaboration. but are also the skeleton of upon which tacit and implicit practices such as hierarchies.A specific case of deviant behavior in online communities. analyze. 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. cooperation. and map the social organization of illicit activities from the online world back to the offline world. coordinate their activities and adapt their structure to achieve their mission while avoiding detection and maintaining resilience (Ayling. status. and collective action while also emphasizing invisibility. 2004) and only recently have network analysis methods been applied to understand how actors in “dark” networks. Waring. However. 2002). and security (Baker and Faulkner 1993. 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. 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. “clandestine”. Greve. Leana. secrecy. 2007). 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. Milward & Raab. communication scholars. is first introduced to ground the review of social processes in covert network organizations. control. 2002. & Pil. Throughout the paper we will employ “covert”. 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. 2006).

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

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

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

drug traffickers. covert organizations. These may be actors strategically employed by the leadership to insulate themselves from outside interdiction (Dorn. or legitimate actors facilitating illicit activity (Morselli & Giguere. 1950. 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. Guetzkow & Simon. 2009. 2009). it is difficult to identify brokers by extrapolating the behavior of typical network members to these individuals in this distinctive roles (G Robins. 2006). 2006). Milward & Raab. Networks characterized by high centralization and low diameter are associated with high levels of performance (Bavelas. although these findings are primarily based on small groups in a laboratory setting with specific types of tasks. and the theoretical paradigms outlined above still exhibit a tendency towards densely connected cliques/cells rather than decentralized.shared background and ideology can also internalize organizational imperatives for control. loyalty. the loss of these brokers can also significantly disrupt the effectiveness of the network (Morselli. 2006). Oette. but still wellconnected. 1975). 1955). terrorists. Thus. However. or arms dealers where dense networks of ties and prominent bridging leaders are 8 . McIntosh. & White. Actors in covert organizations likewise face a major dilemma between ensuring operational secrecy and efficiency (Ayling. 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. However. 2009) However strong ideological identification and commitment is not universal to all types of criminal organization (Cressey. 1998). 2010). 2006). In particular. entrepreneurs brokering information. 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. 1971. and covertness to foster trust in the absence strong relational ties of communication or exchange (Milward & Raab. traditional “bright” organizations operate under considerably different constraints than “dark” organizations like gangs. Brokers are vulnerable insofar as both sides of a structural hole can betray them. 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.

2007) and organizational resilience with operational flexibility (Milward & Raab. 1981). 2009).. taken together. Baker & Faulkner. a drug trafficking enterprise engaging in regular activity exhibits higher centralization and a core of closely-linked participants with stable roles (Morselli. and homophily simultaneously influence the ultimate structure of the network? A multi-theoretical. 2003). preferential attachment. 1993. these are all distinct and potentially dynamic processes and this research has only examined them at a single level of analysis. et al. 2009. 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. multi-level framework 9 . Compared to the network of al-Qaida terrorists. Clandestine operations must to balance efficiency with security (Morselli. 2006). 1998). et al. but exogenous threats of detection demand low densities... Computational models attempting to optimize efficiency against likelihood of detection will still assume star-like structures such as “wheels” and “windmills” (Lindelauf. 1993). 2007). 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. how do the tendencies towards or away from reciprocity. et al. efficiency drives tendencies towards centralization. & Hamers. Borm. 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. 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. other “entrepreneurial” actors will have tendency to bridge structural holes and remain unembedded. Raab & Milward. Toward a multi-theoretical. closure. 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. 2007). However.liabilities which increase the likelihood of detection (Ayling.

parallel processes of selection and influence occur. geographic origin. we previously outlined the shortcomings of topological approaches to network analysis for often failing to account for variation in individual-level factors. et al. they can potentially lead to confounding. some factors such as demographics (gender. few analyses of clandestine networks have been performed let alone modeling the dynamics by which organizational forms emerge. Certainly. 2003) There are at least five levels of analysis one might employ for network analysis (Contractor & Monge 2003. 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. In a network composed of friendship or sexual relations. Across all these levels of analysis. 2006. Faust 2006). Wasserman. maintenance. 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. because these theoretical mechanisms operate at multiple levels of analysis. As Robins (2009) argued. and dissolved (Contractor. maintained. ethnicity. 2006. dissolution. Monge & Contractor. one would 10 . we review these below and identify the shortcomings of only examining each particular level of analysis. do they interact in important ways.Although the novelty of contrasting emergent and formal organizations has waned and been replaced by an emphasis on examining how organizational structures emerge (Contractor. Robins 2009). “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 the individual-level and network-based effects have independent explanatory capacity. Contractor et al. family) are fixed within individuals but vary substantially between actors. complimentary. 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. Individual level factors. and reconstitution of organizational networks. or contradictory manifestations in network structure. Crucially..

or knowledge (e. knowing who is an informant) status might be expected to vary over time.clearly expect an individual-level factor like gender to strongly influence the evolution of either type of network. von Lampe & Johansen. On the other hand. expertise.. charismatic. dominant or submissive). valenced (positive or negative. 2003). or law enforcement. These psychocognitive factors clearly influence processes of social organization in clandestine and criminal contexts by governing the roles assumed by various actors. 1981. short-term to long-standing) (Robins 2009). individuals’ information states are not independent. A pair of actors may have multiplex ties. reciprocated (mutuality or exchange may cause A and B to have ties with each other). However. it omits important 11 . Balance theory. A dyad is a pair of individuals and the relationship(s) they do or do not share. The tie may also be directed (A’s relationship with B is distinct from B’s relationship with A). if this is the sole level of analysis. individuals’ capacities to learn new information may strongly influence who they trust and thus with whom they interact.g. or valued (strong to weak. competing organizations. Individuals’ psychological and cognitive factors are likewise internally held and dynamic states which may predispose them to be risk-takers. As before. or violent. 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. but are can be altered as a result of other actors’ beliefs which can diffuse like a disease via shared relationships in the network. 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). subservient. individual-level capacities such as age. 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. In the context of criminal network analysis. for example. in which they share many types of relationships such as trust and communication. Finally. Dyadic level factors. 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.

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

For example. cyclicality. and assortativity suggests whether well-connected nodes tend to have other well-connected nodes as neighbors (Newman. The interdependencies among relational data make it inappropriate to analyze network data using traditional statistical analysis approaches.” This is an empirical claim. 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. Comparing generative. the existence of one friendship relation may depend on the total number of friends the focal node has. what other friends the focal node has and/or the relations between the existing friends and the potential friends. Unlike other types of data collected from individuals. density capture the prevalence of ties relative to the theoretical maximum number of ties. 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. In an exponential random graph model. These structural 13 . 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. There are numerous structural tendencies to characterize these networks and the particular parameters employed must be theoretically relevant such as reciprocity. 1994). As we review in greater depth in the methods section. but testing this assertion has only become possible in recent years because in addition to the difficulty of obtaining data. the complex dependencies within network data and confounding processes that generate similar topological features makes it difficult to readily compare network structure.connected nodes. transitivity. and star tendencies. such as regression analysis or ANOVAs (S Wasserman & K Faust. the existence of a tie from A to B is not independent from the observation of other ties involving A and B. 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. 2003). relational data used in network analysis usually show strong interdependencies.

represent the similarities among networks. A fourth type of analysis asks whether data on similar types of relations from different actors in roughly similar settings and contexts are comparable. et al. it will be possible to measure the similarity between networks based on these parameters estimates. Studies of organizational networks reveal informal structures based on trust and friendship overlapped and revealed latent leaders (Kilduff & Krackhardt. Thus. 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. A third type of analysis examines when the same relation is measured on two or more sets of actors. these are differences of scale rather than process. 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. It is possible to calculate pair-wise 14 . Monge & Contractor. and interpret the resulting distributions of tendencies using contextual information about the networks. 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. 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. to the same degree. 2006. Holland and Leinhardt (1970) used triadic census approaches to examine the distribution of structural features across various network types. However.. to compare networks.tendencies. 2008). The Add Health studies measure friendship networks of adolescents across different schools permitting analysis of general properties of adolescent friendship formation (Moody. 2001).” By characterizing each network using a statistical ERGM capturing the likelihood for the graph to assume structural properties. Despite the fact that networks can vary substantially in size and density. in turn. 2003). 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.

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

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

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. confront more interesting and challenging enemies. 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. and abilities for their characters. a practice involving accumulating and distributing virtual currency. accelerates players to higher levels and allows them to explore larger parts of the game world. 2006. Gold farming as a model type of online deviance Massively-multiplayer online games (MMOGs) such as World of Warcraft. “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. 2005). EverQuest II. 2008). bears a strong resemblance to the task demands of drug trafficking or money laundering. virtual worlds also contain black markets for acquiring goods and skills.. we review the background on the practice in the next section and describe some parallels it offers to support the mapping hypothesis. armor. in turn. Dibbell. Just as these game economies exhibit macroeconomic characteristics observed in real-world economies (E Castronova et al. First. 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. Gold buyers purchase this virtual capital to obtain more powerful weapons. Clearly. we suggest that gold farming. 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. 2009). there are very diverse forms of covert organizations as well as substantial variation in the code supporting the social architecture of virtual worlds. and increase their social standing (E Castronova. Because gold farmers and 17 . Heeks. and Lord of the Rings Online are examples of fantasy-based game worlds in which millions of players interact in a persistent virtual environment. This. in-game economies are designed with carefully-calibrated activities and products that serve as sinks to remove money from circulation.

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

gold farmers can effectively create new or replacement co-conspirators at low costs by registering new accounts. However. These legitimate and peripheral actors may support covert organizations becoming larger and more efficient than if they remained perfectly insular. In this context. as was the case with Baker & Faulkner’s analysis of a price fixing conspiracy. the demands of balancing secrecy and efficiency require the actors forgo exclusivity and allows individuals contract with individuals at various other levels. While traditional criminal organizations rely on trust to recruit co-offenders and engage in their tasks (von Lampe & Johansen. Furthermore. Thus. 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). 2003). gold 19 . 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. class.from infiltration from the outside. because the organization is operating extra-judicially. 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. disputes cannot be resolved by appealing to the authorities but must be negotiated and enforced in other ways. the mapping laid out here is imperfect. Moreover. it may be the case that homophily operates along other attributes such as play style/frequency or character level/age. or gender. Thus. However. but weakly connected giant components. the mapping potentially crumbles. we might expect that gold farmers and drug traffickers are both characterized by large. where narcotics organizations rely on ethnically homophilous distribution channels to ensure kinship-based trust as well as violence to enforce compliance. 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. As such.

A statistical approach to network analysis uses generative approaches to simulate similar network structures. cliques. In reality. and pair-wise significance tests do not themselves provide meaningful insight into the relationship between gender and income (for example). these data violate the fundamental assumptions of traditional statistical approaches such as linear or logistic regression. and thus confirm whether particular structural processes influenced the configuration of the network more than by random chance. evaluate the differences. G Robins. unlike other criminals. Nevertheless. 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. 20 . 2009). density. because network data is fundamentally relational. and equivalence fulfill valuable roles for describing the properties of nodes. subgroups. engage in processes of ideological identification or control over existing members. Furthermore. or threaten violence against defectors to accomplish their mission (Milward & Raab. and the whole network. 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 number of other friends they have. diameter. The consequences of being identified and banned are largely pecuniary rather than the long-term or even mortal risks in the real world. clustering. 2006. do not need to recruit or convert existing players. Metrics such as centrality. these approaches are only descriptive in nature. 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. Methods Statistical modeling of social networks Techniques for measuring local and global properties of a social network have existed for decades. Just as computing means.

1999. As such. Again analogous to multivariate regression. The presence of ties. Wasserman & Pattison. This is substantively important because 21 . & Crouch. 1. S. 1986. Pattison. & Lusher. Kalish. Pattison. 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. Rather than trying to make perfect deterministic predictions. Over the past 25 years. analogous to multivariate regression. 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. 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. 2005). Wasserman. Robins. Wasserman & K. 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. Kalish. 2. Pattison & Wasserman.or underrepresentation of structural configurations of theoretical interest. Social behavior is a highly complex system which implies that even small changes can dramatically change how the system evolves and stabilizes. 2007. & Lusher (2007). or other structures in the network may emerge as a result of distinct processes occurring in parallel. Garry Robins. Faust. 1994. An accurate and parsimonious model of the processes which govern the structure of a network can be a highly efficient representation of the network. Following Robins. there are at least five distinct motivations for developing statistical models of network data. & Wasserman. Thus. Frank. simply counting frequencies of these structures potentially confounds a variety of processes which could have lead to their emergence. 4.Developing a statistical model of social networks thus requires a framework which accounts for the intrinsic interdependencies in network data. 1981. 1999. Wasserman & Robins. 1999. a statistical modeling approach allows for hypothesis testing about multiple social processes that may lead to the over. 1996. clusters. 3. G. Pattison. Frank & Strauss.

complex complete representations. the model assumes a self-organizing and stochastic process of generating ties based on the surrounding context (what ties already exist). 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. strength or frequency) or valence (i. Exponential Random Graph Models P*/ERG models make several assumptions. positive or negative affect) of a tie. rather than the value (i. 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. each ties in the network is regarded as a random variable. one might expect that processes of reciprocity would occur over and above the chance that reciprocated ties occur at random.. Fourth.e. the models only predict the presence or absence of ties. A statistical model thus assigns a probability to all possible networks such that networks exhibiting properties of interest are more likely to 22 . Because global network structure emerges from local processes.e. for example) rather than occurring uniformly across the network. then this process needs to be modeled with yet another parameter (such as a gender attribute effect). 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. Taking a friendship network as an example. 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. 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. statistical models of networks should rely upon parameters that are specified at a local level. Fifth. 5. a model is composed of parameters which correspond to the structural features of interest and apply homogenously across the network.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. Third. Second.. First.

there are possible permutations for the network while a directed graph has possible permutations. statistical models relying upon sampling and maximum-likelihood estimation are employed instead to generate parameter coefficients for p*/ERG models.58x1081) than there are atoms in the universe (~1x1080). 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 model should assign higher probabilities to the simulated graphs that also have high levels of reciprocation and use these as the basis for comparison. Thus. Using a Markov chain Monte Carlo maximum likelihood estimation (MCMCMLE) approach. then reciprocation occurs less often than chance. If the parameter is negative. 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 used as a basis for comparison. In the friendship network example. a distribution of random graphs is simulated based on a starting set of parameter values. If the parameter for reciprocity is equal to zero. these values are refined by comparing the distribution of the simulated graphs against the observed graph. then reciprocation occurs more often than one would expect by chance. The number of permutations for a network is a function of the number of nodes (n) it contains. These other networks may have substantively similar local and global metrics or very different structural properties. and the process 23 . the completely connected graph in which a connection is present between every pair of nodes. 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. if high levels of reciprocation are found in the observed network. and a huge number of permutations in between. However. If this parameter is positive. 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. The whole sample space of a network includes the completely empty graph in which no connections are present between any nodes. For a directed graph.

overspecification of models with too many parameters results in networks which are substantively difficult to interpret. iterated until the parameter estimates stabilize (Handcock. & Handcock. Snijders. embeddedness. 2007). and evaluation of model fit. a proposed model may be insufficiently specified such that the observed network is unlikely to occur even under the maximum likelihood coefficients. Hunter. 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. M. Alternatively for large networks. Butts. the proposed model may vastly over. On one hand. Handcock. Robins. 2002. tremendously expensive to compute. degree distribution. 2006). The modeling approach and methods used in this analysis are outlined below. stabilization and convergence of parameters is not guaranteed. Gold farmer networks in EverQuest II Anonymized database dumps were collected from Sony Online Entertainment’s massivelymultiplayer online game EverQuest II. 2007. & Pattison. & Handcock. 2008). iteration. etc. 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. As a consequence. 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. 2008. Pattison. Similarly. Snijders. Using a goodness-of-fit approach to generate simulated networks and compare the resulting distribution of their network metrics (i. Garry Robins. Goodreau. For example.) against the observed network is a necessary confirmatory step for evaluating the validity of an estimated model. These data include both cross-sectional attribute data about 24 . Wang.or underestimate the amount of reciprocation or transitivity which is actually observed in the network. Hunter.e. diameter. 2003. Goodreau. and have statistically problematic estimates and standard errors given the loss of degrees-of-freedom.. Goodreau. On the other hand. & Morris. However.

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

2007). 2006). Morselli & Petit. 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. This network has 1. in which the transaction involved the exchange of items rather than currency. in which one character gave another an item but nothing was reciprocated in that transaction. The model fits are reported in Table 1. 2008. Although orders of magnitude smaller in network size (N=110. 26 .461 characters and 9.138 characters and 1. Subsequent models are built upon this skeleton and their fit are compared against the baseline. This network has 1. et al. E=295).sending only an item. --. The fourth and final is gifts. We use these as a heuristic to evaluate model fit. The third is donations.323 connections. Modeling approach Table X describes the relative fit as measured by maximum likelihood estimation as well as the Akaike information criterion. The change in the level of fit against a baseline (such as a model containing only a single.239 connections.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. small changes in fit indicate a relatively poor model while large changes in fit suggest a better model. Values closer to 0 indicate superior fit.022 characters and 768 connections. basic parameter like the number of edges in the network) can be assumed to better predict the observed network.519 characters and 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. a model with a simple set of parameters is estimated to use as a baseline.318 connections. The second is bartering. Wasserman. This network is the largest with 5. in which one character gave the other party currency but nothing was reciprocated in that transaction. This network has 1. First.

to the same degree. Mixed 2-star: the tendency for characters to be brokers between other characters. we see that the in-game gifting network exhibits the same pattern of valence and similar types of significance as 27 . 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. Out 2-star: the tendency for characters to initiate many transactions. donation. These parameters are visualized in Figure 2. 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.       Out edge: the tendency for characters to initiate transactions. Transitivity: the tendency for characters to be embedded within hierarchical relationships --. In 2-star: the tendency for characters to be the recipient of many transactions. Reciprocity: the tendency for characters to initiate transactions with characters they previously received transactions from.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.--. We review the substantive interpretation of each of these parameters below wherein transactions refer to the particular relationship (market exchange.   Cyclicality: the tendency for characters to engage in indirect exchange or generalized reciprocity. In edge: the tendency for characters to be the recipients of transactions.” As such. and gifting). By visual inspection alone.Table 1 about here --- The full model incorporating all of the parameters of interest are the best fitting models across the five networks. bartering.

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. net of the effect that ties are relatively rare in the network to begin with. 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. Reciprocity also plays a similarly strong effect in both networks. We also find that transitivity plays similarly strong influences in both the gifting and CAVIAR network. This comports well with both theoretical and intuitive notions that people choose their trade partners selectively rather than randomly. but its significant absence for the type of transaction it ostensibly best captures whilst matching the same behavior observed for drug trafficking 28 . the positive estimates for the in-two-star and out-two-star parameters suggest that. 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. However. the negative mixed-two-star parameter implies that actors engaged in brokering transactions are relatively rare. Across the four in-game trade relationship types as well as the CAVIAR trafficking network.the CAVIAR network. First. Second. However. The negative estimates for in-edge and out edge suggest that links occur much less often than is to be expected by random chance. links are relatively rare in these networks. the large estimate suggests that the existence of a tie between characters almost always results in the other character reciprocating. gifting is the type of transaction one might naively expect to see indirect or generalized reciprocity most strongly occurring. First of all. This suggests that the gifting in online transactions exhibit similar structural tendencies as we observe for an offline drug trafficking operation. there are substantially more instances of characters engaging in multiple trade incoming and outgoing gifting transactions than one would expect by chance alone. 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. 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.

29 . motivations. sampling. and embeddedness. and affordances to offline contexts is mixed. Thus. Moreover. 2009). Approaches to graph sampling are imperfect and ultimately undermine the original motivation to understand large-scale behavior without resorting to estimates. if one wished to characterize offline drug trafficking behavior by using data from MMOGs.000 actors (S. interactions. in some task contexts such as gold farming and drug trafficking. Goodreau. this result suggests that the structure and dynamics of gifting transactions may be the best place to start. 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. 2007). 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. Despite the surfeit of data available from virtual worlds databases which we have extolled repeatedly throughout this paper. In other words. P*/ERG models are immensely computationally intensive above networks of approximately 1. 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. 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. much less the tens or hundreds of thousands of actors in many games which would demand peta-scale level computing power (Poole. Although the evidence for mapping online behaviors.suggests that the gifting transaction is not really gifting at all.

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

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

The growth dynamics forecasted for the video games sector are exceptional. the recorded music and filmed entertainment represented 2% and 6% of the global media and entertainment market respectively. the size of the global market for video games in 2009 was estimated at €46 billion. In 2009.5 billion. For the US market alone. in 2009.2 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. book publishing. It is estimated that in 2009 these regions accounted for over one half.5 billion. whereas the latter is expected to grow by only 17%. TV advertising. the global value of video games sold worldwide was US$ 43. internet advertising. the video games market accounted for around 3% of the media and entertainment market. In spite of being still a rather young industry. Germany.3 Other sources report similar values of the size of the video games market. 1. of the video games market. video games already managed to become a significant and growing share of the media and content industries. filmed entertainment. an increase of 28% against 2006 (ESA. The former is expected to grow by almost 70% to over US$ 70 billion by 2013. radio. when compared with the entire market for media and entertainment products and services. 4 5 Europe is the core market of this region. in 2007. Spain and UK.5 According to these figures. accounted for nearly 30% of the global video games market. newspaper publishing. recorded music. video games. the US and Japan are the main markets for video games. or €26 billion. 2008). 3 . and business-to-business publishing. the combined computer games and video games sales in 2007 accounted for US$9. The Europe-Middle East-Africa (EMEA)4 region is the biggest market for video games: France. According to IDATE (2008). Developed regions such as Europe. consumer magazine publishing. Italy. Media & Entertainment includes: internet access fees. In comparison. TV fees.

Book publishing. IDATE 2008 4 . 2007-2013. million US$.513 Total Media & Entertainment* 1.026 73.4 Table 1: Global video games and global media and entertainment market.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. The value of home consoles was around €10.587 million.559 million.604 67. in million euro.390 55. TV advertising.068 1. PC and wireless.506. internet advertising.359. by segment. Filmed entertainment. Business-to-business publishing 1.089 58. Consumer magazine publishing. 2008 – 2012.495 1. whereas the value of software dedicated to this platform exceeded €12.950 1. It is estimated that this gap will increase even further and.409 1.173 * Media & Entertainment includes: internet access fees. by 2012 the value of console hardware will drop to around €6.354.408.941 1.373.258 million. Recorded music.e. PWC 2009 2007 2008 2009 2010 2011 2012 2013 Total Video Games 43. i. whereas the value of software is expected to increase to over €16.383 61. Newspaper publishing.411. TV fees. Video games.788 1. Figure 2: Value of hardware and software in video games.613.460 51.291 million. Radio.


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.).


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

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

12 in Germany.gamemiddleware. 5 in the (last accessed: 17 December 2009). 4 in Ireland and 4 in Sweden. the innovation in available games. and the transition to handheld devices and the newest generation consoles (PWC 2009). single user online games) are offering users a new role. Since 2004. June 2010. growth in the number of users and demand. come from other countries. or 16. Of these 84 products. Mobile games are challenging the monopolies of existing operating system owners and are offering a new distribution channel to developers. as this guarantees. on the one hand. 14 of these have been developed by firms in Canada. 3. the online and wireless market has grown with remarkable rapidity. presentation at the IPTS workshop. online games (Massively Multiplayer Online Games . (accessible online at: http://www. 19 by companies in France. 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.MMOGs . 22 were developed by companies in the UK. The figure shows that 39.1 Online value creation Online games benefit most from the increase in electronic diffusion of content. 3. 10 . driven by the increase in the number of broadband subscribers. The United States provides 93 of the 212 analysed items. Unity3d.and also easier to play browser-based.9% of the total. which could bypass the publishers and create different revenues streams. Moreover. Steffen Toksvig.10 Figure 4: Geographical distribution of middleware producers Source: IPTS elaboration on information provided by GameMiddleWare. and on the other 10 Middleware from Unity3d (a Danish firm) is used by 10 to 20% of the top 100 games.5% of the total. 35 items. This shows that the dynamics of this market are driven by technological novelties and new applications. 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.6% of modules are produced by companies based in one of the European Union countries10.

deloitte. The publisher. 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. and opening new subsegments as it becomes possible for millions of players to interact simultaneously. at the same time they attract advertising which brings an added source to the mixed revenue models. Clearly. very powerful. (2008). Video games. where the increase in structure and negotiation power of big retail chains has allowed them to interact directly with publishers. leaving distributors with a marginal role. each controlled by the console's hardware provider. allows games to be improved by adding new functionalities. Valve's Steam Service or Manifesto Games). they are more and more offering different kinds of digital contents and resources. and related contents and communities. 11 . resources and services made accessible to users. console-oriented gateways are also increasing their importance and audience by differentiating the type of content and services made accessible to users. in many cases. Independent application stores are growing rapidly. Gameforge) were among the five fastest growing IT companies of the country. among many others. "disintermediation" is taking place. music.h tm 13 The key dynamics of video games in general are described in a more general framework in Mateos-Garcia et al. Having started as gateways for accessing video games. Source: http://www. which normally allow a non-linear interaction with the user. 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. 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. 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. 12 For instance in Germany in 2009. Going online enables them to exploit the promises offered by massive multi-player interaction: the creation of persistent virtual worlds and characters. and additional content. are making the most out of their online possibilities. Independent application stores and console-oriented gateways are differentiating the type of digital content.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. two browser-based game companies (Bigpoint.11 hand. In the same way. the distribution of online games has been progressively concentrated on some internet portals serving the PC-based side (like. without the need for a distributor to act as intermediary between the publisher and the retailer: i. A whole part of the core business involving publishers. In the past years. ISPs act as content aggregators and provide portals for game distribution which allow easier promotion and localisation of new games by users.11 Publishers can also opt to distribute games through Internet Service Providers (ISPs). directly distributes games. and on a few. multiple entry points and continuously updated plots enriched by the inclusion of user-determined content. network platforms for console As regards demand. cutting out the role of the distributor.12 providing online games access to PC users together with the possibility to download not only games but also movies. consumers are 11 Disintermediation is also taking place in the case of off-the-shelf games.

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

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

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

focused on the future industrial European competitiveness in the following emerging technologies: WEB Displays. Dalloz. Feijóo. Bacigalupo.P. Abadie. COMPLETE aims at producing 6 reports. C. D. Maghiros. Chapter 26.. Bogdanowicz. The Professional Identity of Gameworkers.europa. (2009). & Pascu. Seville: Institute for Prospective Technological Studies Game Developer Research (2009a). Nepelski. Maghiros.0.cfm Deuze M. Essential Facts about the computer and video game industry. F. C. Demographic and Usage Data. Compañó. (2008). De Prato. References Bounie.. (2010. Video Games Software Embedded Software in automotive Semiconductor design with DG INFSO. ESA Entertainment Software Association (2009). Culture R. Abadie. pp. Demographic and Usage Data. J. Convergence: The International Journal of Research into New Media Technologies. M. Telematics & Informatics. Objectives: Analyse the future competitiveness of the EU ICT sector in emerging ICT technologies. Los Angeles.. Sage Publications. C. C.. (2010) “Born digital/ Grown digital. Allen Christian (2007). Content and applications in the mobile platform: on the verge of an explosion. ESA. forthcoming). G. Vol 13(4): 335–353. ESA. J..15 The video games report is part of the European Commission COMPLETE Project (20072010). ESA Entertainment Software Association (2008).. 2009 Sales. New Delhi and Singapore.. Xavier Greffe and Nathalie Sonnac (eds)... COMPLETE is co-financed by JRC-IPTS and DG ENTREPRISE and INDUSTRY of the EC. I. Bowen M. M. Essential Facts about the computer and video game industry. C. F. 2008 Sales. Assessing the future competitiveness of the EU video games software industry” available at: 
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Therefore. the game companies and their affiliated service providers. these operations have been part of guild-on-guild psyops. 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. we review the above incidents. In a later development. and more important. Less well known is that hacktivist movements and “leaking” operations have also taken root in Massively Multiplayer Online Games and other virtual worlds. this time. In some cases. For example. uncovered an even bigger surveillance/datamining operation conducted through the Modular Systems's particular. ingame vigilante groups. they don't just expose shady dealings.
47405 Abstract
 In our paper. operating under the disguise of white-hat hackers. in one recent case. 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.
 Bloomington. & and Policy Making Peter Ludlow Northwestern University Department of Philosophy Crowe 3-159 1880 Campus Drive Evanston. IL 60208 Burcu S. The Wrong Hands exposed the shady past of the key programmers of a software company (Modular Systems). we interrogate to what extent transparency and privacy could be established under the policies set forth by the current terms of service. had backgrounds not only in writing malicious code. which had several former Linden Lab employees on staff. The Wrong Hands. The company. Hacktivist movements inside virtual worlds raise a series of interesting questions that have direct relevance to the real world.
St. folded shortly after the exposé.
 Hacktivism in Online Games: Negotiating Transparency. 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. Privacy. For instance. but in a few recent cases the in-game hacktivists have exposed secrets about online organizations. Game companies have a responsibility to protect the privacy of their users. These programmers. 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 was providing the group with god-mode capabilities that facilitated the operation. question our understanding of online privacy. More important. content theft. but also other activities that violated the terms of service -. Bakioglu Indiana University Department of Communication & Culture 800
E. reported in Ludlow (2010) and Jenkins & Ludlow (2010). which was developing a viewer for Second Life. We also 
 . to whom does the responsibility belong in securing personal information and intellectual property. but just how far does this responsibility extend? In this paper. but rather. the leaked evidence suggested that these illegal activities were being backed by Linden Lab (Second Life's parent company).

Batman. they designed their headquarters with a NASA quality control room with monitors that displayed constant updates from all over SL. had made a name for itself in SL through its transgressive and scatological behavior. Corsi Mousegard. But the issue was to figure out who was the griefer and who was the bystander. and persistent harassment of other residents. there were economic motivations that drove the aggressive abuse reports filed by the JLU. To be clear. newly found estates. JLU had already penetrated the PN. As it later turned out. According to a Intlibber Brautigan. WU had always adopted an alternative and experimental approach to education. (Ludlow. the JLU presented itself as an anti-griefer organization dedicated to keeping peace and order in the virtual world. The updates also informed the League members what representatives of the game company (Linden Lab) were online.2 Not surprisingly some WU students embraced the 4Chan 
 . etc. they did spar with griefers and fight disruptive behavior. a griefer group called the Patriatic Nigras (PN). the Director of Media. then. In line with the role-playing that SL has become famous for. the owner of the Furnation region in SL was later to explain to Alphaville Herald (2010. breathing entity where its students could study and creatively experiment with these social relationships and online cultures in an educational setting. At the time of the JLUs founding. and more important. 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). The editor of the online newspaper. From the beginning. Pixeleen Mistral. but rather. but instead of using these moles to destroy the griefing group. were claiming that Intlibber had hired the PN to grief his enemies in the virtual real estate business. was viewed to be just as culpable of griefing as those who were its subject matter. Predictably. or attack. Culture. to whom does the responsibility belong in securing personal information. According to Dr. Their activities included grid attacks. 2006. which had originated from the 4Chan message boards. asked to join Proactive Security. Wonder Woman. an active. feigned racism and intolerance. including a small university from Southern California: Woodbury University (WU). For example The Alphaville Herald. The JLU was founded by a user named Kalel Venkman on April 4th.
 probe to what extent transparency and privacy could be established under the policies set forth by the current terms of service. was later to find out that she was on the JLU target list. 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. There were other actors who were complicating this play. To make the fantasy complete.” Likely.0

 Our story begins with a Second Life user-created vigilante group called The Justice League United (JLU). 1. in turn. 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. JLU wasn’t just falsely accusing innocent users. As reported by Ludlow (2010). Edward Clift. 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. These raids justified the existence of JLU as a necessary force in SL and the estate owners were. & Design at WU at the time. 2010).1 JLU. living. Kalel Venkman. Established in SL in 2006. JLU had close contacts with Linden Lab employees and utilized those relationships in filing abuse reports against other players. created his group to fight the likes of the PN. which had been reporting on virtual world griefing since 2003. JLU was banned from Furnation (a region in SL where players appear in anthropomorphized animal likenesses) because of their excessive vigilantism. they were organizing them to raid. their campus was not just a static virtual mock-up of their actual campus.

Because these regions had open access (unlike most other educational spaces). the chief officer of WU.a. and they were viewed with equal suspicion. Even though some of the Emerald developers had a shady past. also made the Woodbury region their regular hangout and even had an office there. and much to WU’s surprise. Haruhi politely sent a letter to all of the JLU members ironically thanking them for their hospitality. 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.k. These charges were dismissed by the JLU. a certain Haruni Thespian volunteered to become a JLU member. I just want to bring fire to the people. Another curious alliance was with a programming company called the Modular Systems. who continued their disruptive activities while they were hanging out in the Woodbury region. Haruhi leaked its 1700-pages of confidential information. they quickly became Linden Lab's development team du jour. similar alliances between Linden Lab and third party developers had existed in the past. the League was officially pwned. and they are…” And thus. Interacting with the PN. a group of Woodbury students formed a subgroup called The Wrong Hands. fed up with JLU’s aggressive abuse reports. Jordan Bellino). led the WU to be seen as part of this notorious group of virtual world punks. Ultimately. in the case of libsecondlife developers).
 culture and their memes. (for example. It was clear to them that something foul was going on. WU began to plot an infiltration operation. 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). 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. In the meantime. Tizzers Foxchase. which was developing the Emerald viewer for SL. 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. No. Nevertheless. According to Tizzers Foxchase (a. 
 . She opened the doors of their land to the PN. sometimes successfully getting them banned without cause. none of the libsecondlife hackers had intentionally been mixed up in criminal activity nor did they engage in black-hat hacking..Lex Luther Well boys and girls. I want my cut’ . Early January of 2010. who were developing a viewer (browser) for SL called Emerald. the WU group was paying the price. Getting tired of constantly being banned for no reason other than their association with the PN. During that time. However. The note even started with a pertinent quote from Superman’s arch-nemesis. detailing the operations of the JLU. The Wrong Hands started its operations with JLU in their sights. And that they did. the chief officer of the Woodbury group in SL. 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. I don't want to be a *god*. Lex Luthers: ‘Gods are selfish beings who fly around in little red capes and don't share their power with mankind. Three days after the security breach. This in turn led the students to befriend the PNs. a member of the JLU quit the group and gave an interview to the Alphaville Herald. and while they were no angels. a group of hackers. To be sure. claiming that they were keeping massive intel on SL users.” After infiltrating the group and gaining access to its secret Wiki. 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. were abuse reporting people capriciously. people were beginning to sense curious connections between Linden Lab and some of the vigilante groups in SL. he was granted full access to the BrainiacWiki only after a four-day wait period – without a non-disclosure agreement. 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. and that employees of Linden Lab were complicit in these operations. did the unthinkable. For example.. In 2008. And. it’s been real. There are a few of you who I would like to thank by name.

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

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. Linden legal counsel Marty Linden. source code for portions of a datamining application. From a policy perspective. 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. previous JLU associates had reported the existence of a surveillance system and database on innocent users. Modular Systems. 2. 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. however. Apparently. This naturally raises the question of when such operations are justified.
 Woodbury ban. This revelation not only exposed the close relationship between Linden Lab and the Emerald developers (whose reputations had already been tainted). Perhaps the justification hinges on the evidence one has that more pernicious violations of privacy lie behind the curtains. 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.740 SL users. rolled out their new viewer compatible with Linden Lab regulations and was approved as one of the official site. But when exactly are such actions justified? Unfortunately there are no easy answers here. as a result of the leak. and correlatively feed into the sense that they are the agents of power 
 . and IP address. of course. their lifeline was unplugged. avatar key. but it also exposed the involvement of the coding authority (Linden Lab) in the matter. the real question is what the role of the coding authority should be in all of this. a database containing over 39. The Wrong Hands had strong reason to believe that something was amiss – for example. and a picture of the Emerald developers in a meeting with the Linden Lab CEO at the time. and geo-location information for players who created SL accounts at the ModularSystems. Soon enough. because the actions of The Wrong Hands exposed privacy violations far worse than those they themselves were undertaking. They give the vigilante groups the impression that they have the blessing of the coding authority. could be severe. detailing avatar name. Woodbury University was permanently banned yet again as they were days away from getting their educational island. M Linden. 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. hinting at a possible mass ban. It was wrong for Linden Lab to encourage and assist the JLU. the company that developed Emerald. In both the case of their JLU infiltration and their hacking of Modular Systems. 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. 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 Emerald developers had compiled a database of avatar names. chatlogs of Crystal saying that the consequences for the Woodbury faction. IP addresses. 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.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. Such relationships are toxic for many reasons. The paradox. and several other SL staff. In the case of the JLU. but also raised some serious privacy concerns. The leaked documents included e-mail exchanges.000 entries tracking 16. It wasn’t long after Crystal's questioning that the Wrong Hands hacked into the Modular System's database and leaked incriminating documents. And so during a meeting in which WU was negotiating its legitimate return to SL. concerns which were apparently shared by the Linden Lab developers.

html Jenkins.html Mistral. H. 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. Emerald site security broken! Datamining shocks Linden Lab!!! 
 .org/2010/04/choose_your_ficitons_well. Corsi Mousehold: JLU Are Power Hungry Crazed Nutjobs. like the terrestrial world. (2010. Retrieved from http://alphavilleherald. and as our lives more and more move online these questions become pressing. 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. and their love lives. need to protect their whistle blowers.html Ludlow. The principle seems to be this: systematic violations of user privacy are not to be tolerated. ( April 14).com/2010/05/emerald-devsmodular-systems-data-mine-tracks-16740-avatars. but of course not every such group is known to the coding authorities. (2010. 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. Works Cited Alphaville Herald. but clearly there is a difference between a standing organization that systematically engages in surveillance of a broad group of users. Choose Your Fictions Well. (2010. ( What then should be the reaction of a coding authority to a group like The Wrong Hands. Retrieved from http://henryjenkins. 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. Pixeleen. 2010 from Alphaville Herald: http://alphavilleherald. and further that coding authorities need to act decisively against groups that commit these violations. May 17). Virtual worlds. Pixeleen. and a one-off operation that seeks to expose a specific vigilante organization on the basis of reliable testimony from within the organization. Retrieved from http://henryjenkins. May 19). Indeed. 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. and P. Many people now depend upon virtual worlds like Second Life for their business lives. September 3). Did Linden Lab’s Emerald dev coverup lead to Woodbury ban? Retrieved July 12.html Mistral. their social lives. 2010 from Alphaville Herald: http://alphavilleherald. Ludlow. Retrieved July 12.740 avatars. May 11). 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. Emerald’s dev’s Modular System datamine tracks As virtual worlds become more and more important to us.html Mistral. they often do become nearly untouchable. 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. Pixeleen. April 9). P. Watching the Watchers: Power and Politics in Second Life. but if they can be justified then the participants should not be punished.
 and are untouchable.

(2010. Bakio lu conducted on 25 May 

 1 2 Private interview with Burcu S. Interview with Woodbury University’s Edward Clift.html Mistral.
 Retrieved July12. Paladin. 2010 from Alphaville Herald: http://alphavilleherald. Pixeleen. Private interview with Burcu S. Retrieved July 12. Retrieved July 12. Modular System Hacked: Woodbury University hacker(s) claim responsibility. June 3).html Mistral. 2010 from Alphaville Herald: http://alphavilleherald. ( Paladin. 2010 from Krypton Radio: http://kryptonradio. Bakio lu conducted on 24 Deecember 2010. 2010 from Alphaville Herald: http://alphavilleherald. 
 . Retrieved July 11. Retrieved July Linden Lab’s Woodbury cleanup effort Proto. Emerald Viewer: 76000 unique visitors could be wrong. May 17). 2010 from Krypton Radio: http://kryptonradio. April 12).com/2010/05/emerald-sitesecurity-broken-data-mining-shocks-linden-lab. April 20).html Proto. (2007. Pixeleen. (2010.

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

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

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

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

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

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

As it relates to the nature of player interactions. however. even if the servers are hosted by individuals and not on large-scale external servers. despite lacking a material location in the real world. 96). Jakobsson (2011) describes achievement hunters who “typically care more about the accumulated gamerscore than getting all the achievements in any given game. A player who creates a character in the Arcania realm in Maplestory has a consistent location to which to return. For the majority of games in video game history. players in games with robot opponents might appear to be playing in similar ways as they would against human beings. given that matches are created from a pool of all available opponents. in theory. such as those in many console games such as Street Fighter IV or Halo. Accordingly.“ (n. or simply clever tactics to take advantage of their tendencies. these two types of interaction are not automatically identical. 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 . The difference between consistent and inconsistent play environments is the difference between a boxing club and a street fight. Logically. of course. users may also acquire the necessary experience to encode relational (socioemotional) communication using text” (p. it cannot be picked up again with the same participants. Communal debate about whether or not exploiting code is ethical. friends might argue about an exploit over lunch at school. but it does not take place within the scope of the game itself. players played against computer-controlled opponents. The result is a server with an affective identity that develops over time. have a concreteness to them. fun) interplayer relationships require time to develop.). developing tactics intended to beat the system: exploits. unique players may be able to play each other multiple times.p. it would not be possible to discuss multiplayer interaction without multiple players. 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. 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. the more players can be around each other. cheats. 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. these same debates span the globe on game forums. using cheats and exploits to quickly acquire achievements is personally satisfying and enables them to show off. Their approach is to deplete a game of all its time efficient achievements as quickly as possible and then move on. Players acquire to opportunity to learn from each other over a more extended period of play. glitches. MMO public servers combine elements of the consistency of location in computer games and the anonymity of players and inconsistency of the console model. For these players. 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. The servers have no names or identities.
 refer. they can return to it. Espin and Conway (2009) explain. affectively positive (that is. The stakes. joyful. Fighting at a boxing club. specifically in terms of sports games but arguably true in any game. In the case of a game of Soul Caliber 4 on a console. In contrast. While ostensibly. but once that fight ends.p. These server spaces. Players Certainly. now. constructive. When a player leaves that game. for such arguments are low.). they will not likely find each other again. and as soon as the hosting player leaves that game. the more they can connect to one another and develop their ideal play environment. then. a street fight could take place in any alley with any participants. and players in one realm may not be able to migrate to another. but unless one adds the other as a friend. the server ceases to exist and cannot be recovered. if the player who owns the server puts the server back online. Moeller. Pena and Hancock (2006) explain. 9. “Over time. 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. however. If a player leaves such a server. host games on the machines of the players that start the games. this layer is the most important because it establishes the potentiality for relationships based on the duration and proximity of consistent play. Other servers. 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. takes place. however. they cannot return to it without blind luck. it can be found again.

don't ninja-loot.
 skills” (n. In general. typically over the internet. and certainly players will interact differently between friends than they would random players they know nothing about.).g. doing what you can to help the Guild as a whole” (n.g. pvp [player-versus-player]. don't kill steal. 96). Rather. 6-9b: Clans Clans (or guilds or corporations) form a particular side-influence for many players in a host of different games. grouping with other Guildies on a fairly regular basis. police. Because clans exist in a separate virtual space outside of the game (or are totally decentralized). This layer is the last space between the individual player and their actions in the game.p.). yet can themselves do nothing about it. Lin. What is at stake here is personal pride and recognition. On many servers. Typical player behavior is more nuanced because. Most multiplayer platforms now also have friend lists. clans are community organizations developed outside of a game. However. and Tin (2003) explain one of the other motivations for players to join clans: “inexperienced players are happy to find more experienced Lipkin 8 .). Thus. this is called being a troll or a griefer. 103). as would be expected in most competitive spaces. 'How can I perform a special move?') than socioemotional communication (e. This means taking an active part in the Guild. The interaction with human beings can have this achievement and skill based mentality.). participants should produce more task (e. This opening line establishes the social nature of the guild. such as experience and the server’s affect. helping others with quests. it is a form of normal face-to-face interaction.. clan members will monitor. 2011. it does not directly affect any other players. In other places. One World of Warcraft guild. The very existence of trolls and griefers depends on the availability of human players who can be offended and upset. they do not consider the importance of hierarchies in their analysis. Bartle (1996) describes what he calls a “spade” player as having the following motivation: “Only in the knowledge that a real person. That same study found that negative comments were less frequent than positive ones (p. is there any true adrenalin-shooting.p. is very upset by what you've just done. it is probable that when players do communicate. Sun.p. juicy fun” (n.. good to see you captain')” (p. While Pena and Hancock (2006) demonstrate a general tendency. Then again. and protect each other. Even within games when they may not own or control the entire server space. designed to allow players to develop community and have consistent players. not all people are trolls. joining in events. There may also be non-administrator players who simply play on a server very often and are enculturated into that server’s individual culture. they cannot be considered a layer above or below a specific layer in the hierarchy. One Diablo II clan recruiter explains. “Wyrd Angles. While many factors go into the way a player might expect their fellow players to act. and the page also lists unwelcomed behavior: “Don't spam. “Participants will focus on playing the video game rather than displaying a social orientation when communicating. or forced to do unwanted things” (PureSaint. they establish and run their own server communities. players likely take into consideration the differences between playing a human and playing a machine. While this may not be as important in all situations.p. and they operate their own games. as a hierarchy is dependent on how much players know and can know about each other. it tends to be productive. 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. Pena and Hancock (2006) explain. “We want to be the best clan out there for people that just want to enjoy the game without being scammed.p. clans serve as the center for regulating and directing player behavior and activity. In many cases and most often in MMOs. somewhere. 'Hey. don't get caught up in abusive arguments and don't intentionally train” (n. there are many cases when players learn their place in the virtual social order. n. It likewise enables players to create and enforce rules in games where they cannot otherwise be enforced.). frankly. a new player on the server might consult one of these regular players for details about the rules on that particular server. 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.” (2009) explains their operating rules: “The Guild is its members.

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

H.Y. (2009).H. pullers and glitchers: the rhetoric of sportsmanship. (2006). 33. Retrieved from http://www. (2005). P. Ashcraft. Guild rules. Retrieved from http://www. February 26). C. Retrieved from www. Parisi. Nov 2003). Jerks should be 'charged accordingly' in multiplayer says Valve's Gabe. B. Retrieved from http://www. Nintendo 3DS allows racist. Kotaku. J. J. Available at http://www. Racism & homophobia in gaming: hate speech corrodes online video game experience. Hearts. (2010. H. and Bushman. M.pdf Lin. S.gaeatimes. 11. (2001).org/ diamonds. Handbook of Research on Effective Electronic Gaming in Education. (2011. (2008. R. Game Studies.A. TEEP Clan recruiting. E. February 19). Lipkin 10 .php/archive/racism-and-homophobia-in-gaming-hate-speechcorrodes-online-video-game-experiences/ Intemperance. K. Effects of violent video games on aggressive behavior. C.. and Conway. and Hancock. Game Available at http://www.pdf. Frans Mayra (ed. 772-790.rpgforums. Microsoft files for *bleep*ing good patent. sexist and vulgar character names. May 6).. Pena. N (2006).1. clubs. and behavior in the laboratory and in life. (2011. feelings. Ferdig (Ed).com/scg/papers/Bad%20Behavior%20survey.S.E. D. Available at http://gamestudies. Moeller. Retrieved from http://www. Retrieved from http://arstechnica. Communication Research. March 1). Retrieved from http://imv.4. (2000). 111-126.ars Bartle. Tampere University Press 2002. (2009).1. 288-299. and Dill. Psychological Science. 353-359. (2011. Available at http://gamestudies. MA: MIT Press. physiological arousal. (1996). The experience of ‘bad’ behavior in online social spaces: A survey of online users.1. Game Studies. M. Davis. Breaking news: people curse on Xbox Live. Virtual group dynamics. aggressive cognition.K. C. (2002). Cheesers.htm Montfort. Journal of Online Environments. and Tinn.g4tv. Retrieved from http://research. Espin. [Web log comment]. PC Gamer.gamestudies. Bad behavior on Xbox Live [Video file]. N. 12. Retrieved from http://www. (2009). Retrieved from http://tech.intemperance. Ars Konzack. 6. Journal of Personality and Social Psychology. (2006). 92-109. (2011).html Purslow.
 Anderson. (2003).A and Green. (2002): Computer game criticism: a method for computer game Combat in Geranios. In proceedings of Level up: Digital Games Research Conference ( Montfort. The Gaea Times. and Bogost. Exploring clan culture: social enclaves and cooperation in online gaming. and Practice. A. Video games and aggressive thoughts. 89-100. (2002). 116-127. in Richard E.Kotaku. and prosocial behavior: a metaanalytic review of the scientific literature. Holland. Bleahy. 1. in CGDC conference proceedings. aggressive affect. B. spades: Players who suit MUDs. Bangeman.htm. N.1.M. Anderson.. Racing the Beam:The Atari Video Computer System. G4tv. An analysis of socioemotional and task communication in online multiplayer video games.mud.T. Sun. 78. Fireb0rn. Theory. April 17). Game interfaces as bodily techniques. R. The achievement machine: understanding Xbox 360 achievements. B. PureSaint.

Retrieved from http://news. January 14). T. Retrieved from http://tech. ( Microsoft Points exploit may have cost the company over $1 million. Game Studies.cnet. Winrumors. Retrieved from www. [Web log post]. Boria.
 Reisinger. J.H.php/archive/racism-and-homophobia-in-gaming-hate-speechcorrodes-online-video-game-experiences/. Warren. Frequency of profanity in Halo 2. February 8). (2002). (2009). and Breidenbach. Geohot speaks out on PS3 jailbreak legal The Digital (2011. Game Studies. J. Creative player actions in FPS online video games: playing T (2011. Wright.html Smith.. Wyrd Lipkin 11 . (2007). Retrived from http://www. Retrieved from http://gamestudies. D. Guild rules. P. Tragedies of the ludic commons – understanding cooperation in multiplayer games. March 9th).winrumors.wyrdangles.gaeatimes.gamestudies. E. Retrieved from http://www.

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

$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.S. it becomes clear that its growth. Expressing the amount of money a single person spends each year on video games according to revenue. subscription and virtual goods. chapter 10.census. be explained by examining how money is made. Numbers for 2011 (‘11E) are estimates. Data for the period starting in 2004 and ending in 2011 are originally from Pachter (2009).5. produces the Figure 2. Data for movie revenues for period between 1995 and 2010 from Noam (2009). Data for music retail for the period from 2001 to 2010 from DeGusta (2011). these three models have grown from representing 1% of annual video game sales in 2000 to 23% in 2010. 251 – 263. Data for music retail for period 1980 to 1990 from Noam (2009). particularly in recent years.                                                                                                                 1 Numbers shown for video game industry are retail sales only. Data for period between 1994 and 2003 from Noam (2009). If we segment the total industry’s income by revenue van Dreunen Page 2 of 11 . Data for the period between 1980 and 1993 taken from Vogel (2001). and include both hardware and software sales. Census (www. Data for music retail for period between 1990 and 2001 from Ziemann (2002). namely digital download. Music and Movie Tickets in the United States1 The obvious difference in year-to-year sales for the video games business can. pp. Inflation calculated using Consumer Price Index figures from Bureau of Labor Statistics (http://data. table 6. originates in the popularization of several new revenue Data for movie revenues for period between 1995 and 2010 from Nash Information Services (2011). at least in part. Combined. Population data from U.bls. All missing values averaged between years.

Advertising is not part of this business history.census. They are Arcade. through retail and arcade. buying a game for a mobile phone can coexist perfectly with a subscription to an online multiplayer game. Subscription and Virtual Goods. in turn show a decline. by ignoring one. but rather their popularization as a critical area of growth for the overall industry. the American video games industry has gone through five different revenue Pachter (2009).gov/cgibin/surveymost?cu). All others here discussed involve direct consumer payment. Inflation calculated using Consumer Price Index figures from Bureau of Labor Statistics (http://data. and often alongside each other.S. the different models are by no means mutually exclusive. Noam (2009). Population data from U. Retail. 3 A HISTORY OF VIDEO GAME REVENUE So far.$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. because it is an indirect revenue stream. Before we dive into each of them. And it is the relationship with the end-user that characterizes the various revenue models. two observations demand attention. download games directly to a console. a key differentiating factor here is not the shift from one model to the next. Conversely. for instance. All numbers are in 2010 dollars. Second. Play Meter (2011) and van Dreunen (2010). companies risk missing out on critical funds. van Dreunen Page 3 of 11 . Census (www. Similarly. a large enough audience base must adopt it. existed long before consumers began to do so en masse. Digital Distribution. In some instances the technology to.bls. people will spend money both at the video game arcade and on home consoles. In order for a particular revenue model to become a reliable source of income. For example. First. This warrants investigation.                                                                                                                 2 Data sources for Figure 2 (in alphabetical order): Bagga (2011).

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)

van Dreunen

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6                                                                                                                 6 Source: company information and app store websites. But because of its relatively low barriers to entry. 2003) Since the PC was a more open platform compared to the walled garden of the console. it further lowered the average price point to $9. This policy effectively strangled the potential for an economy of scale. failed to gain traction. Among these apps. The current generation of consoles is the first to generate substantial revenue through digital distribution. In short order. And since then the average price of a casual game has crept further down to about $6. mobile gaming remained in its infancy until the mass adoption of the Smartphone. web-based game play quickly emerged as a common activity for online audiences. with its Sega Channel (1994). who did not to see themselves as content providers. Furthermore. When Amazon. Blackberry’s App World (2%). By offering a large library of titles. games were by far the most popular category in terms of consumer sales. which drafted the original design documents for one of the most popular casual games Diner Dash. And a growing number of boxed games is available for digital download. As a third platform. Unsurprisingly the bottom fell out of the market. with the Japan-only Satellaview (1995) and RandNet (1999). Carriers. Earlier efforts to publish games on mobile handsets suffered from inertia by telecom carriers. After the company released the first iteration of Doom as shareware in 1993. more mainstream audience. in the early 90s. technologies like HTML and Adobe Flash became more sophisticated and popular. it addressed a much larger market. approximately 663. Further fueled by a growing number of households coming online. Apple’s App Store led the pack with more than two-thirds of total availability. 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. such as the now-defunct Gamelab. Palm’s App Catalogue (1%) and Windows’ Marketplace ( acquired casual game developer Reflexive in October 2008. Initially developers were able to charge around $20 for a downloadable casual game. With the Internet growing steadily. at retail price. the appetite for digitally distributed content and connected game play started to gain momentum.957 apps were available across all mobile app stores. ‘digital exclusive’ titles. to the chagrin of mobile content developers. (Kushner.99. On the PC side. The PSN. Similarly. which is elsewhere so integral to digital media.3%). 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. even at price points lower than those at retail. it had reached 10 million installs by the time it appeared in physical retail stores two years later. a company’s ability to compete depended on successfully cutting of costs. game companies are able to reach a wider. 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. PopCap’s hit title Bejeweled began as a humble Flash game. a host of design companies reinvented themselves as game companies. van Dreunen Page 7 of 11 . A group of second-tier app stores accounted for the remaining share: Nokia’s Ovi (2%). By January 2011. there were immense difficulties associated with the process of developing for up to 100 different handsets. XBLA and Wii’s Virtual Console all feature both old and newly released. In this vertically integrated business model—in which hardware platform.99. All sites visited January 2011. the market has exploded. software developers like Id Software began distributing software directly to consumers over the Internet. and Nintendo. each with their own technical specifications. software and distribution all played nice together—developers are able to publish games with relative low barriers to entry. On the wings of this development. which ultimately eroded product quality and triggered commoditization. followed by Android Market with about a quarter. Consequently. insisted that games were playable across the entire portfolio of supported handsets. a slew of low-cost game development companies flooded the market with cheaply produced imitations of popular titles.companies like Sega. Consequently.

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

in fact. however. a next generation of subscription-based game services presented itself in the form of OnLive and GaiKai. Consequently. This type of service enables multi-platform play and does not require the user to own any of the software. Different than the average selling price of $56. This model. However. the production process of virtual items allows regular updates. approximately 5% of the total video game sales in the United States. temporary abilities like invincibility. 2011) Finally. Currently. All of these can be tweaked and modified to find the optimal equilibrium between supply and demand. does require a game company to be actively involved with their audience. In addition. The lower average cost of virtual items alleviates the dependence on this seasonal cycle. that enable or enhance game play. 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. virtual items present a more gradual purchasing experience. 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. the average monthly fee is expected to be around $10. once an item is created. there exist various product categories. (Pachter. this also forces game companies to play the role of retailer. (Takahashi. First. such as a virtual currency or item. An important additional benefit of this model is that purchase patterns are a lot less seasonal. having to deal with payment method preferences.” 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. Secondly. access (for instance to a certain area in the game). This forces companies to reorganize their production schedules and resource allocation. 2009) Selling items incrementally has proven especially effective in countries like South Korea. in more than one way emulate the mechanics behind trading card games.5 Virtual Goods As the fifth and final revenue model. in both cases. many of the developers and publishers that used to build a boxed product.3 billion dollars. And. and pay as they go. at relatively little cost to the developer. beyond the use on game play. such as a new character or weapon.1 billion. both trading card games and virtual items can be collected and traded. Within the context of video game revenue models. inventory changes. 2010) 4 INTERACTIVE ENTERTAINMENT ECONOMICS The video game industry’s transition to new revenue models—Subscription. (KZero. While still in early stages of development. and even seasonal specials and sales events.85. In the retail model customers are asked to shell out over $50 before they can play a game at home. a sword). For 2010.g. which serve a social function. or about $1. (van Dreunen. like functional items (e. where people do not own computers. now find themselves with a lot of extra work (up to 60% of the necessary resources) after the game has been launched. and vanity items. it can be copied ad infinitum at no additional cost. compared to 288 million for people aged 15 to 25 years old. distribution and customer service. The absence of a high initial cost to the consumer. virtual goods are here defined as “in-game items or game-related services. on average in the United States. 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. Digital Distribution and Virtual Goods—presents several important benefits over the packaged software van Dreunen Page 9 of 11 . 2011) Subscriptions currently represent approximately 5% of total video game expenditure in the United States. and instead play at cybercafés. Virtual item sales. (van Dreunen. enables people to see if they like the game. the North American market for virtual goods was $1. 3.73 for a boxed game for the PlayStation 3 a virtual item may only cost as little as a penny. In the retail model.15 years old age group […] totaled 468 [million] registered users” in late 2010.

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

RIAA's Statistics Don't Add Up to Piracy. Virtual Item Sales Research Series: North America.Takahashi. G. H. 2011. van Dreunen Page 11 of 11 . Vogel. 2002. September 22. J. (fifth edition). December 11. 2010. Van Dreunen. Ziemann. D. (2002). VentureBeat.99 a month. (2010).com. Cambridge University Press. Azoz. (2001) Entertainment Industry Economics: a Guide for Financial (2011) OnLive launches its PlayPack library of games for $9. SuperData Research. February 1.

I argue that the assumptions underpinning these narratives of production and consumption are not technologically-determined and do not describe a completely new phenomenon. consumer culture. inviting them to create and share content. they are a redefinition of practices that were already part of the video game industry. University of London New Cross. New Jersey. Regulation. media archaeology 1 INTRODUCTION In the last ten years. there is little awareness of how the discourses describing and justifying these practices are structured. we can highlight the ways in which current discourses of the video game prosumer have been structured. Second Life (Linden Lab. Magnavox' Odyssey. narratives of production and consumption. Although increasing attention is given to the contribution of video game consumers in terms of usergenerated content. Taking a broader. new phenomena such as 'independent gaming' seem to be shaping a new video game industry. 2005) are based mostly on user-generated content. SE14 6NW. in which the gamers are finally introduced to the process of production. prosumer. Some games have met with unexpected success as a result of modifications produced by the 1 Ruffino .The Game Behind the Video Game: Business. USA. In some cases. such as the Xbox Live Arcade. including the game construction sets of the '80s and the 'open engines' of the '90s (id Software's Doom). 1969). showing the ways in which these narratives are historically embedded. While this is usually described by video game magazines. Other examples. UK ABSTRACT In this paper I will analyse what is at stake in the narratives surrounding the video game prosumer. Computer Space) have been discussed at different times. 2003). but prosumers. Additionally. 2011 The 'active' video game consumer: what is at stake in the narratives surrounding the video game prosumer Paolo Ruffino Goldsmiths. April 8-9. I would like to argue that this is actually a re-definition of practices that were already present among video game consumers. 2008). with crucial lessons for the design and advertising of new video games. and Society in the Gaming Industry New Brunswick. London. press agents. The Sims 2 (Electronic Arts. the video game industry has become increasingly concerned with consumer involvement in the production of content.1 They are no longer consumers. From an archaeological perspective (Foucault. and gamers communities as a novelty. software modifications or productions from 'the bottom' (as in the independent gaming scene). made different assumptions about the role of the players and developers. or even a revolution. historical perspective on the role 1 For more information on the Independent Games Festival see http://igf. gamers can submit their productions and see them distributed to a wider audience. I analyse how the producer and consumers of early games and consoles (Spacewar. KEYWORDS: video game culture. Video games such as Little Big Planet (Sony Computer Entertainment. 2004) and The Movies (Lionhead Studios. Instead. Other video games welcome the activity of the players.

I do not intend to argue. Ruffino 2 2 . including Kücklich (2005) and Sotamaa (2009). I will show the extent to which their emergence and success was shaped by narratives surrounding the video game consumer. Although acknowledging some issues common to the study of consumer production. Alexander Galloway (2007) and Jesper Juul (2009).L. the release of the open engine of the game Doom and the first edition of the Independent Games Festival. 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. Kücklich (2005) suggests that game modification is a form of precarious labour. that the narratives represent a false or misleading description of a culture. though he also suggests that 'the increased access to the means of media production does (. the consumer culture and also cases of 'counter-gaming' (Galloway 2007) where video games are modified by players.) not necessarily equate to increased freedom' (2009: 99). Through an examination of specific case studies and examples. or how they are structured. Dovey and Kennedy (2006). Hall argues that the distinct roles of producer and consumer. I will look at how discourses surrounding the video game consumer have. approaching the issue from a perspective grounded in the methodologies of political economy. All these texts describe the video game industry. these texts do not consider how specific narratives of production and consumption initially appeared. while limiting others. The 'active' video game consumer.. I turn to Hall's critique of the idea of the prosumer. This narrative is framed through the schematic opposition of producers and consumers. instead. I will further analyse these examples in this paper. See. has already been analysed by several previous authors. One such narrative is that of the video game prosumer. and contribute to shape it. This is historically and culturally placed in a specific age of the medium of the video game. This process will show how the video game prosumer and. its market trends. for example. Such descriptions are a part of the object of my research. Though useful for an understanding of the issues at stake. Aphra Kerr (2006). I will also provide an original perspective from which to approach the history of this medium and current debates in video game studies.played by video game consumers in designing and sharing content. both positions are premised on a basic opposition between production and consumption. Sotamaa maintains that media consumption and production should not be studied separately. 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). both of whom have written on the processes of video game production. who becomes a producer of content. demanding awareness from its practitioners.. 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. I will show how they are at the basis of the structures with which we make sense of video gaming as a cultural phenomenon. 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. video game culture is described through structures that frame and enable certain possibilities. developed in 1962. however. shaped different representations. Taylor (2006). 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. in fact. Particularly this appears in 1997-1998 with the release of development kits like Sony's NetYaroze. more generally. while blurring into the prosumer. in which characters and semantic values are organized schematically. Following the methodology of discourse analysis as described by Michel Foucault (1969). Giddings and Kennedy (2006). Here. as statements about video game culture which helped establish the field. I will look at what these discourses and narratives exclude. 'as the media practices are becoming increasingly participatory and co-operative' (2009: 4).

the framing of the discourses about the video game prosumer appear in a specific period. In this complicated succession of views and perspectives.] Now anyone can do it[...4 In these statements. this attempt is endlessly frustrated by the constant redefinition of these structures.] which is not how the mainstream video-game industry works'. 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. when the audience of the video game industry begins to shift and change. I follow Foucault's work on discourse analysis. engagement and independence mixing and contradicting each other. Secondly. 4 Among the many possible examples. some elements are continually excluded by these discourses. Later. we can see the narratives of opposition. the linear framing of the narratives conceal contradictory assumptions. 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'. this approach is evident in an article published in the New York Times (15th November 2009). However.html?_r=1) Ruffino 3 3 . Similarly. His main concern is to understand what constitutes the principle of coherence in a discourse. Serres suggests that a communication model can be re-framed according to a different narrative. In order to preserve clarity and overlook eventual contradictions some points are taken outside of the narratives of prosumption. In this same period. In video game magazines. One of which. specific to a certain age and which unifies the cultural production of a period. 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. is that a priori separation of producers and consumers. a few elements seem to be constant. as a succession of 'parasites' constantly emerging to supplant their predecessors. as described earlier. often teleological visions of the video game industry. taking it as an established assumption that nowadays small-scale developers have more opportunities to generate revenue. fundamental ways.] They have even the potential to be meaningful in deep. obscurity [and noise are] part of communication' (1980: 12). new challenges”. [. a general outlook. 1979). in which 'mistakes. the very distinction between producer and consumer was far from presumed when the first examples of video games appeared in the '60s. we can witness the apparent simplicity and linearity of these narratives.. in the interviews with video game players who decide to be producers. Instead. Here. as common knowledge. which he calls 'discourse' (1995: 434). he understands that the episteme does not say much about discursive formations. 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. and in the hospitable reception guaranteed by video game publishers for user-generated content. As such. 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.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.nytimes. Such isolation results in a 'stratum of phenomena'. 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. in the mid-'90s. confusion. discourses about the video game prosumer cannot have been determined by a technological innovation or opening of the means of production. 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). Firstly. wavy lines. published on Edge magazine in February 2011 (issue 224. with partially new perspectives appearing in any new statement. oriented to a progressive opening of the means of production.3 Sometimes they describe the clash between the publishers of mainstream products and the gamers who want to take control of the content. in the press releases of consumer games festivals and public events. He first finds it in the episteme. [. In The Parasite (1980). and this precluded the possibility of blurring the two into a new word. Available at: (http://www. Future Publishing) it looks clear that the age of high-street retailers and high costs of development is oriented to a decline. 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. in a historical sense..

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

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

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

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

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

with openness.11 The kind of structures that Stephen Russell had achieved with Spacewar were beginning to reappear. never allowing it to be available.those of a growing industry where the two steps were considered distinct and separate. polarized only under specific discursive conditions and from certain perspectives. Homebrew recalled the idea of an illegal development of software. Video game software was no exception. corporate business. Instead. modifications to an existing video game software as 'modding'. Independent gaming established the image of a 'dependent'. 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. Game engines offered the possibility to transform a 'brown box' into an open project. As I have argued in this paper. in conclusion. From the release of Doom's engine. The degree of hospitality of the 'original' developer towards user generated content became an issue for discussion and concern. but became a just and fair concession from the development team to its audience of gamers. in 1997. I would like to maintain. Where active participation of gamers was initially described as a novelty. Meanwhile. a development kit for its Playstation game console addressed to players who wanted to design and share their own games. to leave to the players legal control of their inventions was considered a new and original concession. pre-set discourses of production and consumption. it was possible to label video games made with a low budget as 'independent'. Ruffino 9 . 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. It is important to notice how these discourses established the game developer as an external figure. as the game developer became a hierarchical and. it was redefining pre-existing. in considering the future development of games and consoles. This perspective of the prosumer phenomenon is useful. and welcome their participation. this change arrived when the video game industry was booming as both an economic and a cultural force. 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. 4 CONCLUSION From the late '90s. Sony Computer Entertainment released NetYaroze. Moreover. From this point. Instead. not just in extending our understand of the current configuration of the video game market. Open engines were demanded by gamers in each new release. more generally. the availability of the means of production and the opposition against those who limited freedom of access. the distinction between producers and consumers is far from inherent to the industry or cultural form. but also. but can be applied to other issues in the video game culture. the producer could either be opposed to the consumers or could host them. Open engines were not only a feature or an added value to a video game. superior actor – an original source detached from the multitude of users. that narratives of production and consumption in the video game culture are not determined by technological advancements. From this perspective. concerned about the unexpected uses of its products. productive. often linked to a re-use of old and abandoned hardware in an unauthorized way. discourses surrounding gamers' games changed. but on a scale far wider than that of the original PDP-1 users. engaged game players began to surface. the open source movement was becoming increasingly popular. Magnavox and Nutting Associates were never described as opposed to the gamers. we can better understand the 11 In the same year. A deep. the figure of the active game consumer assumed a new characteristic. emerging as issues in the discourses about software. a category of the active. In this mutual influence. and this forced a change both in distribution and the relationship between customers and game publishers. indeed. Modding evoked an imagery of a subversive 'Do-It-Yourself' approach to game software. Furthermore. the situation of the video game industry in the mid-'90s was not essentially 'new'. also hosted on the Official Playstation Magazine. even as they patented the source code of their games. Furthermore. it appears that representations of the video game culture and technological innovation are engaged in a mutual feedback loop.

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de Zwart 1 . UK. Instead. In this paper we argue normatively that online games should be viewed as games by both the legal and policy institutions. policy discourse and the law. values which a growing number of court rulings and statute are re-establishing. 2011 Call of Duties: the arbitration of online game disputes Ren Reynolds the Virtual Policy Network London. KEYWORDS: Governance.The Game Behind the Video Game: Business. April 8-9. online games have been framed in terms of intellectual property and contract. (Law 2001) (Cypher & Richardson 2006). some online gaming professionals (Koster 2000). 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. which has served to exclude competing discourse about what is at stake (Reynolds 2009) particularly where conflicts arise. Adelaide. From the legal perspective. consoles or phones and the Internet. Game. USA. Reynolds. and Society in the Gaming Industry New Brunswick. law and governance. Law Sport. We suggest that policy makers and the industry should consider establishing an Online Dispute Arbitration Board modelled legally. aggression and addiction among others (Williams 2003). online games have been framed as mere objects of contract and intellectual property. This we believe gives access to a rich cultural tradition that encompasses a nuanced relationship between practice. outside of the standard frames of play or sport. which is the focus of much of this paper. ABSTRACT When conflicts between players and publishers have arisen. This framing has excluded many of the values that are increasingly at stake. Scholars (Reynolds 2002) (Humphreys 2008) (Taylor 2002). 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. 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. This is especially the case in the institutional construction of computer gaming generally in the popular media. New Jersey. Melissa de Zwart Adelaide Law School The University of Adelaide. In many respects online gaming is just an everyday activity – people get together and play. Australia. Regulation. Computer gaming has been subject to rhetorics of triviality. 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 one should take cognizance of the fact that online games are ostensibly games. The unique characteristic is that this form of play requires technological artefacts in the form of computer. 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. constitutionally and functionally along the lines of sports bodies such as the Court of Arbitration of Sport. 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.

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

e. Here the Supreme Court overturned the lower court’s view that MMOs are a game of chance. 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. The Supreme Court of South Korea clarified the law in relation to MMOs in 2010 when a case of RMT trading of Lineage (NCSoft. In 2006. users of a game selling virtual items. 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. This may be illustrated by examining a number of incidents and related statutes and regulations from a range of jurisdictions.2 Theft This first set of incidents and related cases arises where individuals (or groups) take virtual items from a player account. South Korea introduced the Game Industry Protection Act that was subsequently amended in 2007. Furthermore. This set of acts falls within the general categories of hacking. 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. Generally publishers have argued that RMT is in breach of contract. 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. in online games and a greater uncertainty as to their legal status. no evidence was provided to demonstrate that any of the currency had been gained through abnormal play . This case included the issue of Mythic banning accounts and used the concept of unfair business practices to argue against it. 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. 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. This is a constant activity in the publishers’ struggle with so-called ‘gold farmers’ and is seldom challenged.affairs is recognizing more rights in players it is also problematic as it indicates both a greater value. 3. Reynolds. the Ministry of Commerce announced RMT related ‘rules’ in both 2009 and 2010. goods or services. de Zwart 3 . 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 a general sense.publishers of Dark Age of Camelot. In summary. The 2009 rule prevented virtual currency being traded for out of game currency. 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). whatever the EULA might state. 3. 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. 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). In China. money or accounts for hard currency). extortion or duping (Hogben 2008). Publishers act on the basis of the EULA when they ban players for selling virtual items. In 2002 Blacksnow Interactive (BSI) initiated an action in California (US) against Mythic Entertainment .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.meaning the defendants were acting within Korean law irrespective of the prevailing EULA. The 2010 rules banned minors from games where hard currency can be exchanged for virtual currency.

While the serial nature of Mr Estavillo’s litigation following this action has caused the press to raise questions about his motives. In this first case. 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 case concerned a player whose account was hacked and virtual items transferred to another account. 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 2008 a Dutch court found the both defendants guilty of robbery under Article 310 of the Dutch Criminal Code. more recently. Despite these headlines. In 2009. At the time of writing the plaintiff awaits sentencing. 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. where such notions are either incidental or irrelevant. There are however exceptions to this approach in both Asia and. 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’.Typically when many of these cases have been reported in western media they have been headlined ‘player convicted of virtual theft’. all brought by users. There is another set of actions. noting that the virtual items qualified as goods under Dutch law. This year in the UK an individual was arrested and admitted to hacking into the accounts of online game provider Zynga. 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. 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. 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. (Estavillo v Sony Computer Entertainment America 2009) Erik Estavillo. theft of money in the form of the Reynolds. 3. who is a serial litigant against computer game platform providers. computer fraud or similar. In China in 2003 Li Hongchen brought a case against Beijing Arctic Ice Technology Co. Estavillo made claims on three grounds: restriction of free speech. 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)). The suspect was not convicted. 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. Ltd. de Zwart 4 . In 2007 a 17 year old was arrested in The Netherlands for stealing virtual items in Habbo Hotel. in Europe. 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). the nature and fact of the cases is very interesting. Also in The Netherlands in 2007 a 13 year-old player of the online game RuneScape (Jagex Games Studio. 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. From a player perspective this has been like arresting someone for breaking your front door but not for anything they did in your house. which the judgment termed ‘the player’s property’.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. transferring around 400 billion virtual poker chips into his own account.

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.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. 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. 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. 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. these items can be stolen and their value should be protected. 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 fact that online games are games. the plaintiff.' 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.these "spaces" serve solely to enrich the entertainment services on Sony's private network. as publishers would have to take a large step closer to being banks. What is more problematic are the conflicting and potentially inconsistent views of how they should be treated. under 18s regularly playing 17+ games. It is unlikely that domestic consumer protection authorities would allow this state of affairs to continue indefinitely.. 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. In providing this electronic space that users can voluntarily choose to entertain themselves with. and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State. 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. For example. After all a humble stick can be variously: a weapon. the theft and Chinese duty of care cases discussed above. 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. required Sony to provide or enable mods which would provide visual and auditory cues. Opinions range on whether the underlying merits of the case would be successful if a slightly different legal approach were adopted (Lastowka 2010a). 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. but also the way that they function within the Reynolds. 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. 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. who had visual and other learning difficulties. all suggest that virtual items have a value that is not merely that of the publishers’ intellectual property. The meaning and value attributed to various aspects of online games vary depending on the nature of the conflict.g. and thus virtual items are game objects adds yet another level of complication. Sony is merely providing a robust commercial product. de Zwart 5 . We would expect this. In particular. That is. To return to our initial assertions.. a piece of fuel. This would have a direct and no doubt chilling impact on the online game industry. an instrument etc.

a court does not ask – did the rugby player hit the other player (as of course they did. Central to this relationship is the fact that when stripped of their context. umpires and referees. acts that occur in many sports would be seen as curious at best and illegal at worse. clubs and other bodies. 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. resulting in injury and sometimes death.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. de Zwart 6 . things are more complex than this as there may be disputes regarding jurisdiction. are made up of a series of acts that in any other context would be considered as assault. 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. 5 THE GOVERNANCE OF SPORT The relationship between sport and law is complex. the shape of the ball. 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). Rather. 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.g. Reynolds. 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. 4. even those that might otherwise be considered criminal.g. More judgements will be found in favour of players overturning EULA and copyright primacy. the law accommodates the cultural values embodied within sport. and. despite the overwhelming number of witnesses and records of the events (Lastowka 2010b). credit card fraud. but it does so in a complex. sanction and hierarchal standing e. Contact sports. Sports by their nature have rules. Infractions of rules. are regularly left to non-state actors who have the requisite governance and normative power e.g. especially the more physical ones such as boxing or rugby. dynamic way. and a court can overrule a governing body. What we wish to highlight in the following discussion is the role and recognition given to bodies that sit between participants and national laws.g.context of a given game. These are governed by the physical nature of the sport e. a governing body can overrule and official. thereby also harming citizens that enjoy participating in that sector. the power to exercise practical sanctions. For example while a space ship in the game EvE Online (CCP. More players will seek legal remedies for publisher acts that they do not agree with. In practice. However sports people are not regularly arrested for their acts. When cases do go to court they are judged contextually i. then in the last resort – law. Increased third party sales of virtual items and related crimes e.e. on the ground officials of Figure 1: Governance of Sport some type e.

and. 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).1 Online Dispute Arbitration Board: ODAB Therefore. The proposal here is not incompatible with this. The Court of Arbitration of Sport for example tends not to review in-game decisions of sports officials (James 2010). often leaving those closest to the sport or given event precedence over certain matters. we argue that there is a possible role for a governance body in online games. 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. Court of Arbitration of Sport. league. 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. What’s more. team. and that courts recognise the regulatory power of these bodies with understood and negotiated limits. value and harms. the player may appeal this through the national governing body or against the national governing body via an international governing body. international governing body. recognize how the limits of those values are negotiated. 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 the purposes of this paper we will title the putative governance body the: Online Dispute Arbitration Board. All of this appears to have direct application to online gaming. de Zwart 7 . national governing body. however we feel that a federated body is simply less costly to implement considering logistics of multiple terms of reference etc. That is. henceforth ODAB.What is significant for our purposes here is that all parties recognize both the centrality of game derived meaning. Today governing bodies tend to be companies limited by guarantee. 5. For example a player may face an in-game sanction for breaking a rule. The purpose of these bodies is to define the rules of a sport. Reynolds. 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. as each level tends to define its scope of jurisdiction. Governing bodies tend to have direct contractual relationships with the bodies above and beneath them in the governance hierarchy.1 Sports Governing Bodies Typically in sports there is a hierarchy of governance: event officials. the role of rules in generation of value and the adherence to stated rules in the resolution of conflict are also given primacy. regional governing body. to apply them and to regulate their application. in a sense. 6. An alternative arrangement is an Ombudsman (Online Dispute Ombudsman ODO) system that could exist on a publisher-by-publisher basis. Historically sports governing bodies were formed by practitioners and / or ex-practitioners of a given sport and were loosely defined associations of peers. 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. Appeals against decisions do not simply flow up a governance hierarchy. following this a national governing body might suspend that player for a period of time.

Exclusion from virtual items be this through: Ban. The responsibilities of such Panels are. Hence. User vs Group e. To this end. then the benefits already found in sport governance should accrue to online games. User vs User disputes. inter alia: (1) to resolve the disputes that are referred to them through ordinary arbitration. How would it be constituted? ODAB would be a company limited by guarantee / not for profit legally constituted in the US. 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. 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. 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). It places the necessary infrastructure at the disposal of the parties. we believe that ODAB would be of most benefit sitting across a set of online games that accept it’s governance. de Zwart 8 . Guild disputes. Removal of items through means outside the rules of the game e. these are: Reynolds. nerfing.g.g. EU and Australasia. the ODAB attends to the constitution of Panels and the smooth running of the proceedings. 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. the most useful role for ODAB would be to sit between players. 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 . 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. hacking.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. and. publishers and national / international law.g. A constitution would be required to determine what individuals held what roles for what periods etc.g. freemium where there is a non-lineal relationship between users and revenue. Who would serve on it? ODAB would be made up of both publisher and players. associations or other online game / social network related bodies. especially those in games based within social networks.g. It is envisaged the operational scope of ODAB would likely include: Appeals against bans from games / social networks. apply equally to access to the network itself. The scope of ODAB would exclude: Changes to game mechanics e. insofar as the statutes or regulations of the said online game / social network bodies or a specific agreement so provide . 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. accidental deletion. What would be its relationship with other actors? ODAB would have contractual relationships with either individual publisher and / or trade bodies. (2) to resolve through the appeals arbitration procedure disputes concerning the decisions of publishers.

some publishers of online games are members of general publishing associations such as UKIP in the UK and ESA in the US. Even when quasi-judicial bodies are established these tend to be less costly than legal actions. Here again the sports model is apt as states tend to regulate by law the rules of individual sports. 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. Courts are recognizing this in Reynolds.Arbitration tends to be cheaper than law. This is a challenge for the body especially as funding is likely to come from publishers. for example a rule would be that publisher’s dispute systems are fully exhausted before the arbitration body is evoked. It will be ‘griefed’ – almost all systems of online game norming are exploited by some players (Foo & Koivisto 2004). 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.g. at least in the short term. the same will happen with an arbitration board with players simply wanting a cheap way to grief publishers.A governing body that has normative power on players and publishers relieves the burden on states.Assuming that ODAB can attract the right mix of individuals it should provide a better process than the courts. at least in part. Better . More broadly the lack of self-identification of online publishers is seen as a barrier to the creation of an arbitration body. 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. This is because.Cheaper . de Zwart 9 . hence will understand the issues at stake for all the actors. There is no publishers’ association – the online game industry has no recognised body hence it is unlikely that publishers will recognize the arbitration board. The scope of the arbitration board must be defined such to filter out griefing. as with sports. 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. 6. from enacting legislation and creating statutory bodies to deal with the issues that begin to arise in greater numbers from online games. Regulatory burden . as we see in sport. Thus the constitution of the body that publisher agreed to must ensure representation of players either through other bodies or non-publisher individuals. Regulatory peril .From a publisher’s perspective. Further. 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.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. Initially the arbitration board will have to work directly with publishers and existing associations e.1. 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. ODAB will have individuals that understand the details and culture of online games. the existence of an arbitration body does not preclude the option of legal action.

Sept 22. S. Reynolds. eds. 2011]..mofcom. James. 2008.G. Lastowka. In Proceedings of the 2006 international conference on Game research and development.html [Accessed March 21. G. Rockland. & Richardson.. Ruling the virtual world. Penn. Reynolds. Designing Virtual Worlds. R. 2011].. 11(2). Palgrave Macmillan. Sport. 5(4). 399-406. G. [Accessed March 23. 2008. Law.blogs.149. 2009 WL 3072887 (N..D. Organizational Studies: Critical Perspectives on Business and Management. 2007). Calleja.legislation. Australia: Murdoch 1999. p. 2011]. 2003. Intellectual Property Rights in Community Based Video Games. Koster. Computer Misuse Act 1990. Actor Network Theory and After. MIT Press. de Zwart 10 . Position Paper: Online Games and Virtual Worlds.. Bragg v. 2007. I. 2006. p.. Lastowka. Available at: http://www. European Journal of Cultural Studies. Available at: http://www. R. Estavillo v Sony Computer Entertainment America. 2010. Inc. 11. pp. Wired Magazine. Dibbell. Perth. Available at: http://www. Virtual Justice: The New Laws of Online Worlds. New Riders. 2006. 2009. 2011]. Cal. pp. Grief player 2002. Available at: http://terranova. J.blogs. 2009).gov. London: The Stationary Office. Is Everquest II a Place of Public Accomodation? Available at: http://terranova. In The Transformation of Organisation in the Information Age: Social and Ethical Implications. 2000.853. Reynolds.. H. 2011]. Hartley. R. Boyd. C. & et al.decisions that overturn the EULA / IP basis of publishers’ traditional arguments. USA. Routledge. Hogben. Business & Legal Primer for Game Development. China bars use of virtual money for trading in real goods . 2003.html [Accessed March 13. Physical Recreation and the Law New Ed.. Competing Narratives in Virtual Worlds.470. 2009. S. & Hassard. Foo.. B. G. Yale University Press.html [Accessed March 21. 2001.. MA. 254-259. Supp 2d 593 (E. 2010a. M. The unreal estate boom. Humphreys. 1990. WileyBlackwell. R. Notes on the Theory of the Actor Network'. Charles River Media. Inc 487 F.D. University Lusíada. In Proceedings of the Other Players Conference. People's Republic of China. 2010b. We thus call upon the online games industry and other interested parties to consider the formation of an online dispute arbitration board...europa. An actor-network approach to games and virtual environments. M. Linden Research.html [Accessed March 21. J.shtml [Accessed March 13.joint statement by the Ministry of Culture and Ministry of Commerce of the People's Republic of China. A governance body that sits between publishers and national law seems to us to provide the most appropriate route to justice in the cases of dispute that we predict will increase over the next few years – especially given that the alternative is likely to be heterogeneous national laws and regulation. REFERENCES: Anon.enisa. 2009..thisissouthdevon. Great Britian. Sports Law. In Third Person: Authoring and Exploring Vast Narratives. Bartle. Available at: http://english.01.. Available at: http://www. 2001.raphkoster. E. Herald Express. 455 . 2011]. p. & J. ed. Declaring the Rights of Players. Law. Open Letter to Blizzard Entertainment. & Koivisto. Cypher. A COMPUTER hacker from Paignton has admitted stealing $12million worth of poker chips from an American gaming company.

Communication and Society. Piracy vs Control: Various Models of Virtual World Governance and their impact on Player Experience. 2011]. de Zwart 11 . 8 February 2010.Stern v Sony Corporation of America.523-550. Available at: https://journals. 2010. pp. 2(3). Information. Taylor. 227-242. 2003. Journal of Virtual Worlds Research. CV 09-7710 PA (FFMx). de Zwart. University of New South Wales Law Journal.tdl. T.. M. Citeseer. Reynolds. Williams. M.. Contractual Communities: effective governance of virtual worlds. 19702000. The Video Game Lightning Rod: Constructions of a New Media Technology.L. pp.627. In Computer Games and Digital Cultures Conference Proceedings.. pp. 2010. D. 6(4). Whose game is this anyway? Negotiating corporate ownership in a virtual world.. 33(2).605 . de [Accessed March 14. 2009. 2002..

(Feb. Plymouth Court. Merchandising Ford/Liebler 1 . Code § 3344(d). (Feb.C. or films. New Jersey. L. We argue that the value of free expression outweighs the value of licensing. Winter v. accomplished. 22. Right of Publicity. DC Comics. such as newspapers. and Society in the Gaming Industry New Brunswick. KEYWORDS: Games. Some commentators think C. 60604 Raizel Liebler The John Marshall Law School 315 S. USA.C. v. magazines. Generally speaking. 2003)). Distribution and Marketing. films. 07-1099). Major League Baseball Advanced Media v. but courts usually resist finding infringement or find the First Amendment provides a defense. Should games be judged differently than other expressive mediums when it comes to this right? For approximately four decades. no consent is required to use someone’s name or likeness for news or entertainment purposes in newspapers. Major League Baseball Advanced Media v. April 8-9.B. books. Law. a person’s right of publicity. McCarthy 2011: § 7:76.B. Inc. 071099). 2008 WL 515858 at 8). C. As a matter of state law. Plymouth Court. 2008) (No. Cal. Distribution and Marketing. 69 P. Inc.. 2007. Commentators and courts are resisting a further weakening of the right of publicity beyond what C. Civ. (ALI 1995: § 47 cmt c).3d 473 (Cal. Major League Baseball Advanced Media. 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. 2008 WL 515858 at 8). (Petition for Writ of Certiorari. 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.. 505 F. using the more modern terminology.C. C. (Petition for Writ of Certiorari.C. 2007). and television programs.3d 818 (8th Cir.P. books. C. 22. upset the view that “licensing [is] the settled order of things” when it comes to games. magazines. Regulation. Distribution and Marketing. First Amendment INTRODUCTION On October 16. Inc. television programs. 2011 Games are Not Coffee Mugs: Games and the Right of Publicity William K. (ALI 1995: § 47 cmt d.C.B.B. itself went too far. But uncertainty remains about how much flexibility game producers have to incorporate individuals into games without their consent. the dominant approach of the courts made games more vulnerable to right of publicity claims than more traditional mediums of expression. due to the interest of preventing conflicts with the First Amendment. 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. Ford The John Marshall Law School 315 S. Chicago Illinois. Chicago Illinois. Some states’ laws potentially make fictional works infringing for incorporating the identity of a real individual..The Game Behind the Video Game: Business. 2008) (No.B. 60604 ABSTRACT The right of publicity protects individuals from the unauthorized commercial exploitation of their identities.

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

(McCarthy 2011: § 6:3).J. 2006)). Marshall “Major” Taylor. 09-285Z. 1990)).).com. Inc. Indiana’s statute deserves special mention. or citizenship” (Ind. 04-2507. therefore. A recent decision held that the Washington provision ignored a decedent’s state of domicile unconstitutional. Oct. LEXIS. for example.D. Oct. 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. decisions are split on the meaning. Schonhorn Enterprises.S.J. 2010)). No. L.D.Y. No. does not recognize a post-mortem right of publicity. In commenting on the merchandise category. (Donovan v. as in New York. 20.4 applies to acts occurring within the state “regardless of a personality’s domicile.D. Pirone v. 202 F. Dist. 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. 09-1798. Wash.S. 585 (2d Cir. i. Disclaimers may protect against a successful Lanham Act claim (Food Scis.L. baseball cards. the Restatement specifically mentions posters. 22. like Washington’s. the right of publicity is labelled a right of privacy. Nagler. 894 F.S. the protection of the Indiana statute lasts 100 years. § 50. (N. Ind. 2011)).. The Reporter’s Notes to this section are more explicit. (CMG Worldwide. (Haelan Laboratories. (15 U. Ind. Ltd. 09-275. 2008 U.13 (9th Cir.N. Another decision of the same district court explicitly held that the state of domicile at the time of death of a famous American cyclist. was irrelevant under the statute. Oct.5 Moreover. Sometimes. Inc. at *15-16 (S. No. v. 2006 U. § 1125(a)(1)).S. (15 U.. 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. 52 (W.C. The state of Washington was not a party to the litigation. 556 F. Only two states have rejected the right of publicity as a matter of common law.” Section 47 of the Restatement defines uses for purposes of trade as advertising uses or uses “on merchandise. Without discussing the statutory language. Restatement 3d of Unfair Competition § 46 cmt b). Super. MacMillan.S. 2011 U. Supp. (N. Feb. . v. Oct.e. Ford/Liebler 3 4 . they will not protect against a right of publicity claim. Inc. (Experience Hendrix. 08-761. Lehman. LEXIS 93152. Henricksen. 2010) (“Bishop claims that because Major Taylor died in Illinois and was apparently domiciled there at the time of his death. and district court decisions are not binding in subsequent cases. Hendrixlicensing. Corp. *14 (S. at *16-17 (W. 96 N. Uhlaender v. No.”). Code 32-36-1-8(a)). according to the Statute. and “other memorabilia” as examples of merchandising uses. Bilal v. When the identity of an individual is used without permission in connection with some good or service. v. residence. 14. the Full Faith and Credit Clause. 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. the Lanham Act requires a likelihood that consumers will be confused about whether the individual approved of the use. and the Commerce Clause. . Wash. 21.2d 450.1970).S. at *25-27 (D. at *41 n.J. Upper Deck Co.have recognized the right of publicity either by statute or common law or both.. The judicial opinion that coined the term “right of publicity” was about merchandise. Illinois substantive law should apply. 42. No. Super. Dist.2d 866 (2d Cir. 2010 U. While federal law does not recognize a right of publicity. 1977). LEXIS 112072. (ALI 1995: § 47 cmt b). . 5 Despite this language.Y. referring to games as examples of merchandising uses with citations to the three classic game cases. § 50. R. (Ind.C. Civ. Code 32-36-1-16(6)).S. 1277 (D. 11:12. but both of these states have statutory provisions. it does recognize an analogous unfair competition claim under the Lanham Act. Minn. Nebraska and New York. however. the longest defined period in the United States. 1953)). (McCarthy 2011: §§ 11:8. Civ. Inc. Topps Chewing Gum. San Francisco. Warren & Brandeis 1890. Bishop. Nimmer 1954. Indiana’s statute. 316 F.. v. Dist. Dist.2d 579. The right of publicity is a property right. unimportant. The fact that Major Taylor died elsewhere is.D. R. 2008) (“Topps has not established that any of the Legends were domiciled in Indiana at the time of each of their respective deaths. 11:16).” (ALI 1995: § 47).. 2. buttons. Inc. 11:15. 457 n..C. LEXIS 85497. 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. New York. The starting point for the present discussion is what qualifies as a “commercial use” or a “use for purposes of trade. § 1125(a)(1)(A). violating Due Process Clause. Ct. a variation due to the fact that the right of publicity’s origin lies in a broader right of privacy. Palmer v. Dist. 1967). 72 (N. Prosser 1960). LEXIS 110204. 2010 U. For deceased individuals. (Starbuck v. 8.

(ALI 1995: § 47 Reporter’s Notes). In terms of advertising value. Whether it makes sense to do so requires some consideration of the reasons for the right of publicity. 1996). Decisions of federal district courts are not binding on other courts or even within the same district court.2d 1185. 664-665 (N. 1984). Even if there is a small incentive effect. 2005). Civ. however.J.3d 959. 227-237 (2005)). 975 (10th Cir. 47 V. Sup. v. Series. in the absence of local laws to the contrary. Super. While highly persuasive. Ct. 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. in the fullness of time.J. and other similar uses will similarly dissipate the value of a There are some exceptions. Mazza v. 353.3d 959. An economic argument works much better for advertising. 3344.E. Ferraro v. In other words.C. 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. The same rule applies in New Jersey. Code §§ 3344(a).I. 51). and to the extent not so expressed. 60.J.Y.. Inc. Civ. (In re Kelvin Manbodh Asbestos Litig. Div. (N. §§ 50.and Rosemont Enterprises. The New York appellate decision in Rosemont Enterprises. explicitly deals with games. Hartz Mountain-Free Zone Center. Super. Div.3 (N. The Restatement concedes that the arguments for protecting the right of publicity are weaker than the arguments for protecting other kinds of intellectual property. Ct. v. aff’d as modified 42 A. v. 358 n. Proponents of treating games as merchandise were perhaps too quick to declare the matter settled. 519 (N. 1998) (collecting cases). Muller. No state statute. 1977). Eagle Design Build Studio. 72 N. R.J. Ct. Major League Baseball Players Ass’n. 102 A. (ALI 1995: § 46 cmt c). 149 N.D. Am. Sup. Ch. Inc. to celebrity status separate from the revenue tied to the right of publicity. TMF Tool Co.I. including monetary benefits. 1191 (7th Cir. 162 N. v. the expressive quality of the gaming medium is much more substantial than it was when these three cases were decided. or services” (§ 765 ILCS 1075/5). There are many benefits. 913 F. May Stores Shopping Centers. 72 Misc. however. worrying that overexposure to celebrities on t-shirts. but this argument is not widely accepted. shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply. The dominant arguments are tied to either an economic analysis or a Lockean natural rights analysis. Ch. Insurance Co. One economic argument is that the right of publicity creates incentives to create an identity. (People v. Grady: 110-112 (1994)). 1990))..” Whether a provision adopted in 1957 makes a restatement published in 1995 binding is an interesting question. 588 F. merchandise.” (Cal.D. Raubar.S. Inc.1(a)(1)). Storms. in the number of professional athletes. Urban Systems. Ford/Liebler 4 6 . (Raubar v.2d 788. 62 (N.7 Moreover. the social benefits tied to the cheaper exploitation of celebrity identities likely outweigh a small increase in the number of celebrities. 2009). Div.Y. is binding state-wide. Sup. 1962). posters. the Restatement is usually not binding. 130. 840 N. Code § 4 (2011): “The rules of the common law. 215. v. (Southeastern Stud & Components. 967 (8th Cir. would drive the celebrity’s advertising value to zero. goods. the celebrity of the moment would quickly be used up. 340 N.J. 1996). L.3d 963. Mountain View Coach Lines. Overuse of a celebrity in advertising. 136 (N. Div. The three classic cases provided an initial answer decades ago. The justification for the right of publicity is the subject of substantial controversy. Inc. v. the status of games could vary from state to state. 315 N. Posner 1981: 258). Super.Ct.C.S. Super. 974 (10th Cir. which is defined in part to include uses “on or in connection with the offering for sale or sale of a product. Grady (1994: 119-120) extends this same reasoning to merchandising uses. coffee mugs. 1978). (Cardtoons. as expressed in the restatements of the law approved by the American Law Institute. (Cardtoons. but only one of the three is a binding authority and then only in New York.J. Turner. California’s statutory right of publicity provisions refer to uses of someone’s identity “on or in products. of North America. Inc. Sup. Major League Baseball Players Ass’n.2d 544. v. New York’s statutes prohibit uses “for purposes of trade” without explicitly referencing merchandise.).J.2d 17 (1973). more competitors offering fantasy baseball to consumers without passing on the cost of licensing fees is preferable to a tiny increase.6 and as a state law doctrine. a probable consequence if no consent is required. as generally understood and applied in the United States. L. merchandise. or goods. 95 F.2d 123.Y. 7 Only the New York decision was affirmed by an appellate court. Ferro Trucking Co. 95 F.Y. such as 1 V.Y. Law. Ct.2d 663. 345 N.J. Illinois’ statute refers to an individual’s right to control uses for “commercial purposes” (765 ILCS 1075/10). 127 (N. App.2d 144 (Sup.

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

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

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

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

engaged in protected expression by providing an interactive form for the use of the players’ information.C. as numerous courts have noted in responding to constitutional challenges to various state restrictions on violent video games. . The court added that baseball players are highly paid. C. The court further clarified that the reference to expression means additional “expression of something other than the likeness of the celebrity.3d 473 (Cal. opinion is underwhelming. in other words.B. When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain.C. Grand Theft Auto is an exceptional example.C. it is not only especially worthy of First Amendment protection. According to the California Supreme Court. One plausible response to balancing the right of publicity against the First Amendment is the transformative use test adopted in California. On the other hand. infringed the players’ rights of publicity under Missouri’s right of publicity statute. Games offer vastly different options for interacting with ideas and information. the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. (CBS Interactive. The court’s reference to adding expression as a way to satisfy the transformative use test is critical. 398. provided it is properly applied.. . 259 F. 2003). the court said C.3d 797 (Cal.B. In Comedy III Productions v. the cases would have come out differently. An entire book of essays is devoted to the meaning of Grand Theft Auto. Early video games were very simple in design. when a work contains significant transformative elements. and the court did not question this point.Campbell-Kelly 2003: 269. The image is neither transformed itself nor part of a larger work that makes the celebrity image raw Ford/Liebler 9 . Elsewhere the court explained. 21 P. which as already noted led judges to doubt their expressive qualities in the 1980s.B.D. We ask.C. (C. but numerous games provide elaborate stories and narrative structures. In two cases. half-worm characters based on two musicians. (Garrelts 2006). even today.B. a similar result followed in a case involving the National Football League players. 272). Some new releases remain simple.C.C. decision.B. but the court was right to focus on the interactive use of information.C.” (Id. Perhaps if the courts of the late 1960s and early 1970s better understood the expressive capacity of games. the California Supreme Court dealt with two ends of the spectrum. Distribution and Marketing. the work was a Jonah Hex comic book with two half-human. The C. one of which is from a district court in the Eighth Circuit. In the C. a fact that seems odd to rely upon because the right of publicity is usually of primary interest to celebrities. 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.C.B. In Winter v. but it further held the First Amendment provided a defense. The parties agreed Missouri law applied. which probably elevates its status as something involving the dissemination of news and information. Minn. Comparing games generally to items like coffee mugs and posters seems somewhat absurd. The court agreed C. 2001). or whether the depiction or imitation of the celebrity is the very “sum and substance” of the work in question.” (Id. The court also noted that consumers are unlikely to be confused about the players’ endorsing C. Inc. but video games eventually went well beyond Pong and other early games in terms of expressive qualities. 419 (D. DC Comics. NFL Players Ass’n. A poster with a conventional celebrity image lacks any expression beyond the image itself. but many mundane video game feature significant expressive elements.B. v. After the C. at 820. case. but it is also less likely to interfere with the economic interest protected by the right of publicity. “Another way of stating the inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized. 823-824). the work was a conventional charcoal drawing of The Three Stooges. (Comedy III at 808 (emphasis added)).B. 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. An opportunity to reconsider the question finally came in 2005. 2009)). Inc.R.). 69 P. In a relatively brief discussion that did not refer to the three classic game cases. . Johnny and Edgar Winter. directly trespassing on the right of publicity without adding significant expression beyond that trespass. Fantasy baseball is very closely tied to real world events and involves grinding through statistics. Saderup. which isn’t even a requirement for infringement. at 809).

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

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

Orbanes. 34 UCLA Law Review 1703-1712. Harvard. Ludwig. G. McNamara. Putnam’s Sons. The Grasshopper: Games. The Rights of Publicity and Privacy.. Richard.E. Brassey’s. (1997). (2009). 2 Board Games Studies 116-141. The General. Morris-Friedman. 19 Law & Contemporary Problems 203-223. Prosser. Rechecking Our Sources. Lawrence. The Rights of Publicity and Privacy. McCarthy. Melville B. William L. 29-33. 48 California Law Review 383-423. Jr. Bruce. (2011). (trans. McCarthy. Prometheus. The Game Makers. 4 Harvard Law Review 193220. (1983). Thomas.P. May-June. (1999). Thomas. Mishcon. Suits. Broadview. May-June.html. Shea. West. (2005). “Juden Raus!” (Jews Out!)—History’s Most Infamous Board Game. Nat’l WWII Museum. Wittgenstein. The Right of Publicity. Robert H. The General. Nimmer.generalpatton. Pollack. (1981). Business and Licensing Opportunities. Litigating the Right of Publicity: Your Client’s Face Was on the News. Life and Utopia. Heroic Worlds: A History and Guide to Role-Playing Games. J. Ford/Liebler 12 .McCarthy. Jon. Patton.html. The Pattons: A Personal History of an American Family. Bob. Posner. 119 American Jurisprudence Trials 343. (1890). Thomas. Philip E. Nimmer and the Right of Publicity: A Tribute. Now It’s on T-Shirts and Video (1983). Steambubble Graphics (2003). Speaking from the Playability Viewpoint. Heat of Battle V Wargaming Convention. available at http://www. Samuel D. (2004). (2011). and Brandeis. (1954). The Right to Privacy. (1960). Warren.nationalww2museum. Andrew and Schädler. Ulrich. J. (1987). (1960). available at http://www. American Games: A Historical Privacy. Philosophical Investigations. The Games Database. Malla. West. Estate of General George S. J. Whitehill. Bernard. available at http://www. It’s All in the Game. The Economics of Justice. Harvard Business School. (2011). 6 Board Game Studies 47-57. 29. Patton.isimulacrum. Schick. (2003). Melville B. Anscombe). James J. Louis D. G.

Evanston. new media. USA. 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. Rousse Northwestern University 1104 Garnett Pl. electronic games. Electronic games. from the earliest commercial exhibitions to the Burstyn v. confronting local ordinances contested by small business owners in the arcade business. 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. In the case of film. April 8-9. Missile Command INTRODUCTION:
 Schwarzenegger v. exhibit exactly this pattern.The Game Behind the Video Game: Business. 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. EMA decision and will carefully analyze the “informational standard” and its deficiencies. EMA is poised to be the most significant case involving the free speech categorization of electronic games. film did not undergo a technical revolution in 1952 that suddenly made it expression).com ABSTRACT Schwarzenegger v. then a significant period exists where rightfully protected speech can and will be restricted or censored. Municipal and state courts. which in turn establish precedent for ruling against the expressive capacity of new media. By examining contemporary games and the relevant court cases. that period was almost sixty years. IL tommy. Wilson decision in 1952. from their case history beginning in the early 1980s. establish a set of precedents with little coherence and scant precedence in a newfound “informational standard” for what constitutes speech.rousse@gmail. Rousse 1 . while electronic games have gone a little over three decades without a definitive ruling. Schwarzenegger Thomas H. 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. If a medium is deemed worthy of protection and no significant changes in its structural capabilities have occurred (certainly. regulation. 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. Regulation. EMA. both the informational theory and its application are critiqued. This paper will recount the early case history of electronic games ultimately leading up to the Schwarzenegger v. EMA is not the first time the regulation of electronic games has come before the judicial system. First Amendment. and Society in the Gaming Industry New Brunswick. KEYWORDS: Schwarzenegger v. New Jersey. 2011 New Media Censorship & the First Amendment: Understanding the Origins of EMA v.

172. the classification of electronic games has shifted and still remains controversial. legislators must meet few requirements when drafting regulations or bans. 171-172. Without a clear definition of speech.Y. states and local governments must also abide by the First Amendment. the government from the municipal to the federal level can stifle expression in ways that few other actors can.3 536 F. By 1982. the whole of First Amendment tradition can be sullied or reaffirmed by the legal reasoning behind electronic games-related cases. Through the Fourteenth Amendment. But not all legal scholars are convinced they have made the right decision. and the Supreme Court has yet to weigh in on the matter. This point of contention would remain at the heart of litigation on electronic games for the next two decades. Regulation of violent content in video games may lead to similar regulation in film. subject matter. and print. 1982) Hereafter. 3 Ibid. heard by the Federal District Court for the Eastern District of New York in 1982. 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.N. 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. government regulation and censorship can be particularly pernicious due to its potential effectiveness and legitimacy. Since expression within the ambit of the First Amendment is considerably more difficult to regulate than conduct or expression outside of it. still periodically pass laws which either fail to meet constitutional standards or are currently on appeal to a higher court. ‘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. as coin-operated arcade machines became ubiquitous. cities and towns passed ordinances to restrict the use of early electronic games. Arcade operators and others contested these regulations by claiming that electronic games should be protected as speech under the First Amendment. 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. television. City of New York Department of Buildings.D. rightfully protected expression in the form of electronic games was vulnerable to restriction for nearly three decades. When they are not. 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. The legal battle for the status of video games does not take place in a vacuum.” Ibid. including video games. only a few regulations meeting stringent guidelines will pass constitutional muster.1 America’s Best Family Showplace planned to open a restaurant which would feature video game screens at each table. When electronic games are recognized as speech.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. A previous ordinance restricted the number of arcade machines in a business location to four unless the operators received a license for an “arcade. The majority of courts have gradually recognized electronic games as speech after declaring them ineligible for such protection during the medium’s formative years.” a process that was essentially impossible to complete.B. it would take a few more years for the emerging medium to become the subject of legal regulation. Censorship and regulation often take place without government intervention.S. Through the majesty of its authority and the punitive threat of monetary fines or imprisonment. and expressive capacity of the medium has developed and public attitudes have changed.While video games attracted negative attention from media outlets and parents shortly after they became commercially available. 2 1 Rousse 2 . Supp. 170 (E. ultimately. N. As the complexity. Nonetheless. “America’s Best.

10 343 U. it would have to meet the “strict scrutiny” standard. 6 R. the government must overcome a prohibitively high standard of evidence. the likelihood of plaintiff’s success on the merits at trial is minimal. the America’s Best court also reiterates a point made in Schad: “Dancing. 8 452 U. ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. however. Winkler. the Supreme Court decided that a “usually nude” dancer behind a coin-operated view hole was constitutionally protected speech. 5 4 Rousse 3 . the evidence that Mt. Carolene Products (1938). Paul. (1992) 7 But cf. particularly when applied to “suspect classes” of vulnerable groups like racial minorities.”9 This emphasis on a “form of expression” supports the media-centric approach of the expressive germ perspective. In Schad.10 the landmark case which established film as protected speech. government regulation or censorship of speech is assumed to be invalid.”6 For a regulation to be valid under strict scrutiny. Vol. the government must demonstrate that this specific regulation is necessary to advance a compelling state interest. 173. If that regulation dealt with a fundamental right such as those protected by the First Amendment. (1938). has long been considered a form of expression protected by the First Amendment. Adam. To overcome this presumption. third.5 Under strict scrutiny. v. 793. several conditions must be satisfied: first. 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. Under the strict scrutiny standard. When dealing with a right such as speech. 777. p. Borough of Mt. Winkler finds that laws survive Supreme Court strict scrutiny 30% of the time on average (but local ordinances survive only 17% of cases). v Wilson (1952). footnote 11. 2006. Notably.S. 59.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.A. the regulation would be upheld. If they are not. given the traditionally heavy presumption of constitutionality accorded to a local government’s exercise of its zoning powers. the government must provide extensive evidence connecting the means of regulation and its intended goal. 304 U.S. City of St. second. “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. 72 S. it must restrict protected speech as little as possible.S. This threshold is so difficult to reach that strict scrutiny in free speech. Carolene Products. The courts independently examine this evidence to determine if the regulation is “narrowly tailored” and serves a “compelling state interest. 144.” Vanderbilt Law Review. 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. or even if it had not but such a relationship could be reasonably assumed by the court. This is distinct from a method that would require each individual example of a format to demonstrate some prerequisite to qualify for protection. no less restrictive alternatives can exist.”7 The plaintiff’s case in America’s Best relied on Schad v. as a standard to determine the speech status of electronic games. They may affect public attitudes and behavior in a variety of ways.S. United States v. 505 U. 495. in all its non-obscene forms. Ephraim (1981)8 to establish electronic games as protected speech under the same criteria accepted by the Schad court. 395. Inc.V. The America’s Best court then invokes Joseph Burstyn. Ct. has been described as “strict in theory. 9 America’s Best. 377. 61.”4 In footnote four of United States v. intended to protect expression and other civil liberties from all but the most carefully considered and empirically-supported regulations. They quote: “It cannot be doubted that motion pictures are a significant medium for the communication of ideas. The Ibid. but fatal in fact.

11 12 America’s Best. 173-174. 378 U. Inc.”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”. Inc. v. Rather.S. 17 America’s Best.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. The word “information” does not even appear in Southeastern Promotions. “idea” is present only in a dissent. 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]. and has no relationship to the test adopted in America’s Best. Wilson. 14 Winters. Winters. (1952) 333 U.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. This standard is no more sustainable than Justice Potter Stewart’s infamous “I know it when I see it.”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. 72.S.”16 Since video games were not found by the court to qualify for First Amendment protection. which states: “We do not accede to appellee’s suggestion that the constitutional protection… applies only to the exposition of ideas. 173. not that information is the only important element of protected speech. (1952) 22 Jacobellis v. a game of chess. 501.” 21 It simply says that mixing entertainment and information does not remove constitutional protection. 72. 343 U. 13 America’s Best 173. which may be adulterated but not discounted by the presence of entertainment.). 184. or a game of baseball. 176. 21 America’s Best. 495. the ordinance and its justification met the reduced requirements of the rational basis test for constitutional regulation. a video game. Ltd. Rousse 4 . 15 America’s Best.17 The genesis of the standard adopted by the America’s Best court is unclear at best. The segments of Southeastern Promotions cited deal mainly with prior restraint of speech. Conrad (1975)18 . Inc. is pure entertainment with no informational element. the court concludes that video games are not protected speech: “In no sense can it be said that video games are meant to inform. v. v. 546.establish the capacity to transmit ideas or information as the sole definition or test of protected speech. Wilson. Wilson (1952) and Southeastern Promotions. Burstyn. 495.” 22 definition of obscenity. does not use information as the sole determination of a format’s status as protected speech. 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. Stewart’s concurrence.Joseph Burstyn. 16 Ibid. 173-174. like a pinball game. 19 Burstyn.S. not determining whether or not the material at issue (the Broadway musical Hair) contains information or ideas.S.”15 On this standard. 174. 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.”13 They neglect to quote the sentence in Winters directly proceeding the Burstyn quotation. 507 (Hereafter. 18 420 U. quoting Joseph Burstyn. 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.”14 Nonetheless. Beyond information. Hereafter Southeastern Promotions. Neither of the cases cited in the decision . v. 343 U. Ohio. 20 Ibid. quoting Joseph Burstyn. 65.

In fact. 31 Ibid. Salem Inn. is protected… . Caswell submitted Space Invaders to the record. 422 U. Hereafter City of Warren. 29 Ibid. as well as political and ideological speech. Mt Ephraim (1981): “Entertainment. 267. S.S. Caswell’s example of the expressive power of a video game.”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. Walker. 30 Ibid. The city planning commission denied his proposal. 420 U. such as this excerpt from page 65 of the Supreme Court’s decision in Schad v. 274. while coming to the same conclusion as Caswell and America’s Best. 444 NE 2d 922 – Mass: Supreme Judicial Court. “searched in vain”). footnote 2. Court of Appeals of Michigan.S. The City of Warren Court found no precedent to support that claim. but “this observation does not reach the constitutional question. 25 Ibid. did not meet the information requirement established by America’s Best. Southeastern Promotions. App. the Caswell court used the standard of the communication of ideas for First Amendment protection. v.25 The connection between the cases the Caswell court cites and the informational standard formerly seen in America’s Best is not apparent. City of Warren v. 1984. 205 (1975). While the previous two cases concern the denial of license to individual businesses. Rousse 5 . Caswell. 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. emphasizing the physical element of video game interaction and comparing it to recreational rollerblading. 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. Inc. many mention ideas or information obliquely at best. Caswell wanted to open an arcade featuring seventy machines. 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. City of 23 Caswell v.S. As seen in America’s Best.e. Conrad. the denial of his proposal was found constitutional. 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.23 As a local business owner.29 As indicated by the oddly wistful description of their own deliberation (i. 398 U. Hereafter. 422 U. App. 26 452 US 61 27 Doran v. footnote 3. was more hesitant to rule that video games lacked any expressive elements. Licensing Commission for Brockton (Mass. 273. 28 City of Warren v. Pg. 546 (1975). Licensing Commission for Brockton. 869-871. 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.S. Caswell claimed that this restriction on electronic games violated the First Amendment because of the medium’s similarity to television and film. Caswell’s contention that the ordinance was unconstitutionally vague and violated his freedom of assembly and association was also denied.”30 Furthermore. 58.31 These cases provided a solid precedent for courts to deny video games First Amendment protection for the rest of the decade with little pause. and Schacht v. The court found that Space Invaders. citing concerns about pedestrian safety and juvenile loitering. 1983. In a lengthy footnote. United States.24 Thus.C.J. Plymouth. 24 Caswell. 1983). To support this assertion. but ruled that they did not possess the expressive element established in other cases. 275. however. and no form of speech is given or denied constitutional protection based on such a test. 872-74. The plaintiff. Erznoznik v. 135 Mich. Walker (Mich. 270. Ltd. 922 (1975).Video games received similar treatment in Caswell v. the court acknowledged that video games may already possess some expressive capacity and may develop the requisite informative capacity to be considered speech. stressing in particular that electronic games are capable of articulating a plot. Jacksonville. this court.28 The City of Warren court “searched in vain” to find a justification or precedent that qualified electronic games as protected speech.

Rothner v. In a similar vein. City of Chicago. Are
 While the cases reviewed here are unanimous in their rejection of electronic games as protected speech. and Atari Soccer. 34 Marshfield. Supreme Judicial Court of Mass.35 Like many other emerging forms of media. in Marshfield Family Skateland v. 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. Tron. No industry-wide establishment charged with representing the legal interests of video game operators participated in the cases previously considered. Zaxxon. either for the purpose of demonstrating electronic games’ capacity to transmit ideas or information.. Atari Basketball. but unrelated to any message or information conveyed by gameplay. first of all. 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. players pilot a spaceship and fire at oncoming enemies for points. 2010. Donkey Kong. the plaintiffs submitted video excerpts of five games: Ms. Atari Mini Golf. 35 As has been and will soon be even more apparent. In Zaxxon and Space Invaders.Chicago. and Kangaroo. 389 Mass.S. 2d 297. 36 Cf.33 While these games were popular. Town of Marshfield. By mimicking sports. early electronic games were highly derivative of other formats that shared cultural or structural characteristics. 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. they may not have been the most relevant examples.” 37 The Killer List of Video Games. they mimicked previous examples in that genre. 444. 7th Circuit 929 F. “Coin-Op Museum Index: A. (1983).” KLOV. 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.36 Because electronic games are seen as interactive entertainment. not all of the courts were confident in this characterization. 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. We should consider. another case seeking First Amendment protection for arcades. especially sports. then a major player in the industry. I do not find this standard compelling in theory or by precedent. Town of Marshfield. Court of Appeals. (1991) Marshfield Family Skateland v. 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. However. U.” and his discussion of early film enthusiasts’ desire for the classics of literature to be made into films likened to “heroes crowding the gates. it was the relevant standard embraced by the courts judging electronic games in this era. 33 32 Rousse 6 . 436.37 Other games submitted to court record may not be particularly compelling arguments for the informational capacity of electronic games. 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. or more broadly as a form of expression.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. Walter Benjamin’s seminal essay “The Work of Art in the Age of Mechanical Reproduction. released Atari Baseball. Caswell relied only on a description of the rudimentary plot of Space Invaders. Accessed February 15th. Atari Football. Atari. likely because no industry-specific trade association existed until 1994. from 1978 to 1979. Pac-Man.

the courts may have come to the correct conclusion using this standard. Missile

 While the informational capacity standard may not be most appropriate for determining what media constitute speech. a popular game released in 1980 by Atari and designed by Dave Theurer. February 1976). If other games had been examined more carefully and with a more open mind towards their expressive potential. MIRV: A BRIEF HISTORY OF MINUTEMAN and MULTIPLE REENTRY VEHICLES (Lawrence Livermore Laboratory. This mimics the capability of multiple independently targetable reentry vehicles (MIRVs). By striking these oncoming missiles. During the height of the Cold War. 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. but our legal history does not have an excellent track record in this regard. Rousse 7 38 . but more general claims as to the unsuitability of electronic games to convey informational content are too broad. As we have seen..html. the game continues. It is difficult to evaluate Missile Command. with each new line capable of damaging the player’s cities and silo. Like many arcade games of the time. it was widely cited in the previously discussed cases of free speech regulation. and the ability to fire counter-missiles. Identifying media that have achieved expressive capacity is vital to protecting the First Amendment sphere. As the game progresses. the player is presented with a flat landscape featuring six representations of cities and control of a missile battery. a variety of nuclear warhead capable of striking multiple targets in a single missile developed during the Cold War. outside of the context of the Cold War and fears of nuclear warfare and subsequent Mutually Assured Destruction.gwu. 39 Lawrence Buchonnet. 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. Examining only the material submitted to the record. released in 1980.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 The material submitted in the respective cases did not provide an adequate overview of the expressive range of electronic games at the time. http://www. meets the criteria applied by the courts to the cases we have examined.39 In Missile Command. unprotected cities. 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. Some oncoming missiles even mimicked the capabilities of real warheads. 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 world. 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. courts might have been persuaded that electronic games warranted First Amendment protection much sooner. Missile Command. there is no winning condition – as long as the player is good enough. Assuming for the sake of argument that the capacity for communicating ideas or information is a valid test of speech. This segment intends to demonstrate that electronic games were capable of meeting even the narrow definition of speech embodied by the information standard. or continues to put quarters into the machine. In Missile Command. lines representing missiles split during their descent. as cases are inevitably condensed and simplified when cited for precedent.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. Protecting cities and destroying incoming missiles increased the player’s score. 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. the player defends his or her missile battery and cities. Yet. narrowly focused judgments on a small subsection of games have had far-reaching influence in the decisions of other courts regarding the entire format.

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

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

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

com. However. people of any colour other than white. anyone other than young. such games may reflect a single homogenous norm. through government regulation. culture and content. Despite this. such as racial stereotypes. user created content brings with it risks of its own. 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 International Game Developers Association is undertaking a project on diversity to encourage underrepresented groups. For example. 2 DIVERSITY ‘While I fully support diversity in real life. portrayal of children. might this trend suggest a drive towards the lowest common denominator. For example. cultural references and contexts. Australia currently has no 18+ classification for computer games. white males. PC and online games and MMOGs. the expectation of global delivery of game titles suggests that. Any regulatory environment requires careful management given the impact on user activities. Thus this paper asks if regulation could have any role in fostering diversity and if in fact this would be cited above involved in-depth discussion of the need for greater representation of women. and male and female avatars in games. The discussion on MMORPG. i. I don’t necessarily find the need for it in my fantasy life. the way users interact with the game or other regulatory frameworks. uncontrolled copyright infringement. Further. unsuitable content. Therefore. • 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 . content that is least offensive to the widest number of people. such as was reflected in US TVI policy of ‘Least Objectionable Programming’ up to the 1970s (Nelson 2007). 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 itself. encompassing console. 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. post to MMORPG. audience expectations may differ significantly between regions. All of this ignored the fact that the games themselves are steeped in particular cultural norms and tropes. In addition.1 INTRODUCTION The sheer size and output of the videogame industry. rather than reflecting and fostering diversity. into the game industry (IGDA 2005).e. gays. needs and tastes. 11 December 2009) What is meant by ‘diversity’ in the game context? Clearly gamers themselves have differing views on the value of diversity. defamation and content which is inconsistent with the developer’s vision for the game. managerial techniques. There are also issues of cultural norms. so any violent or sexual content must be accommodated at the lower level of classification (suitable for children of 15 and above). reference to historical and contemporary events.’ (Ozmodan. It will also focus upon the role that UGC may serve in this context. 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. in terms of language. and more generally. However. would suggest that sufficient diversity exists to cater to different user expectations.

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

’ This localisation involves far more than merely translating the dialogue. character names. there is greater emphasis upon ‘protecting the children’. Whether it is possible to mandate diversity is another matter. resizing text and pop up boxes which contain text. Plots center on a group of heroes battling a great evil while exploring the characters' internal struggles and relationships. changing local idioms and incorporating changes to take account of local content regulation laws or guidelines and user expectations (Carlson and Corliss 2010). 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. languages. In any event. was released in Japan in 2009 and in North America. Character names are often derived from the history. than fostering cultural content or diversity. it is not clear how this translates to imaginary realms. 2010). ethnocentrism. Thus existing regulation does not significantly foster diversity in game content. Bilateral agreements. and mythologies of cultures worldwide’ (Final Fantasy Collection. xenophobia. Thus cultural values are placed second to removing barriers to trade in goods. 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. there are recurring elements of FF including: ‘plot themes. The guidelines suggest that. text and images that appear in the game. Final Fantasy (FF) installments were originally defined as ‘independent stories’ with various settings and leading roles. For example. such as the US-Australia Free Trade Agreement. FFXIII continued the tradition of having a racially mixed and ambiguous band of reluctant heroes. Square Enix has sold over 62 million units of the various Final Fantasy games worldwide. 2008). Final Fantasy XIII.experiential levels. Featuring the glamorous warrior ‘Lightning’ as the main protagonist. 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. Again. one of the most popular iterations of the game. It involves the musical score. 3. another Japanese company. 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. regard should be had to: Content which conveys messages of aggressive nationalism. the UK and China. The Council of Europe has recommended that in developing and publishing games. Carlson and Corliss also remind us that these ‘user expectations’ are heavily mediated through the understandings of local marketers and localisers. and multilateral agreements such as the General Agreement on Tariffs and Trade (GATT). amongst other things. Europe and Australia in 2010. inextricably link intellectual property (and hence cultural products) and trade. (Council of Europe. and game mechanics.1 Final Fantasy Final Fantasy is a highly successful game franchise developed by Square Enix. Such trade agreements may provide the avenue for economic domination by a limited number of global players in the game industry. however. 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). It would not be desirable to allow trade and regulation policy to create a situation of global game homogeneity. racism or intolerance in general including when such messages are concealed. such as the group described by Consalvo (2006) 4 de Zwart and Roth . a Japanese company created in 2003. It now has subsidiary corporations in North America. following the merger of Square (originally founded in Tokyo in 1985) and Enix.

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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The events in the games discussed in this paper demonstrate the commercial imperatives for customising games for local markets. 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. If the adjustments are too expensive for a particular title. the choices of subscribers to a particular environment provide the ultimate decision. The intentions of game developers and providers need to be reflected in the EULA. These activities should not be impeded by agreements forged to regulate interstate commerce. UGC provides an opportunity for the development and continuation of games and the cultures they develop. developing significant meanings. intellectual property issues need to be resolved. rather than there being a mismatch between the legal constitution of the game and its underlying logic and intent. and they produce their own contents for self-expression and self-actualization. The development of games and their customisation for local markets and tastes provides an interesting basis for consideration of elements of diversity. Intervention may only be necessary to support funding for niche domestic cultural reasons or to accommodate smaller ethnic groups. interpretations. rather than bolted on as a ‘one size fits all’ by the legal department to cover all contingencies. However. However. EULAs should be drafted for a specific environment. pitting bands of youthful warriors against the forces of evil. For example. These adjustments. different games may adjust story lines and outcomes in releases across the globe. by their choice to be and remain part of the environment. regulators should allow games to evolve to meet user demand. relevant or not. drawing upon real life footage and events to create new gaming experiences.users are unaware of the terms of the EULA which provide Sony with a right to commercially exploit UGC material. for UGC to provide a significant role in localisation and diversity. while based on tested as well as perceived realities. shared 8 de Zwart and Roth . and mood management needs. often based on a stereotypical understanding of that culture. the political potential of games and the effectiveness and limitations of user generated content in facilitating development of local ‘flavour’. These issues will need to be settled before UGC can be advocated as a viable solution to a lack of local content. in turn contributing to an ongoing evolution of further development and understandings. In online gaming. Guoshong (2009) argues that players who engage in UGC creation ‘consume’ contents for fulfilling their information. 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. result in alterations to a game environment only where it is seen as financially efficient. This would suggest that users engage with games and produce UGC for largely non-commercial reasons. conceived here as always arising from the meeting point of existing. as well as with other users for enhancing social connections and virtual communities. He observes: The complex contingency of today's large-scale online games has powerful effects on meaning. entertainment. Indeed. as we have seen. it does not follow that users realise that their labour may result in a commercial product with no financial benefit flowing back to them. 4 CONCLUSION Games should be as diverse as their players: Final Fantasy builds on a successful franchise of activities from the last 27 years. it may not be released in that region or released with basic customisation only. in attempting to ensure the national popularity of a title. Some would argue this perpetuates stereotypes and others see this as an evolution in gaming. they participate through interacting with the content. Call of Duty uses historical imagery to set up in-game story lines. This paper concludes that rather than mandating and regulating for diverse content.

de Zwart. 9 de Zwart and Roth . T. http://www. clubs.2. M. BBC (2010) ‘Cuba says Castro video game tries to legitimise murder’. Work should also be undertaken by game providers to ensure they have EULAs that are consistent with their expectations and encouragement of UGC. 6. The protection of these frameworks ensures evolution and enables diverse experiences in such environments. (2009) Beyond the “Great Firewall” The Case of In-Game Protests in China. contingent circumstances. NCCR Trade University of New South Wales Law Journal. Only then will diversity flourish for all gamers regardless of their field of endeavour. Carlson. not by mandating particular cultural norms but by supporting development of games that reflect cultural values. In this regard. 33.3. D. Accessed 6 March 2011.2. (2009) Piracy vs Control: Models of Virtual World Governance and Their Impact on Player and User Experience. J. J. Chan. as games themselves show most powerfully. New York. M.30.B. Final Fantasy Collection. Burri. (2010) ‘User created content in virtual worlds and cultural diversity’ in Graber. (2008) Human Rights Guidelines for Online Games Providers. Hjorth.B. Graber. and Chan. Working Paper No 2009/36. 11 November 2010. (2005) ‘Playing with Race: The Ethics of Racialized Representations in E-Games’ International Review of Information Ethics and Historiographic Effects in Call of Duty: World at War. trade related aspects of intellectual property enforcement should be carefully monitored to respect and protect local content production. http://www. and Burri-Nenova. as appropriate. 24. Edward Elgar. Baron. C. (ed. Journal of Virtual Worlds Research. de Zwart. L. diamonds. Attorney General Website http://www. and Steiner. R. 117 -137. R.) Governance of Digital Game Environments and Cultural Diversity. Cheltenham. ( spades: Players who suit MUDs. Classification Policy Website. M. 303-314. (2010) ‘Imagined Commodities: Video Game Localization and Mythologies of Cultural Difference’. The very nature of development and evolution in games responds to consumer and regulator requirements and provides examples and experiences of diversity. Games and Culture.interpretive frameworks and Chan. Routledge. Burri-Nenova. D. (2009) The protection and promotion of cultural diversity in a digital networked environment: Mapping possible advances to coherence. (2010) Digital Historicism: Archival Additionally. 2010. 605-627. D. (2006) Console video games and global corporations: Creating a hybrid culture. Eludamos. M. M.. C.nsf/Page/Classification_policy. 5 REFERENCES AND CITATIONS Bartle. Council of Europe.htm. http://en. 4 (2). and pp 61 .) Gaming Cultures and Place in the shared engagement of contingency is a powerful means for the development of trust and belonging. New Media Society. It is important that any regulation of games seeks to facilitate and support diversity.mud. M. 8. Digital Interface. (1996) Hearts. Journal for Computer Game Culture. (2010) Contractual Communities: Effective Governance of Virtual Worlds.

C. 9: 772-775. (2007) HBO Premium: Channelling distinction through TVIII. M. Participative Web: User-Created Content. (2010) ‘State Aid for Digital Games and Cultural Diversity: A Critical Reflection in Light of EU and WTO Law’ in Governance of Digital Game Environments and Cultural Diversity. S. CyberPsychology and Behaviour.gamespot.113 Metacritic Website. :>’ 20 November 2010. Malaby. R. C. (2010) Leona Lewis brings Final Fantasy XIII 'closer to the West'.guardian. '(2007) Beyond Play: A New Approach to Games'. (2010) ‘Beyond billiard balls: transnational flows. T.Gamespot Website. no you don’t get to apply your Internet niche knowledge to me doing my job. Vol. http://www. 41 Kallio. K. C.aspx?ID=635 Yee. ‘Context..) Governance of Digital Game Environments and Cultural Diversity. http://www. International Game Developers Association (2005) Game Developer Demographics: An Exploration of Workforce Diversity. 151-180. 5: 1. 10 de Zwart and Roth .B.tgdaily. (eds. DOI:10. UK. The Guardian (2010) M. (2008) ‘Sony: Be Mindful of LittleBigPlanet Content’ Edge. Graft. and Kaipainen.metacritic. (2010) ‘At Least Nine Ways to Play: Approaching Gamer Mentalities’ Games and Culture.computerandvideogames. 16 February Cheltenham. 12 April 2007. and Burri-Nenova. 15 February Toulouse Twitter account. http://twitter. F. 95. power relations and embeddedness’. (2010) Call of Duty: Black Ops – is Microsoft right to ban the swastika? The Guardian. (2010) ‘Final Fantasy XIII boss responds to review scores’ Computer and Video Games. K. DSTI/ICCP/IE(2006)7/FINAL.1 Accessed 20 February 2011. N. J. 23 November 2010. New Review of Film and Television Studies. M. (2010) StepTo. http://www. 13 November 2008. Games and Culture. Guosong. 25-40 OECD Working Party on the Information Economy. S. cultural diversity and digital games’ in Graber. http://au. Edward Elgar. TG Daily (2010) http://www. pp. Internet Research. (2009) Understanding the appeal of user-generated media: a uses and gratification perspective. Toulouse.7 – 25 Ingham. A. (2010). Cheltenham. (2007) Motivations for play in online games. T. Kerr. K. 22 November 2010. Or. UK. and Burri-Nenova.computerandvideogames.html?tag=topslot. M. Accessed 20 February 2011. Call of Duty spurs strong anti-swastika message on Xbox. 19 Iss: 1.thumb. Edward Jackson. Journal of Economic Geography 6.B. http://www. (eds.igda. http://www.stepto. Mayra. Luttrell.1177/ TG Daily. (2006) ‘Video games production networks: value capture. K.

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

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

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

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

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

Chapter 5 – www. February 2010) (link) 16 www.11  India‘s middle class will swell by more than ten times its current size of 50 million to 583 million by 2025. You can play it online today on the British Museum Web site17 . The ability to manage employees across social. but in 1981. December 2009) (link) 15 (Cisco.3. Coincidentally. technical. networked. Perhaps it is unfair to attribute the start of a generation to a single game. educational. generational.defectprevention. May 2007) (link) 13 (Economist.15 The world is indeed getting flat.18 Although the current generation of electronic games has its roots in the 1950s and 1960s.C. Evidence even seems to indicate that games were used to motivate workers to build the pyramids of Egypt. Productivity games are a part of the new management orthodoxy. as well as 12 11 Productivity Games: Improving Software Quality through Fun and Play 6 . Typically.16 The royal game of Ur was played in the fourth century B. reaching 3. mobile data traffic will double every year through 2014. 3.gnu.thebritishmuseum. there is an element of fun.3 Gamer Generation In every job that must be done. and is for sale along most toy aisles and in game stores. and political boundaries requires management online_tours/games/the_royal_game_of_ur.aspx 18 The Practical Guide to Defect Prevention. exabytes per month by 2014. 2009) (link) (MGI. You find the fun and—SNAP— the job’s a game! —Mary Poppins Games have been around for centuries. April 2010) (link) 14 (Trendsniff. with Spacewar and PONG.2007).C. The market for talent will continue to be highly diverse.57M14  Globally.html 17 www.  83% of the new global R&D facilities were in China and India (2004 . 91% of the increased R&D staff was in China and India.12  Kenya leads the world in money-transfer by mobile phone. 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. Mobile data traffic will grow at a compound annual growth rate (CAGR) of 108 percent between 2009 and 2014. which really was a defining moment in mainstream gaming. Nintendo published Donkey Kong. the game of Go was played in ancient China in 500 B. computer and game console developments over the last few decades have taken gaming to a new level. increasing 39 times between 2009 and 2014.13 Mobile Phone Subscribers: 738.2 Global Workforce The GDP growth dominance of emerging economies will continue to change the landscape and makeup of the the majority of the programmers or engineers are relatively recent college graduates. cultural. and distributed. For example.0 thinking.

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

It is very hard to find common themes to engage employees. There are several dimensions of citizenship behaviours. conscientiousness.wikipedia.aspx ( the numbers have been very similar over the past few 8 24 25 Productivity Games: Improving Software Quality through Fun and Play . There is a five-factor model consisting of altruism. The attributes of effective organizations all find their origins in trust. or Organizational Citizenship Behaviors (OCB‘s) that require core skills are the best way to ensure the success of the game. with about 55% who are passively disengaged. and about 15% who are actively disengaged. 22 23 http://www. regardless of whether their organization or company prohibits their use. are challenging to identify and understand. Focusing either on expanding skills in role.23 Two-thirds of teen and Gen Y Internet users use social networking sites.5 Employee Engagement Gallup does their annual survey – and typically. Gallup uses a Q12 survey to measure workgroup effectiveness and employee engagement22. 3.Trust is a foundational element of all successful workplaces. but reciprocal as well. civic virtue. 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. Table 1 illustrates the areas where Productivity Games can be the most successful. January 2010) (link) (Pew. As generational changes in the workforce continue to evolve. courtesy. About 30% of employees are engaged at work.1 Introduction From a Productivity Games 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‖. the concerns over engagement continue to rise. 25  Altruism is helping a specific work colleague with an organizationally relevant task or problem.24 The most successful employee engagement techniques. January 2009) (link) http://en. 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. 4 PRODUCTIVITY GAMES 4. less than 10% of 55-63 year-olds do. Forty-five percent of Millennials worldwide say they use social networking Web sites at work. across this diverse set of behaviours. and sportsmanship.

    Conscientiousness consists of behaviors that go well beyond the minimum role requirements of the organization (Law. 2006). but one that works to prevent problems from arising. no one‘s employment is threatened by the success of another team member. 2005). 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.. imagine a game that helped sort a complicated list of items. and with how the organization prioritizes it‘s work. Games in this space work because they focus on the development and growth of the individual. Organ et al. 2005). Since the games rely on core skills.1. all employees in an organization are able to participate. games which encourage good organizational behavior (or OCBs). and then test for the learning within the context of play. Games are designed to encourage learning. Table 1 . For example. described briefly 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.. and many examples are available in the marketplace for children of all ages. are the most valuable domain for Productivity Games. Wong. 2005). This provides a great place for everyone to participate on equal footing. All employees in a given department are familiar with the items. since the behaviour is not closely linked to any individual‘s job. But wrapping the sorting and prioritization work in a game-like interface. This dimension is a form of helping behavior. but rely on core skills that most employees have in common. & Chen. 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. It also includes the word‘s literal definition of being polite and considerate of others (Organ et al. Examples of why specific segments work or don‘t work are described below. Courtesy has been defined as discretionary behaviors that aim at preventing workrelated conflicts with others (Law et al. all players are given a fair chance to contribute. Games for Learning are a well-established genre of software. 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.1 Thought Examples: Where Games Work Based on our game experiences. Players are best rewarded by Productivity Games: Improving Software Quality through Fun and Play 9 ..

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

engage quickly and easily in a ―training‖ mode which provides the basic information required for the employee to play the game.600 > 530. they receive the feedback in a manner they are accustomed to learning from international population were invited to play.comi. for the Windows International Test Team. finding two independent vendors can be difficult and costly. Table 2 illustrates the success that the Language Quality Game achieved as run against interim builds of Windows 7. most languages had several reviewers provide feedback per screen. because the ―teaching‖ or ―coaching‖ is framed in a game. The results here demonstrate an immense amount of effort applied to the game. This isn‘t to imply that employees are more apt to receive criticism (constructive or otherwise). 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.42projects. but the goal of the game was to achieve reviews of screenshots and dialogs for translation accuracy and clarity. Productivity Games: Improving Software Quality through Fun and Play 11 .000 119 > 9. The traditional business process uses specific language vendors to perform translation work. defect reports were the most valuable output of the game. With the incredible response. and then a secondary vendor to assess the quality. 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. for some languages and locales.300 > 6. 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. A more detailed description of gameplay can be found online at www. 4. Because of the latency in reviewing the feedback. Rather. Game Duration Total Players Total Screens Reviewed (Points Earned) Average Screens per Player Top Player Reviewed Total Defect Reports One Month > 4. But. Native language speakers from across Microsoft‘s diverse. To address this problem.700 Table 2 Language Quality Game Statistics Success in the game was defined as the number of screen reviews across the 36 languages tested.3 Language Quality Game The Windows Language Quality Game has been a successful Productivity Game. defect reports were not included in players‘ scores. The business challenge has been that. The list of Windows languages can be found on Microsoft.

such that the screens with the highest likelihood of fixable defects were handled quickly and efficiently. Reviewed screens lacking consensus were quickly reviewed.4 Communicate Hope: A Benefit for Disaster Relief . a defect report would be created. The response to this productivity game-based beta program has been very positive. but at a lower priority and more quickly.“Giving once helps Productivity Games: Improving Software Quality through Fun and Play 12 26 .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. Over 47. Microsoft donates sponsorship funds to the disaster relief agencies based on the performance of the associated teams.” ―Communicate Hope – A Benefit for Disaster Relief‖. 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. The number of Microsoft Lync 2010 dogfood program participants has increased from an initial 5. is a productivity game that enables Microsoft employees to ‗play‘ by providing ad-hoc and directed feedback on the Microsoft Lync 2010 product. and allowed the review of multiple pieces of feedback per screen quickly and easily.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.26 http://blogs. The ―Moderator‖ role was filled on a per-language basis from the ranks of the international team.Logistically. Where there was obvious consensus from the game players.000 in September 2010. 4. over 10. 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. Each player earns points for one of five teams .forrester. During that time. At the conclusion of the game. Forrester Research has referenced Communicate Hope in a report on Microsoft Serious Games.000 in May 2010 to 18.

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

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

com/2008/06/productivity-games-using-games-to. Dobbs Interview MSDN Game Theory : http://blogs.Management Innovation Exchange http://www. Google Testing Blog – Using Games to Improve Quality http://googletesting.aspx Trusted Advisor Interview TechFlash: Microsoft uses Video Game to help Windows speak like a local i Productivity Games: Improving Software Quality through Fun and Play 15 .managementlab.managementexchange.html Hobson and Holt interview http://www.pdf CNBC blog Forbes London Business School – Business Strategy Review Video ―List of languages supported in Windows november_24_2008/ – about 4:10 mins into the show Microsoft Help and Support: Knowledge Windows XP and Windows Server 2003‖ MSDN Tester Spotlight http://msdn.

2011 .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.

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

it allows them to share in the actual ritual of spectatorship as a performance of identity. We will see that this performance factors quite strongly into rationales of viewership in the case of video walkthroughs. likening game players to athletes. “If you like playing the game. stress relief. like books or movies. I refer to Sports Fans: The Psychology and Social Impact of Spectators (Wann et al. performance is again seen to be quite key. […] 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.2 We can trace each of these reasons as existing within videogame watching as well. then you probably enjoy watching it.Kris Ligman – “Let’s Play Super Rutgers RPG” .1 In cases of both spectators and passengers. Particularly with respect to spectators. group affiliation. watching the gameplay of others doesn’t simply excite others to competition or investment. However.3 Without prompting. “I've always liked videogames and I like showing my favorites to others. there remains some ground to be covered in analyzing why players play for others and in what situations. And they didn't wanna play . as is the social aspect. where we find the top five reasons for spectatorship of sporting events identified as entertainment value. “I think some people see video games as just another form of media. to varying degrees of importance depending on the setting and the observer’s relationship to the player.” says Voidburger. 2001). and aesthetic. self-esteem benefits. one of the few rare female Let’s Players. 23. leading Let’s Player for the LP collective Freelance Astronauts. whose observation often takes place in a public setting. adding. 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.2 passenger. “I've played games for friends of mine before I knew what LP was and they were bored. Asking them.”4 On the side of the player. he too invokes the sports metaphor.

with Let’s Plays like Luisfe’s . 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. first in the form of screenshots and. soon after.7 usually as descriptive text interspersed with screenshots. Let’s forums (the Awful Forums/SA Forums) in 2005. largely as textual how-to documents on websites such as GameFAQs. because they weren't into videogames.Kris Ligman – “Let’s Play Super Rutgers RPG” . 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.” says Let’s Play Archive administrator Baldur Karlsson. It's nice to play a game for an audience who actually wants to see that. compressed video clips as well. as the name implies. The term and its practice first appear in the gaming section of the SomethingAwful. technical standards and accuracy. indicating that presentation is central to the performing player’s ethos. character (founded in 1995 by Jeff Veasey and currently owned by CBS). emphasizes the sort of collectivity and media share culture popularized by these sites. Let’s Play: A Genesis (But Not a SEGA One) Videogame walkthroughs have long enjoyed popularity online.3 either. when various forum members began posting long threads sharing their complete playthroughs of favorite childhood games.6 All Let’s Players interviewed placed an emphasis on style. the walkthroughs themselves are “something to be taken with a little bit of pride. screenshots. the motivation that is at the heart of Let’s Play. multimedia walkthroughs which combine video. Beginning with renowned LPer and current Awful Forums moderator slowbeef and his video walkthrough of The Immortal (Electronic Arts. 1990).”5 While many LPers deny doing the walkthroughs for status or praise.

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

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

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

Let’s Plays exhibit an attention to thoroughness and communicating to an . he does so in order to enhance the “cinematic” feel of the game’s scripted events. 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. 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. as though opening a fireside chat: “Hey guys.”12 The video is a fairly linear documentation of Karlsson’s playthrough supplemented with gameplay tips. 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. beginning with a casual address to the unseen audience.7 deliberately authored gameplay experience through several key techniques. carefully placing the camera and loading/reloading I was able to produce something I feel was more interesting than pure game recording. welcome back to Max Payne. Each video chapter is overlaid with Karlsson’s audio commentary. Though Karlsson’s methods break with objective documentation of his own gameplay. […] For this game specifically it also allowed me also to cut to an appropriate camera to overhear henchmen conversations. By cutting out the [HUD].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. Karlsson then takes his video one step further by editing his footage creatively. noting enemy AI behaviors and the locations of items as well as occasional summary of the plot. which otherwise would have to be witnessed awkwardly crouched behind a crate.Kris Ligman – “Let’s Play Super Rutgers RPG” .

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

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

many of whom are neither straight nor male. is also worth noting. Vexation’s unstated assumption. 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.”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. fearing that it would be a “hassle” to have the game play properly on future hardware. and they deserve no less attention. that his uploaded encoded video will weather these same technological changes much better than the game itself. It may be especially valuable to further explore how minority representation is emboldened by these personal histories. 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). 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. lead writer of the Dragon Age series: “We have a lot of fans. Although both franchises have male and female default avatars. 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. this is a topic of particular relevance already among certain developers. such as David Gaider.Kris Ligman – “Let’s Play Super Rutgers RPG” 10 included alot [sic] of the excellent voice work and music that the game features.”18 Vexation also cites a personal vested interest in having a video record on hand. Furthermore. […] [They] have just as much right to play the kind of game they wish as anyone else. 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.

As noted earlier. which sees the web not simply pulling together media but redefining how that media is engaged. Youtube channels and personal blogs. markets. 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. imitators are free to set up their own video walkthrough sites. 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.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. 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. “The motto wasn't actually . genres. Nevertheless. While nothing can fully predict how this practice will expand. and audiences.”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. Let’s Play as a form of game watching may appeal to spectators and passengers alike. 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. the main Let’s Play Archive attends to particular technical and content standards which may potentially prove the biggest obstacle to its widespread expansion. esoteric or encyclopedic. 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. gamic as well as non-gamic. Karlsson answered. handpicking the Let’s Play standards they happen to prefer.

it’s hard to make specific predictions. “I come from a computing background and I know how often they end up being wrong!” he says. we will see how the multimedia game walkthrough continues to adapt. “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 . noting he currently receives more volunteer offers than the Archive’s 18. As game platforms diversify and even core titles adopt social characteristics.000 hits-per-day need.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.23 Although relatively specialized within the larger context of media sharing among online gaming communities. and in doing something different. waves off attempts to make projections on where games or social media will go. There's a lot more to LPs now. 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. by day a programmer for Crytek UK. he seems optimistic about Let’s Play’s future. making the practice one in which group membership is enhanced and validated. In the conclusion of our interview.22 Nevertheless.”21 The name Let’s Play itself. Karlsson turned the investigative lens onto me. or any other purpose?”24 .0 websites have interacted to create something far more prevalent and widely recognized than in the past. Let’s Play is but one example in which the practice of game watching and Web 2. a fun invitation to collective media engagement. Baldur Karlsson. asking. or community building. noting that while Let’s Plays will certainly change depending on how games themselves change. both in terms of value-adding to a basic playthrough.either for advertising.

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

showing a different approach from the Playboy Court.” violent video games to minors. PA 16802.S. 2010. 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. is harmful to minors.S. the U. In this hearing. which attempted to adopt a statute prohibiting the sale or rental of “deviant” and “morbid. Regulation. violence. strict scrutiny. the existence of a compelling government interest was questioned. Supreme Court heard arguments from the State of California. First. In this hearing. it might be conjectured that the Court would adjudicate Video Software Dealers Association v. As a result. obscenity 1 INTRODUCTION On November 2. Second. comic books. Supreme Court heard arguments from the State of California. 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. This approach is in line with the decision made by the Court in United States v.” Third. USA ABSTRACT On November 2. which have First Amendment protection and have never been regulated. and the Schwarzenegger decision. Specifically. Playboy Entertainment Group. the U. fairy tales and rap music. New Jersey. KEYWORDS: videogame. and Society in the Gaming Industry New Brunswick. 2010. as a legal precedent. (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. who attempts to adopt a statute that prohibits the sale or rental of “deviant” and “morbid” violent video games to minors.The Game Behind the Video Game: Business. Schwarzenegger Ju Young Lee Penn State University University Park. the Court’s questions revolved around the following three points. USA. the Court asked questions about whether a category of violent video games. it expressed doubt about how the State could determine the “deviant” violence of video games coupled with the question of the definition of “minors. April 8-9. Inc. 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 Court questioned why violent video games should be treated differently from other forms of media content such as violent films. freedom of expression. Lee 1 . This study stemmed from the criticism of the court’s obsession with the practically unverifiable causality and compared the Playboy decision. 2010).” 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. the Court appears to recognize possible harmful effects of video games and the necessity for protecting children from that harm. defined by the California statute. 2011 For Constitutional Control of New Media: Examining the Judicial Obsession with Causality in Video Software Dealers Association v.

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

2009). 2. 1987. New York (1968).1 Video Software Dealers Association v. 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. the implications of the Playboy decision for the evaluation of the constitutionality of video game regulations seem more than that. 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 facts and decision of Video Software Dealers Association v. the ‘least restrictive means’ standard is not always applied by the Court as the third requirement. In this section. 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. Playboy Entertainment Group. to lack serious literary. Schwarzenegger (2009) and United States v. Inc. Specifically.” 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. as a whole.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. Anderson. (iii) It causes the game. Analyzing Schwarzenegger using Playboy lenses would provide a useful framework to evaluate the regulation of new forms of expression. 2005. Inc.1(a)). Anderson. or scientific value for minors. and that content-based restriction is subject to strict scrutiny. Petitioners’ Brief. On the other hand. p. considering the game as a whole. Ragland. Inc. according to Franklin. They also asserted that the Act was not narrowly tailored because there is a voluntary rating system. 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. Schwarzenegger (2009) In October. the State asserted that there is a compelling government interest in “[preventing] harm to children and [enabling] parents to guide their children’s upbringing. 2005. implemented by the Entertainment Software Rating Board (ESRB). (2000) will be reviewed for a comparative analysis of the two cases.” making its enforcement impossible. artistic. whether the government regulation is the least restrictive means has been examined to determine the narrowly tailoredness of the regulation. Schwarzenegger. dismembering. cited in Franklin. and the Schwarzenegger case. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. 2009). only as a precedent that applied the least restrictive means standard to strike down a government restriction on speech. & Lidsky (2005). Playboy Entertainment Group. as a legal precedent. 2009. and that the definition of “violent video game” provided in the Act was “unconstitutionally vague. the state of California enacted a law (Civil Code §§ 1746-1746. which provides information about video game content and therefore helps parents control what games their children can purchase and play (VSDA v. which states that. would find appeals to a deviant or morbid interest of minors. Therefore. is presumptively unconstitutional. & Lidsky. maiming. political. The Court mentioned United States v.5). Nevertheless. v. Schwarzenegger. or sexually assaulting an image of a human being. In many cases. 31) However. 2 CONTENT-BASED RESTRICTION AND STRICT SCRUTINY In First Amendment jurisprudence. Lee 3 . restricting speech. 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. which has First Amendment protection based on its content. “[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.

” The Court found that Section 504.” Section 505 was enacted to protect children from that “signal bleed” problem resulting from imperfect scrambling (United States v..” and that the State must choose. “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. Inc. the 9th Circuit held that “the Act violates rights guaranteed by the First and Fourteenth Amendments. an alternative means “that would further the compelling interest in a “less restrictive” but “at least as effective” way. Schwarzenegger. if any. 47 U. § 561). the court did not uphold VSDA’s argument that the definition of violent video game is unconstitutionally vague (VSDA v. “either or both audio and visual portions of the scrambled programs might be heard or seen. Although scrambling was already being used by cable operators to allow only subscribers to watch the premium channels. §560). 2000. the Court concluded that Section 505. and that the elimination of adult programming infringes on adults’ constitutional right to view it. as well as speakers’ right to “adult speech” (United States v. 2000. 2000. 2009.m. Based on the reasoning above. 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. Playboy Entertainment Group. Inc.. p. p.2 United States v. the court found that the State did not “demonstrate a compelling interest in preventing psychological or neurological harm” of violent video games to minors. challenged the constitutionality of Section 505 by arguing that the Act is an “unnecessarily restrictive content-based” regulation violating the First Amendment. which is Title V of the Telecommunications Act of 1996. Inc. 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. to 6 a. Playboy Entertainment Group. Playboy Entertainment Group.. P.S. 953). 807. (2000) In 1996. 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 . 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. 2. It was assured that the statute must be narrowly tailored to respect “adults' viewing freedom” in order to “restrict no more speech than necessary. Inc.S. the Act was not narrowly tailored because there exist less restrictive means to promote the purported interest. The Court recognized that the extensive adoption of time channeling. 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.Despite the State’s arguments. Playboy Entertainment Group. was unconstitutional because the Government failed to demonstrate that Section 505 was the least restrictive means to achieve the compelling government interest. p.” Applying strict scrutiny. 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. The labeling requirement was also held to be unconstitutional. 806). a content-based restriction on indecent speech protected by the First Amendment. Congress passed the Communications Decency Act (CDA).C. meant the removal of “sexually explicit adult programming” from the time slot outside the safeharbor period. 810-813).” However. Playboy Entertainment Group. and that even if the State established a compelling interest.m. 811).C. Inc. 47 U. and was narrowly tailored. “when children are unlikely to be viewing” (Telecommunications Act of 1996 §505. in effect.” 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.

Schwarzenegger. 664.2 Compelling Government Interest When imposing a restriction on protected speech based on content. 2009. are based on plot lines and could have some artistic values. Accordingly. p. Inc. not merely conjectural” (Turner Broadcasting Sys. p. However. 2009. v. . Schwarzenegger. 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. 3. 2010) of certain video games and argued that violent video games were not protected speech. 2010). 2009. v. 960) In addition. even extremely violent video games. Schwarzenegger. 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. (VSDA v. 1994. Although the State constructed the definition of violent video games by incorporating the three prongs of the Miller standard.programming and violent video games. there is no historical tradition that violent speech was regulated (Oral Argument before the Supreme Court. FCC (1994). enacted the law that directly restricts the speech at issue to facilitate parental controls. video game violence should not be interpreted or treated as obscenity in consideration of the Court’s original intention... the least restrictive means standard will be regarded as the third prong independent of the narrowly tailored means standard. Moreover. The unique implication of the least restrictive means standard will be shown in the following analysis. which could be constitutionally restricted by the California statute. Therefore.1 Qualification of Violent Video Games for First Amendment Protection In VSDA v. 3. Schwarzenegger (2009). video games should be purchased or rented for playing. 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. Schwarzenegger and Playboy will be analyzed based on this First Amendment principle. If the restriction is a contentbased regulation of protected speech. and the California video game law is subject to strict scrutiny. In Schwarzenegger. However. which involved a restriction of violent and sexual video games. In American Amusement Machine Association v. Most video games. Inc. cited in VSDA v. the court questioned the existence of the State’s interest that justified the protection of minors from the alleged harm of violent video games. 962 ). the harm of these materials to minors might be prevented by parental controls of minors’ access to them. the Seventh Circuit distinguished violence from obscenity. Kendrick (2001). p. the government must first demonstrate that there exists a compelling government interest in regulating the speech. in applying strict scrutiny. Access to the controversial content at issue in these cases is very limited. violent video games should be assumed as protected speech. Considering a number of documents – “legal analyses. . That is. Nevertheless. the court required the government to “demonstrate that the recited harms are real.” – including studies on the negative effect of violent video Lee 5 . 960). general background papers. etc. the State pointed out the “obscene level of violence” (Oral Argument before the Supreme Court. and the adult-oriented programming is scrambled and offered on a subscription basis. It is enough for the purposes of this case that we inquire whether it was constitutionally impermissible for New York . California (1973) that expressly limited “the permissible scope of regulation” to sexually explicit material (VSDA v. FCC. p. under the assumption that parents might not fully supervise and control what their children play and watch. Based upon the decision of Turner Broadcasting Sys. the government. it is presumptively unconstitutional and must pass strict scrutiny to be valid. 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. position papers.

Inc. 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. 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. some Justices expressed serious concern over violent video games that enable the minor to commit violent acts. Schwarzenegger. as other courts found (e. 2003. p.g. maiming. 2001. Maleng. at 665. 639-640. Smith.. 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. and songs. Kendrick. Inc. (p. 2004). p.e. Playboy Entertainment Group. the Court assumed that: many adults themselves would find the material highly offensive. Justice O'Connor.e. Schwarzenegger. 2000. 2009). Blagojevich. and urinating on them (Oral Argument before the Supreme Court. Entertainment Software Association v. Entertainment Software Association v.” (Ginsberg v. 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. there is no consensus on the harm of violent speech. at 50) In conclusion. Therefore. 811) This indicates that parents’ concern about their children’s access to harmful speech may constitute a compelling government interest. 2004. with whom The Chief Justice. However. American Amusement Machine Association v. 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. Funk et al. Additionally. Louis County. Lee 6 . In United States v. cited in VSDA v. 1994. 8433) Accordingly.. 2010). p. 959) While it has been recognized that sexually-oriented indecent speech is harmful to minors. 2006. 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. (2000). New York. there are legitimate reasons for regulating it. and sexually assaulting virtual human beings.g. instead of requiring unobtainable proof of actual harm of violent video games. (i. v. setting them on fire. 2004. Anderson.. Inc. 2006) (VSDA v.. 2009. dissenting. as well as the state’s “independent interest in the wellbeing of its youth. Schwarzenegger. Video Software Dealers Association v. In Ginsberg. “the [g]overnment disclaims any interest in preventing children from seeing or hearing [them] with the consent of their 3 Justice Breyer. Interactive Digital Software Associationn v. 2009. the characteristics of video games as a new form of media content should not be overlooked. Aldrich. 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. and [that] when … the material comes unwanted into homes where children might see or hear it against parental wishes or consent. Granholm.” in justifying the application of the lowest level of scrutiny (i. 2004. such as killing. 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. the Court considered the parent’s concern. and Justice Scalia join. In the Supreme Court hearing of the oral argument for VSDA v.” (Turner Broadcasting System. FCC. books.. 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. the proof of the causal relationship between sexually explicit material and actual harm to minors was not required. However. Gentile. the Court should consider the parents’ concern about their children’s access to highly offensive violent video games. p. Playboy Entertainment Group. 2009. rational basis standard) to the prohibition of the sale of sexually-explicit material to minors.” (United States v. cited in Petitioners’ Brief. In protecting children from the signal bleed of sexually-oriented programming channels.. 1968.

cruel. the court ruled that the statute. this retailers’ tendency could reduce the number of video games that are available to adults. and thereby infringe on adults’ constitutional right to view them. p.54saved the Act despite the unconstitutionally broad definition of violent video game in Section 1746(d)(1)(B)5 (VSDA v. Schwarzenegger. and 10 p. in practice. time-channeling adult-oriented programs may result in eliminating those programs from the time period between 6 a..parents. Playboy Entertainment Group. 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. v. Schwarzenegger. 2009. would not likely affect the adult right to play those video games. Section 505 is not narrowly tailored for furthering the compelling interest. 2) is the definition of the targeted speech not vague?. p. 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. If any provision of this title or its application is held to be invalid. 706). signal bleed. Section 505 provides a clear definition of the targeted speech.3 Narrowly Tailored Mean In both Playboy and Schwarzenegger. However.” (United States v. 1044). p. 1998. which means the “partial reception of video images and/or audio sounds on a scrambled [sexually explicit adult programming] channel” (Playboy Entertainment Group. the statute was therefore not narrowly tailored. 811). 2005. Inc.m. 2000.5 states that “[t]he provisions of this title are severable. the court did not uphold their argument.” 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. that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. United States. prohibiting “the distribution to minors of video games involving violence against law enforcement personnel.” 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. Inc. Maleng (2004).. Although VSDA continuously argue that the definition of violent video game covered by the Act is unconstitutionally vague. Inc. Playboy Entertainment Group. in principle. 3. 966). p.m. the government restrictions on speech were found to be not narrowly tailored because less restrictive alternatives to achieve the government end existed. Schwarzenegger. 807. 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. three questions can be asked: 1) can the statute achieve the government’s child-protecting objective?. 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.” (Video Software Dealers Association v. whether the government regulation at issue meets the narrowly tailored means standard can be examined from a different perspective. In sum. p. because retailers might not like to sell “labeled” video games. p. However. 953-956).” Lee 7 4 . The court held that the severability clause in Civil Code § 1746. In Video Software Dealers Association v. or depraved in that it involves torture or serious physical abuse to the victim. and 3) does the statute infringe adults’ right to the targeted speech? In Playboy. Furthermore. Taking this approach. 2000. 811) By the same token. 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. The Schwarzenegger decision can be analyzed using the same frame. indirectly infringing both the adults’ right to play video games and the video Civil Code § 1746. However. 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 statute. This case indicates how the narrowly tailored means standard can be distinguished from the least restrictive means standard. in relation to the decision of Playboy and Schwarzenegger. as well as Playboy’s First Amendment right to transmit “adult speech” (United States v.

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.” (United States v. If parents fail to ask cable operators to block the programming.” (or “voluntary blocking”) which is a content neutral regulation. at the same time. Lee 8 . the court. unlike the Playboy Court. the compelling interest in protecting children from signal bleed would not be served.” are less restrictive and more effective alternatives to a ban on the sale or rental of violent video games (p. 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. Schwarzenegger. Playboy Entertainment Group. most effective means. In United States v. enhanced educational campaigns. The Court recognized that voluntary blocking might not be effective because it required parents to take action with adequate information. The court also pointed out that the Act does not speak about “an exception for sales to minors accompanied by a parent. Schwarzenegger. full blocking. 2009. the relative efficacy of Section 504 compared to Section 505 – especially the time channeling requirement – was controversial. the key point is that “it is the government’s obligation to prove that the alternative will be ineffective to achieve its goals.4). 953) Despite the problems examined above. 2000. and parental controls. it seems evident and clear that there was a less restrictive alternative to Section 505 requiring full scrambling. the government must prove that the alternative means. 3. Inc.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. or time channeling because the statute included Section 504 providing free “targeted blocking. Also. this standard is a safety valve that prevents the unduly restrictive regulation of new forms of media. 967). 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. p.” (VSDA v. (2000). Nevertheless. This leaves many questions that should be addressed in the Supreme Court. at the same time. Contrary to Playboy.” (p.. 815) However. Inc. In determining whether the less restrictive means is feasible and effective. such as the Internet and video games. Also. the legislature must use that alternative. 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. the Court asserted “[i]f a less restrictive alternative would serve the Government’s purpose. 816) Applying those principles to VSDA v.” restricting the minor’s access to video games that are allowed by parents (VSDA v. 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. Schwarzenegger (2009). including Schwarzenegger. 2009. n. 813) The importance of the least restrictive means standard consists in finding less restrictive and more effective means to control the problem and. With regard to the labeling requirement. p. not to stifle the development of new media and new forms of content.” (p. such as “the improved ESRB rating system. In deciding the video game cases. Playboy Entertainment Group. 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. 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 producer’s right to communicate with adult video gamers through video games. 4 CONCLUSION Prior court cases dealing with government regulation of violent video games including VSDA v.

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

2d 823 (M.d. 2006).com/gaming/news/2010/09/72-of-adults-support-gaming-lawswell-kinda. from http://arstechnica. Entertainment Software Association v. Louis County. Wash. 2006). 30 F. United States v.3d 950 (9th Cir. 2005). Supp. Inc. Maleng. 519 F. Supp.D.Kuchera. Supp. Ginsberg v. Entertainment Software Association by March 25th 2011. La. 2004). Video Software Dealers Association v.D. Video Software Dealers Association v.3d 572 (7th Cir. 2d 1034 (N.S. 529 U. 2006). Minn. 451 F. 512 U. 2006). Swanson.1998). Blagojevich. 2d 702 (D. Entertainment Merchants Association v.). (n. Video Software Dealers Association v. Supp. 325 F. United States. 2006 WL 2927884 (W. Cal. 803 (2000). Playboy Entertainment Group. Reno v. Inc.. Blagojevich. kinda. 329 F 3d 954 (8th Cir 2003). 2010. 521 U. 404 F. 244 F. Kendrick. 629 (1968)..3d 641 (7th Cir. Interactive Digital Software Associationn v. FCC. Okla. Mich. Entertainment Software Association v. Del. New York.Supp. 556 F. 2009). 390 U. 426 F Supp 2d 646 (E. Entertainment Software Association v. to ortizj@rutgers. Entertainment Software Association v. Granholm. Turner Broadcasting System. ACLU.D. 844 (1997). 401 F.S.. Lee 10 . v. St.D. Retrieved September 17. B. 2005). 2d 1180 (W.3d 768 (D. 2006). v. Schwarzenegger. Schwarzenegger. 469 F.2d 1051 (N.ars American Amusement Machine Association v.S. Ill. 72% of adults support gaming laws? Well. Playboy Entertainment Group.S. 2001). Henry. 622 (1994).D. Inc. Foti.D.

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

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

Tax concerns were also raised in the U. The court held the arbitration clause substantively unconscionable for several reasons: in particular due to the lack of mutuality (Linden had self-help remedies.3 Second Life ToS). relying particularly on two cases: Bragg v. Linden Research and Evans v. the court focused primarily on the binding arbitration term. which is quite understandable given the recent emergence of this area. In the few cases litigated in the U.g. regulation allows private entities – namely virtual world providers – to retain a lot of control over users of their service. see also Sites et al. Second. but the contentious arbitration clause had changed. without considering whether mutuality was lacking (Linden Research still has the drastic selfhelp remedy of user account termination. If a term is so one-sided as to be unfair to the weaker party. it was held procedurally unconscionable due to Second Life Terms of Service (ToS. and problems with online dispute resolution in virtual worlds).S. and due to the unreasonable cost of arbitration (i. First. at 607-611. the cost of arbitration itself and the cost linked to the arbitration venue in San Francisco) (see Bragg v. 11. 3 PRIVATE REGULATION VERSUS U. as required by California law (see e. the right to terminate users account without notice. duress. The Court held that this mere change was sufficient to enforce that term.1 Second Life ToS). which.g. the issue was whether that binding arbitration term was unconscionable. whereas Mr. 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.g.S.00]” (Goldman.. the Bragg and the recent Evans v. Linden Research.S. The evolution between these two cases.e. the liberal U. privacy risks. such term shall not be enforceable. a report from the ENISA (European Network and Information Security Agency) addressed a fair amount of legal issues originating from virtual worlds (e. (e. the Court applied general laws to this new phenomenon. The case was ultimately settled. if Evans constitutes a precedent. The Federal Arbitration Act provides that an arbitration clause shall be valid. Nonetheless.. 1996). The Court found that both procedural and substantive unconscionability requirements were met. risks to intellectual property (IP). it remains unclear whether any jurisdiction in the U. 12. such as fraud. see Art.S. 681. On the contrary. In casu. at the time of the dispute. By way of example. the People’s Republic of China imposes a personal income tax of 20% on profits from virtual money (Ye. compelled users of Second Life to bring their claims to arbitration in San Francisco. 2007).S. Casarotto. e. or unconscionability” (9 U. Linden Research Inc. (see the National Taxpayer Advocate's 2008 Annual Report to Congress). The same question was brought before the Court in Evans. 517 U. § 2. case).S. O'Melveny & Myers. substantive unconscionability focuses on the one-sidedness of contract terms. shows that control over virtual worlds is not evolving toward more protection for consumers in the U. would hold such terms unconscionable. Linden Research. REGULATION This section will provide an overview of conflicts between the private regulation of virtual worlds and state regulation in the U. v. 2010).C. Linden Research. some regulators are well aware of issues pertaining to virtual worlds. Doctor's Assocs. 2011. subject to “generally applicable contract defenses. Both of these cases relate to the arbitration and the choice-of-forum provisions found in Second Life’s EULA. “before arbitrating a dispute. see also Art. In 2008. Antreasyan 3 .S.There is no legislation that directly aims at regulating virtual worlds.S. which is interchangeable with EULA) being considered a contract of adhesion (Bragg v.S.g. 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. Davis v. Bragg’s sole remedy was arbitration”). In Bragg. 2008). at 605-607). Consequently.

U.S. In Johann Gruber v Bay Wa AG. Lastowka. 2005. 2008. resident (4. some authors have argued that it should be interpreted narrowly (Garcia. on the one hand. contracts (4. courts over contractual virtual worlds disputes involving an E. this section will focus on EULAs’ enforceability under E.4 PRIVATE REGULATION VERSUS E.U.U. virtual world providers usually elect the law of the state where they are headquartered (e. in case of an agreement between a virtual world provider and its user. the laws of the State of California in the case of Second Life. 2009).U. we can validly ask: why would E. it is assumed that a person acting as a “professional” cannot be weaker. 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]. virtual world EULAs will be scrutinized under two important European substantive laws: consumer protection law (4. mandatory rules.1 of Council Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I Regulation). Tang. However.2) will be analyzed because some provisions of these types of contracts may trigger the application of E. The rationale of Article 6 of the Rome I Regulation is to protect the weaker party who is not a professional (Ragno. the law of which state or region governs the contract? All of the EULAs studied contain a choice-of-law provision.S. regulation apply to these agreements and potentially limit their enforceability? In this context.e.3). Then. the application of E. and the contract falls within the scope of such activities.1. even the very few users who make a living in virtual worlds.1 The law applicable to consumer contracts According to Article 6.2). the fact that the private element is predominant being irrelevant in that respect” (§ 54). 4.S. REGULATION After assessing the conceptual importance of virtual world EULAs. who enters into a contract “for a purpose which can be regarded as being outside his trade or profession”. on the other hand.1) – which is not a trivial issue given that virtual world EULAs generally elect U. 2009.1.1.g.3 and 4. regulation. law to U.g. 2009). 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). Therefore.4). and intellectual property (IP) law (4.U. and their conflicts with U.4). by any means.1) and IP contracts (4.U. directs such activities to that country or to several countries including that country. contracts – concerns which “real world” law is applicable.” Article 6 of the Rome I Regulation defines the consumer as a natural person. the jurisdiction of E. Member States’ legislation) could impose to U. 2009). regulation (or E. Essentially for financial and practical reasons. 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. Piedelièvre. which would render such provisions unenforceable (see section 4. regulation. consumer contracts “shall be governed by the law of the country where the consumer has his habitual residence.e. provided that the professional […]. the latter is substantially weaker than the former. This negative definition is widely accepted in E.S. 2010).U. law to govern the contract – and. 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 . Additionally.U. regulation be applicable to “U.U.” EULAs ? There has been several discussions about how general “real world” laws should apply to virtual worlds (see e. The first step will be to justify.U.1 Why would E. i.U. However. 2008. i. another interesting question to be answered in this section – prior to discussing the limitations that substantive E.S. conflict-of-law rules applying to consumer contracts (4. Tang. Duranske. Member States’ legal system (Tang. Accordingly. 4. unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply.

if the user is considered a consumer. Both of these measures are technical.1 to be applicable is that the provider shall direct its activities toward a Member state. First.2). by whatever means.g.g. block website’s access for certain countries or exclude consumers from certain countries to enter into the EULA (Nielsen. 6.e. De Meyer. Second. Another condition for Article 6. legal scholars recommend interpreting it “as broadly as possible” (see e. Nielsen (2007) goes so far as to state that a website. the clear wording of Article 6. Nielsen. 2007). neither will the Directive (on this issue. 2005. 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. see Nishitani. even if a choice-of-law provision may still be valid if it complies with Article 6. 6.1 (according to Art.applied: Giuliano/Lagarde.1 and 6. If including such a term in a EULA would suffice to prevent the application of Article 6 of the Rome I Regulation. if Article 6 of the Rome I Regulation is not applicable. only technical measures should be deemed satisfactory to find that activities of virtual world providers are not directed toward the E. and. on the other hand. In this respect. 3 and 6. 2004). 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.g. e. Bragg who traded virtual goods in Second Life and is an attorney in the real world). 6 Rome I Regulation a contrario. 2009). However. i. Ragno. 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. Thus. 4. Mr. should be deemed to direct its activities to every country in the world. 6. and Tang. However.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. this distinction should not have any impact. it is precisely made outside of their “real” trade or profession. 2009). 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.S. which uses the English language and solicits the conclusion of contracts with consumers. In any case. In that respect. For example. the fact is that its service is available (and widely used) outside of the U.2) (see Tang. from invoking this protective statute. In spite of that term. 13. 2009). see Ragno. 2009. 2007.2). in the context of virtual world EULAs. the provider can take steps to prevent that outcome. Although the wording of Recital 24 seems to suggest that the interpretation of “directed activities” should be narrow.U. It should thus be asked whether the “direction of activities” could be excluded through a EULA provision? It should not. 1980). 2009). the language or currency which a website uses does not constitute a relevant factor”. whether they are not. we could argue that even if they made a profit in the virtual world. Art.2 Rome I Regulation). EULAs cannot derogate from domestic mandatory rules of the consumer’s habitual residence (Art. The latter has been defined above. it would be contrary to Article 6’s purpose (Magnus/Mankowski. 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.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”. it should be noted that Article 6 applies only when a contract is concluded between a “professional” and a “consumer”. Three considerations should be pointed out as regards the law applicable to consumer contracts.1. Accordingly. 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”. thus qualifying them as consumers. First. Regarding users who conduct virtual business in addition to a real world “trade or profession” (e. Third. Antreasyan 5 .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.

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

and thus the only one that will be discussed in this paper. unfamiliarity with the subject matter of the contract. 6 Rome I Regulation (see Nebbia. In a case brought before the House of Lords (in the U. Under Art. whether deliberately or unconsciously. 2010). 2 of the Directive.” Accordingly.3. case law where available (4.e. which states: “1. Openness requires that the terms should be expressed fully. containing no concealed pitfalls or traps. Some authors debate the good faith requirement on the issue of knowing if it is a procedural or substantive requirement (see e.U.1. E. […] Fair dealing requires that a supplier should not. However.U.U. lack of experience. It has to be noted.g.S.g. 2009). see also Stuyck. Stuyck. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair. clearly and legibly. 2008).S. A contractual term which has not been individually negotiated shall be regarded as unfair if.3. with reference to U. it will be important to briefly refer to the future of E. After evaluating its personal scope of protection (4. the benefit of consumer protection regulations in the E. the consumer should be understood in the same way as in Art.1).U. that Council Directives are usually not self-executing. see Quinn.] regulators have been expanding their oversight of consumer markets and expanding the role of administrative agencies in enforcement. 288 of the Treaty on the Functioning of the European Union). the objective scope (i. legal system. 8 Directive.] the consumer's necessity. but the Directive on unfair terms in consumer contracts is particularly relevant. Member States must implement them into their national legislation before they become binding for natural or legal persons (Art. Several Council Directives aim at the protection of consumers. take advantage of [e. Then. In France for instance. to the detriment of the consumer. it causes a significant imbalance in the parties' rights and obligations arising under the contract.1. Member States may adopt more stringent provisions to ensure a maximum degree of protection for consumers (Art. 2010. this particular Directive is a minimum standard of protection. weak bargaining position” (Director Antreasyan 7 .U. legal persons can be considered consumers (Piedelièvre. 4.U. at precisely the time that U. is logically limited to “consumers”. 2010).K. Nebbia. Finally. regulation has the potential to considerably affect the enforceability of U.3. point of view – that safeguard consumers’ interests in Europe (on a brief history of E. 2010). […] 3. contrary to the requirement of good faith.1 Personal scope of protection of the Directive Following what was introduced in section 4.2).3. Member States could adopt a wider definition of “consumers”.2 Subject matter of the Directive: what are “unfair terms”? Unfair terms are defined at Article 3 of the Directive. Moreover. consumers. As Winn & Webber (2006) put it.4. i. “[E. Lord Bingham of Cornhill explained that the requirement of good faith “is one of fair and open dealing. 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.3).e. for practitioners not familiar with the E. unfair terms’ definition) of the Directive will be presented (4.). specific provisions will be evaluated in relation to the unfair terms provision.3 Consumer protection law This substantive E.U. i. since the Directive is a minimum standard of protection. natural persons who do not enter into contracts predominantly for “professional” purposes (see Nebbia.S. 4.4). given that its reconsideration is an important work in progress (4.3.3. virtual world EULAs for E. consumer protection law. consumer protection. contract law has turned away from public regulatory models”. indigence.e.S. 2009).U. That stems from the (very) protective provisions – especially from a U.

In addition.S. 6. As this kind of implementation is more consumer-friendly. which means that each of the list’s terms is deemed unfair.3. Nonetheless. 2010). deriving the unfairness of a term solely from the significant imbalance test. For instance: the requirement that users constantly update their data or see their account terminated. The ECJ was asked several times to interpret the unfairness of contract terms. it refused to rule. it will not be binding on the consumer. Second Life. the assessment of unfairness shall be made by referring.U. but except where issues pertained to choice-of-forum or arbitration terms. 4. which is actually intelligible as opposed to most virtual world EULAs (on the other differences between Blizzard’s U. according to Article 5 of the Directive. The severe verdict held that 31 of those terms were unfair or illegal.General of Fair Trading v.g. However.1 Directive). and E. the French legislator provided that terms must be available in the French language (Law No 94-665 of August 4.3 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. This is convincing because if it were to be understood as a substantive requirement it would merge with the significant imbalance requirement (Nebbia. Users of virtual worlds have to accept EULAs on a take-it-or-leave-it basis.3. see also Nebbia. intelligible language”.U. which is a component of the English good faith requirement (see above). Finally. terms shall be written in “plain. The assessment of the unfairness shall not relate to the contract’s subject matter or to the adequacy of the price or remuneration (Art. The Directive provides an annex containing a list of terms which may be regarded as unfair. On a side note. For instance. Member States. 2010). To comply with this requirement Blizzard uses a different EULA for European consumers. It is interesting to note that the majority of E. Whether that would be satisfactory for French courts remains unclear. 4. That definition of good faith clearly supports the idea that the good faith criterion is procedural. 4. arguing that the interpretation of unfairness lies with national courts (Freiburger Kommunalbauten. The significant imbalance criterion “involves a lack of symmetry in parties’ rights and obligations. whether there was a choice in agreeing to the terms or if there were alternatives. 1994). 2009). to all the circumstances attending the conclusion of the contract and to all the other terms of the contract (Art. 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. EULAs. as most virtual worlds would not pass the “negotiation” test. The French consumer protection organization “UFC Que Choisir” asked the Court to challenge 36 terms of AOL’s EULA. they both provide that only the English version shall be enforceable. see Quinn.2 Directive). Moreover.3). Member States did not implement the good faith criterion (Stuyck. 2010). Widespread terms in virtual world EULAs will precisely be confronted to this test in the next section (4. In its implementation. Furthermore. the rest of the contract remains binding if it is capable of continuing in existence without the unfair terms (Art. or that the seller’s or supplier’s rights or remedies are excessive and disproportionate” (Nebbia. the transmission of subscribers data to third parties without their prior consent. the unilateral Antreasyan 8 . This criterion cannot be evaluated in abstracto.blizzard. it would not be contrary to the Directive – which constitutes a minimum standard of protection toward consumers. and thus have no chance of negotiating with the provider. The question of alternatives or the absence of choice can be left unanswered in this context. which is usually not the case for virtual world EULAs (e. at the time of conclusion of the contract. as opposed to the good faith requirement (that is in the context of virtual world EULAs).html). It has been implemented as a black list in some E. it is interesting to notice that Facebook and Twitter have localized their EULAs.1 Directive).U. the consequence of the fairness test is that if a term is deemed unfair. and FarmVille) with Blizzard being the exception (World of Warcraft ToS are available in French at http://eu. a term requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions ((q) Annex of the Directive) would be unfair. First National Bank Plc). 2010).

g. We have already seen.g. but in various ways. e. in sections 4. consumer protection regulation In 2008. or the non-exclusive assignment to AOL of rights to all content put online by subscribers (see Joslove & Krylov. The Proposal introduces a new way of controlling unfair terms. Member States the Proposal would increase consumer protection. Winn & Webber. 7. and in which such property can be “extorted” from them by the provider (e. 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. 2006). Other providers. In the majority of E.1. For instance. 2010. the E.3.2). where they select a law or forum outside the consumer’s country of residence. Article 38.” Antreasyan 9 .1 and 4. unequivocal and informed. see also the Directive on consumer rights proposal. 34).3 of the French Code of Intellectual Property). Moreover. grant themselves ownership of all IPR relating to the virtual world (Ownership section in World of Warcraft ToS). general waivers are not possible. a general transfer of IPR shall not be permitted in France (Art. which provide that users do not have any virtual property rights. section 4. authors’ rights are not (§29 German Copyright Law). Another “classic” term. L-131.U. means of enforcement in relation to unfair contract terms. 2010).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”. In this respect.U. the right of AOL to terminate the account without prior notice for EULA breach. 2005. Selected examples of such policy found in E. For example.4 The Future of E. Germany has a more rigid approach: only the execution of IPR shall be transferable. and Art.3). mandatory arbitration (Art.U. which hinders users’ access to justice. such as Blizzard.U. it can safely be assumed that EULAs. thus interfering with EULA provisions. Without assessing the legal nature of virtual property. Member States (Tichy.right of AOL to modify the agreement. the standard of protection would be reduced (Brichacek. shifting it from several minimum standard Directives to one comprehensive Directive on consumer rights which shall be transposed “as is” in all E. like Germany or Finland. It changes the approach of consumer protection regulation in Europe. in Bragg and Evans – is invalid in Europe (Quinn. 2010). which are thus exposed to the review of E. E. Commission proposed a Directive on Consumer Rights (Proposal). regards dispute resolution through binding arbitration – a question that was adjudicated in the U. courts. the Court ordered AOL to publish the judgment on its website and erase the unfair/illegal terms from its EULA. 4. Furthermore. These kinds of terms can be found in many virtual world EULAs.2. the Proposal reaffirms.S. the “grey list” includes terms presumed to be unfair (Art. especially in consideration of the efforts/investments committed by users. Consequently. 32 provides general principles to assess the unfairness of terms (which are not listed in any category). Member States will be briefly presented below.4 Intellectual property law As seen above. by terminating their account). 4.U. but in some countries.U.U. Some thoughts about what could be called “intellectual property private policy efforts” will then be offered. 35). Second Life is famous for leaving all IPR for such content to its creator (Art. This provision could have disastrous effects for providers that did not draft their EULAs in compliance with E. This last kind of term could prove troublesome under certain European countries’ legislation on copyright. but an author may consent to particular uses]. courts.U. that choice-of-law and choice-of-forum terms were unenforceable against E.1 Second Life ToS). public policy pertaining to IPR may apply in some circumstances (4.e. could be considered unfair by E. 4. Other terms commonly used in these EULAs will be reviewed hereafter.U.4). Virtual world EULAs routinely address IPR issues pertaining to user-generated content. Such consent must be limited in scope [i. which are classified in three categories: the “black list” includes terms considered unfair in all circumstances.3.U. consumers. regulation (see the AOL case. in a more explicit way.3.

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

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. 485 F. Available at: http://www. Business Lawyer. Wall Street Journal. 2010).S.L. Electronic Consumer Contracts in the Conflict of Laws (Studies in Private International Law). 2005.blizzard. Available at: http://www. 15.K. Standing Committee on the Law of Trademarks. No 04/05564. UFC Que Choisir. 2005).secondlife. Oxford: Hart Publishing. 52.html. Bay Wa AG (Case C-464/01. v. Evans v. 2004). Terms of Use Agreement (December 9.htm Doctor's Assocs.S.htm.Penn. Available at:– /docs/Winn/winn_webber_unfair.Tang.html or in French (December 14. Real Taxes for Real Money Made by Online Game Players. Real Money – Security and Privacy in Massively-Multiplayer Online Games and Social and Corporate Virtual Worlds (2008). Department of the Treasury. 2010). 2010) http://eu. Available at: http://blogs. Available at: http://eu. Bragg v. Second Life (Linden Lab) Terms of Service (December 2011).eu/media/press-releases/2008-prs/virtual-worlds-real-money. O'Melveny &– _Official:Intellectual_Property.G.booyah. Documents FarmVille (Zynga) Terms of Service (November 30. 2010).id=202276. Business-To-Consumer Internet Merchants.U. K.. Sep.ericgoldman.3d 1066 (9th– (February 9.enisa. Available at: http://www. Terms of Use Agreement (December 9. Director General of Fair Trading v. 2010). 2010). 517 U.pdf. Available at: http://www. Available at: http://blog.wsj. S. Trademarks and the Internet (2010).europa.blizzard.– com/en-us/company/legal/wow_tou.irs. M. 3. Linden Lab Official: Intellectual Property. & Webber. (2006).S. Newspaper and website articles Goldman. Linden Research Inc. 487 F. J. J. 1996). 2d 593 (E. 1. Apr. World of Warcraft (Blizzard) E.H. Antreasyan 12 .uk/pa/ld200102/ldjudgmt/jd011025/fair-1. Jan.. Available at: http://www. MyTown (Booyah) Terms of Service (October 6. Available at: http://us. (2009).com/frfr/company/legal/wow_tou.–about/terms-ofservice. Davis v.D. Winn. Industrial Designs and Geographical Indications. Supp. SCT/24/4. E. European Network and Information Security Agency (ENISA).– publications. Ye. 2008). 2007). Cases AOL France v. Internal Revenue Service. Pa. Hofstetter (Case C-237/02. 681 (U.00. Freiburger Kommunalbauten v. World of Warcraft (Blizzard) U.– com/en-gb/company/legal/wow_tou. Linden Research WIPO. Available at: http://secondlife. R.wipo.blizzard. Johann Gruber v. First National Bank Plc [2001]– corporate/tos.juriscom. The Impact Of EU Unfair Contract Terms Law On Linden. 62. Second Life Forum Selection Clause Upheld – Evans v. Cour d'appel de (Court of Appeals of) Versailles. 20. case (E.parliament.html. National Taxpayer Advocate's 2008 Annual Report to Z. Available at: http://wiki. Available at: http://www.php.pdf. 209-228. (October 31. Available at: http://www. Virtual Worlds.D. 2011). 2007).

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

p. 2004). 1981). An exception is W. Sarony. of reality and expression. completely discounting the role of the player in shaping the game display. 1982). 2010. Nevertheless. 2005. Pac-Man (Atari v. 1884.18[H][3][a]) The purpose of this rule has been somewhat obscured by time. a strike against any fair use defense.need to identify precisely in the law what it was in those works that was protected. 2004. and substantial control over the pace and sequence of events. however. game designers own the audiovisual display of the game each time it is played. Boyden 2 . They contain aspects that are uncontroversially copyrightable. in the same way that reading a book or listening to music is beyond the reach of copyright. But video games in play contain something else: the contributions of the player. But whereas the problems for photographs lie in the mix of elements at the moment of creation. Those decisions involved early arcade games such as Defender (Williams Elecs. § 2. Artic Int'l. which would mean that a player recording his or her own performance is engaged in a verbatim reproduction of the audiovisual work. Galaxian (Midway Mfg. It has been blackletter law for decades that “games are not copyrightable. Courts continue to struggle with photographs. Am. (Farley. Ironically. Those early decisions have not been revisited by either courts or scholars. the player often has unfettered control over the camera angle. Asteroids (Atari v. v. (Burrow-Giles Lithographic v. the problems with video games lie at the other end of the process: in the mix of activities at the moment of perception. it was decided that such games are essentially audiovisual works just like cartoons. the case law involving pre-electronic games at some level recognized this difficulty and adopted a rule to address it. Photographs pose challenges about authorship. Mannion v. for example. with Hemnes concluding that such questions were of “academic interest” only (p. video games pose challenges about readership. 174) and William Patry (1983. Joss Nichols (Nichols. § 2. 2009). p. 2004). the relationship between players and game developers (Balkin. the rule insulates the activity of game play from the reach of copyright. Since those player contributions cannot be part of the video game copyright. Courts ultimately resolved the issue by scrutinizing the act of taking the photograph in order to locate the discrete creative elements in its creation. video games. because the activity of game play represents the audience’s encounter with the work. N. Atari v. Artic Int'l.18[H][3][a]) Although there is now a voluminous legal literature on video games. Philips. but in the context of an argument that players own the copyright in video game play. 2011) That is. accepted the classification of games as audiovisual works and rejected the challenges posed by game play. Instead. 1981). Fairfield. But as the number of forms increased. who has questioned the continued vitality of the old arcade-game cases. (Boyden. could be considered the “director” of the movie that appears on the screen. 181). or enduser modifications (Ochoa. 2010. v. 1982. 52).” (Nimmer & Nimmer. 1981).” Photographs were an early example. Williams. Amusement World. That rule has yet to be applied to video games. it became more difficult for courts and legal scholars to identify the acts of authorship in each. early in the history of video games. 2004). as they more saliently than other media present a troubling mixture of fact and fiction. by contrast.” (Nimmer & Nimmer. Lastowka & Hunter. Thomas Hemnes (1982. under current law strictly applied. The player. such as virtual property rights (Fairfield. Coors Brewing. that scholarship has largely focused on other issues. the game maker’s creative expression. 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. from the activity of players in playing the game. In today’s games. 2006) Video games occupy a similar place in the copyright universe. 2007). in other words. 2005. the “creative expression. like photographs. pose challenges for traditional copyright doctrine. 1983). Armenia. such as software code and the graphical elements that appear on the screen during play. but I have recently argued that it serves the function of separating the copyrightable elements of the game. and Centipede (Atari v. Burk.

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

created by playing the video game . p. 1996. they argued that for similar reasons the game in play was not “fixed. The leading case of Stern Electronics.2 Second. This has two consequences of practical significance. but does not duplicate any of the earlier game’s ostensible features. In those early cases. 3. Stern involved the early ‘80s arcade game. courts have held since the early days of arcade games that video games should be treated as ordinary audiovisual works. In reviewing whether the arcade game Breakout should be registered. v. are also not registrable since they are created randomly by the player and not by the author of the video game.” (Atari Games Corp. First. not systems or even games. in particular in the audiovisual display of the game in play.1 Video Games as Audiovisual Works Courts first confronted video games in the early 1980s. Second. Academic Games League. what appeared on the screen was to some degree under the control of the player. v. (Fig. In the case of games. stripped of all of its ornamentation. shortly after video arcade games became a commercial and social phenomenon. playing a game is not the performance of a copyrightable work. 1) The defendant in Stern was unsympathetic. First. 616) Playing a game in public. All of the designed elements of a game can be copyrighted. It is important to reiterate that the rule against the copyrightability of games does not leave games unprotected. . First. therefore. Kaufman (1982) is typical. not the author. The defendants tended to make two related arguments. 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. a side-scroller in which the player maneuvered a space ship over mountains while trying to destroy targets. Scramble. Defender.primarily express ideas to users. . because the game itself is not copyrightable. (Allen v. and Galaxian generated a wave of knock-offs or close copies by manufacturers attempting to share some of the game-makers’ good fortune. 1989. Instead. the Office initially concluded that the “images . 880) Boyden 4 2 . 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. the scholarship on video games suggests an alternative argument: that video games are importantly different from nonelectronic games. The financial success of early arcade games such as Pac-Man. Space Invaders. p. because it was not wholly original to the author of the game. . several defendants tried to challenge the validity of the plaintiffs’ copyrights in their video games. But the game itself. they argued that the audiovisual display of the game in play failed the originality requirement. Asteroids. a game that plays like an earlier game. but rather serve as empty vessels into which the users pour meaning. Lawsuits followed. recorded—each game was different. does not infringe. Second.” that is. . it had produced a blatant Figure 1: Scramble in play mode This argument received some support in the Copyright Office. The infringers were emboldened by not only the gold-rush atmosphere of the market. Inc. cannot. Oman. 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. that meaning is in the form of the choices made by players. is not an infringing public performance. in that they contain far more expressive content.

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

but only indirectly. . 2) Game designers may hope a given scene plays out in a certain way. somewhat baffling to an outsider. Game designers create experience. You can only design the rules that give rise to it. known as the ludology-narratology debate. mood. themes. But the rule against the copyrightability of games is not a rule based on the lack of complexity in the expression contained in games. they. p. It is rather a rule based on the fact that games are systems. Boyden 6 3 . setting. together with accompanying sounds. As Salen and Zimmerman (2004) note. however. . unlike nonelectronic games. 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.” (Copyright Act. dialogue. dialogue. in the same way that a reader’s reading of a book is the way that the book is experienced. 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. 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 . Video games. none of that matters. it will not vary at all from one showing to the next. rather.3 Similarly. (Fig. characters. 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. (Jenkins. ix). but rather the vehemence with which it is carried out. and a sequence of events. setting. (Mateas & Stern. It makes sense to look at these elements in films and television programs because in such works. 2006. 3) Video games obviously fall short of this standard. A player’s play of the game is the way the game is experienced.eight specifically named categories listed in the Copyright Act. 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. pace. “[a]s a game designer. 1990. 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. It is not the substance of the debate that is confusing. pp. p. if any. 1976. 1991. others do not. § 101) Modern video game displays are not typically. and once the scene has been captured correctly. mood. (Shaw v. . pace. themes. the act of play is a game’s middle ground. characters. (See Aarseth. and various algorithms to calculate when and how to arrange them into a display.” (p. Directors such as Stanley Kubrick may make dozens of attempts to ensure a single scene occurs exactly as he envisions it. 1997. you can never directly design play. Juul. 2005a).2 Video Games as Systems It might be objected that even if video games are not audiovisual works. 3. the precise nature of the display of the work is the result of a series of careful choices by the authors. 1356-57). there are only the elements of that display. and sequence of events. That is. but in general they determine the average player response and hope for the best. 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. 672-73. Lindheim. 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. That act of reading is outside of the scope of the author’s copyright in the creative material in the book. and still others lack any meaningful narrative at all. unlike a film reel or even digital media such as a DVD. there is in a modern video game no fixed set of images to display to the player. often contain plot. Courts traditionally look for creativity in audiovisual works by analyzing a discrete set of elements: plot. Somewhat dangerously. 2006) Clearly some games have important narrative aspects to them. they are generated by the program from abstract elements and data in response to the player’s actions. a series of images that are permanently embodied (“fixed”) in the work. For purposes of this paper. But that classification affects how courts determine what the protectible expression is in that type of work. 168) This quickly leads to a thicket of literature. for example.

21) model for all ergodic literature. 37). visual effects. characters. which alters the display and sounds. 168). but the display of any particular game session is not a performance. 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.component of a feedback system that is a necessary component of the experience of the game. and more. and thus beyond the reach of the game designer’s copyright. (Fig. 1997. 3) The player’s thoughts and reactions in response to the game shape his or her operation of the game’s controls. because the video game in play is beyond the scope of the copyright. A player recording themselves playing may well copy some The diagram in Fig. under the theory espoused here. 3 resembles Espen Aarseth’s (Aarseth. a particularly clever trap is an uncopyrightable gameplay idea. For example. which in turn affects the computer running the game. Hosting a game server might well be a public performance of the underlying game program. lighting. playing a video game is not a performance of a work. First. many of the component elements of a video game audiovisual display can be protected: textures. All of these elements exist at what Ernest Adams (2009) has called the “presentation layer” (p. or the solutions to what Katie Salen and Eric Zimmerman (2004) call “a second-order design problem” (p. the affordances it gives—and also aspects of level design that are intended to shape play. (Salen & Zimmerman. music. What is uncopyrightable are the design elements that give rise to game play. text. 2004. 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. Some other results follow from the argument here. objects. scripted sequences. That includes the “rules” of the video game—the laws of physics it simulates. Just like nonelectronic games. plot. along the same lines as the idea of color groups in Monopoly or triple-word scores in Scrabble. they are directly conveyed to the player. Boyden 7 4 . which in turn is perceived by the player. because game play does not directly interact with and alter the copyrighted software. sound. of operator. dialog. p. the limits on what the player can do. it is inseparable from the player’s private apprehension of the game. and medium. pp. producing new responses. a situation put into the game in order to encourage emergent play. 315-16)4 While part of this loop is external to the conscious mind. which means that playing a video game in public does not infringe on the copyright owner’s public performance right.

Q. (CCH) ¶ 25. Formgen Inc. D. Inc. 99 (1879). Crawford. N. That is. 672 F. 746 (E. 1976. 217 U. (1984). 2043-2098.): New Riders Press. Ill. a noninteractive recording as opposed to an interactive game. 4. (2009). 22) have noted the difficulties that would arise if this were not the case: imagining a different ending to a movie might otherwise be infringing. But this limit on copyright has significant consequences beyond the realm of video games. . Copyright Act of 1976.S. Inc. J. Cal.3d 614 (9th Cir. 111 U. E. Copyright does not reach the act of reading. 89 F. news reporting. Ars Technica. Boyden.2d 878 (D. p. Burk. Formgen. pp. F. § 102 (1976). or research. Selden. L. Caron. namely that copyright ensures a return on the work of creating and distributing creative expression. Fundamentals of Game Design (2d ed. C. Supp. (Micro Star v. treating video games as copyrightable only in the elements contained in the presentation layer also helps to analyze those cases where a third party has created some sort of add-on program or level for the game. (2004). (2011). 1981). M. 101 U. 1989). Ltd. circulating any of the game’s original code. Baltimore: Johns Hopkins University Press. Boyden 8 . Cir. Armenia. (2008. Games and Other Uncopyrightable Systems. v.. who will likely have a compelling fair use defense to any claim of infringement based in part of the limited nature of copyrightable information captured in a recording and its dissimilarity from the original work. Burrow-Giles Lithographic Co. The Art of Computer Game Design. Atari. June 18).S. 18(2). It helps to explain the traditional categories of protection under the fair use defense. Md. Baker v. involve someone’s attempt to understand and grapple with the meaning of a work. Gaming Expected to Be a $68 Billion Business by 2012. L. Thus the defendants in one case were held liable for selling a collection of add-on levels for Duke Nukem 3D. 3. 1998). 547 F. E. Inc. Inc. . J. Balkin. v.S. requiring a license. International Review of Information Ethics. v.328 (N.of the protected elements within the “presentation layer” of the audiovisual display. 1982).C. 439. much like play grapples with the meaning of a video game. § 107) All but one of those. however. (Lewis Galoob Toys v. B. 888 F.C. Nintendo. for example: “criticism. news reporting. Electronic Gaming and the Ethics of Information Ownership. Williams. Corp. treating the game display as a collection of discrete elements strengthens the hand of the player.” (Copyright Act. however. 39. 1981). (2005). In that case. Academic Games League of America.. Virginia Law Review. Oman. Cybertext: Perspectives on Ergodic Literature. 5 CONCLUSION The rule against the copyrightability of games touches on a deeply significant concept in copyright law. Amusement World. copyright’s exclusivity stops at the moment the user encounters the work in order to avoid intruding upon that process. As copyright law struggles to adapt to the information age. Second. 1981). Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds. (1997). CA: Osborne/McGraw-Hill. and should not have been held liable. Berkeley. 90(8).S. teaching . scholarship. Allen v. v.D.P.D. v. comment. E.. 1992. Rep. 17 U. Atari Games Corp. v. 1998) Viewing a video game as a sort of audiovisual work encourages courts to find that any alteration of the audiovisual display is an adaptation of the work. video games will likely pose important test cases in establishing its new boundaries. 222 (D. evidently. 53 1884). Inc.2d 607 (7th Cir. defendants should only be held liable for infringing adaptations if they copied those elements. 42-45) and Jessica Litman (2001. Copy.. Atari. Sarony. But if what is copyrighted in a video game display is only the individual elements. Philips Consumer Elecs. Atari. REFERENCES Aarseth. . Micro Star v. Atari.. Adams. Inc. Am. The defendants in Micro Star were not. George Mason Law Review. Scholars such as David Nimmer (1996. 1996). Nov.

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