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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

http://bit.ly/aKHOmu

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

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

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

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

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

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

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

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

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

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

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

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

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

Holland and Leinhardt (1970) used triadic census approaches to examine the distribution of structural features across various network types. and interpret the resulting distributions of tendencies using contextual information about the networks. it will be possible to measure the similarity between networks based on these parameters estimates. et al. represent the similarities among networks. to compare 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. 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. Thus. 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. these are differences of scale rather than process. the most challenging type of comparison involves networks of different sets of actors of very different sizes and with substantially different relationships. The majority of network analyses are cross-sectional case studies of individual communities and do not attempt to compare networks.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. The Add Health studies measure friendship networks of adolescents across different schools permitting analysis of general properties of adolescent friendship formation (Moody. 2008). 2006. to the same degree..” By characterizing each network using a statistical ERGM capturing the likelihood for the graph to assume structural properties. A third type of analysis examines when the same relation is measured on two or more sets of actors. Monge & Contractor. However. 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. Despite the fact that networks can vary substantially in size and density. 2003). Studies of organizational networks reveal informal structures based on trust and friendship overlapped and revealed latent leaders (Kilduff & Krackhardt. It is possible to calculate pair-wise 14 . in turn. 2001).

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

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

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

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

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

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

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

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

These other networks may have substantively similar local and global metrics or very different structural properties.be used as a basis for comparison. the completely connected graph in which a connection is present between every pair of nodes. then reciprocation occurs more often than one would expect by chance. if high levels of reciprocation are found in the observed network. If the parameter is negative. Using a Markov chain Monte Carlo maximum likelihood estimation (MCMCMLE) approach. 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. a directed network of just 17 nodes has 2272 potential configurations which means there are more unique configurations for a 17-node network (2272 ≈ 7.58x1081) than there are atoms in the universe (~1x1080). statistical models relying upon sampling and maximum-likelihood estimation are employed instead to generate parameter coefficients for p*/ERG models. a distribution of random graphs is simulated based on a starting set of parameter values. If the parameter for reciprocity is equal to zero. In the friendship network example. However. 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. then reciprocation occurs purely by chance. and the process 23 . there are possible permutations for the network while a directed graph has possible permutations. If this parameter is positive. For a directed graph. these values are refined by comparing the distribution of the simulated graphs against the observed graph. The number of permutations for a network is a function of the number of nodes (n) it contains. The estimation of parameters relies upon a maximum likelihood criterion to choose parameter values such that only the parameter which maximizes the structural tendency found in the observed network is selected for the model. then reciprocation occurs less often than chance. and a huge number of permutations in between. Thus. the sample space permitted by networks’ relational data is enormous because the addition or removal of a single link between any pair of actors necessarily results in a different network. The whole sample space of a network includes the completely empty graph in which no connections are present between any nodes.

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

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

--. 2008.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. 26 . E=295). The change in the level of fit against a baseline (such as a model containing only a single. This network has 1.239 connections. This network has 1. the Caviar data is also directed longitudinal data of criminals and co-offenders which makes it a direct real-world analogue against which we can compare network statistics and dynamics.138 characters and 1. 2006).318 connections. in which one character gave another an item but nothing was reciprocated in that transaction. The second is bartering. a model with a simple set of parameters is estimated to use as a baseline. Wasserman.022 characters and 768 connections.sending only an item. 2007). 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. The model fits are reported in Table 1. Morselli & Petit. in which one character gave the other party currency but nothing was reciprocated in that transaction.323 connections. The third is donations. in which the transaction involved the exchange of items rather than currency. This network is the largest with 5. et al. basic parameter like the number of edges in the network) can be assumed to better predict the observed network. The fourth and final is gifts. First. This network has 1.461 characters and 9. small changes in fit indicate a relatively poor model while large changes in fit suggest a better model.519 characters and 1. We use these as a heuristic to evaluate model fit. Although orders of magnitude smaller in network size (N=110. Subsequent models are built upon this skeleton and their fit are compared against the baseline. Modeling approach Table X describes the relative fit as measured by maximum likelihood estimation as well as the Akaike information criterion. Values closer to 0 indicate superior fit.

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.       Out edge: the tendency for characters to initiate transactions. These parameters are visualized in Figure 2. donation.   Cyclicality: the tendency for characters to engage in indirect exchange or generalized reciprocity. and gifting). to the same degree. We review the substantive interpretation of each of these parameters below wherein transactions refer to the particular relationship (market exchange.--. Out 2-star: the tendency for characters to initiate many transactions. bartering. Transitivity: the tendency for characters to be embedded within hierarchical relationships --. By visual inspection alone. 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. In 2-star: the tendency for characters to be the recipient of many transactions. Mixed 2-star: the tendency for characters to be brokers between other characters. Reciprocity: the tendency for characters to initiate transactions with characters they previously received transactions from.Table 1 about here --- The full model incorporating all of the parameters of interest are the best fitting models across the five networks. This analysis is primarily motivated by Faust and Skvoretz (2002) definition that “networks are similarly structured to the extent that they exhibit the same structural tendencies. In edge: the tendency for characters to be the recipients of transactions.” As such.

the positive estimates for the in-two-star and out-two-star parameters suggest that. 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. However. However. First of all. First. We also find that transitivity plays similarly strong influences in both the gifting and CAVIAR network. 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. Reciprocity also plays a similarly strong effect in both networks. there are substantially more instances of characters engaging in multiple trade incoming and outgoing gifting transactions than one would expect by chance alone. Second. the negative mixed-two-star parameter implies that actors engaged in brokering transactions are relatively rare. 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. net of the effect that ties are relatively rare in the network to begin with. but its significant absence for the type of transaction it ostensibly best captures whilst matching the same behavior observed for drug trafficking 28 . Across the four in-game trade relationship types as well as the CAVIAR trafficking network.the CAVIAR network. 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. 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. This suggests that the gifting in online transactions exhibit similar structural tendencies as we observe for an offline drug trafficking operation. This comports well with both theoretical and intuitive notions that people choose their trade partners selectively rather than randomly. 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.

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

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.

30

Figures

A

B

A

B

Market exchange

Bartering

A Donation

B

A Gifting
Figure 1: Four relationship subclasses

B

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.

31

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 *** *** *** *** *** *** ***

32

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

with a focus on two specific activities: on-line and mobile videogames. Finally. the global video game market is expected to grow from less than 30 billion to over US$ 70 billion. In the UK. section 3 examines the impact on on-line and mobile distribution of video games. August 2010. Assessing the future competitiveness of the EU video games software industry” was released in November 2010. an analyst from consulting firm Deloitte. 1. on internal and external expertise.org.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. In the period 2004 to 2013. it stresses the essential role of hardware owners in the industry. 2007). This report reflects the findings of our study on the video games industry. This paper is organised as follows. and concentrates on one aspect of this research. million US$. the video game market outgrew the cinema market in 20092 and playing games online is now as popular as downloading music and video.ofcom. its revenues and investments give the video games industry a relevant position among other mainstream media industries (Deuze et al. said that the global games industry now makes more money than the box office" 3 Ofcom Communications Market Report. OECD (2005) mentioned that US games revenue in 2001 had already surpassed that of film box office tickets. Wednesday 24 March 2010: " Rupert Clark. and the progressive integration of media services and technologies. 2 Cinema market: theatres and DVD. Available at: http://stakeholders. It also emphasized the less noted role of middleware. The global video games market In less than 40 years. Section 2 investigates the roles of different actors in the value chains and business models on which revenue schemes are based.pdf 2 .2 Introduction This paper is based on a comprehensive survey of the video games software industry with a focus on the EU comptetitiveness1. products converting into (on-line) services. literature reviews and desk research.. The research is based on our syntheses of the current state of the knowledge. Section 1 introduces the available data on the economic dimension of the market. as well as several validation workshops with industry participants and experts. Figure 1: Global video games market. software games developed from scratch into an industry producing billions of profits and today. PWC 2009 1 The report “Born digital/ Grown digital. BBC News.3 1.uk/binaries/research/cmr/753567/CMR_2010_FINAL. 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.

an increase of 28% against 2006 (ESA. Germany. filmed entertainment. Italy. In comparison. the size of the global market for video games in 2009 was estimated at €46 billion.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. recorded music. the US and Japan are the main markets for video games. the global value of video games sold worldwide was US$ 43. consumer magazine publishing. book publishing. According to IDATE (2008). and business-to-business publishing. The former is expected to grow by almost 70% to over US$ 70 billion by 2013.5 billion. in 2007.5 billion. or €26 billion. It is estimated that in 2009 these regions accounted for over one half. in 2009. whereas the latter is expected to grow by only 17%. 3 . video games. In 2009. newspaper publishing. when compared with the entire market for media and entertainment products and services. internet advertising. the recorded music and filmed entertainment represented 2% and 6% of the global media and entertainment market respectively.3 Other sources report similar values of the size of the video games market. the combined computer games and video games sales in 2007 accounted for US$9. In spite of being still a rather young industry. Developed regions such as Europe. 1. TV advertising. The growth dynamics forecasted for the video games sector are exceptional. Media & Entertainment includes: internet access fees. 4 5 Europe is the core market of this region. For the US market alone. the video games market accounted for around 3% of the media and entertainment market. Spain and UK. video games already managed to become a significant and growing share of the media and content industries. 2008). TV fees. The Europe-Middle East-Africa (EMEA)4 region is the biggest market for video games: France. radio.5 According to these figures. of the video games market. accounted for nearly 30% of the global video games market.

i.4 Table 1: Global video games and global media and entertainment market. 2007-2013.495 1. Radio.068 1. whereas the value of software is expected to increase to over €16.173 * Media & Entertainment includes: internet access fees. Filmed entertainment.613. PWC 2009 2007 2008 2009 2010 2011 2012 2013 Total Video Games 43. in million euro. Figure 2: Value of hardware and software in video games.788 1.089 58. by segment. Business-to-business publishing 1.409 1. by 2012 the value of console hardware will drop to around €6.390 55. million US$.941 1. 2008 – 2012.604 67. It is estimated that this gap will increase even further and. Video games.373. whereas the value of software dedicated to this platform exceeded €12.026 73.506. Consumer magazine publishing.258 million. IDATE 2008 4 .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. Recorded music.587 million.408. TV fees. TV advertising.383 61. internet advertising. Newspaper publishing. The value of home consoles was around €10.359.291 million. Book publishing.460 51. PC and wireless.354.950 1.513 Total Media & Entertainment* 1.e.411.559 million.

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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.

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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
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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.).

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

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

6% of modules are produced by companies based in one of the European Union countries10. which could bypass the publishers and create different revenues streams.9% of the total. 43. 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. Unity3d. single user online games) are offering users a new role. growth in the number of users and demand. The United States provides 93 of the 212 analysed items. 3. 10 . 19 by companies in France. Mobile games are challenging the monopolies of existing operating system owners and are offering a new distribution channel to developers. The figure shows that 39. June 2010. Steffen Toksvig. 35 items. presentation at the IPTS workshop. 12 in Germany.10 Figure 4: Geographical distribution of middleware producers Source: IPTS elaboration on information provided by GameMiddleWare. Moreover. come from other countries. and on the other 10 Middleware from Unity3d (a Danish firm) is used by 10 to 20% of the top 100 games. This shows that the dynamics of this market are driven by technological novelties and new applications. 14 of these have been developed by firms in Canada. Since 2004.5% of the total. 4 in Ireland and 4 in Sweden.org (accessible online at: http://www. online games (Massively Multiplayer Online Games . driven by the increase in the number of broadband subscribers. the online and wireless market has grown with remarkable rapidity. and the transition to handheld devices and the newest generation consoles (PWC 2009).1 Online value creation Online games benefit most from the increase in electronic diffusion of content. as this guarantees.gamemiddleware. 22 were developed by companies in the UK. 5 in the Netherlands. or 16. on the one hand.org/ (last accessed: 17 December 2009). 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 . the innovation in available games. 3.and also easier to play browser-based. Of these 84 products.

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. each controlled by the console's hardware provider.11 hand.com/view/de_DE/de/branchen/article/5bcc6816ec574210VgnVCM100000ba42f00aRCRD. and on a few. 11 . at the same time they attract advertising which brings an added source to the mixed revenue models. ISPs act as content aggregators and provide portals for game distribution which allow easier promotion and localisation of new games by users. leaving distributors with a marginal role. Source: http://www. As regards demand. The publisher. (2008). and additional content. 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. two browser-based game companies (Bigpoint. music. directly distributes games.11 Publishers can also opt to distribute games through Internet Service Providers (ISPs). Independent application stores are growing rapidly. the distribution of online games has been progressively concentrated on some internet portals serving the PC-based side (like. consumers are 11 Disintermediation is also taking place in the case of off-the-shelf games. network platforms for console games. Valve's Steam Service or Manifesto Games). and opening new subsegments as it becomes possible for millions of players to interact simultaneously. are making the most out of their online possibilities. and related contents and communities. without the need for a distributor to act as intermediary between the publisher and the retailer: i.12 providing online games access to PC users together with the possibility to download not only games but also movies. among many others. 12 For instance in Germany in 2009. which normally allow a non-linear interaction with the user. multiple entry points and continuously updated plots enriched by the inclusion of user-determined content. Clearly. cutting out the role of the distributor. where the increase in structure and negotiation power of big retail chains has allowed them to interact directly with publishers. 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. In the past years. allows games to be improved by adding new functionalities. Video games. console-oriented gateways are also increasing their importance and audience by differentiating the type of content and services made accessible to users. A whole part of the core business involving publishers. resources and services made accessible to users. they are more and more offering different kinds of digital contents and resources.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. "disintermediation" is taking place.deloitte. very powerful. Having started as gateways for accessing video games. in many cases. Independent application stores and console-oriented gateways are differentiating the type of digital content.h tm 13 The key dynamics of video games in general are described in a more general framework in Mateos-Garcia et al. Gameforge) were among the five fastest growing IT companies of the country.e. 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. Going online enables them to exploit the promises offered by massive multi-player interaction: the creation of persistent virtual worlds and characters. In the same way.

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

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

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

Abadie. Compañó. D. Simon. 2008 Sales. M.ec. Game Developer Top 20 Publishers 2009 Report. Abadie. Feijóo. C. "Les marchés à deux versants dans les médias". Objectives: Analyse the future competitiveness of the EU ICT sector in emerging ICT technologies. F. Bowen M. 282-292. Content and applications in the mobile platform: on the verge of an explosion. RFID. Maghiros. C. M.. Paris. I. Essential Facts about the computer and video game industry. De Prato. New Delhi and Singapore. (2010) “Born digital/ Grown digital. ESA Entertainment Software Association (2009). Chapter 26. 2. forthcoming). COMPLETE aims at producing 6 reports. Bogdanowicz.. R.. Feijóo. M. ESA.eu/publications/index. The Professional Identity of Gameworkers. Dalloz. Feijóo. Robotics. Sage Publications.... Seville: Institute for Prospective Technological Studies Game Developer Research (2009a). ESA Entertainment Software Association (2008). F. London. (2010. J. Essential Facts about the computer and video game industry. References Bounie. 26(3).. (2008). COMPLETE is co-financed by JRC-IPTS and DG ENTREPRISE and INDUSTRY of the EC. & Pascu. pp. Bacigalupo. Exploring a heterogeneous and fragmented digital ecosystem: mobile content.cfm Deuze M.. & Gomez-Barroso.. Demographic and Usage Data. Assessing the future competitiveness of the EU video games software industry” available at: 
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(2009). (Eds). IDATE.. Leadbeater Charles (2008).pdf at: PriceWaterhouseCoopers (2009).org. 35. 12 May 2005. Geuna A. The Video Game Lighting Rod. Constructions of a new media technology. 41-54.juniperresearch.uk/binaries/research/cmr/753567/CMR_2010_FINAL. IN1004828WHT.pdf IDATE (2008). European Commission DG Information Society and Media. Genvo S. International Journal on Media Management. Norwegian Ministry of Culture and Church affairs. F. pp. (2009). Interactive content and convergence: Implications for the information society .inaglobal. & Solinski B. Montpellier. (2010).. Home Video Game Industry.. Profile Book. OECD.com (last accessed: 12 March 2010). Jong H. We-think: Mass innovation. Innovation and Strategy of Online Games. Distribution and Access.S. p. Working Party on the Information Economy.34. Digiworld Yearbook 2009. IPTS. 2008. 6:4. W. pp. Mobile apps . "The video game: a cultural asset ?".in-stat. Ioannis Maghiros. Rightscom Ltd (2006). 523–550. DSTI/ICCP/IE(2004)13/FINAL. A Structural Analysis of Market Competition in the U. Top 50 Developers 2009. IDATE. OECD.16-17. IDATE (2009). Williams Dmitri (2003). Steinmueller W. INA Global. Digital Broadband Content: The online computer and video game industry. The Future Digital Economy: Digital Content Creation. Retrieved from http://www. The Digital Entertainment Revolution. Global Entertainment and Media Outlook 2009-2013. Game Developer Research (2009c). Available http://stakeholders. Information. and Corina Pascu. Report 14 (20072008) to the Storting.A Study for the European Commission DG Information Society and Media. Fabienne Abadie. The Future Evolution of the Creative Content Industries.Three Discussion Papers. University of Michigan. available at www. priceWaterhouseCoopers. Sevilla. 2006. CMS Hasche Sigle.ofcom. http://www. Digiworld Yearbook 2008. USA. F. October 2006.E.org/dataoecd/54/35/36854745. 10th Annual Edition. Final Report. Video games. not mass production: The power of Mass Creativity. 16 . Spain. 4(1). Imperial College Press. Montpellier.oecd. Ofcom Communications Market Report. Williams Dmitri (2002). http://www.com/shop/products/whitepaper/pdf/Juniper%20Research%20%20Apps%20White%20Paper%202009. Screen Digest Ltd. August 2010. Goldmedia Gmbh. Technical report. OECD (2005).pdf. p. Game Developer 2009 Government Game Incentive Report.16 Game Developer Research (2009b). White Paper. February 2010. (2008).fr/en/video-games/article/video-games-cultural-asset Holden. Wi. 2003. Mateos-Garcia J. Communication & Society. 1970–2000.taking a bit of the apple: Juniper Research. In-Stat (2010b).

but just how far does this responsibility extend? In this paper. Privacy. IL 60208 Burcu S. question our understanding of online privacy. which was developing a viewer for Second Life. The Wrong Hands. More important. but also other activities that violated the terms of service -. we review the above incidents. ingame vigilante groups. which had several former Linden Lab employees on staff. 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. had backgrounds not only in writing malicious code. to whom does the responsibility belong in securing personal information and intellectual property. this time. Bakioglu Indiana University Department of Communication & Culture 800
E. the leaked evidence suggested that these illegal activities were being backed by Linden Lab (Second Life's parent company).
 Bloomington. and more important. 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. Less well known is that hacktivist movements and “leaking” operations have also taken root in Massively Multiplayer Online Games and other virtual worlds. & and Policy Making Peter Ludlow Northwestern University Department of Philosophy Crowe 3-159 1880 Campus Drive Evanston. In a later development. The Wrong Hands exposed the shady past of the key programmers of a software company (Modular Systems). the game companies and their affiliated service providers. we interrogate to what extent transparency and privacy could be established under the policies set forth by the current terms of service. uncovered an even bigger surveillance/datamining operation conducted through the Modular Systems's viewer. Therefore. in one recent case. In some cases.
IN
47405 Abstract
 In our paper. 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. which was providing the group with god-mode capabilities that facilitated the operation. For example. Hacktivist movements inside virtual worlds raise a series of interesting questions that have direct relevance to the real world. We also 
 1
 . but rather. these operations have been part of guild-on-guild psyops. These programmers. The company. and then argue that any case that can be made for protecting whistleblowers in the physical world extends into virtual worlds and online games. folded shortly after the exposé. reported in Ludlow (2010) and Jenkins & Ludlow (2010). they don't just expose shady dealings. content theft. For instance. Game companies have a responsibility to protect the privacy of their users.
 
 
 
 
 
 
 
 Hacktivism in Online Games: Negotiating Transparency.in particular. but in a few recent cases the in-game hacktivists have exposed secrets about online organizations.
Third
St. operating under the disguise of white-hat hackers.

they were organizing them to raid. (Ludlow. 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. in turn. but instead of using these moles to destroy the griefing group. or attack. 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). Batman. According to Dr. In line with the role-playing that SL has become famous for. As it later turned out. 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. As reported by Ludlow (2010). At the time of the JLUs founding. There were other actors who were complicating this play. they did spar with griefers and fight disruptive behavior. JLU was banned from Furnation (a region in SL where players appear in anthropomorphized animal likenesses) because of their excessive vigilantism. an active. Kalel Venkman. Culture. which had been reporting on virtual world griefing since 2003. JLU had close contacts with Linden Lab employees and utilized those relationships in filing abuse reports against other players. living. the owner of the Furnation region in SL was later to explain to Alphaville Herald (2010. Corsi Mousegard. there were economic motivations that drove the aggressive abuse reports filed by the JLU. These raids justified the existence of JLU as a necessary force in SL and the estate owners were. But the issue was to figure out who was the griefer and who was the bystander. created his group to fight the likes of the PN. & Design at WU at the time. their campus was not just a static virtual mock-up of their actual campus. the Director of Media. 2006.0

Hacktivism
Enters
Virtual
Worlds
 Our story begins with a Second Life user-created vigilante group called The Justice League United (JLU). 2010). asked to join Proactive Security. 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. a griefer group called the Patriatic Nigras (PN). Pixeleen Mistral. To make the fantasy complete. was later to find out that she was on the JLU target list. Edward Clift. etc. Predictably. For example The Alphaville Herald. JLU wasn’t just falsely accusing innocent users. to whom does the responsibility belong in securing personal information. Wonder Woman. and persistent harassment of other residents. but rather. WU had always adopted an alternative and experimental approach to education. Their activities included grid attacks. newly found estates. feigned racism and intolerance. From the beginning. According to a Intlibber Brautigan. The editor of the online newspaper. To be clear. JLU had already penetrated the PN. which had originated from the 4Chan message boards. were claiming that Intlibber had hired the PN to grief his enemies in the virtual real estate business. including a small university from Southern California: Woodbury University (WU). had made a name for itself in SL through its transgressive and scatological behavior.” Likely. was viewed to be just as culpable of griefing as those who were its subject matter. and more important.1 JLU. they designed their headquarters with a NASA quality control room with monitors that displayed constant updates from all over SL. breathing entity where its students could study and creatively experiment with these social relationships and online cultures in an educational setting.2 Not surprisingly some WU students embraced the 4Chan 
 2
 . Established in SL in 2006.
 
 
 
 
 
 
 
 probe to what extent transparency and privacy could be established under the policies set forth by the current terms of service. The JLU was founded by a user named Kalel Venkman on April 4th. The updates also informed the League members what representatives of the game company (Linden Lab) were online. then. 1. the JLU presented itself as an anti-griefer organization dedicated to keeping peace and order in the virtual world.

In 2008. 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. 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. he was granted full access to the BrainiacWiki only after a four-day wait period – without a non-disclosure agreement.” After infiltrating the group and gaining access to its secret Wiki. they quickly became Linden Lab's development team du jour. also made the Woodbury region their regular hangout and even had an office there. Even though some of the Emerald developers had a shady past. According to Tizzers Foxchase (a. In the meantime. 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. Haruhi politely sent a letter to all of the JLU members ironically thanking them for their hospitality. who continued their disruptive activities while they were hanging out in the Woodbury region. in the case of libsecondlife developers). And. Jordan Bellino). However. Getting tired of constantly being banned for no reason other than their association with the PN. and that employees of Linden Lab were complicit in these operations. which was developing the Emerald viewer for SL. the chief officer of the Woodbury group in SL. To be sure. The note even started with a pertinent quote from Superman’s arch-nemesis. WU began to plot an infiltration operation. And that they did. detailing the operations of the JLU... Interacting with the PN. sometimes successfully getting them banned without cause. who were developing a viewer (browser) for SL called Emerald. a member of the JLU quit the group and gave an interview to the Alphaville Herald. and they are…” And thus. She opened the doors of their land to the PN. For example. the League was officially pwned. It was clear to them that something foul was going on. a certain Haruni Thespian volunteered to become a JLU member. Nevertheless. led the WU to be seen as part of this notorious group of virtual world punks. These charges were dismissed by the JLU. (for example. 
 3
 . claiming that they were keeping massive intel on SL users. Tizzers Foxchase. and they were viewed with equal suspicion. Three days after the security breach. Because these regions had open access (unlike most other educational spaces). 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). similar alliances between Linden Lab and third party developers had existed in the past.a.Lex Luther Well boys and girls. none of the libsecondlife hackers had intentionally been mixed up in criminal activity nor did they engage in black-hat hacking. a group of Woodbury students formed a subgroup called The Wrong Hands. No. I don't want to be a *god*. people were beginning to sense curious connections between Linden Lab and some of the vigilante groups in SL. and much to WU’s surprise. Ultimately.
 
 
 
 
 
 
 
 culture and their memes. Early January of 2010. it’s been real. Lex Luthers: ‘Gods are selfish beings who fly around in little red capes and don't share their power with mankind. fed up with JLU’s aggressive abuse reports. 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 want my cut’ . I just want to bring fire to the people.k. Haruhi leaked its 1700-pages of confidential information. This in turn led the students to befriend the PNs. Another curious alliance was with a programming company called the Modular Systems. During that time. a group of hackers. 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. 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. the chief officer of WU. There are a few of you who I would like to thank by name. The Wrong Hands started its operations with JLU in their sights. the WU group was paying the price. did the unthinkable. were abuse reporting people capriciously. and while they were no angels.

others speculated that Fractured Crystal knew. Exposing the inner workings of the controversial anti-griefing group. In effect. This interview. the decision to have Woodbury be booted out of SL as revenge for their probing questions. in which Crystal openly admitted to ToS infringements. Crystal's shady past made the statement all the more alarming and undermined the credibility of the viewer. seized the moment to use this as an excuse to put one griefer group out of business. Pixeleen Mistral. and chose to deal with the other at a later date. The video of the interview. filed documents disputing Venkman's claims of copyright infringement on the grounds that the materials were a clear case of fair use for journalism. Yet the ongoing rumors of questionable conduct on the part of some of the development team. Once leaked. the editor-in-chief of Alphaville Herald. for various ideological and pragmatic reasons. Typepad restored the content it removed from Alphaville Herald's site. two days prior to the 
 4
 . But in the process. The Alphaville Herald (SL newspaper). While some assumed that this was an attempt on the part of the Emerald team to clean up their act. the Emerald team closed their bureau in the Woodbury region and pulled out their advertising for their viewer from that region. Under the questioning of the Wrong Hands agent Cam Scientist. Among these. they discovered that it was not only used to track suspected griefers and compile information on SL users. and various bloggers who published the contents of the Wiki that he believed to be copyrighted. April 19. 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. became one of the most popular viewers.e. frantically threatened to take legal action against not only Haruhi. user-friendly environment for its end users. or even was involved in. the Emerald viewer. The only difference between Emerald and other griefer viewers. The Wrong Hands interrogated Fractured Crystal about the Emerald viewer. Upon finding out about the breach.000 unique users. 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. was that he and his friends were in charge of this one. but also led some of the SL users to avoid the client all together. was posted on YouTube on April 11. Consequently. which at one time boasted of 76. and that he was never asked to sign a non-disclosure agreement. 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. Whatever JLU's ultimate motives might have been. that he was granted legitimate access to the Wiki. not only led the viewer to be labeled as a “griefer” client (because it was permissive enough to commit ToS violations). The JLU incident was soon followed by another scandal – this one involving some of the developers of a Second Life viewer called Emerald. Haruhi had kept all the chatlogs to prove that he had done nothing wrong. In the face of a DMCA take down. a secret that he had been guarding for six years. In retrospect these speculations were not unfounded. Pixeleen was forced to reveal his real life identity as Mark McCahill. shed a questionable light on the Lab’s motives. Some even suspected that Linden Lab. Crystal noted. in particular Fractured Crystal (Jcool410). Of course. Fortunately. Crystal confessed to his other alt accounts having been banned as a result of ToS violations (i. griefing) and openly agreed that the Emerald viewer had functionalities similar to those of other viewers that were favored by griefers. these papers were posted on at least five file-sharing sites free to download for anyone who was interested. Venkman. Suspicious of some underhanded dealing that may be going on through this client. along with Linden Lab's apparent cover up of Crystal’s past and its support of the viewer. When Venkman failed to counter-file. possibly because of the exposé of Crystal on YouTube. 2010. 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. As residents were voicing their reactions to this unexpected cover-up. the incident raised serious questions about the ToS of SL and copyright policies in general. 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.
 
 
 
 
 
 
 
 As Second Life denizens and Alphaville Herald reporters dug into the contents of the Wiki.

Woodbury University was permanently banned yet again as they were days away from getting their educational island. the Emerald developers had compiled a database of avatar names. 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. and a picture of the Emerald developers in a meeting with the Linden Lab CEO at the time. They give the vigilante groups the impression that they have the blessing of the coding authority.000 entries tracking 16. From a policy perspective.0
Analysis
 
 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. Soon enough. the real question is what the role of the coding authority should be in all of this. And so during a meeting in which WU was negotiating its legitimate return to SL. But when exactly are such actions justified? Unfortunately there are no easy answers here.740 SL users. source code for portions of a datamining application. previous JLU associates had reported the existence of a surveillance system and database on innocent users. could be severe. Such relationships are toxic for many reasons. rolled out their new viewer compatible with Linden Lab regulations and was approved as one of the official viewers. The Wrong Hands had strong reason to believe that something was amiss – for example. 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. Modular Systems. It would certainly take a powerful battery of arguments to make the case that hacking was justified on the basis that one simply wants to be sure nothing is amiss behind the curtain.com site. concerns which were apparently shared by the Linden Lab developers. of course. and correlatively feed into the sense that they are the agents of power 
 5
 . It wasn’t long after Crystal's questioning that the Wrong Hands hacked into the Modular System's database and leaked incriminating documents. The paradox. hinting at a possible mass ban. Perhaps the justification hinges on the evidence one has that more pernicious violations of privacy lie behind the curtains. chatlogs of Crystal saying that the consequences for the Woodbury faction. and geo-location information for players who created SL accounts at the ModularSystems. IP addresses. however. a database containing over 39. because the actions of The Wrong Hands exposed privacy violations far worse than those they themselves were undertaking. Linden legal counsel Marty Linden. 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. M Linden. but it also exposed the involvement of the coding authority (Linden Lab) in the matter. 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. In both the case of their JLU infiltration and their hacking of Modular Systems. as a result of the leak. This naturally raises the question of when such operations are justified. their lifeline was unplugged. but also raised some serious privacy concerns. avatar key. and IP address. It was wrong for Linden Lab to encourage and assist the JLU. In the case of the JLU. and several other SL staff. The leaked documents included e-mail exchanges. 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. detailing avatar name. 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. This revelation not only exposed the close relationship between Linden Lab and the Emerald developers (whose reputations had already been tainted). 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. the company that developed Emerald.
 
 
 
 
 
 
 
 Woodbury ban. Apparently. 2.

What then should be the reaction of a coding authority to a group like The Wrong Hands.com/2010/05/emerald-devsmodular-systems-data-mine-tracks-16740-avatars. 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. (2010. May 17). May 19). and a one-off operation that seeks to expose a specific vigilante organization on the basis of reliable testimony from within the organization. As virtual worlds become more and more important to us. Did Linden Lab’s Emerald dev coverup lead to Woodbury ban? Retrieved July 12. Pixeleen. 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. April 9). 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. Virtual worlds. and further that coding authorities need to act decisively against groups that commit these violations. (2010. The principle seems to be this: systematic violations of user privacy are not to be tolerated. and as our lives more and more move online these questions become pressing. but clearly there is a difference between a standing organization that systematically engages in surveillance of a broad group of users. 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. 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.org/2010/04/watching_the_watchers_power_an. May 11). Indeed. Retrieved July 12. Choose Your Fictions Well. Emerald’s dev’s Modular System datamine tracks 16. Pixeleen. (2010.com/2010/03/corsi-mousehold-jlu-are-power-hungrycrazed-nutjobs. and P. September 3). but if they can be justified then the participants should not be punished.html Jenkins.740 avatars. their social lives.com/2010/05/did-lindenlab%E2%80%99s-emerald-dev-coverup-lead-to-woodbury-ban.html Mistral. need to protect their whistle blowers. Retrieved from http://henryjenkins. Emerald site security broken! Datamining shocks Linden Lab!!! 
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 .html Mistral.
 
 
 
 
 
 
 
 and are untouchable. Corsi Mousehold: JLU Are Power Hungry Crazed Nutjobs. April 14).html Ludlow. 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. Watching the Watchers: Power and Politics in Second Life. (2010. they often do become nearly untouchable. 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. Many people now depend upon virtual worlds like Second Life for their business lives. like the terrestrial world. and their love lives.html Mistral. Pixeleen. Retrieved from http://henryjenkins. H. but of course not every such group is known to the coding authorities. Works Cited Alphaville Herald. Ludlow. (2010. (2010.org/2010/04/choose_your_ficitons_well. P. Retrieved from http://alphavilleherald. 2010 from Alphaville Herald: http://alphavilleherald. 2010 from Alphaville Herald: http://alphavilleherald.

June 3).com/?p=768 Proto.html Mistral. (2010. Bakio lu conducted on 24 Deecember 2010.html Proto. Pixeleen. April 20).com/?p=854 























































 1 2 Private interview with Burcu S. Bakio lu conducted on 25 May 2010.com/2010/05/emerald-sitesecurity-broken-data-mining-shocks-linden-lab. 2010 from Alphaville Herald: http://alphavilleherald. Emerald Viewer: 76000 unique visitors could be wrong. Linden Lab’s Woodbury cleanup effort continues. Retrieved July 12. Modular System Hacked: Woodbury University hacker(s) claim responsibility. Paladin.html Mistral.com/2010/04/emerald-viewer76000-unique-users-could-be-wrong. Retrieved July 12. 
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 . Pixeleen. April 12). (2010. Retrieved July 11. 2010 from Krypton Radio: http://kryptonradio. 2010 from Alphaville Herald: http://alphavilleherald.
 
 
 
 
 
 
 
 Retrieved July12. May 17). (2010. 2010 from Krypton Radio: http://kryptonradio. 2010 from Alphaville Herald: http://alphavilleherald. Paladin. (2007. Interview with Woodbury University’s Edward Clift. Private interview with Burcu S.com/2007/07/interview-with-5. Retrieved July 12.

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

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

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

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

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

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

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

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

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

C. I. Bangeman. 1. Racism & homophobia in gaming: hate speech corrodes online video game experience.). 111-126. 6. Handbook of Research on Effective Electronic Gaming in Education.1.rpgforums. in Richard E. (2009). February 26). Retrieved from http://research. (2005). and Bushman. Racing the Beam:The Atari Video Computer System. diamonds. Game Studies.mud. Nintendo 3DS allows racist. Game Studies. Exploring clan culture: social enclaves and cooperation in online gaming. Theory. A. Bad behavior on Xbox Live [Video file].. (2011.S. Research. Breaking news: people curse on Xbox Live. spades: Players who suit MUDs.1. TEEP Clan recruiting.. [Web log comment]. (2011.1. physiological arousal. and Practice.au.g4tv. (2009).org/0601/articles/montfort Montfort. McKenna. Sun. (2001). Available at http://gamestudies. The achievement machine: understanding Xbox 360 achievements. (2006). 33. 11. C.com/thefeed/blog/post/685552/breaking-news-people-curse-on-xbox-live/ Davis. K. Retrieved from http://tech. (2002): Computer game criticism: a method for computer game analysis. Microsoft files for *bleep*ing good patent. Espin.htm. Moeller.co.com. Communication Research. H.Kotaku. J.H. and Hancock.com/watch?v=PcGuj2q-5Pg Geranios. (2006). (2011. PureSaint.. Ars Technica. Fireb0rn. 6. (2002). (2010. Frans Mayra (ed. Holland.php/archive/racism-and-homophobia-in-gaming-hate-speechcorrodes-online-video-game-experiences/ Intemperance. and behavior in the laboratory and in life. Kotaku. K.A and Green.com. Tampere University Press 2002. Retrieved from http://www. May 6). and prosocial behavior: a metaanalytic review of the scientific literature.gamestudies. The experience of ‘bad’ behavior in online social spaces: A survey of online users. Ferdig (Ed). 288-299. Retrieved from http://arstechnica.microsoft. (2011).1. aggressive affect. (2008. Game interfaces as bodily techniques. Combat in context.youtube. M. 89-100.org/0902/articles/moeller_esplin_conway Montfort. C.E. M. L. Guild rules. Journal of Online Environments. Retrieved from http://imv. Parisi.T. J. Retrieved from www. MA: MIT Press. feelings. aggressive cognition.pcgamer. Retrieved from http://www.A. In proceedings of Level up: Digital Games Research Conference (Utrecht.gaeatimes. and Tinn. February 19). (2003). An analysis of socioemotional and task communication in online multiplayer video games. R. R.
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subscription. movie and video games industry in the United States from 1980 to 2011. retail-based blockbuster title sales. New Jersey. The following discusses the business history of the video games industry and how its underlying revenue models are changing. will map the video games industry according to the processing power of the various hardware generations (Pachter. retail. So far. Figure 1 shows the per capita spending (in 2010 dollars) for the music. Subscription. it makes the case that other entertainment and media industries may follow its example. Retail. the technological progress is used as a way to delineate one generation from the next. mobile and browser-based games that cost less to develop and publish. . and as a reliable handle in evaluating its various companies. NY 10027. Consequently. As the following will show. digital distribution. despite its merits. both in comparison to similar entertainment markets and an economic recession. Columbia Institute for Tele-Information 3022 Broadway. Ph. describing the history of video games this way becomes problematic when technology ceases to be the driving force behind the industry’s growth.D. arcade. 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. Drawing on financial data. this has been an effective way to chronicle the development of the overall industry. Uris Hall – suite 1A New York. we may look at different strata.The Game Behind the Video Game: Business. Regulation. It documents 30 years of video game sales history according to revenue model— Arcade. Yet. virtual goods sales. 2009). virtual goods 1 INTRODUCTION To document an industry’s history. 2011   A Business History of Video Games: Revenue Models from 1980 to Today Joost van Dreunen. 2 RELEVANCE The underlying motivation of this paper originates in the video game industry’s growth. we need an alternative point of departure from which to describe this industry. Typically. Digital Download and Virtual Goods—and explains key concepts to each of these. KEYWORDS: video games. Financial analysts. and primary research reports from market researchers and company information. April 8-9. USA. when high production values and mesmerizing graphics are no longer key selling points. for example. and Society in the Gaming Industry New Brunswick. a substantial part of the industry’s recent growth has come not from the traditional.

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

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

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.

van Dreunen

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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)

                                                                                                               
3

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).
30%

25%

20%

15%

10%

5%

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

Packaged Software

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

                                                                                                               
4 5

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

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Initially developers were able to charge around $20 for a downloadable casual game. As a third platform. By offering a large library of titles. followed by Android Market with about a quarter. Carriers. with the Japan-only Satellaview (1995) and RandNet (1999). software developers like Id Software began distributing software directly to consumers over the Internet. technologies like HTML and Adobe Flash became more sophisticated and popular. and Nintendo. games were by far the most popular category in terms of consumer sales. mobile gaming remained in its infancy until the mass adoption of the Smartphone. But because of its relatively low barriers to entry. there were immense difficulties associated with the process of developing for up to 100 different handsets.com acquired casual game developer Reflexive in October 2008. approximately 663. even at price points lower than those at retail. game companies are able to reach a wider. failed to gain traction. With the Internet growing steadily. who did not to see themselves as content providers. Among these apps. All sites visited January 2011. The PSN. it addressed a much larger market. it had reached 10 million installs by the time it appeared in physical retail stores two years later. which ultimately eroded product quality and triggered commoditization. each with their own technical specifications. web-based game play quickly emerged as a common activity for online audiences. such as the now-defunct Gamelab. 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. which is elsewhere so integral to digital media. in the early 90s. a slew of low-cost game development companies flooded the market with cheaply produced imitations of popular titles. Furthermore. 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. Unsurprisingly the bottom fell out of the market. software and distribution all played nice together—developers are able to publish games with relative low barriers to entry. Palm’s App Catalogue (1%) and Windows’ Marketplace (0. In this vertically integrated business model—in which hardware platform. which drafted the original design documents for one of the most popular casual games Diner Dash. Consequently. Further fueled by a growing number of households coming online. This policy effectively strangled the potential for an economy of scale. Similarly. ‘digital exclusive’ titles. On the PC side. By January 2011. it further lowered the average price point to $9.99. Apple’s App Store led the pack with more than two-thirds of total availability. And a growing number of boxed games is available for digital download. a host of design companies reinvented themselves as game companies. The current generation of consoles is the first to generate substantial revenue through digital distribution.6                                                                                                                 6 Source: company information and app store websites.companies like Sega. (Kushner.99. insisted that games were playable across the entire portfolio of supported handsets. the market has exploded. Consequently. When Amazon. 2003) Since the PC was a more open platform compared to the walled garden of the console. with its Sega Channel (1994).3%). On the wings of this development. A group of second-tier app stores accounted for the remaining share: Nokia’s Ovi (2%). a company’s ability to compete depended on successfully cutting of costs. PopCap’s hit title Bejeweled began as a humble Flash game. After the company released the first iteration of Doom as shareware in 1993. to the chagrin of mobile content developers. more mainstream audience. In short order. at retail price.957 apps were available across all mobile app stores. van Dreunen Page 7 of 11 . 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. the appetite for digitally distributed content and connected game play started to gain momentum. Earlier efforts to publish games on mobile handsets suffered from inertia by telecom carriers. And since then the average price of a casual game has crept further down to about $6. XBLA and Wii’s Virtual Console all feature both old and newly released. Blackberry’s App World (2%).

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

beyond the use on game play. While still in early stages of development. on average in the United States. (Pachter.85. once an item is created. in more than one way emulate the mechanics behind trading card games. having to deal with payment method preferences. like functional items (e. does require a game company to be actively involved with their audience. 2011) Subscriptions currently represent approximately 5% of total video game expenditure in the United States. however. the production process of virtual items allows regular updates. this also forces game companies to play the role of retailer. virtual goods are here defined as “in-game items or game-related services. the North American market for virtual goods was $1. In the retail model. a next generation of subscription-based game services presented itself in the form of OnLive and GaiKai. Different than the average selling price of $56. enables people to see if they like the game.” 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. (van Dreunen.3 billion dollars. in fact. it can be copied ad infinitum at no additional cost. This forces companies to reorganize their production schedules and resource allocation. approximately 5% of the total video game sales in the United States.1 billion.73 for a boxed game for the PlayStation 3 a virtual item may only cost as little as a penny. In the retail model customers are asked to shell out over $50 before they can play a game at home. both trading card games and virtual items can be collected and traded. distribution and customer service. (KZero. or about $1. (van Dreunen. 2009) Selling items incrementally has proven especially effective in countries like South Korea.g. which serve a social function.5 Virtual Goods As the fifth and final revenue model. at relatively little cost to the developer. Within the context of video game revenue models. The absence of a high initial cost to the consumer. Secondly. and pay as they go. inventory changes. the average monthly fee is expected to be around $10. Digital Distribution and Virtual Goods—presents several important benefits over the packaged software van Dreunen Page 9 of 11 . where people do not own computers. (Takahashi. 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. 3. 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. access (for instance to a certain area in the game). First. that enable or enhance game play. many of the developers and publishers that used to build a boxed product. Currently. and even seasonal specials and sales events. This model. and instead play at cybercafés. 2010) 4 INTERACTIVE ENTERTAINMENT ECONOMICS The video game industry’s transition to new revenue models—Subscription. now find themselves with a lot of extra work (up to 60% of the necessary resources) after the game has been launched. The lower average cost of virtual items alleviates the dependence on this seasonal cycle. 2011) Finally. In addition. such as a virtual currency or item. a sword). compared to 288 million for people aged 15 to 25 years old. and vanity items. All of these can be tweaked and modified to find the optimal equilibrium between supply and demand. An important additional benefit of this model is that purchase patterns are a lot less seasonal. such as a new character or weapon. This type of service enables multi-platform play and does not require the user to own any of the software. For 2010. there exist various product categories. in both cases. Virtual item sales. However. 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. temporary abilities like invincibility. And. Consequently. virtual items present a more gradual purchasing experience.15 years old age group […] totaled 468 [million] registered users” in late 2010.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

all brought by users. brought an action against Sony with respect to Sony banning him from the PlayStation 3 Network (PSN) for use of bad language within the game ‘Resistance’. In 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]. more recently. This case concerned a player whose account was hacked and virtual items transferred to another account. 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. The publisher refused to provide the details of the other account holder or re-instate the items. where such notions are either incidental or irrelevant. transferring around 400 billion virtual poker chips into his own account. in Europe.Typically when many of these cases have been reported in western media they have been headlined ‘player convicted of virtual theft’. 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. This year in the UK an individual was arrested and admitted to hacking into the accounts of online game provider Zynga. noting that the virtual items qualified as goods under Dutch law. In 2009.3 Other cross boundary disputes The cases summarised above all focus on virtual items but while they offer quite different legal views of the nature of virtual items they still put notions of property (or its rejection) at the centre of the rhetorical stage. (Estavillo v Sony Computer Entertainment America 2009) Erik Estavillo. There is another set of actions. 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 defendants were sentenced with 180 hours of community service and 'youth detention’ for four weeks with a probationary period of two years. 3. theft of money in the form of the Reynolds. 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. Ltd. Another player reported this to the company and Ms Andrews was sanctioned under Blizzard’s Terms of Use section on “Harassment – Sexual Orientation”. Also in The Netherlands in 2007 a 13 year-old player of the online game RuneScape (Jagex Games Studio. In 2007 a 17 year old was arrested in The Netherlands for stealing virtual items in Habbo Hotel. domestic courts have usually dealt with these cases on the basis of laws relating to unauthorised access to a computer. 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). which the judgment termed ‘the player’s property’. At the time of writing the plaintiff awaits sentencing. who is a serial litigant against computer game platform providers. There are however exceptions to this approach in both Asia and. computer fraud or similar. In China in 2003 Li Hongchen brought a case against Beijing Arctic Ice Technology Co. In 2008 a Dutch court found the both defendants guilty of robbery under Article 310 of the Dutch Criminal Code. While the serial nature of Mr Estavillo’s litigation following this action has caused the press to raise questions about his motives. 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. Despite these headlines. de Zwart 4 . Estavillo made claims on three grounds: restriction of free speech. 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. From a player perspective this has been like arresting someone for breaking your front door but not for anything they did in your house. the nature and fact of the cases is very interesting. The suspect was not convicted.

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

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

and.1 Sports Governing Bodies Typically in sports there is a hierarchy of governance: event officials. national governing body. the role of rules in generation of value and the adherence to stated rules in the resolution of conflict are also given primacy. henceforth ODAB. For example a player may face an in-game sanction for breaking a rule. 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. Today governing bodies tend to be companies limited by guarantee. 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. Governing bodies tend to have direct contractual relationships with the bodies above and beneath them in the governance hierarchy. Appeals against decisions do not simply flow up a governance hierarchy. 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). the player may appeal this through the national governing body or against the national governing body via an international governing body. team. we argue that there is a possible role for a governance body in online games. 6. 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. Court of Arbitration of Sport. For the purposes of this paper we will title the putative governance body the: Online Dispute Arbitration Board. The proposal here is not incompatible with this. What’s more. Reynolds. to apply them and to regulate their application. 5. recognize how the limits of those values are negotiated. de Zwart 7 . regional governing body.What is significant for our purposes here is that all parties recognize both the centrality of game derived meaning. following this a national governing body might suspend that player for a period of time. Historically sports governing bodies were formed by practitioners and / or ex-practitioners of a given sport and were loosely defined associations of peers. however we feel that a federated body is simply less costly to implement considering logistics of multiple terms of reference etc. in a sense. value and harms. international governing body. and that courts recognise the regulatory power of these bodies with understood and negotiated limits. An alternative arrangement is an Ombudsman (Online Dispute Ombudsman ODO) system that could exist on a publisher-by-publisher basis. 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.1 Online Dispute Arbitration Board: ODAB Therefore. often leaving those closest to the sport or given event precedence over certain matters. That is. league. The Court of Arbitration of Sport for example tends not to review in-game decisions of sports officials (James 2010). as each level tends to define its scope of jurisdiction. The purpose of these bodies is to define the rules of a sport. In cases of legal dispute courts typically infer contractual relations between players and governing bodies through conduct on both sides (there are some exceptions to this (Hartley 2009). All of this appears to have direct application to online gaming.

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

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

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org/jvwr/article/viewArticle/663 [Accessed March 14. Communication and Society. University of New South Wales Law Journal. M. 2010. Information. M. Whose game is this anyway? Negotiating corporate ownership in a virtual world. 2003. The Video Game Lightning Rod: Constructions of a New Media Technology. Taylor. 19702000.Stern v Sony Corporation of America. 2(3). 2011]. Williams. 2009.. CV 09-7710 PA (FFMx). Piracy vs Control: Various Models of Virtual World Governance and their impact on Player Experience. de Zwart.tdl.L.. 8 February 2010.. Contractual Communities: effective governance of virtual worlds. de Zwart 11 .523-550.627. pp.. pp. T.605 . Available at: https://journals. 33(2). 227-242. de Zwart. Reynolds. Journal of Virtual Worlds Research. 2002.. 2010. 6(4). In Computer Games and Digital Cultures Conference Proceedings. pp. Citeseer. D.

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

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

Y. 5 Despite this language. § 50. Uhlaender v. Oct. 457 n. 2010 U. A recent decision held that the Washington provision ignored a decedent’s state of domicile unconstitutional. Warren & Brandeis 1890. baseball cards.13 (9th Cir.J. 11:16). i. LEXIS. 11:12.Y. 14. San Francisco.D. Disclaimers may protect against a successful Lanham Act claim (Food Scis. the Restatement specifically mentions posters.4 applies to acts occurring within the state “regardless of a personality’s domicile. 09-1798.D. 316 F.D.J. 1990)). 2011)).2d 579. 1277 (D.e. 96 N. LEXIS 93152.S. 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. 2010) (“Bishop claims that because Major Taylor died in Illinois and was apparently domiciled there at the time of his death. The fact that Major Taylor died elsewhere is. for example. 2010)). 1953)). 8. Dist. residence.” Section 47 of the Restatement defines uses for purposes of trade as advertising uses or uses “on merchandise. When the identity of an individual is used without permission in connection with some good or service. No.). (15 U. at *16-17 (W. v. Feb. 894 F.S. according to the Statute. (Starbuck v. at *15-16 (S.com. Inc. Marshall “Major” Taylor. For deceased individuals.C.”). the right of publicity is labelled a right of privacy. 11:15. therefore. Oct. Super. unimportant. Wash. While federal law does not recognize a right of publicity.have recognized the right of publicity either by statute or common law or both. 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. v. and district court decisions are not binding in subsequent cases. however. Ind. at *25-27 (D.2d 450. 202 F. 1967). Civ. Topps Chewing Gum. LEXIS 112072. buttons. Only two states have rejected the right of publicity as a matter of common law. 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. or citizenship” (Ind.. Ford/Liebler 3 4 . Lehman. (Experience Hendrix..J. Indiana’s statute deserves special mention. Indiana’s statute. 2008 U. (ALI 1995: § 47 cmt b). 42. Schonhorn Enterprises. § 1125(a)(1)). Another decision of the same district court explicitly held that the state of domicile at the time of death of a famous American cyclist. (McCarthy 2011: § 6:3). The judicial opinion that coined the term “right of publicity” was about merchandise.L. (N. Nimmer 1954. Bishop. violating Due Process Clause. referring to games as examples of merchandising uses with citations to the three classic game cases.2d 866 (2d Cir. Bilal v. (Donovan v. 08-761. 2006)). The right of publicity is a property right. (Haelan Laboratories. and the Commerce Clause. Ind. Ct. Henricksen. 21. 2006 U. Wash. Super.C. 585 (2d Cir. Inc. The Reporter’s Notes to this section are more explicit. v. it does recognize an analogous unfair competition claim under the Lanham Act. § 1125(a)(1)(A). 2. Palmer v. LEXIS 110204. Corp. the protection of the Indiana statute lasts 100 years. Dist. Nagler.S. The starting point for the present discussion is what qualifies as a “commercial use” or a “use for purposes of trade. Civ.. but both of these states have statutory provisions. No. Prosser 1960).S. 2010 U. In commenting on the merchandise category. § 50. Dist. 2011 U.C. the Lanham Act requires a likelihood that consumers will be confused about whether the individual approved of the use. and “other memorabilia” as examples of merchandising uses. No. Code 32-36-1-16(6)). No. 22. LEXIS 85497. 556 F. (Ind. Nebraska and New York.S. Illinois substantive law should apply. (15 U.5 Moreover. Oct. Dist. 04-2507. . Code 32-36-1-8(a)). 2008) (“Topps has not established that any of the Legends were domiciled in Indiana at the time of each of their respective deaths. (CMG Worldwide. L..N. Restatement 3d of Unfair Competition § 46 cmt b). Hendrixlicensing. 72 (N.. Without discussing the statutory language. Dist. 1977). was irrelevant under the statute. *14 (S. .” (ALI 1995: § 47). Ltd. does not recognize a post-mortem right of publicity.S. 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. New York. (N. as in New York. the Full Faith and Credit Clause. Inc. . decisions are split on the meaning. a variation due to the fact that the right of publicity’s origin lies in a broader right of privacy. Pirone v.D. R. Sometimes. MacMillan. like Washington’s.S. The state of Washington was not a party to the litigation. Oct. (McCarthy 2011: §§ 11:8. they will not protect against a right of publicity claim. No. v. at *41 n. Upper Deck Co. 20. Inc. 09-285Z. Inc.. Supp. 09-275.1970). the longest defined period in the United States. Minn. 52 (W. 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. R.

The justification for the right of publicity is the subject of substantial controversy. 162 N. Proponents of treating games as merchandise were perhaps too quick to declare the matter settled. of North America. Civ. as expressed in the restatements of the law approved by the American Law Institute. would drive the celebrity’s advertising value to zero.2d 544.3 (N. 2009). 1978).Y. 136 (N. Turner. L. (N. 62 (N. 353. Div. Inc.2d 144 (Sup. Ch. Urban Systems. as generally understood and applied in the United States.7 Moreover.3d 963. 975 (10th Cir. Am. Mountain View Coach Lines. 3344. Div. The dominant arguments are tied to either an economic analysis or a Lockean natural rights analysis. more competitors offering fantasy baseball to consumers without passing on the cost of licensing fees is preferable to a tiny increase. The Restatement concedes that the arguments for protecting the right of publicity are weaker than the arguments for protecting other kinds of intellectual property. 345 N. Decisions of federal district courts are not binding on other courts or even within the same district court. Mazza v.J. Ferraro v. which is defined in part to include uses “on or in connection with the offering for sale or sale of a product. v. but this argument is not widely accepted. In terms of advertising value. Civ. 1998) (collecting cases).D. Major League Baseball Players Ass’n. Law. Code §§ 3344(a). 95 F. to celebrity status separate from the revenue tied to the right of publicity.2d 123. (People v. 102 A. the status of games could vary from state to state. Ct. Super. Sup. California’s statutory right of publicity provisions refer to uses of someone’s identity “on or in products. or services” (§ 765 ILCS 1075/5). Insurance Co.2d 17 (1973).3d 959. One economic argument is that the right of publicity creates incentives to create an identity. in the absence of local laws to the contrary. Grady (1994: 119-120) extends this same reasoning to merchandising uses. 1996). Inc.D. In other words.Y. 519 (N.1(a)(1)). 358 n.C. 149 N. 1990)).Ct. Whether it makes sense to do so requires some consideration of the reasons for the right of publicity.3d 959. in the fullness of time. Hartz Mountain-Free Zone Center. 47 V. Grady: 110-112 (1994)). An economic argument works much better for advertising. Illinois’ statute refers to an individual’s right to control uses for “commercial purposes” (765 ILCS 1075/10). including monetary benefits.” Whether a provision adopted in 1957 makes a restatement published in 1995 binding is an interesting question. Super. however.E. R. Sup.Y.I. v.and Rosemont Enterprises.J. 72 Misc. No state statute. (Raubar v. Inc.J. 840 N.. 1977). a probable consequence if no consent is required.S. Ct. App. Major League Baseball Players Ass’n. 130. (Cardtoons.2d 663. Super. 2005). The same rule applies in New Jersey. 1984). posters. Even if there is a small incentive effect. Inc. 215. Div. v. coffee mugs.2d 1185. the Restatement is usually not binding. May Stores Shopping Centers. and other similar uses will similarly dissipate the value of a There are some exceptions. Sup. merchandise. v. such as 1 V. Eagle Design Build Studio. New York’s statutes prohibit uses “for purposes of trade” without explicitly referencing merchandise. TMF Tool Co. 51). 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.J. explicitly deals with games. v.. 664-665 (N.Y. 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. There are many benefits.J. Overuse of a celebrity in advertising. 315 N.J. 913 F. 1996).I. (ALI 1995: § 46 cmt c). however. (Cardtoons. Raubar. (Southeastern Stud & Components. 340 N. Posner 1981: 258). 95 F. shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply. 127 (N. The New York appellate decision in Rosemont Enterprises. 60. and to the extent not so expressed. Inc. (In re Kelvin Manbodh Asbestos Litig. merchandise. the expressive quality of the gaming medium is much more substantial than it was when these three cases were decided. in the number of professional athletes. §§ 50. v.” (Cal.). or goods. 974 (10th Cir. Storms.J. While highly persuasive.J. The three classic cases provided an initial answer decades ago. Ford/Liebler 4 6 . Muller.C. Code § 4 (2011): “The rules of the common law. 588 F. the celebrity of the moment would quickly be used up. Ferro Trucking Co.Y. worrying that overexposure to celebrities on t-shirts. Ct. is binding state-wide. aff’d as modified 42 A. goods. v. but only one of the three is a binding authority and then only in New York.2d 788.S. Sup. 1962). 1191 (7th Cir. Div.6 and as a state law doctrine. Ct. Ch. the social benefits tied to the cheaper exploitation of celebrity identities likely outweigh a small increase in the number of celebrities. 967 (8th Cir. 7 Only the New York decision was affirmed by an appellate court. 72 N. Series. 227-237 (2005)). (ALI 1995: § 47 Reporter’s Notes). L. Super.

Elvis Presley Mem’l Found. v. at *4 (D. 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. Kendrick. for example is protected. there was a threat of dissipation and rational actors managing the commercial uses of their identities acted to reduce the supply of merchandise. 4-89-727.2d 89. If Grady is right. the economic analysis poorly explains the application of the right of publicity rule for merchandise. Game historians assume the earliest games available in the United States were imported from England. a Lockean natural rights analysis is also clearly relevant in the recognition of the right of publicity. 17. Ct. 418 U.. Games often feature words. Reed v. The famous 1976 Farrah Fawcett poster may be an example. 1991).’” (Id.S. and one related to intellectual property generally. Nimmer (1954: 216) put it this way: “It would seem to be a first principle of Anglo-American jurisprudence. an axiom of the most fundamental nature. Dist. but the courts interpret the First Amendment broadly to protect more than just words. including the protection of speech. at 1282). Crowell.3d 950 (9th Cir. then we should predict that in the rare cases where celebrities managed to saturate the market with merchandise. 790 (1989). 1991 U. (Tex. which fits the literal scope of the text. Johnson. Even if we accept that celebrities and other individuals are entitled to the fruit of their labours. 2009). however. Overexposure in tabloids seems more plausible. the question is “whether ‘[a]n intent to convey a particularized message was present. Early English games focused on education. But other interests are at stake as well. E & K Corp. Although many commentators rely on an economic analysis.. 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. 733 S. This recommends caution in enforcing publicity rights against game publishers. 450 N. even without lyrics. 1987)). App. (McFarland v. Early American games illustrate a long tradition of expressive content in games. 491 U. a race across shield-shaped Ford/Liebler 5 .S. 410-411 (1974)). many courts state that an individual should not reap where they have not sown by. one equivalent to the more traditional forms of expression (Video Software Dealers Ass’n v.3d 572 (7th Cir. but courts will not restrict tabloid publishers from providing extensive or even excessive coverage of celebrities because the coverage is so clearly protected speech. 1983). Uhlaender. Schwarzenegger. v. 397. 244 F. but it does not assist with Nimmer’s qualification by explaining when there are countervailing policy considerations. 950 (7th Cir. v. This explanation may provide a starting point. at 404. (Lange & Powell 2009: 155. either written or spoken. McCarthy (1987: 1711) suggests commentators are reluctant to rely on “visceral feelings of fairness. American Amusement Machine Assoc. and it is difficult to think of any examples where extensive celebrity merchandising began to threaten the value of the celebrity’s image. for example.S. Inc. 609-610 (Mass. They tell stories. (Ward v. but also suggests. Minn. Int’l News Serv.S. 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.S. As a related point. Grady offers no plausible examples of this occurring. The Supreme Court has held that in determining whether conduct is sufficiently communicative to raise First Amendment concerns.W. No.” Many judicial decisions echo this view. 1983)). It is difficult. quoting Spence v. 98 (Tenn. They have themes. 491 U.E. courts should hesitate to ignore widely held beliefs even if it is difficult to find an economic rationale in support of them. to identify even plausible examples. 239-240 (1918). Jan. Many games are expressive in ways that implicate First Amendment concerns. free riding on the work of celebrities who have invested in their identities. Village of Shorewood. v. Music. 781. 405. 404 (1989)). LEXIS 1496. Marshfield. 248 U. that every person is entitled to the fruit of his labours unless there are important countervailing public policy considerations.celebrity’s name or likeness. 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.2d 605. v. Courts end up balancing these competing interests. Rock against Racism.2d 943. State ex rel. Wash. On the other hand. Associated Press. 215. (Bennetts 2009). such as Royal Genealogical Pastime (1791). as Grady (1994: 108-109) notes. 704 F. and [whether] the likelihood was great that the message would be understood by those who viewed it. 556 F. 2001)). suggesting both the economic and Lockean justifications contribute something to the analysis of the right of publicity.

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

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

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

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

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

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

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

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

S. By 1982.B. 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. cities and towns passed ordinances to restrict the use of early electronic games. still periodically pass laws which either fail to meet constitutional standards or are currently on appeal to a higher court. and expressive capacity of the medium has developed and public attitudes have changed.3 536 F. and the Supreme Court has yet to weigh in on the matter. 172. heard by the Federal District Court for the Eastern District of New York in 1982. rightfully protected expression in the form of electronic games was vulnerable to restriction for nearly three decades. As the complexity. only a few regulations meeting stringent guidelines will pass constitutional muster. 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. 171-172. The majority of courts have gradually recognized electronic games as speech after declaring them ineligible for such protection during the medium’s formative years. television.D. Regulation of violent content in video games may lead to similar regulation in film. ultimately. subject matter. 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 classification of electronic games has shifted and still remains controversial. as coin-operated arcade machines became ubiquitous. 2 1 Rousse 2 . the whole of First Amendment tradition can be sullied or reaffirmed by the legal reasoning behind electronic games-related cases. it would take a few more years for the emerging medium to become the subject of legal regulation. ‘Mere
entertainment’?

Early
regulation
of
electronic
games

 The issue of whether or not electronic games are constitutionally protected speech first received court attention in America’s Best Family Showplace Corporation v. Since expression within the ambit of the First Amendment is considerably more difficult to regulate than conduct or expression outside of it.N.1 America’s Best Family Showplace planned to open a restaurant which would feature video game screens at each table.While video games attracted negative attention from media outlets and parents shortly after they became commercially available. The legal battle for the status of video games does not take place in a vacuum. the categorization of electronic games as speech is one of the fundamental considerations for determining permissible regulations or censorship. the government from the municipal to the federal level can stifle expression in ways that few other actors can.” Ibid. This point of contention would remain at the heart of litigation on electronic games for the next two decades. Censorship and regulation often take place without government intervention. 170 (E. But not all legal scholars are convinced they have made the right decision. Without a clear definition of speech.Y. A previous ordinance restricted the number of arcade machines in a business location to four unless the operators received a license for an “arcade.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. Nonetheless. N. 3 Ibid. “America’s Best. government regulation and censorship can be particularly pernicious due to its potential effectiveness and legitimacy. states and local governments must also abide by the First Amendment. When electronic games are recognized as speech. Arcade operators and others contested these regulations by claiming that electronic games should be protected as speech under the First Amendment. Supp. City of New York Department of Buildings. These regulations ranged from restrictions on the location of arcades and their hours of operation to outright bans on all coin-operated machines. When they are not. and print.” a process that was essentially impossible to complete. 1982) Hereafter. Through the Fourteenth Amendment. including video games. legislators must meet few requirements when drafting regulations or bans. Through the majesty of its authority and the punitive threat of monetary fines or imprisonment.

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

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

Caswell’s example of the expressive power of a video game. was more hesitant to rule that video games lacked any expressive elements. Hereafter. Licensing Commission for Brockton. 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. 25 Ibid. App. 1983). Inc. 26 452 US 61 27 Doran v. 1983. many mention ideas or information obliquely at best. as well as political and ideological speech. 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. Caswell. the denial of his proposal was found constitutional. Jacksonville. 267.S. Mt Ephraim (1981): “Entertainment. Conrad. the Caswell court used the standard of the communication of ideas for First Amendment protection. and no form of speech is given or denied constitutional protection based on such a test. Caswell submitted Space Invaders to the record.C.S. Walker. stressing in particular that electronic games are capable of articulating a plot.”30 Furthermore. Walker (Mich. The plaintiff. Erznoznik v. and Schacht v. footnote 3.S. but ruled that they did not possess the expressive element established in other cases.25 The connection between the cases the Caswell court cites and the informational standard formerly seen in America’s Best is not apparent. the court acknowledged that video games may already possess some expressive capacity and may develop the requisite informative capacity to be considered speech. emphasizing the physical element of video game interaction and comparing it to recreational rollerblading. To support this assertion. S. Pg. 270. Hereafter City of Warren. 273. 546 (1975). Rousse 5 . 1984. such as this excerpt from page 65 of the Supreme Court’s decision in Schad v. 444 NE 2d 922 – Mass: Supreme Judicial Court. the court recognizes a tradition of youth recreational activities restricted for their purported immoral influence represented by the “Trouble in River City” scenario from The Music Man. 922 (1975). while coming to the same conclusion as Caswell and America’s Best. City of Warren v. App.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. 869-871. footnote 2. 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. While the previous two cases concern the denial of license to individual businesses.e. Plymouth.”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. The City of Warren Court found no precedent to support that claim. 872-74. citing concerns about pedestrian safety and juvenile loitering. did not meet the information requirement established by America’s Best.28 The City of Warren court “searched in vain” to find a justification or precedent that qualified electronic games as protected speech. Caswell wanted to open an arcade featuring seventy machines. The city planning commission denied his proposal. but “this observation does not reach the constitutional question. 205 (1975). Because the court found that no fundamental right was involved. 24 Caswell.24 Thus. Licensing Commission for Brockton (Mass. United States. this court.29 As indicated by the oddly wistful description of their own deliberation (i. 58. Southeastern Promotions. In a lengthy footnote. 274. 28 City of Warren v. As seen in America’s Best.S. 275. 135 Mich. 30 Ibid. Ltd. 420 U.23 As a local business owner. “searched in vain”).Video games received similar treatment in Caswell v. In fact. Salem Inn.J. Court of Appeals of Michigan. 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. Caswell’s contention that the ordinance was unconstitutionally vague and violated his freedom of assembly and association was also denied. 422 U. City of 23 Caswell v. 29 Ibid. 398 U. 422 U. Caswell claimed that this restriction on electronic games violated the First Amendment because of the medium’s similarity to television and film. v. 31 Ibid. The court found that Space Invaders. is protected… . however.

No industry-wide establishment charged with representing the legal interests of video game operators participated in the cases previously considered. Tron.” and his discussion of early film enthusiasts’ desire for the classics of literature to be made into films likened to “heroes crowding the gates. in Marshfield Family Skateland v.37 Other games submitted to court record may not be particularly compelling arguments for the informational capacity of electronic games.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. 389 Mass. We should consider. either for the purpose of demonstrating electronic games’ capacity to transmit ideas or information. Atari Football. Caswell relied only on a description of the rudimentary plot of Space Invaders. 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.com. and Kangaroo. Supreme Judicial Court of Mass. 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. released Atari Baseball. from 1978 to 1979.36 Because electronic games are seen as interactive entertainment. Court of Appeals. 444. 34 Marshfield. another case seeking First Amendment protection for arcades. Town of Marshfield. By mimicking sports. 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. In a similar vein. the plaintiffs submitted video excerpts of five games: Ms. Thus. Atari.” KLOV.S. not all of the courts were confident in this characterization. Pac-Man.35 Like many other emerging forms of media.. 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. Walter Benjamin’s seminal essay “The Work of Art in the Age of Mechanical Reproduction. Rothner v. 436. they may not have been the most relevant examples. Atari Mini Golf. However. I do not find this standard compelling in theory or by precedent. (1983). or more broadly as a form of expression. it was the relevant standard embraced by the courts judging electronic games in this era. City of Chicago. first of all.Chicago. Donkey Kong. Accessed February 15th. 33 32 Rousse 6 .” 37 The Killer List of Video Games. likely because no industry-specific trade association existed until 1994. early electronic games were highly derivative of other formats that shared cultural or structural characteristics. 2010. U. and Atari Soccer. especially sports. 7th Circuit 929 F. Zaxxon. 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. Atari Basketball.33 While these games were popular. players pilot a spaceship and fire at oncoming enemies for points. they mimicked previous examples in that genre. In Zaxxon and Space Invaders. 35 As has been and will soon be even more apparent. (1991) Marshfield Family Skateland v. but unrelated to any message or information conveyed by gameplay. Town of Marshfield. 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. Are
electronic
games
“speech”?
 While the cases reviewed here are unanimous in their rejection of electronic games as protected speech. 36 Cf. “Coin-Op Museum Index: A. 2d 297. 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
State
of
Electronic
Games
in
the
Early
1980s
 The majority of games in the 1980s may well have lacked a sufficient informational element to meet the standard applied in America’s Best. then a major player in the industry.

lines representing missiles split during their descent. a variety of nuclear warhead capable of striking multiple targets in a single missile developed during the Cold War. as cases are inevitably condensed and simplified when cited for precedent. meets the criteria applied by the courts to the cases we have examined. it was widely cited in the previously discussed cases of free speech regulation. As we have seen. It is difficult to evaluate Missile Command.It seems reasonable to speculate that the majority of games released in this period would not meet the informational capacity standard applied by the respective courts. 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. Via a trackball and button. During the height of the Cold War. Some oncoming missiles even mimicked the capabilities of real warheads. Examining only the material submitted to the record. Like many arcade games of the time. In Missile Command. the courts may have come to the correct conclusion using this standard. released in 1980. the player defends his or her missile battery and cities. Yet. 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. Rousse 7 38 . This segment intends to demonstrate that electronic games were capable of meeting even the narrow definition of speech embodied by the information standard. Identifying media that have achieved expressive capacity is vital to protecting the First Amendment sphere. MIRV: A BRIEF HISTORY OF MINUTEMAN and MULTIPLE REENTRY VEHICLES (Lawrence Livermore Laboratory.38 subsequent courts might be led to believe that the entire medium of electronic games was unworthy of First Amendment protection. unprotected cities.39 In Missile Command. By striking these oncoming missiles. the player fires counter-missiles from the missile battery to defend his or her cities against an increasing onslaught of missiles raining down from above. Missile
Command
as
Example
of
Protected
Speech

 While the informational capacity standard may not be most appropriate for determining what media constitute speech. courts might have been persuaded that electronic games warranted First Amendment protection much sooner. 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. Assuming for the sake of argument that the capacity for communicating ideas or information is a valid test of speech. http://www. If other games had been examined more carefully and with a more open mind towards their expressive potential. there is no winning condition – as long as the player is good enough..gwu. 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. the player is presented with a flat landscape featuring six representations of cities and control of a missile battery. and the ability to fire counter-missiles.edu/~nsarchiv/nsa/NC/mirv/mirv. outside of the context of the Cold War and fears of nuclear warfare and subsequent Mutually Assured Destruction. As the game progresses. a popular game released in 1980 by Atari and designed by Dave Theurer. Protecting cities and destroying incoming missiles increased the player’s score. 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. 39 Lawrence Buchonnet.html. The material submitted in the respective cases did not provide an adequate overview of the expressive range of electronic games at the time. Missile Command. narrowly focused judgments on a small subsection of games have had far-reaching influence in the decisions of other courts regarding the entire format. February 1976). but our legal history does not have an excellent track record in this regard. but more general claims as to the unsuitability of electronic games to convey informational content are too broad. or continues to put quarters into the machine. This mimics the capability of multiple independently targetable reentry vehicles (MIRVs). with each new line capable of damaging the player’s cities and silo. the game continues.

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

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

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

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

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

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

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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result in alterations to a game environment only where it is seen as financially efficient. 4 CONCLUSION Games should be as diverse as their players: Final Fantasy builds on a successful franchise of activities from the last 27 years. He observes: The complex contingency of today's large-scale online games has powerful effects on meaning. These adjustments. often based on a stereotypical understanding of that culture. shared 8 de Zwart and Roth . conceived here as always arising from the meeting point of existing. it does not follow that users realise that their labour may result in a commercial product with no financial benefit flowing back to them. noting the limiting frameworks of national regulation of content. If the adjustments are too expensive for a particular title. The intentions of game developers and providers need to be reflected in the EULA. These issues will need to be settled before UGC can be advocated as a viable solution to a lack of local content. Malaby (2010) has recently argued that one of the key attributes of games is 'semiotic contingency' or the unpredictable and changing nature of meanings that can be attached to game related acts or consequences. Guoshong (2009) argues that players who engage in UGC creation ‘consume’ contents for fulfilling their information. developing significant meanings. These activities should not be impeded by agreements forged to regulate interstate commerce. different games may adjust story lines and outcomes in releases across the globe. they participate through interacting with the content. in attempting to ensure the national popularity of a title. In online gaming. relevant or not. rather than bolted on as a ‘one size fits all’ by the legal department to cover all contingencies. and mood management needs. Call of Duty uses historical imagery to set up in-game story lines. and Fantasy Westward Journey appears to serve a role in bringing traditional folklore to life and in promoting modern-day nationalistic sentiments. it may not be released in that region or released with basic customisation only. in turn contributing to an ongoing evolution of further development and understandings. Intervention may only be necessary to support funding for niche domestic cultural reasons or to accommodate smaller ethnic groups. The events in the games discussed in this paper demonstrate the commercial imperatives for customising games for local markets. interpretations. The development of games and their customisation for local markets and tastes provides an interesting basis for consideration of elements of diversity. the political potential of games and the effectiveness and limitations of user generated content in facilitating development of local ‘flavour’. For example.users are unaware of the terms of the EULA which provide Sony with a right to commercially exploit UGC material. Some would argue this perpetuates stereotypes and others see this as an evolution in gaming. Indeed. while based on tested as well as perceived realities. rather than there being a mismatch between the legal constitution of the game and its underlying logic and intent. intellectual property issues need to be resolved. entertainment. as well as with other users for enhancing social connections and virtual communities. for UGC to provide a significant role in localisation and diversity. the choices of subscribers to a particular environment provide the ultimate decision. EULAs should be drafted for a specific environment. drawing upon real life footage and events to create new gaming experiences. However. and they produce their own contents for self-expression and self-actualization. UGC provides an opportunity for the development and continuation of games and the cultures they develop. regulators should allow games to evolve to meet user demand. This paper concludes that rather than mandating and regulating for diverse content. This would suggest that users engage with games and produce UGC for largely non-commercial reasons. However. as we have seen. by their choice to be and remain part of the environment. pitting bands of youthful warriors against the forces of evil.

The very nature of development and evolution in games responds to consumer and regulator requirements and provides examples and experiences of diversity. Council of Europe. pp 61 . New Media Society. Graber. spades: Players who suit MUDs. In this regard. D. Digital Interface. Chan. Work should also be undertaken by game providers to ensure they have EULAs that are consistent with their expectations and encouragement of UGC. 2010. J. M. (2009) Beyond the “Great Firewall” The Case of In-Game Protests in China. de Zwart. It is important that any regulation of games seeks to facilitate and support diversity.B. University of New South Wales Law Journal. diamonds.) Governance of Digital Game Environments and Cultural Diversity. (2010) ‘Imagined Commodities: Video Game Localization and Mythologies of Cultural Difference’. 5 REFERENCES AND CITATIONS Bartle. 4 (2). C.co. clubs. (2009) The protection and promotion of cultural diversity in a digital networked environment: Mapping possible advances to coherence. 8. (2005) ‘Playing with Race: The Ethics of Racialized Representations in E-Games’ International Review of Information Ethics 4.3. contingent circumstances. R.2. 11 November 2010.uk/richard/hcds. M. as appropriate. and Burri-Nenova. Journal for Computer Game Culture. Final Fantasy Collection. (2010) Contractual Communities: Effective Governance of Virtual Worlds. M. http://www. Accessed 6 March 2011. and Corliss.uk/news/world-latin-america-11731120.wikipedia. 33. and Historiographic Effects in Call of Duty: World at War. Journal of Virtual Worlds Research. and Steiner. Baron. L. de Zwart. (2006) Console video games and global corporations: Creating a hybrid culture. D. J.) Gaming Cultures and Place in Asia-Pacific. (2008) Human Rights Guidelines for Online Games Providers. Classification Policy Website. 117 -137.au/www/agd/agd. trade related aspects of intellectual property enforcement should be carefully monitored to respect and protect local content production. The protection of these frameworks ensures evolution and enables diverse experiences in such environments. http://en. Edward Elgar. (2010) Digital Historicism: Archival Footage. UK. T. C. Carlson. Games and Culture.ag. Cheltenham. Attorney General Website http://www.mud. Burri-Nenova. New York. M. Only then will diversity flourish for all gamers regardless of their field of endeavour. 24. M. as games themselves show most powerfully. BBC (2010) ‘Cuba says Castro video game tries to legitimise murder’. R. 303-314. and Chan. not by mandating particular cultural norms but by supporting development of games that reflect cultural values. Eludamos. Hjorth. 6.B. (2009) Piracy vs Control: Models of Virtual World Governance and Their Impact on Player and User Experience.htm.co. Routledge. Additionally.nsf/Page/Classification_policy. 605-627. Burri.82 Chan. NCCR Trade Regulation. http://www. (ed.gov.org/wiki/Book:Final_Fantasy_series 9 de Zwart and Roth . Consalvo. Working Paper No 2009/36.30.bbc. (2010) ‘User created content in virtual worlds and cultural diversity’ in Graber. (eds. D.interpretive frameworks and unique. (1996) Hearts.2.. the shared engagement of contingency is a powerful means for the development of trust and belonging. M.

9: 772-775. T. Participative Web: User-Created Content. and Burri-Nenova. 41 Stuart.computerandvideogames. 12 April 2007..113 Metacritic Website. Nelson.1177/1555412010391089. cultural diversity and digital games’ in Graber. UK. http://twitter. Vol. 151-180. C. 16 February 2010. http://www. http://www. Johns. 15 February 2010. S. International Game Developers Association (2005) Game Developer Demographics: An Exploration of Workforce Diversity. 5: 1. Jackson. C. (eds.gamespot. (2009) Understanding the appeal of user-generated media: a uses and gratification perspective.com/235030/news/final-fantasy-xiii-bossresponds-to-review-scores/.) Governance of Digital Game Environments and Cultural Diversity. power relations and embeddedness’. (2010) Leona Lewis brings Final Fantasy XIII 'closer to the West'. F. '(2007) Beyond Play: A New Approach to Games'. C. M. UK. M. New Review of Film and Television Studies.com/pc/rpg/finalfantasy14/review.B. http://www.Gamespot Website. Journal of Economic Geography 6. Kerr. N. Graft. 95.com/Stepto/status/6196258494484480 Toulouse.com/games-and-entertainment-brief/52655-call-of-dutyspurs-strong-anti-swastika-message-on-xbox The Guardian (2010) http://www.com/234805/news/leona-lewis-brings-finalfantasy-xiii-closer-to-the-west/. (2006) ‘Video games production networks: value capture.tgdaily.co. no you don’t get to apply your Internet niche knowledge to me doing my job.aspx?ID=635 Yee. TG Daily. CyberPsychology and Behaviour. Kallio. M.computerandvideogames. (2010) StepTo. Luttrell.html?tag=topslot.com/game/pc/final-fantasy-xiv-online Accessed 20 February 2011.stepto.co. http://archives. (2010) ‘Beyond billiard balls: transnational flows.metacritic.tgdaily. 25-40 OECD Working Party on the Information Economy. (2010) ‘At Least Nine Ways to Play: Approaching Gamer Mentalities’ Games and Culture. Edward Elgar.biz/news/sony-be-mindful-littlebigplanet-content.uk/technology/gamesblog/2010/nov/23/call-of-duty-swastikacontroversy. Guosong. http://www. http://www. (2007) Motivations for play in online games. Cheltenham. Internet Research. TG Daily (2010) http://www. DSTI/ICCP/IE(2006)7/FINAL. pp. 22 November 2010.com. :>’ 20 November 2010. Cheltenham. 13 November 2008.1 Accessed 20 February 2011. (2007) HBO Premium: Channelling distinction through TVIII.B.igda. (2010) ‘Final Fantasy XIII boss responds to review scores’ Computer and Video Games. Mayra. K. 19 Iss: 1. (2010) Call of Duty: Black Ops – is Microsoft right to ban the swastika? The Guardian. Edward Elgar.com/Lists/Posts/Post. and Kaipainen. K. M.org/diversity/report.7 – 25 Ingham. T. Games and Culture. (2010) ‘State Aid for Digital Games and Cultural Diversity: A Critical Reflection in Light of EU and WTO Law’ in Graber. Call of Duty spurs strong anti-swastika message on Xbox.) Governance of Digital Game Environments and Cultural Diversity. (2010). A. Or.guardian. ‘Context. http://www. http://www. Malaby. J. K. 10 de Zwart and Roth . S.next-gen. DOI:10.guardian.uk/technology/gamesblog/2010/nov/23/call-ofduty-swastika-controversy Toulouse Twitter account. and Burri-Nenova.B. (2008) ‘Sony: Be Mindful of LittleBigPlanet Content’ Edge. Graber. K. 23 November 2010.com/games-and-entertainment-brief/52655-call-ofduty-spurs-strong-anti-swastika-message-on-xbox.thumb. http://au.php.com. R. (eds.

which may vary. Regulation. The idea of 1 2 http://www. Risktaking. employee engagement.merriam-webster. The idea of play certainly resonates with humans. animals. We have learned much about what makes for a successful – and an unsuccessful productivity game – well beyond game design – and more importantly. Redmond. reliability. KEYWORDS: Productivity Games. 2011 Productivity Games: Software Quality through Fun and Play Ross Smith Microsoft Corporation One Microsoft Way.com/Reality-Broken-Games-Better-Change/dp/1594202850 Productivity Games: Improving Software Quality through Fun and Play 1 . Collaborative Play.reviewsofelectronics. and even computers themselves. cost savings. New Jersey.1 Around the world. The principles of trust. Several thousand Microsoft employees in Windows. the natural user interface add-on to XBox. Productivity games – games in the workplace – can help enhance traditional workplace methodologies including effective communication. As the nature of the workforce shifts – with incoming ―Gamer Generation‖ employees. and organizational trust actually improves software quality by varying defect detection techniques. April 8-9. we can make use of successful game mechanics to help motivate employees to participate in work-related activities.merriam-webster. and more. Merriam-Webster defines work as ―activity in which one exerts strength or faculties to do or perform something‖ 2and defines play as ―recreational activity. the diversity of viewpoints offers an opportunity to expand how we test software. especially: the spontaneous activity of children‖3 Jane Mcgonigal. From ISO 9000 to Six Sigma. and around the company. 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.com/dictionary/play 4 http://www. in her book. While it‘s important to understand the relationship between compatibility. by user across these dimensions. play. have played productivity games to help improve the quality of our software. It‘s important to incorporate principles of portfolio selection and risk diversification when evaluating where to invest resources. performance. USA. Reality is Broken. Software Test. 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. Washington. focusing on the tasks that game players can accomplish.com/dictionary/work 3 http://www. Office.amazon. usability. and value – it‘s also critical to focus on customer satisfaction. leaving a degree of freedom in how we pursue software quality. suggests that ―the opposite of play isn't work. Fun 1 INTRODUCTION Kinect. supported by the structure of game mechanics. We see games appearing everywhere these days – except in the workplace. collaborative play. it‘s depression‖4 This paper suggests that perhaps it‘s time to consider game play as a new way to work.com/kinect-breaks-guiness-record/227632/ http://www. security.The Game Behind the Video Game: Business. Software test professionals face the law of diminishing returns when testing – and re-testing – software. USA ABSTRACT There are a wide variety of definitions of quality. and Society in the Gaming Industry New Brunswick. recently became the fastest selling consumer electronics device in history. hundreds of millions of people play games.

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

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

it‘s important to have as large a set of testers in as many configurations as makes reasonable sense. The model includes. hypothesizes that most accidents can be traced to one or more of four levels of failure: Organizational influences. in the causal sequence of human failures that leads to an accident or an error. with individual weaknesses in individual parts of the system. As the complexity of the connected world continues to grow.amazon. permitting "a trajectory of accident opportunity". author of ―Managing the Risks of Organizational Accidents‖5.4 Risk and Mitigation James Reason. leading to a failure. both active failures and latent failures. it is just not possible to test quality in to the software. however. unsafe supervision of the development process.com/Managing-Risks-Organizational-Accidents-Reason/dp/1840141050 http://en. preconditions for unsafe acts – such as lack of knowledge of the end user scenario. and the unsafe acts themselves. or more formally: "Given a large enough beta-tester and co-developer base. so that a hazard passes through all of the holes in all of the defenses. In this model. only scratches the surface of how software is used in ―real life‖. The system as a whole produces failures when all individual barrier weaknesses align.org/wiki/Swiss_Cheese_model 4 Productivity Games: Improving Software Quality through Fun and Play .wikipedia.Figure 2 – Diminishing Returns for Defect Discovery 2. unsafe supervision. almost every problem will be 5 6 http://www. system test can assess a reasonable level of quality across common scenarios. Therefore. At best. preconditions for unsafe acts. an organization's defences against failure are modelled as a series of barriers.6 Software defects may occur in very similar circumstances – organizational or project management related influences. As Linus Torvalds describes Linus‘ law in "The Cathedral and the Bazaar". "given enough eyeballs. and are continually varying in size and position. Even that. and the unsafe acts (simple programming errors) themselves. all bugs are shallow".

‖9 This will leave the organization unprepared to compete – for talent or in the marketplace . Productivity Games: Improving Software Quality through Fun and Play 5 . But.com/article/Engaging-the-Multi-generational-Workforce/ http://www.George Orwell We are currently facing demographic and societal changes. more training. A ―failure to respond to the demographic changes of society will make it difficult. organizations have no choice but to consume the transformation. Gen Xers and Generation Y/Millennials – are working alongside one another and bringing their own values. These changes in the quality of education obviously influence talent levels entering the workforce. Such generational dynamics affect morale. how can you motivate a broad set of users to perform tasks in their discretionary time to help test? Productivity games offer one possibility.characterized quickly and the fix will be obvious to someone. economic landscape alterations. globalization. Tucker.wikipedia.10 The dot com boom fuelled continued growth. While graduate level CS programs in the 1980‘s might have offered courses such as. the annual Bachelor‘s degrees awarded in Computer Science grew from less than 100 to over 46.eventually leading to its demise. Employers are facing immediate challenges when it comes to optimizing productivity. 3. given the demand. and Cryptography. 7 8 9 http://en. for the modern organization to meet employee needs and productively move forward. An unprecedented number of international.1 Computer Science Education The quality of computer science degrees has grown dramatically over the last 40+ years. productivity. Rutgers. multi-cultural workers from four generations – Traditional. for example. today. and wiser than the one that comes after it.‖8 The makeup of formal – and informal . both in the numbers. Curriculum development has progressed dramatically as well – particularly in software quality.organizations has always mirrored that of society as a whole. if not impossible. ―Introduction to Basic Programming‖. . As a result. goals and communication approaches to the workplace. college candidates entering the computer industry today have more education. for the first time. offers undergrad courses in Compiler Construction. 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. In the period from 1966 to 2001. 3 21ST CENTURY EMPLOYEES Each generation imagines itself to be more intelligent than the one that went before it. and more hands-on experience than candidates of even 10 or 20 years ago.com/article/1057728/changes_in_workplace_demographics_the. Computer Science Handbook. Algorithms.000 – annually.org/wiki/Linus%27s_Law http://www. As societal demographics shift. and.html?cat=17 10 Allen B.associatedcontent. p4.hrmreport. recruitment and retention. ―Corporate America is as diverse as ever."7 So a broad set of pre-release users can help mitigate risk through broad test coverage. in the quality of education as well. protecting profits and growing their businesses. Baby Boomers.

Perhaps it is unfair to attribute the start of a generation to a single game.aspx 18 The Practical Guide to Defect Prevention. 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.org 12 11 Productivity Games: Improving Software Quality through Fun and Play 6 . increasing 39 times between 2009 and 2014. February 2010) (link) 16 www. and distributed. and political boundaries requires management 2. educational. Typically. 2009) (link) (MGI.3 Gamer Generation In every job that must be done. generational. the game of Go was played in ancient China in 500 B. April 2010) (link) 14 (Trendsniff. For example.C. with Spacewar and PONG. Chapter 5 – www.13 Mobile Phone Subscribers: 738.18 Although the current generation of electronic games has its roots in the 1950s and 1960s.57M14  Globally.6 exabytes per month by 2014.gnu. there is an element of fun. Mobile data traffic will grow at a compound annual growth rate (CAGR) of 108 percent between 2009 and 2014. but in 1981. 91% of the increased R&D staff was in China and India.thebritishmuseum. geographic. which really was a defining moment in mainstream gaming. You can play it online today on the British Museum Web site17 .2007). computer and game console developments over the last few decades have taken gaming to a new level.11  India‘s middle class will swell by more than ten times its current size of 50 million to 583 million by 2025.html 17 www. Coincidentally. technical.uk/explore/families_and_children/ online_tours/games/the_royal_game_of_ur. Evidence even seems to indicate that games were used to motivate workers to build the pyramids of Egypt.org/software/gnugo/free_go_software. The market for talent will continue to be highly diverse. May 2007) (link) 13 (Economist. reaching 3. December 2009) (link) 15 (Cisco. Productivity games are a part of the new management orthodoxy.3.C.12  Kenya leads the world in money-transfer by mobile phone. Nintendo published Donkey Kong.2 Global Workforce The GDP growth dominance of emerging economies will continue to change the landscape and makeup of the workforce.ac. The ability to manage employees across social.  83% of the new global R&D facilities were in China and India (2004 . 3. mobile data traffic will double every year through 2014.15 The world is indeed getting flat. as well as online. and is for sale along most toy aisles and in game stores.16 The royal game of Ur was played in the fourth century B. cultural. You find the fun and—SNAP— the job’s a game! —Mary Poppins Games have been around for centuries.defectprevention. the majority of the programmers or engineers are relatively recent college graduates.0 thinking. networked.

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

There is a five-factor model consisting of altruism. 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.24 The most successful employee engagement techniques. regardless of whether their organization or company prohibits their use.com/consulting/52/employee-engagement. Forty-five percent of Millennials worldwide say they use social networking Web sites at work. courtesy. Gallup uses a Q12 survey to measure workgroup effectiveness and employee engagement22. but reciprocal as well. conscientiousness. or Organizational Citizenship Behaviors (OCB‘s) that require core skills are the best way to ensure the success of the game.5 Employee Engagement Gallup does their annual survey – and typically. January 2009) (link) http://en. civic virtue. the numbers have been very similar over the past few years. and sportsmanship. and about 15% who are actively disengaged. The attributes of effective organizations all find their origins in trust. There are several dimensions of citizenship behaviours. less than 10% of 55-63 year-olds do. Table 1 illustrates the areas where Productivity Games can be the most successful. 25  Altruism is helping a specific work colleague with an organizationally relevant task or problem. 3. 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‖. 22 23 http://www. About 30% of employees are engaged at work. As generational changes in the workforce continue to evolve.aspx (Accenture. It is very hard to find common themes to engage employees.23 Two-thirds of teen and Gen Y Internet users use social networking sites. January 2010) (link) (Pew.gallup. 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. across this diverse set of behaviours. Focusing either on expanding skills in role.wikipedia. with about 55% who are passively disengaged.org/wiki/Organizational_citizenship_behavior 8 24 25 Productivity Games: Improving Software Quality through Fun and Play . the concerns over engagement continue to rise. are challenging to identify and understand.Trust is a foundational element of all successful workplaces.1 Introduction From a Productivity Games viewpoint.

All employees in a given department are familiar with the items. 2006). It also includes the word‘s literal definition of being polite and considerate of others (Organ et al. since the behaviour is not closely linked to any individual‘s job. and with how the organization prioritizes it‘s work. Games for Learning are a well-established genre of software. but one that works to prevent problems from arising. & Chen. Table 1 . and then test for the learning within the context of play..Productivity Game Deployment Matrix The most successful games tap in to core skills and apply them in areas that are outside the ―regular job‖ 4.1 Thought Examples: Where Games Work Based on our game experiences. but rely on core skills that most employees have in common. described briefly below. (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. 2005). This dimension is a form of helping behavior. Wong. But wrapping the sorting and prioritization work in a game-like interface. Civic virtue is characterized by behaviors that indicate the employee‘s deep concerns and active interest in the life of the organization (Law et al. Organ et al. 2005). Additionally. no one‘s employment is threatened by the success of another team member. This provides a great place for everyone to participate on equal footing. Players are best rewarded by Productivity Games: Improving Software Quality through Fun and Play 9 . games which encourage good organizational behavior (or OCBs). Games are designed to encourage learning. 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. all players are given a fair chance to contribute. and many examples are available in the marketplace for children of all ages. all employees in an organization are able to participate. Examples of why specific segments work or don‘t work are described below. For example..1.. Courtesy has been defined as discretionary behaviors that aim at preventing workrelated conflicts with others (Law et al. Since the games rely on core skills.    Conscientiousness consists of behaviors that go well beyond the minimum role requirements of the organization (Law. imagine a game that helped sort a complicated list of items. Games in this space work because they focus on the development and growth of the individual. are the most valuable domain for Productivity Games. 2005).

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

and then a secondary vendor to assess the quality.700 Table 2 Language Quality Game Statistics Success in the game was defined as the number of screen reviews across the 36 languages tested. Table 2 illustrates the success that the Language Quality Game achieved as run against interim builds of Windows 7. Native language speakers from across Microsoft‘s diverse. for some languages and locales.org. Rather. Game Duration Total Players Total Screens Reviewed (Points Earned) Average Screens per Player Top Player Reviewed Total Defect Reports One Month > 4.3 Language Quality Game The Windows Language Quality Game has been a successful Productivity Game. A more detailed description of gameplay can be found online at www. Productivity Games: Improving Software Quality through Fun and Play 11 .000 119 > 9. because the ―teaching‖ or ―coaching‖ is framed in a game. 4.engage quickly and easily in a ―training‖ mode which provides the basic information required for the employee to play the game. This isn‘t to imply that employees are more apt to receive criticism (constructive or otherwise). With the incredible response. The business challenge has been that. for the Windows International Test Team. they receive the feedback in a manner they are accustomed to learning from already. To address this problem. international population were invited to play.600 > 530. defect reports were not included in players‘ scores. Because of the latency in reviewing the feedback. The list of Windows languages can be found on Microsoft.42projects.300 > 6. most languages had several reviewers provide feedback per screen. but the goal of the game was to achieve reviews of screenshots and dialogs for translation accuracy and clarity. 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.comi. The results here demonstrate an immense amount of effort applied to the game. finding two independent vendors can be difficult and costly. 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. defect reports were the most valuable output of the game. But. 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. The traditional business process uses specific language vendors to perform translation work.

26 http://blogs.forrester.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.by accomplishing beta testing related achievements and tasks. 4. such that the screens with the highest likelihood of fixable defects were handled quickly and efficiently.Logistically. Microsoft donates sponsorship funds to the disaster relief agencies based on the performance of the associated teams.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. and allowed the review of multiple pieces of feedback per screen quickly and easily. Each player earns points for one of five teams . 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. At the conclusion of the game.“Giving once helps twice. a defect report would be created. over 10. The number of Microsoft Lync 2010 dogfood program participants has increased from an initial 5.4 Communicate Hope: A Benefit for Disaster Relief . Forrester Research has referenced Communicate Hope in a report on Microsoft Serious Games. Over 47.000 in September 2010. Where there was obvious consensus from the game players.com/tj_keitt/10-09-24product_managers_take_note_microsoft_using_serious_games_product_test_and_you_can_too Productivity Games: Improving Software Quality through Fun and Play 12 26 .” ―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. Reviewed screens lacking consensus were quickly reviewed. The ―Moderator‖ role was filled on a per-language basis from the ranks of the international team.playing for a disaster relief agency . The response to this productivity game-based beta program has been very positive.000 in May 2010 to 18. During that time. but at a lower priority and more quickly. is a productivity game that enables Microsoft employees to ‗play‘ by providing ad-hoc and directed feedback on the Microsoft Lync 2010 product.

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

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

com/download/4/3/b/43ba0ecc-264c-49c4-98b0a84db10bd167/Rosss.microsoft.Management Innovation Exchange http://www.blogspot.wmv Google Testing Blog – Using Games to Improve Quality http://googletesting.microsoft.com/blog/debugblog/archives/2008/02/five_questions_46.com/id/30605923 MSDN Game Theory : http://blogs.com/kb/292246 i Productivity Games: Improving Software Quality through Fun and Play 15 .php?/weblog/the_hobson_holtz_report_podcast_400_ november_24_2008/ – about 4:10 mins into the show Microsoft Help and Support: Knowledge Base.msdn.biz/index. Dobbs Interview http://www.org/files/site/publications/labnotes/mlab-labnotes-010.microsoft.pdf CNBC blog http://www.aspx Video http://download.ddj.com/2008/06/productivity-games-using-games-to.html Hobson and Holt interview http://www.managementlab.com/en-us/testing/bb880947.html MSDN Tester Spotlight http://msdn.com/b/microsoft_press/archive/2009/07/31/portfolio-selection-and-gametheory-in-defect-prevention. ―List of languages supported in Windows 2000.com/trustmatters/747/Trust-Quotes-1Ross-Smith-of-Microsoft TechFlash: Microsoft uses Video Game to help Windows speak like a local Dr.forimmediaterelease.aspx Trusted Advisor Interview http://trustedadvisor.managementexchange. Windows XP and Windows Server 2003‖. http://support.com/story/organizational-trust-20-42projects Forbes London Business School – Business Strategy Review http://www.cnbc.

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.

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

”4 On the side of the player. adding. performance is again seen to be quite key. 2001). self-esteem benefits. 23.2 We can trace each of these reasons as existing within videogame watching as well. I refer to Sports Fans: The Psychology and Social Impact of Spectators (Wann et al.1 In cases of both spectators and passengers. like books or movies. And they didn't wanna play . and aesthetic. We will see that this performance factors quite strongly into rationales of viewership in the case of video walkthroughs. likening game players to athletes. “I think some people see video games as just another form of media. group affiliation. Asking them.2 passenger. it allows them to share in the actual ritual of spectatorship as a performance of identity. […] People love this stuff. there remains some ground to be covered in analyzing why players play for others and in what situations. where we find the top five reasons for spectatorship of sporting events identified as entertainment value. he too invokes the sports metaphor.Kris Ligman – “Let’s Play Super Rutgers RPG” . “If you like playing the game. one of the few rare female Let’s Players. Particularly with respect to spectators. leading Let’s Player for the LP collective Freelance Astronauts.3 Without prompting. as is the social aspect. ‘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. 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. whose observation often takes place in a public setting. “I've played games for friends of mine before I knew what LP was and they were bored. “I've always liked videogames and I like showing my favorites to others. to varying degrees of importance depending on the setting and the observer’s relationship to the player. watching the gameplay of others doesn’t simply excite others to competition or investment. However. stress relief.” says Voidburger. then you probably enjoy watching it.

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

becoming the norm. which we will look at in detail later in this paper. On the contrary. still primarily drawn from the Awful Forums (which requires paid memberships to post and should not be taken necessarily as open to participation as. depending on the LPer and the intended audience.4 walkthrough of Digital Devil Saga (Atlus. the Let’s Play Archive (lparchive. According to Archive administrator Baldur Karlsson. which are all too easily interpreted as simple infringement. Andrew Armstrong. as we will see by next looking at the documentation style of several LPs. Youtube). when concerns were raised that memorable walkthrough threads were being lost in the inactive backlogs of Something Awful’s fast-paced message boards. As of March 2011.9 At present. creative reconfiguration of game texts. . the Let’s Play Archive hosts over 670 videogame walkthroughs for roughly as many titles.org’s servers. In 2008. 138 of the Let’s Play Archives 433 video walkthroughs. for instance.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. since retired.Kris Ligman – “Let’s Play Super Rutgers RPG” . these walkthroughs represent unique. cult and fan favorites. Karlsson stepped up into the administration role and in the same year was approached by an editor for the Internet Archive (archive.org. The support of the Internet Archive in protecting these documents of gameplay makes its own statement on the perceived value of these videos. including much of the more popular titles. demystifying or devaluing game properties. many of them obscure. These walkthroughs. who offered to host the community’s video walkthroughs on archive.org). typically attend to fairly stringent technical standards but can vary wildly in terms of format and content. who were starting. 2004). are hosted on archive.org) was founded in 2007 by Awful Forums user From Earth.

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

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

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

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

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

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

handpicking the Let’s Play standards they happen to prefer. which sees the web not simply pulling together media but redefining how that media is engaged. 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.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.”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. Nevertheless. Youtube channels and personal blogs. genres. gamic as well as non-gamic. 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 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. depending on the format and content of the walkthrough. When asked why the Archive’s former tagline (“We’ll play it so you don’t have to!”) is no longer present on the Archive’s website. and audiences. Karlsson answered. As noted earlier. esoteric or encyclopedic. While nothing can fully predict how this practice will expand. markets. 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. Let’s Play as a form of game watching may appeal to spectators and passengers alike. imitators are free to set up their own video walkthrough sites. “The motto wasn't actually . industries.

“I come from a computing background and I know how often they end up being wrong!” he says. There's a lot more to LPs now.Kris Ligman – “Let’s Play Super Rutgers RPG” 12 removed consciously really […] But I think also that Let's Plays have moved on from exclusively showing off a game just for people who haven't played it. noting he currently receives more volunteer offers than the Archive’s 18. he seems optimistic about Let’s Play’s future. Karlsson turned the investigative lens onto me. “How do you think developers currently would feel about LPs were they aware of them? Do you think that LPs could ever be utilized by developers as a tool .0 websites have interacted to create something far more prevalent and widely recognized than in the past. and in doing something different. In the conclusion of our interview. we will see how the multimedia game walkthrough continues to adapt. or any other purpose?”24 .either for advertising. it’s hard to make specific predictions.22 Nevertheless. by day a programmer for Crytek UK. As game platforms diversify and even core titles adopt social characteristics. or community building. making the practice one in which group membership is enhanced and validated.23 Although relatively specialized within the larger context of media sharing among online gaming communities. Baldur Karlsson. both in terms of value-adding to a basic playthrough. a fun invitation to collective media engagement. today does not represent the obviation of play but a welcome message to those already with an interest in gaming who wish to self-educate and explore. Let’s Play is but one example in which the practice of game watching and Web 2.000 hits-per-day need. noting that while Let’s Plays will certainly change depending on how games themselves change. asking.”21 The name Let’s Play itself. waves off attempts to make projections on where games or social media will go.

7 Ibid. New York: Routledge. 18 May. Email interview. Web.php?id=52> 15 Ibid. 20 Mar.Kris Ligman – “Let’s Play Super Rutgers RPG” 13 It serves as both a general question and an overt concern. Baldur. <http://lparchive.org/Grim-Fandango-%28Screenshot%29/> 18 Vexation. Baldur. “Cannibal Hinduism in Digital Devil Saga”.com/forum/1/topic/304/index/ 6661775&lf=8> 20 Jenkins. 2008.com/games. Web. 18-23 Mar. Web. et al. Sports Fans: The Psychology and Social Impact of Spectators. 16.org/825#title> 13 Karlsson.freelanceastronauts. 11 Feb. Convergence Culture: Where Old and New Media Collide. 09 May. New York: New York University Press. Baldurdash. “Re: Bioware Neglected Their Main Demographic: The Straight Male Gamer. David. “New Super Mario Bros Wii”.bioware. 12 Karlsson. 31. <http://www. Should we take a prohibitive stance to a practice which reinvigorates interest in littler-known. “Max Payne – Part 1 Chapter 2: Live from the Crime Scene”. 2008. 9 “Let’s Play”. 18 Mar. Email interview. 3 Mar. Email interview. Internet Archive. 15-25 Mar. Freeman’s Mind began its run in 2007 and continues to be a popular series on Machinima. 23 Ibid. 12 Jan. .org/details/lets-play> 10 Luisfe.” Let’s Play Archive. Henry. 2011.edu/Research/dichtung-digital/2008/2/Ligman. “Watching the Game: Videogames as a Function of Performance and Spectatorship. <http://bd. Web. Let’s Play Archive. Web. 4 Ibid. Baldur. 3 Mar. then. 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. The series is a relatively dressed-down (for machinima) recording documenting Gordon Freeman’s journey through the locations of the original Half Life (Valve.htm> 2 Wann. Email interview. 2011.brown. 2011. Baldur. Kris. 14 Maxwell Adams et al. 1998). Email interview. 2011. 2007. Print. 2001. is in lending a provocative personality to a traditionally silent protagonist. 2011. 2011. 2010. See 3. 20 Mar. 2011. Much of the subversive humor of Freeman’s Mind.” dichtungdigital. 2006. <http://lparchive. 4-22 Mar. 6 Karlsson. Let’s Play Grim Fandango!” Let’s Play Archive. <http://www. 5 Voidburger. 2011.” Bioware Social Network. Web.com. Freelance Astronauts. supplemented by Freeman’s inner monologue (provided by Scott). 10 Mar. See 3. <http://www.org/Grim-Fandango-%28Video%29/> 19 Gaider. <http://lparchive. 17 Luisfe. 2011. 8 Ibid. 22 Ibid. “The Day of the Dead is coming. 21 Karlsson. Web. Daniel L.archive.org/Shin-Megami-Tensei-Digital-Devil-Saga/> 11 Ibid. <http://social. 16 A comedic machinima series by Ross Scott. 24 Ibid. 2010.baldurk. “Get your tickets ready for Grim Fandango: The Movie. 19 Mar. 3 Maxwell Adams. 2011. 18 Feb. Web.

Schwarzenegger Ju Young Lee Penn State University University Park. it might be conjectured that the Court would adjudicate Video Software Dealers Association v. the U. First. it expressed doubt about how the State could determine the “deviant” violence of video games coupled with the question of the definition of “minors. is harmful to minors. and whether parents can fully supervise and control what games are being played by their children (Oral Argument before the Supreme Court. Playboy Entertainment Group. New Jersey. strict scrutiny. Analyzing Schwarzenegger using Playboy lenses will provide a useful framework to evaluate the regulation of new forms of expression. 2010). Second.” 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. Supreme Court heard arguments from the State of California. the Court’s questions revolved around the following three points. the Court asked questions about whether a category of violent video games. showing a different approach from the Playboy Court. comic books. the U. and the Schwarzenegger decision. KEYWORDS: videogame. USA. Regulation. the Court appears to recognize possible harmful effects of video games and the necessity for protecting children from that harm. USA ABSTRACT On November 2. defined by the California statute. 2010. the Court questioned why violent video games should be treated differently from other forms of media content such as violent films. who attempts to adopt a statute that prohibits the sale or rental of “deviant” and “morbid” violent video games to minors. obscenity 1 INTRODUCTION On November 2. fairy tales and rap music. which attempted to adopt a statute prohibiting the sale or rental of “deviant” and “morbid. Schwarzenegger (2009) focusing on the legal and practical effectiveness of the state restriction on video games in protecting minors from violent video games rather than on the identification of a compelling government interest. In this hearing. 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. which have First Amendment protection and have never been regulated. Supreme Court heard arguments from the State of California. 2011 For Constitutional Control of New Media: Examining the Judicial Obsession with Causality in Video Software Dealers Association v.” violent video games to minors. As a result.S. Lee 1 . violence. as a legal precedent. and Society in the Gaming Industry New Brunswick. (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.The Game Behind the Video Game: Business. PA 16802. freedom of expression. the existence of a compelling government interest was questioned. 2010. In this hearing. Inc.” Third.S. April 8-9. This approach is in line with the decision made by the Court in United States v. This study stemmed from the criticism of the court’s obsession with the practically unverifiable causality and compared the Playboy decision. Specifically.

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

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

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

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

“the [g]overnment disclaims any interest in preventing children from seeing or hearing [them] with the consent of their 3 Justice Breyer. the characteristics of video games as a new form of media content should not be overlooked. p. However... and Justice Scalia join. the proof of the causal relationship between sexually explicit material and actual harm to minors was not required. 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.. the Court considered the parent’s concern.” (Ginsberg v. Justice O'Connor. In Ginsberg. Schwarzenegger. 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. Smith. at 665. Aldrich. Schwarzenegger. 2009. instead of requiring unobtainable proof of actual harm of violent video games. p. 1968. 2006) (VSDA v. Additionally. 959) While it has been recognized that sexually-oriented indecent speech is harmful to minors. and sexually assaulting virtual human beings. cited in Petitioners’ Brief. setting them on fire. 2010). 2004). there is no consensus on the harm of violent speech. such as killing. (2000). the Court assumed that: many adults themselves would find the material highly offensive. books. 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. there are legitimate reasons for regulating it. 963-964).” in justifying the application of the lowest level of scrutiny (i. at 50) In conclusion. 2004. rational basis standard) to the prohibition of the sale of sexually-explicit material to minors. In United States v. some Justices expressed serious concern over violent video games that enable the minor to commit violent acts. (p. 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. 2009. In protecting children from the signal bleed of sexually-oriented programming channels. cited in VSDA v. Therefore. Granholm. 2006. 811) This indicates that parents’ concern about their children’s access to harmful speech may constitute a compelling government interest. as well as the state’s “independent interest in the wellbeing of its youth. 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. New York. 2003. Entertainment Software Association v. Interactive Digital Software Associationn v. 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. 2001. v. Blagojevich. 2000. 8433) Accordingly. Entertainment Software Association v. 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. However.” (Turner Broadcasting System. the Court should consider the parents’ concern about their children’s access to highly offensive violent video games. and songs.e. dissenting. 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. Maleng. Playboy Entertainment Group. Gentile. p. and urinating on them (Oral Argument before the Supreme Court. Inc. FCC. with whom The Chief Justice. 2004. Funk et al. Louis County. American Amusement Machine Association v. Schwarzenegger. 2009. 2004. Playboy Entertainment Group. 2009). Inc. as other courts found (e. 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. and [that] when … the material comes unwanted into homes where children might see or hear it against parental wishes or consent. St. Kendrick. 1994..g. Video Software Dealers Association v. p.. maiming. Inc. 639-640.” (United States v. Anderson.e.. Lee 6 .games (i. In the Supreme Court hearing of the oral argument for VSDA v.g.

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

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

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

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

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

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

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

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

First. The latter has been defined above. 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. First.g. neither will the Directive (on this issue.U. and Tang.1 to be applicable is that the provider shall direct its activities toward a Member state.1.2). 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”. In this respect. 4. De Meyer. thus qualifying them as consumers. Mr. and.1 (according to Art. EULAs cannot derogate from domestic mandatory rules of the consumer’s habitual residence (Art. see Nishitani. e. block website’s access for certain countries or exclude consumers from certain countries to enter into the EULA (Nielsen.g.1 and 6.applied: Giuliano/Lagarde. whether they are not. However. the language or currency which a website uses does not constitute a relevant factor”. 2009). Bragg who traded virtual goods in Second Life and is an attorney in the real world).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. 1980). 13. it is precisely made outside of their “real” trade or profession. If including such a term in a EULA would suffice to prevent the application of Article 6 of the Rome I Regulation.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”. 2007). from invoking this protective statute. 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.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. if the user is considered a consumer. Second. Thus. In any case.2). In spite of that term. Although the wording of Recital 24 seems to suggest that the interpretation of “directed activities” should be narrow. Nielsen. we could argue that even if they made a profit in the virtual world. 6. 2009). 2009). Nielsen (2007) goes so far as to state that a website. 2004). Three considerations should be pointed out as regards the law applicable to consumer contracts. 2007. Third. Accordingly. see Ragno. which uses the English language and solicits the conclusion of contracts with consumers. 6 Rome I Regulation a contrario. legal scholars recommend interpreting it “as broadly as possible” (see e. only technical measures should be deemed satisfactory to find that activities of virtual world providers are not directed toward the E. on the other hand. It should thus be asked whether the “direction of activities” could be excluded through a EULA provision? It should not. in the context of virtual world EULAs. Another condition for Article 6. In that respect. 2005. the clear wording of Article 6. 2009. it would be contrary to Article 6’s purpose (Magnus/Mankowski. by whatever means. 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. 3 and 6. should be deemed to direct its activities to every country in the world. if Article 6 of the Rome I Regulation is not applicable. Regarding users who conduct virtual business in addition to a real world “trade or profession” (e. Antreasyan 5 .g. For example. this distinction should not have any impact. the fact is that its service is available (and widely used) outside of the U.2 Rome I Regulation). 6.S. i. 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. 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. 2009). Art. However.e. the provider can take steps to prevent that outcome.2) (see Tang. even if a choice-of-law provision may still be valid if it complies with Article 6. 6. Both of these measures are technical.

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

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

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

32 provides general principles to assess the unfairness of terms (which are not listed in any category). Member States (Tichy. such as Blizzard.S. in sections 4. Commission proposed a Directive on Consumer Rights (Proposal). E. 4. 35).2.U.3 of the French Code of Intellectual Property).3. Moreover. the E. regards dispute resolution through binding arbitration – a question that was adjudicated in the U. which provide that users do not have any virtual property rights. where they select a law or forum outside the consumer’s country of residence. that choice-of-law and choice-of-forum terms were unenforceable against E. thus interfering with EULA provisions. or the non-exclusive assignment to AOL of rights to all content put online by subscribers (see Joslove & Krylov. section 4. consumer protection regulation In 2008. by terminating their account). mandatory arbitration (Art.U.4 Intellectual property law As seen above.U. 2010). 7.U. regulation (see the AOL case.U. grant themselves ownership of all IPR relating to the virtual world (Ownership section in World of Warcraft ToS). the Proposal reaffirms. courts.U.U. Other terms commonly used in these EULAs will be reviewed hereafter. a general transfer of IPR shall not be permitted in France (Art. like Germany or Finland. 2010. Member States will be briefly presented below. In the majority of E. Article 38. 4. which are thus exposed to the review of E.2). and Art. It changes the approach of consumer protection regulation in Europe. means of enforcement in relation to unfair contract terms. Other providers. Without assessing the legal nature of virtual property. the standard of protection would be reduced (Brichacek. general waivers are not possible. Consequently. Second Life is famous for leaving all IPR for such content to its creator (Art. The Proposal introduces a new way of controlling unfair terms. For example. which hinders users’ access to justice. This last kind of term could prove troublesome under certain European countries’ legislation on copyright. courts. the Court ordered AOL to publish the judgment on its website and erase the unfair/illegal terms from its EULA.1 Second Life ToS). consumers.U. the “grey list” includes terms presumed to be unfair (Art. but an author may consent to particular uses].U. This provision could have disastrous effects for providers that did not draft their EULAs in compliance with E. Furthermore. but in various ways. 2005. authors’ rights are not (§29 German Copyright Law). Member States the Proposal would increase consumer protection. 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. Virtual world EULAs routinely address IPR issues pertaining to user-generated content. especially in consideration of the efforts/investments committed by users.4 The Future of E.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”.right of AOL to modify the agreement. public policy pertaining to IPR may apply in some circumstances (4.4).3.1. Winn & Webber. For instance. Selected examples of such policy found in E.3.1 and 4. it can safely be assumed that EULAs. L-131. We have already seen. in a more explicit way. could be considered unfair by E.3). and in which such property can be “extorted” from them by the provider (e.g.U. In this respect. see also the Directive on consumer rights proposal. 2010). shifting it from several minimum standard Directives to one comprehensive Directive on consumer rights which shall be transposed “as is” in all E. in Bragg and Evans – is invalid in Europe (Quinn. but in some countries. 2006). Such consent must be limited in scope [i. 34).” Antreasyan 9 . Some thoughts about what could be called “intellectual property private policy efforts” will then be offered. unequivocal and informed. Another “classic” term.e. Germany has a more rigid approach: only the execution of IPR shall be transferable. These kinds of terms can be found in many virtual world EULAs. the right of AOL to terminate the account without prior notice for EULA breach. 4. e.g. which are classified in three categories: the “black list” includes terms considered unfair in all circumstances.

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

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

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

36). 2011. NCSoft Corp. pieces. and more. and Jesper Juul (2005b. v. such as boards. (Boyden. Game rules are not instructions in the sense that is excluded from copyright. newspapers. “Systems” of this sort are excluded from copyrightability because they do not At least one report concludes that in 2007 video games reaped $41. Katie Salen and Eric Zimmerman (2004. paintings. and because it is fairly limited in scope: while games themselves are not copyrightable. not general plot concepts or ideas. There a number of other limiting doctrines in copyright law as well. 2 COPYRIGHT PROTECTION FOR GAMES First. § 2. which has much stricter requirements. and rules are uncopyrightable instructions. computer software. 1976.) Boyden 3 1 . 2005b. Copyright protects creative expression in works such as novels. but that activity is being commercialized in some way. there are a number of exclusions meant to draw a line between copyright and patent. Marvel Enterprises. unlike instructions to build a house or make a cake. (Juul. 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. films. The explanation that is usually given is that the essence of a game is its rules. that makes game rules similar to another poorly understood exception from copyrightability: systems. 2005) In this paper I argue that the rule against the copyrightability of games ought to be applied to video games as well. it must be minimally creative. p. (Nimmer & Nimmer. cards. (Video Game Industry. and end conditions. processes. under which a use can be made that would otherwise be infringing if it does not sufficiently intrude on the copyright owner’s work.) Copyright protects an author’s expression against not only verbatim duplication by others without permission. a brief synopsis of basic copyright law. Thus. they are systems. 4). Inc. music. because courts rarely stated the reasons for it. however. The explanation does not withstand scrutiny. recorded or written down in some fashion. however. there is the doctrine of fair use. Samuelson. just like other games. Selden. p. n. 2010. Rather. Second. There are three prerequisites to obtaining a valid copyright under the modern Copyright Act: a work must be original to the author.. a starting position. § 102(a)) (Registration with the Copyright Office and the inclusion of a copyright notice on the work are no longer required. p. even though descriptions or illustrations of those things might be. they specify a set of constraints and affordances. 457-58) The idea that games are systems has also been embraced by game scholars such as Chris Crawford (1984.1 courts will no longer be able to avoid determining the scope of video game copyrights. pp. procedures. game rules do not specify the steps necessary to achieve an end result. video games are not audiovisual works.As both video games and user-generated content become increasingly important economically. (Copyright Act. the rules determine how the game state changes in response.9 billion in sales worldwide (Caron. rather. one of which will concern us here: the rule that games are not copyrightable. There are several important limits on the extent of copyright protection. methods of operation.S. I examine what is left of video game copyrights once the uncopyrightable system is excluded. and $23 billion for DVDs in the U. e. 2008). Legal controversies are certain to arise in which players are not only recording or transmitting themselves playing. (See. One is the doctrine that only expression is protected. That is. It is well-established law that games are not copyrightable. I conclude by considering the implications for copyright law. and some or all of that information is output back to the players.d. As I have argued previously. 2007) Third. p. and even a particular description of the rules. 60) When you make a move in a game. and systems are not copyrightable. all of their individual components are. however. but also against later works that are “substantially similar” to the original.” that is..g. Finally. compared to approximately $40 billion for music. $27 billion for films. 50). and it must be “fixed in any tangible medium of expression.18[H][3][a]) The rule has long been a puzzling one. (Baker v. Second. 1879.

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

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

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

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

International Review of Information Ethics. involve someone’s attempt to understand and grapple with the meaning of a work. Games and Other Uncopyrightable Systems. Caron. Nov. or research. 1981). E. news reporting. Atari Games Corp. Amusement World. Ltd. copyright’s exclusivity stops at the moment the user encounters the work in order to avoid intruding upon that process. Oman.. 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. 1981). Burrow-Giles Lithographic Co. defendants should only be held liable for infringing adaptations if they copied those elements. Crawford. v. Copyright does not reach the act of reading. 3. comment. evidently. 672 F. Atari. 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. 42-45) and Jessica Litman (2001. But this limit on copyright has significant consequences beyond the realm of video games.): New Riders Press. Second. Atari. J. Boyden 8 . Electronic Gaming and the Ethics of Information Ownership. Copy. 547 F. § 102 (1976). a noninteractive recording as opposed to an interactive game. however.” (Copyright Act. 4. . for example: “criticism. J. Virginia Law Review. F. Scholars such as David Nimmer (1996. . Md. Supp. requiring a license. 1981). D. 439. news reporting. Baltimore: Johns Hopkins University Press.. Inc. But if what is copyrighted in a video game display is only the individual elements. Baker v. N.S. The defendants in Micro Star were not.2d 607 (7th Cir. June 18). Fundamentals of Game Design (2d ed. (2009). 18(2). It helps to explain the traditional categories of protection under the fair use defense. Inc. 2043-2098. Cal. 1998). The Art of Computer Game Design.S. Cybertext: Perspectives on Ergodic Literature. Academic Games League of America. Adams. circulating any of the game’s original code. scholarship. Formgen Inc. Atari. 1989). Thus the defendants in one case were held liable for selling a collection of add-on levels for Duke Nukem 3D. Formgen. Rep. Ill. Cir. (1984).D.C. L. L. and should not have been held liable. (2008. Sarony. v. Micro Star v. As copyright law struggles to adapt to the information age. 1996). Philips Consumer Elecs. v. 222 (D. (CCH) ¶ 25.. Burk. Allen v. That is. Inc.328 (N. Gaming Expected to Be a $68 Billion Business by 2012.S. Corp. 1976.3d 614 (9th Cir. C. (2004). 888 F. 217 U. much like play grapples with the meaning of a video game. namely that copyright ensures a return on the work of creating and distributing creative expression. treating the game display as a collection of discrete elements strengthens the hand of the player. Boyden. In that case. George Mason Law Review. v. M.of the protected elements within the “presentation layer” of the audiovisual display. Inc. .D. teaching . Nintendo. 89 F. REFERENCES Aarseth. Inc. B. 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. Armenia. Atari. however. 111 U. v. E. Am. 39. § 107) All but one of those.2d 878 (D. (2005). 1992.. 53 1884). (1997). Berkeley. Selden. (Micro Star v. Copyright Act of 1976. 17 U.P. video games will likely pose important test cases in establishing its new boundaries. Inc. 99 (1879). CA: Osborne/McGraw-Hill. Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds.S. 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. Ars Technica.Q. v.C. 5 CONCLUSION The rule against the copyrightability of games touches on a deeply significant concept in copyright law. p. (Lewis Galoob Toys v. 746 (E.. 101 U. Williams. 1982). pp. E. 90(8). Balkin. (2011).

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