Wednesday, November 26, 2008

Art Style: Rotohex

The damned problem with reviewing these great games is that there is so little to say. My Orbient review ended up being mostly a giant argument about when a game's challenge shifts from passive learning to skill. I didn't really feel like cooking up some new critical game theory for this one because its simplicity didn't really afford it.

It's Tetris with triangles and music rewards.

Tuesday, November 25, 2008

A Standardized Controller

This was one of those posts that has been sitting in my private slush pile for a long time. I kept pulling it down and trying to figure out what was missing or what the flaw was. On one level, claiming that all games should use the same control scheme seems like a perfectly reasonable argument to make. At the same time, there's the problem that this may inhibit game design. I use adventure games as an example of the diversity using the same setup can produce but that's also a medium that stagnated due to its failure to evolve in a way that attracted new comers and kept old fans happy.

As with anything in the slush pile, I gave up, gave it another linguistic polish, and posted the thing.

And wouldn't you know it, I'm already finding out the stuff I missed. Damn.

Friday, November 21, 2008

Machinima FilmFest 2008

A quick write-up of one of the winner's from Machinima FilmFest 2008.

God Bless Gamasutra and their link-friendly ways.

Sam & Max: Season One

As an experiment for that Kael piece below I also dabbled in shit talking for a review to see how useful it could be. Although I was quickly able to spot a lot of problems in other people's write-ups I was surprised that I ended up giving the game the same score as these people I considered "wrong".

In the end I decided that the problem was they weren't really expressing what was wrong with the game and instead just tacking it onto the issues they understood it lacked.

They're not wrong, they're just not saying it right.

Thursday, November 20, 2008

Pauline Kael - 2

Several crashed hard drives and long weeks of studying for law exams later, I’ve decided to scratch this insufferable itch and write about Pauline Kael again. I’m halfway through I Lost It At The Movies, the book I was informed was her best. My initial complaints have grown quite louder and more thorough. To start this piece off, I’m going to do precisely the thing she does not do. I’m going to admit my biases. I said in the last piece that I was an adamant proponent of Samuel Johnson and Matthew Arnold and I’d like to explain what that means. I base the value of an artistic work on the number of people who like it. More specifically, I base that value on whether people still talk about it well after it has ceased to be financially viable for the author or publisher. There is no marketing sustaining it, there is no consumer zombie purchasing the product because everyone is talking about it. It persists for a reason that defies our conventional understanding of what makes people consume a product and is often still economically viable well after the period it should have faded. I no longer consider my task as a critic to revolve around talking about why I like the product. That’s mostly irrelevant. My task is to explain why the hell this piece of art, this game, persists. I then offer my pithy opinion as to why this is occurring and generally listen to other people bark out their own. That’s what it means to follow their school of thought, roughly (actually very roughly) speaking. Yes, I have opinions and believe me when I say they leak out all the time when I try to do serious criticism, but I also acknowledge that they aren’t very important in the scheme of things when millions of people disagree with me.

Enter Pauline Kael. I noted that I didn’t think a critic like her could survive on the internet and I still stand by that statement. Thanks to the editorial insistence that we all have comment options on our articles and downright encourage it, you can’t just post a mindless opinion piece without suffering the consequences. The intrinsic problem I have with Kael, the question I scream every time I read something by her, is where is the other side’s opinion? The basic tactic she uses is to quote them and then launch into her own opinion. Given the vast amounts of writing power she possesses and the critic's inability to ever fight back, it’s a bit like watching someone create a Socratic dialogue with their friends. She comments about one film review, ”Time put it down more coolly in a single-paragraph review that distorted the plot and missed the point.” She comments about a Variety review, “if someone I knew said of [film name removed] what Variety did, I would feel as if the Grand Canyon had suddenly opened at my feet.” Or at her most charming, “I won’t degrade you and me by attempting to quote the barbarous language of the local critics: they didn’t distinguish themselves any more than usual.” I’m cherry picking and isolating her from the flowing praise she laps on these films, but it’s no worse than what she does to other people. Keep in mind that each time she is naming someone, calling out their magazine, and using that quote to parade about their idiocy, she is never talking about the rest of their arguments or even acknowledging they had one.

Kael eventually lost her job with the New Yorker because the Editor felt she refused to give a mainstream film positive marks. This starts to come up even in her early work here. Her dislike of ‘West Side Story’ is not so much an exercise in logical discourse as it is finding everything possible to complain about the film. I’m not anymore fond of “I Want to Live In America” than the next person, but complaining that the film is butchering ‘Romeo & Juliet’ seems a bit obtuse. It’s a dipshit musical fused with a reliable narrative, I’m not expecting it to jump through flaming hoops. Kael comments, “The irony of this hyped-up, slam-bang production is that those involved apparently don’t really believe that beauty and romance can be expressed in modern rhythms – for whenever their Romeo and Juliet enter the scene, the dialogue becomes painfully old-fashioned and maskish, the dancing turns to simpering, sickly romantic ballet, and sugary old stars hover in the sky.” She complains that the Old Friar has become an Old Jew, she complains that the Puerto Rican gangs aren’t Puerto Rican enough, and she wastes no ink deriding how corny the lines are in the lover’s scenes. Given that the film cleaned house at the Academy Awards and is still shoved down people’s throats to this day…one wonders if what she is complaining about is that everyone likes a film that she did not. The reasons paraded around and the critics mocked are just icing to cover up a very ugly cake.

What does it even mean when a large quantity of people like something that you do not? Are they stupid and you’re smart? Do you comprehend that something has a massive flaw that millions of people are missing or is there a much simpler solution? Is it possible that it’s just you? Before you have a response to that one way or the other, think about how you’re going to phrase either argument. As I said in the previous essay, another problem with Kael is that she does not seem to operate on any kind of definable logic. Were a game to receive low scores that you personally loved, surely we could at least point to a rational explanation for it? You like FPS games, this is a solid FPS, ergo we all understand your critical tendencies. There is no way to understand what Kael is going to like or dislike. People appreciate their critics being predictable in the sense that they see us as specialized filters. Take me, if a game combines game design, plot, and player input in a coherent way that delivers an interesting experience you’re going to get a good score out of me. My disgust with that experience is irrelevant (you don’t want to know how many games I give high scores that I don’t personally like), I’m just observing how the parts come together and gauging the whole. If I judge the developer’s intent and final product to have succeeded, then that’s all I expect. The rest I leave up to the audience. Kael, on the other hand, is a veritable Animal Farm with her willingness to change standards. She praises the Paul Newman film ‘Hud’ for its course humor, rape scene, and notes how the audience loved it. Yet when the film ‘One, Two, Three’ comes up she derides it’s sexual humor and class jokes as “overwrought, tasteless, and offensive, - a comedy that pulls out laughs the way a catheter draws urine.” Witty, yes. Powerful prose, yes. But there’s a goddamn maniac behind the controls of that power and it’s going left when the last time that same pattern was presented to it she went to the right. To put this into perspective, I hustled up the film student I knew from college who had studied Kael and got his opinion on the matter. He said, “To be totally honest, I never saw much logic to her liking or hating a film either. It just seemed to boil down to what time of the month it was for her.”

I’m not going to name the person who said that nor is it very appropriate that I just repeated it. Such sexist conceptions are as shallow as Kael’s struggle to find something wrong with a film that did not jive with her when there was no intrinsic flaw beyond her own distaste. To believe that either audience or critic has an inferior perspective because of their failure to cohere with your own raises a lot of fundamental issues. Given the number of films that Kael goes to great lengths to embarrass other critics for liking or disliking that I’ve never heard of, I can safely say that getting into an intellectual pissing match with someone over a piece of art is 99.9% of the time a waste. The fact that a film student would say something that nasty about her warrants something else: if you live by the sword then you die by it. For someone who talked as much shit as Pauline Kael does for no reason other than some funky ass like or dislike for a film…perhaps it’s warranted to mock her mood swings. In the last post I had several commenters argue that there is a value in calling out critics for their failures and pointing out that a game everyone is praising is actually not particularly great. Is there value in such discourse? Yeah, definitely. Kael is still a genius and like I said, she’s in command of an awe inspiring degree of power to shape and twist people’s minds. Given her psychotic fan base and the charming inspiration for shit-talking that she created, one might dare wonder how the critical world would go on without her influence. But I still believe that using that ability to talk shit about a bunch of critics that nobody remembers and rip into a film that no one recalls except its adamant fans accomplishes only one thing. You sound like a giant bitch.

There are a variety of reasons for writing these posts about Pauline Kael and there will be more once these damned exams are over with and I’ve got some time to finish her book. The reason I started these posts months ago was because of bloggers yammering about how video games needed someone like this critic and I decided to study what they were talking about. But with Kael…I think her most important lesson to video games is what not to do. This is too diverse a medium, this is art that is principally defined by player input. You cannot become upset at the notion of someone having a different experience from you in a video game, that is intrinsic to the very reason they are video games. Parading about the complaints of other critics without at least exploring their points is not just short changing your argument, it’s short changing the very reason video games are interesting. People can have different experiences with them and those will each be equally valid.

I still don’t really know what to tell a video game critic about how to approach their medium. I’ve studied a lot of different people crossing multiple artforms now but none of them had much insight on how to handle something like video games. So I just keep figuring it out as I go and mixing up as much old wisdom as I can possibly make fit. I do my little song and dance, but I’m as much a crap shoot as the next blogger. I wish I believed in the critical power that Kael believed in. That what I said was somehow going to change everything and make people start believing in some profound stronger view of what the medium was capable of. I think video games are going to achieve that but I certainly don't believe it's going to be because of me.That I could somehow make some AAA title with millions in marketing fail based on my very word and will. And yet…by achieiving such a goal I wonder if being a cultural guide would just turn into a giant session of ‘Where can we go next?’ By all accounts, Kael became so popular that she destroyed the profit margins of films and ruined several director’s careers. And by all indications from what I read, the logic of that power was so bizarre that she shifted the goal of where films should go whenever it suited her and to the suffering of others. If a critic is just a person coercing an artistic medium they love to achieve a certain potential, what happens to them once that medium has done it? Do you accept the victory or do you keep pushing it until you’ve run out of ideas? I suppose that’s more up to the critic than the medium, if Kael is any indication.

Tuesday, November 18, 2008

ZA Critique: Call of Duty 4

I often don't have enough space to go into every element of a game in the blog posts. It just doesn't make sense to throw more than 1200 words or so at a person in that format. It's a get in there, get the idea across, and end with flourish kind of setup. So I decided to narrow this critique down and just focus on the most interesting part of the game.

On a lot of levels this is how the process is sustained best, ignoring the faults and just talking about the interesting parts of the game. In COD 4' case, the three passive sequences and how they are exercises in amusement park ride design. The rest of the game is fine, you play an especially badass marine/SAS soldier and the game design reflects it.

These moments however, are quite interesting.

Monday, November 17, 2008

Video Game Mods and Copyright Issues

My Prof. has returned my law paper with generally good marks and I've completed one of my final requirements before I can graduate from law school next spring. And now...the thing is basically just going to fade into oblivion. The high and mighty forces at the Law Review deemed the topic to be too speculative and not important enough to merit coverage. I can't blame them, I'm not on staff and I'm essentially predicting a lawsuit that is going to happen in 3 to 5 years. That and my GPA isn't high enough and blah blah blah, the inner-workings of law student drama makes the cast of 'Mean Girls' look evenly tempered.

Anyways, I'm not going to let something I've spent 6 months on go to piss like that. Below is a hacked up and easier to understand version of the essay that I like to think a layman willing to sit through a lot of law babble could understand. It's basically an explanation of why the courts are completely unprepared to handle mods, their ownership, and how it's going to be an unholy legal battle unless Congress puts some legislation together. It doesn't take a law review article to calculate the odds of that happening.

As always, I AM NOT A LAWYER. The conclusions in this essay are opinion and interpretation. Should you have any legal questions, please contact a licensed attorney. Under no circumstances do you tell someone that some dumbass law student wrote about how you might have a legal right to your mods. This is purely an exercise in research and conjecture.

This just a copy and paste job. I cited my sources with footnotes for the paper because my professor preferred it that way. I didn't code in the HTML from the paper either, so brace thine eyes for raw, unmarked words.


Video games and copyright law have always had a tenuous relationship. The problem is threefold. First, players significantly alter the content of video games and keep them from ever being a fixed series of images. Second, the software used to generate the images has rarely been considered a protectable asset by the courts unless it is copied in its entirety. Third, courts have typically relied on the audio visual display clause of the Lanham Act to protect the images produced by the software and to dismiss the player input as a relevant aspect. Although this system worked when video game disputes were first coming about and well into today, a new trend in video games may upset this method. The culture of player modifications and improvements to pre-existing games that have traditionally been viewed as fair use by the courts creates a new problem for copyrights and video games. Do these qualify as fair use, a derivative work, or both? If the player is increasing the value of someone’s product without compensation, what rights do they have to their original work and what rights do the companies have to these improvements? The first part of this essay will outline the Legal Background that was established during the eighties that people rely on to demonstrate their copyrights and the rulings that create a loophole for player modifications. Then it will discuss the current trends in video games that are leading to this problem. Finally, it will go into the Legal Analysis courts use for copyrights and how those can best be applied to video games.

Legal Background

The foundation of video game litigation comes from what some scholars refer to as the Atari Trilogy. Three lawsuits over three different video games that determined the parameters by which a videogame’s copyright could be gauged. The first, Atari, Inc. v. Amusement World, Inc., was the infringement of the game Asteroids. In that game the player commands a spaceship through a barrage of space rocks and obstacles. The defendant’s game was substantially similar: it was an arcade machine and involved piloting a spaceship through space rocks. The courts found 22 similarities between the games and 9 differences. The defendant’s principally had different visuals, sounds, and played faster. The game was copyrighted under the Lanham Act under the category of audiovisual works and the courts concluded this was legitimate. The game was fixed in the circuitry of the computer and it was clearly projecting a film back at the user. However, relying on Herbert Rosenthal v Kalpakian, the defendants did successfully argue that the plaintiff was unfairly trying to copyright an idea as opposed to the expression of that idea. The Defendant was entitled to make a game about navigating a field of space rocks so long as their version of it was substantially different in the protectable elements. The 22 similarities were necessary for any game involving space rocks and thus the defendant was not infringing.

The second, Atari, Inc. v. North American Philips Consumer Electronics Corp., involved a PacMan clone and whether or not it was substantially similar to plaintiff’s copyrighted work. Unlike the previous ruling however, the courts held that the game was infringing. PacMan is a game where the player controls a yellow ball that moves around a maze eating dots while being pursued by ghosts. When the player directs Pacman towards a larger sphere found at the corners of the map, they have the ability to eat the ghosts. Defendant’s game was entitled K.C. Munchkin and involved a blue ball navigating a maze while ghost monsters chased it. In that game the player is also able to gobble a power pill and fight back against the ghosts. The mazes were different and the ghost exit shifted every 90 seconds. Players could also create their own maze and store it on the home version of K.C. Munchkin. The sounds and visual representations were also significantly different. The courts decided that Judge Learned Hands abstraction test would be the best method for comparing the two games. The courts found that the idea of the game itself was not protectable, however it outlined that the shapes, sizes, colors, sequences, arrangements, and sounds provides something new or original to the basic idea. The use of a gobbler character, ghosts, power-up pills, all while chasing around a maze were found to be conceptually similar enough as to constitute a copyright violation. The fact that the defendant had different components and audiovisual displays did not preclude finding infringement. The courts declare, “Video games, unlike an artist’s painting or even their audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle difference in artistic expression. The main attraction of a game such as PAC-MAN lies in the stimulation provided by the intensity of the competition. A person who is entranced by the play of the game “would be disposed to overlook” many of the minor difference in detail and “regard their aesthetic appeal as the same” The problem with the game was that it captured the “total concept and feel” of PacMan. This differed from the previous ruling which relied much more on a conceptual analysis of the two games without actually playing or analyzing the appeal of either game. Rather than argue the merits of the actual characters being known and copyrightable entities, as in Anderson v. Stallone, the courts tried to analyze the overall experience the game itself generated.

The third, Atari, Inc. v. Ken Williams dba On-Line Systems, involved another PacMan clone entitled Jawbreaker. It was essentially a home computer version of the game that ran on different programming. Although it still involved moving through a maze, being pursued, and eating power pills the game was otherwise substantially different in terms of visuals and sound. The courts ruled that there was nothing protectable about the game of Pac-Man itself and that the laws do not protect the strategy of moving through a maze while being pursued. The ruling was partially based on the fact that the two games were in substantially different markets and thus would not affect one another. One game coming out for the personal computer, the other was exclusively on the Atari game system and could thus not seriously affect one another’s sales. It’s important because it reinforces the standard set in Atari, Inc. v. Amusement World while outlining that so long as the two games are working on different systems, they will not be as likely to infringe with an existing copyright.

The issue then became defining what is a necessary element for any idea a video game is expressing and what can be unique. In Williams Electronics, Inc. v. Bally Manufacturing Corporation, the courts had to decide whether two pinball machines that used a similar interface were infringing on one another. The plaintiff’s video game used a combination of standard pinball devices with an electronic interface to create a new kind of game. Players would aim for targets and receive feedback via an electronic screen, flashing lights, and digital noises. The game was called Hyperball and the plaintiff had successfully copyrighted the game in 1982. The defendant’s game, Rapid Fire, used similar electronic feedback but had a substantially different visual theme to it. The game was specifically marketed as superior to Plaintiff’s game. The courts were quick to point out that the purpose of copyright law is the expression of an idea, not the idea itself. The actual game of pinball cannot be copyrighted but rather a particular expression of the game. The more this expression moves away from the general form and into a unique form of the game, the more that is protected. Relying on the standard proposed in Atari, Inc. v. North American Philips Consumer Electronics Corp., the courts concluded, “In a video game, the audiovisual aspects of the game that appear on the screen are conceptually separable from its utilitarian aspects – a computer program and hardware.” The canon and rolling ball are obviously utilitarian, so the courts relied much more heavily on the audiovisual aspect to distinguish the two games. Using this exclusive method of only comparing the audiovisual product, the courts found no infringement.

The audiovisual comparison is settled by determining how great of a change had to occur in the videogame display for it to not be infringing. Two arcade games that were released, Scramble and Scramble 2, featured nearly identical audiovisual elements. The plaintiff sued for copyright infringement. The defendants argued that the plaintiff did not have a proper copyright because they had not registered the actual computer program that protected the game and instead only owned the audiovisual elements. The courts dismissed this argument and pointed out, “The popularity of a video game depends on the creativity of its audiovisual display, not for its computer program. Indeed, a potential customer does not care about the program except insofar as it affects the audiovisual display.” They went on to conclude that the heart of a video game is the actual play, echoing the sentiment in the ruling concerning Atari, Inc. v. North American Philips Consumer Electronics Corp. The overall feel and play of the game created by the audiovisual work was what the copyright protected, not variations in the display produced in the video. Whereas courts are willing to allow someone to copyright software code fairly easily, they are much more reluctant to let someone copyright a visual element. This idea was also explored in the case Apple Computer, Inc. v. Microsoft Corp. except in that instance Microsoft had licensed the software but were arguing they were allowed to use similar visuals because they could not be copyrighted. Microsoft won, illustrating that any attempt at combining the two standards creates a radically uneven set of ideas that the courts are protecting.

Several courts had problems with the audiovisual protection however, since no specific consensus could be reached on how to gauge the audiovisual elements. In Midway Mfg. Co. v. Artic International, Inc., the courts fully outlined the problems that come with this method of assessment. The court states, “Playing a video game involves manipulating the controls on the machine so that some of the images stored in the machine’s circuitry appear on its picture screen and some of its sounds emanate from its speaker.” The judge then pointed out how this was highly problematic with the 1976 Copyright Act. Section 101 notes that the audiovisual work must be a series of “related images”, which conflicts with video games because the image changes every time someone plays it. Furthermore, the image stored in the programming are not specifically what are seen in the game, these change due to player input. The judge compares this to “arranging the words in a dictionary into sentences or paints on a palette into a painting.” The dilemma is whether the act of playing and creating a unique image constitutes a creative act on the part of the player and thus conceptually changes the nature of the video game itself. The courts determine that when it comes to play alone it does not. Merely changing the course of events in a game or how an action sequence is not enough to be creative input. Since the number of images and variation the player can create are still kept to a definable minimum, they are not like a painter. They instead are choosing from various options stored that create a set number of possible paintings. Finally, the Judge concedes that speeding up some artistic works is considered fair use such as with a record at a club. This was considered fair use by some courts as DJ’s in record clubs were accelerating records to make them more involving for the club’s patrons. A sped up record only appealed to a small number of potential customers while a sped up video game was appreciated by a large group of players because of the heightened challenge. However, because the demand for sped-up records is much lower than two nearly identically video games, the infringement is sustained.

The software portions of games were not immune to copyright dispute. Although courts were willing to acknowledge copyright infringement for audiovisual similarities, reliance on similar software was also debated in courts. In Accolade, Inc. v. Distinctive Software, Inc. a licensing dispute forced courts to outline what areas of code could be infringed and what could not in regard to the audiovisual display in a videogame. The defendant was contracted by plaintiff to create The Duel – Test Drive II. Defendant subsequently created their own game entitled Outrun, which used similar software but the audiovisuals were significantly different. The question was whether Accolade could own the computer software in the game. The courts determined that they could in regards to the likelihood of winning on the merits. Due to the nature of the licensing agreement Accolade had not fully stipulated their full rights to ownership, but the courts gauged the two programs for the sake of the case. The defendant’s pointed out that only routine library commands were duplicated and not any substantial element. The courts state, “Duplication limited to routine commands, we believe, is not sufficient to establish substantial similarity between the design concepts of the two games.” Although the courts did note that outside experts could be introduced, they concluded that as long as the portions of code used were generic and not specific to that game then there was no infringement.

In contrast to that is a ruling where the courts did find violation of copying the software as in Williams Electronics, Inc. v. Artic International Inc. The plaintiff’s game, Defender was significantly similar to defendant’s game Defense Command in terms of both audiovisual and software components. The audiovisual elements were what the player observed while they manipulated the controls, the software was what generated the image through programming and circuitry. What makes the case important was that plaintiff had copyrights for both the audiovisual display and the computer program that ran the game. Although the circuitry was slightly altered, the software was so similar that glitches and diagnostic patterns both ran exactly the same way. An outside expert eventually concluded that 85% of the programming elements were identical. In conjunction with the copyright notices found throughout the game’s audiovisual elements and in the code itself, this was deemed a sufficient violation of a video game’s software copyright.

Yet the problems noted in Midway Mfg. Co. v. Artic International, Inc. were to begin arising again as the technology in video games developed more fully. The question of authorship in a videogame in regards to input would come from a variety of angles. In Midway’s game Mortal Kombat 2, live actors were used capture the motions of appearance in the games. After the contract failed to extend into the promised commercial and film options, the actors sued. A part of the case involved the plaintiffs alleging that their images and likeness had been used unlawfully or in the alternative that they were joint authors of the program. Due to the contract the unlawful use was dismissed but the second claim generated discussion. The courts defined a joint work as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or independent parts of the unitary whole”. The two aspects of the collaboration must be able to stand on its own in a dispute without the other work, working together alone will not produce joint ownership of a copyright. Since Midway never considered the actors as co-authors, edited the actor’s performance, and altered it significantly using digital effects, then there was no joint authorship. Because they were contractually stipulated as ‘work for hire’ and have no ownership rights to the source code, then they were not joint authors.

Subsequent lawsuits concerning the role that outside authors and video games would play became important in terms of altering either the software or audiovisual display. In both instances, the courts ruled in favor of the person creating modifications and selling them. However, the contractual obligations that barred the actors in the Midway case was not an element. In Lewis Galob Toys, Inc. v. Nintendo of America, Inc. a device known as a Game Genie was created that could modify pre-existing cartridges that would allow the player to tailor the game’s audiovisual display. The device functioned by blocking data sent through the cartridge into the Nintendo game console. It was attached to the cartridge and did not alter the data in any permanent way. The dispute was whether or not the device constituted a derivative work of Nintendo’s copyright. The courts argued that it was not because the alteration was in no way permanent or that it incorporated copyrighted works in the Game Genie itself. The court comments on this non-fixed nature by stating, “For example, although there is a market for kaleidoscopes, it does not necessarily follow that kaleidoscopes create unlawful derivative works when pointed at protected artwork. The same can be said of countless other products that enhance, but do not replace, copyrighted works.” Attempts to argue that the audiovisual display was being violated since Game Genie displayed the images from the cartridge were ignored because no images were imbedded in the device itself. The device is useless by itself and does not inhibit the sales of Nintendo products. Had it somehow adversely affected the value of the product, then it would be in violation of ‘fair use’. The main standard for fair use in this regard was established in Sony Corp. of America v. Universal City Studios, Inc. where the courts struggled to define whether taping a show or movie constituted fair use. Sony demonstrated that a significant number of copyright holders would not object to their work being distributed in this manner and the plaintiff failed to prove that it would have a significant negative impact on their sales. The only remaining possible argument, that Nintendo wished to release a similar product, was also debunked.

The courts have been willing to extend this right of fair use regarding video games and players beyond just mechanical modifications. The most significant ruling was in Microstar v. Formgen, Inc., where the issue of audiovisual modifications first came under scrutiny. The defendant distributed the game Duke Nukem 3-D which included a level editor and brief instructions on how to use it. Players then used it to create their own levels and would distribute these on the internet. The game even went so far as to include a message that reminded players about the editor and to try it for themselves. The plaintiff went online, collected many of these levels, and sold them as a boxed set of new content for the game. Relying on the ruling regarding the Game Genie, the plaintiff pointed out that the levels do not run without first purchasing the original game. All of the copyrightable elements of the game are not on the disk, only code to construct maps after the game reads it. The courts ruled that this was fair use. However, they did note that since defendant claimed it intended to release its own map pack this could potentially be in violation. The issue of whether this content could be distributed for commercial purposes without the defendant’s intent was also addressed. Since the plaintiff had knowledge of the Licensing Agreement, the mere fact that users were permitted to create works for non-commercial purposes does not imply an agreement to commercial competition. The courts state, “[Plaintiff’s] claim that movants waived or abandoned their copyright protection by encouraging its users to share new levels, or MAP files, with the rest of the world is rendered moot by the fact that what the users create and share is not protected in the first place.” Thus, the courts concluded that the maps created with the level editor were not copyrightable or commercially malleable at all. The issue here is not so much the court’s failure to define the status of the mods but rather their ruling that the game developers did not specifically own them. Since these were just downloaded maps that had not been specifically created by the distributors either, the courts asserted that they did not own them either.

Modern Trends and the Mod Community

As the internet enabled mass distribution of files and data between people, a community of people who would create modified versions of video games and distribute them for free began to grow. Known as ‘Mods’, these files were very similar to the Duke 3D Maps. One still had to own an original copy of the game to play them and Game Developers encouraged this because it gave an extended life to the game. Numerous strategy games such as Command & Conquer or Heroes of Might and Magic began to include map editors to increase the viability of the game. As this trend continued however, the user modifications began to be more popular than the original games that had been released.

The best example of this is a modification to Valve’s game Half-Life. The game itself is classified as an FPS (First Person Shooter): the perspective is always from the head of your character and gameplay chiefly consists of moving through 3-D levels and shooting enemies. Two programmers, Minh Le and Jess Cliffe, created a mod called Counter-Strike that added a multi-player component to the game. Players would either play as the army or terrorists and fight until one team had accumulated a set number of kills. It was immensely popular, garnering over 10,000 downloads in its first 2 weeks online. Realizing that the modification had commercial appeal, Valve hired the two programmers and released several commercial expansions based on the game. With each of these, numerous user mods were created to adjust the experience to a player’s tastes. People would add different weapons, characters, or game play methods. As time went by, Valve sought to increase sales of its newer game Half-Life 2 that ran on a different engine. It instituted mandatory advertising in all Counter-Strike games, forcing players to observe posters and banners for the new product. Many players expressed deep frustration at having their work invaded, resulting in a huge petition claiming that Valve was violating the original terms of service. The thread was eventually deleted without anymore explanation.

The commercial viability of allowing users to create their own levels did not go unnoticed by console developers. Typically editors were a feature only seen in computer games, but the latest generation of consoles began to include similar features. A player could create a map and have it automatically exchanged whenever someone wanted to play them on it. An example would be Halo 3’s Forge feature. This allows you to take pre-existing maps and adjust the location of weapons, vehicles, ramps, and spawn points. A spawn point is where the player re-appears after they are killed in a multi-player match. The game’s developer, Bungie, opted to not allow full-scale map editing so that they could continue to sell maps to players as additional revenue. The game is played in a very similar manner to Half-Life. Several games planned for release this year will include a feature but numerous additions. Ubisoft’s Far Cry 2 will feature a full-scale editor that allows players to make their own maps as well. Previous entries in the Far Cry franchise featured this element but the company is actively advertising this feature. Ubisoft’s current plan is to allow users to upload 5 maps and see how they’re rated. If a user releases high ranking maps, then they will be allowed more slots to upload more maps. Both games are deriving an extensive amount of value from the modifications that were considered unprotected in the Duke 3D case. However, given that the players don’t have the ability to create their own assets it could probably be argued that it’s still no different than actually playing the game. As with the ruling in Midway Mfg. Co. v. Artic International, Inc., the player is just rearranging words in a dictionary, not creating new content. The scale upon which they are rearranging these words is significantly larger though.

The most significant of the new games featuring mods this year is Sony’s Little Big Planet. Players are able to not only manipulate the map but also create objects and characters in the game. Entirely original art & assets will be created and distributed using an in-game editor and passed around using the internet. This is a significantly large amount of outside influence than other console editors, the difference being the extreme ease that players will be able to use it. Unlike new art assets in previous mods, which were relatively few and hard to make, a massive amount of free content is going to be generated. Sony has been reluctant to grant users rights to their works however. The On-Line User Agreement states, “You will have the option to post, stream or transmit content such as pictures, photographs, game related materials, or other information through PSN to share with others (“User Material”), provided no rights of others are violated. To the extent permitted by law, You authorize and license SCEA a royalty free and perpetual right to use, distribute, copy, modify, display, and publish your User Material for any reason without any restrictions or payments to you or any third parties.” All users must agree to these terms before they can distribute content from Little Big Planet online. As of this writing, there are already significant complaints being leveled at the games moderators for deleting levels that featured any form of infringing copyrighted material from separate media.

The mod community has been so successful that several companies are now simply releasing the software and asking players to create content for them. The website Kongregate does not actually own Flash, the software used to make their games, but features a full selection of Flash titles made by amateur programmers. The programmer receives a percentage of the ad revenue generated by the game. In order to encourage development of new and interesting games, the website now features a series of “Shootorials” that teach the player how to make games themselves. Another website that is focused on distributing a game engine is Metaplace. Developed by Ralph Koster, the game would be a massive aggregation of art assets and programming. People would create games using each other’s art with one universal program and distribute it through the internet. Finally, even Microsoft has begun to distribute software that would allow players to create basic games for their Xbox Live service. Like Kongregate, players would receive a percentage of the profits a game generated. Each of these engines will allow the user to create a unique audiovisual display using the companies software. As with the console mod options, the companies are actively encouraging this and deriving value from the mods produced.

Whether it is from companies distributing software for mod production or console games that allow for variation of the game, the ability to create modifications is becoming an intrinsic part of the video game industry. As more money begins to come from player generated content, such as with Counter-Strike, the issue of what rights and claims both the player and company can make comes into question. Due to the differing methods of analysis laid out by the courts, that question is still highly debatable.

Legal Analysis

There are three basic legal issues that need to be addressed in order to deal with the mod communities inevitable financial impact. First, the separation of audiovisual elements and software must become firmly recognized by the courts. Second, the rights of mod authors must be outlined and recognized by the courts. Third, a new method of assessing the copyrights of video games that addresses games beyond their audiovisual display must be developed to encourage incentives for those contributing to a video game without actually making the initial copyrighted product.

The reliance on the audiovisual elements of a videogame was a necessary step by courts when first addressing copyright infringement in videogames. As the court in Atari, Inc. v. North American Philips Consumer Electronics Corp. pointed out, the average consumer is unaware of the program inside the arcade game. With the large number of games that are now dependent on the player owning a particular piece of software before they can actually play the mod, this distinction no longer works. A mod created with a videogame is intrinsically linked to the game it originated from and consumers will now be aware of it. To qualify for the standard of fair use is to not damage the sales of the original software and the game developers must have intended the users to create content in this manner anyways. Given the inclusion of user-friendly development tools, one could argue that the latter is almost a given while the former raises a lot of question. With software now allowing users to create unique objects and art inside the game, the courts will have to confront two mods having very similar audiovisual elements but relying on separate programs. Whereas the courts dismissed the software variations as unimportant in the Williams case, a clear decision must be made as to whether two similar games originating from different software will count as infringement. On the one hand, developers are going to be interested in preserving mods unique to their software and not letting them be extensively mimicked. Mod authors should be rewarded for their ingenuity and incentives must be provided by assuring them their games will be protected. On the other, ingenuity and creativity could be repressed if authors are not allowed to explore other people’s ideas and build upon the principles of ‘Fair Use’. This would specifically relate to the third element of the four factor test, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”. By creating a clear separation between these two elements that allows audiovisual work to be protectable independent of their software, authors will be assured of greater rights to their work and thus encouraged to produce more. The owners of the software itself receive the benefit of sales by creating successful software that people find the most adept for creating mods. In this way, the software becomes a tool while the mod becomes an expression.

The rights of the mod creators must be firmly established by the courts. The rulings in the Mortal Kombt 2 case and Duke 3-D both highlight contractual methods to exclude the author’s rights. In the former case, establishing that the actors were considered ‘work for hire’ by the company and the contract took away the rights to their audiovisual contribution. As the courts noted there, the contribution must be able to stand apart from the initial product in order to have joint authorship. As mod features become more complex as in Little Big Planet, modders will now be able to point to a significant amount of contribution to the game. Adjustments to physics, programming, art, sound, and music are all possible today. A distinct standard that establishes how different and how much new art must be contributed before a mod is separate must be established. By creating legal opportunities for the modder to receive protection from copyrights it will encourage development of new games and creative ideas. Although the ruling in the Duke 3-D case does not establish authorial intent (the distributors of the map pack did not create the levels), by declaring the mods unprotected it removed the incentive a player might have to create more advanced works. These rights must be established within the context of the mod still relying on a piece of software. An objective analogy would be the relationship a film director has with the television. Even though they need the T.V. to show their film, the creators of the T.V. do not have any distinctive rights to the products being displayed.

Finally, a firm standard for comparing the audiovisual elements of a video game must be established. Judge Learned Hand’s ‘abstractions test’ provides an excellent foundation that even someone unfamiliar with videogames would be able to make an analysis with. The actual idea of the game is not protected, but rather the expression of that idea. A mod must establish itself as a sufficiently unique expression of a game through the audiovisual display. A side by side comparison of the original would be the best way to determine this. This does not fully explore the potential for infringement however, as the courts noted in Accolade, Inc. v. Distinctive Software, Inc. an outside panel or expert may be necessary. An outside audience of gamers may be needed to test for the Scenes a Faire element or the parts of a game that are simply conventional. Scenes a Faire is the legal term for a moment or sequence in a copyrighted work that would have to be there no mater what. Videogames feature many elements like this like control schemes, weaponry, or display conventions that are simply considered the industry norm. The use of a particular kind of gun or weapon may be so commonplace in games that it is not protectable or unique to any game. Testing for these elements would ultimately rely on an audience test to see if the common person would notice the lack of difference. If they do not, there cannot be any infringement even if careful analysis demonstrates it.

Ultimately, the overall standard that should govern any copyright infringement with videogames should be the “Total Concept and Feel” Standard as utilized in Atari, Inc. v. North American Philips Consumer Electronics Corp. The test requires the entire concept or product to be observed, not just individual elements, and to see how they come together. This best covers the dual nature of video games and covers the importance of player participation. Unlike a film or book, which is observed passively, a video game is itself about the feelings it inspires from the player. As the courts noted in the Atari case, ““Video games, unlike an artist’s painting or even their audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle difference in artistic expression. The main attraction of a game such as PAC-MAN lies in the stimulation provided by the intensity of the competition. A person who is entranced by the play of the game “would be disposed to overlook” many of the minor difference in detail and “regard their aesthetic appeal as the same” Mods and video games must be judged on a case-by-case basis that compares the overall feel of each game in conjunction with the audiovisual elements to detect infringement.


In the end, a sound legal and financial plan to accommodate the rights and needs of the mod community is inevitable. With developers actively encouraging their presence through easy-to-use tools and financial incentives, the inevitable copying and infringement that comes with such an environment must be developed while still encouraging the constitutionally protected incentives that the Copyright system provides. If a proper legal foundation can be set out from the beginning, then it could pave the way for greater growth and development in video games.

Friday, November 14, 2008

The Graveyard

All the fuss about criticizing other people's critiques got me curious, so I experimented with it a little bit while writing up The Graveyard. Good game, definitely worth playing.

Here's the post.

Tuesday, November 11, 2008

Games As Language Systems


My hard drive crashed and I can't get online except the Wii.

Thursday, November 6, 2008

Sex Games

I can't quite remember how I got onto this topic but my curiosity to find a video game that actually explicitly featured sex led to some pretty interesting spots. There were plenty of examples, it's just that I was aiming for one that handled the topic tastefully.

Found an example of a mature one and an immature one. They're equally interesting in their own way.

Tuesday, November 4, 2008

ZA Critique: The Darkness

First off, go vote.

Second, another analysis of an old game. This one is a wee bit more modern, coming out last summer to generally positive reviews and decent sales. Some people complained about the multi-player, which I never checked out.

It's basically a breakdown for how the game design explores and emulates what's going on in the narrative for a third person FPS. It's all linear and aside from some really interesting options at key moments, the game is all shooting. What makes it so interesting is that the plot is a fairly cynical one about losing your soul.

It's easy to make a game design about being Captain Awesome and saving the planet, it's much more interesting when someone successfully makes one about quite the opposite using the same basic gameplay.

Monday, November 3, 2008

Animal Paradise

I've always thought it healthy for a gamer to play a game that's widely outside their spectrum every now and then. Studying a game intended entirely for someone else is almost like observing 2 people talking while they ignore you. It helps you get a better appreciation for the language of game design and how it's working on your brain. In that sense children's games are particularly handy because it's a very simplified version of much more complex games. Kinda like looking at the original version before it mutated into Spore or Halo 3.

I can appreciate that this review might not be very high on people's personal interests but Animal Paradise ended up being a very interesting game demonstrating how not to do an animal sim.

"There are a couple of different ways to get a person to care about something that isn’t real. You can get them to want it to be true, you can get them to be afraid it’s true, or you can make it somehow involve them personally. Video games usually rely on a combination of the first and last of those but with a simulation, all three elements are utilized. A pet sim typically depends on inducing enough player involvement that the program is now acting like a mirror or reflection of the player based on their choices. The successes of that reflection, your pet being happy because of your actions, then becomes a motivation for conduct because you want that success to be true. The same happens when you avoid failure; it’s a reflection of you and you don’t want that to be true so you work against it. A proper sim thus sustains a long-term gazing into the mirror by the necessity of your continued involvement: your dog just pooped and the game reflects that you’re a good person by cleaning it up. As bizarre as it sounds, this will keep you interested and playing a video game for hours on end by the laws of sheer human self-interest."

Man...I would love to see the look on an 8 year old kid's face when someone read that to them.

Here's the rest.

Saturday, November 1, 2008

Pauline Kael - 1

Read the comments on this thing. A lot of people are making good points and I'm realizing I failed to communicate my point properly. Once I read more of her and I get some solid quotes down, I'll make a better case. For now, I've made a few minor tweaks to prevent further confusion. 11/4/08

I’m progressing through Pauline Kael’s ‘I Lost It At The Movies’ and have been having mixed feelings about her. She’s sharper than Bangs was…but then again Lester was dealing with a centuries old medium and she only had a few decades to juggle. It’s not that she makes fun of other critics excessively, although such conduct would not survive long on the internet I appreciate the need for spectacle, it’s that you get the distinct impression she is telling you why other critic’s suggestions are wrong. Which is a ludicrous criticism to make about a critic because that’s exactly what we do, sit down and make the case for a piece of work or make the case against it. The line she crosses is thinking that she is somehow doing something more than making an eloquent recommendation. Judging by her obituary maybe she was, a few directors claimed she ruined their careers by ripping them apart. I’m not sure how I feel about a critic developing that kind of power and, should they possess it, then proceeding to use it in such a manner. To be honest though, I think it’s mostly a delusion her fans and students of her philosophy developed.

As with Bangs I’m studying Kael in a void. I only recognize about a quarter of the films she’s discussing and am purely studying her craft as a critic. I am and will always be a disciple of Samuel Johnson and Matthew Arnold, their schools of thought and criticism dominate my work and that’s a fact I’m proud of. However, it is incredibly helpful to improving my work as a game critic to study other people and so far Kael has certainly delivered. She’s damn good at razoring in on themes and ideas and communicating them eloquently. My Netflix queue continues to have additions added based on her sterling recommendations. Which is where Kael is at her absolute best: finding old films and explaining why everyone should care about them. This was an era before videotapes so her work was especially important for the art houses showing old movies. She used to work in one herself and you can see that side of her coming out constantly. One would half expect her to start each of the essays with a marquee and ticket price she is so adamant in selling them. In the era of insta-downloads and home theaters though, her criticism takes on a decidedly odd shift. I can watch any of these movies at anytime with a few clicks on the internet. The amount of force involved in coercing a person to try something in this environment is decidedly less than Kael’s campaign to get the film in an art house theatre and then get people lined up and buying tickets. I say this because I’m struggling to define what it is that bugs me about her.

I certainly appreciate the need to shit talk another critic. Kael shifts between being hilarious and savage in diluting and destroying other interpretations of a film. My personal favorite thus far was tearing into a critic who loved the same film as her, but found it to be a drama while she thought it was a comedy. She pointed out how out of touch the critic was with their audience when they believed a certain Paul Newman film (Hud for those who recognize it) was anything more than a jokey take on a Hemingway short story. My favorite part was when she talks about how outraged and prissy critics were when Paul Newman’s character attempted to “rape” the lead actress. Kael argues that rape isn’t the right word for the scene, considering the female character clearly needed a good lay and few would protest Newman being the person to break their sexual drought. R.I.P., by the way, he still makes the best Caesar dressing. Anyways, I deeply admire a critic who recommends people extract their head from their assess once and a while and remember that not all films are making bold artistic statements.

Yet she also tears into movies for not making comments precisely of that nature. That sword she uses to great effect on some films that have been given unfair billing gets applied to films that have been excessively praised. Indeed, her obituary made note that she eventually lost her job at The New Yorker because the editor was sick of her refusal to ever give a mainstream film a decent review. Feeding people the gushing message that life is hard, we will overcome, or…oh, I don’t really know what her ethic is in the end. I’m not far enough in to know if Kael has some ethic that she expects movies to rise to, but I wouldn’t be shocked to find out that she was operating on an Orwellian ‘Animal Farm’ set of rules where they change when the mood suits her. Maybe that’s what it is that bugs me about her. She reminds me of a Literary Grad. Student I made friends with a few years ago during a summer job. After thoroughly quizzing me on every aspect of ‘Middlemarch’ and a few other novels, he was satisfied that I wasn’t a heathen and promptly went to work destroying my liquor cabinet every night when we were off duty. To be honest I usually helped but literary geeks are a peculiar breed of academic scum and we tend to speak in metaphors. When we got into a particularly nasty fight with the administration over handling the students my friend just ripped into them with every argument imaginable. Later on he was stunned that I was offended by his conduct. “Why the Hell are you shooting cruise missiles at a bunch of poor saps in cardboard boxes? For Christ’s sake one of them is a Dance Instructor, what did you expect her to say when you started posing Socratic questions? Use that big brain of yours for something besides talking shit to people just trying to get through the day.”

To put the sentiment into video game terms, I don’t like Super Mario Galaxy. My reaction to playing the game was much like Agent Smith when he grabs Morpheus’s face in the first Matrix movie and explains that he can’t stand the fake world. Rather than create a perfect Utopia that would appease Agent Smith’s aesthetic sensibilities, they instead have to make the world flawed so that normal people will like it. That’s how I feel about Super Mario Galaxy, it’s this giant artificial zoo of game mechanic after perfectly tuned game mechanic that gets fed to me in cute little portions. There is no chaos, no critical message or concept occurring. The experience it delivers is as meaningless as collecting the Stars and items in the game. It is a perfect video game and deserves the ten my editor gave it, but that very perfection is also what makes me hate it. What’s the point of a video game that is so neatly organized that I cannot even properly fail? That I cannot even engage with on any level except the cute and fun way that the game wants me to? Now there's nothing wrong with me making this argument, but the problem is not recognizing that I'm the odd man out here. What bugs me about Kael is that she doesn't give any credit to the people who did like the film. Whether you loved or hated Super Mario Galaxy, a ton of people loved it. I try to respect that fact.

Which is going to sound utterly bonkers to a normal person. And like Agent Smith, I’m ultimately the villain in this scenario. What the majority wants may not even remotely coincide with my own tastes, but you have to accept that there is an independent merit in what everyone likes. So even though I collected my 75 stars and promptly sold the game back to Gamestop, I don’t go around telling people who loved the game that in two years we’ll barely even remember that it existed. I don’t explain why Super Mario World was vastly superior and that ultimately the game was the artistic equivalent of changing the background on the Mona Lisa. Well, okay I did a few times, but I certainly wouldn’t bother writing a blog about it. Which is why I find Kael’s butchering of popular films and opinions to be somewhat grotesque. Like her, I have very deep convictions about video games and I fully promote those views. The difference is that I don’t do it by ripping into games and critics that have different opinions. Instead, I focus on games and topics that push the medium in the direction I think it should go and make that case. That’s what the ZA Critiques are for and that’s why I write about indie games or the art games when I see one that merits a full analysis. The most good that you can do as a critic is to point out the games left behind or praise the ones that accomplished what you believe to be what games can do. The fact that there are games out there that don’t coincide with that vision should not, just by their mere existence, require some withering assault. In the end if what I believe video games are capable of proves true, then it won’t matter because I’ll still be vindicated. If it does not, then my opinion never mattered all that much anyways.

Put another way, there was a literary critic by the name of Achebe who wrote a controversial essay about how Joseph Conrad’s ‘Heart of Darkness’ was racist. It’s a withering essay and the man rightly goes through each and every awful flaw in Conrad’s view of the world. The reaction from fans of the book was mostly outrage since even a freshmen highschooler can appreciate the book’s dark message about evil and going too far. Since the essay did not actually engage in how well that theme was communicated, but rather opined that to communicate the theme it did so at the expense of black people, critics had a hard time saying it was wrong. They also, many years after publication, have gone back to not caring. People like ‘Heart of Darkness’ and the fact that its message has been reinterpreted to Vietnam and now the videogame Far Cry 2 demonstrates that even this enormous flaw in the original work could not hold it back. So, the question is whether it was worth it for Achebe to endure that shitstorm to point out why something was wrong with a book that everyone liked? Probably not. That doesn't render his point moot, it raises the question of what the best way to point out that flaw really is. Shredding into an author and accusing the fans of being racist is probably not a good start.

But like I said, when Kael is using that incredible mind of hers for something besides the vain quest to change the world she’s quite impressive. Judging by her obituary it sounds like that mission eventually broke her and made her spend the last ten years of her life not writing about films. Which is a damn shame, because I could know what movies she was talking about more often if she had. Being a critic is ultimately not about controlling what people like or dislike, it’s about framing the discussion and setting the tone for those inclinations. If I’d written a review of Super Mario Galaxy last year explaining why I thought the game was stupid I’d hardly have affected its sales or changed anyone’s mind. I’d just be Agent Smith beating people over the head with his views that are ultimately contrary to what most people want. The fact that a critic like Kael, a program like Smith, or even I have the unique fortune of having a soapbox to stand on does little to change that basic reality. I always think of this anime, Trigun, when questions like this strike me. During the final moments the protagonist and another character are debating what they should be doing with their supernatural powers. On the one hand, they are capable of nuking entire cities with their minds. On the other, they can power entire cities with that same ability. When they inevitably engage in their enormous anime battle, it is on the protagonist’s conclusion that using their ability to destroy “is not what power is for”. One could easily say the same thing about critics.

Quality Comments

I think we all hang around internet forums a fair amount and several great bloggers are in the habit of posting quality comments they see online. I think I'll join them. Here's one where a guy was discussing how he got over his WoW addiction:

"Do you have anyone significant in your life? I took the edge off recovering from my own WoW addiction by totally absorbing myself in the day to day lives of my wife and son. Any time I got that nagging urge to play WoW I'd just go fuck my wife or wrestle around the house with my son. Eventually, after a couple of weeks, I'd really lost the overwhelming urge to play WoW."

Who says you can't fuck your way out of addiction?