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The Wire and Breaking Bad

2012-01-29T16:45:00.000-08:00

This post is a part of a larger series about the kinds of stories video games tell. It is not the only kind they tell, but it is one the medium is uniquely good at because of the nature of games.

Oh, and spoilers.

Throughout this systems narrative project I have said The Wire is a prime example of a popular system narrative. There have been precursors to its form, like the police procedural or a complex spy thriller, but there are few stories focused so strongly on system rather than character. I figured it was time I went into that a little bit more.

The best way to highlight the ins and outs of the show’s style and system is by comparing it to another show, Breaking Bad, which deals with similar subject matter in a very different way. This isn’t an argument over which is better, just a way to talk about how system narratives work. I’ve watched every season of The Wire twice. I’ve watched the first three seasons of Breaking Bad once.

The biggest characteristic of a system narrative is that the characters don’t really change personally, they move around the system into different positions and relationships with one another. McNulty in The Wire is roughly the same person in Season 1 as he is in Season 5. When he’s outside of Homicide or not working a detail, he’s calmer and sober. When he gets placed in that environment, he gets angry and drunk. That compulsion hasn’t really been resolved at the end of the show, he’s just more aware of it. McNulty has chosen to take himself out of that position for his own well-being. This observation applies for the majority of characters, even Bubbles and his recovery from addiction. Bubbles is affected by the events of his life to change, he’s not different in the sense that he is a different person.

In stark contrast is Walter White. At the beginning of Season 1 in Breaking Bad he retains his sympathies and conflicts. At the end of the pilot he is so paranoid and apologetic that he is contemplating suicide for his actions. By the end of Season 3 he has killed either directly or inadvertently 5 people and distributed pounds of meth throughout the Southwest. He has become addicted to the danger and empowerment of being a drug dealer. This is very clearly a character arc.

What McNulty or Bubbles undergo acts like a character arc. It’s not that system narratives don’t have arcs, it’s that characters moving around a system is depicted differently than focusing on an individual. In Season 3, after the detail has failed to bust Stringer Bell or Proposition Joe for almost a year, the detail is switched to an easier target. McNulty, being the asshole that he is, ignores orders and continues to pursue Stringer Bell. We see him try to flip D’s girlfriend Donnette by telling her D was probably murdered. We see String getting angry with Donette a while later, we see D’s mother Brianne hearing the news, eventually confronting McNulty, and then realizing the truth when she confronts String. The act of one individual reverberates out into the others. There are so many examples of this happening in The Wire that on a fundamental level it’s what the show is about.

Compare this to Breaking Bad. Each episode has an individual crisis, whether it’s finding a new supplier, finding a place to safely cook meth, or getting stuck out in the desert because the lab camper broke down. At the center of these crises is Walter White himself. We see him hiding things from his wife, reacting to Jessie, figuring out some kind of chemistry solution, or reacting to the struggle of dealing with meth. Most of this information is conveyed in that episode, he is on to a new set of issues an episode later. There are exceptions to this, like Walt’s decision to expand their territory playing out across multiple episodes when their friend dies. But it’s still at best two or three reverberations playing out as the catalyst for another series of moments where Walt is the central focus. In The Wire, McNulty is only present for two or three scenes of the 7 or 8 his initial actions stir up.

These two approaches to telling a story are adept at conveying different sorts of information. The intricacies of actually being a drug dealer are never really discussed in Breaking Bad. Walt is handed sacks of cash for pure meth, it’s never explained that people are cutting it and making far more money than what they’re paying. Meth cooking montages are stylish music videos. During Season 2’s brief portrayal of dealing meth we see one robbery, one arrest, and one murder by a rival gang. None of these characters are particularly significant and most have only a handful of scenes. You get the drama of dealing drugs but you don’t really have any idea of how it actually works. Instead you see how it impacts a small group of people’s lives.

Contrast that to The Wire where by the end of show you have an intricate understanding of all the issues that go into selling drugs, along with how bureaucracies work, the shipping industry, etc. None of the characters dealing with these issues are anonymous. People at every level of the drug game are depicted in numerous scenes. The same goes for Police, whether it’s beat cops or homicide. Season 3 introduces how the bureaucracy affects the Police and Season 4 shows how the urban environments often puts people in impossible situations. It’s for this reason The Wire does not really have an individual main character as its protagonist. McNulty hardly makes up the bulk of the show and he’s absent for the majority of Season 4. The diverse cast and the time dedicated to showing the impact of various actions means that The Wire is ultimately about the system of relationships between these people.

The biggest thing The Wire can’t do is depict silent evidence. In systems this is just the idea of unknown elements, the multitude of absences or possible outcomes that did not happen for whatever reason. An example would be something like assuming Harry Potter is the best fantasy book about wizards. There are so many variables in play like books that never got much attention, books that have never been written, or old books we’ve forgotten. What if someone else had been in J.K. Rowling’s position? Silent evidence is just a way of saying unknowable variables because there’s no solid answer to that question.

In a show about numerous relationships that works by showing the impact of people’s actions, The Wire has no way of talking about things it can’t depict. This is most prominent in Season 5. David Simon has said that his ultimate message was to show how the media ends up ignoring what’s important. They go with a bullshit, made-up story about a serial killer rather than talk about Clay Davis’s corruption. This presumably leads to Clay Davis being able to fool a group of jurors into thinking he is innocent. The issue is we’re never shown this. We just have to assume that’s what would happen. Because the show is so busy showing so many other connections and reverberations in the system, all of the newspaper’s actions seem meaningless. This is because they ultimately are in a systems narrative, if your character is affecting no change in others, then they aren’t really a part of the system.

Silent evidence also gives the show trouble in its basic characterizations. I know how all of these characters work and interact together, but I don’t really know a lot about them as individuals. To borrow the Red Letter Media Test, without using their job, appearance, or clothing, how easy is it to describe a character from The Wire? More importantly, how much does that description do them any justice? In Breaking Bad you can describe Season 2 Walt as a guy frustrated with his life who has become hooked on being the best at something. That’s not all of it, but it covers a lot of ground. It’s easy for me to describe McNulty as an asshole or that the FBI profile of him is hilariously accurate. But that doesn’t really describe why he’s important or admirable in the show. For example, I didn’t realize what a jerk McNulty was to his co-workers, particularly in Season 3, until I rewatched the show and caught the details.

Breaking Bad, with its devotion to Walter White, has no problem depicting silent evidence. Long shots of Skyler wondering where Walt is, him missing the birth of his daughter, or the tiny domestic moments that show his marriage falling apart all make you aware of what he’s doing. With so much time devoted to his character we are much more acutely aware of what his actions, in isolation, are doing to others. The question of “but for Walt’s meth dealing, his marriage would be intact” is not really open to debate even though it is never shown. In The Wire, we don’t really know if Clay Davis would have gotten off the hook if the newspaper had been talking about him. The show doesn’t really have a way to talk about this because it’s about things that didn’t happen. In many ways the absence IS a character, like a person in the room sucking the life out of Skyler and driving her away.

The difference can best be summarized by the plane crash at the end of Season 2. His family is in ruins, Walt is responsible for 3 people’s deaths, he has helped produce a lethal drug to thousands, and all he has to show for it is money and an empty house. Rather than show all this by depicting and developing all the characters necessary to show the systemic damage, a tragic airplane accident occurs. It’s a metaphor, a way to represent all the damage that has occurred succinctly and in one episode. The Wire, on the other hand, just shows all this happening episode by episode with its large cast.

David Simon described his approach to writing The Wire as trying to appeal to the people actually involved in this world. The average reader, as an outsider, is encouraged to actually engage with the realities rather than just a brief visit. He compares it to spending a month in Paris as opposed to riding around on a tour bus. Simon even made this point literally in Treme when a tour bus stopped and stared at a local funeral dance. Breaking Bad, as a character driven story, is a tour bus of the meth world with an excellent tour guide.

Early in Season 3, Lester asks McNulty how he thinks it will all end. If he really believes everyone will think he was right and congratulate him when he finally catches Stringer. Lester warns him that he won’t find any satisfaction if that is all he has in his life. In Breaking Bad, we all know that there will be a distinct ending. It will be sharp and well-written, but the story of these individual characters must come to an end eventually. As the ending montage of The Wire plainly shows, in system narratives that never really happens.

The Money Saving System

2012-01-10T04:08:00.000-08:00

My New Years Resolution was to write out a systemic processfor saving money. I am, bynature, a tight fisted bastard. This covers everythingfrom avoiding going out to dinner with large groups so I don’t get stiffed onthe check to leaving my cards at home when I go out to a bar. I’m also a single guy with no attachments livingin a very cheap apartment, so this method will not work for everyone.

The system doesn’t really require specificvalues to work, so I’ve tried to keep it value neutral so that people acrossdifferent pay ranges may use it. The main idea is to take your paycheck anddivide it up into different portions and then apply different standards forsaving that money. Some portions are placed under lock and key, never to betouched again. Others may be spent BUT there are rewards to not spending. Thereare two separate graphs, one for the mid-month paycheck and one for the end ofthe month paycheck.

This is the mid-month check. You need to decide on a setamount you can spend each weekend on your social life, be it 25 to 100. Bereasonable here, saving money is like dieting. If you try to starve yourselfyou’ll just collapse and go back to spending inefficiently. Any money you don’tspend should go into a lock box or under your bed mattress. This is for specialoccasions or needs.

The way I pay for groceries and gas is via a credit cardwhere I get a 2% return in the company’s monopoly money. I’ve never used thestuff, maybe I’ll get a plane ticket someday with it. I pay this debt downentirely each month. It has always bitten me in the ass when I didn’t andsuddenly I’m stuck paying off debt for months. Whatever is left goes into loan payments and savings. I leave about 100 in my checking account in case some charge goes ontoit that I forgot about. You can also make some life necessity purchases withthis money like shoes or clothes before it goes into savings. This should berare though.

The strategy is to have multiple reward layersto encourage me to not spend money. I found in the past when I only had thedistant, fuzzy goal of ‘Saving Money is Good and Stuff’ that I forgot about it.Particularly when I was out at a bar or trying to impress someone. Now when Igo out for a weekend in the back of my head I’m thinking, “If I don’t spendthis money now, I can get something even better down the road.” The result hasbeen that I find myself spending significantly less when I go out. I’m alsoengaging in activities that don’t cost money such as bike riding or joiningclubs.

The second check is similar to the first, although there isusually less put into savings if anything at all. It’s very important you keepsetting aside this play money though. These are the funds that are susceptibleto your vanities, marketing, impulse buys, and all the other things we dickerwith everyday. You create a wall between the money you’re actually saving andthe portion you’re still fooling with.

There are countless other tricks but they are particular toone’s lifestyle. I ride my bike to work. I practice perimeter shopping in thegrocery store. I live near my family and we often have group meals whereeveryone contributes. I rarely buy anything but discounted games. I keep a gigantic change jar that is half-full at thispoint. No cable and I rarely air condition or heat my apartment. I also take advantage of several tax write-offs for business expenses like my cell phone bill, internet bill, and HSA funds. It takes a little reading and you might want to ask an accountant, but it pays out in the long run.

So far I am pleased with the system. I have been tinkeringwith it for months and this is the latest model. Some weekends all the socialfunds are spent and I even dip into the reserve to get by. But for many I makea point of not going out so that my reserve funds get built back up.I suppose there is a bit of gamification to it all and one of the lessons Ilearned from game design. When it comes to goals, there is the long game andthe short game. And the less you try to worry about the long game, the better.

Fallout: New Vegas and Bastion

2012-01-05T04:00:00.000-08:00

This post is part of a larger series on system narrative and uses several ideas from it. A version was posted January 5th that, after doing some edits with the GWJ forums and arguing on reddit, has been revised heavily. The revised version can also be found over on their excellent website.

Sometimes with game narrative it’s a simple question of where do you want to put the story in relation to the game mechanics. The method of delivery and its relationship with the game mechanics ultimately is going to define the overall meaning of the game. If the player has to process content to engage and understand what’s going on, you risk content degradation as their mind grinds away at the meaning, turning it into a system of mechanics. You might instead sneak the information into the background, maybe as a loading screen or audiobook to play while you go. But then it might be ignored or totally missed. Amongst these different formulas, Bastion represents a creative new technique: What if you shifted the majority of the narrative to a context-sensitive narrator?

It often illuminates a lot about how a system works by comparing one to another one. For the purposes of this essay I’m going to be comparingBastion to Fallout: New Vegas as an example of a game whose content is an intermediary for the system, but I could swap New Vegas for Mass Effect, Deus Ex, Bioshock, etc. All of these games have a basic NPC narrative system: You talk to people, get information or quests, and then fight or stat-check for dialog options. None of those games tell their stories using any one technique 100% of the time. The departure from this setup is what makes Bastion such an interesting game.

The issue with intermediary content is that, over time, you just stop giving a sh*t about what all these people are saying. The NPC might be telling the most tragic story in the world, but the player’s motivation is still disrupted because they’re likely more focused on trying to resolve a quest. You click through the dialog, follow the compass, kill whatever is there, and report back for your reward. The dialog also falls flat because most of the time is spent explaining things. Walk up to an NPC and they have to identify themselves, tell you their motivations, and eventually ask you to do something for them. Almost all of the dialog is explaining the system, whether it’s how this New California Republic base is doing or who this important figure is in the quest. What’s missing here is character development — the moments where the person talks about their past and beliefs.

Bastion’s narrative takes the backseat. It’s completely possible to understand everything going on and plow through the game without hearing a word of the story. You could play the entire game with the sound off. In many ways, it reverses the formula of systems narrative by having the design slowly come to represent the content. I perform an action, the narrator elaborates. For the first few hours of play I tuned the narrator out. I didn’t recognize the weird lingo and nothing seemed to be going on except smashing things. By the end, I was more engaged with the story than I was the design.

What enables the transition is both the lack of repetition in the design and Rucks as an unreliable narrator. Every level contains a constant drip of new items and materials to work with. By the end of the game I was exclusively using guns instead of melee weapons, but it’s possible to go in any number of directions. The game design heavily restrains grinding: you cannot replay old levels and upgrade resources are limited. There is little to no repetition unless you initiate a New Game Plus.

In terms of story, the moment Zulf turns on Rucks you begin to question the information you're receiving. What started as kind of background mirror begins to become more intriguing as it distorts and ceases to reflect the player’s motivations. Rucks reminds us repeatedly of the importance of rebuilding the Bastion and collecting the various shards. The creepiness begins to set in as he explains how the various creatures are just setting up their own homes, but that it won’t matter because the Bastion will help everyone. By the half-way point, Ruck’s commentary begins to diverge from the player’s perspective. He is telling us things about ourselves based on our actions, but they do not necessarily represent how the player feels.

As a storytelling device, there seem to be pros and cons to placing most of your narrative in the background. The con strikes me as duration; I’m not sure the game could be much longer than the 6 hours it took for me to beat it. I could not have handled Rucks rambling much more and the game’s barrage of new weapons was turning into feature creep. I may be critical ofNew Vegas’s NPC system, but the game is certainly designed to last for hours. There are numerous forms of story-telling happening both spatially, in the background, and during NPC exchanges. You might learn about a quest involving Vault 34’s radiation leak through talking to NPCs, exploring the East Pump Station, or just stumbling upon the Vault itself. Wandering the wastes is a viable way to play. By the time I hit the 60-hour marker, I may be burned out on the quest format but I can just start exploring the unique sites at that stage.

The pro in Bastion's method is its ability to communicate background information. Take Zia’s backstory, for example, who was orphaned by the Caeldonians and lived as a social outcast. How much do you have to get across in order for me to feel empathy for her? I need to know what the ethnic conflict is between the Uras and the Caeldonians. I need to know how that impacted her life. I need to know at least a few specific cruelties she experienced that I can empathize with. And ultimately all of this has to make sense on an abstract level for me to project into it. The game explains all of this during an optional grinding level while the narrator drones out her past. It struck me as a vast improvement on Fallout: New Vegas’s method of having every single person explain the NCR/Legion conflict over and over.

Similar to Bastion’s narrator, the radio in New Vegas comments on our actions via Mr. New Vegas’s radio show. It’s not as frequent or immediate, instead serving as a random reminder of something we’ve done in the game. Often this will feature interviews with the people we’ve affected or met, reinforcing the characterization of the NPC and the impact of our actions. It shifts the focus away from the player, unlike Bastion’s constant litany of explaining your actions. The background feedback in New Vegas can never disconnect from the player’s fantasy, because it’s never about you. Bastion’s feedback almost inevitably must disconnect; you couldn’t ever draft enough dialog to cover every single player action. Instead, as in the story, Rucks ceases to be an accurate narrator as he reveals his own prejudices and biases.

Clint Hocking coined the term "ludonarrative dissonance" to describe when what you’re doing in the game doesn’t really reflect what the story says is going on. Over the years, this has proved to be a bit of an impossible standard. Inevitably, game mechanics assert themselves, and the game’s story becomes less important as a motivator compared to gaining a level or grabbing that next powerful item. Fallout: New Vegas doesn’t so much solve this problem as it doesn’t really care. There is so much to do and see in the game that numerous players are accommodated. Bastion, as the smaller game, has a different solution. It lets the narrator completely diverge from the player and makes its points with that dissonance.

Telling Tales in Gabriel Knight 2

2011-12-22T03:53:00.001-08:00

I decided to post this one over at Gamers with Jobs. It's a fun website that I've lurked on for years with typically more mature commenters. The offer to post something came up and I thought I'd give it a spin. I like running a personal blog and all but this kind of thing isn't very fun without a community to share it with. That's what Google+ does for me these days but it's important to keep branching out.

As far as my conclusions about systems narrative that I got out of playing the game, I'm adding that the main characters of a game inherently have no character development. They are always reacting, nothing is unveiled about them because we are the ones guiding their actions. It is the other characters in the game that we learn about. Which has been on the table for some time, I just now have a justification dating all the way back to a 1994 adventure game.

It was a lot of fun too, you should pick it up on GOG.com.

On-Line Dating Advice for Strange People

2011-12-21T16:54:00.000-08:00

All of these lessons were learned the hard way.

#1 Always hug your date at the end and get their phone number if you were interested.

This happened because during the date we both agreed to meet at a friend’s party the following weekend. When I said, “Let’s meet up at the party next Friday”, I should have said, “Let’s meet up at the party next Friday. As this is our first date and I don’t really know you that seems like a safe place for a second date after our delightful brunch.” I did lean in for a hug but it hit that awkward chasm where neither of us were quite close enough and I bailed at the last second. I zapped her a friendly facebook message wishing her a good week a few days later. She refused to speak to me.

#2 When meeting new dates at parties, make sure she isn’t best friends with the woman you didn’t call.

I realized my horrible mistake a few days after swapping phone numbers and friending her on facebook. A quick perusal of her photos and not only did I realize she was friends with the first date, they were into besties territory. I’m a quick learner so I made sure to hug and call often, but that seemed to make things worse. After the second date ended with the woman who taught me lesson #1 joining us for drinks, I decided to match their awkward social situation with an extensive explanation of spatial story telling in Bethesda Games. Never heard back from either after that.

#3 People don’t actually mean they like hiking when they say they like hiking.

I love the outdoors. Mountain biking, camping, or hiking are all things I love doing when the weather permits. The problem is that most dating websites will frame this question in terms of, “Do you leave the house occasionally? “ or “Does sunlight hurt you?” Nobody wants to click that they don’t like hiking and it seems like a fun thing to say. Right up until you’re pulling out a map and explaining a 15 mile vertical climb that is a 4 hour drive away.

#4 It’s usually a bad sign if they cancel a date four days in advance because they’re too tired.

One of the trickier problems that crops up is dating people who are too nice to be dating online. An overly nice person doesn’t really want to do the rejecting or hurt anyone’s feelings. So if you’re really into them and they want out, prepare yourself for a long and awkward period of never-returned calls and cancelled dates. If they stand you up once, shame on them. If they stand you up twice? Shame on you.

#5 Watch or read something the average person can relate to.

On one date we were chatting about media and I realized I had been on a bad obscurity bender again. Between my job, rewatching old sitcoms on Netflix, GOG.com, and reading bizarre academic papers I did not have a single thing to say that the date would have any interest in. After a bit of pestering I finally just started talking about my latest crackpot theory about rules and video games. She was quiet when I finished and asked me how I related to people if that was what I did for fun. I told her, “I don’t really, I go on internet dates.”

#6 Joking that you’re going to get a dog if Match.com doesn’t work out can be easily misinterpreted.

It doesn’t make it any better if you say you’re kidding and that you really like cats instead.

#7 When dating multiple women with the same first name, organize them by their last name.

G-chat, cell phones, facebook, all of it. Apologizing will not undo this one.

#8 Don’t do dinner on the first date. Just meet for drinks of some sort.

There isn’t actually any story behind this one, just pure statistics. Every girl I took out to dinner on the first date ended badly eventually. Drinks, be it beer or coffee, ended the best and we’re still friends. Well, I don’t wish something bad would happen to them. Lunch always ended up somewhere in the middle.

#9 If two dogs are fucking in a truck next to your outdoor table on the first date, just let it go.

After realizing the giant Labrador had enough in him to last all day, I just ordered a beer and asked her if she was familiar with The Wire. She said no and talked about herself for the rest of the date. The dogs stared at me the entire time.

#10 It’s okay to ask them out more than once.

I base this on the fact that most of the messages women receive on dating websites are incoherent, creepy, and often just asking for sex. If you’re writing a grammatically correct, polite message that comments on several things you have in common and invites them out for coffee somewhere, that’s okay. You don’t need to send it every single day, or even every week, but people are busy and things change fast with internet dating.

Kill Screen Article on Textualism and Contextualism

2011-11-22T13:22:00.001-08:00

A quick link to another Kill Screen post, this one on textualism and rule enforcement. I thought the idea had interesting ramifications in video games since we are all so used to to literal enforcement. The conversation about enjoying good old fashioned table top RPGs or looser experiences is nothing new, but it was interesting to twist the idea around to law then back into games.

I will have to think of something clever for the next one though, I'm not satisfied with the link ratios just yet. I can do better. With gaming culture there is always one sure-fire method for doing this: write about a classic hit. Unfortunately none of them seem to be about law. Or not yet anyways.

Challenging material to produce, hopefully not to read though.

Content Degradation in Modern Warfare 3

2011-11-18T04:12:00.000-08:00

The leaves have changed and fallen, the days grow cold, and yet another Call of Duty game has been rented and returned. I picked up Modern Warfare 3 from redbox and made a weekend of it with my Brother and Cousin. We drank Bushmills and passed the controller until the Bushmills finished us off. The following day I dusted off the short campaign and spent another few hours in multiplayer. I liked it better than MW2, it is still not as good as MW1. Treyarch still makes the best MP maps.

The gist of a Call of Duty game is modeling the map. In multiplayer this is learning the various fire corridors and hiding spots, then cycling through them carefully without getting caught by another player. In SP it’s about identifying choke points that the AI is streaming through, whether these are infinite spawns or just how to channel a group of enemies without getting hit yourself. That’s the game design, all it needs is a steady stream of new maps and there is always new material for veteran players to model. Like a new sudoku or crossword puzzle, FPS maps can be created in near limitless variation.

The biggest thing that caught my eye about MW3 was the de-emphasis on setpieces. The setpiece, which is usually in a narrow section and your options are extremely limited, is a zero system. There is so little going on in terms of game design that the player supposedly ends up focusing on the content. All you can do is press X or move forward. These have become a staple in these games, starting with the nuke scene from MW1 and continuing into MW2’s macabre ‘No Russian’ level. They’re both zero systems but MW1’s deserves credit for making sure you never quite hits its limits. You can only walk around for so long before you just fall dead, you can’t run around exploring. It goes back to the map modeling nature of these games: the nuke scene works because it is always an unknowable space.

Alternatively, I spent most of the ‘No Russian’ level wandering around and admiring the details of the airport. Which was fun, but not exactly what the game intended. MW3’s is barely worth mentioning, you have minimal control over anything except to sit and watch as a family vacation becomes a lot more interesting. MW2’s suffers because I just go back to playing the game and figuring out how the map works instead of paying attention. MW3’s doesn’t let me move or give me any control at all.

Keep in mind I’m talking about a player who is not new to these games, a beginner who is still fixating on content would have a dramatically different experience. For the seasoned player the meaning of the content is so thoroughly degraded that it’s only inducing apathy. As soon as I realize I’m in a closed map where there is nothing to model, my brain tunes out and I start debating what I want for dinner. The nuke scene stays relevant because I’m fussing about trying to move somewhere, anywhere, in a sad echo of the rest of the gameplay.

When I say content degradation, I mean my diminishing capacity to view the objects in the game independently of the system for which they signify. I don’t think a falling chunk of skyscraper may actually potentially kill me in-game during the opening level of MW3. I see a setpiece unfolding. It is no more startling than an animatronic on an amusement park ride. I enjoy the aesthetics of the experience and possibly the jolt it sends my brain, but it bears no relationship to the play system I am in. It has no emotional meaning to me because my understanding of the game comes from the game design, not the content. MW1’s setpieces and levels are still some of the most memorable things I’ve ever seen on a console because that was before I plowed through five Call of Duty games.

Of course this is speaking for my own personal experience, I imagine someone whose very first shooter was MW2 would be blown away by it just as they would be by MW3. What’s going on here is that familiarity with the game design breeds contempt for the content. The moment I started playing MW3 I was analyzing the space and figuring out where to shoot. I wasn’t aware of the content on an emotional level anymore. The content isn’t a differential for the game design, it’s just a signifier now. And a setpiece signifies nothing except that I can’t move until it’s over.

This issue extends out to the game’s narrative itself. On a literal level I understand what’s going on in these games: Makarov wants a big global war and used the airport attack to make it happen. He’s ticked about the guy I shot in MW1. The General is upset about…the nuke or something from MW1. By the time MW3 comes around we’re just resolving various global conflicts and hunting down Makarov. The problem isn’t so much that the story is incoherent or that images of urban chaos are unmoving, it’s that the dialog, cutscenes, and setpieces no longer have any emotional meaning. It’s all been degraded because of their minimal relevance to the system itself. I’m only aware of signifiers and their value as defined by the system.

There is not a black-line test or moment when this happens for any player. We are talking about the dynamics of the subconscious and conscious as the symbols which represent things in the game become interchangeable. At moments the game is able to jolt me into paying attention to the content. Often this is in a new or unique situation where I don’t know what’s going on in terms of the system, forcing my brain to model new information and thus look at the content.

I focus on these minor aspects of the game only because so much of it is similar to the previous two iterations. I already wrote about map-modeling and the roller-coaster aesthetic years ago. Like eating a bag of Doritos or drinking Bushmills with family, these games are guilty pleasures. I am a year older, the world continues its cycles, and Call of Duty has stopped by for its November visit. I look forward to doing this again next year.

Systems Narrative

2011-11-10T05:55:00.000-08:00

Whileworking on the Gamification and Law series,I got curious enough about advertising to start thinking about the reverseidea. Games offer a new way for people to advertise crap, but do advertisementsoffer games a new way to communicate? It’s not really that strange of an idea,ads are basically meaning generating systems where values are assigned tovarious abstractions. Applying a few ideas from advertising to games has mademe wonder if perhaps video games have worked like advertisements all along. Iwill be borrowing extensively from Judith Williamson’s excellent book DecodingAdvertising. Just bear with me.

Theabove image is from a famous ad campaign featuring Catherine Deneuve for ChanelNo. 5. She is, or was I guess, famous for her sophistication and classicbeauty. You slap the product next to her skull and print it into every singlemagazine you know potential consumers read. They glance at it, shrug, and keepflipping pages. The subconscious makes the connection, your conscious minddoesn’t have to do anything. The basic formula is “Fame and Glamour = CatherineDeneuve = Chanel No. 5”. You dump enough cash into this and eventually peoplewill eventually just think, “Fame and Glamour = Chanel No.5”. That’s a basic 1to 1 ad system with only one intermediary. Williamson’s theory is that, “thisis the advertisement…constantly translating between systems of meaning, andtherefore constitute[ing] a vast meta-system where values from different areasof our lives are made interchangeable.”

Here is the catch: unless you know who Catherine Deneuve is,the ad is just an empty system. It has no content, no value assignment.Williamson points out that an observer needs exposure to the referent system,the fashion and modeling industry, because this allows the observer to applydifferentiation. This might be a bit tricky to understand if you don’t give ashit about modeling so I’ll try a different example. Pretend you live in avacuum and there is only one chair. You have never seen or even heard about anyother kind of chair existing, this is it. As a consequence, you have noconception of the chair being good or bad. There is no other chair to compareit to in order to generate value. It just is. Williamson explains you need toknow about the whole system the referent exists in to fully understandthe ad.

Like Deneuve’s skull and Chanel No.5, in a video game twosystems are being juxtaposed so that the player will eventually connect them. Theformula is “game system = game content.” On a very superficial level you can already apply some of Williamson’sideas to content you see in games now. The space marine image derived fromWarhammer 40K or Aliens is borrowed heavily. Sexualizing the female form toplay to male conditioning. Elves that look like Tolkein’s elves because peoplerecognize that shape. Orcs that look like green nasty things because that’swhat other people have done. This is obvious and you don’t need me to spell itall out. Games borrow these preconceptions and expectations because it’s likelytheir referents are already in our heads. We’ve all seen these movies, playedprevious games, or read these books.

What’s interesting about games is that they also generatetheir own referential and differential systems at the same time that all ofthis stuff is being juxtaposed with our models of reality and our models of thegame’s system. That is, it’s borrowing the visuals for the orc but alsoassigning various values like HP, damage, and other values generated by thegame design. Unlike the ad, interaction in the video game creates an additionallayer of meaning.

Several interesting questions are raised by this, thelargest being how much conflict can there be between the referential visualsystem and the differential game design system? This isn’t a new concept, ClintHocking coined the term ludonarrative dissonance to describe when the content and design are experiencing disconnect. The issue,when using Williamson’s formula, is the fact that she asserts there is no needfor there to be a connection between the two. The dissonance is whatgives it meaning, not the corroboration. Hocking is presuming the opposite.

The revelation here is abandoning the notion, like ads longago did, that the content is speaking to the player. It goes beyond just atranslation between visual images and systemic values. It isn’t just X =attack. Instead a vast web of associations and meanings that cross from contentto system, then back again are all in play. The NPC giving you a quest is notJUST a downtrodden peasant nor are they JUST a quest-giver. They are metaphorsfor one another with two separate sets of values. One comes internally from thegame design and one comes from the content and our own cultural values.

This constant system of visual and audio metaphor taking onsystemic meaning is akin to a specific kind of metaphor. James Geary breaksdown the metaphor process in his book I is an Other. Metaphors are an extension of our natural desire for pattern recognition. Wenaturally assign agency and consciousness to things we don’t immediatelyunderstand. A knock on a wall becomes a ghost, a flash of light a UFO. You dealwith something new by basing it on the familiar. Geary goes over many differenttypes of metaphors but I think with games it might be better to focus on thescientific variety. This is because scientists have to struggle with the presenceof literal scientific information and the need for analogy so people canunderstand it.

J. Robert Oppenheimer, quoted in the book, explains it likethis, “We cannot learn to be surprised orastonished at something unless we have a view of how it ought to be; and thatview is almost certainly an analogy. We cannot learn that we have made amistake unless we can make a mistake; and our mistake is almost always in theform of an analogy to some other piece of experience.” Scientific analogiesdevelop slowly. You begin in the subjective by asking something basic like isthe Earth formed like Tapioca. You do tests, you compile results, andeventually you start to put together a model of the system. Metaphor tells youwhat things are like, not what they are. Eventually as you gain completeunderstanding of the system you dispense with the metaphor.

When we say the dissonance is what generates meaning in asystem narrative, we mean that the relationship between unrelated systems, thereferential mechanism of both value from game design and the analogies incontent is where it comes from. Sticking these two things alongside each otherestablishes the connection, our minds will find it in the same way they makeassociations with an ad. Pressing X is attack. This does damage. I need todamage this thing. I know all of this because of the complex series ofanimations and signals the game sends to me. Competing with all this is theslow erosion of those first subjective impressions as the player goes fromsubjective to objective, from the analogy to the system. That transitionprocess is where the bulk of the narrative takes place through metaphor and newexperiences. New subjective information must constantly be added for the playerto base their constantly developing model of the game design.

The necessity for this kind of approach is that most gamesalready look like this. A systems narrative has several common features.Characters do not change independently, they are static until the system coerceschange. The narrative consists of ever-shifting viewpoints of the system andvarious changes enacted there. These effects are observed as they spread and charactersrespond to them. Examples of this in other mediums would be something like TheWire, Virginia Woolf’s To The Lighthouse, or Joseph Heller’s Catch-22. Iam mostly proposing abandoning half-ass attempts to shoehorn in literaryconventions and conversely avoiding totally ignoring the attempts of games totell their own unique brand of story.

We’ll see how it goes, it is time for me to focus onindividual classics and modern games with a particular critical lens. We’ll seeif this has any legs when going over a variety of individual examples.

So Long Buzz

2011-10-22T05:57:00.000-07:00

I was inspired enough by Courtney Stanton’s eloquent rant on the loss of Google Reader that I decided to do my own homily for Buzz.

I’ve been bonking around social media the same way most people have: right on the cusp. Instant Messenger got big while I was in college and I had a long list of friends. Remember Away Message culture? Those funny little AIM icons at the bottom with those white faced cartoon characters? Repeating a funny quote from a convo or selecting that choice line from a movie that just really described your mood. I had a Prodigy account where I insisted on writing everything in all caps. An AOL account for logging in and jabbering in those awkward chatrooms. I even got onto that MTV show once where they livecast chats. I typed in all caps for that one too.

Facebook came to my college right as I was graduating and it was initially a lifeline to old friends as we all scattered around the country. I remember life before the newsfeed. G-mail was a no brainer and g-chat quickly became a staple of any lecture in law school. I signed up for Twitter as all the friends I’d accumulated writing about video games made the same migration. For the longest time my relationship with digital media was to connect with as many people as possible. To find as many points of view as possible and absorb them. My path was to always go where the people were.

I’m not quite sure why that started to change. The fighting, probably. I think I was known for having a temper back in the day but I’m not even sure what I was mad about. Law school was no picnic certainly. And I do have a blunt attitude. There are plenty of people out there who don’t have a high opinion of me and for good reason. It’s just…the noise. The endless waves of links, opinions, ideas, caps on, caps off, cacophony that hundreds of people generate when trying to talk all at once. I would turn on Twitter and spend 20 minutes just sifting through what I’d missed, only to have to spend another 10 sifting through what got posted in that time.

This got so intense that I would literally turn on Twitter and it would put me into a bad mood. Sarcasm has been an emotional crutch for me for so long that it might as well be a third leg. Combine these two things with waves of people talking at me and it just brought out the worst. And let’s not forget that this is true of people online in general. Why on Earth someone could ever think it’s a good idea to tweet to me that my article is completely wrong and I should read their correct article is beyond me. The fact that they meant it innocently, phrased it politely, or were totally correct was something you could only cling to for so long. I’ve begun to believe that being an internet celebrity has a lot more to do with patience than actual production.

I finally realized one day that something had to give. So I shut it all off. There is about a 9 month period where I basically vanished from the web. I moved to a new town where I had to make new friends. I had to start a new job and start all over again as a first year associate. I resigned from my post at Popmatters after 3 years of working for free there. I quit writing in general.

Buzz was something that I handled the same way most people did when it came out. I flipped it on, followed a bunch of people I recognized, lost interest, and went back to Twitter. I’d turn it on occasionally but never paid much attention to it. At my new job I found myself sitting in front of a computer all day. I don’t even remember why I was reading it that first time, boredom probably but I imagine the desire to share was finally coming back after 9 months of silence. You can only go so long without sharing with others, particularly about your passions.

Buzz was a pretty crude place. The people I found talking there were venting their rage and frustration at life and video games. You could call a popular, well-connected writer a fucking moron without worrying about them getting offended or blacklisting you. Even if they did hear about it, Buzz had so few active users that it wasn’t the same level of insult as saying it on Twitter. It’s the social difference between a whisper and a scream. But it was a well-designed forum. Topics could be posted and commented on indefinitely while new ones kept piling up to give each one a natural lifespan.

What interested me was that none of the usual social media vanities cropped up. Nobody cared how many people they were following. There was almost zero desire to vapidly increase the number of people they were broadcasting to. As a consequence you had less nonsensical posts of cats or wonk. Less desire to hit ‘post’ without even considering who would find it interesting. My theory is that like Facebook, Twitter began to sabotage itself by coercing people into connecting to so many others that you could no longer actually talk. If you criticized something, a dozen or so people would jabber at you about why you were wrong. Like Reddit, only positive and polite things would get encouraged by the system. The desire to ever say anything controversial or different was steadily eroded. I was on Twitter for 2 years. I can't think of a single meaningful exchange I ever had on there. At a certain point, the social service just became another mask.

Buzz was different because it stayed small. I've lost count of how many brilliant ideas or great links I've gotten from people on there. You got to know the people around you. People didn't take it personally if you mouthed off because they knew it was just you being you. You can't force something like that to happen, it's just a matter of time and place. I could post an elaborate ramble on a game I was playing, post a cool quote I saw, or just spout nonsense. On Twitter, you couldn't do that because everyone was watching.

And now, as with many others, the only online forum I give a shit about is being shut down. I’ve tried using G+ a few times but it is essentially the same problem as Twitter or Facebook. It’s a numbers system, people broadcasting their views on as many people they can while Google charts clicks and exchanges on a global scale. It’s not the privacy thing I’m bothered by, I accepted what these services were a long time ago. It’s being channeled into the same kinds of services I stopped using 2 years ago because they mostly seem to bring out the worst in people. Myself included.

Buzz was not a perfect service. The very thing I enjoyed about it was that so few people used it. But it is still a place in the way that all forms of social exchange become places. The occasional drunk rant. The rapid fire comment sections. The long, wordy posts and responses when someone suddenly had the impulse. Posting quotes from random books. The unspoken codes of conduct about not posting nonsense or delving too deeply into narcissism. You hold these things close even though they aren’t really yours or anyone else’s. They are the space we have between one another.

And now it is fading away.

Complexity in Laws

2011-10-17T08:07:00.000-07:00

I've been really enjoying Friedman's History of American Law and discovering all the experiments, problems, and resolutions the country has adopted over the decades. It's probably a surprise to many people that many of the problems we're experiencing today with Banks and Wall Street are just one of the many times this has happened. Different solutions have been proposed over time, often involving getting rid of all the lawyers and making everything simple to understand.

That process of things getting complicated and the issues it poses for fixing it started to fascinate me. It has been discussed at length by various sources and you can find dozens of proposed to solutions. I decided to use my experiences with a particularly complex game to just illustrate the how and why of complexity with laws.

It just getting people to accept the very notion that nothing is simple with large rule systems is a start.

What Can Games Teach Us About Law?

2011-09-30T06:08:00.000-07:00

I had the good fortune to get a column published over at Kill Screen. It's a relatively new webzine that is exploring the range of topics for games. I always manage to find a new angle that surprises me there.

The column is about the inherent knowledge gamers develop about systems and how this approach applies out into the real world. A lot of these ideas are in the gamificaiton series, but I tackled some relevant issues instead of getting bogged down into theory.

Here's hoping the gaming generation keeps getting bigger.

MMO Judiciary - Functions and Solutions

2011-09-22T06:04:00.000-07:00

In the United States we are used to a court systemwhose focus centers on rule elaboration and enforcing public norms by handingdown rulings. Joanne Scott, in her essay Courts as Catalysts, discusses thechanging role of courts by focusing on their capacity to share information,fact check, and test the authenticity of government decisions by weighing theirevidence. It’s a new model meant to reflect the role the courts may play in asteadily de-centralizing government. She inadvertently presents a potentialtemplate for resolving the conflict between Coding Authority and player.

The basic idea in Scott’s paper is that courts canserve to check the evidence of the governing authority while still fulfillingimportant obligations in the community. It’s a kind of PR, a governmentinstitution separate from the authority who handles disputes in the system. Theinstitution does not have the power to make new rules, only legitimize oroverturn existing ones. Scott’s vision of a system where, “courts become asource of communicating ideas and experience, without being the source of theircreation, and without being specifically prescriptive in relation to anyparticular form” may find its most useful application in virtual space ratherthan reality.

The necessity for this kind of system, as noted inthe previous essay, crops up when you have the strange type of tyranny that’spossible in an MMO. All laws are automatically enforced, traditional methods offeedback are cut-off and players are often forced to quit. It’s unlikely anydeveloper would actually do this on purpose, it’s just inevitably going tohappen in any system of rules. An essay by Leslie Green on the causes of Judicial Decisionsreminds one that rules are indeterminate, not merely in dramatic or marginalcases, but in most cases, because indeterminacy flows not only from vaguenessbut also from pervasive unresolved conflicts among the laws of the system.There is always an unintended consequence or unexpected application stemmingfrom the rules of conduct or the code itself.

Application of thiswill vary from game to game. You probably do not want the judiciary to have anyauthority over the actual design such as nerfing items. A more debatable issue,such as perching in Asheron’s call, duplication, hording or some other in-gamestrategy, is more ideal because it’s allowed by the Coding Authority. It justhas the unintended consequence of disrupting the entire game for players.Rather than have the designers fret over financial impacts or disrupting theeconomy, you just have a hearing where people make their case. Evidence isdrawn from the servers and personal accounts. The dispute gets resolvedquickly, transparently, and with player involvement occurring throughout.

It’s important to remember that in many casestransparency just means communicating your reasons for acting clearly. Mostconcerns about the language of a judiciary becoming unwieldly aren’t reallynecessary. As Peter M. Tiersma notes in his book Parchment, Paper, Pixels, the reason themodern legal system is so wordy and difficult to understand is because thelanguage is meant to only have one meaning. In America we practice common law,meaning each court ruling is binding on all future rulings. To avoid multipleinterpretations of a contract, bill, or law you have to phrase it a mannerthat’s very alien to most people.

That’s especially true today where the internet hasenabled rapid communication. People write like they talk now and it’sunderstood in the same manner. Unless the judicial system wanted to impose somekind of common law model, precision in the writing to that degree would beunnecessary. You just ask the judge for clarification. You can already see anexample of this practice with Xbox Live’s Why Was I Banned? forums. Having a clearexplanation from another person helps give authority and clarity to the rulesof the Xbox Live service. The average person should be able to understandeverything going on but having a model for dealing with people always helps.

The same goes for pleading a complaint: if they canform a complete sentence then there’s no reason they couldn’t make a complaint.Lawyers exist because just one part of the legal system takes months or evenyears of study to understand. It got this way because the bigger thepopulation, the more rules you need to protect all those competing interests. AnMMO is not ever going to become large enough that the average player does notalready know everything they need to when crafting a complaint.

Diversity in judicialopinion, both between judges and their views vs the Coding Authority, shouldalso not be taken as a huge problem. Uniformity must occur in the results ofrules, but not necessarily in the way those results are reached. A textualistapproach, where the Judge reads everything literally, may have various uses andappeals depending on the game. Alternatively a Judge who discusses the issuewith the Coding Authority and adds weight to the views might be more favorable.A great Judge would be able to juggle multiple perspectives to get a resultsatisfactory to all. As Lawrence B. Solum explains, “Good judges are clever in using the resourceswithin existing law to solve the legal problems that come before them. The verybest judges are experts at avoiding originality. And the very worst judges maybe the most original. Very bad judges may use the cases that come before themas the vehicles for changing the law, transforming the rules laid down into therules that the judges prefer.”

At the end of the day, the existence of a judicialsystem would ultimately be derived from the Coding Authority, who is in turncontrolled by the Developer, Publisher, and their shareholders. While mountingarbitration costs and threats from the outside world are a good reason forcreating a means of resolving disputes in-game, perhaps the best reason of allis simply advertising. In his guide to building a successful MMO Raph Koster explains that the key isownership of something in the game. Whether it’s buildings,characters, or a job the player needs to, “feel a sense of responsibility tosomething that cannot be removedfrom the game.”

Examples of MMOs violating this sense of ownership areeverywhere. Despite the strong sales of the latest WoWexpansion, players quitting the game by the thousands. The anger at theexpansion varies from being being too short to stripping the game of all complexity for newplayers. One scathing comment explains, “Cataclysmis the end result of an MMO design by numbers philosophy inspired the wishes ofaccountants and avarice of shareholders. This is one picnic basket of childishquests and facile gameplay expressly designed to appeal to the lowest commondenominator out there.” These complaints have nowhere to go and no one who willlisten to them. And while the expansion might make money in the long term, it’salso costing them the veteran players who have stuck with the game for years.

At other times it’s problems that arise from aGM acting carelessly. A huge controversy arose in a Bioware forum when amoderator closed a thread because a group wasdebating homosexuality in the Star Wars universe. Such blank and totalcensorship generated massive amounts of negative PR even though the forummoderator was only attempting to prevent a flamewar. A similar example was theremoval of Nazi soldier’s name from an in-gamebadge. No discussion, no explanation, and nothing but negative PR for the gamefor operating in a totalitarian manner.

The benefits of this will vary depending on thegame, there is no one model for every MMO. A judicial branch mediates theconflicts that arise between the hard laws, the social standards and thegeneral strangeness of humanity. All of these things clash and overlap inconstantly changing ways, creating indeterminacy for the outcome of disputes.Introducing a third party relieves the Coding Authority from assuming atotalitarian approach to all conflicts, gives transparency to the process, andcreates a more legitimate avenue for conflict resolution outside of enforcingthe EULA.

Judith Williamson, in her seminal text on Decoding Advertising, explains that an ad is essentially thetransference of human qualities and characteristics to consumer products. Concepts like fairness, loyalty and safety aregenerated and projected onto the game. An internal MMO judiciary represents aconcentrated effort to form that connection with the player as a kind ofbackground association. First and foremost, they should be enjoying the gameand having fun. But if things go wrong, they can know they won’t need to dealwith an expensive legal system or negotiate a EULA. Their problems can beresolved in-game, fairly and transparently.

MMO Judiciary - The Balance of Power

2011-09-22T05:52:00.000-07:00

A model for resolving internal MMO disputes shouldbe built around the perspective of the player. A player primarily understandsthe parts of the game that affect them directly so any breakdown of authoritybegins with recognizing those forces. The first and most profound authority inan MMO is the Coding Authority. John William Nelson in his breakdown ofvirtual property writes, “Code affects transaction costs because alltransaction involving virtual resources are regulated by code at some point.Purely internal transactions clearly rely upon the code regulating trade amongusers. Partially external transaction rely in part upon external regulation,but they all inevitably return to the virtual world and its code-basedregulation to complete the transaction.” All value, all rights, all methods ofexchange boil down to what the designers have permitted in the game. So, fromthe perspective of the player, an MMO judiciary begins by putting the CodingAuthority at the top.

What this means in principle is that the rightsgiven in the game are the only rights you’re entitled to. An example of thiswould be Ultima Online’s thief skill. It is possible tosteal things from people by looting their corpse or picking their pocket. Whena player complained about being robbed, the thief was not punished because theCoding Authority allowed this kind of conduct. A massive Ponzi scheme waspermitted in EVE Online because financial corruption isa way you can play the game. In this sense the Coding Authority shapes theculture of a game because it controls how people interact, resulting in an authoritarianpower dynamic.

There are limitationsto this model. Video game code is a unique kind of rule system because it hasenforcement automatically built into it. I can’t jump over that cliff becausean invisible wall exists that stops all progress. Even if I got past it, thegame does not support the existence of the space and will probably crash. There’sno concern about police, tickets, courts, or all the other mechanisms that comewith enforcing a rule. Nor can people just break the rule or ignore it. Whilethis is handy in terms of costs, the problem is that costs are an essentialform of feedback in a rule system. The more a rule costs to enforce, the morelikely it isn’t favored by the population. People cannot express theirdiscontent by breaking the rules in an MMO, their only option is to complain orquit the game.

In an ideal MMO, a judicial system would representthe bridge between these two forces. The players are given a way to expresstheir grievances with the absolute power of the Coding Authority that makesthem feel empowered. The power of the Coding Authority is not superseded orchanged, but their relationship with their players becomes a more hospitableone. It is not the court’s job, when a dispute comes before them, to invent anew rule saying how it should be resolved. It’s the court’s job to say how the pre-existingrule should be enforced. The greatest virtue of this branch is their ability toexplain the decisions of the Coding Authority. Andras Jakab explains in hispaper Concept and Function of Principles the criteriafor a legal system as, “(1) the greatest number of legal phenomena can beexplained (2) coherently (3) with the highest possible degree of simplicity and(4) political and ideological factors can also play a role.”

For example, a bug or design imbalance is up to theCoding Authority to fix, in our model the Judicial system would not have theauthority to change it. How the court system empowers the user is giving themthe ability to complain about an imbalance and have it declared as one. Aduplication bug is brought to someone’s attention because of a complaint. Aruling is issued explaining why the bug is unfair and why a person has hadtheir account wiped. The action was introduced by a user, the results were madepublic, and the logic was clearly explained with references to social rules andthe Coding Authority. Actual enforcement powers would not really go beyond whata GM already possesses. Nor is this any different than the Dev Blogs many gamesalready operate or Xbox Live’s user forums. What’sdifferent is the transparency of the action and the empowerment this providesfor players by giving them an official forum to act in.

Making a model likethis successful means delegating priority to various complaints from theplayers. You would want to avoid lumping everything together: personal feuds,bugs, balance problems, property disputes, not everything can be resolved effectivelyunder the general ticket system with a GM. Nor does having a single individualresolve them on the fly always cause social discontent. A GM pulling me out ofa wall I glitched into is not really on the same level as a player claiming acharacter is using a bug to mass duplicate gold. The key to a sound judicialsystem is recognizing the problems that users are concerned about and givingtheir resolution as much transparency as possible. The day to day issues thatneed to be resolved speedily can be explained with rules of conduct and quickreferences. More complex issues can be separated on the basis that they willaffect the entire game or some other criteria.

While one justification for an MMO judiciary is thatthe Coding Authority needs an agency to bridge itself with the players, it isequally important that the players have a means of organized communication. Thefrothing rage of the forums is not a viable means of feedback because it’s justtoo knee-jerk and unfiltered. Traditionally this is the role an electedofficial would play in a system of governance, in this case selecting judges bypopular election. The delays in election keep people from throwing them out ona whim while the electoral process also filters unqualified participants out. Theissue here would be impartiality. As Raph Koster points out in a basic outline of MMO laws, theplayerbase is rarely ready or willing to police itself. They signed up to playa fun game, not engage with politics, and they may not be willing to separatethe two.

Various MMOs have experimented with electedofficials with varying results. EVE Online maintains anelected council to give feedback on the game by airing grievances. The councilis currently mounting a PR war because of the company’s failure to expand thegame in ways the council desires. On some levels athing like this can only exist in EVE because it only hasone shard. It is not broken down into multiple spaces consisting of smaller,easier to govern populations. The council also has an inherent authority problembecause after airing their grievances, the makers of EVEOnline decided to ignore them. A judicial system, then, offers ameans of self-governance that doesn’t necessarily have to put the CodingAuthority in direct conflict with popularly elected officials.

A prime example of anMMO that features popularly elected Judges is Nexus TK. Note that page highlightstheir activity levels and rank in the game, you can already see unspokencriteria for what constitutes a good judge in public information. The gamefeatures extensive self-governance. A post on gamedev.net by a disgruntled playerhighlights the issues that formed. Top tier players formed cliques thatcontrolled everything in the game. Developer appointed players had extensivepowers to silence or blacklist people who spoke out against them. Actual trialssimulated the actual real world process: a player could accuse someone ofstealing and all you needed was two witnesses to get a conviction. Thisexacerbated the control of one clique in the game. This, in turn, drove awayplayers.

The point of thesetwo examples is that players are inevitably influenced by their relationshipwith the game in ways that does not make them the best choice for being ajudge. The impulse to operate like an elected official influencing Codingdecisions, as in EVE Online, can lead to challenges to theCoding Authority which they might not be able to resolve peacefully. On theother hand Judges are susceptible to corruption and influence just like anyoneelse. Like most GMs today, a member of the judicial system would be someonedisconnected from the game. That disconnect can be ensured through monitoring, transparency,and establishing a clear relationship with the Coding Authority.

In this discussion we’ve gone over who has theauthority and how one may go about delegating communication with that authorityin a way that leads to what players perceive as fair resolutions. Such a broadgoal has to be approached by remembering that fairness itself is a socialvalue, it changes from group to group. Saying someone has a keen sense offairness does not necessarily make them a good judge, just that they do what’spopular. In an essay on judge selection Lawrence B. Solum comments that peopleoften mistake impartiality with meaning a person does not care or understand aperson’s complaint. He writes, “the impartial judge is notindifferent to the parties that come before her. Rather, thevirtue of impartiality requires even-handed sympathy for all the parties to adispute.”

It is impartialitythat the judicial system must offer if people are to rely on it for resolvingtheir grievances. A fair chance for both the player to be heard and the CodingAuthority to present its side of the dilemma. Whether or not it achieves thisobjective comes from the perceptions of the players.

Link to Part 3

MMO Judiciary - Why Even Create One?

2011-09-22T05:43:00.000-07:00

With the growing buzz around Diablo 3’s in-game auction system comes severaltricky questions about how the virtual world and the real world shouldinteract. Issues like taxation, property rights or possible litigation betweenplayers become legitimate once money enters the system. Each MMO will havetheir own unique ways of addressing these problems as they draw the line betweenseriousness and play. Maintaining that division means making sure the playworld can resolve its own disputes to the satisfaction of players anddevelopers.

Let’s start with why our current legal system shouldbe kept out. For most MMOs you don’t have any property rights and untilrecently you could not even sell the items legitimately for money. The gameneeds this because anytime the designers need to nerf an item or character itwill lose value on the market. This could very easily cost thousands of peoplemoney. Considering they’re already unhappy because their in-game prowess isreduced they will be all the more upset that their wallets are being hit.Expansions and updates are the lifeblood of an MMO and the only way to makethem possible is by keeping ownership of the items strictly in-game. Thedeveloper can’t be concerned with legal liability if it’s going to maintain thegame.

It’s also unlikely our current legal system would beany help for resolving in-game disputes. Picture the following e-mail goingout:

I have this Elvish Bane Sword in Diablo 3 butunfortunately my account has been banned. If you just give me the password toyour account, I can get the sword. Of course I would be happy to give you asmall cut of the profits from the sale.

Someone falls for it, gets stripped of their possessions andwants their cash value back. First, if the person lives in another state orcountry you have massive jurisdiction problems for even bringing the lawsuit. Aperson outside your own nation does not have to obey your laws or care about aclaim brought against them. Second, if you don’t have any property rights tothe item then you don’t have any grounds for suing them anyways. Even if theEULA or ToS contains some clause about theft it won’t help you get your money. Thecontract is between you and the game company, not the person robbing you. Third,if the person turns out to be a minor it’s debatable whether they are bound bythe contract anyways.

The thing that keeps all of these issues out of thegame is the EULA. It’s not that the courts don’t recognize the potential forproperty rights, it’s that everyone playing them signs a contract agreeing thatthey don’t own anything in-game. For the most part this creates an effectivelegal barrier that has survived several lawsuits for different games. Theproblem is that, as with any click-wrap contract, they contain the litigationby insisting you resolve your problems with arbitration. This has been aneffective deterrence to litigation because of the expense and the fact thatbusiness wins 96.8% of the time. It takes extraordinarycircumstances for a court to rule that an arbitration agreement is unfair.

While the solution may be effective, it obviouslyhas a couple of problems even if it keeps working. Presuming that the additionof real world auctions increases litigation, defending the EULA will cut into thegame’s profits. The EULA isn’t going to protect player versus player propertydisputes. Furthermore, EULAs are increasingly viewed negatively by consumers ascompanies use them to change their contract terms, fosteringdistrust and negative perceptions.

What could potentially threaten a EULA is if the courts decide a personhas been forced into an unfair bargaining position. The hypothetical scenariowould be someone accumulating a large amount of virtual wealth and then beingforced to agree to new terms in a EULA which damages them. They can’t transferthe money out of the game and they don’t have any kind of recourse inside ofthe game either. It’s a question of options given to the player, do they havean alternative besides signing a contract that hurts them? If they do not, thenthe courts may step in and take matters into their own hands.

Preventing this fromhappening means taking a long, critical look at how MMO’s resolve their owninternal disputes and considering alternative ways of distributing authorityand enforcement in the virtual community. There is no one solution, every gamehas its own needs and community surrounding it.

The majority of MMOs practice a kind ofauthoritarian approach to governance. They own everything, they resolve alldisputes on their own, and they decide how to design the game on their own. Inputis evaluated from the players but no real authority is granted to them. Enforcementoccurs either automatically or through GMs. Both of these methods ofenforcement are problematic. Automatic enforcement means the developer is oftenacting without proper feedback because there are no immediate costs to theirrules. Nor can players break the rules like they do in real life: invisible wallsand code law are final. It’s arbitrary and often leaves the player feelingpowerless when bold changes come out for the game.

GMs, on the other hand, can be inconsistent. A forumthread on GMs in World of Warcraft at MMO-Champions gives a pretty commonexample of how this gets expressed. One player thinks the community rule aboutno swearing should be more heavily enforced, so they constantly report theseplayers to GMs. Others don’t see it as a big deal while several others didn’teven know it was against the rules since the game self-censors. A thread onrpg.net points out that GMs must dealwith everything from code issues, gold farmers to social conflicts andharassment. Results vary depending on the GM’s background even though they areall lumped together. Another thread allakhazam complains that they feelincreasingly like a subscriber rather than a customer. There are so manycomplaints that GMs can’t attend to them all and the issues go unresolved.

Greg Lastowka in his book Virtual Justice points out that thebiggest problem with GMs is their inconsistency. You can just hassle adifferent one until you get the result you want by filing complaints over andover. This kind of conflict resolution may suffice in the current MMO system,but as real money enters the system many players are not going to takearbitrary decisions lightly. As Lastowka explains, “When virtual worlds empowerusers with a wide range of creative freedom and encourage them to take economicownership in their productions, those worlds are more likely to attractlawsuits from all directions. Large scale financial stakes and uncertain rulesare a dangerous mixture.”

So the reason one shouldat least consider overhauling their current MMO dispute methods are two-fold.One, if you don’t create something the players believe is fair the real world courtsmay be tempted to do it for you. Two, a fair and transparent judicial system couldmake your players happier and improve their overall experience. The knee-jerkresponse that lawyers, property rights, and all of the costs and expensesassociated with these things is neither an inevitability nor really necessary.As John William Nelson points out in his essay The Virtual Property Problem, “Virtualproperty is a solution looking for a problem.” Perhaps we should keep it thatway.

Link to Part 2

Gamification and Law - 5

2011-08-22T14:02:00.000-07:00

To borrow a popular criticism of gamification, a feedback system alone is not a game. It is, however, a potential application of game design principles to a system that employs both seriousness and play to produce tangible benefits. Going back to Greg Lastowka, he identifies three key differences between a legal system and a game:

1) Games are disassociated from life in a way that makes them less serious than ordinary life.
2) Play absorbs players intensely and utterly.
3) Games are not materially productive.

Gamification, if we were to condense it into a form, provides a means for 2) to exist in a system that otherwise does not necessarily have the other two elements. Huizinga’s example of this occurring was the Renaissance and I narrowed it down to something like the art patron model in the previous post. A person is given the freedom to totally absorb themselves in an otherwise productive task. This was possible because the patron environment creates an accelerated feedback system. The artist is paid before the work is completed so they have something to live on and to give them supplies. Nobody yet knows if the work will be any good nor is this payment indicative of that.

Donella H. Meadows, in her great book Thinking in Systems, explains that the information delivered by a feedback loop can only affect future behavior. It can’t deliver the information immediately and so can’t have an impact fast enough to correct behavior that is driving the current feedback. An example she uses would be letting the water out of your bath tub. The water isn’t all gone immediately, it takes time to flow out and you don’t notice until the water is gone. In the patron’s case above, you don’t know if the money is going to lead to a great work of art until it’s too late.

This situation can play out in dramatic ways because people are often making bad decisions based on improperly interpreting feedback. For this reason a system often cannot self-regulate and repair itself, the feedback may take decades to resolve itself and by then it’s too late. On an individual scale this is something as simple as not exercising. On a marketing scale this could be a person failing to use a product properly or not experiencing the full benefits of its use. Gamification would be an attempt at making a system capable of self-regulation because it has good enough feedback to where people can make proper decisions based on their own self-interest. They’ll introduce their own corrective behavior and engage more fully.

Advocates of gamification being used for social change would use this to help people experience immediate benefits for tasks like recycling or exercise where those rewards often take time to play out. You get some bonus points every time or your score competes with other participants. That way, even though recycling itself is not giving positive feedback until many years later, the system can still provide it. Marketers, assuming they actually understand what they’re doing, would be using a similar approach by creating a more coherent feedback when engaging with a product.

Just as a law requires a certain amount of social acceptance to function properly, a gamified system would have to align itself with the individual’s own self-interest. Meadows explains, “The most effective way of dealing with policy resistance is to find a way of aligning the various goals of the subsystems, usually by providing an overarching goal that allows all actors to break out of their bounded rationality.” That bounded perspective simply refers to the limits of our perceptions of any system. The feedback helps prevent the “drift to low performance” problem that occurs because people can misperceive negative feedback and cause the system to go into drift. That is, people are no longer behaving based on what’s going on but rather a misperception. The lower the perceived state of the system, the lower their self-interest propels improvement through corrective action because they don’t think it’s working.

A gamified system will have to be sophisticated and carefully tuned to the individual’s wants while also guiding them to longterm goals. This would be the basic dividing line of the play elements (individual wants) versus the longterm goals (serious elements). The problem is that, as noted above, a feedback system is not a game. It does not have the play element in it because it’s a static system. You need a certain degree of competition, creativity, something generating the play form to allow the absorption aspect we’re trying to maintain.

Which is where the complications begin to arise because like the comparison between a utopian society and a more diverse community in a previous post, a game is not composed of one play standard. For each cultural sphere there will be a unique play sphere that applies. More realistically, a culture can support numerous play spheres of different types and in varying states of solidity. The classic example of this is Richard Bartle’s different types of MUD players. If the play sphere exists independently of the game, then it’s important that one maintain a system that is always adapting to the varying needs of the individual to maintain alignment.

Most legal systems are built around the reality that feedback is often slow to arrive. Laws take a long time to create and then long periods of fine-tuning are expected via the common law. Things simply do not change fast enough to necessitate a legal system that quickly modifies itself and preventing improper reactions to feedback is a virtue in this case. One area where this is changing is environmental law because you need to be able to respond more quickly than a traditional front-end system allows. If a natural disaster occurs in an area that has been protected or a species is put at extreme risk, you may need to change the rules that day, not in four years. This is the topic Barbara Cosen tackles in her work..

I’m going to borrow from J.B. Ruhl’s essay on dynamic system theory for this section. The issue with systems that have random elements is how much space do you allow it to deviate before its fundamental structure and purpose has changed. Sticking with our Renaissance example, certain restrictions are imposed on the artist by the patron like make it classically themed or painting the patron standing next to Jesus, while creative independence is also allowed. Excessive control would be like the Big Bear Plane Company example, where the boss is insisting the plane have a propeller because he likes them. There isn’t any one specific element that corrupts the system, it’s the complex nature of their relationship that creates the dynamic

Resilience is the key test for a dynamic system because it gauges what kind of changes it can handle. Ruhl defines it as, “the capacity of a system to experience shocks while retaining essentially the same function, structure, feedbacks, and therefore identity.” This comes in various forms, with Ruhl outlining ecological resilience as the magnitude of disturbance the system can absorb without changing versus engineering resilience tries to channel and minimize disturbances through design. Ruhl uses the analogy of a bowl and ball with the ball representing an occurrence in a system. Engineered design is a vase: the ball has a limited opening to enter the system and it is tightly channeled into a small area of possible outcomes. Ecological resilience is a large bowl: there is more space for the ball to land but it will roll around and potentially stop in multiple places.

Resilience can be problematic if the system is so stiff that it’s producing results outside the acceptable spectrum of standards. A gamified system would have to be a much looser and employ more adaptive reward structures than a traditional game if it wanted to maintain its play element. Ruhl identifies the five key features of a system contribute to the capacity to endure through surrounding change: 1) define problem, 2) determine goals and objectives for system 3) determination of ecosystem baseline, 4) development of conceptual models, 5) selection of future restoration actions, 6) implementation and management actions, 7) monitoring and ecosystem response, 8) evaluation of restoration efforts and proposals for remedial actions. The goal of this approach is to increase response diversity so that unexpected positive behavior can be rewarded without having to change the entire system. It’s the Renaissance, with all its limitations, but still that possibility that you can do something new and amazing.

You need a lot of authority delegated to an individual or agency for this to work. Administrative systems focus too much on the front end design without making changes on the fly. The Renaissance was able to work because it mainly boiled down to the artistic tastes of one eccentric patron in the exchange. They could be bartered with and changes could be made more easily than if one were dealing with a corporation or committee. Whatever elements of play you were extracting out and relying on to induce absorption from the user would have to be carefully maintained in an environment where the serious aspects are always in flux. Large dynamic changes are going to have be made to a gamification system on the fly, you can’t just change the scoring model every year and expect it to hold together.

Which brings us full circle on this series. The very first post on Gamification and Law began by stressing that the most important game design has to offer law is crowd sourcing techniques. Dynamic legal systems represent that idea by proposing laws that can change quickly and respond to social conditions on the fly. Legal theory, in turn, has a lot of nuanced ideas about how to study and address rule systems once you get outside closed-off play systems. My goal with this series was to cross pollinate a wide range of ideas and disciplines on the subject of gamification, something the public dialogue has sorely been in need of. If gamification is to make much progress, it will be in the hands of people who do not care much for boundaries and other static ways of thinking. As Donell H. Meadows comments, “It is great art to remember that boundaries are of our own making, and that they can and should be reconsidered for each new discussion, problem, or purpose.”

Gamification and Law - 4

2011-08-22T07:31:00.000-07:00

If you had to boil down gamification to a single issue, one relevant to academics and marketers alike, it’s how far can you structure an organized system before it stops being play? When does the form finally break and become something else? Ian Bogost, channeling his inner-Lakoff, declares that the whole enterprise is bullshit. Christian McCrea comments that gamifcation just wants, “the glamour of play; the legitimacy of its culture." It stopped being about play the moment they changed the purpose of the system to selling stuff instead of producing play. Lian Amaris counters that even if there is less play than your average game, it hasn’t stopped being play.

This is the juncture at which legal theory has something to offer the debate because lawyers and judges have been fighting about a similar issue. Except we don’t deal with the play form, we deal with the forms of justice or morality and it’s on a much larger scale. To make better laws you have to get at the core of why people obey them in the first place. Do people do it because it’s what the herd does when authority, sometimes with force, tells them to act or do they obey the law because they personally believe the law is correct and good? For gamification, the issue is are they buying your product because of its intrinsic value or are they buying it because it levels up their stats? Because whether you’re marketing toothpaste to kids or organizing a reward program for recycling, you can’t fix it or improve it without understanding the underlying mechanisms at work. As Ronald Dworkin points out in his Introduction to the Philosophy of Law, the problem is not which answer is right but how do you tell the difference?

The best place to start answering that question is by pointing out that you’re going to be disappointed if you’re analyzing a closed-off play system. World of Warcraft’s appeal is diluted when it crosses into the real world because people behave differently around things they take seriously. What works in a pure play environment must be adapted for things like real money, products and marketing to be effective. You need to study systems that incorporate play alongside things people take seriously. Promises to the contrary are indeed, as Bogost points out, bullshit.

Johan Huizinga, whose book Homo Ludens does an excellent job of outlining the play form, identifies the Renaissance as an example of play co-existing with seriousness. He explains, “The spirit of the Renaissance was very far from being frivolous. The game of living in imitation of Antiquity was pursued in holy earnest. Devotion to the ideals of the past in the matter of plastic creation and intellectual discovery was of a violence, depth and purity surpassing anything we can imagine…and yet the whole mental attitude of the Renaissance was one of play.”

Which sounds nice but why don’t we give a literal example. Florence, Italy was able to produce a fantastic art scene because of its patron culture. A person who funded a grand public work of art gained popularity and fame in the city, which gave them political leverage which led to money, power, and all the stuff that comes with it. When Cosimo de ‘ Medici was looking for a way to get famous and gain political leverage, he noticed that the roof of the Dome of Santa Maria del Fiore was unfinished. He hired Filippo Brunelleschi to figure out a new method of creating roofs and had him complete it. Every day, every single Florentine looked up and saw that roof. And they got to see it fully finished because of Cosimo’s patronage. It’s not hard to understand why Cosimo was considered “king in all but name.”

The Renaissance was able to produce grand works of art through the creative force of play because the extreme seriousness of that time period gave room for play to form. Artists could be creative and produce something unique while still adhering to many fiscal and social limitations. Patrons, in turn, gained notoriety and influence because of the advertising. The term Renaissance itself was coined by someone the Medicis hired to describe the hundreds of works of art they created. This is not a new idea, a modern critique comes from an animator complaining about management and writers interfering with the play element with their own draconian measures. That example better shows a culture that does not allow play.

So, going back to Lian Amaris’s point about it doesn’t stop being play because of gamification, he is correct. Play is a kind of form, which is explained more in-depth here or here. It’s not a solid state or a specific list of characteristics but rather a series of relationships and conflicts that criss-cross into a basic, recognizable form when it occurs. Forms can vary in their restrictions and requirements. A law is a strict space in that certain fundamental things must be present. It’s usually written down and does its best to confine people within a single meaning. On the other hand a cultural standard is a much more amorphous and changing form. It’s rarely very clear when something violates a cultural standard, but one can tell when you are very far out of bounds. This idea is covered here.

So following the same format of my original depiction of the relationship between cultural standards and law, above is a representation of play, games, cultural standards and the legal form. Light blue blocks are game spaces, orange circle is what is acceptable within the play form, red is the culture standard, and the purple block is that society’s laws. Two things bear pointing out. First, the play sphere cannot exceed the culture sphere nor does it extend all way out to the border. The space between the two represents the necessary traits of seriousness that must exist. Second, games are not confined to the legal space. I owe this observation to Greg Lastowka and his exceptional book Virtual Justice for pointing this out to me.

Lastowka cites the example of Ray Chapman, who was accidentally killed when an inside fastball struck him on the head during a baseball game. If a person intentionally threw a rock at another person’s head and killed them, that would be a murder conviction. Baseball, however, has its own rules and operates in its own separate sphere of society. As a professional player, Ray Chapman knew there was some risk that an inside fastball might be pitched. The rules of baseball were never broken. As a society, we seem willing to allow arenas of sports and games to persist as a special social setting where separate rules apply. Similar scenarios apply to other major sports like football or hockey that present physical risk: United States law has deemed that the player consents to the risk of harm from another in those games.

Gamification, in terms of the above image, would represent a game that falls between the cultural standards of seriousness and play. It would probably have some grounding in laws (although it doesn’t have to), cross into the realm of play, and extend out into the serious space. This is what the culture of art patrons during the Renaissance would look like or Big Bear’s new business model at the end of the story. Please remember that the above image is just meant to depict the relationships between these forms, it’s not a literal depiction. I’m speaking in terms of visual space and location because it’s easier to understand rather than me blathering about a bunch of abstract ideas.

So the answer to the question of how do you tell the difference between someone buying your product because of their needs versus buying it because you installed gamification rewards is that you don’t. The ideal scenario, as with a legal system, is that you’ve got a little bit of column A and a little bit of Column B. A law is present to clearly define the goals and limits while everything is still within the cultural standards of that group. Gamification would be aiming for something similar by striking a balance between serious objectives and play.

Link to the Conclusion.

Forming a Better Lawyer Game

2011-08-02T16:13:00.000-07:00

I once got asked by someone what I thought of the Phoenix Wright games since I’m a practicing lawyer. Truthfully the series never clicked for me despite being a solid adventure game. The way it depicted law and how a lawyer works bothered me immensely. At the time I said it was because it communicated the idea that all I have to do in a lawsuit is click on things and just puzzle it all together. That there was always some way the lawyer could magically fix everything when in reality my job can involve making bad situations just less bad. The design felt wrong to me and it spoiled the rest of the game.

This idea was refreshed in my mind when I saw a great post by Simon Ferrari on Channel 4’s Sweatshop Game. Modeled after the tower defense genre, you put workers on a conveyor belt and try to win the gold medal. The content matches the theme, but the design works to help one appreciate the struggle of sweatshop labor because you realize that it’s always cheaper and easier to just use child labor. Simon Parkin, the game’s designer/writer/producer, explains, “It was one of those rare cases where the mechanics and the message seemed to align neatly, and once we began speaking to experts in the field of sweatshop labor it became clear that there was a huge amount of relevant content that we could bake into the game mechanics.” Ferrari goes on to point out that this is an example of what Ian Bogost calls “tight coupling” between design and content. The two compliment and conform to one another.

This brings us back to the concept of form, which I went on about in Gamification and Law - 3 and I’m going give a more concrete example here. To repeat a few ideas: form = content/design and because of this you identify form by its ‘family resemblance’ to other forms. There is no one specific thing that makes something an FPS, a game like Portal 2 is still an FPS while at the same it’s a puzzler and it’s a story about a woman escaping a giant lab. Alternatively a game like Amnesia is a survival horror game even though it’s nothing like Resident Evil. The concept of a ‘family resemblance’ comes into play because there are just certain things in varying combination that must be there for a game to be like something. At the same time it’s not a concrete list either, new and different combinations can still fall into a familiar form. The form is just that unspecificed, abstract idea of what something is based on its resemblance to other things.

Now when I say something like form = content, it’s important to remember that we’re talking about a multitude of relationships interconnecting. It's a kind of system but instead of working around economics or game design it's abstracted out to any topic. Consider a great post by Matthew Gallant on the dramatic pace of the game Jamestown. Like a play or movie or book, games have dramatic arcs that are traced by the tension of the player. Gallant comments, “If we acknowledge that game mechanics have inherent dramatic arcs that superimpose the authored content, then we can begin to analyze mechanics in terms of their storytelling potential.” The idea being the dramatic bits of the story ought to coincide with the tension in the design, like the final boss also being the villain of the story, etc. It’s taking the conflict of one medium and finding a similar conflict in another, here a visual narrative coupled with the mechanical designs. You’re matching them based on their similarity in form.

Going back to the Phoenix Wright point I began with, the strong reaction I had to the game comes from the disconnect between the design form and the form of practicing law in real life. Consider the trial room mechanics. You read what a witness is saying and spot when they’re lying based on prior detective work. This happens all the time when practicing law. In this regard the narrative of the game is fine and even does a great job of paying homage to a trial. The problem is that there is always a solution to the witnesses in the game. As in, if you just object and say the right things you’ll eventually resolve the case. You’re never trapped. The same is true for the detective work, I just have to find the right clues and everything will be alright. The game design isn’t really creating the same sort of form as the actual practice of law because it has different sorts of conflicts and characteristics.

A game that more accurately represents what it’s like being a lawyer is Magic: The Gathering. Like a real case, you don’t really have a lot of say in what my initial hand is like. You just get whatever problems the client is having that day. If you have shit cards and get land-starved then there’s not a lot you can do to turn the tide. Alternatively if you do well in discovery and the law is on your side then you can make a lot of progress and deliver good results. There’s a stronger element of chance that captures the perspective of being a lawyer while at the same time still retaining enough emphasis on skill. Games of Magic are won or lost on tiny decisions and mistakes. Screw up the timing of a counter and it’ll be too late to play it. Fail to attack one turn and you’ll have lost the opportunity when you can’t quite make the killing blow. Bluff your way into having the player block your creature and you can use a giant growth to finish off their monster.

The problem with Phoenix Wright is that there is nothing left to chance. It’s linear, one need only discern puzzles and you can progress. The form of the design does not really mimic the form of the real thing. As a consequence the form and content don’t really equal out and thus don’t tightly couple.

The final point I’d make is that none of these criticism are really going to matter to anyone except another lawyer. The Phoenix Wright games have a huge fan base and I’m pretty sure if I hadn’t made the horrid mistake of going to law school I’d like the game a lot more. The linear form the game employs may not mimic the real thing, but it does mimic the popular public perception of the lawyer. In fact, if you were to make a lawyer game like Magic: The Gathering, it would probably sell horribly because of how technical it would get. So I’ll conclude by saying that as important as form may be for supporting a game’s content, the perceptions of form need not always derive from the real thing.

The Systems of Chrono Trigger

2011-07-22T03:14:00.000-07:00

This article is a companion piece to the Gamification and Law series. It’s meant to give a very specific example of one way a video game can communicate the idea of system to a person.

Chrono Trigger is unique among JRPGs because of its focus on place instead of story. Incorporating time travel into the game puts certain limitations on the narrative while also opening up unique storytelling opportunities. What makes the game so special is that when you start focusing on place instead of linear narrative in a game you begin to talk about the interconnected relationship between things. The why and how of events in the game is the central focus of the story, which are the very questions that drive our own relationship with systems.

Chrono Trigger’s cast, while charming in a Dragonball Z sort of way, are static with the exception of Magus. Chrono is your basic silent protagonist while Marle stays in love with him and generally happy throughout. Frog is always the dutiful soldier, Lucca loves science, Ayla talks like Yoda, etc. This is not to say the characters do not have backstories or that they are bad characters, but compared to FF3 there is a notable lack of change in their dispositions. They overcome obstacles, usually in their past, but it does not change their outlook on the future.

The reason for this is because if your game is about time travel and you allow people to muddle in the past then you have to figure out a way to keep characters consistent. You can write tons of dialog to cover all the different scenarios. Or, more realistically, you can just keep everyone as one-note as possible. Lucca can go back in time and save her mother from the accident, but either way she resolves to dedicate her life to science. Frog can put Cyrus’s spirit to rest but it only increases his resolve, it does not particularly change him personally. This is important to note because it demonstrates that the characters are not affected by the world around them. They are beyond it.

The game is about slowly piecing together the timeline of Chrono Trigger’s world and figuring out what happened. After a brief introductory adventure, we travel to 2300 AD and discover the inevitable Armageddon of 1999 because of Lavos. Then we deduce it must have been Magus in the year 600, only to discover Lavos actually arrived millions of years ago when dinosaurs still roamed the planet. The arrival of Lavos brings about an Ice Age and ultimately causes the distortions in time that allow the protagonists to succeed in the end.

This is a systems narrative. The game is about observing the various stages of a system, putting together the causes and effects, becoming empowered by that knowledge and then moving to correct the problem. In systems thinking the individual never totally understands what’s going on because of the limitations in feedback. Sometimes it can take years or decades for the consequences of your actions to play out. By then it is too late to change anything. The same is true for the issues one is currently facing: the causes have already happened and the relationship between the event and the feedback is not always clear. Uncertainty is always present for those working with systems in real life. Chrono Trigger, as a story about time travel, is about the unique chance to understand a system as it spans over thousands of years.

These ideas are outlined in Donella H. Meadows’ excellent book Thinking in Systems. Meadows defines a system as, “an interconnected set of elements that is coherently organized in a way that achieves something.” She explains that everything we think we know about the world is actually a model of it. There’s no way for a person to fully understand the past because they aren’t there and they can’t know the future for the same reason. So we build a mental model based on our observations and use it the best we can to make decisions. She calls this ‘bounded rationality’ or the fact that people don’t always have perfect information when they are making choices.

Almost all video games are composed of systems that ultimately make a kind of limited model of reality. Ian Bogost referred to this as the simulation gap, but technically in systems thinking there’s never really such a thing that doesn’t have a gap. It’s impossible to know all the data to create a 100% accurate model and you just accept it. The difference between a game and a system in real life is that it is a closed system. It’s conceivably possible to fully comprehend a closed system because you can observe all of its connections. Or at least the outer edges of those connections, they can rapidly generate so much complexity that it’s too much for the human mind to follow. Game designers who would assert otherwise are either delusional or making extremely linear games.

So how do you study a system when you acknowledge right from the start that you can’t know everything about it? What you’re looking for are levers and places where your input can affect other parts of the system. How long should you wait before deciding how much inventory you’ll need for the next month in your shop? How much money can you spend on that new car, even though anything could happen to it later on? Should you get dental insurance, even though the premium will cost more than just out of pocket expenses most of the time? These issues are not systems themselves but rather the questions they generate, which in turn can become the story of one’s own life. What should I do with my life to accomplish my goals?

Chrono Trigger is the story of a closed system and a group of heroes who study its various levers and bring about change. While most games can easily tell a story about cause and effect Chrono Trigger is more concerned with those specific relationships rather than discussing consequences. The entire game is about fighting destiny. Lavos, as a being that can control time, has crafted a timeline that always ends with its victory and the destruction of the planet. On the Black Omen the player discovers it is even repairing the timeline with clones of the protagonists to replace them to ensure continuity. Before the last battle each character opines that Lavos has been controlling their entire species, guiding their evolution with its own DNA to maintain power. Such perceptions echo the ones you encounter when studying similarly large and frightening systems, a sense of powerlessness as larger forces control and bind your future.

This complex relationship between actions, consequences and trying to control them is depicted throughout the game. The trial sequence involves several possible acts the player can take and their interpretation as to Chrono’s guilt, no matter what the player intended. Even if you play through the sequence perfectly Chrono still goes to jail because of the Chancellor’s corruption. The newgame plus option is all about encouraging the player to explore and see what happens when you do things differently.

This idea of systems is probably best represented in the Fiona’s Forest mission where you transform a desert into a forest. First you have to realize the desert is not just there, it was caused by something 400 years ago. Then you have to undo that cause. Afterwards Robo volunteers to help plant a forest and revitalize the area. Feedback is observed in the form of a desert, a lever is detected, pressure is applied, then corrective action is taken. All of this is uniquely possible because of the time travel mechanic and the fact that you, the player, are observing the system as a whole. Compare that to your original perspective of the desert when you walk through it in the year 1000. It’s just there. Nothing you can do will change its status as a desert because it’s too late. Only by travelling in time do you become aware of the underlying feedback and lever, the relationship, which created the desert.

Narratively the game involves one of the inherent flaws that systems thinking notes about understanding the system: you can never fully control a system because it becomes static when you do. Lavos is a being that tried to be in total control of the world, its reach going so far as to even predict and attempt to counter the heroes seeking to destroy it. Yet once that happens the static nature allows a person to step outside of the system and change it. Or put another way despite how much Lavos was overwhelmingly in control of the timeline in the game, it still didn’t have the power to stop its own death.

It’s not my goal to claim the creators of the game were thinking about systems theory when they made Chrono Trigger, rather to point out that time travel games are invariably about systems. You could cite Majora’s Mask or Day of the Tentacle and build a similar argument easily. It’s another example of the point I made in the Gamification and Law series about how games are uniquely suited for communicating the concept of systems and form to people. Since you can’t really start by trying to communicate something concrete to the person, games are handy because you can get them to picture how a series of relationships can be used to craft anything, be it a JRPG or a dynamic legal system. Like the desert puzzle in the game, I’m not really talking about the desert but rather a series of relationships that culminated in the desert.

As Robo considers his reflections after 400 years of turning a desert into a forest, he argues that something much larger than any of the heroes is involved in the time gates. That something wants them to see these various moments. When pressed on the issue he concludes that it is simply, “something beyond our comprehension.” That truth, more than any other, is the first step towards understanding systems, design and form.

Army of Darkness Defense Review

2011-06-29T16:34:00.000-07:00

Army of Darkness Defense is the first game that ever convinced me to buy in-game money. Not Farmville, not Team Fortress 2, but rather a defense game about fending off never-ending waves of enemies. It pulls you in with easy gameplay and movie quotes then yanks the rug out with a brick wall difficulty curve.

You play as Ash defending the Necronomicon. Each level begins with a sound bite from Army of Darkness then you move Ash up and down the level to fight skeletons. Your iron stash slowly fills as you play and that gets spent on troops. Enemies drop money, which buys upgrades, and you can probably guess the rest. Every troop is a reference to somebody in the movie and you re-enact the final battle over and over with steadily increasing number of enemies per fight.

What’s interesting about this game is that it’s an example of how microtransactions affect the way the game flows. I don’t think I died in the game until Wave 30 or so, and then I just had to start being more careful. There’s a bunch of different attacks, troops and defenses you can dump your money into while this is going on but I got by just spamming swordsmen and Ash’s special attacks. This is all taking place in a 2-D plane so really there isn’t much strategy to it.

All that changes on Wave 50 when the difficulty curve spikes right into your face. You get to keep the money you make even if you die in a level, so you can keep playing even when you’re stuck like this. You scrape money together and buy upgrades, but Wave 50 was so much harder that the spam tactics I’d been using couldn’t even put a dent in it. All the troops I’d been neglecting had to be upgraded and all the defenses needed to be at Max.

Stuck in an airport, obsessed with this little defense game, I realized I’d have to keep grinding for hours to get up to speed. And for just five bucks I could save myself an hour of grinding and finally beat this last boss. Army of Darkness Defense was so good I was willing to pay money to have it end.

Gamification and Law - 3

2011-06-28T15:53:00.000-07:00

The goal of this post is to discuss the potential changes in perception that come with a society who is accustomed to playing video games.

Game academic James Paul Gee called the growing understanding of video games in modern society the semiotic domain or “modalities used to communicate distinctive types of messages." The more people who play games, the more familiar they will become with their conventions, which will in turn allow for that means of communication to cover more topics in society. This is one of the most common selling points for gamification when explaining why it would be so effective with marketing. An entire generation of people who grew up with and continue to play games today is just beginning to hit their 30’s. One can assume that a growing semiotic domain implies that those people are at least playing several different games, more likely dozens. Each of those games is an independent system with similarities and differences. Learning to detect those features and differentiate them is one of the first steps in developing the critical skills needed to think about systems on a larger scale. This, in turn, is the key towards creating an informed population about how a legal system works.

The chief critical skill for systems is learning to think in terms of the whole rather than the individual. An excellent Youtube series by Dr. Russell Ackoff introduces the basic ideas but he begins by pointing out that most people in America are taught to analyze things individually. That is, the answer to how something works or why it came about can be found by examining what’s inside the system. You see this idea in liberal arts most often, such as looking at a painting and analyzing what it means through various critical lenses based on politics or method. Systems thinking is the idea that the explanations always lie outside the system, never inside. You look at the thing and try to understand its relationship to the rest of the whole.

Every system is contained in a larger system. An essential property of a system is that it cannot be divided into individual parts. Ackoff uses the example of a car and deciding the value of the vehicle based on how well the fuel regulator works. You don’t base the value on just that, you want to know how well all the parts work together as a whole to become a car. Analysis is incompatible with this approach because it’s inherently taking things apart. You break down each component and isolate their function. This often leads to bad decisions on how to improve or repair a system because it over-emphasizes a single function without gauging the effects on the whole. A system is never the sum of its parts, it is the product of its interactions.

This line of thinking is best developed by multiplayer games. In an MMO players learn about superior builds for their characters by studying how they handle combat with other characters. The conflicts are what allows a person to grasp how a system works. These occur much less often in single-player games because of the lack of competing interests.

Barbara Cosen explains that most past legal scholarship focuses on isolating legal mechanisms and explaining how they work. She compares this to someone performing an experiment in an isolated lab then presuming it will be applicable to the real world. The truth is that there are hundreds of other factors going on in a legal system that all influence the outcome of a conflict. It is never down to one component or exchange.

A great example of the dangers of using analysis on a system is an article on police foot patrols in The Atlantic. Crime statistics and victimization surveys measure individual losses, but they do not measure communal losses. The article explores the impact of foot patrols in Newark, NJ and explains that while it did not lower the actual number of crimes, it did increase the overall community satisfaction. The reason is that the foot patrols break up drunks, disorderly youths and identify strangers in the community. They theorize that these factors tend to act like a broken window in a house: it attracts more crime the same way a broken window attracts vandalism. People believe they can get away with it after seeing that someone else got away with a different crime. With the cops walking the neighborhoods people felt safer and happier despite the lack of change in other statistics.

The article explains that studies of police behavior ceased, by and large, to be accounts of the order-maintenance function and became, instead, efforts to propose and test ways whereby the police could solve more crimes, make more arrests, and gather better evidence. If these things could be done, social scientists assumed, citizens would be less fearful. The law defines my rights, punishes his behavior and is applied by that officer because of this harm. It’s a basic analytic approach and solution: we fix things for the individual and then everything will resolve itself. What the experiment in Newark, NJ discovered is that this approach often misses the mark when dealing with truly complex issues. Or as Ackoff explains we are improving the performance of the part while worsening the performance of the whole.

Why does playing games help with teaching systems thinking instead of analysis? Because the more systems a person engages with, the more familiar they are with the concept of form. While it’s easy to make grand statements about recognizing the forest for the trees, it’s conceptually harder to do this with insubstantial systems like laws or games. Ancient legal systems such as the Roman Empire’s, for example, have a noted tendency to only deal with the physical. This is my property, that is your property and here is what I can or cannot do in regards to this property. Insubstantial concepts like free speech, freedom, racism or other modern legal ideas are more difficult to grasp because they are so abstract. Most people understand what freedom is and they believe they have a right to it, but they also simultaneously recognize that there are limitations on that right if one wants to co-exist with others. I’m not free to go over to your house and make a sandwich, for example.

This problem when making laws for abstract forms like freedom or equality is that by its nature there is no specific thing I can say to identify it because it’s not a thing. It's a series of exchanges and interactions that culminate into that state. One of the best essays on legal formalism is by Ernest J. Weinrib entitled Legal Formalism: On the Immanent Rationality of Law. Weinrib argues that form is content and content is form because the ensemble of characteristics that we consider to be the form represents what the content really is and, equivalently, when what we consider to be the content adequately expresses the thing’s form. The thing is a single entity comprised of the set of characteristics that define it, and it has the unity of an articulated whole that is not reducible to – is therefore greater than – the sum of its parts. Or put more simply, not all tables are alike, but they all share similar properties that designates them each as a table.

Gamers don’t explain it like this and hopefully they don’t bore their friends by debating our inability to articulate inherently abstract limitations, but the basic principle is still there. The idea is explained by Wittgenstein when he was discussing the relationship between various games. What does a board-game have in common with a card-game or ball-game? Certain things are present like amusement but features like the cards or math drop away. The criss-crossing of conflicts and features creates a ‘family resemblance’ by which we categorize rule systems without limiting those categories to any one specific thing. This is why a legal form is considered a kind of pure abstraction: you defeat the purpose of it when you start limiting it by content considerations.

Gamers do this all the time. Portal 2 is an FPS even though it’s a puzzle game. Fallout 3 is an RPG even though it could conceivably be played as an FPS. They are accustomed to loose definitions of systems that are based on numerous factors compromising a whole. The various components of a system are observed and based on that the system is categorized. This method of thinking is often difficult to communicate with a person because they are so accustomed to emphasizing the individual. This approach has its place and advantages, but when dealing with something as large as gamifying society it requires a different approach. If gamification is correct about gamers, then there should be large number of people who are significantly more capable of thinking about legal systems entering the populace.

There’s not really any quantifiable way to measure whether or not the populace has an enhanced sixth sense for changes in the systems that govern their lives. Ideally they would be more capable of discussing issues from the big picture perspective rather than focusing on individual parties or agendas. The intangible nature of a legal form means that it does not have any specific moment of understanding, just acceptance. Some legal scholars resort to comparing this idea of legal forms to an artistic sensibility, others denounce the idea as nonsense used to defend bureaucratic injustice. I don’t expect anyone’s Xbox 360 will be resolving these questions. The development of a greater sense of legal forms will allow people to adopt systems thinking more clearly. This should allow people to understand that designing a better legal system with gamification at its core means recognizing that those designs go beyond their immediate consequences.

Legal scholars, gamers, pundits, activists, politicians, game critics, hack lawyers…basically everyone still analyzes problems instead of using a system approach. There are moments where this is appropriate but the growing reality is that what is good for the individual is not always good for the group. Growing environmental pressures with food, land and energy will require a more dynamic society willing to adapt while at the same time finding a way to still retain its overall character. The question of what to do with gamification may find its answer with helping to usher in this new understanding of law and society.

Link to Part 4.

Gamification and Law - 2

2011-06-09T16:26:00.000-07:00

In order for something like gamification and applied crowdsourcing to work in law, the designers have to understand the relationship between rules and standards. You can’t just walk up to someone and expect them to obey a rule because it works more efficiently. It has to fit within their social standards and their beliefs about how the world should work. Addressing this problem is a lot trickier than the initial task of designing more efficient laws.

Improving the design of a law requires understanding the difference between a game not working and a law not working. In a game rules aren’t really broken in the same manner because doing so disrupts play and the game itself. In a legal system people are allowed to break the rules because there are so many players that no rule system could ever accommodate all of them. More players means more unintended consequences. When those situations rise up, strict rule enforcement might cause something unfair or cruel to happen. There’s a strong sense of morality or virtue that enters the equation because the consequences are permanent. In the legal system this is called a ‘hard case’.

The term was coined by a legal philosopher named Ronald Dworkin in an essay by the same name and in it he discusses a potential hard case in a chess tournament. Let’s say you have a rule which says, “If you taunt another opponent, you immediately forfeit the game.” Seems innocent enough, right? Two players sit down and one smiles at the other. For cultural reasons, the opposing player is insulted by smiling and flips out. They demand that their opponent be forced to forfeit for taunting them. How do you call that? If the player is genuinely offended, then technically the other player broke the rule. Is it a fair outcome to let them win in this manner? What if they’re just abusing the rule?

One of the things Dworkin points out about resolving the chess tournament issue is that it’s comparatively easy to resolve. Everyone there has agreed to play chess. They like chess. People may bring different social backgrounds to the game but the two players in the above example are still there just to play chess. Obeying the rules of the game is included in that relationship. So all you really need is a Judge to tell them what the rules mean and they'll go back to playing. That’s one of the inspiring things about play and one of the unpleasant things about law. In the real world there are serious issues that people have very strong opinions about how to handle. When designing a legal system one must recognize that part of the challenge is getting people to agree to the rules at all.

There’s a couple of basic reasons a person might follow the rules of a society. A key distinction is one Judge H.L.A. Hart makes about the difference between a rule and an order. A law you absolutely have to obey is an order. It would be something along the lines of me pointing a gun at you and asking for your wallet. Not giving me the wallet will result in consequences involving the gun. In that situation your feelings about that exchange aren’t relevant. The way they do become important is when automatic enforcement stops being present. You’re not going to give me your wallet if I’m not standing there with the gun. Hart explains that there has to be a certain element of acceptance by a society for a law to be obeyed otherwise you have to enforce it.

Duncan Kennedy makes the point that the acceptance of a rule is a sign of its conformity with social standards. He explains, “Standards refer directly to the substantive values or purposes of the community… by contrast, formally realizable rules involve the finding of facts. Factfinding poses objective questions susceptible to rational discussion.” Put another way, rules are concrete and clear, standards are amorphous and ever-changing. The clarity of rules means it’s possible for something like a legislature to create them, the larger and nebulous nature of a standard means it has to come from the community while remaining undefined.

The dynamic between rules and standards is a necessary element of a healthy legal system. Rules, by their very nature, are imprecise. The broader you make a rule so it can apply to more people, the more over and under-inclusion that occurs. Standards are much more effective at covering broad types of behavior and they help narrow overly-broad rules. The social standard that hurting people is bad is more effective than having a rule listing off the millions of ways you can hurt someone. Standards are not very good at resolving specific disputes. A standard like free speech doesn’t really tell me how loud your car stereo can play before you become a nuisance. That’s what you need laws for: specifics.

Above is a diagram of what a utopian society would look like. The red circle represents the social standards. The purple square is the legal system. The laws are all well within what the society is willing to permit. It’s a depiction of a legal system as a possibility space, a style based on the magic circle principle of game design. The space inside the square represents all possible conduct that is legally permissible and socially acceptable. The space between the square and the circle is the gap between law and social standards. Conduct that occurs in that space represents something that is technically illegal but society is willing to accept. That’s where your hard cases are occurring. Anything outside the circle is offensive to this system and also illegal. Notice that the rules and social standards don’t perfectly conform. You can’t ever create a perfect legal system that will be able to totally avoid hard cases. People are too bizarre and dynamic for that to be possible.

Above is a graph of a more realistic depiction of a society. Each circle represents a different set of standards for a group of people. For some of those standards there is overlap and that represents where the groups agree on social values. In other parts they do not. The laws depicted reflect this reality by showing laws that go outside one group’s standards but are supported by another group’s. As noted above, laws outside a group’s social standards have to be enforced. They won’t do it voluntarily.

The potential for seemingly unfair legal resolutions is high in this situation and may lead one to rightfully question why anyone would accept laws outside their standards. Ronald Dworkin explains that people put up with hard cases because when people consent (assuming that they are consenting) to be in a legal system, they commit not just to a set of rules but to an enterprise that may be said to have a character of its own. Each of those social standards is engaging with the other and accepting the legal system for the larger purpose of a greater community.

It’s here that some of Jane McGonigal’s ideas are applicable. One of the points she stresses is that games can be used to build stronger communities. Initially this is just addressing the entire problem of people with differing social standards not communicating, but it also enables a way for them to participate in the governing process itself. The game designers going about fixing a legal system must be given specific goals for those designs to induce. Those goals must still be decided in a democratic manner. This process can be influenced with community games that specifically address what those goals should be.

A great example of this is a recent budgeting experiment in San Jose. A company called Innovation Games created a game called Buy a Feature. Community leaders from various backgrounds were paired into teams of eight and given a finite amount of virtual money. They could buy certain budget features but never all of them. Each group created their own budget which reflected a model for how the actual city should dispose of its funds. Writer Jeff Lopez explains, “The event seems deceptively simple but by bringing collaboration, feedback, and play into the equation, participants were able to build consensus in a very positive way. In a political world dominated by yelling between the Right and the Left, this type of collaboration provides a breath of fresh air…The quantitative results from the event can be found on the city’s website and the mayor’s proposed budget was released earlier this month. The results are in, and the official document explicitly cites the budget game: residents were reluctant to cut police and fire resources but were willing to look at efficiencies. The mayor’s office has decided to not cut safety patrols, and instead turned to increasing efficiency in pensions and benefits, as well as reduce funding of nonessential efforts that fell to the bottom of the game results, namely city health initiatives and public recreation events.”

In his book Newsgames, Ian Bogost (co-written with Simon Ferrari and Bobby Schweizer) explains, “Good community games produce meaningful discourse through trial and error rather than through opinion. Such discourse does not amount to the interpretive work that one might perform on a film, book, or play…instead, the discourse of community games involves the movement toward the solution to some specific problem.”

The goal of a game designed legal system is not to create a perfect legal system. It’s to create a legal system everyone can agree on.

You can find Part 3 here.

Gamification and Law - 1

2011-06-09T16:04:00.000-07:00

Gamification is the idea of using game design to solve real world problems. The most tangible application for game design is crowdsourcing. Game designers are adept at testing a rule system, observing the consequences and improving the system in response. They do this by having players try a system out and then changing the rules to produce the intended effect. Fresh ideas like rewards or levels are included in this approach as new way to ensure the system is effective.

For the purposes of this essay though, we’ll focus on some smaller examples of where one could use crowdsourcing and gamification in the legal system. One of the easiest places to apply this skill would be improving the consistency of judges. To give you an idea of how fickle court rooms can be, a recent study by Shai Danziger compiled 1112 parole hearings to check for what effect the time of the day had. Parties were 65% more likely to get parole if the Judge had eaten lunch and taken a break. That’s unfair for someone whose hearing is scheduled right before lunch or at the end of the day.

To combat this issue some states use sentencing guidelines to make punishments mandatory. A committee creates a formula to calculate the punishment based on long term goals proposed by the government. These formulas are "evidence-based", which means they try to assess a criminal's risk of reoffending as an element in how long to send them to prison. These formulas are based on the statistics of people that have been through the system. An article on Missouri’s sentencing guidelines claims it has been effective at reducing the number of repeat offenders because it channels them into the best programs for rehabilitation. It also allows a state to implement goals into their prosecution system by taking a stance on being merciful to non-violent criminals and only being harsh on violent ones. The goal is to reduce prison populations, discrimination and insure consistency in the judicial system. The downside to this is that a lot of sentences that come out will seem shockingly low or high despite the nature of the crime. A game designer could improve the efficiency and productivity of this system just with their innate understanding of how to channel players towards various goals.

Another area that affects all members of society would be digital contracts. These are those voluminous contracts you’re asked to click “I Agree to the Terms” whenever you try to purchase software or services online. The problem is that nobody reads them. This is further exacerbated by some companies using unconscionable terms such as Blockbuster’s, “We reserve the right to change this contract with or without notice to the parties.”

This kind of environment is very similar to the one that led to the home mortgage crisis. Law Professor Lauren E. Willis, in an essay on predatory loaning, explains that one of the problems with deregulation is that every loan company was using their own loan agreement. These were progressively more confusing and resulted in consumers purchasing loans they did not understand and consequently couldn’t afford.

The solution is to create a standardized form throughout the industry that allows consumers to have a better understanding of what’s going on. Since these transactions are all happening online, it should be possible to apply playtesting to the problem. You could design a digital contract. Things like what portions are examined, for how long and how many people later have problems with the contract are all important for recognizing what the consumer understood. Imposing this concept by law is unattractive for many reasons, ultimately it’s in the best interest of corporations to do this voluntarily for improved stability and customer loyalty.

The application of crowd sourcing to greater social issues calls for a fundamental shift in how we evaluate ourselves as a society. All claims about the merits of someone’s position would be based on their effects rather than any intrinsic worth. We would no longer rely on the politician or the pundit proclaiming that a law will solve a problem. We, as a society, would have to start asking them to prove it. That will, in turn, require us to begin accepting those results even if they don’t always say what we want them to. If gamification is to have any lasting impact on society, it has to go beyond merely incentives and begin producing tangible results.

Go to Part 2.

Parchment, Paper, Pixels by Peter Tiersma

2011-05-31T18:09:00.000-07:00

Peter Tiersma’s history book Parchment, Paper, Pixels is about the evolution of the legal profession. He frames this in the narrative of technological innovations for communicating rules via basic paper, the printing press and then computers. For the sake of brevity he focuses on areas of law that intrinsically revolve around paper like wills or contracts, but he broadens the scope by the end when he focuses on laws themselves. In the process he explains the intricacies of why a rule on parchment, printed paper or on a computer works differently.

With both written and oral rules the party is mainly focused on discovering the speaker’s meaning, what changes is that someone speaking orally doesn’t have to create nearly as complex of a rule. The speaker can rely on body language, tone and other subtle forms of communication to get across their point. Listeners, in turn, rarely focus on the precise statements of a person and instead focus on the general meaning. Clarification is also not really an issue because you can just ask the person what they meant by something, which allows the speaker to adapt that meaning to something appropriate to the context. For example, if the village elder declares that there will be weeaboo in the ritual hut, they can explain what that means should someone be confused.

You don’t have any of that with a written rule. The rule has to exist in a vacuum because someone with no access to the speaker is going to read it. They’re going to focus on what individual words mean and be more capable of recounting specific statements because they’ve got it right in front of them. Generally people remember the specifics of something that was written down way better than they do something said to them. As a consequence a written legal document has to devote a lot more time to explaining what something means so people don’t figure out some goofy way it might help them. It’s not to be obtuse, it’s to make there is only ONE way of interpreting a document. This is Tiersma’s explanation for why lawyers and judges began to begin writing in such a convoluted manner, going back to another history book he wrote called Legalese.

A big chunk of the book then focuses on the law governing contracts and wills. Contracts are a legal concept that existed long before writing so the paper contract is not always totally binding. This is for the practical reason that, as with an oral rule system, you can just ask the person what they meant in the contract. Conversely a will is slightly more tricky because the person you need to ask for clarification is usually dead. Thus the rules governing wills and paper came very early in history and are very strict. Today you need two witnesses to sign off on any changes to the will or even have it be binding in the first place. This is a big problem in law because a lot of people still think they can print something off at Kinko’s and leave it at that. Courts are required by law to chuck that will and distribute your estate based on a formula when that happens. Whether or not the will is legit, the issue is that if you allow those kinds of wills in then people will be able to sneak in fake ones.

Tiersma uses games to make the distinction between a written record of the rules and rules that people actually obey. The example is a kickball game where everyone orally consents to the rules. That’s generally going to represent what the group thinks and has agreed upon. If someone were to come along, observe the game and write down the rules they would not actually be the rules because it’s still an oral system. That is, the players don’t recognize the authority of the text. Once enough players get together that they feel the need to start writing crap down you then shift into where the paper rules govern. The groups all agree to follow what the paper says which then causes all those mechanical shifts as noted above.

Tiersma reinforces this point by comparing this process to our relationship with Christianity. A person interpreting the Bible who thinks it was beamed straight from God onto a book is going to limit their interpretation to what the book specifically has written down. A person who thinks it was created by a group of Romans a couple of centuries ago and has been heavily edited by various groups since then will take a broader approach. The person who believes the Bible is the word of God does not believe that the book is a representation of the law, they believe that it IS the law.

Appreciating why any of this matters in the big picture comes from recognizing that our culture, despite a brief flash of letter writing for a few centuries, is mostly oral. It doesn’t matter that I’m writing something down, what matters is where the authority is coming from. With e-mail, TV, Skype and all the other trappings of the internet we’re back to the same principles of an oral rule system: you just ask the person for clarification and focus on what they meant instead of what they said. People don’t write things that have to be self-explanatory, they just write as if they were talking. This is why cherry-picking quotes from forum conversations has always seemed a tad tacky to me. Forums are generally oral systems and it's imposing a written text technique that results in everyone talking like a stick was shoved up their ass.

There’s a lot of history that comes into play here about how rules were published and communicated, but the ultimate gist of it is that the American legal system is oriented around a text-centric approach. The volume of cases and rules are so massive that lawyers are now forced to search for specific phrases or words without any regard for the actual case. Law briefs and rulings tend to have short quotes and snippets from other rulings to justify their arguments without any regard to the larger context because there’s so much information involved. The problem is that ONLY lawyers, judges or particularly obnoxious academics communicate in this manner, the rest of society still operates on an oral method of communication. Which leads to fun things like people telling me I’m being an ass or not understanding what I’m saying when I talk about law. But I’ll admit Tiersma helped me get a better awareness of when and how to bridge that gulf with people.

At this point the law is going to remain in its textual state for the near future because there isn’t really any other way to communicate the complex concepts necessary with a graphic or video. Tiersma concludes with that you can have a legal system without writing, you cannot have one without language. In a vain attempt at dragging this back into being relevant to games I imagine the same is true: you don’t really have to communicate a rule system in any one particular fashion. But there does need to be a method of communication going on.

Passing the BAR review

2011-05-28T12:48:00.000-07:00

Time to start blowing the dust off this blog and get it back underway. I'm going to shell out some old material I never got published and then get up to a regular routine soon. This is a review of an educational board game I wrote almost a year ago.

Each state in the U.S. requires all lawyers to take a multiple day exam called the BAR, which consists of essay questions and a 200 question multiple choice test called the MBE. It covers six bodies of law: Torts (think car wreck lawsuits), Property, Contracts, Constitutional, Criminal, and Evidence. This post won’t be going into any nitty gritty details but instead will discuss a board game designed to help study for this section called Passing the BAR. As someone who has taken the BAR twice and passed the MBE both times, I thought I’d offer my two cents on it.

Conceptually a multiple choice test works a bit like a roguelike. All you have to do is remove the dungeon and replace the stats with your actual abilities. Monsters in these kinds of games, like multiple choice questions, have more to do with knowing the correct reaction than blindly attacking. Turning this into a board game involves adding a lot of additional elements to this basic interaction. Passing the BAR is setup like a game of Trivial Pursuit with bits of Monopoly thrown in for good measure. You have to move across 35 spots on the board while rolling a dice that only goes up to 3. Each spot is a topic of law, when you land on a spot you have to answer a multiple-choice question. Choose wrong and on your next turn you have to keep trying until you get a question in that topic correct before you can roll. There are wild card spots that send you to the beginning or ask you a bit of legal trivia instead of a specific question. The other player reads the question to you and asks you to pick an answer.

Trying to make studying for the MBE fun is the game’s biggest problem since it tries to expand its appeal by including legal trivia and broader questions for people not taking the MBE. I have trouble imagining a player using this game as anything other than a compliment to regular studies. The MBE sucks and the only person you could get to willingly sit through this game is a corpse.

I played Passing the BAR with my classmate Laura and during the first game we overhauled most of the rules to maximize speed and efficiency. All of the Professional Responsibility questions were removed because that area isn’t covered on the BAR. The legal trivia might be a handy way to remember more obscure laws, but it ends up just distracting you from the crap you should be reviewing. Anytime we landed on a spot that called for trivia, Laura and I instead picked a topic we were having trouble with. The timer was also removed because it wasn’t really necessary, after about an hour we were ready to tear our eyes out anyway. While in Trivial Pursuit you eventually need to badger someone into giving up if they don’t know the answer, here you have four options to pick from. If anything, the biggest issue is picking an answer too soon for most players.

Another problem is that all the questions are read orally so that everyone playing can participate. Certain law question are easier to understand when read aloud than others. In Torts or Criminal Law there is usually only one or two parties with a few factors to juggle. In Property or Contracts there can be several and it often becomes too much to juggle in your head. To really handle an MBE question you need to be marking key words and ignoring irrelevant sections. Practicing reading this material and slashing things out with your pencil is an important skill because that’s how you should take the test. So you’ll be spending most of the game cutting the players off and telling them to just give you the card.

That point aside, the game is pretty useful in the early stages of BAR preparation because you’re still learning how the MBE questions work. Like many standardized tests, studying the questions is just as important as learning the material. Having to negotiate all that information orally meant I quickly learned how to categorize and spot the issue in a question in just one pass. It also helped me spot the subtle differences between similar answers because when read orally you have to recognize the wording immediately. It’s useful because while the task is almost impossible for the more complicated subjects, just trying means that when you go back to reading them it will be easier.

Overall, I spent half of the summer using the board game to study. I’d come home after studying, eat dinner, and whoever arrived that night would play for an hour before going to bed. We never once finished a game. As the summer shifted into studying the essay sections there just wasn’t enough time. You could get through about 22 to 25 questions per hour using Passing the BAR, which wasn’t fast enough when compared to the 30 you can do in less time. Laura pointed out that the nice thing about the game was that it wasn’t as demoralizing as doing problem sets. You don’t get slapped with a percentage telling you that you’re not passing at the end of the session, so there isn’t the same sense of impending doom that BAR materials usually induce. Each question also brought up its own conversation as we talked about how we’d gotten to the correct or incorrect answer, swapping memory tricks and ideas for how to dodge wrong answers.

The second time I took the MBE (I screwed up on the essay portion of banking law) I barely bothered with the thing. There was no one around to study with me and the game’s questions are, by themselves, not particularly good or bad. I’d say don’t buy it, but honestly everyone I know who has the game was given it by some deranged Uncle or Aunt.

Extended Hiatus

2010-05-17T09:27:00.001-07:00

I'm afraid this blog is going on hiatus for a bit. The BAR is coming and I'm going to focus on it. I've built up a huge bank of posts so I don't think I'll be stopping the weekly updates. I've also decided to start putting the ideas and energy I apply to the intros into revising the actual posts since this thing doesn't get much traffic. Normally I'd just delete it but the dream essays still get a lot of traffic along with some of my law papers.

I never was any good at this reader relationship crap anyways. I'm not great with people on the web and the pleasant things about my personality don't really translate. Well, if you consider sarcasm and deadpan Southern humor pleasant that is. I think I originally conceived this thing as a casual explanation of what my post was about or where I got the ideas for it from, but I'm not really sure how that's relevant anymore. You can just, y'know, read the post.

I'll keep the updates coming though, Tuesdays on Popmatters like always.

Julian Dibbell's Guide to Gold Farming

2010-05-04T06:25:00.000-07:00

I'd be lying if I said I was spending my post law school but not yet studying for the BAR days in quiet reflection. If I come across as erratic on Twitter or something, I've been hitting the sauce. After 3 years of law school the only emotions I'm feeling at the finish of it are an intense sense of emptiness and anger. I was never a good law student. I have a lot of trouble learning things in classrooms and I'm even worse at taking tests. School has always been really hard for me but if it's something like an English course I can write papers perfectly fine so I used to just avoid it. Unfortunately, it's intrinsic to the way law exams work to be able to parrot information back at a person. It's sort of...a good analogy would be if I asked you to explain everything to me about playing a Paladin in Diablo 2. During Act III. If you have the boots of Ice Protection. And sometimes an Amazon player joins you. And your entire grade is based on this.

I don't think I would have made it through this experience without blogging and, to a larger extent, my readers. So thank you for showing up and helping me through this long period of my life.

This week's post ends my economy discussion for a while. It's all about gold farming and the larger principles at work when you try to extract real world value from an MMO. As much fun as it is to talk about the hypothetical value of your chain armor or magic sword of blah blah, turning that into cash in your pocket is another story. A fairly complex one that involves a lot of mean people and unpleasant realities about what happens when people take a game seriously.

Something I know about all too well at this point.

Team Economics in Halo 3: ODST

2010-04-26T06:06:00.001-07:00

Doubling up this time, my post seems to have gone up early this week. First is my review of the Perfect Dark remake for N64. I found the game to be an interesting example of how intrinsic the controls are to a game's experience. In this case, using one of those god forsaken N64 setups was an intrinsic part of how the game handled difficulty. Using the 360 dual-analog made the game very easy and unbalanced for the same reason that auto-aim makes the game boring. It's too easy to kill people. Multiplayer survived remarkably intact if not slightly lobotomized, I felt like I was having a quickdraw session in the Wild West most times.

On another note, holy crap level design has come a long way.

This week's post, which is the next to last one in the economy series, is about team game economics. In this case, ODST and its wonderful subgame Firefight. I didn't think very highly of the campaign and it didn't improve my expectations for Reach, which seems intent on abandoning the Saturday Morning Cartoon roots and gunning for this end of the world crap. I hate to say it, but you can only take a story about giant cyborgs so deep before it gets silly. Maybe I'm just getting old though.

If an MMO represents the most sophisticated economy a video game can produce, then it seems reasonable to say that the means of measuring that sophistication can be number of players x number of resources being exchanged. A game like WoW or Everquest has thousands of players and hundreds of resources being exchanged. The key principle being that any one individual player cannot get all the resources they need to survive. So they have to barter and do so by providing the resources they have. This comes in the form of both abilities and actual goods.

A team based FPS reduces all of these figures considerably. Usually resources are only temporarily unavailable, a player can access any of them if they want. A very strict team economy would be L4D, which lets you be pinned by opposing zombies and thus always potentially needing something from your teammates. Something like Team Fortress 2 is a bit looser in that you can still cut loose but coordination often helps. I generally categorize Halo 3 into that concept, it always pays to buddy up BUT you don't really have to. The economy system is optional but obviously relied upon by sophisticated players as they exchange abilities.

Firefight was interesting to me because it blends all of these elements into a pretty clever package. You need energy weapons to take down shields, bullets to take down enemies. The equation gets more complicated if you're trying to make par in terms of score. A shared pool of health and ammo makes sure players are constantly debating who uses what. I think it's one of the best team games I've ever played in the sense that people begin working together immediately and discussing how to use their limited resources against the never ending waves of bad guys.

Simple, but elegant.

Make the Next BPM Banner, Win Money

2010-04-22T16:59:00.000-07:00

As long as we're all jabbering about money and art...well the last one anyways, I think it's time to change the BPM banner. Same rules as last time about what I want the banner to be. Lots of chopped images with a nice background and the cropped image of the woman holding the mask must be in it. That specific image can be found here. I'm open to putting her in a new position but I'm going to admit being partial to that setup above. Please put 'Banana Pepper Martinis' in there somewhere.

When you've got something together put it in the comments. Make sure your e-mail is in the comment as well. I'll be posting this post a second time in 2 weeks for a final call, then picking one. I'll probably want to tweak a few things, but once that's done it goes up.

Winner gets 20 bucks on the game service of their choice. The way I did this last time was to just go buy one of those point cards and then e-mail the code. I think that means this will only work out for folks in America, but I can always gift something on STEAM. Thanks for all your support!

T.L. Taylor's Guide to MMO Culture

2010-04-20T05:38:00.000-07:00

The next book in our economy series focuses on MMO culture and how various parts of the design affect different people. Since players are the labor pool of an MMO whose work and shared interests create the value in the synthetic economy, studying how design changes culture is essential. Without people, you've got nothing.

Taylor's perspective was interesting because she was a veteran of MUDs and forums, 3-D games were very new to her and she admits to motion sickness when first trying Everquest. As a result she knew what to look for while at the same time seeing things with fresh eyes. The first third of the book is her discussing how design affects culture, which pans out in a lot of fascinating ways. The second third is on gender and race issues that arise from design limitations like how your avatar looks or where it starts. The final bit she casts her net wide and talks about a lot of things but not in as much detail.

An interesting part of the last third was a criticism she made of Castronova's text. The book was written several years ago so I'm going to modernize her point just a tad. Castronova presumes that people behave rationally in an MMO in regards to the economy. You can go turn on your TV or drop off a job resume if you want to know how that can pan out. The rational market is just as unreliable a presumption in the real world as it is in virtual ones. Taylor doesn't quote Huizinga but she makes the same point, people are here for the competition. Money is just a way of showing how much better you are than someone else. Players will keep accumulating money, or throwing it away heedlessly, for reasons that have nothing to do with economic interests.

Sometimes people just do it for the lulz.

Coin-Op Mechanics

2010-04-17T06:35:00.000-07:00

I'd forgotten about this, but it's relevant to the MMO's and money theme going. I had to review Data East Arcade Classics for Popmatters and ended up looking at it from a money making perspective. How much money did it cost to beat the average game? How did they ramp difficulty and flow to maximize profits per player? I'm intrigued by the idea enough that I'll probably expand it into a longer post and download a couple more arcade games to check my ideas. But here's the gist of it:

Truth be told, the whole experience became a lot more fascinating once I started keeping track of when I had to spend money. Bad Dudes cost me $3.25 to beat, Wizard Fire was $4.75, and Secret Agent came in at $3.50. The flow of gameplay always seemed to revolve around long periods of easy fighting followed by an intense choke point of difficulty. This is when you almost always dump another dollar into the machine. The last boss always involved some ridiculously unfair setup. The first level of a game was always beatable in one quarter, while the second was guaranteed to kill you. Some choke points were even designed to make me feel like it was my fault, like the platforming or maze sections in Wizard Fire. A lot of the things that I initially dismissed as bad design suddenly made a lot of sense from a money-making perspective. The game would get its claws into you and then kill you right when the game knew you’d be happy to drop another quarter into the machine.

Give the rest of the review a viddy if you like.

Fable 2's Fantasy Economy

2010-04-13T06:01:00.000-07:00

In what is becoming a sheer delight for probably all of you, here is another post about game economies. This time it’s a single-player but that doesn’t really make it go any smoother. It’s just a really difficult topic to discuss because for most gamers this is the equivalent of someone identifying all the trees in a park. To most it’s a tree and it will go back to being a tree when you finally stop bothering them.

Generally speaking, games have fairly dull economies in that they are transparent and mostly serve game design functions like punish or drag out the length. A JRPG has a pretty flat system that just buys low and sells high to penalize stupid purchasing habits, there isn’t much to it. A faction economy would be something like STALKER or Wing Commander: Privateer where certain groups buy things high and sell them low, then you go travelling and making a profit off it. Something more complex would be a simulation game like SIM City or Civilization but those always have transparency issues because value and effect are always explained. The exchange usually ends up binary as you do whatever the game design says will win.

Fable 2 is one of the most interesting economy systems out there because it ties so handily into the rest of the game. It is totally transparent and simple. Crime, stealing crap, cruel rents, and general badness will turn an area evil and make it an unprofitable area. Stopping crime, buying goods, fair rent, and general goodness will turn an area good and make it more profitable for business. Yet unlike most economy games where the only strategy is 'How do I make money' here multiple complications come into the mix. It really forces the player to pay attention and notice all kinds of collateral effects. Whether it’s by making you fat or more probably just forcing you to look for cash, Fable 2 pretends that you can get money by collecting chests and digging it up for just the first few hours. And then it is time to start cutting back on all this nonsense and buy some real property. I’m not sure what that amounts to in terms of procedural rhetoric, maybe it means if you don’t buy houses you’re the Devil, but it’s probably the most fascinating part of the game.

And it even has magic and British people!

Edward Castronova's Guide To Synthetic Economies

2010-04-06T05:36:00.001-07:00

This is the first entry in a trilogy of posts on MMO's that tries to engage with the culture and business more than just rambling off stats or game design stuff. The other are write-ups on T.L. Taylor's discussion of Everquest and Julian Dibbel's guide to gold farming. I'll probably be spacing them out but I think together they paint a solid picture of MMO culture. For the record, I used to play MMO's when I was younger but can't really afford to bother with one now. It doesn't look like much has changed except how addictive they are anyways.

If there is a single unifying idea to this book it's that people will turn to whatever culture or mode of life offers them the most fulfillment possible. Even if that means creating one out of thin air. I see a fair number of people complain about this but I can't shake the feeling their concern mostly comes from the fact that as people go to other cultural value systems, their own social capital decreases. The transition from print to internet for news comes to mind as an example, but I think an MMO represents a much more profound shift. We're not talking about where someone gets their news, this is the question of whether or not a person respects or even gives a shit about you. If you are not powerful in their world, the answer is that they probably won't.

Castranova draws his own conclusions about all of this and uses it as a criticism of capitalism itself. I broke down all the essential elements he outlined for an MMO economy and the problems that crop up. It might be dry even by my powdered milk standards but it really helped me to understand the genre and what it has become today.

Money, even in virtual worlds, is a drag.

The Mass Appeal of Farmville

2010-04-06T04:05:00.000-07:00

A critical discussion about Farmville is one that inherently revolves around money. All art is naturally about money on some level, you’re still selling crap to people, but in terms of intrinsic importance most critics seem to ignore it. You can declare something is not worth the 60 bucks and that this ruins the experience, but I think most people still critically separate the two elements when discussing a game. Once you start addressing the money element in a video game you cross into Andy Warhol territory and that tends to make people uncomfortable.

Warhol was an enormous fan of capitalism as an art form and understood that the difference between good and bad art had a lot more to do with the consumers than it did any intrinsic element to the work. Or put another way, I don’t really have to make a good painting so long as everyone thinks it’s good and will cough up money for it. The knee jerk reaction is to bitch and moan about this idea because it implies that people are being ripped off but I think that’s a bit misleading. We are, unfortunately, living in an era of things that are mostly good at selling and not actually being good but that’s another rant. You still have to admit that convincing millions of people that you are correct/talented/worth buying is extraordinarily difficult. I’ve heard people describe this talent any number of ways. Alan Moore called it a type of magic, lawyers call it trial advocacy, charisma, charm, divinity, whatever. Warhol simply declared that the act of persuasion itself was an art. And by that standard Farmville is an astounding piece of work because it does not bother with convincing anyone of anything. It is not, by itself, a persuasive work of art. It is instead selling persuasion itself through the mechanics of video game trophies.

The game of Farmville is to see how much money you can not spend while still effectively competing with your friends. This is not quite the same thing as buying a magic sword for WoW on Ebay. The magic circle is not broken here, it simply never existed. Almost none of the goods you can buy in this game serve any purpose except decoration. Creating an elaborate farm has more in common with posting a funny link on your facebook profile than it does being a high level warrior. And if you hadn’t noticed, people like to post crap on their facebook profiles. It does not need to persuade anyone of anything, it is simply another set of things to broadcast about yourself on the internet. That twinge of pride you feel at your gamerscore? That urge to post on Twitter what you’re ticked about that day? That’s Farmville. That’s Warhol’s prediction about 15 minutes of fame, but now Zynga is selling it one minute at a time to whoever will pay in time or money.

This post is the culmination of several months of working on various critical approaches and combining them. The ideas I’ve been using to critically discuss a multiplayer game come into play along with a lot of research on synthetic economies and culture I’ve been doing. I actually finished this column a month ago, which is recent by my standards, but I decided to post it since everyone seems to be jabbering about this game lately. It seemed appropriate to sell out a tiny bit and stay in the spirit of things.

So long Farmville, and thanks for all the free stuff.

Making a Better Spectator Game

2010-03-30T12:17:00.000-07:00

I swear I wrote this post before AHoG, although I ended up going in a pretty different direction from Lowood's lecture on whether or not playing a game is poetic in the sense an athlete is poetic.

This was inspired, in part, by a notion Jim Rossignol brought up in his book but I thought warranted a closer look. Most e-tournaments are dull. I don't mean like they aren't interesting or that complex things aren't going on, just that it's not particularly exciting. So I got to thinking about why I watch real sports when essentially I'm just as apaethetic to them as I am an e-sports event. Gambling, booze, social conventions...I gloss over it all while trying to point out that variety is also a huge factor. I'm pretty sure if they just modified Fantasy Football to cover an e-tournament they'd probably have their ratings sky rocket.

Is there anything gambling doesn't improve?

The Literary Merits of Dante's Inferno

2010-03-23T05:06:00.000-07:00

The first person to actually get me interested in Dante’s Inferno was Simon Ferrari, though I don’t think he intended his breakdown of the game’s offensive and bizarre PR campagin to have that effect. Back before anyone knew much about the game, Ferrari theorized that EA was covering up for a mediocre brawler by having an outrageous series of campaigns that would get the gossip blogs talking. That caught my interest because that wasn’t my understanding of what a major publisher did with a game it did not believe would sell. They usually just throw it under the bus. I mentally filed the game under the ‘Odd Behavior’ folder and moved on. I wonder if, looking back now, they were instead trying to cover up the game’s literary aspirations. Nothing says fun to kids like old books, after all.

The people who made this game did their homework. They knew that the best literary adaptations in video games ditch the original book’s plot and keep the setting. To make sure this happened they borrowed from every great artistic depiction of the poems and recreated many of them in lush 3-D landscapes. They knew that the best design for creating a sense of place is a third person game, one where you can see your avatar interacting with the space so that we experience the world’s limitations vicariously. They understood that the appeal of The Divine Comedy is hearing about all the grotesque punishments Dante conceived of and debating who deserves to go there. They brought out all these elements with visuals and clever design quirks. While playing this game I kept a ragged, heavily marked up copy of the poem next to me at all times and had a blast. Finding this little bit of trivia or figuring out where they were getting a particular line from became a kind of weird literary treasure hunt. I think there was some brawling in there but I don’t remember much about it except that I watched the ‘Pillar of Death’ attack more than any person should have to.

I mumbled on Twitter a few months back that I thought Dante’s Inferno was going to be one of the most important video games of 2010. Like Far Cry 2 it is divisive, difficult to play, and flawed. Like FC2 it is bland when it emulates the traditional norms of game design and like FC2 it is uncompromisingly bold when it strikes out into new territory. As a brawler it is not particularly impressive and bears the marks of a genre that has yet to significantly evolve in ten years. As a game with aspirations to recreate a famous place from a literary work through interaction, set pieces, and meta-narrative it is possibly the best game of its kind.

If only because it’s the only game of its kind.

Moving Pixels Podcast

2010-03-22T04:34:00.000-07:00

Hey! Rick Dakan along with the rest of the staff have started a podcast and it's up at Popmatters. G. Christopher Williams, Nick Dinicola, and Thomas Cross are all in there as well. They discuss their impressions of storytelling in games and how that trend has developed alongside the medium. I had to sit this one out because I'm up to my eyeballs in BAR review crap and honestly, I'm a bit of a frag job these days.

I like that they engage with it from a design perspective. Player motivation to keep going, how memorable a story is, and basic elements like setting & character along with presentation.

Give it a listen.

RedLetterMedia’s Spin on the Crazed YouTube Reviewer

2010-03-16T05:32:00.000-07:00

I think it was Chris Dahlen who said that a Youtube video or webcomic about video games, even a shitty one, gets more clicks than a well-written essay. I can’t remember the context for that statement but that part has stuck with me for a while. Kids today simply respond better to visual media and I don’t blame them. It’s more accessible, requires less thinking, and it’s easier to balance out humor while still making a larger point. Most gaming websites (or at least the ones I regularly read) have picked up on this effect and capitalized on the market. Hell, I’ll bet a hundred bucks that a video of me sitting in my bathrobe screaming at Shiren the Wanderer and knocking crap over would get more views than my average posts.

For the most part, this is a new craft and finding people who can make it work is not the norm. When I do stumble on someone doing something interesting with Youtube I like to do a write-up on them because most of these folks don’t get nearly as much credit as they deserve. Since they keep referring to the video game section of Popmatters as Multimedia, I figure I might as well take them up on it. Dictionary.com defines it as, “the combined use of several media, as sound and full-motion video in computer applications.” With limitations like that, is there anything I can’t write about that’s on the internet?

Red Letter Media is a prime example of someone negotiating all the inherent difficulties of creating an educational video without becoming tedious or having more jokes than actual content. He’s able to pull this off for a couple of different reasons but I think the core value, which we talked about over e-mail, is that deep down inside this is still a pedantic rant.The original video he crafted was a long, droning discourse on why the TNG films are terrible. He also likes to produce comedy videos or even his own stand-up. The foundation is still the pedantic rant, but he knows that for anyone to listen it also has to be entertaining. That’s the Devil’s bargain every Youtube or video reviewer strikes.

Watching the videos for yourself will do a better job of showing the quality work than me jabbering about it. Don’t be put off if you think he’s being too comical in the opening sections. Almost all of the videos start off hilarious but by the half-way marker, he knows you’re listening to the meatier portions more.

I really should consider that Youtube video thing…

Ubisoft's Imagine Series

2010-03-09T04:01:00.000-08:00

I'm at a conference this week, but it ain't GDC. It's something I have to do to get my lawyer license so it's not exactly a riveting intellectual experience. Lots of people telling awful disbarment stories, ominous reminders of how my entire lifestyle will soon be changing, and the very ugly reality that the legal business is not doing well.

I explain how this post came about in the beginning just because it's such an odd thing. There are different posts about these games but most of them are content breakdowns. The games are so blatantly stereotyping young girls that I just did a quick recap of how that works and instead focused on the actual mechanics themselves. How do these things play? Are they any different from games targeting other groups?

The final answer is up for debate but most of this stuff is just RPG mechanics set in different content. Instead of kill things you perform some other grind activity, money buys decorations or equipment, and you nicely progress along a reward scheme towards a final goal. Even decorating stuff, the one consistent design across all 3 games, is located in plenty of other titles. It's odd to me because it really shows how much an activity is defined by the content rather than what you're actually doing.

I still kinda want to play the one about being a Music Festival Organizer. Loved those things back when I was younger.

The Troubleshooting Review

2010-03-02T05:35:00.000-08:00

I wrote this a while back to try and get myself to write something slightly risky. I dunno if it's law school or what, but often I feel like my writing starts to feel excessively safe. Not in the sense of being overly-friendly or not saying anything batshit, there's plenty of that to go around. I mean just posting something that I don't really know what the response will be. I'm not always right when gauging the interweb's reactions but I can usually narrow it down to what ballpark I'm going to land in.

This post, instead, was just me spotting a problem that I'm not really sure will ever have a final definitive answer and throwing one out on the table anyways. As games begin to rely heavily on dialog trees, QTE's, and branching paths a reviewer can't really presume that one playthrough of a game is going to fully describe it. Time constraints make it so you also can't expect them to play the game repeatedly, leaving you with a weird problem of what exactly one is supposed to discuss when reviewing a video game.

All I propose is to just think of them like machines that produce experiences instead of experiences themselves. A lot of reviewers already do this, almost all academics I've met do. A more design-centric approach is nothing new, but what it means for a reviewer is to put a bit more effort into actually seeing if you can break the game. So many people who review games are accustomed to gaming's conventions that they often aren't really accurately describing how the game will work for someone new to the genre.

I'm guessing the reaction will be interesting.

Modern Warfare 2's Multiplayer Map Style

2010-02-23T05:44:00.000-08:00

Slight schedule adjustment: I have enough posts to last until May now. I seem to have taken a liking to writing about games, although I'm phasing out just about everything else. I gave up Twitter for Lent and I'm starting to feel guilty about it because it was a pretty easy thing to give up. To paraphrase Roger Ebert, if you ain't paying rent you ain't getting a room.

This week's post is one tackling the multiplayer elements of Modern Warfare 2. I was touched by the various blogs struggling with claiming 'No Russian' meant something but it was just the cherry on a big sloppy mess to me. Nobody who actually plays MW2 gives a shit about the single-player component of these games. Out of the dozen or so people I've spoken to about that section of the game, most complained about not being able to run during the opening.

I interviewed and relied heavily on e-mails swapped with Simon Ferrari and Iroquis Pliskin for this piece, along with actually coughing up the cash for the strategy guide. After spotting a lot of the problems with the Halo 3 post I needed them to balance out my views. A lot of it was confirming what I'd spotted myself while playing, so I used two choice quotes at the end rather than try to balance out their input with my own.

Basically, MW2 is a map game. You learn the map, you get in position, you shoot people. That has its merits as a design and is really just a spin on what the FPS has always been about. In Goldeneye you ran to the armor or the good gun, in Halo 3 you ran for the right weapon, and so on. If anything, the game is depressingly commercialized because it will taper out so rapidly once the majority of players know the terrain. It will be too difficult for someone new to play.

Which will probably happen...oh...about when the next COD game comes out.

The Peak of the Mario Franchise

2010-02-16T05:09:00.000-08:00

I have no idea how to discuss 2-D platformers. We all play them. We play them a lot. Sonic, Kirby, Commander Keen, etc. But what am I supposed to say about them? You can engage in an intensive breakdown of the design elements but the problem is that the first rule of a well-designed 2-D platformer is that you should be intuitively sensing the spaces and actions. Any content analysis of this style of game is going to be dubious at best for the same reason. The purpose of a platformer is that you’re using a set of abilities to engage with environmental puzzles that impede your progress. Obviously I love yapping about content if the game’s design actually works with it or it’s relevant to progressing in the game, but the 2-D platformer has more in common with Tetris than it does a brawler, FPS, or RPG.

My pick for Bestest Mario Game Like Evar is Super Mario World, but that’s because I still play the game obsessively when I’m upset and need to not think. It’s a detox game to me, one that I come back to every couple of years and play from scratch to 100% completion. Mario games were a good place to figure out why this title drew me in and others did not because there are so many styles and variations. They always change the games, but just a tiny bit each time. What I concluded was that because of the way the powers and Yoshi were a bit unbalanced, I ended up enjoying the game because it let me choose how I wanted to engage with the environment. Mobility is always the power under debate in a platformer and I liked Super Mario World because it didn’t try to limit my freedom.

This post bothers me because I know there are rough edges present, but I’m not sure where they are. That’s the annoying thing about the critical process. If you want to propose a new approach, there isn’t much chance of getting it right the first time. You just have to dive in and hope for the best.

People will let you know what they think of it soon enough.

The Problem With No More Heroes 2

2010-02-09T04:42:00.000-08:00

Charles J. Pratt made an interesting point to me during the after-party of AHoG about my discussion of Retro Game Challenge over at Brainy Gamer. He disagreed with my comment that the game essentially took 8-bit classics and “fixed” them. To paraphrase his argument, they simply modernized their design to suit this era’s tastes. While I thought they had fixed all the broken elements of Galaga to make a much smoother game, he claimed they took out all the things that made the title what it was. A design aesthetic is never improved, simply changed to suit another person’s tastes.

That’s a concept I’m continuing to struggle with as I find myself steadily more perplexed with mainstream games. Take something like Farmville. As companies start to plant DLC in their games and now withhold content just to make sure they can skim off the top, the question Farmville raises is how is an AAA game different in terms of purpose? It may not be fun to you, but a Zynga game and a Bioware game are both making money by convincing players to give them cash for imaginary crap in their game. One is some kind of monopoly money for buying stuff, the other is a quest you’ve never played. While people can and will argue that they aren’t even remotely similar, from a creator perspective they intrinsically have the same goal. That’s not a bad thing. This isn’t a value judgment, money doesn’t grow on trees, and it’s not like there is a lot to go around these days. It’s just a part of the overall aesthetic of an easy, accessible game meant to sell as many copies as possible. Just like every other game that has come out the past few years.

This conversation is incredibly important if the critical community is ever going to open itself up to make room for new and innovative video games. Leigh Alexander posted a very effective rebuttal to the ”NMH2 is over-designed” complaint and she also referenced this point in her Gamasutra piece, but I like her better when she’s being blunt. I cite her points in the essay to illustrate that accusing this game of losing its character is not an exercise in pining for a busted game. As I continue to struggle with how I’m supposed to feel about one of my favorite games from 2009 being an awful broken mess, the solution does not really seem to be an elaborate logic bender of ‘Bad is Good Sometimes’. If you’re going to say that bad design is acceptable, why even call it bad anymore?

During the Q&A after a talk on the parallels between the avant garde and video game development, I asked a question in response to a mod shown of Quake by a person named Jodi. He removed the graphics and barriers, but left the design in so that you moved through this elaborate abstraction of the game to create a new experiential system. Feeling the overwhelming urge to be a little bastard, I asked what the difference was between that and a game like Big Rigs. The answer is contextual intent, but that didn’t stop me from dragging the joke out all weekend to the point that I think a few folks were ready to strangle me by Saturday. Like any rhetorical device, the reverse can be said about a game that’s well-made.

What is this crap?

The Art of Place in Hitman: Blood Money

2010-02-02T05:00:00.000-08:00

After finishing up Cybertexts I found myself going back to a concept my colleague G. Christopher Williams had written about extensively in a manuscript he e-mailed me. A couple of different people have discussed the idea of approaching a game as a conceptual place but initially looking at it purely from an architectural perspective seemed flat to me. It's big 3-D building, so what?

What Aarseth argued, very successfully in my mind, was engaging with the various elements of a game as a sum total. He uses the word ergodics, which is greek for something or another, to mean a kind of textual landscape. One that you literally move around in. The concept started to click for me when I was thinking about System Shock 2 and then more extensively when I fired up Hitman: Blood Money. It's not just a 3-D building, it's the way you tuck away details into the space and how you coordinate that with the design.

This post technically represents the latest paper while I was thinking about this approach. The other is a long, wordy breakdown of psychological spaces and then one that describes this elements from purely a game design perspective. I'm probably just going to post them on here when I get around to editing them again or maybe turn into a Moving Pixels post. I figured starting off with a simple example of the concept and then expanding out to the larger points would work a lot better than just repeating my own fumblings with the idea.

Also, Hitman: Blood Money is badass and you should play it if you haven't already.

Jesper Juul's New Book 'A Casual Revolution'

2010-02-02T04:48:00.000-08:00

Got a hold of this one over Christmas Break and plowed through it pretty quickly. A lot of it is Juul's notes and lectures from the past year on casual games compiled into a solid reference. Not all of it was totally relevant to the topic at hand, the latter portion of the book was breakdown of how match 3 games have evolved over the years which is to say they haven't really changed all that much.

The best parts of the book are when Juul gets into solid analysis of the different variations of the casual genre and interviewing their creators to see what they were thinking when they made them. He also gets rid of a lot of bad misconceptions about casual games like the notion that they are supposed to be easy or lack a fail state. As he points out in the book, the last level of Zuma will kick your ass no matter who you are. The same goes for a lot of other matching games.

Interesting book, it got me to start looking harder at the stuff over at Popcap and take a lot of Zynga games more seriously.

Rogue Warrior and the new Genre of Games

2010-02-01T10:06:00.000-08:00

I've never actually played a game that succeeds at being a B movie experience. It's always a catch-22 because you can't intentionally be campy. There is a certain degree of honesty that must be present in the work, a degree of sincerity from the person that holds the otherwise awful experience together.

Someone on reddit commented that Rogue Warrior might be the Plan 9 of video games and I think that's accurate. It is so incredibly bad and cliched at every level yet somehow because of how serious it takes itself the game had me dying laughing the whole time. A lot of this is because Mickey Rourke is the entire game. Literally, as in he's the only person who ever talks. Four hours of him rambling about video game logic and swearing at everything while you play this awful game makes the whole thing incredibly meta. You can catch a video of the opening level here.

As different bloggers start to recognize that No More Heroes 2 kinda sucks, I think Rogue Warrior offers a strong alternative. If having clunky game design but insane content is to become a new genre, I think the defining trait will always have to be that the game is genuinely trying.

It just keeps failing so hilariously.

ZA Critrique: Weird Worlds: Return to Infinite Space

2010-01-26T05:18:00.000-08:00

Twofer for ya. My review of Resident Evil: The Darkside Chronicles went up last week. Generally speaking, it's Resident Evil 4 without controlling where you go. The original games already made it so you can't move while your gun is out, so they were always half-way to being a light gun game anyways. Fun enough if company is over, but it seems like it would be a bit dull by yourself.

Oh, lots of things about the plot you didn't know that you didn't know are in there too.

This ZA Critique features an indie game. I realized a while back that I had never done a ZA for an indie title and I decided to change that. It's not that I ignore the indie scene (though I take my sweet time getting to some of them), it's just usually I write a review for the game instead of putting on the analysis pants.

Weird Worlds: Return to Infinite Space is a roguelike but based loosely around Star Control 2. Play sessions are very short, 5 to 10 minutes, and usually end with you getting blown up. It's a good example of a game that relies heavily on randomization to keep itself interesting. I borrowed heavily from a great post by Greg Costikyan over at Play This Thing! to hash out the major points. It's a bit pricey at 25 bucks, but there's no other game quite like it.

Hell, I even bought it twice after losing the first one.

Jim Rossignol's 'This Gaming Life'

2010-01-19T06:33:00.000-08:00

The weekly post is a closer look at Jim Rossignol's newest book This Gaming Life. He makes the argument that the future of video games lies in multiplayer. While single-player games are starting to run into a brick wall in terms of possibilities, in multiplayer the possibilities are just being realized thanks to the internet. You've got the fascinating spectator culture of South Korea, the intensive global community of EVE Online, or just the FPS culture that dominates the West. The book is a closer look at all three along with some random facts and figures.

It was a nice shift from the academic stuff I'd been slogging through and reminded me that not everything has to be that particular brand of stuffy prose. It's not really about theory but rather just culture, so from that perspective it might disappoint someone looking for that type of text.

The South Korea section was what really made it worth reading in my mind.

The Film Noir Roots of Cowboy Bebop

2010-01-19T06:02:00.000-08:00

I got a new feature up, an essay on Cowboy Bebop I wrote a while back. Rewatching the series for what is now the fourth time for me was interesting this time because I did it totally alone. The other times I'd been introducing people to the show and wowing them with the style and music. Watching the show while scribbling notes and analyzing things was surprising because I realized how truly barebones the stories are. That's not a bad thing, but it made me realize how much of the series is driven by style over substance. The show is about slick anime, fantastic music, and tight action scenes.

It's also very appropriate for film noir, because that's the gist of the genre as a whole. There are no complex moral decisions here. A guy who got dumped, a woman who won't risk another person wrecking their life, and another guy who won't take no for an answer sums up just about everyone in the formula. I think it worked then, today in stuff like Brick, Uncharted 2, my own terrible blog fiction, and finally Cowboy Bebop because these are things people can immediately relate to. You don't become too angry about the ending to Bebop because even if you don't agree, you know why Spike is making that decision. Which is all you really need to tell a good story. I broke down the basic elements of film noir and then used the film that the show was pretty blatantly copying to outline why Bebop is such a great show ten years after its release.

Plus, c'mon, the soundtrack is badass.

The Style of Cel Shading

2010-01-12T08:04:00.000-08:00

This is one of those things that you already knew, but probably have never seen someone spell out in exact detail. You know what cel shading is, you know it makes games have a different vibe than their gritty HD siblings, and you've hopefully played a few games that employed it well. I decided to write about the basic artistic effect going on based on a few architecture principles. Smooth surfaces = bouncy, light feeling, gritty surfaces = heavy, dark feeling. A few distinctions about what is not cel shading and what actually is, good examples of it being used, and then a part where I ramble about Uncharted 2's effective combination of the two elements.

Art stuff and such.

The Perpetual Value Machine

2010-01-05T08:02:00.000-08:00

After dumping buckets of money into Valve's little online service this holiday season, I got curious about how exactly they make money by charging things this cheaply. It's not exactly the same process as bulk distribution like Costco and it's not really Wal-Mart either. They basically just sell CD Keys and then wrap that up into this really handy update service with social networking. They have low overhead but not as low as their competitors. Instead, the reason Valve owns this scene is that waaaay back when Half-Life 2 came out, you had to install STEAM. They've had that policy for a while now with all their games. And it looks like it's paying off.

For some reason or another, the process reminded me of a perpetual motion machine that is supposed to generate infinite energy if you just set it up right. Prices go down, value inflates, prices go back up, sales continue. I'm not sure this would work for every single game out there, but something like Madden or Team Fortress 2 would be the prime candidates for perpetual value games.

On paper anyhow, these things never quite work like you'd expect.

A Few Notes On 2010

2010-01-04T20:31:00.000-08:00

I was jabbering with my sister over the holidays about good television this year and the subject of Twin Peaks came up. In many ways, it was the first show to attempt the union of soap opera formula with something besides amnesiacs and hospital employees. People die in soap operas, but Twin Peaks was unique at the time for the strong emphasis on Agent Cooper and the mystery of who killed Laura Palmer. I usually tell people to watch up to about half-way through Season Two and then watch David Lynch’s movie Fire Walk With Me, which acts as a prequel. After the plot twist the writers had to reinvent the show’s driving force while David Lynch had wandered off to go do…David Lynch type things. It falls apart without the driving mystery and Lynch’s eccentric touch, replacing the concrete formula of who killed who with ham fisted mysticism and convoluted motivations.

My sister disagreed with this advice about skipping the last few episodes, arguing that the ending was a valid statement about the show’s nature. What, after all, is the defining flaw of every great show these past few years? They fuck up the ending. For shows that are all about mystery and watching people interact, tying up loose ends is inherently never going to be satisfactory. It will always disappoint. While a show like The Sopranos chose to end on a touching note before cutting to black, Lynch came back to direct the last episode and end it on an enormous cliff hanger. There are various reasons for this choice, he wanted to coerce the network into funding another season and probably had a few more stories in his head to tell. But in the end, the bluff has a larger meaning in the context of a show about people’s lives: they don’t really end. Something is always going to be happening, interesting or not.

I’m opening with that point because we’re going to talk a bit about 2010. I graduate in May from school and will be spending the summer studying for the BAR. It is not a forgiving test. You take seven 3-hour essay question sections (for each area of law) followed by a multiple choice test that covers everything they left out. I have to pass six out of the seven and correctly answer a certain percentage of the multiple choice. BAR passage is not determined by your score but rather is based on the top percentage of scores so that only so many people pass per year no matter what. Very smart people take this test. This is going to put a damper on my blog output. I will be producing the bi-monthly column as scheduled but I can’t really produce the rest of it anymore. I may discover that I still need a personal escape and continue to write posts while studying or I might be even build up a large enough surplus that you won’t even notice. More likely is that when I have a free moment I will have a glass of whiskey, a good cry, and slap myself into studying more. I’ll be done at the end of July and then I am unplugging from everything. Internet, video games…everything. I’m going to do some backpacking in Montana to figure out what to do with myself and the mess I’m in. I don’t find out my BAR results until November and there is fuck-all chance of me being hired until a firm knows whether or not I’m dead weight. I am in trouble if I don’t pass, but we’re not going to dwell on that.

This isn’t really a resignation post. I’ve got about 9 blog posts already written and have several more sketched out. That puts me well into March and probably April for when I will actually run out of material. Furthermore, Hell will freeze over before I ever quit writing. But I doubt I’ll come back quite the same. The schedule that allowed me to produce all of this material was never a realistic one, just what you can get done if you’re the sort of person whose sick of giving a shit about school and just wants their diploma. I thought about doing a bi-weekly post or maybe some ‘Link of the Week’ gimmick (I mean like jacking someone else's post and rephrasing it, not an aggregate) but I’m not really interested in half-assing something with my fake name on it. Not everything I’ve written is good, but it certainly wasn’t for lack of trying.

The finale of Twin Peaks is confronted with the same issue that is becoming the Achilles Heel of most television shows (or some games) today: how do you explain your big mystery? The second half of the season deals with a serial killer obsessed with the Red Lodge, a mystical place where evil spirits dwell and escape into our world. Cooper, at first only visiting there in his dreams, eventually steps through a gateway into the Red Lodge to be greeted by crashing symbols and dark flashing lights. People he has met appear, others he is only seeing for the first time. He walks about, people say weird things, and we are clued into the fact that something very bad happens to Cooper there. Not much else is ever really discussed (though do check out Fire Walk With Me if you have the inclination). What irked me about that scene was that here is the ultimate moment of the second season’s plot arc, here is the equivalent of ‘Who Killed Laura Palmer’? And it just goes by. We see the mystical place, and then the story keeps on chugging along. I suppose I resented the audacity of that, enough to tell people to skip it, but as I find myself writing this post I think I appreciate it a bit more. You’ve got to tell people something, yet all you’re really telling them is that it’s you who's changing.

So, posting will continue as normal into March or April. After that, I’ll be going on hiatus for a bit. I figure if you care enough to read my personal blog, I owe you the heads up.

Brainy Gamer Confab

2010-01-01T19:13:00.000-08:00

Just a quick post, trying to squeeze a few more seconds of relaxation before the grind starts back up. I was really lucky to be asked back onto Michael Abbott's podcast for 2009 to discuss my GOTY for 2009. I got to chat with Steve Gaynor and Chris Dahleen as well, each of us picking out the game that most impressed us.

I won't spoil the surprise, but it's a good chat.

Playing at Video Game Analyst

2009-12-15T09:29:00.000-08:00

Translating my sense of humor to the internet has always been an iffy proposition. I don't really like to mock things directly, radically taking things out of context or steering the conversation into the bizarre is my preference. Dead pan stuff, making people uncomfortable, the joy of the unexpected and seeing the reaction. Unfortunately on the internet all you get is the digital response, which isn't really as good and always leaves me feeling a bit hollow. I tried for a long time but it just wasn't very fun for me.

Ergo, writing like there is a stick shoved up my ass and just bluntly going through the stuff I dug up on a topic. I don't quite remember how my blogging style evolved into this but that's the formula now. Get curious about something, google everything I can find, compile it into a short essay, rinse, repeat.

This week's post, which will be the last for 2009, details me being curious about how accurate my predictions for 2009 gaming trends were. I did okay, but that wasn't terribly difficult because they were so broad and obvious. Which ended up highlighting a larger point about the profession of video game analysts and how the whole process of predicting things isn't all that hard.

I'm also scared someone is going to take the damn thing seriously.

Gauging Load Times in Games

2009-12-08T07:28:00.000-08:00

I made a joke on Twitter that taking law exams was like toppling a Colossus from Shadow of the Colossus. After I defeat this giant thing I end up toppling over and having a little more of this black energy enter me. It even has the going unconscious part and waking up confused, although I think that's mostly the Jim Beam. Makes me wonder how this metaphor will play out when I tackle the BAR.

This is one of those times I wrote out something that I think most people know but I've never seen spelled out or discussed. Load times, when we should be critical of them, and when they're just a necessary evil. Space them out properly and organize the design so I'm not watching three different load screens just to do one action, etc.

It'll do for now. I'm seriously running on fumes until these exams are over and I can sleep for a couple of days.

Philip K. Dick's Defense of Video Games

2009-12-07T05:15:00.000-08:00

Most discussions on immersion or ontology will involve someone using an example from sci-fi. Janet Murray's Hamlet on the Holodeck uses the imaging system from Star Trek to raise questions about what is real in a totally synthetic environment. A movie like eXistenZ, which you can find a brilliant essay on here, uses video games to discuss multiple layers of perceiving reality by having the characters play games within games. By the end of the movie, no one is really sure if reality itself has just become another layer of perceived existence.

While these talking points are useful, I've always been bothered by their reliance on the basic scenario of "Hey, what if I can totally simulate reality?" It's a great way to get the conversation rolling, but that' only one angle on something like ontology. I decided to do a write-up cataloging Philip K. Dick's ideas on reality that tackles several different approaches. If you're willing to acknowledge that a robot has feelings and is sentient, what does that say about you? What does that say about the very concept of emotion? Dick goes so far as to point out that you don't even actually need people to be plugged into some exotic machine for them to take games seriously, just the right cultural scenario.

Dick postulated that there was no really definitive reality. That it's all just perceptions on pure information. That in a very real sense, reality does not exist. I'm not sure I can ever go that far personally, but I think a good ontology discussion might benefit by asking yourself a more basic question.

Real compared to what?

Ten Years of Penny Arcade

2009-12-04T07:08:00.001-08:00

Crap, I was walking out the door when I saw that this went up. I've been reading Penny Arcade since...Hell before 2003 at least. Even when all I did was play old SNES and PC games back in college (2001 to 2005) I was still reading them. At this point they're like my afternoon tea, the comic and post are usually up by around 3 or 4 Eastern time and I always hop over before my last few hours of work.

When they posted that they were celebrating their tenth year, I thought that was pretty damn impressive. I decided to do a write-up on their work. I didn't really think that one all the way through, because it ended up taking me months to go through all their material. They have produced a shitload of content in ten years.

You can read the thing yourself to see my broad overview of their stuff, but I think the nicest compliment I can offer is that after reading every comic they have written two to three times, I fully intend to keep on reading.

I'm still looking forward to my afternoon Penny Arcade.

A Fun and Wacky Guide to Criminal Copyright Law

2009-12-02T09:04:00.000-08:00

After posting the Black Plague paper and seeing a few curious minds satisfied, I thought I'd throw this one up as well. This is a paper I did for my White Collar crime class this year, which copyright infringement is filed under albeit loosely. While the term was originally used to describe sending rich white men to jail, it's now loosely defined as anytime you steal or rob from someone using sophisticated non-violent means. That isn't a very satisfactory definition depending on who you ask because there really isn't a good definition of the field, white collar law is composed of over 40,000 statutes that a Federal prosecutor will pick & choose from when they are hunting the big fish.

Before going further....I AM NOT A LAWYER. THIS IS A STUDENT PAPER. IF YOU ARE IN TROUBLE WITH THE GOVERNMENT OR ARE CONCERNED ABOUT THE LEGALITY OF YOUR ACTIONS, PLEASE CONSULT WITH A LICENSED ATTORNEY. FOR THE LOVE OF GOD PLEASE DON'T SEND ME AN E-MAIL TELLING ME ABOUT YOUR BIT TORRENT HABITS BECAUSE I COULD VERY WELL GET SUBPOENAED TO APPEAR AT YOUR TRIAL TO TESTIFY. THE BAR APPLICATION IS A HELLISH ENOUGH ORDEAL AS IT IS.

Continuing on, I should point out that a criminal copyright violation is not the same thing as the RIAA suing people downloading mp3s. That is a civil violation, which is the traditional method for resolving these kinds of disputes. If you are with the EFA or believe that it is your inherent right to download a video game, that's not what this paper is really about. I cite civil cases heavily because criminal copyright law depends on them for their own rulings.

The development the paper is addressing are the various ways IP law has evolved in response to new forms of distribution. The criminal prosecution element was not even introduced until the VCR. Even then, the law was fairly simple: if you're selling someone else's copyrighted material, that's your ass. The FBI does not screw around when it comes to prosecution. Conviction rate was over 90% in 2008. This is because when the FBI knocks on your door, they already have everything they need to throw you in jail. The interwebs and several new laws have complicated this process significantly.

What's curious about copyright law is how public sentiment will soften penalties. Once everyone gets used to a new means of distribution, they start balking at IP holders crying foul. If people become accustomed to getting their copyrighted materials in an easier and more convenient manner, that's what they're going to stick with. This becomes problematic with the Federal Government because despite their reputation, when it comes to copyright violators they tend to go easy on them. When it comes to criminal law, you want consistency because the possibility for abuse is too massive otherwise. As it stands now, a person stealing a million dollars by selling copyrighted materials will get less jail time than someone defrauding a million with a Ponzi scheme. That needs to be fixed, one way or the other.

I rattle off some stats and talk about how the country is evolving and that the Feds ought to stay out of the whole process at the end. This isn't a concise history and I orient the discourse around technology instead of chronological sequence. If you want the proper footnotes, drop me an e-mail. Without further ado:

An explanation of criminal copyright law is both a study in the civil law upon which the cases are founded and the technology that drives the field. All criminal cases prosecuting infringers relies upon civil law because the technology through which copyrighted works are distributed is continually changing . Congress and the American people have a vested interest in allowing new, innovative technology that can distribute artistic works more efficiently for the betterment of society. At the same time, supporting a business model that gives sufficient incentive to authors and the businesses to produce their work must exist. With each new technological innovation that allows for new means of distribution, an old business model dies and a new one is formed. With this in mind, it is easier to study these cases based on the technology that instigates the business model shifts rather than just a linear timeline. As America slowly becomes an information economy, a nation that profits off copyrighted works more than any other good, the Federal government has increasingly been asked to step in and leverage criminal charges against violators of copyright law. The effectiveness of this has been mixed.

The Printed Word

The beginnings of copyright law pitted the two ideals of the public good versus the author’s rights from the very beginning. An excellent example is a case handled by Justice Story in 1841 concerning the rights to republish the collected letters and journals of President George Washington. In Folsom v. Marsh, the nephew of George Washington inherited the documents from his Uncle and sold the publishing rights to Chief Justice Marshall and an editor named Sparks. He then sold the hard copies to the Library of Congress for a tidy sum. An eleven volume series of books was released detailing the entirety of the collection. The defendant, Upham, copied all of the letters out of the book and published his own version. Story explains, “This is one of those intricate and embarrassing questions, arising in the administration of civil justice, in which it is not…easy to arrive at any satisfactory conclusion.” He draws a distinction between simply copying a text and creating a “real, substantial condensation of the materials”. For example, someone writing a review of the volumes can cite large passages if they are arguing a point. An encyclopedia, which covers a wide range of topics, must have certain fixed limits to what topics it can claim as property. Justice Story ultimately acknowledges that all letters and journals are literary whether they are meant for business or publication, but parties to whom they are addressed retain “a limited right” to produce them under special circumstances. These documents can be considered property and transferring those rights does not effect their integrity. Even then, Justice Story understood that giving absolute right to all things George Washington to one individual party was not in the best interests of the public.

Since the technology for producing printed works remained stable, copyright litigation in civil law is relatively quiet and still non-existent in criminal cases. Often people still continued to blatantly copy and sell literary works with no royalties granted to the author, such as the collected works of Charles Dickens here in America. Many of the copyright disputes that do occur during this time period revolve around playwrights trying to bar other theaters from performing their scripts. The first major technological breakthrough that instigated a new wave of copyright litigation was the copying machine.

Litigation revolving around the copying machine is still relatively small in scale compared to modern copyright law. Few people are inclined to sit and copy an entire book and as a consequence there weren’t many infringers worth prosecuting. What was vulnerable to the new technology was smaller articles and journals, such as Law reviews and medical journals. In Williams & Wilkins Company v. United States the publisher of several medical journals sued the National Institute of Health (NIH) and the Federal government for copying these journals without permission . Requests from government agencies including the military were forwarded to the NIH and requested copies were sent out. Confronted with the plain language of the Copyright Act of 1909, which grants “exclusive right” to all reprints of a document, the Court tempered this absolute control of information. They did this based on the House committee report from the Act which explained that the law was, “not primarily for the benefit of the author, but primarily for the benefit of the public.” Considering that the case took place in 1973, many years after the technology had been introduced, it is no surprise that the court goes on at length about how all businesses, including Congress and the Judicial system, rely on the ability to copy documents. A four part test is proposed which gauges (a) the purpose of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for and value of this work. The court then draws several key distinctions. The NIH is a non-profit institute distributing materials for the betterment of scientific study. From 1958 to 1969 (when the suit was filed) the journal’s subscription rate increased. The journals do not pay the authors of the actual articles and many of them testified that they approved of the copying. There is thus no substantial proof that the photocopying has harmed the Plaintiff in any way. Granting them absolute rights over all photocopies would simply make them “the dog in the manger”. Royalties were denied.

To illustrate a civil photocopying case swinging the other way, American Geophysical Union v. Texaco, Inc. is a very similar case. A publisher of scientific journals sued Texaco for copying their work and distributing it amongst their staff. Applying the same four factor test as in Williams & Wilkins, Texaco fails because they are a for-profit business seeking only to stem costs. Due to the size of the company, a significant amount of money had been lost by these journals . None of the academics published seemed inclined to testify in favor of Texaco at trial since they are not mentioned in the record. Willfully violating a copyright to the detriment of the owner for profit was ruled a clear violation of the Copyright Act, particularly when it’s a for-profit business doing it.

Sound & Tape Recordings

The purpose behind criminally prosecuting a copyright infringer is to provide a greater deterrent to taking or re-selling the works of a copyright holder. On a Federal level, criminal prosecution of copyright violators was difficult because compared to major crimes like narcotics or murder, it isn’t particularly important. Michael Coblenz explains in the article ‘Intellectual Property Crime’, “As former U.S. Attorney (and noted copyright expert) David Nimmer stated: "there simply are not enough resources to prosecute every federal crime vigorously. Narcotics, crimes of violence, and large-scale fraud are viewed as more worthy of pursuit than intellectual property cases, which, after all, are normally subject to some sort of civil remedy."

Furthermore, getting the early courts to think of these acts as actual property being stolen was equally problematic. In the case Dowling v. United States a bootleg record operation that created and distributed Elvis Presley records without consent was prosecuted for interstate transportation of stolen property. In terms of civil copyright law, this is an obvious violation under the Williams & Wilkins standard, moreso than even American Geophysical Union to the extent that the entire business was re-selling copyrighted materials. The courts explain, “interference with copyright does not easily equate with theft, conversion, or fraud.” The copyright owner still had the original Elvis Presley recordings, so that arguing infringement violates the same rights as physical possession is “colloquial” at best. The prosecution was making this bold argument to win a higher fine and penalty against the defendant, one that went beyond what the 1976 Copyright Act would have called for. Under 17 U.S.C. § 506 (a), the offender would only receive a maximum fine of $ 10,000 and one year in jail. A 1982 Amendment to that law increased this to $ 250,000 and imprisonment up to five years in prison. The Courts conclude, “Congress has not spoken with the requisite clarity” by specifically saying criminal property laws now apply to copyright violations.

Instances like the Dowling case were relatively infrequent because the equipment and business knowledge required for a large scale vinyl bootlegging operation were not common. Violators could be prosecuted fairly efficiently in civil courts without excessive cost to the copyright owners. The progress of technology would change all of this with home recording devices. By imprinting the information onto a magnetic strip in a cassette, devices capable of recording both television and music became both cheap and accessible to the public. Analyzing the impact of this technology will be broken into looking through examples of criminal and civil violations of both forms of infringement.

Cases dealing with the subject of copied music are relatively straightforward, a copied tape that is being sold is a clear violation of the law, however a criminal case on a questionable derivative work is important to note because it illustrates how awkward criminal copyright litigation can be. In the case United States v. Richard Taxe the courts are confronted with an artist selling remix tapes . Numerous songs from various artists are re-recorded, audibly modified, and synthesized to create a relatively new but similar track on Taxe’s album. The Courts write, “If the work is produced by re-recording the original sounds, or “recapturing” those sounds, the work infringes. If the work is produced by imitation or simulation by hiring of other musicians, or even the same musicians, to perform the copyrighted work in as similar a manner as possible, there is no infringement.” The re-recording must be more than a “trivial part” of the original recording . Unlike civil law, criminal law is construed narrowly . What is troubling about this case is that the precedent cited is all civil law. While such standards are useful when gauging a civil dispute, they are cripplingly empowering to the copyright owner when applied under criminal law. Given that Taxe’s album was only infringing in the sense that it was a “re-recording from the original” before being modified, the issue of whether or not this can still be considered a copy should fall under the doctrines of ‘fair use’ and derivative works. The courts here do not offer any jury instructions on this matter and focus narrowly on the law’s literal application. This is deciding the fate of a person facing massive fines and potential jail time.

Speaking generally, bootlegging a record or tape by copying it onto a cassette results in significant sound quality degradation. Although piracy existed, the music industry would have to wait until computers allowed for the MPEG-3 or mp3 before they would encounter serious problems. The major impact of magnetic recording devices would instead occur with home video tapings.

One of the landmark civil cases dealing with the issue of copying devices themselves comes from Sony v. Universal City Studios . Sony sold VCR’s (Betamax) which were capable of recording television programs while they were broadcasted. This could be done through a timer while one was at work or even when you wanted to watch a different channel while a different one was being recorded. By the time of litigation the use of the devices was so prevalent that, like the copying machine, attempting to hold individual violators liable would be impossible. People who taped such programs typically skipped the commercials, costing companies ad revenue, as well as allowing them to create home libraries of copyrighted materials. Defendants instead relied on a respondeat superior theory to hold Sony liable for lost revenue. As with Williams & Wilkins, the four part test was applied. Surveys indicated that 80% of Betamax owners watched as much television as they did before purchasing one. 75.4% used them for time-shifting purposes half or most of the time. 55.8% had 10 or fewer cassettes in their home library while 70.4% claimed they generally only watched the tape once. The courts argue that this is consistent with the First Amendment’s policy of providing the fullest possible access to information because time-shifting enables you to view programs you would otherwise miss. Advertising for the Betamax never explicitly advises copyright violation and the owner’s manual for the device points out that recording copyrighted programs violates U.S. law. Only 25% of Betamax users claimed to fast-forward through commercials, explaining that they often missed parts of the program when they did so. 62 out of a survey of 107 programs during the Spring of 1978 authorized some home taping while 22 allowed for unrestricted home taping. Several of these program creators, including Fred Rogers, were adamantly against imposing a penalty on Sony. While taking care to acknowledge that making copies for commercial profit would be a violation of the law, private home use ‘must be characterized as a noncommercial, non-profit activity.’ The fact that a VCR is capable of non-infringing uses alone renders it legal. The Court concludes that this specific use of a Betamax qualifies as ‘fair use’. Justice Stevens explains, “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Yet the case is not without its warning signs or policy considerations that would become key to later criminal prosecutions. In order to ameliorate the respondeat superior charges the courts rely on patent law, which does hold someone who contributes to the infringement of a patent by a third party liable. The Court points out that a, “challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for copyrighted works.” Several critics of the ruling point out that the Supreme Court essentially created a secondary liability trap for anyone trying to produce a new means of distributing intellectual property . Like undermining a patent, the device must undermine the author’s entire copyright for liability to hold the infringing product’s creator liable. In a strongly worded dissent, Justice Blackmun points out that these tapes do precisely that. He writes, “when a user reproduces an entire work and uses it for its original purpose, with no added benefit to the public, the doctrine of fair use usually does not apply. There is then no need whatsoever to provide the ordinary user with a fair use subsidy at the author’s expense.” Essentially, Sony was able to prevail because the Betamax, by itself, did not do enough specific damage to the television market.

With home tape recordings came the bootleggers seeking to profit off pirated copies and with them criminal prosecutions relying on the Sony ruling. The Government would once again attempt to apply 18 U.S.C. § 2314 for transferring bootlegged tapes across state boundaries and have courts again reject the notion of treating a copyrighted work as actual property. However, engaging in the profitable sale of someone else’s copyrighted work still results in criminal liability. For example, in United States v. Cross the FBI warned defendant that he was violating copyright laws by renting copied tapes . He would remove labels from the original videocassettes and transfer them to the copies. Seizure of the store’s inventory revealed that 28 out of 116 tapes were illegal copies. While the store owner was clearly guilty, his associate in the business Fleek claimed that she did not ever profit from the store. The court dismisses this argument by stating, “A conviction under 17 U.S.C. § 506(a) does not require that a defendant actually realize either a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit.” Just doing something that could theoretically make a profit with someone else’s copyrighted work was enough to hold her liable.

Strict enforcement of this policy is not particularly consistent by Federal standards. An example would be United States v. Moran, which dealt with another video tape rental store. Moran was a police officer who ran a rental store in his spare time. To prevent vandalism, he would “insure” his tapes by putting the copy out for rent and keeping the original in the back. He claimed to read somewhere that this was permissible. The reason this becomes problematic is that 17 U.S.C. § 506 (a) states that any “person who infringes a copyright willfully and for purpose of commercial advantage or private financial gain” is in violation. The officer’s ignorance of the law, along with his strict policy of only making one copy and upstanding police record, made the situation cross into the grey area. Normally in criminal law ignorance is not a defense. Since civil authority provides guidance in criminal copyright violations, the courts justify being uncharacteristically lenient on Moran because civil authority often mitigates for circumstances.

Digital Distribution

Industries dependent on profiting from copyright materials learned quickly from the Sony case that the more a device that enabled infringement became socially acceptable, the more the courts would be unwilling to call such an act illegal. The distinction remained: if a person was only creating a back-up of a copyrighted work that they had purchased then courts were not inclined to find products that enabled this conduct infringing. Computers had become sophisticated enough by the early 90’s to play music independent of a compact disc and thus threatened control over music distribution. To address these concerns the Audio Home Recording Act of 1992 was created, 17 U.S.C. § 1001, which required music devices by law to have some form of copyright management built in. Yet when the Third District court was confronted with a civil case where the RIAA attempted to sue the manufacturer of an mp3 player that did not have a copyright management system, the court would not enforce the law . The defendant produced an mp3 player called a Rio, which came with a program that would allow the user to concert a compact dics’s audio recordings into an MPEG-3 or mp3. Picking through Senate Reports and parsing language carefully, the court points out that an mp3 is not like a compact disc or audio recording. It is a computer program, which under copyright law is classified as a ‘literary work’ and thus does not fall under the Home Recording Act. Despite the District Court previously arguing that this interpretation would “effectively gut the Act”, the Court rules in favor of the defendant. They write, “the Rio is not a digital audio recording device subject to the restrictions of the Audio Home Recording Act of 1992.”

This willingness to allow people to distribute products that enabled copyright infringement expanded to software protection measures as well. In Vault Corp. v. Quaid Software Limited, a decryption program that broke a copy protection system was ruled acceptable so long as it was for archival purposes . The protection system, called PROLOK, involved specific diskettes that were licensed to companies seeking to protect their software. If a user installed defendant’s program RAMKEY, they could copy the data from the disk. Several engineers and programmers testified that they used this ability to back-up their files and thus qualified as an exception to the infringing use policy in 17 U.S.C. § 108 (b) which allowed for copying “for purposes or preservation and security”. It was also technically possible to back-up a PROLOK disk without RAMKEY. Relying heavily on Sony’s exception of excusing devices that had a “non-infringing use”, the court concluded that Quaid Software was not guilty of infringement or contributing to it. This, despite the fact that even the court admitted that the defendant has substantially harmed the plaintiff’s business . As in Sony and the case involving the Rio, the court is not willing to grant a copyright holder excessive control on the means of distribution for a copyrighted work without a compelling reason to preserve the old business model.

Courts would finally have their reason to begin defending copyright holders more vigorously with the arrival of the internet. In 1992 Congress passed the Copyright Felony Act to address the growing problem of computer piracy. Computer programs had normally been protected by a weird amalgamation of copyright laws but were now consolidated and offered full civil protection. Despite all of this, it would still take several years for laws to exist that addressed the precise nature of illegal internet distribution because in most cases, the violator is not actually selling the copyrighted work. An example of an early Federal criminal case dealing with digital distribution can be found in United States v. LaMacchia. In 1994 a 21 year old MIT student used the school’s computer network to create an electronic bulletin board system (BBS) to distribute software and video games. The total number of downloads came to about one million dollars worth of potential purchases. Because LaMacchia did not personally profit from this situation, the Government was forced to pursue a wire fraud case instead of simple copyright infringement. As in Dowling, the current laws simply did not present an effective way to find an act that is obviously wrong to be illegal. The court cites the mandate that “the primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts’, arguing that the case fails the wire fraud requirement of 18 U.S.C. § 1343. Since LaMacchia did not have “any scheme or artifice to defraud” by distributing these works on the internet, he did not meet the standard. There is no fiduciary relationship between LaMacchia and the copyright owners, there is no scheme to make money, and technically what he did was not even illegal under 17 U.S.C. § 506(a) of the Copyright Act . It is important to note that courts are not attempting to defend LaMacchia. They end by describing his conduct as, “nihilistic, self-indulgent, and lacking in any fundamental sense of values.”

This legal predicament would not last long. The Department of Justice formed the Computer Crimes and Intellectual Property division in 1995. While the division still considers civil remedies to be adequate to compensate victims in typical IP cases, it explains that the organization’s purpose is to prosecute those who can still continue breaking the law despite civil prosecution. In April 1997, thirty-five indictments were obtained for copyright and trademark infringement, but only three convictions and eight guilty pleas were obtained. The trademark cases dealt primarily with designer clothing, but one case involved improperly labeled computer chips. The criminal copyright infringement cases are split between motion picture videotapes, music recordings, and computer programs. In 1997 Congress passed the No Electronic Theft Act (NET) which modified criminal copyright law to make violation a Federal crime. This was a follow-up to their amendments to the RICO act to make intellectual property distribution punishable if done across wire or mail services. The ‘for-profit’ exception that got LaMacchia off the hook was now removed. Criminal infringement is the same as civil except for the presence willfulness and sometimes financial gain.

The two most well-known cases involving unauthorized digital distribution in civil court deal with the programs Napster and Grokster. The case A&M Records, Inc. v. Napster, Inc. represents a complete turnabout of the policies found in Sony . Using “peer-to-peer” file sharing, Napster’s software and network servers would allow online users to search each other’s computers and download music from one another. Since the files were in mp3 format, there was minimal quality degradation. By this point the four part test of Sony had been codified into 17 U.S.C. § 107. First, the purpose and character of Napster was to facilitate the downloading of copyrighted music. The program did little else. Second, the nature of the copyrighted work was musical recordings that were copyrighted by law. The entire work was used in this infringement. As for the final part of the test, “the effect of the use upon the potential market for the work”, Napster’s impact was clearly enormous. At the time of trial, 10,000 songs per second were being downloaded from the service . People who owned an mp3 statistically did not go on to buy the compact disc and Napster’s presence undermined any legitimate mp3 website. The remarkable thing about the Napster case is that it fails to merit any of the loopholes courts typically used to excuse copyright violations. The space-shifting defense of only using the mp3 for private, home use that worked in Diamond Multimedia failed here because Napster “involved distribution of the copyrighted material to the general public.” The standards of respondeat superior in Sony that many companies relied on to shield them were easily met here. Napster knowingly encouraged and assisted in the infringement of the copyrights through advertising and even after repeated warnings from the RIAA. The court notes that Napster also failed to meet the Audio Home Recording Act requirements of 17 U.S.C. § 1008 because they are perfectly capable of screening copyrighted material through the server but refuse to do so. Napster was subsequently bankrupted and purchased due to the extraordinary amount of fines levied against it.

Watching the mistakes made by Napster, the case MGM, Inc. v. Grokster demonstrates that even when the program does a better job of ‘gaming’ the legal system the courts were unwilling to tolerate this new level of copyright violation . Unlike Napster, Grokster was a peer-to-peer program that was capable of both infringing and non-infringing uses. Music, movies, academic journals, and numerous other types of files could be distributed through its services. Yet because their ultimate intent was still to profit off a service that infringed copyrights, they were held liable for the conduct of their users. In-house e-mails were offered up as evidence that showed the company clearly intended to ‘leverage Napster’s 50 million user base’ once the litigation destroyed the company. Advertisements were pretty blunt about this such as, “Napster Inc. has announced that it will soon begin charging you a fee…what will you do to get around it?” Grokster, unlike Napster, even went so far as to make a profit by selling advertising space on the programs. Non-infringing uses of the program did exist, such as various non-copyrighted works by Shakespeare being distributed, but these were far outweighed by infringing uses. There was no evidence of any attempt to comply with 17 U.S.C. § 1008‘s requirement that some form of copyright screening exist. Despite the testimony of bands claiming they supported their music reaching a wider audience, Grokster’s attempt to use the exceptions that allowed Sony to continue making VCR’s were not permitted. The court writes, “where an article is “good for nothing else” but infringement…there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe.”

Despite the litigation that created injunctions or simply shut down these programs, digital piracy only increased. One secondary legal authority that harshly criticized the ruling pointed out, “The creators/copyright holders/labels will only stay relevant if customers find them relevant -- and also pay for the product or service. The new twist on this long-recognized principle is that now customers want the product in a range of formats for use on various platforms. They want the content on their mobile telephones, on their iPods, on their desktops, on their laptops. The copyright holders are tied to their customers.”

The long and painful process of getting the music into these new formats while still making a profit became the subject of much innovation and legal wrangling. In order to effectively protect copyright holders from infringers, Congress created the DMCA or 17 U.S.C. § 1201. The law includes a variety of measures, the most significant in regards to copyright infringement is making it illegal to “circumvent a technological measure that effectively controls access to a work protected under this title.” This is broadly defined as any technical process a program or song must go through to function. I-Tunes, for example, uses a special encryption on its mp3’s so that only an I-pod or other licensed program can play the file. The law is problematic because, presuming a copyright owner were to become over-zealous in protecting their encryptions, they would have a de-facto monopoly on all expressions of their copyright. As the courts noted years ago in Sony, “The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the tradeoff. ”

Enforcement of the DMCA in criminal courts initially resembled the situation in Taxe, a narrow application of a law meant for a broad and grey-area subject. The leading example is United States v. Elcom Co., Ltd. Defendant created a program that undermined the DMCA protected copyright measures of Adobe’s eBook Reader. Normally an ebook can only be read on the computer onto which the ebook was downloaded, it cannot be transferred to a different computer. The court is put into the awkward position of admitting that using the program is technically ‘fair use’, it is your legal right to move a copyrighted work that you have paid for and handle it how you see fit. Yet the DMCA clearly defines the program as illegal. The court notes, “It cannot be seriously argued that any form of computer code may be regulated without reference to First Amendment doctrine. The path from idea to human language to source code to object code is a continuum.” In order to restrict someone’s First Amendment rights, there must be a compelling state interest that is done by the least restrictive means. Defendants then attempt to argue that Adobe is attempting to create a monopoly and infringe on the public good, but the argument ultimately falls apart. The books can still be accessed in shops and through other vendors. No new, limiting rights are being held by Adobe outside the protective measures for their work. Banning the sale of circumvention tools does not substantially burden First Amendment rights more than is necessary in this instance . Furthermore, once the copyright expires, all protectable interests are gone in the book just as it would be in a normal infringement dispute.

Modern Trends and Conclusions

Seven years later, the criminal prosecution of violators of the DMCA continues using Elcom as precedent. Yet as with Moran, the enthusiasm and interest has waned significantly. A prime example is United States v. Whitehead. Whitehead was convicted of selling over 1000 “access cards” that allowed individuals to pirate digital satellite service from DirecTV. This violated the DMCA by circumventing the protective measures imposed by DirecTV to keep pirates from stealing satellite time. This cost DirecTV roughly one million dollars in potential customers and netted Whitehead a profit of about $ 400,000. At sentencing, his offense level status was reduced from 24 to 20 after several motions to only impose a 33 month sentence. Felony copyright infringement carries a maximum sentence of five years in prison for a first offense if the infringement is for commercial advantage or financial gain, and three years in prison for willful reproduction and distribution. For second or subsequent offenses the maximum terms of imprisonment doubles to ten and six years respectively. Despite already receiving a slap on the wrist, Whitehead then complained of mitigating circumstances. Whitehead explained that he had a sick mother, was sorry for what he had done, and that he had just bought a puppy with his daughter. The sentence was then reduced to 5 years probation, 1000 hours of community service, and restitution of $ 50,000. As a very bitter dissent explains, “It looks as if the district courts can give a mere wrist-slap to those convicted of white collar crime; and then await a summary affirmation from our court. ”

Light sentences like this are the norm for criminal copyright infringement. The problem is that if the Federal Government is going to criminally prosecute violators of a law, it must be uniform in that approach. If someone stole the same amount of money as Whitehead did from a bank using wire fraud, he would not have gotten the same sentence. In the Cohen case mentioned earlier the defendant was sentenced to eighteen years despite the fact that an FBI agent literally told him he was violating the law and to stop before the arrest weeks later. A similar videotape copying operation of 78 VCRs received only twelve months. In what must be a historic first for the Federal Court system, you are better off in Criminal Court than Civil for a Copyright Infringement.

The problem with copyright law is that the way we distribute information is always changing. A company whose business model cannot or will not adapt to a massive technological innovation like the internet is always going to complain. In 1906 famous composer John Philip Sousa wrote a bitter editorial complaining that the gramophone would destroy the nation’s habit of singing in groups and enjoying individual works. It was also costing him a fortune as people copied his music onto records without any compensation to him. He writes, "Do they not realize that if the accredited composers who have come into vogue by reason of merit and labor are refused a just reward for their efforts a condition is almost sure to arise where all incentive to further creative work is lacking and compositions will no longer flow from their pens or where they will be compelled to refrain from publishing their compositions at all and control them in manuscript?" A century later, the prediction has fortunately not come true. Rather than ban the gramophone, the music industry adapted to allow musicians to recover a return from their recordings.

When testifying before Congress about the VCR’s effects on the film industry, Jack Valenti declared, “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." The film industry has since gone on to make billions by selling films on tape and DVD. The recording industries initial reaction to DAT recording devices was to ask Congress to ban them. Film and television executives regularly complain of DVR and the ominous ability to skip commercials. Jamie Kellner, CEO of Turner Broadcasting, argued that any time someone does not watch a commercial for a program on television, they are effectively stealing it. The copyright industry has an unfortunate habit of crying wolf anytime someone introduces a superior distribution method.

It is for good reason then that criminal courts are uncomfortable with enforcing copyright infringement laws. In the case of something like Taxe, where a person technically violated the law but innovated enough to qualify for ‘fair use’, handling the matter as a strict violation makes little sense. On the other hand, the erratic rulings in two similar video tape cases along with the light ruling in the Whitehead case illustrate that when criminal courts do try to apply the looser standards of civil courts, it is uncharacteristically lenient of the Federal Criminal System.

Businesses that employ fair use of copyrights such as Google in 2006 accounted for $4.5 trillion in revenues and $2.2 trillion in associated value or 1/6 of the U.S GDP. 17 million jobs, along with 1.2 trillion in pay checks, and 194 billion in exports are also brought by fair use business practices. People are making money and boosting the economy by using other people’s copyrights. On the other hand, the Motion Picture industry, calculating profits lost based on movies pirated instead of purchased that same year, reported losses at 6.1 billion. The math in all of these reports is fuzzy because there is no real way to tell if someone was going to buy the movie or not. One business model is dying, another is rising up.

While the civil litigation and criminal cases of past copyright disputes are helpful when dealing with copyright matters, the truth about the internet is that there is no precedent for this scale of a technological impact. The process of creating laws to manage this new technology efficiently while ensuring that copyright holders can make a living has always been the guiding principle of the copyright act. Justice Story was correct centuries ago when he phrased a copyright dispute as an “intricate and embarrassing question.” When you’re prosecuting someone for criminally violating a copyright infringement, you might be sending the person with the better business to jail for it.

ZA Critique: Crackdown

2009-12-01T07:26:00.000-08:00

Doubling up again, first is a review of Marvel Super Hero Squad. It's an alright game, a kind of Smash Brothers knock-off. I played Smash for a month and categorized it as a small dog conundrum. The small dog poops in your shoe. Does it do this because it is a brilliant animal that knows it is too tiny and cute to be beaten? Or is it just that stupid?

The fact that the Smash Brothers formula is really hard to copy makes me lean towards the former.

The other is a write-up on Crackdown. A commenter a few weeks ago joked that I relied too much on Far Cry 2 as my emergent gameplay poster child and I'm happy to announce I'm now going to generically reference Crackdown as the new example. It's technically a better example because it has no story and never makes you do anything. It's just one giant map, a long list of targets, and a lot of things that need upgrading.

I took out that Henry Jenkins essay that I used in the Super Metroid column, except applied the portions he wrote about male gaming instead of the other gender. I did a poor job explaining his ideas in that column and I tried to give it a better angle in this post. It's mostly a discourse on why a teenage male playing a super-violent game is totally normal and how that can be expanded to be more inclusive.

As simple and formulaic as it is, Crackdown really is the basic standard for what a sandbox game ought to offer.

Legal Changes in the Wake of England's 1348 Plague Outbreak

2009-11-30T17:00:00.000-08:00

This is a research paper I wrote for Legal History. It's long and I'm not really sure who'd be interested in it, but I'm not letting something that took this long to write rot on my laptop.

Medieval England in the 1340's was not really a cool place to be. If you were caught for a major offense like murder or robbery, they usually just killed you on the spot or locked you in a dungeon. Lawsuits from the period mostly involve property, contracts, or wages. The crazy notion that maybe two champions beating the shit out of each other was not the proper way to settle a lawsuit was only about a century old. Juries were a luxury, if you wanted one you had to pay extra. Major advances like evidence, witnesses, impartiality, or not being drunk while deciding a verdict would not be around for a while. Most of the population were serfs working estates, which was only a mild variation on the concept of slavery.

The overall theme of the paper is to chart how, after a major disaster hits this situation, a change in the legal system is attempted to return things back to normal and fails miserably. New laws are introduced, new types of lawsuits become popular, and the law courts became much more sophisticated rapidly. I'm of the school of thought that in order for a law to actually work, there has to be a need present to motivate people to respect it. The 1348 outbreak and subsequent laws represent a situation where the need is absent from a law. Strict enforcement of labor statutes or pricing regulation were mostly a good way to end up broke or if you really pissed off the local serfs, lynched. Passing a bunch of laws or engaging in lawsuits to preserve a way of life that is no longer feasible is not going to change anything. It's the ones who adapt that survive.

The paper stops short of claiming this, but I might as well just say it in the summary. I rely on an old 1970's history theory on macroparsitism to explain the government's function in all of this. If you want footnotes or sources, drop me an e-mail and I'll sling you the proper word file. Without further ado:

Legal Changes in the Wake of England's 1348 Plague Outbreak

The relationship between law and disease is historically an indirect one. Due to lack of understanding about how disease was transferred effective quarantine and sanitation regulations would not come about until relative modernity, meaning that infectious diseases were an inevitability instead of something that could be controlled. Laws in times of plague instead worked to effectively undermine the loss of life and productivity so that rulers could continue to control the populace. In other words, it is how one parasite tightens its control over a host population when threatened by another, smaller parasite.

Thinking of a system of government as a parasitic relationship is something that William H. McNeil proposes in his book Plagues and Peoples. This is not meant to be seen as a negative but rather demonstrate a method of living that is intrinsic to all living beings. We are all surviving off the work of another living being, be it vegetable or animal, much like a parasite does at a microscopic scale. McNeill explains that historically macroparasitism must have begun once large-scale agriculture was instituted. He writes, “A conqueror could seize food from those who produced it, and by consuming it himself become a parasite of a new sort on those who did the work.” In order for this relationship to last, an effective conqueror learned to take a surplus while leaving enough food for the agrarian group to survive. Like a parasite, a conqueror who kills its host is an inefficient one. Over time the relationship evolves as the conqueror seeks to increase the surplus by protecting the host from other forces. Over time both host and parasite develop into a balanced, stable relationship.

What a plague represents in this perspective is an invading force that cannot be controlled with armies and sheriffs. Yet like a parasite, an infectious disease also seeks to establish a balanced relationship with its host. Rural and lightly populated areas typically do not provide an appropriate environment for an infectious disease to thrive. In order to be successful it must transfer to new hosts on a constant basis as subjects either die from the disease or develop immunities. All major disease outbreaks are going to occur in a largely populated city. Two things happen as a consequence: people from rural areas must constantly move to metropolitan areas (while still providing taxable surplus) and the infectious disease is slowly bred over generations into a childhood sickness. That’s what allows a person to be immune to it in their adulthood. McNeill comments, “since children, especially small children, are comparatively easy to replace, infectious disease that affects only the young has a much lighter demographic impact on exposed communities” . This is how the balanced relationship with a disease develops over time, if someone has survived to full adulthood then they are immune and the resources invested in their development are not lost. McNeill suggests thinking of it like an energy balance, “Food extracted from peasants for the support of rulers, soldiers, and city folk, as well as goods consumed by microparasites within their own bodies, represents a net withdrawal of energy available to the food producers themselves. More going to one kind of parasite leaves less for others.”

Although a parasite has only its considerable biological means of dispersal and infiltration to deploy for controlling a host, human beings are endowed with a method for circumventing the evolutionary process through language. We don’t have to physically adapt, just adjust living habits. Wearing clothes and furs, for example, enabled humans to move into much colder climates than they normally would have been able to survive in. The practice of doing this spreads by cultural and tribal discussion instead of any major biological adjustment. Laws work in precisely the same manner. They are adaptations to circumstances that curb or introduce social habits to adapt to situations without actually having to biologically adapt. As a consequence, a law is both faster than traditional forms of evolution and also more prone to becoming inefficient once the immediate cause is absent.

Prime examples of legal codes modifying social behavior in response to disease usually occur when a new disease is introduced to a community unaccustomed to it. At the start of the Christian era, McNeill identifies four different disease pools based around geographical divisions : Europe, Asia, Africa, and India. These areas geographically overlapped enough that various cultures had shared their diseases but not yet encountered other pools. When one culture from a region came in contact with another, usually through invading armies such as the Mongols or merchant ships, the result was a disease infection that would ravage the immediate population. Rather than just the young dying, young and old, skilled craftsmen and laborer, all die. It usually takes about 120 years for a population to fully adapt and regulate a disease into only affecting young children . Examples of linguistic adaptations include religious and tribal practice that helped avoid infectious diseases. The Christian Bible and Jewish Torah recommend separating someone infected with leprosy apart from the village for forty days, a practice maintained by most major shipping ports such as Venice and Ragusa into the 1400’s. The caste system of India recommends thoroughly washing if touched by someone from the country and generally avoiding someone from outside one’s social group, doctrine that although destructive today was an effective method of preventing infection centuries ago. Nomad tribesmen from the steppe region of China maintained strict rules with the marmot population because they believed they were their ancestors. An animal moving in a sick manner was not to be touched and if a marmot colony showed widespread signs of disease then the entire tribe left the area because it was seen as a bad omen. Since many infectious diseases were spread by fleas living on rodents, this was an effective counter-measure to possible infection.

Legal adjustments to the plague outbreaks required modifying existing methods of legal control in order to ensure productivity kept up. Rome, for example, suffered numerous plagues throughout its history. Symptoms of a population that has sustained losses requiring the macroparasite adjust its legal and government policies can be seen in 235 and into the reign of Diocletian (285-305). Laws were introduced that prohibited cultivators from leaving the land and made labor occupations hereditary and obligatory. Barbarian tribes were allowed to move into recently emptied lands (due to plague) in exchange for military service to support a shortage of trained soldiers. In China an outbreak of the bubonic plague in several coastal provinces forced the Emperor to bring in Turkish Uighur mercenaries. When the plague came to Byzantium in 542, the Zoroastrian based society had to significantly modify its inheritance laws to ensure social stability. Women, throughout history, are more resistant to the plague than men. After continuous wars during the sixth century and a heavy plague outbreak, the Empire suddenly found itself with a severe shortage of adult males. Laws were passed that allowed upper-class Iranian women to manage family estates and represent the estate in court, give testimony, alienate her husband’s property, inherit a double-share from her husband and a half-share from her father, and sometimes even choose her next husband. Rulers had to insure that the land remained productive and with a stable line of owners during these periods.

Studying the legal effects of a disease on a population becomes difficult both because it is not always certain what disease was spreading at the time and the possibility of other variables driving the formation of the law. The relationship between the law and the disease also becomes steadily more fragmented as time goes by and the populace develops immunities. Nor are statistics always reliable, in England for example the only people capable of treating the sick without risk of infection were elderly women. A household diagnosed with plague meant quarantine and isolation, which could effectively destroy a family and since one minor group controlled all treatment bribery and faked statistics must be presumed . One also has to account for the fact that eventually the governing macroparasite will simply learn to adjust to the presence of the disease. England would have recurrent outbreaks of the Black Plague for centuries with the last major outbreak occurring in 1665 . The worst of these in terms of death toll would be in 1625 at 41,313 in London and several thousand more in rural areas. The true nature of the bacteria and how the disease was spread would not be realized until a group of Japanese doctors studied the disease in Hong Kong in 1894 . At that time the death rate for infected Europeans was already at 18.2%, meaning that by then most Europeans were immune. The second lowest was a 60% mortality rate for Japanese infected.

The first major plague outbreak occurred in England in 1348 and subsequent policies after that period will be the focus of this paper. This outbreak is not special in terms of total deaths but rather the total deaths of the macroparasitic governing class. By the time the 1600’s came about the governing classes may not have been able to cure the disease, but they knew how to avoid it. Eyewitness accounts of the plague in the 1600’s describe the upper-class boarding themselves up in their homes with enough food and water to survive or utilizing servants to purchase goods . The Black Death is a particularly nasty disease in that a perfectly healthy human adult can die of it within twenty-four hours of infection. Those that do not recover from the disease suffer extreme fever and swelling of the lymphatic glands for two to five days before death. Breathing in or eating the bacterium results in infection. Skin to skin contact does not. Thus, boarding yourself up in your home and eating cooked or preserved foods was an effective counter-measure that was widely used by those who could afford it. In the 1348 outbreak, such measures were still unknown. While a total third of the population died from the 1348 outbreak, this includes 40% of the clergy, 27% of the tenants-in-chief, and total litigation dropping to 60% of what it was pre-plague. In comparison, in the 1625 outbreak clergy death was at 3.5 to 4.5% due to effective education and counter-measures. So while subsequent plague outbreaks would prove to be more deadly for the poor and disenfranchised, the governing class learned to both survive personally and how to maintain their estates in such circumstances. It is the 1348 outbreak where the most legal change occurred which can be directly traced to the very real threat of disease to the governing macroparasite.

Need precedes law, which means that there is often a delay in legal developments before the full effects of a social shift are detected. Generally speaking the villein and manor system remained the same despite the plague for the first few years in terms of legal governance. What changed was the cost to run it. Due to a shrunken labor pool, rural workers demanded and lords had no choice but to pay increased wages. From the 1340’s to 1360’s wages increased on average from twenty to forty percent. Certain areas were more affected than others, Suffolk experienced a 67 percent increase in wages for reaping while Oxfordshire went from paying a plowman 2 shillings weekly to 10 shillings weekly in the space of a year . Despite the increased salary, the rural workers social situation changed very little due to inflation. Increased costs of production meant increased costs for manufacture, meaning everything cost more despite the better pay. English lords also suffered reduced profits from rent, milling, and oven rentals due to the now mobile working class. Serfs often moved to wherever the best wages were being paid, they no longer needed to pay rent on a regular basis to any one particular lord.

The current King in 1348 was Edward III, who had very recently won the Battle of Crecy to the French. England was also recovering from a brutal series of famines. With a third of both enemy and friend in the ruling class wiped out in the space of a year, Edward III was confronted with a massive drop in tax revenue and a manorial system that was rapidly devolving as Lords found themselves competing for a decreased labor pool. Robert C. Palmer writes in English Law in the Age of the Black Death, “England was already governed by a vigorous and determined king with a dedicated and efficient council tending toward increased centralization with power able to be exercised autocratically for periods. The reaction to the Black Death was to increase state power but emphasized delegation and cooperation among the upper orders.” Prior to 1348 Edward III had been engaged with several lawsuits involving rebellious bishops who refused to pay taxes. After the plague hit these cases were all dropped for paltry sums. In 1349 the King declared that common law disputes were to be handled by the Chancellor’s court while common law judges who were already handling these affairs were inducted into the Chancellor’s court. In order to ensure uniform enforcement, the Knights became the central authority figures at the local level. They were authorized to hear and determine felony and trespass cases and exercise state authority over tenants much more broadly than before. Pardons, a normally rarely used option in trials, became prevalent so long as the accused Lord or Knight agreed to military service or provided financial support to the crown. Political concessions had to be made amongst the upper-class macroparasite in order for a delegated centralized authority to return the host populace back to normal output.

Within a year of the plague’s full impact the first law was introduced to begin regulating labor. The Statute of Laborers is a large proclamation that details several adjustments to labor policy . The preamble to the law explains their motivation aptly, “Because a great part of the people, and especially workmen and servants, late died of pestilence, many seeing the necessity of masters, and a great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness, than by labour to get their living…” The law goes on to dictate that anyone under the age of sixty had to work. Giving alms to beggars who were physically able to work was outlawed. Lords who were not over-capacity had first claim to any laborer who had contracted to work for them. Craftsmen such as blacksmiths or butchers had to charge pre-plague rates for their goods. A subsequent law required all labor contracts to be gauged by the year instead of the day.

Yet as with all laws it is in the enforcement that the function can be seen. Despite the illegality of laborers abandoning their contracts, agents began to appear who would match labor-short lords with serfs willing to risk the fines that came with new employment. Several lawsuits prosecuting such agents can be identified in Suffolk, Norfolk, and Gloucestershire. Usually prevalent during the autumn harvest, laborers would be recruited to appear at labor short manors willing to pay the illegal rate just to get the grain harvested. J.A. Raftis points out in Peasant Economic Development within the English Manorial System that property leases show numerous variations in how many virgates (30 acres of land) various peasants and tenants were working, far more than what an individual could manage. People relied on outsourced labor fairly regularly if they had the cash. The Abbot of Saint Edmund’s, for example, kept his staff by illegally paying them in grain stipends and better wages while employing temporary laborers during the harvest to accommodate the extra demand . Being able to afford this arrangement would have been extremely difficult for a Lord that was not already fairly wealthy.

It was conceivable then for one employer to sue another for taking laborers away, yet there is no record of such litigation ever occurring. What there is instead are numerous records of employers suing laborers for abandoning their contracts prematurely. There would be an initial fine for missing work and this would be multiplied for each subsequent time someone failed to appear. Many peasants could afford to miss this because they were either managing property or working somewhere else for better pay. But as the fines increased, so did the lawsuits going after the missing laborers . Palmer cites a particular case where an employer waited eight years after a shepherd abandoned his post before suing, conceivably because the shepherd could not have afforded the fines until then .

Contractual enforcement was also much harsher after the plague as courts began to be willing to allow for damages and performance bonds. These legal concepts existed before the Black Death but they did not come into heavy use nor were courts inclined to uphold them due to their resemblance to usury. Originally contract enforcement required the document be written under seal, in the post-plague political climate courts were inclined to accept a contract without one. The purpose behind these harsher penalties and lawsuits was to ensure that labor remained consistent and the manorial system continued to produce crops.

As the economic method for how the macroparasitic class profited from land became unstable in the wake of the 1348 plague, the labor laws eventually gave way to new forms of controlling property. The laws boosting gross productivity artificially in the immediate term while enforcing a stagnant price resulted in mass deflation and over-abundant harvests . For many manors, it was more expensive to grow the crops and sell them than to just let the land lie. The 590.5 acres sown on average in Suffolk in the late 1330’s was reduced to 288.67 acres in the 1360’s, for example . Some manors relinquished direct control of their property in favor of renting it out to farmers. By the 1380’s, a Lord gained more money by renting than by managing the land themselves. The total number of renting tenants increased considerably during the last quarter of the century. By 1425 a Lord would simply sell to the peasant his right of lordship, a surrender to the peasant of outright possession of holding for a fixed cash rent and freedom from dues and services. The peasant paid rent and did the best they could with the land . Cash crops such as grapes, olives, apples, pears, vegetables, hops, hemp, flax, silk, and dye all began to be produced. One of the more popular alternatives was the less labor-intensive managing of livestock. Arable acreage declined by 32.3 percent while pasture acreage increased by 149 percent.
Tenants who could manage a variety of skills naturally made a greater profit than those who only farmed. Records highlight one farmer who performed as both beadle and reeve over 1378-79 for one and one-quarter virgate (30 acres of land). A farm would act as reeve and ploughman or perform labor services temporarily in addition to their original work. Landowner administration ceded more and more land for commutation. Again, all of these lands must have relied on temporary labor during the Autumn season for harvest despite only being operated by one farmer.

With all of these new innovative uses of land both in terms of agriculture and rental to tenants, the nature of Property laws had to adjust accordingly. While there is not any one specific law that drastically altered the property situation as with the Statute of Laborers, what is present are interesting shifts in the types of litigation and contracts coming into existence after the plague. Courts were both more open to variations from normal legal custom and previously underused legal methods became more prevalent. The process of renting land to tenants, for example, can be noted through a gradual increase in leases. Initially leases were granted for four to six years at fixed rates for sections of demesne and for vacant dependent holdings. Leases over time lengthened to ten, twenty, thirty years, or even a lifetime. Enforcement of tenant contracts, as with labor contracts, became detectably harsher. Palmer writes in English Law in the Age of the Black Death, “In traditional debt, there was a strong impetus toward reasonable damages, damages at a level that would not provide extraordinary compulsion to pay on time. That tendency toward reasonable damages characterized contract law prior to the Black Death; contract law after the Black Death was increasingly harsh.” The way this worked was a covenant became a prelude to a final concord, serving to enforce written agreements between tenants and landlords by ensuring conveyance of fees. Escrow arrangements were heavily used to avoid actual litigation on the covenant, the creditor would have direct claim to chattels if someone were to default on the lease. Enforcement of the contract thus only required the purchase of a writ from the Court of Chancery.

These legal alternatives had existed before the plague, what changed was how often and the extent of the penalties imposed on a person for defaulting the lease. Because juries were typically inclined to go light on someone who failed to pay rent, creditors and lords increasingly relied on contracting the penalty into the lease. Penal bonds and condition precedent contracts became popular by 1352. New writs were introduced to allow for additional claims and pleadings despite payment of initial obligation, land began to be valued by the interest it was protecting rather than the actual value. The problem became exacerbated enough that the Courts eventually began to limit debt collection from detinue arrangements. Thus despite the slow shift into allowing farmers and tenants to manage their own affairs, the harsh demands that the land remain productive to the owner of the land debatably became more difficult. Before the plague a rough harvest would not necessarily result in a serf becoming homeless.

Harsher consequences for defaulting on a lease meant that more leniency concerning occupation and ownership of the land had to be allowed. Joint-tenancies with non-family members began to appear in lease arrangements, conceivably to ensure the tenant met lease obligations, and these slowly evolved into social uses. 1359 to 1369 were the years that Chancery began to allow and uphold uses in land contracts . Palmer writes, “The use was thus a relationship in which the trustees held the enforceable legal title but solely for the benefit of another who had likewise an enforceable right against the trustees, the purpose of that arrangement exceeding merely the alteration of the grantor’s estate or the rapid granting of the land to a third party.” The general need for such an arrangement was to insure that if anything happened to the tenant someone could step in to manage debts and take care of the family. Life estates began to add an additional year on top of the tenant’s lifetime to make sure that debts could be collected and creditors could make arrangements to hold the land until they were repaid. This was necessary due to land traditionally always going back to the owner without the tenants obligations being met. Social uses were also used by husbands to cut their wives out of their land or rightful inheritance through deadhand conditions. Palmer explains, “Joint tenancies reduced that independence [for widows], exalting the husband’s and father’s authority in the family. Conveying lands to feoffees prior to marriage prevented dower right: the widow’s right would then depend solely on the father’s authority in the family.” The land continued to remain productive for the macroparasite through changing attitudes about what was legal and methods of enforcing contracts that allowed a defaulting tenant to still remain profitable for all parties involved.

Concepts of natural rights were also adjusted in response to the plague. Lord Bracton wrote in regards to legal opinion at the time, “By natural law itself, these things are common to all: running water, air, and the sea, and the shores of the sea, as the sea’s accessories. ” Yet laws regulating public waterways were always present in England. Someone who excessively diverted water from their normal course resulting flooding of highways or land was held accountable in the King’s Court. You could effectively obtain a writ from the King’s Court for: (1) the heightening of a pond; (2) the diversion of a water course; (3) the preventing of another from gaining lawful access to a spring, a lake, a well, a fish-pond; (4) the preventing of another from lawfully drawing water, or driving cattle to it; (5) and the opening of new veins of water in a place where only a single water source was granted. Water was promised either through deeds to a certain field or to a grantee terminable upon death. Complex partitioning and water agreements existed concerning the flow of a stream so that the current could be divided both by time and by measure and the parties would only use the water at certain hours of certain days. This was important both for irrigation but also a mill owner at one part of a stream disrupting the head of water for the mill owner downstream. This complex system of leasing water flow had to be abandoned in the wake of deaths and tenant leases that made such arrangements too complex. While possible when organized amongst a few lords, after the plague Edward III’s clerks formalized the process and controlled all water use through regulation and license.

All of these social changes and adjustments came about during the turbulent first few decades after the 1348 outbreak of the Black Plague. Yet simply because the macroparasitic government introduced and attempted to enforce these regulations does not necessarily mean that the host populace was necessarily fond of it. The manorial system began to fully decline after the 1348 outbreak thanks to commutation of duties and process of alienating demesne. J.A. Raftis explains:

“In the one case the lord found it to his advantage, or was compelled, to release his tenants from their customary obligations and exact money wherewith to hire free labourers to work his estate. The acceptance of rent in lieu of services dissolved the links between the servile tenants and the home farm, and commutation was thus the most powerful agency and conspicuous factor in the process of manorial disintegration. In the other case the lord initiated an entirely new departure. He gave up completely the system of direct exploitation of the land, and yielded the management of his demesne into other hands; he ceased to be a farmer and developed into a landlord, who leased his estate to tenants and lived on the income accruing from their rents.”

It is important to note that despite the upper-class reconciling itself and attempting to enforce its control over the populace there was hardly a uniform response. Lords and tenants had to be heavily regulated to ensure the crown was still getting its share as well. As Edward III began to grow old Lords began to grow more cagey and fraudulent in their collection of fees and taxes. Parliament was eventually forced to pass laws that regulated the conduct of the macroparasite itself in order to ensure that a sustainable relationship could be maintained. The law explains, “And it was decreed in this parliament that if any of the said lords was discovered to have received gifts, or to have been disloyal in the obedience he showed either to the king or to the community, he should forthwith be removed from the government and be held infamous for all time; he should pay the king five times what he had accepted, and his body should be at the mercy of the king.”

Overreliance on the legal system to regulate conditions of servitude eventually began to cause revolts in the populace. Trying to find ways to keep the populace producing funds for the government forced them to increasingly rely on heavy taxation. In 1377 a third poll tax was introduced that unevenly charged people depending on their economic background. The most famous, the Wat Tyler Rebellion in 1381, involved mobs destroying the property and lives of their overlords, government officials, and lawyers. Over 100,000 peasants marched on London and forced a fourteen year old Richard II to acquiesce to the abolishment of the entire villeinage and tenant system. There would be five more revolts by 1405. Penal bonds, excessive rents, and seizing chattels for debt default may have been viable legal methods for ensuring profitability for the macroparasite class, but they were also speedy ways for a Lord to get himself killed by his own tenants. Starting with the legal changes that came from the 1348 outbreak, one can trace the slow breakdown of feudalism as peasants slowly refused to cooperate with a system that deprived them so extensively of property for the slightest error. By the time Columbus sailed across the Atlantic, English serfdom essentially ceased to exist.

Subsequent laws and legal developments that were direct responses to plague outbreaks are not nearly as wide-ranging in their repercussions. A new Quarantine Act passed in 1721 ordered immediate death for anyone who left a quarantined zone and also for anyone who came in contact with the subject. Entire sections of a city could be quarantined in this manner, marked through trenches and lines placed in the roads. Such measures were mostly ineffective due to the lack of understanding about sanitation and bacteria during the time period. The massive drop in Black Death outbreaks can mostly be traced to a wood shortage following the Great Fire of London in 1666. Brick had to be used, which was more difficult for the disease carrying rat to make its home in, along with heavier consumption in meat products resulting in a new species of non-infectious rat becoming prevalent in London. As awareness of how to prevent diseases like cholera increased, sanitation laws would eventually become contested as English law mandated the installation of plumbing systems to insure that no stagnant bodies of water became infected. Given that someone protesting the violation of their natural rights could choose between having plumbing or dying of cholera, there was not much discussion on the issue.

In a time period where medical science had not yet figured out the source of the Black Death, governments had no choice but to maintain society by adjusting their laws to tighten control. The opportunities that a reduced labor pool created for serfs had to be mitigated if the ruling class was going to maintain its macroparasitic control over the populace. The problem with this approach was that for many rulers, expecting things to go back to the way they were before the plague was not possible. There was not just one body taxing the populace once the bubonic plague arrived, but two. Under such conditions it was only a matter of time before the populace reacted negatively to the government through revolt, something that played out in England’s history since the plague’s arrival. Thinking of disease as a drain on resource is, like any problem, not one that can necessarily be solved by law alone.

Tech Bubbles in World of Warcraft

2009-11-24T06:03:00.000-08:00

This is basically an extension of my Diablo 2 article. I personally steer clear of MMO games if I can, though I did play World of Warcraft for a free grace period. I have to work through too many games to ever engage in that massive of a time sink. I instead watch people play and chat them up about the game's intricacies.

As micro-transactions continue to flourish in games, I figured I might as well take a stab at trying to explain what could prompt someone to pay money for something that is not real. The psychology of how the value is perceived, how it depreciates in a person's head, and how you stabilize growth. It's all very much Brave New World in application, which is something I wrote a fairly dark spoof on back in my fiction days. In a society where you can buy anything so long as you work at it, providing new things to buy at just the right pace becomes an art.

I wish I could get better stats on all this. All of these companies are tight-fisted with their numbers and Second Life barely qualifies as a legitimate virtual economy because nothing depreciates in value in a traceable way. Soon enough I suppose. Until then,

A Brief Discourse on How You Suck Money Out of A Person Through Game Design

The Merits of Linear Narrative

2009-11-17T05:53:00.000-08:00

It's funny, studying law makes it so you have this weird, detached perspective when people are arguing about things. You're trained to always understand that there are two sides to every argument and to be highly suspicious of claims that come in absolutes. The brutal criminal, on the flip side, has a tragic childhood. The crooked middle-manager who ripped off thousands was under pressure from higher-ups to turn a profit. There is always an angle, just not always a good one.

A round table discussion over at EDGE caught my eye because although I've ragged on linear narratives, I don't think they got a proper defense in the discussion. Nor were emergent games really hammered on their weaknesses. I enjoyed Uncharted 2 as a highly polished duck & shoot, but I was still rolling my eyes at the same things I always do in these games. Nathan Drake complains about killing people in one cutscene, I then spend the rest of the game slaughtering dozens of faceless soldiers. Game design still speaks louder than content. That doesn't mean I didn't find it all entertaining over a couple of beers while passing the controller to a friend whenever one of us died.

I borrow from a fairly mechanical theory on how poetry works from a nice collection I'm reading lately and pan that out into how single player games really are still about choice. Just not that one particular brand. I don't really touch multiplayer because frankly, I'm beginning to think that's where this whole medium is really going.

It probably reaches too far and I don't cover the topic as thoroughly as I should, but I think it makes the basic points nicely.

EDGE article - The Warriors

2009-11-13T07:02:00.000-08:00

I was very lucky to be asked to contribute to an article for EDGE magazine on Rockstar's The Warriors. Like all Rockstar games, it's a very clever title that blends fun gameplay with a story that's reflective on what that conduct really amounts to.

The issue itself, December 2009, covers the growing woes of the Japanese gaming industry as they try to find a new angle on the industry. Previews are all well done, critical when they should be and hopeful at other times. The gloomy quotes from Capcom executives and people inside the industry remind you that everyone is hurting these days.

There's an excellent article on WiiWare games, which frankly for me are hard to keep track of, that highlights some of the better ones. A long article detailing the career of Jordan Weisman, who has been involved with stuff like Mechwarrior to ARG's. I'm also in the company of an amazing retrospective on the under-appreciated Zak McKracken and the Alien Mindbenders, detailing the production process and where the game's lead designer, David Fox, is today.

A column on the uses of actually creating an interactive person in a game by Randy Smith, creator of the superb Spider: The Secret of Bryce Manor and N'Gai Croal provides a great discussion on the implications of real world rockstars in our fantasy music games.

It is a real honor to be featured amongst such great work. You should check the issue out if you get a chance.

Rev-view-view-views

2009-11-11T10:05:00.000-08:00

Two reviews, both got pretty rough scores.

The first, Animal Kingdom: Wildlife Expedition is a massive exercise in not accommodating your design to the technical limitations of the platform. As a general rule of thumb, if the only way to play the game successfully (I'm not talking about dying and reloading) involves looking at a loading screen more than actual play, you have a problem. The title involved a lot of going in and out of zones to see if the right animal was in the right pose. This meant a lot of loading, looking about, then leaving, which meant more loading.

At some point it just hits critical mass and explodes.

Second one, A Witch's Tale was interesting because it might be one of the first truly bad JRPG's I've ever played. Generally games in this genre get a 7 or 6 out of me because by now most developers know what the game needs to produce. The plot doesn't need to be very clever since the design affords so much chatter and me watching cutscenes. Nothing particularly ludic is expected. Combat needs to be interesting and I suppose these days dying a lot is considered a good thing in JRPG's.

This game doesn't really do any of that. The plot is delivered by info-kiosks. Levels consist of walking around a giant map until you know what dungeon to start at. And combat...your character is so strong by level 10 that you literally spend most of the time trying to figure out how to make it be over faster.

It's a shame, it looked promising from the cover.

Diablo 2: Still Grinding After All These Years

2009-11-10T05:45:00.000-08:00

Been fidgeting with this one for a while, if only because I still fantasize that somehow, someway, I can write something that isn't going to have one kneejerk commenter on a linking site accuse me of wasting their time.

I'm still playing with different approaches to multiplayer games. The L4D piece tried to establish the different categories of players using a couple of different people's stories and ideas. The game is unique in that it's about getting all those different groups to get along. Diablo 2 doesn't quite work that way. In fact, you could argue it's the polar opposite. The difference between a casual player and someone playing for system gank is night and day. I decided to contrast my casual experience (I only play the game on Normal, but with different classes) with a more sophisticated group of players. Some kind folks over at Diii.net answered some questions in a forum for me.

A lot of the conversation revolved around how the game stayed interesting for these folks for ten years. There are a handful of games I will replay like Super Mario World or Audiosurf, but ten years is totally out of my range. Finding out how the game stayed appealing to them ended up being a solid approach because it got the discussion of how the game changed over the years and what made it appealing in the first place. Good people.

It's still a damn nightmare to write about a game that you know has millions of people with differing opinions.

A Little Help

2009-11-09T06:35:00.000-08:00

This is a bit unprofessional for a blog and if the title didn't tip you off, I'm about to ask anyone reading for a favor. Next semester I'm only taking three classes and I need to do more actual work in the legal field. Copyrights, licensing, trademarks and IP law in general is the area I'm interested in. The problem is that I don't really live in a good town for it. I did an externship with the R&D department of the largest science institute in my state but I lack the science background for them to justify hiring me. I'm also more interested in work going on through download portals and other internet services.

It's not a problem if the website or business can't pay me. So long as the business or person is willing to actually put me to work a reasonable amount (passing the BAR takes top priority) then I don't mind. I need work experience. Any work I could do would have to be over the internet, but checking contracts and fact-checking claims are all things I can easily do from here. I cannot perform unlicensed legal work but so long as there is a lawyer supervising or at least some kind of structured system in place it won't be a problem. If you know anyone and have even the slightest inclination to put in the good word, please drop me a line about who might be interested.

I know this is a bit awkward. I'm looking at a pile of rejection letters from what was already a small field in this city and have basically been cold e-mailing every online service and website I can think of. I figured I might as well put my personal blog to work as well. I don't have much time left in school and I really don't want to fall on my face when I graduate. Thank you for any help.

The Modern FPS

2009-11-03T05:53:00.001-08:00

Running around a bit, got to study for a state pre-exam that must be passed before I can take the BAR. Don't ever go to law school, they save the best parts of the scam for last.

I jabbered about a trend in the industry I was noticing for Brainy Gamer. Basically, 2 decent games whose only problem was being linear corridor shooters got panned by metacritic and some gamers used to more modern sentiments. A lot of this is visuals and controls, the two games I cite are Dementium and The Conduit, but it's curious because a lot of gamers enjoy old fashioned graphics and designs. Technically, both games are really impressive simply because of the amount of juice they get out of their systems. I mean, look at the trailer for Dementium 2, that's a DS making those images. At 60 frames per second.

The reason for this seemed to be something that Rob Zacny recently commented on about COD 4. People are just sorta tired of having their hands held and having to crawl through a unicursal maze in these games. Once you enjoy a game like Far Cry 2 or S.T.A.L.K.E.R., it's really hard to go back to some designer making you play through a level exactly how they want.

It seemed a bit misguided to expand this to games entirely, people still enjoy linear games and that includes me. I just thought it would be appropriate to start really pushing towards a distinction between one being old-fashioned and one being the new paradigm. Games like Uncharted 2, from what I've played, seem to be slowly melding the two by making puzzles and combat sequences with numerous options. I used a lot of Steve Gaynor's ideas to expand all that out.

Makes you wonder what a post-modern FPS would play like.

Our House Party!

2009-10-30T11:11:00.000-07:00

Been a long week and all signs indicate the next week is going to be worse, so I forgot this went up the other day.

The notion of a video game being a commercial is one of those things that you'd expect to see more of. Product placement in MGS4 or that creepy Burger King game aren't really the most effective examples because it's just a content job. I mean more on the scale of 1980's commercials where you watched GI Joe or The Smurfs and then the toy commercials broke things up. For a game, a product that you use heavily in the game would have a counter-part in reality that you could buy. Avatar clothing, cars, watches, etc.

That's mostly just me babbling though. Our House Party! is a Home Depot commercial that has you visit the store for stuff you don't really need in the game. While I'm not fond of someone selling me something while I play, it's hard to not notice they aren't really doing it right here.

It's otherwise a mediocre board game / mini-game collection.

Cybertext

2009-10-27T05:46:00.000-07:00

It's funny, it has been a winding road through all of these different books. I started with a book on engineering design principles, then moved on to the effects of those ideas in media via unit operations. A closer look at the nature of visual representations of those systems was followed by an exploration of how much those visuals need to hide about the system and what they should let us see. Then a comparison between two books about what effect, if any, these systems can have on a person. Next, a discourse on how the unit operations are the foundation and the rest is stacked on.

I have read a lot of f***ing books about video games this year.

It's interesting to me the surprising variety of interests that you find digging around this field. I pointed out a few posts back that video games are very handy for talking about metaphysics because you've got millions of people engaging with stuff that isn't real. Sitting and jabbering about how we don't really know what courage or virtue is can be a difficult dialog because most people are content with "I know it when I see it." Asking someone why they give a damn about their score in a video game though...now that will get them talking. It's equally surprising that the principles of engineering connect to all this because designing something that isn't real is arguably tougher than designing something that you can hold in your hand. And how do we represent all of this? What, precisely, is the best way to show someone leveling up? How do we design that so that it feels more real? Is the plot what gets people to connect or is it the design? Can it be both?

For all these damn books, I've got more questions now than when I started out.

Espen J. Aarseth's book Cybertext is an argument for finding a new method for discussing these systems that isn't confined to just the plot or just the design. Spinning terms like 'ergodics' and arguing that some kinds of books are literally explored instead of just read, it is stunning to read something like this knowing it was written over a decade ago. What did he have to work with? Text adventures? A few platformers? Much of it has aged, but most of it we're still arguing about even today.

You may as well check out one of the biggest milestones in this debate.