Playing at Video Game Analyst

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

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

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

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

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

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

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

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

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

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

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

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.