What Can Games Teach Us About Law?

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

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

The basic idea in Scott’s paper is that courts can serve to check the evidence of the governing authority while still fulfilling important obligations in the community. It’s a kind of PR, a government institution separate from the authority who handles disputes in the system. The institution does not have the power to make new rules, only legitimize or overturn existing ones. Scott’s vision of a system where, “courts become a source of communicating ideas and experience, without being the source of their creation, and without being specifically prescriptive in relation to any particular form” may find its most useful application in virtual space rather than reality.

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

Application of this will vary from game to game. You probably do not want the judiciary to have any authority 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-game strategy, is more ideal because it’s allowed by the Coding Authority. It just has the unintended consequence of disrupting the entire game for players. Rather than have the designers fret over financial impacts or disrupting the economy, you just have a hearing where people make their case. Evidence is drawn from the servers and personal accounts. The dispute gets resolved quickly, transparently, and with player involvement occurring throughout.

It’s important to remember that in many cases transparency just means communicating your reasons for acting clearly. Most concerns about the language of a judiciary becoming unwieldly aren’t really necessary. As Peter M. Tiersma notes in his book Parchment, Paper, Pixels, the reason the modern legal system is so wordy and difficult to understand is because the language 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 multiple interpretations of a contract, bill, or law you have to phrase it a manner that’s very alien to most people.

That’s especially true today where the internet has enabled rapid communication. People write like they talk now and it’s understood in the same manner. Unless the judicial system wanted to impose some kind of common law model, precision in the writing to that degree would be unnecessary. You just ask the judge for clarification. You can already see an example of this practice with Xbox Live’s Why Was I Banned? forums. Having a clear explanation from another person helps give authority and clarity to the rules of the Xbox Live service. The average person should be able to understand everything going on but having a model for dealing with people always helps.

The same goes for pleading a complaint: if they can form 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 even years of study to understand. It got this way because the bigger the population, the more rules you need to protect all those competing interests. An MMO is not ever going to become large enough that the average player does not already know everything they need to when crafting a complaint.

Diversity in judicial opinion, both between judges and their views vs the Coding Authority, should also not be taken as a huge problem. Uniformity must occur in the results of rules, but not necessarily in the way those results are reached. A textualist approach, where the Judge reads everything literally, may have various uses and appeals depending on the game. Alternatively a Judge who discusses the issue with 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 result satisfactory to all. As Lawrence B. Solum explains, “Good judges are clever in using the resources within existing law to solve the legal problems that come before them. The very best judges are experts at avoiding originality. And the very worst judges may be the most original. Very bad judges may use the cases that come before them as the vehicles for changing the law, transforming the rules laid down into the rules that the judges prefer.”

At the end of the day, the existence of a judicial system would ultimately be derived from the Coding Authority, who is in turn controlled by the Developer, Publisher, and their shareholders. While mounting arbitration costs and threats from the outside world are a good reason for creating a means of resolving disputes in-game, perhaps the best reason of all is simply advertising. In his guide to building a successful MMO Raph Koster explains that the key is ownership of something in the game. Whether it’s buildings, characters, or a job the player needs to, “feel a sense of responsibility to something that cannot be removed from the game.”

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

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

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

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

MMO Judiciary - The Balance of Power

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

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

There are limitations to this model. Video game code is a unique kind of rule system because it has enforcement automatically built into it. I can’t jump over that cliff because an invisible wall exists that stops all progress. Even if I got past it, the game does not support the existence of the space and will probably crash. There’s no concern about police, tickets, courts, or all the other mechanisms that come with enforcing a rule. Nor can people just break the rule or ignore it. While this is handy in terms of costs, the problem is that costs are an essential form of feedback in a rule system. The more a rule costs to enforce, the more likely it isn’t favored by the population. People cannot express their discontent by breaking the rules in an MMO, their only option is to complain or quit the game.

In an ideal MMO, a judicial system would represent the bridge between these two forces. The players are given a way to express their grievances with the absolute power of the Coding Authority that makes them feel empowered. The power of the Coding Authority is not superseded or changed, but their relationship with their players becomes a more hospitable one. It is not the court’s job, when a dispute comes before them, to invent a new rule saying how it should be resolved. It’s the court’s job to say how the pre-existing rule should be enforced. The greatest virtue of this branch is their ability to explain the decisions of the Coding Authority. Andras Jakab explains in his paper Concept and Function of Principles the criteria for a legal system as, “(1) the greatest number of legal phenomena can be explained (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 the Coding Authority to fix, in our model the Judicial system would not have the authority to change it. How the court system empowers the user is giving them the ability to complain about an imbalance and have it declared as one. A duplication bug is brought to someone’s attention because of a complaint. A ruling is issued explaining why the bug is unfair and why a person has had their account wiped. The action was introduced by a user, the results were made public, and the logic was clearly explained with references to social rules and the Coding Authority. Actual enforcement powers would not really go beyond what a GM already possesses. Nor is this any different than the Dev Blogs many games already operate or Xbox Live’s user forums. What’s different is the transparency of the action and the empowerment this provides for players by giving them an official forum to act in.

Making a model like this successful means delegating priority to various complaints from the players. You would want to avoid lumping everything together: personal feuds, bugs, balance problems, property disputes, not everything can be resolved effectively under the general ticket system with a GM. Nor does having a single individual resolve them on the fly always cause social discontent. A GM pulling me out of a wall I glitched into is not really on the same level as a player claiming a character is using a bug to mass duplicate gold. The key to a sound judicial system is recognizing the problems that users are concerned about and giving their resolution as much transparency as possible. The day to day issues that need to be resolved speedily can be explained with rules of conduct and quick references. More complex issues can be separated on the basis that they will affect the entire game or some other criteria.

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

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

A prime example of an MMO that features popularly elected Judges is Nexus TK. Note that page highlights their activity levels and rank in the game, you can already see unspoken criteria for what constitutes a good judge in public information. The game features extensive self-governance. A post on gamedev.net by a disgruntled player highlights the issues that formed. Top tier players formed cliques that controlled everything in the game. Developer appointed players had extensive powers to silence or blacklist people who spoke out against them. Actual trials simulated the actual real world process: a player could accuse someone of stealing and all you needed was two witnesses to get a conviction. This exacerbated the control of one clique in the game. This, in turn, drove away players.

The point of these two examples is that players are inevitably influenced by their relationship with the game in ways that does not make them the best choice for being a judge. The impulse to operate like an elected official influencing Coding decisions, as in EVE Online, can lead to challenges to the Coding Authority which they might not be able to resolve peacefully. On the other hand Judges are susceptible to corruption and influence just like anyone else. Like most GMs today, a member of the judicial system would be someone disconnected 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 the authority and how one may go about delegating communication with that authority in a way that leads to what players perceive as fair resolutions. Such a broad goal has to be approached by remembering that fairness itself is a social value, it changes from group to group. Saying someone has a keen sense of fairness does not necessarily make them a good judge, just that they do what’s popular. In an essay on judge selection Lawrence B. Solum comments that people often mistake impartiality with meaning a person does not care or understand a person’s complaint. He writes, “the impartial judge is not indifferent to the parties that come before her. Rather, the virtue of impartiality requires even-handed sympathy for all the parties to a dispute.”

It is impartiality that the judicial system must offer if people are to rely on it for resolving their grievances. A fair chance for both the player to be heard and the Coding Authority to present its side of the dilemma. Whether or not it achieves this objective comes from the perceptions of the players.


Link to Part 3

MMO Judiciary - Why Even Create One?

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

Let’s start with why our current legal system should be kept out. For most MMOs you don’t have any property rights and until recently you could not even sell the items legitimately for money. The game needs this because anytime the designers need to nerf an item or character it will lose value on the market. This could very easily cost thousands of people money. Considering they’re already unhappy because their in-game prowess is reduced 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 make them possible is by keeping ownership of the items strictly in-game. The developer can’t be concerned with legal liability if it’s going to maintain the game.

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

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

Someone falls for it, gets stripped of their possessions and wants their cash value back. First, if the person lives in another state or country you have massive jurisdiction problems for even bringing the lawsuit. A person outside your own nation does not have to obey your laws or care about a claim brought against them. Second, if you don’t have any property rights to the item then you don’t have any grounds for suing them anyways. Even if the EULA or ToS contains some clause about theft it won’t help you get your money. The contract 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 by the contract anyways.

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

While the solution may be effective, it obviously has a couple of problems even if it keeps working. Presuming that the addition of real world auctions increases litigation, defending the EULA will cut into the game’s profits. The EULA isn’t going to protect player versus player property disputes. Furthermore, EULAs are increasingly viewed negatively by consumers as companies use them to change their contract terms, fostering distrust and negative perceptions.

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

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

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

GMs, on the other hand, can be inconsistent. A forum thread on GMs in World of Warcraft at MMO-Champions gives a pretty common example of how this gets expressed. One player thinks the community rule about no swearing should be more heavily enforced, so they constantly report these players to GMs. Others don’t see it as a big deal while several others didn’t even know it was against the rules since the game self-censors. A thread on rpg.net points out that GMs must deal with everything from code issues, gold farmers to social conflicts and harassment. Results vary depending on the GM’s background even though they are all lumped together. Another thread allakhazam complains that they feel increasingly like a subscriber rather than a customer. There are so many complaints that GMs can’t attend to them all and the issues go unresolved.

Greg Lastowka in his book Virtual Justice points out that the biggest problem with GMs is their inconsistency. You can just hassle a different one until you get the result you want by filing complaints over and over. 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 take arbitrary decisions lightly. As Lastowka explains, “When virtual worlds empower users with a wide range of creative freedom and encourage them to take economic ownership in their productions, those worlds are more likely to attract lawsuits from all directions. Large scale financial stakes and uncertain rules are a dangerous mixture.”

So the reason one should at 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 courts may be tempted to do it for you. Two, a fair and transparent judicial system could make your players happier and improve their overall experience. The knee-jerk response that lawyers, property rights, and all of the costs and expenses associated with these things is neither an inevitability nor really necessary. As John William Nelson points out in his essay The Virtual Property Problem, “Virtual property is a solution looking for a problem.” Perhaps we should keep it that way.

Link to Part 2

Gamification and Law - 5

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

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

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.