2009.12.07
[ Reposted from EFA ]
This weekend I attended and spoke at a rally organised by Ethan Watson in favour of the introduction of an R18+ rating for computer games. Many thanks to Ethan for organising the event, and thanks to the 50 or so people who turned up to show their support.
Photos courtesy of Andrew Wade.
You can view video of the event filmed by Julian on youtube: Part One; Part Two; Part Three; Part Four.
The next step in this campaign is to pressure the Commonwealth Minister for Home Affairs, Brendan O’Connor, to release the discussion paper. If you have not already, please take the time to send a letter showing your support. Once this is done, we will work on putting together a submission that addresses the concerns of Australian gamers.
The two main points that I wanted to get across on Saturday are relatively simple, but important. We need to refocus this debate by ensuring that everyone understands that interactive entertainment is an evolving and important legitimate expressive medium. I think an R18+ rating is important for two main reasons:
- An R18+ rating empowers adults and parents to make better decisions about the games they want to play and the games they want to allow their children to play.
- An R18+ rating for games, consistent with ratings for films, would enable Australians to create more complex and expressive stories that deal with adult themes – games are not just for children, and we do significant harm to freedom of expression by limiting the material that we deem acceptable in games to that which we find acceptable for children.
See our campaign page on our wiki for more details about how you can help.
2009.11.15
My friend Dan at Ausgamers has a great review of Call of Duty: Modern Warfare 2. Lots of interesting information, but what strikes me is the way that Infinity Ward / Activision have worked to seize a lot of control over PC gaming – a trend we may be seeing more. Dan says:
Lastly, no dedicated servers for Modern Warfare 2 also means no more modding so we're not likely to see anything like pro mod – leaving tournament play to rely only on the features provided by IW out of the box. It's not like it was a trivial matter for Infinity Ward, they've had to create the IWNET system specifically for this purpose. As for why? The official word is that it's too hard for new players to figure out how to join a server from an in-game browser list. Nothing to do with the fact that the only way for players to get new maps and content now is to pay for downloadable content, right? It's not like it's even going to do much to stop cheating – instead of Punkbuster, MW2 now uses Valve Anti-Cheat, but without dedicated servers there's no localised moderation so the community has no ability to police itself.
No matter where you purchase the game from, you'll still need to activate with Steam and once you do that, the game is tied to your Steam account just as if you had bought it from Steam in the first place. Now I'm not sure of the technicalities on that, but I presume this effectively knocks out the secondhand market for the game. Who is going to want to buy a disc that is linked to someone elses Steam account? For no good reason they've also removed the drop-down console for PC users that like to type in their in-game commands. The game is in complete lock-down, the ultimate consolification.
This 'consolification' is another example of what Zittrain calls a loss of generativity (see his article in (2006) 119 Harvard Law Review 1974 or his great book, The Future of the Internet and How to Stop It (ars review) (full text for both available).)
This trend, as Zittrain explains, is pretty unfortunate, for a whole host of reasons. I'm interested in another point, however – Dan talks about the loss of a sense of community that is harder to maintain with this locked down model. The dedicated servers for games allowed innovation, in that people could create mods and new maps to their tastes – obviously, this gave us Counter Strike and a bunch of tournament mods, to name just a very tiny fraction – but it also allowed communities to grow around those servers, something which seems to be lacking in the console model. It's harder to form lasting relationships in the random pick-up console multiplayer games (although when you find someone who isn't a jerk, you can add them to your friends list and seek them out later). Dan makes this point really well:
Another big issue for me personally is what it does to the sense of the game's community. I admit I'm probably biased on this point since my employment with AusGamers was a direct result of years of gaming with the guys that pay my salary – people I may never have met had it not been for those late nights on PowerUp Quake and Quake 2 CTF dedicated servers. With dedicated servers, it's a trivial task to do a quick check and see who's playing and jump in the same game as them. You get to know people that frequent the same servers and rivalries, friendships and communities form. With the peer to peer model, it's still easy enough to play with friends already on your list but everyone else is just a random seed. Sure, this is how console platforms have done things for a long time and they're used to it (arguably because they know no better), but for PC stalwarts it's really not good enough.
I think that this loss of community is a bit saddening. If it is a trend, I hope that gamers are able to realise the importance of community before it gradually becomes phased out.
2009.03.25
My most recent article has now been published. Unfortunately, MIA's policy is set to change to allow online access as of the next issue. For now, here's the post-print:
Nicolas Suzor, "On the (partially-)inalienable rights of participants in virtual communities" (2009) 130 Media International Australia.
Abstract:
As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights, and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression.
Because our legal system views the proprietor's interests as absolute private property rights, however, participants who are arbitrarily, capriciously, or maliciously ejected have little recourse under law. This paper argues that rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between 'public' and 'private' spaces and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants whilst simultaneously protecting the interests of developers.
Many thanks to Sal Humphreys for putting together this special edition of MIA. I highly recommend the other articles in this issue.
Categories : Uncategorized
2008.11.14
[ Reposted from http://r18games.com ]
The Escapist has a good story on a recent Stateline story on "the power play over video games".
MICHAEL ATKINSON: I'm sure most people can distinguish the fantasy of a computer game from the reality. But it is the small number we know can't that leads to mass-murder in American high schools and in Thailand, last year led to a gamer playing out the fantasy of hijacking a taxi-cab and murdering the driver. It happened.
[…]
MICHAEL ATKINSON: I think the Western industrialised countries that allow R 18 plus computer games and the extreme violence that goes with them are just so many […] swine going over the cliff and I'm pleased that Australia has a principled, sensible stand against this extreme violence. I'm happy for Australia to stand alone and international gamers can laugh at us all they like.
[…]
MICHAEL ATKINSON: Some gamers have suggested I should be eliminated as an attorney general whatever that means but were I eliminated I'm sure there's other Australian attorneys general who would step forward and veto R 18 plus computer games.
You can watch the story on YouTube: No R18+ Gaming Classification in Australia
Categories : Uncategorized
2008.11.07
[ Reposted from http://r18games.com/. ]
Jason Hill at The Age Blogs is reporting that the Standing Committee of Attorneys-General (SCAG), at a meeting in Brisbane yesterday, agreed to release the discussion paper about the proposed introduction of an R18+ category for games in Australia.
This is good news. Australian gamers will finally be able to have a say as to whether or not they should be allowed to play content pitched higher than that which is appropriate for a 15-year-old.
EFA will be lodging a submission to SCAG once the discussion paper is released. This time, however, I'm keen to try something different. I'd like to hear from all interested gamers, and I'd like your help in drafting the submission. I want to create an excellent collaborative submission which covers all the issues, including all the latest research. I believe that together, we can all pitch in to create a definitive submission representative of those that this really effects: gamers.
If this is something you think you'd be keen to help with, please comment below or drop me a line at nic@efa.org.au. We have some time up our sleeve, but it won't hurt to get started early.
Categories : Uncategorized
2008.10.30
A recent report indicates that the South Australian Attorney-General, The Hon Michael Atkinson MP, has dug in his heels and refused to make the discussion paper on Australia's lack of an R18+ rating for games public.
A spokesperson for the Victorian Attorney-General, Rob Hulls, has said that “it now appears unlikely that there will be unanimity from all jurisdictions to proceed further at this stage with introducing an R18+ category for computer games.”
The article notes that “Mr Atkinson has opposed the introduction of an R18+ rating for games for many years, telling parliament earlier this year that he knew it denied Australian adults choice but was necessary to help restrict children's access to 'potentially harmful material'”.
The article also notes Mr Atkinson's reliance on the unfounded assumption that “Games may pose a far greater problem than other media – particularly films – because their interactive nature could exacerbate their impact”. Atkinson continued, saying that “The risk of interactivity on players of computer games with highly violent content is increased aggressive behaviour.”
I have now launched EFA's campaign to introduce an R18+ rating for games in Australia.
We call on each of you to let your Attorney-General know that we do not think that the fate of Australia's classification scheme should be determined by one state politician's unfounded beliefs. The public debate on this issue has now been cut short, without sufficient reason. It is now time to call upon the Standing Committee of Attorneys-General to make the discussion paper public, and see what Australians really think about an R18+ rating for games.
Categories : Uncategorized
2008.07.24
Categories : Uncategorized
2008.03.15
I am in the process of selecting a theoretical model on which to base my normative analysis. Below, I explain my preliminary attraction to Radin's construction of partial inalienability and the pragmatic method of resolving tensions between conflicting interests. As always, comments are greatly appreciated.
Thesis: in choosing whether to apply any law in a virtual context, we ought sometimes to put aside a general law rule in favour of internal norms.
The project of this research is to provide a mechanism to assist in identifying conflicting and hidden interests in virtual communities, and to develop a framework for reconciling those interests in law. The first goal is to be achieved through a critical examination of the expectations of actors in virtual communities – the participants, the platform provider, the broader public, and the state. The second goal, building a normative framework, will depend upon a solid pragmatic reconstruction of the conflicting interests.
There is no simple mechanical way for states to make a decision about which interests should prevail in any particular circumstance. These decisions are always political decisions. The aim of this model, then, is to provide a framework to make these decisions in full awareness of their consequences. The normative basis that will be used for preferring one interest over any other will be the overriding presumption that we ought to choose the path which most promotes “our best current understanding of the concept of human flourishing.”1)
After we have identified the internal norms of a virtual community, the biggest question is whether to uphold those norms which conflict with general law principles. In determining this question, we must consider which of these principles are modifiable and which are not – which basic entitlements are alienable and which entitlements may not be transferred. This analysis, however, leads us to a false dichotomy – it is more appropriate to consider these principles along a spectrum of alienability, where some entitlements may be given away or sold in certain circumstances but not others. Margaret Jane Radin's theory of partial market-inalienability provides a model of this spectrum, and provides some justifications for preferring a degree of alienability or inalienability based upon the interests of personhood.
A market-based analysis is appropriate because it addresses the concerns which are now emerging with large-scale virtual communities that are created as commercial ventures but which enable many aspects of personal life – including, but not limited to, personal relationships, personal identification, personal property, speech and communication. A key concern in these cases is what impact the commodification of these interests has on the personhood of the participants. A framework of partial inalienability provides the means for evaluating these tensions and partially protecting some personality interests from commodification, while recognising that the market is currently best positioned to provide the virtual communities upon which those personality interests depend.
The spectrum of market-alienability ranges from complete market-inalienability to complete commodification. Some examples of market-inalienable interests include freedom, body parts, and children – one is not allowed to sell any of these in any circumstances, although they are not strictly inalienable in that they can each be given away. On the other hand, goods which are wholly commodified are, in the eyes of the law, completely substitutable for one another and for their monetary value. In between these two extremes, we place limits on the alienation of interests which are only partly inalienable. For instance, labour is only partially commodified, as we place limits on the minimum wage and the ability of employers to terminate employment contracts.2) In another sense, we place limits on the mechanics of transfers – imposing, for example, a requirement that transfers of real property be in writing.
In addition, there are interests which are fully inalienable – for example, the law will not uphold a person's right to consent to grievous bodily harm or murder, whether for a fee or not (although, in the context of euthanasia, this becomes a partial inalienability, where we can envisage scenarios where it may be permitted to consent to what would otherwise be an unlawful killing).
The crucial insight, for our purposes, is that a spectrum of alienability allows us to place limits on the manner in which certain entitlements may be given away or sold which are appropriate to the circumstances. We have certain limits built in to the law as it currently stands – conceptions of consent, consideration, acquiescence, waiver, reasonableness – which act to restrain the alienation of entitlements. A model with a spectrum of inalienability allows us to know when these limiting concepts should be interpreted strictly, and when we should deal with them more summarily. For example, this means that when we are considering whether a participant has consented to potential harassment or assault, we may hold a much higher standard of consent than when we are considering whether a person has consented to the 'theft' of a piece of virtual property within the rules of a game. This model shows that more value we place on the importance of insulating the interest from commodification, the greater the limits we can justifiably place upon the alienation of that interest. In accordance with this model, the riskier we determine a transfer is, the more caution we should exercise before finding that the transfer has, in fact, occurred.
The model also provides a scheme for identifying where the protections given by existing law do not suffice. Various concepts of consent can be used to provide adequate limits in many civil matters – disputes centred in contract, tort, and many statutory entitlements can be resolved by determining whether the interest has been transferred according to the norms of the virtual community. Greater difficulty arises where we determine that a certain interest should be protected, to some extent, from commodification, but there is no direct mechanism in the existing law to effect that protection. For example, we may agree on the partial inalienability of interests of free speech or due process, but while these rights may be protected to some extent against the state, they are not inalienable against private actors. If we determine that our conception of human flourishing requires some recognition of constitutional rights against private actors, the model we develop can be used to identify where these interests are not sufficiently protected from commodification. Once identified, a gap between our conception of inalienability and the protection we afford the interest will justify a change in the law.
This model does not aim provide a comprehensive empirical framework; the evaluation of the degree to which any given interest should be protected from commodification is not one which can be arrived at in isolation from a broader social discourse. Rather, the goal of this project is to provide the tools to enable this social discourse. The resolution of conflicting interests must be a continuing process, a pragmatic evaluation of what is possible and what is the best method to proceed given the current state of society. By exposing hidden interests and proposing a method of resolution which is dependent on our social goals, this project aims to provide a conceptualisation of how we can progress, rather than an imperative on how we must.
Categories : Uncategorized
2008.03.15
Calabresi and Melamed proposed a three-way taxonomy of entitlements – inalienable entitlements, which cannot be traded between willing sellers and willing purchasers; property rules, which are enforceable by injunction to prevent non-consensual takings; and liability rules, where objectively measured damages are the only remedy, leaving open the possibility and expectation that the benefit will be taken non-consensually by a person who values it more than the objective measure.
So, does any of this help us frame disputes about entitlements in virtual worlds?
Image by cobalt123, CC NC-BY-SA
Imagine we have to determine what we should do about virtual property. Calabresi and Melamed tell us that there are five ways we can allocate the entitlement. Leaving aside an outright prohibition on the transfer of virtual property, we could grant a property right to the publisher, which would mean that the participant only acquires any interest in virtual property through a negotiated agreement with the publisher – i.e., the ToS. This is certainly how publishers currently see themselves (or would like to be seen). While it may be appropriate for Bartle-World, this model ceases to be appropriate where the interests of the player base are not so homogenous and the actions of the publisher give rise to expectations of legitimate participant interests in virtual property (see Bragg v Linden).
Alternatively, we could grant a property entitlement to the participant, which would prevent publishers from confiscating or devaluing virtual property. This is unlikely to be a workable system, because the publisher will not be able to make any changes to the platform without obtaining consent from each and every participant – although consent could be given in the EULA, which, assuming low transaction costs, would give us much the same situation as that above – in either scenario, participants or platform owners would pay for the rights to deal with the property as they want to. The problem here really becomes one of achieving this bargain with the entire population in advance, and then not being able to modify the bargain without the consent of all involved – a process which is vulnerable to large negotiation costs and strategic behaviour.
The third method would be to grant a liability entitlement to virtual property to the participant. The participant would be entitled to deal with their property as they see fit, but the publisher would be able to make changes to the platform as required, provided they compensate the participants for their loss. For example, this seems like a workable solution to the problem of 'property' and 'currency' in Second Life – where participants certainly feel that they are entitled to the value of the money they convert to Linden Dollars, and the items they then buy, but Linden Labs needs the ability to modify its rules (eg banning casinos) or enforce its rules (eg Bragg). In this situation, such a change to the value of a participant's virtual holdings may be compensable but not prohibited.
Alternatively, we could grant an entitlement to virtual property to the publisher, but support this only with a liability rule. This would mean, for example, that the publisher would not be able to prevent RMT – the participant could deal with the property he or she possesses at will, but would be under an obligation to compensate the publisher at an objectively determined rate. Would this be an attractive solution? In an appropriate situation it may be desirable to allow a participant to commodify their virtual property, to sell it on the open market, and then compensate the publisher for its loss. This approach prevents the platform owner from unilaterally prohibiting RMT, but also prevents the participant from appropriating the whole value of the virtual property by transferring it and retaining the proceeds. This may be useful in recognising that the value of virtual property is not created or determined by either party alone. In this scenario, the obligation to pay a share of the value to the platform owner without being prevented from dealing with the property may be attractive enough to all parties.
Are these models helpful? I think they provide an interesting framework for examining the allocation of entitlements and the protection those entitlements are given. In reality, the entitlements above need to be much more atomic, and the models much more complicated and mixed than the brief blurb I have provided. For example, in any one platform, the right to sell virtual property to a third party for real world cash may be a liability rule which belongs to the platform owner, the right not to have one's account terminated and virtual property confiscated may be a property entitlement of the participant, and the right not to have one's property interfered with by rule or design changes may be a liability entitlement of the participant. Our choice as to whom entitlements are initially allocated and how those entitlements will be protected still depends on our policy goals.
Categories : Uncategorized
2008.02.06
Image: Jefferson Memorial by kjd (CC BY-NC-ND).
While the discussion of liability rules and property rules (below) may be adequate for fungible interests, it may not be appropriate in cases of interests which more closely touch the personality of the participant. For these latter interests, inalienability, or partial inalienability may be the best method for protecting the personhood of the participant.
In a 1987 article (Radin, Market Inalienability (1987) 100 Harv. L. Rev. 1849), Margaret Jane Radin suggested that there are three main arguments to justify market-inalienability based on personality interests. Lets take the example of the term in the contract which states that a participant can be removed at any time for any or no reason, and consider the arguments for inalienability of the corresponding entitlement not to be removed from a virtual environment without due process. The analogous real-world right, as against the government, is (increasingly, somewhat) inalienable. Against private actors, it is a property entitlement held by the owner of the land. Absent strong arguments to the contrary, the presumption in a virtual environment will be that participants remain in the environment by the consent of the owners of the environment which, while subject to agreement, is revocable.
The first ground canvassed by Radin is a prophylactic argument – where the risk of harm to personhood of giving up the interest is so great that we are willing to constrain the choices available to those who would willingly give it up. In this case, we would be saying that we are willing to presume that all instances where a person gives up the right to due process to be coerced (see Radin at 1909 using slavery as an example). I am reminded here of Bartle's warning that there are any number of reasons that a person may wish to play a game with entirely arbitrary rules. The assumption that all such agreements are coerced simply cannot stand, and the question of consent must accordingly be reduced to a question of fact. However, if we remove the Bartle-world case, we begin to get an idea of the risk faced by participants – this is not simply an issue of losing access to a gaming platform, but of being cut off from one's social network, of having one's property forcibly removed, and of losing touch with the avatar – in the most extreme cases, of being forcibly alienated from a part of oneself. The danger posed can be evaluated quite strongly, and, particularly as the purported agreement is made before access is granted and before any attachment has formed, it may be fair to say that in all but the borderline Bartle-world cases, we are prepared to presume that the decision was coerced or otherwise not freely made.
A second justification given by Radin is that of prohibiting the commodified version of the 'good'. In this case, we may be able to say that there is a moral requirement that participation in the environment should not be commodified. The argument here is that allowing market forces to dictate whether we can associate with our friends and family or our avatars “creates and encourages an inferior conception of human flourishing”.1) In a world which encourages rich and diverse social relationships, to have those relationships subject to arbitrary severance by the platform owner may be damaging in itself. The counter argument is that we often allow rich and diverse human relationships to be governed by markets – although, in an idealised form, we may prefer that they were not. Radin's pragmatism deals with the non-ideal scenarios, and accepts that there can be a continuum of degrees of commodification, and that partial market-inalienability may “sometimes substitute for a complete noncommodification that might accord with our ideals but cause too much harm in our nonideal world”.2)
The third justification Radin gives is a domino theory; where commodification changes the nature of the 'good', such that non-commodified and commodified versions cannot co-exist, and there is a moral requirement that the non-commodified version is available, then a prohibition on the commodified version can be desirable. Radin explains that this “can be conceived of as the opposite of a prohibition: there is assumed to exist some moral requirement that a certain “good” be socially available”.3) In this instance, an argument may be that if we allow platform owners the ability to commodify and sever social relationships and avatar connections at will, we are unlikely to see the emergence of non-commodified systems. This suggestion is borne out, to a degree, by Andrew Jankowich's study showing that three quarters of virtual world agreements surveyed “allowed the proprietor to delete a player account at the proprietor's discretion.”4) If we believe that non-commodifiable versions of social relationships in virtual worlds *should* exist, and we also believe that while we allow commodifiable versions they will not emerge satisfactorily, then we may prefer a prohibition on the commodified version.
While there are many flaws in my under-developed reasoning, a model of partial market-inalienability may sometimes be suitable. While it would be folly to suggest that participants have an inalienable right not to be ejected from a private space, it may make sense to suggest that participants have an inalienable right not to be removed from a private space which very closely mimics public space without due process. This qualified market-inalienability may also be sufficient to allay the concerns raised by Bartle, in that participants and proprietors of virtual worlds which do not closely resemble public spaces will not be unduly burdened in their liberty to choose arbitrary rules. Similar to the way in which labour is partially commodified, where we allow the overall sale of one's productive force but impose limits in the form of minimum wages and unfair dismissal rules, we can envisage that participant rights in virtual worlds can be productively made partially market-inalienable. The difficulty, as always, will lie in establishing the boundaries.
Overall, I think that Radin's theory provides a fascinating way of approaching the topic of 'avatar rights' which could be very useful in determining which interests can be modified by Terms of Service, by code, and by internal norms in virtual worlds.
Comments, thoughts, or suggestions?
|
