Legal Liability: 3 Opinions on its Effects in the Modern Age.

     Legal liability is an ongoing affair. By its very nature, driving society to vigilance in every work commuted to.. At the same time, it forces that same society to constantly reassess creativity and its use. With looking over some lectures regarding legal liability, three stood out this week that that focus on the root of legal liabilities that are oft the most common, particularly in the gaming industry lately.

      Knowledge Network – a great resource, (hereto referred as KN) if you don't mind that resource being Indian (i.e. from India, not to be confused with Native Americans) – provides a great deal of information on liability. An excellent lecture regarding criminal and civil liability, particularly with reference to tort law and negligence can be found here.

      With that in mind, the commentary on negligence and the effect of tort law on typical liabilities was rather profound. Negligence, as KN notes, is “The failure to exercise the standard of care, required by law to protect others from an unreasonable risk or harm." In the gaming industry, its unsurprising that liabilities involving negligence are generally the more common forms of tort. Two in particular come to mind – as reported by various outlets such as VentureBeat, there is the issue with 38 Studios last year, and of course, a paper by Deanna Pollard-Sacks, belief in the perceived “constitutionalized” negligence of video game violence.

      What we have ultimately, is willful failure to protect employees (or in the case of Sacks' case, consumers) from damages – both physical and financial – that should have been covered. For any business it is a fair assessment to acknowledge a clear violation like this as a headway for a lawsuit toward compensation and punitive damages. Of course, in the case of video game violence and its perceived negligence, it's technically just a matter of perception at this point, until otherwise speculated commentary becomes fundamental fact. Though, with the California Supreme Court ruling in favor of Free Speech for video games in 2011, it's bound to be a while before a major re-contest happens in that regard. Maybe the truth is, negligence is as much contextual in the law as it is in the face of personal morality. There is a certain level of violence no parent wants their child to be exposed to – on the other hand, there is a point at which a company should (and often must) maintain their personal and contractual obligation to their employees.

      The next lecture comes from famed Cory Doctorow, well-known Sci-Fi writer, journalist and blogger. His work as a copyright activist and freedom of speech involving rights management are fundamental elements of liberal rights movements. Particularly, his lecture regarding copyright found on Youtube, here, expresses the very foundation of copyright and IP law in the digital age. Particularly that it all boils down to the very fundamental principle of data – the bit – in which the copying of bits is so natural and continuous on a daily basis that attempts to encroach upon the ability to copy them are a waste of effort.

      All in all it makes a lot of sense, when you consider the years of attempted digital rights management – all of which have been broken at various times over the years by various groups, such as Fairlight, Razor1911, Reloaded, and others. As Doctorow describes, fundamentals behind today's copyright management in effect requires a decryption method to use/watch/hear a product by which the receiver must have the mechanism and “cypher” to decode the product – ironically, the very materials which are supposed to never be disclosed to the recipient.

      Big Champagne, a monitor company that Doctorow notes in one of his anecdotal references, amasses a wide range of information having to do with copyrighted materials. For instance, as Doctorow mentions, the average time between a release on iTunes and its DRM cracked version released on Peer-2-Peer is approximately 2-5 minutes. An excellent story that goes hand-in-hand with this, is that of the Sony Rootkit invasion some years back, in which those who downloaded software from Sony had the rootkit virus installed as a measure against alleged DRM tampering, while, ironically, those who got the very same material from P2P sharing didn't get affected by said virus.   Ultimately, consumers are being alienated by manufacturers and sellers, as purchasing a product gives them no ownership of something they must invest their own funds into. As Doctorow describes this method of business as the “If Value, then Right” theory behind charging money for anything and everything, while limiting the scope to which a product can be used or maintained by a consumer.

      Of course, with the power of the internet, the ability to copy copious amounts of bits across the World Wide Web means how we judge the success of IP laws change – rather, as Doctorow describe it, the success should be on how well the copyright increases diversity and participation of these social forms. There is certainly merit to this line of thinking, as in the gaming industry for instance, the ability to play games, before purchasing them is a major deal. Word of mouth to friends and strangers alike across the web improves the viral participation in a product, thus improving, or limiting its selling scope.

      The greater the the room to allow this spread of an IP, the larger the change it develops a greater following, and community – something of paramount importance in an industry defined by the quality and quantity of any particular community toward a product. At the same time, this very method of communal growth directly affects potential profit margins for a product (at least, according to some game developers), and so the line of how to mold copyright laws to allow symbiotic growth of a product while providing room to make profit from the authors work – is incredibly important, and a fundamental concern in the debate that continues to rage on.

       Lastly, Josh Wattles, famed attorney and Advisor in Chief for DeviantArt, gave a great lecture at thispast years Comic-Con, in which he discussed the value of effect of fan art and IP law. The more salient points discuss expression and the “artist paradox” that arises, in addition to the counter intuitive nature of IP and the over-aching effect of 'black letter' law vs the “law of the playground,” as he puts it.

      These elements come into play in the video game industry pretty often. If you have ever looked at cosplay at events such as Comic-Con, Comi-Ket, and various other conventions and expos, then you will have seen people dressed up as some of their favorite characters from movies, books, games, and shows. Often there may be booths where derivative works are being made and/or sold and so the paradox begins. These are forms of IP law in effect, and while often enough they let a lot of this slide, as theirs a great love for cosplayers and fan artists across the board according to Wattles and the famously anonymous “Harold Smith.” However, it does not change the fact that it often places original artists or publishers of works in a spot at times, where they may alienate customers by having to enforce encroaching rights on their products – sometimes you have to.

      Regarding the “law of the playground” - there has to be a method to which fans can express their “fandom” through works without calling into question infringement, something on the playground that never happened. i.e. little Bobby and little Timmy both able to pretend to be Superman – something that does not exist in the adult world, though with fan artists a more lax authority presents itself, allowing their works to transpire. Of course, as Wattles notes, there are ways to protect yourself from the effects of IP law: implied consent, non-commercial use, and fair-use methods.

      These are important as much for fan artists as they are for most anyone else dealing with anything that could be construed as derivative of something else – for instance a character in a game that reminds you of say, Bruce Campbell.. Ultimately, avoiding selling material for commercial use is one way to maintain a defense, as long as you're not harming or “besmirching” the trademark. Its not to uncommon to see implied consent, something wattles refers to with his anecdote of a star commenting on fan art and his/her love of it and how much they love to see it and hope it continues – this implies consent, and can be used as a defense to maintain fan artist works. Of course, by and large, the most common being fair-use – allowing a work to be used fairly in a wide range of ways often by way – as Wattles puts it – of the nature of being trans-formative. Things like teaching and using content for the purpose criticism counts toward fair-use, as does a modification of a works original intention, expression and format in such a way that it differentiates itself. Something to think about when you are making a product based off another product, while attempting to pretend it is original, even when it has works from other products in it. That is a mouthful, indeed.

      Overall, these three lectures aspire to inaugurate and/or improve the breadth of our information on liability in realistic context. In the age of information and digital means, it is imperative that we be vigilant for ourselves as well as for the sake of others personally protected rights to their work and/or creativity. If anything, it falls to finding a way to incorporate the fundamentals of the day in the wake of these technological changes, in order to capitulate in a mutually beneficial manner, expressive creativity, community, and the ability to maintain what is yours. So, I leave you with this image - a great book on the overall subject in today's world. You can check it out, here.

The Power of Money: A look at some of 2012's most prolific Video Game controversies

          Every year there is something new and inventive on the horizon. There is the proverbial ship, carrying all the wonders of the age with it, yet something strangely pervasive as it nears the horizon – green sails – sails made of currency, and paneling made of gold. Its a money-train, on water, that impressively enough, doesn't sink. An interesting way to describe the state of the video game industry, and the quality of some of those involved. Of particular note, 3 of the most prolific cases of recent memory, some still ongoing, such as the Activision lawsuit against infinity wardand West/Zampella, as well as HammerPoint Interactive's WarZ andthe nightmare that is Sergey Titov, and the court case rocking the NCAA/entertainment industry world – Keller vs. Electronic Arts.

           While all three appear to be stories of the little guy vs “The Man,” it's more accurate to describe these controversies for what they really represent – greed in the face of artistic expression, and the right to peoples due diligence in the wake of ever-expanding corporatism in the video game industry. Everyone should be entitled to what they're owed, but is there a point at which both sides forget what it is they're really about in the interest of the almighty dollar? Something to think about as we take a step into these three prolific controversies.

           The West/Zampella vs Activision lawsuit was a major issue, starting in 2010, that ran the gamut through the first half of 2012. Constantly in the news, it stressed the importance of trust and transparency between company and employee. Through 2012 it became a he-said/she-said battle in which West/Zampella were accused of stealing code and conspired with Electronic Arts to create something amazing from Activision left-overs, all the while negotiating terms of new contracts with EA, while still under contract with Activision – a wholly illegal affair.

           Of course, Activision had been accused of firing employees in whom they owed significant royalties. Between all the paper work and articles, the best we can surmise is that both sides were actually right – the team that separated from West/Zampella and left Activision became the Infinity Ward Employee Group, who went on to win over $42 million. West/Zampella settled out of court in late May of last year with an undisclosed sum, though with the amount they had been asking for (over 1 billion dollars), it is fair to imagine they certainly made enough to never work again. Likely for the best, considering all that happened, they'll actually never be able to work again in this industry.

           Thinking back on it, it is a shame that it happened to begin with. Greed is a disease; it starts small, insignificant, and the more it roams free, the more it grows into something entirely disassociated from its original intent. Instead, we end with as much as 46 people being let go and not receiving their owed royalties, while the attempt of pinning blame on two men as part of the fault be hind the entire ordeal, as somehow the cornerstone of the issue. The problem is that it never was. The issue boils down to people being owed something and not receiving it. What this means for the rest of us, is that in the future claims of royalties, and due commission will easily become a forefront element to any deal in the industry, though it is likely to paint companies such as EA and Activision in an even worse light then they already are. There are of course, detractors on the other side, claiming people like West and Zampella are complicit in that greed, and that folks like them are just as bad – maybe that's true, though if you were owed money – whether a dollar, or a million dollars – the principle is the same for you: you want what is yours.

           While talk of lawsuits abound, there has been nothing concrete in that arena thus far in the troubles of WARZ. The controversy, originally stemming from copyrightinfringement of some images from The Walking Dead, suddenly turned into a total campaign smear against HammerPoint Interactive, the makers of WARZ, in which it got out (with clear evidence) of directly lifting the vast majority of content from the game, WARInc.: BattleZone. Additionally, it was then shown that they lifted stylized content and direct mechanics and UI representative of the customization menu functions behind the Crysis series' weapons.

           Things spiral soon after, with Valve's Steam service deciding to pull the plug on the zombie shooter and refund purchases. From there, it was a long line of suspicious micro-transactions, underhanded moderator bans and censorship, fraudulent activities regarding account banning to force long-time players to repurchase in addition to lack of features that were promised. The games big wig Sergey Titov, known for creating the worst game in history, Big Rigs, attempted to issue an “apology” letter, where, for all intents and purposes, he accused everyone of misreading, rather than taking responsibility.

           While certainly not the first tale of stolen assets in a game, if anything, the moral of this story and those like it, is caveat emptor. Whether lawsuits are going to light up is unclear at this point, but what is known, is that HammerPoint appears to be a subsidiary for Arktos – who also own the company behind War inc, which Titov works for – which would likely give him the room needed to secure those assets without legal troubles. Even so, it doesn't account for the other theft of property from Crysis or The Walking Dead, nor does it leave them free from their clearly fraudulent activities.

          Lastly, the Keller vs. Electronic Arts case, which, by and all accounts is far from over, gives us another introspective into the steps people will go for the sake of money. In this case, Keller, a player in the NCAA asserts that his likeness without fair representation and compensation is a clear violation ofhis right to publicity, having made money off his likeness, stats, jersey number, etc. Assertions by the Keller camp believe the infringement goes deeper – obtaining these stats, and other materials across the entire division. Schools aren't permitted to make money directly from their athletes, nor are athletes able to obtain monetary sums for their skill, something to which Keller believes the league exploited with EA, yearly.

           It's been a long standing issue, with cases such as Hart vs Electronic Arts, or the O'Bannon case (which is now consolidated with the Keller camp). While these issues haven't finalized, it's clear that whichever way they go will have a significant effect on sports in the NCAA. Either players will receive compensation damages, or should they lose, EA and others will be able to speculate as to why they need to pay royalty agreements yearly at all. I suppose, f you can't grant an NCAA player direct compensation for his skill, it could be re-assigned in the same manner scholarships are. After all, those are technically monetary investments given based on skill. The League itself shouldn't have the final say, and I think those in the Keller camp, really do have a solid reason to not only be upset, but to continue the battle for rights to their publicity and personality.

           So, with three of the most prolific controversies surrounding the video game industry, it's a pretty safe bet the effect of money – and involved parties perceived right to it – will continue to expound in an industry that's gone from quaint and fun, to a thoroughly engaging multi-billion international business. The over-aching theme starts to create its own picture, however. One that particularly showcases a yearly drive for sales and money, rather than a focus on quality products that are fun, entertaining, and engaging, while improving the art form.