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.