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.
