C. Syllabus:

Introduction to the Course

 

Class 1: September 9, 2015

 

 

 

 

 

 

 

 

 

Logistics:

• Media-capture
• Releases
• Evaluation
• Discussion Hour structure speakers + questions/conundrums
• Website + “News of the Week” + “What is Your Take?” + living/evolving
• Pedagogy: Course as game design

Jon’s Talk – “Introduction”:

Instructor bio & biases. Overview of course themes, objectives, questions seeking answers & answers seeking further questions.

What is a game? The roots of video games in play (fun) + creativity. How different/same as other media?

Why do we game?

Catalogue of firsts & barriers broken by video games: interactivity, voice over IP, open world, social, avatars (zeitgeist, memes, identity & equality).

Why the transformation to digital matters legally, psychologically and philosophically. Main metaphor: initiating content rather then receiving content (Television as “transmitter” to gamer as “transmitter’). Legal implications.

Recurring Themes of the course:

• Double Standards test (Digital Ethics).
• Legal constraints on (digital) creativity.
• Idea/Expression dichotomies.
• Creativity v. Innovation
• Moral Right(s), Copy Left.
• The diminishing Magic Circle.
• The Post IP World – contract or..?
• Right to create/Right to Mod (Right to Inter-Op too)? – Un-enumerated rights of Freedom of Expression meets Freedom of Thought. Your creation is protected, but not your right to create?
• Four memes: Creating, Connecting, Controlling, Conciliation.
• Post-structuralism and games.
• “Brain-games”
• Relating Memes of Justice & Technology

Discussion:

• Open input/comments/reactions

Materials:

1. A Brief History of Videogames – Polygon (2:54)

2. History of video games interactive timeline  – Computerspielemuseum

3. Copyright Law and Video Games: A Brief History of an Interactive Medium (Draft Chapter) – Prof. Greg Lastowka

4. IGN’s 25 Greatest Breakthroughs in Video Game History – IGN January 30, 2012

5.  Largest space battle in history claims 2,900 ships, untold virtual lives – The Verge July 28, 2013

6.  PC Gamer Top 100 Greatest Games – PC Gamer September 2, 2015

 

Possible Guests for “Discussion Hours”

A. (Vancouver based non-law) Don Mattrick* – Formerly of Zynga, Microsoft & EA; Ian Verchere – Roadhouse Interactive; Steve Rechtschaffner – Jawbone (formerly Microsoft, EA, Nexon) .

B. (Vancouver based law) Jim Alam – Koffman Kalef LLP; Chris Bennett – Davis LLP; Brian Dartnell* – EA; Anoop Desai* – EA; Joel Guralnick – Vision Critical; Chris Metcalfe – SAP AG; Roch Ripley – Gowlings.

C. (Remote law) S. Gregory Boyd – Frankfurt Kurnit; Alan Bruggeman – Microsoft; Roxanne Christ – Latham & Watkins LLP; Ryan Calo -University of Washington Law; William K. Ford – The John Marshall Law School;  Joel Linzner – EA; Don McGowan* – The Pokemon Company/University of Washington Law; Jennifer Lloyd Kelly – Fenwick & West LLP;  Jas Purewal – Purewal & Partners; Sheridan Scott – Bennett, Jones; Todd Smithline – Smithline PC; Patrick Sweeney – Interactive Entertainment Law Group.

Other Possible Guests:

Dr. Florence Chee – Loyola Chicago; Mia Consalvo – Concordia University; Jullian Dibbel – University of Chicago law student; Dr. Sarah Grimes – University of Toronto iSchool; Andy Mahood – video game simulation columnist; Austin Meyer* – X-Plane; Andy Moore – Indy games developer; Dr. Richard Smith – Centre for Digital Media; Dr. Kimberly Voll – Centre for Digital Media

* = confirmations of interest received                                                                                                     

Part A. Creating

Class 2: September 16, 2015

Jon’s Talk – “If Picasso had painted a round object…”:

“Games are not IP; Video Games are IP; Explain (Part 1)”

From documents to data to art –”Why are games?” to “What are games?” to “Are games mass media or just massive media (& does it matter)?”

Video games as the return of the oral narrative. Games as conversation? Do video games emulate James Joyce’s literary techniques?

The application of real world laws to virtual environments. Is there a virtual world? Is WoW its own country? (Duranske)

What are the threshold legal/structural issues for transformative media? IP Dystopia and its symptoms.

Broken up over Breakout: Atari v. Oman – its legal and emotional fallout. The road from disrespect to eventual acceptance of games by courts (& the censoriously inclined). Introduction to the ironies of that result.

From no copyright in card games, sports, leisure as the starting point to looking at the conundrums of the idea/expression dichotomy and fixation in the digital age (Boyden #1)

Introduction to the “Double Standards” ethical lens.

Comparing game related censorship to censorship of other kinds of information/entertainment. Blaming technology.

(Hook to next talk in terms of why expression/speech are not paramount and that the real censors are legal concepts we might not at all expect….)

 

Materials:

1. Bruce E. Boyden, Games and Other Uncopyrightable Systems 18 Geo. Mason L. Rev. 439 (2011)

2. IGN’s list of Culturally Censored Games

3. Stern Electronics v. Kaufman 669 F.2d 852 (2^nd Cir. 1982)

4. Atari v. Oman 693 F.Supp. 1204 (1988) (U.S.D.C., D.C. Cir.); Atari v. Oman 888 F.2d 878 (U.S.C.A., D.C. Circuit.); Atari v. Oman 979 F.2d 242 (1992)(U.S.C.A., D.C. Circuit.)

Quests & Discussion Hour: 

Richard Tape of UBC CTLT, Erin Fields of UBC Libraries & Patrick Pennefather of the CDM will lead us through the practical and pedagogic aspects of the Quests project.

 

Class 3: September 30, 2015

Jon’s Talk – John Milton Plays Grand Prix Legends:

A first look at typologies of  the “freedom to create” and constraints on creativity. Is it really just a matter of freedom of expression/speech versus… 1. IP; 2. Contracts; 3. Negligence; 4. Privacy; 5. Surveillance; 6. Monetization?

What are the true “Constraints on Creativity”? Creator v. Connector. Games without copyright.

Impacts & perspectives on the idea/expression dichotomy.

Fundamentals or Fundamentalism: Introductions to Privacy Literalism and IP Literalism –  the positional paradoxes and political excesses of anti-piracy and pro-privacy in a video gaming context. Evolving a single standard for creators as users & users as creators.

Correlating economic growth, Rule of Law Index & I.P. stringency.

(Hook to next talk  – now that we have creativity, content and contradictions accounted for, what is the next horizon? Remixing in games…next week…)

Materials:

1. Areopagitica John Milton (1644)

2. Winters v. New York 68 S. Ct. 665 (U.S. 1948)

3. Montreal v. Arcade Amusements Inc. [1985] 1 SCR 368

4. Brown v. Entertainment Merchants Association 131 S. Ct. 2729 (2011)

Discussion Hour:

Guest Speaker: Ian Verchere, Founder & Chief Creative of Roadhouse Interactive http://ca.linkedin.com/in/ianverchere will speak on the “creator’s” perspective.

Class 4: October 7, 2014:

 Jon’s Talk – Right to CreaTe or Rights of Creation:

The Right to Mod? Is content original? Is “authorship” a fiction? The Right to CreaTe?

The importance of Minecraft/multi-player/open-worlds.

Modalities, histories and choices in reconciling IP & Freedom of Expression. Distinguishing the “Duke Nukem” & “iRacing” cases.

Mods and the role of “communities”. Prof. Lastowka’s “Player-Authors Project”.

The importance of the Idea/Expression Dichotomy and the right to mod as part of a rebalancing paradigm.

Moral rights & an evolving “CreatorRight”. The evolving reinterpretations of fair dealing/fair use as applied through principles of technological and content neutrality.

IP Paradoxes.

Free expression/speech & copyright: Is Fair Use/Dealing wholly within copyright or a speech right? – An analysis of the implications of the statutory history leading to “The Statute of Anne”.

A catalogue of possible ways forward including the morality of “moral rights”; the SCC “penatology”; and redefinitions of fair dealing/use as steps to a new “right”.

(Cliffhanger to next four talks – re “connecting through games”….How do we connect today?…Mostly through technology. How does the law mediate our connections? Mostly through contract being paramount to everything else…& the confusion of different technologies attracting different regulatory/legal responses. Stay tuned…)

Materials:

1. Johanna Blakley: Lessons from fashion’s free culture, TedX 2010 (16:07)

2. Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds 90 Virginia L. Rev. 2043 (2004)

3. F. Gregory Lastowka & Dan Hunter, The Law of Virtual Worlds 92 Calif. L. Rev. 1 (2004)

4. Micro Star v. FormGen Inc. 154 F.3d 1107 (9^th Cir. 1998)

5. iRacing Motorsport Simulations, LLC v. Robinson No. 05-11639 NG (D. Mass. May 28, 2009)

Discussion Hour:

Brian Dartnell, Senior Counsel Electronic Arts Inc. will speak on the in-house practice of Video Game Law.

 

Part B. Connecting

Class 5: October 14, 2015:

Jon’s Talk – Consumers & Users As Creators & Connectors:

From Creating to Connecting. Introducing the “Post-IP World”.

Modelling models of creativity. Word alignments, networked generativity and Post-Structuralism.

Should all IP be “use it or lose it”? Is Trademark still “use it or lose it”?

Introduction to the “tattoo conundrum”.

Why don’t CD’s have an End User License Agreement while games do? Software development & the evolution of licensing.

 

(Hook to next talk – so what sense can we make of the significant underlying role of contract law in the video game relationships)

Materials:

1. Steven Johnson: Where good ideas come from, TedTalks 2010  (18:07)

2. The Economy of Ideas – John Perry Barlow Wired 2.03 (March 1994)

3. Davidson & Associates v. Tim Jung  422 F.3d 630 (8^th Cir. 2005)

Discussion Hour: 

Mavis Dixon of Ayogo Health Inc. on games and the brain.

Class 6: October 21, 2015:

 

 Jon’s Talk – Frictions & Fictions – Consumer Contracts & Creative Constraints:

 

More Post-Structuralism in games and an introduction to potential legal implications.

Legal fictions: EULA’s; TOS’ & the consumer instinct for expediency – click-wrap cases and content ownership issues.

The problems of click wrapping and minors.

The first sale doctrine & EULA restrictions (Redigi).

…the chasm of contracting out: Remind me again, why is the prevalent regime that of millions of very similar yet (fictionally) individual contracts? The potential impact of consumer protection laws internationally on the “standard” of “standard form” contracts.

The Post-IP World. How contracts tear apart copyright expectations, policies..and well…everything.

“10 contractual clauses – 10 video game law cases”. Tracking the evolution of practical legal implementations of consumer contracts in the digital space.

(Hook to next talk – looking beyond the law of contracts, what are the legal/regulatory regimes that can apply to game technology and content?)

Materials:

1.  MDY Industries, LLC v. Blizzard Entertainment, Inc. 629 F.3d 928 (9th Cir. 2010)

2. Vernor v. Autodesk 621 F.3d 1102 (9^th Cir. 2010)

3. Evony, LLC  v. Holland United States District Court W.D. Penn. (2011)

4. Across Three Continents: A Tale of Tumblr, Copyright, and Excel – vlogbrothers (3:56)

Discussion Hour:

Roch Ripley of Gowlings will cover a variety of topics ranging from “Trolls” to EULA’s.

Class 7: October 28, 2015

 

Jon’s Talk – What’s it all about…”EULA”? – Assessing of the utility and impact of End User License Agreements (etc.):

Continuing with the fundamentals of EULA’s, ToS’, Tou’s & the like:

Creating tends to go with Copyright, which in turn comes with Constraints/Coercion. Connecting tends to go with Contracts, which in turn comes with Restraints/Control. How logical is this really?

The problem with drafting (EULA’s etc.). The re-emergence of User Rights in a contractual context? Applying the Double Standards Test to EULA’s, ToS’ and those who impose them. The need for consumer agreements for the “ bad stuff”: Interpreting the case evidence. What about Notices?

Censoring creative expression through contract terms. How important?

What the cases and pleadings imply about the need for consumer contracts like EULA’s & ToS’ as remedies: A review of the 10 cases from the previous class.

Are we parties to hundreds (thousands?) of “active” contracts that we don’t use? Does it matter? A Common Law chasm if only form matters?

If video game consumer contracts didn’t exist would the gaps be otherwise filled in? Technology, legislation and  consumer protest: the future of video game contracts?

Materials:

1. Bragg v. Linden Research, Inc. 487 F.Supp. 2d 593 (E.D. Pa. 2007)

2. Court documents in Hernandez v. Internet Gaming Entertainment, Ltd. United States District Court for S.D. Fla., Case No. 1:07-CIV-21403-JIC, Filed May 31, 2007.

3. Sara Grimes Terms of Service, Terms of Play in Children’s Online Gaming (2007)

4. A. McDonald, L. Cranor The Cost of Reading Privacy Policies (2008)

5. Ryan Calo Digital Market Manipulation (2013)

Discussion Hour:

Jim Alam of Koffman Kalef LLP and Rob Edgar of Birthplace Management Group will together reflect on the sorts of problems that video game lawyers and clients deal with.

Class 8: November 4, 2015

 

Jon’s talk  – From Wheelbarrows to Holodecks:

Evolution of consumers as creators.

PC v. Consoles v. Mobile  (parallels Eula’s v. ToS v. Crowd/Open source). Evolution of various technologies, products, content & consumers. Evolution of differing legal/regulatory regimes relating to various combinations of the above list including legal treatments, distinctions, questions & problems.

The living room war: a report from the frontlines.

Cataloguing complexities of the “cloud”.  Evolving legal concepts of technological neutrality. Net neutrality. “Interop” rights?

Theme of film treatment of games: Tron(s); Gamer; Surrogates; Wreck-it Ralph.

Interactivity, immersion & virtual realities in games; legal issues/ethical conundrums. Live remixing of the real, the virtual and the fully interconnected – IP, contractual and regulatory choices, problems and dead-ends. The further issues and consequences of twisting realities through mobile, AR games, bots, augmented reality games, simulations & Kinnect-ing – living inside your own massively multiplayer 3D copier built world while wearing Google Glass. Virtual currencies, real money.

Multiple contemporaneous screens/devices – sometimes linked, sometimes not = natural fragmentation/diversity of experience. Consequences?

For example, the screen merger/multiple input dilemma: what legal standard applies when different laws, rules and regimes apply to each of the individual components onscreen? For example where a crowd-sourced defamation appears on-screen as part of a group on-line sports viewing experience, will the service provider be seen as an ISP with no liability or a publisher with liability? In other words, which screen within a screen will the Court choose as paramount; or more to the point does the combination of services within a single screen alter the legal analysis?

The not so surprising research results on the consequences of avatar choice – is virtual reality more fair and more equal then reality?

(Cliffhanger – now that we are completely out of control, inebriated on visions of a crazy sci-fi future, we come to the next group of three talks – on Control. We have almost come full circle, from transforming old technologies to a new one, creating with it and connecting through it. We now arrive at the human instinct for order – how we control and consequently are controlled…stay tuned)

Materials

1. Atari v. Nintendo 975 F.2d 832 (Fed. Cir. 1992)

2. Sega v. Accolade 977 F.2d 1510 (9th Cir. 1992)

3. Sony v. Connectix  203 F.3d 596 (9th Cir. 2000)

4. Sony v. Bleem 214 F.3d 1022 (9th Cir. 2000)

Discussion Hour: 

Steve Rechtschaffner formerly of Microsoft, Nexon & EA will talk about the future of video games.

Part C. Controlling

Class 9: November 18, 2015 

.

 

Jon’s talk – Controlling Originality:

“Creationism”; the legal version – exploding a few fictions & myths about originality. Devices, franchises  & anti-trust/competition law responses. Reverse engineering, emulations, chipping.

The Clone Wars: deconstructing genres, technology and identity uniqueness through EA v. Zynga  – Sim Social v. The Ville; Incredible Technologies v. Virtual Technologies – Golden Tee/PGA Tour Golf; Textron v. EA – Battlefield 3 Bell helicopter; and right of publicity (as opposed to copyright) cases – e.g. the retired NFL players & active college players v. EA Madden/NCAA Football cases; No Doubt v. Rockband (Activision).

Trolling for dollars? – Patents as swords in Immersion v. Sony, & the X-Plane case. “Ghost-car” patent. Feedback controllers. Are these constrictions on user rights? Should they be seen to be?

Free Expression/1^st Amendment defences?

(Hook to next talk– Is virtual sex, sex? Is virtual violence, violence?  Next week…)

Materials:

1. Incredible Technologies, Inc. v. Virtual Technologies, Inc. 400 F.3d 1007 (U.S.C.A. 7th Cir. 2005)

2. E.S.S. Entertainment 2000, Inc., d/b/a Playpen v. Rock Star Videos, Inc. 547 F.3d 1095 (U.S.C.A. 9th Cir. 2008)

3. Samuel Michael Keller v. Electronic Arts, Inc.et al.  (U.S.C.A. 9th Cir. 2013)

Arguments before the U.S.C.A. (36:43)

4. Tetris Holding, LLC v. Xio Interactive, Inc. 863 F. Supp. 2d 394, 397 (D.N.J. 2012)

Discussion Hour

Jennifer Lloyd Kelly, Fenwick & West LLP San Francisco  http://www.fenwick.com/professionals/Pages/jenniferkelly.aspx on imitation, originality & genres in video games.

Class 10: November 25, 2015

Jon’s talk – “Mass Effect-s”:

A history of legal reactions to (video game) violence and sexism highlighted by the Dungeons & Dragons (Waters v. TSR) and Columbine High School (Sanders v. Acclaim) cases. “ What is a deviant violent videogame….as opposed to a normal violent videogame?”

Evolving roles of cultural/societal memes in legal decision making.

Sex misogyny and #gamergate in games & gaming.

Kids & games – secrets of contractual immunity.

Addiction & health issues/evidence.

(Hook to next talk, so freedom has become a stronger meme then causality, but can’t we regulate “the industry”?)

Materials:

1. Watters v. TSR, Inc. 1990 U.S. App. LEXIS 8827, 904 F.2d 378 (6th Cir. 1990)

2. Sanders v. Acclaim Entertainment Inc. 2002 U.S. Dist. LEXIS 3997, 188 F. Supp. 2s 1264 (D. Colo. 2002)

3. James v. Meow Media Inc. 2002 U.S. App LEXIS 16185, 300 F.3d 683 (6th Cir. 2002)

4. Damsel in Distress: Part 1 – Tropes vs Women in Video Games – Anita Sarkeesian (23:35)

Discussion Hour: Andy Moore, Radial Games.

 

Class 11: December 2, 2015

Jon’s talk – Controlling the Controllers:

Privacy “The Sequel”: scalability not waiver-ability. Contrast with – information gathering through games for state purposes. Layers of privacy, vulnerabilities of surveillance. EULA complicity.

Reconciling: privacy; remixing; interoperability/connectivity/net neutrality/free expression???

Regulation of the video game “medium”. Ratings, regulation and industry self-regulation. Is multiplayer gaming “broadcasting”?

Telecommunications as vehicle of regulation? Consumer protection?

(Cliffhanger to final two talks. The media born of transforming other media itself comes full circle, preparing itself to be transformed…stay tuned)

Materials:

1. Oral argument in Blizzard v. BnetD

2. Oral arguments in Brown v. Entertainment Merchants Association (U.S. Supreme Court)

3. William K Ford The Law and Science of Video Game Violence: What Was Lost in Translation? (2013)

4. Benjamin Mako Hill, Andres Monroy-Hernandez The Remixing Dilemma: The Trade-off Between Generativity and Originality (Draft 2012)

5. Bruce Springsteen’s SXSW 2012 keynote (audio)

6. Lawrence Lessig on “Aaron’s Laws -Law and Justice in a Digital Age”, Harvard 2013 (1:43:03)

7. Bruce Schneier & Jonathan Zittrain on IT, Security, and Power, Berkman Center 2013 (1:30:21)

 

8. Everything is a Remix by Kirby Ferguson, 2012 (36:25)

9. Jonathan Zittrain, Minds for Sale, Berkman Center, 2013 (1:17:03)

Discussion Hour:

Guest Speaker: Mark Devereaux, Chief Strategy Officer of Roadhouse Interactive, will discuss developer publisher agreements.

Outline of “Quest De Integro Ludus” (latin for “concerning the whole”)

Topics (+Legal Aspects of + Video games)

Topic 1 (Class 2): Freedom of Expression

Topic 2 (Class 3): Copyright

Topic 3 (Classes 4 & 9): Modding & Content Originality

Topic 4 (Class 5): Consumer Rights

Topic 5 (Class 6): Contract Law

Topic 6 (Class 7): EULA’s – Good & Evil

Topic 7 (Class 8): Technology & Change

Topic 8 (Class 10): Violence, Misogyny & Social Issues

Topic 9 (Class 11): Privacy & Surveillance

Topic 10: Government Regulation & Control

Class Activities

Class 1 Rules Explained: *Guilds of up to 4 per group; *All CC licensed and in Wiki.

Class 2 Guilds Formation Based on Topics (no redundancies though Topics are potentially sub-dividable into distinct sub-topics). Guild picks a relevant name and creates an “origin story”.

Class 3 Ludology Research 1 – Find & Briefly Describe at least 7 relevant papers

Class 4 Ludology Research 2 – Discuss & Brief Synopsis of at least the 2 most important papers

Class 5 Legal Research 1 – Find & Briefly Describe at least 7 relevant papers

Class 6 Legal Research 2 – Discuss & Brief Synopsis of at least 2 most important papers

Class 7 Mid- Term Oral Reports: Provide a synopsis to the class of the current state of the law and Ludological research in the area your Guild has chosen + a brief written report. In-class presentation of up to 5 slides/5 minutes per group.

Class 8 Collaboratively define and describe how the law could change in the future

Class 9 Create a Pro & Con list re changes to the law

Class 10 Recommendations for Law Reform/Change

Class 11  Oral Opinions/Presentation: Each Guild present up to 20 slides of alternating but responsible views on critical aspects of their legal quest in up to 15 minutes. This is not intended as a debate but rather as a technique to fairly illuminate different perspectives on a particular issue. A joint conclusion or perspective at the end is optional, but encouraged.

Reflective Questions After Group Work (1 page private reflective paper due Week 11)

1. What was your greatest contribution to the team?

2. Describe a particular moment of discord between the group and how you contributed to the impasse or impediment (this does not have to be a positive contribution).

3. Describe the strengths that each of your collaborators brought to the work.

4. If you were to “hire” or ‘bring on’ one more group member what skills/or skill sets might you be looking for?

5. If you were to start the group process again, how might you work differently? Or, why might you advocate that other groups follow a similar way of working that you found beneficial?

6.  How did the experience differ from doing this work on your own?

GOOD LUCK WITH YOUR PAPERS & EXAMS.

Appendix 1:  Digital Repurposing Consent Form

Recording Consent and Release

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