Re: Blizzard v. Glider v. Public Knowledge
Subject: Re: Blizzard v. Glider v. Public Knowledge
Newsgroups: gmane.org.freeculture.discuss
Date: 2008-05-08 19:08:13 GMT
I'm fascinated by this idea that the law is enforcing the author's creative vision. In any discussion of art or literature, there's always someone who asserts that we ought to view, experience and interpret the work as the author intended us to. The view is asserted that the only real meaning of a work is the one the author wants. Taken to an extreme, this view lets Speilberg remove the guns from ET, lets Lucas make Greedo shoot first, and means that we must always be reminded that Nabokov claims that Kinbote hanged himself after writing the commentary to Pale Fire.
European copyright law has its ideological underpinnings in a similar notion. It is shaped by the belief that there is a sort of sacred bond between author and work. A belief that the work springs entirely from the creator and that the creator is thus entitled to control it. Though the US has never held this view, our law has been forced closer to the European model by international agreement, and I have certainly heard traces of this thinking in American proponents of stronger copyright.
Video games challenge this belief. Yes, they do allow a company like Blizzard to carefully craft an experience for the player that is more involved and immersive than a book or a movie. Yet the very thing that creates that immersion, player input, requires the creator to surrender some measure of control. As that control is surrendered, the experience cannot be as strictly confined to the author's vision as other media. If we view consider art and culture to be nothing more than the expression of one author's message, then statements like that from Roger Ebert, that video games can never be art, make perfect sense. If, however, we view it as an experience shared and shaped by artist an audience, then games open up a great new w
orld of potential.
Mods takes this to a whole new level. Mods allow anyone with a toolset or some basic programing ability to add their own content. To analogize to movies, mods allow anyone to change the guns in E.T. to flashlights. More importantly, the user is given a level of editorial control. By choosing which mods to use or not, or by making their own mods, users get to decide what experience they want to get from the game.
The problem with this Blizzard case is that it is a prime example of how the law can be exploited to reserve creative control for the copyright holder. The way most EULAs are drafted, the license to use the software automatically terminates once the user violates any term of the agreement. Depending on the agreement, this could be caused by making one too many backups, installing the software on a new computer without first wiping it from the old one, setting a firewall to block the part of the software that 'phone's home' or applying any third party mod. The position of companies like Blizzard is that once this happens the user is on the same legal and moral footing as the person selling bootlegged movies on the street, and that user should
have to pay hefty penalties (since there are no actual damages in a case where the user has bought the software, any award really is punitive).
I'm not saying that I think Blizzard will prevail with their legal argument, but I do think that it's a serious problem that they can take this claim to the courthouse in the first place. Statutory damages are so tremendous, as is the cost of litigation itself, that if the law allows even a colorable claim to infringement in situations like this then there is a serious defect in the law. Where an author has been fully compensated for their work, copyright law should not be a viable tool for allowing the author to control how that work is enjoyed or experienced. To do so would enforce legally a certain ideological concept of what art is.
That being said, I'm not without some sympathy for Blizzard's decision to take action. MMO's charge a regular fee in part because they require a certain amount of policing the servers. "Cheating" in the MMO context presents different issues than using mods in single player, largely because the experience can rapidly change for everyone where practices like this become prominent. If Blizzard wants to provide an environment where everyone plays by an agreed upon set of rules, I have no problem with that, but they should not be able to use copyright law to obtain massive damages for what is essentially a breach of contract claim. After all, punitive clauses in contracts are unenforceable, and this is really just an end run aroun
d that limitation. More importantly, a bad precedent here could have very damaging consequences in terms of rights to use and modify software generally.
--Christian
I completely agree. But games provide an interesting problem when you think of them as a cultural work. Unlike music, where you are very much in control of the experience of listening to the music and have been forever, games are designed as experiences. The game designers are interested in providing a particular set of challenges and rewards to the player within a set framework to make those challenges and rewards enjoyable. To bypass that system breaks your suspension of disbelief in order to enjoy the game.What we see here is that no man made law can overcome natural law. If people
want to engage in cultural exchange, or to build upon published works, or to
freely interact with publicly accessible works, they will. You can't create
laws such as copyright to contradict this, nor can you con people into
believing that they agreed to a contract surrendering their freedom to do so
("because you opened the shrink wrap").
Now, some games are designed to give the player a vast amount of control. Think GTA, Oblivion, even WoW to a certain extent. The framework for those games is more loosely defined. The big question we should ask if we're considering games as cultural works is, should we consider the intentions of the game designer when choosing how we decide to interact with it? As you said, no law is going to stop what people do. And around WoW, a huge body of machinema has evolved because people love the game and don't really care about Blizzard's copyright (nor does Blizzard, luckily). But in the Blizzard vs. Glider case, the law is being used to uphold the game designer's artistic choices. Knowing that laws are insufficient, should a social construction, or a respect for t he game designer's intentions, or something else, replace that law?Best,On May 8, 2008, at 5:36 AM, Crosbie Fitch wrote:From: Matthew J. Agnello
Let me address Parker and Crosbie's comments about the game first.
I don't think you address mine.People play the game for many reasons. Some play to advance skillfully
or quickly, others play to test their skill against other players, and
still others play to explore the game world or test and manipulate the
underlying game rules. Many play purely for the social aspect, which
is as rich and rewarding as a chat room, a forum, a mailing list, or a
coffee house conversation.
I haven't made any point to the contrary.The game is one with simple rules and complex outcomes, and to
generalize the varied motivations for why someone would play is to run
into gross inaccuracies.
I haven't made any generalisation as to why someone would play Warcraft.Computer scientists solved the game of
checkers several years ago, yet no one is ashamed to play the game,
one where a sufficiently advanced algorithm could always, always beat
you. As Fred mentioned, all games are rule based, and so are robots,
so to criticize a game because a robot could excel is to fail to
understand many things about the complexities of human nature and the
purpose of AI.
I haven't criticised Warcraft. I haven't even criticised it as a game
because a robot could excel at it (or even assist play in it).
I've tried to briefly (because I appreciate people don't like to discuss
issues tangential to free culture) point out that the provider of a
networked game cannot expect to prevent players utilising computer
assistance for those (typically 'monotonous') aspects of gameplay that do
not require intelligence. Just as a record label cannot expect to prevent
purchasers of CDs making copies for their MP3 players.
I have not questioned players' reasons for playing Warcraft, only alluded to
the motivation of those using computer assistance, which is either because
they don't find the mechanical aspects sufficiently amusing or probably that
they hope to sell/exchange the completed mechanical labour to those who also
don't find the mechanical aspects sufficiently amusing (but who don't have
the computer assistance to hand).Likewise, the question of playing the game has nothing to do with free
culture and even less to do with copyright law.
But you thought'd you'd slip in a few paragraphs about that question anyway?
Games are cultural works.
Publishers of those games are interested in controlling the use of their
works, even desiring the ability to control what players get up to in the
privacy of their own homes.
What we see here is that no man made law can overcome natural law. If people
want to engage in cultural exchange, or to build upon published works, or to
freely interact with publicly accessible works, they will. You can't create
laws such as copyright to contradict this, nor can you con people into
believing that they agreed to a contract surrendering their freedom to do so
("because you opened the shrink wrap").
Of course, the providers of a publicly accessible service can deny service
as they wish (as long as they do not engage in unfair discrimination), but
they have no right to penalise someone (whether for automating their use of
the service or anything else). Certainly not for breaking the terms of a
EULA they didn't necessarily agree to, nor for infringing copyright (a
copyright owner must be guilty of fraud or entrapment if the proposed use of
a copy they sell involves unauthorised copies such that its copyright is
infringed - the sale is of the copy for the use it provides which must
implicitly permit intermediate/incidental ephemeral copies).
I wrote a bit about the abuse of licenses here:
http://www.digitalproductions.co.uk/index.php?id=84
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