1. Ethics & Games Part D “Conciliation” | Talk 12 Video Game Law 2013 UBC Law @ Allard Hall Jon Festinger Q.C. Centre for Digital Media Festinger Law & Strategy LLP @gamebizlaw http://blogs.ubc.ca/videogamelaw/ jon_festinger@thecdm.ca

2. Follow-ups ReDigi case - “A Setback for Resellers of Digital Products”: http://www.nytimes.com/2013/04/02/business/media/redigi-loses-suit- over-reselling-of-digital-music.html?nl=technology&emc=edit_tu_20130402 http://www.nytimes.com/2013/04/02/business/media/redigi-loses-suit- over-reselling-of-digital-music.html?nl=technology&emc=edit_tu_20130402 EULA constraints on creativity: Berkman Luncheon series April 2, 2013 – Anil Dash “The Web We Lost” (video will be posted) http://cyber.law.harvard.edu/events/luncheon/2013/04/dash http://cyber.law.harvard.edu/events/luncheon/2013/04/dash Wednesday 4/3: Livestream 4 PM PST – “Appropriation Art” (HLS Copyright Course with Prof. Terry Fisher) http://cyber.law.harvard.edu/node/8191 http://cyber.law.harvard.edu/node/8191

3. Stories That Struck Me… “Icelandic teenager sues state for right to use her name” http://www.telegraph.co.uk/news/worldnews/europe/iceland/9778304/Icelandic- teenager-sues-state-for-right-to-use-her-name.html http://www.telegraph.co.uk/news/worldnews/europe/iceland/9778304/Icelandic- teenager-sues-state-for-right-to-use-her-name.html “What to make of Ai Wei Wei’s ‘Gangham Style’” http://www.ethanzuckerman.com/blog/2012/10/25/what-to-make-of-ai-wei-weis- gangnam-style/ http://www.ethanzuckerman.com/blog/2012/10/25/what-to-make-of-ai-wei-weis- gangnam-style/ + “Egyptian protestors trade 'Harlem Shake' taunts with Islamist regime” http://www.theverge.com/2013/3/3/4061498/harlem-shake-meme- becomes-political-in-egypt http://www.theverge.com/2013/3/3/4061498/harlem-shake-meme- becomes-political-in-egypt “French broadcasting authority proposes cultural exception to net neutrality” http://www.lexology.com/library/detail.aspx?g=5a015cc3-da1f-456d-90ee- 7e2b233e7dca http://www.lexology.com/library/detail.aspx?g=5a015cc3-da1f-456d-90ee- 7e2b233e7dca

4. Common Denominators of 4Stories 1. EXPLORING CREATIVITY: Law = free expression/ speech/“right to create” 2. EXPLORING “IDENTITY”: Law = privacy (in realm of connection) 3. CONSTRAINTS/RESTRAINTS = censorship + EULA’s etc. CREATIVITY = IDENTITY + (PLAY?)

5. 1 st Principles: Ethics Before Law Ethics Must Dictate Law; Law Must Not Dictate Ethics; Where Law Dictates Ethics, that is Repression. Unlike the chicken and an egg, we should know what comes first…

6. 1 st Principles: Everything is Connected (including creativity/identity) “We are the sum of all the people we have ever met; you change the tribe and the tribe changes you.” Fierce People by Dirk Wittenborn - undeniably true of information, creativity, ideas, art, methods etc. “Neurologist Oliver Sacks on Memory, Plagiarism, and the necessary Forgettings of Creativity”: “ We, as human beings, are landed with memory systems that have fallibilities, frailties, and imperfections — but also great flexibility and creativity. Confusion over sources or indifference to them can be a paradoxical strength: if we could tag the sources of all our knowledge, we would be overwhelmed with often irrelevant information.”http://www.brainpickings.org/index.php/2013/02/04/oliver-sacks-on-memory-and- plagiarism/http://www.brainpickings.org/index.php/2013/02/04/oliver-sacks-on-memory-and- plagiarism/ Bruce Springsteen SXSW keynote @ 24:27 - 26:40 & 27:35 - 30:00 http://www.youtube.com/watch?v=JWbv0SUVQjM&list=PLEqpzAExPV- xr9gIhSqLMxTSXrimGF6pA&index=2 http://www.youtube.com/watch?v=JWbv0SUVQjM&list=PLEqpzAExPV- xr9gIhSqLMxTSXrimGF6pA&index=2

7. Another Take on Original-ism “More then ever, the narcissistic interests of those who make art count for more than the human needs of those who desire and supposedly benefit from it – and how much they benefit from it is the contemporary question about art.” Donald Kuspit, “Signs of Psyche in Modern and Post Modern Art” (1994) * Is there a game without the gamer? * Mods through objective content measurement?? * Personal creation mythology appears unsound by research, less sound still from a human perspective

8. Also: Original-ism (the “Hollywood Model”) as Neo-colonialism See “Intellectual Property: The Global Spread of a Legal Concept” Alexander Peukert http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218292

9. Another Factor: Preponderance of Human Creativity Test of “Good” Derek Parfit 1: “My life seemed like a glass tunnel, through which I was moving faster every year, and at the end of which there was darkness... [However] When I changed my view, the walls of my glass tunnel disappeared. I now live in the open air. There is still a difference between my life and the lives of other people. But the difference is less. Other people are closer. I am less concerned about the rest of my own life, and more concerned about the lives of others.” Reasons and Persons (1984) Derek Parfit 2: Objective v. Subjective Theories of “(Non- Religious) Ethics” On What Matters (2011) * Demonstrate through GPL & other mods that preponderance of creativity lies with the co-creators * Add in players playing as co-creators then every creative work is comprised mostly of others creativity/work/effort * With respect to art, music, TV, film add in viewing, dancing, fan fiction & “fan-ish behavior” (tougher then games but same result)

10. 1 st Principles: Creativity is More Important Than Property

11. Consequence: Is It Barter Not Theft (Piracy) IF We Are All Creators?

12. “Barter Not Theft”?… * Plethora of digital information means we increasingly see very different points of view and accordingly have to create our own stories/ versions. This is a good thing. * This connects with the reality that everything we create is a story made up of other stories. *Illustrates how digitization has made storytelling easier. It is our ability to story-tell that is so fundamental to our humanity. So it is that ability that must be safeguarded. The temptation is to say that copyright rewards storytelling but it likely constrains storytelling by constraining the viral-ity of its constituent elements. * It is storytelling that is so basically human and so it is storytelling that is our basic human value...and right… STORYTELLING = IDENTITY ?

13. 1 st Principles: Prior Restraints Are Problematic Blackstone: “Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.” (4 Bl. Com. 151, 152.) IP as “Prior Restraint” to Creativity? EULA’s &ToS’ as even greater “Prior Restraints” to Creativity

14. Constraints Distort Creativity Layers of Control 12. Theft, assault (criminal law) 11. Currency/taxation (statutory/regulatory). 10. Gambling (regulatory body – criminal law back-drop) 9. Unfair competition (Competition/anti-trust) 8. Misleading promises/advertising, physical or psychological harm (consumer protection) 7. Medium specific regulation (constitutional) Out of the Game Norms ------------------------------------------------------------------------------------------------ In the Game (Magic Circle) Ethics (of Originality, Creativity & Expression) 6. Industry self regulation 5. Personality rights (tort, IP) 4. EULA/ToS (contractual, private) 3. IP (copyright, patent, trademark – statutory) 2. Technology (quasi extra-legal) 1. Community (extra-legal)

15. Unifying Principles? IP Literalisms Privacy Literalisms Contractual Literalisms Unified Source: CREATIVITY (expression) + IDENTITY (privacy) + HUMAN INSTINCT TO CENSOR (restraint) “1. Those 1’s & 0’s are of me. 2. They are therefore my property. 3. Therefore I can do what I want with them – control them in any way I wish..” ALL RESTRICT FREEDOM

16. Another Way: Enter Moral Rights Regime of ATTRIBUTION + INTEGRITY IF TO IP = 1. commercial impact test irrelevant; 2. right to be attributed 3. right to protect work’s integrity IF TO PRIVACY = Attribution & Integrity includes non-attribution (“right to be forgotten”) IF TO CONTRACTS = ??? (but cannot assign – only waive) NOTE: Bill C-11 Copyright Modernization Act, Canada, Sections 17.1 &17.2 extend moral rights to “performers” in their “performances”.

17. Enter User Rights: SCC Penatalogy Abella J. for the majority in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37 “…fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose…is that of the user…” Abella J. for the Court in Society of composers, Authors and Music Publishers of Canada v. Bell Canada 2012 SCC 36 “Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works.” See also: “Copyright Fair Use Cases of the United States Supreme Court” http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/ http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/ Abella J. for the majority in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37 “…fair dealing is a “user’s right”, and the relevant perspective when considering whether the dealing is for an allowable purpose…is that of the user…” Abella J. for the Court in Society of composers, Authors and Music Publishers of Canada v. Bell Canada 2012 SCC 36 “Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the “aggregate” amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works.” See also: “Copyright Fair Use Cases of the United States Supreme Court” http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/ http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-states-supreme-court/id=26225/

18. Re-enter Sony v. Universal (& a sequel) * Sony Corporation of America et al. v. Universal City Studios, Inc., et al. 464 U.S. 417 (1984) Supreme Court of United States http://scholar.google.ca/scholar_case?case=5876335373788447272&hl=en&as_sdt=2&as_ vis=1&oi=scholarr&sa=X&ei=tspbUeHmOerJiwLsy4DQAg&ved=0CCoQgAMoADAA http://scholar.google.ca/scholar_case?case=5876335373788447272&hl=en&as_sdt=2&as_ vis=1&oi=scholarr&sa=X&ei=tspbUeHmOerJiwLsy4DQAg&ved=0CCoQgAMoADAA “If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory.” * UMG Recordings v. Shelter Capital Partners (Veoh video site) USCA 9 th Circuit https://www.eff.org/sites/default/files/filenode/09-55902.pdf https://www.eff.org/sites/default/files/filenode/09-55902.pdf “Appeals court rejects record label’s effort to neuter DMCA safe harbor” http://arstechnica.com/tech-policy/2013/03/appeals-court-rejects-record-labels-effort-to-neuter- dmca-safe-harbor/ http://arstechnica.com/tech-policy/2013/03/appeals-court-rejects-record-labels-effort-to-neuter- dmca-safe-harbor/

19. Enter Statute: Non-commercial User- generated Content, S.29.21 Copyright Act Non-commercial user-generated content 29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if (a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes; (b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and (d) the use of, or the authorization to disseminate, the new work or other subject- matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject- matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

20. The buck stops here… “Judges as Bad Reviewers: Fair Use and Epistemological Humility” Rebecca Tushnet, Georgetown University Law Center “…the future of fair use as a formal doctrine in the United States depends on whether judges act like bad reviewers on Amazon.com, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging.”

21. So What Exactly Does This Have To Do With Video Games??? EVERYTHING. GAMES ARE AND REMAIN AT THE CUTTING EDGE CROSS-ROADS OF FREEDOM OF SPEECH/ EXPRESSION, COPYRIGHT/IP & CONTRACTS. NO LENS FOR THE LAW IS CLEARER OR LESS FORGIVING BECAUSE VIDEO GAMES IMPLICATE CREATIVITY, INTERACTIVITY & CUTTING EDGE TECHNOLOGY LIKE NOTHING ELSE DOES.

22. Tim Luck… (in memory) …

23. Finis “I have learned much from my teachers, more from my peers, but from my students most of all” (Ta'anit 7a) THANK YOU…

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