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
• 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
• Wednesday 4/3: Livestream 4 PM PST – ―Appropriation
Art‖ (HLS Copyright Course with Prof. Terry
Fisher)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
• ―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/
• + ―Egyptian protestors trade 'Harlem Shake' taunts with
Islamist regime‖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

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. 1st 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. 1st 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/
• Bruce Springsteen SXSW keynote @ 24:27 - 26:40 & 27:35 - 30:00
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. 1st 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. 1st 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
PenatalogyAbella 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/
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/

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
Stateshttp://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
9th Circuit 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/

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…

24. Our Academic Partners