People play online

…they play with each other. Peer-to-peer. Person-to-Person.

To some, this is a revelation. But we will return to that.

First, back to me…

I’ve not blogged properly like forever, well except for the other day, so this will be a splurge:-

Thanks to my wonderful friend Dr Aleks Krotoski and my equally wonderful co-author Dr Melissa de Zwart, Dr de Zwart and I have a paper out in the current special edition of the International Journal of Internet Research Ethics Issue 3.1, December 2010.

The paper is titled: The Duty To ‘Play’: Ethics, EULAs and MMOs. It examines some relationships between: play, contract law, criminal law, sports law, and research ethics (I’ll put the abstract as a comment to this post).

As great minds think alike Josh Fairfield, of this parish, has been working in a similar area. I’ve not read his paper yet, but you should: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1717057

The basic idea is one I’ve been formulating in bars around the world for some years now, so if you’ve been to a conference with me you’ve probably heard it in its drunken form – the paper is the sober version with the great help of a very clever lawyer.

For many years it has struck me as curious is that we don’t arrest boxers. What’s more this goes completely unremarked upon (in the main).

It has also struck me as curious that notions of human rights have been absent, or at least marginalised, in the discourse about virtual worlds in particular and online practices generally. I am happy to say that this is now not the case in the wider inter-governmental policy debate about the Internet (full disclosure: this is a debate that I now focus much of my time on through the Virtual Policy Network (tVPN) which I founded).

In the case of virtual worlds, issues have tied us up in knots of property this… and contract that... Pretty much every paper I’ve written in the area has objected to this rush to view all issues through the lens of commoditization. To a degree the discourse has been forced on the academy, as it is the frame that commercial actors have chosen to exercise power, so it is only right we debated it. And debated it we have. I’ve always felt that we have pushed human rights to one side but I’ve long suspected we can throw them a life belt in the form of sports law.

So why sports law?

Because it is where play meets statute.

And chaos does not ensue.

To dig just a little deeper into this – play came before law. Now, while much of the codification and institutionalisation of modern (Western) sports took place in the late 19C in a particular socio-cultural situation, specially the English class system, the hierarchy of heuristics and the interfaces between layers of governance structures is largely the model we use today (see, for example, applicability of R v. Coney (1882) 8 QBD 534).

What this set of legal-cultural structures does is fit around sport. In a sense sport, as a form of play, just happens, these structures are careful not to get in the way other than where exceptions occur, and then (on the whole) the right structures intervene in appropriate ways. From referees to criminal courts there are layers of sanction appropriate the infraction. What’s more much of this exist within an international dimension.

To put it another way, law, and its interpretation in the context of the cultural practice we call sport allows people do things which in one sense are very odd e.g. hitting each other some time so one person dies; but in other senses is the least odd thing we do (see animal play etc).

At the same time law establishes limits. But these are fluid, negotiated, and they are rooted in practice and tradition rather than simplistically imposed upon it from outside. A foundational case in modern law that applies a legal heuristic to this is Regina v Cey 48 C.C.C. (3d) 480, which concerns the legal boundary of violence in ice hockey. The judgment and established tests around the limits of what ice hockey players can reasonably consent to, what they can reasonably expect to occur to them and what they can reasonable do taking into account written rules and practice. Using the logic from Cey - try to bring action against someone for pushing you over in an ice hockey match people will laugh at you, if you do so in respect of seniors’ bowls people will not.
   
     
Returning briefly to virtual worlds, there are strong parallels. Some of the things that go on in virtual worlds can been seen simply as age old play using new tools. As such there are some questions that seem best answered by looking first at the practices that occur and in particular the reasonable expectations that actors may have. Indeed we have a growing number of cases where courts have done this. For example cases where someone has alleged a ‘theft’ of virtual goods. Some providers have held to the line that the contract and IP law is all, that there was nothing of the player’s to steal hence they have no duty to act. However courts, mainly in Asia – but increasingly (in some criminal matters) in the West – are starting to find that what looks to those who care to be theft is indeed theft. That is practices, their attendant semiotics and values, have legal primacy. Not contract. Not property. But what people actually do.


I view Virtual worlds court cases as important because of what they say about our view (especially our legal view) of what it means to be a human in a mediated environment. Hence cases that reduce all rights to property, that reduce speech to IP, etc worry me. So where does the EULA overturning cases point?


If you hung out with me in bars last year, you’d hear me going on about how we need to bring the notion of play into human rights discourse. This was sparked-off  by Prof Bartle and I talking with the Council of Europe about their recent interpretations of the European convention on Human Rights, in particular: Human Rights Guidelines for Online Service Providers (see tVPN page for links and summary). While I like the Council of Europe’s general stance on rights and their eagerness to look at areas where little rights work has been done, including ‘emerging’ technologies like games. I do not think that in this case they have understood that online play represent a cultural shift that has profound impacts on in interpretation of rights. Here is why…


People Play online.

They play with each other. Peer-to-peer. Person-to-Person.

This is important.

I kept telling people this in bars.

Let’s think of acting - just like we don’t arrest boxers, we don’t hold actors to be bound to a contract that we might clearly see them make on a stage in front of our very eyes. We don’t arrest actors in Schindler's List for anti-Semitism. Acts are not just acts they have semiotic content - they are meanings in context, in other context they have different meanings. Again, just like the physical act of hitting someone or tackling them to the ground.

Another important similarity between sport and acting is that the way we should interpret acts is heavily signalled to us. There is often a theatre, a stage, costumes, a beginning and end. Yes, if you will, a magic circle is well defined and protects the acts within its bounds.
 
But what happens when the signs are vague and hard to read? When the practice, particularly the play practice, is well established by those that engage in it but may be completely unrecognised by others? Don’t we still have to protect it? Don’t the actors still have a right to play? Or does there need to be an audience to make play legitimate?

At this point people looked at me blankly and told me this is a lovely idea but it has no application.

Then someone tried to take a plane in the UK. But there was snow. We don’t ‘do’ snow here. 

Specifically (details and quotes via Jack of Kent), Paul Chambers on 6 January 2010 tweeted: "Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"

On the 10th May 2010 he was convicted of an offence of sending, by means of a public electronic communications network, a message that was grossly offensive, or of an indecent, obscene, or menacing character contrary to Section 1271(A) and (3) of the Communications Act 2003.

“We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgement, menacing per se.”
[…]
Although the offence does not require the message to be seen, we take the view that an ordinary person seeing this, and we have no evidence that anyone did, would see it in that way and be alarmed.”

To anyone that follows Mr Chambers I’m sure it was clear that the tweet was a joke. Indeed to an average user of twitter it is pretty clear several hash tag based campaigns evolved around the so-called ‘twitter’ joke.

In a sense the judgment is good as it seeks to include the view of the ‘ordinary person’ – however of course it fails on two counts. First it does not seem to be the actual view of ordinary people but the view that a judge has of what ordinary people might have. Second, is an ‘ordinary’ person the right person to use as a yard stick. That seems like using me to judge what is good sushi. Ordinary does not come into it, what is needed is qualified, as the very point of a playful act (in this case the linguistic play of a joke) is that it’s a play between the teller and the receiver (there may be Lenny Bruce parallels here but (a) I don’t know the details of the case (b) US 1st amendment law is very specific in its sense of what constitutes speech and related rights).

Which brings us to a broad question of what rights we have to play where the games are between relatively small groups of people but occur in online spaces that have the odd property of being not fully public or private – a kind of online non-place to use Augé’s term.

Lastly this also touches on the other broad thesis that I’ve been mulling over for some time: that more and more we are returning to the ethics of the village. Where indeed people might do things that are kinda private to them but also kinda in the view of a wider community but possibly in view of people that know little to nothing of their customs.

As more and more this is what we do, in chat-rooms, MMOs (RP particularly), MUDs, Twitter, Facebook etc. We do things in small groups that when other see, they don’t ‘see’ or they go ‘huh’ or ‘wtf’ or ‘I’m reporting that’. Of course I’m not saying that any two or more people can call any practice a game and literally get away with murder. No, as sports law tells us there are bounds and there are ways to deal with them. In the main this is not what we are doing.

In short, when human rights are applied to online spaces we must remember that what we are looking at may be play and that makes a difference.

 

Comments

[Ren Reynolds]

1.

The Duty To ‘Play’: Ethics, EULAs and MMOs

ABSTRACT
In the last ten years, there has been a steady increase in the attention paid to Massively Multiplayer Online Role Play Games (MMOs) as a site of academic research. A number of large and influential academic studies have been undertaken in a range of disciplines inside MMOs such as EverQuest (Taylor, 2006), Star Wars Galaxies (Ducheneaut & Moore, 2004), Lineage I and II (Steinkeuhler, 2004) and EverQuestII (Castronova et al, 2009). Generally, these studies require the researcher to be embedded in-world, participating as a player in the game. In this paper, we ask: what bounds on research, if any, are ostensibly set by the contractual terms of service of MMOs by which all participants are bound—in particular the duty to “play”; whether this has any problematic bearing on the practice of research; and, if so, whether there are solutions to these problems? This paper will consider the contractual terms used in the End User Licence Agreements (EULAs) of two MMOs, EvE Online and City of Heroes, in order to further explore the practical implications of those terms. This paper concludes that researchers need to consider whether their research is ethical, both in terms of formal compliance with Institutional Research Board (IRB) requirements and how it may impact upon or disrupt the player community. If it does have a disruptive impact, this may take the research not only outside the notion of ethical research, but also outside of the concept of “play” authorised by the EULA itself.

[Bhagpuss]

2.

While I concur with nearly all of that, I just wanted to comment that as a resident of the U.K. I did feel that the judgment concerning Paul Chambers' tweet made me materially more safe.

Of course it was a joke. It was, however, a joke that could potentially close an airport (ironically, since the cause was the airport being closed in the first place) and cause massive inconvenience to many people. It's a joke, too, that if allowed leeway could act as a smokescreen for something a lot less amusing.

I'd prefer people used more self-restraint and simply avoided making jokes of this nature, but if they can't then that's what the authorities are there for; to enforce restraint on the behalf of the rest of us who don't share the joker's sense of humour.

[Pseudonymouse Rex]

3.

"That seems like using me to judge what is good sushi."

As we know nothing of your sushi eating habits, nor your ability to distinguish good food from bad, how is this a valid analogy.

[Ren Reynolds]

4.

Rex - mb bad. I edited out the next line which pointed out that I don't like fish at all.

[Doom Lux]

5.

Bhagpuss, I believe you're missing a major takeaway here: the reason there's ambiguity about Paul Chambers is not because of the content of his Tweet, but its context. Twitter and other social media platforms are have been shown to be analogous to performance spaces where different rules of conduct apply. His example of not calling actors in Schindler's List anti-Semites is perfect illustration. The internet is a new performance stage where the rules and mores cannot be defined as perfect analogs to the real world. Hence the problematic current situation

Also, if you believe humor ought to be censored in order for you to feel "materially more safe" then you should probably reflect on your life a bit.

[Richard]

6.

This is an area traditionally covered by (for plays) "the fourth wall" and (for games) "the magic circle". Given that "the magic circle" is non-existent for people who willfully commodify the play of others, and that it only exists for regular players when they will themselves to believe it's there, there probably is a need to explain all this without reference to it, which is what your paper seems to do (I've only glanced through it at the moment); so that's good.

I covered some HR material in a talk I gave in Sweden last year, which I didn't write up but the slides are at http://www.mud.co.uk/richard/VisbyHR.pdf. Some of it is from other talks and lecture notes, as it was for undergraduates taking a HR and Games course (yes, Gotland University has one!) but it covers a wide field.

I suppose the only point from it I'd like to make here is that yes, human beings do have a right to play, but we shouldn't, in our rush to recognise this right, forget that they also have a right not to play.

Richard

[Ren Reynolds]

7.

Richard,
What element of the right not to play are you highlighting here. I guess there are a number of issues that come up (I quickly looked through your presentation). There is:

- not playing, in a way that in no way impacts the game or other players
- not playing that does interfere e.g. standing in the filed of play / on a stage (or in an MMO ;))
- not playing but being forced to be part of the game e.g. being bumped into by players (when you are not an ‘active’ spectator)

The twitter case seems to be one where someone is refusing to play an also imposing their non-play, or at least arguing the latter case above: that play is impacting non-players in a detrimental way e.g. airport being shut down, are you pointing to the rights of non.

Is it this type of right to not play you are pointing to?

[Richard A. Bartle]

8.

By the right not to play, I mean that whenever players start to play a game, that does not mean they must be forced to continue playing it irrespective of the effect of their stopping play on other players. If force (for example, the threat of being sued) is involved, then that would stop being play and start being something else (work, perhaps). I was making a general point, it wasn't about the Twitter case.

In the Twitter case, the guy who made the post did so in a context in which it was clear to those at whom it was directed that it was a joke. It wasn't "shouting FIRE! in a crowded theatre", in which the consequences are beyond a joke; no-one who had been reading Twitter feeds for long would have believed it to be a genuine threat, and no-one would have invoked a full-scale evacuation of the airport. It would be more like if you overheard someone in a pub saying they were going to blow up an airport; it's not even bravado, it's a statement of frustration.

Very bad call by the judge, I thought...

Richard

[Sports Bet]

9.

Basically games online is a way of finding friends around the net. In some cases kids play online to escape household chores. The other reason is they get addicted on to it.