One of the issues that has come up in the discussions around the UK Government's consultation on consumer rights in digital stuff is the notion of a reasonable remedy. In the case of online games - what's reasonable?
For the background on this see my TN Post: UK Consumers have rights over you
And the very detailed tVPN post: UK Content Rights
In the case of quality issues with digital stuff the consultation document talks about 4 R's: repair, replace, return or reduce price. But would a player of an MMO or other online game want any of these R's if there were certain issues with the game, are there remedies there a more reasonable, more appropriate?
Here's a scenario: you buy a game and get ready to play it on the opening night - the authentication servers are borked all weekend so you just can't get on.
What compensation should the players get?
Note: assume that the consolation makes it through the legislative process and becomes law - in which case it is very likely that there will be a statutory obligation to compensate UK consumers, so I'm asking what compensation not whether there should be (see previous post for that debate).
My assumption is that most players will not want to replace or return the game, the repair will come in virtue of serves and load finally balancing. In some instances, such as a subscription service, it's possible that players may want to claim a reduction in costs in proportion to the time that they could not access the service - but is that really going to make any one happy?
One of the issues of not getting in at launch is that you don't get that launch weekend fun. You also start to fall behind friends / guildees - its not easy to think how that can / should be compensated. A thought is something like and XP bonus that helps speed people through the game so they can catch up - but that feels like tampering and messing with game balence that might work to peoples' detriment. So what to do?
The UK is considering a set of laws that give consumers rights over the providers of digital stuff. These new consumer rights will blow a hole through EULAs and side step a whole mess of intellectual property law. All UK consumers of ‘digital content’ would have these rights irrespective of where it’s provided from, the rights cannot be contracted out of, and the remedies apply to content providers where ever they are.
In short, if you are a game company based anywhere selling to the UK - you need to pay attention.
This is a consultation so none of it might happen. Actually that’s not true. The first option will happen as an EU law has been passed that gives consumers greater rights and this includes the digital domain.
This is a consultation so most of it might not happen. But if it does, this is what’s being proposed:
This is the big change. The proposal suggest that when a consumer gets a digital thing they should have a reasonable expectation of what that thing is. Just like any other good or service they would buy in the UK.
Seller has go to have the rights to sell it to you – so when Amazon removed Orwell’s 1984 from people’s kindles, that was their bad and the consumes should have got compensation
Is what it says it is – so if I buy something and THEN find out I need some specific player for it, that’s your bad not mine as you should have told me.
Uninterrupted use – so you know when Sony patched the PS/3 so you could not longer run Linux on it. Yeh, they can’t do that any more, as they sold a device that ran Linux and that’s what consumers paid for. The consultation does note that things change, and that’s fine, you just can’t suddenly remove valued features.
It’s basically gotta work – here things get tricky, but basically UK Gov are saying that there’s a reasonable expectation that, allowing for the usual bugs, digitial stuff has gotta be a certain quality
Paid for version is the same as the trial – ok, the trial might be limited but you can’t have a demo that’s substantially different from what people pay for.
And just in case you thought that some things might not full under this, the documents give all kinds of examples:
The rights against providers that customers may have are:
So, wow, the UK government are treating digital stuff just like other stuff. No EULA or IP trump cards. I'm sure there are a lot of happy consumers out there, but industry, how happy are you? Unreasonable burden on business? Have Koster's rights of the Avatar finally come to pass?
Note the full document is over 250 pages long, so for a very detailed analysis see the summary over at the Virtual Policy Network: http://www.virtualpolicy.net/ukcontentrights.html
tVPN is also putting together a civil society / academic response on Google Docs.
Your local trade association might be doing on too – see UKIE in the UK and ESA in the US.
The full consulation can be found here: http://www.bis.gov.uk/consultations/consultation-rationalising-modernising-consumer-law
Since 2007, by Game Industry Promotion Act and its implementing decree, S. Koreans should not do business for exchanging or mediating exchanges of, and repurchasing in-game money or data like in-game items that are produced or obtained by copying, adapting, and hacking the game program or by way of abnormal game-play.
The word of 'by way of abnormal game-play' has been generally understood as 'using Bots in game', and many sweatshop owners and RMT dealers who broke the law were punished.
On the other hand, Supreme Court of S. Korea ruled that RMT itself is not totally banned by this act in the sphere of MMORPGs where in-game items are basically obtained by sweat, not by luck. So, RMT dealers can buy and sell in-game items as far as those are produced and obtained by normal play.
In summary - human play : normal(OK) vs. Bot play : abnormal(banned).
But, practically, it's not that easy to tell Bot play from human play. Korean government have been worrying about the growth of the grey market of RMT and the crime related to this. Government agency assumes that 60% of RMT in korea were unhealthy one.
To cope with this matter, the Ministry of Culture, Sports and Tourism just now amended the implementing decree. Next july, the revised implementing decree will be effective. This time, Korean government enlarges the scope/depth of the word 'abnormal'.
Using the others personal information & Doing for a business also belong to the scope of 'abnormal'.
In summary - amateur play : normal vs. pro play : abnormal
(Probably the first 21th century law that is Johan Huizinga's Magic Circle graven on)
According to korean Value Added Tax act, anybody who supplies goods or services for business and earns more than 12,000,000 won in 6 months should register as "enterpreneur". Enterpreneur shall be liable to pay VAT. This new Implementing Decree do not permit game player be the enterpreneur of VAT act.
This is the end of my brief introduction to the new game law of S. Korea on RMT.
For me, it seems somewhat odd and interesting that Korea recently enacted another law called E-sports Promotion Act. The definition of E-sports is 'through the medium of games, human compete for the record, or win the game against human'. Of course, Main purpose of this act is to assist pro-gamer who play StarCraft, Dungeon & Fighter etc for a living.
Earning REAL money from the inferno be banned, while from the space is not.
Relating news(translated by google)
Former relating posts.
http://terranova.blogs.com/terra_nova/2006/11/korean_national.html
http://terranova.blogs.com/terra_nova/2007/05/s_koreas_bancan.html
For the last year or so the Virtual Policy Network (that I founded) has been working with a group of good people (the Virtual Environment CoLab) and the IEEE on the slow march to establishing a set of Virtual Environment practices and standards.
We are having an event in LA in September – you can come, in fact if you read TerraNova you probably should come as you probably care about Virtual Environments as much as us.
The event is NOT focused on tech standards. What we are doing is setting out a set of social challenges and getting a bunch of experts to come up with solutions that harness Virtual Environments.
The event is titled vPEARL (Virtual Play Exchange Advise Renew Learn), it’s going to be on 20-21 September 2011, Los Angeles, CA in the USA. Registration is $150 and spaces are limited to 100.
The official event page and regisration is here: http://standards.ieee.org/news/vpearl/index.html
I will be intense and fun. You will get to see my shoes. Come.
You can’t get arrested for using BitCoin (yet) but you probably can for that pun.
To get to the point - I'm worried about BitCoin.
First, for those that have not been following the related tech and now politics news and can't be bothered reading www.bitcoin.org: what is BitCoin?Well, it is a non-fiat, non-centralised electronic currency. That is, BitCoin is not issued by any government; nor is it generated centrally by some other authority; and it does not have any physical manifestation. Technically BitCoins are digital files that sit in a distributed peer-to-peer database that use electronic signatures hence encryption as a fundamental to several aspects of their function. All BitCoin transfers are made public but the parties to the transfer are not. BitCoins can be bought (form those that have generated them) or self generated. Generation occurs through a process termed ‘mining’ which is getting ones computer to solve a hard mathematical problem, the problem is sufficiently difficult that there is an infinitesimal chance that ones computer will solve it at any one try, what’s more the difficulty changes with respect to number of factors such as time - there’s also an on-going process of creation, but let’s not get too into the details.
On the face of it BitCoin seems like other electronic currencies – such as WoW Gold. However there is a wide variety in electronic currencies and BitCoin is not quite like others.
So, BitCoin is like the kinds of virtual currency we are used to talking about on TN in at least a few relevant ways: it’s not backed by any asset or state, it’s electronic and its value is determined by the market (though this is increasingly true of most types of currency). Having said that, the kinds of currencies we talk about here are not as similar as one might think, here is a quick (non-exhaustive) run down of what is out there in currency land:
Fiat currencies - Those issued by states like China’s Renminbi, or the UK’s Stirling.
Hard Electronic Money - Electronic money systems where exchanges are non-reversible – these come in several types depending on what they are based on. Thus an e-currency virtual wallet on a mobile phone and BitCoin are hard electronic currency but the former has value in virtue of is representing fiat currency value, the latter’s has value do to the belief in the value of the currency in-and-of itself.
Soft Electronic money - Electronic money systems where exchanges are reversible, again there can be multiple types of Soft Electronic Money but the ones I’m aware of stand in for fiat currencies e.g. PayPal.
Closed economy game / social currency - A ‘currency’ that is limited by contract to only be used in a game. Technically these are not currencies but rather a limited license to use an element of a game or social network which themselves have no inherent value and there is no guarantee of access or redemption. Though, in practice, of course these are often used as tokens of exchange. An example of this is WoW gold.
Ingress-only game / social currency - An ingress (my term) currency is the same of a closed economy but the ‘currency’ can be. Note the property of no guarantee of access or redemption is retained even though a user may think they have purchased the right to access the ‘currency’ and trade it for electronic goods such as games or clothes. See Habbo Hotel, Xbox Points etc.
Exhalable economy game / social currency - This is a ‘currency’ that can be both bought and sold but does not legally retain value. For example, a Linden Dollar is traded as if it holds value but legally what is being traded are limited license to use elements of software that have no guarantee that they will exist over time and explicitly no inherent or redeemable value.
Semi-regulated game / social currency - This category is more about the state in which a currency persists rather than, in part, the currency itself. For example China and Korea have laws pertaining to in-game currencies that regulate their use – in the case of China this banned the use of QQ Coin for consumer to business transactions, in the case of Korea it enabled the sale of in-game currency between players.
Other - I’m not quite sure where EvE Online sits with the invention of PLEX (Pilot License Extension) as this is an in-game object that represents game time, which in turn has a direct financial value, so it’s kind of a in-game but ingress-by-proxy-feedback-something-currency.
So BitCoin is kinda like other currencies you might be aware of. One similarly that you will have spotted is that generated BitCoins is like bot-grinding i.e. you set your computer going at a mathematics quest and it has a chance of getting a loot drop but the probability changes based on certain game factors.
It’s the ‘kinda’ that worries me. As I hope my list above illustrated as soon as we move away from fiat currencies the exact different between one thing that looks like a currency and another gets rather complex.
My worry is the one I’ve had for some time, as all this virtual stuff starts to get more political and media attention the chances of staggeringly bad regulation and statute rises. Now, I’m all for regulation when it’s appropriate and regulation of virtual world / social media currencies may be a good thing – especially to protect consumers (ingress-only currencies already seem to be out of step with EU consumer law if you ask me). But the level of literacy about the complexities and social practices that surround things like virtual currencies is worryingly low. The Internet is a series of tubes remember.
So far we have a senator in the US, Charles Schumer, talking about BitCoin though largely in relation to allegations first made in Gawker about the use of BitCoin to purchase drugs on SilkRoad and suggests BitCoin is used for Money Laundering. LulzSec say they have received USD $7200 in BitCoin (http://twitter.com/#!/LulzSec/status/77771916794011648) which is sure to upset many.
If people like Schumer make moves for an outright ban of a class of currency it’s in everybody’s interest to carve out a space where virtual currencies can exist. One way might be for us to come to some agreement about how we would characterise virtual currencies as a matter of law – that is not argue over whether these things are property or not but provide a positive workable legal definition of what a virtual currency is that can be dragged and dropped into any putative legislation.
See tVPN’s work on virtual items and currency as a background doc: http://www.virtualpolicy.net/wp-virtual-items-public-policy
Producers and users of virtual spaces are heading toward difficult times. These could be made worse through increased regulatory intervention by various countries. I suggest that it is in the best interest of users, produces and nation states alike that those online service providers that use virtual items and currency form self-regulatory body. I suggest further that sport provides a ready-made governance model that the online industry should adapt and adopt.
I thus propose the formation of an: Online Dispute Arbitration Board (ODAB)*
*An academic treatment of this was first presented at The Game Behind the Game by myself and Dr Melissa deZwart.
Individuals are investing time and money into virtual items but when things go wrong they are seemingly left with no rights and nowhere to turn other than the law. That is there are a number of circumstances where individuals lose access to virtual items or currency in a way they feel is unjust.
Courts and statue are increasingly recognising this position unjust and are finding in favour or users.
This has created a difficult situation where virtual items have a heterogeneous set of rights, which differ widely from jurisdiction to jurisdiction, associated with them. What’s more as the industry grows; cases become larger and more frequent; and, more property like attributes are associated with virtual items - heavy handed regulation that looks very much like real property and / or currency regulation will appear more attractive to lawmakers. This is especially the case as virtual itmes are no long restricted to MMO's or other online games.
Such regulation is likely to have a chilling effect on the industry especially innovation and thus will reduce the choices open to consumers. That is if the regulation is not written such that it inadvertently decimates one corner of the industry that fell outside of the model that law makes had in mind at the time of drafting.
Thus what is required is a system that can provide justice to the individual while not requiring a potentially problematic and inconsistent statutory definition of virtual items – a seemingly intractable problem.
The way to square the virtual item circle can be found in the regulation of sports.
There is something odd at the heart of many sports. However this oddness is so normal that we often forget that it is there. That is, in many sports people regularly do things that would be illegal in any other circumstance. In contact sports, say boxing, people hit each other with intent to hurt. In some cases people die through these encounters; however, just so long as the rules have been followed no one is arrested. Indeed the very thought of walking onto a sports field and arresting everyone for assault is ridiculous.
What sports law and sports governance do is provide a highly sophisticated normative influence on the conduct of sports and sports people. Governance is layered – there tends to be: in-game governance by officials, sometimes with replay facilities, club / league governance, national governing bodies, international sports federations and the international court of sport. The officials tend to ask ‘was act X within the rules’, layers above this tend to decide questions such as ‘was act X so outside the rules that other action is needed’ and ‘in judging act X where the rules applied properly’.
What’s more these structures do not preclude either the intervention of statutory bodies or appeal to such bodies. Hence if one player strikes another player the following layers might apply:
Official: Was it within the rules > no action
Official: Was it outside the rules and impacted play > in game sanction
Team / League: Was it far outside the rules > fine / suspension
Statue: Was it outside what could be reasonable expected / reasonable consented > criminal offence
Similarly if a player disagrees with a decision they may take it through the governances system on the basis the rules were miss-applied, similarly the may (and do) take legal action on grounds such as breach of contract – where a sporting body is seen as having a contractual duty to apply its own rules.
What is key in all of this is that there are a whole set of acts that are judged contextually. Thus in a game of physical contact it is only in the very extreme cases when the question ‘was that contact assault’ ever relevant – even though in any other circumstance it would be.
Hence the legal status of the act is purposely left under-determined, as a determination is not required for most normative purposes in the given context.
Both the philosophy and structure of sports regulation can be applied to virtual items.
There are not direct parallels for each layer of sports and online services but an approximation is as follows:
Match official < > Guild and / or GM
Team < > MMO Publisher
Sports Governing body < > Online Arbitration Body
The primary function of the arbitration body would operate by assessing incidents where an individual was denied access to virtual items in a way that they felt to be contrary to the sprit of the rules outlined by the service provider in question.
In the case of both games and non-game online services that utilised virtual items this would include incidents such as:
In the latter case the perpetrator may also face criminal proceedings the arbitration board though would operate in respect of the return of the items to the victim – something that may (or may not) fall outside the view of the criminal justice system.
Appeal to the arbitration board would typically be defined within the Terms and Conditions of the service provide but would only be applicable when the providers internal appeals system was exhausted.
Appeals may require a fee on behalf of users to cover, in part, administration costs and, in part, as a way to dissuading frivolous uses of the system.
The kinds of outcomes the board would determine would include:
Cheaper - Arbitration tends to be cheaper than law. Even when quasi-judicial bodies are established these tend to be less costly than legal actions. Further, the existence of an arbitration body does not preclude the option of legal action, as we see in sport.
Better - Assuming that ODAB can attract the right mix of individuals it should provide a better process than the courts, at least in the short term. This is because, as with sports, ODAB will have individuals that understand the details and culture of online games, hence will understand the issues at stake for all the actors.
Regulatory burden - A governing body that has normative power on players and publishers relieves the burden on states, at least in part, from enacting legislation and creating statutory bodies to deal with the issues that begin to arise in greater numbers from online games. This is particularly important as online games tend to be international and states tend to act first on a heterogeneous national basis and then take some years to come to forms of international consensus – all of which is time consuming and costly.
Regulatory peril - From a publisher’s perspective, an independent arbitration board may give states confidence that citizens will be sufficiently protected as customers of online games such that they do not need to pass the legislation and create statutory bodies noted above. The peril for publishers is that any such action runs the risk of having serious intended or unintended consequence on the industry as it is hard to pass laws that capture the nuance and dynamic of individual games. Here again the sports model is apt as states tend to regulate by law the rules of individual sports.
Insufficient volume – currently there is a low volume of disputes that are taken to court hence costs of any arbitration body are likely to outweigh any savings from the few disputes it might hear. As stated aboveI feel that the number of cases will increase but we concede that it is difficult to know when the best time to set up an arbitration body would be and that it may initially be financially inefficient.
It will be ‘griefed’ – almost all systems of online game norming are exploited by some players, the same will happen with an arbitration board with players simply wanting a cheap way to grief publishers. The scope of the arbitration board must be defined such to filter out griefing, for example a rule would be that publisher’s dispute systems are fully exhausted before the arbitration body is evoked, fees may be involved, cases may be publisied.
There is no publishers’ association – the online game industry has no recognised body hence it is unlikely that publishers will recognize the arbitration board. Initially the arbitration board will have to work directly with publishers and existing associations e.g. some publishers of online games are members of general publishing associations such as UKIP in the UK and ESA in the US. More broadly the lack of self-identification of online publishers is seen as a barrier to the creation of an arbitration body.
It is not peer based / lack of player representation – it is likely that the body will be made up of publishers only hence will be bias and fail due to lack of credibility. This is a challenge for the body especially as funding is likely to come from publishers. Thus the constitution of the body that publisher agreed to must ensure representation of players either through other bodies or non-publisher individuals.
Some form of arbitration system to resolve serious disputes about virtual items is the best mechanism for users, publishes and nation states as it provides a contextual, commensurate way of determining just remedies in an increasingly important aspect of many peoples lives without the necessity of legislators to try to understand and regulate an ever changing, complex set of online relationships centring on virtual items.
… but that’s ok.
A long long time ago in a paper far far away (Reynolds 2003 – Commodification of Identity in Online Communities) I went on about how if items in virtual worlds could be seen as property but they probably had a unique set of properties that related to the potential harms that could be associated with them. I also said that avatars were different (Reynolds 2003 – Hands off MY avatar).And, I said, and said again that this would NOT be decided by an IP lawyer or case but something else, probably divorce of or something where a judge would look at what was happening and what people valued and not obsess about IP law.
My general thesis is that looking at virtual items as IP wrapped in contract is just wrong. Much of the argument about this has been framed by IP and contract law which I’ve always objected to as it’s simply an application of the principle that if you have a hammer everything looks like a nail, and IP / Contract law is a very good legal hammer. As I’ll get into below just because two things share some properties e.g. being physical and portable or intangible and non- rivalrous, does not mean they have the same legal or specially property related attributes.
Those following all of my recent posts will start to see a pattern here – last post on play was about primacy of meaning, this post is about what the meaning of virtual items in games is, see where I’m going here…
So, this shift from IP / Contract interpretation actually started to happen almost immediately with: Li Hongchen v. Beijing Arctic Ice Technology Development Co. Ltd., where a company was ordered to return virtual items that were taken from a player’s account through hacking.
TN had some commentary at the time:
http://terranova.blogs.com/terra_nova/2003/11/chinese_gamer_s.html
http://terranova.blogs.com/terra_nova/2004/02/arctic_ice_sued.html
http://terranova.blogs.com/terra_nova/2003/12/virtual_propert.html
However I’m not sure if people read the judgment or just the western news reports as there was commentary that the case was more about Duty of Care than property. Arctic Ice was found to have a Duty of Care but the judgment also orders them to do a ‘return of property’ (google translation) or ‘return of belongings’ (bablefish). There is a summary of the case and the full judgment over on the Virtual Property Network: http://www.virtualpolicy.net/arcticice (tVPN is looking for native speakers of a few Asian languages to aid with research – contact me if you are interested (there’s no $ on offer at the moment, sorry)).
Following the Arctic Ice case there have been a bunch dealing with variously aspects of virtual items, in particular a 2008 case that found that a particular act of taking virtual items taken in RuneScape constituted theft under Article 312 of the Dutch Criminal Code.
We now have a UK case where someone taking virtual items and being found guilty of theft: http://www.develop-online.net/news/36921/Zynga-hacker-faces-jail-after-12m-theft thanks Jas http://www.gamerlaw.co.uk/ for the link. Here someone ‘hacked’ into Zynga (I wonder if in fact it was individual user accounts the news item is not clear) and transferred ‘virtual poker chips’ he then sold them to players on the ‘black market’. The old school way of dealing with this is to say: nothing happened here the IP is not owned by the players, the contract say these things can’t be bought and sold so you are all in trouble, and if there is anything bad it’s hacking. But no, judge said it was theft.
So, it looks like virtual items are something that more jurisdictions are seeing as capable of being stolen. This is an interesting move as it changes one characterise of virtual items. It might be seen as a perilous one as if items can be stolen does this mean that other attributes must be applied to them i.e. if they are stolen do the have the kind of value that requires a particular Duty of Care, specially does virtual currency become so currency like that virtual world providers have to take MindArc’s lead and become a bank?
This is a possibility but not a necessity.
What policy makers will need to be reminded of is that the word ‘property’ applies not to things but to a set of socially agreed characterises that we attribute to things (both physical and intangible) what’s more and what’s critical is that we don’t apply exactly the same attributes to all things that we might term property (or at least property like).
To illustrate this here is a table of some properties and how the variously apply to things (this is mainly under UK law by the way, so we have odd things about Organ Donation which has to be a gratuitous gift – hence the odd attributes of being Alienable in the sense of transfer of certain rights, but not for money).
This is a very quickly drawn and, I’m sure, far from 100% accurate table of ‘things’ and the kinds of legal attributes that have in a property-stylee
What I think is interesting to note in this table is the range of attributes that are applied to things that have the same or similar attributes looked at from an abstract perspective e.g. human organs and chairs are both objects that are portable, but we treat them very differently. Of course we do, you might say. But there is no ‘of course’ about it, the table above has been negotiated over many years and is still shifting.
There is not room to go into it in detail here but laws in respect of the human body and parts thereof are fascinating and labyrinthine. In this area whether there is property in something, who’s property that is and what rights are granted depends on a huge range of factors such as: what the thing is - body, re-generative part (blood), non-regenerative (heart), reproductive (sperm); who the actors are and how they stand in relation to each other - individual, institution, parent, other genetic relative; and, what they want to do - give, use, buy, experiment, commercially exploit products of research etc.
Added to this there are odd cases e.g. Mark Quinn’s work ‘self’ which is a sculpture of the artists’ head made from his own blood, which while being a Human Tissue was still sold as an art-work. Then there is the famous HeLa cell line case.
It’s not just squishy stuff that is weird – see: rights in actor’s digital motion capture and the Robert Patrick, Terminator 2 / Jurassic Park case.
The point that I’m ramming home here is that the way one should look at legal attributes of a thing is not to look at some material or other factors then on the basis of them look at the closest other thing and go ‘right, it’s another one of them’ – as we have with much virtual stuff. Rather one needs to look at the social role a thing plays and what the rights, duties, and potential harms to people are – then work out the set of attributes that balance these.
Another thing to not is the relationship between the legal attributes of a thing and the regulation of those attributes. Law of course is a regulatory force but it’s worth noting that there is a wide variety of statutory and non-statutory regulatory bodies that are involved in creating and enforcing laws and other rules.
Back to the squishy stuff – regulation of what can be done to the body or parts thereof falls to, among other things, the criminal law, sporting bodies, special bodies such as The Human Fertilisation and Embryology Authority.
So, is this what things look like now in MMORPGs in most jurisdictions?
I will spare you, good reader, a line-by-line, jurisdiction-by-jurisdiction analysis of this table (there some of this already over on tVPN, see tVPN White Paper on Virtual Items and Public Policy and tVPN Global Policy Updates). A little explanation might help though. I’m suggesting that Avatars, for example, are an are not Rivalrous because at a certain level they can simply be re-produced but at another level one cannot have items in a given name space e.g. multiple simultaneous instances of the same character name on an MMO server. I have also said that things like Virtual Currency have mixed regulation because virtual currencies are regulated in virtue of them being Intellectual Property and being on a server somewhere, however that’s not really regulation at the level of ‘currency’ whereas in places such as China Virtual Currency is regulated qua currency.
What’s next?
There will be a growing weight of cases that will increase the person-property like nature of virtual items. The EULA will matter less and less. The liabilities of providers will start to be questioned as the gap between the Duty of Care forced upon them by courts increases and the gap with the EULA gets greater. Government will seek to regulate both virtual currency and virtual items with greater force - requiring publishers to become more and more bank like. I do lots of blog posts titled ‘I told you so part n’.
There is an alterative.
Non-state regulation of virtual items!
The details of this, the why and how is what Dr de Zwart and I will be presenting at The Game Behind the Game. But before we stand up and do that, I wonder if anyone is on the same page or is there something I’m missing?
I humbly propose a new theory of what play is....
[edit 28 Feb 11: or do I...?]
I’ve never been fully satisfied with the definitions of ‘play’ and ‘game’ that have currency in Game Studies. Where I really have trouble is when I try to apply them to the fields of ethics and the philosophy of law in which I now tend to write.
In my recent analysis of sports law and the historical relationships between violence, criminal law and governance (focusing on duelling, boxing, rugby etc) I’ve been searching for an explanation of what is going on when sport is left to get on with it - free from ‘magisterial interference’, as the London Prize Ring Rules of 1838 put it.
I’ve touched on some of this in a recent post (People play online http://terranova.blogs.com/terra_nova/2011/02/people-play-online-.html) – but what I did not focus on there was a more formal characterisation of the thing at the centre of sport and games i.e. play.
Since Huizinga’s Homo Ludens (1938) there has been a modern academic debate about the meaning of ‘game’ and ‘play’. Readers not familiar with the history can quickly get up to speed by reading Juul’s excellent paper The Game, the Player, the World: Looking for a Heart of Gameness (http://www.jesperjuul.net/text/gameplayerworld/), and Malaby’s Beyond Play: A new Approach to Games (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=922456).
The cannon of theories all do useful jobs of work, however I feel that none of them successfully identified the correct underlying principles at the heart of play, or at the very least those that are operational when we look at play in respect of law and other forms of institutional power.
It seems to me that one core concept that explains what play is and how it operates should be founded on what’s happening at the semiotic layer. So let’s jump into my proposed definition (that will need a lot of un-packing):
Play is the recognised, negotiated, process of a purposeful shift in the dominant meaning; and contextual attribution of value, of acts.
Games are normative forms of play.
[28 Feb 11 ludic] play-meaning - the meaning that has been shifted or attributed
[28 Feb 11 ludic] play-semiotics - the system of the signs product through play
ludic-capital - the degree to which these ludic-meaning and semiotics are operational in a given context e.g. when set against institutional-capital.
[edit 26 Feb 2011:
ludic-intent - the intentional attitude we hold towards acts where the internal meaning and value we attribute to them has primacy over external ones.
ostensible-play or hollow-play - where the intentional attitude that we hold towards acts holds the external value of those acts over the internal values and meanings]
Magic circle - the term we use to denote the bounds of the context wherein the ludic-meaning of an act prevails over the co-existing non-ludic meaning (or lack thereof).
OK, let’s un-box that…
Act
I’m being broad in my use of the word act. I don’t just mean physical things but also, speech, thoughts etc. So I’m including word games and purely cognitive forms of play.
Meaning shifts and recognition
Where I’ve always started puzzling about play is by wondering what it is I recognize when I see play occurring, and how it is that this thing seems to have so much power. Back to my favourite example – in the normal course of events we don’t arrest boxers or rugby players for Battery. So what is it that they are doing that is not the same as people hitting or pushing each other?
Of course, as I covered recently on TN, they are ‘doing’ anything different at all. Rather they, the officials, the sporting bodies, the law, spectators and many that might just happen to see the event attribute a different meaning to the acts.
Moreover, in sport a lot of socio-cultural signalling work goes into pointing out that the acts in question signify something other than we might expect. Language is an important sign - we tend not to talk about rugby players pushing each other, we talk about blocks and tackles. In boxing we talk about jabs and under-cuts. Visual signs are also important - people are wearing unusual clothes, usual ones that are different from ‘ordinary’ ones, they in a marked space during a marked period of time.
What all this is doing is facilitating all relevant parties’ recognition of the meaning shift. Indeed, a more systematic analyses might reveal that there is a correlation between the strength of signalling and gap difference between the juxtaposed meanings i.e. physical contact sports require a lot of signals so we are very sure that they are not ‘just at fight’, whereas playing-field cricket with a tennis ball needs very few signs to protect it form external influence as the what’s at stake when ludic-capital fails to have force are very low.
I also want to note here that ‘recognized’ entails at lest some degree of being ‘conscious of’ – I will pick this point up more in the discussion of ‘purposeful’.
Negotiated process
Factors that are characteristic of the spectrum from free solo play to international sport are the parameters and processes of meaning negotiation.
In solo free play we create meaning: ‘this box is a castle, the cushions are my army, apart from that one I can’t reach, that’s just a cushion’ – here play involves the process of self negotiation of the signs we are attributing to artefacts, thoughts or acts. Knocking something all the way over with a ball might signify that it has been defeated, unless it falls against the sofa and does not fall over – then maybe it is defeated, or maybe it’s just injured and needs another strike to be defeated, maybe that will change in a few minutes etc etc etc.
When two or more people are involved in play they jointly consent to shift meaning and mutually give respect to the shifted meanings through the process described here. This may be a highly formal process involving actual contracts or unspoken and just understood through action. This mutuality is not perfect as the meanings somewhat internal to each individual. This is not a weakness in play or this proposed theory of play - it is an intrinsic characteristic and why negotiation is also intrinsic. Learning this is part of learning how to play.
Hence – when I mention shifted meaning or mutually understood meaning in a play involving more than one person, strictly speaking I’m allowing for non-perfect symmetry of meaning and negotiation processes (but that’s a bit long winded to keep repeating).
So, in some forms of play a sphere is play artefact that should be held or kicked in specific ways, and that getting it through hoop scores a point, and a point is valued more than not-a-point, and that if the ball goes into the road play stops for a while and there’s no advantage to either side because the road is dangerous, so the fact that getting the sphere might be dangerous often prevails over it being a ball (though of course not all the time – an area that’s particularly interesting when we think of injury and liability in ARGs and games that utilise the built environment).
This goes all the way to tacking someone in a game of rugby which can only be done in a certain way, too near to the head and it’s not a tackle, it’s ludic-meaning gives way to it’s non-ludic one: it’s an attack, or at least there will be some form of negation over the dominant meaning – ranging from unspoken thoughts and looks thought to court cases. For American readers - the NFL have recently re-interpreted what are “egregious and elevated hits”, issuing fines to those that fell foul of the new rules (http://www.nfl.com/news/story/09000d5d81b732df/article/anderson-on-flagrant-hits-no-new-rules-just-more-enforcement).
Dominant meaning
So, the process of negotiation is one of establishing which meaning; among many possibilities, is the dominant meeting to be attributed to a given type and token of act. In games and sport where this is well established, the emphasis of negotiation is in on whether individual acts fall within the parameters mutually agreed for the given type of act.
It is critical to note that the dominant meaning of an act for any given person or institution co-exists with other meanings, both those that are produced through play e.g. ‘I thought the ball was out if it was on the line’; and those that pre-existed e.g. ‘the man hit the other man’. The meanings given primacy and dominance through play exist in a complex, sometimes co-constructive, relationship to these other meanings. A relationship that can shift over time for any given act – see below for a little more on this.
Attribution where non existed
By ‘shift in meaning’ I include both: a shift from a previously understood meaning to a new one; and, a shift form there being no previous meaning, or an extremely diverse set, to a new mutually recognized. For example a sphere going through a hoop or between piece of wood tends to have no generally understood meaning – but in many games a very central and important mean is attributed to it.
Purposeful
As noted above the recognition of meaning shift implies that there is some consciousness of the process that is occurring. More than this, the process of meaning shift does not just happen to be occurring, people are actively doing it. So, to be playing you have to know you are playing – you can involve other people, such as in many Alternative Reality Games, but they them selves are not players unless they gain awareness of the game.
One of boundaries of my proposed definition is probably animal play and play in early childhood, as here I’m not sure what should be said about the nature of recognition or purpose as this gets into theories of self consciousness. I’ll probably defer to Winnicott here (http://en.wikipedia.org/wiki/Winnicott).
Dominant .. contextual attribution of valuation
Meaning and value are inter-twined, but in defining play it is worth recognizing what is happening to each. I’ve covered meaning so now let’s look at value.
Contextual attribution is where we are giving primacy to the internal value of an act rather than the externalities. Like with meaning, both exist and may be recognized, but are not on equal footing. So, running with a ball and kicking it though a net have the contextual values of being a goal, changing the score and determining which team may win. They may also keep one fit, make on happy, earning a living etc. Indeed these may be a motivation to play, but they are contingent to what play is.
This is important because there are things that look very much like play but are not play. For instance getting on a bus and taking a bit of paper from a bus conductor has many characteristics of play: the conductor wears a uniform, they give you a bit of paper you both call a ‘ticket’, the ticket has meaning within the context of the bus journey etc. However, in this case the value of the meaning shift (e.g. from bit of paper to ticket) is primarily instrumental, whereas one might play a game of collecting the very same tickets and seeing how many of what colour ink one could get.
What’s not in the definition?
The definition of play and game I’m proposing is one that characterises a process. This is because, like some others, I think there are attributes that are very often products of play or generally associated with it that are not themselves intrinsic to it.
One issue with many definitions of play is that they sought to draw a bright line between play and not play. This definition tries not to do that. The shift and primacy of meaning and value is to a dominant role. One thing that is important about this distinction is that the other meanings and values do not go away. A push in rugby is still a push - it’s just that in many contexts it makes very little sense (but still some sense) to try to give primacy to that interpretation (see Peter Ludlow’s From Sherlock and Buffy to Klingon and Norrathian Platinum Pieces: Pretense, Contextalism, and the Myth of Fiction for more on this kind of thing in a philosophy of language style http://alphavilleherald.com/images/various/Fiction.rtf).
From another perspective it is worth nothing that under this definition, play is a process that co-exists with many other things. We may be playing world of Warcraft at the same time that we are talking on the phone or doing our day-to-day job, but the meaning shift that is going on in respect of pixels and xp is still occurring.
That is play is something that when doing we are also not doing.
We can be playing and thinking about our tax return, which is not play. So the dominance of meaning, or the ludic-capital of play, is not absolute. In the case of a sport, especially highly organized sport, ludic-capital tends to be fairly well signalled and bounded in space and time. Though there are still areas ripe for negotiation e.g. the player that hits another player just after the final whistle – the type of case where the lack of an absolute notion is clear as the socially constructed understanding of the act and the relative power of institutional v. ludic capital will determine which meaning prevails, till the case goes to appeal…
Dear Thomas
And this all ways brings my back to a conversation I’ve been having for years with the esteemed Dr Malaby, see:
Thomas and I agree on a lot of things. In particularly Malaby explicitly resists the notion of play as a exception and thinks of it as process. Initially I thought that adding ludic intentionality to Malaby’s definition would make it fit for purpose, but that felt wrong as the notion of ludic is part of what one is trying to define. What’s more I feel that the focus on ‘contingency’ is useful, but meaning is where the action is at.
Putting the definition to work
I’m now going to apply the definition I’ve proposed to a set of related concepts and debates about play. Given the space I’ve already taken up this is going to be really superficial but will indicate the direction in which I’m thinking and the way I apply the theory – of course, you might buy it but apply it completely differently. I kinda hope you do.
Game
The definition of play that I’ve proposed includes the idea of value. I believe that games and sport are forms of play. Hence in the discussion above I have tended to move between them in the examples given.
As asserted above: Games are normative forms of play. What I mean by this is that in what one might dangerously term pure-play the values that are given to meaning have significance in respect to the in-play and not-play contexts but much less significance, in terms of ranking, in respect of each other. In games the relative value of meanings within the context of play are very important. So the difference between the ball going through the hoop and not going through it is characteristic of a form of game. That is, the norms in question that are the defining characteristic between play and game are internal to the game. It may be, and very often is the case, that these norms gain external recognition (indeed I’ve argued that they can become moral norms: MMO’s as Practices: http://www.mendeley.com/research/mmos-as-practices/) but that’s not an intrinsic quality.
This tends to lead to codification in the form of rules and governance. But it is not, as some might argue, the rules that are important but the play norms that they codify. Similarly it’s not the outcome of a game, as such, that is an essential characteristic but the possibility of an outcome distinct from another. I realize I’m splitting hairs here.
Like most other things here this difference between play and game has its clear-cut cases but as a general matter is somewhat fluid as the relative normative value of something within play might ebb and flow, so we might just play within the context of a game and play might turn into a game, it’s all about emphasis and primacy at any given time.
Law
The definition of play I’m proposing stems from my long discussions about the notion of play and latterly my reading of sports law. Hence where it fits very well is in the area of law and ethics as both of these are, and can be seen to be when one examines the rhetoric, rooted in meaning – often played out in terms of metaphor.
Hence I think that the idea of social-cultural shifts that mean that certain meanings just don’t get traction in an institutional context does explain the mechanics of what is going on in sport and, what should go on in law and computer games (part of the subject of a book I’m currently working on with de Zwart and Humphries).
Play and Playful
There is a continuum from being playful to play. In playfulness the shifted meaning is only partially or fleetingly dominant or is merely a peer of other meanings, hence playfulness can be easy to shift in and out of.
Fun
The definition does not require play to be fun [edit 26 Feb 2011: see my comment here for clafrication that forced play is hollow-play or ostensible-play].
or even voluntary. Someone might be forced to play at gun-point a game that causes them physical pain. Take football as an example - in respect of the process, the thing they are doing would still meet all the criteria above, sphere as ball, points etc etc thought I can see an argument about dominance of externality in this special case.
Why do we play?
I don’t know. The definition I propose seeks only to provide what I think are the intrinsic characteristics of what play is. There are deep psychological and social reasons for why we play and how we play, I suggest readers look at Sutton Smith and others for these. I’m not sure my definition even helps understand these motivations, but I hope that my emphasis of meaning helps.
Why does play ‘work’ ?
Again, I don’t really know, but I do have some thoughts about why play and so-called gamification have an impact on efficiency out outcomes. Basically its about a change of focus and a the relationship between meaning shifting (making) and learning. But more of that in another post…
Why is play and learning so closely aligned?
Because operational knowledge of meanings is intrinsic to play and the process of negotiation of meaning is very intense knowledge work. There's a lot more to be said here.
Can play be work?
Sure. [edit 26 Feb 2011: maybe]
Cheating
Under the definition I have proposed cheating becomes an act related to games which is a wilful corruption of meaning for an end that that simultaneously embraces and undermines the norms in operation. Cheating can be seen as one of the boundary conditions of game.
Narratology vs ludology
I don’t think there is any conflict between my proposed definition and these two ends of the spectrum of approaching play. Stories are engines for creating meaning as is play, they are deeply linked. There’s yet another paper in this I think.
Magic Circle
I believe this definition is compatible with a slightly re-defined notion of the magic circle. Critics of the magic circle seem to want to get rid of it in totality because, I think they see it as too absolute and rigid. I think we need to be less literal about Huizinga. As I’ve noted above play is co-existent with other activities this does not in any way reduce the fact of play nor the ludic-capital in respect of, say, institutional power. So the magic circle still seems a very good way of picking out a conceptual space in which play occurs and some of the characteristic of that space.
Conclusion
I submit that many other definitions of play have great value. I propose that the definition I have provided here has utility partially in the fields of law and ethics. To be less modest I hope I have picked out the intrinsic features of play that underlie previous definitions and thus have provided…. One definition to rule them all :)
This is starting to feel like most of a paper and the start of a book so I’ll be very interested in feedback.
[edit 28 Feb 2011
Much thanks to all those that referenced Goffman in their comments. While I was aware of Goffman and a vague notion of frames, well ‘contextual frames’ was what I had in mind, I had not gone back to source. Doing so was a frankly uneasy experience as I found from reading Goffman that my view of play is not only a bit like his, it’s uncannily like it – he uses pretty much the same logic, the same distinctions, the same examples. It was kinda freaky reading it. I came to the initial conclusion that while I still think my analysis is pretty darn clever given I’d not read anything like it, it might be that Goffman has said everything already, so it was pure re-invention on my part. This moved me from uneasy to positively queasy.
I’ve now read a good chunk of Goffman and a bit of secondary writing, and I’m hoping there are some Goffman (Goffmonians?) scholars around that can help me out.
First, let’s revise some Goff..
In text below I’m quoting from the following edition of Goffman’s 1974 work: Goffman, E., Frame analysis: An essay on the organization of experience, Northeastern University Press 1986.
Early on Goffman defines ‘frame’ as: “I assume that definitions of a situation are built up in accordance with principals of organization which govern events – at least social one – and our subjective involvement in them; frame is the word I use to ref to such of these basic elements as I am able to identify” (ibid pp. 10 -11)
Later he talks about a concept called ‘keying’ which he says come in 5 types (ibid pp. 46 – 77):
Furthermore keying is defined as (ibid p.45)
“a. Systematic transformation of materials already meaningful…”
“b. Participants in the activity are meant to know and openly acknowledge that a systematic alteration is involved…”
“c. Cues will be available for establishing when the transformation is to begin and when it is to end”
“d. Keying is not restricted to events perceived within any particular class of perspectives”
“e. ...fighting and playing around at checkers feels to be much the same sort of thing…”
Goffman also notes that the activities have a “an inward-looking experiential finality”, and participants might enter into a “meaningful universe sustained by the activity” which we might call a “realm’ or possibly ‘world” (ibid p. 46).
Lastly I want to note where Goffman talks about a given instances of keying when: “during any one occasion participants felt that a particular frame prevailed and could be sustained” (ibid p.54)
Bringing frames and keys (or keying) together Goffman starts to add a few more terms: “Given the possibility of a frame that incorporates keyings, it becomes convenient to think of each transformation as adding a layer… the innermost layering, wherein dramatic activity can be at play to engross the participant. The other is the outer most lamentation, the rim, of the frame, as it were, which tells us just what sort of stat in the real world the activity has, whatever the complexity of the inner lamentations” (ibid p. 82).
Some things to note later in the work are, that dealing with out of frame activities Goffman talks about participants ability to “dissattend” (ibid p.202) i.e. withdrawing attention and awareness (ibid).
Lastly I want to note the notion of Frame Breaking where an individual breaks out of what would be expected within a frame through activities including “Flooding” (ibid p. 350) such as ‘dissolving into laughter or tears” (ibid), this might break the fame not only for them but for others. Goffman also talks about a shifted key where a response creates a sort of feedback loop which and produce an “up keyed” and “down keyed” response. Downkeying being where a play or organized fight gets out of control, Upkeying where things take on a greater sense of unreality e.g. players might start to make larger and larger bets out of all sense of portion (ibid pp 359 – 366).
So, I defined play as “the recognised, negotiated, process of a purposeful shift in the dominant meaning; and contextual attribution of value, of acts.”
I think it would be fair for someone to conclude that I’ve done nothing more than provide an alterative definition of keying and cash things like ‘up keying’ out in very slightly different ways in the context of a limited range of frames i.e. those relating to play, sports etc.
However I don’t read my work as saying exactly the same as Goffman - this is where more knowledgeable scholars need to help me out. Where I see the difference is that in my notion of play I want to put the fluidity of meaning and value, and the continual negotiation of this as central to the theory. I certainly see that there is an overall frame or context in which the play is occurring and that this can be broken by spoil-sports (who break the frame). But the notion of frame, like the notion of magic-circle in the original seems to me to be too rigid to account for the nuance of individual actions and interactions. In a sense I don’t see negotiation as something that is happening just in edge cases and having a binary outcome of play or not-play, rather it seems to me that the process of negotiation is one of the things that is sustaining and re-configuring play at each instant.
But, does anyone read Goffman as saying pretty much the same thing and I’m merely trying to save face (see what I did there) or thinking of the rigidity of frames in the physical world and carrying this over conceptually?]
While wandering through Mass Effect 2, I was struck with the vitality of the world. Circa 2004, the main attraction of a multiplayer environment relative to single player worlds was that single player worlds felt dead. Multiplayer, on the other hand, had vitality but also the annoyances of dealing with other people and their inevitable failure to be perfect friends, or perfect foils.That problem can be reduced by Social Engineering (SE): Designers use policy (sometimes enforced by code) to optimize an individual's experience when dealing with others. Judging from ME2, the problem of dead single-player worlds can be addressed successfully using a suite of tools involving digital storytelling, emotive animations, deep conversation scripts, and a strong responsiveness of the emotive/relational space of characters to the protagonist's actions. Altogether, let's call this bag of tricks "Artificial Emotion" or AE. It's not a new term, indeed Professor Turkle has paved the way here, as before.
As the market for fantasy evolves, these two approaches to improving happiness seem to be facing off.
Would humans be happier in an environment constructed just for them, when every other being behaves just so, even though none of those beings are actually people? Or would they be happier to live with other real people in an optimally designed social environment? Is it easier to improve AE or SE?The issues extend far beyond the game industry. In this area as in others, the game industry is charting territory that business and governments will deal with soon enough. If developments in SE dominate those in AE, look for a future of massively-linked online communities whose policies produce much more happiness than offline communities. If AE wins, look for a future involving isolation pods. Most likely, we will have both. As for offline existence, SE advances might translate into better governance in the real world - better companies, better neighborhoods, better schools. AE advances seem less likely to help the offline world.
Life in the soon-to-be-launched Old Republic may combine the best SE and the best AE in one world.
I am with A360 on the current child safety debacle, and it raises a conversation that needs to be had (and re-had) before we get a whole lot further. In 1998's My Tiny Life (free pdf) , Julian Dibell chronicles, among other things, the experiences of a virtual rape victim and (her) MOO community. Seminal on multiple levels, the work explores many aspects of identity, ethics and permission in a post-modern, techno-centric age.
So here's the question. In an exodus recession, were do we draw the lines with economies made up of adult, child, and child-like beings in virtual worlds? With their child-like or grown-up avatars? With AI(s), inhabited or not? What's appropriate, what's not? What's criminal, what's not? What is slavery? Labor? How do we simultaneously allow freedom(s) and conversations and experiments and deviations and enterprise, and protect from harm? Does hacking or enslaving one's or another(s) virtual being(s) to elicit behavior other than intended by the owner consitute criminal activity? At what point(s) are we complicit? Which pathways of influence do we fear? Applaud? What precedents exist? What forms can teaching a lesson take? Is it/can it be therapy? Is it 'promoting hatred'to discuss such things openly, or is opening the can of worms a good thing overall? Let's summarize and rule.
Over at GovLoop, Benjamin Strong is mad as hell. Workers in Federal Agencies are still forbidden from using most of the new social media tools. This means they can't participate in the pro- part of prosumer. Mutatis mutandis they're going to face problems launching anything virtual world-ish, be it MMPOG or MSPOG. It's not impossible, its just that anything they do will require approval from way up top - which defeats the value of open production.
One of the more reasonable grounds for opposing the expansion of government influence is the repeated experience that government actors, exposed to the political winds, tend to build houses of stone. As technology unleashes its earthquakes with increasing frequency, stone goes from being a nice protection from the howling wolves to a rather vulnerable crypt-in-the-making.
The regulation and governance of technology has tended to be based around industry sectors such as film, radio, television etc., or on things such as the radio spectrum or personal data.
I propose that we change this on a global scale and frame regulation in terms of the relationship between Functions and rights.
The Problem
Any practical taxonomy (including the one that I propose) has gaps. In the world of ‘old’ media this was not too much of a problem as media were relatively separate and static. Radio was Radio, TV was TV.
In the world of Convergent media (to use Jenkins’s term) this type of notion becomes problematic. Not only do particular technologies and notions of media change rapidly, they also blend, overlap and re-mediate each other. What’s more taken at face value even the notion of ‘media’ be it convergent or not may be inadequate to capture key features of the socio-technical practices that we see around us.
For example – ideas of virtual worlds as ‘places’ where speech may occur is a much more useful concept than ‘media’ for many purposes, though for other purposes is inappropriate.
We are thus left in a position where governance in its many forms has gaps, overlaps and contradictions. We also have initiatives that are likely to find that as their ink dries the intended objects of governance have evaporated.
The Solution
There is no simple solution to this. However what I believe will help as an approach to (at least some) regulation and governance bodies is - to see the universe of regulatatory objects in terms of Functions and collections of Functions, and not in terms of industries or applications.
What’s a ‘Function’?
Search, is a Function, as is User Registration, or Ranking. Each of these are processes that:
Now this is already partially applied in various forms of regulation; e.g. the EU have specific laws on the treatment of personal data. However statute in this area tends only to be at a highly abstracted level. Here I propose to move up one level of abstraction from notions such as ‘personal data’ and ‘common carrier’ to ‘Function’.
Across and Down
Let’s look at this two ways.
First let’s take ‘Registration’. What I mean by this is the bundle of processes whereby a user registers with something. Here we have a mixture of best practice and pre-existing statute e.g. the Data Protection Act in the UK which regulates how certain data are stored and treated. Though we might want to include other things into the understanding of what might be governed as a Function e.g. display and consent to terms and conditions during the registration process – which might be subject to industry best practice.
When we look at things in these terms we can see that there can be quite a rich set of Functional sets that would be highly common across applications. So registration for Club Penguin is very much the same as for Flickr and Facebook and Maple Story or for the Huffington Post.
To take a second Function – Ranking. There has been a recent controversy over YouTube’s ranking system wherein ‘Most Viewed’ and ‘Most Favorited’ videos are in fact not Most Viewed etc., as certain content is demoted. This seems the kind of area that may companies might want to do.
I’m not going to get into whether this is correct or not, rather note that this seems exactly the kind of Function that all stakeholder might want to see a consistent approach to – even if that approach is clarity (exempting trade secrets) in how the system works. It would help me as a user to know what I’m looking at if I’m told something is the most popular room in Metaplace or most popular group in Facebook – and I don’t want one to fall under ‘virtual world regulation’ and another to fall under ‘SNS regulation’ excepting in those places where there is something conceptually exceptional.
Now if we look down the Functional stack and take, say, Flickr we can see that it might have a bundle of Functions that overlap in many places with Second Life – especially in the areas of user generated content / IP. Second Life and World of Warcraft may be common when it comes to in-world money (though there we have an interesting question of sub-division which is well worth debating – I suspect there is a large common set between all virtual currency systems from a regulatory point of view).
EULA Freebie
Readers will probably be ahead of me here also in noting that with such a system we can see how at a certain level we can also start to move towards a common system of EULA not just across virtual worlds (as has been discussed in a few places) but across all online applications that have EULAs.
More Functions
Below I’ve suggested a few more Functional areas that look like they may be suitable objects of governances. As you see this is list is nested. I think this is critically important as it allows people to agree one what is common and leave what is unique or contested at the appropriate level of details – hence, while we might not know a specific thing about a virtual currency in a game with a fictional setting, this does not mean that we don’t know a whole lot about how virtual currencies in general should be governed.
Governance
Almost lastly I should point that that I am not advocating a highly top down system of government regulation. I’m NOT suggesting more governance – in fact viewing the world this way may expose overlaps which would lead to less governance (should we live in a world were redundant statutes etc were ever taken off the books).
What I am suggesting is that we look at what the objects of governance might be in a more rational way for the internet age and then decide whether they need to be governed at all and if so who by.
We may determine that some things are simply down to user choice, other things may fall under standards created by industry or even cross-industry groups and / or by regulators and state actors.
The framework I propose is wholly neutral about the from of governance that may or may not apply to any Function, what the contents of that governance, if any, are and who the governing actors are – it’s and empty framework.
Rights
I made not of ‘Rights’ at the top of this post as I tend to think about these matters in terms of individual and group rights.
Let’s think globally for a moment – after all, that’s what the internet is, global. This proposal might help to set the scene for a slightly different tenor of internal debate.
There are various rights frameworks such as: those from the UN, EU Convention on Human Rights and the US Constitution. The Functional approach may open up an illumining debate about matters such as the various conceptions of free expression and Functions related to things like User Generated Content and Search. A US / EU debate over raking systems as interpreted under Article 10 of the Convention on Human rights and the 1st amendment would be a fascinating thing.
Again, while not a panacea this is another way to approach the international debate over regulatory harmonization (or lack of) and the burden that this places on any business seeking to use the internet and any user seeking to use a system based on the internet.
Endnote
Lastly as with any sweeping suggestion like this I awaited someone to tell me that there is an entire library on the subject, or it’s been tried and failed or it’s exactly what’s going on already. I’ve not read anything that propose this form of governance but please supply reverences if it’s already out there it will simply add weight to the idea.
Oh, and the pun that this is both a system of Functions and a system that should actually Function is well intended :)
The Council of Europe (CoE) has developed two sets of Guidelines that seek to interpret Human Rights in an online context. On 6 May 2009 there is a Council convened workshop in Strasbourg to explore the guidelines. Prof Bartle and I (with my think tank hat on) are speaking at the meeting.
In this post I’ve provided a short background to the context of the documents and some of my views on the way that key concepts are constructed in the guidelines intended for online game providers. I think that the Council would appreciated a wide set of views on these guidelines as they seem sincere in trying to gather input from a wide set of actors, hence I post these views here to gather your comments.
The guidelines at hand are"
These seek to outline how these two industries can promote rights as defined in the “Convention for the Protection of Human Rights and Fundamental Freedoms” in the context of their customers and citizens generally.
The rights focus of both of these documents is Article 10 of the Convention:
Looking at the document “Human Rights Guidelines for Online Games Providers” I want to look at the opening section of the document (see below). Given its title I am taking this to be an overall conception of the key actors involved in the rights at hand and a normative view of what roles they should take, I believe this needs some examination.
"Understanding the role and position of online games providers in respecting and promoting human rights
Providers (designers and publishers) of online games design and make available products which can promote the exercise and enjoyment of human rights and fundamental freedoms, in particular the freedom to express, to create and to exchange content and communications while respecting the rights of others. Designed and provided in an appropriate manner, games can be powerful tools to enhance learning, creativity and social interaction, thereby helping users to benefit from the information society.
However, like other content, online games may also inadvertently impact on the rights and sensibilities of individuals, in particular children, as well as their dignity. The potential impact of such games may increase as they allow the gaming experience to become more creative and interactive (as the possibilities for expression, interaction and exchange of content with other gamers increase) and ever more realistic (as the visual effects of games develop).
Online games can play an important positive role in the lives and development of individuals, especially for children and young people. It suffices to consider the importance of rights and freedoms, values and dignity, into the embedded design and marketing of games. In this regard, it is recalled that the exercise of freedom of expression carries with it duties and responsibilities, in particular as regards the protection of health and morals and the rights of others, which publishers of online games are encouraged to bear in mind when deciding on the content of their games.
Games designers and publishers are therefore encouraged to promote and facilitate gamers’ well-being and should regularly assess and evaluate their information policies and practices, in particular regarding child safety and responsible use, while respecting fundamental rights, in particular the right to freedom of expression and the right to privacy and secrecy of correspondence. At the same time it should be noted that member states, civil society, other private sector actors, parents and gamers themselves have important roles to play in engaging in multistakeholder co-operation, promoting gaming literacy for children and assisting game providers in fulfilling their role.
In this regard, designers and publishers of online games are encouraged to take note of, discuss and make their best efforts to comply with the following guidelines (below) and to consider making reference to them within their games and in their enduser agreements.
The appended guidelines are without prejudice to and must be read in conjunction with the obligations applicable to online games providers and their activities under national, European and international law.” (Human Rights Guidelines for Online Games Providers page 4)
The key actor here seems to be the ‘online game provider’. Interestingly the guidelines conflate designer and publisher – whereas of course these are often separate entities with very different outlooks and drivers.
What providers do under this text is exercise ‘freedom of expression’ while moral constraints are covered there seems no recognition of economic and social factors that might constrain this ‘freedom’.
While the text goes on to say that providers are ‘encouraged’ in respect of ‘gamers’ wellbeing. There are a several instances in the text where providers are reminded that they have ‘duties and responsibilities’ in respect of rights.
The artifacts under consideration are variously referred to as ‘product’, ‘content’, ‘embedded design’ and ‘marketing’. The artifacts have the ability it assumed to ‘promote’ the exercise of rights and have a role in the ‘development of individuals; as well as potentially being able to ‘inadvertently impact’ actors. It is also noted that the ‘gaming experience’ can become more ‘interactive’ allowing the gamer to exercise expression. Many other potential social goods that can result through interaction with an online game are noted.
Here the artifacts seem at once to be static entities but at the same time things that can have a complex role in lives and inter relations of actors. So while it is acknowledged that there is increase interactivity neither the agency of the actors nor the affordances of the artifacts seem to play much of a part in this description. Critically, it seems to me, the technical-social nexus of the online game as a site in which the rights at hand can be expressed or restricted by the actors that use the online game seems to be passed over setting rights guardianship into an implied hierarchy where the end user is almost passive.
What’s more as I have noted in previous works the act of giving primacy to the ‘artifact’ nature of online games, as opposed to the ‘place’ like nature or ‘contractual’ nature that many of them have sets any discourse about them in a particular direction.
Lastly the other key actors appear to be ‘children’, ‘users’, ‘individuals’, ‘gamers’, ‘member states’, ‘civil society’, ‘other private sector actors’ and ‘parents’.
As noted above, the relationship between the users of the artifacts and the creators and other actors seems to imply a hierarchy. What’s more the text sees to put emphasis on protecting and keeping children safe.
There are many categories that are overlooked by this typology, those I suggest are useful to incorporate into an analysis of online games include the following:
‘adult gamers’ – while this is possibly the larges single category of gamer it often seems overlooked. From a policy point of view this strikes me as problematic as it does not seem to me that it is self evident that the rights of child gamers trump those of adult gamers in all circumstances, and even if they do the case needs to be explicitly stated.
‘player community’ – in many online games the notion of and the feeling of belonging to a community is key the experience of the game and many of the goods suggested by the guidelines.
‘user generated content’ – there is mention of users and expression the idea that users might them selves be active in the generation of game content for other users which might include: text, the act of gaming, mods, fanfic and other content that some how becomes part of the gaming experience – seems missing.
In these categories it seems to me that their might be an implication of active-agency that seems lacking in the text in relation to the notion of any agent using an online game.
Other categories we might consider include: ‘game designers’, the ‘games industry’, ‘retailers’, ‘self governance structures’, ‘guilds’, ‘consumers’ and ‘professional and industry bodies’.
In summary this definition of roles appears to set up an industry with freedom that is bounded only by rights-related duties and users, primarily children, that interact with relatively fixed artifacts in ways that have relatively defined outcomes on them that they have little control upon. A key invisible category is assumed presence of the Council of Europe itself the author of the document.
I suggest that a more rounded approach to rights online should include a more granular understanding of how the practices of game production and use come about through a much more complex interplay of actors. What’s more key elements of context to take into account include the notion of a game as a system of constraints and acts within a game as being fictional or symbolic.
In a further post I may explore in detail the actual guidelines that are suggested in the document.
It struck me some time ago that under EU banking regulations MindArk’s Project Entropia looked a lot like a bank, or at the very least an e-money institution.
Well - now it is.
Or to be exact Mind Bank AB a wholly owned subsidiary of MindArk PE AB is has been granted a banking license by Sweden’s Financial Supervision Authority (Finansinspektionen).
This is important on a number of levels. First, I’m not aware that any other virtual word has gained this status – though this may simply be due to my lack of knowledge of virtual worlds in Asia. I’d be interested to know from readers what the legal status of things like QQ coins are. So this may be a genuine first in the virtual world industry for MindArk.
Second, I wonder if this will have an impact on the rest of the industry and how regulators view it.
I’ve argued in the past that virtual world are in a difficult position as while their Terms of Service may state that what goes on within their virtual walls is not commerce, the practices that surround them increasingly work as if in-world currencies were just like any hard currency. What’s more virtual currencies exist in a financial world where we have the Zimbabwean dollar whose inflation level hit may millions of %, and western banks that are in danger of such levels of default they are taken into part state ownership, making virtual worlds a rational option for some money related transactions.
Thus while virtual world operators might not like it, it seems to me that there may come a time when regulators will force a duty of care upon virtual worlds so as to protect the potential losses of citizens. Or a tangential law, and I always use the example of a divorce lawyer, will take a look a practice and go ‘that gold piece just quacked’.
This I’ve suggested will be bad for virtual worlds as under notions of a bank that exist, particularly in the US (where I do not think electronic money institutions exist in law), virtual worlds would become subject to crushing regulation. What’s more this regulation would differ by country thus protecting citizens by destroying the industry that never wanted citizens to be exposed to the supposed harms in the first place.
What may alter this is the simple argument – if MindArk can do it, why can’t you,,, Blizzard, Linden Lab etc etc.
The big difference of course is that MindArk, so I understand, have structured their technology in anticipation of becoming a bank and have based their business model on becoming one.
Leading to my daily nightmare as a virtual world policy wonk that there are so many unique cases and exceptions to any rule that everyone outside the industry can get their head around.
So what can the virtual world industry do to avoid banking regulation?
One part of me things – nothing; and, in fact, if we look at the way practice is going then the potential cumulative harm to individuals caused by scams etc., things may get to the point where virtual worlds should be banks.
A notch down from this, I wonder if the best option is to lobby for a revised version of the EU’s electronic money directive to be adopted as a global standard for virtual worlds of certain types. The revision to the directive would allow flexibility around the nature of and use of e-money tokens making it clear which spaces they did and did not operate in and in what ways.
Lastly, I think if game virtual worlds want to stay out the world of banking the have to be and have to be seen to act against RMT (real money trading) to a much higher degree than they are now. The real action here may be in PR and lobbying rather than technical measure but my feeling is that virtual world operators need to step up their game.