Archive for July, 2010

Cliff Bleszinski of Epic Games

This past week, game designer Cliff Bleszinski (of Unreal Tournament and Gears of War fame) tweeted a link about the upcoming case and encouraged people to sign an online petition protecting the First Amendment rights of video games.

This fall, the US Supreme Court will hear the case of Schwarzenegger v. EMA concerning a California law aimed at stopping minors from purchasing video games with violent content. The law was passed in 2005 and signed into law by Governor Schwarzenegger. The Entertainment Merchants Association (EMA) challenged the law on First Amendment grounds. So far, the lower court and appeals court have agreed with the gaming industry: the law has never gone into effect. The law would brand certain games as “violent” and restrict the sale of such games to minors. Merchants would be required to affix a white sticker labeled “18” to the games and would be subject to a fine if they sold the games to persons under 18.

The First Amendment is the closest most Americans come to considering something sacred. However, free speech has never been unlimited, as concerns for privacy and public safety (among others) have always been balanced against free speech. Free expression towards minors is an especially touchy subject, as minors are viewed as more impressionable and are often less able to choose where they can and cannot be and, hence, who they can and cannot listen to. Two of the better known exceptions to free speech involves minors. First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

Call of Duty puts players behind the trigger in Afghanistan, which is disturbing to some. Free expression protects people's right to be disturbing, however, and is limited only under extreme circumstances.

Proponents of the CA law have argued that violent video games should receive an exception similar to pornography and children. In order for a law limiting speech to pass a Constitutional test, it must be targeted at a legitimate problem and the solution cannot be too broad, but must regulate only that problem.

Violence among adolescents is a real problem and the psychological trauma children experience from being exposed to violence is no myth. What is not as clear is if violent video games have any real connection to either of those. Most studies I have seen on the subject call the relationship between violent games and violent behavior correlative, rather than causal. Which is to say, it may be that people develop a taste for violence and then seek out violent games, rather than violent games giving them the desire, the data is not clear. The CA lawmakers have thus far failed to convince the courts that violent video games are a legitimate threat to children’s safety and well-being.

GTA: San Andreas box art

Grand Theft Auto: San Andreas created controversy when a secret mini-game was discovered that allowed players to have in-game sex with their virtual girlfriend. One woman complained that she had purchased the game for her 14-year-old grandson, only to discover the "filth" after the purchase. The game, however, was clearly labeled M for Mature (17+). It is unclear whether the CA law would do any more than the current system.

Even if, for the sake of argument, violent video games cause the evils people accuse them of, any law dealing with the subject must be narrow (precedent calls for the “least restrictive manner” available to be employed). The CA law fails to give a good definition of what makes for a “violent” game, so the terms they use are broad, and courts don’t like broad terms in narrow laws. Another issues the CA law has failed on is showing how the law will do better than the current system. Video games, like the film industry, employ a self-imposed rating system, assigning games a rating from All Ages to Adults Only. Many stores adhere to those guidelines and refuse to sell games intended for mature audiences to children. Because the rating system and store compliance are voluntary, the system is not restricted by the government at all. This is constitutionally ideal because it lets people say what they want, and lets people listen if they want. Violent games still end up in the hands of minors, but that doesn’t mean the system isn’t working, or that government regulation would work any better.

For these reasons, the law will probably be struck down by the Supreme Court. The sale of pornography to minors does create precedent that the Court could latch on to and go the other way. If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.

I am an arts/entertainment attorney and a fan of the First Amendment. I think people should have the right to offend.  Some of the most important ideas in human history were offensive to someone (the best ones were offensive to a lot of people). Some ideas lead to violence, others to peace. It’s dangerous for governments to cut people off before they’ve had a chance to be heard, and though I doubt the industry would suffer much from a loss, I like the message the Court would send with a win.

Plus, video games before the Supreme Court… how cool is that?

The Conduit took place in DC and included famous landmarks like the White House. The Supreme Court didn't make the game, but after this case, gamers may come to think of the Court as a place to protect... or frag.


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Trent Reznor (left) has elected to use CC and alternate payment methods to market Nine Inch Nails music.

Licenses, as I said last week, are a way for an artist to give permission to others to use his or her work. Licenses can be highly restrictive or a virtual give away. Creative Commons (CC) is a license, used mostly on the internet, that allows artists to give permission to others to use their work, so long as the user follows the limitations selected by the artist. CC is both new and controversial, but before all that, a simple description of what it does.

There are four “building block” permissions that a CC license can have:

Attribution: others may use your art, but only if they give you credit.

No Derivative: others may use your art, but they may not change it.

Share Alike: others may use your art and change it, but if they distribute it they must use an identical license to the one you chose.

Non-Commercial: others may use your art, but they may not charge money for what they create.

The four building blocks can be put together in six distinct licenses (attribution is in all the licenses), it is impossible to combine No Derivative and Share Alike because you cannot forbid someone from changing the art and allow them to change it at the same time (at least, not in this reality).

There are nearly 150 million images using the six CC licenses on flickr

The various CC licenses give artists the ability to communicate their intentions to other artists without them ever having to meet to hammer out terms of usage, saving time and money. In this way, CC can be great for remix communities (using the share-alike provision) or for independent film makers looking for cheap (free) background music. The internet allows for nearly unfettered communication and CC allows artists to speak a similar legal language. CC allows for agreements without the use of lawyers, or even talking to each other. A person in Russia can grab a CC image off flickr posted by someone in Sweden and know exactly how they may use it. Even to the degree that CC replaces what I do as an arts/entertainment lawyer, I think it’s great.

Lotus Root Children by Wei Li is a graphic novel published under the attribution-noncommercial-share alike license, meaning anyone can incorporate his work into theirs, but no one may charge for what they create.

No license is perfect for all situations, and that is true for the CC licenses. Some potential pitfalls to consider: If you don’t elect “non-commercial,” another person can incorporate your work in to theirs, sell it, and not pay you anything. The share-alike license is viral, and when combined with the non-commercial license  creates a never-ending flow of work that no one can ever be paid for. If you elect only the attribution license, you have effectively donated your work to the world for whatever anyone will ever choose to do with it, and it is unlikely you will ever get control back. None of these are bad, it’s just important to understand what you are giving people permission to do with your work.

One thing I don’t like about the CC license is that it oversimplifies licensing law and options. The non-commercial license, for example, grants permission for others to copy, distribute, perform, display, or make derivatives. That’s the entire copyright  bag of goodies. There is no way to limit others to only royalty free performances, but reserving the right to charge for distribution. I would like to see the ability to break down which rights can be given or not given under the non-commercial license so an artist can grant unlimited permission to display or perform, but retain copying and derivative work rights.

The CC licenses are presented using simple pictures and brief explanations of what the licenses do. What they accomplish in brevity, they lack in clarity. Should you choose to click on the “View Legal Code” link of each license, the text of the CC licenses prove to be just as wordy as any corporate contract.

The fine print of the attribution non-commercial license

A careful reading reveals such facts as the CC license is world-wide, non-exclusive, and lasts for the duration of the copyright. Because the CC license is non-exclusive, you are free to enter into other non-exclusives licenses with others, even for money. However, once permission is given to one party for non-exclusive use, you cannot enter into an exclusive deal with someone else. The “behind-the-link” fine print also makes it clear that CC is not a law firm, has not been hired by you, and if anything goes wrong, is not responsible to you. Again, good to know.

Last week, The American Association of Composers, Authors, and Publishers (ASCAP) sent an email to its members that characterized CC as a threat to musicians ability to be paid and an assault on copyright. ASCAP is a licensing house that arranges licensing and royalties for musicians. ASCAP, as the “about” page of the website states, “exists to ensure that music creators are paid.” That’s what they do. CC does not exist to ensure musicians get paid, but rather to foster creativity over the internet and allow artists to elect whether or not they seek to get paid. To call CC a threat to musicians or copyright is to call sailboats a threat to rowboats; both get you from one place to another, choosing one may exclude the other, but ultimately both have their place.

Multi-author websites like Wiki demonstrate the power and potential of the free exchange of information over the internet.

Is Creative Commons bad for artists? No. Is it good? Maybe. For the right artist working on the right project, CC will be great. It’s greatest potential, in my opinion, will be in fostering collaboration for non-commercial purposes in film, music, graphic design, authorship, and beyond. If, however, you want to collaborate with others to make money, especially through exclusive agreements, or want to reserve the right to take your art back from the public at some point, it’s probably best to steer clear of CC.

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