Controlling the Controllers

Part C “Controlling” | Talk 10Video Game Law 2013 UBC Law @ Allard Hall

Jon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy LLP@gamebizlawjon_festinger@thecdm.ca

Follow ups to last week…Violence & Games: “Video Games and Societal Violence: Cause for Urgent Action or a Bridge Too Far?” http://www.huffingtonpost.com/michael-levine/video-games-and-societal-_b_2859598.html

Women & Games: Donkey Kong: Pauline Edition (Princess saves Mario) http://www.youtube.com/watch?feature=player_embedded&v=JeXDNg7scyU

Dr. Kimberly Voll creating a 48-hour weekend game jam this summer – theme is games with strong female leads (@The Centre for Digital Media “hangar”) IN RESPONSE TO industry pre-conceived notions - SEE: 'You can't have a female character in games' http://www.gamasutra.com/view/news/188775/You_cant_have_a_female_character_in_games.php

IT’S (past)

This Week (Topic 1): PRIVACY

• Evolving & difficult; not a natural topic: Much of video game history = single player

• Gaming modalities: Hard-drive to CD-ROMs to online to massively on-line now to cloud

• On-line communities about games (forums) to multi-player to massively multiplayer to “life-stream”

• Not news to gamers: “Which Twitter tribe are you? Researchers discover new wave of online communities which even have their own languages” http://www.dailymail.co.uk/sciencetech/article-2293912/Twitters-online-tribes-revealed-Users-forming-distinct-communities-languages-study-shows.html

• From a 3 Nov 2002 post by “Monza” on GP Forums on the subject “GPL Monza Megapac!”: “There is a zip with all the updates done for Monza right here http://limerock.racesimcentral.com/monza/monza.htm This project started as a small thread, now the thread is fifty pages long!”

Privacy as Role Reversal

Last week: rights of society from the consequences of games & gamers

This week: rights of gamers as members of society

Core conundrum: Gamers initiate content, not just passively receive it (Television as “transmitter” to gamer as “transmitter” - see Talk 1 “If Picasso…”)

YIN & YANG• What we looked at previously in terms of IP complexity• NOW THROUGH LENS OF PRIVACY COMPLEXITY

Layers of Control (Privacy Edition)

12. Theft, assault (criminal law)11. Currency/taxation (statutory/regulatory).10. Gambling (regulatory body – criminal law back-drop)9. Unfair competition (Competition/anti-trust)8. Misleading promises/advertising, physical or psychological harm (consumer protection)7. Medium specific regulation (constitutional)

Out of the Game Norms------------------------------------------------------------------------------------------------ In the Game (Magic Circle) Ethics (of Originality, Creativity & Expression)

6. Industry self regulation5. Personality rights (tort, IP)4. EULA/ToS (contractual, private)3. IP (copyright, patent, trademark – statutory)2. Technology (quasi extra-legal)1. Community (extra-legal)

STAYING WITH: The new video game (hypothetical)

Real-world “play” (“Ingress” – Capture the Flag mechanic)+ Immersive control mechanism (Google Glass)+ Anywhere/any device capability (the “cloud”)+ “Open World” design (literally & Google Earth)+ Tools/weapons (AR Drone Quadra Copter; Google Car)

IS THIS REALLY A GAME?

Surveillance as fun: “The Plays and Arts of Surveillance: StudyingSurveillance as Entertainment” Anders Albrechtslund and Lynsey Dubbeldhttp://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDEQFjAA&url=http%3A%2F%2Flibrary.queensu.ca%2Fojs%2Findex.php%2Fsurveillance-and-society%2Farticle%2Fdownload

+

Expanding Digital Footprint Through Games• Facial recognition• Cell tracking (geographic)• Demographic data• Data re friends, connections• Brain pattern data (control mechanism)• Reflex & physical data (heart-rate etc.)• Enormously deep data re psychology of choice & decision

making• Data re preferences & biases (Google/FaceBook using now) • All very “B.F. Skinner”…• “Netflix used subscriber data to make ‘House of Cards’ a hit”

http://www.theverge.com/web/2013/2/14/3989202/netflix-subscriber-data-house-of-cards

Scholarship & Discovery • “What Privacy is For” Julie Cohen 126 Harv. L. Rev.(draft)

http://www.harvardlawreview.org/symposium/papers2012/cohen.pdf“Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable.”• “The Law of Friction” William McGeveran (U. of Minn. Law

School) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192191

“…the article proposes a general law of friction for the internet: it should not be easier to “share” an action online than to do it. The inevitable moment of decision to click a link or purchase an item should also be the moment when a person chooses whether to disclose it. When there is a PLAY button to stream a movie, there could be a PLAY AND SHARE button right next to it.”

Linux ubuntu screen

Remember: “Sports Example Wish-list”? (Talk 7 “From Wheelbarrows to Holodecks)

1. VIRTUAL ARENA EXPERIENCE• “Who is in the crowd?”• “Pick your seat”: view the game from any any seat/any angle (emulated?).• Live Shared experience (Hangout). Friend and rival group options.• Scalability of closed to contact ranging to fully open (E.G. game v. between periods).• Fully interactive: voice, text, content sharing, search & content creation.• Play crowd games, trivia.• Infinite inputs including alternate audio feeds (plus “do your own”) & bonus video feeds (E.g. USTREAM’s and/or extra broadcast cameras – “you compose your own “broadcast”).• Live feedback (Twitter, text, Skype etc.) loops to teams, leagues, (players), (coaches) – the “techno heckle”.

2. “I KNOW SPORTS BETTER, LET ME PROVE IT.”• Infinite replays from infinite inputs.• Coaching tools (virtual Telestrator ).• Library of games & plays (by team, year & player).• Recreate or watch the game live in EA NHL 14 (watch replays in 1st person as any player).

3. SECOND SCREEN STUFF (Sx3)• Useable live in-arena on a tablet. • Full live stats including distance skated, shot-speeds, goalie. • Gamification for every possible challenge/bet.• Create your own sports music-video.

Layers of Privacy in Video Games9. Access to law enforcement by Search Warrant

8. Access by law enforcement to information where gamer does not have a “reasonable expectation of privacy” (highly interpretive)

7. Aggregated Gamer/Game information available to advertisers/sponsors/purchasers having relationships with game/developer/game network/social network/(ISP-carrier?) as permitted by EULA/ToS

6. Gamer/Game information available to ISP/network carrier/mobile carrier (often includes location information)

5. Gamer/Game information useable by game network/social network (permissions)/ISP (Steam, XBLive, Facebook) per ToS (often includes location information)

4. Gamer information useable by developer/publisher per EULA

3B. Audio gaming layer – quasi-public (through game)3A. Audio gaming layer – private (Ventrilo)

2. Gamer shares information for “magic circle” purposes (multiplayer; forums etc.)

1. Gamer creates information

Two (yet unanswered) Questions• Legal: Where among the Layers does the gamer’s

“reasonable expectation of privacy” begin? - Impact of the “Magic Circle”?

• Practical: Is this even an issue to the “Digital Generation”? (trade-off with convenience/features/trans-border compatibility)

WHAT HAPPENS BETWEEN THE LIMITS OF PRIVACY LAW & THE STARTING POINT FOR SEARCH WARRANTS?See: Location Tracking and Biometrics Conference (Yale Law)http://www.youtube.com/watch?v=OwutGSjNQ0k&list=PLEqpzAExPV-xr9gIhSqLMxTSXrimGF6pA&index=19

&: “The Spies We Trust: Third Party Service Providers and Law Enforcement Surveillance” Christopher Soghoian (Indiana University August 2012)http://files.dubfire.net/csoghoian-dissertation-final-8-1-2012. pdf

THE GREY AREA

PRIVACY ACT [RSBC 1996] CHAPTER 3731. (1) It is a tort…for a person, wilfully and without a claim of right, to violate the privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any…relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.2. (2) An act or conduct is not a violation of privacy if any of the following applies: (a) it is consented to by some person entitled to consent;… (c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court; (d) the act or conduct was that of (i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime… (3) A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation.

PerspectivesSearch Warrants: Criminal Code (R.S.C., 1985, c. C-46) 487. (1) A justice who is satisfied by information on oath…that there are reasonable grounds to believe that there is in a building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed…

“Internet Surveillance Bill is Dead but Canada's Telecom Transparency Gap is Alive and Well” Michael Geisthttp://www.michaelgeist.ca/content/view/6793/135/

Jones v. Tsige Ont. C.A. recognises new tort for invasion of privacy http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm

R. v. Cole SCC finds reasonable expectation of privacy in work laptop http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12615/1/document.do

(reasoning extendable to video gaming spaces?)

MAKING SENSE OF PRIVACY

Remember THE LITTERALIST DICHOTOMY?

Symptom: Seemingly opposite political positioning between Privacy literalists & IP literalists • Privacy literalists tend to be more “open source” / “free

info” oriented

• “IP literalists” tend to be more comfortable with commercial

exploitation of personal data

Applying the Double Standards Test

Unified Theory 1 Privacy/IP

Core Common Denominator?

"Feeling" those 1's and 0's "belong" to me “That is mine!” (whether IP or private info) Therefore common/unified approach possible? + factor in the idea/expression dichotomy

= What were once Private Ideas are now Public Expressions

*** Privacy as a Moral Right (right not to be attributed)

Restated Core What is the core common denominator of privacy & IP in the digital age?

One answer that may be a helpful starting point -  information. IP is in fact information designated as having been created by someone and therefor designated as belonging to that someone. Personal information similarly is felt by us to be created by us, personal to us and therefor belonging to us. 

Accordingly they are essentially the same and should be treated according to the same principles.

What might those principles be? A Moral Rights model would suggest they are the right of attribution (or not) & the right to the “integrity” of the work/information.

Europe: The Right to be Forgotten“EU judges to hear Google 'right to be forgotten' case: Spanish officials have taken Google to the European Court of Justice in a bid to force the search giant to delete information that breaches a person's privacy” (Feb. 26, 2013)http://www.telegraph.co.uk/technology/google/9895279/EU-judges-to-hear-Google-right-to-be-forgotten- case.html

“Bullying and the Right to be Forgotten: A Right to End Victimization” (Amanda Todd)http://playgiarizing.com/2012/10/12/bullying-and-the-right-to-be-forgotten-a-right-to-end-victimization /

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) Jan. 25. 2012http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf“Article 17 Right to be forgotten and to erasureThe data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies: (a) the data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; (b) the data subject withdraws consent on which the processing is based…or when the storage period consented to has expired, and where there is no other legal ground for the processing of the data;…” REMEMBER: 32% of gamers are kids Defamation analogy? - Reputational

EULA’s now Sword not Shield?PREVIOUSLY: Discussion of WHY/IF EULA’S necessary given:• 1. Ineffective to 1/3 of gaming population (kids) (generally not mentioned in EULA’s & ToS’)• 2. Very limited if any true litigation need (no decisions where other remedies were not more significant)• 3. Warnings re bad behavior can be accomplished

in other more limited ways• 4. Intellectual Property statutory & doctrinal

baseline fair

Corporate answer (?) = leverage re bad behavior + consumer contracting out of IP freedoms Also: Contracting out of PRIVACY PROTECTIONS ???

Unified Theory 2 Privacy/Free Speech - Expression

• Reconciling Privacy & Free speech/expression• Right of Expression NOT TO BE CHILLED• Right of Privacy as a RIGHT TO NOT EXPRESS (or “be expressed”, or have your expression collected or used against your will)

Privacy’s chilling effect on creativity

An Important Question?• Have parsed possible effects of “IP chill” on User Created Content (mods, machinima etc.)• Does LACK OF PRIVACY also chill User Created

Content?• Insidious Result?: lack of privacy as “tool” of IP “Literalism” & enforcement

“Identities”• Avatar v. real names – what should be disclosed & to whom?“Google's Vint Cerf explains why Facebook's real-name requirement is flawed”http://www.theverge.com/2013/3/5/4066546/vint-cerf-real-name-authentication-useful-but-anonymity-necessary

“Facebook wins legal battle to force Europeans to use real names online”http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-europeans-must-use-real-names

• Avatars deeply embedded in history of gaming - core to play - suspension of disbelief - “magic circle”

• Anonymity also deeply embedded in history of the “web”• Extra Legal Measures (“Doxxing” – outing real identities)“Do trolls have privacy rights” http://www.technollama.co.uk/do-trolls-have-privacy-rights

• State Action: “Five More Game Companies Join New York State’s ‘Operation Game Over’ Initiative, 2100 More Accounts Purged”http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-europeans-must-use-real-names

“State Laws Restricting Social media Use by Sex Offenders Are Failing inCourt” http://blog.ericgoldman.org/archives/2013/01/state_laws_rest.htm

Video Game Privacy Breaches“UK regulators fine Sony for 'preventable' 2011 PSN hack (update: Sony will appeal)” (2011 hack)http://www.theverge.com/2013/1/24/3910538/uk-government-fines-sony-for-preventable-psn-data-breach

“Blizzard Faces Class Action Over Battle.net Security”http://www.gamepolitics.com/2012/11/09/blizzard-faces-class-action-over-battlenet-security#.UUl0jqXR1Lw

“Data Breach Class Action against Popular Video Game Developer Dismissed for Failure to Plead Adequate Damages” (Valve/STEAM)http://www.dataprivacymonitor.com/data-breaches/data-breach-class-action-against-popular-video-game-developer-dismissed-for-failure-to-plead-adequat/

+ “Steam’s Sub Agreement Prohibits Class-Action Lawsuithttp://www.rockpapershotgun.com/2012/08/01/steams-sub-agreement-prohibits-class-action-lawsuits/

“FTC fines Path mobile social networking app $800,000 for privacy breaches”http://www.lexology.com/library/detail.aspx?g=6f2cc64a-755d-4cbf-a57e-b1ee458280f6

“Bug in EA’s Origin game platform allows attackers to hijack player PCs”http://arstechnica.com/security/2013/03/bug-on-eas-origin-game-platform-allows-attackers-to-hijack-player-pcs/

This Week (Topic 2): Regulatory Jurisdiction Over Video Gaming?• New Media, Broadcasting Public Notice

CRTC 1999-84/Telecom Public Notice CRTC 99-14, 17 May 1999 (& amendments) http://www.crtc.gc.ca/eng/archive/1999/pb99-84.htm +

• Policy Governing the Distribution of Video Games Programming Services Public Notice CRTC 1995-5 (Sega game downloads through cable) http

://www.crtc.gc.ca/eng/archive/1995/PB95-5.HTM +• Capital Cities Comm. v. C.R.T.C., [1978] 2 S.C.R. 14 (cable)

http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2586/index.do

= FEDERAL JURISDICTION ???• BILL 19 – 2001 VIDEO GAMES ACT (B.C.) - passed but

repealed prior to coming into force (‘mature’ & ‘adult’ games not saleable to minors) http://www.leg.bc.ca/36th5th/3rd_read/gov19-3.htm + various Provincial motion picture classification legislation containing definitions relating to video games +

• Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 (ads directed at children prohibited by Province)

= PROVINCIAL JURISDICTION???

Bringing us to KIDS (once again)• “SpongeBob app pulled over children's privacy

complaint” (wide range of personal info from children w/o parental consent) http://www.bbc.co.uk/news/technology-20767541

• “Apple to settle lawsuit on inadvertent app purchases by kids” http://ca.reuters.com/article/technologyNews/idCABRE91P05O20130226

• “Kids Reveal The Real Flaws Of Free-To-Play Games”http://kotaku.com/5988036/kids-reveal-the-real-flaws-of-free+to+play-games

• “FTC's Second Kids' App Report Finds Little Progress in Addressing Privacy Concerns Surrounding Mobile Applications for Children” http://www.ftc.gov/opa/2012/12/kidsapp.shtm

• “Children’s Online Privacy Protection: U.S. Developments Compared to Canada”http://www.datagovernancelaw.com/children%E2%80%99s-online-privacy-protection-u-s-developments-compared-to-canada

• “No 'Do Overs': Children, Personal Information And Marketing In Canada”http://www.datagovernancelaw.com/no-%E2%80%9Cdo-overs%E2%80%9D-children-personal-information-and-marketing-in-canada

Next: Meme 4 – Conciliation begins… The Terminator & the Orc - a tale of two cases

Our Academic Partners