Course:LAW423b Video Game Law/Freedom of Expression

Freedom of Expression - Ludology Research

Focus: Freedom of expression in the communities in and around video games, its regulation and restriction by video game companies/creators, and the above’s effect on “vulnerable” groups.

Discussion on the 2 Most Important Papers

Joseph Reagle, “‘Free as in Sexist’: Free culture and the gender gap” (2013) 18:1 First Monday.

• This paper examines the gender balance in the free culture movement. Over a 6 year period there is an analysis of discourse on gender and sexism within this movement. The argument presented is essentially that female participation in the free culture movement is worse (or the same) as the “computing culture” in which it arose. There are three possible causes argued for the skewing of the gender balance: “(a) some geek identities can be narrow and unappealing; (b) open communities are especially susceptible to difficult people; and, (c) the ideas of freedom and openness can be used to dismiss concerns and rationalize the gender gap as a matter of preference and choice.”

Peter Jenkins, “The Virtual World as a Company Town: Freedom of Speech in Massively Multiple Online Role Playing Games” (2004) 8:1 Journal of Internet Law 1.

• Virtual worlds are increasingly becoming a more important part of people's lives. This paper starts with a thought experiment where a 1:1 virtual replica of the world is created for the US army to practice combat. This world is subsequently auctioned off to a MultiNational Company. This company restricts freedom of expression and based on Court Rulings (in the US context) the First Amendment does not apply. The point of this is to draw attention to the issues of Freedom of Expression in MMORPG’s.
• The paper concludes by noting several points: 1) free speech in MMORPG’s is dependent on the right of public access; 2) Even within MMORPG’s that have a right of public access, freedom of speech rights would not extend to the gated or private areas within them; 3) In non-gated areas with effective public access the same protections against abuses of free speech rights would apply as in the real world; 4) As many MMORPG’s seem to be reaching their limits in terms of attracting new players, and some are experiencing financial difficulties, freedom of speech rights in these virtual worlds may assist the owners in broadening their customer base, finally 5) MMORPG’s are the leading edge of a coming virtual world that will eventually supersede the current structure of the internet, thus how we treat freedom of speech in the current virtual worlds we have will set the pattern for freedom of speech in the universal virtual world that is sure to come.

Description of Other Relevant Papers

Megan Condis, “No homosexuals in Star Wars?: BioWare, ‘gamer’ identity, and the politics of privilege in a convergence culture” (2015) 21:2 Convergence 198.

• From the abstract: “This article questions who is able to lay claim to titles like ‘fan’ or ‘gamer’, how those titles are being contested along gendered, racialized, sexualized, and classed lines, what happens when new groups lay claim to those titles, and how some fans are reacting to the loss of their privileged relationships with content producers.”
• The article discusses the “magic circle” concept as it applies to “political” discussions in video game contexts. Though the discussion being examined is actually in a video game forum rather than in a game, it may provide an interesting addition to the Jenkins article above.
• The article considers how BioWare, the creator of the forum (and the MMO the forum was provided for, Star Wars: The Old Republic) dealt with a debate arising from a rule against mentioning queer sexuality on the boards. It goes on to contrast a later decision by BioWare to include queer romances in Dragon Age and TOR—while critiquing the motive behind this decision: a choice passage notes that BioWare “include[d] same-gender romances in their virtual Star Wars universe . . . but only if players paid an additional $20 to access the additional content”. Interesting to consider in the context of governance of virtual worlds and impacts on freedom of expression.

Catherine Goodfellow, “Russian Overlords, Vodka, and Logoffski: Russian- and English-Language Discourse About Anti-Russian Xenophobia in the EVE Online Community” (2015) 10:4 Games and Culture 343.

• The article looks at the attitudes towards Russian players in the EVE Online community as these players are seen as hostile, aggressive, and cliquish, and as people who cheat the game in order to reap financial benefits.

Daniel King, “Should Australia have an R 18+ classification for video games?” (2010) 29:1 Youth Studies Australia

• This article looks at Australia’s lack of an “R 18+” rating for games (which only have a rating up to M 15). It argues that the lack of this rating results in both too much and too little restriction on expression in games (or, more specifically, access to games from outside of Australia). Because there is not currently an adults-only rating, adults in the country are unduly barred from playing games protected in other countries, while other games (which would fall under their R 18 rating for films) are currently accessible to people whom the author argues shouldn’t have access until they turn 18. (The argument focuses on Australia. It also presumes the credibility of the Australian Attorney-General’s assertion that games can have a harmful influence on youth, though…)

Marcus Carter, “Emitexts and Paratexts: Propaganda in EVE Online” (2015) 10:4 Games & Culture 311.

• Investigation of propaganda texts disseminated by users of EVE to recruit/bolster morale in the lead-up to and during a large battle. Interesting as an example of user-generated content flowing from a game.
• From the conclusion: “This style of game [i.e. sandbox games] by nature encourages the emergence and prominence of emitexts [such as propaganda] by catering for the players to have lasting, permanent affects on the virtual world (indeed, EVE’s history is a form of emitext). While EVE Online’s emitexts are prominent, emitexts exist within a wide variety of online and multiplayer games, and analyzing them serves to bolster not just how we understand games to have cultures, but how they are experienced and how memberships are policed”. [emphasis added]

Susan C Herring, “The Rhetorical Dynamics of Gender Harassment On-line” (1999) 15:3 Information Society 151.

• While older, this article looks at internet interactions and the harassment of females by males participating in certain chat groups.

UN Report, “Cyber Violence Against Women and Girls: A World-Wide Wake-Up Call”

• The report by the UN discusses the "rising tide of online violence against women and girls."

Freedom of Expression - Legal Research

Discussion on 2 Most Important Papers:

Paul E Salamanca, “Video Games as a Protected Form of Expression” (2005) 40:1 Ga L Rev 154.

• This article follows the case law and judicial logic along the path video games took to gain recognition as a form of expression that should be protected by the First Amendment. It is split into 3 parts: Part 1 examines the parallels between games and the motion picture industry and 4 key cases in the recognition of the latter; part 2 looks at 3 cases in which games were denied First Amendment protection, followed by 3 more recent cases in which their status was recognized (all, of course, prior to the Supreme Court’s ruling); and part 3 where criticisms of the extension of the protection (predominantly that violence should be seen as “obscenity” with regard to children’s media) are argued against.

F Gregory Lastowka & Dan Hunter, “The Laws of the Virtual Worlds” (2004) 92:1 Cal L Rev 3.

• This article considers the internal regulation of virtual worlds (primarily MMOs), including the possibility of property rights in virtual property, and the potential application of freedom of speech principles.
• The authors discuss how the application of free speech protection to virtual world is hampered (if not precluded) by the “state action doctrine”, which appears to be roughly equivalent to s 32 of the Constitution Act, 1982 (which limits the application of the Charter to government actions). However, the authors make a compelling case for analyzing freedom of speech (/expression) limitations within virtual worlds: “[I]f members of our society are uncomfortable with limitations upon speech in company towns and shopping malls, how will we feel about speech limitations placed on entire (virtual) worlds?” [citations omitted]
• Interesting analysis, if a bit out of date. Could provide a useful analytical framework for freedom of expression (& governance) issues within games and game communities.

Description of Other Relevant Papers:

Jack M. Balkin, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society Commentary” (2004) 79:1 NYU L Rev 1.

Patrick M Garry, “Defining Speech in an Entertainment Age: The Case of First Amendment Protection for Video Games” (2004) 57:1 SMU L Rev 139.

Matthew Hamilton, “Graphic Violence in Computer and Video Games: Is Legislation the Answer?” (1995) 100:1 Dick L Rev 181.

Clay Calvert, “Violence, Video Games, and a Voice of Reason: Judge Posner to the Defense of Kids' Culture and the First Amendment” (2002) 39:1 San Diego L Rev 1.

Barry McDonald, “Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression” (2005) 81:4 Notre Dam L Rev 1347.

Kevin W Saunders, “Shielding Children from Violent Video Games through Ratings Offender Lists” (2008) 41:1 Ind L Rev 55.

Freedom of Expression - Law Reform

A synopsis to the class of the current state of the law and Ludological research:

Divergence Around Free Speech:

There is a polarization around freedom of speech in video game communities and within the games themselves. The foundation to these issues is not a new phenomenon and the law struggles to balance allowing individuals in video game communities to freely express any opinion they hold, good or bad, and regulating these areas. Famously, John Milton discusses this issue, although in the context of unlicensed printing in England, and was critical about regulation and bureaucracy.

Violence in video games:

The link between violent behaviour and violent imagery in video games has been a long standing topical debate on whether there is a sufficient connection between the two. This has contributed to commentators criticizing video games being recognized by courts as falling within the protective scope of the First Amendment. By protecting video games as a matter of policy, it will promote the important avenue of expression from the perspective of both creators and players. Notwithstanding the apparent unanimity of the courts, several people have taken a contrary position to this protection, being in favour of it being classified as unprotected speech within the categories of either ‘obscenity’ or ‘incitement’ with regards to children’s media. The decision in American Amusement machine Ass’n v Kendrick highlighted the court’s skepticism of the alleged harmful effects of video games predicted upon psychological research, challenging the causal link. Further there has been no conclusive evidence of the effects of video games than to the effects of violent imagery in general found in literature, art and popular entertainment, where violence is an eternal theme. Salamanca argues in his article that although video games can be distinct from these other examples, none of their distinguishing characteristics should suffice to deprive them of protected status by the First Amendment. Salamanca concludes that ‘violence is a fact of life’ and if a statute restricting the sale or rental to a minor of any video game containing violent imagery would inevitably suffer from arbitrary, unsupportable distinctions and be impermissibly vague.

Misogyny in video game communities:

Joseph Reagle, in discussing “open based communities” (i.e. Linux), examines the issues around the resulting gender gap in these communities. The “nerd/geek” identity is often associated with white males, a frat-house culture, and a minority of individuals who try to actively exclude women. It is these “vocal minorities” and the typical notions of what constitutes a geek which alienates women. Ultimately, Reagle suggests that there are three possible causes skewing the gender balance: “(a) some geek identities can be narrow and unappealing; (b) open communities are especially susceptible to difficult people; and, (c) the ideas of freedom and openness can be used to dismiss concerns and rationalize the gender gap as a matter of preference and choice.”

Reagle’s position provides an interesting cross-thread into the issues surrounding Gamergate and video game communities that operate in a similar, open-based format.

Limitations on freedom of expression:

Virtual worlds and communities, often in the form of or related to video games, are an increasingly important part of people's lives, and an important public forum. Given that the rules governing discussion in these fora are largely set by their corporate creators—in one sense they are “company towns”—freedom of expression issues may be engaged.

In the US, application of free speech protection to virtual worlds is likely precluded by the “state action doctrine”, which “limits judicial enforcement of constitutional rights to cases in which the government—and not a private party—is the source of the harm.” In Canada the equivalent is s 32 of the Constitution Act, 1982, which limits the application of the Charter to government actions. There is, however, a compelling case for analyzing freedom of speech/expression limitations within virtual worlds, as authors F Gregory Lastowka and Dan Hunter note: “[I]f members of our society are uncomfortable with limitations upon speech in company towns and shopping malls, how will we feel about speech limitations placed on entire (virtual) worlds?” [citations omitted]

In Megan Condis’s article, the author considers a debate which erupted on a video game forum for Star Wars: The Old Republic around a rule which prohibited use of terms around queer sexuality. The paper provides an interesting case where the governance of video game communities leaves something to be desired on the freedom of expression front. It goes on to contrast a later decision by BioWare to include queer romances in later video game titles—while critiquing the motive behind this decision: a choice passage notes that BioWare “include[d] same-gender romances in their virtual Star Wars universe . . . but only if players paid an additional $20 to access the additional content”.

Collaboratively define and describe how the law could change in the future

COMMON LAW

Possible course (on protecting free expression rights in video games)

• law could treat “private” video game fora as pseudo-public spaces
• broader application of Marsh & Laskin’s dissent in Harrison
• analogizing video games as a “public square”; as people spend more time in the virtual space, will they be recognized as “residents”?
• reduce the possibility of contract to constrict freedom of expression rights in these spaces

Status quo: ...uneasy truce?

• possibility of corporations limiting divisive or unpopular speech in games (self-regulation) motivated by profit, access to international markets
• e.g. limiting anti-governmental speech to appease authoritarian gov’ts (China, Turkey. . .), limiting religious speech to appease countries with strict blasphemy laws
• Can be viewed as the “worst of both worlds” - limits freedom of expression for all users based on strong vocal minorities.

STATUTORY

Issues with International law

• Our Charter is different than others
• Some International Agreement regulating online communication?
• Games are now protected under the 1st Amendment in the U.S.; would they lose that status under other countries government regulations?
• Would online games have their audience/market reduced to countries that sign on to that agreement?
• UN Mandate - Code of Conduct for Video Games, etc.

Policy Considerations?

• Do we want to enshrine the (democratic) ideals of freedom of speech in as many realms as possible?

• Create a Pro & Con list re changes to the law
• Write a recommendation for Law Reform/Change

	Pros	Cons
Industry Self-Regulation	Ex: LoL cracking down on “toxic” speech Faster than statutory/judicial reform Companies have freedom to regulate speech in accordance with the artistic vision they are trying to establish (i.e. Medieval game where users could only speak in ye olde English). Would not have an overall effect on society, enforcement would be limited and controlled based on what is best for the industry as opposed to society as a whole.	Impetus behind this necessarily profit motivated (if no profit, regulation will stop?) Companies values themselves could be “off-base” with the rest of society Companies slow to respond to complaints/disputes Company’s decisions could be completely arbitrary, with no consideration for the “public good”
Government Regulation	“Public Interest” taken into consideration Charter and Constitutional Law will apply Judicial Review Snowball effect to other online industries Comprehensive targeting of harassment issues generally Great for lawyers 2 avenues of dispute resolution (possibly; appeal to either the company or the Courts) Amendments to the Criminal Code to bring penalties outside the litigious civil realm Enactment of legislation in BC and Canada re: the tort of Cyber Harassment. Enactment of legislation of a new civil wrong of “harassment” similar to the American “intentional infliction of nervous shock” to address certain outrageous content. Legal aid for low income victims of cyber harassment. Could create an independent office to conduct research and make recommendations to government.	Traditionally slow to respond Chilling effect on innovation (?) Disincentivize small startups Interjurisdictional issues: how to prevent harassment given video gamer users from around the globe? Complex Charter litigation will be notoriously expensive Chilling effect of overly broad legislative wording Potential landslide of litigation based on “harassment”; potential abuse by those who can afford litigation to silence dissenting (but legitimate) speech “Legal Aid” is currently woefully insufficient to deal with what is already illegal (spousal abuse, etc.); adding to the burden will further the gulf between those who can afford justice and those who can’t