Course:LAW423b Video Game Law/Technology and Change

Technology & Change - Ludology Research

Seven Interdisciplinary Papers on Technology & Change

1) Claudio Feijoo et al, “Mobile gaming: Industry challenges and policy implications”, online: (2012) 36 Telecommunications Policy 212 <http://ac.els-cdn.com/S0308596111002242/1-s2.0-S0308596111002242-main.pdf?_tid=1ec6e6f8-72a5-11e5-84d2-00000aab0f6c&acdnat=1444849101_8793eb880405667bdf2dcbb12a587f68>.

2) Elizabeth Evans, “The economics of free: Freemium games, branding and the impatience economy”, online: (2015) 1:18 Convergence: The International Journal of Research into New Media Technologies 1 <http://con.sagepub.com/content/early/2015/02/09/1354856514567052.full.pdf+html>.

3) Kelly Bergstrom, “Disavowing ‘That Guy’: Identity construction and massively multiplayer online game players”, online: (2014) 1:17 Convergence: The International Journal of Research into New Media Technologies 1 <http://con.sagepub.com/content/early/2014/12/05/1354856514560314.full.pdf+html>.

4) Robyn Schell et al, “Social benefits of playing Wii bowling for older adults”, online: (2015) 1:23 Games and Culture 1 <http://gac.sagepub.com/content/early/2015/09/24/1555412015607313.full.pdf+html>.

5) William D Russell & Mark Newton, “Short-term psychological effects of interactive video game technology Exercise on mood and attention”, online: (2008) 11:2 Educational Technology & Society 294 <http://web.a.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=69b686a2-6762-4a50-99dc-2dab4774d552%40sessionmgr4003&vid=1&hid=4109>.

6) Valerie Insinna, “Contracts highlight growing role of video game training”, National Defense (2013), online: <http://web.b.ebscohost.com.ezproxy.library.ubc.ca/ehost/detail/detail?vid=6&sid=594f6a1e-c91d-4fc0-86d1-cfb48e3d1e78%40sessionmgr112&hid=124&bdata=JnNpdGU9ZWhvc3QtbGl2ZSZzY29wZT1zaXRl#AN=91689936&db=a9h>.

7) Hunter G Hoffman et al, “Feasibility of articulated arm mounted oculus rift virtual reality goggles for adjunctive pain control during occupational therapy in pediatric burn patients”, online: (2014) 17:6 Cyberpsychology, Behavior, and Social Networking 397 <http://online.liebertpub.com/doi/pdf/10.1089/cyber.2014.0058>.

Brief Synopsis of the Most Important Papers

Feasibility of articulated arm mounted oculus rift virtual reality goggles for adjunctive pain control during occupational therapy in pediatric burn patients

This case study provides preliminary evidence for a therapeutic application of “virtual reality gaming” for pain management in burn victims. Currently, the standard of care for pain management in burn victims involves the use of medication. Burn victims often report increased levels of pain during wound debridement when relying on pharmacologies for pain management, which is what prompted this case study to use psychological interventions to assist standard pharmacological analgesics for pain management.

The experimenters used Oculus Rift goggles to immerse an 11-year-old male burn victim into a virtual world. The case study spanned three days where the patient received physical therapy with no VR but standard pain medications, with both VR and pain medications, and a third day again with no VR but standard pain medications. The patient reported decreased levels of pain during day 2, where he received physical therapy using the virtual reality goggles in conjunction with his standard pain medications. He reported being “completely inside the computer generated world as if it was a place he visited”. As VR technology continues to develop, this readily available and inexpensive tech could become an effective way to manage pain.

The economics of free: Freemium games, branding and the impatience economy

The gaming industry has dramatically changed and expanded with the emergence of ‘causal’ and ‘free to play’ games. This article examines three specific ‘freemium’ games, exploring how they combine established branding strategies with gameplay methods that monetize player impatience in a changing gaming landscape. One example is that these games often monetize the player’s desire to reduce the time away from the game. By building in deliberate periods of waiting into the gameplay and combining that with limited time offers, the developers seek to generate and exploit a ‘get-it-now’ attitude.

The appearance of an open source philosophy and brand or time-based monetization strategies are becoming foundational pillars of the casual gaming market. Over time, game studies will more fully turn its attention to the impact of such commercial sensibilities on game production and design and fully question what freemium games can reveal about the nature of gameplay and the games industry in the face of changing technology and consumer preferences.

Technology & Change - Legal Research

1. Eric T Gerson, "Video game violence and the technology of the future". Brooklyn Law Review. Spring 2011, Vol. 76 Issue 3, p1121-1163. 43p.

2. Jason Samual & Jason S.T Kotler, "Merchandising Celebrity: A User's Guide to Personality Rights" (2002) 16:1 IPJ 1.

3. Karen Eltis, "Can the Reasonable Person Still Be 'Highly Offended'? An Invitation to Consider the Civil Law Tradition's Personality Rights-Based Approach to Tort Privacy" (2008) 5:1 U Ottawa L & Tech J 199

4. Roger S Fisher, "Legal Constraints on the Imagination in the Virtual World of Second Life" (2011) 23:1 IPJ 327.

5. Deviances in the Virtual Reality or the Character-Altering Power of Virtual Communities. Parti, Katalin. European Journal of Crime, Criminal Law and Criminal Justice, Volume 16, Issue 3, pages 325 – 343. 2008

Abstract: Although the term “virtual reality” is di cult to de ne semantically, it has a complex meaning in our everyday life. e word “virtual” itself has the meaning of vividness and reality. e attribute and the noun is practically the same so it does not take us nearer to the denotation of the term. e notion is the product of the simulative technology: Virtual Reality (later VR) makes it possible to cre- ate arti cial surroundings where one can experience how real situations move in a computer-simulated environment, try and practice the required behaviour under real circumstances. VR rst appeared in the military industry as a technique of drill but nowadays, it is also used in entertaining, with the computer games based on environmental simulation.1 In my essay the expression Real Life (RL later) is used as an antipole to VR referring to the fact that – although the origin of the virtual communities is the real community – the rules of real life are slightly dif- ferent in virtual circumstances as the philosophy, essence and nature of the virtual community is di erent.

6. "The freedom of 3D thought: The First Amendment in virtual reality". Blitz, Marc Jonathan. Cardozo Law Review. Dec2008, Vol. 30 Issue 3, p1141-1243. 103p.

Abstract: The article discusses the regulation of virtual reality (VR) under the U.S. First Amendment. It states that VR is not protected by the First Amendment because violence in VR can appear quite real, compared to film, book, or video game that are covered under the Amendment, due to the reprehensible violence that seems real. According to Howard Rheingold, the most significant and immediate threat of virtual reality is that VR will become as addictive, energy-sapping, and intellect-dulling as television. In addition, it states that the First Amendment right of freedom of speech generally protects expression and not non-expressive conduct.

7. "Sins of the Flesh? Obscenity Law in the Era of Virtual Reality, Communication Law and Policy". Jason Zenor (2014) 19:4, 563-589

Abstract: This article explores various issues concerning virtual reality, child pornography and the legal challenges that are occurring and will continue to evolve as the technology continues to change and improve. Suggests how current American legislation may help to address the need to protect minors from sexual exploitation in the virtual world, identifies some current weaknesses in the legislative regime and suggests potential avenues for the future as obscenity law itself adapts to the future technological and legal environment.

8. BONUS (not a legal paper but an informative article): More Than Just a Game. Thai Phi Le. Washington Lawyer, May 2013.

Technology & Change - The Current Law and Recommendations for Law Reform

Current State of the Law

In Canada, a person’s right to their image and likeness is protected in a few ways. First, four of the provinces (including BC) have enacted statutory offences prohibiting people from using the likeness of another person for some sort of gain. The offences in each province differ slightly, but they generally all have a fairly limited scope. In BC especially, the requirement for “commercial gain” regarding the offender severely limits the offence.

Additionally, there is a common law tort for appropriation of personality, which has been developed in other provinces (most significantly in Ontario).

These personality rights will be especially tested in light of the widespread adoption of virtual and augmented reality technology. This technology opens up a whole new realm of possibilities in the videogame world. In a hypothetical videogame that adopts virtual reality technology along with extremely realistic graphics, the ability for the user to create specific characters, and endless possibilities in terms of game mechanics, there is real potential that a person’s personality rights may be implicated. At present, our current framework will not adequately address these issues."

Suggestions re: the regulation of virtual sexual activity, in particular preventing the occurrence of virtual child pornography

Implementing legislation similar to the American PROTECT Act

Pros: - Balances freedom of expression with ensuring that obscene material relating to children is investigated and prosecuted - Does not require departing from the current obscenity regime or creating a whole new body of law - Has enough room and is "short-term future proof" in order to address the (future) capacity to create photo-realistic avatars of real people

Cons: - Does not address the sometimes problematic subjectivity of what constitutes "freedom of expression" - If current attitudes towards the unprotectability of "obscene speech" shift away from prohibiting "the obscene", then some of the prohibitions under the act depending on a finding of obscenity will no longer be effective - Definitions of what is considered "child pornography" still speculative, in that we are not yet assured as to how that technology will be manifested in the future

Possible Solutions: - If future virtual crimes are so close to actual crimes that the application of VR technologies would not be considered speech, then no need to overcome the hurdle of proving violation of freedom of speech - Deem VR hardware that enables virtual sexual activity (such as sex toys that compliment VR headsets) as sexual devices. This would shift the focus away from "distributing pornography", arguably putting it outside of the free speech realm and into the highly regulated realm that prosecutes, regulates and convicts other sexually-related crimes • Deem that creating an avatar that resembles an actual person for the purpose of VR sex could be classified as harassment, threat, assault or even rape

Proposed "Virtual Reality Commission"

Legislation is too reactionary and self-regulation is difficult to genuinely align with shareholder driven companies. A preemptive solution can be found in the establishment of a Federal Agency to act as a independent advisory institution. This is a natural response to novel experiences and potential harm. Has also been attempted with success in other fields (Federal Railroad Administration and Federal Communications Commission are previous examples of responses to major acute changes in society). Virtual Reality is an unparalleled experience and needs a progressive framework to determine boundaries in the unlimited expression. Solidified expertise is needed as a piecemeal construction will not suffice. Fundamentally this body has to be centered in advisory rather than enforcement . A revered and dignified institution can accommodate for the unforeseen consequences that virtual reality poses.

Pros: - providing recommendations gives legislative / judicial authorities a proper framework to change the law without stifling innovation and creativity - A specialized body allows for a reactionary response to any unforeseen issues that arise, as well as being able to predict any potential issues that are foreseeable

Cons: - Simple recommendations lack any real authority however and it is unclear how much deference will be given to the commission - Privacy Acts are provincial statute and each jurisdiction must agree to any recommendations provided by the commission; still lacks predictability across jurisdictions