Sep 242010

Alright… Zero Punctuation is one of my guilty little pleasures and I’ve been a member of the Videogame Voters (“Grassroots”) Network since I first heard about it in 2007. I think whole-heartedly that games are art (so much so that I no longer even pay attention to the argument because it has descended into absurdity) and as such should be protected under the first amendment. I agree wholeheartedly with what Yahtzee is saying, that indeed the anti-fun-brigade is throwing poop at videogames. But, unfortunately, and I’ve written about this and talked about it at conferences before. As the game industry has constructed itself thus far, it isn’t the same as books, film, television, radio, newspapers, etc. That isn’t to say games don’t have that potential, but that the game industry consistently shoots itself in the foot making games look more like “commercial speech” (speech for profit) over critical social and political commentary, which is what the whole first amendment is about.

I’m not even saying that games don’t do this already. Clearly, one need to only look at a game studio like Molleindustria or Persuasive Games or Brenda Brathwaite‘s installation games like Train and Siochan Leat to see the truth of this. But, this is not what the game industry predominately produces and as such is not how it is perceived by the general public. Now, it is true that major media does not predominantly produce this either, but it is percieved to by the “Lay Man” as Yahtzee calls them.

The trouble is this. I can create film, books, television, radio, newsletters, etc, critical of social or political issues and release that information to the broader public. Local movie theaters, public television (which, yes, is on the decline), public radio (which, yes is on the decline), printing presses, and numerous other venues await me to speak upon. In games, the situation is quite different. I can release my game online, on the Internet. These are not the games that legislation is attacking. It is attacking major videogame manufacturers, who I cannot publish with. If game companies were more open about their development tools and communities (which Microsoft has attempted to be, and even Apple has pushed this direction as well, although that is arguable until recent App Store changes), then I think the argument would hold, that mainstream videogames are indeed speech, and as such should be protected.

But I can’t speak on my Wii. I can’t speak on my DS, my PS3, my PSP, or even my bloody NES. It is largely a broadcast medium; a commercial medium. So while I deeply and firmly believe that games should be protected and current efforts, like those in California, are unconstitutional, the game industry is its own worst enemy in this respect with its tight control over content.

Of course, one might argue that the tight control is necessary for the functioning of the ESA/ESRB’s ratings system. True. But the foundational software development platforms need not be as tightly controlled. Major distribution channels can be governed, much like Apple’s much lamented, “walled garden,” which the videogame industry invented. At the same time, as someone who speaks, I can release my source-code to the world and anyone (with requisite knowledge) could play the game. There is a “public access” path to the mainstream. Interestingly enough, even though circumvention of an “mobile phone’s” copy protection methods to install unauthorized software is now legal despite the DMCA, the videogame industry has managed to exempt itself from this. The R4 and other mod-chips that can be used for copyright violation can also be used to create unauthorized games.

Long term, it is about raising awareness that games are bigger than Sony, Microsoft, Nintendo, and now Apple. Games are a medium for speech and rhetoric. At the same time the game industry must also perhaps begin making changes that speak towards the importance of the medium rather than strictly bottom lines.

  7 Responses to “Games and the 1st Amendment”

  1. Good points, although there is a problem: the last time the video game industry was an “open platform” that very attribute was one of the major factors that led to the Crash of 83, and it is exactly the current closed system that allows the industry to be profitable at all. It’s not just about adding a few percentage points to the profit margin, it’s about long-term survival of the industry at all. In this respect, the game industry has a long memory, and that is to its benefit. I’m sure you knew this, I merely add it for anyone else who hasn’t studied their history.

    The danger here is that if the (for-profit) industry is regulated, if its content is NOT deemed protected speech, and THEN the censors come for the Molleindustrias and Persuasive Gameses and Brenda Brathwaites of the world and say… hey, we don’t like this game because the political speech offends the current administration, so take it down before we throw you in prison. At that point, free-speech arguments on the individual level are much harder to make, because something so similar had been shot down earlier. So you are correct that these are two different worlds, but I’m not sure I’d trust the Courts to value such a subtle distinction. So, let’s lump it all together and hope for the best.

  2. Ian, you’re totally right that this is why Nintendo started the whole licensing thing, which worked for a really long time. I’ve written a couple of academic articles on the rise of licensing and dev kits. I think one of the differences is distinguishing between “the main channel” and “indie” channels. MS has done this with Xbox Live Community (Indie… Or whatever it is now) versus Xbox Live Arcade. So you can still control it without sacrificing quality (whatever that means) control and allow an indie scene to grow.

    I don’t think that anyone could really go after those small developers, because you’re getting to individuals who are being silenced rather than for-profit corporations. I guess, a little of what I’m saying is that the game industry needs to leverage the fact that there is a thriving indie/political/social game development scene outside the mainstream. But they will have to sacrifice some control.

  3. I don’t really agree with the basic argument here. One could make a similar argument about the fine art industry. Anyone can paint or sculpt, but only a very select few creators will ever see their work in a mainstream art museum. The mainstream world of fine art is just off limits to most of creators, and for similar financial and social network limitations that most game consoles are off limits to a vast majority of independent game developers.

    I don’t see how a few proprietary publishing platforms diminish the free speech protections of an entire medium. Just because laymen don’t comprehend that games are a medium of expression and interaction, not just a boxed product you buy from Nintendo or Sony, does not mean that we shouldn’t expect our courts to be more insightful on this issue. I don’t trust the courts to always reach the same conclusions I would, but I at least acknowledge that their job is always riddled with subtle distinctions to analyze… that’s what they do, and it is fair for us to expect them to do it with all the facts.

    Personally, I think the real issue that separates games from other media in the free speech debate is our interactivity. No game is simply a published, broadcast message. The player is compelled to take action to even experience the game/message/potential speech. That is a unique quality that blurs the line between “speech” and “action” significantly.

    To make an intentionally hyperbolic example, what if you had a KKK white supremist social game that awarded points and badges for spreading the message through social networks… nothing illegal but perhaps violations of the more progressive Terms of Service out there. In print media form, hate speech is often protected (especially if it’s articulate and not directly threatening or violent). In interactive mediums, I am not sure that it would still be protected speech because the medium is not just speech; it’s also action.

    I think that is the angle that will really matter long-term in how the games industry may be regulated. I don’t think the exclusivity of commercial platforms matters because proprietary platforms are popular but not definitive of the medium. Most games published are online web games these days, so if anything, the commercial closed-ecosystem consoles are the exceptions not the normal output of the games industry as a whole.

  4. Interestingly enough, Howard Becker made that point about “fine art” and “art worlds” back in 1984. But mainstream art has included social and political commentary since its inception. Games really have not. It is not the mainstream game industry doing the kind of work that really justifies 1st amendment protection. Let me say it again. I totally disagree with what California is attempting and completely agree that games are protected speech. What I AM saying is that the game industry shoots itself in the foot with continued reliance on restricted access to basic tools and systems.

    You’re right, we should expect more of the courts, and the courts have sided with the game industry for a long time. I don’t doubt that to continue being the case. At least until the folks making the argument against the industry come up with a more nuanced argument. That is what I am writing to warn about. Continued reliance on closed systems and secret proprietary platforms (emphasis on secret, proprietary is over-comable, as much open source software demonstrates) hurts our argument at being art.

    Imagine for a moment that you paint something. You want to show it in one of the only three galleries in the United States. You convince one, who then asks you to re-create your painting using their secret and proprietary canvas and paints. You do so, though halfway through they begin to doubt the “quality” of your painting and ask for the paints and canvas back (you were leasing it, you didn’t own it) so cancel you. This fundamentally undermines that games are art and not commercial speech.

    Your argument about the role of the user is interesting, but separate from what I’m talking about (licensing and development). I think you’re right that it represents something that is exemplified by games, but other forms of media are actually quite interpretable, as Derrida would note. So that has been part of the equation from the start. A text is not definitive, nor is a game. Interpretation is always at play.

    90% of game revenue remains on the console. Rising PC gaming revenues point more towards WoW than to real growth of the PC market. I’m not saying that all those alternative venues don’t matter, but legislation pays attention to 90% first and everything else later.

    Thanks for commenting, I love the new visitors.

  5. “90% of game revenue remains on the console. Rising PC gaming revenues point more towards WoW than to real growth of the PC market. I’m not saying that all those alternative venues don’t matter, but legislation pays attention to 90% first and everything else later.”

    Can you point to a statistic to back that up? I have a hard time believing it. WoW is 5% of industry revenue on its own; when you add things like FarmVille, not to mention all the other MMOs… there’s an awful lot of revenue flowing through PC that just isn’t tracked. Sure, RETAIL revenue is heavily skewed towards console, but when you throw in subscriptions, pay-per-play, microtransactions and digital downloads, I think you’ll find a very different story.

    That said, console is still an important piece, and more importantly, any legislative decision on console games is almost certainly going to end up applying to other platforms by default.

  6. My best statistics are from 2008 (from the ESA and Screen Digest) and are subject to the limitation that many of those other revenue sources you mention aren’t reporting it (micro-transactions in Korea for example). You’re definitely right that my analysis is also US centric, but that’s partially because we’re talking about a US law for US citizens at US stores. It will have implications for companies in Europe/Japan producing games for the US, but its focused on the US market.

    I also have to re-iterate, because your last comment makes me feel that I’ve not said it enough. You’re right, it’s bad. I think it’s bad too. Not to mention unconstitutional. The slippery slope is a real possibility here. At the same time, I’m just saying that the structure of the game industry is also a very real issue that makes this kind of legislation possible and creates the dangerous situation that a judge may very well rule that games are commercial speech. Not that its right. I’m also arguing this particular part of the point (I haven’t had time to do the post yet) because the game industry has a problem with “institutional memory” that is also due to these same licensing issues and lack of ability to share. Its due to churn and crunch for sure too, but the entire story is important and licensing gets off the hook too easily with the 1983 dismissal too often.

    Looking forward to seeing you at SIEGE… 🙂

  7. […] I Wrote a Thing: Games and the 1st Amendment […]

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