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• 1. Controlling the ControllersPart C Controlling | Talk 10Video Game Law 2013UBC Law @ Allard HallJon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy LLP@[email protected]

2. Follow ups to last weekViolence & 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.htmlWomen & Games: Donkey Kong: Pauline Edition (Princess savesMario) http://www.youtube.com/watch?feature=player_embedded&v=JeXDNg7scyUDr. Kimberly Voll creating a 48-hour weekend game jam thissummer theme is games with strong female leads (@TheCentre for Digital Media hangar) IN RESPONSE TOindustry pre-conceived notions - SEE: You cant have afemale character in gameshttp://www.gamasutra.com/view/news/188775/You_cant_have_a_female_character_in_games.phpITS (past) 3. This Week (Topic 1): PRIVACY Evolving & difficult; not a natural topic: Much of video gamehistory = single player Gaming modalities: Hard-drive to CD-ROMs to online tomassively on-line now to cloud On-line communities about games (forums) to multi-player tomassively multiplayer to life-stream Not news to gamers: Which Twitter tribe are you? Researchersdiscover new wave of online communities which even have their ownlanguages 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 thesubject GPL Monza Megapac!: There is a zip with all the updatesdone for Monza right here http://limerock.racesimcentral.com/monza/monza.htm This projectstarted as a small thread, now the thread is fifty pages long! 4. Privacy as Role ReversalLast week: rights of society from the consequences ofgames & gamersThis week: rights of gamers as members of societyCore conundrum: Gamers initiate content, not justpassively receive it (Television as transmitter to gameras transmitter - see Talk 1 If Picasso)YIN & YANG What we looked at previously in terms of IP complexity NOW THROUGH LENS OF PRIVACY COMPLEXITY 5. 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) 6. 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+ 7. 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 hithttp://www.theverge.com/web/2013/2/14/3989202/netflix-subscriber-data-house-of-cards 8. Scholarship & Discovery What Privacy is For Julie Cohen 126 Harv. L. Rev.(draft)http://www.harvardlawreview.org/symposium/papers2012/cohen.pdfPrivacy shelters dynamic, emergent subjectivity from the efforts of commercialand 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=2192191the article proposes a general law of friction for the internet: it should not beeasier to share an action online than to do it. The inevitable moment ofdecision to click a link or purchase an item should also be the moment when aperson chooses whether to disclose it. When there is a PLAY button to stream amovie, there could be a PLAY AND SHARE button right next to it.Linux ubuntu screen 9. 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. USTREAMs 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. 10. Layers of Privacy in Video Games9. Access to law enforcement by Search Warrant8. Access by law enforcement to information where gamer does not have a reasonableexpectation 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/ToS6. Gamer/Game information available to ISP/network carrier/mobile carrier (often includeslocation information)5. Gamer/Game information useable by game network/social network(permissions)/ISP (Steam, XBLive, Facebook) per ToS (often includes locationinformation)4. Gamer information useable by developer/publisher per EULA3B. 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 11. Two (yet unanswered) Questions Legal: Where among the Layers does the gamers reasonableexpectation 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 & THESTARTING POINT FOR SEARCH WARRANTS?See: Location Tracking and Biometrics Conference (YaleLaw)http://www.youtube.com/watch?v=OwutGSjNQ0k&list=PLEqpzAExPV-xr9gIhSqLMxTSXrimGF6pA&index=19&: The Spies We Trust: Third Party Service Providers and Law EnforcementSurveillance Christopher Soghoian (Indiana University August 2012)http://files.dubfire.net/csoghoian-dissertation-final-8-1-2012.pdfTHE GREY AREA 12. PRIVACY ACT [RSBC 1996] CHAPTER 3731. (1) It is a tortfor a person, wilfully and without a claim of right, to violate the privacyof another.(2) The nature and degree of privacy to which a person is entitled in a situation orin relation to a matter is that which is reasonable in the circumstances, giving dueregard to the lawful interests of others.(3) In determining whether the act or conduct of a person is a violation ofanothers privacy, regard must be given to the nature, incidence and occasion ofthe act or conduct and to anyrelationship between the parties.(4) Without limiting subsections (1) to (3), privacy may be violated byeavesdropping or surveillance, whether or not accomplished by trespass.2. (2) An act or conduct is not a violation of privacy if any of thefollowing 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 BritishColumbia, by a court or by any process of a court;(d) the act or conduct was that of (i) a peace officer acting in thecourse of his or her duty to prevent, discover or investigatecrime(3) A publication of a matter is not a violation of privacy if (a) the matter published was ofpublic interest or was fair comment on a matter of public interest, or (b) the publicationwas privileged in accordance with the rules of law relating to defamation. 13. PerspectivesSearch Warrants: Criminal Code (R.S.C., 1985, c. C-46)487. (1) A justice who is satisfied by information on oaththatthere are reasonable grounds to believe that there is in a building,receptacle or place (a) anything on or in respect of which anyoffence against this Act or any other Act of Parliament has been oris suspected to have been committedInternet Surveillance Bill is Dead but Canadas TelecomTransparency 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 ofprivacy http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htmR. v. Cole SCC finds reasonable expectation of privacy in worklaptop http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12615/1/document.do(reasoning extendable to video gaming spaces?) 14. MAKING SENSE OF PRIVACYRemember THE LITTERALIST DICHOTOMY?Symptom: Seemingly opposite political positioning betweenPrivacy literalists & IP literalists Privacy literalists tend to be more open source / free infooriented IP literalists tend to be more comfortable with commercialexploitation of personal dataApplying the Double Standards Test 15. Unified Theory 1 Privacy/IPCore Common Denominator?"Feeling" those 1s and 0s "belong" to meThat 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 PublicExpressions*** Privacy as a Moral Right (right not to be attributed) 16. Restated CoreWhat is the core common denominator of privacy & IPin the digital age?One answer that may be a helpful starting point - information.IP is in fact information designated as having been created bysomeone and therefor designated as belonging to thatsomeone. Personal information similarly is felt by us to becreated by us, personal to us and therefor belonging to us.Accordingly they are essentially the same and should betreated according to the same principles.What might those principles be? A Moral Rights model wouldsuggest they are the right of attribution (or not) & the right tothe integrity of the work/information. 17. Europe: The Right to be ForgottenEU judges to hear Google right to be forgotten case: Spanishofficials have taken Google to the European Court of Justice in a bid to force thesearch giant to delete information that breaches a persons privacy (Feb. 26, 2013)http://www.telegraph.co.uk/technology/google/9895279/EU-judges-to-hear-Google-right-to-be-forgotten-case.htmlBullying 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 OFTHE COUNCIL on the protection of individuals with regard to the processing ofpersonal data and on the free movement of such data (General Data ProtectionRegulation) Jan. 25. 2012http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdfArticle 17 Right to be forgotten and to erasureThe data subject shall have the right to obtain from the controller the erasure of personaldata 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 whilehe or she was a child, where one of the following grounds applies: (a) the data are nolonger necessary in relation to the purposes for which they were collected or otherwiseprocessed; (b) the data subject withdraws consent on which the processing is basedorwhen the storage period consented to has expired, and where there is no other legalground for the processing of the data;REMEMBER: 32% of gamers are kidsDefamation analogy? - Reputational 18. EULAs now Sword not Shield?PREVIOUSLY: Discussion of WHY/IF EULAS necessary given: 1. Ineffective to 1/3 of gaming population (kids)(generally not mentioned in EULAs & 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 othermore limited ways 4. Intellectual Property statutory & doctrinal baseline fairCorporate answer (?) = leverage re bad behavior + consumercontracting out of IP freedomsAlso: Contracting out of PRIVACY PROTECTIONS ??? 19. 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 collectedor used against your will) 20. Privacys chilling effect on creativityAn Important Question? Have parsed possible effects of IP chill onUser Created Content (mods, machinima etc.) Does LACK OF PRIVACY also chill User CreatedContent? Insidious Result?: lack of privacy as tool ofIP Literalism & enforcement 21. Identities Avatar v. real names what should be disclosed & to whom?Googles Vint Cerf explains why Facebooks real-name requirementis flawedhttp://www.theverge.com/2013/3/5/4066546/vint-cerf-real-name-authentication-useful-but-anonymity-necessaryFacebook wins legal battle to force Europeans to use real names onlinehttp://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 StatesOperation Game Over Initiative, 2100 More AccountsPurgedhttp://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-europeans-must-use-real-namesState Laws Restricting Social media Use by Sex Offenders Are Failing inCourt http://blog.ericgoldman.org/archives/2013/01/state_laws_rest.htm 22. Video Game Privacy BreachesUK 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-breachBlizzard Faces Class Action Over Battle.netSecurityhttp://www.gamepolitics.com/2012/11/09/blizzard-faces-class-action-over-battlenet-security#.UUl0jqXR1LwData Breach Class Action against Popular Video Game DeveloperDismissed 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/+ Steams Sub Agreement Prohibits Class-ActionLawsuithttp://www.rockpapershotgun.com/2012/08/01/steams-sub-agreement-prohibits-class-action-lawsuits/FTC fines Path mobile social networking app $800,000 for privacybreacheshttp://www.lexology.com/library/detail.aspx?g=6f2cc64a-755d-4cbf-a57e-b1ee458280f6Bug in EAs Origin game platform allows attackers to hijack playerPCshttp://arstechnica.com/security/2013/03/bug-on-eas-origin-game-platform-allows-attackers-to-hijack-player-pcs/ 23. 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 ProgrammingServices Public Notice CRTC 1995-5 (Sega game downloadsthrough 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 repealedprior to coming into force (mature & adult games not saleable to minors)http://www.leg.bc.ca/36th5th/3rd_read/gov19-3.htm + various Provincial motionpicture classification legislation containing definitions relating tovideo games + Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 (ads directed atchildren prohibited by Province)= PROVINCIAL JURISDICTION??? 24. Bringing us to KIDS (once again) SpongeBob app pulled over childrens 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 bykids http://ca.reuters.com/article/technologyNews/idCABRE91P05O20130226 Kids Reveal The Real Flaws Of Free-To-PlayGameshttp://kotaku.com/5988036/kids-reveal-the-real-flaws-of-free+to+play-games FTCs Second Kids App Report Finds Little Progress inAddressing Privacy Concerns Surrounding MobileApplications for Children http://www.ftc.gov/opa/2012/12/kidsapp.shtm Childrens Online Privacy Protection: U.S. DevelopmentsCompared to Canadahttp://www.datagovernancelaw.com/children%E2%80%99s-online-privacy-protection-u-s-developments-compared-to-canada No Do Overs: Children, Personal Information AndMarketing In Canadahttp://www.datagovernancelaw.com/no-%E2%80%9Cdo-overs%E2%80%9D-children-personal-information-and-marketing-in-canada 25. 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