This Week in Law 290 (Transcript)

Denise Howell: Hello there. I'm Denise Howell, and you are about to listen to another special gaming law edition of This Week in Law. We've got Ryan Morrison, Ross Hersemann, and Lauren Hanley-Brady joining me. We're going to talk about violence in video games — bad behavior by the players themselves; we're going to talk about some intellectual property concerns, too — can you pirate your own video game or encourage other people to do so?; the burgeoning world of E-sports; and much more, next on This Week in Law. 

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Denise: This is TWIL, This Week in Law with Denise Howell, episode 290, recorded January 30, 2015

I Think That Sword is a Claymore!

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Hi, folks. I'm Denise Howell, and thank you so much for joining us once again for This Week in Law. Because we've been doing it on a fairly regular basis lately and having so much fun with it, we're doing it again — we're having an all-gaming law episode of This Week in Law with all gaming lawyers or law students. Very hard-core geek crowd today, I'm proud to say; flying our geek flags proudly. Joining us from New York and the law offices of Ryan P. Morrison is Ryan P. Morrison. Hello, Ryan.

Ryan Morrison: Hello. Thank you for having me.

Denise: It's great to have you. You might know Ryan better as VideoGameAttorney on Reddit where he does some very popular AMAs. Great to have you here today.

Ryan: Yeah, I'm excited to talk a little bit about it. It's an interesting subject.

Denise: Yeah, it sure is. Also joining us is Ross Hersemann. Now, if you've been watching our gaming episodes, you're familiar with Suzanne Jackiw, also known as ZedtheGamer. Ross is a friend of hers, and also a co-author of hers at the LoadingLaw site. Hi, Ross.

Ross Hersemann: Hi. Thanks for having me.

Denise: Also a co-student of Suzanne's, correct, at Chicago Kent?

Ross: No, actually; I'm from the John Marshall Law School. I actually just graduated this last January.

Denise: Ah. There we go; I'm glad I asked. John Marshall. And congratulations on joining the ranks of former law students. (Laughs)

Ross: Thank you.

Denise: Also a former law student is Lauren Hanley-Brady. Hello, Lauren.

Lauren Hanley-Brady: Hello. Thanks for having me.

Denise: Lauren, you have your own practice; correct?

Lauren: I was just recently barred in December, and so we're still working on that.

Denise: Ah, there we go. Right. Great, great; congratulations on passing the California Bar. That is no small feat.

Lauren: Thank you so much.

Denise: All right. So let's get into it. We have all kinds of exciting gaming law stuff to talk about. I was telling IRC before the show, I'm not a gamer myself, but I'm sort of an over-the-shoulder gamer because my son, like many his age, is very, very, very into video gaming, would do it all the time if given the chance and choice. (Laughs) So I see a lot of it; and as a lawyer interested in tech and intellectual property issues, what I see always makes me think of, Whoa! That's going to be an interesting lawsuit or dispute or what have you when it blossoms into that. So we're going to talk about some of that kind of stuff today; and I think we're going to start on the copyright front.

(The intro plays.)

Denise: So a couple of weeks ago when we did our last gaming-oriented show, we did a lot on Let's Play. And maybe you guys should straighten me out on my terminology. I'm not quite clear, as we roll into this discussion, whether Let's Play is the same as just streaming the video of the game you are playing live. When I think of Let's Play videos, I'm thinking of people who capture their experience playing a game and then narrate it; and it's more of an on-demand thing than a live thing. Or am I drawing too thin a distinction?

Ross: I think you've got it right there.

Ryan: Yeah. That's basically the line. Also, Let's Play videos are kind of where it started because people didn't have access to streaming technology so easily, or there wasn't an audience for it; so they would pre-record videos, throw it on YouTube, and hope to get an audience. Now, with things like Twitch, it's a little easier, and there's more of a live streaming audience that's growing.

Denise: Right. But do you think it makes a difference, Ryan, in the legal issues?

Ryan: Only in arguments that are being made in the future, not yet. They're both looked at exactly the same currently; but there's a big argument being made for Let's Play videos as transformative works, which — I don't know how far back or early you want to start with copyright basics. But the difference between something infringing and something different is whether it's a derivative work or a transformative work. A derivative work means, basically, I can look at it, know the source; and there's going to be substantial similarities; there's consumer confusion. With a transformative work, it means you've changed it enough, you've done enough things to it, that now it's its own thing; and you can own it without it infringing. A lot of people, myself included — T. L. Taylor up in Boston, who's not an attorney but she's an absolute wonderful academic with this stuff — we're trying to tailor arguments to kind of prepare for upcoming litigation, or just even legislation, to make Let's Play videos — and eventually streaming videos — transformative, where they are their own thing; and if you're playing a Nintendo video game but streaming it and showing to your audience, Nintendo can't come and say, "You can't do that." But we're certainly not there yet. So right now, they're the same thing legally.

Denise: Right. As Ryan was saying, Lauren, traditionally before Twitch and other things that made it easier to capture video live, what you would do is use some third-party software to capture video as you were playing on your machine, and then you would either include the commentary that you were doing live while you were playing, or maybe add some additional commentary and then you would upload. Do you think it changes the game much? Obviously, Twitch is huge; but now Steam is getting into this game as well.

Lauren: I think it's a really good option for Steam to try and get the player base. I mean, they already have a fan base, and being able to offer this service when people may not want to pay subscriptions at Twitch if they're available or maybe even stream it, if they want to just play with their own group of friends and stream to each other, I think it's a really good way to reach that niche market. As for Let's Play videos, I mean, the more critical commentary that they add, the better off they will be. But there's definitely going to be a lot of litigation for just streaming; but I think, if Steam is offering that service, then they're giving a license — I assume there's some sort of license for allowing that kind of streaming.

Denise: Right. I'm kind of curious how this is all working since Steam is just an aggregation, a platform, for other people's games to reach consumers. Do you have any idea, Ross, how they've managed to get permission or if they've managed to get permission from every single title that's on the Steam platform?

Ross: I mean, those are kind of the gatekeepers for their service; so any game developers who want to be on Steam probably would want their games to be streamed anyway. It's a great way to market your games; it's a great way to get your name out there. But it's very different from the counsel market to Steam and other online avenues like Twitch. Nintendo, I think, just today started confirming that they were going to do some revenue sharing with people streaming their own content. Microsoft has a similar model. And now Steam — I think their process is still in beta; but I think from a game developer's perspective, it might be the best thing in the world; it might be terrible. It's going to be decided on a case-by-case basis.

Denise: So Ryan — again, not a gamer here, so you're going to have to clue me in to how this works. But if you're using Twitch or Steam and you're broadcasting your game live and you're adding commentary, that's one way in which you're creation will get out to its audience. Do you have the ability on either of those platforms to save a copy locally and distribute it in other ways?

Ryan: Not through those services, but there have been issues where people were playing a game and then kind of sharing their password or beta key. There was actually just — one of the most famous World of Warcraft players ever had his account permanently banned because he was letting people on his stream — the people watching were giving him their accounts so he could try out their characters and different things; and as a result, he got banned, and I believe the other accounts got banned. So it's up to these different companies to make their own rules, kind of trademark issues and copyright issues aside; and no one knows what's going on, really. Everyone has a different set of rules; there is no laws yet, and it's a big question mark for even someone like myself to advise these guys because it's so difficult to know the reality of the law versus the theory of the law when it comes to these things. We're using laws written for newspapers to control the video game market, and it's difficult. (Laughs)

Denise: Yeah. Back up to what you were saying a moment ago about some sort of legal designation of Let's Play videos as a transformative work. How are you working on that?

Ryan: I mean, we're not doing anything as of yet; it's more in preparation for when a lawsuit does come down for one of our clients or — I know T. L. Taylor, who I mentioned before, is working on something and trying to get a team together to actually push it to different people to have it better looked at. But the way our legal system works is, it has to be before a judge before this can kind of be decided; and it won't go before a judge unless there's an actual lawsuit. You can't go in front of a judge and say, What do you think? What's a rule here? Which is — whether it's silly or not, that's just how it works. There has to be someone in trouble before we will look at it. So really, time's going to tell; but the argument's very basic. It's saying, when these Let's Players or these streamers are playing their game, the people watching it are watching it as a different thing. They're not watching it instead of playing the game; they're watching it because that's what they want to do. It's the same as when I watch the NFL — I'm not watching the NFL instead of playing football outside.

Denise: (Laughs)

Ryan: So it's kind of a transformative work on the very basic level in that way, and it's really just common practice and the reality of the world right now. Let's Play videos and streamers are not going to go away. And if American businesses want to make money with this, then the American law needs to support that, otherwise they're just going to go to Europe or Asia, and that'll be that for our bank accounts. (Laughs)

Denise: Right.

Ryan: As a quick aside, I'm not sponsored by Disney. I am displaced because of the blizzard at a friend's — in his nursery; so I apologize.

Denise: (Laughs) I can't even see — do you have, like, the map of Cinderella's world behind you or something?

Ryan: Yeah. There's a lot of princesses behind me. (Laughs)

Denise: (Laughs) Very cute.

Ryan: Just wanted to make that clear.

Denise: Yes.

Ryan: I saw that in the chat, so wanted to clear that up. (Laughs)

Denise: You're in — what is it? — the Infinity game that Disney has?

Ryan: Yeah. Right; exactly.

Denise: (Laughs) You're playing that.

Ryan: [Inaudible] here.

Denise: Yes. Ross, you mentioned Nintendo changing its stance. We were just talking on our last video game law-oriented show about Microsoft releasing its rules for people making Let's Play videos; and Nintendo, up until very recently — just this week — had taken the stance that, hey, if you're doing Let's Play and uploading to YouTube or elsewhere and we have the ability to grab that ad revenue from you, we're going to do it. And so that's what Nintendo has been doing with YouTube videos is — the content ID system lets Nintendo know; asks them, do you want to take it down, or do you want to have the ad revenue? And Nintendo, up until this week, has said, Give us all the ad revenue. Now they're going to share that ad revenue with the impresarios of the Let's Play videos if certain conditions are met, including putting a disclaimer somewhere in the video — or I guess alongside it would work, too — talking about how this isn't authorized by Nintendo, etc., etc.; and it's being released under the creator's program, I think it's called. Do you think, Ross, that someone out there — I mean, you were saying, yeah, the companies want people to do Let's Play; it drives a lot of traffic and interest in the games. Do you think that some Let's Play person out there might say, Who says I need to share revenue? I am making my own creation here; it's a completely transformative work. It's loosely based on the game, but I'm adding so much to it that there shouldn't be any need for me to share at all. Do you think someone would test that?

Ross: Oh, I think for sure. First of all, I think most Let's Players don't even think about the legal definitions of what a transformative work is, what a derivative work is. They just want to have a channel and talk about a game, play through a game, whether they're doing a tutorial on how to beat a particular boss or whether they're commenting on glitches — they just really want to create something. So it gets a little bit complicated where eventually, we're going to have to test where that line is. If you think about the differences between a director's commentary on a DVD or a Let's Play, a lot of Let's Players will make the argument that a video game Let's Play is going to be a lot more interactive and a lot more transformative than a DVD commentary because it's going to be different every time you go through it; enemies might spawn in a different place in a various game. So you're never going to be experiencing the same content, and the purpose of watching that Let's Play isn't seeing the game; it's hearing the commentary and seeing this unique interaction. Watching a DVD commentary — the film's going to stay the same every way. And even though you're listening to the director's commentary or commentary from some of the actors, you're still watching the film. So I think what a lot of IP holders are concerned about is that Let's Players might be uploading game footage just for the sake to let people watch it and not really adding so much transformative work of their own. I think back to Halo 3 game footage where people had the final good ending cut scenes on YouTube by the next day already. Microsoft wanted to try and keep that on the down-low, to preserve people's surprise when they finished the games themselves; they didn't want that out. So I think that's going to be the battle we're going to see eventually. We're going to have some reactive definitions to what's transformative and what's not in Let's Plays.

Denise: Ryan, what do you think about the argument that Let's Players shouldn't have to share revenue?

Ryan: I think it's unfortunately a losing battle right now as it sits, exactly for what Ross was saying. RPGs or story-driven games, where you can watch a Let's Play video and know the ending and know the big reveal or the twists or turns, makes you not want to play the game. It does; it's a spoiler. If you know a TV show, it's the same way; you wouldn't watch that show. So that's going to be their main argument, that they're losing direct money from that, these companies; and unfortunately, the way our government looks at video games is all as one thing. There is not different genres. It's the way we look at music; it's the way we look at TV; it's the way we look at all forms of entertainment — it's just that form of entertainment. So if this is hurting role-playing games or story-driven games, you also won't be able to do it with Madden or sports games or things like that. So whether or not they need to be — back to your original point — whether or not they need to be splitting revenue, I think we're going to get to the point where they're not going to get any revenue. And maybe the lawsuits will start from their side, which is not what anyone's kind of predicting right now; but I just think it's a lot more realistic that they're all going to get shut down immediately, and one or two of the very popular streamers who's making — not thousands a year but millions a year is going to bring a very strong legal case against these companies and say, I do have something transformative, and I'll offer you this revenue share if we can agree to a compromise here. And that's the only way I see this progressing at all, otherwise it's going to be a pretty simple case of these companies that make the games own their intellectual property. This isn't transformative, and that's that.

Denise: Lauren, we've been talking 'about the transformative nature, or not, of Let's Play videos; and it occurs to me that another fair use factor is education. And I'm wondering what your thoughts are on the educational value of Let's Play videos and if that might also come into the mix.

Lauren: I mean, I think it's going to depend on what exactly the educational aspect is. I mean, I've watched a lot of Let's Play videos for boss fights and for quest glitches and stuff; but I think the more that it is a full walk-through of the entire game, even if there is commentary, that may have a weaker argument than specific parts of the game. I mean, educational — I mean, if you're doing a full game walk-through and you're trying to argue that it's an educational piece of video, I mean, you'd have to really add some commentary that is actually educational — maybe critical analysis about the content itself rather than just showing how to play the game. I don't know; I think that may be a bit of a stretch to try and do educational unless it is very specifically compartmentalized.

Denise: Yeah, I see what you're saying. I don't know; I guess I'm sort of hearkening back to our last gaming law show where we were talking about how there are a couple of universities in the United States that are giving scholarships related to their E-sports teams. I guess just because you have an E-sports team, that — football is football; educational — I don't know. I guess that would be the analogy.

Ryan: Well, as broken as the video game legal system is right now, competitive gaming in E-sports is — it's not broken; it's downright criminal. It's basically Mafia-controlled.

Denise: Yes.

Ross: (Laughs)

Ryan: I have not seen a single E-sports contract that is not downright evil. (Laughs)

Lauren: (Laughs)

Denise: Hold that thought. I want to get into that with you in detail.

Ryan: Sure.

Denise: I'll go ahead and put our first MCLE pass phrase into the show. It's going to be "downright evil."

Ryan: (Laughs)

Denise: Why wouldn't it be?

Ryan: I forgot, now that I'm a lawyer, you can't quote everything. (Laughs)

Denise: (Laughs) That's right. We put these phrases into the show for people who like to watch the show, not just because it's fun and informational, but because we, as lawyers and other professionals have these professional education requirements that need to be met from time to time so that — if you're a lawyer, so you can keep your law license; and other people have to go through those hoops, too. So we have information on how you can request continuing legal education credit for the show; that's at wiki.twit.tv. And we put these phrases in because some jurisdictions like to have some concrete way of demonstrating that you actually watched or listened to the show and are not just writing it down on a list. So "downright evil" is our first one.

I want to do one more copyright-related story and then get into the world of E-sports, if you guys don't mind, because I think that's fascinating, too. But this one just caught my radar, and I'm wondering what you guys think about it. It concerns a game called Hotline Miami 2, the sequel to Hotline Miami. And it was going to be released in Australia, but Australia has a pretty restrictive local age rating system; and this game includes a fictional rape scene. So the rating board in Australia said, Sorry, we're not going to rate that one; we're not going to allow it to be released because, I guess, their rating system doesn't just apply a rating to a very explicit game; it actually — you have to meet some content guidelines, it sounds like, in order to even earn a rating, so it's not going to be released there. But the game developer has come out and said, Well, don't worry about it; just pirate the game. And even though you can't buy it legally there, go ahead and pirate it; we think you'll have fun playing it. Ryan, what do you think about that?

Ryan: I mean, there's two ways to look at that question. If you mean whether that game designer's allowed to let people kind of circumvent the rating board and pirate the game, then normally, yes, the IP holder is allowed to create any kind of license he wants. If he says you can steal this game, you can steal this game. The hiccup with that — because a lot of game developers do that — is sometimes, these game developers are restricted by other licenses they've agreed to that they don't even realize, or that they've agreed to distribution deals where they can't be doing this; but it doesn't stop them from offering it. That said, I am not completely familiar with Australia's law, so I don't know if this is how it works in America in the sense that we have the ESRB who rates our video games. But they're not a government body; they're a private kind of organization that we set up so a government body doesn't get created. We say we'll regulate ourselves in the gaming industry; we don't need Congress; we don't need any of that; let us do our thing. And so far, so good. If Australia's is set up like that, where it's a private entity, then this guy can go around that no problem. They have no real jurisdiction or power there. If it's an actual government agency and their ruling was specifically, We're not going to rate this; we're not going to allow it to be sold here, that's also probably fine, what he's doing. But if they have straight-up said, as a government agency, that this game's not allowed to be played here, then he's probably breaking quite a few laws. Again, I hadn't looked this much into it because in Australia we deal with very rarely, oftentimes because of issues like this. They're a headache to go through in every avenue. And it's amazing what gets through and what doesn't. That this game was blocked and some others have been sold there is, I guess, conversation for another time. But he's probably well within his rights to do that, and you're well within your rights to download it illegally through his — however he's set that up for them. Right. (Laughs)

Denise: Right. I agree with you that the hitch in that, the potential legal hitch in that, is whatever distribution or however else he's licensed out the rights, what other sub-licensees there might be or assignees of the rights to the game that might say, Whoa! Wait a minute! No, you can't pirate this game to which we also have rights. Ross, do you have any other thoughts?

Ross: Absolutely. It's not just a legal issue; it's also a PR issue and an economic issue. It sounds like, if the game was banned in Australia, they weren't going to be able to sell it and get any revenue off it there anyway; so from a PR standpoint, making it available to hackers or to Torrenters to illegally download might be a great PR move on their point. They're going to get some street cred from their die-hard fan base who wouldn't be able to get the game in Australia, and they're going to get their product out there for great name-brand recognition. At the same time, they're going to run across a lot of regulation issues. I mean, if this is a government body regulating in Australia — which I believe it is — there's going to be strings attached to that, and there will probably be some kinds of repercussions that they're going to have to factor into, is this a good idea, or is it not?

Denise: All right. Lauren, any thoughts on this, including, why the heck do we need a fictional rape scene in a game?

Lauren: (Laughs)

Ryan: Unfair.

Denise: (Laughs)

Lauren: Yes. Why do we need one, indeed? I mean, they're also going to have the issue, if they wanted to release it in other countries and they want to charge for it, if they've already made it free — I mean, they say pirating. I assume there's government regulations that they can't just offer the game for free, and that's why they use the word "pirating" the game rather than just download for free. But if they ever want to expand their game to other countries and they have a decent rating or actually a rating that allows them to release in those countries, it'd be interesting to see if they actually make any money off of it because people who are good at downloading could just find an Australian version and adapt it to their version. And I mean, it's a good PR move; and maybe in the next game, they'll actually be able to get a rating and make money off of it by not including rape. (Laughs)

Denise: Right. And B-Swift in IRC is calling me on that question, saying, why do we need fictional rape scenes in books? Excellent point.

Ryan: Exactly.

Denise: Point taken. (Laughs)

Ryan: But in all seriousness, that's a very good point because that's — and I certainly hope I'm not coming off as defending fictional rape here.

Denise: No. (Laughs)

Ryan: But it's — no.

Ross: That wouldn't be good.

Ryan: What I'm saying is, Hotline Miami is a satirical game. It's set up — it's certainly not — there's worse in Grand Theft Auto, which is sold everywhere.

Denise: Right.

Ryan: There's worse in a plethora of games sold everywhere. There's worse on Game of Thrones, which is the highest-rated show on TV. And yeah, there's worse in any book you could read, probably ever. It's a very big double standard, when it comes to games, what is sensationalized into bullet point headlines of, Oh, this is a rape game, or this is a murder game. It's not, especially in Hotline Miami's case. I actually have not seen the specific scene, and I normally don't like to comment on things without seeing it, so I'll preface it with that.

Denise: Right.

Ryan: But it's a game created entirely as satire on this kind of Vegas lifestyle, an action game kind of feel. It's certainly not what you would immediately think of when you hear "rape scene," I'm sure.

Denise: Right.

Ryan: And so it's just an unfair kind of bullet point there.

Denise: Yeah. No, I get it. I'm just still trying to wrap my own head around if there is a difference between a book and a TV show like Game of Thrones, where — again, we have ratings and different things that apply to how you are able to access that content and what sort of judgments you can apply before doing so. And, as you say, in the U.S. we have the ESRB, and judgments can flow from there. And it's pretty specific in what it will tell you about what's in the game, in games like Grand Theft Auto. You know what you're getting into when you buy or permit your offspring to play that game.

Ryan: Right.

Denise: But still, I don't know. I wonder if this is — the reason why it makes a bullet point headline is there is a qualitative difference between reading something and watching it, possibly, and actively playing the role of the person carrying out the act. I think that's why legislators, judges, lawmakers, don't necessarily see this as in the other category. What do you think, Ross? Am I off-base here?

Ross: No, I don't think you are. I think that's a conversation that's been going on for a long time. A lot of people like to say that you interact with games, and I think that's very true; but I think that an interested person is going to interact with any form of media that they're experiencing, whether that's music or books. I've always said that if you feel you don't interact with a book, you're not reading it right. (Laughs) Try reading Stephen King at two in the morning under the covers, and tell me that you're not scared and that your heart isn't racing. I mean, that's an interaction.

Denise: Right.

Ross: And I think it's popular to say that video games are extremely more interactive just because you're holding a controller, you're being a puppet master for your in-game avatar. That's interactive, but I think that all media's interactive. And it's a total double standard against video games that they seem to be regulated differently against movies and books. We don't have an ESRB that regulates books. You said Game of Thrones is a very popular TV show that comes with its own ratings for TV and for DVD and Blu-ray sales. There's nothing to stop any kid from going to his local library and pulling that book off the shelf. I don't think most parents would know what it is; and if the librarian saw a kid taking a book that big to the front desk, they'd kind of applaud him for getting a book that big.

Denise: Right.

Ross: So I think that there are so many books that are freely accessible to kids; I think any book is a children's book if the children can read.

Denise: Yeah.

Ross: So it's just kind of interesting how one is logical to regulate, and one isn't. We would never think of regulating books that way for content in America.

Denise: Right.

Ryan: And if you —

Denise: And — go ahead.

Ryan: If you think this is bad — yeah, sorry. If you think this is bad, wait in ten years when virtual reality really gets top-notch.

Denise: Yeah. (Laughs)

Ryan: I mean, I have clients right now working on virtual reality through the oculus rift in partners eventually with things like FleshLight —

Ross: For sure.

Ryan: — where you're going to have an actual pornographic game where you're going to be having, basically, physical sex in that game and mentally stimulated as if it was real. So wait till our legislators and Congressmen see what's coming down the pipeline in a few years, and —

Denise: Right.

Ryan: — there will be a big overhaul of this stuff.

Ross: Yeah, this debate will definitely not go away.

Denise: Right.

Ryan: No, it's only going to get worse. But right now, something like Hotline Miami is just — it's a poor-graphics — it's a clearly satirical game; and there's actual games out there like — I hate to even mention their name and give them any publicity. But there's a game called Hatred, which was made by a bunch of — for lack of a legal term — assholes —

Denise and Ross: (Laugh)

Ryan: — in — I believe, Britain.

Ross: I think that is a legal term.

Ryan: Yeah. They made a game where, basically, you're committing suicide by homicide; and the game starts where you say some very clichéd, "I'm a sad guy; I'm going to go kill everybody" speech. You go outside, and you very, very viciously murder people in ways that just haven't really been done in games. And they've said that they weren't trying to do art with this; they were just trying to do what they wanted; and those are the kind of games where we're going to have bad legislation. Everyone cries "censorship, censorship, censorship"; but if we don't, as an industry, shut these people down, then the legislators are going to come in. There's not First Amendment protections that are completely infallible here and going to protect us forever. If we let these idiots keep making games like this just to push the boundaries, eventually we're going to have very scary laws where you won't be allowed to raise your fist in a video game anymore. And show me a good military movie or book or — Game of Thrones, for example again. We're going to have very restrictive laws on video games sooner than later if we allow this to continue. So it's kind of sad.

Denise: Absolutely.

Ross: Actually, Ryan, I kind of disagree because, I mean, Mortal Combat came out 20 years ago, and that was kind of the then equivalent of Hatred now; and that pushed us towards —

Ryan: There is no equivalent.

Ross: — getting an ESRB which, even though it regulates games, allows us to have a lot of the violent content that we have because of that rating system. So, I mean, whether or not they intended to be art or if they were just saying, this is senseless violence in its purest sense — which I think they have; correct me if I'm wrong. I think that freedom of speech doesn't exist to protect what you like; it exists to protect what you hate; and that might be what this is.

Ryan: I mean, you're never going to find a more over-the-top annoying liberal than me, and I wish freedom of speech could ring true forever; but I also live in reality where it doesn't. And these games are — there is no equivalent, respectfully, to Mortal Combat. This game, there's a scene where you literally rip a baby out of a carriage, shoot the mother in the head, and kill the baby.

Denise: Oh, jeez.

Ryan: I mean, that doesn't exist anymore. And Steam, for the first time ever, said, This game's too much; we're not going to allow it on our platform. There was a huge public outcry by people offended that there was anything censored anywhere; and it's now back on Steam. And hopefully it fails and does terrible, but the fact that it's being sold is a detriment to overall freedom. I know all the sayings of exactly what you said — freedom of speech isn't about protecting what you like; it's about protecting freedom of speech in general. But there's responsibility with freedom of speech, and there's an idea that you really have to understand — when you cross a line, you have to accept those repercussions. And if we as a community allow this company to cross that line — which we already have — then we need to accept those repercussions. Those repercussions are going to be laws that completely limit our freedom of speech. So we rang true for a week on one game, and we shot ourselves in the foot for the future; and it's just a sad thing to see keep happening over and over again. But it's unfair —

Ross: I think that the market will end up deciding it. Like, I don't think it's necessarily a legal conclusion that this kind of thing should be censored or pulled down; I just think that, from an economic standpoint, people won't buy it if they don't want it. But I think that that's more controlling than Steam or any other service that keeps games online.

Lauren: I agree.

Ryan: I think we're just —

Denise: Go ahead, Lauren.

Ryan: Yeah, sorry. (Laughs)

Lauren: I think it was actually probably a bit of a mistake for them to pull that game. I mean, they do have two other games that I won't mention for the publicity issue that are just as bad, and no one was really — I mean, there are going to be the A-holes that play those games, that buy those games, that make those games; but hopefully, if they're left in the dark, if they're not given a lot of publicity like banning it, like taking it off the service, then they will likely end up failing on their own. But when they've yanked it from the service, that just brought it to light. I mean, as soon as you ban something, everybody wants to know what it is. And then putting it back up, maybe over the next couple of months, the buzz will die down; and eventually, the game will fizzle. But I think when they took that one game down but they left the other two games that were up there that were very similar in violence, it did seem kind of arbitrary that — Okay. You have standards, sort of, but not across the board. So that's just my thought.

Denise: I want to continue exploring this. I want to recognize that we've moved out of the realm of copyright and into what I guess we can loosely call entertainment in the terms of a game like Hatred. So let's play our bumper and continue.

(The intro plays.)

Denise: Is the problem with something like Hatred — and the other games that we're not mentioning — the platform where you also have a myriad of very family-friendly games? And I'd love to see the demographics on Steam. I'm sure it skews quite young. Is it a problem of making a game like this available on that platform without further controls? What do you think of that, Ryan?

Ryan: That's an interesting question. I think it's more graphics, honestly; so whatever the platform is, I think it's a matter of how real that game feels or how real that game looks. I think — I'm not a hundred percent sure what other games were referenced, but I can assume; and the big difference is, those games didn't look real. Those games had very poor graphics, and they were a lot more cartoon-y in the killing. This is the first one where — whatever platform it was released on, I think it does have a console release and everything coming up, which all have different rules and different regulations. I think it's just a matter of, this one looks real. It is completely over the top theatrically in how things are accomplished and done; and I do think it's one of a kind, absolutely. I don't think there is an equivalent at all anywhere — that we've seen, anyway — and this over the top. So does the platform matter? Yes, because Steam does have its own rules, and it can do things like ban it or restrict it to certain age groups. But how easy is it to enter an older age and pretend your 18 when you're 12? There's the realistic responsibility and then a legal responsibility. The legal responsibility's very easy to meet; and so I don't think the platform matters here too much.

Denise: And here's an example of this kind of issue crossing over into other kinds of media: NetFlix. Families frequently share their NetFlix account. Individual family members usually don't have their own because they don't have to, and it's another however much you're paying a month. We share a NetFlix account in my home; and out of curiosity and for historical value, even though it had been banned somewhat, I started watching Marco Polo, their original series, with great hopes that it might live up to some of the other great original stuff that they've done. It's watchable; it's very much trying to be like Game of Thrones, and it is very much trying to be outrageous sexually in the way that Game of Thrones is with lots of naked paramours parading by, etc. So as an adult, I can make that decision and watch that programming or not based on — nobody has a problem with it. But because we're sharing as a family, it pops up as something that's been recently watched and is very readily available should other family members choose to click over and say, Oh, Marco Polo! We learned about him in school! (Laughs) And want to go down that same path. So just like with the television where you can — or the Internet or anywhere else — where a child can find themselves places where children shouldn't go, that's why I raise the platform issue, is on NetFlix, the friction to get to that kind of content is virtually zero as far as I can tell. And on —

Ryan: Well, they added — I mean — yeah. In NetFlix's defense, they added — because Steam's trying something like this, actually — they added the kids' profile, where you can set it where you have to put in a password to get your adult "watched recentlys" and things like that. And the kids' profile will only show kids' content, so that's — I don't know if that's working for Steam, honestly; but Steam — I mean, for Netflix. Steam's trying something like that, though, where they're having the family sharing program. You can share your game library with a couple other family members; and there's — if it's not implemented yet, I know it's being implemented — restrictions on — I'm only going to share these games with my children, or I'm only going to share this with my wife, however it works. So they're trying. (Laughs) It's just not there yet.

Denise: Right. Let's talk about the facts of this Hatred controversy for people who haven't been following it. First of all, Lauren, I'm not sure what the difference is between Steam and Steam Greenlight. Greenlight sounds like some sort of — yeah.

Lauren: So Greenlight is where developers will post their games in hopes that Steam will promote it on their platform.

Denise: Got it.

Lauren: Whereas, Steam itself is where you buy the official games that are approved by Steam. So Greenlight's where the developers go; Steam platform regular is where all the consumers go.

Denise: Right. So this got pulled down even from Greenlight, which sounds like not even available to the wider Steam audience; is that right?

Lauren: I don't know about that. I'm not —

Ryan: Yeah. Right.

Lauren: Yeah. Okay. There you go.

Ryan: (Laughs)

Denise: So yeah. Okay. And then, after the controversy came up about, this is censorship and should not have been removed, Valve co-founder Gabe Newell apologized to the developer and wrote him an email saying, "Yesterday I heard we were taking Hatred down from Greenlight. Since I wasn't up to speed, I asked around internally to find out why we'd done that. It turns out that wasn't a good decision, and we'll be putting Hatred back up. My apologies to you and your team. Steam is about creating tools for content creators and customers. Good luck with your game, Gabe." So Ryan, you think, actually, despite the discussions we've had today about the full First Amendment protected nature of video games, that this was a mistake on Steam's part to go ahead and put this back up.

Ryan: Yeah. I know I have a very unpopular opinion here. I'm on Twitter and Reddit, so people are not shy about telling me what a Communist idiot I am. (Laughs)

Denise: (Laughs)

Ryan: But I just — ideals aside, I'm a very — I try to be very realistic because I am an attorney. I'm advising this community every week on Reddit, or individually when they're my client, on what I think is the best legal course. And yes, right now, video games are First Amendment protected; but that is just because of a current case that is right now on top. More cases will come down; that's going to be tested. And a game like this is the one that's going to have our Supreme Court say, Whoa, whoa, whoa, wait a minute. This is too much. We're not going to give First Amendment protection. Do I agree with that? No. I wish there was First Amendment across the board. But realistically, I know that that will never happen. This game will not be allowed to go forward if this reaches Scalia's pen. It's just never going to get to the other side of that with freedom of speech still standing strong in video games. So I hate myself for having this opinion, but it's unfortunately just the realistic side of this controversy right now.

Denise: (Laughs) Right. And technically, this isn't a free speech issue when we're talking about a private entity like Steam as opposed to a government-imposed restriction. Steam can decide to let whatever on its platform that it wants, and free speech isn't implicated because it's only government action that triggers a free speech concern. And I assume you guys all saw the comments from Justice Kagan about how close she came to going the other way in the Brown v. EMA case last year, where there was a California law that was proposed that would have led to more restrictive requirements on violent video games and sort of a squishier test on determining whether something was violent or not. And the Supreme Court struck that down, struck down the California law, and came down on the side of free speech, but only by a five-four margin. And Kagan did not at all sound comfortable that she knew in her heart of hearts that she'd made the right decision. Any thoughts on that, Lauren?

Lauren: I mean, it would have been — I mean — I believe it was the ESA or the People defending the freedom of speech in the video games. I mean, their main argument was, we don't do this kind of selective banning on content in other types of media; it would only be in video games. And they were not — that's just not — really, the way that our system does things is, we want to protect all types of media the same as we can. I mean, I'm glad, obviously, that it came down the way that it did; but it is scary that there are games like the one that we were talking about that could possibly tip the scale if it did get up to the highest court. And just hope that games like that are not as popular as the mainstream games.

Denise: Right. Ross, any final thoughts on Hatred and this controversy before we move on?

Ross: Something raised in the Brown case that I thought was kind of interesting is this discussion of whether or not violence qualifies as obscenity. In America, we really don't have any issue regulating what we would call obscene materials, which are usually sexually related, for children. We don't sell pornography to children. I think that's a good idea, and I don't think anyone would really disagree with me on that one.

Lauren: (Laughs)

Ross: So the argument could be made that if violence is also obscene, that there's a legal precedent involved that obscene materials can be regulated and not sold to children. So far, no one's really successfully made that argument yet, either in a case or in legislation, to the best of my knowledge. But I think it sets a very dangerous precedent, saying that we can or cannot decide to regulate some content differently from others, whether it's cross-media — saying we're going to regulate video games differently than we regulate books or films or virtual reality, whatever comes down the pipeline, or even within video games. I think it's overbroad and too strict at the same time. Where is violence contextually acceptable, and where is it not? There are games out right now that are very violent, that have literary, scientific, artistic, or political importance, that has purpose and that has worth beyond just being violent; and then there are games like Hatred, which may be violent just for violence' sake. So I think regulating content is generally, without being too overbroad, a very dangerous thing to be doing when you're citing specific examples.

Denise: All right. Well, I promised we were going to get back to E-sports. We talked two shows ago about the scholarships that a couple of United States colleges are offering. That doesn't mean that hundreds of other colleges who aren't offering scholarships don't also have E-sports teams; they do, and E-sports is definitely a huge thing. There's major league gaming; there are E-sports athletes. Recently, following lobbying from Riot Games, the United States government decided to offer visas that identify foreign E-sports professionals as professional athletes. So if you're not already paying attention to this, do so now because it's a big deal; but apparently — and this is not the first time you've said this, Ryan — the athletes are not being well taken care of as far as their teams and the people who are signing them. The contracts, you have said previously, are downright evil. You've looked at some of these contracts, I take it?

Ryan: Yeah. It's not that they're not being taken care of; it's that they're straight-up being taken advantage of.

Denise: Yeah.

Ryan: They're being robbed. I got into E-sports originally by being reached out to by some of the — he actually said I could use his name. He's very popular in the Dota 2 scene. He goes by the handle CyborgMatt. He's not a player, but he's someone who would analyze Dota content, write articles on it; and he's also popular on Reddit where I kind of am a bigger part of that community. He sent me some of the top-tier players who asked me not to use their names; but these are the top of the top — these aren't low-level guys — who won a lot of money and never got paid. Their team just does not pay them. They come up with a million excuses; they say, Oh, you owe us for this; oh, that bag of Cheetos was a thousand dollars. They just don't pay them, ever; and they're out of luck. These are kids who weren't working under a contract; and if they are working under a contract, it's written with law that is not law; it's written with things that are just meant to look and be scary with absolutely no jurisdiction or power or legality to them on any level. I mean, you're in California, I believe; right?

Denise: Yep.

Ryan: So every single one of these contracts has a non-compete clause, which is just outright not allowed in California.

Denise: Right.

Ryan: And that's at a minimum. So these kids are scared, thinking they're stuck to play for this team or no one else; this team's not paying them; and they're afraid to talk to attorneys. They don't think to talk to attorneys. I've offered pro bono services to go in with some of them for negotiations or to get an actual contract signed; and they don't want to because they think — they're actually being told by the team owners, If you bring in an attorney, we won't work with you — [Audio cuts off]

Denise: Oh! Ah, we knew that was going to happen.

Ross: There's the battery.

Denise: Well, at least we got some of Ryan's thoughts. We knew when we started the show that Ryan was on a laptop that had a quirky battery and it was not able to be charged. Thank you so much, Ryan. I know you're not on with us anymore, but we've really appreciated your thoughts, and we'll go ahead and continue on with the conversation. I'm wondering, Lauren — have you had any exposure to these E-sports contracts that Ryan was discussing?

Lauren: I haven't seen them, but I highly imagine that the players are very much like the cow, and the contract holders are very much the farmer. It's probably very similar to the gold farming communities out in Asia and some of the other continents that have these people that are pretty much locked in to — they have one skill, and someone knows how to make money off of that skill, and they're pretty much beholden. I mean, I would lichen it, probably, to a new artist with a recording agency. I mean, obviously not to that degree; there are a lot of lawyers who'd be willing to take up the cases of an artist being taken advantage of in this country; but in other countries, they're probably not that kind of legal community willing to step up for the players. So they get what they get and hope that eventually they can retire and be left alone and actually have some money in the end.

Denise: Yeah. Ross, we certainly have some rules in place to prevent people from being taken advantage of contractually. First of all, as Ryan was saying, some of these players don't even have contracts, so there would be a starting point to at least bring the educational level up to the point where there are some written terms between players and their teams. But if those terms are completely skewed against the players, do you think that principles like unconscionability will come into play here to help?

Ross: Absolutely. Unfortunately, this kind of situation with E-sports and video game players trying to go pro, whether in major league gaming or other venues — it's all too common, and it's been going on almost as long as gaming has been around. I mean, we've had video game tournaments since the early 1980s. I think of a couple players from the Twin Galaxies arcade that were in the Chasing Ghosts documentary who were part of a traveling tournament that — their paychecks got bounced; they had to pay their own flights back home when the thing went belly-up; and that kind of thing is just all too common, where a lot of these players — they're kind of young. They're kind of in their late teens or early twenties; and just the draw of going pro — being a professional gamer — it still has kind of this sexy celebrity to it, where it's not a tried and true thing. It hasn't been around that long. It's not like going pro in baseball. We have kind of an established set of rules and guidelines for how to do that that protects players and also protects the League. But for video games, I think just that sexy draw of going pro and being a professional gamer — it might cloud some of those players' judgments, where they might willingly enter into a contract or oral agreement where they agree to play for only one team; they agree to only be paid a certain amount because just that draw of doing what they love for a living just kind of counterbalances everything else. And I think it's really important, as this industry gets started and continues on and there continue to be more people who are going to protect their interests, that people like Ryan do protect their interests and help them out, negotiating fair shakes in their contracts.

Denise: Yeah. It strikes me as a strong parallel, not only to indie music artists or up-and-coming music artists —

Ross: Sure.

Denise: — but in California we have a lot of folks who like to surf and skateboard; and there's sort of a thriving cottage industry in taking those smaller niche sports pro and paying those athletes. And I'm sure they've had their growing pains in those industries as well as they figured out how not to have the athletes themselves taken advantage of, I guess. Now, especially with Disney now doing a show called The Gamer's Guide to Pretty Much Everything that is all about a young E-sports player — and the press release sounds kind of comical. The guy has an injury, a thumb injury, — (Laughs) — that prevents him from —

Ross: Don't laugh about that; that could be career threatening.

Denise: Yeah, I know, I know; it could.

Lauren: (Laughs)

Denise: So he has to go back to school and figure out how to maintain his E-sports career and live as a normal teenager. Sounds a bit hokey, but Disney actually says they're going to be including gaming footage in the show and that — if nothing else, this show will have an audience on the Disney channel. If you've got kids of a certain age and the Disney channel, you know that those shows get watched and will definitely publicize the whole notion that, hey, if you're good at video games, you can do this professionally. So more and more kids will be exposed to the concept that this is an option for them; and so again, we have to make sure that, one way or another, the industry matures in a way that's not taken advantage with downright evil contracts or otherwise no contracts. Any more thoughts on E-sports, Lauren?

Lauren: Just for, like, the Disney video channel, the new TV show that they have. I hadn't heard that they were going to add actual game footage, which makes, I think, a huge difference because I was originally looking at the little blurb about it; and, I mean, for anyone who's into E-sports, it's not going to be hard-core enough.

Denise: Yeah.

Lauren: For anyone who's not into video games, obviously this TV show's not going to really work for them; they're not going to be interested in it. So it would be — I mean, they're going to have to find a right balance of — if they actually have license to use an actual game's terminology and characters and actual footage, then I think it'll make it a lot more engaging for those who actually do enjoy video games rather than just talking about it. As much as I love The Guild, the lack of — in the earlier seasons, when they didn't show any of the footage — I mean, obviously, they were talking about a specific kind of game. But the less that they can talk about the actual game itself, the less engaging it is; so it'll be interesting to see what they do with that show.

Denise: Let me correct myself because I misspoke what the actual press release says. It sounds like they have not jumped through the hoops of licensing actual game footage from actual games. You're right; that would make it far more realistic and strike a chord with people who play those games. What they say is, they're going to — here it is. "We are bringing the video game universe to life and giving our popular multi-camera series a fresh new twist by integrating gaming visual effects into each episode."

Lauren: Ah.

Denise: So they're going to try and make it look like actual game footage, but it doesn't sound like they've gone to the trouble of the next step, the licensing that they —

Lauren: That makes sense.

Denise: Yeah.

Lauren: I mean, there's only so many games that really do E-sports; and so if they specifically form the show around one game, they're going to risk alienating people who are interested in the other games that do E-sports.

Denise: Right.

Lauren: So it'll be very, very mainstream, but that's fine.

Ross: For sure.

Denise: Well, let's talk about that and bring in the themes we were talking about earlier, about how there are some very controversial games out there that nevertheless find an audience. What makes a good E-sports game; and what if someone tried to form an E-sports league around something like Hatred?

Lauren: (Laughs) Well, there definitely, I think, would have to be a lot more multi-player action because the whole point of E-sports is that you're playing against others or you're playing against the computer. More likely, testing your skills against other players is of more interest; but there has to be a wide enough fan base that people can actually get good because if it's a smaller game, they can be okay at the game; but the larger the population base, the more players you can test your skills against and the better you actually get. So I think having a limited fan base would really limit the ability for a game to become an E-Sports phenomena.

Denise: So what's the really big one? League of something?

Lauren: Legends.

Ross: League of Legends.

Lauren: LOL.

Denise: Yes. Tell me about that game, and why does it make such a good E-sports game?

Ross: I think that for any game to be a really successful E-sports game, it just has to be fun. The people play games to have fun; and League of Legends — I wish that I had played more of it. I don't have quite the time that I would like to be playing League of Legends — or the skill, for that matter. But that game especially — it's got a huge community; it's got a great user base that's very friendly and open; and like many other games like it, it's just fun to play. That's what brings people together, and that's why people will watch Let's Plays for League of Legends because they want to see what's happening in the community. And it's just this great network together that people want to follow. So I think any E-sports game — it has to be multi-player; it has to be fun to play; it has to be easy to access; and it just has to have a very wide user base. So that's why things like World of Warcraft, Counterstrike — any NMO/RPG that has a huge fan base attached to it — that's why it has a huge fan base attached to it.

Denise: Mm-hmm. All right. Let's see. We definitely have one other topic under this category I'd like to get to, and that is right of publicity, which always comes up when we're talking about video game law. Before we get there, I'm going to put our second MCLE pass phrase into the show. Let's make it "League of Legends." So there you go; we've got two of them in the show if you need to demonstrate that you've watched or listened to the show for continuing legal or other professional education credit.

And let's thank our sponsor for this episode of This Week in Law, which is FreshBooks. We talk about FreshBooks a lot on the show. I use it in my law practice. It is both time-capturing software for individuals like attorneys who bill their time, who capture the amount of time that they've spent on a task and get paid that way. It does that for you; and once that time is captured, it very nicely, very seamlessly, generates an invoice with the detailed description of your time, manages everything online for you, and gets that invoice out to your client and gets paid. It sounds like a simple, simple product, but it's very well thought out. If you’re using a watch to try and capture the time that you’re keeping in that kind of business or the clock on your computer and then taking down notes, you don’t need to do that anymore. You just run Freshbooks on your phone, you start the timer, you go and then it captures that time and puts it right into the right invoice for the right client. It’s built for growing businesses. On average Freshbooks customers double their revenue in the 1^st 24 months. That’s a big deal; twice the revenue over 2 years is nothing to sneeze at. And not only is the money coming in in greater volume but an average of 5 days faster. So great benefits all around with that. If you’re using Word or Excel or Google Dox or some other sort of spread sheet or work processor to do your invoices just reflect for a moment on how unprofessional that looks. The great thing about Freshbooks is it’s very reasonably priced for a small business and there is just no excuse for not having a professional invoice under those circumstances. It’s the easiest way to create those professional looking invoices in just minutes. You know when you have a client who’s just kind of forgotten about paying you or maybe they’re having a tough month or whatever and you need to remind them? Actually Freshbooks will help you do that in an automated way so you don’t feel like a jerk when you’re picking up the phone and trying to get your client to pay you. You can set up recurring profiles and if you have certain tasks that you perform every month and get paid for every month those just go out automatically. You put it on auto pilot and you’re going to get paid. You also, obviously when you’re doing that you spend less time on paperwork. Freshbooks customers can free up to 2 days per month to focus on the work that they love. Do you keep your receipts in a box? Don’t do that or in a cupboard or wherever your receipts might live. What you can do more efficiently is snap photos of those receipts right from your phone and once again those expenses are captured and go right on the proper invoice that goes out to your client. You can access complete financial records so you can keep track of expenses and be ready for tax time which is right around the corner and it integrates with the apps that you’re already using like Google Apps, PayPal, Strike, Mail Chip, Zen Payroll and more. If you ever need help call up Freshbooks and you’re going to talk to a real person every time and support is free forever. So you’ve got to give it a try right now, for free with no obligation. You’ll get a 30 day free trial by going to www.freshbooks.com/twil and don’t forget to enter This Week in Law when they ask you how you heard about them. It helps us a lot and lets Freshbooks know that you’re a fan of the show. We’re a fan of you for supporting our sponsors and we’re a fan of Freshbooks for supporting This Week in Law. Thanks so much Freshbooks. We greatly appreciate it. Alright let’s talk about Right of Publicity issues. We mentioned Glorious Leader a couple of shows ago and Dennis Rodman. Ross you wanted to talk about that so tell us about – for people who missed the show what’s going on there and if there are any new developments.

Ross: Sure. It looks like the game isn’t going to be released now but for the uninitiated what happened was; I think a lot of us know Dennis Rodman was having some kind of political ties or ambassador status unofficially with North Korea and was meeting with Kim Jung a couple times. So the game came out and it was called Glorious Leader that had him as a playable character or he was available in the game that he was not affiliated with in any way. So when he heard the game was going to be released he; I think it was to TMC but he started releasing a couple statements that if the game was released he might initiate legal action for right of publicity. He didn’t want to be associated with it. I think the latest now is that the game is not going to be released so it’s a bit of a moot point but it was kind of the latest of a series of right of publicity issues of celebrities being inserted into games where they didn’t want to be. Another high profile case about right of publicity was the Lindsay Lohan grand theft auto case. She’s trying to say that her likeness was used in that game and that’s kind of the uphill battle she’s fighting right now. But it really seems like right of publicity is going to be the hot topic for a lot of video game lawsuits in the near future.

Denise: It intersects with these issues of free speech that we were talking about earlier in the show because there is a lot of confusions about whether one’s right of publicity trumps a game developers right to create something artistic that may resemble you. Professor Eugene Volokh at UCLA has commented on the confusion around the right of publicity law in video games and he says that the trouble is different courts have drawn different lines and roughly speaking there’s authority for at least 5 different rules. As you were talking Ross I was reminded of the well-known Noriega case where imprisoned deposed leader Manuel Noriega was upset with his own portrayal in – which game was it? Was it one of the Call Of Duty game maybe?

Ross: I think it was the latest Call of Duty.

Denise: Right. I’m not a fan of the fact that he’s pretty clearly depicted in that game when you look at the graphics but the court said that there was actually a free speech right here to go ahead and portray him in the game. So what do you think Lauren of the friction between those 2 interests?

Lauren: Well I mean obviously the person being portrayed is generally going to oppose it if they’re not being portrayed in a positive light. So a dictator being shown as being an evil dictator in a video game is not likely to approve that. That’s the problem with the right of publicity law as the professor at UCLA stated is because it’s state law and so there are 50 different states that can make… and obviously there’s districts but eventually this is going to have to be brought up to the supreme court to make some sort of clarified rule as to what the lines are for right of publicity. Portraying someone in a realistic fashion or the role that they played in real life like that Patten case there is definitely going to be some interesting cases. We’ll have to see what comes down but it also has the risk of being some really bad case law that could affect as it states in the article; more than just video games and can include – especially for jockey dramas and a lot of other areas of media.

Denise: Yes, always an interesting thing to watch because whether it’s an athlete or a dictator or an actress who’s not happy about her portrayal in a game this seems to come up quite frequently and again the cases are all over the map. Let’s switch gears for a moment. I’m so sad that we lost Ryan but he has been involved in a bit of a kerfuffle with Reddit where he is a big part with the community and I thought it was at least worth touching on in the show today and I do hope to have Ryan back soon so we can touch on it with him as well. I want to get more into areas that involve the social web here. So Ryan is the video game attorney on Reddit and does a lot of popular AMAs there with developers and others who have questions about things like we’re discussing on the show today and in even greater detail and has actually had some pushback from Reddit and interestingly it sounds like not from the New York bar or any other kind of attorney ethical body. Reddit has come to Ryan and I’m not sure if they pulled down his count or restricted visibility to do these AMA’s. Maybe you guys are more versed in it than I am but one way or another Reddit has this policy where if you’re using Reddit for your own commercial gain then you have to be – it’s only a certain percentage of your usage. Am I getting that right?

Ross: I think it’s 10% maybe.

Lauren: I think he wasn’t active enough outside of his commercial use.

Denise: So this seems like kind of an arbitrary line to draw and points out how difficult it is to be a lawyer with an online presence because not only Reddit but some of the regulatory bodies for lawyers require you to make a bunch of disclosures if what you are doing is in fact advertising. I guess that’s kind of what the Reddit thrust to Ryan was; you’re using this too much as a self-promotional avenue and knock it off. So what do you guys think about drawing the line. I mean he’s performing a pretty great service there on Reddit by providing a lot of good information and interaction on legal issues. What do you think about lawyers and their online activities in general Ross?

Ross: I think it’s something that the ABA and regulatory bodies for attorneys and their professional responsibility rules it’s something that we haven’t covered yet and something very new. It changes from state to state, all 50 states have their own rules on what is attorney advertising, how they can advertise, whether or not they can be in television commercials, have ads in the newspaper and that varies so much. So when you try to have an online presence you’re running the risk of violating those rules in any of the states. What was so interesting about what happened with Ryan (I think it was really unfortunate) was… I have to say first before Reddit kills me; I love Reddit, I’m a long term lurker and I love AMAs but the mods on Reddit determined I think that Ryan’s AMAs were more self-promotion than they were not I suppose. Despite a 90% rating which I thought was kind of funny. But I think that it’s a new reality for a lot of attorneys that this is going to be something that has to be decided soon in what ways attorneys can advertise online and in what ways they can have an online presence. Most law firms and attorneys whether they’re big 700 attorney firms have a web site or a blog, speak regularly at conventions and events or podcasts like this and it’s something that we’re going to have to look into and something that I don’t if it’s on the ABA’s radar yet but it will be soon.

Denise: I’m going to make a note to Zach in the studio that the IRC is telling me that Ryan might have a computer that has a battery that he can use and is back on skype. So Zach if you can get him back into this discussion that would be great. Give it a try if you can. Lauren what do you think about lawyers and their online activities? It must be something that‘s near and dear to your heart as someone just starting in the legal profession and as someone who’s quite active online.

Lauren: Yes, it’s really a shame. I’ve actually read through a lot of – the last 3AMAs that he did. If anyone doesn’t know that’s “ask me anything” and they used the Reddit fan base so all the developers can ask and the questions that they’re asking are basic copyright law, trademark law, basic questions on rights of publicity and he’s very clear, he can really only talk about general things, he never talked about cases. So I guess I can see why they would think that it was attorney advertising. If they had a specific issue he would say contact me but the entire AMA thread didn’t seem to be promoting him. I don’t know, it was definitely a fine line and it’s up to the mods to decide but I’m really interested in educating game developers as well and I know a lot of the game attorneys that are out there – it’s a small community and they’re very interested in educating the developer base because the better informed they are about the laws that affect their game the more likely they are to get legal help sooner before a problem actually occurs. They won’t necessarily be able to fix the problems but they’ll at least know when to go ask the questions that they need to ask. I have a blog on certain issues that I’ve seen but I know a lot of other attorneys will have blogs that are just educational tidbits about things that are about the law that users may actually find interesting and it’s a shame… They really are going to have to clarify what constitutes attorney advertising for blogs, for the AMA threads like that. Catch up to technology. It’s going to be tough for them to do that any time soon.

Denise: Right. Well we certainly have time to come back to this if we can get Ryan back on skype and I’m hoping that we’re working on that.

Ryan: I actually believe that I’m here.

Denise: Yay! Ryan’s here. Welcome back…arising from the dead.

Ryan: I apologize for that. I was displaced with the blizzard and was using my friends equipment and he doesn’t have a laptop charger that is working.

Denise: I love that we’ve had a guest respond in our gaming show. So tell us about this kerfuffle with Reddit.

Ryan: So to be clear I do my AMAs in the game developers sub Reddit. It’s a smaller one but it’s for just game developers. They’ve been absolutely amazing, the moderators there are great. They’ve never had any kind of qualms with me and what I’m doing there. Quite the opposite, they encourage it, they help me set those up and they’ve been wonderful. The issue is that there is no kind of Kings of Reddit. There is groups that are mods of other sub Reddit forums and they like to police things that aren’t theirs and they’ve sent me messages saying they’re going to report me to everyone else and get me taken down because in their eyes there is this Reddit self-promotion rule that says “only 10% of what you post can be about yourself.” I’m not posting these AMAs to market myself even though of course it turns into clients and things like that. I don’t hide that and I’m very happy to work with them but at the end of the day I do it because I’m a passionate gamer. I do a lot of pro bono work with people and I like to just answer the questions. I have fun with it. So it has been a bit of a headache hearing that from other sub Reddits they’re called.

Denise: Right and you’ve never had any flak from say the New York state bar or your local bar association about your activities on Reddit have you?

Ryan: No I actually reached out to them before I started because I knew there were a lot of rules I had to follow. So I reached out to New York bar association and kind of went over with their ethics committee on what exactly might be on my disclaimer and what exactly I could and couldn’t say. That’s why I have to keep things as general as possible, I can’t answer specific questions. That said I can give a pretty good answer usually for what they’re looking for, I just can’t say yes your name isn’t infringing, for example.

Denise: Right. Alright, well I think it’s a fascinating issue. I’m sorry that you’re being curtailed in your activities there because it seems like you’re doing nothing but a wonderful public service there. Again this is not a regulation on you but a terms of service issue and a policy decision on Reddit’s part that maybe need to be rethought if they want more professionals to share their knowledge in that platform.

Ryan: To be fair there are posts from the moderator’s private forums and things like that. I’m a moderator on another forum so I can see those posts and it’s not like they’re secret. They’re very public knowledge and they’re examining the rule and trying to figure out different ways to go about it. But there are no actual moves being made. There is nothing being done and it’s just hurting the gaming community – or other communities. It’s very silly that a web site driven on community voting is being told that the community is wrong on what they want to see. I basically have a 97% approval rating from the readers; I usually make it to the front page. It’s usually very well received and they’re being told that they’re being tricked by me and that they shouldn’t be reading basically.

Denise: How exactly is Reddit’s policy curtailing what you’d otherwise be doing?

Ryan: So there are 3 different bigger categories where people constantly beg me to post that have millions of readers instead of hundreds of thousands of readers and those millions of readers (not that every one of them is sending it to me) but bigger people in those communities are saying “we really wish you would post on the bigger gaming sub Reddit” or “we really wish you’d do another hugs AMA instead of the one on the smaller game dev. that only the game developers see. I did one last year that was in the top 25 for the year of all…It beat Bill Cosby and other – that’s a bad person to pull out but big celebrities. It’s just because it’s an interesting thing. Video game law is a fun and exciting field and I am a Redditor so I know how to interact with them and speak to them. I think we all got a kick out of it. I loved answering it, I answered every question that was asked but I’m not allowed to post there again anymore because it’s them saying that I’m crossing the self-promotion line since I don’t post pictures of kittens. I basically just do my AMAs and post some other game news and that’s it. So it’s hurting from a bigger audience basically.

Denise: There’s your solution though, you just need to incorporate or post more cats. Incorporate other parts of your life though; maybe that’s what they’re saying?

Ryan: No, they literally want me to post things that have nothing to do with me. It is a silly rule.

Denise: Alright, we’ve already spoken about one area of controversy that plagues the video game industry and that is the recurring question of violent games and what crosses the line and who gets access to it. Another related area is not on the game developers but on the players themselves. I wanted to spend a few moments talking with all of you about civility in games and interactions between people as they’re playing. There was a Time magazine piece and they were discussing why reporting offensive players in online games is a losing battle. You wind up hurting yourself more than helping the community according to Laura Carrubba who wrote that piece for Time. So I just wanted to get your guys take on policing the community of games or moderating the community maybe is a better word; and where we stand on that and whether there are legal overtones to it because it seems to me that there are. Let’s start with you Ross.

Ross: It’s a hard thing to do. Generally no matter what network you’re playing on whether it’s Xbox live or the play station network, Nintendo’s network, steam, I think the first rule is just don’t be a jerk. If you have something to say try to be good to everyone. But unfortunately there are plenty of people who don’t. So when it comes to regulating that kind of thing it’s very difficult when you’re talking about thousands and thousands of users all talking at once, all in real time, finding them after the fact if they say something offensive. All of the console makers have made great strides in trying to police some of that content, ways of keeping swears or slurs out of user names on their networks. All of that is kind of regulated by terms of service agreements and agreeing… just saying if you’re going to use our service you’re not going to be harassing people. You’re not going to be swearing, especially when there are children on a lot of these online networks. But it’s a very hard thing to regulate in real time because there are just so many people and so few resources. I think Microsoft has probably done the best with their Halo serves because they have so much man power behind it but it’s virtually impossible to keep all that stuff in real time.

Denise: Expand on that if you would for us non-gamers, does that mean the manpower that Microsoft is devoting has teams of people that are monitoring all the chat going on playing Halo?

Ross: No they definitely would have that kind of man power but just in responding to gamer complaints. So if I’m playing the Halo with someone else and they kill me and send me a voice message telling me how much I suck and I submit a player review then the moderators, that is the host servers are going to be able to address that complaint much more quickly on a large title like Halo than they would on a much smaller game that doesn’t have the same kind of resources. But regardless of the size it’s going to be something that’s addressed after the fact usually or as a preventive measure. It’s not something they can do just muting people live for example.

Denise: Lauren what do you think about the opinion of this woman who wrote at Time magazine, or Time.com, I’m not sure if it was in the magazine. That you’re actually not doing much good for the community and you might actually be harming your own gaming experience by reporting offensive players.

Lauren: Her experience was with Lord of the Rings online and she was worried about if groups of players who want to play respectively try and get the 1 or 2 trollers or whatever they are – the grievers out of the game it could in turn (those people do have friends) equally work out badly for those who want to play the game as it’s meant to be played if enough support gets behind those people to report the good players. My experience is in various games. At least a lot of the games like World of Warcraft you can ignore people but over time I think there is even a cap on how many people you can ignore. So you can leave certain types of chat but then you’re kind of lost in your game experience if you can’t see the things that you want to see. Like if people are offering things for sale, if they’re looking for groups; you’re going to have the few a-holes that just want to cause problems just cause they can and reporting them is always going to be an after the fact process. Obviously you don’t want to do a minority report thing where you censor people before they actually do anything but it is definitely… it feels like a losing battle if you’re on the bad side of being grieved by people who just want to make trouble.

Denise: So Ryan in other areas of online interaction section 230 of the communication decency act operates as a very large shield for the platform provider. The provider of the area that people are interacting and with some limited exceptions if you are providing that speech platform you’re not responsible for the interactions going on there if someone crosses the line and defames someone else or otherwise harasses someone else. Does it apply in this form as well?

Ryan: Yes it does but there are steps they have to follow and things they have to put in their terms of use and just basic, even down to DCMA registration with getting an agent involved for just intellectual property but the problem is that big games like Lord of the Rings or World of Warcraft or Doda, they all do that. They all have a lawyer they work with and it’s all taken care of. The issue is these games that explode overnight and suddenly have millions of users. They don’t do that. It’s not that they’re against having a lawyer, they just never thought about getting a lawyer and they haven’t done those proper steps. They don’t have terms of service; they haven’t registered an agent and all of a sudden legally by the letter of the law they’re liable for everything their users do which is terrifying. The simple is to consult an attorney to have things done properly and figure it out. The realistic issue is 1 they don’t think to get an attorney, 2 they can’t afford attorneys usually and 3 – it’s more they think they can’t afford an attorney and then 3 is I’d say 99% of attorneys around right now just don’t understand digital entertainment law and how it affects these games. What lines these games can or can’t cross without different safeguards. It’s a scary place to be an independent developer right now because there is no one holding your hand and when these guys see success overnight they’re completely not prepared for it. That’s why I do those Reddit things and other avenues like that. It’s because it’s important and these guys need to know that while they might not be a triple A studio or a top of the line entertainment company they legally absolutely have to abide by the same law. The laws hit them the same way and they act like they don’t.

Denise: Lauren you have a great post and I’m going to make it one of our resources of the week for this week. We have a couple of others as well that I’ll hit on in a moment but since it’s pertinent to our discussion right now. Your post is called Privacy Policy Terms of Service and Ulla’s Oh My, from last December. It’s  a great overview for those kinds of small game developers who might not have thought their way through these issues. I encourage people to read through the whole thing because it hits on a lot of stuff that if you are a small developer you want to be thinking about. I’d like to hone in on one question that does flow from our discussion here Lauren and that is the privacy of user data and since we’re talking about situations in which 1 user might be upset with another because of bad behavior that has gone on online during the course of interactions and might want to pursue legal action against another player – what sort of responsibility, the gaming company, the developer, whoever has all the information about the players has to reveal that if someone comes to them and says hey we need to sue this person.

Lauren: I think it’s probably going to be similar to the cable companies and people wanting to get personal information from them. There are certain times where developers or service providers need to give information, personal information of some of their users but usually those tend to include warrants and official requests. If it’s not governed in the terms of use that is definitely a question that you’d want to ask a lawyer and see if the situation actually does warrant it because you owe a duty to protect the data that your users give you – that’s what your privacy policy is and that’s what your terms of service say you’re going to use reasonable means to protect their information. So it would definitely depend on what they want and whether or not you’re willing to possibly be in court with that. So you want to be as formal as possible and make sure that they get the proper means involved to actually get that information from you.

Denise: Alright I’m going to give you our other resources of the week. You can find links to all of these at www.delicious.com/thisweekinlaw/290. You can get all of our discussion points there that we’ve been looking at in preparing for and going through the show today. Those are there as well. The next resource I wanted to give you fits right in with what we’ve been discussing today and the burgeoning role of virtual reality in the gaming world. The Sundance Film Festival is going on right now and although you think of independent film it might have 1 frame work of what that means to you when you think of Sundance. Sundance thinks about story telling as its mission and what’s going on in film so as part of the festival they have this great new frontier exhibition that I encourage people to check out online. If you look for new frontier exhibition at Sundance you’ll find it. It’s all about virtual reality this year; some really interesting things. 1 is called Birdly, where you can – it’s this really hokey looking contraption that you lay down on, face down with a VR headset on. But it looks like the experience you have is quite amazing where you’re soaring over San Francisco with literally a bird’s eye view and when you look at your arms you see wings and you hear the sounds as you’re soaring along. It looks really cool and all of these various artistic installations that I think you can view physically if you’re in Park City at Sundance. Involved VR and interactive story telling in one way or another so I wanted to bring it up because it has little to do with gaming and more to do with film but this same technologies might well find their way into the gaming experience sooner rather than later. Then our other resource of the week is coming up in Chicago and Ross is involved in the Chicago video game law summit. Can you tell us a little more about that Ross?

Ross: Absolutely. This is going to be sponsored by the John Marshall Law School in Chicago. Suzanne Jackiw has been on this program before and she and I are organizing this event. It’s going to be a day of academic panel discussions all about what we’ve been talking about today – all about video game law. We’ll have panels on video game violence, recent developments in video game law, game journalism, game development and also just the business of video games. So it’s going to be a great opportunity if you want to learn more about video game law, what its current state is and what its future is then it’s going to be a great way to find out about that. In addition we’re also going to be having what we’re calling right now a video game law museum where we’re going to be having some patent, some video games consoles and a whole lot of memorabilia directly related to the state of the industry about video game law, where it came from and why it is where it is.

Denise: Wonderful, thanks for that. Wish I could go but be sure and blog and tweet it for all of us who would love to see what’s going on there and can’t be there in person. We’ll give you the tip of the week too and the tip would be; “next time someone asks you what broadband is, you can tell them it’s nothing less than 25 down and 4 up. That’s what the FCC says anyway. The FCC just went ahead and reclassified what broadband is. This after a fairly recent reclassification in 2008 at a much lower number, so the purpose of this is to help get providers services like DSL to improve their networks to where they can actually be offering what the FCC considers broadband service. This is not to say that there’s any sort of guarantee that anyone will get speeds like this but just have access to them, which is a slightly different question. I know that I do the show on less than 25 down and 4 up and I’m suspecting that a lot of you have your online interactions at less than what the FCC now says is the minimum broadband requirement. But as the author of this piece Gigaome says it seems prudent that the FCC does this less we regulate entire swaths of the country to slow of non-existent broadband while the rest of us go on to gigabit futures which should be the policy behind what the FCC is doing here and if it hadn’t hit your radar before now it has. I just can’t tell you how excited I’ve been to talk with you all today. I love these issues and think it’s so interesting what is going on with the gaming world; although the intersection of technology and law is always interesting, it’s really cutting edge for what you guys do and I really appreciate you taking the time to join us today. Ryan great to have you, glad you could respond and come back in.

Ryan: I’m very sorry about that. I’m incredibly embarrassed but thank you for having me.

Denise: Oh now we even have your video too, that’s awesome! Tell us now that we’ve got you back and before we let you go; we know that you’re in New York, that you’re very active on Reddit. Is there anything else that you want to let people know about before we sign off today?

Ryan: I’m actually speaking at the Chicago video game law convention so I’m excited for that. I’ll be at GDC if anyone there wants to say hi and other than that I do the weekly AMA on Reddit and you can see me on Twitter. I’m MrRyanMorrison and I link to all the stuff I’m doing there.

Denise: Very cool, thanks so much Ryan for joining us. I’m thrilled that you could. Lauren great to meet you and I don’t want to let you go without having Zach in the studio actually show the wonderful graphic that you have representing your online presence – your online practice, hanleybradylaw.com. I just love this graphic, it’s awesome because Lauren is into long swords. Do you do some long sword work yourself?

Lauren: I do, it’s a German medieval long sword, the other option is Italian but we like the German because it’s a bit more brute force and a little less strategic.

Denise: Right. There’s the graphic. It’s Lady Justice with a long sword. You just can’t beat that. Do you do this in a larping kind of context?

Lauren: No, I don’t, I was a film production major and I was always a producer so I was always behind camera. I am not a fan of…I can’t act so no. It’s actually a martial arts class and so we learn the techniques that they would have used in medieval times while using a long sword.

Denise: Absolutely love it, we have to do a whole show on that I think; on use of the German medieval long sword. That might be a different show on the network I think. Thank you so much for joining us today. I really appreciate your insights into everything we’ve discussed.

Lauren: It was fun to be here and I’ll also be at GDC and hope to see other people there as well.

Denise: Wonderful. Ross we know you’ve got your summit coming up. Anything else in Chicago you want to let us know about?

Ross: No, just be sure check out our website, it is www.cvgls.com and thank you so much for having me.

Denise: Oh it’s been a pleasure. There is more from you at loadinglaw.com correct? Don’t you and Suzanne also write jointly at 1 other place? It’s slipping my mind.

Ross: We do. You can check out my writing and Suzanne’s either at loadinglaw, also from IGDA perspectives and we also have a podcast on YouTube occasionally.

Denise: Excellent, wonderful having you. Great getting to meet you all, thanks so much to you who have joined us today. If you’ve done so live that means you’ve tuned in at 11:00 Pacific Time 1900 UTC. That’s when we do this show every week and record it live. We love to have you live but don’t worry about it. You can join us whenever you’d like to by going to www.twit.tv/twil. Our archive of shows is there. We’re also on YouTube, on Roku and various other places if you go to the Twit.tv/twil page you’ll learn how to subscribe to the show however you would like to. It’s all there for you. What else is there for you? I let you know that we aggregate all our discussion points on delicious for each show under the This Week in Law account and then by episode. So you can always find our information there. You can also get in touch with me between the shows. Please email me, I’m denise@twit.tv or give me a shout on Twitter or Facebook or Google Plus. The show has pages on both those platforms. Good places to let me know something that takes longer than 140 characters, otherwise Twitter works just great. That’s about it. I really enjoyed chatting with our illustrious panel today learning about broadswords and violent games and I hope to bring this group again together in the future because it’s been really, really, fun! Thanks everybody. Take care.