1. Controlling the Controllers
Part C “Controlling” | Talk 10
Video Game Law 2013
UBC Law @ Allard Hall
Jon Festinger Q.C.
Centre for Digital Media
Festinger Law & Strategy LLP
@gamebizlaw
jon_festinger@thecdm.ca

2. Follow ups to last week…
Violence & Games: “Video Games and Societal Violence:
Cause for Urgent Action or a Bridge Too Far?”
http://www.huffingtonpost.com/michael-levine/video-games-and-societal-_b_2859598.html
Women & Games: Donkey Kong: Pauline Edition (Princess saves
Mario) http://www.youtube.com/watch?feature=player_embedded&v=JeXDNg7scyU
Dr. Kimberly Voll creating a 48-hour weekend game jam this
summer – theme is games with strong female leads (@The
Centre for Digital Media “hangar”) IN RESPONSE TO
industry pre-conceived notions - SEE: 'You can't have a
female character in games'
http://www.gamasutra.com/view/news/188775/You_cant_have_a_female_character_in_games.php
IT’S (past)

3. This Week (Topic 1): PRIVACY
• Evolving & difficult; not a natural topic: Much of video game
history = single player
• Gaming modalities: Hard-drive to CD-ROMs to online to
massively on-line now to cloud
• On-line communities about games (forums) to multi-player to
massively multiplayer to “life-stream”
• Not news to gamers: “Which Twitter tribe are you? Researchers
discover new wave of online communities which even have their own
languages” http://www.dailymail.co.uk/sciencetech/article-2293912/Twitters-online-tribes-
revealed-Users-forming-distinct-communities-languages-study-shows.html
• From a 3 Nov 2002 post by “Monza” on GP Forums on the
subject “GPL Monza Megapac!”: “There is a zip with all the updates
done for Monza right here http://limerock.racesimcentral.com/monza/monza.htm This project
started as a small thread, now the thread is fifty pages long!”

4. Privacy as Role Reversal
Last week: rights of society from the consequences of
games & gamers
This week: rights of gamers as members of society
Core conundrum: Gamers initiate content, not just
passively receive it (Television as “transmitter” to gamer
as “transmitter” - see Talk 1 “If Picasso…”)
YIN & YANG
• What we looked at previously in terms of IP complexity
• NOW THROUGH LENS OF PRIVACY COMPLEXITY

5. Layers of Control (Privacy Edition)
12. Theft, assault (criminal law)
11. Currency/taxation (statutory/regulatory).
10. Gambling (regulatory body – criminal law back-drop)
9. Unfair competition (Competition/anti-trust)
8. Misleading promises/advertising, physical or psychological harm
(consumer protection)
7. Medium specific regulation (constitutional)
Out of the Game Norms
------------------------------------------------------------------------------------------------
In the Game (Magic Circle) Ethics (of Originality, Creativity & Expression)
6. Industry self regulation
5. Personality rights (tort, IP)
4. EULA/ToS (contractual, private)
3. IP (copyright, patent, trademark – statutory)
2. Technology (quasi extra-legal)
1. Community (extra-legal)

6. STAYING WITH: The new video game (hypothetical)
Real-world “play” (“Ingress” – Capture the Flag mechanic)
+ Immersive control mechanism (Google Glass)
+ Anywhere/any device capability (the “cloud”)
+ “Open World” design (literally & Google Earth)
+ Tools/weapons (AR Drone Quadra Copter; Google Car)
IS THIS REALLY A GAME?
Surveillance as fun: “The Plays and Arts of Surveillance: Studying
Surveillance as Entertainment” Anders Albrechtslund and Lynsey Dubbeld
http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDEQFjAA&url=http%3A%2F%2Flibrary.queensu.ca%2Fojs%2
Findex.php%2Fsurveillance-and-society%2Farticle%2Fdownload
+

7. Expanding Digital Footprint Through Games
• Facial recognition
• Cell tracking (geographic)
• Demographic data
• Data re friends, connections
• Brain pattern data (control mechanism)
• Reflex & physical data (heart-rate etc.)
• Enormously deep data re psychology of choice & decision making
• Data re preferences & biases (Google/FaceBook using now)
• All very “B.F. Skinner”…
• “Netflix used subscriber data to make „House of Cards‟ a hit”
http://www.theverge.com/web/2013/2/14/3989202/netflix-subscriber-data-house-of-cards

8. Scholarship & Discovery
• “What Privacy is For” Julie Cohen 126 Harv. L. Rev.(draft)
http://www.harvardlawreview.org/symposium/papers2012/cohen.pdf
“Privacy shelters dynamic, emergent subjectivity from the efforts of commercial
and government actors to render individuals and communities fixed, transparent,
and predictable.”
• “The Law of Friction” William McGeveran (U. of Minn. Law School)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192191
“…the article proposes a general law of friction for the internet: it should not be
easier to “share” an action online than to do it. The inevitable moment of
decision to click a link or purchase an item should also be the moment when a
person chooses whether to disclose it. When there is a PLAY button to stream a
movie, there could be a PLAY AND SHARE button right next to it.”
Linux ubuntu screen

9. Remember: “Sports Example Wish-list”?
(Talk 7 “From Wheelbarrows to Holodecks)
1. VIRTUAL ARENA EXPERIENCE
• “Who is in the crowd?”
• “Pick your seat”: view the game from any any seat/any angle (emulated?).
• Live Shared experience (Hangout). Friend and rival group options.
• Scalability of closed to contact ranging to fully open (E.G. game v. between periods).
• Fully interactive: voice, text, content sharing, search & content creation.
• Play crowd games, trivia.
• Infinite inputs including alternate audio feeds (plus “do your own”) & bonus video feeds
(E.g. USTREAM‟s and/or extra broadcast cameras – “you compose your own “broadcast”).
• Live feedback (Twitter, text, Skype etc.) loops to teams, leagues, (players), (coaches) –
the “techno heckle”.
2. “I KNOW SPORTS BETTER, LET ME PROVE IT.”
• Infinite replays from infinite inputs.
• Coaching tools (virtual Telestrator ).
• Library of games & plays (by team, year & player).
• Recreate or watch the game live in EA NHL 14 (watch replays in 1st person as any player).
3. SECOND SCREEN STUFF (Sx3)
• Useable live in-arena on a tablet.
• Full live stats including distance skated, shot-speeds, goalie.
• Gamification for every possible challenge/bet.
• Create your own sports music-video.

10. Layers of Privacy in Video Games
9. Access to law enforcement by Search Warrant
8. Access by law enforcement to information where gamer does not have a “reasonable
expectation of privacy” (highly interpretive)
7. Aggregated Gamer/Game information available to advertisers/sponsors/
purchasers having relationships with game/developer/game network/social network/
(ISP-carrier?) as permitted by EULA/ToS
6. Gamer/Game information available to ISP/network carrier/mobile carrier (often includes
location information)
5. Gamer/Game information useable by game network/social network
(permissions)/ISP (Steam, XBLive, Facebook) per ToS (often includes location
information)
4. Gamer information useable by developer/publisher per EULA
3B. Audio gaming layer – quasi-public (through game)
3A. Audio gaming layer – private (Ventrilo)
2. Gamer shares information for “magic circle” purposes (multiplayer; forums etc.)
1. Gamer creates information

11. Two (yet unanswered) Questions
• Legal: Where among the Layers does the gamer‟s “reasonable
expectation of privacy” begin? - Impact of the “Magic Circle”?
• Practical: Is this even an issue to the “Digital Generation”?
(trade-off with convenience/features/trans-border compatibility)
WHAT HAPPENS BETWEEN THE LIMITS OF PRIVACY LAW & THE
STARTING POINT FOR SEARCH WARRANTS?
See: Location Tracking and Biometrics Conference (Yale
Law)http://www.youtube.com/watch?v=OwutGSjNQ0k&list=PLEqpzAExPV-
xr9gIhSqLMxTSXrimGF6pA&index=19
&: “The Spies We Trust: Third Party Service Providers and Law Enforcement
Surveillance” Christopher Soghoian (Indiana University August 2012)
http://files.dubfire.net/csoghoian-dissertation-final-8-1-2012.pdf
THE GREY AREA

12. PRIVACY ACT [RSBC 1996] CHAPTER 373
1. (1) It is a tort…for a person, wilfully and without a claim of right, to violate the privacy
of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or
in relation to a matter is that which is reasonable in the circumstances, giving due
regard to the lawful interests of others.
(3) In determining whether the act or conduct of a person is a violation of
another's privacy, regard must be given to the nature, incidence and occasion of
the act or conduct and to any…relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be violated by
eavesdropping or surveillance, whether or not accomplished by trespass.
2. (2) An act or conduct is not a violation of privacy if any of the
following applies:
(a) it is consented to by some person entitled to consent;…
(c) the act or conduct was authorized or required under a law in force in British
Columbia, by a court or by any process of a court;
(d) the act or conduct was that of (i) a peace officer acting in the
course of his or her duty to prevent, discover or investigate
crime…
(3) A publication of a matter is not a violation of privacy if (a) the matter published was of
public interest or was fair comment on a matter of public interest, or (b) the publication
was privileged in accordance with the rules of law relating to defamation.

13. Perspectives
Search Warrants: Criminal Code (R.S.C., 1985, c. C-46)
487. (1) A justice who is satisfied by information on oath…that
there are reasonable grounds to believe that there is in a building,
receptacle or place (a) anything on or in respect of which any
offence against this Act or any other Act of Parliament has been or
is suspected to have been committed…
“Internet Surveillance Bill is Dead but Canada's Telecom
Transparency Gap is Alive and Well” Michael Geist
http://www.michaelgeist.ca/content/view/6793/135/
Jones v. Tsige Ont. C.A. recognises new tort for invasion of
privacy http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm
R. v. Cole SCC finds reasonable expectation of privacy in work
laptop http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12615/1/document.do
(reasoning extendable to video gaming spaces?)

14. MAKING SENSE OF PRIVACY
Remember THE LITTERALIST DICHOTOMY?
Symptom: Seemingly opposite political positioning between
Privacy literalists & IP literalists
• Privacy literalists tend to be more “open source” / “free info”
oriented
• “IP literalists” tend to be more comfortable with commercial
exploitation of personal data
Applying the Double Standards Test

15. Unified Theory 1 Privacy/IP
Core Common Denominator?
"Feeling" those 1's and 0's "belong" to me
“That is mine!” (whether IP or private info)
Therefore common/unified approach possible?
+ factor in the idea/expression dichotomy
=
What were once Private Ideas are now Public
Expressions
*** Privacy as a Moral Right (right not to be attributed)

16. Restated Core
What is the core common denominator of privacy & IP
in the digital age?
One answer that may be a helpful starting point - information.
IP is in fact information designated as having been created by
someone and therefor designated as belonging to that
someone. Personal information similarly is felt by us to be
created by us, personal to us and therefor belonging to us.
Accordingly they are essentially the same and should be
treated according to the same principles.
What might those principles be? A Moral Rights model would
suggest they are the right of attribution (or not) & the right to
the “integrity” of the work/information.

17. Europe: The Right to be Forgotten
“EU judges to hear Google 'right to be forgotten' case: Spanish
officials have taken Google to the European Court of Justice in a bid to force the
search giant to delete information that breaches a person's privacy” (Feb. 26, 2013)
http://www.telegraph.co.uk/technology/google/9895279/EU-judges-to-hear-Google-right-to-be-forgotten-case.html
“Bullying and the Right to be Forgotten: A Right to End Victimization” (Amanda Todd)
http://playgiarizing.com/2012/10/12/bullying-and-the-right-to-be-forgotten-a-right-to-end-victimization/
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL on the protection of individuals with regard to the processing of
personal data and on the free movement of such data (General Data Protection
Regulation) Jan. 25. 2012http://ec.europa.eu/justice/data-
protection/document/review2012/com_2012_11_en.pdf
“Article 17 Right to be forgotten and to erasure
The data subject shall have the right to obtain from the controller the erasure of personal
data relating to them and the abstention from further dissemination of such data,
especially in relation to personal data which are made available by the data subject while
he or she was a child, where one of the following grounds applies: (a) the data are no
longer necessary in relation to the purposes for which they were collected or otherwise
processed; (b) the data subject withdraws consent on which the processing is based…or
when the storage period consented to has expired, and where there is no other legal
ground for the processing of the data;…”
REMEMBER: 32% of gamers are kids
Defamation analogy? - Reputational

18. EULA‟s now Sword not Shield?
PREVIOUSLY: Discussion of WHY/IF EULA’S necessary given:
• 1. Ineffective to 1/3 of gaming population (kids)
(generally not mentioned in EULA‟s & ToS‟)
• 2. Very limited if any true litigation need
(no decisions where other remedies were not more significant)
• 3. Warnings re bad behavior can be accomplished in other
more limited ways
• 4. Intellectual Property statutory & doctrinal baseline fair
Corporate answer (?) = leverage re bad behavior + consumer
contracting out of IP freedoms
Also: Contracting out of PRIVACY PROTECTIONS ???

19. Unified Theory 2 Privacy/Free Speech -
Expression
• Reconciling Privacy & Free speech/expression
• Right of Expression NOT TO BE CHILLED
• Right of Privacy as a RIGHT TO NOT EXPRESS
(or “be expressed”, or have your expression collected
or used against your will)

20. Privacy’s chilling effect on creativity
An Important Question?
• Have parsed possible effects of “IP chill” on
User Created Content (mods, machinima etc.)
• Does LACK OF PRIVACY also chill User Created
Content?
• Insidious Result?: lack of privacy as “tool” of
IP “Literalism” & enforcement

21. “Identities”
• Avatar v. real names – what should be disclosed & to whom?
“Google's Vint Cerf explains why Facebook's real-name requirement
is flawed”http://www.theverge.com/2013/3/5/4066546/vint-cerf-real-name-authentication-useful-but-
anonymity-necessary
“Facebook wins legal battle to force Europeans to use real names online”
http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-europeans-must-use-real-
names
• Avatars deeply embedded in history of gaming - core to play -
suspension of disbelief - “magic circle”
• Anonymity also deeply embedded in history of the “web”
• Extra Legal Measures (“Doxxing” – outing real identities)
“Do trolls have privacy rights” http://www.technollama.co.uk/do-trolls-have-privacy-rights
• State Action: “Five More Game Companies Join New York State‟s
„Operation Game Over‟ Initiative, 2100 More Accounts
Purged”http://www.theverge.com/2013/2/15/3991458/german-court-rules-in-facebooks-favor-
europeans-must-use-real-names
“State Laws Restricting Social media Use by Sex Offenders Are Failing in
Court” http://blog.ericgoldman.org/archives/2013/01/state_laws_rest.htm

22. Video Game Privacy Breaches
“UK regulators fine Sony for 'preventable' 2011 PSN hack (update:
Sony will appeal)” (2011 hack)http://www.theverge.com/2013/1/24/3910538/uk-government-fines-
sony-for-preventable-psn-data-breach
“Blizzard Faces Class Action Over Battle.net
Security”http://www.gamepolitics.com/2012/11/09/blizzard-faces-class-action-over-battlenet-
security#.UUl0jqXR1Lw
“Data Breach Class Action against Popular Video Game Developer
Dismissed for Failure to Plead Adequate Damages”
(Valve/STEAM)http://www.dataprivacymonitor.com/data-breaches/data-breach-class-action-against-popular-
video-game-developer-dismissed-for-failure-to-plead-adequat/
+ “Steam’s Sub Agreement Prohibits Class-Action
Lawsuithttp://www.rockpapershotgun.com/2012/08/01/steams-sub-agreement-prohibits-class-action-lawsuits/
“FTC fines Path mobile social networking app $800,000 for privacy
breaches”
http://www.lexology.com/library/detail.aspx?g=6f2cc64a-755d-4cbf-a57e-b1ee458280f6
“Bug in EA’s Origin game platform allows attackers to hijack player
PCs”http://arstechnica.com/security/2013/03/bug-on-eas-origin-game-platform-allows-attackers-to-hijack-player-pcs/

23. This Week (Topic 2):
Regulatory Jurisdiction Over Video Gaming?
• New Media, Broadcasting Public Notice CRTC 1999-
84/Telecom Public Notice CRTC 99-14, 17 May 1999 (&
amendments) http://www.crtc.gc.ca/eng/archive/1999/pb99-84.htm +
• Policy Governing the Distribution of Video Games Programming
Services Public Notice CRTC 1995-5 (Sega game downloads
through cable) http://www.crtc.gc.ca/eng/archive/1995/PB95-5.HTM +
• Capital Cities Comm. v. C.R.T.C., [1978] 2 S.C.R. 14
(cable)http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/2586/index.do
= FEDERAL JURISDICTION ???
• BILL 19 – 2001 VIDEO GAMES ACT (B.C.) - passed but repealed
prior to coming into force („mature‟ & „adult‟ games not saleable to minors)
http://www.leg.bc.ca/36th5th/3rd_read/gov19-3.htm + various Provincial motion
picture classification legislation containing definitions relating to
video games +
• Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 (ads directed at
children prohibited by Province)
= PROVINCIAL JURISDICTION???

24. Bringing us to KIDS (once again)
• “SpongeBob app pulled over children's privacy complaint”
(wide range of personal info from children w/o parental consent)
http://www.bbc.co.uk/news/technology-20767541
• “Apple to settle lawsuit on inadvertent app purchases by
kids” http://ca.reuters.com/article/technologyNews/idCABRE91P05O20130226
• “Kids Reveal The Real Flaws Of Free-To-Play
Games”http://kotaku.com/5988036/kids-reveal-the-real-flaws-of-free+to+play-games
• “FTC's Second Kids' App Report Finds Little Progress in
Addressing Privacy Concerns Surrounding Mobile
Applications for Children” http://www.ftc.gov/opa/2012/12/kidsapp.shtm
• “Children’s Online Privacy Protection: U.S. Developments
Compared to Canada”http://www.datagovernancelaw.com/children%E2%80%99s-online-
privacy-protection-u-s-developments-compared-to-canada
• “No 'Do Overs': Children, Personal Information And
Marketing In Canada”http://www.datagovernancelaw.com/no-%E2%80%9Cdo-
overs%E2%80%9D-children-personal-information-and-marketing-in-canada

25. Next: Meme 4 – Conciliation begins…
The Terminator & the Orc - a tale of two cases

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