Syllabus 2019

VIDEO GAME LAW (Fall 2019)

{Please note that this is a “live” syllabus. Last years guests, videos and slides will be included until replaced by this years. Likewise there will be rolling changes, especially until the launch of the course with respect to if and when guest speakers are scheduled etc.}

Allard School of Law, University of British Columbia A; Law 423C.001 

Fall 2019:  Wednesdays, 9:30 a.m. to 12:30 p.m. Room B101

3 Credits

Jon Festinger, Q.C.

Adjunct Professor, Allard School of Law

Professor of Professional Practice (SFU) & Faculty, Centre for Digital Media

Faculty in Residence, UBC Emerging Media Lab

Honorary Industry Professor, Centre for Commercial Law Studies, Queen Mary University of London School of Law

Of Counsel, Whiteboard Law

Work: 604-568-9192 Cell: 604-837-6426 


Twitter: @jonfestinger

PSN: cdmjon                                                 

Office Hours: By appointment.

Technical Resources for Website:

Richard Tape, UBC CTLT –

Course Website:

Jon’s YouTube Page (includes “Videos of interest to Law 423B”):

(Thanks to UBC Centre for Teaching, Learning & Technology for design, implementation and continuing support)

Twitter to Website: Add #ubcvgl to tweets and re-tweets to post in Twitter widget at Course Blog



Participation = 25%  includes any or all of:

  • attendance;
  • class contributions;
  • website contributions;
  • following & documenting “Self-Socratic” protocols.

Group presentation during “Discussion Hour” = 25%. This will be based on group preparation of a Discussion Outline that must be created and should be provided  to the class—preferably by posting on the course website – five days before your particular discussion takes place, and leading the discussion for that week.

Term Paper/Major Project (18 to 20 pages or equivalent – 5000 words – any font but comic sans):  50%.

Note with respect to class participation:  Factors taken into consideration are attendance, level of engagement in course related discussions & activities including contributions to (or equivalent email contributions to the instructor), evidence of preparation for class, contributions to in class discussions, evidence of attention to the analysis of others and consideration of how such analysis might affect one’s own.

Note with respect to term paper/major project: Given the dynamic and emergent nature of the subject matter, the opportunities for scholarship are vast.  Cases and previous legal academic contributions have almost exclusively been non-Canadian and have generally not focused on how court decision in other jurisdictions might be resolved under Canadian law.  That said you are not limited to such topics or perspectives.  As well, large territories of legal interest have simply gone unexplored and even undiscovered. Grading will reward thoughtfulness, incisiveness, originality and depth of research, potential for publication/public availability as well as rigorousness of analysis and clarity of presentation.  Term paper is due in hard copy form (with digital copy by email) by 4 P.M. on the last day of the exam period (Wednesday, December 18, 2019).

All Allard School of Law students are subject to the University’s rules on Academic Misconduct (, and are expected to act with academic integrity at all times. Students should be especially aware of the University’s rules in relation to plagiarism. Plagiarism includes: copying the work of another student; copying or paraphrasing from a textbook or reference book, journal article, case or electronic source without proper footnoting; copying your own work that has already been submitted for another course in this degree or another degree, passing off the ideas of another person as your own. If you plagiarize, you will be subject to penalties set out in the UBC calendar. (,54,111,959)

In this class: 1) everyone is allowed to feel they can learn in a safe and caring environment; 2) everyone learns about, understands, appreciates, and respects varied races, classes, genders, physical and mental abilities, and sexualities; 3) everyone matters; 4) all individuals are to be respected and treated with dignity and civility; and 5) everyone shares the responsibility for making the class, and the Academy, a positive and better place to live, work, and learn. (Source:


A. Abstract:

“When any new form comes into the foreground of things, we naturally look at it through the old stereos. We can’t help that. This is normal, and we’re still trying to see how will our previous forms of political and educational patterns persist under television. We’re just trying to fit the old things into the new form, instead of asking what is the new form going to do to all the assumptions we had before.” – Marshall McLuhan (1960)

Video games create virtual worlds that players physically interact with. In so doing video games upset the traditional media apple cart. The gamer becomes the controller of a responsive virtual world, rather than simply a passive “receiver” of images and sound.

North American video game revenues routinely surpass both domestic film box office receipts and music sales. The global video game industry continues to grow faster than almost any other economic segment and is predicted to reach $152.1 billion in 2019 (The Global Games Market Will Generate $152.1 Billion in 2019 as the U.S. Overtakes China as the Biggest Market).

Vancouver is one of the largest and most sophisticated centers of video game production in the world.

The creation, dissemination and enjoyment of interactive entertainment is governed by a multi-dimensional grid of international and domestic laws relating to intellectual property, communications, contracts, torts, privacy, obscenity, antitrust and freedom of expression. The myriad legal issues currently manifest in digital media often originated in games. Video gaming has presaged the now rapid rise of real-time social media communities. By building additional levels for their favorite products gamers have for decades been engaged in crowd sourcing, user-generated content and remixing source materials. Games also consistently lead technological, interactive and creative advancements of the digital age.

Threatening intellectual property orthodoxies has, quite literally, always been part of the game. It can easily be suggested that the legal and ethical issues in all media spaces may be best and most critically explored and understood through the lens of video games. Accordingly the processes of creating and playing games constitute a useful proving ground for legal constructs applying to all media and mediums. That all of this occurs with a core demographic that includes very large numbers of children considerably complicates the resulting analysis.

The goal of this course is to continue scholarship in the area. It also forms part of a cluster of courses both at the Allard School of Law related to the media, entertainment and communications industries.

The course will be limited to twenty-four students. The pedagogic concept of the course is to map and design learning territories to be explored by the students and provide as many tools as possible for that exploration. Accordingly there are multimedia components of the course including a website containing a complete and interactive syllabus, past lectures, discussion forums and resource materials ( Industry expert guest speakers appearing in person and or by remote connection may also play a significant role.


B. Optional Text:

“Video Game Law, 2nd Edition” (LexisNexis, 2012) by Jon Festinger Q.C., Chris Metcalfe & Roch Ripley


C. Syllabus:

Introduction to the Course

Class 1: September 4, 2019


  • Media-capture
  • Evaluation = participation + paper + presentation
  • Website + “News of the Week” + “What is Your Take?” + living/evolving + “Self-Socratic”
  • Pedagogy: Course as game design

Jon’s Talk – “Introduction”

Instructor bio & biases. Overview of course themes, objectives, questions seeking answers & answers seeking further questions.

What is a game? The roots of video games in play (fun) + creativity. How different/same as other media?

Why do we game?

Catalogue of firsts & barriers broken by video games: interactivity, voice over IP, open world, social, avatars (zeitgeist, memes, identity & equality).

Why the transformation to digital matters legally, psychologically and philosophically. Main metaphor: initiating content rather then receiving content (Television as “transmitter” to gamer as “transmitter’). Legal implications.

Recurring Themes of the course:

  • Double Standards test (Digital Ethics).
  • Legal constraints on (digital) creativity.
  • Idea/Expression dichotomies.
  • Creativity v. Innovation
  • Moral Right(s), Copy-left.
  • The diminishing Magic Circle.
  • The Post IP World – contract or..?
  • Right to create/Right to Mod (Right to Inter-Op too)? – Unenumerated rights of Freedom of Expression meets Freedom of Thought. Your creation is protected, but not your right to create?
  • Four memes: Creating, Connecting, Controlling, Conciliation.
  • Post-structuralism and games.
  • “Brain-games”
  • Relating Memes of Justice & Technology
  • MEdia
  • A.I. & the Rule of Law


  • Open input/comments/reactions


1. A Brief History of Video-games – Polygon (2:54)

2. History of video games interactive timeline  – Computerspielemuseum

3. Copyright Law and Video Games: A Brief History of an Interactive Medium (Draft Chapter) – Prof. Greg Lastowka

4. IGN’s 25 Greatest Breakthroughs in Video Game History – IGN January 30, 2012

5.  Largest space battle in history claims 2,900 ships, untold virtual lives – The Verge July 28, 2013

6.  PC Gamer Top 100 Greatest Games – PC Gamer September 2, 2015

Guest: Dr. Willy Duhen of Activision


Part A. Creating

Class 2: September 11, 2019

Jon’s Talk – “If Picasso had painted a round object…”

Are we in a game?

“Games are not IP; Video Games are IP; Explain (Part 1)”

From documents to data to art –”Why are games?” to “What are games?” to “Are games mass media or just massive media (& does it matter)?”

Video games as the return of the oral narrative. Games as conversation? Do video games emulate James Joyce’s literary techniques?

The application of real world laws to virtual environments. Is there a virtual world? Is WoW its own country? (Duranske)

What are the threshold legal/structural issues for transformative media? IP Dystopia and its symptoms.

Broken up over Breakout: Atari v. Oman – its legal and emotional fallout. The road from disrespect to eventual acceptance of games by courts (& the censoriously inclined). Introduction to the ironies of that result.

From no copyright in card games, sports, leisure as the starting point to looking at the conundrums of the idea/expression dichotomy and fixation in the digital age (Boyden #1)

The “Double Standards” ethical lens.

The Rodney Dangerfield effect – Games get no respect.

Comparing game related censorship to censorship of other kinds of information/entertainment. Blaming technology.

(Hook to next talk in terms of why expression/speech are not paramount and that the real censors are legal concepts we might not at all expect….)


1. Bruce E. Boyden, Games and Other Uncopyrightable Systems 18 Geo. Mason L. Rev. 439 (2011)

2. IGN’s list of Culturally Censored Games

3. Stern Electronics v. Kaufman 669 F.2d 852 (2nd Cir. 1982)

4Atari v. Oman 693 F.Supp. 1204 (1988) (U.S.D.C., D.C. Cir.); Atari v. Oman 888 F.2d 878 (U.S.C.A., D.C. Circuit.); Atari v. Oman 979 F.2d 242 (1992)(U.S.C.A., D.C. Circuit.)

Class 3: September 18, 2019

Jon’s Talk – John Milton Plays Grand Prix Legends

A first look at typologies of  the “freedom to create” and constraints on creativity. Is it really just a matter of freedom of expression/speech versus… 1. IP; 2. Contracts; 3. Negligence; 4. Privacy; 5. Surveillance; 6. Monetization?

What are the true “Constraints on Creativity”? Creator v. Connector. Games without copyright.

Impacts & perspectives on the idea/expression dichotomy.

Fundamentals or Fundamentalism: Introductions to Privacy Literalism and IP Literalism –  the positional paradoxes and political excesses of anti-piracy and pro-privacy in a video gaming context. Evolving a single standard for creators as users & users as creators.

Correlating economic growth, Rule of Law Index & I.P. stringency.

(Hook to next talk  – now that we have creativity, content and contradictions accounted for, what is the next horizon? Remixing in games…next week…)


1. Areopagitica John Milton (1644)

2Winters v. New York 68 S. Ct. 665 (U.S. 1948)

3. Montreal v. Arcade Amusements Inc. [1985] 1 SCR 368

4Brown v. Entertainment Merchants Association 131 S. Ct. 2729 (2011)

5. Bruce Springsteen’s SXSW 2012 keynote (audio)

Guests: Brian Dartnell & Perry Bahniwal of EA

Class 4: September 25, 2019:

 Jon’s Talk – Right to CreaTe or Rights of Creation

The Right to Mod? Is content original? Is “authorship” a fiction? The Right to CreaTe?

The importance of Minecraft/multi-player/open-worlds.

Modalities, histories and choices in reconciling IP & Freedom of Expression. Distinguishing the “Duke Nukem” & “iRacing” cases.

Mods and the role of “communities”. Prof. Lastowka’s “Player-Authors Project”.

The importance of the Idea/Expression Dichotomy and the right to mod as part of a rebalancing paradigm.

Moral rights & an evolving “CreatorRight”. The evolving reinterpretations of fair dealing/fair use as applied through principles of technological and content neutrality.

IP Paradoxes.

Free expression/speech & copyright: Is Fair Use/Dealing wholly within copyright or a speech right? – An analysis of the implications of the statutory history leading to “The Statute of Anne”.

A catalogue of possible ways forward including the morality of “moral rights”; the SCC “penatology”; and redefinitions of fair dealing/use as steps to a new “right”.

(Cliffhanger to next four talks – re “connecting through games”….How do we connect today?…Mostly through technology. How does the law mediate our connections? Mostly through contract being paramount to everything else…& the confusion of different technologies attracting different regulatory/legal responses. Stay tuned…)


1. Johanna Blakley: Lessons from fashion’s free culture, TedX 2010 (16:07)

2. F. Gregory Lastowka & Dan Hunter, The Law of Virtual Worlds 92 Calif. L. Rev. 1 (2004)

3. Micro Star v. FormGen Inc. 154 F.3d 1107 (9th Cir. 1998)
4. iRacing Motorsport Simulations, LLC v. Robinson No. 05-11639 NG (D. Mass. May 28, 2009)

5. Blizzard Entertainment, Inc. and Valve Corporation v. Lilith Games (Shanghai) co. Ltd. and uCool, Inc. No. 3:15-cv-04084-CRB (U.S. District Court for the Northern District of California)

Discussion Hour: Student Discussant –  Sijia Wu

Part B. Connecting

Class 5: October 2, 2019:

Jon’s Talk – Connecting Ourselves: Gamer Vulnerability in Virtual Realities

Virtual Reality in games is becoming less virtual and more real. At some point not far away technology may produce fidelity so convincing to our brains that the term “Replacement Reality” would be more apt than “Virtual Reality”. Could human freedom of thought itself be challenged in such circumstances? If so what role should law play?

This talk will address the following questions:

  1. What is freedom of thought in today’s world?
  2. How should we understand and characterize harms relating to freedom of thought arising from virtual experiences?
  3. For what legitimate purposes might the law intervene to protect an individual from the consequences of virtual world experiences affecting freedom of thought, including the potential of being manipulated, compelled or other diminishments of free will?
  4. What legal principles and remedies could we apply to protect individuals from such harms?
  5. How might we determine the point at which free will is endangered so as to require legal intervention?
  6. What are the implications for technology and game companies?



1. Steven Johnson: Where good ideas come from, Ted Talks 2010  (18:07)

2. Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds 90 Virginia L. Rev. 2043 (2004)
3. Ryan Calo Digital Market Manipulation (2013)

4. Mark Lemley & Eugene Volokh Law, Virtual Reality, and Augmented Reality (2017)

Discussion Hour: Student Discussants: 

Group 1 –  Chris Park, West Pryde & Anant Sidhu

Group 2 – Ji Yeon Hong



Class 6: October 16, 2019:

Jon’s Talk – Consumers & Users As Creators & Connectors: Cases, Clauses & Contexts

From Creating to Connecting. Introducing the “Post-IP World”.

Modelling models of creativity. Word alignments, networked generativity and Post-Structuralism.

Should all IP be “use it or lose it”? Is Trademark still “use it or lose it”?

Introduction to the “tattoo conundrum”.

Why don’t CD’s have an End User License Agreement while games do? Software development & the evolution of licensing.

(Hook to next talk – so what sense can we make of the significant underlying role of contract law in the video game relationships)

More Post-Structuralism in games and an introduction to potential legal implications.

Legal fictions: EULA’s; TOS’ & the consumer instinct for expediency – click-wrap cases and content ownership issues.

The problems of click wrapping and minors.

The first sale doctrine & EULA restrictions (Redigi).

…the chasm of contracting out: Remind me again, why is the prevalent regime that of millions of very similar yet (fictionally) individual contracts? The potential impact of consumer protection laws internationally on the “standard” of “standard form” contracts.

The Post-IP World. How contracts tear apart copyright expectations, policies..and well…everything.

“10 contractual clauses – 10 video game law cases”. Tracking the evolution of practical legal implementations of consumer contracts in the digital space.

(Hook to next talk – looking beyond the law of contracts, what are the legal/regulatory regimes that can apply to game technology and content?)


1. Davidson & Associates v. Tim Jung  422 F.3d 630 (8th Cir. 2005)
2. MDY Industries, LLC v. Blizzard Entertainment, Inc. 629 F.3d 928 (9th Cir. 2010)

3. Vernor v. Autodesk 621 F.3d 1102 (9th Cir. 2010)

4. Evony, LLC  v. Holland United States District Court W.D. Penn. (2011)

Discussion Hour: Student Discussants – Freder Chen, Roddy Reynolds & Kevin Shi

Guest: Ian Verchere, Co-Founder of Session Games

Class 7: October 23, 2019

Jon’s Talk – What’s it all about…”EULA”?: Assessing of the utility and impact of End User License Agreements (etc.)

Continuing with the fundamentals of EULA’s, ToS’, Tou’s & the like:

Creating tends to go with Copyright, which in turn comes with Constraints/Coercion. Connecting tends to go with Contracts, which in turn comes with Restraints/Control. How logical is this really?

The problem with drafting (EULA’s etc.). The re-emergence of User Rights in a contractual context? Applying the Double Standards Test to EULA’s, ToS’ and those who impose them. The need for consumer agreements for the “ bad stuff”: Interpreting the case evidence. What about Notices?

Censoring creative expression through contract terms. How important?

What the cases and pleadings imply about the need for consumer contracts like EULA’s & ToS’ as remedies: A review of the 10 cases from the previous class.

Are we parties to hundreds (thousands?) of “active” contracts that we don’t use? Does it matter? A Common Law chasm if only form matters?

If video game consumer contracts didn’t exist would the gaps be otherwise filled in? Technology, legislation and  consumer protest: the future of video game contracts?

EULA’s and Loot Boxes


1. Bragg v. Linden Research, Inc. 487 F.Supp. 2d 593 (E.D. Pa. 2007)

2. Court documents in Hernandez v. Internet Gaming Entertainment, Ltd. United States District Court for S.D. Fla., Case No. 1:07-CIV-21403-JIC, Filed May 31, 2007.

3. Sara Grimes Terms of Service, Terms of Play in Children’s Online Gaming (2007) Note: Start @ page 54 of PDF

4. A. McDonald, L. Cranor The Cost of Reading Privacy Policies (2008)

Discussion Hour: Student Discussants;

Group 1 – Anna Lisa Tie

Group 2 – Jakob Dolmer

Class 8: October 30, 2019

Jon’s talk  – From Wheelbarrows to Holodecks: Conundrums of Technology & Law in the Future of Video-Games


Evolution of consumers as creators.

PC v. Consoles v. Mobile  (parallels Eula’s v. ToS v. Crowd/Open source). Evolution of various technologies, products, content & consumers. Evolution of differing legal/regulatory regimes relating to various combinations of the above list including legal treatments, distinctions, questions & problems.

The living room war: a report from the frontlines.

Cataloguing complexities of the “cloud”.  Evolving legal concepts of technological neutrality. Net neutrality. “Interop” rights?

Theme of film treatment of games: Tron(s); Gamer; Surrogates; Wreck-it Ralph.

Interactivity, immersion & virtual realities in games; legal issues/ethical conundrums. Live remixing of the real, the virtual and the fully interconnected – IP, contractual and regulatory choices, problems and dead-ends. The further issues and consequences of twisting realities through mobile, AR games, bots, augmented reality games, simulations & Kinnect-ing – living inside your own massively multiplayer 3D copier built world while wearing Google Glass. Virtual currencies, real money.

Multiple contemporaneous screens/devices – sometimes linked, sometimes not = natural fragmentation/diversity of experience. Consequences?

For example, the screen merger/multiple input dilemma: what legal standard applies when different laws, rules and regimes apply to each of the individual components onscreen? For example where a crowd-sourced defamation appears on-screen as part of a group on-line sports viewing experience, will the service provider be seen as an ISP with no liability or a publisher with liability? In other words, which screen within a screen will the Court choose as paramount; or more to the point does the combination of services within a single screen alter the legal analysis?

The not so surprising research results on the consequences of avatar choice – is virtual reality more fair and more equal then reality?

And of course, esports and the future of sport. Structures of esport leagues. Player rights and treatment.

(Cliffhanger – now that we are completely out of control, inebriated on visions of a crazy sci-fi future, we come to the next group of three talks – on Control. We have almost come full circle, from transforming old technologies to a new one, creating with it and connecting through it. We now arrive at the human instinct for order – how we control and consequently are controlled…stay tuned)


1. Atari v. Nintendo 975 F.2d 832 (Fed. Cir. 1992)

2. Sega v. Accolade 977 F.2d 1510 (9th Cir. 1992)

3. Sony v. Connectix  203 F.3d 596 (9th Cir. 2000)

4. Sony v. Bleem 214 F.3d 1022 (9th Cir. 2000)

5. Nintendo of America Inc v. King 2017 FC 246

Discussion Hour: Student Discussants;

Group 1 – Eunize Lao

Group 2 – Cassie Chu-Yu-Chee, Alice Kwan, Andrija Maksic & Julie Wong

Part C. Controlling

Class 9: November 6, 2019 

Jon’s talk – Controlling Originality 

“Creationism”; the legal version – exploding a few fictions & myths about originality. Devices, franchises  & anti-trust/competition law responses. Reverse engineering, emulations, chipping.

The Clone Wars: deconstructing genres, technology and identity uniqueness through EA v. Zynga  – Sim Social v. The Ville; Incredible Technologies v. Virtual Technologies – Golden Tee/PGA Tour Golf; Textron v. EA – Battlefield 3 Bell helicopter; and right of publicity (as opposed to copyright) cases – e.g. the retired NFL players & active college players v. EA Madden/NCAA Football cases; No Doubt v. Rockband (Activision).

Trolling for dollars? – Patents as swords in Immersion v. Sony, & the X-Plane case. “Ghost-car” patent. Feedback controllers. Are these constrictions on user rights? Should they be seen to be?

Free Expression/1st Amendment defences?

(Hook to next talk– Is virtual sex, sex? Is virtual violence, violence?  Next week…)


1. Incredible Technologies, Inc. v. Virtual Technologies, Inc. 400 F.3d 1007 (U.S.C.A. 7th Cir. 2005)

2. E.S.S. Entertainment 2000, Inc., d/b/a Playpen v. Rock Star Videos, Inc. 547 F.3d 1095 (U.S.C.A. 9th Cir. 2008)

3. Samuel Michael Keller v. Electronic Arts, al.  (U.S.C.A. 9th Cir. 2013)

Arguments before the U.S.C.A. (36:43)

4. Tetris Holding, LLC v. Xio Interactive, Inc. 863 F. Supp. 2d 394, 397 (D.N.J. 2012)

5. Noriega v. Activision/Blizzard, Inc., et al. (Cal. Sup. Ct. L.A. County, 2014)

6. Gravano v. Take-Two Interactive Software, Inc., et al.; Lohan v. Take-Two Interactive Software, Inc., et al. 142 AD3d776 (New York County Supreme Court, Appellate Division, 2016)

Discussion Hour: Student Discussants – Laura Harrison, Jeremy Rogers, Alexander Tatti, Sydney Gomez, Derek Odgers & Jocelyn Hassell


Class 10: November 13, 2019

Jon’s talk – “Mass Effect-s”

A history of legal reactions to (video game) violence and sexism highlighted by the Dungeons & Dragons (Waters v. TSR) and Columbine High School (Sanders v. Acclaim) cases. “ What is a deviant violent videogame….as opposed to a normal violent videogame?”

Evolving roles of cultural/societal memes in legal decision making.

Sex misogyny and #gamergate in games & gaming.

Kids & games – secrets of contractual immunity.

Addiction & health issues/evidence.

Loot Boxes: Fun or not fun; fair or unfair; legal or illegal.

(Hook to next talk, so freedom has become a stronger meme then causality, but can’t we regulate “the industry”?)


1. Watters v. TSR, Inc. 1990 U.S. App. LEXIS 8827, 904 F.2d 378 (6th Cir. 1990)

2. Sanders v. Acclaim Entertainment Inc. 2002 U.S. Dist. LEXIS 3997, 188 F. Supp. 2s 1264 (D. Colo. 2002)

3. James v. Meow Media Inc. 2002 U.S. App LEXIS 16185, 300 F.3d 683 (6th Cir. 2002)

4. Damsel in Distress: Part 1 – Tropes vs Women in Video Games – Anita Sarkeesian (23:35)

5. Sebastian Schwiddessen & Philipp Karius Watch your loot boxes! – Recent developments and legal assessment in selected key jurisdictions from a gambling law perspective  (2018)

Discussion Hour: Student Discussants – Amylee Hu-Fouye, Marshall Mackoff & Claire Robertson


Class 11: November 20, 2019

Jon’s talk – Controlling the Controllers

Privacy “The Sequel”: scalability not waiver-ability. Contrast with – information gathering through games for state purposes. Layers of privacy, vulnerabilities of surveillance. EULA complicity.

Reconciling: privacy; remixing; interoperability/connectivity/net neutrality/free expression???

Regulation of the video game “medium”. Ratings, regulation and industry self-regulation. Is multiplayer gaming “broadcasting”?

Telecommunications as vehicle of regulation? Consumer protection?

(Cliffhanger to final talk. The media born of transforming other media itself comes full circle, preparing itself to be transformed…stay tuned)


1. Oral argument in Blizzard v. BnetD

2. Oral arguments in Brown v. Entertainment Merchants Association (U.S. Supreme Court)

3. William K Ford The Law and Science of Video Game Violence: What Was Lost in Translation? (2013)

4. Cameron Russell, Joel Reidenberg, & Samyung Moon Privacy in Gaming (2018)

4. Benjamin Mako Hill, Andres Monroy-Hernandez The Remixing Dilemma: The Trade-off Between Generativity and Originality (Draft 2012)

5. Everything is a Remix by Kirby Ferguson, 2012 (36:25)

Discussion Hour: Student Discussants – Kiana Bartz, John Kielski & Ellie Krawczynska

Class 12: November 27, 2019

Jon’s talk – MEdia, A.I., Video-Games & The Rule of Law

We know that at some point not far away technology may produce fidelity so convincing to our brains that the term “Replacement Reality” would be more apt than “Virtual Reality”. Could human freedom of thought itself be challenged in such circumstances. Based on current trajectories we can also project another complimentary future for media – that of algorithmically generated entertainment content uniquely and intentionally generated for each consumer. Imagine for example a big data enabled, machine learning A.I. creating a film or video game experience with your favourite actors or characters, in your favourite genre, with your favourite narrative tropes, in the style of your favourite screenwriter or game creator, with some of your favourite music, all informed by massive amounts of data including every known detail of your life, history, habits, and emotions. All just for you and no one else.

Without both transparency of data and constraints on execution, this brave new world of completely individuated “MEdia” could make it impossible to know if you are playing a game, or are a human platform being “played” as a game – manipulated, influenced or becoming addicted for the purposes of another.

This future of bespoke tailor-made content becomes all the more consequential as it is built upon our current social media infrastructure; one that powerfully mediates social norms and very directly influences how we live our lives. We are clearly moving ever further away from traditional mass media for mass audiences. Recent political events have illuminated scenarios where prospective voters received customized “news” intended to influence their democratic rights. In this context, we must ask ourselves  what could happen if big data enabled, machine learning A.I. techniques are used to make entertaining content more persuasive, compelling, or even addictive?  At stake is our transparency into how individuated generated media for personal consumption impacts our human agency. How should we parse the role and rule of law in such unusual terrain where we are receiving content born of our own data, which unfettered, may be used to please us or to manipulate us? In examining whether to regulate or not to regulate these new possibilities, we will explore those legal principles that reinforce human agency, individual freedom, and sovereignty over our personal contributions to that content.


1. Lawrence Lessig on “Aaron’s Laws -Law and Justice in a Digital Age”, Harvard 2013 (1:43:03)

2. Bruce Schneier & Jonathan Zittrain on IT, Security, and Power, Berkman Center 2013 (1:30:21)

3. Jonathan Zittrain, Minds for Sale, Berkman Center, 2013 (1:17:03)