Go Big or Go Home

From a great article in First Monday: The key question in legal analysis of videogame law: “Should cyberspace (or subsets of cyberspace) be treated as distinct “places” for purposes of legal analysis?”

To me the biggest single question in the analysis. Every question in this division (and I say it is a FIRM DIVIDE, or FD) should focus first on that question. The article is great, you should read it, allow me to be egotistical enough to give my thoughts on a couple of outstanding points in the article.

“First, because the characteristics of online spaces and online conduct will often make it inappropriate to apply the rules governing “similar” conduct offline.” That’s why every videogame lawsuit, or every virtual worlds lawsuit, should clearly delineate that there SHOULD BE AND MUST BE a recognition of that gulf between real-world conduct and “in-world” conduct (what I will refer to forever as IWC)

“Second, thinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents.” My friends in the legal community know I personally get enraged when this is not a primary question. Jurisdiction. It influences which law will apply, where it will go to court, which locality has a claim to “community standards” as is so important in U.S. constitutional law, and also crucial in non-U.S. law.

To me the best part of the article is the authors reach a conclusion or at least a mission statement. “Sovereigns should allow their citizens who wish to travel to online spaces and, while there, to be governed by the rules applicable there, provided that those rules don’t allow the online spaces to become havens for actions causing substantial harm to outsiders.” That seems a very worthwhile goal and perhaps one that can be universally agreed upon.

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The reason this article is so important at this time is that Call of Duty, Modern Warfare 2 came out this week and made $310 million the first 24 hours.

The story in the NY Daily News said in the first line “A bloody video game made more money in one day than any movie ever has.” In fact, “the largest opening in movie history was Warner Brothers’ “The Dark Knight,” which grossed a measly $158.3million over its first three days.”

For an opposing viewpoint to purchasing the game, read Opposition: an Army of Women. Personally, I hope the article was written at least partially as sarcasm.

And finally, the quote: “Go Big Or Go Home!”. Why? Well, this game made headlines, but consider these facts.
In 2008, Videogame Sales topped 21 billion. Full story from Reuters.

Contrast that to films. Last year, according to the MPAA, “The worldwide box office revenues increased by 5.2 per cent in 2008, reaching an all-time high of $28.1 billion.”

I think you would agree that the two main forms of entertainment are becoming very close in popularity. But can you name a single voice actor from Halo? What about the illustrator/developer for the Mario games? Who is the producer for the Playstation Network? I believe, as do many industry insiders, that gamers rights is a clarion call that many are starting to hear, and that games are becoming more popular because developers are responsive to the needs of their gamer buyers. Is that why the industry is growing so quickly? Or is the lack of this a reason it is not growing even faster? From a legal standpoint, what do you feel will be next “cause” litigated in the courts? Identity theft? Rights to participate in forums? Virtual property theft? Shutdown of longtime games you’ve invested time in money in?

I hope you feel free to comment on these topics. I will reply as quickly as I can to any and all comments.

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.

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