Category Archives: Video Games and the Law

Boom, headshot.

An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 3

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The third and final segment! Continued from An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 2.

4. Speculative Warfare (circa 2008 – present)

Because ultra-realistic FPS games are a marketing time bomb, and because of the awkward gameplay moments that will inevitably arise when your setting involves U.S. forces fighting against a real world enemy, ultrarealistic FPS games have now moved on to the fourth and present-day era: speculative warfare. Like the games of the two previous waves , speculative warfare games feature wars between real nations and real human organizations. However, instead of recreating past or current wars, these games are set in the present or near future, and involve hypothetical conflicts between existent nations.

As always, Russia is the common denominator. Even with the Cold War two decades dead, video games have no shortage of creativity when it comes to finding ways to, once again, make Russia the villain. Just like how the historical reenactment games rewrote history to make Soviets the bad guys, speculative warfare games warp modern day international relations into unlikely scenarios where Russia is the evil invading force. For instance, in Battlefield: Bad Company 1 (2008) and 2 (2010), the player is thrown into the midst of a modern day war between the Russian Federation and the United States, with little time wasted on explaining how such a conflict could ever come to pass. In contrast, Modern Warfare 1 (2007), 2 (2009), and 3 (forthcoming – 2011) at least try to give some plausibility to their story lines, by inventing the rebel Russian Ultranationalist Party to explain how Russia suddenly becomes an active world threat again. (Although the rumor mill falsely claimed MW2 had been banned in Russia, the developers did take out a scene allowing players to shoot civilians in the Moscow airport. Although shooting Russian civilians was deemed too much for the Russian market, simply having Russia be a villain is not a problem.)

Still other games go for the hybrid Russian villain, by mixing elements of historical military fears with modern day anxieties, and team Russia up with a more likely antagonist nation. For instance, in Frontlines: Fuel of War (2008), you have the Western Nations fighting against the “Red Star Alliance” — the mighty pseudo-superpower duo of Russia and China. Likewise, Rogue Warrior (2008) also uses Russia, but teams it up with North Korea and a nuclear weapons smuggling program.

Having Russia be the villain for speculative warfare plots opened the door for other nations to become the hypothetical villain. Russian markets never seem to mind when Hollywood or U.S. game developers choose them to be the bad guy, and the trope is so common as to be beneath notice by any diplomatic instruments. But Russia is sui generis, when it comes to the lack of controversy caused by casting it into the villain’s role. Having other nations fill in for the bad guy is not nearly so straightforward. It is not hard to see why — having major U.S. and other Western nation game developers declare that they can foresee ostensibly friendly or neutral nations as likely enemies in a U.S. military conflict necessarily carries some uncomfortable implications.
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An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 2

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Continued from An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 1.

3. Third Wave: Modern Reenactments and Al-Qaeda Clones (circa 2002-2008)

The third wave of First Person Shooter (FPS) video games involves a combination of the two previous game styles: reenactments of currently occurring conflicts and conflicts with entities that are clearly stand-ins for Al-Qaeda. Beginning in about 2002, video games started to make the jump from historical and generic battle scenes to battle scenes that parallel real wars that are occurring today. Inevitably, political entanglements accompanied this increase in realism, as unlike their predecessors, these games cannot claim to be abstract diversions that are independent of actualy events. They are, necessarily, commentary on war and international disputes, whether the developers intend them to be or not.

It is not just the plots that cause the political entanglements; these games are also political in their very origin. What is unique about the third wave of video games is that it was not private developers that first pushed the boundaries, making it acceptable for video games to be set in modern day conflicts. Rather it was the U.S. military that first developed games that attempt to recreated on-going, real life wars.

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An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 1

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A few months back, an infograph on video game villains was making the rounds, depicting the nationality and setting of various combat video games. The infograph makes an interesting point: the identity of bad guys in video games is very much a reflection of real-world geopolitical developments. But the graph does not go quite far enough. It is obviously comprised of only a few hand selected games, and as it goes back only to 2001, it does not show the more general, historical trends in video game development regarding bad guy nationality.

For video games set on modern day earth, the question of who should play the villain is a very delicate issue for game developers. It is also a new one: prior to 2001, it was virtually unheard of for a video game to feature a real world nation as a villain, and it is only in the past four or five years that games featuring real nations and organizations fighting each other in hypothetical conflicts have become commonplace. Having real countries be video game bad guys has, however, been part of long arc in video game development, wherein video games have persistently pushed the boundaries regarding what is considered an “acceptable” story line. At the very beginning of video game development, realism of any sort was strongly frowned upon; even having bad guys that bled red blood was considered too shocking and graphic. Over time, however, games have incorporated more and more elements of realism into their game play, beginning with the least controversial elements and then working its way up to games based on hypothetical armed conflicts between existing nations.

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U.S. Military’s Ban of ‘Medal of Honor’ Is An Unconstitional Restriction of Speech

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The new Medal of Honor, an upcoming video game scheduled for release in October, will not be sold on U.S. military bases due to objections over the game’s content, specifically the “well-documented reports of depictions of Taliban fighters engaging American troops.”

The commanding general of the Army and Air Force Exchange Services explained the policy as follows:

“Out of respect to those we serve, we will not be stocking this game…. We regret any inconvenience this may cause authorized shoppers, but are optimistic that they will understand the sensitivity to the life and death scenarios this product presents as entertainment. As a military command with a retail mission, we serve a very unique customer base that has, or possibly will, witness combat in real life.”

Of course, there are plenty of other violent war-based FPS games available through the AAFES. It appears that the military’s ban on video games in which you play the role of the “bad guy” is limited to incidences in which you are playing a bad guy that is killing American troops. As noted by GamePolitics, “while Medal of Honor was pulled because players could assume the role of Taliban fighters, as of the time of this article, it was still possible to purchase Call of Duty: Modern Warfare 2 from AAFES stores, which featured a mission in which the player acts as a terrorist, shooting civilians in a Russian airport.”

This seems like a clear example of the government implementing a content-based restriction on speech. Under the First Amendment, such content-based restrictions of speech must be ‘narrowly tailored to serve a compelling state interest.’ Restrictions that are also viewpoint-based get a higher level of scrutiny yet. The AAFES’ refusal to sell Medal of Honor on military bases is a content-based restriction and, I’d argue, also a viewpoint-based one, particularly given the manner in which Medal of Honor has been singled out.

True, the military often gets some leeway when it comes to Constitutional restrictions, particularly when “national security” is invoked. But as held by a district court earlier this year in Nieto v. Flatau , “[w]hile military officials are entitled to great deference in restricting speech to further the military’s needs, they may not do so in a manner that discriminates against a particular point of view.” Additionally, any argument that this is a restriction of “commercial speech” would almost certainly fail. This is a refusal to sell a piece of media because of what it portrays — in that regard, restrictions based on a video game’s content should be evaluated in exactly the same manner as restrictions based on a book’s content.

And the ban on Medal of Honor doesn’t even come close to passing the degree of scrutiny required for such restrictions. “[S]ensitivity to the life and death scenarios this product presents as entertainment” is not a compelling state interest.

-Susan

How many World of Warcraft Dollars to the Won? South Korea Prohibits MMORPGs from Banning All Forms of Virtual Currency Exchange

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A recent decision from the Korean Supreme Court has ruled that MMORPGs may not prohibit exchanges between in-game and real-world currencies, at least in certain circumstances.

To describe the Korean case in brief: a player got caught engaging in online arbitrage with the in-game currency, and lost his account. He then sued the makers of the game and prevailed, with the Korean Supreme Court striking down the terms of Lineage’s user contract that prohibited such in game activity.

Although it is the “RMT trading has been legalized!!” headline that is getting all the attention, it is the Court’s willingness to engage in reformation of the MMORPG’s contract terms that is the truly significant aspect of the case. The Court is not simply permitting virtual currency prohibition — it is actually prohibiting a virtual world from setting its own fiscal policy. In effect, the Court is requiring that virtual money be treated the same as sovereign-backed currencies, at least in this one respect.

Many games won’t be happy about this — but for others, it will be an unexpected and extremely welcome boost. Whether a MMORPG embraces the creation of its own thriving e-economy or not depends upon the character of the game world. As Pixels and Policy explains,

It’s been standard practice to either discourage or ban real money transactions (RMT’s) since the rise of subscription service MMORPGS like World of Warcraft. In an RMT, the consumer exchanges real world currency for in-game cash, loot, or leveling. This is the kind of behavior encouraged by freeform worlds like Blue Mars and Second Life, but in a closed-world MMORPG, it can ruin the experience for others by devaluing the virtual economy.

One aspect of the Korean case that was relevant to the ultimate decision was whether or not virtual currency speculation is a game of skill or a game of chance. The court ultimately decided it was a game of skill, because it was the players themselves engaged in the arbitrage. Had there been proof in the case that the players were using bots or macros to carry out their economic activities, the Court seems to be saying it would have reached a different result.

However, even having a real player at the controls doesn’t stop some aspects of economic activity on MMORPGs from being extremely similar to a casino-style game of chance. From the Journal of Virtual Worlds Research [PDF] (yes, it actually exists),

From the provider’s perspective, the only costs that matter are base-value costs. Taxation and markup can be ignored, as these are merely transactions between players. Our estimated payout percentage of 95% implies that the provider (MindArk) retains, on average, 5% of the money spent on mining activities, thus returning to the player 95 cents (minimum 91 cents) for $1 played. From this perspective, the activity of mining is comparable to slot machines, where a spin costs a certain base-value and there is a long-term average payout (of 95%, in this case).

-Susan

Addendum: Also thought I’d point out yet another example of a reporter for the New York Times doing research for an article by reading blogs or web boards, this time for a NYT Magazine article on Chinese gold farmers. For all the griping traditional media does about how inferior blogs are, and how blogs are merely parasites on bigger media, they sure do scrounge up a lot of their own material from the internet masses.

International Humanitarian Law Does Not Prohibit Shooting Locusts, Brutes, and Infected: Why Game Developers Should Stop Being Lazy and Stop Using War Crimes in Lieu of Plot

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Via Opinio Juris, a Swiss NGO has produced a report on the promotion of violations of international humanitarian law in video games. [PDF] This is a subject that’s actually bothered me before, and I am glad to see someone giving it some serious thought. Not only is the report’s game-by-game analysis of possible international law violations fascinating, but I’m completely on board with the authors’ stated purpose:

The goal is not to prohibit the games, to make them less violent or to turn them into IHL [International Humanitarian Law] or IHRL [International Human Rights Law] training tools. The message we want to send to developers and distributors of video games, particularly those portraying armed conflict scenarios, is that they should also portray the rules that apply to such conflicts in real life, namely IHRL and IHL. We would thus like to propose the producers to incorporate the essential rules of IHL [obligations].

First person shooters are pretty much the only game type I seriously play, but as a general rule, I don’t play FPS games that involve hunting down and killing other humans. My avoidance of them is due to a variety of factors: in part due to a dislike for the game concept, in part due to personal squeamishness, and in part due to an inability to suspend disbelief enough to become immersed in a game when I’m busy murdering people left and right. I would never advocate censorship of video games, but I would love for developers to be more aware of their games’ incidental promotion of war crimes, and to see new games incorporate into gameplay some of the real considerations involved in armed conflict, including compliance with humanitarian law.

As it stands today, many games treat war so callously and so unrealistically that they are not only offensive, they are also just plain bad and boring to play. I remember Army of Two, which is discussed unfavorably in the NGO article, being particularly nasty. Aside from the gameplay being laughably asinine (collecting “agro” so your partner turns invisible? For reals?), I had serious problems with playing two white dudes who are happily blasting their way through various hordes of Somalis and then blasting their way through various hordes of Iraqis, with the general mission guideline being “if someone looks like a native, shoot them.”

The game was even more disturbing when you realize that its timeline (1993 in Somalia, 2003 in Iraq) explicitly matches up with real life armed conflicts that the U.S. has been involved in. These games are not about theoretical, imaginary wars where only bad guys die — they are about very real events that resulted in the very real deaths of many innocent civilians.

War crime-promotion is disturbing in itself, but also bothersome in that, oftentimes, games that require the indiscriminate killing of human beings do so at the expense of having an enjoyable and nuanced story line. Pretty much all the games I do play, with one partial exception, feature clever and creative stories that avoid any need for human-on-human carnage. As a result, I can happily blast my way through Gears of War’s Locusts, Left 4 Dead’s zombies, and Halo’s Covenant troops without ever worrying about accidental humanitarian violations. (Well, okay — I sometimes feel a little guilty for mowing down terrified Grunts. But I do it anyway.)

The one FPS I enjoy that does involve killing humans is Half-Life. A lot of the shooting is directed at adorable little head crabs and antlions, which is cool by me, but the game also requires you to shoot at human Metro Cops. However, even there, thanks to the masks and voice disguisers, the CP’s are fairly easy to dehumanize. In terms of the game’s narrative, killing them does not tread as far into moral gray zones as do other human-killing games; they are an Orwellian paramilitary police force whose troops are all citizens who have become traitors to humanity. So shooting a couple in self-defense ain’t so bad, and doesn’t entail any risk of torture, summary execution, POW mistreatment, or abuse and murder of civilians.

Essentially, there is no game-based justification for why a game should allow players to engage in consequence-free war crimes. Designing games based upon a theme of wanton murder is a cheap cop-out by developers; gameplay could only benefit if violations of humanitarian law had serious in-game consequences, forcing players to either find a way to accomplish an objective without committing a war crime, or else go ahead and commit the war crime but then be forced to pay a substantial cost as a result.

I’d also point out that that even if a video game does not involve shooting humans, there is still ample room left over for indulgent, ivory tower analysis of gameplay under international law. Many important legal questions remain, such as, How is it in Halo that the UN finally got together the funding and state support necessary to create the elite UN Marine force? How do the laws of international organization responsibility apply to ODSTs? Does the treaty that formed the COG in Gears of War actually permit the forced conscription of soldiers in return for feeding their families? Not to mention, if a massive zombie invasion breaks out in an allied nation, does NATO require other states to act in collective defense of that state?

-Susan