Last week I attended Judge Kozinski's screening of the court-room drama The Music Box. Alex Kozinski is the Chief Justice of the Ninth Circuit Court. I was the only game designer in the room.

I liked the film, though it's strangely named and I find the role of the music box itself pretty questionable. Still, it's an interesting film that follows the personal journey of a daughter who defends her father against heinous charges.

What's surprising to me is that 57 year old Kozinski knows a thing or two about games. I mean, how many people from his generation know how to be beat King Hippo in Mike Tyson's Punchout? Many years ago, he wrote some game reviews for the Wall Street Journal here, here, and here. I'm considering writing some law review articles for The Journal so we'll be even.

Kozinski is known for his writing, which is both clear and harsh. I think he delights in the controversy he creates, and he sticks in verbal jabs to those he thinks deserve it. Sound familiar? I think it's very weird that he's a judge who is a game designer in another life while I'm a game designer who is a judge in another life.

I didn't get a chance to tell Judge Kozinski that his law review article on patents is way off when it says the system favors the infringer. It surely favors the deep-pocket companies who snatch patents that should never be granted, then hold them over the heads of everyone else. I'll cut him some slack since he wrote that before I was born, though.

More importantly, I wish I had thanked him for protecting my first amendment rights (and yours) against Mattel in the case over Aqua's song "Barbie Girl." Mattel claimed that the song infringed on their Barbie name and sought damages. Kozinski ruled that the song actually did dilute the value of Barbie. That means that it did create a negative associate with Barbie, and furthermore it added a second thing that comes to mind when you hear "Barbie" whereas before there was only the doll. Regardless of anything negative in the song, a second entity with the same name does dilute some brand value, such as if a string of dry cleaners called "Harry Potter Dry Cleaning" were to become successful. Even if it had nothing to do with the books, the brand value of Harry Potter is still diluted.

BUT, even having said that, there are first amendment concerns here. Although the use of Barbie is commercial here (the song was sold for profit) it is also has a non-commercial use. That is, the song isn't *just* labeled Barbie for the sake of confusion. It makes a comment about the values the songwriters believe the Barbie dolls to embody. This social commentary falls under the non-commercial exception (even though the song is a commercial product) and Kozinski said the potential damages to free speech outweigh damages to the Barbie name here. If this type of thing were allowed to succeed in court, then companies would start to own the language and it would become impossible to even refer to, parody, or critique popular culture.

His famous closing words in his written opinion on this case were, "The parties are advised to chill." I like his style.
Thank you Judge Kozinski, and I hope your kids are enjoying Guitar Hero 3.

--Sirlin

Can games teach ethics? I think they definitely can, but my colleague Frank Lantz argued that I have it wrong. Before going on, I should define some terms such as "ethics" and "Frank Lantz."

Frank teaches game design at NYU and is the co-founder of an unusual game company called area/code. I see him about every year at game conferences. We have a shared understanding of competitive games and the culture that goes along with them. I draw from fighting games while Frank's drugs of choice are Poker and Go. (Yes I capitalized those on purpose.) We seem to disagree on things when we talk, but it's the "good kind" of disagreement where I think each of us learns some new point of view from the other.

Here's my side of things. Imagine a game vaguely like Oblivion, a 3D world where you control a character who can visit towns, talks to people, pick locks, and fight. Now imagine that the there's more of a diplomacy system in the game, the ability to sway politics (perhaps a voting system and the ability to persuade voters) as well as the ability to accomplish things by force. Actions have consequences, so you can break into houses and you can fight people in the streets, but you'll have to deal with the legal system and the police system if you do. So there's our world.

Now let's start with ethics. Stealing, lying, and killing are usually morally wrong things to do. Backing that statement up is beyond the scope of this post, so I'm hoping that can be taken as a given. The game world I propose is set up to reinforce those values. But, we would expose the player to a few extreme and unusual situations where stealing, lying, and killing become the morally correct thing to do. If you have the ability to save the life of a drowning person, but a thick-headed guard won't let you steal his boss's boat without a forged note, then it's probably good to forge that note. Saving a life is more important than a blanket commitment to "never forge." Perhaps you disagree, but it's definitely the kind of ethics I subscribe to and it's my game after all.

These extreme situations would be engineered so to make it obvious that breaking the usual rules can be a morally sound thing to do. This alone would be a big idea for some people whose thinking is stuck in the "lying is a sin, period" mode. (When a murderer with bloodied hands, stops and demands that you promise not to tell the cops which way he runs, and you agree, then the cops run up and ask where the murderer went...I think it's ok to break your promise, for example.) Anyway, this is not Earth-shattering stuff (I'd hope), which is why we then need to move into areas of gray. After we've established conventions (it's usually wrong to steal) and shown some exceptions (sometimes in unusual circumstances, it's wrong *not* to steal), then we can cook up a bunch of really gray areas where most people will disagree. Some people will make choice A, some choice B, and hopefully almost everyone will be confronted with the question "what is the right thing to do here?"

It's easy to go through life not asking questions like this, and getting stuck into one mode of thinking about ethics, but you can't have much a personal theory on things unless it stands up to tests...the very kind of tests we can create in a virtual world. The player would hopefully end up exploring his own view of things just as much as he'd explore the game world. It would also be very valuable, I think, to show that when you make a certain decision about stealing or whatever, that the local bartender thinks one thing, the distraught mother thinks another, the church thinks another, and the professor of ethics (he's definitely an NPC in here somewhere!) thinks another. And yes, the professor of ethics disagrees with the church on a great many things.

Now for Frank's side of the story. He says that one or the other is true: your in-game decisions about ethics have in-game consequences (meaning they manipulate various stats) or they don't. If they do, then no matter how clever your situations, the player will really just try to "game" the system. You'd just choose the path of least resistance and most power, or whatever other stat maximizing suits your fancy, rather than care about any "real" (or should I say "virtual?") issues. And if your decisions *don't* affect any stats or gamestate, then they are meaningless and that doesn't teach much either. Actions without consequences don't have lessons.

He says the entire approach is wrong, and that games he's learned the most life lessons from have no mention of ethics at all: Poker and Go. Here you learn about self-improvement, patience, seeing people for their merit rather than their skin color, and so on. Furthermore, he reminds me that *I* learned all those same lessons too, also from competitive games that don't concern themselves with explicitly teaching ethics. He says developers should care a lot more about just making good games (Starcraft 2, yay) and less about the authorial meaning I'm trying to convey.

Now I'll open it up to the floor. Is one of us right, or both of us? It's been three months since I discussed this with Frank, and while I still think the game I describe could be very effective if implemented well, it's hard to ignore his arguments. What do you guys think?

--Sirlin

Steve Job's essay on music and DRM
Game design is a great topic, and I know I've spent a fair amount of time talking about other things lately. The battle to get rid of DRM is, I think, an important one because it affects the free exchange of information and the archiving of information for future generations. Music is in the DRM spotlight these days (though movies and even Microsoft Office documents are also hot topics). The issues surrounding DRM are bigger than just music or entertainment though. I hope we can sort this stuff out before it leaks into more important aspects of virtual goods.

Anyway, Steve Jobs essay is exactly what I wanted to hear from Apple. Steve used a technique I personally love: he put the truth on the table and let people know who they should really be upset at: the music companies who still insist on DRM.

My one question to Steve would be, why does he not sell DRM-free songs on iTunes *today* from smaller labels or artists who do not wish to protect (aka cripple) their works?

Incidentally, I used Macs until I graduated from MIT 9 years ago. 9 years of Windows hasn't been too bad, but Vista has finally gone over the line for me. I don't see why Hollywood studios should be able to decide when and if to disable parts of my computer, ever. I'm about to switch back to Mac.

Great essay Steve, now just take the next step to removing the DRM on iTunes songs from sources other than the big 4 music companies.

--Sirlin

The First District Court of Appeal in San Francisco recently ruled 2-1 that gays and lesbians do not have a constitutional right to marry.

Link to news article.
Link to the ruling. (Or in pdf.)

The majority opinion can be summarized by these two principles:

1) "Gays and Lesbians have always been discriminated against, so it's ok to uphold the tradition."
2) "In 1948, the courts struck down the ban on interracial marriage but discrimination against gays and lesbians isn't as bad as discrimination against race."

When someone drops the ball flagrantly as this, they really should be called out by name: Justice William McGuiness and Justice Joanne Parrilli are responsible for this ruling.

The central issue is "who gets to define marriage in our democratic society,'' Presiding Justice William McGuiness said in the majority opinion, which was joined by Justice Joanne Parrilli. "We believe this power rests in the people and their elected representatives.''

And yet, Governor Arnold Schwarzenegger vetoed a bill that would have legalized gay marriage. His reasoning was that voters in a 2000 ballot initiative already demonstrated that they are against gay marriage, and that a court needs to rule on the matter. So...the courty says the legislature should decide this. The legislature says the courts should decide? Who should actually decide?

Correct answer: the courts. The "tyranny of the majority" is the concept that the majority may very well believe it's ok to mistreat a minority. If African Americans are a minority, for example, a majority vote might decide that it's ok for the minority to be overly taxed, or taken into slavery, or whatever else. To protect against the tyranny of the majority, we have civil rights that apply to all people, so that even a voting majority cannot decide on a whim to be opressive. This is exactly one of those times. It's the court's job to guard against the tyranny of the majority and protect the rights of people who are discriminated against based on arbitrary factors such as race or sexual orientation.

Justice William McGuiness and Justice Joanne Parrilli, you have both failed us.

At least the dissenting Justice J. Anthony Kline did not stand with McGuiness and Parrilli. He said the majority's conclusion that laws that discriminate against gays and lesbians are more tolerable than racist laws "requires us to deny as judges what we know as people.''

We'll see what the Supreme Court has to say about this. I already know what the history books will say, and it's embarassing to live in times like these.

--Sirlin