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CyberOne Critique: Lawful Good

This is a critique of Ryan Trinkle's project Lawful Good, located at http://lawfulgood.org/. This project is in the form of a Flash program emphasizing certain game dynamics, rather than putting forth arguments in a textual manner. As such, the arguments made are not explicit, but must be inferred from various elements such as the game mechanics, the characteristics of end-user interaction and parallels to real-life events. For each such inference, I shall identify the argument made, outline counter-arguments made by disagreeing parties, and then analyze how such counter-arguments are handled by the project. Lastly I shall attempt to evaluate the overall quality of the arguments made by the project.

The very nature of the project itself can be taken as an argument; namely, that the RIAA, and to a lesser extent the MPAA1, views end-user uploading lawsuits as some sort of game rather than as part of a business strategy ultimately aimed at increasing profits for their member companies. The underlying assumption is that the RIAA/MPAA are being irrational in pursuing and filing suit against uploaders. This is primarily argued by the temporal regulation introduced by the calendar in the game: the one-month periods in which the game takes place imply a short¬termist perspective on the part of the player, and by extension, the RIAA/MPAA2. Much like the corporate world's shift from long-term growth to quarterly reports, here the player's focus is on maximizing activity on a month-to-month basis without any regards to the long-term effects of the player's actions.

1 Uploader lawsuits seem to come mainly from the RIAA, while the MPAA has diversified its efforts by filing suit against a mix of uploaders, streaming video sites and bittorrent trackers. 2 Other potential explanations for this irrationality include principal-agent divergence (e.g., creating a justification for their own continued existence at the expense of member companies) and simple cost-benefit analysis (i.e., total of settlements/collected court awards exceeds costs of litigation).

The RIAA and MPAA's immediate rebuttal is that the uploader lawsuits are a legitimate, rational business strategy3. Uploads of their content reduce the competitiveness of their product by providing an essentially free and perfect substitution4. Due to the availability of this alternative, some consumers that would otherwise buy or rent a song or movie instead download the content on a P2P system, depriving member companies of potential revenue. By suing uploaders, the RIAA/MPAA disincentivize the relatively small portion of online individuals who upload from doing so, and thus increase the difficulty (and thus, the cost) of acquiring the alternative to the legitimate product. This in turn translates into some consumers who would otherwise download the content into purchasers of legitimate goods, raising member company profits. The very structure of the game serves as a counter-rebuttal: the game is essentially infinite in nature; regardless of how many uploaders are pursued and sued, there continue to be more. There has been some indication that on earlier P2P systems such as FastTrack, the advent of uploader lawsuits resulted in a significant decrease in P2P usage5. However, the increasing presence of users from more lenient jurisdictions and the introduction of P2P systems that make downloaders into simultaneous uploaders by default have likely contributed to the continued viability of P2P. It is clear that P2P uploaders are still numerous6.

Another component of the game is that the uploader is devoid of any visible agency. The game arbitrarily � finds� users for the player to target. Furthermore, there is no actual information given to the player about the file (beyond its name) that is being uploaded - and thus no judgment made as to whether a file is being distributed illegally or not; furthermore, the targeting operation takes place under a visible time constraint, increasing stress and the potential

3� Before the launch of lawsuits by the industry last fall against those induced to steal music online, we were spiraling down with no sense of a floor.� http://ipcentral.info/blog/RIAA-S.2560.doc 4� Some have suggested P2P drives sales -or has little impact on sales. And pigs fly . . . . If you can get something for free, without consequence, buying it becomes less attractive.� Id. 5 http://www.news.com/RIAA-threat-may-be-slowing-file-swapping/2100-1027_3-1025684.html 6 http://www.mininova.org/stats/ for mistakes. All users, rightfully or not, are thus potential targets for a hastily executed dragnet. This is clearly problematic - regardless of any deterrent effect on actual wrongdoers, innocent individuals should not be caught in the crossfire. It is harmful to both innocent individuals and member companies who suffer from the resulting unpleasant publicity when false positives are targeted and sued. Lastly, the settlement/court system in the game is a black box - there is no mechanism for determining right or wrong, but instead what appears to be (and is confirmed by the developer) the result of an expected-probability calculation, similar to the fate of the prototypical RIAA/MPAA target who, regardless of whether they actually are liable, is forced to make a similar settle-or-fight calculation.*

The RIAA/MPAA would likely argue that uploaders do have agency - at precisely the moment that they decide to illegally upload copyrighted content. The underlying assumption, however, is that the uploader is indeed breaking the law - and by only relying on the name of the file rather than the content (both in the game and in real life), innocent users could potentially be sued7. The RIAA/MPAA would likely respond to the criticism that they choose arbitrary targets by providing any of the following arguments: first, that to the extent that these organizations target exclusively U.S. IP addresses, and on occasion U.S. universities, they are using non-arbitrary criteria; second, that beyond these measures, some level of arbitrariness is unavoidable given that no further information is available about the person behind the IP address; and lastly, that arbitrariness is not inherently harmful in this context - if concrete parameters were set for who to sue (e.g., offering more than x number of files), and these parameters were made public or could be inferred from public information, uploaders could attempt to evade suit by tailoring

7 � The RIAA holds fast to that philosophy; when they present evidence to the court, they don't play the judge the song they claim you downloaded. The RIAA only shows the judge a screen capture of the filename, along with a username from the peer to peer network.� http://digitalmusic.weblogsinc.com/2006/08/07/the-riaa-vs-john-doe- a-laypersons-guide-to-filesharing-lawsui/

their behavior appropriately - and is in fact necessary for ensuring the strategy's success. Public statements on behalf of the RIAA/MPAA8 have acknowledged that fully stamping out piracy is impossible, and it follows that not every uploader will be caught and sued - but it seems reasonable to assume that the RIAA/MPAA considers every uploader, whether offering one file or 10,000, to be a legitimate target9,10. However, the argument that false positives are occasionally caught up in RIAA/MPAA anti-uploader operations (as is supposedly factored into the calculation in the later stage of the game) is supported by the record11. Lastly, the fact that users have to make an expected-probability calculation (thus potentially resulting in innocent users settling outside of court) is not specific to the RIAA/MPAA litigation (it is, however, arguably exacerbated by the mass filing of suits without proper quality control).

One last major point visible in the game is the nature of the evidence. Evidence in this game is an ephemeral phenomenon - the user essentially notices alleged wrongdoing, and drops

  • the � evidence� into a bucket, which eventually makes its way to court.But what method of authentication is available for this evidence? This is mirrored by RIAA/MPAA evidence in the field, which seems to consist mainly of screenshots and logfiles showing filenames or file hashes, bolstered by expert testimony regarding the validity of the evidence12. However, without actual inspection of the harddrives in the system from the time of the upload, the court must essentially take the plaintiff at their word that the screenshots and logfiles are not doctored. The RIAA/MPAA would likely respond by pointing to the ostensibly high percentage of settlements13

8 Most recently, by Dan Glickman of the MPAA in Steal This Film II.

9 � 'There's no hard and fast rule on who we sue and who we don't,' said Amanda Hunter, a spokeswoman for the [RIAA].� http://www.law.com/jsp/article.jsp?id=1158138324249

10 But see http://www.pcworld.com/article/id,112436-page,1/article.html

11 See, e.g., http://blog.wired.com/music/2006/10/another_riaa_la.html

12 http://digitalmusic.weblogsinc.com/2006/08/07/the-riaa-vs-john-doe-a-laypersons-guide-to-filesharing-lawsui/ 13 Discussed in http://www.p2pnet.net/story/9689

as proof that they rarely target innocent parties; yet this is belied by the black box/expected probability calculation necessitated by the settle-or-fight decision.

It is my opinion that this game makes its arguments well. There are two major constraints that I see in presenting arguments in a game fashion: first, the difficulty of presenting novel arguments; second, the difficulty of engaging in detailed, point-by-point debate. Both of these constraints arise from the lack of explicitness that is possible in a game relative to prose. However, within these confines, Lawful Good does a fine job of presenting many of the structural problems with the RIAA/MPAA uploader lawsuits. Placing the gamer in the shoes of the RIAA brings the individual around to the other side of the table and ultimately makes the anti-lawsuit perspective more appealing simply due to the rushed, careless and untrustworthy nature that characterizes RIAA activity in this field. My main criticism would be the development issues with the game - namely, that it is as yet unfinished. Of course, this is an issue endemic to software development in general and game development in particular14. Another improvement that I would like to see would be a clearer indication of the blackbox algorithm used to determine the end result in order to hit home to the user that law and justice are not the criteria by which uploaders win or lose, but rather by calculation.

There is the remaining matter of how this project and the arguments that it embodies can be introduced into the court of public opinion. A Flash game is a highly portable object; Flash is available through the vendor on Windows, Mac OSX, and Linux, and to a lesser extent on other platforms via unofficial open source alternatives. Thus, the main issue is publication of the game. Fortunately, there are major Flash game repositories that both publicize and host large collections of Flash games15, as well as at least one site that regularly reports on Flash game

14 http://en.wikipedia.org/wiki/Duke_nukem_forever 15 http://www.newgrounds.com/game/

news16. I would recommend the use of both of these types of resources, as well as social news sites such as Digg and Reddit which occasionally highlight particularly enticing Flash games. The beauty of presentation via Flash is that at the expense of explicitness, there is a high level of approachability - even readers of Slate17, who may or may not be in the Web 2.0 crowd, are approachable through this medium.

  • NOTE: This particular feature has not yet been implemented. This review is based on versions of Game.swf posted through Jan. 3rd, 9:30PM EST, and on conversations with the author regarding expected development.

16 http://jayisgames.com/ 17 http://www.slate.com/id/2180342/pagenum/all/