Charity Streams

Part two of the loot box article is still forthcoming, but life happens and so I have a reason to write a different post in the meantime. Starting today (December 11th), I will be doing a series of casts every weekday for the next two weeks, each with a new (surprise and generally crowd pleasing) game. Some of you may remember the format from my 1k follower celebration. Why the surprise and all the effort? A friend of the cast (TheEyesOfSyn92) had some misfortune befall her as mentioned in these tweets. In brief, while doing laundry someone took what they wanted of her clothes and threw the rest into the garbage. Syn herself has not directly made any appeals to repair this loss beyond reporting it to the police, but I have decided to do these special casts in order to do a small fundraiser to help lessen the impact of the theft.

In some ways I think this is a fitting response as I originally met Syn through helping JessyQuil on a charity cast after which she started regularly stopping by the cast and has been quite dogged in getting more people to watch my stuff. However, I am also aware that I rarely do streams like this directly (more on this below), and we are in a holiday season that makes many demands on your wallet for charitable causes as well as gifts and sales. With that in mind I thought I would explain why I am doing this series of streams specifically and a few thoughts on how I navigate the giving space in general. I hope this appeal will at least inspire you to make a token donation towards this specific goal, but if nothing else it should suffice as a few thoughts on charity streams and giving once the two weeks are up.

There are a lot of charities out there right now, to a point that it sometimes feels like they’re the new scam. The cause can seem dubious, more than expected goes to administration fees, and there’s a certain level of fatigue given how often people on the street or on a cast seem to be out their rattling the cup to get you to sub, donate, sign up for a mailing list, or buy some ornament. This effect is compounded by the fact that there is an unspoken tip on Twitch that charity is generally a good way to raise one’s profile, and so perceived insincerity is added to even more asks in an already crowded space. The biggest problem here is that none of these are really good reasons not to give, but they do serve as excuses to avoid it. Should the caster’s motivations really factor in to whether or not I feel good about money being given to a worthy cause? If I have doubts as to how much of my pledge goes to the cause, can I offer some alternative that will put the money to better use? If not, is no money really a better outcome than some positive value?

These concerns are partly why I have been more inclined to support others in their charity casts than undertake them on my own, although I did start casting off the back of an Extra Life marathon I did to support a children’s hospital I had to go to when I was little. In this case it had a clear benefit to my community, I had a personal connection to it, and I was relying on my personal network of friends as I had no broadcast to speak of at that time. What I didn’t communicate about that cast was that I had a secret goal in mind. If I did not earn what I was making per hour as a research assistant x 24, I would make up the rest out of pocket. Since I cared about the charity it seemed to me that 24 hours of working and giving the money should be the baseline I compare 24 hours of playing video games against, and that if the latter had a shortfall I had not spent the time well. This ensured my incentives were aligned with taking the fundraiser seriously, and I am happy to report that people were remarkably generous in their giving, leading to an outcome in which the time was valued well beyond what I could have earned through my labour. To put it another way, my cast normally has a donation button and now is equipped with a subscription button and the option to cheer with bits. There are already 3 asks on my channel, and so if I am going to ask you to do something with your money, the least I can do is respect it and put some time and thought into doing it right.

Let’s assume for a moment that giving is affordable and the right thing to do. Why this particular cause? I should be clear, Syn has not asked this and I am a little nervous that this may be crossing a boundary into something unwanted. Nobody particularly wants to be seen as a ‘charity case’ and I’m not inclined to label her as such. Instead I see this as more akin to insurance. I have been mugged twice, and the first time involved a very substantial amount of money I happened to be carrying in cash that day. I was fine,  but word got around and people were good enough to check in. While I did not bring up the matter of the money (with the exception of the intended recipient), more than a few cheques or small amounts started working their way toward me. Not enough to make me whole, but enough to lighten the blow. I would like to think that this is not unique to me. In some ways a social network can act like insurance: instead of an individual bearing the full brunt of misfortune, the network absorbs a small inconvenience, and the burden on the individual is less. The fact that Syn may be a stranger to you (and for what it’s worth, I’ve never met her in person) is less relevant than my hope to encourage a culture in which we care for one another, and let the sum of relatively minor expenses/inconveniences cushion the blow. The benefit to the recipient is not just monetary, but also stems from the knowledge that people care and are invested in their wellbeing (even if it is a small amount). Like insurance, nobody can predict when something will happen, and many people go through life without needing it, but it remains a prudent choice given the potential outcomes. I can no longer say I have not drawn from the support of my social network, but I can say how much it meant to me to experience that kind of care. I would like to appeal to the belief that had the fates decided differently, someone would undertake a similar initiative for you.

There is no case to be made that this is the most important donation you can make. Everyone needs to evaluate what they can give and where they would like to allocate it. I heard on a podcast once that “If you weren’t in a financial position to go in and buy a coffee whenever you’d like, then don’t buy me one either.” I have no interest in spreading hardship, and so if any value would constitute hardship, then there are other ways you can help (spreading the word is a great start). I am only interested in spreading inconvenience as thin as possible. For those of you who are in a state to contribute $15/$10/$5/$2/$1 or anything in between it would be wonderful if you did. Did you get a game that you loved and would have paid $25 on for $5 on a sale? Maybe pass a little of that surplus on and make someone feel better. Did you find some money in the past? If you’ve got a better job now, maybe pass on some fraction of it. If you see the loss of clothes as trivial compared to other things you could use the money for that is completely fine, I only ask that you contribute a trivial amount. The sum of trivialities over a population could almost erase what happened to someone who was wronged at random. In exchange, I am doing my best to put on a good show for two weeks with a new game every day. If you like my cast, my writing, for some reason find my tweets interesting, and especially if you haven’t donated in the past, I’d ask you to consider even making a token donation towards the cause.

If you would like to help out, the most direct way would be to give to Syn directly at her donation link. This may be inconvenient when you are in the stream and so I will honour any donations made through my channel and cover the PayPal fees (though I discourage this as a practice as general since there are no mechanisms for accountability beyond Syn reporting I have not honoured my claim). If it truly is beyond your means, I would encourage you to share this post or the casts with people who might like to contribute or participate in the two weeks of broadcasts.

Finally, there is a segment I know I will not be able to reach. They may be concerned about dishonesty or simply not see the value in an act that does not have some kind of world shaping significance. I can understand this perspective, and while I would argue that micro matters like how we treat and support each other matter more than we give credit for, I must acknowledge we live in an affluent society (it is, indeed, the premise under which I am appealing for donations in the first place) and that what we consider hardship is much lighter than what others face. If your reason for not participating in this particular cause is because of the perception of greater need, then I invite you to follow one of the links below. There is nothing to prove to me, but if you were unmoved by the appeal above solely due to greater needs elsewhere I would call on you to prove it for yourself and do a little bit to alleviate the suffering you feel is greater:

Medecins Sans Frontieres (Doctors Without Borders)

Give Directly

I hope to get a chance to see you all and thank you personally in one of the broadcasts.

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Loot boxes and other microtransactions

Loot boxes and their predecessors have been a hot topic lately with the release of Shadow of War and Star Wars: Battlefront II. Loot boxes have been in video games since at least Team Fortress 2 and were likely inspired by collectable card games like Magic: The Gathering, so why all the fuss now? Shadow of War and Battlefront II are two highly anticipated games that are perceived to be particularly egregious or abusive implementations of this system which has resulted in a more general backlash against the practice. In some ways I think this is a useful discussion to have, as it makes us reflect on how games keep our attention and whether there are unintended consequences. However, I also think this discussion is driven by the fact that game developers are getting better at capturing some of the surplus that players enjoyed, and so misses the most interesting points to be made. In this, the first of two planned posts, I would like to talk about what loot boxes are, and what role (if any) they have in gaming.

What are loot boxes?

While not a loot box itself, the best introduction to the idea would be to consider a collectable card game (CCG) like Magic: The Gathering. Magic‘s innovation was to take the existing concept of trading cards (like baseball cards), and put them into the framework of a game. Decks could be augmented with cards that were randomly distributed in booster packs, retaining the collectable nature of trading cards, while also conferring benefits in the game itself. This feature is desirable for a publisher, since the sale of booster packs ensures a steady revenue stream from existing players. The value of this insight is easy to underestimate, and so it is worth reflecting on the fact that the instability of cash flows have brought down major game publishers (such as SPI and Avalon Hill) in the past, making Magic one of these strokes of genius that solves a legitimate business problem while spawning a wildly new popular genre.

Did consumers benefit? Yes. Magic didn’t exist before and so at worst consumers are indifferent to the offering. What about the booster pack element? Since Magic didn’t exist before, we don’t have the counterfactual of ‘Magic without boosters’, but the existence of Fantasy Flight Games’ Living Card Games (similar offerings that provide all the cards of a given release in one pack, removing the random element of deck building) and digital versions of Magic without booster packs have not diminished the popularity of the original card game. The randomness was a feature brought in from trading cards, and at the very least did not present an impediment to widespread adoption of the game.

17 years after the release of Magic, Valve released the MANN-Conomy update for Team Fortress 2 (TF2), implementing a loot crate system analogous to the purchase of booster packs. Crates are randomly granted while playing the game, and a key may be purchased in order to unlock the crate and receive the loot. The loot is randomly generated at the time of opening. When the MANN-Conomy update was released TF2 was just shy of 3 years old and still popular, no doubt due to the fairly regular free updates being pushed to the title. The problem with this business model is that the only revenues the game generates come from new copies of the game sold. Valve’s decision to continue updating the game gave existing players a reason to keep playing or pick the game back up, providing a reason for new players to still buy the game, but eventually there is a point where the additional units sold cease to justify the cost of adding additional content.

Adding loot crates allowed for additional revenues to be generated from existing users who opted to pay to open the crates. In this sense the introduction of loot crates was almost certainly a success as in less than a year TF2 became free-to-play with the Über update. There is a certain logic behind this decision as a multiplayer-only game like TF2 benefits from a robust player base, and so going free-to-play is self-reinforcing in that players enjoy the game with a larger player base and, consequently, the highest potential for revenue is achieved with more people generating random crates that some will later go on to buy. The success of this model need not be inferred from Valve’s decision to go free-to-play but through the simple observation that TF2 is 10 years old as of this month, continues to finance its updates, and has enough players to keep it roughly in the top 5 of Steam’s concurrent players (in fact, it is the only game in the top 10 not released this decade).

From this background we get an idea of what loot boxes are and why they may appeal to developers. In its simplest form a loot box is a microtransaction that confers some benefit inside the game. The exact nature of the benefit is randomly determined, and, depending on the game, can range from purely cosmetic to some mechanical advantage. The value of a loot box to the player is the probability weighted value of its contents. The value to a business is not just the revenue,  but specifically a stream of revenue over time that had previously only been available to games with subscription models (i.e. MMOs).

Pricing games

At its core, loot boxes represent a pricing decision on the part of developers in terms of what content they release. An older and simpler version of this decision could be considered as how much of the game to release as a demo to incentivize a purchase. A more modern example might be to decide what features to leave to an expansion pack/DLC, or what content should be left to owners of a ‘deluxe edition’ of the game. Almost every one of these decisions is controversial among some gamers, but they really seem to be slightly more granular instances of a necessary conversation at the beginning of a project: How much game can we afford to build? How much can we charge for it?

I have an unpopular view on this topic that I’ll present up front: The people who make and sell games should be allowed to charge what they want for them. As a consumer of games I’d them to cost as little as possible, and I have been very vocal in instances where I feel the demands on the consumer have outweighed the benefits provided. Despite this, I do not think the developer’s own priorities should be ignored in this conversation. For instance, I am not crazy about the fact that the ARK developers released paid DLC while they were still in Early Access, but they were within their rights to do so. I also remember refreshing the Steam page when I saw the price increase before launch because I couldn’t believe it. Long time viewers can recall my incessant complaining whenever Paradox releases Crusader Kings II DLC in multiple parts (though, to their credit, the Stellaris releases have been exemplary). The point here is that, while I know my preferences as a consumer, I would not wish to compel these developers to price their games a certain way.

Games are not life saving medication. They are one of the least essential things in my, or anyone else’s, life. Every single one of us has looked at a game and passed over it because the asking price hasn’t matched the value we’ve assigned to it. In fact, we do this so often the act is unremarkable and we often don’t even register that we’ve assigned some value at all (and, as the likely pile of unplayed games in your library indicates, we are sophisticated enough to place a value on the option of playing a certain game at an arbitrary point in the future). The disappointment or injustice we feel when there is a price we don’t want to match is simply the recognition that there is some benefit we would get from playing a given game, but not enough to justify the expense (even if that is for essential reasons like choosing between Wolfenstein II or eating until next payday).

In a static sense, a change (increase) in the pricing strategy is a negative for the consumer: less content is available at the same price. Dynamically we can view it as a necessary evil to ensure that games continue to be developed and supported to the level we’ve become accustomed to.

Shaping games

Unlike direct price changes, loot boxes can shape the experience of a game. While we are accustomed to thinking about loot boxes and similar mechanics in a negative light, they can be a tool to affect the pace of a game and provide more value for a player. Consider a game like Rock Band. Most people seemed to dislike this feature, but the career mode required you to unlock some of your favourite songs, rather than just letting you jump straight into the hits. Jumping to the hits seems to be the default response to a game like Rock Band, but consider how you would feel about the product if you could actually do this. You’d play a handful of songs, ignore the ones you hadn’t heard about, and then wonder if you’d really gotten your money’s worth (especially if you started buying more hits off the store). I can’t say the songs in Rock Band changed my life, but I had a good time with the lesser known songs, and made an effort to perfect them. The design of the game made sure I didn’t spoil my dinner by loading up on dessert.

Here’s a thought experiment. Imagine the malicious intentions that would be ascribed to the developers of Hotline Miami if the game included microtransactions that would allow you to unlock a level without beating the preceding one (exact same game, just with the added microtransaction). “Yeah, what’s up with Assault man?” “They only included that level to sell more keys…” I think if Hotline Miami started with all the levels unlocked, most players would have finished the game, but have one or two levels they never completed. Some kind of paid unlock (either straight up unlocking a level or a power up) adds gradients between ‘let players choose and know they’ll short circuit the game’ and ‘you must master every punishing obstacle we put in your way no matter how long it takes.’ You can get a shortcut, but you have to pay up, and for some they will value their time less than their money. You can see this mechanism as a financial deterrent to ruining the full experience, but also enabling people who may not have a surplus of time to experience the whole game. The latter is an oft-cited rationalization for these kinds of microtransactions in games like Hearthstone where it is theoretically possible to grind for all the cards and solo adventures but impractical.

Ironically, loot boxes also better align a consumer’s interests with the developer. If the purpose of these microtransactions is to establish a long tail of revenues, then it means that the financial success of the product is directly tied to the sustained enjoyment of the game and the value of the additional content bought while inside the game. In English, the game has to be good and you have to actually want the stuff they’re selling you. While quality has always been a factor in the financial success of a game, there is a known problem of game endings being rushed or generally unsatisfying due to the fact it’s the content players are least likely to experience. With a 2 hour window of playtime for returns on Steam, there is also an incentive to front load a game to keep people engaged for at least that long. This article began with the story of TF2 and the idea of financing fresh content through loot boxes which is a case study of Valve’s interests and players aligning through this mechanism.

These are the positive cases for how loot box style systems can help the design of a game. If we generalize even further we can say that elements of this mechanic have existed in RPGs ever since people started randomizing loot (Diablo is essentially paying up front for an infinite supply of monster shaped loot boxes).  As with any mechanic in a game, it can be done well or it can be done poorly. Games that implement these mechanics can break the flow of an experience by constantly asking for another payout. Nobody wants to play a Hobbit game where Gandalf shows up and says “We’re going to go on an adventure! But first, all I need is your credit card number…” Creating an imbalance due to the presence of paid content is also a potential problem, crystallized in the dreaded “Pay to win!” epithet.

I have dedicated more time to the potential benefits of this system simply because I think the negative case is so well represented that it is essentially taken for granted. When considering loot boxes and microtransactions in general I find it more edifying to consider them as a tool first (i.e. not to assign a value judgement to them) and consider their fit as a solution to a problem with the attendant costs and benefits.

Paying for games

In the simplest and bluntest terms, people do not want to pay more for games. More precisely, people do not want to feel like they are paying more for games. In truth, games have never been less expensive from a consumer’s perspective. Here is a chart adapted from an Ars Technica article:

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The nominal price is the price you would see reported in a catalogue from that year, but inflation can make a direct comparison difficult as the purchasing power of a dollar in 1977 is not the same as a dollar in 2017. This chart presents the prices for games in real terms, that is, adjusted for inflation. The blue line reports the upper bound of prices while the red line reports the lower bound of prices (as reported by Ars Technica). There are some complaints with this graph. I grouped cartridges in with discs which partially explains a decrease in prices around the year 2000, and Ars Technica simply reported the high and low values in 2013 as $59.99, while previous years would include a game like EyePet along side Call of Duty: Black Ops. Reporting ranges of prices have only become more difficult over time, as there are legitimate questions as to whether or not it is fair to include a game like Hellblade: Senua’s Sacrifice beside this year’s iteration of Battlefield Creed: Modern Warfare. Furthermore, as the EyePet example illustrates, we’re only taking into account someone’s reported prices, not any sale prices or the composition of how many games at a given price people bought (so, if 1/10 of gamers bought games like EyePet and the remaining 9/10 bought games like Call of Duty: Black Ops, the upper bound makes more sense to use). Finally, the product itself has changed over time. We simply expect more from a AAA game today, than we would expect from a game like Super Mario Bros. 3 (estimated nominal price in 1990: $50). We could try to compare a game like Shovel Knight, which is heavily inspired by NES games, and surmise that the cost has gone down substantially, but this would fail to acknowledge that Shovel Knight has the benefit of decades of game development and fewer hardware restrictions that NES developers would face.

These objections aside, the price for a given game is, at worst, essentially flat since 1977, and most likely has declined in real terms before we account for quality improvements (better graphics, sensible mechanics, new genres, voice acting, online multiplayer). In fact in the Ars Technica data set, blockbuster games seem to hit $59.99 (US) in 2006 and stay there. While there is a consensus that the cost of making games is going up, I was less successful at finding representative data for the cost of making games, but I have two rough and somewhat intuitive measures. The ESA in Canada publishes an annual essential facts report which appears to include average cost every 2 years across several platforms and genres (I reached out to the US equivalent but the e-mail address provided for information and historical reports did not work). The earliest available date for Canada is 2011 and lists the average cost of console development as $10,083,000, while the average cost for the same platform in the 2017 report is $12,536,957, an increase of about 24%. Now there are lower and higher average costs presented over the years, and Canadian game development may not be representative of broader industry trends (for instance, the highest cost in the 2011 report was apparently $30m while this list has three games with $50m production budgets for the same year). If we want to consider the upper bound, the only game since then which has cost less (in nominal terms) was The Witcher 3: Wild Hunt.  It’s sensible for there to be a lot of variance between projects which are going to be at different stages over time, but the overall trend certainly seems to be increasing. We could also consider an important input cost into games: wages. The same reports list average salary as $62,000 in 2011 and $77,300 in 2017 an increase of about 25% from the 2011 level (these are not adjusted for inflation). Now again, these are mostly Canadian numbers, they are not directly measuring the costs for the same products as our measure of prices, and they are only doing so for half of the periods observed. Still, these numbers suggest that our intuitions about the costs of making games are correct, games are becoming more expensive to make and you’re either hiring more people to make them (though this is harder to support with what we see here) or that you are paying up for the know-how that brings your game to market (likely true given what we see in salaries), and that this has been the case for at least half the time the price stopped increasing.

Price increases are not the only way to deal with rising costs. Games are relatively inexpensive to reproduce and selling more can help cover the added expense. There are certainly more people buying games, and this is likely due in part to the investments into making them more visually appealing and easy to play. But it’s not at all clear to me that the net increase in players is enough to keep pace with the rising costs of production, especially as long term gamers have lower cost options tailored towards a more ‘hardcore’ audience. This returns us to our original topic: stagnant prices for the base game are being augmented through the partitioning of the full product into the base game and supplemental components ranging from expansion-style DLC to microtransactions like loot boxes.

This kind of behaviour is not limited to gaming. I’m sure everyone has experienced the phenomena of buying something at a store and noticing the size is shrinking over time. You may have a favourite chocolate bar and, had you kept the wrappers (please say you don’t) you might notice it shrinking by a few grams every once in a while even though the price usually stays the same. Soft drinks are similar in that bottles will shrink in size, and in both cases the price per gram or millilitre will have gone up by a small amount. Nobody likes higher prices, but most readers will likely find these examples rather unremarkable. The truth is that while we value transparency, as consumers we tend to punish companies that transparently increase prices and so have given them every reason to play this little game where things are repackaged and the old size is reintroduced after enough time has passed. It is not surprising to me that we now see similar practices in gaming seeing as it does not seem to take much to make a very vocal group of gamers feel slighted and start posting manifestos in all capital letters in reviews.

I don’t think it’s wrong for gamers to advocate for their interests as consumers, but I think this conversation is most productive when the demands of consumers acknowledge the costs. Here’s a demand without accounting for costs: “I want the graphics to be like Battlefront II, it should have a single player campaign with the scope of Witcher 3, multiplayer should be populous and regularly updated and balanced, and if there is DLC it should transform the game to a level of XCOM: Enemy Within or War of the Chosen. Also, it should be free to play.” There are two ways this request fails to acknowledge costs. First, the scope for a project like this is immense, and requests like a sprawling single player campaign potentially contradicts the request for an active multiplayer community. But conceivably some brilliant design army could concoct a satisfying product that appeals to enough people to balance the demands and delivers a truly awe inspiring product. What is likely meant by ‘should be free to play’ is some form of monetization that involves cosmetics instead of denying the player access to meaningful portions of the advertised experience. This is an easier case to dismiss because it seems so unreasonable on the face of it, and yet this is often the kind of demand we make when we talk about a game’s monetization strategy. The second way it fails to account for cost is how the developer is likely to monetize the game. If we take the request as mandatory, then the only option left to a project like this is to use every trick in the book to extract as much money as possible from the player base through paywalls, loot boxes, experience boosters, telepathic data wizards, and hired goons. The cost here comes in the form of how the game will be shaped to extract the payment we do not want to give up in the first place.

A segmented market

The thing that struck me the most about the complaints about Battlefront II were that the consensus seemed to be that the game was very good and that the complaint was that the loot box system was the line in the sand because it would open the floodgates. It’s hard to see this complaint as any more than “I really want this game but I don’t want to pay for it.” What I think this marks is a clearer split in terms of the types of games that people buy and play.

It occurred to me that I selected out of big new AAA releases some time ago. This is not because I don’t like them, but rather than I have so many opportunities to play other things that it is not a good use of my money to buy a $79.99 (CDN) game when I will receive comparable enjoyment from an older game in my library or a lower cost independent game. I am quite fond of indie games of all shapes and sizes and their price is usually less than half of what the premium (AAA) offerings are. The quality of indies is increasing all the time, and so I think it is worthwhile for players to ask “knowing that I’ll probably wind up buying a few loot boxes, do I think this game is worth it?” and I think a number of people can honestly answer no and still be perfectly happy with the games they play.

Premium games almost seem to be taking an amusement park approach (or Costco or Amazon Prime). You pay an entry fee to come in and have a particular experience, but extras (cotton candy, popcorn, certain rides) come at a price. Some amusement parks, or Costco or Amazon Prime essentially make you pay to shop there, but the service and prices make this fee worthwhile. Sure, you can not have a snack or buy a souvenir t-shirt or any of these other things that seem to give people enjoyment, but you may be missing out on part of the experience and may resent the additional expense on top of the admission ticket. Whether it’s a game, an amusement park, or a store membership my advice would be the same: If you’re not getting the value, don’t pay for it!

It seems to me that games like Battlefront II and other ones that are supported through loot boxes are really intended to be the kind of game that the player mainlines for the majority of their play experience. I personally like a lot of variety and so have only a few games that I really go in deep with. Battlefront II does not seem to be one of those games, and so while I have tremendous respect for the achievement of bringing the Star Wars universe to life in such a vivid and exciting form, I have to say “this game just isn’t worth it for me.” I will, instead, support a game like Cultist Simulator because it looks interesting, it’s by a game designer whose work I have liked in the past, and the price point is very appealing. In fact, I’ve already Kickstarted it and so I have said “I value this” and have given the clearest possible signal that I would like to see more projects like this in the future. By selecting out of the top end of gaming, I also indicate that I am willing to accept limits on what the cutting edge looks like.

If gamers as a whole are willing to pay up for cutting edge experiences, then it is likely that teams and budgets will continue to expand in order to keep up with the arms race. If players are unwilling to pay directly, then part of that arms race will involve innovations in getting players to pay for these increased costs indirectly. If gamers are unwilling to pay at all (i.e. they select out as I have), then we will see budgets and the style of games made shift into something that is more sustainable. I think it’s unlikely that we will see big publishers like EA reverse course in terms of their premium products, but I also think that publishers like EA and Ubisoft are fully aware that there is a segment of their potential audience that wants smaller more impactful games with the associated reduction in price tags. Consider the EA Originals series, or games like Valiant Hearts (Ubisoft) which are high quality single player (mostly) experiences that are not intended to be something you put thousands of hours into. I happen to like this state of affairs, since it means that people who are looking for a game like Battlefront II can get it, and the profits go towards developing the kind of game that I see value in. What I can’t really stomach is the idea of looking at a premium game (which tends to imply a heavy degree of crunch or at the very least substantial effort on the part of the developers), wanting it, but turning around and saying to the creators “But I only think it’s worth 75% of what you put into it.”

The tent for gaming has gotten bigger, and this has meant that the ceiling for cost/quality has gone up along with the tools becoming more accessible and better for designers at the low and mid ranges. I cannot see how a greater variety of games being made available to us is a bad thing, even if it does mean that I am no longer consuming the bleeding edge of this market. It is hard for me to see people being priced beyond what they want to pay as being particularly outrageous given that games are so inessential and there is so much great stuff out there for very reasonable prices. If the complaint truly is about the way monetization strategies affect gameplay, then the decision seems even simpler. If the game has been reduced to ‘pay to win’ then the matchmaking will either be effective at balancing the match or it will fail. If the nagging to unlock content breaks your immersion in the narrative, this is a failure in the design of the game. If it fails, then it seems that this is no different from any other game with a defect, and it has never been easier to become informed about the quality of a game after release. In either case, we should make time and money available for the things we value, not the things we don’t.

What about gambling?

This post has focused more on the microtransaction aspect of loot boxes, since the majority of arguments surrounding addiction and gambling seem to be supporting the more fundamental position of “I don’t want to pay that much for this experience.” I think it’s important to understand why we’ve gotten to this point and why the people making games use these kinds of systems, but at some point we need to discuss whether or not we have any business implementing them and what the consequences are. I happen to think this is a much bigger issue than what most people want to talk about, and so, having discussed loot boxes as microtransactions, the next post will discuss the psychological aspects of loot boxes, whether it constitutes gambling, and whether such a system has any place in the design of games.


Note on affiliate links: I have an affiliate status with GOG.com for which I am given a portion of sales for traffic I drive to the site. The inclusion of a given title is for illustrative purposes first, but when it is available on GOG I will provide such a link. Naturally I encourage you to do your own price comparison or buy on your preferred platform. I include, on occasion, affiliate links from other broadcasters to support people who helped me in a given post or the cast in general. I have also received press copies of Stellaris and Crusader Kings II DLC.

Battle Royalties

You’re hanging out with your friends and take out your mobile phone to show them something. Before you can get to the site, one of your friends notices the carrier and proceeds to berate you for going with that other company that came after their own carrier. How could you support such a dishonest practice for a lower monthly fee or your preferred choice of handset? Their company was first! If we were actually talking about phones, this scenario would be incredible. Switch mobile phones with video games and this story is unremarkable.

The news is old at this point, but Bluehole Inc., the developer of PlayerUnknown’s Battlegrounds (PUBG), issued a statement later in September accusing Epic (who released a free to play Battle Royale mode for their game Fortnite) of copying PUBG and even implying that specific PUBG innovations may be ‘leaked’ (or could be in future). Game fans being what they are, battle lines were drawn roughly corresponding to people’s preferred title. There appears to be a general feeling that Bluehole was overreaching, and yet I notice a certain persistence in some fans to insist that Epic has done something wrong, and I think something has been missed in the overall discussion. As such, I thought it would be instructive both to examine the case itself, and why Bluehole seems to be relying on a fairly undesirable trait in the gaming community to try and push their claim.

The perceived case against Epic

One curiosity that has emerged from this controversy is that the consensus seems to have formed around what people think Bluehole has said, rather than what their press release and CEO has said. The perceived case seems to be that Bluehole believes Fortnite is infringing on some kind of property that they own and that they should be compensated by Epic for ripping off their game. This is not what is found in Bluehole’s statements but rather my estimation of what a casual observer thinks that this dispute is about. I think this may be why I’ve found the conversation around this dispute so unedifying. Both sides, untethered to reality,  launch into their respective dystopias where PUBG fans envision indie developers being perpetually screwed by big companies and Fortnite fans forsee a litigious nightmare in which all genres are reduced to iterations of some ur-game (Bertie the Brain if you go by Wikipedia) and any developer that dares create a game is instantly buried under a mountain of royalty claims. Why spend time discussing untrue claims? They seem to be fairly prevalent, and communicate a misunderstanding as to the role of copyright. I need to entertain the possibility that at least some people reading this may also hold these views on either side, and so this will hopefully clarify a few things and move the discussion into more productive territory.

If we assume the battle lines are not drawn around fandom for a particular game or developer, then the dispute can be seen between one that wants to ensure the rights of developers are protected, while the other wants to ensure competition in the market for video games. The rush to dystopia outlined above is likely a function of the fact that both of these are entirely reasonable values, and it seems that when we discuss it we spend more time making the opposing side unreasonable rather than recognizing that these values are not incompatible. We desire competitive markets for a number of reasons. All things being equal, they seem to be fair: Anyone with a good idea can enter, and people can decide for themselves, rather than having some external force dictate who is allowed to make things. They ensure the lowest price while simultaneously stimulating innovation for fear that a competitor may offer a better product for less. Acknowledging that at least some subset of readers will not be so enamored with capitalism (and a smaller business-minded subset will be even less enamored with competition), I will at least offer that competitive markets have been deemed worthwhile enough to set up institutions to ensure they continue to operate that way, and that a broader evaluation of economic systems is beyond the scope of an article about a tiff between two video games.

Can we have perfect competition in video games? No. And not because it only exists in textbooks, but specifically because games are virtually costless to reproduce. Once the game is made the expected outcome would be for the price to effectively fall to 0 as distributors of this game enter the market to capture some of the surplus. In addition to ensuring the creator receives the rewards for this product, there are a number of other rights we want to protect as well, as I’ve discussed in two other posts. This protection is copyright. Copyright is not intended to protect the profits of a business. At best, it simply ensures that whatever revenues emerge from the work accrue to the rights holder. Another way to look at this is the old saying that copyright protects expressions, not ideas. Copyright ensures that I cannot put a character like Wilson from Don’t Starve in my own game, or that I can’t make a survival game based on Clementine from The Walking Dead without getting permission from the rights holders. However, the protection is narrow enough, that I can have a cartoonish gentleman scientist named Wilfred in my game, and Telltale cannot prevent me from producing my own adventure game in a world overrun with zombies with an adorable child as a moral center.

Hopefully these examples are enough to provide some intuitions as to why this version of the Epic-Bluehole dispute is a non-starter since genres are not covered by copyright. This does not mean that we have to like existing copyright law, as its protections are quite narrow, novelty doesn’t appear to be a requirement, and it has done a very poor job of protecting developers such as Vlambeer when their games were cloned. However I’m not sure the dispute is over the current state of copyright law, otherwise we’d be hearing a lot more about it. Before moving on to what was said by Bluehole in their press releases, I’d like to talk a bit about previous cases in gaming to see how we have navigated this territory in the past.

Past cases

While I was dismissive of the ‘copycat’ case, this is a matter that has been before the courts. There is an unfortunate tendency in discussions about gaming and intellectual property to say a given topic has been untested in court. While this is often true for a specific complaint, there are often instructive cases we can look to. Ars Technica has identified two potential legal cases that relate to this issue, and I found their analysis of the Fortnite and PUBG to be in line with the impression I had gotten from watching Twitch streams (though I think the differences between the two games are more substantive and so think they overstate the similarities between the games). I am not especially convinced by their invocation of the Sega vs. EA settlement as Sega claimed to have a patent in this case (although it has certainly piqued my curiosity as to that patent) while most disputes of this nature do not involve patents. The injunction granted in the case of case of Atari v. North American Phillips Consumer Electronics (link from the Ars Technica article) is more interesting. A memorable quote from that case observes “it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” In this case Atari was granted the injunction against a Pac-Man clone due to it capturing the “total concept and feel” of Pac-Man.

This outcome seems favourable to Bluehole’s argument, but it is important to remember that this case (and similar cases) are very much about the audio and visual components of the game and whether or not they are subject to copyright. Games are much more sophisticated today, and in the case of Fortnite and PUBG the one point of agreement seems to be the difference between the visual styles. When considering the ruling in favour of Atari, it’s helpful to actually look at the games.

Assuming that these look and feel rulings could be extended to gameplay, we should consider Capcom USA Inc. v. Data East Corp and Data East USA Inc. v. Epyx Inc. (there’s 6 years between these cases so I’m assuming this accounts for the difference in names). The Capcom v. Data East case concerned a claim of infringement between Street Fighter II and Fighter’s HistoryDespite the clear (and likely intentional) similarity of Fighter’s History to Street Fighter II, the supposedly infringing elements followed necessarily from the genre of karate fighting game and so were not protected.

These are not especially strong precedents for Bluehole as even if we were to move past the fact that all of these cases were about elements where there clearly is not a similarity between the Fortnite and PUBG, they would need to show how the areas of similarity did not follow from the battle royale genre. It’s already clear that one cannot copyright a genre, and so we’re left trying to establish that the allegedly lazy rip-off that is Fortnite somehow managed to copy something that was not essential to the genre (that is, they just copied the genre, but in somehow doing so they copied something extra that was not essential to the battle royale genre).

The actual case against Epic

Bluehole’s statements seem carefully worded to maximize on implications and put a lot of focus on Epic as the developers of the Unreal Engine. The original press release talks about their community’s “growing concerns” regarding the similarities in Fortnite (I don’t really think anyone heard about these concerns before the press release, but then, this statement could mean anything). Bluehole also says that Fortnite “… may be replicating the experience for which PUBG is known” which is more specific than “growing concerns” but isn’t especially concrete, and so hard to claim is protected. The specific issues that we can actually deal with are that Bluehole feels it is improper for Epic to make a competing game due to their relationship through their licence of the Unreal Engine, and that PUBG was mentioned in promotional material for Fortnite (presumably in reference to this video).

You may have noticed that promotional videos and advertisements often leave comparisons to “another leading brand.” When I saw Bluehole’s complaint, I had to wonder if this ad copy was a result of a legal restriction placed on mentioning a competitor, or if was because advertisers do not want to give any additional airtime to a competitor. The FTC have issued a statement on comparative advertising that answers this. Comparative advertising is permitted so long as it is substantive and truthful. This doesn’t provide us explicit guidance as it does not seem to be written with the scenario of ‘Help a competitor is saying nice things about my product and I want them to stop’ in mind, but it’s hard to imagine this complaint forming the basis of any litigation. Presumably Epic will be happy to comply with Bluehole’s wishes that they not mention PUBG in future, but I leave it to your own judgement as to how upset Bluehole actually is about all of this. The claim that Epic’s mention implies that Bluehole is ‘on board’ with the Fortnite battle royale mode omits H1Z1‘s mention in the same sentence and assumes that they are in a position to authorize such modes in the first place. Furthermore, Bluehole’s complaint that their players are misled to believe that they can play PUBG in Fortnite now does little to credit their players and is inconsistent with their other claim that they do not feel they ‘own’ the genre. In truth, I think very few players of either game know or care about the relationship between the two companies, and the statement seems tailored to the sort of person who does read up on industry gossip and is likely to take a stand one way or the other. To believe Bluehole’s claim requires that there are players who presently play PUBG, are aware that the developers licence the game engine from Epic, and then parse the sentence “At Epic we’re huge fans of the battle royale genre and games like PUBG and H1Z1…” in such a way as to mean ‘the developer of PUBG has allowed us to implement their game inside of Fortnite.’

In addition to the promotion issue, the relationship with Epic came up in the (not very clear) clarifying interview. C.H. Kim (CEO of Bluehole) believes that Epic should have talked to Bluehole  before embarking on their own battle royale mode. He also expresses concerns that a feature internally developed for PUBG could be “… leaked, or other things could happen.” This seems to be implying that Epic will steal source code from  Bluehole and release it as part of the Unreal engine, or otherwise make it public. If Epic does this then it seems that there are very clear mechanisms for Bluehole to seek redress, especially since they have been accused and convicted of the theft of valuable trade secrets from the game Lineage 3 and so have more working knowledge than most developers about this process. To the best of my knowledge Epic does not vet projects made using their engine and their audits are limited to financial ones in the case where they believe they are not being paid royalties. The most relevant sections of the Unreal Engine’s EULA seem to be 9 (Feedback and Contributions) and 11 (Ownership). These sections say that you keep your own code, but they are free to use any feedback and contributions you make (contributions being defined as “any code, whether in Source Code format or object code format, or any other information or content, that you make available to Epic by any means…” with certain restrictions). Bluehole is entirely in control of the code it submits to Epic, and the existence of Fortnite does not change this fact or the EULA. Simply put, if Bluehole thinks Epic is stealing their code, they should come out and say it, otherwise they are operating under exactly the same terms they were at the start of the project.

It is worth mentioning that Bluehole is not the only company under discussion that has been the target of litigation. Canadian developer Silicon Knights sued Epic for failure to provide a working game engine and sabotaging Unreal Engine 3 licensees. Other claims included a failure to meet a deadline to deliver a working version of Unreal Engine 3 for Xbox 360 developer kits, insufficient documentation, withholding improvements to the game engine, and using licensing fees to fund development of their own titles rather than the Unreal Engine. This case is interesting because it moves beyond implication, which is what Bluehole has provided, and claims that Epic has specifically been attempting to abuse its position when competing against licencees. Epic’s response to the suit was to counter-sue, effectively accusing Silicon Knights of stealing their engine. Silicon Knights had made something of a big deal over the fact that Epic’s mismanagement of their license required them to develop their own engine in house. As it happens, the engine Silicon Knights developed contained thousands of lines of Epic’s code, including comments (with typos), modified variable names, and the copyright notices removed. The judge declined to award Silicon Knights the damages they wanted (which included all the profits from Gears of War), and ultimately awarded over $9 million to Epic. Silicon Knights was ordered to recall and destroy all copies of Too Human and X-Men: Destiny (among other games that were under development and do not appear to have been released at the time of the judgement). The counterclaim muddies the waters quite a bit as the theft of the Unreal Engine is a bigger headline than whether or not Epic is allowed to compete with licencees, but so far as I was able to read, none of Silicon Knights’ claims regarding the crippling of the engine were regarded as legitimate (in many cases these seemed to stem from seemingly deliberate misreadings of certain deadlines), and no other developers joined their suit regarding the abuse of licensees.

When elaborating on Bluehole’s complaint I was surprised at how little substance there was to their position. The specifics of the complaint don’t change with the release of Fortnite’s battle royale mode. The statements are vauge and heavy on implication, which seems the only possible option when there is so little to go on.  But perhaps there is a moral case that has been sidelined in the discussion of the possible legal avenues Bluehole might consider. We will examine what could be considered a moral case before moving on to what I consider Bluehole’s true intention is with these statements.

The moral case against Epic

It is not a particularly good look to licence an engine to a game and then release your own version after it becomes successful. While I think Bluehole’s case against Epic is essentially non-existent, this post isn’t intended to be blindly pro-Epic. Nobody who has worked on a game really wants to see a competing product come out, though there is some consolation in the fact that this type of competition usually only comes after a title has been successful. But this competition will seem especially harsh when the company you are licencing your engine from enters that space and provides a free offering.

I think the optics of this decision are worse than the reality of it. Epic has always released its own games alongside its engine. Unreal Engine 4 is probably the most accessible version of the engine to date and there has been a concentrated effort to make a broader range of games with it. In addition, Epic has gotten out of AAA game development and is focusing on smaller projects that don’t require them to bet the farm with each new installment. With more people using Epic’s technology to make games and with Epic expanding its portfolio of games, it seems inevitable that there will be some overlap between Epic’s games and the ones that licence their technology. Of course, the Fortnite battle royale mode is not a product of random chance but a specific decision to implement a game mode because of another title’s success. The reason why I have such difficulty getting worked up about this is that I haven’t been outraged by any previous times Epic has released any of their own games. Epic have released plenty of First Person Shooters, including a free to play one, along with mobile games, MOBAs, and platformers, and people have continued to licence their engine for these types of game.

Is it the fact that the battle royale mode is in a different genre from what they normally do? Perhaps, but then, Fortnite is also different from what they have traditionally produced, and right now all battle royale games are different from their developer’s usual genre. Even if it were inside a more established genre, the question seems to be boiled down to: Can Epic pursue other lines of business given that it is the developer of an engine? It seems to me that we are best served when these kinds of rules and restrictions are in place to address some imbalance from the ordinary state of the world. For instance, we motivated copyright as being a means through which we can ensure creators have the means and incentive to continue to create in the face of an easily duplicated product. It is not clear to me what imbalance is created by Epic’s licencing of their engine. Developers licencing their engines is not a new practice, though the accessibility of these engines has improved tremendously. I don’t think there would be any particular uproar of Daybreak (developer of H1Z1: King of the Kill) opted to licence the ForgeLight engine to other developers despite the fact they would likely be competing with them. If we reverse the scenario and take a company likely better known for its engine now (Epic), the formula does not seem to change. That is, there does not seem to be any prima facie reason to restrict the lines of a business a game engine developer can enter into.

There also seems to be a tendency to think that Epic has made this decision from the top down, while I think the reality is that the decision to incorporate a battle royale mode into Fortnite came from the development team and probably only passed a layer of “we’ll be competing with a high profile licencee” at the top once they decided to implement the mode. This seems a lot more consistent with how battle royale modes have been developed historically. The original battle royale mode existed as a mod in multiple games, before being implemented into H1Z1, with PUBG being the first game to start off as a stand alone title. The popularity of this genre has led to the mod/alternative mode to be a dominant growth engine for most of these games, and Epic’s approach in adding the battle royale mode to an existing game is unremarkable compared to past implementations in this sense. Furthermore, I think gamers are largely underweighting the effort that Epic, or any other developer, needs to put in to implement a mode like this. The maps between the two games are substantively different, but in order for the constricting battlefield mechanic to work there should be no dominant strategy of going to a particular location (i.e. the whole map has to be balanced or it all falls apart). The construction of shelter is a genuinely interesting innovation to the genre, and the addition of traps is an element missing from existing battle royale modes that is present in the original inspiring material (the Battle Royale film). Discounting this effort is the same kind of thinking that leads to Reddit comments like “adding multiplayer is easy.” In some ways, it’s good that we’re not thinking about all the trouble a developer went through because we really just want to play the game. However, the fact that I think something looks easy should not give me licence to proclaim on what took effort on a developer’s part and translate that opinion into assertions as to what games they should be permitted to develop. I suspect the Fortnite team is being forthright when they say they love battle royale games, and that they thought that their interest aligned well with a clear demand for this kind of game. This is exactly the kind of thing we tend to praise in indies (make what they love, or what inspires them). I do think they came about this honestly both in terms of offering their own take on the genre and assessing it as being a good fit with their existing game.

When considering a moral case against Epic, I do think it’s worth considering the past behaviour of both companies. Bluehole appears to take a zero sum view of the battle royale genre. While I think it’s fair to say that they won’t be able to collect the same kind of surplus they did before the entry of Fortnite into this space, I also think they don’t allow for the fact that people playing the competing free to play game may lead to future purchases of their premium game (I speak from my own experience here where I did not consider buying PUBG but will likely try Fortnite at some point to see what all the fuss is about. I’ve gone from a 0 probability of purchasing PUBG to some slim probability I may find I like the genre and want to play more). I invite you to contrast Bluehole’s response to the dynamic between Chris Roberts and David Braben, designers of the seemingly competing games Star Citizen and Elite Dangerous. Epic does not seem to think in zero sum terms. It does compete with developers who use its licence, but it also funds its competition through the Unreal Dev Grants program. Unlike licensees, Epic has a vested interest in releasing the improvements it makes to the engine when developing its own games, and provides technical support for them. This is why it is not surprising that the announcement of the battle royale mode was followed by a series of related improvements to the engine. None of this has to be viewed as altruistic, but simply a function of the incentives that Epic faces as the licencor of a game engine. Epic’s business model seems to allow that encouraging the development of competing titles on its engine drives improvements and allows them to showcase successful or innovative uses of it. EA’s Frostbite and ZeniMax’s id Tech 6 engines do not follow this model, being used only for games developed by their respective publishers. As someone who plays more small and independent releases, I benefit more from developers that have access to high quality engines without being attached to a big publisher, but this also means that developers necessarily face a more competitive environment, regardless of whether the developer of the engine chooses to participate. In this light, Epic’s decision to implement a battle royale mode seems not only consistent with their past activity, and with the use of the Unreal Engine more generally, but with how past battle royale modes have been implemented in the past.

Bluehole’s strategy

While I have tried not to have a particularly strong prior when writing this post, I am generally more sympathetic to Epic’s case here. One reason for this is that I believe Bluehole is well aware that they don’t have much of a case against Epic and that their real intention with these press releases is to tap into an unfortunate and negative feature of gaming culture: a propensity to form self-righteous mobs.

It is hard to generate a lot of sympathy for a South Korean developer who has released multiple titles, including one of the biggest hits of 2017, and characterize it as a scrappy indie and so the interview with the Bluehole CEO contains a number of references to Brendan “PlayerUnknown” Green. The PlayerUnknown brand is what allows Bluehole to attempt to move from a fight between two successful businesses and instead reframe the discussion as “Hey, you could be the next PlayerUnknown. Epic is trying to screw you!”

The interview points out that Bluehole hired PlayerUnknown to develop the game and that the other major battle royale game, H1Z1: King of the Kill, hired him as a contractor to develop their own mode (which eventually became a stand alone game). This is an admirable decision, and I think it’s encouraging to have multiple instances of gamers who developed successful mods translate this success into careers (other examples would be League of LegendsDota 2and Ultimate General: Gettysburg). I also think this is an entirely sensible decision from a business perspective, since PlayerUnknown has the most human capital built up in this particular genre and was available for hire. While a sense of respect for PlayerUnknown may have been the motivation, it cannot be disentangled from the fact that Bluehole moved to establish itself as the first standalone offering of an emerging and popular genre. A large portion of their success can be attributed to being first to market with a viable standalone product, and hiring the person most familiar with this genre saves tremendously on time. Bluehole identified a gap in the marketplace and has been richly rewarded for it, but to reduce PlayerUnknown’s involvement down to an act of charity or respect is to understate just how essential he was to the success of the game.

What is smuggled into the conversation with this idea is that Bluehole “licensed” the battle royale idea from PlayerUnknown. The genre is not PlayerUnknown’s to license for the reasons that we have outlined above, and if Bluehole really did pay a license for the game mode that’s on them, not the other developers who are under no obligation to do so. Again, the implication here is that ‘unlicensed’ implementations of the battle royale genre are somehow denying PlayerUnknown (and by extension the millions of would-be PlayerUnknowns) an income. By focusing on the gamer turned developer, I believe Bluehole is attempting to poison the well for Fortnite and extend their nearly uncontested status in this genre through intimidating would-be entrants. If players were sufficiently outraged as to boycott or harass Epic (which was entirely plausible as  “Fortnite copied PUBG” is still an unprovoked comment you’ll see in Fortnite casts) then not only would Fortnite be eliminated as a competitor, but Bluehole would demonstrate that it essentially has a private troll army to frustrate entry into the genre unless they are paid a license. Not only do gamers lose out from the lack of competition, but content creators who simply want to play their game of choice are the ones who bear the brunt of such a mob.

While this is speculative, it is the simplest explanation to me why Bluehole’s statements on a subject that should otherwise be so clear are so heavy on implication. Epic has not stolen code, but Bluehole is apparently very concerned that they might. Bluehole hasn’t officially stated that they feel Epic should pay them a license, they only point out that Daybreak and Bluehole paid PlayerUnknown. An appeal to gamers’ tendency to form mobs is contemptible on its own, but doing so when the cost will be primarily be borne by people playing the competing game is unconscionable. Fortunately, it seems that a consensus has formed that Bluehole is trying to stifle competition, and that it is in gamers interest to allow a proliferation of battle royale games. I am happy to see this strategy fail.

Note on affiliate links: I have an affiliate status with GOG.com for which I am given a portion of sales for traffic I drive to the site. The inclusion of a given title is for illustrative purposes first, but when it is available on GOG I will provide such a link. Naturally I encourage you to do your own price comparison or buy on your preferred platform. I include, on occasion, affiliate links from other broadcasters to support people who helped me in a given post or the cast in general.

Copyright Revisited

I wrote a blog about copyright. I am happy with its content (perhaps not the style) but given the latest streaming controversy I thought it would be good to revisit the topic and make some ideas more explicit. Because so much of this topic deals with the recognition of an author’s work, I would like to acknowledge the work of Suzanne Scotchmer and her book Innovation and Incentives, which contains a useful primer on intellectual property law for non-specialists. It is a good economics text on intellectual property, and is available here (which is attached to an affiliate link for a good friend of my cast JessyQuil).

The essence of the case is this: A very popular streamer uttered a racial slur in anger towards a player while playing PlayerUnknown’s Battlegrounds. In response, Sean Vanaman of Campo Santo (developers of Firewatch) announced he would be using the DMCA to take down the streamer’s Firewatch playthrough and bar him from streaming any future Campo Santo games. The issue of the slur seems clear cut to me, but the copyright issue seems to be far less clear and of more interest to streamers and the public alike. The problem is further complicated due to the fact that Campo Santo appears to have a very permissive streaming policy on their website.

As is common in most copyright disputes, the doctrine of fair use is invoked with regards to streamed content. Furthermore, we are interested in whether or not the broad statement on Campo Santo’s website can be ignored or retroactively revoked due to behaviour in the present. The previous article talked about copyright as a means for authors to protect their work from infringement, as well as abuse through associations they do not want to have made. Here I would like to discuss the issue from the perspective of fair use and see if the consequences of Vanaman’s actions align with our intuitions when we first hear the story.

What is fair use?

Fair use has been in US law since 1976, but has been recognized as far back as the 1840s. It is intended to retain some public benefit from copyright which is by definition a restriction on the public’s access to a creative work. The Stanford page dedicated to fair use offers two broad categories: Commentary and criticism, and parody. More granular examples would include news reporting, scholarship, search engines, library photocopying, as well as parody, commentary, and criticism. Essentially there are some exceptional cases where copyright should not apply because they are in the public interest.

Congress has not told judges the objective of fair use, only four factors to consider in deciding whether or not a work is infringing:

  • The purpose and character of the use
  • The nature of the copyrighted work
  • The amount and substantiality of the materials copied
  • The effect of copying on the plaintiff’s potential market

To my knowledge, there has not been a court case to decide if streaming falls under fair use or not. While this individual case is unlikely to go before a judge and ultimately establish a precedent, we can examine for ourselves how closely our streams fall under these categories.

How does fair use apply to streaming?

I would like to reorder the list of criteria into what I think is the least complicated to the most complicated.

  • Amount and substantiality

While they are limited to a subset of all possible choices, let’s plays are as close as we can get to the entirety of a game being distributed online in a non-interactive form. This particular factor seems to be the most clear cut in the fact that ‘less is more.’ The less of the work you use, the more likely it is that you fall under fair use. The nature of streaming is that most, if not all, of a game is used in the creation of the content, and so I think that all of our work is ahead of us if we are attempting to base our fair use claim on this criteria.

  • The effect of copying on the plaintiff’s potential market

From the previous blog, we’ve talked about how not all coverage is good coverage. I am not a suitable candidate for an authority on this topic, but I can leave this magnificent twitter thread by @twittysuch as an example of what marketers think about streaming and its effects on the market. Her rather prescient thread anticipated the exact case that was the catalyst for this article. However, Vanaman did allow that the 5.7 million views potentially helped the game. It is possible that the specific video Vanaman issues the strike against may not run afoul of this criteria due to Campo Santo’s stance on streaming and his allowance that the video may have helped. Generally, streamers cannot rely on this being the case in their own circumstances.

The Stanford page cites Rogers v. Koons (960 F.2d 301 (2d Circ. 1992)) as an example of how works that are not directly in competition can still deprive a copyright owner of income. This case involved wood sculptures carved using a photograph as a basis without asking the photographer’s permission. The sculptures, which earned the artist several hundred thousand dollars, were claimed to be fair use due to the photographer not being a sculptor. The sculptures were found to be infringing as what mattered was the potential market for the sculptures regardless of whether or not the photographer had considered making them himself. This is an instructive case because so much energy is spent on talking about whether or not the experience of watching a streamed game is a substitute for the game itself or a complement. We often make distinctions between games like Firewatch (which tend to be very story driven and ‘movielike’ and so more prone to competing with the game itself) and something competitive like Counter-Strike (where the eSport component is a complement to the experience of playing the game itself and is usually enabled in client). It seems that we are having the wrong argument as this argument has failed to address the potential market that the law cares about. Developers seem well within their rights to claim that even though they develop and distribute games, streaming represents a potential market and so the work is infringing.

  • The nature of the copyrighted work

This is one of the most difficult to apply to streaming since the nature of the work refers to features such as whether or not the original work was fictional or non-fictional. Clearly video games that can be streamed are products that have been published (and ones that have not been released are not disputed when efforts are taken to remove the offending video). Fictional work is generally more difficult to copy from than non-fictional (from a fair use standpoint), but this seems to be a meaningless distinction in the case of games. What about a transfer between media: video game to live video? This is partially covered by our discussion of Rogers v. Koons above, but let’s consider another case that comes from Scotchmer.

During the run of Seinfeld the Carol Publishing Group published a trivia book called the Seinfeld Aptitude Test (SAT). The book contained references to the characters and quotes from the show without obtaining a license from the rights holders and the Carol Publishing Group was sued. Carol Publishing’s argument was that only minimal parts of the episodes were used and that more substantial use would be covered by fair use anyway. The court rejected both arguments, finding the trivia book to be substantially similar to the original work (the TV show). The fair use argument was rejected on the ground that it was not “transformative” which is the final category we will consider.

  • The purpose and character of the use

This criteria seems to lie at the heart and soul of most fair use cases and certainly is the most discussed when it comes to streaming. Does streaming have the tranformative aspect that we look for in the obvious cases of fair use? To demonstrate what I mean, consider the case of parody. Nobody can seriously claim that Spaceballs is infringing on Star Wars, or that Galaxy Quest is infringing on Star Trek. In fact, particularly good satire may go so far as to destroy the original work that it was based off of. This is a proud institution with a clear public benefit, and so I personally consider satire to be my favourite example (maybe even the gold standard) of fair use. It annoys the hell out of people and makes them want to stomp it out, and it’s very important that we not allow that to happen. Academic work is also a good example of a transformation, though for many of us it is a transformation from an entertaining product to a soulless, dry, scholarly artifact.

Our usual attempts to map these clear cut cases on to streaming is to point out the commentary of the streamer as enhancing or transforming the work. To use the phrasing from the Stanford page, a streamer’s commentary may provide “… new information, new aesthetics, new insights, [or] understandings.” As a streamer it is flattering to think so, and I do my absolute best to provide added value in my casts, both to differentiate my own stream but also to respect the game that I am streaming. Unfortunately, I am not convinced that commentary is simply enough.

There was a TV series that ran from the late 80s to the late 90s called Mystery Science Theatre 3000 (MST3K for short). The series consisted of hilarious commentary running over old B movies of highly dubious quality. While some accounts I have read attest to the films used being in the public domain, I recall some episodes were difficult — if not impossible — to get a hold of due to rights issues. Even though seemingly nobody would watch these films on their own merits, and the value of the work seemed to derive entirely from the cast’s commentary, a reasonable case was made that the rights holders of the original works should be paid. I find it hard to disagree with this line of reasoning, simply because I do not believe perceived quality should be a determining factor in the application of intellectual property law. Either I have produced a creative work and am entitled to its protection or not. I can entertain the possibility that the cast of MST3K was so hilarious as to transform these works to a point that would dictate fair use (as I think anyone who has seen the series would be inclined to believe), but it is also hard to argue that I am not letting my appreciation for the show affect my thoughts regarding its interaction with intellectual property law. I think it is commendable that MST3K sought the rights where it needed them, and by and large the format seemed to work. I am also encouraged by the fact that this kind of comedic alchemy was able to create value for otherwise worthless films simply because it creates an environment in which film financiers are more willing to take a risk on projects due to the ability to generate revenues from them (though there may be a perverse incentive to make especially bad ones that get showcased on commentary shows).

I give this example  mainly because few, if any, casters can ever aspire to the quality of MST3K, and so if they can’t claim fair use, I’m not entirely sure our commentary has any more hope. I can’t think of a single caster who can claim their commentary reaches the level of scholarship that applies for the academic transformation, and it would be absurd to argue that streaming provides a new aesthetic to a point that our work is described as transformative. Simply put, we’re not Joel and the bots, and we really aren’t adding that much to the game. We try our best, and we add value. In fact, a lot of developers seem to appreciate the work that we do. But even when I reflect on the best streamers I’ve watched, I really can’t say that they have transformed the game to a level where the streamer can claim to have created an original work that stands out as fair use. And more importantly, as the controversy shows, any claims that what we do is for the public good are highly suspect.

Should Campo Santo use the DMCA strike?

While my analysis above may be overly pessimistic for streamers, it is clear that there is a very difficult case to be made if streamers want to claim fair use. As such, we may want to move beyond whether or not Campo Santo can use a DMCA claim against the Firewatch video to whether or not they should.

I am genuinely torn by this. I think any developer should have the option to sever ties from public figures who can associate their work with views they find intolerable. Again, this is their property and they have every right to defend it. Of course, we are also worried that this can be used to silence criticism of a game. It seems to me that criticism is clearly covered under fair use, and that we have had means of informing consumers as to the quality of the game before streaming became a factor in purchasing decisions anyway. In truth, I’m doubtful that it would ever come to this, but even if it were, criticism is a place I’d be willing to plant my flag and say there is a strong case for fair use, which is why I have avoided discussing it here.

Despite how repulsed I am by the streamer who is at the center of the controversy (both past and present actions), I do find it hard to justify Campo Santo’s position here. In one sense, I find fault with their overly broad invitation for streaming. Compare the policy linked above, to Amplitude’s streaming policy. Amplitude’s policy goes down to the expected ESRB rating of the content on the stream. In this sense, it is hard to be especially sympathetic to Campo Santo’s displeasure at people’s streamed use of their product simply because this is a studio of veteran developers and it is not uncommon for studios to put restrictions or guidelines as to the conduct of the caster when streaming their games.

The biggest problem I personally have, and I suspect causes the most unease regarding this decision is the retroactive nature of the copyright action. The streamer’s content with regards to Firewatch was fine, and it was their behaviour a year later when streaming a different game that caused the problem. Again, the association is what’s important here, so even then it’s a grey area, and I suspect the battle lines are likely to be drawn largely around how much people like Campo Santo or the streamer. One might argue the onus is on Campo Santo to have done a better job of vetting who they gave their keys to, since this streamer’s current behaviour is not entirely out of character. Of course, a mistake in the past does not prevent its correction in the future, though if we want to hear their actual reasoning we need only look to Vanaman’s tweets.

Assuming we want to place some blame on lax vetting policies at Campo Santo’s feet, either in the form of the overly broad permission on their website or the willingness to ‘look the other way’ with regards to this particular streamer’s conduct, it’s important to remember this is a two way street. This streamer is a millionare from what they do. We have gone well beyond the realm of being a hobbyist, and with professionalism (even if only in name) comes paperwork. Their failure to get the proper permissions in writing is their own problem. Every other industry that relies on intellectual property has managed this, and virtually every public resource on this topic recommends that you get your permission simply and in writing.

The paperwork is what gives me hope. At the moment we exist in a wild west for intellectual property and most of our discussions have much more to do with our feelings and hopes rather than any sober evaluation of the facts. I am partially sympathetic to this simply because for most of us it’s a hobby and this is all it will ever be. But if we want to start taking this role seriously, and be taken seriously, then we need to start acting like it. This means checking for permissions before streaming things rather than relying on convention and goodwill. This means having to hear “no” when a developer does not agree with your vision for their project, or does not see the value in what you do. One day the free ride is going to end, and some will be better positioned than others to work in the new environment. There are certainly some content creators who are doing very well for themselves with some very liberal use of other people’s IP simply because the owners of that IP have not deigned to enforce their rights. So long as streamers continue to operate this way they will always do so at the pleasure of the developers.

Taking content seriously

Ultimately, while I can’t feel comfortable with Campo Santo’s position, this largely reflects how poorly streamers have positioned themselves. If your entire business model rests on one group not enforcing their intellectual property rights, then you are opening yourself up for a major risk that could come at any time. The next claim of this nature can come from anywhere. Consider that there was a fracas over a very popular trailer for The Last Night when one of the developers was revealed to have been involved (or at least supportive of) the gamergate movement. Suppose this developer, upon releasing their game, decided that any streamers perceived as ‘Social Justice Warriors’ would be subject to a DMCA strike due to disagreement with their views. The principles that enable us to approve or condemn Campo Santo should equally apply here, though I suspect there would be more (justifiable in my view) outrage in this imagined case.

So long as we continue to have these debates along ideological lines (that is “The streamer is right” vs. “Vanaman is right” based on our priors) I don’t see a resolution. As indicated in the previous blog that talked about this, I also don’t see Twitch using its resources to protect streamers’ interests when it comes to intellectual property either (their Terms of Service leave it entirely in the streamers hands to mange these permissions). If you are fine streaming at the pleasure of the developer, then you can simply continue as before and hope that they are not particularly ideological or, at least, are on your side. But for those who seriously want to consider making a living from streaming, we are long past the point where people can afford to ignore asking for permissions. Developers have put years and often substantial amounts of their own money to realize these projects. It is not just respectful of their efforts to seek out their formal permission to create content based off of their work, it is respectful of your own status as a professional content creator.

 

Advice

Given that this blog is still connected to my Twitch channel which seems to anchor all my other online encounters, I wanted to talk a little bit about advice. Specifically, I wanted to talk about the kind of advice you get on the internet, and how generally careless we seem to be about who we ask for this. It seems to me a lot of the time what we are asking for are opinions, but because a lot of the people we are interacting with are ‘known for doing some thing’ (make a game, write a book, have a YouTube channel) we lose sight of what their area of expertise might be and ask inappropriate questions. This is compounded by the fact that it seems that we are also just generally expected to have opinions about things, that nobody really likes to say “I’m sorry, I really don’t know” in public, and the fact that it’s easier to become ‘known for doing some thing’ as the barriers to entry become lower.

I don’t think I can be really comprehensive on this topic, and it might just boil down to some good old fashioned griping, but I thought I’d start with the most recent example I saw online.

A catalyst

I thought about how I would introduce this quote. It’s from a well known broadcaster, and I generally feel that there needs to be credit where credit is due. On the other hand, I also know there is a tendency online for things to get blown out of proportion and what  becomes an engagement with an idea suddenly becomes a referendum on one’s taste and character. I also think my preference is to treat everyone as if they were reasonable and then just deal with the people who behave disrespectfully , and so I was originally just going to post a direct link to it. I decided against this. One big reason is because the ‘who’ does not matter as much once some limited biographical details are revealed. Also, it is not especially difficult to find out who it is, so if you really want to find out I can’t really stop you. I only ask that you consider your motives in doing so, as so far as the content of this post is concerned, I will post what I think is relevant. That throat clearing out of the way, here’s the quote:

The worse advice given to aspiring streamers is ‘focus on your chat’ instead of ‘focus on being entertaining and learn how to present’

Obviously, this is not the worst advice an aspiring streamer can get, but my intention here isn’t really to nitpick. With regards to the claim, my biggest issue is that focusing on chat and focusing on being entertaining and learning how to present are not substitutes. It is not a natural opposition to say ‘focus on your chat’ or ‘focus on entertaining/presenting’ and I think many people who give the ‘focus on chat’ style advice do so because it is a useful heuristic to make people a better entertainer. That is, if I consider my audience (even if there is nobody there, so potential audience) I am likely to be conscious of how I’m coming across and take active steps towards improving my presentation style while openly saying ‘focus on being entertaining and presenting’ just leads us to “well how am I supposed to do that?” Notice that it’s kind of hard to distinguish between the two once you talk about them. This is the kind of statement that works well on the internet because there’s just enough fuzziness to give you a bit of wriggle room if it does turn into an argument, but diminishes its value as advice. The same could be said of ‘focus on your chat’ to be fair (How should I focus on chat? Should I not ban people to expand my audience? Should I not care when people start backseating me? Do I need to say hello to everyone who comes in?) but at least it has the benefit of being actionable in the heat of the moment on cast.

Moving on, I can see that there’s some room for disagreement here. Some people will likely say that a focus on chat is overrated (I may even agree. eSports professionals are great examples of people who tend not to have a lot of interaction and yet are successful), or that focus on chat is important but not to the exclusion of others (again I would not disagree with this, but not everyone is as inclined to give mega essays when asked a question). One of the biggest problems I have with this advice is a very large disconnect between the perceived authority of this individual (they’re a big broadcaster) and the areas on which they can provide good advice. Here are some biographical details that I consider pertinent:

  • They got their start and are primarily active on YouTube
  • They started making the content they are best known for in 2010, though had been producing gaming related broadcast content since 2005 (I can’t say for sure. I consider the 2010 start most relevant)

So let’s consider the advice again. Is this advice consistent with their experience? Almost certainly yes. Their primary format involves producing content not known for its interactivity, and so it is sensible that they would value chat interaction less. YouTube, however, is not streaming, and while there are similarities, the differences are substantial. More importantly, this broadcaster got their ‘start’ (caveats in the bullet points aside) seven years ago. While it is true this individual is a successful broadcaster, not only is their start further back in the past for a more static style of broadcast, but the entire landscape was different from what it is today. The fact of the matter is that for all this individual’s accomplishments, and whatever merits they may have in other spheres, they are inappropriately leveraging their success in one aspect of broadcast to issue proclamations with authority in another area where they should not hold as much weight. There is something of a personality factor here. For instance, this person generally is fairly forceful in their opinions and so is less likely to offer the ever-admirable “I don’t really know, it’s not my area of expertise.” And, of course, there is something to be said for a person judging their sources of advice carefully. However, so long as we are operating in a world where people feel the need to offer opinions on just about everything, and have a level of fame that in the past might have counted as quite something, let’s think a bit about the advice we seek and particularly the bad advice we get.

Inappropriate questions

I would like to make a game. This may not be the same as wanting to get into the games industry any more than someone at a craft fare wants to get into the garment manufacture industry, but suppose I caught the bug enough that I said “okay, I want to break into the games industry and make this my life’s work.” Where should I look for advice? How about some designers I really like: Alexis Kennedy? Soren Johnson? Julian Gollop? Paul Kilduff-Taylor? Sid Meier? All remarkably talented individuals who have delivered on multiple projects and I’d more or less give a blank cheque to so far as their next game goes. Assuming I could reach out (and at least one on that list does answer questions for sure), would they be the most appropriate choice for advice? And the answer is… it depends. What is the question I’m going to ask? If the question is “how do I break into the games industry” then I’m probably asking the wrong question because I think the youngest first project in that list is about 7 years old, possibly 10. I have no doubt that they would try their best, and would try to offer advice consistent with their experience in maybe bringing new people on to a team or just generally what they’d know from working in that field, but these are all people who simply will not be able to experience ‘breaking in’ to an industry that they have all shaped in their own way. Simply put, if the advice didn’t turn out I’d not really be in a position to complain.

I watched a lecture given by Robert Merton where he explained that once he got the Nobel Prize (Economics) people would be asking him questions about everything, including medical problems. This case is easy to tease, but is it really all that different from the case of game designers? Do we really expect designers with a decade or more of experience to be reading ‘101 Ways to Break in to Game Development’ or to be enrolling in a game design college to keep up to date on ‘breaking in’? Do we expect the world to remain static so that those designers will be in a position to give relevant advice?

It may be that all of the people listed above are really great at answering this question anyway, but my experience has been that when this happens it’s because the person giving advice possesses the rare talent of identifying the question that should have been asked. That is, like a good teacher, they are able to discern the motivation behind the question and tailor it to the student’s circumstances. “I don’t understand this” has a range of causes from misunderstanding the sentence just uttered to lacking the prerequisites for the topic and just as many remedies. A good teacher can tease this out, but we can help a lot by asking the right questions in the first place.

Aggrandizing advice

These seem to come up most frequently as unsolicited statements like there quote above (performative advice that marks one’s status a thought leader), and on panels at convention. The personification of this kind of advice is in response to the inevitable “How do I become a successful streamer?” with the equally inevitable “Well you just need to work hard and keep a positive attitude…” to which I have been dying to hear the more instructive followup “How did you get your head so far up your ass? Was it nudged incrementally over the years or did you just slam it in all in one go?” In the best case this is simply repeating platitudes and acts as a stand in for ‘I don’t know’. Even then, I’m still not inclined to let someone off the hook since this still is prioritizing the desire to seem knowledgable over the wellbeing of the person asking the question. In truth, I think the reasons for giving this kind of advice are less benign, but this may simply say something about me. Either way, are we to infer that the people who are not successful are lazy and have bad attitudes?

Sometimes this really just boils down to asking the wrong person for advice. Presumably you would like anyone who are asking for advice from to have some stake in your outcome, even if that stake is simply being a nice person and wanting to see more people in the world happy. Of course, it’s difficult to know whether the people you look up to are particularly good at giving advice or at least won’t be indifferent to their advice going badly. Clearly unsolicited advice (usually in the form of proclamations) are easier to identify here. When encountering people individually it’s harder because you already have the investment of meeting someone you look up to. As before, excellence in one field does not mean someone will be nice, good at giving advice, or even very good at anything else. Nike even made a commercial about it.

Being asked

Up to this point I’ve been fairly confrontational with the person giving advice, but the truth is that more of us are finding ourselves in a position to give advice. New platforms open up for opportunities to give advice from ask.fm to stackexchange and your influence extends further than you think. I am a very small Twitch streamer, and yet once I passed 1,000 followers I found I would be getting more questions about ‘being successful on Twitch.’ I don’t feel particularly successful in so far as reaching a broad audience is concerned, and yet clearly I mattered enough to some people to merit the question. This is encouraging, but also somewhat daunting. If I were to have more substantial accomplishments I suspect I would still find it a bit disconcerting. A post from Neil Gaiman suggests that fame does not make this any easier.

The best I can say is to be honest. In one sense it’s very flattering to be asked and in a perfect world the compliment of being asked really should be enough. There is a very strong tendency to want to push the advantage and start running down a path of giving bad advice that you will ultimately not face the consequences for. Obviously paralysis about ‘what if I mislead someone’ isn’t particularly helpful either because presumably the person would like an answer. I worked in camera for movies for a while, and so it was not uncommon to have people ask ‘how to break into the industry’ (even total strangers on the street while I was coming out of the truck). Time permitting I would try to talk about my particular circumstances and then move to a more general point. I don’t think this is especially effective advice, but I suppose in the interest of disclosure I should say what I said and we can critique it after.

How I got into camera

From school up to the moment I worked on my first union project I looked for every opportunity I could to work on a film set. Student projects, indies, everything, and often without pay. I worked as a Production Assistant for a while and found myself tending the craft service table on a TV show. A nice thing about this placement is that craft service gets to meet just about everyone because they have all the snacks. I had always tried to be personable, but especially in this case I made sure she knew about my interest in camera and, since I was a nice young man and helped her when she needed, she mentioned to the camera crew about my interest and, as it happened, there was a shortage of trainees on another big show that they had some friends on. I got a call later inviting me to help out on a couple of big days.

But that wasn’t the end. The union eventually caught wind that someone out of the program was being used as a trainee and they put a stop to that, so I was back more or less where I started. I continued as I had before, with perhaps a few more camera gigs due to having some experience, until I worked on a short film for a 48 hour film competition which happened to have a secretary at the union as one of the actresses (I didn’t know this at the time). They showed the film at the office, the head of the trainee program commented on the lighting and the actress noted that I had applied for the trainee program. By their telling they got a call from a TV show looking for a new trainee and I got the invitation to got in.

I haven’t really gotten to the advice part, but obviously if someone is in a rush I’d just tell them the application process for the trainee program. I’d tell the story above to make the point that any ‘how did you break in’ story is usually very unique to the individual and, while maybe not as baroque as mine, doesn’t really have any repeatable path to entry. That is, most ‘rules’ likely would likely be short lived as there are more applicants than positions and the channels would get clogged (for instance, once upon a time in a book somewhere apparently an independent filmmaker said that dentists had a lot of money and had boring jobs which made them inclined to financing independent films. I am told this lead to a point where there were places where dentists had to screen calls from aspiring filmmakers, though I never looked to verify if this was actually the case). The point of telling my own story was one, to establish my lack of credentials (I don’t have one weird trick to get you into camera), and point out that everyone kind of has their own unique path to getting into that business.

What are the actionable behaviours I would draw from that story? I would usually suggest that being open to opportunities when they emerge helps, because hanging around professional productions as a PA let me see how the big guys did it and I learned a bit about how scenes were lit and generally people went about making movies (this helped me when it came time to that 48 hour film as I wound up taking on a lot more responsibilities than just camera). Also, any one of those productions I could have worked on might have been the ‘break’. Maybe I wouldn’t have been ‘found out’ on that first show I was a trainee on and in another world I just got into the program there rather than waiting another year. Each opportunity was a roll of the dice, so while each chance was slim, the aggregation would eventually tilt in my favour. Being able to talk to people doesn’t hurt, because in the end you are looking for a position that involves working with people, and in the case of film it’s long hours for extended periods of time. If you are difficult to get along with, the show is going to be miserable, while if you’re easy to get along with you will eventually have your choice of show because you are in demand. Being personable allows you to work with difficult people which opens you to experience that others might miss due to personality conflicts. Basically, stay open to as many opportunities as you can (get as many rolls of the dice as you can), and if it doesn’t come naturally for you, cultivate an ability to talk to talk to people (including difficult people), let them know you’re interested, and generally find mentors who will help you build your skills and cultivate your passion for the job.

Was that good advice?

The advice part was a little muddled simply because I usually wouldn’t go over that material unless it was over coffee with someone or in some other context where I could do some kind of Q&A, but generally the ‘open to opportunity’ and ‘be personable’ themes would come across. How does that rank against what I’ve written before?

The ‘man with a plan who uses his raw charisma to seduce craft service into getting him a job’ might be aggrandizing advice, but anyone who has met me knows that a) I’m not that charismatic, b) that wasn’t my opening into the industry, and c) craft service volunteered to let the camera department know. The better takeaway is that if you treat people as means to an end of ‘getting that job’ people will detect it and you’re likely not smart enough to see where the opportunity comes (most people would not see craft service as a means to get into camera. While the departments may be regimented, people share a workspace and they talk to each other. It’s easier to actually be nice to people and take an interest in them than to pretend all the time in hopes that they can advance your career).

One big problem with this story is that it potentially makes people waste a lot of time and do something that I don’t think is very good: work for free. At the time I was trying to get in, there was no shortage of productions who were perfectly happy to snap up free labour even though they had the budget to pay them. I stupidly worked for one production company on several commercials without pay until I had other opportunities at which point they offered to pay me (i.e. I wasn’t going to get what I didn’t ask for, and I obviously had value to them). Someone’s circumstances may not allow them to dedicate that time to work for free, or at low pay, and ultimately I did do a lot of work that wasn’t relevant to my job. While my temperament is such that I could pick up some details by simply being present, I can’t really argue this was a very efficient use of the time. In the end it was ultimately going out and working on an independent short in a senior position that was the  ‘break’ and this is what a lot of people suggest outright (i.e. Between spending money on film school or an independent film, most people think the film is the better use of the money).

I’m trying to give myself a hard time on the advice about being personable, but I still think this holds up. It carries with it the recognition that not everyone is so active in stating their interests or meeting people (particularly the people in a position to give them a job). That is, it’s different from ‘have a good attitude’ because it does not immediately imply that people who have not followed my advice are arrogant or standoffish, just potentially shy. Even then, I think there are problems here. I dealt with some pretty verbally abusive and demanding bosses. This is an unfortunate reality of at least my department (and I think in the film industry in general, and I have little reason to think it’s changed even though it’s now been a while since I worked in it), and I think it would be a firing offense in any other context. This advice could very well lead someone to a position where they are belittled and degraded and don’t stand up for themselves in the name of ‘following good advice’. It’s hard to find the right balance here, because on one hand advice should account for the realities of the industry (i.e. If someone is looking for advice regarding to working in sewage treatment, the smell should probably be taken as a condition of employment), and yet this is a negative that should be changed and advice that leaves people in a position to simply ‘accept’ it may entrench something that should be dislodged. In truth, I probably make more of a virtue of my ability to work with difficult people than I should, because it absolutely was something that allowed me to get more work when I was starting out. On the other hand, I also think that working with difficult people is a good, if not essential, skill to have. Perhaps the change I would make would be to leaven it with a bit more attention to the individual and their ability to be professional and personable without being a doormat.

Advice on advice

It’s hard to avoid a certain self-consciousness about writing about advice. During most of the writing I’ve had plenty of reflections on ‘motes and logs’ (Matthew 7:3) running through my head. Mostly I think we could stand to be a bit more discerning in the advice we consume because technology seems to move much faster than our ability to appreciate the shift it creates in the landscape. Various social and media platforms have created a level of specialization where it’s not that unique to be ‘famous for being famous’ and that even small time players (such as myself) can develop something of a dedicated audience. It’s great that people like my stuff, but being entertaining, or even knowledgeable in one area, does not grant me any special weight when discussing other topics. As it is, I know I certainly still react as if I’m in a media environment where I see people for basically accomplishing things and generally being sought out for their opinion on the topic being discussed. I don’t think I’m alone in this.

Because this environment is becoming more and more specialized many more of us are finding ourselves in which we are sought for advice, and so we can also take some steps in terms of what we are saying and the potential effects it can have. We are obviously not responsible for the behavior of others, but it doesn’t hurt to take some time and consider basic things like “am I saying this because I think it’s good advice, or because it will make me good?” or “am I really setting someone down a worthwhile path with this?” (or, simpler “should I even be offering an opinion here?”). I may bruise my ego in admitting that I don’t know something, and maybe the person asking will think less of me for it, but it’s hard to imagine they’ll think any better of me if they turn around and blame me for whatever half baked advice I come up with to avoid social embarrassment.

The Secret Reason Your Favourite Streamer Hates You: Backseating

Introduction

This article is the first in an intended series on ‘viewers behaving badly.’ I say intended because I am familiar with the frustration that comes from an author proposing a series only to leave it unfinished and so take David Kreps’ approach in his Microeconomics Foundations I: Choice and Competitive Markets: advertise the proposed series (a trilogy), fail to produce another (so far), but leave an escape route disclaimer of saying the series may never be finished (it’s also a very good and inexpensive micro textbook, though the math would probably turn off most readers here. Perhaps try a campus library if you live near a university). The reason I propose it as a series is because I would prefer these posts to aspire to more than simply ranting about behaviours I specifically get annoyed by, and instead address common threads that can be found among streams and address the reasons why certain rules exist. My ambitions for the series aside, any claims to objectivity will be undermined by the ability of long time viewers will no doubt be able to identify the catalyst for a particular article. In short: I hope to do more than just complain about my audience, but I don’t think it’s at all useful to detach myself from things I personally find irritating on stream.

Origins of the Term

While I’m not familiar with any history of the term, backseating seems to have its origins in the phrase backseat driver, a pejorative for unsolicited advice while driving. Unsolicited advice seems like the most basic foundation for the phrase as one needs no more than an understanding of the words, while the phrase backseat driving seems to create a little narrative to be filled in by the audience. Imagine teaching english to someone and having to define backseat driving, let alone backseating. The negative connotation is directly present in the term unsolicited advice, but potentially is amplified through the drama of the phrase backseat driving. Both cases are annoying, but backseat driving adds to it the active contribution of a distraction from an activity that should command the recipient’s (i.e. the driver’s) full attention.

Taken literally the term backseating makes no sense. There are few, if any, back seats to a stream and while one may rely on prior experience when explaining backseat driving, the term backseating requires familiarity with the term backseat driving to make any sense. I also think this term has grown to encompass more than its origins, and so I would like to mention some sister concepts that I think have been rolled into what we refer to in backseating. The term armchair quarterback is probably the most familiar, referring to a football spectator who mistakes their fandom for expertise and pontificates on what teams ‘should’ have done. A related term, armchair general, I thought had emerged from wargaming, but apparently goes back further (and at least according to Wikipedia goes back to Clausewitz, though doesn’t have a citation). Armchair revolutionary (indeed the whole set of ‘armchair ‘) and keyboard warrior express similar sentiments for amateurs who are fast to criticize without any skin in the game, though personally I hope that we might reinvigorate the granddaddy of all of these phrases and go back to calling them dilettantes.

Despite its older origins, I see backseating as a new coinage with its own specific meaning for what is a decidedly modern phenomena. It combines the unsolicited advice and distraction of backseat driving, the presentation of knowledge without substance of a dilettante, and the criticism divorced from the context of actual involvement present in armchair general.

Backseating on Streams

Each streamer will have their own policies for dealing with backseating, though a casual glance at a random draw of streams is likely to show that the activity is pervasive enough to be mentioned in the rules and that it is viewed as negative enough to be forbidden. I know of one streamer who has gone from a strict no backseating policy to being a little more open ended, a handful who have gone from being somewhat placid about backseating to being annoyed to outright banning it, and the majority I know forbid it outright. I do not have an explicit set of rules for the stream, though, for my part, consider backseating to be self-evidently unwelcome, the same way I would consider racism or harassment of other chatters to not require explicit rules (in my experience both as a mod and a streamer, a list of rules only invites attempts to litigate everything down to the simplest purge).

Despite my exceptional distaste for backseating, I don’t actually consider its motivation to be entirely negative in all cases. Furthermore, there is something interesting in the fact that backseating requires special mention in a list of rules, rather than having its own unspoken but self-evident social penalties like public flatulence. In the next few sections we’ll consider not just the positive and negative motivations for backseating and their effects on a stream, but also why this kind of activity has become pervasive enough to require special rules to be set up in streams.

Negative Motives for Backseating

We will begin with the obvious motives stemming from the original phrase backseat driver. The backseater wishes to assert control over the stream due to their discomfort with what is presently being done on the cast, their lack of faith in the caster, or their wish to be in control. There is little mystery as to why backseating is largely perceived as a negative in these cases because they involve taking control from a streamer, and an unfavourable assessment of the streamer’s ability to conduct their cast. While likely not a conscious motive, the backseater wants the attention of the audience and creative control over the stream without actually taking the effort to build it themselves. This attention seeking behaviour might also be motivated by the impression that they have a secret that nobody else knows (since the rest of the chat is presumably not backseating), and an overwhelming desire to prove that they know what these ignoramuses can’t seem to fathom.

What makes this particularly frustrating is that while driving can at least be justified through a fear of safety when the driver behaves contrary to the backseater’s wishes, no such fear of safety exists in the context of a stream. Furthermore, streaming almost always takes place on a service with a plethora of options, and so not only has the backseater opted into the particular stream they are interrupting, but they have any number of options available if they are dissatisfied with the stream they are viewing. Here, not only is backseating not just disrespectful to the streamer, but disrespectful to the audience through insisting that the content they are enjoying should conform to the backseater’s wishes, rather than the backseater seeking out entertainment more in line with their expectations.

The primary (or at least the apparent) motives for backseating then appear to be the negative ones: A desire to be in control or the centre of attention, a disrespect for others’ abilities or priorities, and a sense of entitlement that demands their whims be catered to.

Positive Motives for Backseating

Backseating does not always come with a nagging whine from the back of the chat to “play better.” It may also come in the form of seemingly helpful advice. Streamers are more or less expected to communicate throughout the cast and so  will likely discuss their frustrations or confusion at certain parts. This can be misconstrued as a request for help, much the same way that a greeting of “How ya doin’?” can be taken as a request for information. Even if a streamer does not verbalize their thought process, the mere fact that the game is not in a state of constant progress (or the player is on a losing streak or what have you) may be perceived as an invitation for ‘advice’.

My own feelings on backseating are manifestly apparent by now, and so it will not come as a surprise to know that I doubt the sincerity of most of these cases, though even I cannot deny that there are some legitimate misunderstandings. However, I have also been present for casts where a viewer claiming to have never have played a given game was displaying a tremendous insight into many solutions to puzzles they ‘just noticed’ after a few minutes of the streamer going through the level. Even in the case of a genuine effort to advance the game, I can’t help but think that the dominant driver in these cases is to display knowledge about the game, rather than a benevolent wish that streamers get through their content as efficiently as possible.

Another potential positive motive for backseating is an viewer’s desire to participate in the stream. Streaming is an interactive medium, and a large part of its strength stems from its interactivity. That said, these are the very kind of good intentions a famous road is paved with, and the destination is the same. Rather than sharing in the stream, backseating wrestles control away from the broadcaster. Interactivity is a desirable feature because it is a shared experience, and backseating violates this principle through attempting to take control.

The Impact of Backseating on a Stream

Having considered some of the motives behind backseating, we will turn our attention to the much more important matter of how it affects the streamer and the stream. The first and main consequence of backseating is distraction. The streamer is no longer focused on the game or the entertainment but instead must now deal with this interruption to the natural flow of thought. While it probably does not require elaboration, an analogy may be in order. Everyone has a way of getting ‘in the zone’ whether it’s absorbing oneself into a good book, delivering a speech, getting absorbed in music, trying to solve a tough problem, or getting into an exercise routine. It’s a unique feeling, not really appreciated in the moment (the lack of distraction or absence of self-awareness is key to me), but certainly recognized after its passed. Backseating is an imposition of the outside world on a blissful mental state that is difficult to achieve. The streamer’s mind is no longer juggling the game, the channel, and their presentation in harmony, but has had one of these elements disrupted, breaking the focus. More experienced streamers may find it easier to regain this state, or find it more difficult to be shaken by outside disruptions, but it remains an unwelcome intervention from the outside world into a state I feel is conducive to the best and most enjoyable casting.

In a related way backseating is disruptive because of its disrespect. There is likely to be a degree of variance between streamers’ egos, and so the disruption is likely to be negatively correlated with the streamer’s sense of self. Again, personal experience is likely useful here. I’m those who have had the misfortune of meeting me in person will say I have no shortage of ego, though I am secure enough in this fact so as not to be too bent out of shape if a stranger on the internet doesn’t think I’m good at a video game (notice, after all, they’re watching me, while they have only succeeded in distinguishing themselves through disrupting my content). That said, it is hard to shake a twinge of annoyance at the assumption you not only did not know the solution, but were so hopeless you required intervention. This feeling of disrespect is amplified through the fact no consideration is made to the fact that the streamer’s concentration is divided between the chat and the game itself, as well as the fact that the most skilled choices are not the most entertaining. My Crusader Kings II casts are a good example of this: I have hundreds of hours in the game (a majority of it, in fact, on cast), and while I think there’s always something new to learn, I feel quite confident in my command of the game’s mechanics. This is also a game that derives a lot of its magic from the emergent stories, and so my understanding of the game’s mechanics is coupled with a willingness to make sub-optimal but dramatically appropriate decisions (legitimizing a bastard when you have an heir is only asking for trouble. However, the resulting story of how you sired a bastard son through your son’s wife, legitimized the bastard, only to have him grow up and assassinate the legitimate heir to inherit the kingdom is worth the potential fallout). Ultimately, the best casts are where the streamer is sharing something of themselves with the audience, and so any backseating, whether its instruction in the game, or demands for a certain style of casting, digs at this personal aspect and attempts to hijack the effort. A viewer can take or leave the content, but should not try to subvert it for their own ends. Nobody has the magic formula for streaming success, and not every stream needs to be the same. Sometimes casters need to find their voice, and they are not going to be assisted through malcontents spoiling the fun for everyone.

Fundamentally backseating also strikes at the heart of what makes gaming enjoyable. While this is something of an old example, consider the controversy surrounding the estimated playtime of The Order: 1886. While there was some dispute as to the duration of a representative playthrough of the campaign, a consensus seemed to form that the game was short in duration, and that this was a bad thing. Concerns about quality adjusted playtime notwithstanding, there is a fairly simple observation to make here: people seem to prefer more of a game than less of a game. Obviously this is with everything else being equal, and there is certainly a point where a game can be too long, but it’s a lot easier to feel cheated with too little of a game, than disappointed with too much of it. Part of the length of the game is a function of how difficult it is. Most classic adventure games are quite short (I’ve run through Day of the Tentacle twice and did not need to split it over casts), but don’t feel short because of the process of figuring out the puzzles. NES games are another great example of this as the limited space on the cartridge means that the duration of the game had to come from something other than increasing the number of levels (which is why some of these games seem arbitrarily difficult). With very few exceptions there are supposed to be points in games that present a challenge and require some thought to get through. Denying the streamer the opportunity to solve the puzzle means the experience on display is not what the developer intended, it diminishes the streamer’s enjoyment of the game, and it also diminishes the stream’s enjoyment of the game twice over given that there is less content to experience, and the stream is no longer able to experience the streamer’s thought process through a difficult part of the game.

This is possibly the most important and damaging consequence of backseating. Streamers have access to the exact same information as anyone else and if they wanted to be told how to advance in the game they would either consult a guide or directly ask chat. A viewer that attempts to backseat not only diminishes the caster’s enjoyment of the game, but ruins the fun for everyone else who is watching. Given that some population of a cast will have arrived because they are interested in the game, it is safe to assume there are multiple people in a given stream who will know the information being communicated by the backseater. The backseater’s solipsism is not an excuse for ruining everyone else’s fun.

The Spread of Backseating

Why is backseating a problem now? Or, if it’s always been a problem, why does it seem so much more prevalent? First, both the appearance and the fact of increase backseating can be attributed to technological progress: Where we originally had to be physically present to backseat drive, communications technology have expanded our capabilities to be irritating to virtually anywhere. Likewise, because streaming can be so personal (the audience is invisible, and the streamer appears to be speaking directly to you), the backseater’s disregard for others is reinforced by the environment. Finally, through various fan wikis and forums, it is possible to gain any information about a given game at a moment’s notice. While the fact that someone can do this is unremarkable, the illusion of possessing knowledge seems to be preserved through the fact that nobody can see how someone got this information.

Beyond these surface explanations, I think there’s something a bit deeper behind backseating. Overall there seems to be a diminished opinion of experts across more or less any discipline. If you don’t like the results from your doctor you can go to another one, or even consult a website to self-diagnose. Don’t know an answer to a problem? StackExchange has got you covered. Need some trivia on history? Just go to Wikipedia. None of these options are inherently bad and, in fact, are likely edited or curated by experts. What the accessibility of these sites has done though is allowed people to replace the knowledge of how to solve a problem with how to look for someone else’s solution. In many cases this is replacing actual knowledge with the mere appearance of it. An analogy may be fame. Before photography, you had to be someone very important for others to know what you looked like (your face was on a coin, or images of you were widely distributed in various buildings like churches). Now photography is cheap, and easy, and it is enough to simply be famous for being famous. Given the seemingly limitless capacity for celebrities to offer opinions on matters of importance, we don’t seem to have lost this deference we give to the people whose images we see all over the place, but the barriers for entry seem to have been significantly diminished. Likewise, it is not especially difficult to express an opinion online, and the fact that one can do so seems to have created the illusion that one voice on the internet is as good as any other’s. In addressing the phenomena of fake news Obama offered that “An explanation of climate change from a Nobel Prize-winning physicist looks exactly the same on your Facebook page as the denial of climate change by somebody on the Koch brothers’ payroll.”

We implicitly acknowledge the value of experts through our consumption of the information they provide, but we want to receive the credit for disseminating the information. Just like it’s simple to download seemingly anything: a song, a game, a book, a movie, we are able to take just about any information and pass it off as our own discoveries. If I read a walkthrough for a game start to finish and play the game, I am going to feel like I am the one who beat the game, but I was simply the instrument through which the walkthrough operated. It is not the same accomplishment as playing from start to finish without assistance. Finally,  while good streamers make it look easy, streaming is actually fairly difficult to do (at least well). Of course, one needn’t go through the trouble of finding an audience and building a community, when any given streamer has already done this work for you. All you need to do now is demonstrate how much more you know about the game than the streamer through backseating and you can show how much better you’d be at the exercise if only you had enough time off from kicking ass at video games.

Of course, this type of expertise is an illusion, but it’s a powerful one. I can recall coworkers who genuinely felt that knowing they could find a solution to a problem was equivalent to solving a problem, and I think plenty of people online expect that their opinion should receive the same weight as a well reasoned argument simply because both parties are speaking the same language and are on the same forum. Our reward mechanisms are roughly consistent with these views: homework and reports are often graded on outcomes, not thought processes. Most online discourse is graded on how well an opinion aligns with the audience’s prior (sort Undertale’s negative reviews by most helpful for an example). The appearance of expertise is much simpler than obtaining that knowledge for oneself, and so much more effort is now expended in finding the biggest platform to display this false knowledge than obtaining the genuine article.

This problem is as old as Plato’s Ion (the bard who claims expertise on generalship due to his understanding of Homer), and yet now we seem to be taking Ion seriously. It’s never fun to admit we don’t know something, and yet it’s an important ability to have. It’s impossible to talk about this and not acknowledge the fact that not only is it possible to be elected President on the basis of being able to play a successful businessman on television, but the appeal towards a lack of experience is actually considered a positive feature to campaign for any number of populist candidates following in the wake of this outcome. Where politicians aren’t directly articulating policy that is ‘just like the average joe’s’ they are directly turning it over to the public in the form of referenda. These are representatives who, if they don’t possess expertise themselves, should at least be consulting with experts to make decisions turning that responsibility over to people who do not have access to this expertise. Even the news is reporting an opinion poll on everything, as if their job wasn’t to inform people about the facts.

In an environment where so many important issues have now been surrendered to seemingly anyone, is it any surprise that seemingly anyone feels entitled to instruct something as trivial as a stream as to how to do things ‘properly’? Backseating a stream allows the quick rush of displaying the possession of ‘secret knowledge’ in front of an audience who is clearly invested in the game you are talking about. But the ‘fame’ is as illusory as the knowledge. Nobody really thinks it’s impressive that someone in chat knew what everyone else knows is public knowledge. In truth, chat should, and likely does resent the backseater for taking away from their experience. The streamer resents the attempt to wrest control of something they’ve put considerable effort into.

Games aren’t fun as play by chat, streamers aren’t fleshy controllers to implement your instructions, and if the audience were interested in your gameplay, they’d be in your stream. This is why I feel the net result of backseating is so negative as to not even require articulation in the rules. But if I must articulate a position I’ve already primed my bot: “Support the devs, buy the game for yourself, and LEAVE THE STREAMER ALONE!”