WordsByNowak

If you hear a lot of people (mostly young men) saying “dude” and “bro” more often over the next few days, it’s because it’s officially DudeBro Week. Also known as the week that the new Call of Duty game, Modern Warfare 3, hits stores.

Regular readers know I’m a big fan. I usually stay far, far away from playing video games online, firstly because they’re a giant time sink and secondly because if I wanted to hear incessant racist and homophobic babble, I’d hang out with my family (zing!).

Call of Duty games, however, are another matter entirely. Over the years, they’ve completely sucked me in with their crack-like addictiveness, to the point where I don’t even notice that it’s five a.m. and, holy crap, I’ve been playing for 12 hours. (The key is to immediately mute all those annoying players as soon as you log on.)

A little while back I started thinking about the Call of Duty phenomenon. With the games having sold more than 100 million units and grossed more than $5 billion, the war-themed shooter series is a bona fide entertainment juggernaut. Not many franchises post those kinds of numbers; Harry Potter, Star Wars and the like come to mind.

But the thing is, when an entertainment concern manages to rake in money of that scale, it usually has some sort of larger cultural impact. Star Wars, for example, has pretty much defined pop culture for a generation while Harry Potter has over the past few years spurred kids to read more and dress up like their favourite characters at Halloween. I couldn’t help but wonder whether Call of Duty has had any similar, larger effect.

When I was down at the Call of Duty XP fan convention in Los Angeles back in September, I thought that the answer might be yes. After all, the event attracted more than 7,000 DudeBros who paid $150 each for the chance to virtually shoot each other up and take in a horrible Kanye West performance. Also, at any point in time, there are seven million people online playing the games, an impressive number to be sure.

But is all of that enough to qualify as a cultural impact? For something to affect the larger culture, it has to have relevance outside its core audience, perhaps by spreading into other media or at least shaping and influencing the things we talk about.

I wasn’t sure, so I interviewed some of the games’ makers, then went and spoke with some games experts - academics, other creators and authors. The result was a story published on MSN over the weekend.

There was a lot that didn’t make it into that story, for length or thematic reasons. One of the experts I spoke to, Jane Pinckard - associate director at the University of California’s Santa Cruz Center for Games and Playable Media - talked a lot about how Call of Duty has become the must-play game in any given year. That gives it some cultural heft.

“It becomes a game that you have to have because you are a 24-year-old male and it’s what you’re supposed to be consuming,” she said.  “When Lost is on, maybe you’re not watching but you feel like everyone else is, so you think maybe you should read about it.”

I also spoke with author Tom Bissell, who wrote Extra Lives: Why Video Games Matter, a critical dissection of several large game franchises and how they’ve affected his life. He had some good, but mostly bad, things to say about Call of Duty. Like me, he really enjoys the multiplayer, but he’s also very down on the franchise because its overwhelming success has effectively forced all major games to add online multiplayer modes if they are to be commercially viable, which doesn’t always fit the tone of the game. A case in point is the Uncharted franchise - the latest game has a really fun multiplayer option, but it’s completely unrecognizable from the main single-player game.

Moreover, as at least one of the speakers at the Montreal International Games Summit lamented last week, adding in these rich multiplayer features inevitably causes games’ budgets to skyrocket, which will eventually take a toll, whether it’s through higher prices on the games themselves or publishers green-lighting fewer titles. In the end, Bissell is right; it may be in everyone’s interest to reverse the trend propelled by Call of Duty and split up single-player and multiplayer games.

The other aspect Bissell touched on was the linear nature of Call of Duty’s single-player modes. The main storylines stick to a very tight script and don’t allow for much, if any, exploration or independent action on the part of the player. By forcing players down this “waterslide,” the games may provide a visceral thrill but they ultimately limit themselves in terms of long-lasting effect.

“Video game design should create a world that the player feels is his own. I can’t say I’ve ever had that feeling playing Call of Duty. That’s why they don’t create a whole lot of stuff for us to think about,” Bissell said. “I don’t think that’s what game design is or should be but we’re creeping closer to it with the unquestioned supremacy of these games.”

That’s definitely the case, if games such as Uncharted 3 and Battlefield 3 are any indication. Then again, there still are games like Skyrim that completely buck the trend. My review on that is coming Thursday…

Writing about video games isn’t all about sitting on the couch in your underwear and staring at a TV for hours on end. There are those rare occasions when those of us who do it get out and actually, y’know, talk to people involved in games.

Such was the case this week at the Montreal International Games Summit. I listened to and chatted with a great range of people across the whole spectrum of the industry, from writers and programmers to executives and even recruiters.

I’ll have more on MIGS over the next little while, but today I wanted to share one of the more interesting conversations I had. I interviewed Maxime Gagne, a lawyer from Heenan Blaikie who represents video game developers. Many wouldn’t think a conversation with a lawyer would be fun, but given how quickly video games are changing thanks to digital distribution and interaction over the internet, Gagne is covering some particularly poignant areas.

This rapid change was the topic of a presentation he did at MIGS. I chatted with him afterward about it, as well as the legal aspects of free-to-use services such as Facebook and Canada’s controversial copyright legislation, Bill C-11. Here’s an edited transcript of the interview.

How would you boil down your presentation to its essence?

The first big aspect that needs to be looked at in the context of the end user license agreement is the ownership of the game itself, which can include the ownership of player generated content. With digital distribution that’s really taken a whole new meaning. You have even through retail a few games that allowed user to go online and interact with each other but [so many now] have the ability to upload content and enhance the game, it’s really changed the way we have to license those games.

Also, when you’re looking at the end user license agreement you have to take into account all the consumer protection laws, the laws regulating access by minors – whether it’s advertising to minors or your game is rated for a certain audience – and of course in most online games either the developer or the distributor will collect data with respect to the users, whether it’s purchase patterns or to sell that data for advertising or for the purpose of establishing an audience. That data needs to be managed. What I see more and more is the outsourcing of that data, which poses problems too and people are not aware of that.

What we’re looking at broadly is an increasingly complex set of rules that regulate the game industry and the conduct of the gamers and their interactions with the game. From both the developer’s and the consumer’s standpoint it’s getting increasingly complex, that’s for sure. That’s where we step in. Lawyers oftentimes make the process more complex or less complex. My role as a lawyer is to play on both ends and sometimes take the role of the player and look at the license and say, “Can I understand any of this? Is it reasonable in a certain manner?” I keep reinforcing it with my clients that even though you’re drafting this agreement, you can’t just write anything in there, you can’t write all the rights in for yourself. You can’t get unlimited assignment of representations because it’s not the way it works.

Do you play games yourself?

I do. I’m not an avid gamer, but yes I do.

The obvious question is, how enforceable are end user license agreements (EULA) given that virtually no one reads them?

I agree with you, but there are ways to make them enforceable. One of the ways that I personally favour are the summary statements of the rights and obligations of players. Twitter, even though it’s not a game, has an interesting example of this. If you go on the Twitter website, even though they have a full-length license agreement, they have a summary that tells users in clear language what they’re allowed to do and what they’re not allowed to do. Often times, even though that’s being followed by a very long license agreement, if the basic principles are made clear to the end user right off the bat, then you have a much greater chance of having an enforceable EULA. I always say to my clients, if it’s important to you, make it clear and summarize it.

Also, it looks simply but often what you’ll see is that the EULA will pop up on the screen and you already have the “I agree” button even though there are 77 pages that you don’t have to read to click it. If at the very least you can demonstrate that the player had to go through the entire license before clicking “I agree,” in most circumstances it will be enforceable. That being said, there are rules in respect to unconscionable contracts that are unfair to the user. Within the frame of mind that most EULA are consumer contracts, courts will tend to favour consumers over developers in the interpretation of those EULAs.

Did you ever see the South Park episode about Apple’s EULA, where one of the characters inadvertently agreed to have his mouth sewn to someone else’s rear?

No, but that’s hilarious. That’s basically it. I would tend to think those kinds of situations could never happen. If there are such things as unfair provisions, the courts will strike it down, which is why from a developer’s perspective, well-crafted survivability clauses are a must but I won’t bore you by going into that.

Are we headed towards all games having EULAs, or could each platform – like Xbox, or iTunes – just aggregate them as one on behalf of developers?

They could definitely aggregate it by platform but the problem with EULAs is its becoming excessively complex. Every game has its own type of content that will be input or uploaded so yeah, you could aggregate it, but then you’d end up with a EULA that’s 177 pages long. And then the question is, do you really expect anyone to go through 177 pages of legalese? I personally wouldn’t recommend it to a client because the information the end user is looking for is lost in a mass of information. You have to make it easy for the player to retrieve information. It would become overly complex.

But isn’t the problem also that if players have more EULAs to read, they’ll probably read fewer of them?

Yeah, but on a case by case basis that’s more or less would have an impact on the enforceability. There’s such a rule in contracts that you can’t claim ignorance. If you’re presented with a document and you decide not to read it, you can’t just claim ignorance, you’re bound by it. If you’re a developer and you’re able to establish that the contract was presented to the person and he had a reasonable chance of going through it and agreeing to the terms, then technically if all other provisions are valid in the contract, it should remain enforceable. So yeah, it is true in practice. As more and more EULAs are flourishing through the digital distribution channels, people will read them less and less. But then again, the reality is even through regular retail outlets people don’t read the fine print. It comes to the lawyers and judicial side of things to make sure there are clear statements for the users that they can understand. That’s always been a problem with contractual law and it doesn’t really change with digital distribution.

One of the things you said during your presentation is that if you’re not paying for a product, chances are good you are the product. Can you expand?

It is the reality of the web and most free games. You have to realize that developers are looking for revenue streams. They’re in a business just as you and I are in a business and if they’re not making revenue directly from payments from the players, they’re making revenue otherwise. That otherwise in many cases is selling consumer data. That can be done, it’s not a problem, but it has to be clear to the user whenever that information is collected. That consent has to be clear and right at the beginning before I purchase the game because later on it’s not valid, so I have the option to opt in or out. People have to realize that there’s not much that comes for free in life. If you’re playing a free game, you’re paying for it in another way.

So people who complain about things like Facebook violating privacy, do they just not understand that?

There’s more and more concern about the realm of privacy and people are not realizing that those companies are making an investment in developing a platform that they use for free. There has to be a way for them to be able to generate revenue so they can enhance that platform and keep it available. Yes, I don’t think people realize the costs to having access to that platform is that, that they can sell not necessarily information that will render you identifiable as an individual, but they’ll take your information in aggregate. They’re selling advertising like that. There’s an increased awareness of what privacy is and what personal information is, but then again, you can’t have your cake and eat it too. If you’re going to have access to those services and take advantage of them, then part of the deal is you relinquish some information.

The copyright bill, C-11, also came up during your talk. You said it will be good for game developers. Can you expand?

Digital rights management is good news for developers in a sense that DRM in Canada is not protected. If you break DRM you could be found in violation of the EULA, but there is no statutory provision that will make you liable for a fine, for example. That would come into place in the new act. It is a good move for developers. That said, users have been really outraged over the user DRM, mostly to regulate the use of and transfer of their license. For example, if you have a game on one platform and then you sell your X-Box and you want to transfer that game, in some cases you won’t be able to do it. DRM will prevent you from doing that. From the consumer’s perspective, it may be seen as a setback.

What I’m hopeful about with the protection of DRM is that it will be used to locate the actual copies of games and make sure that they’re traceable. The problem we have now and why we don’t allow copying, in most cases, of video games is that you can make one copy or five, six, seven, 10 and you can decide to distribute them. As a developer with the DRM, which are basically technological tracking systems, I can see that you’ve taken your copy and just transferred it to another platform. I’m hoping that with that tracing being possible, the developers will allow users more and more to transfer their games. Right now because it has no protection, DRM isn’t being used to its full capacity to enhance the rights of the users, which they could do. Tha’s a misunderstanding people don’t often see in DRM. Right now because there’s so much piracy, it’s primarily used to prevent copying.

There’s the suggestion that C-11 should have an exception to the lock provision, where people could break DRM for their own private use. Some say that such an exception would make the rule itself pointless. What do you think?

I haven’t seen the exception but there could be ways that it’s crafted that wouldn’t necessarily make it pointless. It would allow private copying but still prevent the uses that are technically restricted to the author of the work, meaning distribution or public performance of the work. That would still be considered infringement. You could break the DRM and make a private copy but you can’t break the DRM and make 160 copies and sell it. It doesn’t render the provision pointless, it just makes clear that there are certain limited uses that you’ll be able to do.

So you’re not in favour of one approach or the other? Private copying could be enabled by the digital locks or by the non-infringement exception, right?

Yes.

So it’s potentially good news either way?

The DRM is not necessarily a move that’s coming out of nowhere. There are international treaties for the protection of intellectual property that require protection of DRM. Canada was not in compliance with those treaties so it’s a move that’s also being forced by international organizations. Whether those standards are good or not for developers and distributors, that’s a debate that’s been going for quite a while. So we’re not just trying to mimic what the States are doing.

Critics of C-11 have said the DRM protection isn’t required by treaties such as WIPO and that it’s just being pushed by U.S. entertainment companies. Are they just interpreting the treaties differently?

I do see it definitely as a response to the criticism that we’ve had from the United States, but with that said, that’s not the only reason why we’re moving towards it.

It’s not often I become a quivering fanboy while interviewing someone, but it happened a few weeks ago when I got the chance to speak with comics legend Stan Lee. As the man who put Marvel Comics on the map in the 1960s by creating the likes of Spider-Man, the Fantastic Four and the X-Men, he’s pretty much responsible for much of the joy I experienced as a kid.

My childhood revolved around comic books. I’d bike downtown several times a week to buy them, then spend the rest of the week reading them. I learned to draw by emulating the likes of John Romita Jr., John Byrne and Marc Silvestri, and I’m pretty certain comic books contributed a great deal to my reading ability. And that of course led to writing, which is what I do for a living. In some ways, my entire livelihood can be traced back to Stan the Man.

The topic of the interview was video games, particularly how comic books can be translated into them. Alas, the number of games based on comics that are good still outnumber the bad, a topic on which I wrote (and included some comments from Lee) over on MSN. As it happens, Activision recently released two Canadian-designed games based on comic books, both of which I found to be decently fun. Check out my reviews of X-Men Destiny, from St. Catharines, Ont.-based Silicon Knights, and Spider-Man: Edge of Time, from Quebec City’s Beenox.

I put together a bit of my interview with Lee with clips from the two games in the video below. If you’re a fan of comics, video games or Stan Lee, check it out:

Regular readers may remember my recent lament about how I’ve mostly failed to convince news organizations I’ve worked for to refrain from capitalizing the word “internet.” I’m pleased to report, however, that I’ve had better luck with another of my stylistic bugbears - namely, the italicization of video game titles.

Back at the CBC, the standard was to leave game titles in regular type, despite films, TV shows and album titles getting special italics treatment. I argued with the style gurus about how this was discriminatory and that games were no less works of art and entertainment than any other medium. If you italicize the works of Michael Bay and Nickelback, for example, you simply must do the same for the likes of L.A. Noire, Mass Effect or Uncharted 2.

The historical argument against italicizing games is that they were typically considered pieces of software. And you wouldn’t write Microsoft Word - it’s obviously Microsoft Word. The other argument is that board games, such as Monopoly or Scrabble, don’t get italics.

Neither comparison is accurate anymore, if it ever was. Neither software nor board games employ directors, cinematographers, story writers, actors, stuntmen and musicians all together, as video games do. The obvious comparison today is to television or film, both of which get the honour of italics.

My arguments worked and the CBC adopted italics for video games last year. Here’s the official style rule. Italics are applied to:

Video games and computer games considered artistic creations (e.g., SimCity, Pac-Man, Guitar Hero) rather than merely electronic versions of board games, card games or puzzles (e.g., the nouns Monopoly, Scrabble, solitaire and sudoku would be left in regular type).

I’ve put forward the same arguments with some other editors I currently work with, with varied success. MSN, where I do most of game writing, is now italicizing titles, at least in my stuff. They didn’t before, not because of any innate bias against games, but simply because no one had thought to do so.

So there it is. Gamers, consider this a call to arms. In our ongoing quest to get video games taken as seriously as any other artistic or entertainment medium, we need to get them fair treatment in the most basic of fora: typeface. Many publications and news outlets still don’t italicize game titles. If you see such an example, speak out and complain. They cannot deny us our slanted type any longer!

As was obvious in my Gears of War post last week, I’ve been doing a lot of soul searching about video games lately. Actually, it might be more accurate to say I’ve been searching for the soul of video games, if they have one. I’ve been thinking a lot lately about aging - I’m 37 now - and how that applies to games. I’ve been writing about them for 15 years or so, so my first natural inclination is to think, “I’m too old for this crap” (to paraphrase Danny Glover). After all, video games are kids stuff, right?

Quite the opposite. My generation is the first to be brought up on games. We started playing them as kids, so it’s understandable that everyone older than us may indeed view them as kids stuff. But to us, it’s a medium that has always been part of our lives, so video games are as much “kids stuff” as television, movies or books. The older generation’s condescending view is only likely to persist until they die off. Like many people, I look forward to such a world (just kidding… mostly).

That’s why I’ve been on the bent of late of trying to think of games in a more serious light. Yes, their primary purpose is supposed to be fun, but when the medium is aging along with the generation that created it and we ourselves are maturing, shouldn’t we take it more seriously?

As I lamented in that Gears post, part of the whole problem is in how games are reviewed. I wrote about how they’re not judged on the same level as other media - a movie that gets a 90 on Metacritic, for example, is probably a great movie in every regard while a game that scores a similar rating might have serious flaws. There’s something very wrong with that.

Most reviewers rate games on a different system than their film counterparts. While movie reviewers typically rate on a scale of four or five stars, games typically get graded from one to 10, or one to 100. Metacritic and other all-important review aggregators typically convert star ratings on all media into the 100% system, for reasons I’m not sure of.

There is a case to be made for scoring games out of 10 or 100. After all, when gamers are plopping down $60 or $70 for a game, they want to know if they’re getting their money’s worth. They want details on everything. A movie can be rated out of five and, if the review is inaccurate, the consumer is only out $12 or so. The stakes are bigger with games.

But such a system treats games solely as a product, which they are obviously not. Games are an artistic and entertainment medium that can do more than just titillate our adrenaline glands; they can spur emotions and thoughts, just like movies or music.

Some review publications, such as CNET and GamePro, have converted to the star system to reflect this reality. It’s an approach I wholeheartedly agree with and am adopting as of today over on MSN (I gave X-Men Destiny and FIFA 12, both of which hit stores today, three and four stars out of five, respectively - links to come). Just like those publications, I’d toyed with the thought of doing away with a rating completely, but it’s obvious that readers like to have that at-a-glance reference. I know I do as a reader.

The star-rating system is better because it takes the niddly-piddly out of the review. One star means the game is terrible, two stars means it’s bad, three means it’s okay, four is good and five is perfect. Anything more than that seems unnecessary and often comes down to splitting hairs. I agonized over whether to give Gears of War 3 an eight out of 10 but ended up settling on seven because it had problems I just couldn’t forgive. Translating that to stars, 3.5 seems just about right for that particular game. It was pretty good, but it didn’t move me.

More to the point, star ratings are much more in line with how just about everything else is reviewed. If we want games to be treated equally as other media, they should be rated the same way.