Video game makers should be proud of themselves. Theirs is a revolution in the sharing of the human condition. Not like painting or music or literature or film, not an exposition. Not a scenery only viewed by its audience at most through a personal lens. Theirs is a mirror. And like so many delightful distorting mirrors of carnival, the reflection is always telling not only of the mirror but also the viewer. No, distorting mirror scarcely does it justice. Video game is a sculpture of reflection.

Rather, video game has the potential to be so much more, but we have paid too much attention to the games themselves. We are asking game makers to paint the Mona Lisa with 16 colors. Dual Shock 3 has many more buttons than the red-white controller of Famicom, but it's still just a controller. We need more Wii, more Kinect, more Move. We need what's after those devices. We need to constantly invent new ways for the player to interact with his game until every feasible way a game designer can envision becomes possible. Then video gaming will become mainstream, even beyond mainstream because it offers what no other medium is capable.

Perhaps then the perception of games as toys or fodder for the violent and lascivious will change; perhaps that never mattered. In every medium, there is consumption of violence and sex. The unique nature of video game naturally makes it even more susceptible because it does them so very well. Just as Marilyn Manson does not devalue music and literature is no worse off for Fanny Hill, game makers and players alike need not feel ashamed of appealing to the masses. In fact, I have never been prouder to call myself a gamer.

I thank Gamespot and the ACMI Game Masters for giving me this new confidence.

I made a serious mistake when considering the relationship between BF3 and MW3. I got caught up in the online hype and completely missed an alternate explanation for BF3.

Observations:

BF3's stated goal is to take away some of MW's market share - true but also a misdirection of its main purpose.

Game sales on consoles exceeded those on PC by a factor of 24 in Nov 2011 - I seriously underestimated the disparity between the markets.

BF3 has numerous features that make it better on PC than on consoles - I wondered about the incongruity of this fact in context of EA's stated goals for BF3 and the reality of the gaming market, but I thought DICE (more importantly and dangerously) EA was going back to BF's PC roots.

There are two camps in the BF franchise: the console-dominant Bad Company franchise and the PC-centric BF2 fans who never fully accepted BC - I didn't even consider BC as a factor when considering BF3 and MW3.

BF1943 - I didn't even know this game existed.

There were so many factors that I either failed to consider more carefully or didn't even know. The result was tunnel vision. BF3 was never meant to directly compete with MW3. It was meant to reunite the two main groups of BF fans in one game. EA knows every well BF will never come close to MW's sales if it stayed PC-centric, but another console-centric entry will simply drive most PC gamers away from the franchise altogether, and that portion is significant. BF3 is meant to correct the marketing mistake caused by BC before shifting the entire fan base to the consoles in a more gradual manner.

Or maybe the schism created by BC was expected in the first place. EA wanted to win over a group of console gamers with BC knowing most PC gamers will remain loyal. EA may have planned to unite the two groups using BF3 from the beginning, years ago before BC even came out.

Wow! I remember thinking something similar about Microsoft and the reason why Windows Vista was so gaming-unfriendly. This level of strategy sends shivers down my spine.

The second question is perhaps more pertinent. Is the binding arbitrary clause of some high profile-EULA today really entered on a voluntary basis? Such a thing doesn't exist between people and sellers of food. A car manufacturer can't add such a clause as a condition for buying a car. (Or can they?) This is a digital age. The notion that you can still pursue happiness without any digital products or services is quite ludicrous to most people. Does that alter the nature of contracts between digital businesses and consumers?

Arbitration is designed primarily as a tool to deal with disputes that cannot be easily resolved through legal means. It admittedly can be simpler than going through the courts. However, should we as a society permit most people to waive their right to settle legal dispute in court, when most of them do not fully comprehend the severity of that decision? The role of government in such cases is highly controversial but more important than ever.

They should. I was reading the news about a ****action lawsuit against EA and realized although a lawsuit doesn't need to succeed to achieve its purpose. The lawsuit itself may be a tool, even if the plaintiff never expected to win in the first place. For example, I don't think EA is liable for any damage if it only mentioned in passing that the PS3 version of BF3 would include a copy of BF1943. The lawsuit may ultimately rule in EA's favor. However, as of right now, the news is that EA is being suited for reneging on its promise to its customers. That's seriously bad press. Even if EA ultimately wins the suit, people may not learn of it and are left with only a bad impression of EA.

This is not an easy issue to address. These kind of cases can drag on for years. Most people will have lost interest long ago, and media outlets may forget they even reported the case through no intentional neglect. Nevertheless, I think there should be laws that provide some measure of protection for the accused with respect to public opinion. For example, perhaps any news outlet that reports on the filing of a lawsuit should be obligated to report on its final ruling. They need not keep track of the case themselves but should be willing to do a final report at the litigant's request. It also seems fair if the new outlet reported on the defendant's response to the filing of a lawsuit. I notice at the end of many news reports a disclaimer that one or more parties have not responded to a request for comment as of press time. That could simply mean that the defendant has not had adequate time to review the litigation and formulate a proper response. When they do have a comment, the news providers should be obligated to report it per request, up to at least as much coverage as the other sides.

Public opinion matters a great deal to large business, in many cases far exceeding any damage that may be awarded from litigation. The law should not be a unwitting tool in publicity attacks, just as it should not be a tool for powerful entities to whittle away the resources of small competitors. It is up to lawmakers to make good laws that prevents this kind of thing from coming to pass, not an envious task. It is up to mindful individuals like myself to maintain the right balance, justice if you will, on a case to case basis.

I wonder if discouraging younger consumers from playing on the PC has been a hidden Microsoft strategy ever since before the release of Vista, and that was the reason why Vista was so gaming-unfriendly relatively to other mainstream Windows versions. After all, Xbox is where the gaming profit is for MS. Although Nintendo and PS were on the scene a lot longer, they really can't compete with Xbox in the US and similar markets in the long run because they first and foremost must cater to the Japanese audience, which have quite different taste in gaming. If MS successfully moves gamers from PC to Xbox, it will eventually form a new monopoly, one that as of right now is completely free of MS's old hated enemies on the PC scene, namely Apple and Google.

If that is the case, then I must say whoever is leading Microsoft from behind the scenes is a visionary, one of very few people that I admire in the world.

I haven't thought this through fully, but I better put something down before I forget. I want to investigate it further. This deals with the apparent contradiction between the physical copy of a software (the actual program in the user's possession) and the user's license to use said software.

The following excerpts are from Sony PSN's new Terms of Service and User Agreement (accessed on my PSP while entering the Playstation Store on Sep 29, 011:

"You are solely responsible if you do not choose to download or access the content before it is removed and for ongoing storage and safekeeping of the content. SNEI is not obligated to provide you with replacement copies for any reason." (Section 6, Paragraph 4)

"Except as stated in this Agreement, all content and software provided through Sony Online Services are licensed non-exclusively and revocably to you... solely for Your personal, private, non-tranferable, non-commercial, limited use on a limited number of Authorized Devices in the country in which your account is registered." (Section 7, Paragraph 1)

"Your compliance with all of the following are express conditions of Your license to use or access the Property. You may not sell, rent, lease, loan, sublicense, modify, adapt, arrange, translate, reverse engineer, decompile, or disassemble any portion of the Property... Property is not licensed to you for resale, public performance, display, distribution or broadcast." (Section 7, Paragraph 2)

Of course, all transactions with and all payments to SNEI are final and non-refundable, as specified at several places in the agreement. Also note here that "Property" refers to any and all components of Sony's software and hardware.

This is what it means from a contractual POV, if I understand it correctly. If I purchased a game from the PS Store but didn't download it right away and Sony decided to remove the game the next day, I would be out of luck. On the other hand, if I were to allow my friend to borrow my PS3 GTA IV to play for a while without consulting Sony first, I would violate of the Terms of Use and Sony would be well within its rights to revoke my license to all Playstation games. If I uploaded a video of my gameplay of GTA IV to YouTube without consultation, I would be in violation. Heck, depending on how strictly you interpreted the last sentence in my quote of Section 7, Paragraph 2, just by showing a group of friends my gameplay of GTA IV in my house, without receiving explicit permission from Sony first, would probably be a violation.

I have some questions about the situation:

1. What exactly am I paying for when I make a purchase from Sony? Am I paying for 1 digital copy of the software? Obviously if I can't get another copy from Sony, I can't get it again since I am not permitted to make reproductions of the "Property" and no one else is legally permitted to distribute it. Am I paying for a license to use the said software? Or am I paying for one digital copy and limited use of that 1 copy? I consider a single copy of software a physical item. Is it even legal to sell a product, or "Property" in this case, restricted by both one physical copy and limited license?

2. What is the length of the license that I purchase from Sony? Is it up to the end of my natural life? A specified amount of time? Or whatever Sony decides, which in theory could be anything from days to years? This ties closely to my first question. The answer could be for as long as I have my one copy of the "Property." If that were the case, how is one copy of the "Property" different from, say my textbook or my car? Why then are they not licensed?

My main issue is whether it is even legally permissible to license a physical product. I am not picking on Sony specifically. However, its Terms of Use brought up for me for the first time the idea that software may be considered a physical product. Something similar exists elsewhere. For example, EA Terms of Use specifically states all its products are AS IS and it makes no guarantee of any kind with regards to availability. I have read online that the code for some of Borderland's DLC can only be used to download the DLC once. In all these cases, the contract basically says I get what I pay for one time. The company may or may not provide continuing support at its discretion. That doesn't sound like something that can be licensed, but I am not an expert in legal theory. Yet.

Looking at the other side of the coin, I am not saying these big software companies are tricking consumers into these incredibly unbalanced contracts and then exploiting them. In the vast majority of cases, many provisions of these agreements are not enforced. However, I do not believe this is a good way to practice law and make contracts. The better choice is draft more fair, more understandable, but also enforceable Terms of Use so that the user knows exactly what he's getting into and is encouraged to abide by them.

I think this issue first came to the limelight during the turn of the Millennium during the drafting of the Digital Millennium Copyright Act. It was a huge deal in those days. I was too young to care about it then, but even I heard of it. Speaking of the DMCA, I think I should give it a read and then make it a part of my legal studies. Some parts of it may be out of date. In those days, the idea of distribution gigabytes of data to individual users millions of times a day was absurd. Now, many whole games are not only distributable online but are distributed exclusively online. The physical media is fading, and provisions in the DMCA that worked well then may no longer adequately protect consumers in the digital age.

Finally,I have a tangential question that I just found interesting:

3. I've often heard that companies choose to incorporate at the place with the most beneficial laws. It is then very interesting that I've found that both EA and Sony PSN's Terms of Use are governed by the laws of the State of California, San Mateo County. I've lived longer in California than anywhere else; it's my home. But I have to ask, is one of the reasons why California was the center of the tech boom a decade or two back and still a hub now...is one of them California's willingness to pass laws that favor tech companies, including game publishers, at the expense of consumers?

From the limited information I could glean from RockPaperShotgun (thanks a lot to Cobra5), it seems like too much sensationalism, in both the original research paper and the subsequent reports of it, has trivialized or missed entirely one noteworthy observation from the study. Because games increasingly simulate realistic scenarios, they either insinuate or allow gamers to create on their own certain ideas that, although easily dismissed when examined in isolation, could contribute to behavior not present in non-gamers when enough motivation has been applied.

For example, although it's hard to imagine anyone headbutting bricks in the hopes of getting green mushrooms from them, no matter how much Super Mario Brothers they've played, it's not so far-fetched that a high school student who was picked on one too many times modeled some aspects of his shooting rampage on the shooting game he played often. We gamers demand increasing amounts of realism from games, not just in graphics or sound but also in AI behavior and immersion. Military and police tactics, human reaction to danger both individually and en masse, the number of bullets it takes to kill or maim a person when shot at different body parts, the way to tell how many bullets are left in a gun... these are just some examples where video games have modeled real life with increasing accuracy. Although almost no one will ever mistake them for real life experiences, this type of conditioning, or rather training, is experienced by millions of gamers everyday.

Adding to those experiences the most important one of all, the satisfaction I get from violently killing people who piss me off in games, the overall effect could be significant. I am not a violent person by nature, I avoid killing as much as I can even in games. However, every time I get busted in Grand Theft Auto, I get the nearly irresistible urge to kill every police officer in the game. If I have saved and no longer want to continue a gaming session, I then conclude it with a murderous rampage. It always ends in my own death, of course, but the feeling even in death is liberating and glorious. One could get used to that kind of feeling. The remorse comes after, and it's a lot less, I expect, in a game because there is no real consequences. What about someone in rea life who no longer cares for consequences? It's quite common for people who suffer serious depression. They feel no hope and see only bleak future for themselves. What if one of them developed depression as a result of excessive bullying from others? If he were religious and read the Bible a lot, he might follow Jesus and turn the other cheek. If he played GTA a lot, he might remember the great satisfaction of murdering as many as possible the people who messed with him. If he didn't know anything about guns or violent rampage, he might not even know where to start such an endeavor. Or he might have acted it out dozens of times already in a game, with many aspects closely resembling real life.

That is the real danger associated with violent, realistic video games. Many of the most vocal opponents to these games make exaggerated claims. Doom and Quake were not responsible for Columbine. GTA is not responsible for any of the subsequent mass shootings. I have played video games of all sorts at least 20 hours a week (40 during breaks) for the past 10 years. I have never seen health bars or experienced hand twitches (could be I am mainly a PC gamer) or moved like a game character. I have often imagined life as a gamer character, but I've also often imaged life as a cartoon character. However, I do know the concept of cover when sniping, flanking during shootout, and casually dropping bombs disguised as mail or presents or luggage. I can keep track of the number of shots I've taken with a regularly used gun without looking at the HUD. I know the most reliable way to kill is a few shots to the torso and a shot to the head. Most importantly, I know killing my enemies feels like nothing else in the world. I know these things, and so do most other avid war gamers and action gamers. I have never shot a gun before, and I don't even have one. However, I live in Texas and could probably get both the gun and the training pretty easily. I do not know how to make explosives, but I am a Ph.D. student who was Valedictorian in high school, so I could probably learn it if I wanted to. Thank God I am well adjusted. I embrace God and the American Flag and apple pie. I believe everyone should be able to live free and pursue their own happiness.

But God helps whoever tries to take away my freedom.

Games do not make people violent, certainly not to the point of becoming killers. They do, however, give people ideas. Normally, these ideas are dismissed as fantasy. Even if doable, the vast majority of people would never seriously consider implementing them. However, once in a while one person is so down on his luck that he sees nothing good in his life. Life is more a burden than a joy to him. He has been oppressed, humiliated, or injure too deeply or one too many times. It is at this moment that all those gaming experiences come to him. There are two ways to deny a person the ability to do something: deny him the will or deny him the means. Video games open the door a little bit on both ways.

I hope whoever is against video game violence is also against guns and school bullying and workplace harassment. These contribute to violence a lot more than video games, even for the high school killer who said he played a lot of Quake. But even that is not the best solution. We should each be nicer to the people around us. We should let them know that they are not alone, that there is always hope and a helping hand. We should love our fellow man.

Otherwise, no amount of laws or other restrictions can stop violence in our society. Some people always find a way.

I've played most games from both franchises, so their unique qualities are well-known to me. At the most basic level, previous BF games have appealed to only one kind of player: gamers looking for a first-person, competitive war game experience. I use war game instead military or tactical shooter because the BF franchise is much more than that. Since BF1942, combined arms operation has been an integral part of the BF experience. An infantry only assault could be easily shattered by a joint force of armor, artillery, and aircraft in addition to infantry. Yes, BF1942 even had playable self-propelled howitzers. The sheer scope of the battles has not been matched by any other first-person war game except Operation Flashpoint and its successors.

Unfortunately, BF1942 and BF2 had such powerful focus on their dominant Conquest mode that every other aspect of the games atrophied. The most glaring omission from the franchise's main entries is the single player. There is no single player campaign in BF1942 to BF2142. Not only that, the support for single player practice on multiplayer maps against AI also got progressively worse over time. When the series reached BF2142, it basically turned away all players interested in anything other than competitive multiplayer play.

On the other hand, an engrossing single-player campaign has been a trademark of every Call of Duty game since the first. Crossing the Volga in a helpless ferry while Stuka bombers are blowing the **** out of Red Army soldiers all around you was just as intense when played (maybe more so) as when watched during the movie Enemy at the Gates. This was only the first game. Subsequent games had even more over-the-top yet somehow believable stories filled with heroism, conspiracy, and the good old Red, White and Blue. When I compared the lackluster EMP detonation in (I still don't know the city) from Bad Company 2 to one of the defining scenes of MW2 taking place in space, it made me feel sad to even be playing BC2 single player.

To be honest, I don't think any semi-modern, semi-realistic war game could have a more extraordinary story than Modern Warfare; it's as over-the-top while remaining sane as it gets. The only thing that may be able to surpass it is real war. Ultimately, war gamers are attracted more to the grit, the camaraderie, the terror, and the sheer determination of real battles than any level of action a game could attain. BF3 appears to have done that, using the most defining war of this generation, a war that even now spills the blood of young Americans over the sands of the Middle East. If DICE executed this premise correctly, it would have created a story that no Modern Warfare game could match. Ironically, this was the kind of story in the original Call of Duty, not of heroes who performed seemingly impossible deeds, but simply of men who relied on each other to carry through the darkness so they could see the dawn of another day.

Such a story would put BF3 on par with MW3 in terms of single player. Then we are back at the multiplayer portion of these games, an area where BF3 should have a decisive advantage. The problem with small-scale infantry shooting games is just that. You are either good at infantry level shooting or you are meat for others' kill count. You could always aim to get better at it, but to both casual gamers and war gamers alike, diversity is better. I myself do not care to be good at shooting; I shoot ok but use medical and repair skills to assist my team. Some people want to drive tanks. They might shoot 10 out of 100 on the range but if they could dance around incoming RPGs and pick off a sniper on a 50 meter tower with their main gun, they are still invaluable to the team. Others who have joysticks may want to fly jets around the battlefield, both supporting ground units and engage in air-to-air combat. Still some may just want to drive a truck or pilot a transport helo to ferry troops all over the map. The beauty of combined arms warfare is it needs many different specialties and permits many different kind of players to contribute. This is much more attractive to casual and war gamers than shooters because no matter how well made the game gets (such as CS or MW), if you sucked at shooting, you suck at the game and no one would want to play with you.

There isa way for BF3 to surpass MW3, and it looks like the game has set off on that path. Whether it has taken a successful first step remains to be seen. In addition, Infinity Ward will not be standing by while DICE surges forward. However, that's in the future. For now, Peter Moore appears to be fully capable of leading EA and DICE to take advantage of the opportunity to expand BF3 while MW3 has remained somewhat stagnant.

I open with quote from Justice Antonin Scalia in the news report by Gamespot.

"The most basic principle--that government lacks the power to restrict expression because of its message, ideas, subject matter, or content--is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test."

This statement reveals one of the most basic principles of common law used in the United States: precedence. Violence is not "historically unprotected speech," but obscenity is. Therefore, it is legal for minors to purchase Grand Theft Auto IV in which they could brutally murder a cadre of police officers; on the other hand, it is illegal for a 17-year-old to purchase the uncensored version of Leisure Suit Larry: Magna Cum Laude because there are crude CGI scenes depicting sexual intercourse, if only humorous ones,and both female breasts and pubic hair are visible. Now that I've thought about it more, it does sound a bit absurd.

Interestingly enough, later in the news report, I found something that sounds even more absurd but also ironic in that it too deals with precedence. "Puritans thought children were 'innately sinful and that parents' primary task was to suppress their children's natural depravity." So said Justice Clarence Thomas, citing it as support for the position that the First Amendment was never intended to protect minors' access to speech without the consent of their parents. Excuse me? I was born Chinese, and Confucius taught us that people are naturally good at birth. It looks like the founding fathers had the right idea to separate church and state; I would know how to abide by laws based on Puritan beliefs.Nevertheless, Justice Thomas used a different interpretation of the precedence of the First Amendment to argue his dissenting position.

It seems that so much of our legal system, the very glue of our society, is based on the past. Yet I wonder. How would Thomas Jefferson or Benjamin Franklin react if they saw Grand Theft Auto IV today, or better yet, during the drafting of the Constitution. Would they consider violence in games to be protected speech and obscenity not? Did they imagine that in the future, interactive media would be able to simulate the most gruesome of killings in increasingly realistic ways? Perhaps we place too much burden on the great men in our history.

Perhaps we are not. Reading over something Justice Scalia said, "But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test," we see that he chose his words carefully. "[A] legislature cannot create new categories of unprotected speech." I think my initial impression, as shared in Part 1 of this blog, was partially correct. The most critical legal question might not have been whether violent video games is protected speech or whether it does material harm to children. The point that the state of California had the most difficulty arguing was that it had the right to determine whether violent video games should be unprotected speech.

However, there is legal recourse for citizens opposed to violent video games if the issue should become sufficiently pressing. All it takes is for two-thirds of both the House and the Senate or the legislatures from two-thirds of the states to propose an amendment to the Constitution. Once proposed, only the legislatures or conventions from three-fourth of the states need to ratify the amendment for it to become a supreme law of the land. Lobbyists, start your engines!

Maybe we should add such an amendment to the Constitution. Many Europeans frown upon our system that penalizes digital forms of physical love but does nothing against violence. Now I wonder why obscenity is so bad. I need to read up on the precedence for that.

I haven't had a chance to read the full opinion yet, but I want to share some thoughts based on the news articles I've read on Gamespot.

The good news is that the legal precedent that prohibits state governments from restricting the sale of violent video games to minors has been set. I concede I am not convinced this is 100% good news for minors and parents, but I believe it is good news for our society at large. Beyond the central questions of whether restricting the sales of violent video games is a violation of the freedom of expression and whether violent video games cause material harm to children, there is a much thornier question. What constitutes a "violent video game"?

The appeal of the vast majority of video games lies in their violent content. This has been true from the stomping of Goomba in Super Mario Bros to a murderous rampage against police officers in Grand Theft Auto IV. A great majority of people would say there is a difference between the two acts, and I agree. However, there are many great video games whose violent content falls in between. Is it violence for Agent 47 to assassinate a crime boss in Hitman? How does that compare to Sam Fisher killing a soldier in another country? One of the most difficult example I've played (spoiler warning) is the massacre of civilians at Zakhaev International Airport by PFC Joseph Allen who is under deep cover to topple a ultra-nationalist terrorist organization. (spoiler ends) Developing the rules to separate violent from non-violent games, in a way that won't provoke an uproar from the gaming community, is a daunting task.

Perhaps even more important than the actual rules are the people who will formulate them. The same people who are unhappy about the games we play now will no doubt want to be a big part of the process. As a gamer myself, these are the very people whom I do not trust to categorize violent games. I must confess that this topic currently eludes me. Sufficient to say, this is a question that I would not want to touch with a ten-foot clown pole. And I suspect the Supreme Court doesn't want either.

Reading some statements made by Justice Scalia, I also want to say something about sexual content of games and about our legal system in general, but I will do that in another blog.