“Themes & Memes of the Course”

Legal Constraints on (Digital) CreativityClass 13UBC Law @ Allard Hall

Jon Festinger Q.C.Centre for Digital MediaFestinger Law & Strategy http://videogame.law.ubc.ca@gamebizlawjon_festinger@thecdm.ca

Final Review (of the semester)…

Emergent Themes

1. Constraints Distort Creativity10. Internet Governance & Surveillance (International Law)9. Taxation/Currency/Gambling/Criminal/Obscenity (Criminal & Quasi Criminal)8. Misleading promises/advertising, physical or psychological harm, unfair competition/anti-trust (consumer protection)7. Industry self regulation (delegated authority) & medium specific regulation (constitutional) Out of the Creation Norms (Censorship) ---------------------------------------------------------------------------------------------------------------- In the Creation (Magic Circle) Ethics (of Originality, Creativity & Expression)

6. EULA/ToS & Contracts (contractual, private)5. Privacy, Defamation & Personality law (tort, IP)4. Trademark, Patents & the IP Business3. Copyright & Users Rights (statutory)2. Technology (quasi extra-legal)1. Community (extra-legal)

2. Law is slow & confused when dealing with advancing technology

Because?...

Communication tools iteratively alter and shape how and what we communicate, including (over time) how we formulate ethical concerns and legal frameworks…

3. Creators do not need (nor want) additional constraints

The academic question…

The answer…

4. Creativity is “connected”

https://keithsawyer.wordpress.com/2014/07/21/is-the-lone-genius-finally-dead/

5. Dual Creator Effect Creators are Users/ Users are CreatorsWhen “rights” & “Intellectual Property” are at stake no matter who you impact you are always impacting a “creator”.

https://www.techdirt.com/articles/20150114/17225129702/steven-soderbergh-got-judge-to-say-that-re-editing-films-is-not-fair-use-now-hes-re-editing-films-posting-them-online.shtml

The key: Post Structuralism 1

"Structure, Sign, and Play in the Discourse of the Human Sciences” Jacques Derrida

Structures as free-floating (or 'playing') sets of relationships. Structuralist discourses unfortunately hold on to a "center” which anchors the structure and “does not play”. http://hydra.humanities.uci.edu/Derrida/sign-play.html

“Post-structuralism with respect to narratology can be said to focus on decentralization of the author and the replacement of them with the reader. What this means is that authorial intent is not the primary goal of a textual or narrative analysis of a work. Decentralizing the author allows the work to be open to new interpretations. The way a text is read by one person is not invalidated by another reading of it, but rather just another interpretation given a different situated perspective. So what does this mean for an individual reader and, more importantly, a videogame player?” http://www.escapistmagazine.com/for

ums/read/326.302015-Post-Sructuralism-and-Videogames

“From Post-Structuralism and Videogames”

6. EULA’s & ToS’ are the Post (apocalyptic) IP World

Nasty Questions:

1. Does copyright matter in a “Post IP World”?

2. Do freedoms truly exist outside of contract in a “Post IP World”?

7. The “(Digital)” in “(Digital) Creativity” matters.Because of it’s:1. Amplifying effect 2. Scaleability 3. Virality 4. “Surveillability” 5. Borderlessness

8. We are changing…

http://www.technologyreview.com/view/526111/how-the-internet-is-taking-away-americas-religion/

9. Technology is neutral (reject tech determinism &/or blaming the tech).

10. There is no “Magic Circle”There is no virtual…It’s all real…

11. Broadcast/Telecom Policy Inversion

12. There is no “one way” tube

13. The Significance of Creativity v. Innovation

* With thanks to Andrew Ming-Lum

Creativity

“Creativity is the process of bringing something new into being. Creativity requires passion and commitment. It brings to our awareness what was previously hidden and points to new life. The experience is one of heightened consciousness: ecstasy.”  Rollo May, The Courage to Create 

Innovation

http://its.yale.edu/about/innovation-its/what-innovation

Is the game rigged?

Industry > Art

Explains Patent Law double standards ?

• Innovation in a patent law context effectively allows “mods”….So why doesn’t creativity in a copyright law context similarly allow mods.

• Patent law allows free riding on both ideas and expression (through designing around). Copyright law allows free riding on ideas only. If free riding on ideas is ok, why is free riding on expression not ok?… (Tushnet)

An analytical starting point??…

What human values do we wish served? Why are we here?

https://youtu.be/lK_cdkpazjI

Informal Survey Results (organized)

Creating• Curiosity• Search For Meaning

(Viktor Frankl)• Transcendence• Happiness• An Interesting Life• Collaboration• Helping Others• Self-Actualization• Love (“Interstellar”)

Innovating• Living Forever• Survival• Exist• Be Productive• Evolve• Self-Determination• Fulfillment• Legacy

My (first) opinion for what it’s worth...Creativity is the purpose of life…Hence our obsession with creation myths…

Spiderman

Batman

First Day of Creation (from the 1493 Nuremberg Chronicle)

My reconsidered opinion (for what it’s worth)...

Communicating is the purpose of life…

Creating is a subset of Communicating ?…

Innovating a subset of building (constructing) ?

Key: What are the values of each?Values of Creativity

• Intuition• Feels “new” • Artistry• Integrity• Emotional• Beauty• Meaning• Measured by

Interpretation

Values of Innovation

• Optimization• Iteration • Improvement• Economic value• Usable• Design• Productivity• Measured by Features

A conclusion?…The values of creativity and innovation are entirely different and accordingly it is illogical to conflate them in legal, normative or business terms.

Leonard Nimoy 1931 - 2015 19

Innovation v. Creativity illustrates…

1. That the notion of “Intellectual Property” is misleading.

2. Different Intent + Different Values = Different Things.

These differences are useful in tailoring appropriate choices/approaches for:• Copyright/Trademark/Patent Law

• Privacy/Surveillance • Regulation (Net Neutrality)

Also a business theory???Blackberry v. Apple

Whither (or withered) Nintendo???

http://arstechnica.com/gaming/2015/03/fan-made-super-mario-64-game-pulled-after-nintendo-cries-foul/

http://gamepolitics.com/2015/02/05/more-clarifications-nintendo-creators-program#.VOqwjVPF83s

https://www.techdirt.com/articles/20150406/10300130565/youtuber-angry-joe-swears-off-nintendo-videos-after-company-claimed-his-mario-party-10-take.shtml

https://www.techdirt.com/articles/20141013/11010528810/nintendo-bricks-wii-u-consoles-unless-owners-agree-to-new-eula.shtml

How To Distinguish Creativity From Innovation …

Use Post-Structuralism

Decentralizing the Author & Replacing Them With the Reader…

Jacques Derrida 1930-2004

Creativity is Post-Structuralist

Innovation, Not so much

Creativity “plays”, Innovation doesn’t…

“Freeplay is the disruption of presence. The presence of an element is always a signifying and substitutive reference inscribed in a system of differences and the movement of a chain. Freeplay is always an interplay of absence and presence, but if it is to be radically conceived, freeplay must be conceived before the alternative of presence and absence; being must be conceived of as presence or absence beginning with the possibility of freeplay and not the other way around.”

;)

http://www.critical-theory.com/quite-unintelligible-derridas-scathing-criticism-from-a-teacher/

Also Consider

Review of CreativityReview of Innovation

Where to investigate further?

Some Conclusions

• There are a lot of constraints on creativity

• They are layered• Otherwise they follow no

particular pattern• Key is clear identification of the

constraints• Then implement strategies to

remove them as impediments

All A MATTER OF PERSPECTIVE

Always include a cat pic

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