Archive for the ‘Media & Instruction’ Category

Here’s the deal: games played on PC and/or Mac, including emulated games from previous generations, present enormous challenges for educational institutions (and the libraries that love them). These challenges are instructive regarding the disconnect between the rapid growth, evolution, and demise of various forms of cultural production, and the laws that ostensibly govern production, reproduction, and retention.

The First Sale Doctrine is the cornerstone of library collections (and record collections, and all sorts of other collections). When you buy an object that is subject to copyright law, you acquire certain rights while the rights-holder retains others: you can sell it, lend it, destroy it, etc. You can’t copy it (some severely limited exceptions); those rights remain with the person or entity that owns the copyright. For physical collections, this isn’t a problem: we buy a book, then lend it. If we want to lend ten copies, we buy ten copies. You buy a record, decide you don’t like it, and give it to a friend (or an enemy, if you accidentally bought some Styx, such as the following:).

None of this invokes copyright.

Digital collections muddy the waters. What, exactly, is a copy for purposes of copyright? Is it a single e-book purchase being open simultaneously on multiple computers? Is it a single copy being opened on a wireless device from its home on a network drive? Is it a data file moving from HDD to RAM upon opening? It’s mind-bending that these are real questions with real financial implications.

Further, we have moved to an uncertain position regarding our valuation of the concept of a purchase. What purpose does a purchase serve? When we make a purchase, what do we expect to receive? Increasingly we are moving away from purchasing products, and toward purchasing licenses to use those products. Functionally, our needs are (mostly) being met: we give some money, and we get to use a thing. The steps in between are elided. Culturally, we don’t really care. We don’t see the functional difference between owning a thing and getting to use it vs. just getting to use it.

This is insidious: it is the difference between buying an object (with some extra rights for free!), and buying some rights. If all you’ve bought is some rights, the First Sale Doctrine no longer applies because you never actually owned the object-under-copyright in question. Those rights might come with all sorts of awesome limitations and requirements. And finally, if you’ve purchased some rights to use a digital object, you’ve got to worry about the DMCA, which famously erodes the rights of the purchaser by (among many, many other things) making otherwise-legal unlicensed copying a federal crime if the creation of that otherwise-legal copy required circumvention of (standardless) copy-prevention technology.

To see all these issues in one myopic mash-up, check out the WoW Glider case (here’s some more terrible music for while you read; remember, this is the sound of progress!).

Still, even with the DMCA a library can buy and lend digital media. DVDs and console games are great examples. Buy, lend, learn, and the law is (generally) on your side. (Note that I’m leaving aside discussion of digital journals, e-books, etc. that are highly relevant to libraries and academics in general, but beyond the scope of my focus here.) But traditional legal, library and academic models fall far short of providing workable solutions for scholars and students who wish to study games produced for personal computing platforms. Even more, legal, library and academic models are woefully ill-equipped to facilitate the study of games that were originally produced for an outdated closed system (such as an old console, an obsolete OS, or an arcade cabinet), but are now most reasonably archived in ROM format coupled with appropriate emulators. Further, establishing the provenance of a commercial reproduction of a classic game is functionally impossible: if I ask my students to study the behavior of the ghosts in Pac-Man, can I expect that any reproduction (Flash, HTML 5, XBLA, etc.) of Pac-Man they might play will retain the programmatic behavior of the original? Which version of a game am I even studying? How can I tell?

This is where non-traditional distributed community archives far outreach the potential of library collections and academic bureaucracies. It is (ridiculous as it may sound) hugely significant to be able to choose between a ROM of a BurgerTime PCB and a NES BurgerTime ROM. But ROMs are an unsettled legal minefield, and not one that libraries are equipped to deal with: negotiating an agreement to use/lend/whatever a ROM is analogous to a license agreement. Libraries and academic institutions are much more comfortable just buying objects, and getting the lending rights for free. But what about BurgerTime? If I want my students to legally study the aesthetic differences between the NES port and the original arcade cabinet, I (or my institution) need to provide both. The cost of the NES port is negligible (leaving aside the political cost of convincing colleagues that purchasing games is not a waste of funds), but the arcade cabinet might run $1,000 – $2,000 at purchase (leaving aside the cost of storing and servicing it over time). That’s not a proposal I can write; the cost-benefit doesn’t work out. Yet there IS value in studying the arcade (or DOS, or Intellivision, or whatever) experience.

Part of the problem is that video games firmly resist Fair Use guidelines. The notoriously vague four-factor test (which we recently saw painfully and expensively misunderstood in the Kind of Bloop album cover case) is a wonderful safe haven for academics and instructors who want to copy a chunk of something for use in non-commercial research or instruction. If such copying meets fair use guidelines, no permission need be sought (nor fees paid!). Here are the guidelines:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

We win the first factor, because our use of the work is for nonprofit educational purposes. But we quickly lose the second factor (the work is creative, as opposed to factual and/or scholarly, in nature); and we spectacularly fail the third factor because it is functionally impossible to copy a small portion of a video game.

If I could reasonably copy (create a ROM of) only the Forbidden Woods section of The Wind Waker and assign my students to play it, that would be great! But that isn’t feasible; I (or they) would have to copy (or purchase) the entire game in order to play that one section. The phrase “portion used” sometimes pushes people to understand that the amount they copy is immaterial with regard to the third factor; that the amount copied and the “portion used” are two separate things. This is not the accepted interpretation. For legal purposes, “portion used” is synonymous with “amount copied”. This is relevant because in the above example I might copy the entirety of The Wind Waker but only require my students to use a small portion of it. In this case, this limited concept of “use” is irrelevant. The third factor is impacted by how much of a work is copied, and not by how much of that copy is useful. The implied assumption is that you will only copy what is useful, no more.

With the first factor in our favor but the following two clearly lost, the fourth factor becomes hugely important to any hope of a successful fair use argument. Unfortunately, in the case of video games this is murky at best (and an outright loss at worst). As a result, fair use is generally not useful for the study of video games as media objects. The original (outdated) objects cannot be reasonably purchased (and collected and loaned). The negotiation of a license agreement suddenly seems horrifically reasonable, never mind the unlikelihood that such an agreement would be available for purchase. Scholars and students in the field of game studies must make frankly unreasonable and unfortunate choices regarding what they study and the questionably narrow legalities of how they might go about studying it.

Note that we haven’t even touched on licensing modern content (such as that available through Steam and similar services) for library circulation; nor the challenges presented by simple old PC (Mac, Amiga…) games; nor the difficulties of modern DRM present in off-the-shelf titles (refer to the DMCA link above). This is the tip of a very large iceberg.

(Many thanks to Ben Garney at PushButton Labs for starting the conversation that got me thinking about this. A MAME bundle for academic use would be amazing!)

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Baudrillard wrote that “The impossibility of rediscovering an absolute level of the real is of the same order as the impossibility of staging illusion. Illusion is no longer possible, because the real is no longer possible.” (19)

Media operates in the mode of layered simulation. The interaction of simulations has been readily identifiable in film for some time, but their operation within video games has gone largely unexamined. This is unfortunate, because video games exploit the layering of simulation and the resulting confusion of real and imaginary in ways that are not available to other media objects. This is achieved by actually inducing the ontological crisis that was previously only described by postmodern media. I will outline this crisis and describe how video games use it to further complicate the relationship of the real and the imaginary.

Fellini’s opens with a traffic jam that quickly reveals itself as a dream. The horror of people, the need to escape them, the realization that the need to escape is an intrinsic part of the self, and so escape is impossible if the self is to remain intact. The protagonist keeps his self concept intact, injured by the social and defined by its injury: he allows himself to be pulled out of the sky, crashing into the ocean, trading the gentle horror of the dream for the gentle horror of life.



As the film continues, several similar sequences are presented: dreams, memories and fantasies are interwoven with what presents as real. Sorting out the worlds of the real of the film and the imaginary of the protagonist is left to the viewer. This is indeed no small task, as the viewer must also know that the real of the film is itself an illusion to be sorted against the real of the viewer. This layering of illusion is extended (distended?) by the film within the film, and, in the impossible task of defining true and false, the real and the illusion, the inevitable question: On which side of the camera does our director sit? Which is nothing but an ontologically safe reimagination the actual question: On which side of the screen does the viewer sit?

The opening sequence of Eternal Sunshine of the Spotless Mind visually and thematically mirrors that of : the protagonist, surrounded by the horror of the social, the crowded in-between places of mass transit, escapes to the beach. His escape does not provide the desired relief, instead revealing a fractured self-loathing that simultaneously seeks and hates the social.


Eternal Sunshine of the Spotless Mind‘s opening sequence: Sorry for the link, but YouTube has disallowed embedding for this video. Still, it’s well worth opening a new browser tab.


Like , Eternal Sunshine weaves together real and imaginary, challenging the viewer to define and distinguish two opposing elements from its hyperreal singularity. Unlike , it does so without limiting its implosion of internal and external to an episodic conversation between protagonist and viewer. Eternal Sunshine‘s conflation of reality and illusion instead extends without boundary. The mechanic of a film within the film, the elaborate layering of reality and illusion, it’s all made unnecessary by the uncomfortable believability of constructed (reconstructed? deconstructed?) thought and memory: the self-creating self. This crisis is mechanically similar to that of , but it is of a different order: the film presents a logic in which distinguishing the illusion of the film from the real of the viewer is not possible. Both are plausible, but neither can be verified. The hyperreal digests the whole of both reality and illusion.

In terms of simulation, Super Mario Bros. presents neither a visual nor a cognitive logic that approaches this level of hyperrealism.1 And yet, its hyperreality surpasses that of both and Eternal Sunshine.



The surreal representation of a world gone, quite literally, unbelievably wrong. It is easy for the spectator to disbelieve this world; but for the player, belief is another matter entirely. This is achieved through the creation of ontological insecurity the player, resulting in a division of the self that complicates the dichotomies of belief and disbelief, of real and imaginary.

In The Divided Self, Laing describes ontological insecurity as the feeling that the individual is

precariously differentiated from the rest of the world, so that his identity and autonomy are always in question. He may lack the experience of his own temporal continuity. He may not possess an over-riding sense of personal consistency or cohesiveness. . . And he may feel his self as partially divorced from his body. (Laing 42)

Ontological insecurity calls into question the nature of the self, and a response to this question is the perception of the self as, in Laing’s word, “unembodied.” The unembodied self’s “functions come to be observation, control, and criticism vis-a-vis what the body is experiencing and doing, and those operations which are usually spoken of as purely ‘mental’.” (Laing 69)

By using elements of the recognizable language of earlier forms of media and combining those elements with active participation, games induce a gentle form of ontological insecurity in their players. This insecurity is grounded in the same basic confusions presented by the hyperreality of and Eternal Sunshine. We return to the question: on which side of the screen does the player exist?

The truly fascinating twist is that while games (like other forms of media) can achieve this confusion through pure representation, they need not bother. Instead, games create instability simply by requiring the player to perform; that is, instability is created and maintained through the action of play. Games necessitate an unembodied self while simultaneously allowing that self access to virtually embodied action.

Thus, in games the destabilizing question has a preliminary answer: I exist simultaneously on both sides of the screen. I am part of the simulation.

Simulational participation is not limited to the active: games exploit the passivity of memory to further layer simulation. This tool is used by the films referenced above; but the digital nature of games allow memory to operate in a mode not available to film: perfect reproduction.



Super Mario Crossover illustrates the nature of convention and genre in digital media objects: perfect simulation is possible because perfect reproduction is possible. The referentialism of earlier media, as we saw in the opening sequences of and Eternal Sunshine, is replaced with the exact reproduction of prior simulation. This adds a temporal dimension of simulation, in which the player’s memory (whether real or illusory) of experience (whether real or illusory) becomes a passive part of active play. Thus the real and the imaginary are further confused as the player participates in the replication and remixing of their own memories, a level of hyperreal confusion that is not available to film.

The ontological crisis imagined by and Eternal Sunshine becomes, in games, a densely layered crisis of the imaginary; a real crisis of simulation; a crisis that is induced every time we play a video game.


1My use of gameplay videos that follows is, in this context, a placeholder at best and disingenuous at worst. It is my desire that they be viewed as placeholders: they show you the screen of someone who is playing, but it is important to recognize that they are themselves not objects of play. However believably these videos imply a player, one cannot escape being implicated as a viewer; a spectator; an anti-player.

This topic could span several posts on its own. For my purposes here, I will say this: these games must be played. The embedded gameplay videos are a good low-barrier way to access my argument, but they should not be construed as viable alternatives to actually playing the games they portray.

Works cited:

Baudrillard, Jean. Simulacra and Simulation. Trans. Sheila Faria Glaser. Ann Arbor: University of Michigan Press, 1994. Print. The Body, In Theory.

. Dir. Federico Fellini. Columbia, 1963. The Criterion Collection, 2004. DVD.

Eternal Sunshine of the Spotless Mind. Dir. Michel Gondry. Focus Features, 2004. Film.

Super Mario Bros. Nintendo, 1985. Game.

Laing, R. D. The Divided Self: An Existential Study in Sanity and Madness. New York: Penguin, 1965. Print.

Super Mario Crossover. Dev. Jay Pavlina. Newgrounds.com, 2010. Game.

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