[Scrap] The CSI Effect: Fact or Fiction

The CSI Effect: Fact or Fiction



, Wednesday, 01 February 2006 [View as PDF]

As chief prosecutor for Maricopa County, which includes the city of Phoenix, my office prosecutes about 40,000 felonies each year and includes a staff of 300 prosecutors. In June 2005, we surveyed 102 of those attorneys, all of whom had trial experience, and they reported that the CSI effect is no myth: Of the prosecutors we surveyed, 38% believed they had at least one trial that resulted in either an acquittal or hung jury because forensic evidence was not available, even though prosecutors believed the existing testimony was sufficient by itself to sustain a conviction. In about 40% of these prosecutors’ cases, jurors have asked questions about evidence like “mitochondrial DNA,” “latent prints,” “trace evidence,” or “ballistics”—even when these terms were not used at trial.

On television, if the CSI people do their job right, the jurors will have little choice but to convict. In real life, the false expectation of plentiful scientific evidence can create a bias in the jury if this issue is not properly addressed at trial. The investigative techniques portrayed on CSI are not always available or even reasonable. Yet almost eight out of ten Maricopa County prosecutors believe that jurors are disappointed in the lack of forensic evidence presented at trial.

All of the prosecutors we surveyed had jury trial experience. Sixty-four had more than ten jury trials and thirty-eight had more than thirty trials. Our prosecutors frequently talk to jurors after their verdicts about the cases they just decided. On the basis of these conversations with juries, 74% of our prosecutors maintained that they have prosecuted a case in which the jury “expected to be presented with scientific evidence,” and that when both scientific and nonscientific evidence existed, 45% of our prosecutors felt “the jury focused so much on presented scientific evidence that they paid too little attention to unscientific evidence” like witnesses and police testimony.

In one drug case, the officer saw the defendant throw down a baggie of drugs. The baggie was not fingerprinted by the time of trial because there was a backlog for laboratory testing that was up to six months. As Deputy County Attorney Kristen Knudsen explained: “After the trial, the jury complained that the lack of fingerprint evidence suggested that the baggie could have been there all along.”

Even statements by defendants themselves have failed to persuade some juries. In State v. James Calloway, Arizona Department of Corrections officers found a syringe in a cell with a note signed by “Jimbo” attached to it. Inmate “Jimbo” was found with a fresh mark on his arm consistent with syringe use, and admitted the syringe was his when he retrieved it from prison officials and signed the receipt. The jury criticized the prosecution because there was no DNA or fingerprint analysis on the syringe, and the jurors wanted a handwriting comparison on the note and the receipt.

Real prosecutors’ offices are constrained by their limited resources. While some jurisdictions have access to some of the “bells and whistles” equipment depicted in television dramas, those resources are usually reserved for the most serious crimes. In Maricopa County, as in other counties, most felonies do not involve high-profile crimes and lengthy trials. The majority of prosecutions are for lower-level offenses like auto theft, drug possession, and assault. These cases often do not yield irrefutable physical or scientific evidence of guilt or innocence.

What may be of greatest concern is what goes on in the jury room, after arguments have been made. In 72% of cases, prosecutors suspect that jurors who watch shows like CSI claim a level of expertise during jury deliberations that sways other jurors who do not watch those shows.
In State v. Everett Black, the defendant was caught with drugs that were in a cigarette pack in defendant’s pocket. He admitted that the pack was his but denied that the drugs were his or that he knew the drugs were there. The foreperson later said he watched CSI and that investigators should have done extensive fingerprinting, DNA testing, and other forensics, and that he did not think the prosecutors did enough. He had convinced the entire panel that on television they do so much more and that the police officers did not do a good job.

This is the kind of example that makes prosecutors worried that justice is not being done. Although verdicts have not yet noticeably changed from guilty to not guilty, prosecutors have had to take more and more preemptive steps to divert juries from reliance on television-style expectations.
Maricopa County prosecutors have begun to counter the CSI effect through voir dire, opening and closing arguments, and presentation of other evidence and testimony. While the defense often questions the work of investigators, prosecutors can restore balance to the criminal justice system by pointing out the reasons why there is no forensic evidence in a certain case.

Court officials could also take action to preserve the opportunity for fair trials. More judges could actively acknowledge the existence of the CSI effect and take steps during voir dire to prevent biased jurors from improperly influencing the jury. When they instruct juries before deliberations, judges could also mention that jurors should not use outside standards like those presented in forensic crime television shows.

These solutions are temporary, but as CSI continues to grow in popularity, and as more shows continue to follow its lead, these steps may soon be inadequate.

Andrew P. Thomas is Maricopa County Attorney, the chief prosecutor for Maricopa County, Arizona. Maricopa County is the fourth most populous county in the U.S., with 3.5 million people in the greater Phoenix area. Mr. Thomas is a graduate of Harvard Law School and the author of four books.

Preferred Citation: Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70 (2006), http://www.thepocketpart.org/2006/02/thomas.html.

Read the full-length CSI effect study from the Maricopa County prosecutors' office here. Read the full length version of Professor Tyler's Review, Viewing CSI and the Threshold of Guilt, as published in The Yale Law Journal here.

Related Items:
Richard Catalani, A CSI Writer Defends His Show
Tom R. Tyler, Is the CSI Effect Good Science?

[Scrap] Why Blogs Are Bad for Legal Scholarship

Why Blogs Are Bad for Legal Scholarship


, Wednesday, 20 September 2006 [View as PDF]

The best legal scholarship is increasingly interdisciplinary in nature, and its successful production, evaluation, and distribution generally requires multi-disciplinary expertise at a reasonably high level. Unfortunately, the Internet in general, and blogs in particular, eviscerate and obscure expertise because the Internet’s most distinctive feature is the elimination of mediating boundaries: of distance, experience, education, and intelligence. While the elimination of the first is an advantage, the elimination of the others poses problems for serious scholarship.
I am going to focus on blogs, rather than the Internet generally, because the Internet has some advantages for legal scholarship, largely related to its capacity to make geographic distance irrelevant. I can post a paper on the Social Science Research Network (SSRN) and get helpful feedback from fine scholars I have never met and to whom I otherwise likely never would have thought to send my work. With e-mail, I can have a modest dialogue with these same scholars, even if we never have occasion to meet in person.

Blogs differ from other Internet services because they combine three characteristics: they are unmediated (like so much of what is on the Internet), public (like SSRN), and normative (like much e-mail about scholarly topics). It is this conjunction that makes blogs special, and especially dangerous—at least for legal scholarship. (Philosophy, my other academic field, is less vulnerable on this score, for reasons I’ll return to in a moment.) Any second-rate scholar can have an opinion, however ignorant or confused, about the merits of someone’s work, and express that opinion in an e-mail to a colleague elsewhere. Now imagine that same ignorant or confused opinion broadcast to thousands: that is what blogs make possible. Indeed, blogs do more than that: they make possible the repeated and systematic broadcast of non-expert opinions, opinions that can then be picked up and amplified by other non-expert blogs. The result is often what Timur Kuran and Cass Sunstein would call an “availability cascade,” that is,

a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs—activists who manipulate the content of public discourse—strive to trigger availability cascades likely to advance their agendas.

The underlying speculative psychology here may or may not be accurate, but the phenomenon seems real enough: an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.

The relevance to the blogging phenomenon should be clear enough. Imagine that the author of the widely read Generic Law Blog runs a glowing post on Monday morning declaring his good friend’s new article to be “an excellent discussion, much worth reading.” By Monday evening, all those who either think Generic Law Blog knows what it is talking about, or who want to be part of the network of blogs that Generic Law Blog links to and promotes, will have echoed that opinion, and soon enough there will be a genuine blogospheric buzz about an article that, as far as any expert might be concerned, is not worth the paper it is written on.

A blogospheric “buzz” is one thing, of course, and real scholarly impact is another. But here is where legal scholarship is especially vulnerable. For availability cascades won’t work in other disciplines where those receiving the message are, themselves, experts or quasi-experts. If, on my widely read philosophy blog, I tried to create an availability cascade on behalf of the claim that Derrida was the most important figure in late-twentieth-century philosophy, the main result would be that people would stop reading my blog. Philosophy faculty and graduate students have enough expertise to know that Derrida is an intellectual fraud, and my opining otherwise would change nothing.

Unlike philosophy blogs, law blogs are susceptible to availability cascades, and for two reasons. One reason is that the legal academy often lacks expert mediators. To be sure, there are plenty of experts who read law blogs and who can tell right away when the half-baked tripe of Generic Law Blog’s good friend is being passed off as a “significant” contribution. The problem is that reputational effects in the legal academy are mediated by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts, and so are especially vulnerable to availability cascades. First, one of the major venues for legal scholarship remains the student-edited law reviews, and the student editors of these journals are only irregularly and by happenstance in a position to offer expert resistance to an availability cascade initiated by the law blogs. Second, the legal academy, because of the enormous public interest in law, is more susceptible to the journalistic reception of legal ideas, and journalists are, with rare exceptions, not experts. Even those journalists who regularly cover law tend to be especially susceptible to what apparently more expert law professors with blogs have to say. With scholarly discourse in law hostage, at least partly, to these two non-expert mediating devices, the potential for availability cascades to lead to the dissemination of weak scholarship is high.

Of course, there is another culprit in this story, namely, the blogs themselves. If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals. As the economists like to say, the “barriers to entry” to the Internet in general, and the “blogosphere” in particular, are low, and not just in monetary terms. One need not be a good scholar, or an intellectual heavyweight, to have a blog, and if one got into the blog game early enough, one can thrive, especially with an audience of non-expert consumers.

Larry Solum, who performs a valuable service with his Legal Theory Blog, has also commented thoughtfully on the role of the Internet in scholarship. He notes that “the dissemination of legal scholarship has traditional[ly] been dominated by intermediaries—institutions that stand between the author and audience,” but that the Internet—whether it is blogs or SSRN or Google—is changing all that. I agree with Professor Solum that this is a “significant” rather than a “trivial” phenomenon, though not, ironically, for his reasons. He acknowledges the importance of legal scholarship’s mediating institutions, such as they are:

One such argument [for why the changes caused by the Internet are trivial] focuses on the idea that only a few specialists are capable of understanding, digesting, evaluating, and interacting with “high level legal scholarship”—the kind published by the best peer-reviewed journals and student-edited law reviews. Of course, there is something to that! The blogosophere may degrade the “signal to noise ratio” of feedback on legal scholarship.

But Professor Solum then praises what he considers the blogs’ significant positive role:

I have been astonished by the thoughtful and genuinely informative comments and blog posts that have come from nonacademic sources. I’m proud to be an academic and I believe in the value of academic institutions. But I think it is both wrong and silly to think that credentials matter more than content.

I wonder whether Professor Solum has overstated the positive significance of these developments. There are, to be sure, many non-academic experts, so opening up discourse to non-academics is plainly not the issue. And one must, of course, agree that “content” matters more than “credentials.” What is “significant” about these developments, but in a way potentially deleterious for scholarship, is that they conspire to create availability cascades that result in inferior work getting the most scholarly attention and, in the process, lowering the general quality of scholarly discourse.
This view of the role of blogs in legal scholarship puts me at odds with a more Panglossian picture, well articulated by Richard Posner in his Hayekian gloss on the blogosphere:

Blogging is a major new social, political, and economic phenomenon. It is a fresh and striking exemplification of Friedrich Hayek’s thesis that knowledge is widely distributed among people and that the challenge to society is to create mechanisms for pooling that knowledge. The powerful mechanism that was the focus of Hayek’s work, as of economists generally, is the price system (the market). The newest mechanism is the “blogosphere.” There are 4 million blogs. The internet enables the instantaneous pooling (and hence correction, refinement, and amplification) of the ideas and opinions, facts and images, reportage and scholarship, generated by bloggers.

The familiar problems with Hayek’s utopianism about markets afflict this extension of his utopian fantasies to the blogosphere. The marketplace, through the price mechanism, may give us knowledge of what people want, but what people want is hostage to their ignorance and irrationality, the latter two characteristics often exploited by the marketplace. The knowledge we gain from markets, in consequence, is of a peculiar kind: it is not knowledge of what makes people better off or of what makes for good lives, but rather knowledge of the current psychological condition, stunted or manipulated or otherwise, of the populace.

Blogs, like markets, are hostage to the ignorance and irrationality of their most visible proprietors, as well as to that of their readers, and the costs of those cognitive limitations are greatest when blogs purport to critique serious scholarship, a task in which the ability to sort wheat from chaff often turns on intellectual skills that are not widely distributed, even among academics. My guess is that Judge Posner has not, understandably, spent much time actually reading the blogs that are out there. I have seen relatively little evidence of correction and refinement of ideas, facts, and scholarship, much more amplification and repetition of existing prejudices and ignorance, or, occasionally, feeding frenzies on trivial mistakes in the mainstream media.

One might hope, to be sure, that blogs that have scholarly pretensions would prove to be better mediators, but I have seen little evidence of that either, though I have certainly seen plenty of self-congratulation by like-minded academic bloggers pleased with their ability to make what seem to them to be intellectual advances.

People who run blogs tend to respond badly, indeed harshly, to the suggestion that blogs are not as important as their proprietors think they are. Be that as it may, my sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.

Brian Leiter holds the Hines H. Baker and Thelma Kelley Baker Chair in Law and Philosophy at the University of Texas at Austin, where he directs the Law & Philosophy Program. He is a Visiting Professor at the University of Chicago Law School this fall.

Preferred Citation: Brian Leiter, Why Blogs Are Bad for Legal Scholarship, 116 Yale L.J. Pocket Part 53 (2006),

http://www.thepocketpart.org/2006/09/20/leiter.html.

[Scrap] Escape Into the Panopticon: Virtual Worlds and the Surveillance Society

Escape Into the Panopticon: Virtual Worlds and the Surveillance Society



Written by Joshua Fairfield, Monday, 19 January 2009 [View as PDF]

The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable.

Introduction

Suppose that you move to a new town. To buy your home, you must allow the developer to install cameras in each room and record all interactions between you and your husband. To use the telephone, you must permit the telephone company to record and retain your conversations. To receive mail, you must allow the mail carrier to copy and index the contents. To access funds, you must permit the bank to record all purchases. Suppose, too, that much of this information can become available to government actors with a simple subpoena rather than the more stringent search warrant. It may sound incredible, but this is the reality for millions of people who live, work, and play in virtual worlds.

The essential irony of virtual worlds is that populations seeking to build new lives away from the public eye are moving into an environment that is subject to constant surveillance. Virtual worlds currently operate like Jeremy Bentham’s Panopticon prison. The Panopticon permitted a single guard in the center of the prison to monitor all of the prisoners. The same degree of surveillance exists in virtual worlds. The denizens of virtual worlds are constantly under surveillance by “game gods,” the private companies that design, maintain, and administer virtual worlds. The game gods then must comply with government requests for call details, wiretaps, stored chatlogs, and other business records. The result: game gods’ cameras are on all the time and the footage reaches law enforcement and the intelligence community.

I argue in this brief essay that as government enters virtual worlds it should respect basic privacy rights. For intelligence and law enforcement purposes, this most importantly includes the question of when government actors can and should access a U.S. person’s private communications. Further, I argue that private collection of personal information in virtual worlds is as much of a threat to privacy as government surveillance.

Reasonable Expectations of Privacy in Virtual Worlds

The basic legal regime for privacy prevents the intelligence community and law enforcement from accessing a U.S. person’s private communications without a warrant supported by probable cause. The constitutional standard is one of a reasonable expectation of privacy, but courts have had some trouble hammering out what constitutes a reasonable expectation of privacy online. The main point of contention is whether reasonable expectations of privacy are determined by what the government can collect or by what it ought to collect. The government can collect anything. So if the government refuses to respect privacy, then any expectation of privacy is unreasonable. The alternative is for courts to make a normative determination: when citizens reasonably act as though their communications are private, courts must select rules that honor those expectations, even if government possesses the technology to access the information. Under this normative approach, the fact that government can wiretap telephones or see through bedroom walls with thermographic cameras does not reduce the expectations of privacy of U.S. persons in bed or on the phone.

In some ways, determining rational expectations of privacy in virtual worlds is easier than determining expectations of privacy over telephone lines, because computer technology allows virtual re-creation of real space. Virtual worlds recreate streets and bedrooms. In the real world, most street-corner conversations are public, and most bedroom conversations are private. Virtual world technology is intentionally designed to make humans act as though the virtual world is, at least in some respects, real. Thus, as a normative matter, when corporations choose to use technology intended to entice humans into acting as though they were safe in their own homes, or privately communicating with friends, the law ought to respect those expectations as it does in real life. I therefore argue that U.S. persons in virtual worlds possess a reasonable expectation of privacy, such that a search of their virtual homes and property should be subject to the warrant requirement of the Fourth Amendment.

Protecting U.S. Persons’ Personal Information in Virtual Worlds

Government surveillance is only half of the problem. The other half is the untrammeled private collection of data. Companies collect information about consumers to maximize profit or to gain business advantage. Unfortunately, companies often lose control of the enormous amounts of information they have gathered, which threatens U.S. persons’ privacy. Congress has already begun to act in response to the threat of massive collection of U.S. persons’ data by companies that do not carefully protect that data.

But the more people live out their lives in virtual worlds, the more information can be data mined. Not only economic information like credit card numbers can be recorded in virtual worlds. The false anonymity of novel online environments has caused people to move their intimate lives online, where every act can be monitored. Eventually, every movement, every gesture in virtual worlds will be tracked and processed by private companies. The government should take the lead in protecting consumer privacy from private invasion by extending enforcement of law on data leaks to virtual worlds, by enforcing existing law requiring informed consent prior to the collection of personal information, and by enacting new law creating property rights in personal information so that consumers will have adequate control if they decide to sell their information.

Conclusion

As people move their lives online, courts should recognize that rights move with them by articulating a reasonable expectation of online privacy. Rights to privacy do not stop at the gateway to virtual worlds. And the fact that surveillance in virtual worlds can be ubiquitous does not indicate that it should be. There is a serious danger that courts will determine that every aspect of a person’s virtual life can be collected by private companies and passed along to government actors subject to less stringent requirements than probable cause. This would be an unfortunate result: either a vibrant and important technology would fail, or people would give up all privacy just to use the technology.

Even if government actors take privacy in virtual worlds seriously, however, there remains the problem of private data collection. Virtual worlds are enormous cameras. As people live more of their lives online, they will provide more data that will then be collected and processed. Further, the rules that courts and legislators craft for virtual worlds will soon be applied to the real world because the two will begin to overlap. The next generation of computers will be small enough to wear, and powerful enough to record and parse everything around them. We will all record each other’s every action. The Panopticon is a virtual world problem, but it will not remain so for very long.

Joshua Fairfield is an Associate Professor of Law at Washington & Lee University School of Law. He writes and speaks on the governance and economics of virtual worlds.

Preferred Citation: Joshua Fairfield, Escape into the Panopticon: Virtual Worlds and the Surveillance Society, 118 Yale L.J. Pocket Part 131 (2009), http://thepocketpart.org/2009/01/19/fairfield.html.

[Scrap] Virtual World Feudalism

Virtual World Feudalism


Written by James Grimmelmann, Monday, 19 January 2009 [View as PDF]

Second Life is a feudal society. No, not metaphorically. Literally.
Two problems have preoccupied scholars of virtual world law: What is the political relationship between developers and users? And: Should we treat in-world objects as property? We can make progress on both questions by recognizing that virtual politics and property are inextricably linked, in the same way that feudal politics and property were. It is the tenant/user’s relationship with his lord/developer that both creates the property interest and enforces it. The similarity between ownership of land in feudal England and in Second Life suggests that offline courts should protect user interests in virtual items, gradually, without treating them as full-blown modern “property.”

Land in Second Life

Second Life is divided into 256-meter by 256-meter “Regions,” which can be subdivided into smaller rectangular plots. Second Life’s developer, Linden Labs, regularly auctions plots to its residents. Linden also provides tools enabling users to market and securely transfer plots among themselves. Prices range from under $100 for a small plot to over $3,000 for a full Region. Linden assesses landowners a monthly “tier fee,” ranging from $5 for 512 square meters to $195 for a Region.

This description might make Linden sound like a modern local government that auctions public lands, maintains title records, and collects taxes, except for one crucial fact: if you do not pay your tier fee—or if you break any of many other rules of conduct—Linden will seize your land. What offline governments can do only after lengthy legal proceedings, Linden does unilaterally, just by changing an entry in a database. What’s more, Second Life’s Terms of Service give Linden the right to do so for any reason whatsoever.

Scholars, considering this imbalance of power unfair, have called for explicit property rights for virtual world users. They have a point, but full-blown property rights have their own problems. Stronger rights in virtual land would override express contracts between developers and users. These rights would also threaten developers’ ability to run their worlds effectively and could leave them powerless against abusive users who spoil the experience for others.

Linden Labs as Lord

We can resolve this tension by describing a user’s interest as seisin rather than as ownership. A tenant seised of land had sworn homage to the lord from whom he held. In exchange, the lord symbolically delivered the tenant into possession. Thereafter, the tenant owed the lord various services and feudal incidents, and in return the lord was obliged to defend his possession against outsiders to the relationship. Every element of this system maps cleanly onto Second Life. A user swears homage by clicking “I agree” to Linden’s terms and conditions; Linden delivers her into possession by changing an appropriate database entry. She owes tier fees in place of feudal incidents; Linden defends her possession via software-based access controls.

Crucially, seisin intertwined substance and procedure: the tenant’s remedy for disseisin was to appeal to his lord to set matters right. As S.F.C. Milsom writes, This unity applies with even more force to virtual property, which can have no existence apart from the developer’s actions to maintain it. The developer both “makes the grant” of virtual property and is in the best position to provide the “law which protects it.” The same database entry that makes one user an “owner” also triggers the automatic access controls that keep trespassers out.

Second Life even sports a parallel to feudalism’s hierarchical chains of subinfeudation. Several large commercial operations purchase entire Regions from Linden, landscape and subdivide them, and then rent or sell plots to users. Like feudal lords, these “land barons” play a major role in dispensing justice related to landownership. Many of them impose “covenants” on their land, such as a prohibition against running businesses from virtual homes. Tellingly, users upset at a neighbor’s violation of the covenant must look to the land baron for recourse; Linden Labs has no involvement in these local disputes. Similarly, Linden stays out of seignorial disputes between these (land)lords and their tenants. Whereas offline landlords are expected to rely on the state when evicting recalcitrant tenants rather than self-help, Second Life land barons have no recourse but self-help.

Implications for Law

This historical parallel between feudalism and Second Life provides useful guidance for offline courts asked to decide questions of virtual property. After the civil war of 1135-53 disrupted relationships of homage and seisin so badly that custom became unreliable, Henry II provided royal remedies for many tenants whose lords unjustly withheld seisin. Although eventually the king’s law and the king’s courts would control the ownership of land, these early interventions were modest; the king was not hearing land disputes in his own court in the first instance, but merely correcting “failure[s] of seignorial justice.”

Just as Henry II’s reforms led to some supervision of lords’ courts to protect tenants’ rights, so offline courts have a role in defending users’ interests in virtual worlds against developers. But that role does not extend to protecting absolute in rem “property” rights. Instead, a world’s own internal processes should ordinarily be the first and last stop for most questions of virtual possession. For now, offline courts should review only Linden’s adherence to fair procedures in important individual cases, rather than ruling on the legitimacy of its land practices in general or trying to hear virtual land disputes directly. (Of course, just as the king punished breaches of his peace criminally, offline courts can also appropriately hear cases when users do things with serious offline consequences, like laundering money, uploading malware or sending death threats.)

Thus, a workable system of virtual property would have some notably feudal features. Users would have possessory interests, secure against dispossession by other users, and enforced in the first instance by the developer. In return, users would have obligations of payment and loyalty to the developer’s rules of conduct. The developer could not dispossess users without reason, but offline inquests to test the developer’s reasons would be reserved for instances of clear-cut abuse. Similarly, to the extent that the developer allows these “feudal” relationships to develop among users, offline courts should ordinarily acquiesce.

The recent case of Bragg v. Linden provides a good example of a matter that should have been left to the developer’s discretion. Although plaintiff Marc Bragg’s allegations that Linden expropriated his land were explosive, Linden answered them with credible evidence that Bragg had taken unfair advantage of a bug in the land transaction system. That fact alone makes Linden’s suspension of his account sensible. The case settled, but had it reached a decision on the merits, the law should have treated Linden’s response as presumptively legitimate.

Conclusion

This analysis of the feudal dimensions of Second Life should make us optimistic about the legal future of virtual worlds. After all, for all its flaws, feudalism was a functional organization of society—indeed a better one than some of the alternatives. Virtual worlds built purely for play and where the stakes are not too large should remain mostly untouched by the offline legal system. Part of their value is as an imaginative alternative to “real” life.
As for the worlds with greater connection to offline values, we should recognize that they often follow the relational logic of feudal land holding rather than the in rem logic of modern land holding. By doing so, we can propose reforms that do less violence to the communities we’re trying to protect. In time—as indeed happened historically—the natural evolution and growing economic importance of virtual-world communities are likely to lead them to modern property rights. But until then, we should supplement in-world feudal justice, not supplant it.

James Grimmelmann is Associate Professor of Law at New York Law School.

Preferred Citation: James Grimmelmann, Virtual World Feudalism, 118 Yale L.J. Pocket Part 126 (2009),

http://thepocketpart.org/2009/01/19/grimmelmann.html.

[Scrap] Reputation as Property in Virtual Economies

Reputation as Property in Virtual Economies


Written by Joseph Blocher, Monday, 19 January 2009 [View as PDF]

Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-facilitating mechanisms; the economies in virtual worlds such as Second Life and World of Warcraft; and the virtual reputational economies associated with MySpace and Facebook. The first two economies generally involve the exchange of familiar forms of property. But scholars have thus far failed to fully identify or analyze the property underlying the reputational economy. What that economy demonstrates, especially in its virtual form, is that reputation itself—social status and the respect of others—can usefully be understood as a form of property. Strands of this theory appear in law and scholarship, but they have not been tied together in a way that shows that reputation can be property-like even without demonstrating economic value. Virtual reputational economies show that reputation can be gained, lost, traded, protected, and shared, all in property-like fashion, without regard to whether it has independent economic value. In other words, reputation is not merely valuable; it is the new New Property.

Different Virtual Economies, Different Property Archetypes

Virtual economies come in at least three forms, and they each employ and rely on a different conception of property. One kind of economy—the one to which people most often refer—simply involves the exchange of familiar forms of property (books, DVDs, stocks, and so on) through different means. This is not a virtual economy so much as it is an online economy, and its reference points—eBay, Craigslist, Amazon.com, and so on—are simply improved mechanisms of transfer, rather than new forms of property.

The second kind of virtual economy exists in online worlds like World of Warcraft and Second Life. This kind of virtual-world economy raises novel issues regarding security, wealth, and access, particularly because it involves purely virtual forms of property like “Linden dollars” and magical items. The rules and norms governing the protection and exchange of this kind of property, and the adjudication of disputes about it, are still in flux. Moreover, the borders between virtual economies and real-world economies are problematic, as the contributions to this Symposium demonstrate. Nevertheless, the underlying property archetypes in virtual world economies—currency, goods, and intellectual property—are essentially familiar.

There is, however, a third type of online economy that is in many ways just as important as the first two, and which also involves the acquisition, trade, and protection of “property.” This is the reputational economy exemplified by MySpace, Facebook, and gossip blogs. Status fortunes can be made in this economy, but they can also be easily and quite dramatically lost. The importance of success in this reputational market can for some people be just as important as financial wealth—many people’s “lives virtually revolve around social-networking sites and blogs.” Indeed, by now it is old news that millions of people spend more time thinking about their Facebook profiles than their investment profiles.

Reputation As the New New Property

Despite an increasing recognition of the central importance of the reputational economy, and despite a growing focus on the protection of reputation online, commentators and scholars have not yet meaningfully analyzed reputation as a form of property. This is not to say that law has ignored the importance of reputation. Since Blackstone, law has been concerned with the protection of reputation from unjust harm—hence the development of defamation law. Intellectual property law also addresses the acquisition, destruction, and theft of reputation. But law generally treats reputation as property only to the degree that reputation has real-world economic value, as when a business’s valuable trademark is diluted by a competitor. Robert Post, for example, argues that “[t]he concept of reputation as property presupposes that individuals are connected to each other through the institution of the market.” However, none of these discussions suggest that reputation is property-like even when it is not reduced to a real-world market value—in other words, they consider reputation property-like only when it has quantifiable value. As a result, none of these scholars call for a comprehensive theory of status as property, rather than simply as something valuable.

The point is that the pursuit of status can be decoupled from the pursuit of monetary and other economic rewards, and the reputational economy need not ever (though it often does) intersect with the economy in goods and services. Not only is the acquisition of status similar to the acquisition of other forms of property; so, too, are the mechanisms by which it is transferred and protected. Reconceptualizing status acquisition and loss in these terms not only improves the reputational economy metaphor, but creates a framework to think about status conflicts more generally. And if the reputational economy is a useful framework—and it is employed commonly enough to suggest so—then it should be at least as useful to think about reputation as property. That is, Facebookers are engaged in a sometimes-competitive enterprise of acquiring, possessing, and protecting reputation. Through their efforts, they gain reputation, which they then feel entitled to protect (from gossip or insults, for example), to share or give (for example by including friends in a high-status clique or otherwise endorsing them), and otherwise to treat as they see fit. They own their reputations, whether or not those reputations ever interact with the real-world economy.

The metaphor may be applied to more complex problems as well. Reputation, like other forms of property, can under certain conditions be thought of as a communal good subject to a tragedy of the commons. Thus when a faculty member at a prestigious school uses (or “steals”) the shared status of his institution by using its name to lend legitimacy to reprehensible speech (or simply by associating the school with shoddy scholarship) the common status of the institution may suffer, to the detriment of all faculty, even though no other individual faculty member has sufficient incentive or ability to protect it.

Having defined status as a kind of property, it is possible to further subdivide the virtual reputational economies: social networking platforms like Facebook and MySpace present one model; anonymous blogging and commentary another. In at least one important way, the former are more like online economies than they are like virtual world economies—the status they create and destroy exists both online and in the real-world reputational economy. Individuals use their real identities in these forums and often interact with people with whom they also have off-line relationships. Thus someone whose reputation is ruined in the online reputational economy likely loses it in the real world as well.

Anonymous blogging and commentary, on the other hand, correspond to the virtual world economies describe above. The reputational property this type of activity generates exists only online, associated with virtual identities that generally are not connected to any real-world identities. What enables this division from the real-world reputational economy is anonymity, which permits bloggers—or even blog commenters—to gain online status, often at the expense of others, without risking their own real-world status. And as with the online and virtual world economies, challenging problems arise when the two reputational economies meet, as happens when anonymous posters (members of the virtual-world-style reputational economy) attack nonanonymous online profiles (members of the online reputational economy). From a practical standpoint, it is difficult, though not impossible, to identify anonymous online attackers, making redress rare. But from a more theoretical standpoint, it is difficult to replace, with currency or any other kind of “old” property, the reputational property they have lost.

Looking Forward

Property law has evolved incredibly detailed rules to describe, govern, and encourage the acquisition of all kinds of different property, from land to patents. And yet when it comes to reputation—a good that people spend their lives striving to obtain and protect—we are all but bereft. Studies of property and of reputational economies could both be made more effective with a deeper understanding of status as property, not just as something valuable. Such recognition would not require greater formal regulation of status: legal scholars long ago rebutted the notion that where there is no formal law, there is no property. What really matters, as in any well-functioning economy, is that property rules be clear and enforceable, not that they be state sanctioned. The major task for future scholarship about reputational economies is to determine if these reputational norms are clear and enforceable, and whether and how they should be backed by formal rules.

Joseph Blocher is a recent graduate of Yale Law School and a law clerk for the Honorable Guido Calabresi. This short essay is part of a longer project about the relationship between social status and property rules.

Preferred Citation: Joseph Blocher, Reputation as Property in Virtual Economies, 118 Yale L.J. Pocket Part 120 (2009), http://thepocketpart.org/2009/01/19/blocher.html.

[Scrap] 가상세계와 비즈니스의 결합

가상세계와 비즈니스의 결합 (2008-04-07)


"가상세계의 비즈니스 적용은 몰입, 통합, 재미의 문제"

뉴욕에서 열린 2008 가상세계 컨퍼런스(Virtual Worlds Conference 2008)에서는 게임 외에도 다양하게 가상세계를 적용한 예를 만날 수 있었다. 예를 들면, 어제(4월 3일) IBM은 세컨드라이프를 기반으로 한 가상세계 플랫폼인 세컨드라이프 그리드(Second Life Grid)를 호스팅하기로 했다고 린든 랩(Linden Lab)과 공동발표했다. 이 그리드를 통해 기존의 세컨드라이프 기반 위에 비즈니스용 가상세계를 구축할 수 있게 된다. 방화벽 아래 호스팅하는 방식으로 보안을 강화하였으므로, 비즈니스 사용자들이 가상세계에서 민감한 기업정보를 다루는 회의를 열거나 기밀의 프로토타입을 구축할 수 있다는 점이 매력적이다. 동시에, 아바타가 IBM의 보호된 그리드에서 일반용 세컨드라이프로 쉽게 옮겨갈 수도 있다.

린든 랩의 비즈니스 부문 윤진수(Ginsu Yoon) 부회장은 “그리드 보안을 위해 신중한 서버 설계 구축이 필수적이다. 방화벽 뒤에 그리드를 설계하는 것은 쉽지만 다른 세계와 연결하는 것은 쉽지 않은 작업이다. 기업 데이터를 안전하게 호스팅할 수 있지만, 아바타가 기밀 데이터를 가지고 세컨드라이프의 일반 버전으로 이동하는지 서버가 일일이 추적해야 한다는 어려움이 있다”고 조심스럽게 말한다. IBM의 기업보안 수준에 맞출 수 있도록 그리드를 호스팅하는 방안을 놓고 린든 랩은 IBM과 긴밀히 협력하고 있다.

공공 및 개인 섬(island, 세컨드라이프 상의 공간을 일컫는 말)에 이미 진출해 있는 IBM은 그 밖에도 Forterra, Qwaq 및 자사의 메타바스(Metaverse)를 이용해 다양한 가상세계 실험을 수행하고 있지만, 이는 지금까지 비성숙하고 불확실한 점이 많다. IBM이 엄청난 수의 자사 직원으로부터 최신 기업 니즈에 대한 정보를 조사해가며 비즈니스용 소프트웨어와 가상세계를 엮어보려는 갖은 노력을 하고는 있지만 여전히 선명한 결과를 예측하기란 어려운 시점이다.

그 이유는 아직까지 대부분의 비즈니스 종사자들이 가상세계에 대한 필요성을 느끼지 못하기 때문이다. 이들은 원거리에 있는 동료들과의 협업에 대한 필요성은 크지만, 웹 컨퍼런스 소프트웨어 또는 인스턴스 메시지 프로그램 같은 2차원적 도구면 충분하다고 느낀다. 사람들의 개인적인 부분 사이를 깊이 연결한다는 점에서 인스턴트 메시징이나 소셜네트워킹 사이트들은 사업적으로 공통분모를 지닌다. 페이스북(Facebook)을 통해 친구들의 근황을 따르는 사람이라면 링트인(LinkedIn) 상에서 또는 페이스북 자체에서 사업상 연락처를 관리할 확률이 높다. IBM의 Lotus 개발자 그룹은 Connections 소프트웨어를 활용해 방화벽 뒤에서 기업의 기밀한 통신을 위한 중간체로 쓰일 수 있는 소셜네트워킹 사이트를 개발한 바 있다. IBM의 가상세계 연구도 이 트렌드에 영합해 이를 비즈니스에 활용하고자 하는 비슷한 현상으로 볼 수 있다.

반면, 그러한 IBM의 현황에 몇 가지 장애물은 다음 세 가지이다.
1.몰입(Immersion)
몰입은 가상세계의 축복이자 저주라고 할 수 있다. Qwaq의 엔터프라이즈 부문의 Remy Malan 부회장은 필자와의 인터뷰에서 3차원의 매력에 대해서, 현실의 한 공간에 발 디딜 필요도 없이 3-D를 통해 길 찾아가는 법을 배우는 것이 가능하다고 논하였다. 반면, 필자는 몰입의 단점으로 3-D는 스위칭이 쉽지 않아 멀티태스킹 능력을 저하한다는 점을 들고자 한다. 비즈니스 사용자에게 최상의 도구는 여러 프로그램 간을 옮겨다닐 수 있는 신속한 스위칭 기능을 제공해야 한다. 지금 이 기사를 쓰면서도 워드 프로세서에서 웹브라우저, (편집자와 대화하기 위해) 채팅 프로그램에서 이메일 클라이언트로 지속적으로 옮겨다녀야 하듯이 말이다.

2.통합(Integration)
방금 언급한 멀티태스킹도, 워드 프로그램이나 이메일 및 그 밖의 비즈니스 도구들이 인스턴트 메시징 프로그램처럼 가상세계와 연결되어 있다면 더 이상 문제되지 않을 것이다. 이는 궁극적으로 2차원적 운영체제를 3차원의 그래픽 능력이 강화된 운영체제로 전환해야 한다는 뜻이다. 많은 기업들이 이미 이 방향의 선상에 있다. Qwaq는 문서에서 웹페이지까지 거의 모든 파일을 가상 회의공간으로 가져와 프로젝트 기간 동안 모두가 볼 수 있도록 하고 있다. IBM은 Sametime 인스턴트 메신저와 같이 일부 기존 소프트웨어를 메타바스 기능에 연결하고 있다. 이들의 장점은 통합된 환경으로 프로젝트 수행을 위한 변함없이 일정한 업무 환경을-특히, 여러 주 또는 여러 나라에 걸쳐 다양한 사람들이 협업해야 할 때- 제공한다는 점이다. 하지만 이러한 장점이 3-D의 단점을 넘어설지에 대해서는 의문이다. 3-D 환경은 새로운 유저가 내비게이션 하기에 너무 복잡하고, 컴퓨터 리소스를 너무 많이 차지하며 네트워크를 느리게 하는 원인이 되기 때문이다.

3.재미(Fun)
가상세계에서는 재미 역시 축복이자 저주의 양면성을 지니고 있다. 기업체를 대상으로 한 가상세계 전문기업들은 재미를 그다지 강조하지 않는 편이다. 이는 아마, 비즈니스 도구가 아닌 놀이도구를 제공한다는 오명을 달지 않기 위해서일 것이다. 하지만 정말로 비즈니스에 가상세계를 활용해야 한다면 이는 ‘재미’적 요소 때문일 것이다. 가상세계는 유저를 빨아들이는 엄청난 능력을 가지고 있다. 필자의 경우 오직 가상프로젝트를 끝내고 싶은 욕구 때문에 새벽 2시까지 일을 했던 경험이 있다(‘일’이라고 하기엔 의심스럽게 들리겠지만). 가상세계의 재미 요소를 활용한다면, 게임 개발자들이 게이머들을 끌어들이듯이 직원들이 일에 빨려들어가도록 할 가능성은 충분히 열려 있다. 하지만 ‘재미’가 게임이 아닌 전문적인 업무에서도 같은 효과를 낼 것인가에 대해서는 의문점이 남는다.

장기적으로 봤을 때 가상세계를 업무에 활용하는 데 있어서 보안이라는 장벽은 극복할 수 있다. 따라서, 앞에서 언급한 `기업들이 가상세계의 보안문제를 어떻게 다루는가`보다는 기업들이 몰입, 통합, 재미라는 문제를 어떻게 다루는가에 그 미래가 달려있을 것이다.

(테크놀로지리뷰 편집자,Erica Naone)


http://www.technologyreview.com/

[scrap] 세컨드라이프 반고흐 뮤지엄

http://nwn.blogs.com/nwn/2007/07/remake-the-star.html

REMAKE THE STARS

"Great things are not done by impulse, but by a series of small things brought together." - Vincent Van Gogh

It begins with azure mountains, and resolves, by tiny incremental flourishes, into something far vaster. There's much to say about Robbie Dingo's "Watch the Worlds", but first, watch the machinima. The YouTube version linked above is fine, but do yourself a favor, and take the time to download and watch it in a higher resolution:

Best resolution.
Good resolution.

After the break, Robbie explains how he put this truly extraordinary machinima together.

What Robbie Dingo has done is something Akira Kurosawa only envisioned: brought Van Gogh's masterpiece to rich, three dimensional life, and for a brief moment, recast it as a living place. (Brief, for the construction was always intended as a temporary project, "so it's all been swept away now, leaving only the film behind.") But for a breathtaking moment (this is my favorite shot, above) you get to the most iconic of starry nights recast under the rising sun.

"One of the challenges was to make it look fluid and
simple," Robbie tells me. "If I have got it right, then it
should look like something that was thrown together very quickly, but in
reality I worked on this in dribs and drabs over a number of evenings." He explains that painstaking process in further detail:

Mapping Van Gogh's painting to a 3D space

First thing was to set out a spot at the edge of the empty sim [island],
a chair and semi-transparent copy of the original painting floating in the air
to look through in [first person] mouselook. This was
going to be the spot from where the original sketch of the painting was made. I disabled the camera constraint (in the
debug menu) so I could sit my avatar down at this spot and wander the camera
all over the sim when building. This
allowed me to quickly switch back to mouselook to check the
positioning of the various parts (very often) against the original
painting. All of this moving back and
forth has been edited out of the final video.

Creating the initial "sketch" portion

I used the wireframe rendering option in the Second Life
client for the very first section. The sketch
effect was achieved using a combination of post-production video effects (edge
detection and extraction.) I also used
the RenderGlow effect in the client for the window lights and the stars.

Importing Van Gogh textures

Firstly, using the clone tool in Photoshop, I removed the
stars and mountains in a copy of the original painting - leaving only the
swirling wind. This was then
imported to SL as a single high rez image. I calculated the image size and the texture zoom/offset parameters so
I could lay this image across the c.400 tiles forming each wall of the
skybox. Also, I used texture snippets from the original painting to
texture some of the objects (stars, houses, etc.)


On the time it took

Although the building work was not at all sophisticated, this
was quite a challenging project. For me
projects like this are all about the pre-planning (storyboarding and imagining
the result, the bigger picture of the entire project, before I start
building.) All starting with the [Don Maclean] song as
a framework, working towards the climatic moments in the words. I spent a lot of time listening to the song
and looking at the original painting, considering the inner meanings.

Read more at Robbie's blog. And the final masterworks, side-by-side:

Wednesday, July 18, 2007 in Art projects in SL, SL Machinima Permalink

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This piece of Second Life machinima documents a wonderful recreation of Van Gogh's Starry Night as an island in the virtual world: What Robbie Dingo has done is something Akira Kurosawa only envisioned: brought Van Gogh's masterpiece to rich, three dim... [Read More]

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http://digitaldouble.blogspot.com/

[scrap] 도쿄대학 SIM 내 세컨드라이프 미술 전시회 개최

현재 세컨드라이프 내에 도쿄대학 공공정책 대학원 강좌 「에너지·지구 환경의 지속성 확보와 공공정책(약칭SEPP)」가 진행되고 있는 「세컨드라이프 마을 만들기 프로젝트」의 SIM「delidemo」에서, 「Art Museum of 2-Cyoume(2-쵸메 미술관)」전시회가 2009년 1월1일 새해 오픈했다.

이번 전시회는 오픈 전시로서 세컨드라이프 사진가로서 활동하고 있는 'Bark Aabye' 씨에 의한 사진전 「EXHIBITION"Archive"Bark Aabye Photographs」으로 세컨드라이프 가상세계에선 최초로 전시회가 개최된다고 한다.

'Bark Aabye'는 실제 삶과 세컨드라이프 인생의 쌍방에서 활약중의 사진가이다. 세컨드라이프에서는 가상 세계 특유의 표현력을 마음껏 살린 환상적인 사진이나 아바타(Avatar)의 개성을 담은 독창적인 포트레이트등을 촬영했으며, 세컨드라이프 사진의 감성적인 표현력을 추구하는데 중점을 두었다고 'Bark Aabye' 씨는 설명했다.

이번 세컨드라이프 전시 자료는 약 1년반 동안 세컨드라이프에서 수집한 자료들을 선정, 공개하여 전시하였으며. 총 6500점의 스냅샷로부터 선정된 베스트 포토사진만 모아 전시회를 개최한다고 밝혔다.



Art Museum of 2-Cyoume(2-쵸메 미술관)에 텔레포트
http://slurl.com/secondlife/delidemo/198/127/22


도쿄대학 제2의 인생 마을 만들기 프로젝트 - (일본어)
http://www.slplanning.net/j/index.html

[scrap] 구글어스에서 미술작품 감상

컨버전스시대 UCC의 활용

Download Url is:
http://koix.kisti.re.kr/KISTI1.1003/JNL.JAKO200727500206557

컨버전스시대 UCC의 활용
Utilization of UCC in Convergence Era
류철균(Chul-Gyun Lyou) · 박나영(Na-Young Park) 저
pp. 89~98 (10 pages)


목차
요약Abstract
I. 서론
II. 컨버전스 시대와 재매개 이론
III. UCC의 유형
IV. UCC의 활용
V. 결론
참고문헌
저자소개

초록
한국어 초록
참여, 개방, 공유의 이념을 바탕으로 웹을 플랫폼으로 하여 이용자들이 다양한 콘텐츠를 생산ㆍ유통ㆍ소비하는 웹2.0 시대에 들어서면서 UCC(User Created Content)가 주목받고 있다. 특히 UCC를 둘러싼 대부분의 논의가 UCC의 활용을 통한 수익창출에 집중되면서, UCC는 뉴미디어환경에 적합한 새로운 ‘정보상품’으로 인식되고 있다. 그러나 UCC는 정보상품으로서 뿐 아니라 ‘미디어 현상’으로 이해되어져야 한다. UCC는 미디어 계보학의 관점에서, 볼터와 그루신이 제안한 ‘재매개’의 논리를 바탕으로 미디어를 향한 투명성과 불투명성의 욕망에 기초해 두 가지 유형으로 나뉠 수 있다. 본 연구는 IPTV, DMB 등 다양한 뉴미디어들이 등장하고 있는 컨버전스 시대, 기술ㆍ산업ㆍ문화를 아우르는 컨버전스 패러다임 안에서 재매개의 다양한 양상을 바탕으로 UCC의 활용방안을 모색한다.

영어 초록
UCC(User Created Content) is attracted public attention in the era of web2.0 that users create, distribute and consume various kinds of media content through a web platform standing on participation, collaboration and openness. As most discussion about UCC is centered on making benefit using it, it is understood as `the information commodity' which is appropriated to new media environment. But UCC have to be understood not only as the information commodity but as `the state of media'. UCC can be classified into two types based on desire for transparency and opaqueness from the media's genealogical point of view which is the logic of `remediation' that J.Bolter and R.Grusin suggested. In the convergence era that a lot of new media appear, for example IPTV and DMB, this study devise a method of the utilization of UCC from diverse aspects of remediation in the paradigm of convergence.

저자 키워드
사용자생성콘텐츠, 사용자제작콘텐츠, 컨버전스, 재매개, 웹2.0, UCC, User Created Content, Convergence, Remediation, Web2.0

[scrap] Persuasive Games: Video Game Snapshots

Persuasive Games: Video Game Snapshots
http://www.gamasutra.com/view/feature/3784/persuasive_games_video_game_.php


In the late 19th century, photographs were primarily made on huge plate-film cameras with bellows and expensive hand-ground lenses. Their operation was nontrivial, and required professional expertise.

The relative youth of photography as a medium made that expertise much more scarce than it is today. All that changed when Kodak introduced the Brownie Camera in 1900.

The Brownie was different. It was about as simple as cameras get: a cardboard box with a fixed-focus lens and a film spool at the back. It took 2 1/4 inch square photos on 117 roll film, which George Eastman had first used a decade earlier.

Millions of Brownies were sold through the 1960s. The simplicity of the camera made it reliable, and its low cost (around $25 in today's dollars) made it a low-risk purchase for families or even children.

Both camera and film were cheap enough to make photography viable. Easy development without a darkroom made prints possible for everyone.

The Brownie, and later the 35mm camera that replaced it, didn't just simplify the process of making pictures; they also ushered in new a new kind of picture: the snapshot. Snapshots value ease of capture and personal value of photographs over artistic or social value.

The Brownie brought photography to the people, but not without some help. The snapshot concept was borrowed from a hunting term for shooting from the hip, but Eastman contextualized the act for the masses.

For its advertising, Kodak coined the "Kodak moment" and encouraged photographers to "celebrate the moments of your life," as they still do today. Eastman's promise was "You press the button and we do the rest."

What if something similar were possible for games, a sort of video game snapshot?


Game Creation Tools

More than a century after Eastman's simple roll cameras, today's computer culture values a similar strain of creative populism. Websites and software provide tools that promise to "democratize" the creative process.

Cheaper, more powerful hardware and inexpensive, easy-to-use software have made professional video editing and DVD production available to everyone. No-investment on-demand printing have made CD and t-shirt manufacturing a snap. Blogs and one-off book printing services have made written publication easy.

Following this trend (and its commercial success) are several nascent attempts to do for video games what the Brownie did for photography. Big players like Microsoft (Popfly Game Creator), and EA (Sims Carnival) have gotten into the game-maker game, as have start-ups like Metaplace, Gamebrix, PlayCrafter, and Mockingbird.

Microsoft's Popfly service

Areae's Metaplace

Each of these products offers users a slightly different way to simplify game creation. Sims Carnival offers three methods: a wizard, an image customizer, and a downloadable visual-scripting tool. PlayCrafter relies on physics, Gamebrix on behaviors, Mockingbird on goals. Popfly uses templates.

As platforms, each tool relies on the formal properties of different sorts of games. Some differences are obvious: Sims Carnival's Wizard and Swapper tools let people create games very easily by changing variables and uploading new art, while PlayCrafter automates physical interactions.

Formal distinctions are a common way of simplifying the creation of games. Long before Sims Carnival and its brethren, desktop game creation software used genre conventions as the formal model for add-assets-and-script type tools: GameMaker fashions tile-based action/arcade games; Adventure Game Studio makes graphical adventures; RPGMaker outputs role-playing games.

GameMaker

Adventure Game Studio

A focus on formal constraints like character statistics or genre distinctions like moving from screen to screen makes sense from a tool developer's perspective: different sorts of games require different kinds of programmatic infrastructures.

But from the lay creator's perspective, genre is a less useful starting point than topic. "I want to make a game about my cat" is a different sentiment than "I want to make a graphical adventure game." Photography doesn't make such a distinction; a camera can just as easily take a landscape as a portrait.



There is No Game Camera

A fundamental difference between Eastman's Brownie and today's DIY game tools emerges: game creation can never be an automated process. Taking a photograph is easy partly because so much of the process goes on without us. After you press the button, light bends through a lens onto the emulsion of a film or the light-sensitive surface of a CCD.

Development can be outsourced to Wal-Mart and digital images are ready for immediate printing or posting. Video is similar; editing, titles, and sound are all optional but easily added with tools that come with every modern computer. Writing isn't automated like image-making is, but it 's a skill everyone uses in their daily lives; it's the printing or publishing that's better facilitated by new tools.

Conversely, video game creation exercises few common skills. It requires programming of some kind, or puppeting a tool that does the programming for us. It requires animation, sound design, and environmental design.

It requires designing for interaction, which can be complex even when the result is simple. It requires careful tuning even just to produce an experience that functions, let alone functions interestingly. There is simply no magic box we can put in front of the world which, when a button is pressed, turns what it sees into a video game.


Snapshots are Personal

People were already fairly accustomed to using and creating images, video, and writing before the social web came along to make it easier to distribute them. That doesn't mean people were creating good images, video, and writing: just think of the last time you sat through someone's child birthday party video, perused their family photo album, or read the soddy poetry from their courtship.

The reason other people's cherished objects are just crap to you, to borrow a line from George Carlin, is because they have invested them with sentimental meaning. A snapshot has value only for the very few, even if it can be shown to the many.

This is a principle many portrayals of web 2.0 misunderstand. The so-called long-tail economics of web aggregators make a business out of offering high-quality content for everyone, low-quality content for no one, and everything in-between.

Despite the tabloidesque tales of ordinary people made YouTube stars that litter popular magazines, the fundamental benefit of simple creation and publishing tools lies in their ability to let people make things for one another on a very small scale, one traditional marketplaces can't sustain.

And what are the things people tend to make first, for the smallest audiences? Personal things, things that speak between themselves, and their friends or family. Snapshots, of a variety of sorts. All of those millions of photos or videos or blogs about vacations or pet tricks or hobbies add up.

The outcome of such work isn't important because it's good; it's important because it holds meaning for its creators and their kin. No matter what the VCs and technopundits may say about sharing and aggregation, YouTube and Flickr and the like function as social media because they function first as private media. Our notion of "private" has just expanded somewhat.

If you look closely at sites like Sims Carnival, you'll find the snapshot games hidden among the much less interesting DIY attempts at mainstream casual games. Games about crushes, games celebrating birthdays, games poking fun at celebrities. That site even has an "e-card" section for such games, and premade templates to create games about kissing a date, icing a birthday cake, or celebrating the holidays.

Sims Carnival's tools make the customization process more like Eastman's "we'll do the rest." It's easy for someone to insert fixed assets like text and images -- the things they already learned how to create easily in previous eras.

The most successful snapshots on Sims Carnival are not good games compared to casual games, and it's wrongheaded to compare the two. Rather, the successful snapshots are good games for their creators and those with whom they might share their efforts.

Consider a particularly telling example, Dad's Coffee Shop. The game was created with the Swapper tool, by replacing a few assets from the stock game Fill the Order, a simple cake shop game. The gameplay is identical; the player drags the correct cake to match a passing customer's request.

Dad's Coffee Shop's creator has added occasional photos of her parents, and this important description: "In loving and respectful memory of my father who never met a stranger." Like a snapshot, the game has value because of the way it lets its creator preserve and share a sentiment about her family. Likewise, you and I can appreciate it not as the crappy casual game that it is, but as the touching personal snapshot that it also is.

Or consider You're Invited to go to heaven, a simple quiz game created in Sims Carnival's Wizard tool, which asks a series of step-by-step questions to generate a game. You're Invited is a rudimentary example of Christian evangelism.

The game poses just a single question, "Who is the Lord of your life," and offers four answers: Chris Brown, Orlando Bloom, Zac Efron, and Jesus Christ. The "correct" choice is obvious, and it's tempting to write off this game as trite, even worthless.

Its single question would seem barely to qualify it as a quiz game, a genre itself on the very fringes of the medium. But there is something deliberate and honest about its simplicity: this is not a game meant to inspire conversion or even head-scratching; it's just a little touchstone in someone's day for reinforcing what's really important to the believer.

The game somewhat resembles the inspirational photo or message pinned to a refrigerator or carried in a wallet. It serves a simple function: to remind its player that God, not an entertainer, is worthy of worship.

If You're Invited to go to heaven offers a modest critique of the sea of media fandom, plenty of other snapshot games on Sims Carnival do just the opposite, celebrating a favorite personality cult. Lately, a popular example is teen idol Joe Jonas, who has found his way into a number of Sims Carnival games. One popular exmaple is Wash Joe Jonas, a variation of a dog-washing original created by Sims Carnival staffers.

As with most snapshot games, gameplay is quick and almost meaningless on its own: the player moves a mouse frantically to suds up Jonas before time runs out. Its purpose is simple and obvious: it offers a simulation of an intimate (if weird) relationship with a pop icon, one the player is unlikely ever to experience in real life.

The game functions like a wall poster or a printed notebook, or even like a Photoshop job that inserts teen beside heartthrob. When played, the game works as a kind of snapshot effigy, a thing to create sighs and coos and then to be put down again.


From Democratization to Personal Relevance

"Democratization" is an awfully haughty way to describe new ways of using old media, but it's a term you often hear among the Internet elite. Eastman's cameras were "for the masses," like the Model T., and web services like YouTube and CafePress certainly are as well.

But whether or not they deserve to be confused with self-governance and citizenship is another matter. Silicon Valley's perverted libertarianism has conflated technological progress and social progress. Another conception is needed.

There are lots of things one can do with web-based game making services. One of them is to try to create hit games that generate ad revenue and earn public renown. Another is to create art games meant to characterize the human condition, like I recently tried to do with the Sims Carnival Game Creator. But perhaps the most interesting uses of these tools are the informal ones that so closely resemble snapshots in spirit and function.

Some inventions, like the Brownie, make a previously complex creative process much easier. Yet the Brownie alone did not invent informal photography. It was just a tool. People had to be taught how to use it, which Kodak did through a lot of hand-holding, careful marketing, and patience.

Such is the next challenge for the video game snapshot. In this respect, the Sims team's effort to seed their site with examples for remix is an admirable start. The problem is, they are examples that aspire a little too much toward real casual games, a notion reinforced by the site's traditional genre categories (action, adventure, racing, shooter).

The Brownie teaches us that snapshots aren't just good pictures created easily thanks to simple tools. They are also good pictures -- or games -- created for different purposes. The future of video game snapshots will require platform creators to show their potential users how to incorporate games into their individual lives.

The result could be very important. The snapshot didn't just popularize photography as chaff, it also helped more ordinary people appreciate photography as craft. The successful game creation platform will be the one we can say the same of, someday.

[Brownie photograph, by Håkan Svensson, used under GFDL.]