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Julien Mailland on "The Game That Never Ends: How Lawyers Shape the Videogame Industry"
01:10:25
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- [00:01]
Lee Vincel
It's the Smucker's Uncrustables podcast with your host, Uncrustables. Okay, today's guest is rough around the edges.
- [00:09]
Julian Miland
Please welcome crust.
- [00:11]
Lee Vincel
Thanks for having me. Today's topic, he's round with soft pillowy bread. Hey.
- [00:15]
Julian Miland
Filled with delicious PB and J.
- [00:17]
Lee Vincel
Are you talking about yourself? And you can take them anywhere. Why'd you invite and we are out of time. Are you really cutting me off? Uncrustables are the best part of the sandwich. Sorry, crust.
- [00:31]
Julian Miland
This episode is brought to you by FXX and Hulu. Futurama returns on September 15. Blending heartfelt moments with razor sharp humor while accidentally saving the day. The Planet Express crew is back, defying gravity and common sense. From the creator of The Simpsons comes 10 new episodes where the romance is hotter, the threats are bigger, and the action hits harder. Don't miss the all new season of Futurama returning September 15th at 8pm Watch it on FXX or streaming on Hulu. Pro Savings days are back at Lowe's. Milo's Pro Rewards members save even more with limited time doorbuster deals. Save $5 on 24 count. Contractor's Choice 42 gallon trash bags now just $14.78 plus get your choice. Select Dewalt Elite series saw blades for $9.98. Not a pro Rewards member. Join for free today at Lowe's. Valid through 9 17. Selection varies by location. Wall supplies last loyalty programs subject to terms and conditions. Seelowe's for details. Subject to change. Welcome to the New Books Network.
- [01:36]
Lee Vincel
Welcome to Peoples and Things where we explore human life with technology.
- [01:42]
Julian Miland
I'm Lee Vincel.
- [01:59]
Lee Vincel
You know, I was thinking of starting this introduction off with something like, you know what kind of technology studies I.
- [02:07]
Julian Miland
Would like to see more of?
- [02:08]
Lee Vincel
Then I was gonna say studies of law and technology, but then I remembered a conversation I had with a buddy of mine about the concept of more. It was with computer historian David C. Brock. That's the historian, not the Clinton administration dude. Because I don't know if you know this, but the field of computer history, especially in the guise of the computer history organization sigsys, sometimes erupts into volcanically hot debates about method and about what good history looks like, what we want to see more of and what we want to see less of. Like they have to lock down the listservice. Please don't think I'm kidding. It's no bueno. And I was talking about this with David and he said, you know what? I want more of everything. I love it all. It's delicious. And I thought that was about the nicest and best thing you could possibly say in that situation. But then I thought, well, is everything really delicious? I mean, I've tasted rotten fish. There are some ways of doing technology studies that I think largely amount to rotten fish. You will not be surprised to hear that. Do you want to hear that rant? Sometimes sir, but today I'm like, why bother? I'm just not in the mood. I feel like, eh, more constructively perhaps I'll say a thing I really love in this world is a deep, beautiful, nuanced study of the relationship between law and technology. And of course that fits in a way because some of my work has focused on the history of technology regulation, and there I was explicitly interested in how regulation shapes technological change, both production and use. From there, it's just one short step to the broader question of how all law impacts the way we make and use technologies, including what we do when there is harm. I love this shit. And we are lucky that we have so many examples of good work on technology and law today. I mean, to start with, I am indebted to mentors of mine like Steve Usselman and Richard John, who taught and showed me how to look into topics of law, and indeed who'd increased my thirst for the topic and my looking for it. And then I think of folks I don't know, like Khan Diaz, Christopher Beauchamp, and Kate Epstein, who we'll have a P and T episode out with here in just a few months. And I know too, there's a million other people who aren't coming to my mind right now on this gloomy, gray Blacksburg, Virginia day in a week where I've gotten too little sleep. That's just a starter list. The point is, we're so lucky. And because I love this shit. Well, I got really excited when I saw an announcement for a book titled the Game that Never How Lawyers Shape the Video Game Industry by Julian Miland, Associate professor of Media Management, Law and Policy at the Media School of Indiana University, Bloomington. And I look back this morning, in fact, and the book announcement came out on Sigsys mailing list. There you go. Big ups to Sigsys. Love you freaks. Mylan's book examines key moments, beginning in the 1970s, in which legal decisions influenced how the video game industry worked and how law shaped business and technology strategy and vice versa. Our conversation touches on the book's three major intellectual property, freedom of speech and international law. And you know, I really had a blast talking with Julian. We ended up in some wonderful rabbit holes together. And we also spend a little time in our conversation talking about his next project, which is a history of Tetris. I think, again, focused on law. And that just sounds fun as hell. So that was good too. You know, there's a lot of darkness in the world right now. And if you are feeling that acutely, my heart goes out to you. I believe that one of the many things that makes life worth living is that there is also so much, so much beauty, one object of beauty out there. And there are so many, right? Is a good study of law and technology. More of this, please. I keep going back to the buffet and piling up my plate. It's delicious. Julian has given us a tasty little morsel and talking to him about it was such a pleasure. And so that's why I say to you, truly. Hey folks, get excited. Julian, thanks so much for taking the time to talk to me today.
- [07:00]
Julian Miland
Thanks for having me on the show, Lee.
- [07:02]
Lee Vincel
So the Game that Never Ends is a neat book if you're explaining it to a stranger, maybe a, you know, a non academic stranger. What do you say the book's about? What were you trying to do with it?
- [07:12]
Julian Miland
Sure. So the book is a legal history of the video game industry. And the reason I wrote the book is because in the past, video game histories tended to be one, very journalistic and poorly documented and two, really focused on the great inventor, right? The guy who did Mario, the guy who did Tetris. But the reality of the thing is that the industry, the content of the game, who can make games, what gamers can do with their platforms and with their games, is dependent on a whole lot of hidden forces. Commercial forces, but also legal forces. And illegal work is usually very hidden. And I know that well because I'm a technology lawyer, okay. I practice in Cinco Valley and in Europe for a number of years. And the legal work is hidden in part because of confidentiality reasons, but also in part because it's pretty boring, right? When you're a salesperson, you pitch the product and not what goes behind. So with this book, what I try to do is to show all of this hidden force that are at play in the video game industry, including those legal forces and the role of lawyers, lawmakers, judges, administrative agencies and politicians in shaping the video game industry.
- [08:37]
Lee Vincel
Very nice. And how did you get specifically started down the road of this book? You said earlier you wrote a book about Minitel, is that right? So how did you come to be like, I think I want to write this kind of. This history of video game law.
- [08:49]
Julian Miland
Absolutely, yeah. So I read this book called Minitel with Kevin Driscoll from the University of Virginia, which was the history of the first really big computer network on a retail level in the world, which was in France, was called Minitel. So it was a technology history. And I was looking for my next project and I saw a talk by Referred Gwyntz, who is one of the editors with Henry Lowood of the series in which the Game that Never Ends, which is the new book, came out with MIT Press Game Studies. And Ray was presenting his book on Atari design. And he's interested in the Atari Coin Op world. And his point was to say, if we want to understand the history of Atari Coin Op, we have to look beyond the game designer and we have to look much more broadly at other things, including people who design the cabinets, because that is part of the gaming experience. And I remember vividly thinking in my head, you know, you're right, but we need to look much more broadly, right?
- [09:55]
Lee Vincel
Yeah, yeah, yeah. Go even broader.
- [09:56]
Julian Miland
Right, right. We need to look at the legal department, because before that cabinet can roll out in production, there's going to be a lawyer there who's going to try to think of the worst and be like, well, maybe we can have this design. We can have that design. So I told Red that, and he said, you know, I'm not a lawyer, but you're a lawyer, so why don't you write that history? I thought, well, this is a great idea. And so. So that's how kind of the book came to. Came to being. And I was. I had never written about video games before. I'm a casual gamer. I have some machines behind me, including my Atari 520ST, which I had in high school and love very much, and of course this Atari VCS here. But I'm not, you know, a hardcore gamer or anything like that. And so I thought, because I didn't know anything about that industry or the law of it, I thought it'd be a really fun project to do, especially because trying to figure out the legal history of any industry is really looking for a needle in the giant, giant, giant stock of hay.
- [11:00]
Lee Vincel
Yeah, yeah. I mean, I'm kind of. One of my fields I work in is business history. And I'm kind of, just because of my mentors and stuff, kind of predisposed to industrial pictures, like thinking about industries as industries. And that's something I really enjoyed about your book, is that felt like so often when I read video game History, it really is about designers and games and very kind of narrowly construed, but I really felt like it was in a picture of an industry trying to discover itself as an industry and its limits and all these kinds of things. So I really like that aspect of it. The other thing I was thinking about when I was reading and you talk about this a bit is I think we all have kind of. Well, those of us in academia who have encountered legal history before have kind of like this nightmare picture of what legal history can be. It was kind of like these long lists of, like, court decisions, basically. And, you know, that stuff's like, if you're working on a topic, that stuff can be extremely helpful and you're very glad someone did the work, but it's not something you want to read at night when you're tired as an example. So you kind of take a different approach than that one. So talk a bit about that.
- [12:10]
Julian Miland
Yeah. So, you know, as a lawyer and someone who studies Internet law and policy, I've written a number of articles that non lawyers, I think, would think are probably the most boring thing they've ever read. Right. And that's how. But it's. That's just how the legal craft is, because you have to be so precise, though no stone can be left unturned, that the style becomes. Becomes really dry. And I didn't want to write another law journal article. I wanted to write a book for non lawyers, Right. A book for people interested in the industry, and said, look, if you want to understand the industry, you have to look more broadly. And these are the fours that are hidden. Right. But to do that, I had to write it in a way that would be legally thorough, but at the same time entertaining. And what I try to do in my work, and I spend a lot of time trying to craft that. That text is to bring the techniques almost of non fiction, but nonfiction, good writing. Some of my favorite writers, or Tom Wolf and Hunter S. Thompson. And so when I try to write this legal history, I was like, okay, how would Hunter.
- [13:31]
Lee Vincel
The Gonzo approach? Yeah, the gonzo approach.
- [13:35]
Julian Miland
Exactly. Exactly. Right. So, yeah, how would Dr. Gonzo, the good doctor, go about writing this? How would Tom Wolf write about this? Because these are people who sometimes write fiction, but also write a lot of nonfiction, but it's not boring. And so that's what I was trying to do. And in a way, I think this departs from a certain academic tradition where you're kind of told when you're trained to be boring. And I've been Told many times as a grad student, this is an interesting topic, but you need to be more boring, right? Otherwise you're not going to be taken seriously. So I tried to say, okay, look, I'm not going to do that anymore. I'm going to try to do the gonzo approach. Right, The Tom Wolf approach to that.
- [14:22]
Lee Vincel
I wanted to ask you about the kind of research you did for this, but also I feel like connecting back to something you just said a minute ago. How did you start to get your head around this topic and figure out what the law of video games even was?
- [14:41]
Julian Miland
Yeah, so there's different kind of themes in the book. And for each of these themes I had to use a different methodology, Right? So three of the themes are. One is engineering in the law, right? And all of the disputes around patents and who can make games for what platforms, et cetera, et cetera. A second theme is freedom of speech and video games. And in the United States, it's really crystallized around pinballs, first that were seen as a corrupting influence, and then violent video games, starting with Coin op in the late 70s and then going with Joe Lieberman's crusade after Mortal Kombat, et cetera. And then the third theme is international kind of global regulation. So for the First Amendment part, it was actually really easy. All I had to do was look at cases and then try to distill them. If you look, for example, at the Brown case, which is the case in 2011, where the Supreme Court said, government, you cannot regulate violent video games and you cannot force a rating system because that would be violation of First Amendment. That case is very, very dry, very, very long. And so I try to kind of open it up and bring in anecdotes and make it more fun. But that was easy to research because it was mostly case based. Then I interviewed a few politicians, particularly in Indianapolis, because there was a big case there. But that was really the easy part. The really hard part was to figure out how law plays with engineering. And so to start this really, I. I looked at a big stack of hay. And that big stack of hay was the Silicon Valley archives at Stanford. And I was lucky that Henry Longwood, who is one of the series editors, runs the archives, who had really, really great access. And I looked at the papers from the Atari folks, right? So there's a lot of Atari stuff in there. And these were papers left by engineers like Al Alcorn or, you know, business people. And I just sorted through this to try kind of see if they were legal documents, right? If they were letters from lawyers or annotations, you know, that would say, hey, let's run this by legal or something. So I started with that and then I went to interview Al Alcorn, who was very, very kind and spent a lot of time with me and kind of gave me pointers and telling me how his interactions with lawyers went back in the days of attorney in the 70s and gave me some names. And then from there I was able to start talking to lawyers in the industry. Now one of the things that's really, really tricky about doing a legal history is that the legal craft is secret by design, right? As lawyers, we have a duty attorney client privilege, meaning that we're not supposed to talk about anything that our client tells us, right? And that's for the, the protection of the client. And so when I worked in industry, you know, I mean, my mortal enemies were really, you know, the, the PR people and the sales people, right? It's like I was always like, okay, don't, don't say anything to the media. And so, you know, putting my, my, myself in the shoes of the lawyers I spoke with, I thought for sure I would hit, you know, a wall. It turns out retired lawyers are more talkative than, okay, good non retired lawyers. And also, you know, I purposefully stopped most of my inquiry in 1995. The reason being one, because these lawyers are retired. Two, because a lot of these companies are defect. And so because they don't exist anymore, there is no client anymore. Because there's no client anymore, there's no privilege anymore. And so that's, that's the reason, you know, that's one of the reasons I focused on also on these companies, of course. One, because they're iconic. But two, because they've, they've gone bankrupt eight times. The name might still exist, but the comment itself is gone. So that's what made it easy. But it was really a kind of piece by piece. It took a while to really get kind of that.
- [19:15]
Lee Vincel
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- [19:29]
Julian Miland
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- [19:31]
Lee Vincel
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- [20:03]
Julian Miland
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- [20:06]
Lee Vincel
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- [20:11]
Julian Miland
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- [20:16]
Lee Vincel
C mintmobile.com so you start the historical part of your narrative with Atari Pong in the so called 483 patent. Is that how you say it?
- [20:26]
Julian Miland
Yes. Yes. You call the patents by their names.
- [20:29]
Lee Vincel
Yeah. So tell us, tell us a bit about that story. And you know, why you started there. And you know what it kind of allowed you to see.
- [20:36]
Julian Miland
Yeah. So it's a really interesting story because it shows you kind of inflection points in the industry. Right? And that's one of the things that I was trying to show with the book, which is not so much. I wasn't trying to get a complete history because it's not possible. But the point of it was to use kind of these vignettes, right? These anecdotes and say, look, these are inflection points in the industry. And if you read them, it makes you understand how the law influences industry. And I'm not purporting to be comprehensive in any way, but those patents were very, very interesting. So what happened in the early 70s is that as with any invention, a number of people tend to invent the same thing at the same time. Right? And of course it leads to a rush to who's going to be the first to get a patent? Right. And of course that leads to a lot of litigation. In the case of Atari, it was very, very interesting. So Bushnell had seen a number of things, including Space War when he was a student at Utah. And then he had seen, of course, the Magnavox Odyssey that was put forth by Magnavox. And so he designed a circuit that would enable his first games to function. And that was a patent called the 483 patent. At the same time, Bill Rush at Sanders developed a technology that did kind of the same thing. And that was the basis for what would become the Magnavox Odyssey. And he got his own patent called the 507 patents. And these are very, very complicated documents. Anywho, Magnavox decides that Bushnell is infringing on his patent. Bushnell says, no, my patent is a, you know, different patent. And they go to war. And Atari at some point realized, and this is a very interesting story of. Of David versus Goliath. Etori realizes they're gonna get. You know, it's. It's so costly. Yeah. To defend a patent lawsuit. That even though. And I think they were right, I think the 507 patent, the Magnavox Sanders patent, should not have triumphed the way it did. But it did. But Atari realized, look, this is going to take us bankrupt. We don't have enough money to do that. So Bushnell basically kicks the lawyer out of the room. And the expression I got from his lawyer, Lon Allen, he said, look, Bushnell kicked the lawyer out of the room and went to see the Magnavox people and said, look, let's settle. Let's settle this. And he had this brilliant idea where he said, look, I'm going to give you a million and a half Magnavox, Okay? We're going to mutually recognize that both our patents are awesome. I'm going to license your patent, the 507 patent. But if any competitor of Atari infringes on your patent, you're going to sue them, Right?
- [24:02]
Lee Vincel
Right.
- [24:03]
Julian Miland
So what Bourgeois does is that not only he covers his butt and, you know, is able to move on with his life and come up with this machine, the VCS, which is based on Sanders Magnavox 507 patent, but now he has the power of Magnavox, which at the time was this huge, huge behemoth. Right. That's all these TVs. So now Magnavox is suing all of Atari's competitors, and they're so big and their lawyers are so good that all the competitors lose, and they end up being forced to license the 507 patent from Magnavox. But this time, they're licensing it for x percent of the sales. So what goes on now is that Atari settled for a flat fee. And now if they can scale, they're going to make a lot of money. But all the competitors are paying a percentage, so they can't actually scale the cost of that patent. So that did give Atari an interesting advantage. And so while they're selling a vcs, companies like Mattel with Intellivision and Activision are getting sued mercilessly by Magnavox and spending zillions of dollars. So it was a brilliant move by Bushnell. And amusingly, it worked without lawyers because he kicked them out of the roof.
- [25:28]
Lee Vincel
I'm sure they would have told him not to do that. Right. I mean, that would have been standard advice.
- [25:32]
Julian Miland
Oh, Absolutely. And I found in the Circuit Valley orcasters, you know, exchanges of emails, of letters between the lawyers and an attorney, and they say, oh, we're completely confident we're going to win this suit. And by the way, here's our bill for a million dollars.
- [25:50]
Lee Vincel
Yeah, yeah. No, Legal costs are a really big theme in the book, actually. I mean, there's so many contexts where, you know, the large incumbent firms can afford it and all the small firms, including all the. Later in the book, all the indie kind of indie startups, just can't handle the costs.
- [26:09]
Julian Miland
Yeah. And I do have a chapter in the book called to sue or not to sue. That is the question. And in it I talk about strategies, but, you know, do you sue? Do you not sue? And these are very interesting strategies because they're not just dependent on who is right and who is wrong based on the law, but on does it make sense to sue or does it make sense not to sue? Does it make sense to settle or not? Right. So, for example, in the early days of the coin op industry, everybody was competing what Atari was doing, right? It wasn't very difficult to reverse engineer a coin op thing because these were pretty simple circuits, right? So when Atari would roll out a new Karna machine within three months, someone else would make one that did the same thing, right? And if you look at Pongs, there are literally thousands of Pong clones. And so Atari could have gone and sued all of these people. But I figured, look, a lawsuit's going to take two years, right? A game, a coinout game is obsolete after three to six months. So there's no point. And they put out this really fun ad in one of the industry magazine called the Atari Bandwagon. And they have the Atari engineers on a wagon designing new con ops and have the competitors chasing them and trying to get on the bandwagon. And the subtitle is we know what we're doing, right? The idea that Bushnell had was like, look, let's not spend money suing people. Let's spend our money innovating. This way, we're always going to be one step ahead and the distributors are going to buy our product and not the competitor's product that are coming too late. So in this case, Atari could have crushed all these people in court, but one, didn't have the resources to do that, and two, they make a strategic decision not to sue. On the other hand, Magnavox now has this patent, the 507, right. Which Atari has said, oh, it's a beautiful patent we recognize it. Magnavox spent all of its life or the rest of its time suing competitors of Atari because their industrial situation was that they were an incumbent that was getting crushed in the TV market by the small Japanese manufacture manufacturers. Magnavox was a dinosaur that was dying. And so they basically switched their business model from making TVs to being a patent troll. They were one of the original patent troll. And their business model is, let's just sue someone to make money instead of innovating. Let's prevent innovation from happening. And that was in part driven by Ralph Baer, who is a person who I never met, but from greeting his stuff, you know, it looked like he had a massive ego. He thought he invented the video game industry, even though, amusingly, the 507 patent was not designed by him, but by a guy named Bill Rush. So he had nothing to do with it. But Bear had this fascination and this obsession to have his name recognized, that it figured if Magnavox sued everyone and crushed everyone in court, that would put, you know, the Odyssey kind of as the OG of video games here.
- [29:37]
Lee Vincel
Another thing I wanted to ask you about is this interesting distinction that you make between that I really like that you make between engineering on the one hand and legal engineering on the other. So talk about that, because I think that this is a really key kind of point that you're making about kind of the legal ecosystem that firms kind of operate in that are making technologies.
- [30:03]
Julian Miland
Yes. So what I call legal engineering is the creation of novel legal argument to respond to changing environments, external environments. And that in the book is discussed in the context of third party software. And there's a pair of very, very significant cases. What happened, if we want to rewind just a little bit, is that when the console industry started with Magnavox and Atari, the model was. The industrial model was a bundled model. So the company making the console was also the company making the cartridges for the console. Right. So you bought an Atari VCS and they bought your game from Atari until for circumstantial reasons, the top four designers, game designers at Atari, get sick and tired of Atari because at that time they had been bought by, by Warner and kind of lost the fun mojo and decided to leave. And they created a company called Activision with a businessperson named Jim Levy who came from the recording industry. And in the recording industry, it's a debundled model. Right. You get a company making a record and a company making a record player. So it makes sense to be debundled. So they debundled that. And they said, okay, Activision is now going to make cartridges for the Atari vcs. Atari sued Atari, which was now Warner, Bushnell Alcorn were at the beach at that time. They had retired from that. And so Warner sued Activision and said, you can't do that. But they had no good legal arguments. And so they could not prevent Activision from doing a third party software in the book. And I go in great details into what the legal arguments are if our audience wants to look at it. But in any event, that opens the doors to the third party software industry. And that in the United States kind of leads to the video game crash of 1983.
- [32:24]
Lee Vincel
Yeah, I was going to ask you about that.
- [32:25]
Julian Miland
It's fascinating because basically what happened is all of a sudden you got hundreds of companies making games, but the market for video games at the time is pretty small, right? So the pie, only so many players can survive when the pie is small. And so that leads to too many games. Plus it's hard to make a really good game, right? So most of the games became crappy. People became very disappointed because dad brings the newest video game and it's not the right video game. It sucks. Yeah, it's terrible. Blah, blah, blah. So that led to an industry crash in 83, amusingly, 25 minutes or something before Warner announced his results. The CEO of Atari, Ray Cassar, dumped all of his Warner shares 20 minutes before that. So it was clearly insider trading. But the SEC being what it is, just gave him a teeny little tap on the hand and said, you bad boy, don't do that again. Anyways, the industry collapses. And soon thereafter, Nintendo decides to enter the American market. And they realize that a way to make sure this doesn't happen again is to control who can actually make cartridges for Nintendo. But they knew that, didn't have any legal arguments. So they use an engineering technique to do this. And that's called a lockout chip. Okay? And a lockout chip is a set of instructions that are burned into one, a chip in a console and two, a chip in the cartridge. And that chip is proprietary, it's secret. There's a patent on it, and if you don't have it, your cartridge is not going to work in Nintendo system. But of course, locks, any lock can be broken, any safe can be open. And so soon thereafter, companies that want to make games for the Nintendo Entertainment System figure out a way to break that lock right through reverse engineering. And two companies do that. One of them is accolades. And I do that for the Sega The Sega Mega Drive. And the second company is Atari. And they break the lock for the Nintendo. Now Atari is no longer Atari, it's been sold for parts by Warner. It's now a completely different company. And they go for their software under the name Tangen for a variety of other legal reasons included in contracts and non compete. And I won't bore you with this here, it's in the book, if our audience cares to look at it. But anyway, so this company, Atari, Tangen, breaks the Nintendo lock and starts making games on their own, including Tetris. And that was a big, big blow for Nintendo because Tetris was the biggest game at the time. The biggest game at the time. And if Atari, which happened to be Nintendo's mortal enemy, could make Tetris, that would have been a problem. And so this is the cartridge, the illegal Atari cartridge, Atari tangent cartridge for Tengen. So there were no legal arguments to prevent a third party software industry. So you resort to engineering argument, engineers respond to, engineers break the lock. And this is where legal engineering comes in, is to counter the engineers who have broken the first engineer's lock to say what you're doing is illegal, reverse engineering is illegal. And they come up with very, very elaborate and complex legal argument that revolve around copyright law and intermediate copying. I go into details in the book, but the bottom line is that thankfully judges realize that if you're going to ban reverse engineering as a whole, you're going to basically ban innovation. Right. Because most innovation, innovation is basically a recombination of existing things.
- [36:38]
Lee Vincel
Emulation is extremely critical to innovation.
- [36:41]
Julian Miland
Absolutely. And so in this pair of cases, which is the Atari versus Nintendo and then Sega, which is accolades to Jersise, reverse engineering is fine. There's some caveats that I go into in the book, I won't bore you with that now, but this reverse engineering is allowed. And that as you mentioned, leads directly to emulation. And that is the Sony vs. Comectics case where a company called Comectics did a virtual PlayStation and by reverse engineering the PlayStation, of course Sony did not like that, sued Connectix, and the Connectix court uses the Sigen accolade. And attorney Nintendo cases said, no, this is totally legit. And so all of the emulation that we have now in the video game world comes from this pair of cases. The fun twist in this is that one of the caveats for doing reverse engineering of software in a way that is acceptable to the courts is that, and it's an old British expression, is your lawyer's hands have to be clean. And if you come to court with non clean hands, you will lose. So the fun thing is that Accolade had properly reverse engineered the lockout chip for Sega. So they were in the clear in the Atari Nintendo case. The court says it's totally legit to reverse engineer. Except you. Atari didn't. And what happened? And this is a blunder by their lawyers. Atari has had a very bad experience with their lawyers. They keep, you know, it keeps kind of blowing in the hands. Atari had not properly reverse engineered the Nintendo. And what they did is that their lawyers went to the US Copyright office where the code for the lockout chip was being held in escrow. This is what you do when you have software you want to protect. You put it in a copyright office, but it's sealed. Nobody can see it. Unless if you're being sued by a copyright holder, in order to defend yourself, you can actually ask the copyright office for a copy of that code. So what Eteri did is that they went to the copyright office and said, nintendo is suing us and in order for us to defend ourselves, we need a copy of that code. Corporate office didn't check. They said, okay, here's the code. Well, the problem was Nintendo wasn't suing Atari at the time.
- [39:11]
Lee Vincel
So that's beautiful.
- [39:13]
Julian Miland
So when Nintendo eventually sues Atari, the judge says, well, yeah, if you reverse engineered that in a legit way, it would have been fine. But you, sir, your lawyer's hands are not clean. And therefore you lose. Atari gets crushed again by Nintendo, Atari Tengen goes bankrupt again. So fun, fun twist in that, in that history.
- [39:35]
Lee Vincel
So how does the, you know, the. I think widely loathed in many circles, Digital Millennium Copyright act of 1998, like Shift these things?
- [39:46]
Julian Miland
Yeah. So that for me will be the next frontier of research. Again, I stopped my inquiry in this field in around 1995 for the reasons that I told you. But the DMCA, which is rightly widely loathed, I think really changed the game by preventing the circumvention of lockout chips and therefore preventing a number of activities which were previously authorized, like copying a cd. I think you and I, you know, come from the time where when you had. When you had a game on a floppy. This is Tank Platoon by macropruse for the 520st. You could easily copy it for yourself just in case that that disk got demagnetized. And that was allowed by law. Of course. A lot of time, you know, these ended up in your friend's hands, like this copy of RoboCop, which, you know, the statute of limitation has wrong. So I think it's okay. But I mean people copied tapes and people copied CDs and a DMCA prevented that. It's also enabled what's called copy wrong, which is complete abuse of copyright law by, I call it the Hollywood industry. But by that I mean very large copyright holders who do not recognize fair use at all, even as a matter of principle. And I've met with lawyers, I remember being in a conference and there was a lawyer for Sony pounding her fist on the table saying there is no such a thing as fair use. Right. Wow. And what the DMCA enables these companies to do is that anybody who does some sort of fair use of, I don't know, a clip of music or whatever and puts it on YouTube, these large companies will DMCA YouTube and say take it down. And of course for YouTube it's a lot easier to deal with the wrath of one user than it is to deal with the wrath of Sony. And so the DMC has had, I think, very, very negative impact on the ability of people to co fair use. And of course that leads to a hindrance of innovation. And in the field of video games we see this a lot with mods and things like that.
- [42:28]
Lee Vincel
Well, and just like I'm not a huge gamer, but my family has a switch and just how my use of that, just how locked down it is between the cartridges and the eShop or whatever they call it, there's just a lot of corporate control. And I'm sure, you know, I'm sure there's people who break these things open and mod them and do all kinds of stuff because there's always those subcultures. But of course, yeah, you know, but just for mainstream users it just seems like it's a very locked down world. And the 90s almost look like, you know, the wild west or something in comparison.
- [43:03]
Julian Miland
It is. And unfortunately it's not just in the video game world. But you see this in the corporatization and enclosure of computer networks. Right. If you have an Apple iPhone, you can only get the apps that Apple has approved. Right. And if you think about the early days of the web, where around 95, up until maybe 2000, it seemed that everything was possible because there wasn't this enclosure. You could get access. Anybody could create content anywhere in the world and anybody anywhere in the world could access that content. Right. So the realms of the possible were really up and it was a really exciting time. And of course corporations are threatened by that. And since then they've been very, very hard at work to reclose those environments. And we see that with the platformization of life now. Right?
- [43:58]
Lee Vincel
Yeah, yeah. When I teach this stuff, I talk about like the Electronic Frontier Foundation's trajectory around this stuff, which I think is. You start with Barlow's Declaration of Independence of cyberspace, which is all about keeping government out of the regulation of the Internet. And then now the EFF is an anti big tech organization in a lot of ways and really focused on monopolization stuff. So yeah, it's just fascinating about how that kind of platform enclosure model just wasn't very clear to anybody as a possibility. And the 90s, I think it was.
- [44:35]
Julian Miland
To some, Lawrence Lessig, definitely Lessig saw.
- [44:40]
Lee Vincel
Could.
- [44:41]
Julian Miland
What I think Barlow missed is that, you know, the EFF and the cyber libertarian at that time were anti government, but they were not anti corporate. Right. And so they didn't see corporations as a danger in hindering freedom. But of course corporate interests are not about anarchy and the free flow of information. Right. They're about inclusion. And so I would say that, you know, large corporations are much more of an enemy of online freedom than, you know, democratic governments. Right. But generally, yes, they've worked with governments hand in hand to kind of go back because governments were threatened, of course, also about this flow of information.
- [45:30]
Lee Vincel
Right, Absolutely.
- [45:31]
Julian Miland
But they absolutely work right here. But I think Lessig definitely talked about it at least as early as 1999, but that wasn't. I think there was such excitement at the time and even for us working in a dot com world, I worked in San Francisco in the dot com up until 2001 when everything went collapsing. And that freedom was driven by corporations because that's kind of the American economic model. Startups drive innovation, but of course, at some point the startups aren't startups anymore and Google's do no evil becomes a little different. Right. And Google is nothing compared to Apple. And I find it very ironic that Apple, which is kind of the epitome of this command and control system, got its fame from that 1984. Yeah, right.
- [46:26]
Lee Vincel
That is a thick hat, schmaltzy irony for sure.
- [46:29]
Julian Miland
Right, Right.
- [46:30]
Lee Vincel
Yeah.
- [46:34]
Julian Miland
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- [47:07]
Lee Vincel
And when it comes to checking off.
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Julian Miland
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- [47:26]
Lee Vincel
So the other thing I wanted to talk to you a bit about at least to kind of get it on the table for listeners. I really liked your international law chapter a lot. I thought that was fun. And it just reminded me of the longer history of mass production, media production and different kind of mores and legal cultures of different nations and kind of like how that plays out and the sheer variety that you'll bump into. And you had wonderful stories about Wolfenstein 3D being illegal in Germany for 30 years or something. It's just that shit's great. But I wanted to talk to you a bit about the kind of what we can think of as the First Amendment freedom of speech story around violent video games especially. And it's just like to me, the part of the story that you draw out, it's one of the few places where you jump ahead to 2011 because it takes a long time to work this out. And so, Warwick, I think where I would like to start with you about this is thinking about this longer trajectory of games as threats. Right. I mean, to me it was a part of like the what we know that there's been like for every new media form starting a week. Well, I mean, look, Plato has issues with writing, Socrates does. I mean, and then there's lots of worries around the printing press, but then, I mean, from like newspapers to radio to tv, there's just been like, as new media forms have developed over the last 150, 200 years, there's been like kind of wave after wave of moral panic initially, right. Including social media and shit today. So I wanted to talk, let's do that treatment of video games kind of. Or not even video games like pinball machines is where you see this start. So tell us a bit about that.
- [49:16]
Julian Miland
Yeah, so you're absolutely right with, you know, information is a threat to established order, whether it's, you know, government or social order. And that happens in a media realm. When the telephone was invented and started spreading, it was say it was gonna destroy the fabric of society. There were all these cartoons of, you know, these men calling their mistresses when Cuckold is away. And the telephone was going to destroy fabric of society. You see the same thing. Of course, you mentioned the printing press, but in kind of the fun media realm. You see that with comic books, right?
- [49:56]
Lee Vincel
Oh, right, yes.
- [49:57]
Julian Miland
And then of course the radio in a book I have a reproduction of some letters to the fcc. And, and, and there's a journal, a newspaper article that says, I think it's from the 30s that says, boy, 13 shoots grandma and blames the radio.
- [50:16]
Lee Vincel
Yeah.
- [50:17]
Julian Miland
So there's always been kind of these moral panics. And I think it's even more when it's kind of this like entertainment. Right. Because entertainment doesn't fit well with orders, as the Taliban have figured out. But even in our liberal societies. So yes, so it does start with the pinball industry in the United States. But there's a reason for that, which is that pinball machines, because they are coin op and because the operator of the machine doesn't have to account with any sort of merchandise coming in in like a cigarette machine, they're very useful to launder money. Right. Because if you want to launder money, you get, you know, a million dollar that's there and you, you're not trying to hide a million dollar, you're just trying to hide the fact that it comes from, in this case, bootlegging. Right. You just say, well, yeah, it comes from my pinball operation. I have this pinball and people put money in it. This is where money comes. Absolutely. So the pinball industry originates in Chicago, which happens to be where the mob is. Right. Al Capone and these companies, including Bally in particular, were notorious for having ties to the mob. And they were used for, they were actually used for, for laundering money. And so that tied up with a moral panic of children putting their lunch money into the pinball machines and coming home starved. It's a very famous story that Mayor LaGuardia in New York City told. And so LaGuardia bans pinball machines and they were banned in New York until 70s, same thing in Los Angeles where pinball machines were banned in the 70s. And when that went to court, you know, I personally look at Pimble as art and I think they should be protected by the first amendment under that rational. But court said no, it's not actually art, it's a physical activity and physical activities are not protected by the First Amendment. Now in 2011, when the violent video games first person shooter case went to the Supreme Court, Justice Breyer, which is interesting because he's a liberal, but he doesn't like violent video games. And Breyer says first person shooter games are just like pinballs. They're not actually are. They are a practice target shooting thing and their physical activity, and therefore they're not protected at first Amendment. He was the only one who thought that way. But there's definitely this link between kind of pinball and video games. So pinball weren't protected, and a lot of municipalities regulated them. And then it went to coin op video games. Right. And of course, the one game that kind of triggered that was Death Race, which was made after a movie, Death Race, where the point of the game, of the movie, I'm sorry, was to a bunch of people in cars were supposed to run over pedestrians, and the more pedestrian they run over, the more points they got. And so this movie gets ported to a video game, except on the video game, the cars are like little stick figures, and the point is to run people over. And a number of psychologists said, oh my God, people are going to play this game and then I'm going to go and run over pedestrians, like, even though we're talking stick figures. And so that game at that time got banned on a number of municipalities. And, and when, when these municipalities were sued, they usually won their, their trials, which was very interesting because at the, because the movies had been protected, you know, at the time, the movies were protected, but the video games were not. And so what happened was that so the MOV protected by the First Amendment since 1952, okay, it took 57 years from the invention of the cinema, to the Supreme Court saying, okay, films, they're protected. And so at the time that Death Race came out, the movie was protected by the First Amendment, but the wireless graphic video game wasn't right. So it's this weird thing. And in the end, it took 40 years from 1971, the start of commercial coin, up to 2011. That's 40 years. So in the grand scheme of things, it's actually not that long for technology to become for tech. It took 57 years for the movies, right?
- [55:16]
Lee Vincel
Yes.
- [55:17]
Julian Miland
So, yeah, there was Coin Op and then there was Lieberman trying to impose a rating system. And then of course, the case that made it to the Supreme Court in 2011 is hilarious because it was a California bill that mandated a rating system on cartridges and discs and mandated a rating system and said violent video games will not be allowed to be sold to minors. The funny thing about this is that the governor of California who signed that bill into law was the governator Arnold Schwarzenegger, who built his career on extremely violent actions. That was kind of the irony of that. And so that goes to the Supreme Court 2011. And the Supreme Court says valid video games are protected even for minors. And it's illegal to impose a rating system because there would be forced speech. But to go back to your earlier comment about international, the fact is the United States is a very peculiar place when it comes to freedom of speech. Right. The First Amendment is absolutely unique. We're the only country in the world where we have so much freedom in terms of content of speech. Hate speech is protected in the United States and violent speech is protected, but in other countries in the world it's not. Right. So Europe, for example, absolutely regulates not only hate speech, but also violent content in video games. And so that leads to the next question is, well, what do you do when the industry becomes global? How do you deal with these differences in regulation? And that's the third part of the book.
- [57:06]
Lee Vincel
Yeah. And you know, another fascinating thing is that even though these rating systems can't be compelled for speech reasons, the, you know, the video game menu industry has adopted rating systems voluntarily. Right. And I think for reputational reasons probably. Right. Like they don't want to be like little kids kind of randomly buying games that have extreme violence and sexuality in them and parents getting pissed off at them. So there turns out to be industrial reasons for these things anyway. Is that.
- [57:40]
Julian Miland
Absolutely. There's a rating system and I think there's two parts to it. One is, you know, cover your ass. Yeah. And two, but there's also a legitimate, you know, reason for it, as you mentioned. I mean, teenagers, you know, if something is rated 18, 16 year olds will buy. Right. But they still put the 18 thing because large retailers like Walmart, oh, there you go. Care about their reputation. Right. And so if, if the industry had not adopted those standards voluntarily, large retailers like Walmart would not carry them because they don't want, because the retailer cares about their reputation. Right. The fun thing is that it's not actually illegal for a store to sell something that says rated 18 to a 12 year old. Right. It's, it's, it's for show. But there's also a very good reason, which is, you know, it's not so much for the 16 year old, but for the 8 year old. Right, right. And it's completely legitimate for a parent who is shopping for their eight year old to say, look, I don't know nothing about those video game thingies. I don't know what it Is my kid wants, you know, this game. It's reasonable for the industry to be able to tell parent like, okay, this is 18. So if you have a 16 year old, you do what you want. But if you have an 8 year old, just be aware.
- [59:11]
Lee Vincel
You might want to think twice about this.
- [59:13]
Julian Miland
You might want to think twice about it. But yes, it is an industrial system that's completely voluntary and cannot be enforced.
- [59:23]
Lee Vincel
So you're concluding chapters in the subtitle you talk about frenemies, which I thought was kind of a fun framework, but I take your point. There is really that in this kind of constantly shifting landscape, I mean, part of it is, this is part of your story, is that what the smart strategy is really depends on what's happening at that exact moment. And there's so much shift going on that people are forming and reforming alliances constantly. Right. And so I think with the frenemies you talked about, like, you know, first you have love affairs that go bad, then you have, you know, you have enemies that become lovers. And then in some cases you have both happening at the same time. Right. So tell us a bit about this frenemies concept.
- [60:08]
Julian Miland
Oh, absolutely. And you know, this is not unique to the video game industry. Any industry is like this. I worked in the, in finance as a lawyer in finance for many years. And it's the same thing, right? You got banks suing each other in one country in and making love to each other in another country.
- [60:28]
Lee Vincel
Right.
- [60:28]
Julian Miland
It's very circumstantial driven. It's where's the money and how do we get more of it? The video game industry is exactly the same. And so in that last chapter, it's the conclusion. I'm not discovering the meaning of life, but I just thought it'd be fun to kind of bring in a few anecdotes, right? To kind of show this. So one of them, for example, is Nintendo and Universal, right? So Universal Studios is the one that put out King Kong. And when Nintendo came up with Donkey Kong, Universal said, oh no, no, you can't do Donkey Kong because we own King Kong. And so Universal sued Nintendo. Fun fact. Nintendo's lawyer, John Kirby, who was one of America's finest lawyers, figures out that King Kong actually is in the public domain as Nintendo. I'm sorry, Universal loses. Nintendo was so, so grateful to John Kirby, who won them a lot of other lawsuits, including, yes, Atari. They did two things. They gave him a boat called Donkey Kong and they gave him the rights to the name Donkey Kong, but only for naming boats. And two they actually named a Nintendo character after him. So the video in Kirby is the character Kirby. And if you look at his. The face of Kirby looks kind of like John Kirby, the attorney who had kind of this, like, chubby kid face. So that's fun. But now Universal Theme Parks has not only a Nintendo World, but it has a Donkey Kong attraction, right? So you have these two companies that hate each other, and then I figure out, hey, why don't we make peace and make a lot of money out of it, right? So that's one example. And of course, you have, you know, friends who sue each other. Happen, obviously, all the time. And sometimes they do both at the same time, and that's a fun thing. So we talk. We started the podcast talking about the 507 and 483 patent, and Magnavox and Atari settling, right? And working hand in hand to crush Atori's competition, right? So they're doing that at the very same time Atari is suing Philips, which had bought Magnavox because Philips made a clone of. Of Pacman, and Atari had gotten a right for Pac man in the US From a Japanese company called Namco. So Atari had the rights to Pac Man, Philips, Magnavox makes a clone of Pac Man, Atari sues them for once, Atari wins a lawsuit. It's kind of a rare thing. So at the very same time, Magnavox and Atari are working together in lawsuits, and at the exact same time, one is suing the other. So it happens all the time. These are just kind of fun vignettes that are there, and they're fun, and these are things that, you know, when you. When you play Donkey Kong or Kirby, you don't think about those things. So I thought it'd be kind of a fun end to the book.
- [63:55]
Lee Vincel
That's really nice, man. And so what's up now with you? I mean, this book is, you know, just came out recently. It's totally fine if you're like, I have no idea. I'm taking a break. But what are you on to do, you know?
- [64:06]
Julian Miland
Oh, I very much know. In fact, I have a book deadline. Manuscript deadline in two weeks.
- [64:11]
Lee Vincel
Oh, wow. Okay.
- [64:12]
Julian Miland
Yeah, yeah. I've been. I've been hard at work. I am writing a geopolitical and legal history of Tetris.
- [64:20]
Lee Vincel
Okay, nice.
- [64:22]
Julian Miland
And it's kind of. It's the same framework as the Game that Never Ends that. That just. That came out in August, but this time I narrowed down on one video game, which happens to be the most sold video game ever in the world, if you think of it in terms of sold purchase actively. Right. I'm not talking about solitary minesweeper that came with windows, but so Tetris. And the story of Tetris is really fun, really intrigued, intriguing. It comes out of a Soviet lab, fed for by the ussr, KGB military apparatus, and it crosses the iron curtain, it goes to the west, it becomes this huge, huge success and there's an enormous political and legal intrigue behind it. Unfortunately, so far, everything that's come out on Tetris is again the story of the great inventor. Right. Alexei Pagetov. And clearly the guy had a genius moment, right?
- [65:34]
Lee Vincel
Yeah.
- [65:35]
Julian Miland
And this game is fantastic, but there's so much more to it than just that. So in this story, I'm piecing together the puzzle of Tetris by looking at one geopolitical standpoint and ussr, USA relations at the time and also all of the legal intrigue, because as you can imagine, when a game brings that much money, people are going to sue each other.
- [66:00]
Lee Vincel
Yeah.
- [66:00]
Julian Miland
Yeah, Great. So that's the next book. Yeah.
- [66:07]
Lee Vincel
I saw on the Nintendo Switch platform, Eshop or whatever, that there's some kind of thing they're selling that's like a mixture of a game, Tetris, the game, and a kind of documentary. Have you checked out this thing?
- [66:19]
Julian Miland
Yes, this just came out. It was put put together by the Tetris company, which owns the right to. To Tetris. And it is indeed this kind of like multimedia thing. Yeah. That offers. One thing that I think is really cool is they offer different versions of Tetris through the ages. Right. Yeah. Because the, the design of Tetris has stayed pretty much exactly the same since it was designed in 1985.
- [66:50]
Lee Vincel
But there's so many variations.
- [66:51]
Julian Miland
But there's so many variations. Right. Different colors, different twists, different music. So I think it's a cool little retrospective. But again, this thing is put forward by the Tetris company and they are very, very good at revisionist history.
- [67:06]
Lee Vincel
Yeah, right, I bet they are.
- [67:08]
Julian Miland
They're very, very aggressive at suing people. And there's a lot more to that story. So hopefully if things go well, you'll be able to read about it in maybe a year and a half.
- [67:20]
Lee Vincel
Cool, man, that sounds great. Well, Julian, this is a lot of fun. Thanks so much for coming on and taking the time to talk to me today.
- [67:25]
Julian Miland
Well, thanks a lot for having me on the podcast. And the book is available not just on paperback to any retailer, but it's also as an open source document. So anyone in the world who's listening to us can go on the MIT Press website and you can download the book as PDF for free.
- [67:46]
Lee Vincel
Thanks so much Julian. That's great.
- [67:48]
Julian Miland
Thank you.
- [67:56]
Lee Vincel
I hope you enjoyed this episode of our podcast. You can reach us with questions, comments and suggestions@leevinselmail.com or by following me on Twitter @stsnews or on YouTube @peoplesthings. Our podcast is distributed by the New Books Network, the leading platform for academic podcasts, so that you can find us wherever you get your podcasts. Peoples and Things, like most things in this world, depends on the work of many people. I want to thank my brother Jake Vincel for writing the music for the show. I want to thank my buddy Juliana Castro for designing the logos for the podcast. You can check out her work at julianacastro co. Joe Fort is the producer for the podcast and Mandy Lam is the Production assistant. This podcast and other Peoples and Things programming are produced in affiliation with Virginia Tech Publishing and supported by the center for Humanities and the University Libraries at Virginia Tech. For information about other podcasts from Virginia tech publishing, visit publishing vt.edu. for the entire Peoples and Things team, I am Lee Vincl and most importantly, I want to thank you for listening. Thanks.
- [69:32]
Julian Miland
Sam Trip Planner by Expedia. You were made to outdo your holiday, your hammocking and your pooling. We were made to help organize the competition. Expedia made to travel.