This is not a post about hating Jim Sterling, although I admit I have a fairly intense dislike of him. He comes across as the worst kind of immature asshole. Take for example his “JimQuisition” videos. Almost every time I try to watch one, I get about a minute in before turning it off in distaste; I can only take so many fart jokes and comments about penises before I can feel my IQ start to plummet. It’s unfortunate, because if you actually manage to get past his juvenile sense of humor, he actually has some pretty interesting things to say.
Specifically, I found his episode of JimQuisition from a couple of weeks ago quite thought provoking. The video covers the recent lawsuit against Warner Bros. and 5th Cell by the holders of the Nyan Cat and Keyboard Cat copyrights. Apparently, the developers of Scibblenauts included representations of these characters in the game without first seeking permission to use them. Mr. Sterling was quite tickled; he found it ironic that the same big corporations that are typically quick to sue people into oblivion for threatening their own copyrights are now being targeted by the “little guys.” By itself, I don’t really find this topic all that interesting. It seems to be a pretty basic copyright suit, and I’m not a copyright kind of guy. What I did find interesting is what comes towards the end of the video, where Mr. Sterling says that he hates the way copyright law works in general. Although he doesn’t specifically state what he doesn’t like about it, he clearly thinks the current system is inadequate and needs an overhaul. This got me to thinking about video games and the Law of the Horse.
Now I know what your thinking; the Law of the Horse? Really? This is one of those stupid Internet things isn’t it? Well, no. It’s an actual thing.
The Law of the Horse is a theory developed by a guy named Gerhard Casper, and popularized by Judge Easterbrook of the 7th Circuit Court of Appeals. The basic theory states all “real” subject areas can be broken down into a set of unique underlying principles. Now of course it is possible to take just about any random set of ideas, throw a textbook together and teach it as a subject. However, the key idea of the Law of the Horse is that to be worthwhile to pursue, the principles underlying an area of study must be (1) unique and (2) serve to unify the individual parts of what is being studied. In other words, by choosing to study a particular topic, you are learning ideas that that you wouldn’t learn by studying another topic.
For example, Judge Easterbrook lists Contracts as a “real” area of study. In law school, students are typically required to take Contracts the first year. They literally read hundreds of cases, each dealing with a separate contract. These cases span centuries of time, and deal with a multitude of different contractual subjects. However, they are all unified by an underlying set of principles; what makes a contract, determining when a contract has been breached, interpreting linguistic ambiguity, etc. Not only do these principles serve to unify all of the cases that students read, by they are also unique to the study of Contracts – you would not see the same principles come up in, for example, a course on Criminal Law.
At the other end of the spectrum from “real” subjects is the eponymous “Law of the Horse.” Judge Easterbrook postulates that it would be possible to collect every case that deals in some way with horses and aggregate these into a class called “Horse Law.” Such a class might involve reading about cases where a horse kicked someone, cases where a horse jumped a fence, and cases involving the sale of horses. Now, all of these cases would certainly have a superficial commonality; they all deal with horses. However, it is also difficult to find any unifying set of principles that underlie “Horse Law.” Even if such principles could be discerned, they wouldn’t be any different than principles already covered in other subject areas. The examples above, for instance, could easily be dealt with using concepts from other areas of law. A horse kicking someone, for example, is a pretty run of the mill tort case involving simple negligence. Therefore, although it would certainly be possible to teach a class on Horse Law, it wouldn’t really add anything to unique to the study of law, and is therefore not a viable topic.
In the legal community, the Law of the Horse typically comes up in debates regarding whether specific laws are needed to handle new technologies and sweeping social changes, or if existing law can be sufficiently adapted to the problems. The recent debate, for example, has centered around the internet. Some lawyers claim that the internet is so unique that a new body of “Internet Law” is needed. New tax laws, new privacy laws, and new copyright laws are all required to handle the sweeping changes brought about by the internet. Those who think that existing law is sufficient to handle issues created by the internet are likely to say “Oh, Internet Law, that’s just Law of the Horse.”
So how does all of this relate to video games?
Well, Mr. Sterling clearly thinks that current copyright law is broken. Now, copyright law has been around a long, long time, so it clearly had some merit at some point in the past. The question, therefore, is whether there is something specific about video games (or other digital media) that makes them so unique that current copyright law cannot handle the legal issues they create. In short, is there a developing need for “Video Game Law,” or would this just be Law of the Horse? There is support for both sides.
This guy, for example, clearly seems to think that video games (or “augmented reality”) as he calls it, is a discrete subject area. I’m on the other side of the fence. I don’t think that video games are unique enough to deserve their own area of law. Or at least, if they are, they would be a smaller part of a larger area of law that has yet to really be developed. I think trying to discuss “video game law” or “augmented reality” law is really more of an attempt to create a market for services than it is a legitimate attempt to create a new subject area. If you look at the link above, that seems to be what’s happening. The writer is clearly attempting to create a need that will lead people to hire him, and I won’t begrudge him that. In fact, it’s smart business – but that doesn’t make it law.
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