PART THE SEVENTH - IN WHICH I MAKE GOOD ON A PROMISE

Hello again, and welcome to Part II of my Final Fantasy Mega Blog. Last time, I reminisced about my past, played through the tutorial of the game, bitched about a lot of things, and bored all of you to tears. In this episode, I plan to actually, you know, play a bit of the game, try out the combat, and see if I can get a handle on whether I will actually have any fun being a monkey for your amusement.

First though, I believe something about generous cleavage was mentioned at the end of my last post.

There. Never let it be said that I don't keep my promises. And actually, I'm not doing this just to be a disgusting male pig - it actually ties in pretty well with what I want to talk about next.

PART THE EIGHTH - IN WHICH DONALD TRUMP DESIGNS A GAME CHARACTER AND I WANT TO PUNCH AN OLD MAN

When we last left our intrepid heroes, they had suffered a spot of car trouble on the way to Noctis' wedding, leaving them to push the car to the nearest garage for service.

We pick up our story just as the party manages to get the car to the service station. Now, one would expect that Noctis, being a prince on the way to a very important wedding, would be greeted by a team of crack mechanics ready to get us back on the road. Instead, this is the first thing we're greeted with:

And from there, things don't get much better . . .

This . . . hooker, stripper, prostitute, lady . . . person introduces herself as Cindy, "Cid's grease-monkey granddaughter." She does this in the most horrible faux South-Taxas accent imaginable. She also calls Cid "Paw-Paw," because that's totally a word that Texans use. And this won't come through in the screenshots, but let's just say that although her chest isn't quite at the "Dead or Alive physics defying boobage" level, it's just one step below that.

Safe to say, I have An Opinion about this, and it isn't a positive one. And that Opinion is this:

IT'S 2016! HOW THE FUCK DID THE DEVS THINK THIS CHARACTER WAS OK??!!

How do you think those design conversations went? Was it a tragic series of misunderstandings between writers and artists about the character design or did they just jump straight to saying "fuck it, give us tits!"? I think we have to assume the latter, seeing as how this character was also in the demo. I refuse to believe that someone, somewhere didn't complain about her design, so it must have been a conscious choice on the part of the devs to ignore it and instead throw their hat in the ring for the "Most Sexist Character of 2016" Award.

And to make matters worse, Cindy isn't just any female character. She's the very first female character the game shows you. Think about that for a minute. The. Very. First. One. A series that has a reputation for strong and complex female leads decided that the way to move Final Fantasy forward and introduce the series to a new generation of fans was to turn the clock back fifty years and have it's first woman character dress like a Playboy cover girl.

What's so sad about this is that even a little bit of forethought could have improved this character 1000%. If they'd just put her in a standard mechanic's jumpsuit it would have been fine. In other words, if they'd just taken the time to put her in clothes appropriate for her job, the problem would have been solved. Instead, they went down this route, and I'm struggling to figure out why.

Thankfully, before Cindy can launch into a discussion about the proper function of her . . . cylinders . . . Paw Paw Cid shows up. For those who haven't played Final Fantasy before, Cid is a character that has been constantly reinvented and placed in every Final Fantasy game, and is typically cast as some sort of scientist. This incarnation happens to be a mechanic and the owner of the garage.

He's also a cantankerous asshole. This is among the first things he says to Noctis:

Again, what the fuck? Noctis is freaking royalty, and this is how people address him? How is this happening? Why doesn't Noctis get any respect? Why isn't Gladio bringing me this old fart's head?!

In any case, Cid says the repairs are going to take some time, which means that we've now got time to wander around and actually do stuff.

PART THE NINTH - IN WHICH PROMPTO DOESN'T UNDERSTAND MONEY

With time to spare, the party splits up and wanders the outpost to shop. Gladio wanders by the weapon shop, Ignis goes off in search of coffee and Prompto . . . well Prompto is having some problems.

What’s a Gil? What’s a Gil?! Oh, I don’t know Prompto, it’s only the currency you use to buy stuff. Look, I get that the party is supposed to be a bunch of spoiled rich kids from the big city, and that they probably have black cards to go along with their black everything else, but come on! Do you really expect us to believe that some of them don’t know how money works?

Or maybe it isn’t such a mystery, because as it turns out, the party is flat broke. We have, to quote Ignis “expended the last of our funds on repairs.” I find this hard to believe. Again, Noctis is a freaking prince. Not only is he getting mouthed off to by an old man, the party is also flat broke? Is Noctis secretly a younger son? Is he the spare from “an heir and spare?” No? Then Noctis has got to be the sorriest excuse for royalty in the history of video games. Let’s recap: he drives a broke-ass car, doesn’t get an honor-guard for his own wedding, has no money, and septuagenarian auto-mechanics feel comfortable mouthing off to him. If that’s being royalty, I’d hate to see how the common people live in this country.

Because the party is monetarily impaired, we need to ask Cindy (*shudder*) for help. Upon speaking to her, you are offered several conversation options, because apparently conversation trees are something that needs to be in every RPG these days. I choose the option related to earning some money and she reveals that the repairs have cost so much because Cid was intent on “teaching us a lesson.” So in addition to mouthing off to royalty, the old fart is also ripping us off? Again, why haven’t we killed him yet? Regardless, she gives us some spending money and tells us that some “varmints” have been bothering the area lately and offers to pay us to take care of them.

If there’s a positive side to our current money problems, it’s that they do highlight an important thing to remember. At least early in the game, money is kind of hard to come by. Unlike in prior Final Fantasy games where you earn some scratch after every fight, FFXV’s primary methods of making money are by completing quests or monster hunts. Enemies do drop items, and those items can be sold, but for reasons we’ll get into later, you generally want to hang onto the stuff you pick up, which means that, for the time being, quests and hunts it is.

Speaking of which, you pick up monster hunts by talking with “informants” at diners located at rest stops around the world. Why a dude flipping burgers at the local kitchen would be super-in-the-know about world goings on is beyond me, but regardless that’s how you do it. In addition to telling you about monster hunts, informants will also helpfully point out places to camp, additional rest areas, and treasure spots in the surrounding area.

From the local informant I pick up a hunt for group of creatures called "Sabreclaws." And with that, it's off to play the game (finally).

PART THE TENTH – IN WHICH I FIND OUT THE COMBAT MIGHT BE FUN. SOMETIMES.

Now with two tasks in hand, I head off to actually play the game. First is the hunt that I picked up in the diner, primarily because the game only tracks the last quest you picked up. Although you can change which quest gets tracked by going into the menu, it seems odd (and obnoxious) that the game won’t let you track more than one quest at a time.

The quarry is only a short distance away from the diner, so finding the spot isn’t a problem. And with that, I now have the opportunity to engage in combat for the first time in the game.

I admit to some trepidation here. I followed FFXV quite closely through it’s dev cycle and nothing that I had seen in Let’s Plays or articles on the game particularly enthused me about combat. Real time action in a Final Fantasy game? Heresy, I said! I also played the Platinum demo and walked away thoroughly unimpressed if not outright repulsed. Everything felt so floaty, enemies didn’t give clear signs of when an attack was coming and your own hits lacked impact. So I was fully prepared to HATE FFXV’s combat from the off.

As I discussed a bit in the prior episode, there’s a lot going on in combat. You hold circle to attack with your weapon, and you can equip up to four different types of weapons, or use a slot on a spell, which are now consumable items (more on magic later). If you want to dodge, you hold square, which automatically avoids most attacks, but at the cost of MP. You also use MP to “warp strike,” which launches you towards an enemy and does more damage the farther away you are.

If you run out of MP, you enter “Stasis” mode where you cannot warp-strike or dodge and you take considerably more damage from enemy attacks. MP can be restored slowly over time, or instantaneously by aiming towards a “Point-Warp” and pressing triangle. Point-Warps are places that are generally up above the combat area and warping to one immediately restores all of your MP and will also heal you rapidly until you run out of stamina to hang.

Occasionally, you will also get a button prompt to “Block,” which is you time correctly, will offer you the option to “Parry” (there are the same damn thing!), which does a ton of damage. Successfully parrying or attacking an enemy from behind might also launch a “Link-Strike” with one of your companions where you team up on an enemy to do more damage. Companions can also equip and launch various “Tech” attacks by using a green bar that charges over time. You can build three charges with more powerful techs consuming more of the bar.

Like I said, it’s a lot of stuff to keep track of. But despite my pre-release doubts I have to admit that despite all the odds, when it works, it really works. At its best, the combat is frenetic, action packed, and visually impressive. It’s genuinely thrilling to warp in and out of combat, dodge attacks at the last second, and fire off your companion’s tech abilities. Even the animations are charming in their own way. For example, when you perform a successful link strike with Gladio, it will start with him and Noct brutally wailing on an enemy but end with a bro-tastic fist-bump.

So the combat at least has the potential to be pretty awesome. The problem is, when the combat system doesn’t work, it really, really doesn’t work. There are a whole host of problems; the camera is often too slow to keep up with the action, the it also likes to get stuck behind walls and trees. If you are fighting a large group of enemies there can be so many prompts coming up on the screen you can’t see what’s going on. The lock-on is a hold when it should be a toggle, and the cinematics on your tech attacks take so long that enemies have a tendency to move out of range while the pre-attack animation is playing.

On their own, a lot of these issues would fall under the “annoying but not fatal” category. However, they also have a tendency to occur all at once. Take, for example, the battle I am currently fighting. The fight is against a number of small, nimble opponents. They aren’t necessarily powerful, but they are quick and can burn your health down quickly if you aren’t careful. Therefore, it is imperative that you not get surrounded.

However, because there are so many enemies and they are so quick, the camera has difficulty keeping up. Rather than seeing combat, you get a lot of good views of rocks and trees, which ends up with you getting surrounded, which ends up with you in trouble. This is particularly true if you are using the lock-on function because of the way it interacts with the camera. You see, rather than gradually rotating as an enemy moves by you, or zooming out to a wider angle, the camera tends to wait until the enemy is nearly behind you before wildly swinging around to put the enemy in your view again. It’s disorienting,

Of course, you could simply attack without locking on, which solves some of the camera problems. However, the auto-targeting system is completely boneheaded, and usually manages to pick the enemy farthest away from you to attack. Because this fight has so many enemies leaping in and out of range quickly, this tends to result in the player swinging at a single enemy, having it leap out of range, and then having the auto-targeting picking a different enemy half-way across the battlefield.

So yeah. Combat is maybe not perfect.

PART THE ELEVENTH – IN WHICH I SPEND THE NIGHT OUTDOORS AND COMPLETE THE HUNT

With the first hunt out of the way, I now turn my attention to completing the task Cindy set me to eliminate the "varmints." This involves running around the area to three different locations and killing what you find there. In this case, giant scorpions, which due to their slower movement, turn out to be considerably easier than the sabretusks I was fighting earlier. Having completed this task, the party receives a call from Cindy, who congratulates them on completing their mission, but then asks another favor. Apparently, someone has gone missing the area near the party, and she asks us to go look for them. Thankfully, she says she knows where the guy is – he’s holed up in a shed near where we are. Noctis says he sees the shed from where the party is and that we’ll check it out.

Now, I will leave it to the judgment of the comments as to whether what Noctis sees would qualify as a “shed.” When I think of a “shed,” I think of a smaller building used to store tools, failed projects, and lots of Old Stuff. The building in question looks too large to be a shed. It’s more of a barn, or maybe a utility building of some sort.

It turns out I’m right because we do not find the missing person, but instead get ambushed by a group of angry monsters. Because this is an enclosed space, when I say "ambushed by monsters," I really mean, "forced to fight a battle with the camera stuck behind a wall." Thankfully these are low level creatures, so it isn't too much of a problem.

Having button-mashed through the blind camera-behind-a-wall-fight, the party now takes a second guess as to what kind of building constitutes a “shed.” Thankfully this time they guess correctly, and to make it even better, the mandatory combat takes place in the open, so you can actually see what’s going on for once.

Having dealt with the monsters outside, I rescue the dude in the shed. He is called Dave. Dave tells me that he was hunting a larger monster called a "Dualhorn" and that this particular one appears to be mutated in some way. It was too much for him so he had to take refuge in the shed. He offers to pay the party if they take care of it for him. Since the party needs the money, I agree. Ignis suggests that, because the monster is supposed to be powerful, that we camp for the night to get ready.

Beyond trying to play up the fight as something you need to prepare for, this objective is clearly designed to teach the player about the character advancement system of FFXV because it works differently than in prior Final Fantasies. In prior entries, any time you won a battle, you would receive experience, which was then immediately applied to your character. If you had enough, that character leveled up.

It largely works the same way in FFXV in that every battle gains experience. However, instead of accrued experience being immediately granted to the player, you need to find a spot to rest, sort of like a bonfire in Dark Souls. When resting, you have two choices of abode – you can camp, which applies the XP and allows you to cook a meal that will provide you with a status buff the next day, or you can rest at in inn, which gives an XP multiplier but doesn’t allow you to cook a meal.

A couple of things here. First, where was the party carrying all that stuff? You’ve got a tent, food stuffs, an stove, firewood, and four folding chairs. That’s . . . a lot of stuff. It’s too much stuff. The party is violating the number one rule of camping trips – pack light. My family grew up camping and back-packing and I can tell you, you wouldn’t want to be carrying all that shit every day between camp sites.

Second – hellooooo shameless corporate sponsorships! That’s a Coleman tent the party is sleeping in, a Coleman lamp the party is using for light, and even a faithfully rendered Coleman camping stove! This seems like a weird sponsorship to have in a video game. And while I have to tip my hat to the devs for faithfully rending that stuff, it’s also kinda not even correct?

For one thing, there is no way four dudes and their sleeping bags are fitting in that tent. Just eyeballing it you can tell it is way too small. Which to be fair, is kinda the way tents work. I bet if you looked on the box, that tent would tell you it fits eight people. Hell, the tent I use claims it’s a two person tent and isn’t big enough for me and I’m only 5’7”.

Secondly, the game dates itself by its choice of Coleman camping stoves. I had to buy a new one for a camping trip last summer and discovered Coleman doesn’t make the ones with the gas tank on the front anymore. The gas tank now goes on the left-side of the stove and uses a screw-in cylindrical propane tank rather than the red white-gas tank you see in the game. Which means you can tell all this was rendered several years ago. A small deal, to be sure. But it seems like if you’re going to put in all that effort for a sponsorship deal, you might as well make sure you have the details right when you do.

And just looking at Ignis’ cooking list, I’m pretty sure you would not succeed in cooking most of his fancy pants dishes on that thing. Pancakes, sure. But “Fluffy Chiffon Cake” is going to be several bridges too far. I mean the things only have a couple of small burners on them and . . . shit. I just spent three paragraphs discussing camping equipment, didn’t I?

Sorry.

In any event, it's time to get a move on and fight this Dualhorn creature so I can finally afford to pay for car repairs.

Upon reaching the Dualhorn, Gladio pulls the party aside to discuss strategy. He suggest that Noctis warp around and strike it from behind. This is clearly meant to teach the player about how to perform link-strikes with Noctis' companions. The only problem is that the fight is so entirely easy that by the time I was able to get around to the creature's backside, it was already dead. So maybe that tutorial doesn't work as well as the devs intended. Regardless, I have now, finally, completed my task. Cindy calls to tell me the car is done, which means soon I will be able to actually get a move on and hopefully advance the plot a little bit.

PART THE TWELFTH - IN WHICH IS SIGN OFF UNTIL NEXT TIME

Yeah . . . so I'll think I'll leave it there for now. I thought this would take less time now that I had one of these under my belt, but then it got all long again. I had intended to move the story along a little more, but then all of that gameplay mechanic stuff got in the way. And I spent an entire section discussing what's wrong with the party's camping equipment. Plus, it's Christmas and I can't avoid avoiding the family any longer. So I guess all I accomplished was to waste everyone's time?

Awesome.

I think the next one of these, whenever I get around to it, should be more action oriented. I mean, I've explained most of the combat stuff, and once I get the car I won't have to complain about Cindy anymore. And eventually the game needs to do story stuff. So yeah. Happy Christamhaunnakwanza wherever you are. See you next time.

PART THE FIRST – IN WHICH I INTRODUCE MYSELF

Hello, my name is Chris, and I've decided to blog about my play through of FFXV. Those of you following me on GiantBomb will better know me as @lawgamer. According to my profile page, that’s a whopping twenty-one people. So twenty-one people know me as LawGamer. Presumably the rest of you are here because you got lost looking for the most recent BombCast.

People on this site are doubtlessly more familiar with @zombiepie. At least 84746 of you are. Which is a mere 4035 times more people than are familiar with me. Not that I’m jealous. And if you’re familiar with @zombiepie, then you’ve probably seen his blogs detailing his playthroughs of older Final Fantasy games.

I admit that I enjoy his blogs immensely. As a long time Final Fantasy aficionado, I’d like to say that’s for nice reasons. Something like “I enjoy his blogs because they help me reconnect with childhood memories of playing those games for the first time,” or some equally trite bullshit. But that would be a lie.

Instead, I enjoy his blogs for the same reason people enjoy shows like Jackass - it’s inherently funny to watch other people hurt themselves. Reading about his experience playing through FFVIII is like watching a blind man’s dog chase a tennis ball into a busy intersection or hearing a midget complain about being given short shrift. You shouldn’t laugh, but you also can’t help it.

All of which is to say, thank you @zombiepie for providing me with so much entertainment over the last year or so.

Also, fuck you, because what I'm about to do to myself is indirectly your fault. You monster.

PART THE SECOND – IN WHICH I DETAIL MY FINAL FANTASY EXPERIENCE

Let’s be absolutely clear here – I’m not @zombiepie. Final Fantasy 15 will not be my first Final Fantasy game - far from it in fact. I first got into Final Fantasy when I was eleven by playing FFIV. My parents had left for the weekend on vacation and had left me with $50. I was supposed to use that money to feed myself while they were gone.

I decided to bike eight miles to the nearest FunCoLand and buy a videogame instead.

At the time, FFVI was on the cover of Nintendo Power (remember that?), which at that age was all the recommendation I needed. So I biked all the way over to the store on a three gear, grip-shift mountain bike (uphill most of the way), a trip that included crossing an uncontrolled freeway intersection, only to find that the store didn’t even have a copy of FFVI. They did, however, have a copy of FFIV, so I settled for that.

So I biked all the way back home on a three gear, grip-shift mountain bike, with a second trip across the uncontrolled freeway intersection (again uphill most of the way, ‘ya damn kids!), only now with a copy of a video game hanging from my handlebars in an overlarge plastic bag that was constantly getting caught in my spokes.

Despite the dangers I made it home, plugged in the game, and was immediately hooked. I'm still not sure what did it. It might have been a time and place thing. Although Final Fantasy IV hewed pretty closely to fantasy genre stereotypes, I was at an age where that would have seemed like something super high-brow, particularly in comparison to the Marios and Zeldas I was used to playing. Maybe it was because it was my first JRPG and it was completely different than anything I'd ever played before. Who knows.

Whatever the reason, since then I have played every mainline Final Fantasy game. Some of them I have liked, some of them I have liked less. Recently, I've found myself drifting away from the series. Part of that is the interminable development cycle of FFXV. Even the most ardent fan gets tired of waiting after 10 years. Another part of that is that the recent direction of the series has been . . . less than positive in my opinion. Final Fantasy XIII was the first entry I didn't finish. That, combined with the long and fraught development cycle of this most recent entry has caused a certain dip in my confidence.

So why do I have high hopes for FFXV? Well, it’s because of my pattern of liking every other mainline Final Fantasy game since VII. I loved VII, hated VIII. Liked IX, loathed X. I think XII is the greatest game in the series and think the people responsible for XIII should be lined up against a wall and shot. Therefore, if there’s anything to my theory, I should like FFXV.

Or maybe I’m just desperate. It’s been, let’s see . . . March 2006 . . . carry the 1 . . . over ten and a half years since the last Final Fantasy entry I thought was worth a damn. To put that into context, I hadn’t even graduated college yet. Since then I’ve gotten a first job, been laid off, gone to law school, passed the bar in two states, gotten a new job, and descended (or evolved?), from a bright-eyed and idealistic pup who thought anything was possible to the jaded asshole I am today.

So here’s to hoping.

PART THE THIRD – IN WHICH I LAY DOWN THE GROUND RULES

Before I get started, I also need to set some ground rules for how I plan on going through the game. And I’ll tell you in advance that because they’re my rules, I also reserve the right to shamelessly break any of them at any time and then pretend like I never made the rule in the first place.

Rule 1: No Out of Game Content

I plan on going into FFXV blind. This means that I have not watched Kingsglaive or the Brotherhood anime or any other pre-release content. I have no plans to do so, at least during the course of my playthrough.

Now, I can already hear some of you saying “but it’s essential to the story!” That may very well be true, but that’s also the point. It’s incumbent upon the game, standing alone, to be intelligible and engaging to the player. If the game can’t tell its story coherently without additional out-of-game content, then that’s the game’s fault, not the players.

Also, I can only stomach so much anime.

According to the Day 1 patch notes, part of the patch is adding in additional scenes from some of this extra content into the actual game so that the story is more intelligible. Call me crazy, but it generally isn’t a good sign when the Day 1 Patch needs to add scenes to the game so that the story is coherent.

Given that Final Fantasy stories frequently trend heavily towards unintelligible anyway, let’s just say I don’t have high expectations on the story front.

Rule 2: No Guides

As I said previously, I plan on going into FFXV blind. Unlike @zombiepie, I will not have the benefit of a “sherpa” like @thatpinguino to help me get through the game in the most efficient manner. I will also not be using any strategy guides or online resources to help me power through things.

There are a couple of reasons for this approach. First, FFXV is brand spanking new. That means unlike the older re-released titles that you can get for a song on Steam, FFXV costs $60 bucks (plus tax) so I’m not eager to drop another $15-20 on the Prima Strategy Guide, especially for a game that I will likely play through, at most, once.

The second reason relates back to Rule 1. Games should explain their core mechanics to the player well enough to get through without resorting to a guide. Same goes for most of the side-content. While it’s fine to have a few really well hidden secrets and side-quests available for dedicated players, most of that stuff should be signposted well enough so that the average joe can find it. Not using a guide is a good way to test whether the game has done a good job with this.

Admittedly, this has been a problem for Final Fantasy in the past. Just ask @zombiepie about the card refining system in FFVIII, or a fan of FFXII about the “Forbidden Chests.”

Rule 3 – I'll Try to Do the Side-quests, If I Can Find Them

I plan on making a good-faith effort to engage in any side-quests I come across, like monster hunts or optional dungeons. In this context, “good-faith effort” means “until I get bored with it.” Just like how it’s the game’s responsibility to tell its story well, it’s also the game’s responsibility to make it’s content enjoyable and worth doing.

Obviously, because I’m not using a guide, I might miss some of the side-content, or fail to figure out the obscure set of circumstances to make a side-quest advance after I have started it. Given how Final Fantasy has traditionally worked, this also means that I might miss out on some things like ultimate weapons or additional cut-scenes.

Rule 4 – There Is No Set Schedule For This

Look, I’m not in college anymore. I don’t have unlimited time to play videogames. I’ve got a 9-5 job (or a 7-4 job as the case may be), after which I need to hit the gym. The holidays are fast approaching, which means that I’ll soon be taking a trip to family hell. I’m also not the most . . . dedicated person when it comes to keeping up with side-projects like this. I mean, I finish them. Just not always on a regular or timely schedule.

OK? Everyone understand? Good.

Let’s fucking do this!

PART THE FOURTH – IN WHICH I HAVEN'T EVEN STARTED AND AM ALREADY COMPLAINING ABOUT THINGS

Upon booting up the game, the player is presented with a large splash screen dramatically declaring that this is “A Final Fantasy for Fans and First-Timers.” Personally, I think this is kind of an odd statement. It manages to simultaneously include most gamers while leaving out a few key groups of people.

If you’re a fan of Final Fantasy, then congratulations! This game is for you. If this is your first Final Fantasy game, then congratulations! This game is also for you. Presumably if you aren’t a Final Fantasy fan, then you didn’t buy the game so you aren’t seeing the message.

But what about someone who likes Final Fantasy but wouldn’t go so far as to call themselves a fan? In other words, what about me? Personally, I’d describe myself as more of a “lapsed Final Fantasy fan” in that I used to like the series but have kind of fallen out of love with it. Is this game for me? I’m not a first timer, but I’m also not really a “fan” in the classic sense. The message certainly seems to imply its not for me and that I should just turn it off. Well, fuck you too, Final Fantasy XV!

Secondly, I’m not fond of the title music. It doesn’t really have any kind of set melody or rhythm to it. In short, it doesn’t make me feel anything. In fact, it almost seems like a placeholder – like the game director told the composer “make something in the sad piano genre” and that’s as far as the idea got. Stylistically, I’d say it’s closest to FFX’s title music. And that’s not a good thing in my book. I hate FFX.

Those quibbles aside, it’s time to actually start playing, and the game immediately asks you if you want to play through the tutorial. Given that I haven’t played Final Fantasy in a while and the combat system is pretty different from prior entries, I say “yes.”

Turns out there are actually two tutorials here. One is for the actual gameplay while the other is for the story. Think about that for a second. There is a tutorial for the story. What does that say? How complicated does the damn narrative need to get that you have to have a story tutorial?

Unfortunately, once you select the story tutorial option, it turns out to be much less impressive than it sounds. All it involves is you walking up to a set of tapestries and pressing “x.” You don’t even get a cutscene or anything, just a series of textboxes. Despite this disappointment, the highlights to take away from this:

• The world is called Eos, which is currently divided between the Empire of Niflheim (evil) and the Kingdom of Lucis (not evil). These nations are at war. Niflheim is winning to the extent that they have occupied everything except the Lucian capital city of Insomnia.

• Insomnia is protected by the power of the Crystal, which is channeled by the monarchs of Lucis via a ring called the Ring of Lucis. This power is used to create a barrier called The Wall, which keeps the Empire out. The price is draining the life force of the King.

• There are six “gods” who are currently slumbering, awaiting the time until they need to fight something called the “Starscourge.” A woman called the Oracle is responsible for communicating between humanity and these gods. She travels around the land healing people and doing good works.

• There are creatures called Daemons that come out at night. Recently, the Daemons are increasing in numbers and the nights are getting longer. Scientists are baffled by this phenomena.

Having gotten through this I . . . don’t really see the point. Not only is all of it pretty much the standard Final Fantasy fare of Evil Empire + Crystals + Ancient Evil, all of it seems like stuff that would have been quite easily to work into the main plot with a few lines of dialogue. I fail to see why any of this is so important that it requires its own specifically loaded “tutorial” to go over, particularly if it’s just reading text boxes.

Once I quit out of the rather useless story tutorial, I play through the actual combat tutorials. I’ll admit, the game throws a lot at you. You have your basic attack chain, which you initiate by pressing circle. Then you have a dodge move you activate by holding square. This automatically dodges attacks at the cost of MP. You need to be somewhat careful, because if you run out of MP, then you enter “Stasis” which prevents you from warping or dodging until you recover.

On top of all of that, there are link strikes, which you activate by striking enemies with your bros around. You can also scoot out of combat to “warp-points,” which typically get you somewhere high up and will fully recover your MP. Like I said, it’s a lot to take in at first. Additionally, whenever an enemy is winding up for a big attack, you get a prompt on the screen saying “Block.” If you successfully do that, you get a second prompt to “Parry.” A successful parry does a lot of damage to the opponent and may trigger a links-strike. That all sounds well and good, but I do have one very massive problem with that system:

Block and parry are the same goddamn thing. Look, I fenced in college. I know about this stuff. Although this is probably a small thing to most people, I can tell you from experience this is exactly the kind of thing that is going to bug me every time I see it. Which given how much of it I will probably do in the game is not a good thing. On the plus side, this will be the first Final Fantasy game that allows you to combat enemies with the Power of Tautology.

All kidding aside, the combat seems considerably more active than anything Final Fantasy has attempted to do in the past. This might be cool, or it might be horrible. Based on the number of things the tutorial is trying to go over, I’m sure it’ll take me a very long time to come to grips with the system'a ins and outs.

PART THE FIFTH - IN WHICH I START THE GAME AND KEEP ON COMPLAINING

Once you actually decide to start the game, you begin with a scene that pans around to the main character, Noctis. The location he is in is dark, and looks like it’s on fire. In the distance there is a big flaming dude sitting on a throne that appears to be made of bones. He looks bored. Kind of like me at this point.

As potentially interesting as this setup is, it does have a very fatal flaw: it’s one of those “push forward on the stick to Story” gameplay sections where you don’t actually do anything except move forward and get a cutscene. You then push forward on the stick a little bit more and getting another cutscene. Personally, I find these kinds of sections entirely odious because they are so pointless. It’s supposed to be making the player feel “engaged,” but fundamentally you aren’t doing anything meaningful. There is absolutely zero difference between this and merely showing the entire section as a cutscene.

Also, I will mention that Noctis is sporting a truly terrible beard. It’s one of those scraggly hipster numbers that exists in the uncomfortable space between “intentional facial hair” and “I don’t care if I look like a street bum.” Seriously, if that’s the best you can do dude, don’t even bother.

Anyway, this scene primarily serves to introduce us to our protagonists. Who are:

Character	Notable Characteristics
Noctis Lucis Caelum
Prompto Agentum
Ignis Scientia
Gladiolus Amicitia

These are stupid names. In fact they aren’t names. Bob and Susan are names. These are just a bunch of Latin words stuck together. In fact, if you put them through Google Translate, you get the following:

Light the Night Sky

Ready Money

Fire Science

Little Sword Friendship

It’s bad enough that western Final Fantasy fans have been subjected to years of bad Engrish translations. Now we’re being subjected to a bad Ratin translation as well. Clearly what happened is that the devs couldn’t think of names so they just stuck a bunch of character traits together and then turned it into Latin so that it would sound fancy. It would be like if I called myself Dicaces Legis Venatus rather than “Chris.”

All kidding aside, these names have a very practical problem. Because names of this sort are . . . uncommon, if every character in the game has a name like this, it’s going to be very hard to remember anyone’s name.

Anyway, once the game has verified that you are capable of pushing forward on the stick, the scene zooms out and fades to white, and a dramatic splash screen appears announcing we are going back in time to “before the fall.” Which leads to me make my first prediction, and not a very bold one: things are eventually going to go to shit and we’re going to end up in a FFVI-style World of Ruin situation.

This scene over, the game now shifts into full CG movie mode. We are shown the city of Insomnia and are quickly taken to the throne room, where the King Regis Caelum Fakieia Latina CXIII is directing his son and retinue of bros to leave the city. Based on character appearances, this is set some considerable amount of time before the prior fight scene. Apparently, Noctis is getting married as part of a treaty to end the war between Lucis and Niflheim. The King is very formal, while in keeping with Final Fantasy tradition, Noctis is a teenage asshole, which leads to me to believe the two don’t have the greatest of relationships.

Having blown off the ceremony of the throne room, the party moves outside toward a waiting car, but the King follows them outside in an attempt to see Noctis off in a more . . . fatherly fashion. It’s apparent that the King wants to tell Noctis Important Things About Being a Man, but Noctis is being too much of an arrogant asshole to listen. So with a final “Walk tall, my son,” we’re off.

We then move from CG land to more standard faire that zooms in on a dusty road. It appears that the car has broken down and the party is currently trying to push it towards the nearest service station. The game is already struggling with its story logic. Let’s recap here: (1) Noctis is a prince, (2) he is on his way to a royal wedding and (3) this wedding is part of a treaty ending a major war.

Given that, how does it make sense that his entire escort consists of three dudes, whose sole apparent qualification for the job is that they are Noctis’ best friends? Shouldn’t there be, I don’t know, a military honor guard or something to make sure he reaches his destination safely? And for that matter, shouldn’t his car have been serviced before he left so there were no major breakdowns on the way? And shouldn’t he be able to simply call another freaking car when this one breaks down? We’re five minutes into the game and already the game can't be bothered with basic questions.

I’d also like to point out that this is a different car than the one shown in the prior cutscene.

Anyway, this scene consists solely of some light banter and of you needing to hold R2 to push the car. To top it all off a cover of Stand By Me starts playing as a late title card comes up. Yes, you read that correctly. No, that was not a joke.

Instead of the Final Fantasy Theme, or some epic swelling music signaling the start of your journey, you get Stand By Me. I feel like I wandered into a Kojima game by accident. It's just so . . . bizarre. Even by Final Fantasy standards this is bizarre. It's so strange I don't even have the words. Instead, I think I need Jeff to sum up my feelings at this point.

PART THE SIXTH - IN WHICH I TRY TO SAY SOMETHING NICE AND SIGN OFF FOR NEXT TIME

It probably sounds at this point like I'm just trying to dump on the game. And to a certain extent . . . yeah, that's true. But here’s the thing – despite of, or maybe because of its weirdness and illogical nature, I actually really like the introductory scene where the guys are pushing the car. It does a nice job of quickly establishing (a) that this is a group of good friends, (b) giving you a sense of scope about the world and (c) providing a starting point for the story to begin.

The banter between the characters feels genuine and the idea of pushing a broken down car is a funny way of subverting the expectations of the genre. You're supposed to start these games by doing something epic, not doing something mundane like fixing a car. Even the player needing to "hold R2 to push," something that would normally piss me off as useless fluff, is used intelligently as a way of getting the player to feel involved with the "work" of pushing a wreck down a country highway. Even the music choice feeds into the idea that this is just a group of best friends on a big road trip adventure.

So my problem is most definitely not this scene. Had the game just started with the party on the side of the road trying to get the car moving, I think it would have been a really strong opening. No, my problem is everything that came before this scene. Like many Final Fantasy games in the past, this game is struggling to pick a tone and stick with it. The first scene was attempting to be dark and post-apocalyptic. Then the second scene is attempting to be a family drama. Then the final scene is setting up a heartwarming buddy-comedy.

The thing is, had the game picked any one of those and stuck with it, it could have been the basis for a really good opening. As it is, my head has been twisted in so many directions by tonal whiplash that I'm starting to look like that girl from The Exorcist. At least the final bit with the car gives me some hope that there is a writer or two on the staff who has some idea of what they are doing.

And with that, I think I'll bring this first episode to a close. Yes, I realize I haven't actually played very much of the game yet. And maybe this wasn't the most thrilling discussion. But this took me . . . somewhat longer to write and format than I was anticipating and I'm kind of tired now. Plus, this seems like a good break point.

Look. How about we say that if you promise to come back, I promise to start the next entry with generous shots of cleavage. That work for everyone? Yes? Good. See you next time.

You might have heard Destiny is sort of a thing lately. Given that the game is too huge to offer in depth thoughts about on a short timeframe, I though I would make a journal of my experiences and opinions as I play through the game. Contained below is a diary of my experience playing through a few hours last night. I plan to update this some more as I get farther into the game.

EDIT: This has now been updated for easier reading. The table format was a really bad idea.

EDIT: I have placed the daily summaries up front, before the more detailed stuff, in case you don't want to read an entire wall of text.

Daily Summaries

Day 1 Final Thoughts:

After a single day playing, it's hard to say what I think. There's certainly something about Destiny that I find compelling - I wouldn't have played for almost five hours straight otherwise. That said, it's hard to escape the sense that it should be something more. Most of the individual parts work fine taken in isolation - the shooting feels awesome, it looks really nice, the music is good, etc. - but it doesn't seem to mesh together as well as it should. I don't know if that's a fundamental flaw with the game, or if I just haven't gotten far enough in the game for all of the systems to work together yet.

Tomorrow should be more telling. I plan on doing playing through the Moon and then playing the Earth Strike mission.

Day 2 Final Thoughts

After two days playing, I get the sense that Destiny may be sort of a rorschach for gamers. Some people are going to look at it and see a shooter, other people are going to look at it and see an MMO. How successful you think the game is will depend on your viewpoint. If you view it as a shooter, you will probably be satisfied. The shooting feels really good, and the action comes fast and often, especially if you are in a group.

On the other hand, if you look at it as an MMO, you will probably find it lacking. The social options are non-existent - you can't invite people in your Clan without also being friends on PSN with them for example - and a lot of the story is so threadbare it is extremely hard to keep track of what'a happening, and so far there have been exactly zero memorable NPC characters to care about. The mission structure is also disappointingly rote. It all amounts to "go here and kill these things." Since you do a lot of that just walking around, the story isn't exactly offering a new experience.

Tomorrow I will presumably reach Level 15, which is when my second sub-class opens up, so I'll see how that changes the gameplay, if at all. I have also unlocked Venus and a strike mission on the Moon, so I'll see where those take me as well.

Day 1

Day 1 - What I Did

• Character creation
• Levels 1-9
• All available Earth story missions
• Earth Patrol mode
• Crucible - Control and Clash modes

Day 1 - Character Creation

The important thing to know about character creation in Destiny is pretty much that nothing you do seems to matter beyond choosing your class. The character creator looks robust when you first boot it up, but the actual substantial options are rather limited - there are no beards or body type options for example - and all the characters I tried to create ended up looking mostly alike. My humans always ended up looking like a Winklevoss twin. Therefore, I have decided to name my Warlock Topper, because that seems like the kind of old-money East Coast name a Winklevoss twin would have.

Day 1 - Story Missions

The game starts with a brief intro cinematic of astronauts landing on Mars and encountering the Traveller - that big orb that features in all the concept art. This is followed by my character being awakened by Ghost, aka Dinklagebot 2000. I have decided to name him Castamere. Apparently, my character has been "dead for a long time." However, the exact method of my resurrection is never explained or expanded upon, beyond it being Necessary for the Plot.

So, to summarize, the story so far: There is an Orb, called the Traveller, which is Good. It was fighting/running away from Another Entity called The Darkness, which is Evil, and which represents an Existential Threat to the Last City, which is where all the Guardians live.

So far, it's all a lot of Nonsense. Also, Proper Nouns.

Day 1 - Patrol and Character Advancement

Outside the story, I also partook in some of Destiny's free roam mode called "Patrol." It seems that this is the primary arena to advance your character. It mostly involves picking up missions from beacons or performing meta-tasks called "bounties" you pick up in the Tower. Right now, it's pretty repetitive. There is no real plot attached to any of the beacons, which is disappointing, as it really draws attention to the fact that this is a Task needed to Level, rather than being a meaningful action within the universe.

Honestly, I'd rather Bungie just ditch the beacons entirely. They don't give enough experience to be worthwhile, they aren't interesting story wise, and you can only take on one at a time. Honestly, I'm having a lot more fun just exploring looking for secrets, primarily in the form of Golden Chests, which contain pretty good gear, and Dead Ghosts, which give you a Grimoire entry.

Speaking of the that Grimoire, I haven't really interacted with it that much. For one thing, it isn't accessible in game, and I'm not dying to pick up my phone just to launch an app that lets me read a bunch of random lore. The game is constantly popping up information about entries, but it's just sort of obnoxious. There doesn't appear to be a way to turn these notifications off however.

Day 1 - Crucible

The Crucible is Destiny's PvP mode. There are a total of four modes to choose from based on the graphic you get when selecting it. Strangely, however, Bungie has made the decision to force you to play one mode to unlock others. You being by having to play Control, which as the name suggests, is about capturing and controlling points. I will be honest and say I hate this mode. I'm not very good at PvP, and I tended to get killed in a single shot without even seeing my opponent. The 3d damage arrows don't help in this regard, as they make it hard to see exactly where I'm getting shot from. Needless to say, I feel like a liability and my team gets crushed in all three matches we play.

My suffering however, does unlock Clash mode, which is team deathmatch. I found this significantly more enjoyable. In Control, I found myself frequently confused about how I should be contributing - should I be capturing a flag, hunting enemy players, or defending a position? In Clash, there is only one objective - kill enemy players. Being part of a team helps too, since someone can pick up the slack for my suckitude. After a couple of matches, I feel like I am improving significantly. Rather than finishing last, I finish third on my team, and within spitting distance of second. We actually win the two matches we play as well. Definitely a mode I could see myself coming back to.

Day 1 - Statistics

• Time Played: 5 hours
• Character Advancement: Level 1 --> Level 9

Day 1 Final Thoughts:

After a single day playing, it's hard to say what I think. There's certainly something about Destiny that I find compelling - I wouldn't have played for almost five hours straight otherwise. That said, it's hard to escape the sense that it should be something more. Most of the individual parts work fine taken in isolation - the shooting feels awesome, it looks really nice, the music is good, etc. - but it doesn't seem to mesh together as well as it should. I don't know if that's a fundamental flaw with the game, or if I just haven't gotten far enough in the game for all of the systems to work together yet.

Tomorrow should be more telling. I plan on doing playing through the Moon and then playing the Earth Strike mission.

Day 2

Day 2 - What I Did

• The Moon patrol mode
• All available Moon story missions
• Levels 9-14
• Crucible - Rumble and Skirmish modes
• Devil's Lair strike

Day 2 Statistics

• Time Played: 5 hours (10 hours total)
• Character Advancement: Level 9 --> Level 14

Day 2 - Story Missions

Today I played through all of the Story missions on the Moon, and so far, all of the missions follow the same structure: Go to waypoint A, kill things along the way, and then hold off/kill/destroy thing B. Except for one mission that had me using a big ass sword, there wasn't a lot of variety. It gets repetitive, and it's sort of disappointing Bungie couldn't come up with more creative encounter designs.

I am getting the sense that Bungie intended for the story missions to link together in some sort of loose meta-plot for each planet; for example, all the Earth missions revolved around the Fallen, while the missions on the Moon have you fighting the Hive. However, Bungie didn't do a very good job of providing much context for the missions, and everything feels sort of disjointed as a result. Because there are next to no cutscenes or NPCs, none of the missions have a good through line to connect them. For example, I think the Moon missions were supposed to involve me stopping the Hive from invading Earth, but that's just my own conjecture based on what the missions had me doing. Going forward, Bungie needs to make an effort to connect each story mission in a meaningful way. Cutscenes might help with this.

Day 2 - Devil's Lair Strike

I also took part in the Earth strike mission, called Devil's Lair. The matchmaking for this mode worked quite well and was relatively seamless. The strike itself was also mostly fun. One thing I am finding about Destiny is that the game is significantly more fun when you have larger firefights with a group of people than when you fighting isolated groups of enemies by yourself.

This is the mission with the now well-known "Spider Tank" enemy, and it still suffers the same problem that it did in the beta in that it is far too much of a bullet sponge and takes too long to defeat. My team even seemed to know what to do (shoot it's legs until it exposes its core) and it still took almost five minutes of pounding it before we could kill it. That said, the final boss fight was much better and did offer some tense moments when I was the only team member left standing and had to rush to resurrect the other two.

I will say that I found the rewards somewhat disappointing. Part of this is the RNG, but I had hoped for a more significant upgrade to my gear than what I got. I did have a very good time, but going forward, I hope later Strikes offer more varied encounter design that just "shoot the boss in the weak spot for five minutes."

One thing I did discover, however, is that all those Grimoire cards I've been collecting and paying next to no attention to are actually sort of important for providing context. Going through the Devil's Lair strike for example, I was super confused about why I was doing anything I was doing and the boss didn't appear to be anything more than a great big purple orb. Reading the Grimoire, however, you find out that that Orb is both the central focus of the enemy religion and also controls all the smaller orbs you see out in the regular game world, so by killing it, you presumably kill those too (except not, because MMOs). That information provides the necessary context to actually care about the story. I just can't figure out why Bungie didn't put that in the game. The information is way too important to stuff into some companion app most players will probably never use.

Day 2 - Patrol and Character Advancement

Day 2 and it's more of the same from the patrol mode. Get beacon, go to point, kill things or use Ghost. I have to say the lack of variety has become a major problem. Since this is primarily where you need to grind out levels, there simply isn't enough to keep you distracted. All MMOs are fundamentally about repetition. The good ones hide the repetition behind interesting scenario design, story, or side activities. Unfortunately, Destiny has none of those things at the current moment and as a result you are very, painfully, aware of the grind to the next level.

It might help if it felt like the leveling was worthwhile, but I'm not feeling it right now. Since I got my grenade upgrade, I feel pretty happy with the way my character plays. Looking at the skill tree, I don't feel like there is an ability I am absolutely dying to get my hands on or particularly want to work towards. It seems like a lot of grinding is necessary to unlock later upgrades as well. This might become a problem later. For now, I'm only one level away from unlocking my second sub-class, so maybe that offers up some variety.

Day 2 - Crucible

Today, I soldiered on in the Crucible and played through the final two available modes; Rumble and Skirmish. Rumble is just straight up deathmatch, so it's relatively straight forward. Generally, I found this mode to not be as appealing as the team deathmatch Clash mode. This is because without a team backing you up, you cannot concentrate fire with your primary weapons. As such, they are pretty useless and everyone uses their secondaries instead. However, these weapons tend to kill other players in one shot, so firefights are almost entirely determined by who saw who first, rather than any particular strategy.

I don't know what to think of Skirmish. This is a 3v3 mode where the stated objective is to "kill and revive other players." I'm not entirely certain how this is different from the objectives of any of the other teams modes. I mean, shouldn't I be doing these things anyway? Regardless, I have a visceral dislike of this mode. Each game went more or less the same way - one team would pin other in a corner and start a cycle of kill/resurrection/kill that didn't leave much of an opportunity for the other side to fight back. All the matches ended extremely lopsided. Not something I'd play again.

In other news, I am also frustrated by the randomness of the Crucible reward system. You are awarded items at the end of each match, but it seems random and I've never received anything good. In one match, everyone received a blue item. Except for me. I got nothing. The most frustrating part of it is that it didn't seem tied to my performance - I finished 3/6, but the other players got the items, despite performing significantly better/worse than me.

Day 2 Final Thoughts

After two days playing, I get the sense that Destiny may be sort of a rorschach for gamers. Some people are going to look at it and see a shooter, other people are going to look at it and see an MMO. How successful you think the game is will depend on your viewpoint. If you view it as a shooter, you will probably be satisfied. The shooting feels really good, and the action comes fast and often, especially if you are in a group.

On the other hand, if you look at it as an MMO, you will probably find it lacking. The social options are non-existent - you can't invite people in your Clan without also being friends on PSN with them for example - and a lot of the story is so threadbare it is extremely hard to keep track of what'a happening, and so far there have been exactly zero memorable NPC characters to care about. The mission structure is also disappointingly rote. It all amounts to "go here and kill these things." Since you do a lot of that just walking around, the story isn't exactly offering a new experience.

Tomorrow I will presumably reach Level 15, which is when my second sub-class opens up, so I'll see how that changes the gameplay, if at all. I have also unlocked Venus and a strike mission on the Moon, so I'll see where those take me as well.

Hi all, sorry for the delay, but I've been busy. Hooding ceremony + graduation + 2 swearing in ceremonies (all on consecutive days) kind of takes it out of you.

Part I of this series provided some basic definitional background for discussing intellectual property issues. Part II then went into explaining just what the heck was going on between Nintendo and Let's Play. In this, the final part of the mini-series, we'll get a bit into the debate as to the moral and legal high ground in this whole issue, and then maybe get into a discussion about whether this is merely a poor implementation of a generally good copyright law, or whether the system needs a total overhaul.

Before we begin, there are a couple of points to get out of the way so that everyone can be on the same page during this discussion. The most important thing is to define just what we're saying when we use the word "right." I've noticed there is some equivocation in defining this term. Some people use it to refer to a legal entitlement to do something. Others use it as a moral concept. For the purposes of this discussion, if I use the word "right," I'm taking about the legal aspect. If I use the word "Right" with a capital "R," then I'm referring to the moral concept. Secondly, for the later part of the discussion, you may want to refer to my post on the Law of the Horse, located here. You don't have to, of course, but you'll hurt my feelings if you don't. With that out of the way, let's get to it.

So, Nintendo and Let's Play. Word is they've been going at it lately. I have made a short summary of some of the arguments each side is advancing below. Here's the tl;dr summary for those of you with short attention spans:

I. Let's Play's Arguments

Argument #1: C'mon man, we just love Nintendo games. We aren't really hurting Nintendo by doing this.

Why This Argument is Appealing: It appeals to our sense of Right. When watching the Let's Play videos, one does get the sense that the people doing them really DO love the games they are playing, making the whole thing more of a labor of love than an attempt to strike it rich.

Why It Has Problems: This doesn't help to explain away Nintendo's right to do what they are doing. Being in the Right isn't a whole lot of help if Nintendo can get a court to make them stop. Plus, if they loves the games so much, why aren't they OK doing this for free?

Argument #2: This is really stupid on Nintendo's part. Our video's provide them with all sorts of free advertising and exposure. If we can't profit from our work, we'll stop making videos and the free exposure for Nintendo will go away.

Why This Argument is Appealing: It has a certain intuitive appeal. Obviously, a YouTube video of someone having fun with one of their games has to be good for Nintendo. Right? Right?!

Why It Has Problems: The more you think about it, the less true this might seem. If you're watching a Let's Play video, then the chances are that you are already a pretty heavy gamer, in which case you have already made up your mind about Nintendo one way or the other. The target demographic for Nintendo's advertising are the people who are buying games for someone else who aren't necessarily gamers themselves, like parents, and they are unlikely to stumble onto Let's Play by themselves. If we are talking advertising in the sense of getting someone to buy something, then there is probably less of it going on here than we think.

Argument #3: We need the money.

Why This Argument is Appealing: Who doesn't like money? We've all been poor college students at one time or another right?

Why It Has Problems: So Let's Play's entire plan boils down to:

a. Post YouTube videos of you and your friends playing copyrighted games

b. ???????

c. Profit

and they're surprised when it doesn't work out? Really? Did they even think about maybe getting a real job? Losers.

Argument #4: We're protected by Fair Use

Why This Argument is Appealing: It gets more at Nintendo's right to do what they're doing than the other arguments. If you want Let's Play to win, you like this argument.

Why It Has Problems: As I explained in another post. Let's Play isn't covered by Fair Use. Maybe that's too strong. It's possible that they are covered by Fair Use (except they aren't). After all, anything is possible (even when it isn't).

II. Nintendo's Arguments

Argument #1: We hold the copyright, we can do what we want.

Why This Argument is Appealing: It's true. Nintendo does hold the copyright, and that does give them the right to dictate what can be done with it.

Why It Has Problems: It offends our sense of Right. Yes, they hold the copyright, but it isn't like they need to enforce it all the time. They could at least show a little restraint.

Argument #2: We aren't the bad guys here. We could have just issued takedown notices, but we didn't. We're just taking the ad money.

Why This Argument is Appealing: When phrased this way, it makes it seem like Nintendo is showing some restraint. Why shouldn't they at least get their cut?

Why It Has Problems: If all the revenue goes to Nintendo, Let's Play videos with Nintendo stuff will eventually stop getting put up, which effectively makes the move the same as issuing a takedown notice. Plus, it isn't like Nintendo needs the money. They made over $70 million last year. Wow, when you think about it, this is kind of more of a jerk move than just issuing the takedown notices, isn't it?

Argument #3: We have the right to control our brand. Yes, some of the Let's Play videos are really good, but others are produced by neckbeards in their mom's basement who swear a lot and think that's cool. We can't have our brand associated with that kind of stuff.

Why This Argument is Appealing: This is probably mostly appealing if you are in marketing or something. That said, Nintendo is pretty fiercely protective of its brand, particularly when it comes to Mario, so this kind of makes sense from their perspective.

Why It Has Problems: Again, it offends out sense of Right. Just what the hell is a brand anyway? All those millions you spend on TV advertising not enough for you Nintendo?

III. So Where Does This Leave Copyright?

How you feel about this is likely based on how you feel about Nintendo's actions here. If you think Nintendo is acting like a bunch of jerks, then you probably think that copyright law needs changes. If you see where Nintendo is coming from, then you are likely to say we should stay put.

What I find interesting about this isn't so much the nature of copyright law itself, but how the perception of it changes depending on how it is enforced. There does seem to be a bit of a disconnect present. Remember, copyright law is designed to further innovation by protecting original work. From this perspective, it should make no difference whether the person or entity advancing the innovation is big or small, yet it seems like it matters to those who have an opinion. In my Law of the Horse post, I mentioned how Jim Sterling was pleased that Warner Bros. was getting sued for violating copyright. From the comments I've been reading here, I'm guessing most people on these boards would agree. It's a case of the "little guy" sticking it to a major corporation. We feel that it is Right that Warner Bros. is getting sued, in the same way we feel Nintendo is Wrong for going after Let's Play.

But this is the crux of the disconnect. One of the central tenants of our legal system is that the law should treat everyone equally. In short, we feel like it is Right when it does so. If that is true, then it shouldn't matter whether it is the Nyan Cat guy or Nintendo trying to enforce a copyright. They both have a legal right to do so. If the law enforces those copyrights equally, then the law is Right. However, this conflicts with our general sense that the "little guy" is more deserving of protection than a faceless corporation, so agreeing with the above statements likely causes you some discomfort. Agreeing with one statement means giving up the other, at least to some extent. It is of course possible to argue that the law isn't being enforced equally - that large corporations have an easier time paying for access to the system and competent legal help than someone working out of their apartment. That might be true. However it also isn't, strictly speaking, a legal problem, but an economic one instead (obviously the economics of it affect the law, but that's an issue of access, not copyright specifically). One wonders if that inequity were solved whether or not there would still be the level of discomfort with copyright principles that we have right now.

If you want my opinion, changes are probably needed, although not specific to video games. When I was in law school, I took a class called "Internet Law," which discussed the Law of the Horse and whether we needed laws specifically related to the internet. At the time, I my opinion was we didn't need anything new. The more I've thought about it though, the more I think certain laws need to be overhauled. I'd probably address the problem from the perspective of "Digital Law" rather than the internet or video games specifically. Specifically in the realm of copyright, the digital age has created a whole host of new problems. What caused me to change my mind? For one, it is a lot easier to duplicate material than it was previously. Before home computers and things got really popular, it actually took quite a bit of effort to reproduce and sell a work. For example, if you wanted to sell a book, you needed a physical device like a printing press to actually make it, and then a physical location from which to sell your product. In other words, if you were producing what today we would refer to as "content," you were either a pirate who didn't care if you were violating copyright or not, or you had invested so much in the project that you would make damn sure your work was unique enough that you wouldn't be sued.

In today's world, producing and selling content is much, much easier. Certainly there is effort involved on the part of Let's Play here, but it isn't nearly as much as it would have been 20, 10 or even 5 years ago. Pretty much all someone needs is a webcam and an internet connection and they can produce and post a video on YouTube and get advertising money for it. Not only does this make it easier for pirates to sell copyrighted material illegally, but it makes it easier for an average person to violate copyright without knowing it. In the past, you would probably have consulted a lawyer, or at least done some research before selling something where copyright may have been an issue. Today, someone is much more likely to say, "that's cool, let's post it," without even thinking about the legal consequences of copyright.

Given this new reality, it seems like a good idea to create some new form of copyright rules, if for no other reason than to make it clear to people when they are stepping over the line. The major question for me when doing this is whether we want the new rules to be legislative or common-law (judge made). Obviously, the legislative approach will have the advantage of being (comparatively) quick, but runs the same risk we have now; some other new technological change comes along that makes the new rules obsolete again. A common-law approach would be more likely to be fair in any given individual case. That said, judges disagree all the time, and this approach runs the risk of the circuit courts splitting on the issue, leading to more confusion than we have now. In other words, with a common law approach, the problem is likely to get worse before it gets better.

---

On a semi-related note, I've kind of been surprised by the reaction to these posts. I had originally started these just so I could have something to do while looking for a job. I wasn't expecting to get such a huge response from the community. With that in mind, I thought that I would let you guys determine the direction of my next topic. There are several things I could write about, many of which I had intended to do a while ago, but then, you know, school. Possibilities include:

1. Another primer sort of like this one but on the rash of bankruptcies that happened a while back.

Pros: I'm more knowledgeable about bankruptcy than I am about copyright, which is to say I had a class on it. And an internship.

Cons: Unfortunately my knowledge is mostly about individual Chapter 7s and 13s, not Chapter 11s, which is what got filed. It's also not exactly topical, since the whole THQ thing happened a few months back

2. Writing about the new XboxOne or whatever the hell their calling it. I'd probably focus this on DRM, how Microsoft is handling the used game market and why these things tend to make us uncomfortable.

Pros: It's a hot button topic these days. It would also allow me to get my inner law nerd on by discussing Underkuffler a bit.

Cons: We don't know a whole lot right now about the specifics of Microsoft's system. This might be better held until after E3, when Microsoft will presumably discuss this a bit more.

3. The 38 Studios fiasco.

Pros: This could be interesting if I figure out how to do it right. It has everything you could possibly want; fraud, bad government, murder (alright - I made that up), and some guy who is apparently famous for wearing a bloody sock or something.

Cons: This would take me a while to write. The whole saga is pretty complicated, so I'd need to do some research on Rhode Island law and the actual legal issues getting thrown around.

4. Some other topic you find interesting.

Vote in the comments. I'd make a poll, but I can't seem to do that within a post.

--

EDIT: I'm aware that there is some weirdness going on with the pictures up top. The text isn't supposed to be between them like that. I can't seem to fix it. Just imagine the text being on its own line.

Part I of this series started by going over some basic copyright terms and explaining some of the underlying purposes of copyright law. This portion will try to explain just what’s happening between Let’s Play and Nintendo. I thought it would be easiest to structure this in a question and answer format in order to hopefully avoid Wall of Text Syndrome (now with Shiny Pictures!).

Q: So what is Nintendo doing exactly?

Before getting to this, let’s get straight what Nintendo isn’t doing:

• They aren’t suing Let’s Play creators for copyright infringement. No federal court is involved . . . yet. This is purely a dispute between Let’s Play and Nintendo, with YouTube standing in the middle.
• They aren’t issuing a takedown notice under the Digital Millenium Copyright Act . . . yet, although this is probably the next likely step if the situation escalates in some way. For those who aren’t aware, the DMCA allows those who feel someone is violating their copyright with material posted online to send a takedown notice to the service hosting the allegedly violative material. This usually results in the offending content being taken down. If you’ve ever clicked on a video in a link and received a notice along the lines of “this video is no longer available” there is a good chance that this is what has happened.

Q: Would you please answer the question? What is Nintendo is doing?

Nintendo is trying to enforce YouTube's "Content ID" system.

Q: Alright, but what’s the Content ID system?

The Content ID system allows participants like Nintendo to define items they feel they own a copyright to by submitting a sample set of their own content. Whenever new content is uploaded, it is checked against a database containing this information and flagged if the system feels it is violating a copyright claim on the list. If content gets flagged, then certain actions are automatically applied based on the copyright holder’s preference. Right now, there are three options available.

1. The copyright holder can monetize the content. This means that ads are placed in the middle of the content, with the revenue going to the copyright holder.
2. The content can be blocked.
3. The content can be tracked. If this option is chosen, then nothing happens to the video, but the copyright holder gets analytics data about how the content is viewed.

As near as I can determine, Nintendo became part of the Content ID system and sent in a bunch of sample content, which is now causing the Let’s Play videos to get flagged. Nintendo apparently elected the “monetize” option as what they want to do with allegedly infringing content. Since the Let’s Play videos were already getting ad revenue, the videos themselves are unaffected, but all the ad revenue now goes to Nintendo rather than the creators of Let’s Play.

Q: Doesn’t Let’s Play get some sort of say in this process?

Technically, yes. If a YouTube user’s content gets flagged, they have two options. They can either accept YouTube’s judgment on the matter, or they can appeal. If they chose to appeal, one of two things will happen. The person or entity claiming copyright can either withdraw their request, in which case the user wins, or the copyright holder can proceed to sending a formal legal copyright notice under the DMCA, which will almost certainly result in the at-issue content being taken down.

Although this seems perfectly fair in theory, the appeals process does come with a pretty significant stick; if the copyright holder doesn’t withdraw their claim and files a takedown notice, then the accused user receives a “strike” against their account. If a user racks up three strikes, their account gets suspended and all of that account’s videos are removed, even the ones not subject to a Content ID claim. There are a couple of things that I found sort of shocking about the way the process is structured:

1. First, YouTube is pretty hands off in the whole process. Actually, this one isn't all that surprising if you know anything about the DMCA, but it might shock people not familiar with it. When an appeal is made, all YouTube does is provide the user a form to state the reasons they are disputing the claim. This form is then sent to the accuser who uses the form to determine whether or not they want to pursue their claim or not. At no point is YouTube involved in evaluating the validity of the Content ID case. This means that the accuser is pretty much the judge, jury, and executioner of their own claim.
2. Second, there doesn’t appear to be any further steps to the process; if the accuser wants to file a takedown notice that’s that, and the user receives a strike agains their account. A lot of user agreements provide for some sort of arbitration in the event of an intractable dispute. As far as I can determine, the YouTube user agreement doesn’t even contain the word “arbitration.”
3. Third, there doesn’t seem to be any process for removing strikes once they have been issued, beyond the listed six-month waiting period. Since there is no language to the contrary, this apparently means that the strike would remain even if the user took the copyright holder to court and won.

Q: Wow, isn’t this whole process just a lazy jerk move on YouTube’s part?

It might look that way given the limited options available to users whose content has been flagged, but really this is just YouTube looking out for its own best interest. You see, under traditional copyright law not only is the person actually violating the copyright liable for their infringement, but also anyone who helped that infringement in a secondary capacity. This means that under traditional copyright law, YouTube could face a lawsuit for “secondary infringement” for every video that goes up that containing copyrighted material. Given that between the user and YouTube, YouTube is the one with the “deep pockets” to pay damages in a lawsuit, this could mean that YouTube would be the one actually getting sued in most cases, which would quickly become a problem.

It was partly for this reason that Congress passed the DMCA. Under its provisions, “Internet Service Providers,” a category in which YouTube falls, are provided with a “safe harbor” where they will not be considered to be secondary copyright infringers provided that they follow the DMCA’s process for managing takedown notices. When you get right down to it, the Content ID system is really just a practical implementation of the DMCA’s “safe harbor” provision. As to why YouTube won’t get involved in mediating the disputes, there are really two answers. First is that they don’t want to mediate a dispute, have the losing party take the issue to federal court and have a federal judge say they were wrong. This would end up exposing them to the very liability they are hoping to avoid. Second, YouTube has a massive number of videos. They receive literally thousands of takedown notices a day. Going through every one would be too costly and time consuming, so it is easier to just take down the videos preemptively whenever they receive a DMCA notice.

Q: Alright, so what other options are available to Let’s Play?

Well, they have a couple, although neither one is particularly appealing. First, they could go what could be called the “contractual” route. This would involve attempting to argue either that the terms of YouTube’s Content ID system don’t apply to them, or that Nintendo somehow did not comply correctly with the requirements. Unfortunately for Let’s Play, this doesn’t seem likely to succeed. By posting on YouTube at all, Let’s Play agreed to YouTube’s terms of service, and those terms of service are pretty clear about the applicability of the Content ID system. In fact, it has several pages just going over how the system works. As for Nintendo doing it wrong, well, Nintendo has enough lawyers to populate a small asteroid and many of them likely deal exclusively in intellectual property law. I wouldn’t be surprised to discover that they have an entire team of lawyers dedicated to just managing DMCA takedown notices. In other words, there is always a chance they could have done it wrong, but I wouldn’t count on it.

Q: You just said they had a “couple” of options. What’s the other one?

The other option available to Let’s Play is to claim that their videos constitute a “fair use” of Nintendo’s copyrighted material. “Fair use” is an exception to copyright law stating that under certain circumstances, the public is allowed to use copyrighted material without the copyright holder being able to sue them. For example, material may be used for criticism or education without being able to trigger a copyright claim. There are four factors that get examined when looking at whether something qualified for the “fair use” exception:

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

Most of the debate on this issue is going to center around the first factor, which is also the one that the US Supreme Court has labeled the “primary” factor. The central examination taking place under this factor is whether the work claiming fair use is “transformative” in nature. If this seems really vague and unhelpful, that’s because it’s intended to be that way. Congress and the courts don’t want to strictly define the term and potentially limit some future legitimate use of the material. Therefore, it would be a mistake draw conclusions about Let’s Play videos simply by taking the dictionary definition of “transformative” and applying to say that the fair use exception applies (or doesn't). That said, most “transformative” works are held to fall into two categories; parody and commentary/criticism.

Since the Let’s Play videos are pretty clearly not parody, their only real chance of falling into the fair use exception is to qualify as a “commentary” on the gameplay. Obviously, your feelings on this matter are going to turn heavily on just what you feel a “commentary” is. Nintendo would certainly argue that “commentary” means something more substantial than a bunch of guys sitting around talking about playing a video game and that the term implies something a little bit more critical than what amounts to a “Long Look.” On the other hand, if you define commentary as “a descriptive spoken account of an event or performance as it happens,” then you probably think that Let’s Play qualifies. They are after all, describing their experience with a game as they are playing it, which seems to fit that definition.

Given that there is support for both sides, I would point out that this is an examination of just one of the four factors. The other three tilt more against Let’s Play; they are for-profit videos and those tend to receive less fair use protection than non-profit or educational videos. This puts them at risk under factor number two. Additionally, they show substantial portions of a game, in some cases the entire game. This puts them at odds with factor number three, which gives less protection to items that display significant portions of a copyrighted work. In other words, Let’s Play videos are likely going to have a hard time qualifying under fair use.

Q: Why is Nintendo doing this? It seems like a case of cutting off your nose to spite your face.

Obviously the answer to this question will necessarily involve a good deal of speculation. We aren’t privy to the discussions within Nintendo corporate headquarters. That said, I think there are largely two possible reasons why Nintendo decided to suddenly get involved:

First is money. Let’s Play videos have been steadily growing, both in number and as a source of revenue. Given that Nintendo didn’t issue takedown notices but instead chose to siphon the ad money into their own pockets, it seems plausible that they merely want their cut. However, there are a couple of problems with this theory. For one thing, even given their recent less than stellar track record Nintendo still makes eleventy bajillion dollars a year. Any ad revenue they pull in from Let’s Play is hardly going to amount to a drop in the bucket for them. As many have mentioned, this seems like Nintendo shooting themselves in the foot. Additionally, the Let’s Play videos amount to free advertising and exposure for Nintendo’s games, possibly encouraging others to purchase their products. Suddenly being aggressive with their copyrights only serves to reduce the number of people who will be willing to post that material, cutting off both the source of free marketing and any ad revenue generated from the content. For those reasons, I don’t think that money is the reason, or at least not the primary reason for Nintendo’s actions.

The second reason, and the one I suspect is driving Nintendo, is the ability to control their brand and what gets said about their games. Nintendo has always seemed pretty careful about defining themselves as the “family friendly” video game company, particularly when it comes to properties like Mario and Zelda. Although the Let’s Play videos do provide them with a means of free advertising, Nintendo also don’t have control over what gets said. It is entirely possible that Let’s Play could put up a video that bashes a Nintendo game and actually decreases interest in that game. They might also produce a video that juxtaposes something like Mario with more salacious material, which risks damaging the perception of the brand. They might feel that the damage they do to themselves with gamers in the short-term is a worthwhile cost to pay for maintaining a tight control over what get associated with their brand.

Whatever the reason for their actions, keep in mind a couple of things before jumping to conclusions about Nintendo being evil and/or stupid. First, Nintendo legally owns the copyrights to their games and characters, and that gives them the legal right to determine how that content is used, including sending DMCA takedown notices or making claims under the YouTube Content ID system. However, just because they have the capacity to do it doesn’t necessarily mean they are wise to do so. If I were their attorney, I would absolutely have brought up the possibility of bad PR in taking these actions. However, as you quickly find out as a lawyer, your clients don’t actually need to listen to you. If the issue was even brought up, they might have ignored any advice they received. Or maybe they did listen to their advice, which brings me to the second point.

Just because you or I think that this is shortsighted and stupid on Nintendo’s part doesn’t mean they weigh things the same way. The managers of the company obviously have access to more data than we do about the internal workings and long-term strategy of the company. It is very possible that the issue of bad PR and long-term damage was brought up. It is also possible that they took this possibility very seriously, but in the end decided that there were more important factors to take into consideration long term.

And on that note, we will conclude this second edition on this topic. Hopefully, I will get around to writing on whether this whole issue suggest that copyright law needs an overhaul or not, which is something that should hopefully engender discussion rather than merely being an long-winded explanation. If I do, it would probably be sometime next week or the week after. As always, if you have questions, leave them in the comments and I'll try to get to them.

EDIT: Part III is now up.

Yeah, so this happened.

Not only is this yet another example of how hopelessly out of touch with reality Nintendo is, it provides a perfect opportunity to discuss the vagaries of copyright law as it relates to video games. Since copyright law is a really, really big topic, this is going to be broken up into several posts. This first one will primarily be a primer on just what a copyright is and the underlying policies behind the current structure of copyright law. This will probably be followed by posts on just what the hell is happening with Nintendo and Let's Play. After that, there might be a final post debating whether or not copyright law is really capable of handing these kinds of disputes.

A word of warning before we start; I'm an estate planning wonk, not an intellectual property wonk. My exposure to IP law was limited to first year property and an additional smattering in Internet Law and Media Law classes. Therefore, most of this is going to be pretty general as I am by no means an expert on copyright law. That said, I have been through three years of law school, which means I'm more of an expert than you. So there. To quote Craig Ferguson, "I look forward to your angry tweets."

I. Patents and Copyrights and Trademarks, Oh My!

Before really getting into a discussion of copyright, we need to discuss the different concepts that fall under the umbrella of "intellectual property;" patents, trademarks, and copyrights. It is important to get a good understanding of how these differ because they each do different things. They are also frequently confused. To wit:

Trademarks are particular symbols or phrases that identify a product with a particular seller. The quintessential example are the McDonald's "Golden Arches." The purpose of protecting trademarks is to stop people from confusing consumers by using the same or similar trademark, which would either allow them to "mooch" off the success of the original trademark holder, or damage the mark holder's business by selling inferior products under the same banner.

Patents are temporary monopolies on unique inventions or ideas. When a person creates a new invention, they may apply for a patent. Provided that it meets the requirements, such a demonstrating novelty or innovation, a patent is issued that gives the holder the right to exclude others from "making, using, offering for sale, or selling the invention in the United States or 'importing' the invention into the United States." This right lasts for a limited time, typically 20 years, after which the patent expires and the invention may be produced by others (i.e. "generics").

Copyrights protect the creative expression of an idea. A copyright gives the holder the exclusive right to do things like produce, copy, perform, display, or adapt their work. The holder of a copyright may choose whether to publicly disclose their work, offer it for sale and determine how many or how few copies of their work will be produced.

Patents and copyrights are the two forms of intellectual property protection that are most often confused, so here are a few of their differences to help you keep them straight:

1. The term for a patent is much shorter than that of a copyright. A patent usually lasts for 20 years, with no opportunity for renewal. The period of a copyright is a little trickier to figure out, as it depends on when the initial copyright was filed. For recent works (1978 or later), the term is 95 years. Copyrights used to have to be renewed, but this requirement has more or less been done away with under more recent copyright law.
2. A patent protects the underlying idea, while a copyright protects the form the idea is expressed in. One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.
3. A patent protects not only against literal copies of the item patented, but also from derivations of the item that are not truly unique. For example, if you were to patent a single engine jet-powered flying car, then that patent would protect you not only against people making an exact copy of your idea, but also against people making a flying car using twin-jet engines, because the twin-engine car is not a truly unique idea, it is just a derivation of what you already created. Copyright, on the other hand, protects only the literal form of expression. If you were to write best selling novel, you could copyright it and be protected from people creating other books that use the text of your novel. However, this would not protect you if someone later wants to make a painting of a scene from your book because that is a different expressive form, even if it is based on your copyrighted novel.
4. Patent rights are exclusive, meaning that the holder can keep people from producing the same product, but don't necessarily have the right to produce the product themselves. For example, you could patent a new type of medicine and prevent others from producing it, but you wouldn't be able to produce the medicine yourself until you complied with any required governmental regulations. By comparison, copyright provides affirmative rights. If you hold a copyright, you have power over the form, timing, adaptation, etc. of your work and are free to produce as many or as few copies of your work as you please.

If you're still having trouble, try to "follow the money." Where is the value in the item? If the value is in the actual underlying concept, you are probably dealing with a patent. If the value is in the particular form of expression, then you are probably dealing with a copyright. For example, a SmartPhone is an example of a patented object, because the value lies in the concept surrounding the actual physical device. By comparison, a book is an example of copyrighted material. The value lies in the actual text on the pages, not on the physical structure of the book.

Understand all that? Good. From here on out, the discussion is going to be almost entirely devoted to copyrights.

II. Why Copyrights Exist

Copyright law is in a sense plagiarism protection for the real world. Whereas in school you would be expelled for stealing someone else's idea, in the real world you get hit with a copyright suit. The rationale underlying both concepts is also the same - we want to see people get credit for their work. Whereas in the academic world this is so that the authors can get credit and recognition for their research, outside of academia the recognition is primarily so that people can earn money from their ideas. The money angle is important because like it or not, money it is one of the primary drivers of innovation, and innovation is exactly what copyright law is attempting to encourage. Any innovation typically requires an initial outlay in money, time, effort, planning or some combination of these. If people can't be certain of making their investment back because of others stealing their work, they are less likely to start up a project in the first place, which slows down the pace of innovation. Hence copyrights to protect the work and investment contained in a completed idea.

Take for example the highly successful game Super Meat Boy. If you are like me, you found it a ton of fun. It was also a massive amount of work for the creators, Edmund McMillen and Tommy Refenes. If you have ever seen Indie Game: The Movie, then you know those guys spent almost two years producing the game and nearly went bankrupt in the process. Clearly they had a massive investment, both financial and emotional, in the success of the game. Thankfully, the game was a smash hit, and the money earned from the game not only saved McMillen and Refenes from destitution, but also made them fairly wealthy (I seem to recall Refenes was able to buy his parents a house). Since Super Meat Boy was an original work, they were able to use copyright law to protect their creation, which ensures that all of the financial benefit of their effort actually goes to them and not to someone else looking to make a quick buck by copying their idea.

Now assume a world where copyright law doesn't exist. I come along and notice the initial success of Super Meat Boy and see that it is going to make a TON of money. Since I like money, I decide that I want to tap that market too. However, I have no appreciable programing skills to speak of. Now, I could go and learn some programming so I could make my own game, but I'm also lazy and learning programming would be a lot of work and probably cost money. I'm also not very creative, so coming up with something as original as Super Meat Boy might be tough. I'd rather just steal an existing idea. Therefore, I learn just enough programming to figure out how to unlock the game code, pallet swap some stuff and put everything back together (yes, I am aware this probably isn't how it works. I'm a lawyer, not a computer geek. I don't even do my legal research online - I use print books). I release the game without changing anything else, except for the title, which I switch to "Super Meet Boy." Since there is no copyright, I'm able to do this without getting sued, and I siphon off some of the people who would otherwise have bought Super Meat Boy but buy my version instead. Since I was only making changes to an already completed product, my financial and time outlay was much smaller than that of the original designers, so I likely come out ahead; if not in absolute terms then in the sense of return on investment.

Understanding copyright's role in driving innovation is important because it will factor into later discussions (assuming I get around to them) about just whether copyright law as currently structured is really capable of handing the problems of intellectual property in the digital age. I definitely get the sense from looking around online that people feel Nintendo is abusing the system a bit. That's entirely possible, and it might very well mean that changes are necessary to make the system fair again (if you believe it isn't now). However, understanding the reasons for copyright law will help make suggestions for change a bit more constructive.

So that's my really vague primer on copyright. Next up, an explanation of just what is going on between Nintendo, Let's Play, and the uncomfortable middle-man YouTube.

P.S. Does anyone know if it is possible to save a draft of a blog on these forums? This stuff takes a considerable amount of time to write, and I typically don't do it one sitting. I've been writing on blogspot just so that I can copy and paste it over here when I'm done. Cutting out the middle-man would be nice.

P.P.S. If you have any questions about the material, post them below and I'll try to answer them. Mileage may vary - graduation is this weekend and family will be here so I'll be pretty swamped.

EDIT: Part II can be found here. Part III can be found here.

Yeah, so this happened.

Not only is this yet another example of how hopelessly out of touch with reality Nintendo is, it provides a perfect opportunity to discuss the vagaries of copyright law as it relates to video games. Since copyright law is a really, really big topic, this is going to be broken up into several posts. This first one will primarily be a primer on just what a copyright is and the underlying policies behind the current structure of copyright law. This will probably be followed by posts on just what the hell is happening with Nintendo and Let's Play. After that, there might be a final post debating whether or not copyright law is really capable of handing these kinds of disputes.

A word of warning before we start; I'm an estate planning wonk, not an intellectual property wonk. My exposure to IP law was limited to first year property and an additional smattering in Internet Law and Media Law classes. Therefore, most of this is going to be pretty general as I am by no means an expert on copyright law. That said, I have been through three years of law school, which means I'm more of an expert than you. So there. To quote Craig Ferguson, "I look forward to your angry tweets."

I. Patents and Copyrights and Trademarks, Oh My!

Before really getting into a discussion of copyright, we need to discuss the different concepts that fall under the umbrella of "intellectual property;" patents, trademarks, and copyrights. It is important to get a good understanding of how these differ because they each do different things. They are also frequently confused. To wit:

Trademarks are particular symbols or phrases that identify a product with a particular seller. The quintessential example are the McDonald's "Golden Arches." The purpose of protecting trademarks is to stop people from confusing consumers by using the same or similar trademark, which would either allow them to "mooch" off the success of the original trademark holder, or damage the mark holder's business by selling inferior products under the same banner.

Patents are temporary monopolies on unique inventions or ideas. When a person creates a new invention, they may apply for a patent. Provided that it meets the requirements, such a demonstrating novelty or innovation, a patent is issued that gives the holder the right to exclude others from "making, using, offering for sale, or selling the invention in the United States or 'importing' the invention into the United States." This right lasts for a limited time, typically 20 years, after which the patent expires and the invention may be produced by others (i.e. "generics").

Copyrights protect the creative expression of an idea. A copyright gives the holder the exclusive right to do things like produce, copy, perform, display, or adapt their work. The holder of a copyright may choose whether to publicly disclose their work, offer it for sale and determine how many or how few copies of their work will be produced.

Patents and copyrights are the two forms of intellectual property protection that are most often confused, so here are a few of their differences to help you keep them straight:

1. The term for a patent is much shorter than that of a copyright. A patent usually lasts for 20 years, with no opportunity for renewal. The period of a copyright is a little trickier to figure out, as it depends on when the initial copyright was filed. For recent works (1978 or later), the term is 95 years. Copyrights used to have to be renewed, but this requirement has more or less been done away with under more recent copyright law.
2. A patent protects the underlying idea, while a copyright protects the form the idea is expressed in. One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.
3. A patent protects not only against literal copies of the item patented, but also from derivations of the item that are not truly unique. For example, if you were to patent a single engine jet-powered flying car, then that patent would protect you not only against people making an exact copy of your idea, but also against people making a flying car using twin-jet engines, because the twin-engine car is not a truly unique idea, it is just a derivation of what you already created. Copyright, on the other hand, protects only the literal form of expression. If you were to write best selling novel, you could copyright it and be protected from people creating other books that use the text of your novel. However, this would not protect you if someone later wants to make a painting of a scene from your book because that is a different expressive form, even if it is based on your copyrighted novel.
4. Patent rights are exclusive, meaning that the holder can keep people from producing the same product, but don't necessarily have the right to produce the product themselves. For example, you could patent a new type of medicine and prevent others from producing it, but you wouldn't be able to produce the medicine yourself until you complied with any required governmental regulations. By comparison, copyright provides affirmative rights. If you hold a copyright, you have power over the form, timing, adaptation, etc. of your work and are free to produce as many or as few copies of your work as you please.

If you're still having trouble, try to "follow the money." Where is the value in the item? If the value is in the actual underlying concept, you are probably dealing with a patent. If the value is in the particular form of expression, then you are probably dealing with a copyright. For example, a SmartPhone is an example of a patented object, because the value lies in the concept surrounding the actual physical device. By comparison, a book is an example of copyrighted material. The value lies in the actual text on the pages, not on the physical structure of the book.

Understand all that? Good. From here on out, the discussion is going to be almost entirely devoted to copyrights.

II. Why Copyrights Exist

Copyright law is in a sense plagiarism protection for the real world. Whereas in school you would be expelled for stealing someone else's idea, in the real world you get hit with a copyright suit. The rationale underlying both concepts is also the same - we want to see people get credit for their work. Whereas in the academic world this is so that the authors can get credit and recognition for their research, outside of academia the recognition is primarily so that people can earn money from their ideas. The money angle is important because like it or not, money it is one of the primary drivers of innovation, and innovation is exactly what copyright law is attempting to encourage. Any innovation typically requires an initial outlay in money, time, effort, planning or some combination of these. If people can't be certain of making their investment back because of others stealing their work, they are less likely to start up a project in the first place, which slows down the pace of innovation. Hence copyrights to protect the work and investment contained in a completed idea.

Take for example the highly successful game Super Meat Boy. If you are like me, you found it a ton of fun. It was also a massive amount of work for the creators, Edmund McMillen and Tommy Refenes. If you have ever seen Indie Game: The Movie, then you know those guys spent almost two years producing the game and nearly went bankrupt in the process. Clearly they had a massive investment, both financial and emotional, in the success of the game. Thankfully, the game was a smash hit, and the money earned from the game not only saved McMillen and Refenes from destitution, but also made them fairly wealthy (I seem to recall Refenes was able to buy his parents a house). Since Super Meat Boy was an original work, they were able to use copyright law to protect their creation, which ensures that all of the financial benefit of their effort actually goes to them and not to someone else looking to make a quick buck by copying their idea.

Now assume a world where copyright law doesn't exist. I come along and notice the initial success of Super Meat Boy and see that it is going to make a TON of money. Since I like money, I decide that I want to tap that market too. However, I have no appreciable programing skills to speak of. Now, I could go and learn some programming so I could make my own game, but I'm also lazy and learning programming would be a lot of work and probably cost money. I'm also not very creative, so coming up with something as original as Super Meat Boy might be tough. I'd rather just steal an existing idea. Therefore, I learn just enough programming to figure out how to unlock the game code, pallet swap some stuff and put everything back together (yes, I am aware this probably isn't how it works. I'm a lawyer, not a computer geek. I don't even do my legal research online - I use print books). I release the game without changing anything else, except for the title, which I switch to "Super Meet Boy." Since there is no copyright, I'm able to do this without getting sued, and I siphon off some of the people who would otherwise have bought Super Meat Boy but buy my version instead. Since I was only making changes to an already completed product, my financial and time outlay was much smaller than that of the original designers, so I likely come out ahead; if not in absolute terms then in the sense of return on investment.

Understanding copyright's role in driving innovation is important because it will factor into later discussions (assuming I get around to them) about just whether copyright law as currently structured is really capable of handing the problems of intellectual property in the digital age. I definitely get the sense from looking around online that people feel Nintendo is abusing the system a bit. That's entirely possible, and it might very well mean that changes are necessary to make the system fair again (if you believe it isn't now). However, understanding the reasons for copyright law will help make suggestions for change a bit more constructive.

So that's my really vague primer on copyright. Next up, an explanation of just what is going on between Nintendo, Let's Play, and the uncomfortable middle-man YouTube.

P.S. Does anyone know if it is possible to save a draft of a blog on these forums? This stuff takes a considerable amount of time to write, and I typically don't do it one sitting. I've been writing on blogspot just so that I can copy and paste it over here when I'm done. Cutting out the middle-man would be nice.

P.P.S. If you have any questions about the material, post them below and I'll try to answer them. Mileage may vary - graduation is this weekend and family will be here so I'll be pretty swamped.

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.