Professor, Queens Counsel, Gamer: An Interview with Jon Festinger

Pick 10 of my work-days randomly. Somewhere between 8 and 9 of them will find me enjoying my job, or at the very least, not minding it. That means that without introducing in-desk beer dispensers or post-lunch naps, it’d be pretty hard to make me happier at work.

Unless I had Professor Jon Festinger’s job.

Video Game Law - 2nd Edition.

I wasn’t kidding. And I didn’t abuse the word ‘literally.’

Professor Festinger literally wrote the book on Video Game Law. He teaches at the Centre For Digital Media and at the University of British Columbia’sSchool of Law at Allard Hall as well as at the Faculty of Law, Thomson Rivers University  (this is in addition to his own private practice and being appointed Queens Counsel. He’s also extremely generous with his time and sat down to talk with me in mid-March about the broad ranging topic of Video Game Law.

The word you’re looking for is ‘impish’

Professor Festinger is an animated speaker, sometimes looking off into the distance or closing his eyes as he talks un-pausingly, hopscotching his way through a topic with tangents that don’t distract from the main topic. He seems somewhat bemused, both at what has happened with the explosion of video games into common culture and with the non-gaming tech-world’s blinders when it comes to what’s going on inside of games that is ‘impossible’ in other settings. He is a very, very bright guy with a bit of a mischievous twinkle in his eye, like he commonly has insights into things that other people don’t notice and it tickles him.

One of those insights might be his hopes for a change to pedagogy, at least in his classroom, towards something designed more like an MMO. Different types of learners out there could be engaged in the ways that worked for them. He related that, during the first year of his Video Game Law class, the online portal (whose newsfeed curation is excellent, by the way) wasn’t integrated into the class’s grading system. Participation was voluntary, so, when a female student, who was silent-but-attentive in class posted an outstanding piece on the site, he was intrigued.

He responded to her, complimenting her on the piece and found out that she was a hardcore gamer and was doing the writing because she was interested in the topic and the site gave her a way to participate in a way she was comfortable with. She’s now the author of a published law journal piece. Just giving someone the avenue to interact in the way that’s comfortable for them can have a big impact on the direction they go in their education.

Just Make it Work

Later, Professor Festinger talked with some of UBC’s Academic Technologists regarding the design of the course’s site – could it have real-time interaction with video chat, document editing, sharing of articles and sources so that collaboration could be the multi-discipline approach that let as many students interact in the way that was most natural to them and resulted in the best outcome? To his surprise, he was told that integrating all of those things wasn’t possible, which confounded him.

“I was asking for VOIP, real-time collaboration, plus linking and video and they couldn’t do it! But this has existed in a three-dimensional realm for a decade and a half with World of Warcraft. It’s much more complex activity, yet for me to have it available for my students, they’d have to have multiple programs running at once – Google Docs plus Skype plus this or that and that kind of patchwork stuff has been available going back to Doom online and the old BBS-es.”

News isn’t new

Kinect Deadly Hollows

Thanks to video games, we can all look like idiots together.

It’s a rare day when gaming shows up in non-gaming news outlets without a tone of mild distaste from the reporter, like they’ve been handled a baby with a poopy diaper. I’ve excoriated them for this on more than one occasion, but outside of ‘ratings,’ I’m as much at a loss to the intentional myopia that gaming isn’t not-mainstream as the next guy. I asked Professor Festinger why there was this persistent stereotype of ‘only nerds and outcasts are gamers.’ He took his time in answering – this is a guy who has spent a lot of time in the media industry. After removing his glasses and wiggling them in-between his fingers while explaining that he wanted to be sure he said it right, he put it this way:

“The media is a lot like law in that it makes sense of the ‘new’ by comparing it to old things. That’s how it puts them in context, so it takes them a long time to adjust to a new norm; it’s silly but that’s the way it is. Even though everyone’s going to be putting their own version of Kinect out for motion control and interaction, it’s going to be gamers-as-social-failures for a bit longer.”

It’s insights like that that I imagine give him that kindly, amused grin. That and the fact that our entire Skype conversation that I thought I was recording resulted in a file that looked like this:

As they say on the TFLN: Yeah. So that happened.

As they say on the TFLN: Yeah. So that happened.

If you’re reading this and don’t know what I’m getting at (mom), 6kb of audio is the size of the Skype ringtone…and nothing else. I can stream from my Xbox One on with the touch of a button with little to no problem, but recording an interview requires several programs and doesn’t work well. I think Professor Festinger’s point is well taken: if you want to see where tech is going, look at video games.

What that means is that everything in this article is paraphrased as best as I could re-create it; I started writing down everything I could remember about our conversation as soon as I realized what had happened, which was about 20 minutes after we spoke. Any misrepresentation of the conversation is a result of my faulty memory.

The Peninsula Effect*

The mitten has a dirty secret.

Peninsula Affect: Live in a place shaped like a shark, act really weird.

If geography isn’t your strong suit, both Professor Festinger and the University of British Columbia are located in Canada, which means that while we’re both lawyers and the basis of our countries’ laws are the same (English Common Law, unless you’re Quebec or Louisiana), there are definitely differences, even when it comes to what we call freedom of speech here in the ‘States. Canada operates under the Charter of Rights and Freedoms (somewhat similar to the U.S. Bill of Rights and enshrined in the Canadian Constitution); Section 2 contains the ‘freedom of expression.’ While it’s similar to what exists in the United States, it doesn’t contain the value judgment required for protected speech in the United States – the assumption is that the ‘speech’ is expression, so it’s protected.

The censorship issue in Canada is different, then – partially because of the differences between the Charter and the Constitution and partly because of culture. “While Canada is somewhat more little-l liberal than the U.S. when it comes to sex, we tend to be a little bit more little-c conservative when it comes to violence;” there hasn’t been as much of the uproar over video games that we’ve seen in the U.S., but at the same time, Canada’s Human Rights Commissions are charged with enforcing the prohibition against messages that expose a person or persons to hatred or contempt, a suitably broad prohibition that a Canadian Jack Thompson might push for restricting the production or sale of violent games.

If you spend as much time scouring the internet for games and free speech as I do, you’ve noticed that Australia is…different when it comes to games and censorship, despite a common legal background with the U.S. and Canada. Since I assumed it wasn’t directly related to the fact that the entire continent hates humanity, I asked the Professor, “What’s up with the Aussies?”

“Let’s look at it this way. Canada’s probably at the forefront of copyright law. We have broad protections for private, non-commercial use. Australia is an island, so it’s isolated, and it doesn’t have the parallel, or at least similar development you see between Canada and the United States. I don’t want to beat up on them, but some years ago, there was a racing game, and there were some courses that were set in Australia. And there was this legislator – a real human being, mind you, not an avatar of one – who proposed a law that because there were roads that were real Australian roads, it would lead to teens speeding, so the game should be changed so that at least on the courses in Australia, the speed was limited to legal speeds. I mean – can you imagine?”

Let’s Go To The Hague

Every time I think about human rights violations in video games, I think of this movie.

Every time I think about human rights violations in video games, I think of this movie.

It was an easy transition to talk about the Red Cross’s “Playing Games with International Humanitarian Law; Video Games and Virtual War Crimes on the Simulated Battlefield” conference (which turned into a bit of a media debacle because of the way stories about it were written). Should the consequences of war crimes be packaged into games like Modern Warfare: Ghosts and Battlefield 4? At the outset, we agreed that this was as much a gedanksexperiment and ink-generator for the ICRC as anything else, which is what made some of the outrage so ridiculous. Sure, including that kind of thing in a hyperrealistic military simulator like one of the Rainbow Six variants might make some sense, but “How many war crimes occur on a day to day basis in World of Warcraft?” the Professor mused.

“It actually seems to be an issue of freedom of creation versus interference in the creative process by the State. It forces the incorporation of moralisms into a narrative, and this is play and storytelling – for something like this to really happen, it would be a serious interference by the State and would really just be absurd in a lot of instances.”

Where We’re Going, We Don’t Need Rules

With my lunch hour closing and with full cognizance of how busy the Professor had to be, I finally asked him about my favorite game I’ve never played: EVE Online. As I started to ask if he’d gotten wind of some of the things that go on in that game, like the “most expensive single battle” on Halloween with its breathtaking real-world economic impact, you could see a smile breaking out on his face.

“Let me kind of break this into three points,” he says, holding up his hand and ticking them off while still grinning. “First off, I’m not a space shooter guy. But I’m this close to joining just because it looks fun. You know exactly what you’re getting into and regardless of the real-world economic impacts, I just feel like I’d have a blast playing that.”

“Secondly, getting into academics there’s this concept called the Magic Circle – it’s this idea that there are certain, specific areas where society agrees to suspend the normal rules and apply other ones that would normally be ridiculous or offensive or cantankerous – a court of law isn’t a bad example. Now, there’s a lot of discussion about this concept; whether it actually exists at all – but anyway, EVE may be the only game out there that really exemplifies the concept and expands on it – the real world rules are suspended.

“And third, there was an interview I read with the EVE founders who were like, ‘Nope, we’re not touching it or changing the rules,’ and I think that’s just great. I mean – it just looks like so much fun.”

As we signed off, I couldn’t help but think that as much as I enjoy my job, I had just talked to a guy who had managed to turn the practice and study of law into something that looked really, really fun.

*UPDATE: No Australians were harmed in the drafting of this article as they’re nearly invulnerable to live in their country, anyway. Also: Professor Festinger’s curriculum vitae were updated on 03.31.2014 for accuracy.


Wikipedia (links)
Centre For Digital Media (link)
University of British Columbia (link)
Harvey, Alison. “You Mean It’s Only a Game? Rule Structures, the Magic Circle, and Player Participation in Pervasive Mobile Gaming” Proceedings of Canadian Games Study Association. 2006 (link)