COULD ENTERTAINMENT TECHNOLOGY GET TOO IMMERSIVE: AN UNFORESEEN SCENARIO FOR POSNER

Immersiveness is a measure of how seamless the transition is between virtual and physical data. The more immersive a user’s experience is, the less the user consciously perceives the augmented content as being separate from, or inferior in quality or value to, what he sees with his naked eye. Does evolving augmented reality technology spell new types of liability with respect to violent entertainment claims? What of privacy concerns? Given that there are devices that can map our bodies in three dimensions and track every gesture in real time, are there legal avenues available to confront unconsented uses of a person’s 3D image?

THE MOTION CONTROL

Microsoft's Kinect is a recent gaming development which offers perhaps the greatest potential for players to lose themselves within games. Introduced in November 2010, Kinect is a controller-less gaming system that allows the gamer to engage in a full-body simulation within the game. The Kinect uses a video camera, infrared projector, distance sensor, and four microphones to track 48 parts of the player's body in three-dimensional space, allowing it to sense the player's motion, track his skeletal movements, and recognize his face and voice. As of now the Kinect has yet to deliver full immersion, however. Accurate motion detection is still there but the final product contains a lack of immersion and responsiveness due to lag between the player's movements and the avatar. Even with its limitations, however, the Kinect is a portent of things to come, demonstrating the ability to create a fully immersive controller-less experience.

THE WORLD TODAY IS A FAR CRY FROM WHAT POSNER CONTEMPLATED IN KENDRICK

While age restrictions on prurient material remain enforceable, the government currently has more or less lost the ability to regulate violent content. In American Amusement Machine Association v. Kendrick, Judge Posner entrenched his reasons for differentiating between the dangers of obscenity and those of video game violence in the notion that video games are no more immersive or interactive than movies or literature, and that the violence in video games would never be mistaken for real-life violence. After all, how real can the experience be if the player is required to control his avatar through complicated button inputs? Given that the number of potential uses of augment content is as broad as the imagination, however, courts might consider arguments about modern technology differently.

IS INTERACTIVE VIOLENCE OBSCENE WHEN YOUR AVATAR HAS BEEN PERFECTLY REALIZED?

Consider the following: Kinect currently employs motion-sensing technology that enables players to control a digital avatar through physical motions made in the comfort of one’s living room. While the avatars can be personalized, technology at the moment does not allow for the exact recreation of one’s person. But imagine an avatar that looked exactly like you. What if it were just as easy to digitally render your entire body in three dimensions as it currently is to snap a photo? Since the player could conceivably direct his hyper-realistic visual self to whatever violent end he imagines, would this situation become a sort of technological “point of no return” in which First Amendment protections are no longer tenable? Probably not. Never mind the fact that judges are ill equipped to make game-by-game value judgments of violent content, there exists problems with over-inclusiveness, since not all video game violence is created equally even if the player is free to use whatever destructive movements he can conjure during the game. Moreover, the Fourth Circuit noted in In Rice v. Paladin Entertainment, “for almost any broadcast, book, movie, or song that one can imagine, an inference of unlawful motive from the description or depiction of particular criminal conduct therein would almost never be reasonable.” Even if Kinect violence could eventually “violate the norms of what society deems appropriate” (for minors for instance) through avatar-based, ultra- realism, the courts would probably not simply create a new standard for unprotected speech, such as “photo-realistic interactive violence” given their one size fits all approach to violent entertainment jurisprudence. Classifying this kind of violence as obscenity is no more than a cheap attempt at obviating strict scrutiny and the requirement of a showing of an actual harm for the more lenient rational basis.

REFLECTIONS ON PRIVACY

If we keep the conversation within the purview of traditional forms of obscenity, however, there may be avenues of legal recourse under civil law for violations of privacy. People have already hacked the Kinect to digitally recreate themselves in various ways. For example, this clip features people stepping into an outdoor studio consisting of three hacked Kinects and a 3-D printer, and stepping out to nearly instantaneous sculptures of themselves: http://www.popsci.com/technology/article/2011-04/video-three-hacked-kinects-and-one-3-d-printer-turn-you-your-own-souvenir. If there comes a time when someone wearing a Kinect-esque camera can record a high-resolution image of your entire body as you walk past them on the street, there would exist the opportunity to use your likeness in sexually-themed content. While the “misappropriation of likeness” is considered to be a form of privacy invasion under common law, its universe is too restricted: one generally has to prove that their image has “commercial value” and has been used for commercial purposes. Intrusion into seclusion makes for perhaps the better cause of action if someone creates a nude digital rendering of you. Intrusion into seclusion is defined as the unsolicited entry upon the solitude or seclusion of another person or private affairs or concerns of another. The claim is viable only if the intrusion would be deemed highly offensive to a reasonable person. While this cause of action is typically deployed in the context of paparazzi photographing celebrities, it covers unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying, which would apply here as it does in the “sexting” context. In any case, while I concede that the changing technological climate does have the potential to raise questions regarding liability in violent-entertainment cases, hybridizing the obscene and the violent into the “obscenely violent” in order to skirt First Amendment concerns is not the answer.