COULD ENTERTAINMENT TECHNOLOGY GET TOO IMMERSIVE: AN EXCEPTIONAL 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. Microsoft's Kinect video game accessory boasts the ability to map our bodies in three dimensions and track every gesture in real time, perhaps portending the creation of real-time living room telepresence, of having a digital version of oneself on the screen. In American Amusement Machine Ass'n v. Kendrick, Judge Posner likened the violence in video games to classic themes in literature. When confronted with the argument that video games are distinguishable because of their interactive nature, Posner stated that this point is "erroneous". Given that games may no longer consist of simply sitting, clicking, and flicking but rather of "being," can they spell new types of liability with respect to violent entertainment claims? What of privacy concerns? Are there legal avenues available to confront unconsented uses of a person’s 3D image?

THE MOTION CONTROL

Introduced in November 2010, Microsoft's 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.

THE WORLD TODAY IS A FAR CRY FROM THE ONE 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 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. After all, how real can the experience be if the player is required to control his avatar through complicated button inputs? Even still, Posner intimated in Kendrick that video games may not qualify for First Amendment protection “[i]f the games used actors and simulated real death and mutilation convincingly, or if the games lacked any story line and were merely animated shooting galleries.” This may now be the case.

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

Consider the following: While Kinect avatars can be personalized, technology at the moment does not allow for the exact recreation of one’s person. But 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 perform whatever destructive movements he can conjure during the game. 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, why would the courts create a new standard for unprotected speech, such as “photo-realistic interactive violence” given their one size fits all approach to violent entertainment jurisprudence?

REFLECTIONS ON PRIVACY

Given the court's difficulty in clarifying the ground rules of obscenity (i.e. Justice Potter Stewart once stated (in Jacobellis v. Ohio) that he could not define obscenity but "[he would] know it when [he saw] it"), perhaps matters that may involve the application of obscenity laws should be addressed using privacy law. This approach, however, seems more availing in the context of sexually themed augmented content as opposed to the purely violent content that was discussed earlier. People have already hacked the Kinect to digitally recreate themselves in various ways. http://www.popsci.com/technology/article/2011-04/video-three-hacked-kinects-and-one-3-d-printer-turn-you-your-own-souvenir. If someone wearing a Kinect-esque camera could record a high-resolution image of a your entire body as you walk past them on the street, it would only be a matter of time before your digital image is used for sexually themed content, human nature being what it is. 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. While this cause of action is typically realized in the context of paparazzi photographing celebrities, it can manifest when there are unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying, which would probably apply here. But the claim seems less likely to succeed (even in the context of excessively violent recreations) if the image remained clothed; in that case, nothing visually secret has been intruded upon. 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.