by Michael Thomson

Last year, Blizzard cooperated with the FBI to get two Diablo III players to plead guilty in criminal court over charges relating to a series of in-game thefts in summer after the game’s release. Patrick Nepomuceno and Michael Stinger spent a summer using a Remote Access Tool sent as as link sent through Diablo III’s chat system to take control of other players’ computers and transfer gold and Legendary items to their own accounts. Reporting on the case for Fusion, Kashmir Hill recounts the duo’s plans to sell the stolen items through the game’s now defunct Auction House, a contentious addition to the game that allowed players to sell each other gear and items in exchange for real money.

Stinger contends Blizzard banned their accounts before either had a chance to actually make any money but estimates they had amassed around $9000 worth of items before they were caught. The pair eventually accepted misdemeanor plea offers for probation and promised to repay the $5,654.61 Blizzard claims to have spent investigating the case in $100 monthly payments.

The case is not the first time videogame publishers have turned on their fans and cooperated with the government in prosecution cases. Last year, an Australian man was arrested after hacking into a Riot Games employee’s computer and claiming to have access to 24.5 million League of Legends accounts. Before he was arrested, he was said to be making $1000 a day selling rare character skins taken from these accounts. He would also occasionally harass high-level players by disconnecting them from matches during public streams or resetting their accounts to far-away countries to cause game lag. He was arrested on nine charges of hacking and fraud and found with more than $110,000 in Bitcoin.

Perhaps most famously, Valve worked with the FBI in 2003 to set up a fake job interview to lure Axel Gembe, a young German who hacked into the company’s internal servers to download a pre-release copy of Half-Life 2, into confessing his crime. Valve claimed Gembe had cost them $250 million dollars in damage, but he would eventually be given two years probation. Ironically, Valve would later turn this fan desire to see an in-development game into a proprietary business with its Early Access program, a way of exploiting fan eagerness to actually pay to contribute to focus testing and bug testing a game.

Each of these cases reveal an alarming tendency to make play culture subject to criminal laws meant to protect profit and property in the name of public interest. There remains an irreconcilable ambiguity in the idea that a digital good constitutes defensible property. In the case of Diablo III, the idea that one weapon is more desirable than any other is an algorithmic construct, built from a model of artificial scarcity and simulated labor players are expected to perform in order to simulate progress. Stringer and Nepomuceno were not stealing items from other players but triggering some small piece of code that unlocked those items in software they already owned. Likewise, those items remained in the game software of their supposed victims. What the two ultimately did was find an alternate way to trigger access to those items within the software, pushing back against the artificial limits of Blizzard’s design.

Though the actual charges against them were for illegally accessing a “protected computer,” which courts have interpreted under the Computer Fraud and Abuse act to mean any computer connected to the Internet, it’s hard to exculpate Blizzard from its role in designing a game in a way that makes such behavior more gratifying and playful than simply following the rules.

Theorist and researcher Nathan Jurgenson has popularized the concept of digital dualism as a way of describing the erroneous belief that there are digital and non-digital dimensions of reality. While this argument has been useful in deflating portentous arguments about how alien and exceptional new technologies are, there remain important distinctions in software as legally defensible material that makes it worthwhile to hold onto some sense of dualism. Game makers criminalizing certain player behavior points to a distinction between play and software, between executable code and the ideological models of behavior and thought they force us to engage with.

In The Interface Effect, Alexander Galloway describes a long-running dialectic of computer code as both narrative and machinic. Computer code “must always exist as an amalgam of electrical signals and logical operations in silicon.” Yet, code is always infused with a “mystification or distancing” something that ensures its material operation and eventual consequence are “most definitely not the same thing.” As games, the use of rules to coerce certain types of behavior must always be conditional and subject to player rejection or interference. Criminal prosecutions against people attempting to uses software for precisely these playful purposes reflect an elevation of the ideological values of software over the often largely unaffected material basis from which those values come.

This conflict is at the heart of a wide variety of arguments about the value of digital media and how it should be protected through criminal and property laws. When Blizzard participates in the prosecution of its customers, it’s not defending any particular material interest but the company’s authoritative position in controlling the uses of its software. In recent years, the requirement of some regular online authentication to make a game operable has made it possible for developers and publishers a near autocratic power to monitor how their products are used. This expanded oversight has made it possible to extend the market domain of each developer or publisher, monetizing not just the software, but of individual uses of its parts, governed by the structure of a digital marketplace that depends on a symbolic scarcity of items, which only the developer or publisher shall have authority to manipulate through code the player already owns.

More than any public interest or material value, it’s this position within a hierarchy of ideological control that digital fraud laws protect. A recent story in the New York Times co-authored by two Yale psychologists and two Harvard economists argued symbolic or social incentives trump financial ones when trying to encourage behavior change. People are more likely to obey a certain rule or do a certain thing if they are given a visible token or if they’re provided information on how others acquired their tokens. “When your choices are observable by others, it makes it possible for good actions to benefit your reputation. Similarly, norms make you feel you’re expected to cooperate in a given situation, and that people may think poorly of you if they learn you are not doing your part.”

The overlap with Diablo III’s structure, not as a game but as a software built around uneven distribution of identity tokens, is less about play than about maintaining Blizzard’s centrality in defining how its tokens are valued. It’s clear the drop rate for Rare and Legendary loot in Diablo III began at an extreme low to push people to use the Auction House, and in the time since it was shut down, the drop rates have become significantly more generous.

The digitization of commercial culture has proven the artifice of market-driven scarcity models, and the incoherence of giving transnational industries authority over pastimes. Though optimists sometimes argue that software has been the pretext through which play has become the defining spirit of our times, a ludic century in the words of designer and academic Eric Zimmerman, the legal aggression of game designers over the pettiest matters make a persuasive case that play has been used as a pretext for an epochal expansion of computation, something that’s proven more effective at creating coercive social and political norms against which no playful transgression will be tolerated.

If the 21st Century is to become genuinely ludic, we will at some point have to accept the spirit of play is antithetical to computation. Forms that seem to combine those two opposites may produce momentary spectacles, but over time those individual works lose their novelty and become recognizable as bizarrely machined trickery, something that depends on jealously guarded networks of control, punishment, and profit, values which always seem to be given precedence over playful ones in every instance where they come in conflict.

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