Barely a month has passed since the controversial SOPA and PIPA bills looked certain to pass through Congress. However, a wave of protest saw both fall at the last hurdle, shelved by their authors and sponsors until a more palatable compromise can be reached. While the heat of the issue has dissipated, Red 5 Studios founder Mark Kern believes that the real work has just begun.
The ESA's support for the bills, both financial and political, ignored strong complaints from both the gamers and developers it purported to represent. Kern took action. He withdrew Red 5's forthcoming online shooter Firefall from E3, and invested $50,000 to establish the League For Gamers, a new entity to watch the watchmen and safeguard the free internet.
In this interview, Kern discusses the foundation of the League For Gamers, the role of the ESA, the possible agenda behind support of SOPA and PIPA, and a future where content, and not distribution, determines the winners and the losers.
Q: You established the League For Gamers as a reaction to the ESA's advocacy of SOPA and PIPA. A lot has changed since then, not least the ESA's entire stance on the issue, but how did you see things at the time?
Mark Kern: I had been following SOPA/PIPA for a while, and I was growing very concerned. First of all, I noticed that there was a conflict of interest; the ESA also created the Videogame Voters Network, and it used that support to defeat legislation such as in California and different states about the sale of videogames over the counter, restricting R-rated games from sale. They also won, with the support of the gamers, support for first amendment rights and free speech, which are fantastic victories.
But when push came to shove there was a conflict of interest. It was obvious from the ESA's Facebook page that gamers were very opposed to the methodologies behind SOPA/PIPA, as well as the way it came into being, and they felt they were being ignored.
There is going to be future legislation that really is harmful to games, and we need gamer support to do this, and the ESA is squandering that right now
I just saw so many posts on that Facebook page that just went unanswered. And more than unanswered, they would actually update their Facebook page with a new link to an article, and people would say, 'Stop sending us more articles, and tell us what's actually going on.'
When the ESA's official response came out shortly afterwards - which was 'we support this legislation' - I was reading articles about actual members of the ESA saying they were either against it, or at least back-pedalling to a neutral stance. I began to wonder, well, who is the ESA really representing?
Q: Did you speak directly to the ESA about the issue?
Mark Kern: I wrote a letter saying, 'Listen, here's why I'm concerned about SOPA/PIPA', and I got a nice letter back saying, 'Hey, our general counsel would like to call you about this.' It turns out that the general counsel and I worked at the same company - we were at Blizzard together - and we went through some copyright issues and some packing issues together on World of Warcraft, even though we didn't directly know each other there.
So we had a lot in common, and we were able to have a very free conversation. I said, 'I totally understand wanting to protect IP rights, but this is just going to be completely abused.' We disagreed on that, so I said, 'It's being abused now, we're having takedowns now, we're having actions now without a law. What makes you think that it's ever going to get to a court to decide?'
Q: Was this at the point when DNS blocking was still in the legislation?
Mark Kern: Yeah. A registrar is just going to pull the plug rather than have to deal with [the courts], and he disagreed on that. So I said, 'Listen, we need a gamer voice. There's gonna be future legislation that really is harmful to games, and we need gamer support to do this, and you're squandering that right now. You're basically trading that off for this legislation, which isn't even going to do its job in the first place.' And that's the real key of it; it's not even going to stop piracy.
It was a nice call. It wasn't confrontational. He was very nice, and we both spoke our minds, but as it went on I realised that I was very upset about gamers' voices not being represented, that developer voices weren't being represented.
Q: When you say that developers were being ignored, was that mainly smaller and independent studios, or was it more broad?
Mark Kern: It's a broad thing. If you look at Epic's stance, they're against, and that's a major studio. But a lot of the smaller ones too, but I'll explain that in a little bit.
Q: But that call was the catalyst for the League For Gamers?
Mark Kern: It was literally a spur of the moment thing. I felt, 'I need to do this. I'm tired of just reading about this stuff.' Here was a topic that was close to my territory, so maybe I could do something about it. I was at CES working with Razer. I talked to the CEO of Razer about joining us in our opposition of SOPA. He was like, 'Why would such a ridiculous thing ever pass?' but I explained it to him and he said, 'Sure, let's do it.'
And then that weekend I founded the non-profit [League For Gamers]. I didn't want to distract my staff from Firefall or anything - I didn't know how they felt about it - so I was literally doing this all myself that weekend and into the next week, when I got some help from a couple of people [at Red 5 Studios] who were kind enough to lend me their time.
Q: So why do you think there was that early conflict of interest, with the ESA ignoring the voices of gamers? The view that the person-in-the-street isn't informed enough to comment is common around complicated issues like this one. Was there an elitist aspect to it?
Mark Kern: It seemed like [the ESA] was really eager to have a tool that would combat foreign sites that were distributing its members' software. I know that when I was at Blizzard there was a frustration at, if the site's in China, you can't do anything. So it seemed like an eagerness, and when it came to the gamers it was more like, 'This, too, will pass... They don't understand the good this will do them. We'll be able to make more games,' and things like that.
To me, that's fine. If you hold an opinion that differs from the gamers, and you think that it will benefit them in the long run, that's okay. But the fact that you're not saying that to them, when you've enlisted their support in the past and are now completely unresponsive, I think that was disingenuous.
And as the outrage grew - this is conjecture on my part - I think they found themselves between a rock and hard place. 'Oh my gosh, we really do have competing values here.' To me, it looked like they went into paralysis mode, and then afterwards when both bills were shelved, that was kind of damage control, to come out and say, 'Actually, we're withdrawing support.' They were trying to have their cake and eat it too.
I don't think publishers are meaningful any more for the developer. You're going to have to find different ways to compete, but they can be just as valid
Q: The companies speaking out against the legislation tended to get more coverage, but there were a lot of big companies that supported the bills. What are your thoughts on that?
Mark Kern: This leads to my other point: why do I feel like the big studios seemed to align with 'For', while the small studios and newer studios springing up seemed to be aligning with 'Against' - companies like Riot Games?
What really sparked this is a very interesting TED Talk, released on the day of the blackout, talking about the music industry and the movie industry and what they were actually trying to do here. They're really after control of distribution, so that they don't have to compete on content.
We live in a world now where distribution is everywhere. It's a democratising process. You see these tensions everywhere; bloggers versus journalists was a huge one, right? Now everyone has a way to distribute their editorials and news pieces without actually having to be a journalist. Do they deserve the same protection as the Forth Estate? And these tensions arise because the model is changing. Information is becoming free, and you can't control it any more.
It used to be that to become successful as a game-maker you needed to have in-roads into all the gaming stores, the Walmarts, the Targets, and everything else. E3 is a huge show for the buyer - it started to get buyers to come and see the games. They would make deals there, and place their order for 50,000 units.
What's happening now is that it's not about distribution any more; it's about the content. That's Red 5's premise: we want people to copy our game, because it's free, and we find other ways to monetise that. And because we're free-to-play and because we have equal power over distribution, the big-box companies - console companies, in particular - have this whole area of competition they cannot control.
They can't squeeze someone out of distribution. They can't say, 'You've got to sign with us as a developer, there's no way you can self-publish.' That's a big threat to their business model... and they're financially motivated to stay that way forever.
Even if the organisation recognises it, it's still very difficult to change. But for the small guys, studios like Riot, they're free-to-play, they're online, they publish themselves. They're doing fantastically well, and they can do it with a game that costs a lot less than what the studios have to pay. When you sell a boxed game, it's like, 'Who can stuff more millions in marketing and in content into a $60, one-time purchase.'
I'm getting off course, but what we're really talking about is control of distribution, and these laws are coming out everywhere. It's not just SOPA/PIPA; there's a whole bunch of legislation coming. ACTA is being talked about a lot now, and you can look at the EFF site to see what other things are coming along.
It's not about attacking people who have your content on their site and demanding that they take it down, which is fine. It's all about restricting and condensing the distribution channels to just a few official ones.
What you're seeing is a reaction to try and preserve the old business model, and so you've got big companies lining up on one side and a lot of small studios lining up on the other. Small studios are tired of being reliant on publishers, for distribution, for finance, for everything else. It doesn't have to be that way any more.
I'll go ahead and say something controversial: I don't think publishers are meaningful any more for the developer. There's so many other ways to get out there, and you're going to have to find different ways to compete, but they can be just as valid. People say to me that free-to-play will never be another WoW, but if you look at a game called Crossfire, which is an Asian kind-of Counter Strike clone, they pull down about $1 billion a year in revenue. So did WoW, and that's a subs-based model, and one of those games was a lot cheaper to make.
You've got to evolve, and the more we try and grasp this with our hands the more it's going to slip through our fingers.
Q: But the implications of SOPA/PIPA are far larger than just the games industry. It relates to a lot of the activity right across the internet.
Mark Kern: By trying to control distribution you are now fundamentally shutting down the internet, because you're saying you can't share any more. Let's take the case of MegaUpload: first of all, if we can reach out and shut down sites that are grossly violating copyright - let's say that's true of MegaUpload, I don't know if it is - it looks like we've got plenty of tools to do that. So it's got to be more about these companies wanting to control distribution without having to make a legal case of that magnitude.
If MegaUpload is guilty, what is it guilty of? The fact that a certain percentage of its users are uploading pirated content? What percentage is the crossover point between 'it's okay' and 'criminal'? And what does that say about Dropbox?
Imagine an internet where you can't send an e-mail with an attachment to someone else without your ISP scanning it to find out if it's a pirated photo or movie... Forget free speech, technologically and cost-wise it would never work.
Q: It seems like the ESA acted in good faith, but without considering the ripple effect legislation like this could have.
Mark Kern: Yeah. For instance, this issue of distribution versus content never came up in my call with them. It just dawned on us later, and it all happened so fast that everybody is re-evaluating how they're thinking about this stuff.
Q: Did you anticipate how rapidly it all fell apart? A month ago it seemed almost certain that SOPA-PIPA would pass.
Mark Kern: No, I thought it would pass. I thought it was a certainty. I thought we were just getting started on something [the League For Gamers] that in the future could be used. I had no idea so much would happen in two weeks - that was amazing.
It's going to be a lot more subtle next time. It might involve looking at multiple pieces of legislation and figuring out if they're coalescing into something that would be detrimental to gaming.
Q: But an idea like the League For Gamers is still useful, because the bills haven't gone; they've been shelved, and they will be back in some form. Do you have any thoughts on what that form might be, and the sort of legislation that games companies might be happy with?
Mark Kern: Well I'm just learning how all this - legislation, lobbying - works, so I'm a newbie here. What often happens is, first, you change the title, and you make it something that nobody could possibly be opposed to. What ACTA is doing is saying that it's "anti-counterfeiting". They'll find some phrase, and usually it's the opposite of what it does - it'll be 'The Bill to Support the Free Speech and Defamation of Intellectual Property on the Web' and it'll be completely against that.
The other thing is that they might split it apart, taking little bits of it and inserting it into other bills that have nothing to do with the actual legislation at all. So it's going to be a lot more subtle next time, and we're going to have to be that much more attentive. It might involve looking at multiple pieces of legislation and figuring out if they're coalescing into something that would be detrimental to the internet and to gaming.
Q: So where does the League For Gamers go from here?
Mark Kern: It's going to be a lot tougher, so we're trying to build our feelers in Washington and start to get a team together that can scan legislation so we can be aware of these things. Now, in what form would this be acceptable to gamers? Well, let's ask if it's even necessary in the first place.
Q: So is it the Valve stance of providing a quality of service that makes piracy the less attractive option?
Mark Kern: Content based approached are still valid. 'Hey, you need to take that down. It's infringing on a copyright.' The problem is getting other countries to enforce that, so before you go on to 'let's just shut down the internet' you first have to look at... I mean, the DCMA [Digital Millennium Copyright Act] is not a great piece of legislation, it does tend to get abused, but it does work and it has helped the piracy cause in countries that respond to it. Infringing content is clearly unlawful, it's clearly stealing, and not enough has been done just to get countries on board.
So what they're trying to do now is, if a country doesn't co-operate, we're going to pretend that those countries don't exist and tell people not to go to those countries. And that's where it gets fundamentally flawed. Any legislation that tries to control distribution has, one, a huge impact on free speech; corporations shouldn't, in our view, dictate what people can know about on the web.
On the other side there's huge technical issues. If I'm liable for this stuff, as a company if I fail to have mechanisms in place to make sure that no copyrighted content ever gets uploaded or created for my game, that's a huge burden. It just doesn't work. I think we're in a universe now where we have to assume that distribution is free, so we have to adapt to that otherwise we're going to break this great thing that we have.
Q: The ESA has changed its stance now, but that arrived after the bills had already been shelved. How do you feel about that?
Mark Kern: I am disappointed that they only came out with their withdrawal after the bills were shelved, and that it was kind of a wishy-washy withdrawal. It wasn't about, 'Oh, we were wrong,' it was really like, 'This version didn't work, we need to try again and this time we'll involve the stakeholders.' As Gabe from Penny Arcade says - on an unrelated issue - "There's a big difference between being sorry and being sorry you were caught."
Q: That seems like a good fit.
Mark Kern: He was talking about, I think, a peripheral manufacturer scandal from a month ago, but it's the perfect way to sum up how I feel about the ESA's statement. So, unfortunately, The League For Gamers still feels like it has to be a watchdog. We need balance. We need checks and balances in our society.