




1. Little-To-No Impact

EU Implications




US Implications


2. Moderate-But-Endurable Impact







The Way Forward










Conclusion: Probably Not Really That Bad For Art and Entertainment



K/DA and Holographic Performance: Computer Code or Dance Choreography? 

Copyright applies when a creative expression is fixed in a tangible medium. This has presented questions and problems for certain kinds of creative works, of which my two favorite examples are fireworks and dance. Like a beautiful explosion of color in the night sky, the dancer does not leave a fixed expression in a tangible medium after leaving the dance floor. However, it is possible to fix the dancer’s choreography in a tangible medium—and maybe there is a new way to do that.

“So Keep Your Eyes On Me Now/ The Show Is About To Start”

At the 2018 League of Legends World Finals, some 90 million spectators (including some 23,000 live at Munhak Stadium) were treated to a musical performance that featured life-sized augmented reality projections of fictional pop-star characters dancing alongside physically present, corporeal, non-fictional dancers. This is not the first time a hologram has performed at a live concert: Tupac graced Cochella with his digital and photonic presence in 2012, despite the inconvenience of his death in 1996.

My idle, speculative quandary in the case of K/DA Pop/Stars is whether a dance routine performed by holograms can be registered as choreography for the copyright office. For a lot of reasons, it really doesn’t matter in this case—Riot isn’t going to litigate around this issue (though people may change their tune about copyright), and to the extent that they do need a copyright registration for this, it’s unlikely to matter whether it’s classified as choreography or as a computer program.

Still, it’s an interesting issue to explore because the finer details of technology can sometimes inform how a judge will rule (as in the case of embedded Tweets).  Can someone register copyright for a computer program that directs the lights and projection machines to present the images of the hologram in such a sequence and manner as to create the illusion of a dancing individual? It would be interesting to see how the Copyright Office or courts would parse a computer program for a dancing hologram.


Drawing Distinctions

Law can take controversial twists around new technology because an adjudicator struggles with the technology involved. Typically, this means someone has either embraced the extreme of refusing to recognize a substantive difference in a new technology, or someone has gone to the other extreme of imagining a difference with a new technology that isn’t supported by reason.

When faced with new technology, the easiest move is to look back at other technology and see if an analogy can be made. The obvious subject for comparison is traditional animation. In broad concepts, there are plenty of similarities between creating a hologram dancer and drawing and animating a dancer. The tools are clearly different- so how similar is a keyboard to a pencil? The uses, purpose, function, and the end results of the tools are similar enough—but there are also very clear distinctions. Copyright law has made an effort to be medium-neutral: it doesn’t matter if a novel is written on paper, caved into rock, or saved in a PDF.

It might be that augmented reality and holograms are simply a new flavor of animation, and, from a copyright perspective, there’s simply nothing new to see here. However, the combinations of new technologies are more likely to produce something substantively new. Anthropologist Thomas de Zengotita is fond of the point that a hurricane is just a lot of breeze—yet everyone treats the two as substantively different. I take it that he means that a sufficient accumulation of non-substantive changes, at some point, creates a substantively new category. This is the core distinction that adjudicators have to make: is a new technology substantively different, or just a different medium for something that is already established?


“So Can You Handle What We’re All About?”

Is a computer program of choreography is substantially different from a recording of a dance? The choreography is the script for the dance. A recording of a dance is how a particular dancer happened to perform the dance. Copyright distinguishes between the sheet music and a recording of the performance. In the case of a computer program that simultaneously generates a dancer and dictates the movements of that dancer, can the performance be separated from the script? The choreography only exists as it is embodied in the performance itself.

This raises a further question as to whether effects of the performance are also part of the choreography: for example, the moment in which Kai’Sa fires a firework-like lighting effect during the performance. If it is part of the code, and the code is the choreography, then this effect is part of the choreography—although it seems like something that should be a production direction, not part of the dance itself.

As unlikely as it sounds, some adjudicators might look to the question of whether the computer code recognizes a difference between pixels and limbs. That is, the question might turn on whether humans can recognize the code as dance instructions. An adjudicator might reason that the computer cannot dance, and so the execution of the code is not the performance of a dance– thus, someone who can dance must be able to interpret the instructions so as to perform the dance.

If we want to make this more interesting, we can imagine this technology combined with an AI that creates new dances. Here, the AI dancer is also the author (unless the author is the rights holder of the program). We can further ramp up the question by putting this AI choreography in a robotic humanoid body and turning it loose on the dance floor, where it transcribes its own choreography as it creates it.


Fortnite Is Dead, And So Are The Copyright Claims (Hyperbole or Prognostication?)

If Riot (I assume Riot holds the rights for the K/DA performance) can register the work as a dance, they will probably need to register the entire dance. The Copyright Office has rejected the attempts to register the brief dances (micro-choreography?) of several plaintiffs who are bringing suit against Epic Games. As I already discussed, these plaintiffs may still have claims under some use of personal likeness laws, but it looks like their copyright claims are unlikely to get off the ground after the Copyright Office denied registration.


The Bigger Picture: “Wish ya luck”

Ultimately, this is exciting because this is what it looks like when technology, culture, and law meet. This is exactly what it is: Epic Games monetizes dance moves that are popular and known and publicized, and before the lawsuits can even be dismissed, Fortnite has already lost its player base to Anthem and Apex (odd twists of identity theft included for added 21st century flavor). These fringe, unimportant, idle explorations form the basis for decisions that affect the bottom line of corporations and the constraints on artistic productions. For the adjudicators of copyright law, this only gets harder: As computers become increasingly sophisticated and increasingly common tools for the production of works of art, the Copyright Office will face increasingly difficult questions.

Music Modernization Act, Artificial Intelligence, and Cryptocurrency

“Angel Pumping Gas” is not a song about copyright regulatory policy, artificial intelligence, or cryptocurrency. I’m going to use it to round up all three of those subjects in this blog post.

  1. Music Modernization Act: Not Enough Of a Good Thing

“Why won’t this moment last?”


“Angel Pumping Gas” is a 1999 song by the band Lindsey Pool, the second track on the album Postal. The song was circulated around various music sharing sites and services—but it was erroneously attributed to the band The Postal Service. Even now, comments sections on YouTube express surprise concerning the song’s artist. Google’s first result for lyrics attributes the song to The Postal Service. This serves as a clear, simple example of how easily information spreads online, and how difficult it can be to correct information online. If early 2000’s music sharing used a single database held the information for every published song, such an error might have never happened. A new law requires the creation of such a database, but there’s a lot still up in the air.

The biggest open question from the Music Modernization Act is: Who is going to create and maintain the required database of songs and rights holders? The law mentions that a database will be made, presumably by the Mechanical Licensing Collective that the law also creates. This is only forces everyone to ask more questions: who will be on the board of the Mechanical Licensing Collective? What methods will this organization use to create this database?


Measured by content, “Angel Pumping Gas” is little more than an unnecessarily detailed recounting of purchasing gasoline. In fact, the middle two-thirds of the song is an entirely banal description of an entirely ordinary and unremarkable transaction. Only the beginning and ending of the song (and chorus) frame the experience in terms of the romance and desire that the singer feels. It’s either beautiful post-modern appreciation of the beauty in the mundane encounters of our lives, or it’s just a little bit silly.

The Music Modernization Act is either a beautiful resolution of a pressing problem in the music industry, or it’s just a little bit too narrow to be worth caring about. The Music Modernization Act was passed unanimously by the House. Sound Exchange and the RIAA have praised it. It seems like everyone loves it, so I was surprised to learn how narrowly tailored the new law is. It is almost entirely focused on problems specific to digital streaming of music. Though there were issues that required resolution in this area, there remain enormous gaps between current copyright law and the daily use of media and technology. It is unsurprising that the problem that got addressed was one that concerned the rich and powerful (record labels, digital platforms), but they did take the opportunity to include studio professionals in the legislation—a group that has historically be neglected. Music Modernization Act is not as far behind the times as I expected: it’s not a response to Napster, it’s a response to Spotify… but I would still like a more satisfying response to Napster than the DMCA.


  1. Artificial Intelligence All Around Us– And We Don’t Know What It’s Doing

“You ask ‘What Can I do?’ I say ‘unleaded fuel.’ You open up my tank and start the pump.”

“Angel Pumping Gas” is a wistful ballad that describes a brief meeting with a filling station attendant, with whom the singer is immediately infatuated. Filling station attendants are rare in 48 of the 50 states (NJ and OR have laws against filling one’s own gas tank… as does the town of Huntington, NY).  The entire premise for the song is slightly alien to the tens of millions of Americans who have always pumped their own gasoline.

For most young Americans in the 90s, gas station attendants were a historical curiosity—something referenced in films in the 50s and 60s. However, for residents of NJ and OR, having someone else fuel your car was a commonplace occurrence. Today’s emerging technologies have the same impact: a device or service is either a commonplace part of your life, or it’s a foreign concept. Twitter, Facebook, Alexa, Smartphone GPS navigation, Netflix, Twitch, YouTube, AmazonPrime- all of these things are, for most Americans, either so commonplace as to be unremarkable, or are simply not part of your life. As technology becomes more integrated in our lives, the difference between so-called “haves” and “have-nots” becomes more pronounced. The very premise of the song creates a divide in the audience: there those who have encountered a filling station attendant, and those who have not.

Our relationship with technology is already creating visible divides in our population. We aren’t always sure who is a bot, though some of us are willing to pay a lot for their art. Even as AI becomes an essential tool for the largest companies that manage important aspects of our lives, the law has no idea how it will handle the legal aspects of a tool that is on a complicated trajectory. Artificial intelligence is steadily becoming more and more commonplace- but the majority of us can’t see how or where AI is being used, much less which systems use what kind of data. Like a teen in the 90’s listening to a song about a filling station attendant, most people who hear about bots and AI have to turn to movies and pop culture references to draw up a mental picture, rather than rely on our own experiences.


  1. Cryptocurrency’s Perpetual Hype

“You walk over my way, I didn’t know what to say… I think that I love you, or maybe it’s just the fumes.”

The song details the singer’s desire and longing, wallowing in the idea of feeling a romantic desire for someone he doesn’t know. The song juxtaposes the intensity of the singer’s amorous emotions with the brevity and shallowness of the interaction. Our popular culture mirrors this adolescent infatuation in our reactions to new technologies: sudden, intense waves of excited fervor for a world-changing device or platform that either never arrives or seems to evaporate into the past shortly after it appears. (I have written before about the hype surrounding the Internet of Things… )

Cryptocurrency prices are down, but it doesn’t feel like the hype has suffered at all. The estate of one of the Wu-Tang Clan is starting a cryptocurrency, to be named after the deceased: Dirty Coin. The strangest part of this is that I haven’t seen blockchain applied in the kinds of contexts I expected it to find more success: online games, a new kind of customer loyalty program, or other gimmicky, comparatively low-stakes settings. Perhaps the hype is fueled by risk-taking and gambling, and such settings aren’t thrilling enough. This is unfortunate, because turning down the hype would allow the technology to actually move forward in much more appropriate, smaller steps, rather than trying to change the world all at once.

Is the gas station attendant in the song the destined One True Love of the singer? It’s not impossible. Are there are a lot of fumes around gas stations? In my experience, yes- always, in fact. Will cryptocurrencies bring about a Utopian future? It’s not impossible. Do crowds tend to favor exciting hype over careful, substantive analysis? In my experience, yes- always, in fact.


“We share our precious moment in a glance…  and as I drive away, her memory’s here to stay—her deep blue eyes have left me in a trance.”

The singer bemoans that he needs to leave, as the road calls him away. His lack of control is an unstated axiom of the logic that he must follow. The singer is a passive pawn of forces around him: fate, the road, filling station attendant (her authority to invoke payment and her beauty), the transaction, his emotions. He begins the song by attributing the encounter to fate and concludes with the resigned acceptance that the separation is, perhaps, better for all involved. This is not a song about a person taking decisive actions; this is a song about a consumer making his way through a brief and common transaction in the life of a middle-American.

Society seems to display about as much mindfulness and self-possession in approaching technology. We owe it to ourselves to take more effort and more thought regarding our laws and our technology than an adolescent’s unapproached crush.

The Scare of Abandonware

It’s nice to have law in a society to bring a sense of predictability. Clear and organized laws allow us to understand the consequences of our actions. Knowing the law lets us make choices based on the expected outcomes. However, there are a few areas of law where outcomes are not so obvious. Abandonware is an interesting case of 21st century law. Copyright law simply doesn’t outline what to do when a company publishes a game and then closes its doors. It’s scary for cautious lawyers to discuss because of that uncertainty. As always, this blog post is NOT legal advice– in fact, it’s mostly about why giving legal advice about abandonware is difficult.

How Games Get Abandoned

Abandonware isn’t entirely limited to software, but the differences in technology and industry norms and structure make it a far larger problem for software than any other media. It’s no surprise that book, radio, television, film, or music industries ever needed a statute on abandoned works.

When game studios close, they are often bought by other, larger studios- or at least their IP assets are. However, sometimes the IP of a studio doesn’t get purchased – it just gets abandoned. Copyrights in the US last at least 70 years. Although courts have ruled that not every work has a recognized owner at the time of creation, courts have not definitively addressed the issue of abandoned works. (It is possible to officially declare a work abandoned and part of the public domain, but this is not automatic for IP that is simply left behind by a defunct company.)

Who Would Have The Right To Sue?

There are a few fundamentals that have to be in place for a case to even get seriously looked at by a judge. There must be an allegation of a violation of a law, for one thing. Additionally, the plaintiff must have “standing.” This means the plaintiff was harmed by the breaking of the law. A case must also be “ripe” (the allegation cannot be speculated or predicted to occur sometime later), and the case cannot be “moot” (resolving the case must make an actual difference to the injured party).

In the case of abandonware, could these fundamentals be met? Sometimes revenue is still given to developers whose companies have closed shop, but it’s unclear how often this is the case.  In most cases, it seems that no one can claim to be damaged by the unauthorized distribution of the software, because no one can claim they lost money as a result. Further, any case would be moot because ceasing the distribution would not make any difference to a non-existent competitor.

Despite the unlikely odds of an abandonware suit even getting to trial, distributing abandonware still feels a little risky for two reasons. First, unlike trademarks, copyrights are not contingent on use in commerce, and unlike abandoned property there is no law describing how to treat abandoned works. Second, it’s an unexplored area of law, which means that there isn’t precedent either to argue in court or to consider when advising a client.

Who Gets the Loot of the IP License When a Company Dies in the Dungeons?

Despite the murkiness, some abandonware cases seem clearer than others. Some games from the 80s and 90s seem well and truly abandoned. However, if a copyright is assigned to a corporation and that corporation then goes defunct or is bought, it’s sometimes unclear who owns the copyright.  Other games may carry a sort of tangential active ownership that could complicate a case. For an example of both of these complications, let’s consider a game from 1991 that featured a licensed IP to a game developer and a publisher (who are now both defunct): Eye of the Beholder.

Dungeons and Dragons was owned by TSR, Inc until that company went out of business and sold most of its D&D intellectual property assets to Wizards of the Coast (a company owned by the toy company Hasbro, Inc). Eye of the Beholder was a game made by Westwood Associates (bought by Electronic Arts and defunct since 2003), though the title screen clearly identifies it as an Advanced Dungeons and Dragons game. The game was published by Strategic Simulations, Inc (bought by Mindscape and defunct since at least 2011), who worked with TSR on dozens of licensed D&D games.

With Westwood and SSI now out of the picture, can Wizards of the Coast claim ownership in the use of their D&D mark in 30 year old games?  Wizards of the Coast would probably not prevail on a claim of direct ownership of these games. As far as I can tell, courts have not addressed a case in which a party bases a claim on IP that is inside another product. The closest cases involve the use of a person’s likeness in a game, but the plaintiffs don’t try to claim ownership over the entire product. It may be that the original license agreement puts the “D&D” IP out of the reach of claims by TSR, and therefore out of the reach of WotC.

Ideally, the licensing contract between TSR, Inc and Westwood Associates has a paragraph for just this kind of question (this is why it pays to draft contracts with the worst possibilities in mind- like your company going out of business). If a court faced the claim that WotC has a claim on the distribution and sales of games featuring D&D settings and characters, I suspect* it would rather dismiss the claim on the basis of laches rather than address the tangled mess of IP licensing claims.

Conclusion: We Can Know The Risks, If Not the Outcomes

Abandonware seems to be technically illegal, but it also seems to be nearly unenforceable. That’s an uncomfortable place to be. It’s a strange state, and there are hardly any appropriate analogies that would help explain it. The best analogy might be a comparison to an old game that, despite being technically functional, won’t run on a current operating system. Abandonware’s legal challenge might be best described by its technical challenge.


*There is always a small risk of a surprise in court: A court could create the principle that when a party does not exist to protect a licensed IP, the licensor may step in and act as owner of that IP for some limited purpose. Some would call that “legislating from the bench.” The judge would call it “meeting the demands of justice in the face of technological development.”

Tooth And Tail: Lessons in Planning With Realistic Expectations

Tooth and Tail is simple. It has to be simple because the game designers had a very challenging goal: Make a Real Time Strategy game that is reasonably playable on a console. Real-Time Strategy games are notorious for needing high-speed and complex inputs (professional Starcraft players’ fingers perform over 400 actions per minute) that are simply not possible with the constraints of a console controller (even with all of the buttons they’ve added after Nintendo produced the perfect game controller in 1990). But the designers were smart, and they looked realistically at the constraints of the system, and they crafted the game to fit those constraints. The result is a playable, enjoyable game about a Soviet-revolution inspired rodent uprising on a farm. The designers of in-house corporate programs and databases need to learn to be realistic about the actual uses of their programs.

I. Lesson in Project Design: Accept the Probabilities of Disaster so you can Plan for Prevention; Don’t Plan for Immortality and Invulnerability. (#dontbeateen)

In the digital age, there is an increased focus on preventing and eliminating problems/errors. The promised outcomes of flawless perfection are enticing, but the realities of inevitable problems require more effort be put into managing problems and recovering from disasters.

Computers amplify the speed and scale of what people can do. This makes it easier for people to do more, and to do more, faster. This includes making mistakes bigger. Years after a British woman got 15 minutes of fame for accidentally ordering 500kg of chicken wings, Samsung accidentally made a $105 billion ghost.

Samsung Securities Co (a financial services company owned by conglomerate Samsung Group) tried to pay a dividend to their employees, but accidentally gave the employees shares instead. The 1,000 WON dividend became a 1,000 SHARE distribution- creating over $100 billion in new sharesThen some employees immediately sold those shares. There were a lot of safety measures that failed in this story. The program should have been able to calculate that this order totaled over 1 trillion WON, more than 30 times the entire company value. A second human should have checked over the work for simple, obvious errors when there is a potential for this level of damage (anything at a company-wide level for a publicly-traded international corporation would certainly qualify). Several departments should have reviewed the work (compliance, risk, accounting, finance, legal—almost anyone!). Samsung’s own internal compliance should have also prevented the sale of the ghost shares.

II. A Lesson in Categorical (Or Macro) Errors: Some Mistakes are Annoying, Others Are Fatal. Design to Catch and Prevent, Not Headline and Damage Control. (#dontbeaceleb)

Mistakes happen a lot when computers are involved. Sometimes it’s the user, sometimes it’s a problem in the code. But when a user catches a problem, they can assess the problem in a broader context, and determine just how bad a mistake is. A bigger mistake is just more obvious to a human than a computer.

Many years ago, a friend of mine got on a flight and found someone else sitting in his designated seat. Not wanting to cause trouble, he simply took the empty seat next to his designated one and prepared for the flight.  As the crew prepared for taxi and takeoff, a flight attendant welcomed passengers to their non-stop service to their destination city. Upon hearing this announcement, the woman next to my friend hurriedly gathered her belongings and fled the plane.

She wasn’t in the wrong seat. She was on the wrong plane.

Computer programs don’t intuitively differentiate between the severity of errors:  the wrong plane and the wrong seat are just two errors if you’ve never flown and don’t know have a broad concept of travel or the context of moving around a world. To a computer, being in the right seat is still pretty good, just like executing a financial order with the correct number is pretty good – even if the number is in the wrong field or tied to the wrong variable. What humans easily grasp, computers are often unlikely to infer. The right detail at a micro-level cannot remedy a catastrophic error at a macro-level.

User errors are inevitable. Programming errors are likely. The more we rely on computers, programs, and apps for the things that allow our lives to function, the more likely it is that our lives will be disrupted by programmer or user errors.

III. The Solution: Make The Programs Flexible, and Make Problems Fixable.

Tooth and Tail’s success is rooted in the realism of its game designers, who sacrificed dreams of a more complex game (that would have been unplayable) for the right game that fit the actual constraints and experience of the player. Designing with the actual user’s experience in mind—with special consideration for what can go wrong—is more important for project designers and programmers every day.

There is an increasing drive to try to use computers to prevent any errors, mistakes, or problems. However, these solutions only make problems worse because they decrease flexibility in and around the program. The solutions is to move in the opposite direction: programs need to play less of a role in trying to self-regulate and self-repair, while users and programmers take a larger role in guiding and overseeing the programs.

But wouldn’t this much red-tape bureaucracy be time-consuming? Wouldn’t it be inefficient to invest so much effort in a simple dividend payment? It would take time and resources, yes—but efficiency measurement is relative to scope (among other factors): it certainly appears inefficient if 6 people spend 10 minutes each to look at the same work and find no error. Here, we would conclude that a full hour of productivity was wasted. However, if 6 people took 10 minutes each and found a problem that would have cost 1,000 hours of productivity had it not been discovered, we conclude that we have a net gain of 999 hours of productivity.

Although problems like these cannot be entirely prevented or eliminated, they can be contained and managed. If a person is on the wrong plane, they can quickly determine the outcome of their choice and work on a solution. People will still get in the wrong city from time to time, but they don’t have to end up in the wrong city as a result. Similarly, employees will make occasional typos or errors in their accounting and payroll from time to time, but that doesn’t mean that financial markets have to be rocked as a result.

Regulating The Internet? Not the Tubes Themselves…


















Horizon: The Dawn of Zero Privacy?

Horizon: Zero Dawn is a problem because I don’t know which game I have to slide out of my top 5 in order to fit it into that list. (It might be have to replace “Child of Light,” which pains me, but replacing any would pain me… maybe “Outlaws” will move to #6 …) It’s an incredible game in its own right, with beautiful artwork, well-written characters, and genuinely fun gameplay. I find its story especially fascinating—and particularly relevant as we grapple with a framework for governing and living in an age of digital information and interconnected devices. Though its central technological focus is on Artificial Intelligence and the future of humanity, it touches a multitude of topics- including data privacy.

Although Judge Richard Posner famously decried privacy as a way for bad people get away with bad things, privacy is important for personal development and free association. Privacy is essential to our culture, and it is only valuable inasmuch as it is protected and reliable. Our expectations of privacy follow us into our digital extensions. However, one of the best methods of securing privacy is impractical in the face of consumer demands for interconnection and convenience.

I. Can We Have Privacy by Design When We Demand Designs that Compromise our Privacy?

The Federal Trade Commission’s favored method for protecting Privacy is “Privacy By Design.” In simple terms, this often means designing a product to rely as little on privacy as possible. After all, if no data is collected, there is no data to steal. However, there are serious questions about the feasibility of this approach in the face of consumer expectations for interconnected devices.

Privacy by Design is a much better idea than the sophomoric idea of increasing security measures. Designing a house not to be broken into is better than trying to just put a good lock on the front door. To put it another way: Think of it as building a dam without holes rather than trying to plug all of the holes after you finish building.

I’ve heard tech entrepreneurs talk about “The Internet of Things” at conferences for many years, now. They talk about it like it’s a product currently in development and there’s an upcoming product launch date that we should be excited about- like we can line up for outside of a retail store hours before the doors open so we can be the first to get some new tech device. This is not how our beloved internet was created. Massive networks are created piece by piece- one node at a time, one connection at a time. The Internet of Things isn’t a tech product that will abruptly launch in Q3 of 2019. It’s a web of FitBits, geolocated social media posts, hashtags, metadata, smart houses, Alexas and Siris, searches, click-throughs, check-ins, etc. The “Internet of Things” is really just the result of increasingly tech-savvy consumers living their lives while making use of connected devices.

That’s not to diminish its significance or the challenges it poses. Rather, this highlights that this “Coming Soon” feature is really already here, growing organically. Given that our society is already growing this vast network of data, Privacy by Design seems like an impossible and futile task. The products and functions that consumers demand all require some collection, storage, or use of data: location, history, log-in information- all for a quick, convenient, personalized experience. One solution is for consumers to choose between optimizing convenience and optimizing privacy.

II. A Focus on Connected Devices

Horizon: Zero Dawn is a story deliberately situated at the boundary of the natural world (plants, water, rocks, trees, flesh and blood) and the artificial world (processed metals, digital information, robotics, cybernetics). As a child, Aloy falls into a cavern and finds a piece of ancient (21st century) technology. A small triangle that clips over the ear, this “Focus” is essentially a smart phone with Augmented Reality projection (sort of… JawBone meets GoogleGlass and Microsoft Hololens). This device helps to advance the plot, often by connecting with ancient records that establish the history of Aloy’s world (it even helps with combat and stealth!).

It’s also a privacy nightmare. The primary antagonist first sees Aloy -without her knowledge- through another character’s Focus. Aloy’s own Focus is hacked several times during the game. A key ally even reveals that he hacked Aloy’s Focus when she was a child and watched her life unfold as she grew up. (This ultimately serves the story as a way for the Sage archetype to have a sort of omniscience about the protagonist.) For a girl who grew up as an outcast from her tribe, living a near-solitary life in a cabin on a mountain, with the only electronic device in a hundred miles, she manages to run into a lot of privacy breaches. I can’t imagine if she tried to take an Uber from one village to the next.

Our interconnected devices accumulate deeply astonishing volumes of data- sometimes, very personalized data gets captured. In a case heard by the Supreme Court this month, a man in Ohio has his location determined by his cell phone provider. The police obtained this information and used it as part of his arrest and subsequent prosecution. The Supreme Court recently heard a case about the use of warrants for law enforcement to access cell phone data. (This is different from the famous stalemate between the FBI and Apple after the San Bernadino shooting, when Apple refused an order to unlock the iPhone of a deceased criminal.)  As connected devices become omnipresent, questions about data privacy and information security permeate very nearly every side of every facet of our daily lives. We don’t face questions about data the way that one “faces” a wall; we face these questions the way that a fish “faces” water.

From cell phone manufacturers to social media platforms, the government confronts technology and business in a debate about the security mechanisms that should be required (or prohibited) to protect consumers from criminals in myriad contexts and scenarios. In this debate, the right answer to one scenario is often the wrong answer for the next scenario.

Conclusion: Maybe We Don’t Understand Privacy In a New Way, Yet

The current cycle of consumer demand for risky designs followed by data breaches is not sustainable. Something will have to shift for Privacy in the 21st century. Maybe we will rethink some part of the concept privacy. Maybe we will sacrifice some of the convenience of the digital era to retain privacy. Maybe we will try to rely more heavily on security measures after a breakthrough in computing and/or cryptography. Maybe we will find ways to integrate the ancient privacy methods of the 20th century into our future.