The Laboratorium
July 2011

Six Strikes and You’re Out at the Antitrust Ball Game?


In “today’s” Ars Technica, Tim Lee asks whether the new “six strikes” copyright enforcement system at ISPs might violate the antitrust laws. He credits me with suggesting the story, but that may be too kind in a case of convergent evolution. Fordham’s Mark Patterson had a similar idea, and the two of them bat it around in the article, with Patterson exploring the provocative similarities between the six-strikes scheme and the Fashion Originators’ Guild of America, which the Supreme Court struck down in 1941.

Patterson focuses on the idea of collusion among copyright owners to chase alleged infringers. The MPAA’s Dan Robbins responds by arguing that the courts have blessed programs by which copyright owners “engage in cooperative efforts to enforce their copyrights against a common infringer.” To the extent that users really are infringing, I think this response is persuasive. The MPAA and RIAA have coordinated litigation campaigns against infringers, campaigns that would have been less economical and perhaps impossible without that coordinating role. Now, this may make them deeply unpopular, but these are rights granted by copyright law and it would be odd if antitrust law were to turn around and make those rights useless in practice.

Instead, the rubber hits the road when it comes to cases where the infringement is only accused, rather than actual. Patterson describes the plan as “disrupt[ing] the balance that copyright law has struck.” The Memorandum of Understanding departs from copyright law on the books in multiple ways. The burden of proof, for example, is on the accused to show that her use is not infringing. She must pay to initiate a review. And perhaps most importantly, the list of grounds for challenging a notice is missing all sorts of defenses that would be valid in court, such as:

  • The work is not copyrightable (e.g. it consists entirely of facts arranged in an unoriginal way).
  • The sender of the notice is not the owner of the copyright.
  • The copyright has entered the public domain via failure to affix proper notice or file renewal paperwork under the 1909 Copyright Act.
  • The copyright is unenforceable due to copyright misuse.

In this respect, the parallel between the Fashion Guild and six strikes may have more to it. Both involved private arrangements among competitors in a field to collectively grant themselves rights in excess of what copyright law provides. For the Fashion Guild, those rights were copyright-like rights at all, since fashions were not then and are not now copyrightable. For six strikes, those rights are a system that shifts the burden of proof to users and denies them many of the privileges to use that they would enjoy under copyright.

I was also struck by some of the provisions the Memorandum that seemed more like restrictions on other copyright owners. So, for example 5.C provides “The MPAA Group and the RIAA Group will allocate the number of ISP Notices that each shall be entitled to send to each Participating ISP per month … .” I read that and thought, “Oh, really?” So the ISPs will set up this new enforcement system, but there’s going to be an explicit quota on how much any copyright owner can use it, and that quota will be set and enforced by industry-wide groups? This isn’t quite a restriction on output per se, and it is linked to a new “product,” but still, can’t you see how those quotas could be used by the major labels to reduce competition by starving the indies for ISP notices?

Finally, Patterson suggests that the arrangement could result in an “injury” of “the inability to choose among ISPs.” In one sense, yes, because the major ISPs all jumped into this agreement at once (indeed, all in the same document), this is potentially a horizontal agreement to fix product features and prevent competition among ISPs on their copyright policies. But also, I think the fact that the ISPs all were comfortable signing this itself a symptom of how concentrated the market for residential Internet service has become. The ISPs are saying that they’re not afraid of users leaving them for competitors with different copyright policies. They didn’t say so in so many words, but this strikes me as a pretty damning indicator of just how powerful a position they already occupy. We may be witnessing not the acquisition of market power, but the wielding of it.

Internet Law: Cases and Problems


I’m usually pleased to announce new projects here. I’m unusually pleased to announce my latest: an Internet law casebook I’ve been teaching Internet Law for five years, and in that time I’ve gradually turned a few supplementary cases into a set of materials for a full course, and now into a real casebook: Internet Law: Cases and Problems. I’d like to tell you a bit about it — but first, I’d like to tell you about its pricing.

Consider the deal you get with a typical major-label casebook. You’ll probably pay five times as much: $150 or more. Maybe that price includes online access to an electronic version, but your access will expire after you finish the course. Good luck getting a version you can mark up in a basic PDF reader, rather than in a proprietary and hard-to-use application. And did I mention the prices that can drive a law student’s cost for books over $1,000 a year? I was bothered by this gouging as a student; it bothers me even more as a professor who sees students go an entire semester borrowing the book from the reserve section of the library in three-hour blocks because they can’t afford their own copy.

I thought there had to be a better way. Then I met Semaphore Press. Each Semaphore book is sold as a DRM-free PDF download for a suggested price of $30. Each copy comes with a license letting you download and copy the book for your own personal use. You can print it, annotate it on your, copy it to your iPad, or even download it again if you lose the original. Semaphore can keep the prices low because it publishes electronically, because it doesn’t spend millions of dollars on glossy marketing brochures and fancy displays at academic conferences, and because it doesn’t have to placate a corporate parent that demands constant increases in the annual revenue numbers. And the suggested price really is that: a suggestion. If you’re a student in a developing country for whom $30 would be a hardship, pay what you can instead. I think this deal is a fair one for all concerned; it’s built on mutual trust and respect, something I’ve written a bit about.

Now, for the book itself. I’ve tried to produce a casebook that reflects the fun and excitement of contemporary Internet law. The classic cases are in there, to be sure, but I’ve tried to put them in a historical context, to show how they connect up with cutting-edge controversies like WikiLeaks, Righthaven, and network neutrality. Although the book is a trim 414 pages, it covers an unusually broad swath of issues, with a constant emphasis on the ways that these things really happen, and how real-life lawyers in all areas of practice need to be prepared to deal with them.

The “Problems” in the title aren’t incidental add-ons, either. There are dozens of them, designed to probe the implications of legal doctrine by asking students to take on a wide variety of roles. You’re a prosecutor: advise the police on what they should do with a suspected child pornographer’s laptop to avoid running afoul of the Fourth Amendment. You’re general counsel at an e-commerce firm: redesign the process for updating your terms of service so that any changes will stand up in court. You’re on the staff of a non-profit: tell a Senator (politely) whether his new encryption bill will break the Internet.

Law students: I wrote this book for you. I’m sure you’re familiar with books that are so pedantic about saying what the law is in excruciating detail that reading them is a constant battle to stay awake. I’m sure you’re also familiar with books that are full of drama but leave you in the dark about the current state of the law. I’ve tried to steer a middle course: picking cases with memorable facts and striking analyses, but also making sure never to hide the ball. I want to help you reach the deep end, not to throw you in it.

Non-law-students: I didn’t specifically write this book for you, but I hope that you also find it interesting and useful. Many of the basic doctrines of Internet law are quite easy to learn; they help make sense out of the Internet as we experience it. Beyond that, the book is designed to show how many of the defining controversies of the Internet connect up with each other. In these disputes, law is often the battleground. Think of this book as a field manual, to help you see the fight through a professional’s eyes.

If you would like to learn more, the book has a homepage with more detailed description, sample chapters, and a FAQ. If you’ve heard enough and you’re already sold, you can go directly to purchase it from Semaphore.

I’m really excited about this book. I hope some of you will be, too.

Something Springs Eternal


From Steven Levy, Insanely Great: The Life and Times of Macintosh, the Computer That Changed Everything (1994, rev. ed. 2000), pp 275–76, describing an article published in January 1990:

Some people have criticized Macintosh on the grounds that it does change one’s thinking. Marcia Peoples Halio, an assistant professor of English at the University of Delaware, raised considerable hackles among Macintosh adherents in the academic community by writing an article in Academic Computing entitled, “Student writing: Can the machine maim the message?” In it, she described how the Freshman Comp papers she received differed according to the computers the students used to compose them. After several semesters of having her students used DOS-based IBM computers, she was shocked at the papers generated by Macintosh users: “Never before in twelve years of teaching had I seen such a sloppy bunch of papers,” she wrote. The problem went deeper than punctuation: the Macintosh students also wrote in a more casual style (Halio was reminded of the loose colloquialisms of the mass media) and even chose more frivolous subjects to write about. While the IBM students addressed issues like capital punishment and nuclear war, she complained, “Mac students chose to write about such topics as fast food, dating, bars, television, rock music, sports, relationships, and phenomena such as the foam ‘popcorn’ chips that come in too many packages.

“Can a technology be too easy, too playful for young immature writers?” she asked. “It seems to me that schools with only Macintosh computers may need to alert teachers to the possible effects that using this icon-driven, super-friendly system can have on students’ writing.”

Planet Telex


Ed Felten’s computer science policy shop at Princeton, the CITP, is a temple of policy perversity. He and his team of merry pragmatists have for years specialized in spotting unexamined assumptions in the conventional policy wisdom about technologies of obvious real-world importance, then finding technical twists that utterly shatter those assumptions. Consider:

  • We assumed that blank pieces of paper are identical and untraceable. But no: blank paper can be fingerprinted using ordinary scanners.
  • We assumed that when a computer is turned off, everything in its memory goes away, including the key needed to access an encrypted drive. But no: cool off the memory chips and you can recover the encryption key from a (literally) cold boot.
  • We assumed that multiple-choice bubble forms are anonymous. But no: different people consistently fill in their bubbles in different ways.
  • We assumed that the public challenge to break the SDMI watermarking schemes was designed to find and deal with the the problems of the proposed schemes, not to hide them. But no: the RIAA not only tried to suppress the research, but ended up looking like buffoons for doing so.

And so on and so on. What these analyses have in common, beyond the technical skill behind them and the clear and dispassionate prose with which they are described, is a Neo-level willingness to bend the rules of technical convention. There is no spoon for these guys, and there never was. I suspect that the qualifying exam for Felten’s graduate students consists entirely of playing through the old Hitchhiker’s Guide to the Galaxy text adventure; anyone who successfully completes the puzzle that requires (literally) removing one’s common sense passes.

The most recent and most remarkable example of this specialty comes not from CITP itself, but from a team of authors including CITP alum J. Alex Halderman, now at the University of Michigan. Meet Telex, a new system for circumventing censorship on the Internet, which turns everything you thought you knew about the problem and turns it inside out.

The problem is familiar. A computer user in a country with an authoritarian government — call her Alice, of course — wants to visit Bob’s (foreign-based) website to post and read a discussion board criticizing the government. Unfortunately for Alice and Bob, the Ministry of Truth has Bob’s website on a list of blocked sites, and logs any attempts to visit it. The standard technique is for Alice to use a proxy server (provided by, oh, let’s say Pete). Alice sends a web request to Pete’s server instead; Pete relays the request to Bob, then relays Bob’s response back to Alice, and so on. The trouble with this approach is that the Ministry can add Pete’s proxy to the blocklist and log attempts to visit it, and so on. This has led to a cat-and-mouse game, both technical and social, between censors and anti-censors, one that neither side can ever definitively win.

Telex does something that at first blush sounds absurd. Alice connects instead to Irene’s innocent website, using an encrypted connection. The protocol that defines the process for setting up the encryption specifies that, at one particular point, Alice must supply a random number. Alice doesn’t do that. Instead, she provides a code that looks random but isn’t. At this point, a router along the route from Alice to Irene suddenly snaps to attention. That random number going by wasn’t random. No, it’s the Bat-Signal! The router watches silently until the encryption between Alice and Irene kicks in, then starts relaying Alice’s messages to Bob instead. Alice now has an encrypted channel to Bob, but so far as the Ministry can tell, Alice’s channel goes to Irene.

Telex was designed to be hard to detect. The full paper shows that while the scheme isn’t perfect, it will be quite difficult for the Ministry to distinguish a wholly innocent connection to Irene from a Telex-based connection that only appears to be going to Irene but is really being redirected to Bob instead. The Ministry could start blocking Irene, too, but because the scheme doesn’t require Irene’s cooperation (indeed, she need not even know this is going on), Alice could have chosen some other site instead. As long as enough different routers are watching out for Telex Bat-Signals, Alice has a free hand in picking any decoy site to connect to. The Ministry really would need to cut off access to most or all of the Internet to limit Alice’s access to Bob. And as we saw in Egypt, when the cute cats get cut off, people know the government has gotten desperate.

Telex is sick. It does at least three things that are flagrantly wrong according to the usual technical definitions of correct behavior in a protocol:

  • Not only does Telex tolerate the fact that the router is watching for the Bat-Signal, it positively requires that it do so. The router must engage in deep packet inspection (DPI), examining the contents of each message as it goes by, rather than just delivering it. This behavior breaks the layered model of the Internet; a router is “supposed” to pass IP datagrams along to the next hop in the chain, without paying attention to the semantics of the contents when interpreted as messages according to higher-layer protocols.
  • Once the router starts relaying Alice’s messages to Bob, it needs to do something about the connection Irene has just participated in setting up. So the router immediately tells Irene to drop the connection, using a “forged RST packet” that appears to come from Alice. This behavior breaks the end-to-end model of the Internet; a router is “supposed” not to alter the contents of the messages exchanged between two endpoints. It especially shouldn’t lie to one of the two endpoints to say the other endpoint doesn’t love it anymore and is ending the relationship.
  • Telex requires that the router be able to decrypt Alice’s messages, but the encryption handshake used by Alice and Irene is designed so that computers in the middle won’t be able to break the encryption. So Alice cheats: in essence, she lets the router look over her shoulder by choosing a secret number that the router already knows. This breaks the theory of using good encryption; one is “supposed” to pick random numbers to foil eavesdroppers.

I have argued for some time that lawyers and law professors should be extremely cautious in attempting to derive the “ought” of legal conclusions from the “is” of how technical systems are specified. Just as with the words of a contract, one needs to know something what the parties meant by their use of a protocol, and the answer to that question need not lie in the protocol’s official specification. (Think, for example, about robots.txt.) Textualism, in other words, cannot be a complete theory of interpretation for computer code. (Neither can pure purposivism, but that is a topic for another day.)

Telex now has me convinced more than ever that we should be reluctant to reify technical standards into legal ones. Imagine the consequences if any of these three rules above were actually binding rules of law. If it were illegal to forge RST packets, Telex could not work. True, the user signals her intent to have one forged on her behalf, but what about poor deluded Irene? Might some court perhaps say that her system was accessed without authorization, since Alice chewed up some of Irene’s computational resources for a transaction of utterly no benefit to Irene?

If we want our Internet policy to be driven by actual social goals, by principles like “censorship by authoritarian regimes is bad,” then we will need to be somewhat flexible about the technological means by which we achieve those goals. A layer-respecting, end-to-end, cryptographically robust Internet is not an end unto itself; it is a means to other ends. It may well be the case that such an infrastructure is in fact highly generative and strongly freedom-enhancing, so that we will almost always prefer an Internet that has these characteristics almost all of the time. But there is no point in being dogmatic about striking those “almosts” for the sake of technological or philosophical purity. If some clever people trained in the Felten tradition of perverse benevolence find a way to do good in the world by doing something very wrong to a protocol, we should hear them out … and then reassess where things stand in our new and altered universe.

I predict that Telex is going to upend the network neutrality debates. Now, Telex itself is probably not a violation of the network neutrality rules that the FCC has twice attempted to enact. For one thing, Telex is designed to assist users with the active cooperation of ISPs, so that everyone with a stake in the question will want it to be legal. For another, the rules themselves have both times had too many qualifiers and missing definitions for there not to be safe space big enough to shelter Telex.

But what Telex does do is throw the assumed battle lines out the window. So far, forged RST packets and DPI have primarily been tools of ISP-level control over users. If the forged RST packet is the knife, DPI lets the ISP know when and where to cut. Together, they let governments censor their citizens, and let Comcast block BitTorrent. Little wonder, then, that they are cast as network neutrality villains by user groups, or that scholars have sometimes cast about for legal principles that would put these technological practices beyond the pale. For their part, the ISPs have claimed they need such techniques to make their networks work, to prevent misuse, to recapture their investments, and so on.

With Telex, though, everything is topsy-turvy. Users (primarily abroad, but also perhaps at home) are the beneficiaries of Telex; they are the ones who will benefit from its unorthodox new twists on old protocols. And ISPs are the ones who will bear the burden: they will have to modify their routers to watch for the Telex Bat-Signal and swing into action when they see it. There’s no obvious business case for doing so, which means we can expect the ISPs to need to be either pressured or bribed to support Telex. In other words, here is a blatantly non-neutral network modification, but one that is good for users and bad for ISPs.

Telex is a fascinating new idea. I hope that it works, and I look forward very much to seeing people’s heads explode as they realize what it does.

Dwarf Fortress in the New York Times


The Times has an article in the Sunday Magazine about, no, I did not believe this either until I saw it, Dwawf Fortress. Yes, that Dwarf Fortress, the ascii-art game with the 1300-page wiki and the epic tales. The wonder, perhaps, is that the article exists at all, and I enjoyed learning more about Tarn Adams’s focused obsession, but still, I felt the article didn’t quite capture the features that make Dwarf Fortress so remarkable. I say all of this as a non-player (I don’t have a few spare months lying around, sorry), so I might well be wrong, but …

First, the “epic” in the Dwarf Fortress Epic genre is wholly appropriate. The game captures something of the character of the sagas, those other tales from harsh and violent lands. Dwarf Fortress combines a sweeping grand historical narrative with a perfectly clear-eyed vision that omits nothing. There is no depth of field: every detail is there, and can assume equal importance, as though a hawk or a god were watching from above with detachment at these dwarves scrabbling in the earth. One sees the rise and the fall of the mighty fortress with its great delvings; one sees each High Master Fish Dissector.

And second, all Dwarf Fortress Epics (or at least all the ones that have gone viral) tend to ruin. Something always goes wrong. The dwarves dig too deep, and unleash a named horror. The weather is bad, and the wrong door is opened at the wrong time. A trap fails when a panicked dwarf runs backward through a corridor, flooding out the armory and keeping the militia from responding. The emergent gameplay means that things fail in the most surprising and fascinating ways. Like zombie movies, Dwarf Fortress Epics tell a single story: the sudden-onset entropic collapse of civilization.

Dwarf Fortress, in other words, is a storytelling game. The complexity of the rules provides room for interesting things to happen; the simple graphics provide room for the imagination to do the rest.

And Such Small Portions, Too!


The most recent Wired has a column by Chris Colin on how the little Facebook “Like” button is destroying the human soul. No, seriously. At one point, he quotes another Wired contributor, Erik Davis:

Our culture is afflicted with knowingness. We exalt in being able to know as much as possible. And that’s great on many levels. But we’re forgetting the pleasures of not knowing. I’m no Luddite, but we’ve started replacing actual experience with someone else’s digested knowledge.

Those last two critiques are mutually incompatible. If the point is to rediscover the pleasures of not knowing, then shouldn’t someone else’s flattened and distorted knowledge be an improvement over actual experience? Unless he’s in favor of brute, pointless experiences, the kind from which one learns absolutely nothing — like reading this column.

GBS Status Conference: Opt-in Settlement in the Works?


At today’s status conference in the Google Books case, two things happened. Judge Chin started threatening to put schedule pressure on the parties, and they let slip that they’re working on an “opt-in settlement.”

Michael Boni, speaking for Google and the plaintiffs, asked Judge Chin for more time, until the middle of September, to continue their negotiations. Unlike last time, however, Judge Chin expressed some mild impatience. He was concerned that this six-year-old case wasn’t moving forward, so he suggested that he might give the parties a deadline to make them negotiate a little more efficiently. Judge Chin suggested that he saw the case, if it were to be litigated, in terms of fairly straightforward cross motions for summary judgment on whether snippet display is a fair use.

In the process of trying to reassure Judge Chin that the negotiations were making real progress, while at the same time not promising any particular outcome, Boni then explained that the parties “have been aiming for an opt-in settlement.” What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. it could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can “opt in” to book sales by striking their own individual deals with Google. The terms and details of such a settlement could vary in all sorts of ways. But now we know that the parties are working on a narrower settlement.

A follow-up status conference is scheduled for September 15 at 11:00 AM. If the parties don’t have at least an agreement in principle by then, Judge Chin will give them a “tight discovery schedule.” He concluded by offering the services of a senior judge or magistrate judge to help in the settlement negotiations. The parties said they would discuss the possibility.

(Don’t Sing Those) Food Truck Blues


Kim Severson’s Should Cities Drive Food Trucks Off the Streets?, in today’s Sunday Review, takes until the seventh paragraph to give even a single reason why the answer might be “yes.” And that reason?

But many restaurateurs are sick of seeing competition literally drive up outside their windows.

“It’s ignorant of people in the community to think that buying from food trucks instead of from local restaurants doesn’t hurt the community,” said Melissa Murphy , who runs two Sweet Melissa Patisseries in Brooklyn. “There’s just not enough to go around right now.”

I am not a libertarian, but sometimes it is useful to channel one. Food trucks sometimes hurt restaurants, to be sure, but shutting down food trucks to protect restaurants hurts food trucks — and eaters. Competition is a feature, not a bug. Food trucks are convenient, cheap, and deliciously varied.

When I eat at one, it’s because it’s offering me something that no nearby restaurant is. In college, I couldn’t have made it to my algorithms class and still had lunch if it hadn’t been for the Chinese Food Truck. In law school, the burrito cart frequently had a line stretching halfway down the block. And today, I sometimes take field trips to other parts of the city to visit particularly renowned food trucks.

As my breakfast partner says, “The kind of restaurant that finds itself unable to compete with a truck should consider shutting down and opening a truck instead.”

Variations on a Theme


Peter Hessler, Country Driving: A Journey Through China from Farm to Factory (2010), page 230:

[I]n Communist China, whenever a new leader takes office, he sponsors a slogan-filled study campaign as a way of consolidating power. “Preserving the Progressiveness” was Hu Jintao’s first attempt at theory, and the precise meaning of the catchphrase was characteristically vague. It was intended to resemble a grassroots operation, although of course all directives came straight from the top.

The themes of the twelve most recent annual meetings of the American Association of Law Schools:

  • 2012: Academic Freedom and Academic Duty
  • 2011: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times
  • 2010: Transformative Law
  • 2009: Institutional Pluralism
  • 2008: Reassessing Our Roles as Scholars and Educators in Light of Change
  • 2007: Expanding Knowledge and Serving Our Communities: Academic, Civil, and International
  • 2006: Empirical Scholarship: What Should We Study and How Should We Study It?
  • 2005: Engaged Scholarship
  • 2004: The Association as a Learned Society
  • 2003: Legal Education Engages the World
  • 2002: Do You Know Where Your Students Are? Langdell Logs on to the 21st Century
  • 2001: Pursuing Equal Justice: Law Schools and the Provision of Legal Services

An Implausibly Long Instant


From Robocalypse:

Veer twenty degrees to the right. Increase speed to forty kph and maintain for six seconds. Then execute a full stop and lie on the ground.

Boom.

The instant I drop to the ground, my body is rocked by an explosion from a hundred meters in front of my position—consistent with my exact trajectory prior to the full stop.

At forty kilometers per hour, it takes nine seconds to go a hundred meters. The book was clearly written with Hollywood in mind, where everything happens in the most dramatic way possible, but I thought this is what editors are for.

L.A. Noire I give it 4 stars


Cole Phelps, the detective hero of L.A. Noire, is brilliant but flawed, and so is the game. When it works, L.A. Noire is electrifying; it does its job with panache. But in the end, like Phelps, it can’t entirely leave its past behind.

This is a police procedural. While there are car chases, shootouts, and fisticuffs, the heart of the action is in the crime scene work and the interrogations. There’s a certain satisfaction in casing an apartment, spotting a piece of paper out of place, examining it, and realizing that it ties your suspect to the drug ring he denies knowing anything about. The real thrill, though, comes in using that clue to catch the suspect in a lie, seeing his eyes flick as you ask him abut it and he mumbles an unconvincingly vague denial, and thinking, “I have you now.”

The interrogations are truly remarkable. Like the Phoenix Wright games, they require you to pull out the appropriate piece of evidence to put the lie to a suspect’s lie. The innovation here is in the use of motion-capture technology, not for silly stunts, but to display detailed facial expressions. As you ask each question, the witnesses answer realistically. They cough, they look you in the eye, they smile, they sweat. Some of them are flirts, others are bullies, others are psychopaths or lunks in way over their head. And then it’s decision time: will you believe them, press them harder, or confront them with the evidence that show’s they’re lying? Get it right, and you can extract a little more information towards unraveling the case. Get it wrong, and they’ll clam up on you.

Doing well in the interviews requires engaging your whole brain. The left brain looks for contradictions; is there anything in the evidence that doesn’t fit? The right brain looks for honesty; is this person suddenly getting nervous on me? Some of the tells are easy; witnesses who break eye contact and look off to the side frequently have something to hide. But others are really, marvelously subtle. I don’t think I could tell you specifically how I knew when some of the suspects were lying to me; I could just tell that their faces were closed off in a way that they hadn’t been a moment before. The game also rewards thinking carefully about context. What do I think this person’s link to the crime might be, and what kinds of things might they be trying to hide? It was when I got lazy about thinking through the angles that I started to screw up; the cases when I was careful about the possible narratives that things went well. Huge amounts depend on getting a good baseline read on a suspect. Some people roll their eyes when they’re trying to remember a scene carefully, so it’s not a sign of anything suspicious at all; others are tight-lipped from the get-go, and their tells are subtle as all get-out.

The game also gets its atmospherics very right. The game is set in 1947 Los Angeles, and the designers drank deeply at the wells of L.A. Confidential and Chinatown, right down to the Jerry Goldsmith-inspired musical score. The back-and-forth dialogue, some playful and some tense, between Phelps and his partners is positively crackling. The result is that L.A. Noire is “cinematic” in the best way. When you get into your car to drive to the next location, and your partner starts chewing over what you expect to find as the score wells up … the sense of anticipation is just perfect. The cases, for the most part, have satisfying narrative arcs; things come together in precisely the way they ought to in the last act of an hour-long television drama.

The first marble in the oatmeal is that this is recognizably a Rockstar game. It’s as though Rockstar, knowing that it has a game engine highly optimized for driving around city streets, feels compelled to put a lot of driving around in every game. Just as Red Dead Redemption could as well have been titled Grand Theft Horse, L.A. Noire at times feels a bit too much like Grand Obeying All Traffic Laws Auto. If it weren’t for the ability to “have your partner drive” (i.e. to teleport from location to location), I probably would have given up on it partway through. The car chases and shootouts are still just as frustrating as in Grand Theft Auto; you can always count on the controls to do something flaky at the worst possible moment. I lost count of the number of times Phelps started climbing up a fire escape rather than down it, or ignored someone punching him, or started aiming in the wrong direction.

The bigger problem with L.A. Noire is that it doesn’t quite have the courage of its convictions. As Tycho observes, the game lets you skip all the action sequences, but you’re on your own for the interrogations, and if you blow one, there is no “repeat the interview” button to press. The case rolls on, and you need to live with the consequences. Except not quite. The case really does roll on, which means the game feels compelled to dole out just enough information to get you to the next piece of the investigation, no matter how badly you have failed at extracting it during the interrogation. You may have completely misread a suspect, but he will still blurt out the next crucial fact during the closing cutscene. And so you stumble onwards, perhaps to botch the next interview just as badly. It’s the video-game equivalent of bumper bowling; once you realize that the game really is this forgiving, the tension just drains away. Other characters may discuss your screwups, but the plot itself rumbles on, even if you have the detecting ability of a Clousseau.

If I ran the zoo, I would make it possible to fail a case through shoddy investigation; miss too many lies and you’ll need to start the case again from scratch, because your investigation has hit a dead end. I recognize that this kind of high-stakes design decision is commercially impractical in a triple-A title. Our culture constantly reminds us that failure is not an option; only in games is that literally true. Still, I hope that future games in what I hope will become a well-established genre are willing to do even less hand-holding. (And yes, I am aware that some reviewers criticized the game for not doing enough hand-holding in the interviews.)

Finally, a few words about the overall plot. Don’t have high expectations, and you won’t be disappointed. The game mixes a little too much in to its central conspiracy, to the point that it becomes a convenient catch-all for period-appropriate criminal enterprises. Drug-running and land speculation? Sure, why not. The pacing is also off. While some plot strands — including a Black Dahlia-esque serial killer — grind on with frustrating monotony, other crucial developments are barely foreshadowed or are quickly forgotten. I don’t have as many complaints as this guy (parts 2 and 3) does, but don’t expect something with the tautness of the movies that inspired it.

That said, I did find one storytelling twist to be very elegantly done. I’ll put it a few lines down, past a big blatant SPOILER WARNING:

You spend much of the game’s third act chasing a drug ring which has gotten a hold of a large quantity of Army surplus morphine. Cole Phelps soon realizes that a group of ex-Marines, many of whom he knew from the war, are deeply involved. (Their role is also made clear by a parallel set of cutscenes that you unlock during the course of your investigation.) They boosted the morphine, then started selling it in a scheme designed to benefit themselves and other GIs, and became involved with real criminals, viz. Mickey Cohen. Phelps catches up with them as things are starting to go very wrong; he wants to arrest them, but also to protect them from the much more dangerous demons they have foolishly summoned. Things do not go as hoped, for a variety of reasons, and many of them, including their likable leader Courtney Sheldon, end up dead.

Throughout the game, cutscenes have shown Phelps’s history in the war. We learn that his Silver Star was utterly undeserved, that he froze and panicked under pressure, and that his straight-arrow personality got many of his men killed, made the rest hate him, and led directly to a wartime atrocity. The final cutscene, after the end credits, though, focuses on Sheldon and the morphine ring. He and his buddies in the Marines are sitting on a ship in Los Angeles harbor, waiting for their return to civilian life, when one of them reads in the paper about that “phony bastard” Lieutenant Phelps being promoted in the LAPD. Resentment builds at “jerks like Phelps,” until Sheldon points out that they’re sitting on two tons of surplus morphine, and that it could be a “peace dividend.”

I think the scene is brilliant, because it puts the game in a new perspective. Not so much factually — the player already knows by this point what happened, more or less — but because it situates the game back within the film noir genre. The classic noir plot is about a dope who thinks he’s found an angle at last, only to get in over his head and be caught up in a current of corruption and betrayal. Sheldon and his buddies are the dopes of L.A. Noire, much of which is devoted to showing just how badly things go for them. The player, as Cole Phelps, sees things only obliquely, in parts here and there, as the tragedy unwinds. I disagree with the critics who think that this robs the morphine plot of L.A. Noire of tension; in a police procedural, the reader often knows more than the detectives about where things are heading. No, this is a final, well-timed reminder that this part of the game, indeed the most noir-ish part, is not your story.