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M. Midgley and A. Ross talked about games (see § 6.1 Chapter 3 of this research), stressing that any game necessarily refers to agreements on how this game should be played, meaning not only game mechanics, but also the attitude to the game. The subject of a “risk-based agreement about prize...” can be any process the result of which is not known in advance and is accidental. In addition, the doctrine of law relating to the issues of legal regulation of the organization of gambling, rightly emphasizes the fundamental importance of proper interpretation of the word “risk” used in the definition. The “risk” is generally understood as the possibility of accidental loss of property belonging to the player.166 You can play poker without betting and enjoying the process. Such a game will not be gambling in the legislative sense. On the contrary, when someone plays chess with stakes, the players’ activity will be a gambling game, despite the fact that by its nature chess cannot be viewed as a game of chance in the sense in which this word is used in ordinary language

– there is no element of chance in chess, which would be provided for by the rules of the game (for the purposes of this analysis, we do not take into account all the possible “chances” resulting from the individual reaction of the players).

Summing up the interim results, we shall note that in all the examples cited above we can single out something in common – this is the connection of the object of social relations with something divorced from “serious” everyday life, as well as the resulting problems of interpretation of law in relation to relevant situations that, at least in some cases, can lead to the results that are absurd from the point of view of ordinary language and common sense. Let us try to characterize the context in which the significance of such problems changes qualitatively more accurately, and form a hypothesis consistent with such a context for further analysis.

166 See: Ivanova O.A. Gambling: Concept and Characteristics // Bulletin of the Volga University Named after V.N. Tatishchev. 2015. No. 2 (82). P. 111–117.

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§ 4. The concept of the medial turn as a generalization of key features of the sociocultural context of the problem

The actual sociocultural context that determines the problem of the semantic limits of law can be characterized by two main factors. First, it is digital turn implying such changes in the material bases of production, distribution and consumption of information, which entail changes in sociocultural practices.167 Second, it is game turn, as a result of which, on the one hand, a new form of [mass] culture and art appears (including entailing a reassessment of the “seriousness” of what is happening in the socio-communicative dimension), and on the other – polarizing social groups because there are radically different points of view in respect of the significance of computer games.168 The idea of these “turns” for the purposes of this work is conditional and instrumental. They can be systematized and divided in different ways. Thus, the head of the Center for Mediaphilosophy at the Institute of Philosophy at Saint Petersburg State University and the de facto founder of the Russian direction of mediaphilosophy, V.V. Savchuk, in his book “Mediaphilosophy. Assault of Reality”169 notes:

«In the modern philosophy, we can easily find various turns: ontological, linguistic, iconic, theological, performative, postmodern, medial, anthropological, rhetorical, spatial. Their number is growing. Looking closer, someone will certainly add new, unrecorded».170

167 Udupa S., Costa E., Budka P. The Digital Turn: New Directions in Media Anthropology / Discussion Paper for the Follow-Up E-Seminar on the EASA Media Anthropology Network Panel “The Digital Turn” at the 15th European Association of Social Anthropologists (EASA) Biennal Conference, Stockholm, Sweden, 14-17 August 2018 [Electronic resource] // Media Anthropology Network. – [Site]. – URL: http://www.mediaanthropology.net/file/udupa_costa_budka_digital_turn_discussion_paper.pdf (accessed: 03.08.2019).

168Perhaps the most precise description of game turn in culture and theory of media is provided in the following work: Raessens J. The Ludic Turn in Media Theory / Lecture. 2012 [Electronic resource] / Utrecht University Repository. – [Site]. – URL: https://dspace.library.uu.nl/handle/1874/255181 (accessed: 03.08.2019).

169Savchuk V.V. Mediaphilosophy – Rush of the Reality. Saint–Petersburg: RHGA Publishing House, 2014. Here and beyond, we will mainly focus on this work by V.V. Savchuk, as Russia’s first and most important monographic study of media philosophy, addressing also some foreign authors, as appropriate.

170Ibid. P. 7.

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In the sense of such a working classification, both digital turn and game turn can be considered as parts of a more general medial turn (or “turn of media”). Such qualifications have a double meaning in the context of the present work, because of “generalized symbolic media”, the concept of which underlies the developed approach about the semantic limits of law, deriving from the original texts of T. Parsons and his English-speaking followers, whereas their translation into Russian as, literally, “intermediaries” – is rather the tradition of translation in theoretical sociology, but in essence, we are talking about the “media” in the sense of mediaphilosophy (please note that this paragraph was adapted for English translation because it was focused purely on the language game of translation).171

One of the new perspectives, which is presented in this work, is exactly to give a legal assessment of medial turn, the latter being defined in the subsequent part of this paragraph. Law is a part of the socio-cultural dimension of society’s life, and therefore such a total phenomenon as the medial turn inevitably influences the law as well. As I.L. Chestnov notes, “law is a social phenomenon conditioned by interactions with other social phenomena, outside and without which law does not exist, and with society as a whole...

Thus, there are no legal phenomena (laws, individual acts, legal relations), which would not simultaneously be psychical (as L.I. Petrazhitsky once wrote), economic, political, etc.

– in a broad sense – sociocultural phenomena”.172 Accordingly, if modern society is

171 Awareness of the role of “media” as an intermediary of communication, which is constitutive of the social reality, is typical for many scientific directions of the XXth century. For example, in the “Sociology of Law” Yu.I. Grevtsov reproduces the view of P.A. Sorokin on the structure of legal relations as follows: “P.A. Sorokin, who paid a lot of attention to the analysis of social interaction, singled out three elements in the structure of interaction: the parties (subjects) of social interaction; acts or behavior, actions of the parties of interaction and conductors (emphasis added – V.A.). By the latter, he understood a variety of phenomena by means of which or by means of which “mutual actions and reactions of interacting individuals are transmitted to each other, or, as expressed in the language of energy, by which energy, in particular mental energy, is transmitted from individual to other”. Legal norms relate, according to the scheme of P.A. Sorokin, to conductors". See: Grevtsov Yu. I. Sociology of Law. Course of lectures. - St. Petersburg: Publishing house “Legal Center Press”, 2001. – P. 163. Y.I. Grevtsov quotes P.A. Sorokin from the following edition: Sorokin P.A. System of Sociology. Т. 1. M., 1993. P. 172.

172 Chestnov, I.L. Postclassical Communicative Concept of Law as an “Invisible Collegium” // Proceeds of Higher Educational Institutions. Jurisprudence. 2013. No. 5 (310). – P. 119.

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characterized by the medial turn, law needs to be rethought in the context of such sociocultural changes.

The medial turn is a systemic phenomenon that modifies the paradigm of sociocultural life, which is hardly fully comprehended in philosophy, obviously has a significant effect on the range of actual problems of jurisprudence. In a sense, this study is a study of law in conditions of a medial turn, and the problem of the semantic limits of law is actualized now because the major part of the empirical material where this problem makes itself explicit, is connected to the effect of law in media space.173 According to V.V. Savchuk,

«[a]fter a series of major for the twentieth and early twenty-first century turns, more and more insistently voices are heard to recognize the summing and, at the same time, fundamental medial turn»;174 «...media is both a method of communication, and an instrument of production, and a sophisticated method of simulation (emphasis added – V.A.), and an instrument of political struggle».175 The following observation is also important: «[a]fter the linguistic one, a medial turn comes – an ontological evidence of a change in reality – that being and media-reality are identified and interchanged, dissolving into each other. The stages of its formation are as follows: reality is mediated by thinking, thinking by language, language by sign, and sign by media. Being built on top of each other, “being” in modern conditions is given only through the media».176

In this context, we note a hint to the essence of the general philosophical problem of research: law is aimed at regulating reality, but the “hard reality” of a pre-information society in which the main institutions of law are formed and law itself as a social institution is transformed into a modern “playful media reality” in which it is difficult (but at the same time it is necessary!) to find a principle according to which we will be able to

173In this context, we risk assuming that the penetration of terminology typical of today’s simulated reality of the medial turn into legal discussions is in itself a sign of a medial turn. Thus, for example, in the article by V.V. Lazarev’s article of 2016 on the interpretation of law emphasizes the methodological prospects for the study of memes in jurisprudence. See: Lazarev V.V. Interpretation of Law: Classics, Modernity and Postmodern // Journal of Russian Law. 2016. No. 8. – PP. 15–28.

174Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 19.

175Ibid. P. 23.

176Ibid. P. 24.

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determine the scope of application of norms having a binding character, which will not contradict common sense, or in other words – will not lead to absurdity. The analogy between the reasoning of M.M. Bakhtin and J. Baudrillard is traced: in a sense, if before the carnival was an isolated action in space or at least in time of play, now we are in the condition of “carnivalization” of space, caused by his mediatization.177 The main problem is that the simulacra of media reality are not isolated in the framework of a special action, but are unpredictably distributed in the media space. This observation is also consistent with the differences which can be identified between modern games and the games of the past in relation to the interpretation of the views of M.M. Bakhtin in the light of contemporary examples of computer games (see § 5 Chapter 1 of this research). Figuratively speaking, from the point of view of the history of culture, before medial turn, the media reality was subject to law, but now there is a reflection that law acts in media reality itself, and it is the object of media reality itself.

Mediaphilosophy is formed in the era of the “new media”. Although “there is no more perishable intellectual product than the word ‘new’”,178 in the context of this work it is clear what we are talking about. In order to avoid confusion and solely for the purposes of this legal study (but not for the purposes of mediaphilosophy), we can replace the word “new” with the word “digital”, this will be more accurate.

«Despite all the obvious and intuitive clarity, the expression “new media” has no terminological status”, – notes V.V. Savchuk – “it is rather surrounded by a cloud of meanings referring to the computer, various mobile devices and the Internet».179

177See e.g. M. Raei. Jean Baudrillard and the notion of modernity and media // Medium.com. Feb. 11, 2018. – [Site]. – URL: https://medium.com/@raeimohsen/jean-baudrillard-and-the-notion-of-modernity-and-media-4b5fc1a92f7c (accessed: 09.09.2019).

178Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 50.

179Ibid. P. 49.

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At the verge of the XXth and XXIst century L. Manovich contrasted the “new” media with the “old” ones in the line of “analogue-digital” differentiation, highlighting five basic principles of “new media”.180 As V.V. Savchuk believes, “after a short, but rich in events and discoveries time, many of the distinctive features of the new media become disabled, or become secondary and insignificant”.181 However, this assessment depends on the subject of the study. While it is likely to be true for innovative mediaphilosophy, it is not true for conservative jurisprudence. Each of the features highlighted by L. Manovich remains relevant for law, which we will discuss separately below, and in the practice of law enforcement is actualized only when it becomes significant in the sense of convertible “socio-currency value” of generalized symbolic media (as will be discussed in more detail in Chapters 2 and 3 of this study). In the current Russian context, the systemic legal significance of all the features, perhaps, emerged together with the Digital Economy of the Russian Federation Program.182 What are those principles formulated by L. Manovich?

First, new media objects,183 whether they are originally created on a computer or digitized afterwards, consist of numeric code and are based on numeric representations. It follows that new media objects can be described mathematically and that they can be manipulated using algorithms. «In short, – as L. Manovich emphasizes, – media becomes programmable».184 Broadly speaking, this has a really diverse impact on the right. For example, new media objects, by definition, will be not only sui generis objects of legal regulation (works of art for intellectual property rights, objects of legal communication for contract law, etc.), but also always information and, potentially, the result of intellectual activity. The latter is relevant not only for the mentioned intellectual property law, but also

180See: Manovich L. The Language of New Media. – London: MIT Press: Cambridge, Massachusets, 2001. – 202 p.

181Savchuk V.V. Mediaphilosophy – Rush of the Reality. P. 50.

182The adoption of this Program is a direct sign of the “social and currency value” of a number of phenomena, as the institute of political power adopted it. Again, this approach is described in more detail later in this paper. Here, however, we will focus on the socio-cultural context.

183We emphasize that in this context, we view “media” broadly, not in terms of aesthetic phenomena (not only in this possible sense), but also in terms of media philosophy.

184Manovich L. The Language of New Media. P. 27.

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for other areas. The possibility of manipulation by means of algorithms seriously influences the evaluation of new media from the point of view of evidentiary law.185

Second, new media objects are “modular” or, in other words, “fractal”.

«Media elements, be it images, sounds, shapes, or behaviors, are represented as collections of discrete samples (pixels, polygons, voxels, characters, scripts). These elements are assembled into larger-scale objects but they continue to maintain their separate identity. The objects themselves can be combined into even larger objects – again, without losing their independence… In short, a new media object consists from independent parts which, in their turn, consist from smaller independent parts, and so on, up to the level of smallest “atoms” such as pixels, 3D points or characters».186

As L. Manovich notes, the Internet also has a fully modular structure – it is not about sites (to present the Internet as a set of sites – a simplified model, which is supported mainly by browser manufacturers), but about a variety of information objects.187 The legal meaning of this circumstance overlaps with the observation related to the previous principle. Moreover, it is also obvious that, if one does not take into account the atomic level, which cannot usually be assessed in this sense, each “module” or “fractal” may be an independent subject of legal regulation, and such regulation by means of “old” law may conflict with the regulation of an entire large object consisting of such modules. Analogue objects are rarely so fractal in this sense. In other words, the complexity of a very philosophical, at first glance, question that can be formulated based on the example of civil law as a question of when the ownership of materials terminates and the ownership of an object made of such materials arises.

Third, it is automatization. L. Manovich emphasizes that the media numeric coding and modular structure of the object should be able to automate many operations related to

185At least, in the Russian realities, despite the fact that partially such approach can be outdated (at use of the strengthened qualified electronic signature), people trust more to autograph signatures on the paper rather than to electronic. This follows, among other things, from the text of the Federal Law of 06.04.2011 No. 63-FZ “On Electronic Signature”, in Article 6 of which it is a paper document signed by a handwritten signature that is considered a kind of “standard”.

186Manovich L. The Language of New Media. PP. 30-31.

187Ibid. P. 31.

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the creation and manipulation of the object, as well as access to it. Human participation, at least in part, can be eliminated from these processes.188 It is easy to see that this fact has a significant impact on the legal assessment – both now and in the future. An overview of all possible legal problems related to automated actions goes far beyond the scope of this study and deserves several independent monographic studies. There are obvious implications of the problem in the field of artificial intelligence and robotics.189 Naturally, there are problems in identifying the “author” of a work, whether original or redesigned, if it was created using automation tools.190 Automated processing of personal data (which, thus, became possible after such data took the form of a digital object of new media reality) is specifically regulated.191 The number of examples of potential and actual legal conflicts related to this principle is difficult to calculate.

Fourth, the principle of variability. As in the case of the previous principle, due to the numeric representation and modular structure, «…a new media object is not something fixed once and for all but can exist in different, potentially infinite, versions».192 Looking at this principle from a legal perspective, it is clear that the number of potential legal implementations of this principle is also high. Previously, the static and fixed subject of legal regulation in the conditions of the medial turn is changing, and may change, including those properties that are significant for the legal qualification. As in the previous

188Ibid. P. 32.

189See e.g.: Arkhipov V.V., Naumov V.B. Artificial Intelligence and Autonomous Devices in Legal Context: on Development of the First Russian Law on Robotics // Proceedings of SPIIRAN. 2017. Issue. 6 (55). P. 46–62; Arkhipov V.V., Naumov V.B. On Certain Issues of Theoretic Grounds for Development of Robotics Legislation: the Aspects of Will and Legal Personality // Zakon. 2017. No. 5. P. 157–170; Arkhipov V.V., Naumov, V.B. Informational and Legal Aspects of Designing Robotics Legislation // Information Law. 2017. No. 1. P. 19–27; Arkhipov V.V., Naumov V.B., Pchelintsev G.A., Chirko, Ya.A. Open Concept of Regulation of the Internet of Things // Information Law. Moscow, 2016. No. 2. P. 18–25; Gadjiev G.A., Voinikanis E.A. Could be a Robot a Subject of Law? (in Search of the Legal Forms for a Digital Economy) // Law. Journal of the Higher School of Economics. 2018. No. 4. P. 24–48.

190See e.g.: Gurko A. Artificial Intelligence and Copyright: a Look into the Future // Intellectual Property. Copyright and Neighboring Rights. 2017. No. 12. P. 7–18.

191Special rules, for example, are provided in the Article 16 of the Federal Law of 27.07.2006 № 152-FZ “On Personal Data” (ed. of 31.12.2017), “The rights of subjects of personal data when making decisions on the basis of exclusively automated processing of their personal data”. Automated processing of personal data is mentioned in the sub-clauses 15, 67, 68, 71 of the Preamble, and Articles 2, 4, 15, etc. of the General Data Protection Regulation (GDPR) – EU Regulation 2016/79.

192Manovich L. The Language of New Media. PP. 36.

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case, there are many examples. As one obvious example, we can cite the next one, which is quite simple and even a little outdated and from the point of view of law: the material posted on a hyperlink to a website may change unpredictably. Previously there was prohibited (or allowed) information posted, but now – the information of the contrary kind. This raises a number of issues related to the legal liability of participants in legal relations, the efficiency and expediency of legal procedures aimed at blocking or unblocking the resource, etc. The author gives a detailed example of “hypermedia”, which is an information product consisting of “scraps” of information, combined by means of hyperlinks. It is clear that the legal dimension of such a product as a subject of regulation will be no less confusing than its technical structure.

Finally, fifth, the transcoding principle is formulated. L. Manovich considers it to be the most serious in terms of its effect on culture. In brief, it boils down to the fact that old media objects are “translated” from human precomputer culture artifacts into digital reality artifacts. This is best expressed by the scientist himself:

«The structure of a computer image is a case in point. On the level of representation, it belongs to the side of human culture, automatically entering in dialog with other images, other cultural “semes” and “mythemes.” But on another level, it is a computer file which consist from a machine-readable header, followed by numbers representing RGB values of its pixels. On this level it enters into a dialog with other computer files. The dimensions of this dialog are not the image’s content, meanings or formal qualities, but file size, file type, type of compression used, file format and so on. In short, these dimensions are that of computer’s own cosmogony rather than of human culture… In new media lingo, to “transcode” something is to translate it into another format. The computerization of culture gradually accomplishes similar transcoding in relation to all cultural categories and concepts. That is, cultural categories and concepts are substituted, on the level of meaning and/or the language, by new ones which derive from computer’s ontology, epistemology and pragmatics. New media thus acts as a forerunner of this more general process of cultural reconceptualization».193

193 Ibid. P. 46-47.

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But the cultural re-conceptualization is the re-conceptualization of the social reality, and the re-conceptualization of the social reality is, at the same time, an essential change in the numerous subjects of legal relations.

We emphasize that the main purpose of this paragraph is to systematize the basic prerequisites for digital turning. The number of new technologies and practices is growing. For example, there is no less methodological potential for this study to have virtual and, in particular, augmented reality technologies, which will be discussed in Chapter 2 of this study in relation to the interpretation of the legal text containing the legal provision on the prohibition of “vehicles” in the park from the discussion between H. Hart and L. Fuller.

In general, the above features in the interpretation of L. Manovich describe the constituent medial turn, which we have designated as the “digital turn”. The digital turn determines the conditions in which the empirical basis for conceptualizing the problem of the semantic limits of law is formed. However, the content of this problem, although it depends on these conditions, is determined by another component of the medial turn, which is focused not on objects, but on social practices. We are talking about the game turn, and the fact that it is computer games that we now consider, including as new media, are a bright and representative material for our problem. It should be noted, however, that other social practices set by the digital turn (including the practice of communication in social networks as a new type of new media, which, incidentally, L. Manovich could not know about at the time of writing his book – the first modern social networks appear only in the first decade of the XXIst century194), also push us to the problem of the semantic limits of law, but, unlike games, such practices were initially focused on real, even if not always serious, communication, and are therefore less representative and visible as the main empirical material.

194For example, the first version of Facebook was launched in 2004. See: Facebook. Our History [Electronic resource]

//Facebook Newsroom. – [Site]. – URL: https://newsroom.fb.com/company-info/ (accessed: 26.01.2019).