Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.

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The Case of Mr. Justin Carter.

The initial shock and outrage among gamers has ebbed slightly, so it’s a good time to look at this issue a little bit. I’ll start with one observation: the facts claimed by the news media I’ve seen are really weird. Everyone tells the story a little bit differently, but as best as I can piece it together, Carter got into an argument in a League of Legends game, then kept raging on Facebook afterward. I’ve raged a little bit in League games in my day (I take it for granted that if you’ve played the game through to level 30, you’ve raged in a game at some point). But to extend the in-game argument to Facebook suggests two abnormalities: 1) next-level rage, and 2) that you were Facebook friends with the person at whom you were raging.

I’ll set that puzzle of the facts aside because I want to look at this as an example of a generation-gap manifest in law.

People rage and troll in online games. I would be surprised to find more than maybe 10 of the roughly 3,200 US Federal Judges really understood online gaming culture, much less participated in it. That’s not an unfair claim: being a judge requires looking at a lot of matters in which you don’t have personal experience. The claims that can be (and are) made under the law are far too broad for any human to have serious experience in every potential area of law or subculture that it might affect. Never the less, many areas of law involve tests that ask about the “custom and practice” of the relevant discipline. Contract law, and sales in particular, will often ask whether the conduct and contracting between parties is normal for that industry. Patent law often asks experts in a field whether a patent claim is nonobvious or novel. The point here is that there is legal precedent for fitting a legal claim into a specific context.

The second point is that there is a long tradition of internet culture that has embraced behavior that would be downright tortious outside of cyberspace. Penny Arcade touches on this in the second panel of this strip, which one author said was “only slightly exaggerated.” I am told to kill myself almost every week that I play Ranked Games in League of Legends. I have been wished a variety of cancers and terrible illnesses, have been threatened with some very creative forms of rape, and have been targeted with some threats that defy the laws of physics are they are currently understood. The culture of this particular game might be summed up well by the YouTube entertainer “Dunkey,” whose commentary in verse on Justin Carter’s case was this: “Dude going to jail for what he said/ Man, FBI must want me dead.”

Notwithstanding the online culture of trolling and raging and the legal precedent for considering the custom and practice to place a claim into its context, there are also legal precedents for taking threats legally seriously. Most news about this story has pointed to the fact that the comments of concern were specifically about shooting up a kindergarten classroom, and these comments were made some two months after the most horrific elementary school shooting in US history (arguably barring the Bath School Disaster, which employed explosives and was not so widely covered by broadcast news but was still a terrible tragedy).

My interpretation of this case is a clash of culture and law. This is an interesting clash because of the way that (in the US) culture and law shape one another over time, and it is usually the law that responds to the changes in culture. The added twist is that culture itself is clashing against the law from two sides: an internet culture of obscene threats and intense trolling and a newsmedia culture fueled by increasing violence and terrorism. However the law ultimately responds to the kind of online “conversation” (I can’t seriously call it that, of course) that is common in gaming, a full and responsible response will have to balance the non-seriousness of “things irritated 17 and 19 year olds are prone to say in their own bedrooms” with the very serious “reality that people are slaughtering people wholesale in offices, schools, churches, movie theaters, and shopping malls every day.”

The full implications of everything about this clash of 2 cultures and law should be deeply disturbing to us. One interesting result of this case has been California’s new “Undo Button” law for minors to remove their uploads from the internet. Text is here.

Lessons From Elo Hell: We Can’t Expect More from Data than we Expect from Ourselves.

     The goal of a matchmaking system is to produce worthy matches. Whether the match in question is made by a dating site or a a ranked videogame (e.g. League of Legends), someone must design an algorithm that takes in data about the players and arranges the players according to the data. However, the results are often unsatisfying. In videogames like  League of Legends, some players describe the unsatisfying results of matchmaking as “Elo Hell.” Some believe this Elo Hell does not exist, but others swear they are stuck there. I wonder: if it exists, can Elo Hell be described as a failure of data?

     The data at issue is supposed to be “how good a player is.” However, we have a hard time evaluating that ourselves- so how can we represent a formula for something we cannot describe? Can we create systems whose basis we do not understand? Ultimately, companies rely on data- but more data than they can manage. So they create algorithms to manage the data: information to govern information. But our programmers just aren’t perfect. Even when the code is error-free, the programmers cannot anticipate every use by every user. Google Chrome sometimes asks to translate my news pages from a foreign language into English- even though they’re in English; Microsoft Word keeps thinking I’ve misspelled or misused words when (after 5 minutes of being completely psyched-out) I am quite certain I have done no such thing.

What these various examples demonstrate is the way that our use of data can be limited: code can mishandle information (trying to translate an already-translated webpage), or sometimes the data itself might be unknowable. In this way, there are at least two kinds of limits in data management: code malfunction and data (input) weakness (relative to the desired use).

How can we Adjudicate Events Smeared Across Jurisdictions?

Consider this hypothetical scenario: A US doctor monitors a high-tech medical device transmitting data from inside a person visiting the UK. The doctor provides a diagnosis based on the information sent by the device. Is the doctor practicing medicine in the UK? If there is a glitch in the transmission of the data, who is liable: the doctor, the programmer, the UK telecommunications corporation whose hardware carried the data? Furthermore, in which court should the lawsuit be filed? And to extend the issue into pre-emptive policy: should programmers be subject to licensing and regulations if they are writing code for medical devices, airplanes, train switching, or other situations where a programming error can get people killed?

The metaphysical puzzle is this: where do events happen when the event can be broken into segments that happen across jurisdictions? (e.g., If you shoot someone across the border, where does the murder occur?) How can we deal with smeared, liminal events that seem literally “neither here nor there”? This is why metaphysics matters in a world where previous notions of geography, communication, and being are challenged. The technology that forces these questions upon us will arrive sooner than any of us expect and the law, the philosophy underpinning the law, and even the language used to explain that philosophy, will be trying desperately to catch up to our daily life.

“Violence in Videogames”: An OverdoneTopic, Without Which a Videogame Blog Would be Incomplete.

Fox News ran another Special on Videogame Violence. Part one was uploaded just before Steam happened to put the Call of Duty series on a weekend special (no, I don’t think either party had any idea in advance- coincidences do happen).Yahtzee wrote a great poem about the degradation of the arts in favor of public safety. This topic has been going on for a long time, however. A lawsuit was filed (and eventually dismissed) over the involvement of Slayer lyrics in the tragic murder of a teenage girl in 1995. John Lennon’s shooter was a big fan of Catcher in the Rye. Oslo shooter Anders Breivik reportedly played Call of Duty. Columbine shooters were rumored to make Doom levels based on the layout of their high school (I believe this has been debunked). Fingers are pointed, blaming gun control policies, mental health care, media influence. Many of the violent people in history have consumed media. Many people have consumed media without committing violent acts.

The problem is broader than videogames, of course: does pornography influence rape or sexual crimes? Are televisions replacements for good parenting or quality time? Do we retreat to our phones, shows, and games and forego “old-fashioned” human interaction? Does media (and the technological developments that facilitate the media) make us better or worse individuals? Does all of this enhance or deteriorate our society and our civilization?

When I think of law and videogames, I expect more attention to EULAs and Terms of Service, copyright and trademark issues, licensing agreements, and so forth. Those are the issues I want to explore and work with, at least. But the public discussion I hear continually centers around the question of whether games and other media generally make our society better or worse, and what the law should do about it.

I don’t want to get all political about this topic. Law is messy enough, and I think politics is an extra layer of messiness heaped on top of law. I also think most of the blogs and news specials are covering this topic enough that I really dont need to belabor it. I hold that a proper, full discussion of any social ill requires a wide view of the society in its entirety, on the theory that all of the parts of a society are intricately interconnected (a bit like a living organism, but I don’t like to push that comparison too far). I think there is room for improvement in areas of gun control, mental health care, and cultural acceptance of violence. But what about videogames?

Brown v. Merchants Association gave videogames first amendment protection. In an NYT op-ed piece, Seth Schisel exhorted game developers to step up and earn that status. As videogames become increasingly realistic, I think the effects of gameplay on the mind become more serious and pressing. With absolutely 0 formal training in clinical psychology, I posit that there is a meaningful difference between a violent run-and-gun game (e.g., Serious Sam) and a horror-esque stalker game (e.g. Manhunt).

Under the law, a videogame would need to be truly recording-setting-ly horrific to be legally banned. (“Rapelay” is a recurring example of a videogame that would probably meet the Miller-test requirement to be outside first amendment protection.) But perhaps game developers should simply make better games- or games that better society. The “Call of Duty”/ “Battlefield” franchise and concept been completely overworked anyway, so I think there are multiple reasons to start looking at a wider range of games. I think the ever-popular framework promoted by Lawerance Lessig can apply here. Lessig asserts that there are 4 sorts of laws: legal laws, physical laws, economic laws, and cultural laws. One of the points this law professor tries to emphasize though this thesis is that there are ways of influcing, guiding, restircting, or directing the behavior of a population without passing traditional “laws.” Behavior can be influenced just as effectively when something is economically [un]feasible or is so culturally required or taboo that people respond to those forces.

To Conclude: I don’t think we need a law banning violent videogames. But I think that, as consumers, we can reward game studios that create the kind of games that we want to see in our society by buying, playing, and promoting those games. I even think those can be violent games at times- Spec Ops: The Line has violence, and it is a powerful message about violence. In typical virtue ethics and Kirkegaardian fashion, I think we can make better individual choices than the law can compel.

There are plenty of other issues to discuss here, and I’ll leave that to the others who wish to discuss them.

The Hypothetical Case of Little Buddy Burgers.

Suppose I create a popular TV show in which a character (an endearing anthropomorphic Persian cat with a “lion” furcut) owns and operates a small restaurant called “Little Buddy Burgers.” I actually did a trademark search (my first ever!) and found that Little Buddy Burgers is not currently registered with the USPTO. Some combinations of “Buddy” and “Burger” have been registered, but abandoned, which makes me wonder if it’s a cursed business model.

Question 1) If Little Buddy Burgers only exists as a fictional restaurant, but the TV show is broadcast nationwide, can the producer of the show register “Little Buddy Burgers” as a trademark on the theory that it is “in commerce” as part of a television show (which is a for-profit enterprise)? If not, could I secure the trademark by making and selling “Little Buddy Burger” t-shirts/hats/mugs etc?

This question is easy if “Little Buddy Burger” shirts and hats are being sold nationwide. It is a little trickier if the restaurant is part of the show, but not featured in the title or in the advertising for the show. If you don’t have either t-shirts or advertising material, you might be able to get a trademark on a theory of secondary meaning through an expensive consumer survey.

Question 2) Suppose that some other person loves my show and decides to open an actual Little Buddy Burger restaurant with a menu and decor patterned after the restaurant in the show. Would my registration of “Little Buddy Burgers” preclude his efforts to register that trademark?

Yeah, if I can get it registered, I can enforce it all day and night against him. If I don’t already have it registered, we return to the analysis for above, but a consumer survey showing confusion over whether the restaurant is affiliated with the show will be a strong piece of evidence. (Remember though: the standard in trademark law is “likely” confusion; actual confusion is just a bonus for the plaintiff.) I’m a tremendous advocate of looking for non-litigious solutions to these kind of problems; it would be way better for everyone to work out a licensing agreement to use “Little Buddy Burgers.” It advertises the show, the show advertises the restaurant, everybody wins. And that’s being Little Buddies.

The core issue in this hypothetical is: Can you trademark fictional elements within a work in commerce? This has potentially massive applications in videogame licensing. For example, RiotGames owns a trademark on “Pentakill.” Should they? Is it really distinctive? Or is it just a generic announcement of 5 kills? They can overcome the claim that it is a generic announcement with a consumer survey showing that “Pentakill” has acquired secondary meaning unique to League of Legends. What about “Kill-a-man-jaro,” in a distinctive deep, masculine voice- can Bungie Studios trademark that? The closest case law I know of that relates to these questions is the case of Conan Properties v. Conan Pizza, in which a pizza parlor themed itself after the comics “Conan the Barbarian.” The case was settled by the fact that a majority owner of Conan Properties went to Conan Pizza and said he loved it, which was considered “acquiescence” to the pizzeria’s use of the trademark (so Conan Properties couldn’t win their claim of trademark infringement).

Brewer vs. Williams: Two Wrong Decisions Making an Almost Right Result.

     Cases don’t normally go to the supreme court twice. The disappearance and death of a young girl in Iowa  in 1968 led to a series of bizarre legal questions. A man turned himself in but refused to speak to the police until the police transported him from Davenport to Des Moines. While driving along the highway, one police officer spoke aloud about the concern that the murdered girl might not be found in time to be given a proper Christian burial. The man in the backseat of the car, Williams, essentially confesses and proceeds to show the police where the body was hidden.

     The first trip to the supreme court was on the question of whether the so-called “Christian burial speech” by the police officer constituted an interrogation. The court ruled, 7-2, that it was the kind of speech that a reasonable person would understand to be an attempt to elicit a response. Accordingly, it was an unconstitutional interrogation that violated Williams’ 6th amendment due process rights. The trial proceeded with Williams’ confession excluded from evidence. The prosecution discovered that the location of the body was in an area that was going to be searched by police (as part of the search-team effort already underway at the time of WIlliams’ confession). The case returned to the supreme court (over 2 decades after the murder) to address the question of whether Williams’ confession should be included in court because the body would have been discovered regardless of the confession. The Supreme Court accepted this argument, and so WIlliams’ confession was included again as a result of the newly manufactured “Inevitable Discovery” exception.

 

Let’s take a moment to consider the reasoning employed here. First, the supreme court found that a police officer talking aloud can constitute an interrogation. Then, the court held that if evidence is in an area that is going to be searched, its discovery is inevitable. This kind of reasoning allows the prosecution to enter as evidence things that are said because it was “inevitable” that evidence was found.

     There are three separate errors in reasoning and language. First, there is a distinction between cultural norms that constitute an question and linguistic norms that constitute an interrogatory. Speaking about the need for a burial cannot be linguistically considered an interrogation because no question or request is ever posed. To see this as an interrogation requires reading cultural norms of “the kind of thing someone might react to with information in our culture.”

     Second, the fact that an area was scheduled to be searched does not mean the discovery of an object in that area is logically inevitable. We have all had the experience of looking for something in a desk drawer or between the sofa cushions and not finding it- only to later discover it have been there all along. Searching an area is not equivalent to discovering all objects in that area. Furthermore, that an event is scheduled to happen does not logically necessitate that the event will happen. All manner of possible interruptions may derail plans.

     Finally, the finding of an object and the verbal admission of guilt are two distinguishable things. Even if the discovery of an object was truly “inevitable,” there is no connection that the admission of guilt was likewise “inevitable” or that the discovery of incriminating evidence would necessarily bring about this kind of admission.