My Borderlands 3 DLC Idea: Claptrap Files for a 1201 Triennial Review Exception Hearing

I. Story Of a Lonely Robot

In the Borderlands series, a megacorporation (“Hyperion”) made a product-line of 3-ft tall, one-wheeled robots: the CL4P-TP Steward Bot. In the very first moments of the first game, the player is introduced to one such unit, who introduces himself as “Claptrap.” This robot became the face of the game (the way Teemo became the face of League of Legends, despite over 100 other characters to choose from), and “Clappy” has been a major feature of Borderlands 2 and 3 (often as comic relief). In one DLC add-on for Borderlands 1, Hyperion reprogrammed Clappy to lead a revolution (“The Robolution”) to kill enemies of Hyperion, but the effort backfired and Clappy also fought against Hyperion. The incident led Hyperion to discontinue the product line and destroy all existing models—however, Clappy survived the extinction event. A decade later, as the sole survivor of his species, Clappy undertakes the task of building a companion; he asks the player to find and salvage parts from CL4P-TP units found in the course of the game’s adventures. There’s just one obvious, glaring question:

Is Clappy violating section 1201 of the DMCA with this quest?

17 USC 1201 generally prohibits getting around the technological measures on a device to use it in some way outside of the intended user experience. It’s actually a lot more intricate than that; there are a lot of exceptions to the prohibition, and there is a cycle of reviews (to be held every three years, the fancy word for which is “triennial”) built into the statute.

 

II. Analysis of 1201 (a)(1)(A) Violation

Is Clappy “circumventing a technological measure”? It is reasonable to presume so, given the context of the story. We know that Clappy was built as a Hyperion robot, and accordingly has information and ability to bypass Hyperion technological measures. In a DLC episode for Borderlands 1, Clappy wages an open, violent revolution against the Hyperion corporation, which could be reasonably interpreted to indicate that Clappy is no longer an employee of Hyperion. Furthermore, in Borderlands 2, a software upgrade for Clappy is illegally obtained and installed in Clappy. Clappy’s situation is therefore like that of a former employee who has the knowledge to circumvent technological measures but no longer has the authority to do so.

Is Clappy accessing a work that would be protected by copyright law? Computer software is generally subject to copyright (though some exceptions apply).  If Hyperion were able to get a copyright registration on the CL4P-TP software, they would likely have a strong case against Clappy for violating section 1201 of the DMCA.  Clappy’s best defense would likely be to argue that the software at issue is not subject to copyright, because that would stop the case before it even got started. However, that argument seems unlikely to work because the software is almost certainly subject to copyright.

Nothing else in the statute is relevant to Claptrap’s case. His project is not subject to (g) encryption research exception or (d) library/non-profit/education research. Clappy is arguably a government entity (if the Crimson Raiders are a government entity), but he is not acting pursuant to an investigation, so (e) is not relevant. A CL4P-TP is not an analog device, so that also makes paragraph (k) irrelevant. Paragraph (i) is not relevant because (i)(B) requires the absence of a conspicuous disclosure of the gathering of personal information—it is reasonable to assume that Hyperion has made very conspicuous disclosure about the wanton invasion of privacy that the CL4P-TP unit perpetrates. Paragraph (j) exception for security testing does not apply. There might be a dedicated robot to prevent minors from accessing material on the internet (the Borderlands 2 Captain Scarlett DLC did feature a robot obsessed with censorship and copyright enforcement, but that robot was distinctly not of the CL4P-TP product line). The only other paragraph that might be relevant is (f), which allows for reverse engineering to allow for interoperability. The game does not provide enough details to be certain as to the nature and extent of Clappy’s circumventing of the CL4P-TP parts the player brings back to him, but I think it’s safe to presume it goes beyond the exemptions allowed in part (f) of the statute.

 

 

III. Hyperion Abandonment: Claptrap’s Issue

Another argument for Clappy’s defense is that Hyperion abandoned their claim to any rights in the CL4P-TP unit after the ill-fated Robolution and subsequent discontinuation of the product. This would be an interesting case for a few reasons. First, copyright abandonment is a largely untested area of law. Whispers of abandonment (or “orphan works“) almost always involve a defunct company or a confusing acquisition of a company in which it is unclear who holds the claim to the copyrighted material.

The abandonment argument highlights some of the meaningful differences between copyright and trademark protections. There was a trademark case in which a broadcast network had stopped the production of an entertainment program, but continued to claim rights in that trademark. Crucially, trademark does not have a fixed time limit (copyright does) and trademark is explicitly connected to an actual use in commerce (copyright does not require a use in commerce). This is why abandonment in copyright is a very different situation from abandonment of a trademark. The fact that Hyperion stopped making or selling CL4P-TP units would likely affect the trademark, but not the copyright related to the product.

Perhaps the ultimate test for copyright abandonment is whether a company takes action against an alleged infringer. In some non-legal sense, the copyright is “abandoned” when no one fights against the infringement of the work. But in more accurate legal terms, a copyright is abandoned when no one is in a position to fight against the infringement of the work. Discontinuing the CL4P-TP Steward Bot product, scrapping existing stock, and ceasing service on existing products might be taken as strong evidence of trademark abandonment—but not of copyright abandonment.

Because robots of this sort are still new, it’s not entirely clear how patent law might apply. Indeed, it’s currently unclear just how patent law is meant to fit with software, so the layers of technology involved in a CL4P-TP unit are something well beyond the contemplation of the current configurations of US intellectual property law.

Fun fact I learned while doing research for this post: Robot Patent does not have to do with what we currently think of as either patents or robots.

 

IV. Clappy, the Exceptional CL4P-TP?

Could Clappy seek an exception during a triennial review, as provided in (a)(1)(c)?

Given the five factors listed in (a)(1)(C), (i)-(v), Clappy has a reasonable chance of having his case approved as an exception. It’s unclear how he would fare as to (i), but he wins on (ii) as a matter of preservation; (iii) doesn’t particularly apply unless someone wants to do research on CL4P-TP units; (iv) is an interesting point that ties back to the abandonment question, but to the extent the Hyperion is not interested in making more CL4P-TP units, there is no market impact (and only making 1 copy for non-commercial use is a negligible market impact anyway). Finally, the discretionary factor, (v), is up to the Librarian of Congress to determine whether Clappy’s project is an appropriate exception to this section of the DMCA. The circumstance of being the sole survivor of a species seeking companionship is a likely cause for such an exception.

 

V. Final Thought: Is the Player Violating 1201 by Helping Clappy?

The player doesn’t provide specific means of violating 1201 (a)(1). The primary concern for the player is that 1201 (a)(2) and 1201 (b)(1) both prohibit devices whose purpose in the circumvention of technological measures which protect copyrighted material. But the player doesn’t provide such a device; the player just gets the CL4P-TP parts themselves. This is effectively like dumpster diving for old cell phones or laptops. That, by itself, isn’t a violation of 1201— which makes sense because there are uses for those objects that don’t involve the data stored on those objects. That said, there might be a contributory infringement claim under a different statute, as (c)(2) explicitly clarifies that 1201 leaves infringement claims open to the possibility of contributory infringement.

 

 

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Grinding for Moral Consistency in Borderlands: The Pre-Sequel

“Borderlands: The Pre-Sequel!” is set between Borderlands 1 and 2, and allows players to play as some of the bad guys of Borderlands 2. One trailer (6:40) for BLPS cracked wise about the moral implications of advancing the cause of future enemies, but this question is central to the theme and story of the game.

I. “Life can only be understood backwards, but it must be lived forwards.” –Kierkegaard

The game of BLPS is played as a flashback. After the events of BL2, the mercenary Athena is captured and interrogated by the victorious heroes of the two previous games. She explains her role in the events between BL1 and BL2, and you, the player, play out those events as she describes them. As a freelance mercenary, Athena is hired by the central antagonist of BL2 (Handsome Jack) to save the moon of Elpis from a renegade military commander. (Yes, the plot is heavily influenced by Conrad’s Heart of Darkness)

A recurring theme is the decision to advance the cause of Handsome Jack, as the post-BL2 interrogation reflects on the horrors he inflicted. The story poses to players the challenge of reconciling Jack’s heroic actions of saving a moon (and its colonial population) with his villainous acts of destruction carried out in BL2. The game asks us whether Jack was a good guy or a bad guy, and by implication also asks: How can we understand his apparent transformation? How can we make sense of a character that displays contradictory traits? How can we evaluate good and evil?

These are deeply important questions for our lives. Discerning between good and evil is at the core of ethics, and permeates decisions we make in our personal, familial, political, theological, and professional lives. Adopting the wrong approach to the ethical questions posed in BLPS can have catastrophic implications if applied elsewhere in life: apathetic indifference, sympathy, empathy, or pity for evil, absolute subjectivism, blind and unquestioning tolerance, or strict act utilitarianism all lend themselves to a variety of atrocities and horrors we intend to avoid through ethical examinations.

II. Virtue Theory Gives a More Complete Evaluation than Some Teleological Formulations

The game challenges the maxim that “the ends justify the means” by presenting several applications of that ideal, including one betrayal by a prominent protagonist NPC to kill Jack and the player. The story also makes a specific note of Jack’s decision to kill three probably innocent scientists on the suspicion that one of them might be a traitor—a decision which he openly relishes, afterward. An NPC asks the player-character for their opinion of Jack’s choice, questioning both Jack’s motive and his nature.

One way to evaluate Jack and his transformation between BLPS and BL2 is in an appeal to virtue theory. On this interpretation, Jack’s actions may have saved Elpis, but his nature and character were malicious and malevolent throughout the escapade. This view affords us the outcome of seeing Jack as a bad man who did a good thing. This view is also consistent with the entire knowledge of Jack’s wanton evil in BL2, in which he is malicious and does only bad things.

III. Grinding, Grinders, and Moral Ground

In any game with a leveling and/or gear system, players often find they want to gain an advantage by gaining extra levels for added bonuses, thereby making it easier to meet future challenges. This is often done through repeating simple and mindless tasks, which slowly and steadily advance the player towards the next level or have a chance of yielding desired items. This slow, steady process is called “grinding.”

BLPS introduced a new feature to the game called a “Grinder.” This machine accepts three items and returns (with some probabilities involved), a better item. This does some amount of “grinding” for the player, helping advance the attainment of better gear more rapidly.

Moral identity advances by an analogous method: a slow, steady, repeated process of small decisions, actions, and attitudes.

IV. The Need for a Good Evaluation of Goodness

Throughout BL2, Jack addresses the player characters as bandits, asserting that they are no different from or better than the marauding psychopaths they slaughter. Jack explicitly sees himself as the righteous hero—even with his dying breath. Because evil will always think itself good and present itself in a positive light, we must have a better approach for evaluating morality than general, easy-to-apply standards handed to us by the most convenient authority.