Jeanne Fromer’s “New Copyright Opportunist” and a New Perspective on Copyright Litigants

I really enjoy academic conferences and presentations. A competent, prepared expert can present an interesting set of ideas that will, in some way, enrich the lives of the audience. The loftiest goal for the presenter might be an amazing presentation that revolutionizes the entire field, and that presentation becomes a legend. A more attainable goal is to present something interesting, meaningful, applicable, novel, or at the very least, something clear. Achieving any one of these is laudable. Recently, I was fortunate to see a presentation on copyright that ticked all the boxes.

 

At the Copyright Society’s annual Brace Memorial Lecture this month, Jeanne Fromer gave one of the best academic talks I’ve ever seen. It wasn’t startlingly revolutionary or polemic, but it was clever, careful, and nuanced. This is extremely difficult to achieve, and I have seen some rather sorry presentations that did not qualify for even one of these accomplishments. Even more difficult than having a clever idea or a nuanced distinction is to be clear in explaining the idea and its nuances. Maybe I’ve spent too much time scrolling through sloppy communication on Twitter lately, but I feel strongly that her presentation deserves praise just for how careful and clear it was. But it also deserves praise for its substance, not just the organization and effective communication. Fromer suggested a more careful consideration of some of the current litigation in copyright, and presented a new perspective on a segment of those litigants based on her distinctions. As the title of her talk promised, she gave a view of “the new copyright opportunist.”

 

Fromer set out a distinction between copyright trolls and copyright opportunists by defining each clearly. Copyright trolls make no creative contribution of their own and merely aim to make money solely by settling lawsuits that would be too expensive to litigate. Copyright opportunists seek to increase the value of a work by litigating novel relevant issues.

 

She then gave three examples of these new copyright opportunists:  tattoo artists whose work is represented in video games, paparazzi whose photographs are used by the subjects on their own social media, and songwriters whose less popular songs bear substantial similarity to successful new hits. Each of these examples shows a current contention over the plausible increase in the market potential of these works. One of the most exciting aspects of this presentation was the clear presentation of how technological advancements impact the legal dimensions of artistic and creative works, and subsequently affect the economic dimensions of those works.

 

I particularly like the fact that, after this presentation, I have a new framework and language for considering new copyright litigation I hear about. I expect that this will help me to make more nuanced evaluations of copyright cases and policies in the coming years. It also gave me a new standard for clarity and elegance in communication, particularly where any kind of subtly is involved.

 

How Pirates Change Games (It’s Usually Not An Improvement)

Sea Of Thieves: It’s Not Called “Sea of Cool Guys” – Mike Krahulik

Sea Of Thieves is a game where people who want to be pirates can be pirates. Some players really, really  get into the role. Every online game community has experienced some trolling and griefing; there are always players who invent their own game, though it’s always the same game, in which the objective is to make other players unhappy. The developers of Sea of Thieves specifically designed space for that kind of player—unlike other games which seek to curtail negative behavior and ban players who ruin a good time for others. In a game about pirates, wanton aggression has a place.

 

When You’re a Professional Pirate…

It took me a while to understand how copyright infringement (and counterfeiting) came to be called by the same term that was previously reserved for attacking a ship, killing the crew, and stealing their stuff. The two crimes don’t really look similar: copying a digital file rarely involves a cutlass or a flintlock pistol, taking barrels of rum or chests of gold, and typically doesn’t involve boats at all (except when moving a lot of counterfeit goods internationally, I guess).

I think the term makes more sense from the perspective of the owners of the rights. Pirates of the 15th-19th centuries were hard to find, hard to predict, and hard to pursue. Sometimes their attacks wouldn’t be noticed for months, as it was hard to get good cell phone reception in the mid-Atlantic in the 1600’s. So, when music, movies, books, and games started getting copied and distributed, and rights owners struggled to identify who was doing it, where they were, or what they might do next, as they completely disrupted the industry’s ability to sell and distribute their wares, I imagine pirates came to mind.

 

Countermeasures

Media industries reacted to piracy differently, as best fit the particular medium. The music industry moved away from physical goods and into the digital marketplace. The iTunes Music Store was, in many ways, like the P2P networks that had threatened the industry, except that Apple was the only one seeding and they charged for each song.

The video game industry took a different approach. After a short-lived effort to encrypt physical copies, the industry moved to a digital distribution system. This was easy enough, and platforms like Steam and the Play Station Store were already moving the industry in this direction. The next move, however, was for the internet to start shaping the way games were played: online gaming became increasingly popular, and developers and publishers realized that it was easier to keep track digital copies if devices had to connect to the company’s servers. It was a natural fit: the games already involved internet connection, so it wasn’t much more work to have the serves check to see if players had authentic copies of the games. Because the game required player to be always online, this method became known as Always-On DRM. When it worked well, it was something that honest players would never notice or think about. But it didn’t always work so well.

Rebellion

The new system worked well for some games. Other games… well, suffered. Sometimes, the online connection requirement was obviously completely artificial and frustrated players because the setup made no sense. This exacerbated problems in cases of poor execution: when a server couldn’t connect, it was even more frustrating when the server wasn’t necessary for the game experience. Even today, not everyone has a consistent, stable, high-speed internet connection (especially in the US). Many players just wanted a simple, single-player experience, and Always-On DRM interfered with that. The method created an environment that only allowed players to play when the company was able to facilitate it; if the server was down, or the connection was slow, the game was unplayable. This upset people who paid for a leisure product and then found out they could not use it at their leisure. By increasing friction and fuelling resentment against the game industry, some game companies suffered as they tried to implement Always-On DRM. The artificial inclusion of Always-On DRM to the reboot of the incredibly popular and successful video game SimCity is credited with its failure (notably, the execution of the Always-On DRM was sub-par, as the server was frequently down or buggy).

 

Pirate By Design

Sea of Thieves found success as a game by embracing a certain attitude that the rest of the industry had been fighting for decades. The developers made a space for people who want to undermine the work of others. So far, it’s been an interesting experiment that I can only predict will culminate in the coagulation of that particular kind of trolling, griefing player. I see it as a kind of prison in which the inmates believe they are at a theme park. Maybe the game will eventually give us some kind of data about trolls who revel in ruining the joy of others. Maybe it will teach us something about pirates.

There is already a lesson about piracy for video games. In the early 90s, piracy was built into the business model of some companies. They called it “shareware,” and the idea was that people would copy and distribute a portion of a game. The developer hoped that this would serve as a sort of advertising, and people who enjoyed the shareware portion of the game would then purchase the full game. In 1993-4, idSoftware proved that this model was feasible with one of the most popular games of the 90s: Doom was distributed widely as a shareware product and the company made enough profit for the head programmer and the lead level designer to each purchase a high-end sports car. This year, idSoftware released Rage 2; unsurprisingly, the new parent company, ZeniMax, did not opt for a shareware distribution model. The video game industry has changed over the last 30 years. It takes a special combination of product, customer, and ecosystem for it to be a smart choice to give away a third of your product for free—but it’s not an impossible dream.

Today, piracy remains a problem for the video game industry, but new legal challenges (some with more legitimate basis than others) have proven more urgent: legislation of loot boxes, esports contracts, prosumer sponsorship deals and disclosures, copyright infringement within the game, and copyright infringement for streaming and video uploads.

Maybe that’s the best reason to keep the term “piracy” for copyright infringement that involves copying the entire work and distributing for consumption as a counterfeit or inauthentic product: there are so many ways copyright can be involved in a video game in the current digital ecosystem, have different terms for the different infringements is nice.