EU Directive On Copyright in the Digital Single Market: Three Not-So-Scary Possibilities

When evaluating the EU Directive on Copyright in the Digital Single Market, there are three general categories of outcomes: Little/no impact, Moderate-but-endurable Impact, Apocalyptic/Catastrophic. It turns out that there are pros and cons to each.

NOTE: Here I consider the DCDSM in the context of arts and entertainment, with a particular focus on user-generated content production. I note at the outset that I suspect there is a very different analysis for the impact of this directive on news media and news dissemination.

 

1. Little-To-No Impact

EU Implications

As a directive, this passing of the DCDSM does not accomplish much. The directive is only an edict that member states must pass their own laws that accomplish the general purposes of the directive. The first question the DCDSM poses, then, is how different nations will approach this directive.  Some nations might do very little, passing only milquetoast legislation and then neglecting to enforce it. Other nations may openly and pointedly refuse to comply with the directive, daring the EU to take punitive measures  against the non-compliant nation. Each country will have to decide how to balance the force of the directive (which is, itself, of debatable strength) with the risks of losing access to some major technology platforms.

Each nation is surely aware that there is a question of whether companies would rather cease operations in countries whose requirements are too onerous. Twitter or YouTube may find that the cost of meeting a nation’s copyright requirements outweighs the benefits to the company of continued operations in that nation. There is a bold example of this behavior in recent memory: When China demanded too much from Google with regard to censorship, access to user’s email and other data, Google simply decided to discontinue operations with the largest consumer base in the world. If Germany asked Twitter to pay for each link that users disseminate through their service, Twitter might prefer to avoid that tax by no longer offering Twitter to Germany.

 

US Implications

Another of the looming questions that this directive poses is whether there will be implications for non-EU jurisdictions. When the EU passed a law that increased user data protections, many companies restructured their data privacy systems across all regions. Some companies might consider a similar approach when faced with the DCDSM—it is sometimes easier to structure a business model to meet the highest requirements placed on the business. Many companies have struggled to navigate copyright claims (and data privacy, consumer protection, and advertising laws) in the wild frontier of user-generated content and digital media. They may see new, stringent laws as an opportunity to approach these problems with new tactics—though companies will have to consider whether their tactics will obliterate their business.

2. Moderate-But-Endurable Impact

In some ways, this is the worst for users and the best for large stakeholders.  This outcome keeps YouTube and Twitter afloat, imposes inconvenience and malcontent on users, but the obstacles are just minor enough to navigate. Maybe YouTube and Twitter charge a small subscription fee to cover their increased costs (not unlike Netflix or Hulu). Maybe the large, familiar platforms lose some of their functionality, but not so much functionality that the platform feels entirely transformed. Under this scenario, most of the things that most users do still mostly work, and therefore the overall satisfaction of the user base is only slightly lessened.

 

 

3. Apocalyptic, Catastrophic Annihilation of Social Media As We Know It

Histrionic

People who have the most to lose in the worst-case scenarios are beyond deeply concerned. The reaction of content creators on YouTube seems to be that this is among the worst things to ever happen for their business model. These people consistently cite existing problems with YouTube’s ContentID system and the copyright strike system as the basis for their concern (and moderating content on a social media platform is no easy task), and predict that this law will exacerbate those existing problems. Their reasoning is that YouTube has already demonstrated the challenges involved in trying to regulate copyright claims on YouTube: algorithms get things factually wrong, there is no presumption of de minimis use, journalism and parody uses are rarely recognized, etc.

The Way Forward

The worst case scenario that content creators fear is the death of the major platforms: YouTube, Twitter, Facebook (and subsidiaries like Instagram), will all lose economic viability or become so difficult to use in meaningful ways that users will abandon them, and the internet itself will die as a direct result. I see plenty of alternatives to the death of the internet (that’s something I expect the telecommunications industry to achieve before anyone else), even granting a severe impact to the operations and function of major (and minor) platforms.

A key fact about the internet is that users will always find ways to navigate the new space. The internet is a battleground for a particular kind of warfare: a fight in which new strategies are always being discovered. New platforms rise to replace old ones (no matter what the reason for the death of the last one was).  New methods and systems are born out of the effort to get around whatever obstruction frustrated the users.

Users will find ways to continue their current behavior, working around the impositions of the new laws. Not allowed to Tweet a link? Users will develop a new system for pointing people to information (humans have been creating systems for this purpose for millennia). Not allowed to stream a video game with a song it? Sing over it. Users are creative: successful content creation in the new environment makes creativity an imperative. The large copyright holders may one day (if not this time around) live to regret promulgating too draconian of an edict of creativity.

 

3A. The Backfire Scenario, Or, The Poetic Justice of Getting What You Ask For

“Success is a menace. It fools smart people into thinking they can’t lose.” – Bill Gates, as depicted in Pirates of Silicon Valley

One likely response to the DCDSM is that users will create more of their own content. If using existing content becomes prohibitively difficult, more users will create what they cannot afford. This will have a detrimental effect on the stakeholders who expect to gain the most from the new laws: the rights holders of existing popular works. These stakeholders have felt for decades that the internet was undermining their profits by allowing people to access movies and music without paying for it. As users create original content instead of incorporating these existing works, the works of the larger establishments will enjoy less dissemination and recognition by the public. The audience for these works will shrink as fewer people are exposed to their works. Large corporate stakeholders will need to invest more in advertising campaigns to acquaint the public with their products; they will try to replace what content creators were doing (for free and more effectively) for them.

For most of the 20th century, large corporate rights holders had every reason to think that they were indispensable—that they were the only way that people could access arts and entertainment. The Napster case demonstrated that the internet had the power to undermine their channels of distribution. User-generated content is the current argument that the content itself can also be produced outside of the control of these large stakeholders. If the DCDSM sparks an apocalypse of the current generation of UGC platforms, the phoenix that rises from those ashes is surely the end of the 20th century entertainment business model. In this scenario, users truly leave the large rights holders behind.

 

Conclusion: Probably Not Really That Bad For Art and Entertainment

Everyone will have to wait and see what form the Directive takes as it influences national laws. I think this is the kind of law that the internet is ready to work around. If it has devastating effects on existing platforms and services, I am quite sure that new platforms will emerge that promote entirely original content, unshackled from existing copyrighted content. The emergence of new solutions is the story of the internet.

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Darkness In The Dungeon of the Mind

Unknowable Darkness

Humans are instinctively afraid of the dark because it hides – indeed, it is – the unknown. Lovecraft’s mythos is horrific because of the themes of the unknowable and incomprehensible. His most terrifying monstrosities are not horrible in their descriptions, but in their defiance of description. As subjects for the unspeakable, Lovecraft included entities from unknowable dimensions, beings of size and power that operated on cosmic scales and geologic time frames. The heart of his weird fiction was the powerlessness and smallness of humanity in comparison to the size and age of the universe. The difference in scope is highlighted by his use of characters of science and academia – those who focused on intellectual pursuits, those best suited to understanding, describing, and explaining anything in existence – and their utter inability to psychologically approach the weirdness confronted in the tale.

We can get through life because we know that Lovecraft’s writings are fiction, and the threat of Cuthulu’s or Azathoth’s indifference evaporates when we turn off the screen of our e-reader. But there is something as unfathomably vast, as untouched by scientific comprehension, and as potentially horrifying that we live with each day: the human mind.

 

How To Explore The Darkest Dungeon

Darkest Dungeon is a mechanically and graphically simple game. It is a roguelike dungeon-crawler (one of the oldest genres of computer games), with turn-based combat and a small world (though each visit to one of the five locations is a different procedurally-generated iteration). The general structure of the game is not a novel concept: you arrange, equip, and direct a party of adventurers through an unexplored region in which you randomly encounter monsters, traps, or treasure. True to the game’s name, the dungeons are always dark, and so the party must bring a supply of torches in order to see. The level of the light provided by the torch is one major factor that will impact the stress your characters suffer. As the stress of your characters builds, they may become overwhelmed and develop traits which undermine their performance on the adventure.

I’m not very plugged into the survival horror genre, but I remember thinking that the sanity bar in “Amnesia” was a clever idea because of the affect it had on actual game play: making the screen blur and making running actually more difficult. Developers have to make careful decisions about how to guide game play functionality, because too many factors on game play with make the game confusing and disorienting. Because game play is, categorically, what sets games apart from other media, those factors which underpin game play are core to any careful analysis of a game.

 

Stress and Psychological Damage As a Game Play Mechanic

In Darkest Dungeon, characters overwhelmed by stress will develop a random trait (e.g., Paranoia, Hopelessness, Fearfulness, etc.). This will cause them to have a chance of being uncontrollable—they might refuse to act during combat or act of their own (impaired) volition. The brilliance is making the mental state of the character directly impact game play: rather than telling me that my archer is overwhelmed by the descent through gloomy and perilous ruins, the game shows me that my combat-trained adventurers cannot connect their will to their actions via their mind—that their mind cannot function in that expected capacity.

My most horrifying moment in this game was when my warrior cut himself with his own sword during combat, while madly raving about his need to bleed. Maybe it struck a dormant chord with my memories of people I knew in high school who struggled with self-mutilation as coping effort for their depression and anxiety, but I stared dumbly at my screen for long moments after that turn. Stunned and aghast, I suddenly understood what the game was actually about: the struggle with one’s own mind in coping with a terrifying, hostile, dangerous world. This game is about watching adventurers break and falter as stress overwhelms them, and trying to save them from the total destruction of succumbing to psychological injury while pressing toward a noble objective.

 

Darkest Dungeon is an Exploration of Something Universally Terrifying: Our Human Psyche.

In the game, you are summoned to your ancestral estate, bequeathed to you by a relative who explored forbidden depths beneath the grounds. As you explore an ancient estate, festering with a recently unleashed and mysterious evil, the real exploration is of the corners of the human mind. As stress illuminates those recesses of impermissible thought and taboo contemplation, characters are set upon by their own inexplicable urges, vices, and fears. However, in an inspired and inspiring design decision, there is occasionally a heroic reaction to the overwhelming stress. A minority of the time, when a character is overwhelmed by the stress of their circumstance, a positive trait (in place of a negative one) bursts forth, imbuing that character with additional power and capacity to carry on.

The exploration of the mind mirrors the exploration of the dungeon: as you explore the unknown, you are likely to encounter danger and harm, but occasionally, you find treasure. Stress becomes the torch by which you discover the parts of yourself that otherwise remain hidden and unknown.

Darkest Dungeon is an impressive example of a game that incorporates mental health directly into the core game play and story without being either patronizing or pitying about it. Indeed, the entire mechanism seems so obvious: would repeatedly wandering into dangerous, scary places have a noticeable impact on your mental functioning? Probably! Yet most RPG-adventures and dungeon-crawlers have the kinds of heroes who are impervious to fear or stress, so this kinds of interaction is scarcely considered in most games.

 

Dismissing Horror With the Light of Science

Andrew Scull documented the shift in Western social approaches to mental illness over the course of the last few centuries. The general shift was from the view of mental illnesses as supernatural and unknowable to scientific, psychological, and neurobiological. As science began to understand the brain, mental illness became a thing that could be understood and addressed. This progress continues to steadily lessen the fear and stigma around depression, OCD, schizophrenia, autism, and other diseases and conditions whose bearers would previously have been ushered out of functioning society entirely. As afflictions of the mind are understood more as chemical imbalances or neurological disconnections, rather than as demonic possessions or as indications of a subhuman status, the terror of the unknown recedes, as shadows from a torch.

In Darkest Dungeon, keeping your torch at the brightest level minimizes the stress your party absorbs. As much as darkness imposes fear, light invites confidence. Just as Lovecraftian horrors would lose their terror if they could be seen, understood, or described, mental illness is losing its own grip of social terror as science begins to see, understand, and describe the tremendously complex organ that is the human brain.

May your torch burn bright.

 

 

Thoughtless Atrocities: Why Lots of Shooting is preferable to a Little Raping.

I address a debate between Penny Arcade and Jim Sterling. http://www.escapistmagazine.com/videos/view/jimquisition/5972-Rape-vs-Murder

The issue is: For videogames, is shooting morally different from raping? They’re both bad things, obviously–  but isn’t the point of video games to let us go into a different sort of reality where we can do bad things without actually hurting anyone? There are at least three recognized approaches to questions of morality: Utilitarian, deontological, and virtue.

Utilitarians are interested in total net outcomes, so if no one is actually hurt and someone is happy because they played the game, it’s probably ok. (If the player ends up hurting people as a result of playing, the utilitarian might object.) Deontologists have to decide whether the rules that govern morality apply to imaginations and simulations of immoral behavior (18th century Kant doesn’t say much about virtual reality as we think of it).

Virtue ethics is general more concerned with how a person is motivated and what traits she or he cultivates. They might want to know: “Why do you want to simulate shooting or raping?” If you have a desire for immoral behavior for which you are simple finding a socially acceptable outlet, the virtue theorist does not approve. Goodness, on Aristotle’s view, is not wanting to do something bad but choosing not to. That is mere continence. Being good consists in wanting to do good things, not in merely avoiding the evil one desires to enact.

There is another approach to this issue, perhaps from the camp of the phenomenologists (who are interested in what we experience and how). In modern video game, I can shoot and kill 100 “bad guys” in minutes. I can shoot them with sniper rifles from hundreds of yards away. I can surprise them when they turn a blind corner. Not that we would want to, but could we imagine a simulation in which our avatar rapes 100 people in only a few minutes? Without wanting to get too into the awful details, rape seems (and I’m lucky that I wouldn’t really know) to be a very personal and intimate crime. It takes more time than does the pulling of a trigger. It involves being in the other person’s space— part of what makes it horrid is how up-close and deeply personal it is. It has a feel and an experience altogether distinct from running into a room of enemies and spraying bullets and running out. The murders of video games may be considered more acceptable than the simulations of sex crimes because the experience of the simulation is decidedly different. One can be uninvolved or unaffected by a repeated and impersonal slaughter-simulation, but one cannot be aloof or disengaged in a simulation of a personal, knowing, invasive act.

(NOTE: I have never done, nor ever intend to do, EITHER of these things! Sometimes explaining hell means imagining hellishness. Maybe killing a room full of people feels just like committing a sex crime. I hope I never get to find out empirically.)

Most videogame slaughter can be understood as mechanical and impersonal. It is inconceivable that sexual crimes could be simulated in a comparably impersonal and wholesale fashion. I conclude that the impersonal slaughter of videogames poses less of a moral problem than does the simulation of rape because of the distinctly different phenomenology of the experience. (Of course, there are plenty of other reasons to accept the same conclusion that do not conflict with the reasoning I offer here.)