Music Modernization Act, Artificial Intelligence, and Cryptocurrency

“Angel Pumping Gas” is not a song about copyright regulatory policy, artificial intelligence, or cryptocurrency. I’m going to use it to round up all three of those subjects in this blog post.

  1. Music Modernization Act: Not Enough Of a Good Thing

“Why won’t this moment last?”

A.

“Angel Pumping Gas” is a 1999 song by the band Lindsey Pool, the second track on the album Postal. The song was circulated around various music sharing sites and services—but it was erroneously attributed to the band The Postal Service. Even now, comments sections on YouTube express surprise concerning the song’s artist. Google’s first result for lyrics attributes the song to The Postal Service. This serves as a clear, simple example of how easily information spreads online, and how difficult it can be to correct information online. If early 2000’s music sharing used a single database held the information for every published song, such an error might have never happened. A new law requires the creation of such a database, but there’s a lot still up in the air.

The biggest open question from the Music Modernization Act is: Who is going to create and maintain the required database of songs and rights holders? The law mentions that a database will be made, presumably by the Mechanical Licensing Collective that the law also creates. This is only forces everyone to ask more questions: who will be on the board of the Mechanical Licensing Collective? What methods will this organization use to create this database?

B.

Measured by content, “Angel Pumping Gas” is little more than an unnecessarily detailed recounting of purchasing gasoline. In fact, the middle two-thirds of the song is an entirely banal description of an entirely ordinary and unremarkable transaction. Only the beginning and ending of the song (and chorus) frame the experience in terms of the romance and desire that the singer feels. It’s either beautiful post-modern appreciation of the beauty in the mundane encounters of our lives, or it’s just a little bit silly.

The Music Modernization Act is either a beautiful resolution of a pressing problem in the music industry, or it’s just a little bit too narrow to be worth caring about. The Music Modernization Act was passed unanimously by the House. Sound Exchange and the RIAA have praised it. It seems like everyone loves it, so I was surprised to learn how narrowly tailored the new law is. It is almost entirely focused on problems specific to digital streaming of music. Though there were issues that required resolution in this area, there remain enormous gaps between current copyright law and the daily use of media and technology. It is unsurprising that the problem that got addressed was one that concerned the rich and powerful (record labels, digital platforms), but they did take the opportunity to include studio professionals in the legislation—a group that has historically be neglected. Music Modernization Act is not as far behind the times as I expected: it’s not a response to Napster, it’s a response to Spotify… but I would still like a more satisfying response to Napster than the DMCA.

 

  1. Artificial Intelligence All Around Us– And We Don’t Know What It’s Doing

“You ask ‘What Can I do?’ I say ‘unleaded fuel.’ You open up my tank and start the pump.”

“Angel Pumping Gas” is a wistful ballad that describes a brief meeting with a filling station attendant, with whom the singer is immediately infatuated. Filling station attendants are rare in 48 of the 50 states (NJ and OR have laws against filling one’s own gas tank… as does the town of Huntington, NY).  The entire premise for the song is slightly alien to the tens of millions of Americans who have always pumped their own gasoline.

For most young Americans in the 90s, gas station attendants were a historical curiosity—something referenced in films in the 50s and 60s. However, for residents of NJ and OR, having someone else fuel your car was a commonplace occurrence. Today’s emerging technologies have the same impact: a device or service is either a commonplace part of your life, or it’s a foreign concept. Twitter, Facebook, Alexa, Smartphone GPS navigation, Netflix, Twitch, YouTube, AmazonPrime- all of these things are, for most Americans, either so commonplace as to be unremarkable, or are simply not part of your life. As technology becomes more integrated in our lives, the difference between so-called “haves” and “have-nots” becomes more pronounced. The very premise of the song creates a divide in the audience: there those who have encountered a filling station attendant, and those who have not.

Our relationship with technology is already creating visible divides in our population. We aren’t always sure who is a bot, though some of us are willing to pay a lot for their art. Even as AI becomes an essential tool for the largest companies that manage important aspects of our lives, the law has no idea how it will handle the legal aspects of a tool that is on a complicated trajectory. Artificial intelligence is steadily becoming more and more commonplace- but the majority of us can’t see how or where AI is being used, much less which systems use what kind of data. Like a teen in the 90’s listening to a song about a filling station attendant, most people who hear about bots and AI have to turn to movies and pop culture references to draw up a mental picture, rather than rely on our own experiences.

 

  1. Cryptocurrency’s Perpetual Hype

“You walk over my way, I didn’t know what to say… I think that I love you, or maybe it’s just the fumes.”

The song details the singer’s desire and longing, wallowing in the idea of feeling a romantic desire for someone he doesn’t know. The song juxtaposes the intensity of the singer’s amorous emotions with the brevity and shallowness of the interaction. Our popular culture mirrors this adolescent infatuation in our reactions to new technologies: sudden, intense waves of excited fervor for a world-changing device or platform that either never arrives or seems to evaporate into the past shortly after it appears. (I have written before about the hype surrounding the Internet of Things… )

Cryptocurrency prices are down, but it doesn’t feel like the hype has suffered at all. The estate of one of the Wu-Tang Clan is starting a cryptocurrency, to be named after the deceased: Dirty Coin. The strangest part of this is that I haven’t seen blockchain applied in the kinds of contexts I expected it to find more success: online games, a new kind of customer loyalty program, or other gimmicky, comparatively low-stakes settings. Perhaps the hype is fueled by risk-taking and gambling, and such settings aren’t thrilling enough. This is unfortunate, because turning down the hype would allow the technology to actually move forward in much more appropriate, smaller steps, rather than trying to change the world all at once.

Is the gas station attendant in the song the destined One True Love of the singer? It’s not impossible. Are there are a lot of fumes around gas stations? In my experience, yes- always, in fact. Will cryptocurrencies bring about a Utopian future? It’s not impossible. Do crowds tend to favor exciting hype over careful, substantive analysis? In my experience, yes- always, in fact.

Conclusion

“We share our precious moment in a glance…  and as I drive away, her memory’s here to stay—her deep blue eyes have left me in a trance.”

The singer bemoans that he needs to leave, as the road calls him away. His lack of control is an unstated axiom of the logic that he must follow. The singer is a passive pawn of forces around him: fate, the road, filling station attendant (her authority to invoke payment and her beauty), the transaction, his emotions. He begins the song by attributing the encounter to fate and concludes with the resigned acceptance that the separation is, perhaps, better for all involved. This is not a song about a person taking decisive actions; this is a song about a consumer making his way through a brief and common transaction in the life of a middle-American.

Society seems to display about as much mindfulness and self-possession in approaching technology. We owe it to ourselves to take more effort and more thought regarding our laws and our technology than an adolescent’s unapproached crush.

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The Scare of Abandonware

It’s nice to have law in a society to bring a sense of predictability. Clear and organized laws allow us to understand the consequences of our actions. Knowing the law lets us make choices based on the expected outcomes. However, there are a few areas of law where outcomes are not so obvious. Abandonware is an interesting case of 21st century law. Copyright law simply doesn’t outline what to do when a company publishes a game and then closes its doors. It’s scary for cautious lawyers to discuss because of that uncertainty. As always, this blog post is NOT legal advice– in fact, it’s mostly about why giving legal advice about abandonware is difficult.

How Games Get Abandoned

Abandonware isn’t entirely limited to software, but the differences in technology and industry norms and structure make it a far larger problem for software than any other media. It’s no surprise that book, radio, television, film, or music industries ever needed a statute on abandoned works.

When game studios close, they are often bought by other, larger studios- or at least their IP assets are. However, sometimes the IP of a studio doesn’t get purchased – it just gets abandoned. Copyrights in the US last at least 70 years. Although courts have ruled that not every work has a recognized owner at the time of creation, courts have not definitively addressed the issue of abandoned works. (It is possible to officially declare a work abandoned and part of the public domain, but this is not automatic for IP that is simply left behind by a defunct company.)

Who Would Have The Right To Sue?

There are a few fundamentals that have to be in place for a case to even get seriously looked at by a judge. There must be an allegation of a violation of a law, for one thing. Additionally, the plaintiff must have “standing.” This means the plaintiff was harmed by the breaking of the law. A case must also be “ripe” (the allegation cannot be speculated or predicted to occur sometime later), and the case cannot be “moot” (resolving the case must make an actual difference to the injured party).

In the case of abandonware, could these fundamentals be met? Sometimes revenue is still given to developers whose companies have closed shop, but it’s unclear how often this is the case.  In most cases, it seems that no one can claim to be damaged by the unauthorized distribution of the software, because no one can claim they lost money as a result. Further, any case would be moot because ceasing the distribution would not make any difference to a non-existent competitor.

Despite the unlikely odds of an abandonware suit even getting to trial, distributing abandonware still feels a little risky for two reasons. First, unlike trademarks, copyrights are not contingent on use in commerce, and unlike abandoned property there is no law describing how to treat abandoned works. Second, it’s an unexplored area of law, which means that there isn’t precedent either to argue in court or to consider when advising a client.

Who Gets the Loot of the IP License When a Company Dies in the Dungeons?

Despite the murkiness, some abandonware cases seem clearer than others. Some games from the 80s and 90s seem well and truly abandoned. However, if a copyright is assigned to a corporation and that corporation then goes defunct or is bought, it’s sometimes unclear who owns the copyright.  Other games may carry a sort of tangential active ownership that could complicate a case. For an example of both of these complications, let’s consider a game from 1991 that featured a licensed IP to a game developer and a publisher (who are now both defunct): Eye of the Beholder.

Dungeons and Dragons was owned by TSR, Inc until that company went out of business and sold most of its D&D intellectual property assets to Wizards of the Coast (a company owned by the toy company Hasbro, Inc). Eye of the Beholder was a game made by Westwood Associates (bought by Electronic Arts and defunct since 2003), though the title screen clearly identifies it as an Advanced Dungeons and Dragons game. The game was published by Strategic Simulations, Inc (bought by Mindscape and defunct since at least 2011), who worked with TSR on dozens of licensed D&D games.

With Westwood and SSI now out of the picture, can Wizards of the Coast claim ownership in the use of their D&D mark in 30 year old games?  Wizards of the Coast would probably not prevail on a claim of direct ownership of these games. As far as I can tell, courts have not addressed a case in which a party bases a claim on IP that is inside another product. The closest cases involve the use of a person’s likeness in a game, but the plaintiffs don’t try to claim ownership over the entire product. It may be that the original license agreement puts the “D&D” IP out of the reach of claims by TSR, and therefore out of the reach of WotC.

Ideally, the licensing contract between TSR, Inc and Westwood Associates has a paragraph for just this kind of question (this is why it pays to draft contracts with the worst possibilities in mind- like your company going out of business). If a court faced the claim that WotC has a claim on the distribution and sales of games featuring D&D settings and characters, I suspect* it would rather dismiss the claim on the basis of laches rather than address the tangled mess of IP licensing claims.

Conclusion: We Can Know The Risks, If Not the Outcomes

Abandonware seems to be technically illegal, but it also seems to be nearly unenforceable. That’s an uncomfortable place to be. It’s a strange state, and there are hardly any appropriate analogies that would help explain it. The best analogy might be a comparison to an old game that, despite being technically functional, won’t run on a current operating system. Abandonware’s legal challenge might be best described by its technical challenge.

 

*There is always a small risk of a surprise in court: A court could create the principle that when a party does not exist to protect a licensed IP, the licensor may step in and act as owner of that IP for some limited purpose. Some would call that “legislating from the bench.” The judge would call it “meeting the demands of justice in the face of technological development.”

Infringed Ink and Printing Copies of Cases: How Lexmark Collected Intellectual Property Lawsuits like Joker in Persona 5.

It’s fitting that printer ink turned out to be the subject for the series of lawsuits that took on all three of the major areas of intellectual property. Printers are the bridge between the physical and digital worlds, in a way. They are the symbol, and the means, of the transition between digital and paper documents.

Lexmark’s intellectual property litigation legacy is about the different ways that a variety of laws have different connections and offer different perspectives.  Persona 5 is about seeing the world through a variety of perspectives, and understanding different connections and perspectives that people have. Persona 5 is about complex stories that interconnect and overlap, with multiple layers and facets. That complexity and inter-connection has a similar feel to the complex and layered Lexmark litigation saga.

I. The Many Masks of Intellectual Property

In Persona 5, different “personas” (represented by masks) allow characters to perform different types of attacks. Different attack types will be particularly strong or weak against different enemies. This means that a big part of the game’s tactics is about determining which persona to use in different situations.

Copyright

Probably the one most people mean when they think of intellectual property, especially related to art or entertainment. Traditionally, this area of IP law was focused on books, music, film, and other art. However, due to the Digital Millennium Copyright Act (DMCA), the law also touches slightly on questions of tampering with proprietary devices to modify them (or to modify their functionality).

Trademark

I see this used interchangeably with “copyright” a lot, but think of it like this: Copyright protects the painting, trademark is the law about the artist’s signature in the corner of the painting. It’s the law that comes most into play when people are talking about counterfeit goods or brand recognition.

Patent

This is what most people mean when they think of intellectual property in most business and financial dealings, and especially in the context of science or engineering. Patents are about owning the right to make and sell a certain kind of thing, from cell phones to medicine.

Trade Secret

Like the healing abilities in Persona 5, trade secrets aren’t used often or even mentioned often, but they can fit some situations just perfectly. The other three kinds of IP law require you to make something public- filing a patent with the Patent Office, or registering a copyright (though you actually only need create a work to have a copyright in it, as of the 1976 re-write of the law), or using a trademark in commerce.  Trade secrets go the opposite way: if you take certain steps to NOT let the public know about something that makes your business work, you can claim a right to protect it.

II. Lexmark Litigation (Backstory)

Lexmark makes printers, but has a lucrative racket with recycling their ink cartridges. Well, had, maybe. Because Americans don’t like feeling taken advantage of, and because American Millennials don’t like a lack of choices, other companies sought to offer competing solutions to Lexmark’s ink cartridge restrictions.

In Persona 5, players collect new personas as they progress through the game. Lexmark litigation managed to collect different areas of intellectual property law as they fought over the issue of other companies coming up with ways to interfere with their ink cartridge schemes. What I find really amazing about this 13 year sprawl of litigation is that none of the involvement of IP law is predicable or very expected. Each application of law is noticeably distant from the original ideas and central, foundational, purposes of these laws.

How did Copyright law get involved?

Mostly through the parts of the DMCA that restrict tampering with controls placed on a device to inhibit 3rd party interactions (e.g., Section 1201). But in 2004, the Sixth Circuit (that most difficult of all circuits to pronounce) issued a ruling that called into question whether “lock-out codes” were actually subject to copyright protection, as they are not a form of creative expression. We might have gotten a more authoritative ruling on this topic, but Lexmark missed the deadline to request an en banc hearing at the Circuit level.

How did Trademark law get involved?

Through an argument about whether someone could sue Lexmark under the Lanham Act (the actual federal statute that contains most of trademark law). To actually take someone to court, you have to meet a few basic standards: you have to have an actual claim recognized by a law, for example. One standard for having a trial is that the person suing has to have “standing”: they have to have the legal right to bring a claim. Many laws will include a more specific definition of what “standing” will mean for that law.

In 2012, Static Control Inc. tried to sue Lexmark under some federal business-type laws (the Sherman Act and the Clayton Act), but those laws didn’t actually grant standing to Static Control, which meant they weren’t allowed to actually bring Lexmark to court. Then they tried to sue under the Lanham Act, because the rules for standing are different under that law. The Sixth Circuit granted Static Controls the right to a trial under the Lanham Act. Lexmark took the issue to the Supreme Court, who agreed with the Sixth Circuit’s choice to have a trial.

How did Patent law get involved?

The obvious way for patent law to be in a case brought by a printer company is for the case to be about two printer manufacturers arguing over whether one copied the others’ technology. That is not at all how patent law got used by Lexmark. Instead, the patent law question was about patent exhaustion.

This tiny area of patent law is like the “first sale” doctrine in copyrights. The idea for both is the same: once the end-customer buys the product, the manufacturer’s patent is “exhausted.” Under this law, a customer can do whatever they want with the thing they bought (except make new ones and sell those- that part of the patent still applies). This year, Lexmark brought a case to the Supreme Court on this point of law, hoping to stop a different company that was interfering with the ink cartridges. The third time was not the proverbial charm for Lexmark; the Supreme Court held that consumers do have some rights with regard to the re-use of their own purchased property.

III. Conclusion

My favourite thing about the Lexmark litigation is that it isn’t just about the substance of intellectual property law; it’s about how intellectual property law is administered. The trademark issue wasn’t really a trademark issue– it was an issue about who can sue under trademark law. The copyright issue wasn’t really about the copyrights of art or books or movies — it was about whether someone can unlock your digital locks. The patent issue was barely about patents– it was really about whether a patent still applies after a customer buys the product.

I’m excited by this because it’s a sign that intellectual property law is becoming more and more relevant to American life. More details of the administration and applicability and extent of laws have to be established as laws are interacted with more often. Decades ago, intellectual property was a small area of law that only affected a few sectors of a few industries in any meaningful way. Now it affects how we use our cell phones, ingest our entertainment, and even harvest our crops. As this area of law grows in response to innovation and technology, it has the potential to encourage further innovation and advancements, as well as to steer the growth of those new ideas. We are living at a time where we are moving toward either technological salvation or technological armageddon.

 

 

 

“Fair Use!” Shouldn’t Be The Battle Cry of Pirates

***Disclaimers: Jim Sterling emphasizes that he does not advocate pirating Nintendo games; he  only argues that there is a moral justification for doing so. Furthermore, I don’t have all of the information on this matter, and I’ve tried to indicate when I’m inferring some facts. As always, this writing is NOT legal advice.***

Jim Sterling thinks it’s morally justified to pirate Nintendo’s games. I disagree.

As I understand it, Jim’s argument is that Nintendo abuses copyright law by failing to respect the legitimate activities of journalists like him. Jim feels that Nintendo’s failure to respect the legal rights of others permits others to ignore the legal rights of Nintendo.

The basic analysis of this claim comprises two questions: 1) Is Nintendo actually abusing copyright law? and 2) Does that abuse justify piracy? I think simple proportionality suggests that if a company fights with one person over a few pennies, responding by depriving the company of millions of dollars from millions of customers is probably not justified. So, I’ll just focus on the first question.

1)  Is Nintendo Abusing Copyright Law?

Probably not. As far as I can tell, Jim is angry that Nintendo issues ContentID strikes against Jim’s videos that incorporate some of Nintendo’s content (e.g., a few seconds of a trailer for a Nintendo game). Jim contends that his use of Nintendo’s content is protected under Fair Use.

A) ContentID: Still Not The Same As Appearing In Federal District Court

Nintendo is operating within YouTube’s copyright-themed pretend-cyber-law-court system. (I don’t know if they’ve issued DMCA takedowns, which would be an actual, real, legal action.) ContentID has a status similar to a retail store’s policies, in that it’s up to the private enterprise to design and operate the system pretty much however they like. Except in this case the law (DMCA) frames how a private company will design their system: If a party issues a warning about a copyright issue and the host service doesn’t remove it, and then the party goes to court with original poster over it, the party can collect from both the original poster AND the host. Thus, the host is really incentivized to make the choice for which the law will never penalize them, and just take down everything, every time anyone is unhappy. Maybe there are some complaints to levy against the DMCA for that (and against copyright law for incentivizing rights holders to protect their rights or risk losing them). But being slighted by a retail store’s return policy doesn’t justify torching the manager’s car.

B) Fair Use: Still Not A Magical Invocation

Jim’s claim to the Fair Use exception is not as clear as he hopes it is. Before the internet, fair use was a tiny, unheard of piece of an area of law that most citizens and attorneys didn’t think about very often. In the last 20 years, it has become the backbone of the amateur, self-starter internet entertainment and journalism industry. Despite getting burdened with all of that extra responsibility, the legal doctrine has not been expounded or clarified by courts or legislatures. The biggest case for fair use was Campbell v. Acuff-Rose Music, Inc. in 1994, which focused on the use of music for parody and explicitly stated that the law does not recognize a market for derivative works (which, I would argue, is very close to what most UGC on the internet is). (It would be great if someone could take a corporation like Nintendo to court to get a ruling on Fair Use in the context of YouTube journalism and criticism—though I’m sure that corporations will settle at outrageous expense in order to avoid losing the grey area that allows them to make these kinds of aggressive claims.)

Jim’s use of Nintendo’s content seems intuitively fair to most of us, but the analysis required by the law isn’t the intuition of the average citizen. The statute requires consideration of four separate factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The biggest problem for Jim in this analysis is that his videos are monetized, which means that his use of Nintendo’s content is not a non-profit endeavour. He also might use as much as 1/3 of a 3 minute trailer, and seeing the trailer in Jim’s video might make some people less likely to go watch the full trailer (though it could also have the opposite effect). The point is that there are some arguments to be made against the idea that Jim’s use of Nintendo’s content is beyond reproach. I think the balance of analysis goes in Jim’s favor for fair use, but I don’t think every single court in the US would rule that way- though more court rulings are moving in this direction. (I did not apply Lenz to this analysis because: 1) It applies to DMCA takedowns, not ContentID strikes, 2) There is a good-faith argument in consideration of fair use, as outlined above, and 3) It’s a Circuit ruling, rather than a Supreme Court ruling.)

Ultimately, Jim’s entire argument really hangs on this one point- that fair use gives him a right to do this, just like the first amendment would give him a right to run a newspaper or stand on a soap box in Central Park. As a matter of academic legal analysis, 17 USC 107 is not as robustly defined or developed as the Free Speech clause of the First Amendment. Fair use is not just a legal way of saying “I used citations.”

I don’t want to pick on Jim too much, though. This case is just an example of the kind of faith that consumers and “Prosumers” and “content developers” and “social media dracoliches” put in the legal concept of fair use. It’s an incredibly misunderstood point of law, and it’s a point of law that is bearing more of a social and economic burden than it was ever originally designed to bear. Every year, ordinary intuitions about the meaning of “fair use” are driven further from the statutory language by cultural norms and everyday practices. In the end, no one seems to have a good grasp on this concept: Consumers and content creators think it is carte-blanche permission to use someone else’s work, and entertainment companies seem to think it’s a lie invented by hippies who just want free stuff.

2) “Legally Justified” Doesn’t Mean You’re Either Good or Smart

I think there’s a reasonable case to be made that Nintendo is acting within their legal rights. I think there’s a much stronger case to be made that Nintendo is acting against their economic interests. Copyright law is woefully outdated, and companies that cling to it too tightly will fall behind the times. One of the most useful aspects of copyright law is the right of the owner to not pursue actions against infringers. A smart company recognizes when infringements under the law can work in the interests of the company. Devolver Digital is a smart company.  Entertainment companies that are the most successful in steadfastly safeguarding their intellectual property will be among the least successful at recruiting, engaging, and retaining an audience.

Entertainers without audiences are dead.

I think there’s a better way for Jim (and his industry) to strike back at Nintendo: just leave them behind. Nintendo wants to live in the 20th century. Nintendo doesn’t want to participate in a world of Let’s Plays and livestreams and podcasts and social media and fan participation. There’s no shortage of other game companies and other games to play and discuss. It doesn’t help that Nintendo recycles only 2 or 3 major franchises and rarely comes up with any new ideas- and fails to execute them when they do. Nintendo needs all of these copyright infringements to survive, but they don’t know it. I don’t think they will learn that lesson until they get exactly what they want.

Watching Over Copyrights and Brands, Part II

You can protect a brand in a lot of ways. You can wave the law around like a sword, or hide behind it like a shield. Or you can not worry about using the law to your advantage and just make a product that others can’t top. One of the most fun things about law school was learning about all of the ways around the law – not breaking or circumventing it, but bridging over the gaps and cracks. Gaps and cracks happen most when the law hasn’t kept up with culture or technology, which is where I think the law is most exciting and interesting.

One of the most genius aspects of the overwhelming media hype-package of Overwatch is the way it manages concerns for copyright and trademark infringement. Blizzard achieved a level of branding and promotion that reduces their concerns for infringement. Overwatch is inimitable. That doesn’t make it invulnerable, but it might be the next best thing.

I. “Junk” from “Rats” Can’t Hurt the Bastion of the Marketplace

Even before I ever visited New York City, I knew that people sold cheap, counterfeit Rolexes on the streets. Having this explained to me as a child is also how I heard about Rolex, incidentally – and learned that it was different from Rolo. I always thought it was interesting that everyone knew about this black market for counterfeit goods, but no one seemed extremely worried. I think one reason for the lack of concern is that Rolex knows they won’t go out of business because of cheap knock-offs.

The best games, from the biggest studios­, have less to worry about when their IP is infringed or “heavily borrowed.” Dominating the games market is less about legal force than it is about marketing and loyalty. For one thing, Activision can’t claim copyright over the concept of a military-shooter and force other studios to not make games that compete with Call of Duty. So Activision makes Call of Duty a brand, because brands command loyalty. A given Call of Duty game may be worse in every respect to a competitor’s game, but fans will still choose the inferior product because of its franchise. (This is one of two reasons anyone rooted for the Cubs from 1945- 2015.) Blizzard created something powerful: a genuinely superior product that commands tremendous brand loyalty.

II. Just Palette-Swap For A New Game! Sounds Pharah- don’t you McRee?

Of course, just because no one can succeed in really ripping off Overwatch doesn’t mean people won’t try. League of Legends had this experience, also. Generally, game knockoffs like these are about as much of a concern as e-mails from dispossessed millionaire Nigerian princes. It’s a reprehensible practice that creates clutter and will accidentally trick some people, but they aren’t going to displace the original.

Companies can compete with Overwatch, but they can’t replace it. The entire experience is too complete and interconnected. No parasitic effort can trick a gamer into thinking they have the real deal, no one can deliver a superior version of the same experience, and no one pull more brand loyalty in online gaming.

III. Leaving your Trace[r] Mei Show that You’ve been a [Road]Hog, and You’ll Get No Mercy

Although Blizzard won’t feel the financial impact of the feeble efforts of clones, there are things that can still undermine the game. For example, a company could make an add-on that allows players to cheat at the game. Of course, a company called Bossland did exactly that. Rather than simply ban the players who use this add-on (per violations of EULA and ToS agreements), Blizzard has gone after the makers of the program – who are super proud of what they do.

I am a little bit surprised that they cite copyright infringement in their claim. This is interesting because it seems well outside the scope of traditional copyright law, but copyright law has been slowly evolving in the last decade. I think the technical details of how Bossland’s program interacts with Blizzard’s game could be essential to determining if applying copyright law is appropriate. After the recent ruling in Google v. Oracle, courts are more likely to find infringement just from making two programs talk. (The fair use defense that saved Google is not going to help Bossland.) In this case, it seems extremely likely that Bossland had to access and take (or manipulate) some of Blizzard’s code, which may be enough for infringement. But the ways that 3rd parties can interact with programs is still an interesting question for copyright law to resolve.

Regardless of the copyright claim, I think the other claims made by Blizzard are plenty strong enough to win, so I don’t think a court will end up going into detail about it.

Where Is The Fair Use? Where It Has Always Been.

Copyright law is not the most difficult area of law. Contracts, Torts, and Constitutional Law are massive categories that cover a lot of dense and complex content. However “easy” copyright might be, it is still an area of law with technicalities and layers of exceptions and conditions. Though copyright law doesn’t have the Rule Against Perpetuities or questions of Personal Jurisdiction, there are other complications: the triennial review process for 1201 research exceptions, or the federal preemption exemptions under the 1976 Copyright Act for pre-1972 recordings, for example.

Fair use is a sliver of copyright law that doesn’t seem complicated, but people can still get it wrong. In programming, brackets and semicolons matter if you want your program to run and not crash. In law, words and details matter if you want a favorable result. Being sloppy or lazy, generalizing broadly, or simplifying and condensing are all quick ways to lose in law. The fair use doctrine can feel easy for an educated adult to grasp, but there are important details in this tiny section of US law.

Fair Use Is Not Everywhere

Fair use is not a defense against the abuse of a copyright claim system. A huge part of the #WTFU discussion has been the complaint that takedown notices (or strikes) are issued by people who don’t have any claim to the copyright. This is a problem, but it is not a fair use problem. To use the fancy words: The copyright abuse of which most YouTube content contributors complain is a failure to meet the definitions in section 101, or to meet the cause of action available in section 501(b). Section 107 exceptions to copyright are not implicated. Therefore, there is no “fair use” claim.

Fair Use Is Not Pretending You Didn’t Do It

The true fair use part of #WTFU is that copyright holders issue strikes against critics who (arguably) deserve the protection of fair use. The unsatisfying answer is that this in accordance with the law. Section 107 of the United States Code is an exception to copyright infringement. Fair use is really a defense that says, “Yes, I am violating copyright, but I have an approved reason to do it.” Fair use admits copyright infringement. It does not replace copyright infringement. (The 9th Circuit in Lenz notwithstanding.)  In this case, the law is designed to defend accused infringers, not prevent the accusation.

Fair Use Is Not The Money Maker Yo’ Federal Statutes Gave Ya

Fair use is not meant to protect commercialized activity. Whether Nostalgia Critic is covered by fair use is an interesting question, because he’s “doing criticism,” but he’s also “doing entertainment” and monetizing (even if indirectly) the video. * Fair use is not a checklist that gets someone a total exemption from copyright infringement if any single box gets ticked. It is a balancing test, and all of the factors get considered. Balancing tests make for the least clear and predictable answers in law.

The Best Case For Fair Use On YouTube?

The strongest fair use argument is for “Let’s Play”-style content. Games are meant to be played. They are supposed to engage the decision-making faculties of the brain, in the same way that movies are meant to engage the sight and hearing of the audience. In an important way, filming someone playing a game is like hearing someone read a movie script. Not only is it transformative, but it changes the economic impact analysis. Uploading music or film to YouTube may well replace the original content, but I disagree that footage of someone else playing a game is a replacement for playing the game.** A court might not see things this way.

Situation Normal

The daily internet realities of copyright and trademark don’t match US law. The real problem is not that Google*** is failing to deliver on the legal promise of FAIR USE. The problem is that the law is more or less working as it’s written. There are questions to ask here, but I don’t think Google has those answers.

*There have always been book reviews written for profit, as well as parodies and commentaries of works. But not every case of journalism, parody, or fandom wins under a section 107 defense. And that’s why it’s a grey area- or at least more grey than people realize. It is clear that 17 USC 107 was never meant to support commercial entertainment enterprises, so it is a little off-kilter to hear people invoke it as essential to their livelihoods. However, it’s also clear that Title 17 of the USC was never meant to prohibit criticism or education.

**It is very important not to confuse “Let’s Play”-style content with eSports, because footage of someone else playing a game is a very good replacement for … that person playing that game.

***All of this ignores some relevant DMCA analysis and distinctions between US Federal Court and YouTube’s Content ID System.

The Long Road to an Ever-changing Future to Return Again to the Past: A 14th Century Solution to the 21st Century Digital Renaissance Problem of Law and Economics

This is my longest post yet, so I’ll give a tl;dr: Copyright law is immovable and unavoidable, and we keep talking about because things around it change constantly. Navigating copyright for the next century can’t look like successful navigation of the last century’s copyright- but it might look a lot like something from 7 centuries ago, and it might shift some of the focus from Copyright to its older sibling, Trademark.

 

I love the history of copyright because I can’t separate it from the history of technology. The core thrill of copyright law is the thrill of technological possibilities warping and toying with long-standing concepts of objects and economics.

It’s too bad I don’t have the graphic design tools to put a timeline up, with the legal progressions listed on one side and the technological milestones listed on the other side. But here’s a text version:

Laws and Philosophy:

The printing press was invented in 1440. Statute of Anne was passed in 1709.  Immanuel Kant wrote “On the Wrongfulness of the Unauthorized Publication of Books,” 1785. The US Constitution was written in 1787, with a clause establishing copyright as a federal law, followed by the copyright act of 1790. In 1831, 1909, 1962-74, 1976, and 1998, the US government passed modifications to US copyright law. Throughout the 20th century, photographs, moving pictures, radio broadcasts, phonographic records, videocassette tapes, and internet search caches are each brought face to face with copyright law.

Technologies:

1837 Samuel Morse sent the first telegraph message. In 1878, a moving picture of a horse at a gallop is recorded. Gugliemo Marconi transmitted radio signals 1.5 miles in 1895. In 1926, Kenjiro Takayanagi created the first television receiver; Philo Farnsworth worked on an improved television the following year in 1927-1928.  Raymond Tomlinson sent the first e-mail on ARPANET in 1971. Tim Berners-Lee published the first web page in 1991. Microsoft released Windows Media DRM software in 1999; Napster also launched in 1999. YouTube launched in 2006. In 2014, a monkey took a selfie.

In February of 2016, YouTube channels and personalities asked: #WTFU. (Which spurred me to write about copyright yet again.)

 

The Times are Always Changin’.

It’s a long history to arrive at such a contentious and unsettled point. Contract, torts, and property law are so much more settled and uncontroversial (particularly in the ways that affect average citizens in our daily lives). Why has copyright always been a recurring issue? Why does it seem to be getting less settled and stable, despite the increase in attention from jurists and scholars?

The problems are not going away because their two main causes aren’t going away. Technological progress isn’t going away. The drive of human creativity isn’t going away. But if we can move copyright law through the end of the 20th century, we might be able to reconcile law and art.

From the Ayssirian Tablet to Bob Dylan, human civilization has repeatedly confronted the distance between “old” and “new.” Generations are defined by the space between them that cannot be bridged. History bears out Marshall McLuhan’s observation that, particularly with regard to new technology, “we march backwards into the future.” But when we arrive in the future, we have to grapple with its residents and their customs and culture. There are always “The New Kids.”

The New Kids: Popcorn Time and Social Media “Prosumers.”

One fine afternoon last year, Gabe and Tycho talked about how terrible piracy was, and how funny it was that the ESA was going to allow Social Media Mavens to attend their E3 show alongside the press. This whole podcast is about these two topics, and the two of them seem unaware that the same theme actually permeates the entire discussion. These are two examples of how new media and technology shape culture in a way that dictates how established industries must change – two industries in particular. Though one of these industries was established 83 years before the other, they both face upheaval from the effects of the internet.  The ubiquitous availability of devices that connect the world is the result of a collection of forces that has – and will – entirely change society.

In their comic, “The New Kids” are ostensibly the “Prosumers,” set to arrive at E3 and replace the Old Guard, Traditional-Role Press. But there’s a layer built into this that Mike and Jerry don’t even know about: “The New Kids” are the technologies and media and cultural shift that change ESA’s thinking about who should be at E3. The New Kids are all of the reasons Popcorn Time can exist and even thrive, and why AMC needs to think very fast about how to avoid the fate of Borders Books. A society always has New Kids. Progress doesn’t happen without New Kids.

One Reason Copyright Discussions Never End: They Go the Wrong Direction

Copyright affects a lot of people on the internet, so it gets a lot of attention and discussion. Too much has already been said about copyright law – most of it is pretty unhelpful. Comparisons to the theft of physical objects only invite a hyperfocus on the distinction between copying and theft, which is just misunderstanding the issue in a different way. Arguing one misunderstanding against another will not lead to a better solution, just a different, less obviously-bad problem.

I think a better analogy is in spaying the goose that lays the golden* egg, or gelding some equally bounteous and mythical stallion. Analogies about terminating reproductive capacities are sometimes slow to catch on, for some reason—but maybe we could at least speak of taking an engine out of a car.

Ultimately, I think all of these analogies are really the wrong route. The most significant and salient point is lost in the effort to analogize: the way that digital media allows the manipulation of art is entirely unlike what human civilization has seen so far. It just isn’t like tools or farm animals or agriculture or cars or anything else to which we are tempted to analogize. The digital replication and transmission of images, text, and sound is entirely unlike the things that have happened in last 5 millennia (or 20 millennia) of recorded human history.

The internet, and the bundle of technological developments that have come with computing and telecommunication, fundamentally changes the potentials for human expression and connection. A fruitful discussion about copyright needs to consider how we got to this point, and where we can, must, and mustn’t go next.

 

Technology Giveth, and Technology Taketh Away.

Justice is a tricky thing, because it seems so obviously favorable and desirable when it’s on your side. The raw, unrestrained, unadulterated, unfiltered, concentrated justice is very difficult and very dangerous – much of the role of the legal and political process is to temper that justice with reason and mercy.

There is an important truth in this discussion which does not get mentioned often enough: through new possibilities in efficiency and distribution, technology made artists and entertainers wealthier and more famous than they could have been without those advances. There was once a time when an actor had to perform every single time the actor wanted to be paid. Now, the actor performs, and then enjoys the rewards of technology repeating that actor’s performance—hundreds of thousands of times, for millions of people. (Not to mention the role that technology plays in editing or reusing art!) No content creators complained when the technology allowed them to make more money for less work, and they aren’t worried about any potential benefits they now reap from increased exposure and dissemination of their products.**

Reaping benefits from digital technology is no justification for the violation of copyrights, of course—but it is important to see the broad picture of how technology has interacted with artistic creation and distribution, and consider at least three important facets of this realization. First and foremost, no one wants to argue that the technology is inherently bad. Anyone concerned about the protection of their works has profited from the efficiency of some technology – even the same technology that threatens to harm them.

Second, it raises questions about what “fairness” really means in this scenario: as we move into the future, how should we evaluate the benefits for creators against the costs to the audience? Who ought to benefit from the powers of digital technology, and what harms and benefits should be considered? There is a very big picture here, and evaluations of fairness will change as one’s values narrow or expand the scope of one’s view. A good discussion can only happen when the whole picture is really considered.

Third, the power of new technology makes us consider what is now possible: the separation of fame from fortune. As I have discussed, the internet allows someone to become famous without becoming wealthy. In ages past, the opportunity to gain fame usually required a lot of money, but now, propagating art does not require the same mountain of resources that it once did. As we move toward new structures to support art and entertainment, fame will become a prerequisite for wealth.

 

The Way Forward: The Return to Patronage.

IndieGoGo launched in 2008. Kickstarter launched in 2009. GoFundMe launched in 2010.  Patreon launched in 2013. It’s harder to demonstrate mathematically, but I will make the wild assertion that game pre-orders have been more heavily promoted and used in the last 10 years than in the preceding 30 years. (I would love to know if pre-orders are proving more successful than DLC or MicroTransactions as a business model.)

When people pay the creator up front, the creator is less concerned about piracy, because the money is already guaranteed. Presumably, the farmer cares less about the goose that has already filled a basket with golden eggs than the one that is expected to eventually fill a basket.

In the world of patronage, reputation (sub-categories: hype, public relations, image, trust) is everything. Creators rely on their history of quality and integrity to secure funding for their next project. Creators who fail to deliver quality products, or who demonstrate shady or unsavory business practices, will suffer for their failings in their future endeavors. Some artists and companies are already carving out their reputations, through repeated successes, unfortunate failures, public statements, and choices.

Navigating copyright in the conditions of Digital Patronage will be shaped by a different power dynamic than the familiar, one-to-many, gate-kept, closely-owned media structures of the 20th century. Clutching at straws of hard-line, traditional copyright enforcement will not secure survival. Thriving will require earning trust through performance. Creators must give more consideration to next year’s potential earnings than to next quarter’s bottom line. They must create a functional, interactive, cooperative, collaborative relationship with their audience. The successful creators of the 21st century will be those who treasure their reputation as they will rely on the good will of others.

… And reputation and good will are what Trademark Law is all about…

 

 

 

*“By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas” (p. 558) Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985)

 

** Those who manufactured physical products did not enjoy this same boon through the 20th century. Advances in 3d printing now give them a direct stake in the outcome of this transformation. There’s room for everyone at this party— I can’t wait for Physical Objects to show up with their partner, Patents!