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.

 

 

Tyreen’s Mean Streams in Borderlands 3

People are going to make a lot of interpretations and analyses about the story of this game: A violent psychopath unites disparate pockets of violent psychopaths and becomes their entertainer and their leader.

Tyreen Calypso and her brother Troy are the biggest social media stars in a lawless and murder-filled galaxy, far, far away. In the setting of Borderlands, there are no laws and no authorities or institutions to enforce them.

Third party hosts and platforms have endured criticism over the last decade, either for their failures to stop odious behavior (especially when it yields revenue) or for their treatment of less profitable users. Does Borderlands 3 paint a grim picture of the downsides of a social media ecosystem without independent platforms? In doing so, does it clarify the role and responsibility of these platforms?

 

Stream Queen Tyreen

Before the player joins the story, Tyreen builds up a following of murderous bandits through her social media presence. By providing entertaining live streams and a sense of community, she creates a cult (“Children of the Vault,” or COV). The player is tasked with opposing Tyreen and stopping her quest for opening a mystical vault that will grant her the power to destroy all life in the galaxy. As her social media follower count grows, her resources to thwart the player and to achieve her goal also grow.

As a fictional character in a fictional setting, Tyreen’s social media ecosystem is very different from ours. One factor is obviously absent from Tyreen’s social media: a third-party hosting platform. Tyreen doesn’t stream on some fictional version of Twitch or Mixer, and she doesn’t upload videos to YouTube or Vine or Twitter. She apparently owns all of the hardware and does her own broadcasting.

 

Murder in the Safe Harbor

As the behavior of various influencers, personalities, content creators, streamers, and others who make use of recent accessible broadcast technology comes under scrutiny, the hosts and platforms for this technology also comes under scrutiny. Even though there has been substantial criticism of some of the most popular social media stars, there has also been a fraction of that criticism directed towards the platforms that allow the behavior to continue (and profit as it does).

In our current social media ecosystem, the platforms we know and use and sometimes love have their own concerns. Among other things, they have to worry about whether they can be in trouble for the things that people do while using their platform.

There is a law to help platforms. Title II of the DMCA, the Online Copyright Infringement Liability Limitation Act, found at 17 USC 512, allows platforms, hosts, or service providers to avoid getting in trouble (“safe harbor” protections) if they meet some requirements (such as taking down material that infringes copyright, not profiting from it, and banning repeat infringers).

Despite the criticism of these third party hosts, I still expect that any platform would be very quick to ban the account of Tyreen, who regularly broadcasts videos of murders and explicitly offers rewards to her followers for killing her enemy (the player). In addition to the very obvious criminal laws around murder, uploading content depicting illegal and/or obscene acts would certainly be against any Terms of Service agreement. According to law professor Daphne Keller, there isn’t currently a law that governs the obligations of a platform when a user uploads content depicting a crime. There was an effort in 1996 to better govern this kind of thing, but almost the entire title of an act was struck down by the Supreme Court on the assessment that it violated the 1st amendment.

In the US, social media professionals like Tyreen are often at a crossroads of several areas of law: copyright, trademark, consumer protection/ advertising, and telecommunications. These people need to build and maintain a fan base while abiding by FTC disclosure guidelines, working within the constraints of the structure established by the FCC, and avoiding infringing the copyrights and trademarks of other businesses and artists.

Tyreen doesn’t have to worry about any of that, of course…

 

Mad Moxxi is a Guerrilla Genius

Moxxi is a successful entrepreneur and business owner in her own right, and she recognizes that Tyreen cannot be stopped by the kinds of methods that we might use in the US. There is no third-party host that might be liable for Tyreen’s behavior, so there is no authority that can ban her or even respond to a notice-and-takedown request. Even if there was a Borderlands Trademark Office, Tyreen wouldn’t seek to protect her trademarks because that doesn’t align with her business strategy (she’s hoping to destroy the galaxy in the time it would take to get a trademark registered). And in a setting where guns and grenades are purchased from vending machines, there isn’t any kind of recognition of consumer protection law.

However, the telecommunications infrastructure is unregulated (like everything else), and Moxxi sees that as an opportunity. Maybe Moxxi read Lessig and applied her understanding of architecture as law. Moxxi assigns the player the task of finding and sabotaging the broadcasting devices throughout the galaxy. As the player goes to the terminals of these broadcast antennae and changes the channels, Tyreen is unable to reach her audience, leaving her effectively de-platformed (or “cancelled”).

I appreciate the (perhaps accidental) fact that accessing these transmitters requires repeated use of the platforming mechanic: It’s platforming to de-platform. **

Moxxi’s de-platforming strategy is effective, and it underscores the limited options available in the social media ecosystem of the story. It also shows what is possible in the extremes of lawlessness: the worst and most dangerous people are more difficult to stop, and the methods of stopping them are available to anyone, to be used against anyone. It’s a kind of Hobbsiean state-of-nature, but it turns out that both the lives and the livestreams are nasty, brutish, and short.

 

Conclusion

The absence of a third party hosting platform facilitates Tyreen’s ability to achieve her nefarious goals. She can broadcast what she wants and gets 100% of her revenue—that’s definitely an appealing concept to anyone looking to upload, post, or stream. But she’s also a threat to the existence of the galaxy, tries to kill you, personally, and the only way to de-platform her is literal warfare. The only way that a platform can provide a better world than this is if the platform takes effective measures to avoid such extreme scenarios. I don’t think we’ve seen any content creators aim for galactic destruction yet, but the rising generation is nothing if not ambitious. As social media becomes increasingly lucrative and legally complex, the next year might be a good time for platforms to carefully and seriously evaluate their business strategies, visions, goals, and values.

 

 

Next time, maybe I’ll evaluate whether Claptrap violated 17 USC 1201 by salvaging dead robots to build a new friend.

 

 

 

**Platforming

De-platforming is a term that means “to remove someone from a position of broadcasting, or to remove or severely diminish the ability of a person to broadcast.” It often implies denying a person access to an established host or platform, and most often for reasons related to behavior or the content of a message.

Incidentally, Borderlands 3 introduces a new playable mechanic to the game: the ability to climb designated ledges. As in the Assassin’s Creed series and the Mirror’s Edge series, this mechanic can go by a few names: parkour, free-running, free-climbing, mantling (the term I heard most at Gearbox press conferences for this game), or platforming (a more archaic and less accurate term, but the one which suits my purposes here).

Regulating The Internet? Not the Tubes Themselves…

If Net Neutrality is an argument about economics (and federal administrative law), Content Regulation is an argument about ethics and culture.

Net Neutrality is becoming an old hobby horse for a lot of people. It gets a lot more attention than most telecommunications policy issues. Even though questions about copper wire lines vs fiber optic cables actually affects more people, the internet is generally united by the fact of its own existence.  This is about regulation at the highest level, determining the equality and/or equity of access to content. No one online is indifferent to the internet—the only debate about net neutrality is which policies are best for the consumer and the telecommunications marketplace (or, in the United States, “telecommunications marketplace”).

But there is another layer of regulation that is quickly gaining attention. If Net Neutrality is about the form of the internet (its structure and broad organization), there is a growing need to consider questions about the regulation of the content of the internet. Over the years, the internet has been a vector for some amazingly good and amazingly bad actions by humans. The differences in the kind of regulatory concept at play are hard to understate. Rather than comparing it to different video games, I would compare it to the difference between a video game and a tabletop game.

1) I’ve always been fascinated by the dawn of the computer age. My childhood was the tail-end of a world in which homes did not have internet access. By the start of law school, everyone looked up famous cases and Latin phrases on Wikipedia during class (except for the people who did the reading the night before- they looked it up before class). I’ve often compared the early days of the internet to a kind of Wild West setting: a lawless frontier where fundamental questions about the mold of civilization were not yet settled. I thought most of those questions would be settled by 2015. We are not close to a consensus on rules. Indeed, we are still testing what types of rules are feasible or desirable.

Video games are literally made of rules: the computer code that constitutes the game itself. Tabletop games are made of… usually cardboard, or some kind of paper. (Occasionally, they have some plastic – or even metal if you got the collector’s edition.) This may sound like a silly or vacuous distinction, but it has important ramifications for the kinds of problems that can happen in a game, and the kinds of solutions that will (or won’t) be effective.

2) Lawlessness can lead to problems. This was probably not known until 2 decades of unfettered internet, but now we know. Free to do anything, people have tried very hard to do everything. Every app, platform, hosting site, game, or program online that gets big enough eventually starts to experience just about every problem type that humans can present. From intellectual property disputes to death threats, from fraud to manslaughter, the internet has been a way for people to discover criminal behaviors that past generations could never have the opportunity to access. The unethical choices of both multi-national companies and village simpletons are available for repeated viewing.

In a video game, the code can sometimes glitch and create problems for players. The code can also execute perfectly, but there may be complaints about the design of the game itself (a level being too difficult or some power or tactic being of an unsuitable level of power). With some difficulty, players can cheat by actually breaking the code, but more games can detect this (and especially so in professional e-sports settings). In a tabletop game, anyone can cheat, the rules may be wrongly applied (or not applied at all), and all manner of chaos can ensue. DDoSing an opponent during a game might be a little bit akin to literally flipping a table during a game of Monopoly or checkers,

3)  YouTube’s takedown system is already an example of an effort to regulate content, and it already shows some of the challenges with instituting a content regulation system: people will find ways to game that system. Any system of regulation will have two negative outcomes: it will penalize the innocent, and it will be dodged by the guilty. The most you can hope for is that it will protect most of the innocent and it will penalize most of the guilty. The US justice system, even when working as intended, will sometimes produce undesirable results: a guilty person will go free, and an innocent person will go to prison. The hope is that this happens very infrequently.

The most common reaction to bad behavior online has been for authoritative parties to do nothing. The most common reaction by authoritative parties to actually do something has been to ban the bad actor. The most common reaction to this ban is to come back with a different username or account.

In video games, cheaters are often banned (if they are making the game worse for other players). But in table top games, people who ruin the game are just not invited back. No one will play with them anymore. People might hang out with someone less if they behaved in a wildly unacceptable way during a casual weekend game of Risk or Werewolf. In a video game, bad behavior has very limited consequences. In a tabletop game, bad behavior can have lots of meaningful implications.

 

4) What would it look like to regular content? Getting it wrong is easy — which is the primary reason that’s what’s going to continue to happen. Whether trying to penalize criminals or regulate behavior online, creating a fair and ethical system that consistently produces more good results than bad ones is difficult. One problem is that incentives are at odds: most platforms want to turn a profit, and if bad behavior yields a net gain, the platform needs a solution that will actually make more money than the current bad behavior (plus the cost of implementing the remedy). Another problem is that platforms tend to think of regulating their content the way that most Americans think about regulations: an appointed governing authority (or combination of authorities).

 

Conclusion

You can’t make people be good, but you can keep deleting all of their manifestations of their behavior on the internet: You can suspend or ban accounts, and eventually IP addresses. You can automatically censor strings of characters, and continually update the list of banned strings. These will continue to be the solutions offered, and they will continue to mostly fail while they almost half-succeed.

Over a decade ago, Lawerence Lessig asserted that laws are of four types: market, cultural, legal, and architectural. It turns out that enforcing the legal type of law in a digital space is very difficult. But cultural norms practically enforce themselves. And architectural laws are always already enforced. Market rules can be fickle, but persuasive. A lot of efforts to regulate content will fail because they will hinge on the concepts of legal enforcement.

The lack of rules and regulations is what made the internet a place where amazing things could happen. Without rules to stop imagination and creativity, people created art, solved problems, built positive communities, and enriched themselves and each other. In that same landscape: without rules to stop hate and anger, people created harassment and bullying, invaded privacy, ruined lives, occasionally killed people, and destroyed a lot of good in the world. Lawless frontiers are the best opportunity for the most beautiful, important, and inspiring expressions of humanity. They are also the best opportunities for the most despicable, dangerous, and damaging expressions of humanity. What the internet becomes will be decided—has always been decided—by what people bring to it.

“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.

“Come At Me, Copyright Bro” –Google Legal Team, 2015

Making Trades

Most competitive games involve the concept of trading. The idea of a trade is to risk some of your resources in order to deprive your opponent of some of their resources. This is part of a smaller skirmish which is only part of the overall game. The goal is to lose less than your opponent, thus putting you ahead. For most games, successful trades require a proficiency that comes with study and experience. It requires knowing both what you and your opponent are capable of and thereby knowing what will happen. The best players are not surprised by the outcomes of their choices; they know before they act how the exchange will unfold. When chess masters think about future moves, they are performing this kind of trading calculus.

Attorneys make the same kind of considerations. Particularly, those who litigate (though many attorneys don’t) use their knowledge and experience to predict the outcomes of various legal strategies. For a master attorney, the outcomes of legal choices are as unsurprising as the outcome of a chess move is for a chess master. Good attorneys don’t pick legal battles wildly or whimsically. They know in advance what the risks are. They know the possibilities and probabilities, the parameters and requirements.

I have no doubt that YouTube’s new fair use policy comes to us after many, many hours of careful thought by many legal experts. It is bold and brazen, but calculated and deliberate. It is not, strictly speaking, a defiance of a federal law. But this new policy does cast aside some of the protections offered by the law.

Picking A Skirmish

The Digital Millennium Copyright Act (DMCA) covers a wide range of topics, including questions of copyright infringement on the internet. To incentivize websites to host material, as well as to incentivize their cooperation with the policing of copyright infringement, the DMCA offers “Safe Harbor” protections to those websites that promptly take down those materials suspected or accused of copyright infringement. The system is called “notice and take down”: When someone gives a website notice about infringing material, the website simply needs to take it down. This is why so many US-based companies are quick to take down content when a copyright claim is filed: the compliance of the host protects them from a lawsuit for the copyright infringement.

For many years, YouTube took advantage of the protections offered by this law. When a copyright infringement claim was filed, YouTube promptly removed the content in question. It could often be uploaded again, with the content uploader asserting that the video did not infringe a copyright. The dispute would then be between the user and the [self-proclaimed] content owner, Google having excused (or protected) itself.

Google’s new policy is to reject some copyright complaints in certain cases. Those cases are those in which Google thinks that the video does not infringe copyright and is protected by the fair use doctrine. What sounds most impressive is that Google will even defend legal claims against those videos in court for up to 1 million dollars in legal costs. That isn’t actually as impressive as it sounds, because Google has left the Safe Harbor protections when it refuses to remove disputed content. In this act of defiance, Google is on the hook for copyright infringement as though they had been the ones to upload the video.*

The DMCA does not give license to content hosts to make judgments about fair use. That remains the purview of the courts. Google is relying on their legal team’s expertise to predict how a court would rule regarding a video. If they are wrong in this prediction, they could lose rather badly.

Uncertain Factors, Unpredictable Trades

The fair use doctrine is not extremely well-developed. American law schools require all students to pass certain courses, and many of these core courses** feature cases that are over 100 years old. One of the most famous cases in Contract Law is from 1854 (and from an English court, no less). The most famous cases on Fair Use are from the 1980s and 1990s, and they don’t give a thorough, detailed explication of this legal concept. They only apply fair use to some specific sets of facts.

Fair use is far less certain a legal doctrine than the two-hundred (or seven-hundred) year old precepts that guide areas of law such as property, tort, or contract. This makes it harder to predict the outcomes of taking some cases to court. There are no masters for making “trades” with fair use in court. It hasn’t gone to court enough times with different cases for anyone to know exactly what it’s capable of.

This is an incredibly exciting challenge that Google has thrown down. They have stepped out of their sanctuary. They have taken up a weapon that is uncertain and largely untested. They are risking substantial damage if they lose. And they really didn’t have to do any of it. They could have stayed safe and sound, risk-free, and followed the pattern of notice and take down. They didn’t need to change anything. I can only guess what might motivate them to make the world a better place for others. Perhaps Google decided that if they are going to control the world, they want it to be a world more worthy of their control.

(Or maybe Google is throwing their weight behind fair use now that it is it the next defense for Java APIs after a ruling earlier this year that Oracle can copyright the structure, sequence, and organization of an API.)

 

*A little over-simplified to avoid a discussion about the difference between joint and several liability.

**Copyright law is not a required course, and isn’t always even offered as a full subject by itself—making fair use a small part of a lesser-known area of law.