“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.

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“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.

 

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.)

“Just A Game”: Why Should we take Video Games Seriously?

The acceptance of video games in society means the difference between the development of the medium and its cycle of growth and contribution, and the stagnation of the medium as irrelevant and its creative strangulation. It also means the difference in the image of a gamer: a 40 year old man-child living on Cheetos and pizza in his parent’s basement, playing 20 hours of WoW per day, OR any gender, of any ethnicity,  in any place,  with any occupation, with a healthy, balanced life.

1-Videogames need to be taken seriously because they are a vehicle for exploring alternatives to copyrights and traditional business models; they have a chance to move IP law from the 20th to the 21st century. Videogame journalist Jim Sterling asks who the “they” is that “needs” to “take video games seriously.”  Among other people, law makers ought to take video games as seriously as books and film—if not more so because of the special relationship video games have with emerging technologies. Part of what I find exciting about studying Intellectual Property law right now is that new technologies rarely come packaged with a complete set of clear law surrounding it. The law gets to be created along with the technology. Video games are one area (perhaps the single most consumer-intensive area) that highlights that point.

2- Anyone with money should take video games seriously- both for their sake and the gamers’. Taking the medium financially seriously enhances what it can achieve. If it’s “taken seriously,” investors will throw money at it (although capitalism can kill creativity, which is a concern on the other hand). The success of E-Sports shows investors and advertisers that there’s money to be made with video games beyond mere game sales, and that is one of the greatest hopes of the industry and the players.

3- Society at large has already noticed video games. Perhaps the issue is better framed as their “acceptance” of them than “taking them seriously.” If they are to survive and thrive, they must be seen as more than mere childish gimmicks or dangerous indoctrinations of violence. Videogame journalist Seth Schiesel once told an advertising conference (with both ad companies and game companies present): “If you keep thinking about your customer as only grunged-out young men, you will go down just like comic books in this country… you will always be marginalized and you will never be taken seriously.” There have been amazing graphic novels produced in the last 50 years. When works on par with Maus and Persopolis are in production, they’re kept well hidden from the public; only the “niche” audiences really know where to get them. Videogames will be worse-off if they are kept in a “niche.” Others rejecting the value of my hobby doesn’t make me enjoy it less, but it does steer the substance of my hobby down a path of lesser quality.