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.


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!


[Part 1] The Wind Beneath the Wings of Liberty: “For Universe News Network, I’m Kate Lockwell.”

One of my favorite options throughout the Terran campaign was the interaction with the UNN news reports, and the obvious government control and bias against the heroes. What I thought was a fun gimmick took center stage in the plot when the protagonist rebels discovered incriminating recordings of the corrupt Emperor. The heroes chose to hack into the broadcast network and disseminate the incriminating statements, thus turning the “hearts and minds” of the people against the corrupt government. Advancing the revolution was a matter of controlling the infrastructure (in this case, the media infrastructure). For Raynor’s Raiders, power was about controlling information through existing systems, and was worth “a hundred battles.”

In more broad terms, power came from controlling the resources of information and the means of distributing that information. Jim Raynor’s observations that the government had used the media against his cause for years, and his fear that the government would only spin the incident and regain control, show the power of the media. While this is a largely a statement about media as a special kind of access to the power of controlling a very large population, it is also a commentary on the strategic value of controlling any element of infrastructure. For the Rebellion against Mengk’s Confederacy, control over UNN was as important as any military base or research facility or arms manufacturing plant.

It is easy to see the strategic value in controlling existing infrastructures and making them work for your own cause—indeed, there may seem to be no reasonable alternative. However, the Zerg’s interaction with existing differs a little from the Terran method.

“Realistic” Simulations: Foreboding in Alito’s Concurrence in Brown v. Merch.?

In June of 2011, the US Supreme Court struck down a California law that wanted to prevent the sale of violent or “adult” videogames to children who did not have parental permission. Scalia wrote the majority opinion, and for him it was a mostly clear-cut First Amendment case: Videogames count as the kind of protected speech that is covered by the free speech clause, and the California law gets in the way of that free speech. Straightforward. (The two dissenters wrote separately: Thomas took up the issue of parents, minors, and law, while Breyer took issue with an apparent incongruence in curtailing the sale of pornographic magazines and films but not of potentially pornographic videogames.)

I found the concurrence by Alito (joined by Roberts) particularly interesting. Alito still thought the law should be struck down, but seemed less sure than Scalia that video games were just another medium of expression, just like books or motion pictures. After playing some violent videogames, Alito writes, “[s]ome amici who support respondents foresee the day when “ ‘virtual-reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel the splatting blood from the blown-off head’ ” of a victim.” Alito goes on to criticize Scalia’s opinion for failing to recognize differences of interaction between video games and other media.

As a Justice of the Supreme Court, Alito’s role is to look to arguments and evidence as presented. I am not so restricted. I propose three different lenses for considering Alito’s concern to evaluate whether it is justified: psychology, phenomenology, and Aristotelian catharsis.

1) Psychology. By psychology, I mean both clinical analytic psychology and something closer to neuroscience. Given the right scientific tools, the experiment is an easy one to conduct: subjects are exposed to a book, a movie, a platformed video game, and an immersive virtual-reality simulation each depicting the same act of violence. The brain of the subject is monitored (using MRI or whatever is better by the time such an experiment occurs) and the brain activity for each stimula is compared. This would, at least, determine whether there is a difference in the way the brain interacts with different media. Psychologists would also be able to observe and interview subjects to provide another means of evaluating the effects of each medium.

2) Phenomenology. Here, I mean “metaphysics through the filter of experience.” The ardent scientist might derisively call this approach “science without the hassle of experimentation.” While I think philosophy is no substitute for science, I also think science is no substitute for philosophy, and the two ought to go together as they did before the 18th (or 17th) century. The core of this approach is determining the distinctions between experience, imagination, imagined experience, and experienced imagination. I think there is a need for considerations from the field of aesthetics in determining just how we so casually mentally suspended reality to allow ourselves to be “drawn into” books, shows, plays, and now videogames. Until science can probe the brain effectively, it is here that we ask questions like “If movies and videogames become visually indistinguishable from reality, will the two media also be equally experiential?” And I think most phenomenologists (particularly Merleu-Ponty) answer “No.”

3) Catharsis. Until my last year of college, I did not know that the ancient Greeks performed their plays as part of very big festivals, a core part of which was tremendous mourning and wailing and weeping in response to the tragedy presented before them. Knowing this gives context to why Plato despises poets and playwrights, and why Aristotle thinks this is even a subject worth discussion. There are two understandings of what Aristotle meant by Catharsis in this context. One school holds that he thought it was important to let loose a torrent of emotion in the way the Greeks culturally did, and so cleanse their emotions. A different approach is that Aristotle believed emotions were to be expressed in the right way and for the right reason, and the expression of sorrow, as a community, at a tragic story, is an appropriate expression of emotion. We might ask whether hyper-real videogames are a positive outlet of catharsis, and it may be that the answer turns on the sort of videogame one plays.

Baudrillard famously addressed issues of simulation in the post-modern context. He probably argued that as we understand reality in terms of simulation, our reality becomes the simulation, and the simulation becomes our reality. For him, this was a way of understand post-modern society, politics, economics, and culture. A version of his reasoning might one day become a way of understanding our relationship with technology we used to call videogames.

Do Gender Theory and Programing Languages Belong in the Same Conversation?

It’s understandable that someone might find it odd that I would talk about human happiness, language, video games, sociology, ethics, and logic in the same blog (given that blogs tend to have a particular subject of focus.) I think part of my focus in this blog requires laying out the landscape of both the technology and the sociological substance that fills 21st century media. A great example is the E3 trailer for Hitman: Absolution that stirred a great deal of controversy. A careful and thoughtful evaluation of that trailer can’t be done without considerations of gender in the media, feminism, and film/art criticism. Criticizing video games requires much more than merely knowing about video games. This is because video games are a medium, that is, a container into which representations of society are deposited. To understand video games without understanding culture is to understand a bowl of stuff without understanding the stuff.

I do not see social issues as entirely distinct from technological issues. In the context of civilization, I do not see art as entirely distinct from science. I was drawn to study intellectual property and entertainment law because it strikes me as a valuable intersection of all of the approaches and methods and disciplines that we try to keep in separate buildings on college campuses. Although this blog focuses primarily on videogames and law, my inclusion of other subjects is a deliberate attempt to synthesize the range of issues and topics that I think ought to be included in a conversation on intellectual property and entertainment law for a full, robust context.

It might seem that this blog is about a wide range of unrelated topics. My hope is to try to tie these topics together to show that they’re all part of the same conversation—and, in fact, that neglecting any of these topics leaves the conversation worse off.

Is Post Modernism a Cynical Reaction to Shattered Dreams?

Post-Modernism takes as axiomatic the death of the grand narrative. Prior to the 20th century, the story goes, humans lived under “grand narratives” about God, justice, truth, morality, power structures, nature, assurances about eventual rightness, and so forth.  At the start of the 21st century, few[er] people in the Western world take governments, economies, corporate leaders, monetary systems, treaties, political speeches, religious belief, natural law, etc. seriously or literally. I wonder: is PoMo an attempt to describe how Western Civilization moved from the former to the latter?

PoMo is often characterized as a radical rejection of the fundamentals of metaphysics and epistemology, to the point of a total disengagement from the reality of the chairs in which we sit. Thus understood, it is rightly mocked as both pretentious and worthless. However, it may be that this school of thought is mean to describe a loss of faith in power and authority and a rejection of social institutions. The more extreme, hard PoMo might be about not thinking that the objects in a room are “real,” either because words have no meaning or objects are constructs of our minds; the softer approach is to see PoMo as asserting that there is no “justice” in a law because a legislative (or judicial, or executive) body may be subject to error or corruption (from selfishness, lobbying, or outright bribery and graft), or that there is no settled “truth” in a society which learns through sources which often conflict. It is undoubtly easier to swallow that the “objects” which may not be “real” are the objects of our social world, not of our physical world. (Yes, I’m oversimplifying, but it’s hard to keep an analysis of Post Modernism down to approx. 500 words.)

Baseball might be my least favorite sport (at least cricket has funny Anglophonic accents), but there’s a useful analogy to tie together legal realism and this “soft PoMo” idea in the act of a baseball umpire calling balls and strikes. One umpire, when asked about whether a pitch was a ball or a strike, boldly asserted, “They ain’t nothin’ til I calls ‘em.” Some schools of legal theory feel there is a fact about laws and justice, and it is the work of judges and lawyers to find that fact—just as scientists experiment on objects to find their mass, density, specific heat, and other qualities. Through the 20th century, a competing school of thought posited that there was no fact about law (or maybe even Justice, abstractly), and so there was no such science-like experimentation to be done. On this view, the law is like calling balls and strikes: and the law is nothing until it has been judged (and even then, the judgment may be judged).

This view of PoMo makes the movement sound more disaffected and bitter than radical and delusional. Perhaps the great manifesto of this view is President Carter’s “Crisis of Confidence” speech. (text: http://www.pbs.org/wgbh/americanexperience/features/primary-resources/carter-crisis/ )His description of a loss of hope and trust in government, both in policies and persons, (and I would extend that to at least news media), could be read as a eulogy (or the Last Rites?) for thee grand narratives of authority, justice, and progress.

So, what does this mean for IP law, specifically? For one thing, it bears on whether patents and copyrights are matters of doing just and right things for inventors and authors, or whether they are merely functional tools to serve consumers. Further along this line, accepting PoMo may make it easier to accept media piracy because there is (on this view) no absolute truth about the wrongfulness of copyright violation. But it might shed light on why we might be inclined to reject such absolute truths: the story of America in the 20th century might be the story of 4 generations learning not to trust authority figures and not to believe in the ideals and morals born under the Grand Narratives of ages past.

The Subjective and the Objective: A Difficulty of Censoring Art.

I usually use these two terms to distinguish circumstances about which one may reasonably draw a variety of different, even conflicting conclusions (subjective) from circumstances about which there is a significant limit on the number or types of conclusions one can make. The easiest example may be a preference about food or art contrasted with a mathematical equation or the mass of an object. The first sorts of things can be disputed without a “right” or “wrong” answer (generally). The second category of things really can’t accommodate mutually exclusive conclusions; an object can only have one mass, two numbers can only sum to a single value.

The question does not seem to be whether these categories exist (though that may be disputed), but rather which types of circumstances fall into which categories. Can an explanation of a concept be objectively good or bad, or is the good explanation the one that conveys meaning and results in understanding? (Can someone be objectively good or bad at teaching?)

Another issue arises from this categorical dichotomy: how can we deal normatively with the subjective? It is easy enough to enforce objective laws and reward objectively positive performance—but how can we pass judgment on the subjective? The more circumstances we consider subjective, the less our tools of the modern, industrial era seem equipped to handle the world.

These questions apply readily to most issues related to art. It is often said that “art is subjective,” yet there are some things we are more comfortable considering art than others (a still life by a Dutch master vs. a pile of dog poo on a photo of a pop star). Further normative questions arise for art when we become concerned about untoward implications of the medium: Do violent movies, music, and games make us more violent as a culture? Although it is easy enough to make to the judgment to the effect that “a violent society is bad,” it is more of a challenge to say “this particular art ought not be published because of its possible results.” While issues of violence and suffering seem to be almost entirely objectively bad (except perhaps to a sadist), art remains subjective even while it depicts violence and suffering. Many focus on the question of whether such depictions cause mirroring realities, but I think there is also a question of what the depiction itself says. Art is a sort of text, and texts (may or may not) have intentions, goals, and meaning. The trend towards seeing more of the world in increasingly subjective ways has freed art in one way: to give it more flexibility and fluidity, particularly in interpretation. However, it may have restricted art in another way: by making it less clear what (if anything) a work means, it is less clear that it ought not to be censored.

The more subjective art is, the greater the danger of legitimate arguments for its censorship. The more objective art is the less flexible and fluid its interpretations become, perhaps undermining a core purpose of its existence.