“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.

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.

Legal and Moral Rights in IP

Europe emphasizes the moral rights of the author, but the US downplays them. The US is more inclined to separate law and morality when possible, perhaps in an effort to make sense of one of our greatest shames: if law and morality are separate, we can make sense of the claim “Slavery is universally and always was wrong, but it was legal at one point though it is illegal now.” Whatever the cause, we seem to like the idea of law and morality as distinct (it might also help us be more comfortable with issues in abortion, death penalty, gay rights, etc. etc. where people have strong views about the morality of an issue but need to reconcile those feelings with constitutionally recognized procedural and substantive rights). In my area, this means that intellectual property is not more special or important than any other chunk of property one might own.

My generation has struggled, at least since the days of Napster, to really accept that “Downloading media [without paying] is just like stealing it off the shelf.” Many of us would never consider shoplifting, but felt completely morally comfortable making a lot of use of a lot of P2P sharing. How can we explain the phenomenon of a generation that would never steal the physical, but cannot comprehend the notion of stealing the intangible?

Part of the answer has to do with how we understand the digital world. Perhaps, for many of us, Cyberspace is the frontier of the 21st century. Like the discoverers of new lands throughout history, as soon as we get to a new place we start claiming whatever is there. Ownership only resonates with us if someone is apparently going to enforce their ownership. We don’t wander into others’ houses and use their stuff because they’ll get mad at us (and take some kind of action, legal or otherwise, against us)! But we don’t feel nearly so bad wandering into abandoned places (except for safety concerns of dilapidated buildings) and breaking things, because although someone may own the facility, no one will enforce their ownership against us.

What does this have to do with moral rights of owners? Moral rights do not need enforcement to be wrong. If it is immoral to kill someone, it is immoral whether or not a killer is caught or punished. Some hold the view that “Laws are threats backed by force,” that is, that laws are largely dependent on [potential] enforcement. Perhaps a contributing factor for why my generation continually rejects the feeling that digital piracy is equivalent to physical theft is the feeling of unenforceability, which undermines its legal force in a society in which law and morality are distanced.

However, this entire view might face a fatal problem in admitting that Europe has substantial amounts of piracy despite the legal recognition of the moral rights of artists and authors. Perhaps the European view of morality is substantially different in ways that make my thoughts here irrelevant.

Viewing People as Isolated in the Age of Interconnection

One of the prevailing views of ownership is “not a contract between myself and my property, but between myself and the world ABOUT my property.” The point of owning something is for everyone else to respect my relationship with a thing- be it a pen, a house, or trademark. Why, then, do we frequently fail to accept that piracy is a wanton and willful disrespect of an artist’s relationship with her property?

Perhaps we misunderstand property and ownership at the outset. As I have said before, a common rejection of copyright is that “copying is not theft, because it does not deprive the owner of their thing.” This apparently rests on the notion that to own something has weight insofar as it means I can have it. The competing view is that ownership has weight insofar as no one else can have what I have. This is the difference between understanding property as a contract with a widget vs. understanding property as a contract with the world about my widget.

Fundamentally, I trace this misunderstanding to a generation that internalized all too well the elementary school maxim to mind one’s own business. I think it likely that we became too adept at seeing the world in terms of single individuals, isolated and independent, alone in the world. Seeing the world like this, it makes more sense that an act cannot be wrong if it does not directly disturb others, or does not directly interact with them. I spoke to the broad implications of this kind of view in my post “A Head in the Sand is not an Ideal Source of Rights.” Applied here, attempting to see property claims as irrelevant to anyone neither an owner nor a piece of property can cause confusion over why copying might infringe on someone’s ownership. I think our views of piracy and copyright would be rather different if our relationship (or our view of our relationship) with the artist were closer (or felt closer). I wonder: are devoted fans of a band, game studio, actor, etc. less likely to pirate the works of their idols? If so, perhaps a good way to enforce copyright is to build a strong sense of community so that consumers feel that they are helping themselves and each other by abiding copyright, rather than taking free rides through piracy.