Pluralistic: 30 Jul 2021

pluralist
#1

Originally published at: Pluralistic: 30 Jul 2021 – Pluralistic: Daily links from Cory Doctorow


Today's links


Hello Kitty 40k mashup - an image depicting mecha Hello Kitties amid warring armies of power-armored Sanrio characters.

Games Workshop declares war on its customers (again) (permalink)

There's a difference between a con-artist and a grifter. A con-artist is just a gabby mugger, and when they vanish with your money, you know you've been robbed.

A grifter, on the other hand, is someone who can work the law to declare your stuff to be their stuff, which makes you a lawless cur because your pockets are stuffed full of their money and merely handing it over is the least you can do to make up for your sin.

IP trolls are grifters, not con artists, and that's by design, a feature of the construction of copyright and trademark law.

Progressives may rail at the term "IP" for its imprecision, but truly, it has a very precise meaning: "'IP' is any law that lets me control the conduct of my customers, competitors and critics, such that they must arrange their affairs to my benefit."

https://locusmag.com/2020/09/cory-doctorow-ip/

In that regard, it is a perfect grifter's tool – a way to put you on the wrong side of the line for simply living your life in the way that works best for you, not the grifter.

Now, copyright and trademark's framers were alive to the possibility that they might become this kind of weapon, and they wrote limitations and exceptions into each doctrine that were meant to safeguard the public's right to free speech and free action.

But those limitations and exceptions are weirdly self-eviscerating. Both trademark and copyright's limitations assume that they aren't being weaponized by immoral sociopaths. Both collapse if they are.

Take copyright. Copyright has a suite of limitations and exceptions under various global legal systems, including US law. US law also contains a specific set of exceptions colloquially called "fair use," a subject of much mystification for lay people.

Under fair use, someone accused of copyright infringement can ask a judge to find that their use of someone else's copyrighted work is permissible because to deny it would be socially harmful.

The fair use law sets out four factors that judges MAY consider when considering such a claim. Note that these four factors are neither comprehensive (judges can weigh other factors), nor dispositive (failing to satisfy a factor doesn't disqualify your use from being fair).

If that sounds confusing to you, don't worry. It is confusing. As the lawyers say, "fair use is fact-intensive."

The specifics of a use really matter: who's making the use, what they're using, why they're using it, how they use it, and how much they use.

That's why anyone who claims that "X is never fair use" (for example, commercial fanfic) are full of shit – as are people who say "X is always fair use").

Commercial fanfic absolutely can be fair use. No less a body than the Supreme Court says so:

https://en.wikipedia.org/wiki/The_Wind_Done_Gone

Despite all this ambiguity and nuance, IP grifters who want to force other people to arrange their affairs to their own benefit are laser focused on the four factors, reasoning correctly that if they show a judge that the factors favor them, they're more likely to prevail.

Half of the four factors are out of the grifter's reach. As a rightsholder, you can't control "the purpose and character of the use," or "the amount and substantiality of the portion used."

But the other two factors are more readily within the IP wielder's remit. As someone seeking control a work, you can frame "to the nature of the copyrighted work" by talking up how much creativity and originality went into it, which judges will weigh in your favor.

More importantly – and disturbingly – is the way that an IP holder can influence the fourth factor: "the effect of the use upon the potential market for or value of the copyrighted work."

Think about that fourth factor for a moment here: if my use of your work doesn't cost you any money, then it's more likely that my use is fair.

The corollary: if you can bully some people into paying for something they've always gotten for free, then you can claim that the people who refuse to pay are ripping you off – that there is a "market" for the use, and that their failure to pay weakens that market.

This is effectively what's happened to music sampling. Seminal albums like "It Takes a Nation of Millions to Hold Us Back" were produced with thousands of uncleared samples – but at the time, no one was clearing samples.

https://memex.craphound.com/2011/07/08/creative-license-how-the-hell-did-sampling-get-so-screwed-up-and-what-the-hell-do-we-do-about-it/

Had the rightsholders to those samples dragged Public Enemy into court, they wouldn't have had the fourth factor on their side. No one was paying for samples, so a failure to pay for samples had no "effect on the potential market for the copyrighted work."

However, in the 33 years since Nation of Millions dropped, paying to license samples has become common practice – and the mere existence of paid samples makes not paying for samples more legally risky.

So say a rightsholder decided to aggressively license simple quotations – as the Associated Press did in 2008, when it offered to sell you a license to a 5-word quotation for a mere $12.50.

http://nielsenhayden.com/makinglight/archives/010341.html

All other things being equal, a short quotation from a news article is likely to be fair use. But if the AP managed to terrorize enough bloggers into coughing up $12.50 for a 5-word quote, it could create a market for 5-word quotations.

That market would change the fair use argument for people who don't pay – yes, they're making a transformative, critical use, but they're also undermining the market for the copyright, and a judge might find this change tips the scales away from fair use.

Even more importantly, the additional uncertainty might stampede more people into paying $12.50 for a 5-word quote rather than risk a $250,000 statutory damages award for copyright infringement.

The more people who pay for 5-word quotes, the sturdier the market becomes and the riskier it is to rely upon fair use.

The fourth factor looks like an escape valve for uses that harm no one.

But it actually rewards to bullies who intimidate others out of money they don't actually owe – until they do.

Trademark has a similar gotcha. Trademark is very different from copyright. Fundamentally, trademark is about protecting buyers, not sellers. Trademark meant to help buyers avoid being tricked into buying an inferior product because it was deceptively named or styled.

If you buy a can of Coke, you want the true Black Water of American Imperialism, not an inferior brand of dilute battery-acid.

But if your Coke turns out to be a fake, you might shrug off the harm or balk at the expense of punishing the fast operator who mis-sold you.

So trademark empowers Coke – and other vendors – to punish third parties who trick their customers, acting as their customers' champions. Trademark doesn't exist to prevent Coke from losing money to a rival – it exists to help Coke drinkers get what they pay for.

Trademarks can be registered with the USPTO, who nominally weigh trademark applications to ensure that they're distinctive and original. Practically, examiners are busy, sometimes careless, and ideologically inclined to grant, not deny, claims.

https://memex.craphound.com/2018/06/14/son-of-cocky-a-writer-is-trying-to-trademark-dragon-slayer-for-fantasy-novels/

But you don't have to register a trademark to assert it. You can threaten or pursue legal action on the grounds that someone has violated an unregistered trademark, which is any distinctive graphic or phrase that is associated with your product.

Registered or unregistered, trademark enforcement primarily comes down to whether a "naive consumer" would be mislead by someone else's use of a mark. That is, when you bought a Coke-branded sack of chicken feet, did you think it was blessed by the Coca-Cola company?

If there's no likelihood of confusion, trademark holders struggle to enforce their trademarks.

This standard seems reasonable, but, like the fourth factor in fair use, it has a sting in its tail.

One of the ways you can induce confusion in the public is to gain a reputation for being a litigious bully. Say Coke is known far and wide for clobbering anyone that uses its trademarks, no matter how trivial the use and no matter how bad it made them look.

If Coke is truly notorious for its zero-tolerance policy, that will lead to a widespread public understanding that every time you see Coke's marks, the use was blessed by a Coke lawyer – meaning a use that might not otherwise be found to be confusing can be made confusing.

"If that was any other company's trademark, I'd assume that they had nothing to do with it – but since I know Coke has an army of baby-eating attack lawyers who destroy anyone who uses a mark without permission, that must be an authorized use."

Like fair use's fourth factor, trademark's confusion standard rewards the most vicious and uncaring businesspeople with new rights that their more reasonable competitors do not enjoy. IP selects for sociopathy.

Now, IP – in the most sinister sense of the phrase – has pervaded every industry, but the contradictions of IP are felt most keenly in its spawning grounds: the culture industry.

Culture is in tension with the control of ideas, because culture is the spread of ideas.

Creators (and execs) are vulnerable to the pirate/admiral fallacy: "When I take from my forebears, that's legitimate artistic progress. When my successors do it to me, it's theft."

This pathology, combined with ready-to-hand IP weapons, incentivizes all manner of wickedness. Remember when Marvel and DC teamed up in a bid to trademark the word "super-hero" so that no one else would be allowed to use it?

https://memex.craphound.com/2006/03/18/marvel-comics-stealing-our-language/

These perverse incentives are made tragic by the inherently participatory nature of culture.

It's not merely that Marvel and DC wanted to steal the word "super-hero" right out of our mouths.

It's that super-heroes are culturally important because of how we take and remix them in our lives. Marvel went on to use the law to stop us from pretending to be superheroes online, something Casey Fiesler called "Pretending Without a License."

https://www.researchgate.net/publication/277598023_Pretending_Without_a_License_Intellectual_Property_and_Gender_Implications_in_Online_Games

Which brings me, at last, to Games Workshop, a company that has consistently led the IP bully pack, indiscriminately terrorizing the Warhammer 40k fans who made it a massive commercial success.

Warhammer is a strategy/roleplaying game that is played with miniature creatures that players buy, modify and paint. If you're not familiar with all this, maybe this sounds a bit like toy soldiers.

It's a lot more interesting – not just because of the game rules or lore, but because of the incredibly, unbelievable, jaw-dropping virtuosity of Warhammer players when they paint and style those miniatures.

There's a reason I look forward to Saturday morning's weekly linkdump from Jonathan Struan of the week's best Warhammer and other RPG miniatures:

https://www.superpunch.net/search?q=warhammer&max-results=20&by-date=true

and why I follow incredible painters like Aurelie Schick:

https://www.flickr.com/photos/110246635@N06

Warhammer is intrinsically participatory, co-creative and active – it's not media you consume, it's media you produce.

Games Workshop has become fantastically rich off of this…and they hate it, and they always have.

For years they've pursued fans for producing their own fan-made supplements and additions to the game:

https://www.lumendatabase.org/notices/99301

The more Warhammer players complained about the indiscriminate censorship of their fan media, the harder GW cracked down on them, wiping out whole genres of creative work:

https://www.boardgamegeek.com/geeklist/48933/games-workshop-files-purge-09

GW claimed it was only defending its rights, the grifter's signature move, making you a crook for having the audacity not to put their shareholders' interests ahead of your own.

Then Games Workshop claimed a trademark on "space marine," a generic term that had been widely used in science fiction for decades, including, notably, in Heinlein's classic "Starship Troopers" (1959).

https://web.archive.org/web/20130207002144/http://mcahogarth.org/?p=10593

They didn't just go after RPGs that used the phrase – they used trademark claims to remove novels from Amazon for having the phrase in their titles.

"Space marine" is a generic phrase, but GW was betting if they were sufficiently, spectacularly brutal in their enforcement, they could create a proprietary interest: "Now, I know GW destroys anyone who uses 'space marine,' so this 'space marine' must be endorsed by GW."

GW just launched a new set of terms of service, including: "individuals must not create fan films or animations based on our settings and characters. These are only to be created under licence from Games Workshop."

https://www.games-workshop.com/en-WW/Intellectual-Property-Guidelines

Now, this isn't how copyright works. There are many ways in which a fan film or animation could be fair use, no matter whether GW forbids or permits their production. But this isn't mere overreach: it's a direct play against the fourth factor in fair use.

If GW can establish that all animations and vids are produced under paid license, then any fanvid that doesn't pay for a license has a weaker fair use case, because the fourth factor protects existing licensing markets.

Indeed, as Rob Beschizza points out on Boing Boing, GW timed the terms of service change to coincide with the announcement that they're launching a subscription service including "cartoons, in-house hobby videos, access to a vault of ebooks and mags."

https://www.pcgamer.com/now-even-warhammer-has-a-subscription-service/

This is bullying with a business-model, in other words. Fans have figured out how to have fun with each other for free, and GW wants them to stop and pay the company for its in-house version of that fun.

Warhammer creators are demoralized and disheartened. The creator of the hugely successful Oculus Imperia Youtube series posted a heart-rending message of surrender.

https://twitter.com/OculusImperia/status/1421136444437970949

Oculus Imperia also edits "If The Emperor Had A Text To Speech Device," (TTS) another beloved Warhammer fan series. Alfabusa from TTS posted his own absolutely demoralized goodbye to his work.

https://www.youtube.com/watch?v=OXljeaktnDA

Ironically, both channels would have a stronger fair use case if they mocked and criticized Warhammer, rather than celebrating it, as fair use tips favorably towards critical uses.

The fact is, they love their hobby and its community and they want to improve it, not tear it down.

Neither wants to get dragged into a brutal copyright case against a deep-pocketed corporation. Even people with great fair use cases balk at that:

https://waxy.org/2011/06/kind_of_screwed/

Now, some people might be thinking, what's the big deal? Why don't these creators just make up their own stories instead of remixing the ones that come from Games Workshop?

Those people are assholes.

All stories are fanfic of some kind or another. Every mystery novel is a remix of Poe's Murders In the Rue Morgue. Games Workshop's stories are the thrice-brewed teabags of many sf writers (remember "space marines?").

Tolkien straight up ripped off his characters from the 1000-year-old Norse poem "Elder Edda," which features dwarves named "Thorin, Balin, Dwalin, Fili, Kili, Oin, Gloin, Nori, Dori, Ori, Bifur, Bofur, and Bombur."

https://musingsofatolkienist.blogspot.com/2015/07/hobbit-origins-catalog-of-dwarves.html

Culture is made of other culture.

GW made something wonderful with Warhammer – by plundering the stories that preceded it.

The sin isn't in the taking, it's in the pretense that it never happened, and the vicious grifting that punishes anyone who does unto GW as they did unto everyone else.


This day in history (permalink)

#15yrsago Melbourne mall defends its photons from terrorists https://www.theage.com.au/national/picture-this-city-puts-photo-ban-in-the-frame-20060730-ge2tga.html

#10yrsago Sleepy English town to be entirely surveilled in case criminals forget and drive through it on their way to crimes https://www.telegraph.co.uk/motoring/news/8670642/Sleepy-market-town-surrounded-by-ring-of-car-cameras.html

#5yrsago How to pay no taxes at all! (if you’re Apple, Google or Facebook) https://www.change.org/p/iphone7boycott-make-apple-pay-its-fair-share-in-tax

#5yrsago Lessons from the DNC: Ronald Reagan, the Southern Strategy, and “abnormal politics” https://crookedtimber.org/2016/07/30/philadelphia-stories-from-reagan-to-trump-to-the-dnc/

#1yrago Interop to the rescue https://pluralistic.net/2020/07/30/roto-en-mexico/#interop-competition

#1yrago Why sweat smells https://pluralistic.net/2020/07/30/roto-en-mexico/#no-sweatski

#1yrago Solar heroin https://pluralistic.net/2020/07/30/roto-en-mexico/#solar-heroin

#1yrago Mexico's new copyright vs cybersecurity https://pluralistic.net/2020/07/30/roto-en-mexico/#ciberseguridad


Colophon (permalink)

Today's top sources: Boing Boing (https://boingboing.net/), @thejaymo (https://twitter.com/thejaymo), @GhoulTech (https://twitter.com/GhoulTech), Ed Schan (https://twitter.com/beigebelt).

Currently writing:

  • Spill, a Little Brother short story about pipeline protests. Yesterday's progress: 264 words (12160 words total)

  • A Little Brother short story about remote invigilation. PLANNING

  • A nonfiction book about excessive buyer-power in the arts, co-written with Rebecca Giblin, "The Shakedown." FINAL EDITS

  • A post-GND utopian novel, "The Lost Cause." FINISHED

  • A cyberpunk noir thriller novel, "Red Team Blues." FINISHED

Currently reading: Analogia by George Dyson.

Latest podcast: Tech Monopolies and the Insufficient Necessity of Interoperability https://craphound.com/news/2021/07/12/tech-monopolies-and-the-insufficient-necessity-of-interoperability/
Upcoming appearances:

Reset the Internet? (Project Syndicate)
https://www.project-syndicate.org/podcasts/reset-the-internet

Latest book:

Upcoming books:

  • The Shakedown, with Rebecca Giblin, nonfiction/business/politics, Beacon Press 2022

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