A profoundly stupid case about video game cheating could transform adblocking into a copyright infringement
I'm coming to DEFCON! On Aug 9, I'm emceeing the EFF POKER TOURNAMENT (noon at the Horseshoe Poker Room), and appearing on the BRICKED AND ABANDONED panel (5PM, LVCC - L1 - HW1–11–01). On Aug 10, I'm giving a keynote called "DISENSHITTIFY OR DIE! How hackers can seize the means of computation and build a new, good internet that is hardened against our asshole bosses' insatiable horniness for enshittification" (noon, LVCC - L1 - HW1–11–01).
Here's a weird consequence of our societal shift from capitalism (where riches come from profits) to feudalism (where riches come from rents): increasingly, your rights to your actual property (the physical stuff you own) are trumped by corporations' metaphorical "intellectual property" claims.
That's a lot to unpack! Let's start with a quick primer on profits and rents. Capitalists invest money in buying equipment, then they pay workers wages to use that equipment to produce goods and services. Profit is the sum a capitalist takes home from this arrangement: money made from paying workers to do productive things.
Now, rents: "rent" is the money a rentier makes by owning a "factor of production": something the capitalist needs in order to make profits. Capitalists risk their capital to get profits, but rents are heavily insulated from risk.
For example: a coffee shop owner buys espresso machines, hires baristas, and rents a storefront. If they do well, the landlord can raise their rent, denying them profits and increasing rents. But! If a great new cafe opens across the street and the coffee shop owner goes broke, the landlord is in great shape, because they now have a vacant storefront they can rent, and they can charge extra for a prime location across the street from the hottest new coffee shop in town.
The "moral philosophers" that today's self-described capitalists claim to worship – Adam Smith, David Ricardo – hated rents. For them, profits were the moral way to get rich, because when capitalists chase profits, they necessarily chase the production of things that people want.
When rentiers chase rents, they do so at the expense of profits. Every dollar a capitalist pays in rent – licenses for IP, rent for a building, etc – is a dollar that can't be extracted in profit, and then reinvested in the production of more goods and services that society desires.
The "free markets" of Adam Smith weren't free from regulation, they were free from rents.
The moral philosophers' hatred of rents was really a hatred of feudalism. The industrial revolution wasn't merely (or even primarily) the triumph of new machines: rather, it was the triumph of profits over rent. For the industrial revolution to succeed, the feudal arrangement had to end. Capitalism is incompatible with hereditary lords receiving guaranteed rents from hereditary serfs who are legally obliged to work for them. Capitalism triumphed over feudalism when the serfs were turned off of the land (becoming the "free labor" who went to work in the textile mills) and the land itself was given over to sheep grazing (providing the wool for those same mills).
But that doesn't mean that the industrial revolution invented profits. Profits were to be found in feudal societies, wherever a wealthy person increased their wealth by investing in machines and hiring workers to use them. The thing that made feudalism feudal was how conflicts between rents and profits cashed out. For so long as the legal system elevated the claims of rentiers over the claims of capitalists, the society was feudal. Once the legal system gave priority to profit over rent, it became capitalist.
Capitalists hate capitalism. The engine of capitalism is insecurity. The successful capitalist is like the fastest gun in the old west: there's always a young gun out there looking to "disrupt" their fortune with a new invention, product, or organizational strategy that "creatively destroys" the successful businesses of the day and replaces them with new ones:
That's a hard way to live, with your every success serving as a blinking KICK ME sign visible to every ambitious person in the world. Precarity makes people miserable and nuts:
So capitalists universally aspire to become rentiers and investors seek out companies that have a plan to extract rent. This is why Warren Buffett is so priapatic for companies with "moats and walls" – legal privileges and market structures that protect the business from competition and disruption:
Feudal rents were mostly derived from land, but even in the feudal era, the king was known to reward loyal lickspittles with rents over ideas. The "patents royal" were the legally protected right to decide who could make or do certain things: for example, you might have a patent royal over the production of silver ribbon, and anyone who wanted to make a silver ribbon would have to pay for your permission. If you chose to grant that permission exclusively to one manufacturer, then no one else could make it, and you could charge a license fee to the manufacturer that accounted for nearly all their profit.
Today, rentiers are also interested in land. Bill Gates is the country's number one landowner, and in many towns, private equity landlords are snappinig up every single family home that hits the market and converting it to a badly maintained slum:
But the 21st Century's defining source of rent is "IP" – a controversial term that I use here to mean, "Any law or policy that allows a company to exert legal control over its competitors, critics and customers":
https://locusmag.com/2020/09/cory-doctorow-ip/
IP is in irreconcilable conflict with real property rights. Think of HP selling you a printer and wanting to decide which ink you use, or John Deere selling you a tractor and wanting to tell you who can fix it. Or, for that matter, Apple selling you a phone and dictating which software you are allowed to install on it.
Think of Unity, a company that makes tools for video-game makers, demanding a royalty from every game that is eventually sold, calling this "shared success":
Every time one of these conflicts ends with IP's triumph over real property rights, that is a notch in favor of calling the world we live in now "technofeudalist" rather than "technocapitalist":
Once you start to think of "IP" as "laws that let me control how other people use their real property," a lot of the seemingly incoherent fights over IP snap into place. This also goes a long way to explaining how otherwise sensible people can agree on expansions of IP to achieve some short-term goal, irrespective of the spillover harms from such a move. Hard cases make bad law, and hard IP cases make terrible law.
Five years ago, some anti-fascist counterdemonstrators hit on the clever idea of blaring top 40 music during neo-Nazi marches, on the theory that this would prevent Nazis from uploading videos of their marches to Youtube and other platforms, whose filters would block any footage that included copyrighted music:
Thankfully, this didn't work, but not for lack of trying. And it might still work, if calls for beefing up video copyright filters are heeded. Cops all over the place are already blaring Taylor Swift songs and Disney tunes to prevent their interactions with the public from being uploaded:
The same thinking that causes progressives to recklessly argue in favor of upload filters also causes them to demand that web scraping be treated as a copyright crime. They think they're creating a world where AI companies can't rip off their creation to train a model; they're actually creating a world where the Internet Archive can't capture JD Vance's embarrassing old podcast appearances or newspaper editorial boards' advocacy for positions they now recant:
It's not that Nazi marches are good, or that scraping can't be bad – it's just that advocating for the use of IP to address either is a cure that's not just worse than the disease – it's also not a cure.
A problem can be real, and still not be solvable with IP. I have enormous sympathy for gamers who rail against cheaters who use aftermarket hacks to improve their aim, see through buildings, or command other unfair advantages.
If you want to tell a stranger how they must configure their PC or console, IP ("any law that lets you control your competitors, critics or customers") is an obvious answer. But – as with other attempts to solve real problems with IP – this is a cure that is both worse than the disease, and also not a cure after all.
Back in 2002, Blizzard sued some hobbyists over a program called "bnetd." Bnetd was a program that provided a game-server you could connect to with the Blizzard games that you'd bought. It was created as an alternative to Battlenet, Blizzard's notoriously unreliable game-server software that left gamers frustrated and furious due to frequent outages:
https://www.eff.org/cases/blizzard-v-bnetd
To the public, Blizzard made several arguments against bnetd. They claimed that it encouraged piracy, because – unlike the official Battlenet servers – it didn't check whether the copies of Blizzard software that connected to it had a valid license key. Gamers didn't really care about that, but they did respond to another argument: that bnetd lacked the anti-cheat checking of Battlenet.
But that wasn't what Blizzard took to the court: in court, they argued that the hobbyists who made bnetd violated copyright law. Specifically, Section 1201 of the Digital Millennium Copyright Act, which bans "circumvention of access controls to copyrighted works." Basically, Blizzard argued that bnetd's authors violated the law because they used debuggers to examine the software they'd paid for, while it ran on their own computers, to figure out how to make a game server of their own.
Blizzard didn't sue bnetd's authors for pirating Blizzard software (they didn't – they'd paid for their copies). They didn't sue them for abetting other gamers' piracy. They certainly didn't sue them for making a cheat-friendly game-server.
Blizzard sued them for analyzing software they'd paid for, while it was running on their own computers.
Imagine if Walmart – one of the biggest book-retailers in America – had a policy that said that you could only shelve the books you bought at Walmart on shelves that you also bought at Walmart. Now imagine that Walmart successfully argued that measuring the books you bought from them and using those measurements to create your own compatible book-case violated their IP rights!
This is an outrageous triumph of IP rights over real property rights, and yet gamers vocally backed Blizzard in the early noughts, because gamers hate cheaters and because IP law is (correctly) understood as "the law that lets a company tell you how you can use your own real, physical property." Hard cases make bad law, hard IP cases make batshit law.
It's more than 20 years since bnetd, and cheating continues to serve as a Trojan horse to smuggle in batshit new IP laws. In Germany, Sony is suing the cheat-device maker Datel:
Sony argues that the Datel device – which rewrites the contents of a player's device's RAM, at the direction of that player – infringes copyright. Sony claims that the values that its programs write to your device's RAM chips are copyrighted works that it has created, and that altering that copyrighted work makes an unauthorized derivative work, which infringes its copyright.
Yes, this is batshit, and thankfully, Sony has been thwarted in court to date, but it is steaming ahead to the EU's highest court. If it succeeds, then it will open up every tool that modifies your computer at your direction to this kind of claim.
How bad can it be? Well, get this: the German publishing giant Axel Springer (owned by a monomaniacal Trumpist and Israel hardliner who has ordered journalists in his US news outlets to go easy on both) is suing Eyeo, makers of Adblock Plus, on the grounds that changing HTML to block an ad creates a "derivative work" of Axel Springer's web-pages:
Axel Springer's filings cite the Sony/Datel case, using it to argue that their IP rights trump your property rights, and that you can only configure your web-browser, running on your computer, which you own, in ways that it approves of.
Axel Springer's war on browsers is a particularly pernicious maneuver, because browsers are the best example we have of internet software that serves as a "user agent." "User agent" is an old-timey engineering synonym for "browser" that reflects the browser's role: to go out onto the web on your behalf and bring back things for you, which it displays in the way you prefer:
Want to block flickering GIFs to forestall photosensitive epileptic servers? Ask your user agent to find and delete them. Want to shift colors into a gamut that accounts for your color-blindness? Ask your user-agent:
https://dankaminsky.com/2010/12/15/dankam/
Want to goose the font size and contrast so you can read the sadistic grey-on-white type that young designers use in the mistaken belief that black-on-white type is "hard on the eyes"? That's what Reader Mode is for:
The foundation of any good digital relationship is a device that works for you, not for the people who own the servers you connect to. Even if they don't plan on screwing you over by directing your user agent to attack you on their behalf right now, the very existence of a facility in your technology that causes it to betray you, by design, is a moral hazard that inevitably results in your victimization:
"IP" ("a law that lets me control how you use your own property") is a tempting solution to every problem, but ultimately, IP ends up magnifying the power of the already powerful, in contests where your only hope of victory is having a user agent whose only loyalty is to you.
The monotonic, dangerous expansion of IP reflects the growing victory of rents over profits – income from owning things, rather than income from doing things. Everyday people may argue for IP in the belief that it will solve their immediate problems – with AI, or Nazis, or in-game cheats – but ultimately, the expansion of a law that limits how you can use your property (including your capital) to uses that don't threaten neofeudalists will doom you to technoserfdom.
Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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CJEU judgment to halt unlawful gender title collection
Historic Win for Trans and Non-binary Rights
The EU Court of Justice has ruled it illegal to collect gender marker data for the purpose of buying train tickets, as the gender is not relevant for providing the service.
The EU Court of Justice has judged that it is unlawful for France’s national railway company to force passengers to choose between ‘Mr’ and ‘Ms’ when purchasing train tickets.
The Court ruled that processing civil titles of customers can in some cases create a risk of discrimination on grounds of gender identity. This is the first time that the CJEU evokes the fundamental EU law principle of non-discrimination to protect the ground of gender identity for trans and non-binary people.
The importance of this judgement therefore extends beyond the applicant’s individual circumstances. All public and private organisations that are required to comply with GDPR in the EU will need to comply with this judgment and stop collecting gender markers when it is not strictly necessary in the light of the purposes for which this data is processed.
The judgment also underscores the broader issue faced by trans and non-binary people who are constantly forced to choose in their everyday lives between two options that do not correspond to their identity. Also, binary trans people, whose identity documents do not match their gender identity, will benefit from fewer mandatory forms asking for a gender marker, when it is not necessary to the service or contract at hand.
Today marks a historic win for non-binary rights. The EU Court of Justice has ruled against mandatory gendered titles on train tickets
Hungary's Justice Minister said on 8 March that Budapest would fight in the Court of Justice of the EU to defend an education law that Bruss
Hungary’s Justice Minister said late on Wednesday (8 March) that Budapest would fight in the Court of Justice of the EU to defend an education law that Brussels says discriminates against people on the basis of sexual orientation and gender identity.
Justice Minister Judit Varga said in a Facebook post she had submitted a counter claim to the court because the government would stick to its stance that education was a matter for national governments to decide.
Prime Minister Viktor Orbán’s anti-LGBT campaign escalated in June 2021 when the parliament, dominated by his Fidesz party, passed a law banning the use of materials seen as promoting homosexuality and gender change at schools.
Advisor to Europe’s top court backs antitrust watchdogs looking at privacy
Advisor to Europe’s top court backs antitrust watchdogs looking at privacy
A non-binding opinion issued today by an influential advisor to the Europe Union’s top court could foreshadow a major regional development at the intersection of privacy and competition regulation — or ‘privacy vs competition’ as it’s sometimes narrowly framed.
The opinion follows a referral to the Court of Justice (CJEU) related to an appeal by Facebook (aka Meta) which has been challenging a…
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To fix or not to fix - that is (or was?) the problem!
Image by JohnArtsz from Pixabay
When a bug hits your licensed software and you business trambles, there is nothing you can do about it but to hope that the developer of that program will fix it, right? Not anymore, and here is why.
The cost of bugs
“Every company is a software company. The ability for engineering teams to deliver high quality software at velocity is the difference between companies that gain a competitive edge versus those that fall behind.” - Barry Morris, CEO Undo.
In 2013, Cambridge University estimated the global cost of software failures to be $316 billion annually. A more recent study published by the Cambridge Judge Business School, in collaboration with Undo, found that for the North American enterprises alone, debugging software errors cost $61 billion and consume a total of 620 million developer hours every year. In terms of enterprise value, this equals a loss of $1.2 trillion for the shareholders annually. As the software industry continues to grow and become more complex, the debugging costs are likely to rise as well, highlights the study.
Are you curious what software bugs might accomplish? Take a look at Choppedporks’s YouTube video to find out:
Well, of course, let’s face it, most companies will not encounter program errors that would lead to devastating results like the ones shown by Choppedporks’s video. However, for many companies running a profitable business, a mere hick-up in software programs might prove devastatingly costly. In today’s fast-moving world, how many times would you be willing to try a service that did not properly function the first time?
My guess is, not many! And, most likely, you just might feel tempted to share your experience with a couple of your closest friends on Facebook, Twitter or whatever social platform you are using. So, from a company perspective, fixing software bugs quickly is highly important to avoid customer outflow, and costs arising from re-building the company’s reputation.
What is there to do then? Does the company have the right to look under the hood and fix the bug? But wait a minute - doesn’t that constitute an infringement of the author’s rights? The CJEU issued a judgement that sheds light on the rights and obligations of the software licensor and licensee, and also, this will influence the drafting of licence agreements going forward.
A landmark decision issued by the CJEU
On 6 October 2021, the Court of Justice of the European Union (‘CJEU’) issued a landmark decision in Top System SA v Belgian State (Case C-13/20) providing that a lawful acquirer of a computer program is permitted, under certain terms, to correct errors that affect the functioning of that program.
What is this case about?
The Selection Office of the Federal Authorities (Belgium), ‘SELOR’, had licensed a software from Top System SA, a Belgian computer program developer company. The applications SELOR used were partly custom-made and partly taken from a program called the Top System Framework (the ‘TSF’) that was authored by Top System.
Top System had not fixed the errors affecting the functioning of the program and SELOR had decided to fix the issue by decompiling the TSF licensed software. As a response, Top System claimed that under Article 5(1) of the Software Directive (91/250/EEC, repealed by Directive 2009/24/EC) decompilation was not allowed for error correction but would only be acceptable for the purpose of interoperability of independent software outside the contractual framework under Article 6.
The Advocate General's Opinion
Advocate General Szpunar’s Opinion advised the CJEU to hold that in the absence of specific contractual provisions, the lawful acquirer of a computer program has the right to correct the errors affecting its functioning provided that the program continues to be used following its intended purpose.
In addition, the Advocate General noted that in an absence of a contract stating limitations to error correction, then the lawful acquirer is allowed not only to correct the error but also to locate where in the program amendments are needed to solve the malfunctioning of that software. This means that the lawful acquirer must keep within the limits of the contractual obligations and act only to the necessary extent.
Furthermore, performing such decompilation to correct errors is not subject to the Article 6 requirements, noted the Advocate General.
The CJEU’s judgement
The CJEU took into account the opinion of the Advocate General and found that Article 4 provides non-exclusive rights to the author, such as reproduction, translation, adaptation, arrangement, and any other alteration of a computer program. Even though decompilation as such is not expressly included in the non-exhaustive list, the decompilation of a computer program includes performing acts that fall under the exclusive rights of the author.
However, Articles 5 and 6 provide limitations to the rights of the licensor in such situations when the use of the computer program requires fixing the bugs and there is no specific contractual agreement on corrective actions between the parties. The Court further concluded that Article 6 has a different purpose concerning the acts necessary to ensure the interoperability of programs created independently.
How does this judgement impact drafting license agreements?
This decision clarified that when drafting the license agreement, the copyright holder cannot deny the licensee the possibility of correcting the errors in the computer program without the prior consent of the rightsholder. However, the parties can contractually agree on how corrective maintenance is to be ensured.
Moreover, if the licensee has the capabilities and decides to decompile a malfunctioning computer program to correct its errors, it should be kept in mind that this is only allowed to the extent that actions taken are necessary and in compliance with the terms of the license agreement.
There has not been any major wave of criticism after the judgement came out which indicates that its content did not come as a big surprise.
If you found this interesting, take a look at a blog by Brad Spitz (Kluwer Copyright Blog, 21 August 2020) on IT Development SAS v Free Mobile SAS, Case C-666/18: The breach of an IP clause of a software licence agreement constitutes a copyright infringement.
