Last week, Gizmodo’s Linda Codega caught a fantastic scoop — a leaked report of Hasbro’s plan to revoke the decades-old Open Gaming License, which subsidiary Wizards Of the Coast promulgated as an allegedly open sandbox for people seeking to extend, remix or improve Dungeons and Dragons:
The report set off a shitstorm among D&D fans and the broader TTRPG community — not just because it was evidence of yet more enshittification of D&D by a faceless corporate monopolist, but because Hasbro was seemingly poised to take back the commons that RPG players and designers had built over decades, having taken WOTC and the OGL at their word.
Gamers were right to be worried. Giant companies love to rugpull their fans, tempting them into a commons with lofty promises of a system that we will all have a stake in, using the fans for unpaid creative labor, then enclosing the fans’ work and selling it back to them. It’s a tale as old as CDDB and Disgracenote:
https://en.wikipedia.org/wiki/CDDB#History
(Disclosure: I am a long-serving volunteer board-member for MetaBrainz, which maintains MusicBrainz, a free, open, community-managed and transparent alternative to Gracenote, explicitly designed to resist the kind of commons-stealing enclosure that led to the CDDB debacle.)
https://musicbrainz.org/
Free/open licenses were invented specifically to prevent this kind of fuckery. First there was the GPL and its successor software licenses, then Creative Commons and its own successors. One important factor in these licenses: they contain the word “irrevocable.” That means that if you build on licensed content, you don’t have to worry about having the license yanked out from under you later. It’s rugproof.
Now, the OGL does not contain the word “irrevocable.” Rather, the OGL is “perpetual.” To a layperson, these two terms may seem interchangeable, but this is one of those fine lawerly distinctions that trip up normies all the time. In lawyerspeak, a “perpetual” license is one whose revocation doesn’t come automatically after a certain time (unlike, say, a one-year car-lease, which automatically terminates at the end of the year). Unless a license is “irrevocable,” the licensor can terminate it whenever they want to.
This is exactly the kind of thing that trips up people who roll their own licenses, and people who trust those licenses. The OGL predates the Creative Commons licenses, but it neatly illustrates the problem with letting corporate lawyers — rather than public-interest nonprofits — unleash “open” licenses on an unsuspecting, legally unsophisticated audience.
The perpetual/irrevocable switcheroo is the least of the problems with the OGL. As Rob Bodine— an actual lawyer, as well as a dice lawyer — wrote back in 2019, the OGL is a grossly defective instrument that is significantly worse than useless.
https://gsllcblog.com/2019/08/26/part3ogl/
The issue lies with what the OGL actually licenses. Decades of copyright maximalism has convinced millions of people that anything you can imagine is “intellectual property,” and that this is indistinguishable from real property, which means that no one can use it without your permission.
The copyrightpilling of the world sets people up for all kinds of scams, because copyright just doesn’t work like that. This wholly erroneous view of copyright grooms normies to be suckers for every sharp grifter who comes along promising that everything imaginable is property-in-waiting (remember SpiceDAO?):
Copyright is a lot more complex than “anything you can imagine is your property and that means no one else can use it.” For starters, copyright draws a fundamental distinction between ideas and expression. Copyright does not apply to ideas — the idea, say, of elves and dwarves and such running around a dungeon, killing monsters. That is emphatically not copyrightable.
Copyright also doesn’t cover abstract systems or methods — like, say, a game whose dice-tables follow well-established mathematical formulae to create a “balanced” system for combat and adventuring. Anyone can make one of these, including by copying, improving or modifying an existing one that someone else made. That’s what “uncopyrightable” means.
Finally, there are the exceptions and limitations to copyright — things that you are allowed to do with copyrighted work, without first seeking permission from the creator or copyright’s proprietor. The best-known exception is US law is fair use, a complex doctrine that is often incorrectly characterized as turning on “four factors” that determine whether a use is fair or not.
In reality, the four factors are a starting point that courts are allowed and encouraged to consider when determining the fairness of a use, but some of the most consequential fair use cases in Supreme Court history flunk one, several, or even all of the four factors (for example, the Betamax decision that legalized VCRs in 1984, which fails all four).
Beyond fair use, there are other exceptions and limitations, like the di minimis exemption that allows for incidental uses of tiny fragments of copyrighted work without permission, even if those uses are not fair use. Copyright, in other words, is “fact-intensive,” and there are many ways you can legally use a copyrighted work without a license.
Which brings me back to the OGL, and what, specifically, it licenses. The OGL is a license that only grants you permission to use the things that WOTC can’t copyright — “the game mechanic [including] the methods, procedures, processes and routines.” In other words, the OGL gives you permission to use things you don’t need permission to use.
But maybe the OGL grants you permission to use more things, beyond those things you’re allowed to use anyway? Nope. The OGL specifically exempts:
Product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark…
Now, there are places where the uncopyrightable parts of D&D mingle with the copyrightable parts, and there’s a legal term for this: merger. Merger came up for gamers in 2018, when the provocateur Robert Hovden got the US Copyright Office to certify copyright in a Magic: The Gathering deck:
If you want to learn more about merger, you need to study up on Kregos and Eckes, which are beautifully explained in the “Open Intellectual Property Casebook,” a free resource created by Jennifer Jenkins and James Boyle:
https://web.law.duke.edu/cspd/openip/#q01
Jenkins and Boyle explicitly created their open casebook as an answer to another act of enclosure: a greedy textbook publisher cornered the market on IP textbook and charged every law student — and everyone curious about the law — $200 to learn about merger and other doctrines.
As EFF Senior Staff Attorney Kit Walsh writes in her must-read analysis of the OGL, this means “the only benefit that OGL offers, legally, is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability.”
But like I said, it’s not just that the OGL fails to give you rights — it actually takes away rights you already have to D&D. That’s because — as Walsh points out — fair use and the other copyright limitations and exceptions give you rights to use D&D content, but the OGL is a contract whereby you surrender those rights, promising only to use D&D stuff according to WOTC’s explicit wishes.
“For example, absent this agreement, you have a legal right to create a work using noncopyrightable elements of D&D or making fair use of copyrightable elements and to say that that work is compatible with Dungeons and Dragons. In many contexts you also have the right to use the logo to name the game (something called “nominative fair use” in trademark law). You can certainly use some of the language, concepts, themes, descriptions, and so forth. Accepting this license almost certainly means signing away rights to use these elements. Like Sauron’s rings of power, the gift of the OGL came with strings attached.”
And here’s where it starts to get interesting. Since the OGL launched in 2000, a huge proportion of game designers have agreed to its terms, tricked into signing away their rights. If Hasbro does go through with canceling the OGL, it will release those game designers from the shitty, deceptive OGL.
According to the leaks, the new OGL is even worse than the original versions — but you don’t have to take those terms! Notwithstanding the fact that the OGL says that “using…Open Game Content” means that you accede to the license terms, that is just not how contracts work.
Walsh: “Contracts require an offer, acceptance, and some kind of value in exchange, called ‘consideration.’ If you sell a game, you are inviting the reader to play it, full stop. Any additional obligations require more than a rote assertion.”
“For someone who wants to make a game that is similar mechanically to Dungeons and Dragons, and even announce that the game is compatible with Dungeons and Dragons, it has always been more advantageous as a matter of law to ignore the OGL.”
Walsh finishes her analysis by pointing to some good licenses, like the GPL and Creative Commons, “written to serve the interests of creative communities, rather than a corporation.” Many open communities — like the programmers who created GNU/Linux, or the music fans who created Musicbrainz, were formed after outrageous acts of enclosure by greedy corporations.
If you’re a game designer who was pissed off because the OGL was getting ganked — and if you’re even more pissed off now that you’ve discovered that the OGL was a piece of shit all along — there’s a lesson there. The OGL tricked a generation of designers into thinking they were building on a commons. They weren’t — but they could.
This is a great moment to start — or contribute to — real open gaming content, licensed under standard, universal licenses like Creative Commons. Rolling your own license has always been a bad idea, comparable to rolling your own encryption in the annals of ways-to-fuck-up-your-own-life-and-the-lives-of-many-others. There is an opportunity here — Hasbro unintentionally proved that gamers want to collaborate on shared gaming systems.
That’s the true lesson here: if you want a commons, you’re not alone. You’ve got company, like Kit Walsh herself, who happens to be a brilliant game-designer who won a Nebula Award for her game “Thirsty Sword Lesbians”:
[Image ID: A remixed version of David Trampier's 'Eye of Moloch,' the cover of the first edition of the AD&D Player's Handbook. It has been altered so the title reads 'Advanced Copyright Fuckery. Unclear on the Concept. That's Just Not How Licenses Work. No, Seriously.' The eyes of the idol have been replaced by D20s displaying a critical fail '1.' Its chest bears another D20 whose showing face is a copyright symbol.]
Anya is live and ready to show you everything. Watch her strip, dance, and perform exclusive shows just for you. Interact in real-time and make your fantasies come true.
✓ Live Streaming✓ Interactive Chat✓ Private Shows✓ HD Quality
Anya is LIVE right now
FREE
Free to watch • No registration required • HD streaming
Okay, I'm mad about something now, and I put up the video for context. You see, there was this fan-chapter of Warhammer 40K Space Marines called the MaidMarines.
Long story short, they were this funny fan-chapter with an original Primarch, a theme of anime catgirl maids (and yes, they included female Marines), they kinda slyly satirized Warhammer 40k's themes with their ideals being centered around feeding people and communal care, and there were these wonderful fan minis by the user Solflamer for fans to 3d print
Long story long, well, watch the video. But NOTE THE USE OF THE TERMS "WERE" AND "WAS" HERE.
Because Games Workshop, owners of Warhammer 40k and copyright dickheads par-excellence made them take them down, both the minis and even the fan codex the original creator ChummiChan!
And, to the people saying "Well, they infringed on GW's IP, what did you expect?" firstly, fuck you, stop licking boot leather you bitchass coward, you're probably one of the assholes cheering on the record companies trying to kill the Internet Archive.
Secondly, let's analyze this case from a perspective of fair used, based on the US standards of the four factors:
-The purpose and character of the use, IE whether it is transformative and what field it is being done in. The use is indeed for miniatures akin to the kind GW sells, but of a faction that does not exist and will likely never exist officially, satirizing both fanwork tropes and internal setting tropes in ways that GW would never do due to major lore reasons. It is also being done in the field of 3d printing, a field that GW so far has refused to touch.
-The nature of the copyrighted work. The work is narrative, which were presented as nonprofit, but also embodied in physical miniatures, which are designed to be customizable by the end-user, and there are many early examples of GW themselves showing this off like the old Deodorant Grav-Tank and the original Space Marine tank that was a modified GI Joe Armadillo. Therefore, this is in the spirit of a pattern encouraged by GW.
--Though, this might be complicated by a decision in the lawsuit against Chapterhouse that saw them win on this, but lose on the issue of variations. I would imagine a rename would be in order, but now, GW didn't ask for them to rename them now did they?
-The amount of the content used. GW has no official STLs to derive from, and while they share design elements, they are clearly distinct in ways that do not resemble other Marines on multiple key points. The narrative relates to theirs, but it was released largely for non-profit and does not use their original text and contains mostly original elements; and game mechanics have been found to be largely protected by fair use so the codex being taken down might still not be kosher!
-The effects of the use on the potential market. This is their strongest point, nobody who wants to buy regular fucking Space Marines is going to buy Maidmarines instead. This is even before you get into the fact it is primarily within the niche of 3d printing; which again; GW has never done. Hell, the fact they are cross-compatible wit hGW models might improve sales, given the potential for kitbashing, again encouraged by the hobby.
Overall, while there are some gaps, they might have a case to challenge GW in court about that.
Except here's the thing: GW has way more money and lawyers than them, and could financially ruin them. And orgs dedicated to fighting this either don't exist or have large enough umbrellas they current;y have bigger fish to fry due to the hellish global situation.
So if they were in the right, it ends up meaning nothing in the end because of power. That is not justice. That is a bully doing whatever the fuck they want.
Because they're big enough to get away with it and nobody will stop them. And I fucking hate bullies.
And I think whatever Patrick Bateman in GW's legal department or executive suite did this deserves to shit out raw Legos for the rest of his life, or at the very least be publicly named and shamed...
I'm on a 20+ city book tour for my new novel PICKS AND SHOVELS. Catch me in SAN DIEGO at MYSTERIOUS GALAXY on Mar 24, and in CHICAGO with PETER SAGAL on Apr 2. More tour dates here.
David Enrich's Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful is a brave, furious book about the long-running plan by America's wealthy and corrupt to "open up the libel laws" so they can destroy their critics:
Enrich is a veteran business reporter at the New York Times; he's reported extensively on high finance and sleaze, and has a knack for piercing the Shield of Boredom that protects finance crimes from scrutiny. His 2017 book The Spider's Web manages the nearly impossible trick of making the LIBOR-rigging conspiracy – which involved trillions, but in ways that were so baroque that hardly anyone noticed – comprehensible:
In taking on the libel-industrial complex – a network of shadowy, thin-skinned, wealthy litigation funders; crank academics; buck-chasing lawyer lickspittle sociopaths; and the most corrupt Supreme Court justice on the bench today – Enrich is wading into dangerous territory. After all, he's reporting on people who've made it their life's mission to financially destroy anyone who has the temerity to report on their misdeeds.
As such, Enrich's writing is extremely cautious, sometimes comically so, but always intentionally, in a way that highlights the absurd chilling effect his subjects are attempting to induce in all of us.
The book primarily concerns itself with the effort to overturn Sullivan, a 1964 Supreme Court case that established protections for media outlets that report on public figures and commit minor factual errors, provided that the errors were neither negligent nor malicious.
Since Sullivan, media outlets have held the upper hand when reporting on public figures. While Sullivan isn't a license to simply make stuff up about celebrities, politicians and business leaders, it does mean that if a reporter makes a minor misstatement, it's on the subject of the reporting to prove that the error was negligent and/or malicious.
Before Sullivan, most defamation litigation happened in state courts, and southern courts allowed lawmakers and cops to sue newspapers that reported on racial terror campaigns during the civil rights fight. The judgments involved were so large that many media outlets simply gave up on reporting on the intimidation, violence and murder taking place in the Jim Crow south.
True to form, Clarence Thomas has led the charge to dismantle a law that was key to the struggle for rights for Black people and other disfavored minorities. In Enrich's telling, Thomas's animus for Sullivan started during his confirmation hearings, when Anita Hill described his relentless sexual harassment of the lawyers who worked for him, including Hill. Being the subject of a media firestorm that painted him as a disgusting, cruel sex-pest seems to have inspired Thomas in a decades-long campaign to find a case that would let him tear down Sullivan, so that wealthy people could once again intimidate reporters into silence. Of course, Thomas's hatred for Sullivan only grew when Propublica revealed that he had taken numerous "gifts" from wealthy "friends" who had business before the courts, revelations that will forever make Thomas's name a synonym for corruption.
Enrich's cast of characters includes a clutch of whiny, ultra-rich axe-grinders, who finance (often in secret) lawsuits that are designed to chip away at Sullivan. Some are international looters or corrupt ex-Soviet oligarchs, but others are ideologues, committed to the principle of impunity for the powerful.
He also introduces us to the lawyers who wage these battles. As you might imagine, the kind of lawyer who sits up at night figuring out how to help wealthy, powerful people destroy their critics is often a crank themselves, with "colorful" personal relations that Enrich reports on with meticulous prose, including the many denials and non-denials his subjects sent when he sought comment.
As with his LIBOR book, Enrich does yeoman duty here unpacking complex matters that would be dull in a lesser writer's hands. The litigation strategies devised by Sullivan's enemies are always convoluted and are sometimes clever, much like the litigation strategies used to kill campaign finance limits (Citizens United) and abortion rights (Dobbs). Indeed, many of the financiers, think-tanks and lawyers behind those plots are also would-be Sullivan slayers.
The best of these legal gambits are actually rather clever – locating innocent people who've been genuinely wronged by Sullivan (as the saying goes, "hard cases make bad law") and then using them to undermine Sullivan, without actually helping them in any way. It's positively fiendish.
We're in a moment when a lot of powerful people are getting far more powerful, and abusing that power to commit wildly corrupt acts. The only way we'll know about this is if the press can freely report on their misdeeds. Murder the Truth is a vital guide to the next Citizens United, the next Dobbs – a campaign to take away your right to know about the next assault on your rights that plutocrats will launch.
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:
Copyright takedowns are a cautionary tale that few are heeding
On July 14, I'm giving the closing keynote for the fifteenth HACKERS ON PLANET EARTH, in QUEENS, NY. Happy Bastille Day! On July 20, I'm appearing in CHICAGO at Exile in Bookville.
We're living through one of those moments when millions of people become suddenly and overwhelmingly interested in fair use, one of the subtlest and worst-understood aspects of copyright law. It's not a subject you can master by skimming a Wikipedia article!
I've been talking about fair use with laypeople for more than 20 years. I've met so many people who possess the unshakable, serene confidence of the truly wrong, like the people who think fair use means you can take x words from a book, or y seconds from a song and it will always be fair, while anything more will never be.
Or the people who think that if you violate any of the four factors, your use can't be fair – or the people who think that if you fail all of the four factors, you must be infringing (people, the Supreme Court is calling and they want to tell you about the Betamax!).
You might think that you can never quote a song lyric in a book without infringing copyright, or that you must clear every musical sample. You might be rock solid certain that scraping the web to train an AI is infringing. If you hold those beliefs, you do not understand the "fact intensive" nature of fair use.
But you can learn! It's actually a really cool and interesting and gnarly subject, and it's a favorite of copyright scholars, who have really fascinating disagreements and discussions about the subject. These discussions often key off of the controversies of the moment, but inevitably they implicate earlier fights about everything from the piano roll to 2 Live Crew to antiracist retellings of Gone With the Wind.
One of the most interesting discussions of fair use you can ask for took place in 2019, when the NYU Engelberg Center on Innovation Law & Policy held a symposium called "Proving IP." One of the panels featured dueling musicologists debating the merits of the Blurred Lines case. That case marked a turning point in music copyright, with the Marvin Gaye estate successfully suing Robin Thicke and Pharrell Williams for copying the "vibe" of Gaye's "Got to Give it Up."
Naturally, this discussion featured clips from both songs as the experts – joined by some of America's top copyright scholars – delved into the legal reasoning and future consequences of the case. It would be literally impossible to discuss this case without those clips.
And that's where the problems start: as soon as the symposium was uploaded to Youtube, it was flagged and removed by Content ID, Google's $100,000,000 copyright enforcement system. This initial takedown was fully automated, which is how Content ID works: rightsholders upload audio to claim it, and then Content ID removes other videos where that audio appears (rightsholders can also specify that videos with matching clips be demonetized, or that the ad revenue from those videos be diverted to the rightsholders).
But Content ID has a safety valve: an uploader whose video has been incorrectly flagged can challenge the takedown. The case is then punted to the rightsholder, who has to manually renew or drop their claim. In the case of this symposium, the rightsholder was Universal Music Group, the largest record company in the world. UMG's personnel reviewed the video and did not drop the claim.
99.99% of the time, that's where the story would end, for many reasons. First of all, most people don't understand fair use well enough to contest the judgment of a cosmically vast, unimaginably rich monopolist who wants to censor their video. Just as importantly, though, is that Content ID is a Byzantine system that is nearly as complex as fair use, but it's an entirely private affair, created and adjudicated by another galactic-scale monopolist (Google).
Google's copyright enforcement system is a cod-legal regime with all the downsides of the law, and a few wrinkles of its own (for example, it's a system without lawyers – just corporate experts doing battle with laypeople). And a single mis-step can result in your video being deleted or your account being permanently deleted, along with every video you've ever posted. For people who make their living on audiovisual content, losing your Youtube account is an extinction-level event:
So for the average Youtuber, Content ID is a kind of Kafka-as-a-Service system that is always avoided and never investigated. But the Engelbert Center isn't your average Youtuber: they boast some of the country's top copyright experts, specializing in exactly the questions Youtube's Content ID is supposed to be adjudicating.
So naturally, they challenged the takedown – only to have UMG double down. This is par for the course with UMG: they are infamous for refusing to consider fair use in takedown requests. Their stance is so unreasonable that a court actually found them guilty of violating the DMCA's provision against fraudulent takedowns:
https://www.eff.org/cases/lenz-v-universal
But the DMCA's takedown system is part of the real law, while Content ID is a fake law, created and overseen by a tech monopolist, not a court. So the fate of the Blurred Lines discussion turned on the Engelberg Center's ability to navigate both the law and the n-dimensional topology of Content ID's takedown flowchart.
It took more than a year, but eventually, Engelberg prevailed.
Until they didn't.
If Content ID was a person, it would be baby, specifically, a baby under 18 months old – that is, before the development of "object permanence." Until our 18th month (or so), we lack the ability to reason about things we can't see – this the period when small babies find peek-a-boo amazing. Object permanence is the ability to understand things that aren't in your immediate field of vision.
Content ID has no object permanence. Despite the fact that the Engelberg Blurred Lines panel was the most involved fair use question the system was ever called upon to parse, it managed to repeatedly forget that it had decided that the panel could stay up. Over and over since that initial determination, Content ID has taken down the video of the panel, forcing Engelberg to go through the whole process again.
But that's just for starters, because Youtube isn't the only place where a copyright enforcement bot is making billions of unsupervised, unaccountable decisions about what audiovisual material you're allowed to access.
Spotify is yet another monopolist, with a justifiable reputation for being extremely hostile to artists' interests, thanks in large part to the role that UMG and the other major record labels played in designing its business rules:
Spotify has spent hundreds of millions of dollars trying to capture the podcasting market, in the hopes of converting one of the last truly open digital publishing systems into a product under its control:
Thankfully, that campaign has failed – but millions of people have (unwisely) ditched their open podcatchers in favor of Spotify's pre-enshittified app, so everyone with a podcast now must target Spotify for distribution if they hope to reach those captive users.
Guess who has a podcast? The Engelberg Center.
Naturally, Engelberg's podcast includes the audio of that Blurred Lines panel, and that audio includes samples from both "Blurred Lines" and "Got To Give It Up."
So – naturally – UMG keeps taking down the podcast.
Spotify has its own answer to Content ID, and incredibly, it's even worse and harder to navigate than Google's pretend legal system. As Engelberg describes in its latest post, UMG and Spotify have colluded to ensure that this now-classic discussion of fair use will never be able to take advantage of fair use itself:
Remember, this is the best case scenario for arguing about fair use with a monopolist like UMG, Google, or Spotify. As Engelberg puts it:
The Engelberg Center had an extraordinarily high level of interest in pursuing this issue, and legal confidence in our position that would have cost an average podcaster tens of thousands of dollars to develop. That cannot be what is required to challenge the removal of a podcast episode.
Automated takedown systems are the tech industry's answer to the "notice-and-takedown" system that was invented to broker a peace between copyright law and the internet, starting with the US's 1998 Digital Millennium Copyright Act. The DMCA implements (and exceeds) a pair of 1996 UN treaties, the WIPO Copyright Treaty and the Performances and Phonograms Treaty, and most countries in the world have some version of notice-and-takedown.
Big corporate rightsholders claim that notice-and-takedown is a gift to the tech sector, one that allows tech companies to get away with copyright infringement. They want a "strict liability" regime, where any platform that allows a user to post something infringing is liable for that infringement, to the tune of $150,000 in statutory damages.
Of course, there's no way for a platform to know a priori whether something a user posts infringes on someone's copyright. There is no registry of everything that is copyrighted, and of course, fair use means that there are lots of ways to legally reproduce someone's work without their permission (or even when they object). Even if every person who ever has trained or ever will train as a copyright lawyer worked 24/7 for just one online platform to evaluate every tweet, video, audio clip and image for copyright infringement, they wouldn't be able to touch even 1% of what gets posted to that platform.
The "compromise" that the entertainment industry wants is automated takedown – a system like Content ID, where rightsholders register their copyrights and platforms block anything that matches the registry. This "filternet" proposal became law in the EU in 2019 with Article 17 of the Digital Single Market Directive:
This was the most controversial directive in EU history, and – as experts warned at the time – there is no way to implement it without violating the GDPR, Europe's privacy law, so now it's stuck in limbo:
As critics pointed out during the EU debate, there are so many problems with filternets. For one thing, these copyright filters are very expensive: remember that Google has spent $100m on Content ID alone, and that only does a fraction of what filternet advocates demand. Building the filternet would cost so much that only the biggest tech monopolists could afford it, which is to say, filternets are a legal requirement to keep the tech monopolists in business and prevent smaller, better platforms from ever coming into existence.
Filternets are also incapable of telling the difference between similar files. This is especially problematic for classical musicians, who routinely find their work blocked or demonetized by Sony Music, which claims performances of all the most important classical music compositions:
Content ID can't tell the difference between your performance of "The Goldberg Variations" and Glenn Gould's. For classical musicians, the best case scenario is to have their online wages stolen by Sony, who fraudulently claim copyright to their recordings. The worst case scenario is that their video is blocked, their channel deleted, and their names blacklisted from ever opening another account on one of the monopoly platforms.
But when it comes to free expression, the role that notice-and-takedown and filternets play in the creative industries is really a sideshow. In creating a system of no-evidence-required takedowns, with no real consequences for fraudulent takedowns, these systems are huge gift to the world's worst criminals. For example, "reputation management" companies help convicted rapists, murderers, and even war criminals purge the internet of true accounts of their crimes by claiming copyright over them:
Remember how during the covid lockdowns, scumbags marketed junk devices by claiming that they'd protect you from the virus? Their products remained online, while the detailed scientific articles warning people about the fraud were speedily removed through false copyright claims:
Copyfraud – making false copyright claims – is an extremely safe crime to commit, and it's not just quack covid remedy peddlers and war criminals who avail themselves of it. Tech giants like Adobe do not hesitate to abuse the takedown system, even when that means exposing millions of people to spyware:
Dirty cops play loud, copyrighted music during confrontations with the public, in the hopes that this will trigger copyright filters on services like Youtube and Instagram and block videos of their misbehavior:
But even if you solved all these problems with filternets and takedown, this system would still choke on fair use and other copyright exceptions. These are "fact intensive" questions that the world's top experts struggle with (as anyone who watches the Blurred Lines panel can see). There's no way we can get software to accurately determine when a use is or isn't fair.
That's a question that the entertainment industry itself is increasingly conflicted about. The Blurred Lines judgment opened the floodgates to a new kind of copyright troll – grifters who sued the record labels and their biggest stars for taking the "vibe" of songs that no one ever heard of. Musicians like Ed Sheeran have been sued for millions of dollars over these alleged infringements. These suits caused the record industry to (ahem) change its tune on fair use, insisting that fair use should be broadly interpreted to protect people who made things that were similar to existing works. The labels understood that if "vibe rights" became accepted law, they'd end up in the kind of hell that the rest of us enter when we try to post things online – where anything they produce can trigger takedowns, long legal battles, and millions in liability:
But the music industry remains deeply conflicted over fair use. Take the curious case of Katy Perry's song "Dark Horse," which attracted a multimillion-dollar suit from an obscure Christian rapper who claimed that a brief phrase in "Dark Horse" was impermissibly similar to his song "A Joyful Noise."
Perry and her publisher, Warner Chappell, lost the suit and were ordered to pay $2.8m. While they subsequently won an appeal, this definitely put the cold grue up Warner Chappell's back. They could see a long future of similar suits launched by treasure hunters hoping for a quick settlement.
But here's where it gets unbelievably weird and darkly funny. A Youtuber named Adam Neely made a wildly successful viral video about the suit, taking Perry's side and defending her song. As part of that video, Neely included a few seconds' worth of "A Joyful Noise," the song that Perry was accused of copying.
In court, Warner Chappell had argued that "A Joyful Noise" was not similar to Perry's "Dark Horse." But when Warner had Google remove Neely's video, they claimed that the sample from "Joyful Noise" was actually taken from "Dark Horse." Incredibly, they maintained this position through multiple appeals through the Content ID system:
In other words, they maintained that the song that they'd told the court was totally dissimilar to their own was so indistinguishable from their own song that they couldn't tell the difference!
Now, this question of vibes, similarity and fair use has only gotten more intense since the takedown of Neely's video. Just this week, the RIAA sued several AI companies, claiming that the songs the AI shits out are infringingly similar to tracks in their catalog:
Even before "Blurred Lines," this was a difficult fair use question to answer, with lots of chewy nuances. Just ask George Harrison:
https://en.wikipedia.org/wiki/My_Sweet_Lord
But as the Engelberg panel's cohort of dueling musicologists and renowned copyright experts proved, this question only gets harder as time goes by. If you listen to that panel (if you can listen to that panel), you'll be hard pressed to come away with any certainty about the questions in this latest lawsuit.
The notice-and-takedown system is what's known as an "intermediary liability" rule. Platforms are "intermediaries" in that they connect end users with each other and with businesses. Ebay and Etsy and Amazon connect buyers and sellers; Facebook and Google and Tiktok connect performers, advertisers and publishers with audiences and so on.
For copyright, notice-and-takedown gives platforms a "safe harbor." A platform doesn't have to remove material after an allegation of infringement, but if they don't, they're jointly liable for any future judgment. In other words, Youtube isn't required to take down the Engelberg Blurred Lines panel, but if UMG sues Engelberg and wins a judgment, Google will also have to pay out.
During the adoption of the 1996 WIPO treaties and the 1998 US DMCA, this safe harbor rule was characterized as a balance between the rights of the public to publish online and the interest of rightsholders whose material might be infringed upon. The idea was that things that were likely to be infringing would be immediately removed once the platform received a notification, but that platforms would ignore spurious or obviously fraudulent takedowns.
That's not how it worked out. Whether it's Sony Music claiming to own your performance of "Fur Elise" or a war criminal claiming authorship over a newspaper story about his crimes, platforms nuke first and ask questions never. Why not? If they ignore a takedown and get it wrong, they suffer dire consequences ($150,000 per claim). But if they take action on a dodgy claim, there are no consequences. Of course they're just going to delete anything they're asked to delete.
This is how platforms always handle liability, and that's a lesson that we really should have internalized by now. After all, the DMCA is the second-most famous intermediary liability system for the internet – the most (in)famous is Section 230 of the Communications Decency Act.
This is a 27-word law that says that platforms are not liable for civil damages arising from their users' speech. Now, this is a US law, and in the US, there aren't many civil damages from speech to begin with. The First Amendment makes it very hard to get a libel judgment, and even when these judgments are secured, damages are typically limited to "actual damages" – generally a low sum. Most of the worst online speech is actually not illegal: hate speech, misinformation and disinformation are all covered by the First Amendment.
Notwithstanding the First Amendment, there are categories of speech that US law criminalizes: actual threats of violence, criminal harassment, and committing certain kinds of legal, medical, election or financial fraud. These are all exempted from Section 230, which only provides immunity for civil suits, not criminal acts.
What Section 230 really protects platforms from is being named to unwinnable nuisance suits by unscrupulous parties who are betting that the platforms would rather remove legal speech that they object to than go to court. A generation of copyfraudsters have proved that this is a very safe bet:
In other words, if you made a #MeToo accusation, or if you were a gig worker using an online forum to organize a union, or if you were blowing the whistle on your employer's toxic waste leaks, or if you were any other under-resourced person being bullied by a wealthy, powerful person or organization, that organization could shut you up by threatening to sue the platform that hosted your speech. The platform would immediately cave. But those same rich and powerful people would have access to the lawyers and back-channels that would prevent you from doing the same to them – that's why Sony can get your Brahms recital taken down, but you can't turn around and do the same to them.
This is true of every intermediary liability system, and it's been true since the earliest days of the internet, and it keeps getting proven to be true. Six years ago, Trump signed SESTA/FOSTA, a law that allowed platforms to be held civilly liable by survivors of sex trafficking. At the time, advocates claimed that this would only affect "sexual slavery" and would not impact consensual sex-work.
But from the start, and ever since, SESTA/FOSTA has primarily targeted consensual sex-work, to the immediate, lasting, and profound detriment of sex workers:
https://hackinghustling.org/what-is-sesta-fosta/
SESTA/FOSTA killed the "bad date" forums where sex workers circulated the details of violent and unstable clients, killed the online booking sites that allowed sex workers to screen their clients, and killed the payment processors that let sex workers avoid holding unsafe amounts of cash:
Despite half a decade of SESTA/FOSTA, despite 15 years of filternets, despite a quarter century of notice-and-takedown, people continue to insist that getting rid of safe harbors will punish Big Tech and make life better for everyday internet users.
As of now, it seems likely that Section 230 will be dead by then end of 2025, even if there is nothing in place to replace it:
This isn't the win that some people think it is. By making platforms responsible for screening the content their users post, we create a system that only the largest tech monopolies can survive, and only then by removing or blocking anything that threatens or displeases the wealthy and powerful.
Filternets are not precision-guided takedown machines; they're indiscriminate cluster-bombs that destroy anything in the vicinity of illegal speech – including (and especially) the best-informed, most informative discussions of how these systems go wrong, and how that blocks the complaints of the powerless, the marginalized, and the abused.
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:
Anya is live and ready to show you everything. Watch her strip, dance, and perform exclusive shows just for you. Interact in real-time and make your fantasies come true.
✓ Live Streaming✓ Interactive Chat✓ Private Shows✓ HD Quality
Anya is LIVE right now
FREE
Free to watch • No registration required • HD streaming
Last week, a seeming miracle came to pass: John Deere, the Big Ag monopolist that — along with Apple — has led the Axis of Evil that killed, delayed and sabotaged dozens of Right to Repair laws, sued for peace, announcing a Memorandum of Understanding with the American Farm Bureau Federation to make it easier for farmers to fix their own tractors:
https://www.fb.org/files/AFBF_John_Deere_MOU.pdf
This is a move that’s both badly needed and long overdue. Deere abuses copyright law to force farmers to pay for official repairs — even when the farmer does the repair. That’s possible thanks to a practice called VIN locking, in which engine parts come with DRM that prevents the tractor from recognizing them until they pay hundreds of dollars for a John Deere technician to come to their farm and type an unlock code into the tractor’s console:
Like all DRM, VIN locks are covered by Section 1201 of the Digital Millennium Copyright Act (DMCA), a 1998 law that criminalizes distributing tools to bypass “access controls,” even if you do so for a lawful purpose (say, to fix your own tractor using a part you paid for). Violations of DMCA 1201 carry a penalty of 5 years in prison and a $500k fine — for a first offense.
This means that Deere owners are locked into using Deere for repairs, which also means that if Deere decides something isn’t broken, a farmer can’t get it fixed. This is very bad news indeed, because John Deere tractors are just computers in a fancy, mobile case, and John Deere is incredibly bad at digital security:
That’s scary stuff, because John Deere is a monopolist, and a successful attack on the always-connected, networked tractors and other equipment it supplies to the world’s farmers could endanger the global food supply.
Deere doesn’t want to make insecure tractors, but it also doesn’t want to be embarrassed by security researchers who point out that its security is defective. Because security researchers have to bypass Deere tractors’ locks to probe their security, Deere can leverage DMCA1201 into a veto over who gets to warn the public about the mistakes it made.
It’s not just security researchers that Deere gets to gag: the company uses its repair monopoly to threaten farmers who complain about its business practices, holding their million-dollar farm equipment hostage to their silence:
This all adds up to what Jay Freeman calls “felony contempt of business model,” an abuse of copyright law that allows a monopolistic corporation to reach beyond its own walls and impose its will on it customers, critics and competitors:
https://locusmag.com/2020/09/cory-doctorow-ip/
If Deere was finally suing for peace in the Repair Wars, well, that was wonderful news indeed — as I said, a seeming miracle.
But — like all miracles — it was too good to be true.
The MOU that Deere and the Farm Bureau signed is full of poison pills, gotchas, fine-print and mendacity, as Lauren Goode documents in her Wired article, “Right-to-Repair Advocates Question John Deere’s New Promises”:
For starters, the MOU makes the Farm Bureau promise to end its advocacy for state Right to Repair bills, which would create a repair system governed by democratically accountable laws, not corporate fiat. Clearly, Deere has seen the writing on the wall, after the passage in 2002 of Right to Repair laws in New York and Colorado:
Deere’s deal-with-the-devil is a cynical ploy to brake R2R’s momentum and ensure that any repairs are carried out on Deere’s terms. Now, about those terms…
Deere’s deal offers independent repair shops access to diagnostic tools and parts “on fair and reasonable terms,” a murky phrase that can mean whatever Deere decides it means. Crucially, the deal is silent on whether Deere will supply the tools needed to activate VIN locks, meaning that farmers will still be at Deere’s mercy when they effect their own repairs.
What’s more, the deal itself isn’t legally binding, and Deere can cancel it at any time. Once you dig past the headline, the Deere’s Damascene conversion to repair advocacy starts to look awfully superficial — and deceptive.
One person who wasn’t fooled is sick.codes, the hacker who has done the most important work on reverse-engineering Deere’s computer systems, culminating in last summer’s live, on-stage hack of a John Deere tractor at Defcon:
Shortly after the announcement, Sick.codes tweeted how the fine-print in the MOU would have prevented him from doing the work he’s already done (including “a direct stab at me lol”):
As with other instances of monopolistic, corporate copyfraud — like, say, the deceptive Open Gaming License — the John Deere capitulation is really a bid to take away your rights, dressed up as a gift of more rights:
[Image ID: Hieronymus Bosch's painting, 'The Conjurer.' The Conjuror's shell-game table holds a small John Deere tractor that the audience of yokels gawps at. One yokel is wearing a John Deere hat. The conjurer is holding a wrench.]
| Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Here we go again. I was seriously planning not to blog again about non-fungible tokens (NFTs), and instead concentrate on writing a full academic pape…
Italian government: "You took some photographs of ancient art!? PAY ME!"
Italian government: “You took some photographs of ancient art!? PAY ME!”
Among the monuments of Mithras is CIMRM 584, a relief showing the tauroctony, Mithras killing the bull. It was probably found in Rome, but is today in Venice, as part of the Zulian bequest. I came across a photograph online, and added it to the catalogue of Mithraic monuments.
CIMRM 584, tauroctony of Mithras from the museo archeologico at Venice.
While googling, I found another photograph at…
