In going through these arguments, Iâll also be drawing from a few other sources, in order to give a more comprehensive description of the arguments being made.
The Authors Guild Amici Curiae Brief is a document submitted to the court by The Authors Guild in support of the plaintiffâs argument.
Combining lending with digital technology is tricky to do within the constraints of copyright.
But itâs important to still be able to lend, especially for libraries.
With a system called Controlled Digital Lending, libraries like the Internet Archive (IA) made digital booklending work within the constraints of copyright, but publishers still want to shut it down.
Itâs a particularly ghoulish example of companies rejecting copyright and instead pursuing their endless appetite for profit at the expense of everything worthwhile about the industry.
When Iâm looking for an example of copyright abuse, I find myself returningto Nintendoa lot on this blog.
Nintendo is a combination hardware/software/media franchise company, so they fit a lot of niches.
Theyâre a particularly useful when talking about IP because the âbig Nâ is both very familiar to people and also egregiously bad offenders, especially given their âfriendlyâ reputation.
Nintendo has constructed a reputation for itself as a âgoodâ games company that still makes genuinely fun games with âheartâ.
Yet itâs also infamously aggressive in executing âtakedownsâ: asserting property ownership of creative works other people own and which Nintendo did not make.
Youâd think a company like Nintendo â an art creation studio in the business of making and selling creative works â would be proponents of real, strong, immutable creative rights. That, as creators, theyâd want the sturdiest copyright system possible, not one compromised (or that could be compromised) to serve the interests of any one particular party. This should be especially true for Nintendo even compared to other studios, given Nintendoâs own fight-for-its-life against Universal, its youth, and its relatively small position1 in the market compared to its entertainment competitors Disney, Sony, and Microsoft.
But no, Nintendo takes the opposite position. When it comes to copyright, they pretty much exclusively try to compromise it in the hopes that a broken, askew system will end up unfairly favoring them. And so they attack the principles of copyright, viciously, again and again, convinced that the more broken the system is, the more they stand to profit.
Nintendo, even compared to its corporate contemporaries, has a distinctly hostile philosophy around art: if they canât control something themselves, they tend to try to eliminate it entirely.
What Nintendo uses creative rights to protect is not the copyright of their real creative works, itâs their control over everything they perceive to be their âshareâ of the gaming industry.
Let me start with a quick history, in case youâre not familiar with the foundation Nintendo is standing on.
Nintendo got its footing overseas by looking to see what video game was making the most money in America, seeing it was Space Invaders, and copying that verbatim with a clone game they called âRadar Scopeâ:
But then Nintendo was almost itself the victim of an abuse of IP law. âDonkey Kongâ derived from King Kong, and even though the character was in the public domain, Universal Studios still sued Nintendo over the use.
Ultimately the judge agreed with the Nintendo team and threw out the lawsuit, in an example of a giant corporation trying to steamroll what was at the time a small business with over-aggressive and illegitimate IP enforcement.
This was such an impactful moment for Nintendo that they took the name of their lawyer in the Universal Studios case â Kirby â and used it for the mascot of one of their biggest franchises. It was a significant move that demonstrates Nintendoâs extreme gratefulness â or even idolization â of the man who defended them against abuse of IP law.
You would hope the lesson Nintendo learned here would be from the perspective of the underdog, seeing as they were almost the victim of the kinds of tactics they would later become famous for using themselves. But no, it seems they were impressed by the ruthlessness of the abusers instead, and so copied their playbook.
Apple puts its logo on the devices it sells. Not just on the outer casing, but also each internal component. The vast majority of these logos are totally enclosed and invisible to the naked eye.
This seems like an incredibly strange practice â especially since Apple doesnât sell these parts separately â except it turns out to be part of a truly convoluted rules-lawyering exploit only a company like Apple could pull off and get away with.
Remember, trademarks are a consumer protection measure to defend against counterfeits. Appleâs registered logo trademark protects consumers from being tricked into buying fake products, and deputizes Apple to defend its mark against counterfeits.
While some counterfeiting happens domestically the major concern is usually counterfeits imported from foreign trade. This brings us to Customs and Border Patrol, which you might know as the other side of the ICE/CBP border control system. You might be surprised to see them involved with this, since Border Patrol agents are fully-militarized police outfitted to combat armed drug cartels.
But among its other duties, Border Patrol takes a proactive role in enforcing intellectual property protection at ports of trade â backed by the full force of the Department of Homeland Security â by seizing goods it identifies as counterfeit and either destroying them outright or else selling them themselves at auction.1
To get your property back, you have to sue Border Patrol â an infamously untouchable police force â and win.
When it comes to copyright, it can be very easy to lose the forest for the trees. Thatâs why I want to start this series with a bit of a reset, and establish a baseline understanding of copyright doctrine as a whole, and the context in which our modern experience of copyright sits.
The current state of copyright law is a quagmire, due not just to laws but also international treaty agreements and rulings from judges who donât understand the topic and who even actively disagree with each other.
That convolution is exactly why I donât want to get lost in those twists and turns for this, and instead want to start with the base principles weâve lost along the way.
You donât need to understand the layers to see the problem. In fact, intellectual property is a system whose convolutions hide the obviousness of the problem.
Complexity is good only when complexity is needed to ensure the correctness of the outcome. But here, far from being necessary to keep things working right, the complexity hides that the outcome is wrong.
But that outcome, our current regime that we know as copyright policy, is so wrong â not only objectively bad, but wrong even according to its own definition â that at this point it takes significant work just to get back to the idea that
This is my controversial stance, and the premise of my series: copyright (as properly defined) is a cohesive system, and, when executed properly, is actually good for everyone.
And Iâm not âone true Scotsmanâing this either; copyright isnât just an arbitrary legal concept, itâs a system that arises naturally from a set of solid base principles.
The first step in my âunderstanding the forest for the treesâ project is separating the big, nebulous, polluted idea of âcopyrightâ out into the parts people can mostly agree on and the parts that are just evil and bad.
Fortunately, the âgoodâ and âbadâ groups line up really well with âoriginal intentâ compared to âjunk that was added laterâ.
Generally speaking, itâs not useful to just make a distinction and act like doing so is the whole job done, unless you just care about smarmy pedantic internet points. But Iâm not doing this to be pedantic, Iâm making the distinction between the core idea and the junk thatâs corrupted it because it turns out to be really important.
What weâre subjected to today in the name of copyright does not come from the real principles of copyright. Compared to the current state of US intellectual property law, the âreal copyrightâ Iâm talking about is like grass so utterly smothered by concrete that not only do no strands poke through, everyone involved has forgotten it was ever there.
The situation is so bad that even though I think copyright should be a good thing, I think our current bastardization of it may be worse than nothing at all, to the point where weâd be better off with the problems real copyright is meant to solve than with all the new, worse problems itâs inflicted on us.
But because what weâre enduring now is a corruption of another thing and not its own original evil, weâre not limited to measuring it by the harm it inflicts: we can also measure it by its deviation from what we know it should be.
So whatâs the good version? This true, unadulterated form of creative rights?
Netflix is finally turning the screws on multi-user accounts. That âfinallyâ is exasperation in my voice, not relief. Netflix is demanding you pay them an extra surcharge to share your account with remote people, and even then caps you at paying for a maximum of two. Itâs been threatening to do something like this for a long, long time:
Netflix threatening this for so long was a mistake on its part, because thatâs given me a long, long time for these thoughts to slowly brew in the back of my head. And thereâs a lot wrong here.
Now, a lot of people pushing the anti-trans agenda arenât actually murderers or overt political fascists. The extremists are still the extremists. Moderates sustain these genocidal movements, but they donât drive them. Unlike the center, the people who rise to the top are always the ones drawn to the movement because of its viciousness. It still matters, though, whether the people towards the middle are willing to help them or not.
Itâs still true that legislators and anti-trans activists are not pursuing moderate treatment (psychotherapy, etc); theyâre distinctly aiming for obliteration. But that message only works for people who agree with those people openly willing to back genocide outright, or people who can agree with the lampshade.
Even most of the republicans donât actually know the people theyâre voting for are full-on cuckoo-bananas. But the âsocially liberal, fiscally conservativeâ types end up pushing this agenda, even if theyâre unaware.
People see a ballot where one choice describes a more convenient world for them, and they tick it. Theyâre not supposed to think about the violence it takes to make that happen.
People like framing the idea of pride like they frame the abolition of slavery or civil rights: as a celebration of a positive political change that happened in history, rather than an ongoing conflict. As soon as pride feels like a conflict, it feels like a conflict theyâre on a side of, because they are.
A lot of the people helping propel the cause of genocide donât actually believe in the case for genocide; the genocidalists depend heavily on people buying the euphemism. Thatâs another topic I want to do a longer piece on someday, but hereâs a brief summary on how rhetoric works on marks.
The mark says they donât want children to be abused. Now, the people pushing the anti-abuse laws donât care about children being abused, and their laws donât prevent abuse, but anti-abuse is the euphemism theyâre using to disguise their intents, and the mark agrees with that euphemism, so they think they must agree with the policy. In effect, the fascist hijacks the legitimate cause, just like they hijack institutions.
Even though the marks would, in isolation, be opposed to the real agenda of genocide, they believe enough in the cover story that they show up to support the genocidal cause.
Another key factor in why people support policies they disagree with is the so-called Shirley Exception. Transphobic culture and legislation are both perceived as uncomfortable and inconvenient for a few people â adding some hoops they have to jump through â but theyâre usually not seen as being explicitly genocidal.
Before we get too deep into the craziness, I want to explain a couple common talking points.
The Social Contagion lie & Rapid-Onset Gender Dysphoriađ
In real life, the scary sounding âsocial contagionâ is just the study of the propagation of ideas across a social network, more commonly known as memetics.
As applied to transgender people though, âsocial contagionâ is the conspiracy theory that transgenderism is an invented evil that is being spread to children through education and social media.
This idea helps keeps people from seeing trans exterminationism as a true genocide: transgender people arenât a ârealâ group of people, theyâre actually an effect of people being tricked by âbiased out-of-control transgender activistsâ, psychiatrists, scheming liberals, a cabal of elite pedophiles, or just Satan himself.
Ross Douthat, âHow to Make Sense of the New L.G.B.T.Q. Culture Warâ, NYT op-ed
What weâre seeing today isnât just a continuation of the gay rights revolution; itâs a form of social contagion which our educational and medical institutions are encouraging and accelerating. These kids arenât setting themselves free from the patriarchy; theyâre under the influence of online communities of imitation and academic fashions laundered into psychiatry and education â one part Tumblr and TikTok mimesis, one part Judith Butler.
At first this seems like the same basic myth as the debunked Homosexuality as Contagion false narrative now understood as the left-handed fallacy: the real cause for the increase in visibility is of course reduced social stigma and advancements in social and legal recognition.
But the contagion myth has been recently âlegitimizedâ by the pseudo-medical label of Rapid-Onset Gender Dysphoria, describing a phenomenon where âchildren seemed to experience a sudden or rapid onset of gender dysphoria, appearing for the first time during puberty or even after its completionâ correlating with âan increase in social media/internet use.â
The only paper in the medical literature about Rapid-Onset Gender Dysphoria is the one that invents the diagnosis: Lisa Littmanâs Rapid-onset gender dysphoria in adolescents and young adults: A study of parental reports.
Littmanâs study has been widely discredited by actual medical doctors â a thing Littman is not â for pulling numbers from online straw polls in order to claim discovery of a brand new disease without even attempting to assess single case of it. The real fatal flaw, though, is right in the title: itâs a study of parental reports, where untrained parties not actually afflicted by the alleged condition are asked to assess its existence in people, who in many cases are actively motivated to conceal it for fear of abuse or rejection.
Worse, due to the ultrapartisan anti-transgender bias of the websites on which the polls were conducted (4thwavenow, transgender trend, and youthtranscriticalprofessionals. No, seriously.), the data was from parents who were already upset about their children coming out as trans and looking for an external, pathological factor to blame.
In the last year or so the mainstream political attitude towards transgender people has gone from generalized bigotry to trans genocide becoming a pillar of the republican political platform.
Right off the bat, hereâs Trump boosting the âactivist teachers are infecting your childrenâ social contagion rhetoric while emphasizing âparentsâ rightsâ to⊠keep their children from wanting to be trans, I guess? To raucous applause, of course:
The republican party loves the tribalist us-vs-them mentality. When the democrats are painted categorically as sexual predators and threats to children, family, and the American way, that only helps them. Hereâs Rebecca Boone connecting some of the dots in âRight-wing extremists amp up anti-LGBTQ rhetoric onlineâ:
A toxic brew of hateful rhetoric has been percolating in Idaho and elsewhere around the U.S., well ahead of the arrests of the Patriot Front members at the pride event Saturday in Coeur dâAlene.
âŠ
A âmassive right-wing media ecosystemâ has been promoting the notion that âthere are people who are trying to take your kids to drag shows, there are trans people trying to âgroomâ your children,â [extremism researcher] Lewis said.
The rhetoric has been amplified by right-wing social media accounts that use photos and videos of LGBTQ individuals to drive outrage among their followers.
Genocide. Itâs a big word.
It describes possibly the worst atrocity the institution of society can commit.
Itâs so mind-bogglingly terrible that a staple holocaust denial argument is that it was simply too bad to have really happened.
Genocide is such a big word that I didnât title this âThe Case for Genocideâ, even though thatâs what itâs about: the case people actually make for genocide, here, today.
Genocide is an internationally recognized crime where acts are committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.
This is the ânarrow definitionâ found in the 1948 Genocide Convention, written as a response to World War II and the atrocities of the holocaust.
Modern groups like Genocide Watch classify other genocidal crimes like ethnic cleansing and political mass murder as genocide.
Genocide literally means âto kill a tribeâ, or âto kill a populationâ. It has the -cide suffix, meaning to kill, but the âgenoâ is a population. The crime is the extermination of a group, not just the murder of its members.
So, if someone decides that they want to make a thing no longer exist, and that thing is a kind of person, executing on that belief is genocide.
This usually maps well to a political faction, but it isnât necessarily driven by one particular authority: James Glassâs paper talks about the âIdea as leaderâ in the psychology of genocide: that the ideology is a kind of shared fantasy in a psychological space, and that Rousseauâs âfervour of intoleranceâ can be amplified in willed belief and enthusiastic participation in an idea greater than oneself.
There are obvious examples of genocide, both historical (like Nazi Germany) and current: the ongoing Uyghur genocide in China, but also cases where itâs not yet generally understood that a genocide event is even occurring.
(Trans people. Iâm talking about trans people.)
I shouldnât need to explain how genocide works in practice.
How it starts with âus vs themâ ingroup/outgroup polarization,
how itâs used by authoritarians to pin the blame on their own failings or unavoidable facts of life on subgroups that can be demonized and persecuted,
how the importance of national identity becomes prioritized above the people who make up the nation,
how the outgroup is made to be recognizable and distinguishable in order to facilitate attack,
how the definition of that subgroup shifts to meet the political needs of the people in power,
how the perpetrators dehumanize the outgroup with language that equates them with animals, filth, and disease in order to numb human empathy,
how the dominant ingroup wields political and societal power to deny the victims full rights of citizenship,
and how the victims are ultimately persecuted, displaced, deported, or killed (extrajudicially or otherwise).
Above all, the unabashed cruelty that ensues.
You should know this. After the 20th century, all educated people should know this.
So here it is. A genocide is happening right now in America and Europe against trans people with the goal of eradicating the population. So letâs take a good, hard look at it.
Letâs really crack this egg open.