Quick examples§

I’m not trying to pick on this person at all: they’re not a twitter main character, they’re not expressing an unusual opinion here, they seem completely nice and cool. But I think this cartoon they drew does a good job of capturing this sort of argument-interaction, which I’ve seen a lot:

crumb@cuptoast

???

Sun Sep 22 22:20:02 +0000 2024

I’ve also seen the exact inverse of this: people getting upset at artists because once the work is “out there” anyone should be able to “use” it. (But I don’t have a cartoon of this.)

There is an extremely specific error being made in both cases here, and if you can learn to spot it, you can save yourself some grief. What misuse is being objected to? What are the rights to “certain things” being claimed?

The problem is that “use” is an extremely ambiguous word that can mean anything from “study” to “pirate” to “copy and resell”. It can also cover particularly sensitive cases, like creating pornography or editing it to make a political argument.

But everything people do is “using” something. By itself, “use” is not a meaningful category or designation. Say you buy a song — listening to it, sampling it, sharing it, performing it, discussing it, and using it in a video are all “uses”, but the conversations about whether each is appropriate or not are extremely distinct. If you have an objection, it matters a lot what specific use you’re talking about.

But if you’re not specific, there are unlimited combinations of “uses” you could be talking about, and you could mean any of them. And when people respond, they could be responding to any of those interpretations. There’s no coherent argument in any sweeping statement about “use”; the only things being communicated are frustration and a team-sports-style siding with either “artists” or “consumers” (which is a terrible distinction to make!).

Formal logic§

This is not a new problem. This is the Fallacy of Equivocation, which is a subcategory of Fallacies of Ambiguity. This is when a word (in this case, “use”) has more than one meaning, and an argument uses the word in such a way that the entire position and its validity hinge on which definition the reader assumes.

The example of this that always comes to my mind first is “respect”, because this one tumblr post from 2015 said it so well:

flyingpurplepizzaeater Sometimes people use “respect” to mean “treating someone like a person” and sometimes they use “respect” to mean “treating someone like an authority”

and sometimes people who are used to being treated like an authority say “if you won’t respect me I won’t respect you” and they mean “if you won’t treat me like an authority I won’t treat you like a person”

and they think they’re being fair but they aren’t, and it’s not okay.

See, here the “argument” relies on implying a false symmetry between two clauses that use the same word but with totally different meanings. And, in disambiguating the word, the problem becomes obvious.

Short-form social media really exacerbates the equivocation problem by encouraging people to be concise, which leads to accidental ambiguity. But social media also encourages people to take offense at someone else being wrong as the beginning of a “conversation”, which encourages people to use whatever definition of other people’s words makes them the wrongest.

Copyright examples§

Since I’m already aware that copyright is a special interest of mine, I try to avoid falling into the trap of modeling everything in terms of copyright by default, Boss Baby style. But this is literally the case of a debate over who has the “right” to various “uses” of things that are usually intangible ideas, so I think it’s unavoidably copyright time again.

Copyright is busted, now what?§

A healthy system of creative rights, including a balanced form of copyright, is a reciprocal arrangement between creators, consumers, and the commons. Creators are granted some temporary exclusive rights by the government over qualifying intellectual work in order to incentivize creativity. These privileges are granted in exchange for creating valuable new information — the existence of which is a contribution to the public good — and for providing it in such a way that others will be able to build on it in the future. It’s an incentive for providing a specific social good, one which the market alone might not reward otherwise. Fortunately, this is actually how US copyright was designed; see You’ve Never Seen Copyright.

The takeaway from that, though, is not just that there’s a fair version of copyright, but that copyright must look like that fair model. The fact that such a thing as “good copyright” exists as a sound philosophy is not a broad defense of the word “copyright” itself, it’s an imperative requirement for the legitimacy of any system of power that claims to enforce copyright. The soundness of the philosophy doesn’t legitimate the system of power that shares its name, it damns it for failing its requirements.

When they invoke the philosophy of copyright to justify thuggery, it matters that they’re wrong.

The requirements for reciprocity intrinsic in copyright are how the system must work, but it’s not what actually happens today. In practice, corporations regularly violate the fundamental principles of creative rights — both in letter and in spirit — and use copyright protections to profit without showing the required reciprocity.

I can’t possibly list all the stories of what these violations look like. Seriously, just the thought of me having to give a representative sample of companies abusing IP law made me dread writing this series, it’s such a prolific problem. But I have shown a sample: Nintendo using copyright to kill new creative work, Apple using trademarks to keep competitors from conducting trade at all, book publishers trying to destroy the idea of buying and selling books… they’re all examples of how companies do everything they possibly can to get out of fulfilling their side of the bargain.

Case studies are fun, but just listing out a bunch of horrors isn’t what I set out to do; that’s just groundwork for thinking about the problem. What’s important is that they’re a representative sample of a kind of behavior. With all that established, you can read this with the knowledge that yes, they violate the purpose of the law as written and yes, violations are so regular they seem to define the practice.

So what does it all add up to?

Here’s what I say: If you want out of the deal, so be it. When someone won’t participate constructively — if they don’t work in good faith, or at least begrudgingly accept the limits the system of copyright puts on them — we stop respecting their claim to special privileges within it as legitimate, and understand it as the double-dealing overreach it is.

As self-evident as it sounds when I say it out loud, this argument is my nuclear option. This is what I would have to say if it ever got this bad; if, between the two of them, the courts and the corps ever broke the system beyond my last bit of tolerance. And I’ll be damned if they haven’t done just that.

Legitimacy§

In You’ve Never Seen Copyright, I talked about how the word “copyright” can refer to two very different things: either a philosophical basis that justifies copyright as a legal doctrine, or the system of power that describes how copyright is actually enforced, what enforcement looks like, and who it benefits.

But the fact that the power structure has diverged from the original philosophical intent doesn’t just create a communication issue. Yes, it becomes increasingly unclear what people who say “copyright” are talking about, but the legitimacy of the power structure depends entirely on being an implementation of a sound legal doctrine.

Introducing Nintendo§

Nintendo, even compared to its corporate contemporaries, has a distinctly hostile philosophy around art: if they can’t 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, it’s their control over everything they perceive to be their “share” of the gaming industry.

Let me start with a quick history, in case you’re not familiar with the foundation Nintendo is standing on.

Nintendo got its start in Japan making playing cards for the mob to commit crimes with. It only pivoted to “video games” after manufacturing playing cards for the Yakuza to use for illegal gambling dens. (I know it sounds ridiculous, but that’s literally what happened.)

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 “Radar Scope”:

Then, when that was a commercial failure, they wrote “conversion kit” code to turn those cabinets into a Popeye game, failed to get the Popeye rights they needed, and released it anyway. They kept the gameplay and even the character archetypes the same, they just reskinned it with King Kong. They didn’t even name the protagonist after they swapped out the Popeye idea, so he was just called Jumpman.

But then Nintendo was almost itself the victim of an abuse of IP law. “Donkey Kong” 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 — Kirby — and used it for the mascot of one of their biggest franchises. It was a significant move that demonstrates Nintendo’s extreme gratefulness — or even idolization — 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.

The Loaded Gun§

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 — backed by the full force of the Department of Homeland Security — 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 — an infamously untouchable police force — and win.

Copyright is supposed to be good§

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.

At this point, you might think I’m setting myself up to fail the purpose of a system is what it does test. If there’s some definition of what copyright “should” be, but it doesn’t map to the system of copyright as it actually exists, why bother spending time with a definition we fully expect not to apply to the system?

I’m not trying to imply that our current system is justified by a definition that’s meant to be its “purpose” even while the definition fails to describe how the system really works. In fact, I ultimately want to do the opposite.

The word “copyright” can refer to two very different entities.

One is copyright as a system of political power. This is the overall system, composed copyright legislation, international treaties, and systems of enforcement.

The other is copyright as a philosophical doctrine. This is the basis (at least ostensibly) for copyright law and enforcement power, and what the system is meant to derive from. Copyright as a political system should be an implementation of this philosophy, and its power derives its legitimacy from how well it maps to the philosophy and correctly implements it goals.

The philosophy should be good for artists, but the reality of the power structures is bad for artists. Not only is that bad, it also makes the discourse around the topic insufferable, because people talking about “copyright” usually aren’t referring to the same thing!

I argue that the philosophical doctrine of copyright is actually remarkably sound; the goals work, but the system of power has gone rotten. What’s more, we can identify the ways it’s gone bad by comparing it to the philosophy that it should derive from, and find that instead of being an implementation of the philosophy, it’s been corrupted, and ends up pushing a completely contrary set of goals.

What we’re 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 “real copyright” I’m 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 we’d be better off with the problems real copyright is meant to solve than with all the new, worse problems it’s inflicted on us.

But because what we’re enduring now is a corruption of another thing and not its own original evil, we’re 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 what’s the good version? This true, unadulterated form of creative rights?

Netflix’s pricing model§

So, first, what are multi-user accounts in the first place, and how does “password sharing” relate to that?

Eugenicists need broad centrist support§

Now, a lot of people pushing the anti-trans agenda aren’t actually murderers or overt political fascists. The extremists are still the extremists. Moderates sustain these genocidal movements, but they don’t 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.

It’s still true that legislators and anti-trans activists are not pursuing moderate treatment (psychotherapy, etc); they’re 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 don’t actually know the people they’re voting for are full-on cuckoo-bananas. But the “socially liberal, fiscally conservative” types end up pushing this agenda, even if they’re unaware. People see a ballot where one choice describes a more convenient world for them, and they tick it. They’re 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 they’re on a side of, because they are.