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⚖ CDL: The AAP is Wrong About Everything

In going through these arguments, I’ll 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 plaintiff’s argument.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing is a victory-lap publication from the AAP, published after the summary judgement in favor of the plaintiffs.

And there’s also EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment, written by the EFF in support of the Internet Archive, and whose arguments overlap a lot with mine.

Alright, there’s never anything more damning than their own words, so let’s just look at what it is they said here.

⚖ CDL: Publishers Against Books

Combining lending with digital technology is tricky to do within the constraints of copyright. But it’s 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. It’s 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.

⚖ How Nintendo Misuses Copyright

When I’m looking for an example of copyright abuse, I find myself returning to Nintendo a lot on this blog. Nintendo is a combination hardware/software/media franchise company, so they fit a lot of niches. They’re a particularly useful when talking about IP because the “big N” is both very familiar to people and also egregiously bad offenders, especially given their “friendly” reputation.

Nintendo has constructed a reputation for itself as a “good” games company that still makes genuinely fun games with “heart”. Yet it’s also infamously aggressive in executing “takedowns”: asserting property ownership of creative works other people own and which Nintendo did not make.

You’d think a company like Nintendo — an art creation studio in the business of making and selling creative works — would be proponents of real, strong, immutable creative rights. That, as creators, they’d 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 Nintendo’s 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.

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.

Popeye/Donkey Kong comparison

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.

⚖ Apple's Trademark Exploit

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 — especially since Apple doesn’t sell these parts separately — 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. Apple’s registered logo trademark protects consumers from being tricked into buying fake products, and deputizes Apple to defend its mark against counterfeits.

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.

⚖ You've Never Seen Copyright

Hear me out: copyright is good.

When it comes to copyright, it can be very easy to lose the forest for the trees. That’s 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 don’t understand the topic and who even actively disagree with each other. That convolution is exactly why I don’t want to get lost in those twists and turns for this, and instead want to start with the base principles we’ve lost along the way.

You don’t 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 — not only objectively bad, but wrong even according to its own definition — 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 I’m not “one true Scotsman”ing this either; copyright isn’t just an arbitrary legal concept, it’s a system that arises naturally from a set of solid base principles.

The first step in my “understanding the forest for the trees” project is separating the big, nebulous, polluted idea of “copyright” out into the parts people can mostly agree on and the parts that are just evil and bad. Fortunately, the “good” and “bad” groups line up really well with “original intent” compared to “junk that was added later”. Generally speaking, it’s 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 I’m not doing this to be pedantic, I’m making the distinction between the core idea and the junk that’s corrupted it because it turns out to be really important.

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.

https://www.instagram.com/p/Bp92AGvlWl0/

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 Big Double-Dip

Netflix is finally turning the screws on multi-user accounts. That “finally” 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. It’s been threatening to do something like this for a long, long time:

Since 2011, when the recording industry started pushing through legal frameworks to criminalize multi-user account use by miscategorizing “entertainment subscription services” as equivalent to public services like mail, water, and electricity for the purposes of criminal prosecution,

Since similar nonsense in 2016 exploiting the monumentally terrible Computer Fraud and Abuse Act,

Since 2019, when Netflix announced (to its shareholders) that it was looking for ways to limit password sharing,

Since 2021, when Netflix started tracking individual users by location and device within a paying account,

Since 2022, when it started banning group use in Portugal, Spain, and New Zealand, to disastrous consequence. Also, Canada, but temporarily. And, of course, then threatened to “crack down” on “password sharing” in “Early 2023”,

Since January, when it threatened to roll out “paid password sharing” in the “coming months”,

Since February, when it released a disastrous policy banning password sharing, then lied about the policy being an error and made a big show of retracting it due to the massive backlash, but then went ahead and did it in Canada anyway,

And finally now since just now, as it’s finally, really, for-realsies banning password sharing this quarter.

Netflix threatening this for so long was a mistake on its part, because that’s given me a long, long time for these thoughts to slowly brew in the back of my head. And there’s a lot wrong here.

the teat one this is a real graphic Netflix made!

Netflix’s pricing model🔗

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

⚖ The Génocidaires: People

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.

r/pansexual: You're not welcomed

Buying the euphemism🔗

A lot of the people helping propel the cause of genocide don’t actually believe in the case for genocide; the genocidalists depend heavily on people buying the euphemism. That’s another topic I want to do a longer piece on someday, but here’s a brief summary on how rhetoric works on marks.

The mark says they don’t want children to be abused. Now, the people pushing the anti-abuse laws don’t care about children being abused, and their laws don’t prevent abuse, but anti-abuse is the euphemism they’re 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.

The Shirley Exception🔗

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 — adding some hoops they have to jump through — but they’re usually not seen as being explicitly genocidal.

⚖ The Génocidaires: Exterminationism


Okay. We looked at law. Let’s keep looking. Let’s gaze straight at the horrors until our stomachs churn and our eyes bleed.

Rhetoric background info🔗

Before we get too deep into the craziness, I want to explain a couple common talking points.

The Social Contagion lie & Rapid-Onset Gender Dysphoria🔗

In real life, the scary sounding “social contagion” is just the study of the propagation of ideas across a social network, more commonly known as memetics. As applied to transgender people though, “social contagion” 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 aren’t a “real” group of people, they’re actually an effect of people being tricked by “biased out-of-control transgender activists”, psychiatrists, scheming liberals, a cabal of elite pedophiles, or just Satan himself.

Ross Douthat, “How to Make Sense of the New L.G.B.T.Q. Culture War”, NYT op-ed What we’re seeing today isn’t just a continuation of the gay rights revolution; it’s a form of social contagion which our educational and medical institutions are encouraging and accelerating. These kids aren’t setting themselves free from the patriarchy; they’re under the influence of online communities of imitation and academic fashions laundered into psychiatry and education — 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 “legitimized” by the pseudo-medical label of Rapid-Onset Gender Dysphoria, describing a phenomenon where “children seemed to experience a sudden or rapid onset of gender dysphoria, appearing for the first time during puberty or even after its completion” correlating with “an increase in social media/internet use.” The only paper in the medical literature about Rapid-Onset Gender Dysphoria is the one that invents the diagnosis: Lisa Littman’s Rapid-onset gender dysphoria in adolescents and young adults: A study of parental reports.

Littman’s study has been widely discredited by actual medical doctors — a thing Littman is not — 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: it’s 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.

⚖ The Génocidaires: Laws


So, we’ve talked broad strokes. Here’s where we start seeing specific policies emerge as part of the agenda.

Genocide as a core of the platform🔗

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, here’s Trump boosting the “activist teachers are infecting your children” social contagion rhetoric while emphasizing “parents’ rights” 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. Here’s Rebecca Boone connecting some of the dots in “Right-wing extremists amp up anti-LGBTQ rhetoric online”:

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 d’Alene.

A “massive right-wing media ecosystem” has been promoting the notion that “there are people who are trying to take your kids to drag shows, there are trans people trying to ‘groom’ your children,” [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.

Because I literally can’t write fast enough to keep up with the horrors, here’s the Texas GOP Report of the Permanent 2022 Platform & Resolutions Committee. As of 2022, the core platform (which is a hodgepodge of christian nationalist nonsense, in addition these bits) includes:

⚖ The Génocidaires: Intro

Genocide. It’s a big word. It describes possibly the worst atrocity the institution of society can commit. It’s 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 didn’t title this “The Case for Genocide”, even though that’s what it’s about: the case people actually make for genocide, here, today.

“Genocide”, definition, semiotics🔗

It’s counterintuitively difficult to talk about genocide because of how thoroughly the word has become shorthand for pure evil. So first, let’s define the word itself. The United States Holocaust Museum has an excellent page on the definition of the word here:

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 “narrow definition” 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 “to kill a tribe”, or “to kill a population”. It has the -cide suffix, meaning to kill, but the “geno” 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.

In practice, genocide is not just the crime of the act, but also the agenda. Directly killing members of the group is one act of a genocide, but so is “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” or “Imposing measures intended to prevent births within the group” — economic oppression and eugenics, respectively. Genocide is “a coordinated plan to annihilate the individual lives of a targeted national group through disintegration of the institutions of culture, economics, language, religion, and destruction of other essential foundations of personal security, liberty, and dignity”. In addition to the effects of the act, there is also a premeditation on behalf of the organizers and drivers of the agenda.

This usually maps well to a political faction, but it isn’t necessarily driven by one particular authority: James Glass’s paper talks about the “Idea as leader” in the psychology of genocide: that the ideology is a kind of shared fantasy in a psychological space, and that Rousseau’s “fervour of intolerance” 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 it’s not yet generally understood that a genocide event is even occurring.

(Trans people. I’m talking about trans people.)

I shouldn’t need to explain how genocide works in practice. How it starts with “us vs them” ingroup/outgroup polarization, how it’s 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 let’s take a good, hard look at it. Let’s really crack this egg open.