GioCities

blogs by Gio

Tagged: buying the euphemism

⚖ Game patent grab bag

This was originally something I was going to talk about in Corporations have Rejected Copyright, back when that series was going to just be one long post (really!). But since I saw Nintendo apparently sued Palworld today, I wanted to put this up as background information.

You should definitely read You’ve Never Seen Copyright first, particularly the explanation of what patents are, because this conversation directly follows from that. The most important thing to pick up on is how the Doctrine of Equivalents lets companies use patents that are supposedly very specific to threaten other implementations that are similar, even if they aren’t using the patented design.

Game patents are revelatory, because game rules as a category explicitly do not fall within the realm of patent rights, but companies have managed to file and defend fraudulent patents anyway.

⚖ 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.

But Apple has perfected the art of twisting this system to use it as a weapon against their opponents, and it is a nightmare. (And I don’t just mean Apple asserting a monopoly over the concept of fruit, although it does do that also, all the time.)

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.

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.

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

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?

⚖ The GĂ©nocidaires: 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.