You should definitely read Youâve 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 arenât 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.
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.
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 donât just mean Apple asserting a monopoly over the concept of fruit, although it does do that also, all the time.)
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.
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.
Game Patent Grab Bag
