GioCities

blogs by Gio

Tagged: enforcement

⚖ The ambiguous "use"

I keep seeing people make this error, especially in social media discourse. Somebody wants to “use” something. Except obviously, it’s not theirs, and so it’s absurd for them to make that demand, right?

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:

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.

webcomicname: beliefs you do not agree with

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.

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.

95% of the time when people complain about a “use” being inappropriate, or complain about people feeling “entitled” to a “use”, they’re talking about a specific kind of use that has its own field of study under the broad category of “intellectual property”.

When people categorically object to “use” of their work, this can mean one of two things. One is that they subscribe to the extremely juvenile idea that authors have an unlimited, perpetual, inalienable right to control all publication, derivation, and interpretation of work “they created”, for some definition of “create”. This is wrong. The question of “what rights do people have over information they produce” is an incredibly complex topic, and the answer isn’t “all of them, stupid”.

The other case — and this is usually the case — is that they mean something much more specific by the word “use”, and have simply failed to explain it. Maybe they specifically mean redistribution, or plagiarism, or a more nebulous idea of “ripping off”, or some combination of those things. Maybe you agree with this, or maybe you don’t, you don’t even know. You can’t possibly talk about it until they define what their assertion is!

This means in arguments about rights to “use” work which refuse to specify the exact rights they mean, the “sides” are effectively talking past each other. In good faith, this can just be a mistake, but in bad faith can be deliberate outrage farming. Unfortunately, this turns out to be a very effective sleight of hand when used deliberately.

It is very easy for someone to “feel” wronged when someone else is “using” “their” “thing”. But, if they haven’t actually been wronged, they’ll find it dificult to articulate why there’s a legitimate grievance, because they don’t have one. When this happens, instead of reconsidering their own emotions, people often cover up their own error by pretending they don’t need to articulate their grievance at all, and keep all their complaints convincingly ambiguous.

This happened with the Internet Archive lawsuit, an ugly saga I’ve discussed in detail. The rhetorical argument against the archive was this wiggly little “use”: “they’re using our books without paying us!” When in reality, the way the Internet Archive’s library was “using” them was lending out books they owned legally. But “we’re demanding libraries stop lending our books” makes you sound obviously evil, whereas “you have to pay us when you use our IP” doesn’t.

A person who believes “artists should be paid when you use their work” might also agree that “the builder doesn’t get paid every time the house sells” and “artists should study books on technique”. But the second two statements both conflict with the first one! How can they all make sense at once? Because the first statement uses a wiggly “use” that folds itself down to be as reasonable as you want it to be.

AI “use”§

I have another piece I’m writing about the very complicated relationship LLM AI has with “using” work. I’ll talk about this much more in-depth then, but here are some early thoughts to chew on. People really like using the ambiguous “use” with regards to AI, and I think one of the reasons is to create an outrage that’s amplified by the ambiguous metaphor.

Take the article1 OpenAI Pleads That It Can’t Make Money Without Using Copyrighted Materials For Free. Only in the body of the piece does it explain that the actual conflict is the unsettled question of whether or not AI training — an act that is mechanically very different from copying — is considered to be a violation of copyright that needs specific licensing.

This is a pretty detailed and technical question, actually, and one I have an upcoming major essay dedicated to. It’s also an important question! It deserves to be considered carefully and given a thoughtful, specific answer. Simplifying it down to “use” isn’t just inaccurate, it’s intellectually lazy.

An accurate summary would be “OpenAI argues Training on Copyrighted Materials Is Non-Infringing Use”, which is the thing that happened. But “OpenAI can’t make money without using copyrighted materials for free” bakes the outrage directly into the headline, and creates an easily-digestible narrative for people: OpenAI is profiting by exploiting a resource it should be paying for. But that all hinges on the ambiguous “use” in the title.

Same thing with News Corp sues Perplexity for ripping off WSJ and New York Post by Emma Roth2, where the imprecise phrase “ripping off” lets the reader immediately stop thinking about the problem. What does “ripping off” mean? It sure sounds bad when you don’t explain what happened. Was it plagiarism? Direct copy-paste? Why does News Corp think it was wronged?

In reality, Perplexity made a website that told people what another website said. Some people will agree with News Corp that telling users what another website says is an offensive misappropriation, but other people will argue that describing the content of other sites should be allowed speech. Both positions are interesting! But by using the vague phrase “ripping off” instead of describing the situation to people, this headline is actively obfuscating the question at hand and instead focusing on the “feeling” of offense. Framing the story as “News Corp feels offended” instead of describing the event in question turns the conversation into the team sports “who do you like more” contest, which is worthless.

Conclusion§

Don’t talk past each other!

Encourage an understanding of the topics you care about!

Don’t reduce complex questions down to team sports!

Precision of language!

  1. this is another xerox-of-a-xerox article; it’s mostly just an unnecessary summary of actual reporting by The Telegraph. ↩

  2. Hey, look at that byline, she’s another crypto skeptic who naturally pivoted to AI skepticism. We just talked about that! ↩

⚖ 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.

⚖ Copyright Abusers Lost Their Claim

or, the many people who said movies like Coyote v. Acme that were killed for a tax write-off should be forced into the public domain were right, and here’s why

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.

⚖ 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.

🎼 Notes on the VRC Creator Economy

  • Posted in gaming

My friend Floober brought some recent changes VRChat is making in chat, and I thought I’d jot down my thoughts.

The problem with the VRC economy is the same problem as with most “platform economies”: everyone is buying lots in a company town.

The Store§

This was the precipitating announcement: VRChat releasing a beta for an in-game real-money store.

Paid Subscriptions: Now in Open Beta! — VRChat Over the last few years, we’ve talked about introducing something we’ve called the “Creator Economy,” and we’re finally ready to reveal what the first step of that effort is going to look like: Paid Subscriptions!

As it stands now, creators within VRChat have to jump through a series of complicated, frustrating hoops if they want to make money from their creations. For creators, this means having to set up a veritable Rube Goldberg machine, often requiring multiple external platforms and a lot of jank. For supporters, it means having to sign up for those same platforms
 and then hope that the creator you’re trying to support set everything up correctly.

(The problem, of course, is that “frustrating jank” was designed by VRChat, and their “solution” is rentiering.)

Currently, the only thing to purchase is nebulous “subscriptions” that would map to different world or avatar features depending on the content. But more importantly, this creates a virtual in-game currency, and opens the door to future transaction opportunities. I’m especially thinking of something like an avatar store.

I quit playing VRChat two years ago, when they started to crack down on client-side modifications (which are good) by force-installing malware (which is bad) on players’ computers. Since then I’ve actually had a draft sitting somewhere about software architecture in general, and how you to evaluate whether it’s safe or a trap. And, how just by looking at the way VRChat is designed, you can tell it’s a trap they’re trying to spring on people.

The Store of Tomorrow§

Currently, the VRC Creator Economy is just a currency store and a developer api. Prior to this, there was no way for mapmakers to “charge users” for individual features; code is sandboxed, and you only know what VRC tells you, so you can’t just check against Patreon from within the game1.

But the real jackpot for VRC is an avatar store. Currently, the real VRC economy works by creators creating avatars, maps, and other assets in the (mostly-)interchangeable Unity format, and then selling those to people. Most commonly this is seen in selling avatars, avatar templates, or custom commissioned avatars. Users buy these assets peer-to-peer.

This is the crucial point: individuals cannot get any content in the game without going through VRC. When you play VRChat, all content is streamed from VRChat’s servers anonymously by the proprietary client. There are no URLs, no files, no addressable content of any kind. (In fact, in the edge cases where avatars are discretely stored in files, in the cache, users get angry because of theft!) VRChat isn’t a layer over an open protocol, it’s its own closed system. Even with platforms like Twitter, at least there are files somewhere. But VRChat attacks the entire concept of files, structurally. The user knows nothing and trusts the server, end of story.

⚖ 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.

đŸ–± So you want to write an AI art license

  • Posted in cyber

Hi, The EFF, Creative Commons, Wikimedia, World Leaders, and whoever else,

Do you want to write a license for machine vision models and AI-generated images, but you’re tired of listening to lawyers, legal scholars, intellectual property experts, media rightsholders, or even just people who use any of the tools in question even occasionally?

You need a real expert: me, a guy whose entire set of relevant qualifications is that he owns a domain name. Don’t worry, here’s how you do it:

Given our current system of how AI models are trained and how people can use them to generate new art, which is this:

CurioModelAliceCurioModelAliceHello. Here are N images andtext descriptions of what they contain.Training (looks at images, "makes notes", discards originals)OK. I can try to make similar images from my notes,if you tell me what you want.Hello. I would like a depiction of this new thing you've never seen before.OK. Here are some possibilites.

đŸ–± Ethical Source is a Crock of Hot Garbage

  • Posted in cyber

There’s this popular description of someone “having brain worms”. It invokes the idea of having your mind so thoroughly infested with an idea to the point of disease. As with the host of an infestation, such a mind is poor-to-worthless at any activity other than sustaining and spreading the parasite.

A “persistent delusion or obsession”. You know, like when you think in terms of legality so much you can’t even make ethical evaluations anymore, or when you like cops so much you stop being able to think about statistics, or the silicon valley startup people who try to solve social problems with bad technology, or the bitcoin people who responded to the crisis in Afghanistan by saying they should just adopt bitcoin. “Bad, dumb things”. You get the idea.

And, well.

Okay, so let’s back way up here, because this is just the tip of the iceberg of a story that needs years of context. I’ll start with the most recent event here, the Mastodon tweet.

The Mastodon Context§

The “he” Mastodon is referring to is ex-president-turned-insurrectionist Donald Trump, who, because his fellow-insurrectionist friends and fans are subject to basic moderation policies on most of the internet, decided to start his own social network, “Truth Social”. In contrast to platforms moderated by the “tyranny of big tech”, Truth Social would have principles of Free Speech, like “don’t read the site”, “don’t link to the site”, “don’t criticise the site”, “don’t use all-caps”, and “don’t disparage the site or us”. There are a lot of problems here already, but because everything Trump does is terrible and nobody who likes him can create anything worthwhile, instead of actually making a social networking platform, they just stole Mastodon wholesale.

Mastodon is an open-source alternative social networking platform. It’s licensed under an open license (the AGPLv3), so you are allowed to clone it and even rebrand it for your own purposes as was done here. What you absolutely are not allowed to do is claim the codebase is your own proprietary work, deliberately obscure the changes you made to the codebase, or make any part of the AGPL-licensed codebase (including your modifications) unavailable to the public. All of which Truth Social does.

So that’s the scandal. And so here’s Mastodon poking some fun at that.