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.

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.

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.

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.