The Homestuck Independent Creative Union was announced in October 2023, claiming itself to be a âunionâ of creators working on Homestuck associated projects.
The main selling point of this organization is that it was fully independent of Homestuck, Inc., Andrew Hussie, or any of the other existing management structures that had damaged their reputations.
This was untrue from day one.
The HICU was never a union and it was never independent of Andrew.
In fact Andrew doesnât just have theoretical authority, theyâre actively wielding power over projects in secret.
I want to give a very important disclaimer for this âanti-HICUâ looking article because I really, really donât want to see blame misplaced because of this.
I think when most people familiar with it think of the HICU, the reaction is âoh, theyâre doing betterâ or even âyeah, Iâm on their side.â
I donât fault you for this!
Based on what they said about themselves many people â including me personally â gave the HICU a huge amount of good credit upfront, and theyâve done very little publicly to hurt that image.
So if youâre an HICU person â if youâre with FRAF, or DCRC, or even Beyond Canon â I am not attacking you with this!
I am not against your âside.â The problem here is not the creatives, itâs strictly management.
Whether youâre a fan or someone trying to work with the union, you are the one at risk here and I want to help you most of all.
Around October 2023 Andrew Hussie ârestructuredâ Homestuckâs publishing agreement with Viz Media in order to reestablish their âcontrol over the brand.â
Homestuck then announced the relaunch of Homestuck^2: Beyond Canon, run by the also newly-announced Homestuck Independent Creative Union.
Since November 2023 The Unofficial Homestuck Collection has been entangled in legal discussions with Homestuck and Andrew Hussie.1
This has gone disastrously bad, from almost the very beginning.
Since Andrew has now sent us a DMCA takedown demand and persistently threatened us with spurious lawsuits, I am taking down The Unofficial Homestuck Collectionâs web presence at Homestuckâs demand.
The current set of legal demands does not affect the GitHub repository itself, so releases of the reader are still available.
An outdated copy of the reader and some assets are currently also available from a copy Homestuck made of the collection against our wishes (homestuck.github.io) â more on this later.
However, the original team behind the collection (Bambosh and Gio) has been forced to stop supporting our work.
This was not driven by copyright concern, community relations, or any healthy professionalism, but an unprofessional spite and demand for control on the part of Andrew Hussie.
Hostile Takeover
In November 2023 Homestuck sent me and Bambosh (co-creators of the UHC) an offer to collaborate on The Unofficial Homestuck Collection.
We initially engaged with this offer because it came with a commitment to respect the projectâs independence and for the collaboration to be fully insulated from previous personal grievances.
But this pretense of constructive collaboration turned out to be false almost immediately.
For the entire period of time since the first communication â now multiple years â Homestuck has used threats, lies, legal shakedowns, and other psychological pressure tactics to attempt to seize control of The Unofficial Homestuck Collection in a hostile takeover.
There was never a legal basis for Homestuck to control The Unofficial collection, and so they have been attempting to use extra-legal tactics to do so.
While the archival impact is unfortunate, the main complaint here is not that we were entitled to distribute Homestuck and itâs wrong that weâve had to stop.
We have no particular legal right to reproduce or distribute the copyrighted Homestuck material, and so did not feel entitled to continue doing it.
The fact that executing the takedown demands weâve received results in material being inaccessible is a side effect of a deeper problem.
The problem is that the way Andrew acted is completely unacceptable.
They demanded control over work that was not theirs, demanded we denounce their personal enemies, demanded we recant previous criticisms, and more.
This was all done under a pretense of constructive collaboration with the community that turned out to be false from the beginning.
Ultimately Andrew has demanded (in violation of their own assurances) that we denounce previous criticism of Homestuck management and give full managerial control over the independent Collection project over to Andrew and their chosen delegates.
Under this extortion we would be required to participate in Andrewâs attempt to sweep their past professional misconduct under the rug, and we would remain subordinate to any other demands they made to use the project to attempt to control the fan community.
We have not allowed this hostile takeover to happen to the UHC.
Since Andrew has fully committed to hostility towards us and fan projects in general and demanded things we cannot give them, Iâm choosing to disengage rather than face a perpetual series of baseless legal attacks and other harassment.
AI is a huge subject, so itâs hard to boil my thoughts down into any single digestible take.
Thatâs probably a good thing. As a rule, if you can fit your understanding of something complex into a tweet, youâre usually wrong.
So Iâm continuing to divide and conquer here, eat the elephant one bite at a time, etc.
Right now I want to address one specific question: whether people have the right to train AI in the first place.
The argument that they do not1 goes like this:
When a corporation trains generative AI they have unfairly used other peopleâs work without consent or compensation to create a new product they own.
Worse, the new product directly competes with the original workers.
Since the corporations didnât own the original material and werenât granted any specific rights to use it for training, they did not have the right to train with it.
When the work was published, there was no expectation it would be used like this, as the technology didnât exist and people did not even consider âtrainingâ as a possibility.
Ultimately, the material is copyrighted, and this action violates the authorsâ copyright.
I have spent a lot of time thinking about this argument and its implications. Unfortunately, even though I think that while this identifies a legitimate complaint, the argument is dangerously wrong, and the consequences of acting on it (especially enforcing a new IP right) would be disastrous. Let me work through why:
The complaint is real
Artists wanting to use copyright to limit the âright to trainâ isnât the right approach, but not because their complaint isnât valid.
Sometimes a course of action is bad because the goal is bad, but in this case I think people making this complaint are trying to address a real problem.
I agree that the dynamic of corporations making for-profit tools using previously published material to directly compete with the original authors, especially when that work was published freely, is âbad.â
This is also a real thing companies want to do.
Replacing labor that has to be paid wages with capital that can be owned outright increases profits, which is every companyâs purpose. And thereâs certainly a push right now to do this. For owners and executives production without workers has always been the dream.
But even though itâs economically incentivized for corporations, the wholesale replacement of human work in creative industries would be disastrous for art, artists, and society as a whole.
So thereâs a fine line to walk here, because I donât want to dismiss the fear. The problem is real and the emotions are valid, but that doesnât mean none of the reactions are reactionary and dangerous.
And the idea that corporations training on material is copyright infringement is just that.
The learning rights approach
So let me focus in on the idea that one needs to license a âright to trainâ, especially for training that uses copyrighted work. Although Iâm ultimately going to argue against it, I think this is a reasonable first thought. Itâs also a very serious proposal thatâs actively being argued for in significant forums.
Copyright isnât a stupid first thought.
Copyright (or creative rights in general) intuitively seems like the relevant mechanism for protecting work from unauthorized uses and plagiarism, since the AI models are trained using copyrighted work that is licensed for public viewing but not for commercial use.
Fundamentally, the thing copyright is âforâ is making sure artists are paid for their work.
This was one of my first thoughts too.
Looking at the inputs and outputs, as well as the overall dynamic of unfair exploitation of creative work, âcopyright violationâ is a good place to start.
I even have a draft article where I was going to argue for this same point myself.
But as Iâve thought through the problem further, that logic breaks down.
And the more I work through it, every IP-based argument Iâve seen to try to support artists has massively harmful implications that make the cure worse than the disease.
Definition, proposals, assertions
The idea of a learning right is this: in addition to the traditional reproduction right copyright reserves to the author, authors should be able to prevent people from training AI on their work by withholding the right.
This learning right would be parallel to other reservable rights, like reproduction: it could be denied outright, or licensed separately from both viewing and reproduction rights at the discretion of the rightsholder.
Material could be published such that people were freely able to view it but not able to use it as part of a process that would eventually create new work, including training AI.
The mechanical ability to train data is not severable from the ability to view it, but the legal right would be.
This is already being widely discussed in various forms, usually as a theory of legal interpretation or a proposal for new policy.
Asserting this right already exists
Typically, when the learning rights theory is seen in the wild itâs being pushed by copyright rightsholders who are asserting that the right to restrict others from training on their works already exists.
A prime example of this is the book publishing company Penguin Random House, which asserts that the right to train an AI from a work is already a right that they can reserve:
Penguin Random House Copyright Statement (Oct 2024)
No part of this book may be used or reproduced in any manner for the purpose of training artificial intelligence technologies or systems. In accordance with Article 4(3) of the Digital Single Market Directive 2019/790, Penguin Random House expressly reserves this work from the text and data mining exception.
In the same story, the Society of Authors explicitly affirms the idea that AI training cannot be done without a license, especially if that right is explicitly claimed:
I keep seeing people make this error, especially in social media discourse.
Somebody wants to âuseâ something. Except obviously, itâs not theirs, and so itâs absurd for them to make that demand, right?
Quick examples
Iâm not trying to pick on this person at all: theyâre not a twitter main character, theyâre 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 Iâve seen a lot:
Iâve also seen the exact inverse of this: people getting upset at artists because once the work is âout thereâ anyone should be able to âuseâ it. (But I donât 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 âcertain thingsâ being claimed?
The problem is that âuseâ is an extremely ambiguous word that can mean anything from âstudyâ to âpirateâ to âcopy and resellâ. It can also cover particularly sensitive cases, like creating pornography or editing it to make a political argument.
But everything people do is âusingâ something. By itself, âuseâ is not a meaningful category or designation.
Say you buy a song â listening to it, sampling it, sharing it, performing it, discussing it, and using it in a video are all âusesâ, 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 youâre talking about.
But if youâre not specific, there are unlimited combinations of âusesâ 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.
Thereâs no coherent argument in any sweeping statement about âuseâ; the only things being communicated are frustration and a team-sports-style siding with either âartistsâ or âconsumersâ (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, âuseâ) 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 ârespectâ, because this one tumblr post from 2015 said it so well:
flyingpurplepizzaeater
Sometimes people use ârespectâ to mean âtreating someone like a personâ and sometimes they use ârespectâ to mean âtreating someone like an authorityâ
and sometimes people who are used to being treated like an authority say âif you wonât respect me I wonât respect youâ and they mean âif you wonât treat me like an authority I wonât treat you like a personâ
and they think theyâre being fair but they arenât, and itâs not okay.
See, here the âargumentâ 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 âconversationâ, which encourages people to use whatever definition of other peopleâs words makes them the wrongest.
Copyright examples
Since Iâm 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 ârightâ to various âusesâ of things that are usually intangible ideas, so I think itâs unavoidably copyright time again.
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.
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 hereâs why
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 â the existence of which is a contribution to the public good â and for providing it in such a way that others will be able to build on it in the future. Itâs 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 Youâve Never Seen Copyright.
The takeaway from that, though, is not just that thereâs a fair version of copyright, but that copyright must look like that fair model.
The fact that such a thing as âgood copyrightâ exists as a sound philosophy is not a broad defense of the word âcopyrightâ itself, itâs an imperative requirement for the legitimacy of any system of power that claims to enforce copyright. The soundness of the philosophy doesnât 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 theyâre wrong.
The requirements for reciprocity intrinsic in copyright are how the system must work, but itâs not what actually happens today.
In practice, corporations regularly violate the fundamental principles of creative rights â both in letter and in spirit â and use copyright protections to profit without showing the required reciprocity.
Case studies are fun, but just listing out a bunch of horrors isnât what I set out to do; thatâs just groundwork for thinking about the problem.
Whatâs important is that theyâre 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?
Hereâs what I say: If you want out of the deal, so be it.
When someone wonât participate constructively â if they donât work in good faith, or at least begrudgingly accept the limits the system of copyright puts on them â 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 Iâll be damned if they havenât done just that.
Legitimacy
In Youâve Never Seen Copyright, I talked about how the word âcopyrightâ 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 doesnât just create a communication issue. Yes, it becomes increasingly unclear what people who say âcopyrightâ are talking about, but the legitimacy of the power structure depends entirely on being an implementation of a sound legal doctrine.
In going through these arguments, Iâll 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 plaintiffâs argument.
Combining lending with digital technology is tricky to do within the constraints of copyright.
But itâs 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.
Itâs 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.
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.
Introducing Nintendo
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.)
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 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.
The Homestuck Union Was Always Fake
Why training AI can't be IP theft
The ambiguous "use"
