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.
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.
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.
When it comes to copyright, it can be very easy to lose the forest for the trees. Thatâs 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 donât understand the topic and who even actively disagree with each other.
That convolution is exactly why I donât want to get lost in those twists and turns for this, and instead want to start with the base principles weâve lost along the way.
You donât 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 â not only objectively bad, but wrong even according to its own definition â 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.
And Iâm not âone true Scotsmanâing this either; copyright isnât just an arbitrary legal concept, itâs a system that arises naturally from a set of solid base principles.
The first step in my âunderstanding the forest for the treesâ project is separating the big, nebulous, polluted idea of âcopyrightâ out into the parts people can mostly agree on and the parts that are just evil and bad.
Fortunately, the âgoodâ and âbadâ groups line up really well with âoriginal intentâ compared to âjunk that was added laterâ.
Generally speaking, itâs not useful to just make a distinction and act like doing so is the whole job done, unless you just care about smarmy pedantic internet points. But Iâm not doing this to be pedantic, Iâm making the distinction between the core idea and the junk thatâs corrupted it because it turns out to be really important.
What weâre 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 âreal copyrightâ Iâm 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 weâd be better off with the problems real copyright is meant to solve than with all the new, worse problems itâs inflicted on us.
But because what weâre enduring now is a corruption of another thing and not its own original evil, weâre 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 whatâs the good version? This true, unadulterated form of creative rights?
Netflix is finally turning the screws on multi-user accounts. That âfinallyâ is exasperation in my voice, not relief. Netflix is demanding you pay them an extra surcharge to share your account with remote people, and even then caps you at paying for a maximum of two. Itâs been threatening to do something like this for a long, long time:
Netflix threatening this for so long was a mistake on its part, because thatâs given me a long, long time for these thoughts to slowly brew in the back of my head. And thereâs a lot wrong here.
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 youâre 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. Donât worry, hereâs how you do it:
This is an extremely condensed set of notes, designed as a high-level overview for thinking about the problem
Given our current system of how AI models are trained and how people can use them to generate new art, which is this:
The model and the works produced with the model are both distinct products. The model is more like processing software or tooling, while the artistic works created with the model are distinctly artistic/creative output.
Models do not keep the original images they were trained on in any capacity. The only keep mathematical notes about their properties. You (almost always) cannot retrieve the original image data used from the model after training.
There is a lot of misinformation about this, but it is simply, literally the case that a model does not include the training material, and cannot reproduce its training material. While not trivial (you canât have a model if you canât train it at all), when done properly, the specific training data is effectively incidental.
AI-generated art should be considered new craftsmanship â specifically, under copyright law, it is new creative output with its own protections â and not just a trivial product of its inputs.
The fact that AI art is new creative output doesnât mean AI art canât be plagiarism.
Just like with traditional art, itâs completely possible for specific products to be produced to be copies, but that doesnât make that the case for all works in the medium. You can trace someone elseâs artwork, but that doesnât make all sketches automatically meritless works.
The inner workings of tools used in the creation of an artistic work are not what determines if a given product is plagiarism, or if it infringes on a copyright. Understanding the workings of the tool can be used in determining if a work is an infringement, but it is not the deciding factor.
Everybody hates paying subscription fees. At this point most of us have figured out that recurring fees are miserable. Worse, they usually seem unfair and exploitative.
Weâre right about that much, but itâs worth sitting down and thinking through the details, because understanding the exceptions teaches us what the problem really is.
And it isnât just âpaying people money means less money for meâ; the problem is fundamental to what âpaymentâ even is, and vitally important to understand.
or, âGio is not a marxist, or if he is heâs a very bad oneâ
First: individual autonomy â our agency, our independence, and our right to make our own choices about our own lives â is threatened by the current digital ecosystem.
Our tools are powered by software, controlled by software, and inseparable from their software, and so the companies that control that software have a degree of control over us proportional to how much of our lives relies on software. Thatâs an ever-increasing share.
I remember seeing a whole kerfuffle about 5G around this time last year. Not the mind-control vaccine, the actual wireless technology. People (senators, mostly) were worried about national security, because Huawei (the state-controlled Chinese tech company, who is a threat, actually) was getting its 5G patents through and making its claim on the next-gen tech IP landscape. Maybe Trump even needed to seize the technology and nationalize 5G? Everybody sure had a lot to say about it, but I didnât see a single person address the core conflict.
Before we get to 5G, letâs go way back to VHS for a minute.
The basic idea of the âformat warâ is this: one company invents a format (VHS, SD cards, etc) and make a push to make their format the standard way of doing things. Everybody gets a VHS player instead of BetaMax, so thereâs a market for the former but not for the latter. Now everyone uses VHS. If youâre selling video, you sell VHS tapes, and if youâre buying video, youâre buying VHS. If you invented VHS, this is great for you, because you own the concept of VHS and get to charge everyone whatever you want at every step in the process. And, since everyone uses VHS now, youâve achieved lock-in.
Now, this creates an obvious perverse incentive. Companies like Sony are famous for writing and patenting enormous quantities of formats that never needed to exist in the first place because owning the de factor standard means you can collect rent from the entire market. Thatâs a powerful lure.
And thatâs just talking about de facto standards. This gets even worse when you mix in formal standards setting bodies, which get together and formally declare which formats should be considered âstandardâ for professional and international use. If you could get your IP written into those standards, it turns your temporary development time into a reliable cash stream.
â5Gâ is one of these standards set by standard setting bodies, and itâs a standard packed with proprietary technology. The most important slice of those is called SEPs, or âStandard Essential Patents.â These are the Patents that are Essential to (implementing) the Standard. In other words, these technologies are core and inextricable to 5G itself. This figure represents only the SEPs:
Homestuck is once again lit up over fan merch. Homestuck and fan merch have a long and troubled history, but this latest incident is between artists, Redbubble, and Viz media. Here are my thoughts on that!
In late May 2021, artists who sold Homestuck merch on Redbubble got this email:
Dear [name],
Thank you for submitting your fan art for Homestuck and/or Hiveswap as part of Redbubbleâs Fan Art Partner Program.
At this time, our partnership with the rights holder VIZ Media has come to an end. When a partnership expires, we are required to remove officially approved artworks from the marketplace. This means that your Homestuck and/or Hiveswap designs will be removed from Redbubble soon.
Here are a couple of things to keep in mind:
It is important to know that licensors do not allow previously approved designs once sold on Redbubble to be sold on any other platform, even after the program ends.
Because this removal is not in response to a complaint, your account will not be negatively impacted.
Partnerships come and go, but donât worry. Weâre looking forward to partnering with more awesome brands in the future.
Check out our Current Brand Partnerships list to see all the properties that are actively accepting submissions. For additional information, we recommend checking out the Fan Art Partner Program FAQ.
to add insult to tonight's injury, redbubble has decided to spontaneously take down the main 12's sigil shirts off of the VE storefront on viz's behalf. the storefront they've been on for three years. without issue. that use alchemy symbols. which are public domain.
update on the redbubble situation: looks like if you have any currently running VE merchandise, you're officially an owner of limited edition products that we legally cannot reuse or redistribute.
Unfortunately for Twitter and brevity this is actually the intersection of a couple different complicated issues, which Iâll try to summarize here.
Copyright law really sucks for fanartists, actuallyđ
Just gonna get this one out of the way right off the bat. Copyright law gives IP owners a tremendous amount of power over whatâs done with their characters and designs, even extending far into derivative fanart. If you own Homestuck, you actually can take someone to court over selling merch of their fantroll, and probably win. Thatâs not a great starting point, but itâs the truth.
Eevee has a great write-up of why this is bad. Iâd also point you to Tom Scottâs video about how copyright law isnât designed for intermediate platforms like Redbubble, but suffice it to say, yeah, copyright law really sucks for fanartists, actually.
This is the most complex thing going on here, certainly, but itâs not new and interesting. What is new and interesting, though, is
Redbubble forcing predatory licensing on peopleđ
Now, copyright law sucks for fanartists, but that doesnât explain what happened here.
CDL: The AAP is Wrong About Everything
this is a real graphic Netflix made!
So you want to write an AI art license
Trouble a-brewin' at Redbubble
