Comments on 2015-07-01 Mass Effect RPG

I’m copying some of my comments from that Google+ thread to this page.

Internationally: Since I live in Switzerland, I am very well aware of the different copyright exceptions in different jurisdictions. I wrote the blog post using US Fair Use because that seemed to me to be the most relevant: the Mass Effect RPG author is based in the US. Sure, BioWare is based in Canada, but it belongs to EA, which is based in the USA, so an international case would be harder to look into.

Fan Art is illegal. I am not so sure. Yes, 17 U.S.C. § 107 says “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” But then it continues: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: …” and then it goes into the four points I discussed in the blog post. In these four points, no reference is made regarding the purpose of the derived work. My reading is that these are clear cut examples of transformative use. But when I look at some of the websites talking about it (googling for fair use purpose and clicking on the top links [1][2][3]), I see that this is an area of dispute. My conclusion is that this Fair Use is murky waters. But I don’t see the purpose of a murky piece of legislation if that means we’re never going to touch it. Thus, where as I understand the decision of th ENnies, I think copyright reform is important and talking about cases, and expressing how we would have liked to see them go are an important first step in this process.

– Alex Schroeder 2015-07-02 09:36 UTC


I believe you are making some incorrect assumptions. The Fan Art itself is also copyright - even though it might also at the same time violate someone elses copyright. All creative works are copyright by default unless the author has published them explicitly without copyright or with a limited copyright. Fair use in dealing with art rarely allows you to use someone elses image. The fact that the author is not making money from the publication isnt a defence. It can be part of a defence but it is not a defence in and of itself. You also say - we don’t need to consider “the aspect of whether the copied work has been previously published” - and then move on as though that statement is sufficient to remove it as having any bearing on the matter.

Damian 2015-07-02 12:34 UTC


I’ll definitely have to think about it some more. There are also a ton more counter arguments to my post on the G+ thread. What I need to understand is why fan art collecting other fan art should be considered different from the fan art it collects. I want to figure out what the exact arguments are both from a legal standpoint and from a moral standpoint. The first stumbling block as far as I am concerned is that an entire category called Fan Art exists on Deviant Art. Why is this allowed? If it is allowed, why isn’t Mass Effect RPG allowed? If it isn’t allowed, I still feel that it should be allowed. The current copyright situation doesn’t satisfy me. (Many of the counter arguments on G+ also deal with what is legal and what is not and I feel like I’m the only one talking about the kind of change I want to see.

AlexSchroeder 2015-07-02 13:15 UTC


I’m copying some more of my comments from that Google+ thread to this page.

Fair Use: 17 U.S.C. § 107 says “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” But then it continues: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: …” and then it goes into the four points I discussed in the blog post. In these four points, no reference is made regarding the purpose of the derived work. My reading is that these are clear cut examples of transformative use. But when I look at some of the websites talking about it (googling for fair use purpose and clicking on the top links), I see that this is an area of dispute.

The EFF page mentioned above points out that time-shifting and search-engines also ended up benefiting from Fair Use. That’s why I think we’re not limited to the purposes listed in the opening of §107.

My conclusion is that this Fair Use is murky waters. But I don’t see the purpose of a murky piece of legislation if that means we’re never going to benefit from it. Thus, where as I understand the decision of the ENnies, I think copyright reform is important and talking about cases, and expressing how we would have liked to see them go are an important first step in this process.

I guess I’m arguing two different things. The first thing I’m arguing is that I don’t mind using someone else’s art without permission because I like the outcome, even if our current copyright doesn’t allow for it. The second thing I’m trying to argue is that the Fair Use exemption offers us an incremental way out: we can fight for a broader application of Fair Use until we’re getting the outcomes we want. This part is important: I know I’m not happy with copyright law as it stands. Where do we start the political process of change? We need to talk about what makes us unhappy, say what we would like to see instead. I have to start somewhere. So that is why I’m starting with the copyright limits.

Not the only solution: One counter argument I heard was that the laws are there “for a reason”. I argued that this doesn’t mean that the current solution is giving society the best outcome. The Mass Effect RPG explicitly said: UNDER NO CIRCUMSTANCES MAY THIS PRODUCT BE CHARGED FOR OR RENUMERATION EXCHANGE HANDS. IT MUST REMAIN FREE OF CHARGE. That doesn’t sound so bad. So yes, selling at cost via print on demand services is starting to blur the line, but I can imagine an alternative where the fan made free alternative is available to us. Maybe even free games could be available to us. Hopefully games that cost money would also be available to us, and hopefully for the authors of those paid for games and products and printed books and games would be much better than the free stuff. Just one possible alternative. And if not, well, then a free fan made product is still a better outcome than the current situation. And yes, perhaps a different solution could be made to work, with contracts to sign, and risks to take, but if the outcome is the same product but it costs a lot, then perhaps that’s a loss all around.

Valuing artists: In the comments of that G+ discussion, I was accused of believing “that artists/creatives are a lower class citizen”. Ugh! The discussion had been quite interesting until it took this nose dive. What had led up to this accusation? I was basically arguing that the state has no obligation to protect any particular business model. The other side was aguing that licensing revenues made up a significant section of their income. And then: “Of course, your coding job, like most, probably affords you a very lucrative 130-175% level of income greater than mine because technology always trumps production/art for salaries and standard of living. So you get to go on making stuff you love without any expense while I have to pick up some other trade to make ends meet all because you think everything creative should be free.” But here’s the thing. I work a 60% job because I don’t care too much about the code I write for money. I care about customers, about their problems, about solving those problems using new processes and using our software, of course. But it’s not an excitement I experience on a visceral level. It’s my job. All the stuff I write for love is Free Software.

I don’t think these anecdotes should matter when we’re talking about politics. Looking after our own best interest is understandable, but as a society we need to look at the larger picture. We need to keep negotiating our laws – and copyright is one of those areas where there is tension between authors and consumers. The pain of artists needs to be weighed against the pain of consumers. All the things that are wrong with copyright: DRM, loss of freedom, legal hassle whenever you want to do something derived on other works, whether it be remixes, quotes, improvements, fan art, some allowed by the fair use exception, some not, who can tell? The hassle of finding and negotiating with right holders, movies languishing without anybody restoring them, take down notices, DMCA style burden of proof for innocents, all of this! All of this we need to compare to artists and their shitty financial situation. The current system is like a lottery. If you are in the top ten, you win the lottery. Everybody else is living off scraps. Do we need to accept all the crap copyright gives us in order to uphold an unfair system? Is there really no other world possible? That is why I refuse to be swayed my the plight of artists. Our current copyright is a law fit for paper publishers in a mass media world, top down, controlled by the few. In a digital age, where anybody can produce, where copyright affects us all, what we have is not good enough. It doesn’t produce the outcomes I want. An where as I understand the plight of artists, copyright as we currently have it, is the wrong tool. I don’t feel the obligation to protect this job. I don’t feel the state is obligated to protect this job. Yes, it would be cool if there was a different solution. A way to make money doing the things we love. Writing free software. Being an artist. Current copyright is not the way I feel like supporting.

So, do I think artists are lower class citizens? Of course not! I am so much in favor of finding ways of people making a decent living no matter what they do, doing the things they love, I don’t know how anybody can conclude that I think of artists as lower class citizens. That is so wrong I don’t even know where to start.

I think capitalism treats the making of art as something other than the production of things to sell or the sale of services – and the net effect is that almost all artists are vastly underpaid. I just don’t think that copyright is the right tool to fix that problem. There are many people producing art for free, prices go down. Sometimes this leads to a situation where making art is no longer sustainable as a job.

My wife used to dance. There was very little money in gigs. There was regular money in giving classes. There was no money in all the choreographies she wrote. There was no copyright to help her. No revenue based on licenses. She gave it up when she got an interesting full-time well paying job. It would have been great if somebody like her could have made a decent living doing the stuff she loved to do. But we live in a capitalist society. Too much supply, not enough demand.

Barring an unconditional basic income solution, or a more limited support for artists by the state, I don’t see it happening. And so most of the musicians and dancers I know do it in their free time. Just as I write the code I love in my free time.

Reform is necessary: A summary of the current situation and its problems can be found in a recent Ars Technica article, The battle to reform 300-year-old copyright law for the digital age. This what I am talking about:

As is evident, the only “solution” that the Commission could imagine was one based around licensing. The idea that non-commercial user-generated content might not need a licence at all—that it could be covered by an exception as it is in the US under the “fair use” approach—never seemed to be an option. – Glyn Moody, Ars Technica

Too many of us cannot see beyond the current system. We need to imagine a different future and work towards it. We don’t need to strengthen copyright. Artists must be able to make a living and we need to find a way to allow that without DRM and the criminalization of all the little things we want to do. We need to “promote the Progress of Science and useful Arts” using different means.

– Alex Schroeder


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