This page collects recent items on Copyright.

Copyright is killing music

2017-12-15 Make stuff

Mastodon is ablaze with net neutrality posts.

I really liked this blog post: DIY Media: “When we buy stuff from major corporations, we transfer money (and therefore power) out of our local communities, and in to the pockets of CEOs and shareholders. When we make stuff, or buy stuff from our communties, that wealth (and power) stays within our communities.” (via Mastodon)

And it fits right in with the ideas of DIY D&D.

And DIY also has a more important role to play: it is something positive and rewarding to aim for. It’s like singing in choir, playing an instrument in a band or with friends. The shared experience is important.

This is the feeling we need on the political stage, too. Nate Cull wrote about it on Mastodon and I said: “Similar problem in France, Austria and increasingly elsewhere: if decent parties are only united against the fascists, then people vote because of fear, not because they hope that things will improve. And then they don’t. We need positive visions of the things we can do. The things we will do. The positive things that are happening right now.”

DIY is political.


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2017-11-28 DRM

DRM's Dead Canary: How We Just Lost the Web, What We Learned from It, and What We Need to Do Next. How DRM is used to squash the competition, silence security researchers, make sure movie are only available in certain region, who gets to fix your car, who gets to supply the toner for your printer. And then the article pivots to the W3C, Encrypted Media Extensions (EME), and browsers.

And this is why I support the EFF: “EFF is suing the US government to overturn Section 1201 of the DMCA.”

There is a a report by εxodus listing of Android apps and the trackers found within and the permissions they require. Consider using a mobile website instead. Mastodon apps, for example: no trackers for Tusky, one tracker for Twidere, two trackers for Tootdon; but Amaroq isn’t listed because it’s iPhone only.

Why is that? Cory Doctorow links it back to DRM: “But iOS is DRM-locked and it’s a felony – punishable by a 5-year prison sentence and a $500,000 fine for a first offense in the USA under DMCA 1201, and similar provisions of Article 6 of the EUCD in France where Exodus is located – to distribute tools that bypass this DRM, even for the essential work of discovering whether billions of people are at risk due to covert spying from the platform.”


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2017-06-25 Against Intellectual Monopoly

Edward Morbius linked to Against Intellectual Monopoly by Michele Boldrin and David K. Levine (last blog posts from 2015)

I am reminded of me picking up Piracy by Adrian Johns back in 2014.

I want to read it all, but I don’t know when to do it. Something for this summer?

I just heard the Thinking Allowed episode Rentier capitalism - Protest camps and they talked about The Corruption of Capitalism: Why Rentiers Thrive and Work does not Pay by Guy Standing. He says that intellectual property is a form of rent and if 40% of your economy depends on it, no wonder that labor is not worth much. The review of the book in the Guardian provides some context.

We are terrible stewards of history. “Copyright plays a pretty large role in the destruction of our cultural history.” Truth!


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2016-06-01 Rules

Court rules in favor of cloned tabletop game – No protection under US copyright law: «The court points out that “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression.” They note that past game copyright victories were won by parties based on infringement of visual appearance or other protectable elements.»


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2016-05-22 Running

I’m trying to start training for a longer running project: I want to run the 300km Jura-Höhenweg (national trail #5). If I want to run two or three days in a row, I need to be able to run 10 to 20 km for three days in a row. Time to start practicing!

I’ve created a log file (a simple text file using Org mode for Emacs), I’m uploading data to the site tied to my wife’s watch (a Polar 3RC GPS), I really don’t like all this proprietary stuff. What if they close it down? What if their WebSync app no longer works? (If you run into the problem that WebSync won’t install on your Mac because it is the product of an unidentified developer, you might be interested in learning more about Gatekeeper and ways around it.)

So, here’s what I did: I exported the GPX data from the Polar site and imported it to OpenStreetMap. Yay! The OpenStreetMap copyright page has some information about the license. But... I was unable to find a display of my trace with the map in the background. No way to create a useful screenshot for this blog.

And so I returned to the Polar site, which uses Google. And studied their terms of use, and clicked through to their permissions page and more about naming. I think I should be fine if I keep their copyright statement at the bottom, as far as I can tell.

Today I found this question in the FAQ: How can I display a GPS trace on a real map? Apparently, a quick way to do it is to open the trace in the map editor. They hope that you’ll use the trace to improve the map, of course. Let’s see whether I’ll be joining the mapping community. :)
© OpenStreetMap contributors


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2016-04-25 Urheberrecht

Cory Doctorow: Das Ding mit dem Copyright – eine Übersetzung des Vorwortes, welches Cory Doctorow für Little Brother geschrieben hat, von Ste­fan Holz­hauer, als Reaktion auf einen Artikel von Felix Münter unter dem Titel Diebstahl bleibt Diebstahl – Egal, um was es geht.

Da gäbe es so viel zu sagen! Aber das wurde ja schon alles gesagt.

  • Urheberrecht haben wir selber aufgestellt und das können wir auch ändern. Es ist kein “natürliches” Recht, welches sich wie selbstverständlich aus unserer Existenz als Menschen ergibt
  • Wir stellen manchmal Gesetze auf, um Geschäftsmodelle zu schützen, die uns schützenswert erscheinen; diese Einschätzung kann sich aber im Laufe der Zeit auch ändern
  • Da physische Dinge nicht kopiert werden können, kann man den Diebstahl von einem Ding und dem Anfertigen einer Kopie nicht automatisch gleichsetzen

Ich empfehle das Buch Free Culture von Lawrence Lessig.

Diskussion auch auf Google+.


Comments on 2016-04-25 Urheberrecht

Aus der G+ Diskussion, mein Kommentar zum Artikel von Felix Münter:

Der Artikel suggeriert die moralische Gleichsetzung von Diebstahl und dem Anfertigen von digitalen Kopien. Wenn allerdings eine grosse Anzahl Menschen ständig das Recht verletzen, dann stellt sich auch die Frage, ob es denn wohl reformbedürftig sei. Und falls ja, in welchem Sinne: ob die Taten, welche im Moment verboten sind und Diebstahl genannt werden, nicht einfach erlaubt werden sollten und die Gesellschaft neue Geschäftsmodelle ersinnen müsste, weil wir ja die Gesetze für uns alle und nicht zur Stütze gewisser Geschäftsmodelle erlassen.

Mein Argument, dass ein Gesetz der Reform bedürfe, wenn sich ein grosser Teil der Bevölkerung nicht daran hält, wurde von Reinhard J. Wagner mit dem Hinweis angegriffen, dass wir ja auch Morden straffrei machen wollen, nur weil es viele Mörder gibt.

Klar, übertreiben kann man jedes Argument. Aber genau das ist ja auch das Argument, was uns zur Reform bringt. Wenn alle Alkohol trinken, dann ist die Prohibition vielleicht keine gute Idee gewesen. Wenn so viele junge Leute Drogen nehmen, dann ist die Repression vielleicht nicht das geeignete Mittel, um dagegen anzugehen. Und natürlich ist es egal, wie viele Mörder es gibt, das wollen wir nicht legalisieren. Mich stört vor allem die absolute Formulierung: “Diebstahl bleibt Diebstahl.” Seid Napster befinden wir uns in einer grossen Diskussion über die Grenzen des Urheberrechts und ich bin nicht bereit, in einer Diskussion, wo es um die ständig stattfindenden Urheberrechtsverletzungen geht, diese Diskussion unter den Tisch zu kehren und mich auf die Formel “Diebstahl bleibt Diebstahl” zurück zu ziehen. Nein, eben genau diese Diskussion will ich führen.

Reinhard J. Wagner wiederholte seinen Punkt nochmal und meinte, dass für ihn die Tatsache, dass es sowieso alle machen, ein schwaches Argument sei.

Nun ja. Dann gehen wir von den Grundsätzen aus: Warum haben wir überhaupt Gesetze? Um das Zusammenleben zu reglementieren, für den Streitfall, damit nicht der Stärkere gewinnt, vielleicht. Welcher Art sind dann die Gesetze, die wir wollen? Wir haben natürlich Ziele: körperliche Unversehrtheit, materieller Wohlstand, siehe Grundgesetz, Menschenrechte, Verfassung, und so weiter. Daraus ergibt sich, dass die Gesetze Legitimationsbedarf haben, der über ihre blosse Existenz hinausweist. Bei den Amis ist die Argumentation ja einfach: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [1] Somit kann man für jede Gesetzesänderung im Urheberrechtsbereich anfangen, über den Zielerfüllungsgrad zu reden. Und über die Alternativen.

Leider haben wir in Europa ja nur die Geschichte, welche von der Statue of Anne ausgeht [2], und deswegen eigentlich ein Gesetz, welches die Verwertung der Werke schützt, und zwar über die Verleger untereinander. Die Geschichte führt dann weiter bis zu TRIPS. Und nun, dank Internet, Desktop Publishing, Print on Demand, sind wir plötzlich alle von einem Urheberrecht betroffen, welches vielleicht für den Alltag immer unbrauchbarer wird. Wo erfahren wir diese Unbrauchbarkeit? Zum Beispiel daran, dass ein Urheberrecht so schwer zu erklären ist, für viele kaum einzusehen ist, und schlussendlich von vielen auch nicht beachtet wird. Ergo der Reformbedarf.

– Alex Schroeder 2016-04-25 14:11 UTC

Aus aktuellem Anlass eine Standortbestimmung, die meine (tiefen) Erwartungen übertrifft. Urheberrecht: Die digitale Urheberrechtsreform versackt im Fiasko.

– Alex Schroeder 2016-04-28 06:10 UTC

Bundestag dehnt Buchpreisbindung auf E-Books aus.

– Alex Schroeder 2016-04-28 22:05 UTC

Urheberrecht: USA setzen Schweiz auf «Watch List».

Im Zentrum der amerikanischen Kritik an der Schweiz steht die «Piraterie» im Internet und das so genannte Logistep-Urteil des Schweizerischen Bundesgerichts (BGE 136 II 508): In diesem Urteil hatte das höchste Gericht in der Schweiz den Eidgenössischen Datenschutz- und Öffentlichkeitsbeauftragten (EDÖB) darin bestätigt, dass die damalige Internet-Überwachung für urheberrechtliche Massenabmahnungen gegen Filesharer in der Schweiz das Datenschutzrecht verletzte.


Letztlich ist den amerikanischen Forderungen gemeinsam, dass im Urheberrecht die üblichen rechtsstaatlichen Mittel und Wege ausgehebelt werden sollen, wie es teilweise auch die laufende URG-Revision vorsieht.

Das Ganze bezieht sich auf die anstehende Urheberrechtsrevision. Urheberrecht: Massenabmahnungen und Netzsperren für ein «sauberes Internet» in der Schweiz. Wenn man dort weiter liest, wird einem sowieso nur schlecht.

Der Bundesrat befürwortet die Einführung von Netzsperren, Selbstjustiz und Überwachung im Sinn der umstrittenen Empfehlungen der einseitig zusammengesetzten Arbeitsgruppe zur Optimierung der kollektiven Verwertung von Urheberrechten und verwandten Schutzrechten (AGUR12) sowie nach Wünschen der amerikanischen Unterhaltungsindustrie und ihren reichlich subventionierten Verbündeten in der Schweiz.


– Alex Schroeder 2016-04-29 10:11 UTC

Die neue Fassung des Buchpreisbindungsgesetzes – ein Kommentar von Stefan Holzhauer:

Die Ar­gu­men­ta­tion, dass die Buch­preis­bin­dung auch Ni­schen­pro­dukte er­mög­li­che, ist oh­ne­hin eine Lä­cher­li­che, wenn man sich ansieht, was die Pu­bli­kums­ver­lage so an bil­li­gem und mies lek­t­o­rier­tem Mas­sen­müll auf den Markt pum­pen. Auch der Hin­weis auf kul­tu­relle Viel­falt zieht mei­ner An­sicht nach nicht im Ge­rings­ten. Wenn dem so wäre, müsste es auch Preis­bin­dungs­ge­setze für Mu­sik, Filme oder Com­pu­ter­spiele ge­ben. Die gibt es aber nicht und man kann nicht sa­gen, dass es bei die­sen Me­dien keine Viel­falt gäbe – so­gar ganz im Ge­gen­teil.[...] Dass die Self­pu­blis­her da­von aus­ge­nom­men wur­den, er­freut mich dann aber doch – das kann man fast pro­gres­siv nen­nen, auch wenn es mit gro­ßer Wahr­schein­lich­keit nur ein Ver­se­hen war.

– Alex Schroeder 2016-05-01 11:34 UTC

The Sad Story Behind A Dead PC Game That Can't Come Back. Fear, Uncertainty and Doubt. And Copyright.

– Alex Schroeder 2016-05-24 17:19 UTC

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2016-02-15 With Regards from Russia

Thank you, Alexandra Elbakyan!

Pirate Bay of Science? “A researcher in Russia has made more than 48 million journal articles - almost every single peer-reviewed paper every published - freely available online.”

Some radical thoughts about Sci-Hub: “Instead we should focus on what the law is intended to accomplish, where and why it fails in its purpose, and how we can make it more adaptable for the digital age.”

This renowned mathematician is bent on proving academic journals can cost nothing: “So the new journal will work like this: Researchers can submit a paper to the ArXiv, where the article is posted online for commenting. They can then go to the Discrete Analysis website and simply paste the URL for the ArXiv pre-print, add their contact details, and submit. The journal will then coordinate peer review (using Scholastica software) and if a paper is accepted, ask the authors to produce a revision of their article to respond to any comments. Once it’s in good shape, the article will get posted to the Discrete Analysis website and the authors can post the final version to the ArXiv, says Gowers.”

Edward Morbius introduces Pamela Samuelson: “Open Access (OA) is an excellent goal. I applaud it. But it’s the tip of the iceberg.” And Pamela Samuelson: Aaron Swartz: Opening access to knowledge, back in 2013. “There was a time when access to knowledge was promoted through grants of copyrights to authors who typically transferred them to publishers. Now copyright has become the single most serious impediment to access to knowledge.”

Paul J. Heald, How Copyright Keeps Works Disappeared. “A random sample of new books for sale on shows more books for sale from the 1880’s than the 1980’s. Why? This paper presents new data on how copyright stifles the reappearance of works. First, a random sample of more than 2000 new books for sale on is analyzed along with a random sample of almost 2000 songs available on new DVD’s. Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to deter distribution and diminish access.”

A spiritual successor to Aaron Swartz is angering publishers all over again: Meet accused hacker and copyright infringer Alexandra Elbakyan, by David Kravets. Interview questions, comparisons between the two, recent developments, on the importance of fighting back.

Who's downloading pirated papers? Everyone. “For Elbakyan herself, the future is even more uncertain. Elsevier is not only charging her with copyright infringement but with illegal hacking under the U.S. Computer Fraud and Abuse Act. ’There is the possibility to be suddenly arrested for hacking,’ Elbakyan admits. Others who ran afoul of this law have been extradited to the United States while traveling. And she is fully aware that another computer prodigy–turned-advocate, Aaron Swartz, was arrested on similar charges in 2011 after mass-downloading academic papers. Facing devastating financial penalties and jail time, Swartz hanged himself.”

A short argumentation by Edward Morbius on Google+.

Piracy site for academic journals playing game of domain-name Whac-A-Mole. “Elsevier is the same New York publisher that the late Aaron Swartz had noted in his “Guerilla Open Access Manifesto” that told academics and researchers they had a “duty” to free the knowledge they were privileged to read behind Elsevier’s paywall.” Or, as Edward Morbius put it on Google+: “Have you found it curious how Elsevier hasn’t made the case that all those hardworking researchers are being denied fruits of their labour? Because they’re not.”

SSRN has been captured by the enemy of open knowledge. “For example, one of the more egregious of their yearly subscription rates is the Journal of Nuclear Materials, which will cost libraries $7,442.14 for an electronic subscription, or $11,164.00 for a print subscription. [...] Of course, as an author, you can always choose to make your paper open access. The fee for doing so? $3,500.”

All European scientific articles to be freely accessible by 2020. “Open access means that scientific publications on the results of research supported by public and public-private funds must be freely accessible to everyone. That is not yet the case. The results of publicly funded research are currently not accessible to people outside universities and knowledge institutions. As a result, teachers, doctors and entrepreneurs do not have access to the latest scientific insights that are so relevant to their work, and universities have to take out expensive subscriptions with publishers to gain access to publications.”

We've failed: Pirate black open access is trumping green and gold and we must change our approach. “Yet, while we have been bickering about the true path to open access nirvana, the pirates have crept up on us, especially in the form of Sci-Hub, which is self-reporting more than 60 million articles freely available (Sci-Hub, 2017) and could have harvested nearly all scholarly literature (Himmelstein, Romeo, McLaughlin, Greshake, & Greene, 2017) – if true, Sci-Hub has single-handedly won the race to make all journal articles open access.” For some context, see John Baez on G+.


Comments on 2016-02-15 With Regards from Russia

I am interested in an article. It costs $41.

Here’s a preprint by somebody else: Pace and Critical Gradient for Hill Runners: An Analysis of Race Records.

– Alex Schroeder 2016-05-23 20:33 UTC

I’m not sure if I get it. You’ve just mentioned sci-hub, and then you’re saying that you cannot access some article?


By the way, even though I have access to most of the articles through my university, I still use sci-hub all the time. There’s just no reason not to.

– AlexDaniel 2016-05-24 08:12 UTC

I’m collecting sci-hub links because I’m interested in copyright in the context of scientific journals, but since I’m no longer actively researching anything, I haven’t actually used it. And when I was faced with that price tag, it seemed easier to simply google for the paper title and see what comes up instead of figuring out how sci-hub actually works.

Good to know that it’s simple to use, though. :)

– Alex Schroeder 2016-05-24 12:32 UTC

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2015-12-21 No Longer Publishing Something

Today I saw a thread on Google+ about an author that was called “shitty” because they decided to stop publishing a work of theirs. I don’t want to get into that thread because I don’t know what went down, exactly, and I don’t want to talk about this specific situation. I do want to talk about the general act of no longer publishing something, however.

To me, the rights of the author are granted by copyright. Copyright is a deal we make, society and authors: protection for a limited amount of time, and then it’s the public domain and we all get to benefit. So, stopping to publish something is a right you have as human. You’re exercising your right to not do a thing. Nobody should call you shitty for exercising that right.

Preventing others from publishing your work is also a right but it’s limited in scope. That, I think, explains the expectation that all creative works will be available for free, eventually. And so, by extension: if you want to cut it loose, remove your name from the work, dedicated it to the public domain, and be done with it. Preventing others from publishing something you made until you die and then a few decades more, something that other people will enjoy, something that’s cool – that seems spiteful.

Then again, if it was something you regret, be it sexist, racist, supremacist or otherwise idiotic, then I think preventing others from publishing it seems to be a moral imperative. Of course you want to see less moronic stuff out in the world and if it’s something moronic you made then that’s one of the few situations where you can actually do something about it. Copyright allows you to do that.

So now the discussion is different: What if there is something you regret having published, something sexist, for example, and you stop publishing it, and a now a sexist person comes along and likes it, and wants to copy it. Hell no! It’s your right to say no.

I sort of like this part about copyright. I just don’t think that we need this protection until we die and for even more decades to come. A few years would suffice. Ten years, twenty years perhaps. Or fourteen years, for example.


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2015-07-14 No Copyright

My recent discussion of the Mass Effect RPG and the reform of copyright led me to pick Piracy by Adrian Johns from the shelf and start reading. On page 53 he talks about the French revolution and copyright. In 1789, the revolutionaries abolished literary property. How did it turn out? It was terrible. Everything was reprinted, with cheap tools, at breakneck speed, anything to make a quick buck. What was left was newspapers, tracts, and compilations of old books.

You can read more about it in Carla Hesse’s book Publishing and Cultural Politics in Revolutionary Paris, 1789–1810. It is available online, for free, from the California Digital Library. There, in the chapter The First Legislative Initiative (1789–1791), you’ll find the discussion between Denis Diderot defending the Paris Book Guild’s view of their privileges as a form of property and the Marquis de Condorcet arguing that ideas don’t originate in individuals but in a society and could therefore not belong to an individual. The only individual contribution was style, not substance.

This lofty discussion notwithstanding, the main problem for the people in power at the time was not the crumbling print business but that in their race to the bottom a lot of libelous and seditious material was being printed. Anything to make a quick buck. So, how can we fix the market of book printing and introduce accountability? The 1790 initiative by Sieyès proposed a limited property right of up to ten years after the author’s death. It was never voted upon. There was too much criticism. And so we come to another chapter, The Second Initiative (1791–1793). In 1793, a proposal by Chénier passed. It did more or less what the first initiative had said: a limited property right of up to ten years after the author’s death. It only differed in a few minor issues: libel and sedition were no longer mentioned, and old perpetual privileges from the old days were abolished. It was called the “declaration of the rights of genius”.

You’ll note that the discussion between Denis Diderot and the Marquis de Condorcet remained unresolved. Carla Hesse says:

This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet’s faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author’s property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas.

– Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810, p. 121


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2015-07-01 Mass Effect RPG

Recently, Kirin Robinson started a discussion on G+ about the disqualification of the Mass Effect RPG from the ENnies. In another thread, I wrote some words about it...

Yesterday I learned that Trademark Law Does Not Require Companies To Tirelessly Censor the Internet. I didn’t know that. Bioware does have a choice. And in this case, as far as I remember it, Bioware still hasn’t contacted anybody, so it’s all happening between EN World, the Ennies, and the Don Mappin, the author.

Also, the PDF has a disclaimer at the very beginning:

What This Book Is Not

To be clear, this is not a licensed Mass Effect property. Mass Effect is the property of Bioware, a division of Electronic Arts. This is a work of fiction and done without their permission or involvement. No attempt to challenge their legal authority is intended in the publication of this material. Instead, it is our hope to expand the outreach of the Mass Effect property to another segment of games—role-players—who have long coveted a way to bring the events of Commander Shepard to life at their gaming tables. This product comes with one very important and unconditional stipulation:


As the sole property of Bioware/Electronic Arts, only they have the rights to benefit from the Mass Effect Universe. As such, this work is the result of countless unpaid hours and volunteer work to make it possible to bring to you. Why? Because we’re gamers too and we love Mass Effect just as much as you do!

I guess I'm mostly interested in outcomes. I really like the US constitution in this respect: “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. I want more useful stuff as fast as possible. Having the Mass Effect RPG out now, fan made, is great. It’s better for the gaming public.

What about the artists? The way I read the artist attribution page in the Mass Effect RPG, all those images were available on the Internet, on blogs of concept artists, on Deviant Art. So, without considering copyright law and just considering outcomes, these artists made things available for free, and now what they made is more available, for free. The author of the Mass Effect RPG doesn’t charge money for it. Presumably he’d share his gains with the artists in some way, if he were to make any money. But he isn’t, so he doesn’t. So, it’s still better for the gaming public, and it’s better for the artists, too. Yes, they had no voice, there was no negotiation, this doesn’t consider copyright. All I’m looking at is outcomes.

As far as I’m concerned, I’m with Don Mappin, here. I wish that copyright law was different. I wish that the fair use exception to copyright were clearer. As it is, it’s incredibly hard to tell whether something falls under the exception or not. That’s not good.

I'm not a lawyer, and I’m looking at the points one ought to consider:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Reading through the Wikipedia page and following along, as a layman might be expected to, I guess:

The use was not really educational – or can a game be educational? Maybe? It teaches you how to run a Mass Effect RPG using Fate rules? Does it help “fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public”? It sure looks like it to me. To me, the process of turning the video game into a set of rules for Fate is transformative, not merely derivative.

Nothing in the nature of the game seems to warrant more or less protection than usual. It doesn’t rightfully belong to the public domain. All the artwork the author used had already been published, even if not intended for use in the game, so we don’t need to consider “the aspect of whether the copied work has been previously published”.

As for the amount, I think that the material taken from the game itself is definitely not major. We’re talking some of the background material, the description of things in the game. But the games are about so much more. Characters, plots, levels, graphics. The material taken from artists is major, however. Basically the entire picture was used. I started making a little survey by searching for the first ten items on the artists credits page of the Mass Effect RPG:

  1. Huen, Benjamin. The Team. 2012. I don’t like wet socks. Cover. → available from BioWare store, official, copyright by BioWare, I assume
  2. ZingerNax. Mass Effect: Earth. 2013. deviantART. p. 1-2. → copyright by the author, inspired by but not an obvious derived work, it would seem to me
  3. 04NIloren. MASS EFFECT - SPECTRE WALLPAPER. 2012. Desktop Wallpapers 4 Me. p. 13. → looks like fan art to me
  4. Olejniczak, Patryk. Mass Effect 3 - Miranda, Mass Effect 3 - Jack, Mass Effect 3 - Zaeed Massani, Mass Effect 3 - Mordin Solus, Mass Effect 3 - Grunt, Mass Effect 3 Teaser Wallpaper, Mass Effect 3 Thane Krios, Mass Effect 3 - Kasumi Goto, Mass Effect 3 - Legion, Mass Effect 3 - Garrus. 2011. deviantART. p. 14-15, 28. → here’s a gallery, self-declared fan art (10 pieces!)
  5. devtardi. Thessia - Mass Effect 3. 2012. deviantART. p. 30. → I’m guessing fan art based on comments elsewhere (”All characters (c) by BioWare and Electronic Arts.”)
  6. rome123. Drell Assassin Infiltrator. 2012. deviantART. p. 39. → looks like official stuff because it says “model for me3 multiplayer”? But the copyright apparently does not belong to BioWare but to rome123 (or is that a limitation of deviantART?
  7. johntesh. Thane Krios 09. 2012. deviantART. p. 40. rome123. Krogan (Default). 2012. deviantART. p. 44. → self-declared as in-game screen capture
  8. DP-films. Urndot Wrex the Krogan Warlord. 2012. deviantART. p. 48. → self declared as fan art
  9. Hallucinogenmushroom. Geth Prime. 2012. deviantART. p. 53. → self declared as fan art
  10. Euderion. Fight for Rannoch. 2013. deviantART. p. 57. → self declared fan art

Looking at the numbers. Fan art: 15. BioWare: 3. Others: 1. Continuing the analysis of “amount”, I’d say that the amount of art-work taken from the Mass Effect series out of the copyrighted material by BioWare isn’t so big: 3 pieces out of a huge work. As for fan art: If they are not violating BioWare’s copyright because of the fair use exception, then another piece of fan art reusing them should not be violating BioWare’s copyright, either.

So, what is fan art? FAQ #572 has some information: “Original fan art are those works in which the submitting artist has done 100% of the work but the work itself depicts characters, scenes or other themes which were properly created by another creative person. […] Fan art may be copyright infringement and you may be forced to remove it by the copyright owner who may also choose to initiate other legal action.” I’m not sure that BioWare is interested in going after fan art in this respect. Therefore, my understanding of fair use and fan art leads me to suggest that we’re in the clear, here.

That leads us to the last point in the fair use examination, the effect upon the work’s value. Does BioWare and it’s Mass Effect based revenue suffer? Not at all, because they’re not selling a role-playing game. Now, if they were, perhaps they’d be justified under the law to go after the existing game. Now you have to argue that a company wanting to make money making a licensed game is being deterred from entering the market because the existing free fan-made game is so good, taking it down will produce a lot of bad blood. But from a customer’s perspective, that’s OK. We have copyright in order to promote the useful arts. If the useful arts are being promoted without copyright, then that’s even better. This is not an outcome to dislike, at all.

I’m still with Don Mappin.

I think we need to be careful, here. The copyright lobby is so strong, it keeps extending the copyright protection time window, it keeps bombarding us with annoying messages as we play a DVD or go to the movies. This is a war being waged about our hearts and minds. And they have all the money to run their campaigns and we have nothing except our will to share everything because we’re nice and willing to help our neighbors. That is why I don’t like people saying: “I hope that Don rebuilds and reposts the files, this time only including his work.” If we have a fair use exception to copyright, then this exception is our right. It’s a mess to figure out and and it’s hard to be sure, but if we assume that everything Don made falls under fair use, then he should not have to repost the files, and he should be free to include the works of others. That’s how we build on each others’ work. That’s how progress is made. We don’t create ex nihilo. Fair use is our right.

What about the ENies? I understand their decision. The entire thing was a hot potato. They had to make a decision, fast. And I’m guessing they don’t have legal defense funds and lawyers at their disposition. That’s how the scare tactic works. We’re afraid to exercise our right, the associations we build are afraid to exercise our right. How will we learn to claim what is ours except by pushing the boundaries and arguing for our rights?

Recommended reading: Free Culture (PDF).

Comments here or on Google+.


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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