![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
silveradept[This is part of a series on video games, their tropes, stories of playing games, and other related topics. If you have suggestions about where to take the series, please do say so in the comments. We have a lot of spaces to fill for this month.]
One of the least helpful things about our digital reality is that most digital goods are not actually owned, only rented, often for a pretty significant fee. For subscription items, like Netflix, which works on the model of a rental store, our your pay television subscription, this idea makes sense. You're not paying to have a permanent copy of the object in your collection, but for access to the objects in the collection to view and play (and possibly temporarily download) when and where you want. And before digital distribution became a hot thing, there was a pretty clear distinction between what was owned and rented, and the law in the U.S. generally says that once a tangible thing has been sold, the person who bought it has the right to do just about anything they like with it. First Sale Doctrine allows places like free public libraries to exist and loan their materials out on their own terms, regardless of what a company thinks that will do to their profits. Or that individuals can sell their legally bought material to someone else for whatever price they want to charge for it, even if the company would really rather everyone was required to buy new things all the time.
There are some limiting factors on what a person can do with their tangible objects, which usually involve things like the limited monopolies granted I creators or their companies by copyright or patent, but for the most part, of you could hold it in your hands, you were free to do what you wanted with in, so long as it was legal.
Except, of course, for software, because software has always been a nightmare even it comes to the concept of actually owning anything at all. Perhaps because software is governed by copyright laws, but as a general rule, all software is licensed, not owned. In most licensing schemes, this is specifically to forbid you from obtaining source code or making modifications to the program, to forbid you making copies of the programs in the package, and to disclaim the company that made the software from any damages arising from use of the software (and also to possibly force you into binding arbitration of you should have a dispute with the company about their software product). In contrast, licenses like the ones the Free Software Foundation and GNU project endorse, including the GPL and certain subsets of the Creative Commons licensing options, specifically retain the right for a user to obtain source code and to make modifications to the program (while still disclaiming liability for anything that should happen from using the software). Some of them impose an additional clause saying that any software created using software or source obtained under their license must also be released under the same license, as a way of using contract law to prevent the tragedy of the commons. For the most part, however, commercial software licenses are very clear to point out that what a person has paid for is the license to use the software, and not the software itself, and so the company that still owns and reserves their rights to the software can impose whatever conditions will be held up in arbitration or court as part of contract law, including some things that might be seen as truly ridiculous. At least one piece of software, for example, as part of the license, says that if you no longer wish to use the software, you have to send it back to them, instead of being able to sell or give it away to someone else.
Even when purchasing on disc, disk, or some other physical medium, there was usually a sticker somewhere that said something to the effect of "your use of this software is bound by the end user license agreement, and by opening this package, you agree to be held by the terms of the license." Which, conveniently, was inside the package, so you had to agree to be bound by something you hadn't actually seen the terms of yet. This practice of shrink wrap contracts still exists, despite objections that it isn't fair to hold someone to a licensing agreement they haven't seen before they agreed to it. (And because it's not really fair that the options people have are to take the contract as offered or not use the software, without any counterweight of being able to renegotiate the contract or have people working in the public interest attempt to get better contracts drawn up. This is nominally the job of elected legislators and their appointments to the civil service, but capitalism ensures that the law is forever written and enforced in favor of those with capital. The law only has statute and precedent, never any common sense, and that is intentional.) These days, the EULA / ToS are presented to someone at first installation of the software or signing up for the service, and make you acknowledge that you have read and agree to the terms of the license set before you. As with many things, we tend to click through them and agree because most of us know already that if a company decides to come after us, they have more money and lawyers than we do and they'll get whatever they want anyway. (This is why the most important thing I picked up from the Copyright for Creatives panel is "If you get a Cease and Desist, cease and desist." Because we don't have the money to fight the court battle, even if we're right.)
When it comes to digital distribution of digital goods, several other industries looked at the way that software has set themselves up (and, I should note, the way that other media also assert their copyrights and say that things like the physical copies of movies, music, and television shows are licensed "for home use only" or "for the private use of our audience" such that someone needs to pay an additional fee for a "public performance license" to show those things in a public venue. This includes public libraries, so if you're curious, see if you can spot your local library's public performance license certificate.) and said "This looks like it has all of the benefits to us and no drawbacks, like actually having to obey First Sale Doctrine!" They promptly set things up so their services and stores would sell licenses to access the content instead of saying that a person actually owned any of the content they paid money for. To enforce the terms of these license agreements, those files became infested with a certain amount of Digital Rights Management (DRM) code, which authorized applications could read and play and otherwise restrict how the content could be accessed and played. DRM-laden content was often sold at a cheaper price than content without DRM, assuming content without DRM could be found at all. And, with the backing of section 1201 of chapter 17 of the U.S. Code (17 U.S. Code § 1201), implemented by the Digital Millennium Copyright Act, which makes it illegal to circumvent any technological measure put in place to control access to a work covered by the relevant copyright statutes, the paradise of companies being able to control how their content was sold, bought, traded, used, monetized, or otherwise fell into place.
Does that mean that everyone accepted their new reality without question? Fuck no. For one thing, that same section also allows the Librarian of Congress, on consultation with other officials, to exempt entire classes of things or actions from the penalties surrounding DRM circumvention, provided the Librarian of Congress says there's a good reason for it or it meets one of the criteria explicitly spelled out in the exemption power. (There's a reason for you to care who the Librarian of Congress is.)
For another, throughout all of the times mentioned, and perhaps even more so once digital goods became infected with DRM and licensed-instead-of-owned, there's a lot of very casual copyright infringement going on. There is a certain amount of activity that is unlikely to provoke the lawyer-bots, being too small to pursue and collect anything on, but any potentially infringing activity could be treated as provocation, and corporations, or their agents, especially regarding the House of Mouse or various pornographic enterprises and studios, have been known to make examples of infringers and be extremely aggressive with trying to protect their properties from infringement. Most commercial licenses say you can install the software on one machine at any given time, no more, but in the pre-Internet days, installing a game onto another computer was relatively trivial, and playing it was no trouble at all. With the idea of activation and registration that was self-contained in the program, keys could be shared (or generated) by people or software so that the program could be shared among friends, and that was unlikely to rise to the level of collecting a cease-and-desist as well. Then the registration and activation started not being in the programs themselves, but on servers that were under the control of the company. There was a time where there were hybrid activation and registration schemes where someone could, with the right work, generate an activation key without having to connect to the Internet, but the ubiquity of broadband pretty well killed that idea and made everything reliant on contact, to the point where certain Activitsion Blizzard games have no offline mode at all, and require that constant communication to be able to play the game. (To the complete aggravation of any users who might want to play their games when they're out of connectivity range, for a multitude of reasons.)
So the tools continue to exist out there for games to be found and played and registered, much as the tools for other media items are out there to be found and played, or to have the DRM entirely removed from those things that were bought on the idea that they would be owned, even if corporations want us to understand that we are merely licensing them and do not own them at all, so every time a new service comes out, we'll have to buy The White Album all over again. Or, y'know, the tools that make digital copies of digital music on CD, or that record vinyl or magnetic tape into digital files themselves, or that dump the contents of ROM cartridges into files that can then be played through emulation, or create digital video files from discs that can then be played on computers without needing the disc in the drive. Those things continue to be around and are often put to good use and distributed around, despite it being as clear back as at least the Nintendo cartridges, if not the Atari ones, in capital letters, that we are not allowed to make back-up or archival copies of the software that is on the cartridge. And they can be distributed over the Internet, because they're the kinds of tools that have legitimate purposes and can be put to legitimate uses, in addition to being used to commit casual copyright infringement.
It was about the point where on the Web, with broadband connections, and sometimes even with dial-up, that it was possible to trade files back and forth for free between friends using swarm protocols (the most famous of these is BitTorrent, but there were and are plenty of others that can do the same), such that one could, instead of paying $20 USD or more for an album's worth of material, where one to three of the tracks on that album were known through radio play and the rest were unknown, instead just grab the tracks that one wanted, or the album itself to sample, before making a decision about purchasing. Apple, after they figured out how to get back into the music business (after staying out of it because Apple Records existed and they had come to an agreement about it so that nobody would feel like their trademarks were being infringed upon), capitalized on that trend with iTunes, where a person could, in fact, buy individual tracks off particular albums without having to purchase the whole thing. (And, to fill the indie void, Bandcamp does much the same, and allows a few listens to the tracks before asking for money.) Even with methods for purchasing licenses legitimately that only last as long as the company itself does, there's still more than a bit of traffic around the World Wide Web that is definitely in violation of copyright law. But because computers are involved, rather than the sneakernet, computers can theoretically be set to monitor network traffic through various means, or to monitor the things available on various websites and make claims about what is present in someone's content, but the most popular one is to join a traffic swarm and then note the origin and destination IP addresses and send threatening notices to the owners of those IP addresses about the copyright infringement taking place on those networks and demanding settlement payments for the infringing actions. Remarkably, the DMCA also knows how to handle this, and has provisions on what service providers and other hosts have to do so as not to be sued into the ground over infringing activity happening in their space. (That would be 17 U.S. Code § 512, for those following along.) Regrettably, the process presumes the copyright holder, or their agent, is correct about the infringement and directs the service provider to remove the allegedly infringing content if they want to remain protected and then provide notice to the alleged infringer about what has happened to give them the opportunity to file counter-notice that the copyright holder, or their agent, is wrong, and to select the field of battle (the Federal Court) in which the court case will take place, should the copyright holder, or their agent, decide to pursue the case. It also insists that safe harbor provisions only apply to those places that indicate in their Terms of Service that infringing activity is punishable, up to and including the revocation of the service for infringement. Many places have adopted a strike system where each allegation counts as a strike against an account, and the accumulation of too many strikes results in immediate termination of an account. The infringement doesn't actually have to be proved to collect a strike, only alleged, and so DMCA takedowns have been very powerful tools for companies to silence critical voices or otherwise vigorously police the space that could be opened up for more fair use of copyrighted works, were it possible to actually fight them in court, spend the money, and win, rather than risk financial ruin attempting the fight and then be slapped for triple damages for "willful infringement" because the corporation wants to make sure that no actual person gets the silly idea that they could fight and win. (It also does work for people to fight against big corporations about their infringement on copyright and collect a big settlement, but you can imagine what the ratio is of corporations going after people is to people going after corporations.)
What kind of terrible situation has provoked this remarkably casual disregard for the laws around intellectual property? (Other than state actors in non-U.S. countries encouraging the theft and distribution of U.S. intellectual property as an unofficial policy, of course.) Part of it is that the limited monopoly of patent and copyright continues to be extended ad infinitum, usually at the request of the House of Mouse, so that almost nothing ever enters the space of the public domain unless specifically placed there by the copyright owners. At this point, a single work is copyrighted for the life of the creator and the average life of another person, with similar time periods for work for hire or other assigned-copyright situations. If it weren't for a declaration that everything before certain time periods were no longer in copyright when the acts were first established, the public domain would be even more of a tragedy of the commons than it already is.
DRM infests everything at this point, and while there are still exceptions, as provided by the Librarian of Congress, one of the easiest solution to fixing the war between people who want to do what they want with things they have purchased and companies that want to control everything without having to give anything up is to insist that First Sale Doctrine applies to all digital goods and software as well. If it could be reasonably construed as a sale of goods where First Sale Doctrine would apply if it were a physical item or in a physical expression, that same doctrine applies to digital goods and expressions. With the insistence that all of those rights and privileges that come from owning the things are not infringed upon by companies seeking to control things after they have been sold. If that happens to mean the complete collapse of DRM through media and software, I will be thrilled. And then, segment two will be about finding an actually reasonable limit of time for copyrights, so that there is a regular flow of material into the public domain that can be used to build new ideas or new expressions, even if that also means having to wade through a hundred thousand crude pornographic drawings of Mickey. Sturgeon's Law still applies, after all.
Having DRM-free copies of everything is the ideal end-goal for all of this, because it will mean that common sense has finally prevailed over all of the money and greed arrayed against it.
One of the least helpful things about our digital reality is that most digital goods are not actually owned, only rented, often for a pretty significant fee. For subscription items, like Netflix, which works on the model of a rental store, our your pay television subscription, this idea makes sense. You're not paying to have a permanent copy of the object in your collection, but for access to the objects in the collection to view and play (and possibly temporarily download) when and where you want. And before digital distribution became a hot thing, there was a pretty clear distinction between what was owned and rented, and the law in the U.S. generally says that once a tangible thing has been sold, the person who bought it has the right to do just about anything they like with it. First Sale Doctrine allows places like free public libraries to exist and loan their materials out on their own terms, regardless of what a company thinks that will do to their profits. Or that individuals can sell their legally bought material to someone else for whatever price they want to charge for it, even if the company would really rather everyone was required to buy new things all the time.
There are some limiting factors on what a person can do with their tangible objects, which usually involve things like the limited monopolies granted I creators or their companies by copyright or patent, but for the most part, of you could hold it in your hands, you were free to do what you wanted with in, so long as it was legal.
Except, of course, for software, because software has always been a nightmare even it comes to the concept of actually owning anything at all. Perhaps because software is governed by copyright laws, but as a general rule, all software is licensed, not owned. In most licensing schemes, this is specifically to forbid you from obtaining source code or making modifications to the program, to forbid you making copies of the programs in the package, and to disclaim the company that made the software from any damages arising from use of the software (and also to possibly force you into binding arbitration of you should have a dispute with the company about their software product). In contrast, licenses like the ones the Free Software Foundation and GNU project endorse, including the GPL and certain subsets of the Creative Commons licensing options, specifically retain the right for a user to obtain source code and to make modifications to the program (while still disclaiming liability for anything that should happen from using the software). Some of them impose an additional clause saying that any software created using software or source obtained under their license must also be released under the same license, as a way of using contract law to prevent the tragedy of the commons. For the most part, however, commercial software licenses are very clear to point out that what a person has paid for is the license to use the software, and not the software itself, and so the company that still owns and reserves their rights to the software can impose whatever conditions will be held up in arbitration or court as part of contract law, including some things that might be seen as truly ridiculous. At least one piece of software, for example, as part of the license, says that if you no longer wish to use the software, you have to send it back to them, instead of being able to sell or give it away to someone else.
Even when purchasing on disc, disk, or some other physical medium, there was usually a sticker somewhere that said something to the effect of "your use of this software is bound by the end user license agreement, and by opening this package, you agree to be held by the terms of the license." Which, conveniently, was inside the package, so you had to agree to be bound by something you hadn't actually seen the terms of yet. This practice of shrink wrap contracts still exists, despite objections that it isn't fair to hold someone to a licensing agreement they haven't seen before they agreed to it. (And because it's not really fair that the options people have are to take the contract as offered or not use the software, without any counterweight of being able to renegotiate the contract or have people working in the public interest attempt to get better contracts drawn up. This is nominally the job of elected legislators and their appointments to the civil service, but capitalism ensures that the law is forever written and enforced in favor of those with capital. The law only has statute and precedent, never any common sense, and that is intentional.) These days, the EULA / ToS are presented to someone at first installation of the software or signing up for the service, and make you acknowledge that you have read and agree to the terms of the license set before you. As with many things, we tend to click through them and agree because most of us know already that if a company decides to come after us, they have more money and lawyers than we do and they'll get whatever they want anyway. (This is why the most important thing I picked up from the Copyright for Creatives panel is "If you get a Cease and Desist, cease and desist." Because we don't have the money to fight the court battle, even if we're right.)
When it comes to digital distribution of digital goods, several other industries looked at the way that software has set themselves up (and, I should note, the way that other media also assert their copyrights and say that things like the physical copies of movies, music, and television shows are licensed "for home use only" or "for the private use of our audience" such that someone needs to pay an additional fee for a "public performance license" to show those things in a public venue. This includes public libraries, so if you're curious, see if you can spot your local library's public performance license certificate.) and said "This looks like it has all of the benefits to us and no drawbacks, like actually having to obey First Sale Doctrine!" They promptly set things up so their services and stores would sell licenses to access the content instead of saying that a person actually owned any of the content they paid money for. To enforce the terms of these license agreements, those files became infested with a certain amount of Digital Rights Management (DRM) code, which authorized applications could read and play and otherwise restrict how the content could be accessed and played. DRM-laden content was often sold at a cheaper price than content without DRM, assuming content without DRM could be found at all. And, with the backing of section 1201 of chapter 17 of the U.S. Code (17 U.S. Code § 1201), implemented by the Digital Millennium Copyright Act, which makes it illegal to circumvent any technological measure put in place to control access to a work covered by the relevant copyright statutes, the paradise of companies being able to control how their content was sold, bought, traded, used, monetized, or otherwise fell into place.
Does that mean that everyone accepted their new reality without question? Fuck no. For one thing, that same section also allows the Librarian of Congress, on consultation with other officials, to exempt entire classes of things or actions from the penalties surrounding DRM circumvention, provided the Librarian of Congress says there's a good reason for it or it meets one of the criteria explicitly spelled out in the exemption power. (There's a reason for you to care who the Librarian of Congress is.)
For another, throughout all of the times mentioned, and perhaps even more so once digital goods became infected with DRM and licensed-instead-of-owned, there's a lot of very casual copyright infringement going on. There is a certain amount of activity that is unlikely to provoke the lawyer-bots, being too small to pursue and collect anything on, but any potentially infringing activity could be treated as provocation, and corporations, or their agents, especially regarding the House of Mouse or various pornographic enterprises and studios, have been known to make examples of infringers and be extremely aggressive with trying to protect their properties from infringement. Most commercial licenses say you can install the software on one machine at any given time, no more, but in the pre-Internet days, installing a game onto another computer was relatively trivial, and playing it was no trouble at all. With the idea of activation and registration that was self-contained in the program, keys could be shared (or generated) by people or software so that the program could be shared among friends, and that was unlikely to rise to the level of collecting a cease-and-desist as well. Then the registration and activation started not being in the programs themselves, but on servers that were under the control of the company. There was a time where there were hybrid activation and registration schemes where someone could, with the right work, generate an activation key without having to connect to the Internet, but the ubiquity of broadband pretty well killed that idea and made everything reliant on contact, to the point where certain Activitsion Blizzard games have no offline mode at all, and require that constant communication to be able to play the game. (To the complete aggravation of any users who might want to play their games when they're out of connectivity range, for a multitude of reasons.)
So the tools continue to exist out there for games to be found and played and registered, much as the tools for other media items are out there to be found and played, or to have the DRM entirely removed from those things that were bought on the idea that they would be owned, even if corporations want us to understand that we are merely licensing them and do not own them at all, so every time a new service comes out, we'll have to buy The White Album all over again. Or, y'know, the tools that make digital copies of digital music on CD, or that record vinyl or magnetic tape into digital files themselves, or that dump the contents of ROM cartridges into files that can then be played through emulation, or create digital video files from discs that can then be played on computers without needing the disc in the drive. Those things continue to be around and are often put to good use and distributed around, despite it being as clear back as at least the Nintendo cartridges, if not the Atari ones, in capital letters, that we are not allowed to make back-up or archival copies of the software that is on the cartridge. And they can be distributed over the Internet, because they're the kinds of tools that have legitimate purposes and can be put to legitimate uses, in addition to being used to commit casual copyright infringement.
It was about the point where on the Web, with broadband connections, and sometimes even with dial-up, that it was possible to trade files back and forth for free between friends using swarm protocols (the most famous of these is BitTorrent, but there were and are plenty of others that can do the same), such that one could, instead of paying $20 USD or more for an album's worth of material, where one to three of the tracks on that album were known through radio play and the rest were unknown, instead just grab the tracks that one wanted, or the album itself to sample, before making a decision about purchasing. Apple, after they figured out how to get back into the music business (after staying out of it because Apple Records existed and they had come to an agreement about it so that nobody would feel like their trademarks were being infringed upon), capitalized on that trend with iTunes, where a person could, in fact, buy individual tracks off particular albums without having to purchase the whole thing. (And, to fill the indie void, Bandcamp does much the same, and allows a few listens to the tracks before asking for money.) Even with methods for purchasing licenses legitimately that only last as long as the company itself does, there's still more than a bit of traffic around the World Wide Web that is definitely in violation of copyright law. But because computers are involved, rather than the sneakernet, computers can theoretically be set to monitor network traffic through various means, or to monitor the things available on various websites and make claims about what is present in someone's content, but the most popular one is to join a traffic swarm and then note the origin and destination IP addresses and send threatening notices to the owners of those IP addresses about the copyright infringement taking place on those networks and demanding settlement payments for the infringing actions. Remarkably, the DMCA also knows how to handle this, and has provisions on what service providers and other hosts have to do so as not to be sued into the ground over infringing activity happening in their space. (That would be 17 U.S. Code § 512, for those following along.) Regrettably, the process presumes the copyright holder, or their agent, is correct about the infringement and directs the service provider to remove the allegedly infringing content if they want to remain protected and then provide notice to the alleged infringer about what has happened to give them the opportunity to file counter-notice that the copyright holder, or their agent, is wrong, and to select the field of battle (the Federal Court) in which the court case will take place, should the copyright holder, or their agent, decide to pursue the case. It also insists that safe harbor provisions only apply to those places that indicate in their Terms of Service that infringing activity is punishable, up to and including the revocation of the service for infringement. Many places have adopted a strike system where each allegation counts as a strike against an account, and the accumulation of too many strikes results in immediate termination of an account. The infringement doesn't actually have to be proved to collect a strike, only alleged, and so DMCA takedowns have been very powerful tools for companies to silence critical voices or otherwise vigorously police the space that could be opened up for more fair use of copyrighted works, were it possible to actually fight them in court, spend the money, and win, rather than risk financial ruin attempting the fight and then be slapped for triple damages for "willful infringement" because the corporation wants to make sure that no actual person gets the silly idea that they could fight and win. (It also does work for people to fight against big corporations about their infringement on copyright and collect a big settlement, but you can imagine what the ratio is of corporations going after people is to people going after corporations.)
What kind of terrible situation has provoked this remarkably casual disregard for the laws around intellectual property? (Other than state actors in non-U.S. countries encouraging the theft and distribution of U.S. intellectual property as an unofficial policy, of course.) Part of it is that the limited monopoly of patent and copyright continues to be extended ad infinitum, usually at the request of the House of Mouse, so that almost nothing ever enters the space of the public domain unless specifically placed there by the copyright owners. At this point, a single work is copyrighted for the life of the creator and the average life of another person, with similar time periods for work for hire or other assigned-copyright situations. If it weren't for a declaration that everything before certain time periods were no longer in copyright when the acts were first established, the public domain would be even more of a tragedy of the commons than it already is.
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.[U.S. Constitution, Article I, Section 8, Clause 8, emphasis mine.] It says so in the clause itself that copyright and patent were never intended to be the indefinite monstrosities that they have become. However, since it seems improbable that the law would ever change in favor of the people (remember, capitalism makes sure the law always works for capital), the people routinely ignore and take calculated risk regarding whether or not they will ever be popular enough or identifiable enough for the copyright cabal to notice or target them, or, as they occasionally do, decide that they have the exclusive right to any advertising money generated by people who broadcast playing games or otherwise attempt to find a small income for themselves from patrons or others that think of them as particularly good performers.
DRM infests everything at this point, and while there are still exceptions, as provided by the Librarian of Congress, one of the easiest solution to fixing the war between people who want to do what they want with things they have purchased and companies that want to control everything without having to give anything up is to insist that First Sale Doctrine applies to all digital goods and software as well. If it could be reasonably construed as a sale of goods where First Sale Doctrine would apply if it were a physical item or in a physical expression, that same doctrine applies to digital goods and expressions. With the insistence that all of those rights and privileges that come from owning the things are not infringed upon by companies seeking to control things after they have been sold. If that happens to mean the complete collapse of DRM through media and software, I will be thrilled. And then, segment two will be about finding an actually reasonable limit of time for copyrights, so that there is a regular flow of material into the public domain that can be used to build new ideas or new expressions, even if that also means having to wade through a hundred thousand crude pornographic drawings of Mickey. Sturgeon's Law still applies, after all.
Having DRM-free copies of everything is the ideal end-goal for all of this, because it will mean that common sense has finally prevailed over all of the money and greed arrayed against it.
