Anda / Grokster / New Paper

Three quick notes on Anda's Game, the Grokster ruling, and my GLS paper on Norrathian law, respectively.

(This post has nothing to do with the Kalmar Nyckle, btw -- just couldn't think of a good picture to use...)

1) First, I know Cory O posted on it before, but I finally got around to reading Cory Doctorow's Anda's Game.  It's good stuff. I admire his craftsmanship in framing the story to smuggle in a whole laundry list of hot-button MMORPG issues: e.g. avatar gender presentation, MMORPG addiction (the Acanthosis Nigricans bit), and even the pros & cons of RL voice chat vs. role-play.  (Doctorow said he was reading Terra Nova when he wrote it, and it really shows.) The primary thing I liked, though, was how the story resonates with Ted's "Right to Play" article and concepts from Sherry Turkle about the ways MUDs work as spaces for transformative identity experiments. 

The story starts with Anda in a familiar community pressure-cooker: middle school. She escapes from that repressive social mirror (in dramatic fashion) to a militaristic virtual communty (an uberguild "Clan Fahrenheit"), where she finds belonging, self-esteem, and purpose. She ultimately rejects her new-found community, however, when she embraces a noble political agenda. The plot and the title are a tribute to O.S. Card's books, which follow Ender on a similar path. And as noted elsewhere, there are other Easter Eggs to be found. Yes, it's true, as Constance and Randy noted in the comments on the prior thread, that the pure-hearted sweatshop unionizer is a bit of a stretch.  But if so, Doctorow deserves a break -- this is *speculative* fiction, after all.  The point is to get the reader to see ethical dilemmas in MMORPG economies -- this is Julian's Bone Crusher anecdote writ large (though short).

2) Second,  the Grokster decision came down this week.  I signed onto this brief, supporting Grokster. (More briefs here.) The IP blogosphere is now ablaze with commentary -- but by all means, read the opinions first if you read anything.  What does this mean for the City of Heroes case and related attempts to facilitate creative player technologies in MMOGs? I think the news is good -- at least not as bad as it could have been.  The Supreme Court re-affirmed the standard set forth in the Sony Betamax case (the ruling which allowed us all to have cheap video casette recorders), and a majority of the Court refused to find that the p2p software at issue in Grokster fell afoul of that standard.  The prior 9th Circuit ruling was reversed, but only based on the Court's determination that evidence of inducement existed.  In other words, the problem was not that the p2p technology at issue enabled copyright infringement, but that the makers of the technology may have been actively encouraging people to use that technology to unlawfully infringe copyrights. 

Fred (who argued the case in the 9th Circuit) and Rebecca Tushnet are right to see the ruling as a loss for the copyleft: this inducement prohibition chills the spread of technology, to some extent, by opening up new avenues for creative litigation claims (e.g., Tushnet asks if "Rip. Mix. Burn." is now a risky way to advertise?).  Still, one can also see the glass as half full.  The ruling confirms the strength of the Sony standard in the age of digital copyright as protecting the vast majority of technologies (if a company doesn't actively encourage the infringement of copyrights).  Things could have gone worse.

3) Finally, I've posted a draft of an essay that I presented at the GLS conference here.  The essay is entitled "You Will Rule the Planes of Power!" but I might have called it "Narratology, Ludology, and Community meet Law."  I ask if Everquest is, at its core, a text, a game, or a community, and explain why these different frames might lead to different legal policy presciptions.  It's a bit of bridge building, I hope, as I struggle to fit the round pegs of the ITU games studies department into the square holes of broadbrush legal policies.  Critical comments (esp. about Froglok quests) and typo corrections on the draft are welcome by email or in the comments here.

Comments

[Edward Castronova]

1.

G L > The Supreme Court re-affirmed the standard set forth in the Sony Betamax case (the ruling which allowed us all to have cheap video casette recorders), and a majority of the Court refused to find that the p2p software at issue in Grokster fell afoul of that standard.

I took this as pretty good news, yes. In fact, I wasn't even aware that inducement was part of this issue. For example, it seems to say that if I set up a store to sell guns, that's OK, but if the store's advertising says 'Get guns here! Use them to rob people!', I am open to some kind of civil action.

If I tell Greg to go punch Dan, can Dan sue me for inducement?

Anyway, when I saw the headline that Grokster went down 9-0, I was scared. But reading the opinions was a relief. Technology with non-infringing uses lives on. I think that's all we need in the long run.

[gus]

2.

Good question, whether MMORPGs are texts, communities, or games. Personally, I think we're doing ourselves a disservice just calling them "games;" it makes for poor understanding of their communitylike functions (why, for example, did some stranger I'll never see again in WoW give me whaleskin boots and ask for nothing in return the other day? How does this further the ends of playing the game?) My money's on an eventual interpretation of not just MMORPGs, but also complicated console games, which sees them as virtual worlds/communities with games in them.

When I gave my advisor a synopsis of T.L. Taylor's talk at DiGRA, the one on games not existing without player contributions, he laughed and got a little offended and noted that scholars in literacies (his field) hashed out that question some time ago. I often find myself conflicted between the knowledge that I ought to be drawing more heavily on established disciplines like this, and the difficulty of being asked by my very diverse department to become familiar with all of their disciplines.

[Cory Ondrejka]

3.

Ted> Anyway, when I saw the headline that Grokster went down 9-0, I was scared. But reading the opinions was a relief. Technology with non-infringing uses lives on. I think that's all we need in the long run.

Sure, except that if it takes a trial (or at least a suit) to determine whether or not you were "inducing" then the industry with the deepest pockets (and greatest desire to sue) wins.

However, I agree that it could have come out much worse.

The odd thing is that nobody is talking about Brand X, which gives the FCC purvue over all things net related. Given their desire to push E911 and CALEA down the throats of "IP enabled" services, this could be a far greater tech disaster than Grokster.

[Thabor]

4.

Sure, except that if it takes a trial (or at least a suit) to determine whether or not you were "inducing" then the industry with the deepest pockets (and greatest desire to sue) wins.

As long as the burden of proof stays in the proper place. The recording industry seems to be going to great lengths to place the burden on the defendant for "Taking insufficent precautions against piracy"..

They should be careful what they wish for. That is the same notion as suing McDonalds for making you fat. And, pretty soon I'll be able to sue Ford the next time I'm hit by someone driving one of their cars. Or for failing to force me to buckle my own safety belt.

[Flatfingers]

5.

On the Grokster case:

1. It is indeed worth noting that the Court's decision (delivered by Justice Souter, about whom more anon) was about inducement to infringe copyright, which isn't a technological issue. The technology makes it easier to do (and that's going to happen more and more as the "virtualization of reality" into ones and zeroes continues), but the Court's focus was on preserving copyright law. As Justice Breyer pointed out in his concurring opinion, there are plenty of noninfringing uses for P2P technology; what got Grokster into trouble wasn't merely that they used such technology; it was how they used it.

2. It was a hoot to see Justice Ginsberg talking about the band Wilco in her concurring opinion.

3. The EFF folks are driving off otherwise like-minded people (including me) with their increasing unwillingness to take a balanced position on technology's effects on liberty. Extremism in the defense of liberty may be no vice, but it's not attractive, either.

4. Once again the Supreme Court has remanded a decision back to the Ninth Circuit. Is there any question remaining that the Ninth as currently constituted has a severe problem with its judgement? Not only is the Ninth Circuit too big, it's too often wrong. Maybe it's not possible to remove certain justices, but breaking the circuit up would at least reduce the number of people injured by their mistakes.

5. Speaking of Justice Souter, who joined the recent 5-4 Kelo v. New London decision allowing local governments to seize homes for "economic development" reasons, did you hear about the guy in California who has requested that the the Weare, New Hampshire farmhouse belonging to Justice Souter should be condemned so that a hotel can be built on the site? As the Californian put it, "The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare." Ouch.

--Flatfingers

[Aryoch]

6.

> Edward Castronova wrote:
>
> I took this as pretty good news, yes. In fact,
> I wasn't even aware that inducement was part of
> this issue. For example, it seems to say that
> if I set up a store to sell guns, that's OK,
> but if the store's advertising says 'Get guns
> here! Use them to rob people!', I am open to
> some kind of civil action.

That is exactly how I read it. As greg said in his post, this definitely could have gone worse- a lot worse (especially considering the tone of the Court lately on issues like eminent domain).

I found this bit of analysis from Lawrence Solum's blog VERY interesting and compelling:

> The Supreme Court's decision in Grokster makes it
> clear that P2P companies are subject to liability if
> there is direct proof of intentional inducement of
> copyright violations. Good legal engineering of P2P
> communications and business models can easily insure
> that such proof will be unavailable.
>
> ...
>
> Among the P2P services that are likely to flourish
> in a post-Grokster legal environment is BitTorrent.
> Of course, shifting users to BitTorrent is no
> victory for content providers--it is actually a
> defeat. It is not in the interest of content providers
> to encourage users to shift to more capable P2P engines.

He doesn't explain exactly why he made the final conclusion, but I think I might know why.

BitTorrent has pretty well established itself as having some serious, non-infringing, commercial use. Blizzard is using it for distributing their patches (though doing it poorly). Microsoft is trying to create a competitor to BitTorrent (Avalanche). It is become very clear that the real purpose of BitTorrent is to allow people or companies to transfer large amounts of data without crucifying their own bandwidth.

The fact that BitTorrent can be used to pirate files is incredibly ancillary to its other, far more significant use.

> Flatfingers wrote:
> 5. Speaking of Justice Souter, who joined the recent
> 5-4 Kelo v. New London decision allowing local governments
> to seize homes for "economic development" reasons, did you
> hear about the guy in California who has requested that
> the the Weare, New Hampshire farmhouse belonging to Justice
> Souter should be condemned so that a hotel can be built on
> the site? As the Californian put it, "The justification for
> such an eminent domain action is that our hotel will better
> serve the public interest as it will bring in economic
> development and higher tax revenue to Weare." Ouch.

Brutal. I'd love to see it happen. Perhaps then he'd understand how titantically outrageous that decision was.

[magicback]

7.

Before I comment myself, any comments and thoughts about the current issue with Google's practice of caching and indexing of the world's information, including video broadcasts?

Frank

[Flatfingers]

8.

Great point, Frank.

Google's search service depends on capturing and redistributing copyrighted information, but it does so without notifying or compensating the copyright owners. So does Google's practice infringe on the rights of the copyright holders or not, and how (if at all) does the Grokster decision apply?

I won't claim to have The Answer, but to try to contribute something useful to the discussion, here's one take on it: The Grokster decision is more relevant to what Google is doing than the Sony case.

The Sony case allowed VCRs that could record programs because the copying of copyrighted information was being done on an individual basis. As long as the recording wasn't being done by any individual or group whose intent was to distribute that recorded content to others, the high court was OK with it.

But isn't that precisely what Google does? Isn't the whole point of Google to 1) "record" material (which is often copyrighted), and 2) distribute that material to a wide audience?

If so, how does Google not fall squarely within the "intent to distribute" bullseye painted on Grokster, et al?

I imagine Google's lawyers are probably asking themselves the same question right about now....

Aryoch> Perhaps then he'd understand how titantically outrageous that decision was.

Amen, brother.

I don't actually wish this kind of thing on anyone, but it really does seem like an astonishingly bad decision that needs to be highlighted. (I thought Justice Thomas's point was brillant: The Court will bend over backwards to prevent the state from improperly going inside your home, but demolishing it? No problem. Bizarre.)

Of course a couple of events in the past 24 hours may change things: Congress is already drafting legislation to blunt the effect of the Kelo decision, and then there's Justice O'Connor's decision to retire. Get ready for a summer of partisanship. *grin*

--Flatfingers

[magicback]

9.

Sorry for the drive-by comments, but did the recent showing of the Hitchhiker's Guide to the Galaxy had any influence on the decision in the Kelo v. New London? Is there a move towards the centralist (or whatever the correct term is supposed to be)?

Be back later when I have more time.

Frank

[brasilian]

10.

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