What are your plans this weekend? If you're like most of us living under pandemic lockdown, the answer is probably "not much" — but it could be "making a game using newly-public domain material!" All you have to do is sign up for Gaming Like It's 1925 and start exploring the wealth of works published in 1925 that have now run out of copyright protection and can serve as the basis for a great new analog or digital game. But don't delay — entries are due Sunday night at midnight!
If you've never made a game before, that might sound like it's not enough time — but a two-day game jam is actually a great way to try your hand at game design. Entries can be as simple as a few rules for a roleplaying game typed into a text document, or you could make use of a tool like Twine or Story Synth that's easy to learn and provides everything you need to create a simple browser-playable game. The important thing isn't complexity or fancy assets — it's a clever idea and a vision for building something new based on old material, to show why a growing public domain benefits us all.
Check out the game jam page for the full rules and some links to public domain works you could draw on, then join the jam and start working on your entry before midnight on Sunday, January 31st. Our judges will be playing the entries to select winners in six categories to receive some great Techdirt prizes (the winners of the 2020 jam are linked below, and you can read our judges' thoughts on them here):
You can also check out the handful of submissions we've already received, but as in previous years most people are likely holding off until the last minute so they can tweak and perfect their entries — so hurry up and help show how a rich public domain fuels creativity!
While we had covered the rise and growth of esports for several years now, readers here will recognize that 2020 became something of an inflection point for the industry. The reasons for this are fairly obvious: the cultural shutdown at the onset of the COVID-19 pandemic -- one that shuttered nearly all IRL athletic competition -- left a vacuum for viewership of competition that esports was almost perfectly situated to gobble up. Viewership exploded, as did the number of esports events. Meanwhile, the trend for IRL sports leagues, teams, and associated industries investing in esports ramped up considerably.
But now 2020 is, thankfully, behind us. And, while the world is still mired in dealing with COVID-19, IRL sports have largely come back. At the onset of 2021, now is the perfect time to ask two questions: what was the actual growth of esports in 2020 and what will it mean when the world begins to go back to a semblance of normalcy over the next year? Well, the numbers are out and they are quite impressive. The following comes from analysts at Engine Media, via its analyst experts at Stream Hatchet.
According to Stream Hatchet's data, the pandemic's onset in Q1 2020 caused esports streaming numbers to rise dramatically in Q2. As the year ticked on and live entertainment sports options returned, the trend continued despite the increase in online and on TV entertainment options. Stream Hatchet data showed that activity levels remained high and by year-end had increased 69% over 2019 and 81% over 2018.
There are other key points littered Engine Media's report. Twitch doubled (!) the amount of hours watched on its platform in 2020 vs. 2019. Female game streamers in particular enjoyed a large rise in viewership. There were 355 million hours of sponsored live streams in 2020, indicating that tons of brands are wising up to the growth of the industry and trying to get in on the game. Also, the inclusion of political content on these game streaming platforms exploded as well, tied to the 2020 election cycle.
"Stream Hatchet's data has confirmed that video games and esports have taken a huge step in popular culture. When much of the live entertainment world went dark, streaming platforms were able to captivate audiences through remote esports tournaments and exciting live streams," says Eduard Montserrat, CEO of Stream Hatchet.
"During one of the most closely monitored election cycles in US history, younger generations turned to these platforms, and their respective influencers, to learn about the political discourse informing their decisions at the poll booths. We're fascinated with the data points and larger media trends that are contained within this report, and are confident that 2021 will yield even more compelling insights."
Perhaps the most important aspect of the report is that the growth trend in esports streaming didn't stop once IRL sports came back to television. If that continues, it would indicate that the pandemic didn't just juice esports' growth temporarily, but rather simply supercharged a trend that would have happened regardless.
When the EU Copyright Directive was being drawn up, one of the main battlegrounds concerned memes. The fear was that the upload filters brought in by the new law would not be able to distinguish between legal use of copyright material for things like memes, quotation, criticism, review, caricature, parody and pastiche, and illegal infringements. Supporters of the Directive insisted that memes and such-like would be allowed, and that it was simply scaremongering to suggest otherwise. When the Directive was passed, BBC News even ran a story with the headline "Memes exempt as EU backs controversial copyright law". The MEP Mary Honeyball is quoted as saying: "There's no problem with memes at all. This directive was never intended to stop memes and mashups."
But just as supporters insisted that upload filters would not be obligatory -- and then afterwards changed their story, admitting they were the only way to implement the new law -- so people who insisted that memes and parodies would still be allowed are now demanding that they should be banned. Copyright companies were the first to make that shift, and now a group of 576 German artists have sent a letter to the German government and politicians complaining about the proposed implementation of the Copyright Directive in their country (original in German). In particular, they are appalled by:
the introduction of all kinds of exceptions, some of which are so outrageously contrary to European law, that we can only shake our heads: up to 20 seconds of music, remixes, mash-ups, samples etc. -- everything should be freely usable, without a license.
In other words, precisely the things that supporters of the EU Copyright Directive promised absolutely would be freely usable, without a license, when experts warned that the new legislation could threaten these legal activities. Now these artists are demanding that the German government ignore all those assurances that user rights would indeed be preserved.
However, as Heise Online reports, not all German artists are so selfish in their desire to take away what few rights ordinary members of the public have in the use of copyright material for memes, remixes and the like. A group of 48 top German artists using social media to great effect, and who together have around 88 million followers on YouTube, Instagram, Twitter, Twitch and TikTok, take a very different view of the German government's proposed implementation (original in German):
Article 3 paragraph 6 describes the public reproduction of a tiny excerpt of works protected by copyright and parts of works by the user of a service provider, for non-commercial purposes or where insignificant income is involved. In these circumstances, thanks to Article 3 Paragraph 6 it would be legal to use up to 20 seconds of a film, up to 20 seconds of a sound track, up to 1,000 characters of text and a picture of up to 250 kilobytes without having to purchase a license, since the rightsholders are compensated for the usage via the service provider. We content creators expressly support this rule.
This so-called "legalization of memes" shows that the politics of [the German government] is close to how reality operates. What defines our culture is always evolving, also through digitization. Memes have been part of our culture for many years and are finally recognized by this ministerial draft.
The statement from the 48 social media artists also includes a neat encapsulation of why their position is so different from the 576 artists whining about memes and mashups:
we would like to point out that content creators are simultaneously users and owners of copyrights, i.e. [they are both] creatives and companies in the cultural industry.
The 576 artists who wish to deny an Internet user the right to draw on copyright material for memes, parodies, mashups etc. forget that they too draw constantly on the works of others as they create -- sometimes explicitly, sometimes more subtly. To cast themselves as some kind of creative priesthood that should be granted special privileges not available to everyone else is not just unfair, but insulting and short-sighted.
To be honest, Animal Crossing was always going to be a hit. It's just the perfect distillation of the Nintendo experience: a cutesy social experience couched in harmless video game fun. Still, one unanticipated side effect of the global COVID-19 pandemic was how plenty of people and groups turned to the game for new and innovative ways of connecting with others. Examples abound, including players building a real-world economy around the game's resources, TV stars plying a version of their trade in the game, protests and social movements springing up in the game's world, and even the use of the game as part of the presidential election campaign. Mostly absent was any pushback from the gaming community. Instead, these few instances of crossover from real world to gaming world appeared to simply show the power of what Nintendo had created: an open and innovative gaming experience based on community and unbridled social interaction.
That description, of course, is about as historically un-Nintendo as it gets, so perhaps it's not entirely surprising that a recent update from Nintendo over its usage terms for the game seems to squarely aim to neuter much of this. In a post titled "Animal Crossing: New Horizons usage guidelines for businesses and organizations", which you can read for yourself in its entirety, Nintendo prohibits groups and organizations from doing the following:
However, please observe the following points when you engage in these activities.
Please be aware of the game rating and do not engage in activities that go beyond the rating.
Please refrain from using the Game inappropriately or creating any content within the Game that would be considered vulgar, discriminatory, or offensive. Please also refrain from bringing politics into the Game.
Please do not share false information about the Game with anyone, and do not deceive others while using the Game (e.g. falsely indicating you are separately licensed or otherwise approved by Nintendo).
Please do not leverage the Game as a marketing platform that directs people to activities or campaigns outside the game (including directing people to a sales page, distributing coupons, sweepstakes, giveaways, requiring consumers to follow social network services accounts, gathering customers’ information, or other invitational activities).
You are not allowed to obtain any financial benefit from using the Game (including selling your Custom Design or earning any advertising revenue with the Game content).
Now, some of these prohibitions are reasonable, albeit quite vague. No, you shouldn't falsely imply sanctioning by Nintendo; no, you shouldn't break the game's age rating through your actions.
But reading those guidelines pretty clearly also prohibits several of the cool interactions we detailed in the opening. Making any money from selling the game's resources to other gamers. Starting social movements within the game. And if all politics in the game are banned, there goes the innovative organizing use by Biden or other politicians as well.
And on that last bit about removing all politics from the game world: good fucking luck. This is a game built on social interaction and, since politics in 2020 has managed to invade every last crevice of our over-bloated society, it's going to come up. I imagine Nintendo mostly wants to limit official campaign actions within the game, which is stupid in and of itself. Still, building a social game and then telling customers how they can be social is simply not going to work.
Again, it's not surprising: this is as Nintendo as it gets. But it is certainly disappointing.
Esports continues to march down the path toward greater adoption. As we've detailed over many posts, esports had already become a cultural thing heading into 2020. But if anyone expected a regression back to IRL sports, the COVID-19 pandemic essentially cemented the cultural adoption of competitive video gaming. With even greater adoption by IRL professional sports leagues, and with many widely used social media platforms getting in the game and accelerating all of this, esports have continued to hit impressive milemarkers that showcase just how big this is all becoming.
It's not slowing down. Signs of that acceleration can be seen first in a glitzy advertisement Nike has put out as it too jumps further into esports gaming.
The shoemaker has released its first-ever esports ad, coming out of Nike Greater China, showcasing how these esports athletes get their minds and bodies prepared for the challenge.
The ad shows gaming superstar Uzi – who was recently the first esports athlete to be signed by Nike – completely a rigorous (and highly entertaining) training camp. According to Nike, the ad is a reminder for these gamers to remain active and healthy in order to stay on top of the challenges of gaming – which can see top players putting in 16-hour days six days a week.
Nike jumping into this is no small thing. And, while this is an ad for the Chinese marketplace, it would be quite surprising given esports' trajectory if we didn't see this sort of thing in the West before long.
Compared to America’s most popular pro sports, football, basketball and baseball, Esports is small, but it now ranks with popular sports entertainment like wrestling. In 2019, according to esportsobserver.com, over $211M was awarded from over 4,000 Esports tournaments, an increase of 29% from 2018’s $163M prize pool.
...
Gaming is universal. The rules of the games are simple. It is simply the essence of competition. When produced for television, broadcasters can support the action with commentary, stating objectives for the game on-screen. Like golf, knowledge of the games might not be necessary at all as a games player base might be large enough to sustain eSports broadcasts, making non-player spectators a bonus, learning rules as they watch. Segments can support rules and strategies and highlights.
Will esports reach the vaunted levels for America's attention that baseball, basketball, and football have achieved? It's certainly on that trajectory. And the fact that publications like Forbes are even asking this question of a sport that has existed widely for less than two decades is telling. What esports really has to avoid is becoming the new World Series of Poker, where the fad fizzled out after a few years and is now relegated to niche status, albeit still popular.
But as the post points out, gaming is becoming universal. It's already overtaken other forms of entertainment as the dominant force among young people. Why that wouldn't translate into even further spectatorship of esports tournaments, now propelled by major brands and funding, is a question I cannot answer.
As Techdirt has reported many times, open access is a self-evidently great idea, but one that is still beset with many problems. That's not least because academic publishers are keen to remain in control of any transition to open access, and aim to maintain their extremely high profit margins whatever the publishing model. But there's one problem for open access that ironically derives from its greatest strength -- the fact that anyone can access journals at any time, for free. Because material is always available, librarians have tended not to worry about making some kind of backup. That's not the case for traditional journals, where there is potentially a big problem if a subscription is cancelled. The end of a subscription often means that readers lose their existing access to journals. To address this, librarians have come up with a variety of ways to ensure "post-cancellation access", explained well in a 2007 post on a blog about digital preservation, written by David Rosenthal. A recent article on the Internet Archive site provides some interesting statistics on the scale of the problem of creating permanent copies of open access titles:
Of the 14.8 million known open access articles published since 1996, the Internet Archive has archived, identified, and made available through the Wayback Machine 9.1 million of them... In the jargon of Open Access, we are counting only "gold" and "hybrid" articles which we expect to be available directly from the publisher, as opposed to preprints, such as in arxiv.org or institutional repositories. Another 3.2 million are believed to be preserved by one or more contracted preservation organizations, based on records kept by Keepers Registry... These copies are not intended to be accessible to anybody unless the publisher becomes inaccessible, in which case they are "triggered" and become accessible.
This leaves at least 2.4 million Open Access articles at risk of vanishing from the web... While many of these are still on publisher's websites, these have proven difficult to archive.
That's a pretty serious problem, and one which the Internet Archive is taking steps to address, for example by trawling through the petabytes of Web content that it has built up since 1996. There's an editable catalog with an open API that aims to provide "Perpetual Access to Millions of Open Research Publications From Around The World". Internet Archive has also created a full-text search index to over 25 million research articles and other scholarly documents.
Although few people are aware of this project, it is vital work. There is little point publishing open access titles, theoretically available to all, if their holdings simply disappear at some point in the future. The Internet Archive's copies will ensure that doesn't happen. They are yet another indication of the invaluable and unique role the site plays in the online world. Without it, we would already have lost so much of the amazing material that was once online, but which has since vanished except for the copies held by the Wayback Machine. Another good reason to support this incredible, free resource financially, and to help defend it from incredibly selfish attacks by publishers.
Earlier this week I wrote about the open letter that was published in Harper's, signed by around 150 very prominent writers/thinkers. My response to it was to heavily criticize both the premise and the specifics in the letter, and to argue that it sought to do the very thing it claimed to be against. That is, it presented itself as support for free speech and counterspeech, and against attempts to shut down speech -- and yet, almost all of the (deliberately vague) examples they pointed to were not examples of shutting down speech, but rather examples of facing consequences from speech and counterspeech itself. The open letter could -- and in many cases was -- read to basically say "we should be able to speak without professional consequences."
Some people liked my response, and some people hated it. The debate has raged on, and that's cool. That's what we should be supporting, right? More debate and speech.
Many people are referring to the letter as being about "cancel culture," even though the letter itself never uses the phrase. But everyone recognizes that the concept is what's at the core of the letter: the idea that someone will say something that "the mob" considers beyond the pale, and suddenly they're "cancelled." We'll get to how realistic that actually is shortly.
But part of the problem with the letter was that it was written in terms that could be used to both condemn overreaction by "mob" voices on Twitter and be used by certain people to say "stop criticizing my bad ideas so vociferously." It provides nothing of consequence to anyone trying to distinguish between the two, and thus when some assumed it was for the purposes of the latter, rather than the former, that should impeach the drafting of the letter itself, rather than its critics. Still, that makes the letter at best useless and at worst, capable of being used not in support of free speech, but as a tool to condemn counterspeech and consequences.
Some well meaning critics challenged my criticism of the post on a few grounds that are at least worth considering. First, was the argument that my post imputes motives to the signatories that were unfair. And I'll grant that criticism. Indeed, quite often lately, I've found that when people leap to assume the motives of others, that's often when debates and discussions go off the rails. I'm just as guilty of that as anyone else, and I should try to be better about that. But there's a flipside to that argument as well, which is that there are people out there who purposely engage in bad faith arguments, and go ballistic when you call them on that, insisting that you can't impute such bad faith into their argument based solely on the words that they spoke (though, often by ignoring nearly all of the contextual relevancy that makes their bad faith evident).
In other words, there certainly are mixed motives among the signatories, and I'd argue that some signed on in good faith in the belief that the world really is being pushed by illiberal forces that are shutting down realms of speech, but also those who just seem to be upset that people are calling out their bad ideas and they're suffering the consequences for it. I focused on the latter, when a more charitable read perhaps should have focused on -- or at least acknowledged -- the former.
And as someone who has spent decades fighting for the importance of free expression, at times at great cost to myself, I have quite a lot of sympathy for what a "good faith" reading of the letter appears to want to say. But I think the letter fails to make its case on multiple grounds, even removing the question of the motives of the signatories.
First, there's the question of how widespread "cancel culture" truly is. I would argue that it exists, but is vastly overstated -- and I'm saying this as someone who has had friends expelled from their jobs unfairly in my view following online mobs ganging up on them. I do believe that, as with any speech, it is possible to use it to galvanize actions I disagree with. But, as I said in my original writeup the details matter. Many of the claims of "cancel culture" remind me of the claims of "anti-conservative bias on social media." Lots of people insist it's true, but when you ask for examples, you get back a lot of platitudes about "look around!" and "it's obvious" and "you're blind if you can't see it!" but rarely many actual examples. And, in the few cases where examples are given, they frequently fall apart under scrutiny.
This is true of many -- though not all -- of the examples of "cancel culture." Last fall, Cody Johnston did an amusing video arguing that cancel culture isn't a thing. I'd argue it is exaggerated, and a few points it makes are also misleading, but on the whole he's got a point. Many of the examples of "cancel culture" are really just the powerful and the privileged receiving some modicum of pushback for horrific actions or statements, that maybe pushed them down a rung from the very top of the ladder, but still left them in pretty privileged positions compared to just about everyone else:
Are there more relevant examples? Perhaps. A lot of people pointed to Yascha Mounk's recent article in the Atlantic entitled Stop Firing the Innocent, and I mostly agree with that article. There are a few examples out there of people being unfairly fired in response to online mobs misinterpreting or overreacting to things. The story of David Shor in that article is certainly one that many people pointed out, and it does highlight what seems like an overreaction (Shor appears to have been fired for merely tweeting a link to a study about historical voting patterns in response to violent v. non-violent protests, and some, somewhat ridiculously, interpreted the conclusions of that study to somehow be a condemnation of some of the current protests). Another set of well known examples comes from John Ronson's book from half a decade ago, "So You've Been Publicly Shamed," which highlights a few cases of arguably unfair overreactions to minor offenses.
But, here's the thing: after lots of people (including Mounk) called out what happened to Shor (more speech), many people now agree that his firing was wrong. And so, the cycle continues. Speech, counterspeech, more counterspeech, etc. Sometimes, in the midst of all that speech, bad things happen -- such as the firing of Shor. But is that an example of cancel culture run amok, or one bad result out of millions? It is very much like our debates on content moderation. Mistakes are sometimes made. It is impossible to get it right every time. But a few "bad" examples here and there are not evidence of a widespread trend.
Also, I'm still hard pressed to see how the level here is any worse than it was a few decades ago. There may be different issues over which public shaming may occur, but it wasn't that long ago that people would be ostracized for suggesting it's okay to fall in love with someone of the same gender or someone of another race. On the whole, I'd argue that we've made a lot of progress in opening up avenues of discussion -- and while we should be concerned about the cases that go wrong, the evidence that there's some big change beyond what has happened in the past are lacking. Indeed, I feel like I remember this nearly identical debate from when I was a kid and the fight was over "too much political correctness," which is a form of the same thing.
I think it's natural for some folks to always feel that they are being treated unfairly for their beliefs, and that people overreact. It's not a new phenomenon. It's not driven by the internet or some other new idea. Indeed, as philosopher Agnes Callard tweeted, you can go back to John Stuart Mill's "On Liberty" to find him discussing "cancel culture" as well:
If you want to understand cancel culture, JS Mill's On Liberty is a pretty good place to start. pic.twitter.com/wBXeFRN4aj
And, again, the details matter, and in many cases the different degrees of criticism and "cancellation" make a huge difference in whether or not the situation was just or not. The circumstances behind each of the stories matter not just in what happened but to whom and why -- and this is why the questions were raised about the signatories and their motives. In some cases it certainly seemed that at least some of them are upset that they are facing more criticism or that they may be excluded from certain privileged platforms. But not being able to publish a nonsense opinion in the NY Times op-ed section is not being cancelled or silenced. It's one thing to have a non-public figure thrust into the limelight and effectively have their career destroyed. I can see how that's a problem. That, however, is entirely different from a very public figure having a bunch of people tell them that their ideas are bad and hurting others.
And while some signatories of the letter insisted to me that they meant the letter to be about those non-public figures, the letter itself does not make that clear and, again, can be used to serve both purposes.
Indeed, a response letter that was crowdsourced and put together by an even bigger list of people (though perhaps without as many "recognizable" names) walks through each of the vague examples in the original Harper's letter and looks at the likely details. And, with the exception of the one example of David Shor -- which it describes correctly as "indefensible, and anomalous," the other examples highlight the issue here: the details have been twisted to hide situations in which people were censured for actually making huge mistakes, not for just taking a contrarian view.
And, once again, that gets at the problem of how awful the letter is: its language can be used both to defend free speech and to paper over truly awful behavior, and while some of the signatories meant it to do the former, it certainly gives the appearance of being used by others to do the latter.
One other criticism I received, along the lines of it being unfair to pin motives of some of the signatories on all of them, was this is the nature of getting a bunch of people to sign onto an open letter. By definition, those things will get watered down as more signatories have opinions, and many people will sign on without necessarily reading through the details. That's not a good excuse. Recognizing the intent of the letter and who you are joining with is part of understanding context. And, as if to prove what a silly criticism that is, take a look again at the crowdsourced letter above, also signed by a bunch of people, and worked on together as a group. It makes key points much more directly and is a much, much, much riskier letter in many ways.
The signatories call for a refusal of “any false choice between justice and freedom.” It seems at best obtuse and inappropriate, and at worst actively racist, to mention the ongoing protests calling for policing reform and abolition and then proceed to argue that it is the signatories who are “paying the price in greater risk aversion.” It’s particularly insulting that they’ve chosen now, a time marked by, as they describe, “powerful protests for racial and social justice,” to detract from the public conversation about who gets to have a platform.
It is impossible to see how these signatories are contributing to “the most vital causes of our time” during this moment of widespread reckoning with oppressive social systems. Their letter seeks to uphold a “stifling atmosphere” and prioritizes signal-blasting their discomfort in the face of valid criticism. The intellectual freedom of cis white intellectuals has never been under threat en masse, especially when compared to how writers from marginalized groups have been treated for generations. In fact, they have never faced serious consequences — only momentary discomfort.
I think that Jill Filipovic's response to the letter may be most aligned with my thinking: that cancel culture is overstated, that some of the signatories of the letter were signing on because they're upset that a wider public with a voice is criticizing them, but that there are at least a few cases of egregious overreaction to online mobbing, and sometimes that involves the loss of a job. Her argument makes some amount of sense -- that you shouldn't be fired for your bad opinions if your bad opinions have nothing to do with your job:
So yes, most of the “cancel culture” complaints are overwrought. On the long list of things worth caring about, cancel culture is very low down. Criticism is not cancelation. Conflict is not censorship. On all of these issues, the right is far, far worse (how many voices opposing the party line are at Fox, or on right-wing websites, or speaking at conservative religious colleges?). Often, the right uses this narrative of the “intolerant left” to cover for its own misdeeds and groupthink, and it’s an underhanded, bullshit tactic that too many progressives fall for.
But.
It is also true that there have been instances — many instances — where people have been fired from their jobs (and not just in media) for holding opinions that have nothing to do with their ability to perform said job, and who are fired entirely because an employer doesn’t want the PR headache.
Of course, even that is not always so black and white. If your opinions create larger problems for a company -- including costs that go beyond just giving PR a headache -- does it really make sense to just say that the companies need to shoulder that burden? But I do think it's fair to try to explore context more deeply. What is the context in which the statements are being made -- and who is making them? Is it a situation that involves speaking truth to power? Or is it a situation that involves using a position of privilege to keep down the less fortunate?
That is to say, as with so much, it's complicated.
And part of that complication is not just that different people have different motives and that mistakes are made, but that the level of "penalty" people receive differs quite a bit as well. If the original letter had legitimately focused exclusively on some of the more significant consequences, and could clearly demonstrate were out of bounds, it might have a good point. But it lumps "public shame and ostracism" in the same category as more significant retribution. And that was part of what made me think the original letter was so lame. Sure, some people were signing onto it to highlight those few egregious cases (though, again, it's unclear that those situations are new or any different than in the past), but the letter lumped in a much wider variety of things.
Another part of the complication is that as times change, our understanding and sensitivities to certain ideas shift as well. In my original piece I argue it's not evident from where I sit that the space in which ideas can be discussed is shrinking. There are so many things today that can be seen, discussed, and read that were impossible to get out there just a few decades ago, and that's incredible. That said, it is true that there are certain things that used to be more commonplace that are now much more sensitive areas. But a big part of that is actually our recognition that things which used to be considered okay (e.g., casual bigotry) are no longer considered okay. And a huge reason those are no longer considered okay is that we've opened up this wider "marketplace of ideas" to more voices, often from folks who were previously unable to share their points of view, and their persuasive speech has convinced many that what used to be deemed okay is not and, in fact, never was.
Finally, I'd argue that while it's possible that some people make innocent mistakes, and that we should try to take into account whether or not saying a truly dumb or hurtful thing was an uneducated mistake or outright maliciousness, we can and should be able to judge that by what happens next. That is, I agree with the letter writers that people shouldn't lose their job over a single innocent tweet taken out of context. But it's much, much harder to make that case for someone who doubles down, refuses to learn, refuses to investigate why their words are causing so much pain and hurt, and then attacks those who are trying to educate them on their truly awful stance.
So if I were to try to rewrite the letter to make the actual point that the authors seemed to want to make, I'd probably go with something like the following:
Free speech is a key foundational idea and value which we support. Along with that, though, we recognize that speech has consequences, and some of those consequences may include counterspeech that may lead to action. We recognize that persuasive speech that leads to action may be for things we agree with and also for things we disagree with. We are concerned about situations in which the actions and consequences of speech may unfairly and disproportionately punish people for innocent transgressions -- and how that may create unnecessary chilling effects that run counter to the ideal of free speech. Yet at the same time we recognize that this is complicated, and situations may appear differently to different people.
The world is a complicated and ever changing space. Some of that change is for good and some is for bad. There are people with all kinds of motivations out there, and it is all too easy to leap to the worst conclusions about motivations. We should all strive to be cautious in assigning motive, and we should investigate why someone said what they said before leaping to conclusions or rushing to condemn them to the level at which they'd face reprisal -- while also recognizing that there are those out there who will argue in bad faith. Distinguishing between the two is often difficult.
In many ways, the world is more free and open for debate today than in the past -- new and previously unheard voices are being heard and promoted and celebrated for the first time and we should encourage that. This open debate and discussion has also resulted in a changing societal consensus on what is, and what is not, appropriate. Quite frequently this is also for good. We are becoming more sensitive to the harms that people have faced and are reckoning with all of those, thanks in part to the robust debate and discussion about these ideas.
At the same time, in our ongoing and righteous zeal to revisit areas that were previously overlooked and underexplored, there are times when people may go too far. There are times when the nuance and details and context are not initially clear, and some people -- including ourselves -- may overreact. That overreaction often leads to consequences which, when the full situation is explored and understood, seem unfair. We should seek to be aware that this may happen, and try to avoid it. Furthermore, we should recognize that as fallible as humans are, we will sometimes discover this too late, and should seek to rectify it when we do.
The details will always matter. We should not assume simplistic narratives all of the time, when often there are mixed motivations and complex factors and variables involved. There may be situations that appear similar on the surface, but upon deeper exploration turn out to be quite different. We should be willing to explore those details and to recognize that, sometimes, people we like will face consequences for their speech for an extended pattern of truly reprehensible behavior.
However, we should leave space open for people to learn and to grow. We should recognize that a single misdeed may be innocent and should treat it as such. We should see how people respond to such feedback. At the same time, we should also recognize that a pattern and practice of questionable and hurtful behavior may suggest a person who is deliberately, and in bad faith, seeking to game the system.
This starts with us. We, who have signed this letter, have not always lived up to these ideals either. Everyone will make mistakes sometimes, and we hope to learn from them as well. We are excited about the power of new voices to be heard and join the conversation, and realize this often challenges our strongly held beliefs. We hope that, in the spirit of learning from these new voices that criticism of other views will also take on a recognition that there is room to understand and to change -- or, on the flipside -- to build stronger arguments to the contrary.
I think that approach would have made the point much better. It would acknowledge that things are often more complicated than they appear on the surface, that there are different motivations behind actions, and that sometimes speech does lead to consequences that not everyone will agree with. But, most of all, that approach acknowledges that everyone makes these kinds of mistakes at some point. The original letter framed the issue as if the signatories were the righteous believers in free speech, against the "others" out there trying to shut them down -- without any recognition that some of the signatories and the letter itself often seemed to be advocating for the silencing of others as well.
In the end: free speech is important, but like with so many things it's more complicated the deeper you explore, because free speech itself has consequences, and we should strive to understand the impact of our speech, to learn, and to expand our own thinking over time as well.
As we noted, last Tuesday, in the midst of a pandemic and nationwide protests about police brutality, the Senate Judiciary Committee's IP Subcommittee (well, three members of it, at least, one of whom seemed to think that Section 512 of the DMCA was actually Section 230 of the CDA) decided it was a priority to host a hearing on copyright law. Specifically, the hearing was in response to the Copyright Office's bizarre, ahistorical take on Section 512 of the DMCA that ignores the public as a stakeholder. It seemed particularly bizarre to have as the first speaker on the panel, Don Henley, who is one of the most successful recording artists of all time -- his albums are literally the 1st and 3rd best selling albums of all time -- with a history of being wrong about the internet.
I am present, today, not to be contrary, not to advance a personal agenda (at age
73, and indefinitely homebound by the Covid‐19 pandemic, I am in the final chapter of my
career), but I come here out of a sense of duty and obligation to those artists, those creators
who paved the road for me and my contemporaries, and for those who will travel this road
after us. It is truly unfortunate – and patently unfair – that the music industry is perceived only
in terms of its most successful and wealthy celebrities, when in fact there are millions of people
working in the industry, struggling in relative obscurity; people whose voices would never be
heard were it not for hearings such as this one being held, today. So, I am compelled to seize
this rare opportunity to discuss aspects of the fundamental issues that are foremost in the
national conversation, at this anxious moment – fairness, rights, mutual respect and … in this
case, economic justice and equal opportunity.
Of course, in the paragraph immediately after calling for a "national conversation" and "mutual respect" he trashed the entire tech sector and anyone who criticized him as a shill:
But, the smear campaign has already begun. I have been targeted by the digital gatekeepers
and their many shills and surrogates. It began last Friday in the newspaper that belongs to Mr.
Bezos, and it continues, today. Big Tech was probably hoping that this hearing would be
canceled, or that I would be intimidated to the extent that I would not testify. But, I will not be
silent on this issue. I want to do everything in my power to strengthen the property rights of
music creators of all ages, races and creeds; all styles, from hip‐hop to honky‐tonk, from rock,
to rap, to rhythm & blues. From jazz to folk, to heavy metal. To change or improve outdated
laws and regulations that have been abused for over 20 years by Big Tech … the enormous
digital platforms that facilitate millions of copyright infringements, monthly.
From there he gave a bunch of strained and mostly debunked talking points about the notice-and-takedown provisions of the DMCA which he finds (of course) to be inadequate. Having discussed all of those in the past, I don't really want to revisit those silly talking points all over again. But I did want to point out, yet again, how Henley's "those darn kids these days" attitudes, undermines his claims of wishing to support up and coming artists. In particular, he attacks TikTok:
In a world where more than 500 hours of video are uploaded to YouTube every minute, more
than 1 billion videos are viewed on TikTok per day, and there are over 500 million daily active
users on Instagram, it is clear that the massive online services are flourishing while artists have
no ability to combat the rampant infringement that occurs on these platforms
That's an odd choice to pick on. While the labels and publishers have been fighting over licensing on TikTok, this line of argument -- that TikTok is just some den of piracy -- seems completely at odds with its cultural impact.
So, it becomes difficult to square the idea -- put forth by an aging white rocker claiming to represent those "struggling in relative obscurity" -- that TikTok is some damaging tool to up-and-coming musicians, when we see how it has enabled a young, black, LGBTQ star to rise from that obscurity.
And, yes, of course there are some legitimate points buried within Henley's talking points. It's difficult to make a living as a musician. But that's not piracy's fault. It's always been difficult to make a living as an artist. But the internet and the freedom that it's created has enabled many, many, many more artists to have a chance -- including some who would never have had a chance under the old system. As we've discussed for many years, under the old label system, through which Henley grew up, you had record labels acting as gatekeepers. They, and they alone, chose who would be successful and who would not. The internet has obliterated that system. There's still a place for labels, but they don't control the gates anymore. There are now new avenues for artists to go direct to their fans -- to build followings and fans and supporters, with TikTok just being the latest in a long line of platforms that have brought us new artists, doing an endrun around the old system.
Of course, whenever that happens, the old guard complains. Not because it's actually harming music. But because it's a lessening of their exclusive power. This is the same thing we've always seen from the antiquated wing of the legacy copyright industries. Every "new" thing is painted as a den of piracy. Back in the early 20th century, songwriters flipped out at player pianos and the "piracy" they created. The 1909 Copyright Act was literally a response to player pianos. Indeed, in the hearings over that Act, composer John Philip Sousa -- the Don Henley of his time -- testified before Congress whining that:
“When I was a boy—I was born in this town—in front of every house
in the summer evenings you would find young people together singing the songs
of the day or the old songs. To-day you hear these infernal machines going night
and day. ... Last summer and the summer before I was in one of the biggest yacht
harbors in the world, and I did not hear a voice the whole summer. Every yacht had
a gramophone, a phonograph, an aeolian, or something of the kind."
The horrors of hearing a gramophone from your giant yacht. I'm sure Don Henley can sympathize. Of course, in retrospect this all looks silly. Here was Sousa complaining about the record player -- the very thing that eventually built the entire recording industry. But, really, what he's hooked into is the nostalgia of how things "used to be." The nostalgia of "young people together singing the songs of the day or the old songs."
And of course that trend continued. When radio came on the scene, the makers of records screamed about how it was "piracy." And when recordable cassettes came on the market, we were told that "home taping is killing music." Napster was supposed to be the death of industry, as was any number of other services.
Meanwhile, if one spends any time with TikTok, I'd argue that unlike Henley's view of it, it seems like the perfect example of technology and innovation -- including the innovation-promoting setup of the DMCA's provisions -- and brings us right back around to a situation in which "young people today" are "singing the songs of the day or the old songs." Indeed, some of the most popular parts of TikTok, and those that have helped people like Lil Nas X become superstars, is the fact that TikTok encourages people to copy and sing and dance along with the "songs of the day or the old songs." And it, and other similar platforms, are helping new artists break through every day -- without those artists needing to get the approval of an old has been exec at a record label.
History tells us which path makes sense. Henley is choosing the Sousa path -- the successful old musician, complaining about what he's hearing from the biggest yacht not being to his liking.
Back in 2013, we made clear our concerns with the Italian communications watchdog AGCOM setting up new administrative copyright enforcement powers that would allow them to simply up and declare sites to be infringing, at which point ISPs would be ordered to block websites. Soon after that Italy's public prosecutor seemed to decided that part of his job was also to order websites blocked based solely on the public prosecutor's say so.
In the latest such order from the Public Prosecutor's office declaring a list of sites to be infringing, apparently Italy has decided that the famous and wonderful Project Gutenberg website, which is a repository of public domain books, must be blocked. I don't know about the other 27 sites listed in the order, but Project Gutenberg is no piracy site. Yet here it is at number 25 on the list:
They even go to the trouble of looking up the whois info. You would think that maybe someone would recognize that a site founded in 1996 maybe is not a giant piracy site:
As everyone knows, Project Gutenberg promotes the widest dissemination and knowledge of the registered cultural memory. For years it has been hosted by large universities that made their servers available, before becoming an autonomous organization, one of the main of this type and inspiring model for many other similar ones (such as the Manutius Project in Italy), mainly supported by work. of many volunteers.
We reiterate that it is one of the most qualified projects on the net, with a large amount of documents accessible for free in compliance with the US Copyright Act, because it is in the USA that it is based: they are works in the public domain, out of rights because they have always been public domain (such as the Bible) or because the maximum terms of duration of copyright have passed.
Seeing the Gutenberg Project linked to a whole series of domains that contain pirated editorial materials for commercial purposes causes bewilderment and disapproval in the world of libraries.
It appears that neither the Italian Public Prosecutor nor the Court even attempted to contact Project Gutenberg which only found out about it after a visitor to the site in Italy made them aware of it:
And, if you want to understand how this happened -- which also might raise some huge questions about how the public prosecutor's office works -- it appears that they were monitoring some Telegram private channels, and saw someone there link to some pirate sites and link to Project Gutenberg, and rather than, you know, investigate, they just decided to ban the entire list. Pretty incredible that they'd look up the whois, but apparently not check out the actual website. Because of copyright, apparently, they must censor all.
There are a variety of opinions concerning the Internet Archive's National Emergency Library in response to the pandemic. I've made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don't trust my analysis and want to whine about how I'm biased, I'd at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.
However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many -- including the US Copyright Office -- seem to want to move to a world of permission and licensing for culture that has never required such things in the past.
Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.
What's really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:
The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.
Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so... badly.
The Office responded with a letter revealing their recommendation was not going to be the guidance document to “help libraries, authors, and online outlets,” but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).
We've written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we'll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: "licensing" (i.e., permission). So while the letter applauds more licensing, that's really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn't really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren't supposed to need permission:
Here’s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.
The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should “seek permission from authors or publishers prior” to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.
Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!
And, yes, Congress has already made it clear that libraries hold a special place with regard to copyright:
Libraries can make these uses of their legal acquired books without permission because the copyright system, via Section 109 first sale, maintains the market balance long recognized by the courts and Congress as between rightsholders and libraries. Libraries sit right in the middle of the economic purpose of copyright (we buy the books!) and the access purpose of copyright (we loan the books!) – or in the Constitutional narrative, “to Promote the Progress of Science and the Useful Arts” libraries provide unfettered access and freedom to the books they purchase.
When a library legally acquires a book via a sale, it has the right, under the first sale doctrine, to continue to loan that work unimpeded by any further permission or additional fees to the copyright holder. No license is needed. A digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction.
Congress, when it legislated the copyright exceptions, made it possible for libraries to fulfill their “vital function in society” by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing access to these materials. And arguably, now that we are in the 21st century, why should we not use technology to allow this loaning to continue online? Let libraries use technology (the same used by the publishers, for example) to INCREASE access to these works, especially during a pandemic.
Courtney then goes on to point out that the whole "license everything" concept fundamentally eviscerates the concept of ownership of private property. Once we've bought something, we should be able to do what we want with it, and the push here to now force libraries to get licenses for books they already own is a direct attack on property rights:
Licenses continue to eviscerate ownership rights for patrons, libraries, and the general public under very restrictive terms. And, these licenses are absolutely not the equivalent of a purchase. These vendors may use the word “buy it now” or “purchase” or “for sale” but, when you read the fine print – it is absolutely the opposite....
When a library or patron agrees to these licenses, at best they are merely renting or leasing temporary access to these works.
Even worse, because a library has special exceptions to copyright as built into law, when we move into a copyright world, libraries are effectively giving up those rights:
Or, in some licenses, the terms are so limited that libraries
or their patrons are restricted from the very uses, exceptions, or exemptions
made legal in the Copyright Act. I pulled an example of one of the more common licensing
clauses:
“Except as explicitly authorized in this License, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or use content and information contained on or obtained from the Work....” and “articles, chapters, and other materials made available via this License may not be used for the purpose of interlibrary loan...”
This license takes away nearly all the copyright exceptions for libraries, and many exceptions for the public as well. Licenses do often restrict use beyond what copyright law might otherwise allow. And the licenses do not have consistent language relating to library uses, so they are all different, and all full of boilerplate limiting terms. What other rights are these licenses interfering with?
And after digging into the variety of ways in which copyright law is structured, Courtney makes it clear that libraries have a clear first sale right to lend out books they have in their possession:
Additionally, under Section 109, first sale, a library can place a book on reserve and let it be accessed or checked out as many times as it can. Each patron uses and returns the book – and there is no license, no additional payment, and the library or user does not have to seek any further permission from the copyright holder. Some books have been read hundreds of thousands of times on reserves! The author and publisher were compensated for that first purchase, and from there, the access and loaning can continue unfettered.
As for the ReDigi case regarding digital first sale, Courtney points out that the Copyright Office is blatantly misreading it to make it say a lot more than it really does, specifically with regard to how it impacts libraries and their first sale rights:
Here is the main difference: these ReDigi resales the court examined were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the working market experiencing harm.
However, again, a library is not a commercial for-profit company. The books they own, via first sale, are not licensed mp3s. There is clearly a distinguishable analysis here.
For digitized copies of legally acquired print books under the first sale doctrine, the substitutionary effect is
far less clear. With most 20th-century books, the vast majority of books in a library’s collection, the market has almost been exclusively print-based. And, for those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.
Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be “transformative” in nature – a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.
There's a lot more in Courtney's analysis, but it is very thorough, and a fairly complete debunking of the Copyright Office's (and others') push that the answer to libraries being shuttered due to the pandemic is merely "more licensing."
