Musings on intellectual property (Patreon)

I updated my public post at https://www.patreon.com/posts/68740592 with a brief explanation and the link to a petition started by a VR fan, which I believe you might want to sign.

This week there has been much talk on the Web about the matter, and it quickly escalated to discussions about freedom of modding and balance of power. I followed the debate with great interest of course, and like others I do think, especially after a couple of days of studying Take-Two’s behavior, that this reflects a much bigger issue than just my Patreon, or just VR conversions, or just subsidized mods.

The larger question is: as modders, gamers, consumers in general, do we want to keep tolerating that corporations should have a money-given right to instantly kill any original work (be it a simple fix to one of their mistakes, an allegedly competing full-blown creation, or anything in between) just by exploiting the lie/loophole that everything that interacts with their IP is a “derivative work”?

These days I have seen many people use an analogy that is right on the mark: pretending that any external program or library/dll destined to be used in conjunction with a game and not explicitly authorized by the publisher is automatically a “derivative work” of the game is tantamount to (i.e., equally absurd as) stating that every application running on Windows and not explicitly authorized by Microsoft is automatically a derivative work of Microsoft’s IP, and that Microsoft has the right to arbitrarily terminate the app’s existence by issuing a DMCA takedown notice, all the more so if the app is created with commercial intent.

Even more surreal: Microsoft should be able to unilaterally dictate whatever terms it deems fit, like “the app shall be made available for free after no more than thirty (30) days from its first release” or “all rights to the app and the assets contained therein shall be the property of Microsoft, Inc.”.

Every aspect matches with perfect parallelism:

• the app tightly interacts with the Windows operating system (OS) routines and data structures;
• much of the app functionality is written specifically to conform with the Windows OS and after careful study of what data and protocols the OS functions require;
• most importantly, the app would not be able to run on its own without the OS, and could not be sold as a standalone product because it needs the OS in order to work,

and so on and so forth. That unequivocally makes the app a “derivative work” of the Windows OS, doesn’t it?

No, of course not. Unless the app internally uses stolen/unlicensed portions of the OS source code, or resells under false pretenses Microsoft’s original assets and IP (which is something that Microsoft would need to prove, not simply allude to in vague accusations, in order to have the app instantly removed from the market), nothing in the law or common sense makes the app a “derivative work” based on Microsoft IP.

Yet game publishers pretend that the “derivative work” fiction makes sense, and in absence of specific legislation we allow ourselves to be fed the fantasy and surrender our consumer rights, allowing the publishers to vastly profit from mods while at the same time dictating conditions for their use (or terminating them with impunity) as though they were their own intellectual property.

Update 1:

To clarify, I am not contesting the validity of the derivative work concept in itself: it is well established doctrine in copyright law. I am saying that game developers, and particularly game publishers (and some more blatantly than others) are misappropriating it and twisting it into a universal tool to abuse their dominant position in order to squelch potential competition, while at the same time raking in millions/billions of dollars in revenue that is actually generated from, or with the help of, the work of modders.

Since this distortion is so well planted that it may be difficult at first to reason upon it without prejudice, let us make an example from a different economic sector where the same brainwashing did not take place.

Example a. Let's say that I am building and selling a clone of a Tesla car, mostly identical in all aspects, except for the fact that I put different tires on it. Perhaps they perform better than the original ones, or are more elegant and sleek, or perhaps they're just slightly different. I might also be using Tesla's name and promotional materials to sell my clone, inducing people to believe that they're buying an original Tesla car, only with better/different tires, while in fact Tesla is seeing no revenue from this operation.

It this "derivative work"? Of course it is. Should Tesla be allowed to stop me from selling counterfeit cars using their brand to illegally profit upon their IP? Yes, that makes total sense, both from the standpoint of copyright law and basic common reasoning.

Now, let's instead analyze a situation that more closely reflects what modders are doing:

Example b. Let's say that I am an expert on tires, and I see Tesla manufacturing cars that come with tires that I deem inadequate, perhaps because they put their users in danger, or are not as energy-efficient as they could be, or I simply have an idea for a different kind of tire that could go well with a Tesla car. I measure the original rims and do whatever it is that a tire maker needs to do to ensure compatibility, and then I start building and selling (or donating!) replacement tires for one or more Tesla models. Of course, in order to make my customers understand what they are getting (for money or for free), I need to specify the exact manufacturer and model each of my tires works with, and I might even put up a sign on my shopfront that says "Replacement tires for Tesla® cars!". Perhaps I have more than one sign, because I also invented and built new tires which work pretty well with Honda and BMW cars and which customers love, so they want to know where they can get them. Let's also assume that I didn't just copy the original tires or leverage stolen IP in order to build them. And obviously (but VERY importantly) let's remember that my customers need to own the car from the original manufacturer in order to put on my tires, as I'm NOT selling or gifting cars.

Does that fall under the "derivative work" doctrine? No, obviously it does not. Should Tesla be allowed to stop my enterprise (no matter whether I started it for profit or not) at any moment, arbitrarily, just by waving a DMCA flag? No sane person would ever think that. Should I be silenced from advertising that my tires are intended to be mounted on specific Tesla, Honda and BMW models? No, that plainly goes under the "fair use" concept. The same would apply to mufflers, windshields, any other replacement part. The aftermarket legislation is very much cut and dry, and it's plain for everybody to see that if Tesla went after me and my tires, that would just be abuse of dominant position and an illegal attempt to stifle competition.

Is there something inherently different with computer programs, that automatically makes a mod "derivative work" while a replacement tire is "aftermarket"?

No, and the browser wars that everybody remembers are abundant evidence of that.

Microsoft used to insist that the browser was a fundamental part of their operating system, and it needed to be integrated at such a deep level that it was acceptable to make other, competing browsers a second-tier choice with possibly limited functionality (NOTE: to put this in perspective, even they never went as far as insanely pretending that the alternative browsers were "derivative work" just because they were designed to operate on/with Windows).

We all know how well that attitude was received. Microsoft lost, repeatedly, and was forced to allow other browsers the same level of prominence, functionality and access as their own Internet Explorer creation.

My conclusion: game developers, and even more so game publishers, and some more than others, are distorting and taking unlawful advantage from copyright-related legislation to make mods (which work like example b. above, aftermarket) erroneously fit under the umbrella of derivative work (example a. above, clones). For years they have been abusing their dominant position with the obvious intent of keeping even potential competition at bay, while at the same time raking in enormous sums in revenue that is actually being generated from the work of modders. At the same time, they constantly dictate conditions for how mods should operate in conjunction with their games, and for how modders should be allowed to distribute and possibly profit from the modders' own original work, similarly (albeit in a much more blatant and brazenly illegal way) to how Microsoft used to behave in the browser wars.

If you're a modder, or a gamer who would love to freely use the products you bought and paid for without arbitrary restrictions, please make your voice heard: on social networks, but even better by signing our petition or contacting your congressional representative.

I would also love to hear expert opinions about my take on the issue, so if you are a journalist, a lawyer, or in any other way well versed in copyright doctrine, please feel free to either contact me or comment publicly about the matter. I think it's high time we put together a coordinate effort to stop this abuse, and certainly not just for my sake, my Patreon's, or that of VR mods only. I firmly believe that this has far-reaching implications.