The Deus Ex franchise has found its way onto Techdirt's pages a couple of times in the past. If you're not familiar with the series, it's a cyberpunk-ish take on the near future with broad themes around human augmentation, and the weaving of broad and famous conspiracy theories. That perhaps makes it somewhat ironic that several of our posts dealing with the franchise have to do with mass media outlets getting confused into thinking its augmentation stories were real life, or the conspiracy theories that centered around leaks for the original game's sequel were true. The conspiracy theories woven into the original Deus Ex storyline were of the grand variety: takeover of government by biomedical companies pushing a vaccine for a sickness it created, the illuminati, FEMA takeovers, AI-driven surveillance of the public, etc.
Deus Ex was originally released in 2000 but took place in an alternate 2052 where many of the real world conspiracy theories have come true. The plot included references to vaccinations, black helicopters, FEMA, and ECHELON amongst others, some of which have connotations to real-life events. Spector said, “Interestingly, I’m not sure I’d make Deus Ex today. The conspiracy theories we wrote about are now part of the real world. I don’t want to support that.”
This could be a post about how drastically disinformation has altered our society. Or it could be a post about how some of the very real aspects of modern surveillance have so warped the trust between the public and government so as to allow more conspiracy theories to better breathe.
But I think instead I'd like to focus on how clearly this illustrates the artistic nature of video games. The desire, or not, to create certain kinds of art due to the reflection such art receives from the broader society is exactly the kind of thing artists operating in other artforms have to deal with. Art imitates life, yes, but in the case of speculative fiction like this, it appears that life can also imitate art. Spector notes that seeing what has happened in the world since Deus Ex was first released in 2000 has had a profound effect on him as an artist.
Earlier, Spector had commented on how he was “constantly amazed at how accurate our view of the world ended up being. Frankly it freaks me out a bit.” Some of the conspiracy theories that didn’t end up in the game were those surrounding Denver Airport because they were considered “too silly to include in the game.” These include theories about secret tunnels, connections to aliens and Nazi secret societies, and hidden messages within the airport’s artwork. Spector is now incredulous that they’re “something people actually believe.”
If you had thought that the debate over whether video games are an artform was settled, you haven't been paying attention. To this day, there are very real implications for the courts and wider government understanding the artform, particularly when it comes to whether video games receive the same First Amendment protections as movies and literature.
Hopefully, artists like Spector, engaging in these types of artistic internal debates, can help solidify the understanding further.
If everyone's going to be talking about Dr. Seuss, then we need to talk about this terrible decision from the Ninth Circuit a few months ago. Not to validate the idea of "cancel culture" in the particular way it's often bandied about as a sort of whining over people not wanting to be associated with certain ideas, but because when law takes away the ability to express them in the first place, that's censorship, it's an affront to the First Amendment, and it's something we all should be outraged about. And, as this case illustrates, the law in question is copyright.
We've written about this case, Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020), many, manytimesbefore: some people wrote a mash-up using Seussian-type imagery and Star Trek vernacular to express new ideas that neither genre alone had been able to express before. And Dr. Seuss's estate sued them for it.
The little bit of good news: their trademark claim failed. Applying the Rogers test to determine whether the Lanham Act could support such a claim, both the district court and the appeals court agreed: it didn't.
Under the Rogers test, the trademark owner does not have an actionable Lanham Act claim unless the use of the trademark is "either (1) not artistically relevant to the underlying work or (2) explicitly misleads consumers as to the source or content of the work." Neither of these prongs is easy to meet. As to the first prong, any artistic relevance "above zero" means the Lanham Act does not apply unless the use of the trademark is explicitly misleading. Boldly easily surpasses this low bar: as a mash-up of Go! and Star Trek, the allegedly valid trademarks in the title, the typeface, and the style of Go! are relevant to achieving Boldly's artistic purpose. Nor is the use of the claimed Go! trademarks "explicitly misleading," which is a high bar that requires the use to be "an 'explicit indication,' 'overt claim,' or 'explicit misstatement'" about the source of the work. Thus, although titling a book "Nimmer on Copyright," "Jane Fonda's Workout Book," or "an authorized biography" can explicitly misstate who authored or endorsed the book, a title that "include[s] a well-known name" is not explicitly misleading if it only "implicitly suggest[s] endorsement or sponsorship." Boldly is not explicitly misleading as to its source, though it uses the Seussian font in the cover, the Seussian style of illustrations, and even a title that adds just one word—Boldly—to the famous title—Oh, the Places You'll Go!. Seuss's evidence of consumer confusion in its expert survey does not change the result. The Rogers test drew a balance in favor of artistic expression and tolerates "the slight risk that [the use of the trademark] might implicitly suggest endorsement or sponsorship to some people." [p. 31-32]
Note: as you read the quotes from the decision be aware that the court regularly refers to the mash-up as "Boldly" and the original Seuss work it riffed on as "Go!"
But while the Ninth Circuit was accommodating to artistry on the trademark front, it was hostile on the copyright front and overturned the district court's finding that the mash-up was fair use. It walked through the fair use factors with its thumb heavily on the side of the copyright owner, willfully blind to any "countervailing copyright principles [that would] counsel otherwise." [p. 11]. For instance, on the second factor, the nature of the work, it looked at the mash-up with a harsher eye because the original work had been a creative one, rather than one more informational. ("Hence, Boldly's copying of a creative and "expressive work[]" like Go! tilts the second factor against fair use." [p. 19])
But what's most alarming is not just how the court applied the other factors, but how its analysis effectively expanded the power of a copyright holder to shut down others' subsequent expression, far more than the statute allows, the Progress Clause of the Constitution permits, or the First Amendment tolerates.
For instance, on the fourth factor, because the original work, "Oh, the Places You'll Go," targeted the graduation market, the court gave it the power to shut out subsequent works that also might serve the same market by somehow construing the mash-up as a competitor with the original, even though it was a distinctively different creature—after all, there was no Star Trek in the original, and the appeal of the second work was entirely based on consumers wanting both genres combined in one.
The court further hangs this analysis on the fact that one of the exclusive rights a copyright holder has is the ability to license derivative works. But when combined with its flawed analysis on the first factor, transformativeness, and also the third, examining the amount and substantiality of the original used, it lets that right to license derivatives effectively swallow all fair use. The Dr. Seuss estate likes to license its works, the court reasons, including to those who might want to combine them with other genres. But if people could do these sorts of mash-ups for free then the Dr. Seuss estate would have a harder time making money from those licenses.
Crucially, ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters. Seuss routinely receives requests for collaborations and licenses, and has entered into various collaborations that apply Seuss's works to new creative contexts, such as the television and book series entitled The Wubbulous World of Dr. Seuss, a collaboration with The Jim Henson Company, famous for its puppetry and the creation of other characters like the Muppets. Other collaborations include a digital game called Grinch Panda Pop, that combines Jam City's Panda character with a Grinch character; figurines that combine Funko Inc.'s toy designs with Seuss characters; and a clothing line that combines Comme des Garçons' heart design with Grinch artwork. [p. 28-29]
Of course, the answer to this concern is "so what"? Because if the court were right, and this were the sort of market harm that would trump fair use, it would mean that the only such combinations we will ever get are the ones that the Dr. Seuss estate deigns to allow—assuming they allow any at all, because, per the court, it's totally ok if they don't ("Seuss certainly has the right to "the artistic decision not to saturate those markets with variations of their original." [p. 29]). If it chooses not to license a mash-up with Star Trek, then the world will never get a Seussian-Star Trek mash-up. Even though that's exactly the sort of making-something-new-there-hasn't-been-before creativity that copyright law is supposed to incentivize. Copyright law exists so that we can get new works, but per this Ninth Circuit decision the function of copyright law is instead to obstruct them.
And it won't just be this particular mash-up that we'll have to do without. Because with this decision the court is giving copyright holders the power to not only veto subsequent uses of a work but an entire expressive vernacular (and one that may even transcend any particular copyrighted work).
In fact, this lawsuit manages to not even be about the alleged infringement of a particular work. In some ways it is, such as the way the court takes issue with the fact that the mash-up referenced 14 of the 24 pages of the original Seussian "Places You'll Go" book [p. 20]. Of course, even that view ignores how unfaithful a copy the later work must inherently be given how much got left behind of the original, and how much space the omissions left for something new. But the court was even more put out by the pieces of the work used, objecting strenuously to the detail of the references, even though the use of that detail was so that the reference could be a meaningful enough foundation upon which to convey the new idea of the subsequent work.
Crucially, ComicMix did not merely take a set of unprotectable visual units, a shape here and a color patch there. For each of the highly imaginative illustrations copied by ComicMix, it replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations. ComicMix's claim that it "judiciously incorporated just enough of the original to be identifiable" as Seussian or that its "modest" taking merely "alludes" to particular Seuss illustrations is flatly contradicted by looking at the books. During his deposition, Boldly illustrator Templeton detailed the fact that he "stud[ied] the page [to] get a sense of what the layout was," and then copied "the layout so that things are in the same place they're supposed to be." The result was, as Templeton admitted, that the illustrations in Boldly were "compositionally similar" to the corresponding ones in Go!. In addition to the overall visual composition, Templeton testified that he also copied the illustrations down to the last detail, even "meticulously try[ing] to reproduce as much of the line work as [he could]." [p. 20-21]
And it wasn't even the pieces of that work that irked the court. In defending its distaste for these verbatim references, the court cites the mash-up's inclusion of the illustration of the machine from Sneetches, which was, not incidentally, an entirely different work than the book the defendants were being accused of copying too much from.
For example, ComicMix's copying of a Sneetches illustration exhibits both the extensive quantitative and qualitative taking by ComicMix. Sneetches is a short Seuss story about two groups of Sneetches: the snooty star-bellied Sneetches and the starless ones. The story's plot, the character, and the moral center on a highly imaginative and intricately drawn machine that can take the star-shaped status-symbol on and off the bellies of the Sneetches. Different iterations of the machine, the heart of Sneetches, appear in ten out of twenty-two pages of the book. ComicMix took this "highly expressive core" of Sneetches. Templeton testified that "the machine in the Star-Bellied Sneetches story" was "repurposed to remind you of the transporter" in Star Trek. Drawing the machine "took. . . about seven hours" because Templeton tried to "match" the drawing down to the "linework" of Seuss. He "painstakingly attempted" to make the machines "identical." In addition to the machine, Boldly took "the poses that the Sneetches are in" so that "[t]he poses of commander Scott and the Enterprise crew getting into the machine are similar." Boldly also captured the particular "crosshatch" in how Dr. Seuss rendered the machine, the "puffs of smoke coming out of the machine," and the "entire layout." [p. 23]
In other words, because the machine was important to a (completely different) story, the Dr. Seuss estate got to say no to anyone who wanted to reference that import. Yes, the mash-up referenced it in detail, but that's how the reference could be recognizable. The court is clearly offended by any verbatim copying of any aspect of the image, but fair use does not forbid verbatim copying or otherwise require deprecating the quality of the original. Yet per the court's reasoning, verbatim references in "overall composition and placement of the shapes, colors and detailed linework" are off-limits, even though using them did not amount to making an infringing copy of the entire work, page, or even full illustration and ultimately became part of something substantially different from the original. Because even if the original work had certain characters in certain poses that the mash-up emulated, it didn't have them posed in the futuristic environment that the mash-up expressed. That overall visual tableau was something new and different and transformative.
Above is a representative sample of what the plaintiffs showed to compare the two works so you can see what was literally referenced by the mash-up, and how much was obviously different about its own expression.
But the court also glossed over that transformative quality in its analysis of the first factor, instead focusing only on what was the same about the first work instead of what was different.
ComicMix copied the exact composition of the famous "waiting place" in Go!, down to the placements of the couch and the fishing spot. To this, ComicMix added Star Trek characters who line up, sit on the couch, and fish exactly like the waiting place visitors they replaced. Go! continues to carry the same expression, meaning, or message: as the Boldly text makes clear, the image conveys the sense of being stuck, with "time moving fast in the wink of an eye."
ComicMix also copied a scene in Sneetches, down to the exact shape of the sandy hills in the background and the placement of footprints that collide in the middle of the page. Seussian characters were replaced with Spocks playing chess, making sure they "ha[d] similar poses" as the original, but all ComicMix really added was "the background of a weird basketball court."
ComicMix likewise repackaged Go!'s text. Instead of using the Go! story as a starting point for a different artistic or aesthetic expression, Hauman created a side-by-side comparison of the Go! and Boldly texts in order "to try to match the structure of Go!." This copying did not result in the Go! story taking on a new expression, meaning, or message. Because Boldly "left the inherent character of the [book] unchanged," it was not a transformative use of Go!. [p. 17-19]
It's bad enough that it supplanted the district court's original fact finding with its own dismissive judgment, and that copying of an image from a separate work was bizarrely being used as evidence of infringement of the first. But the cynical determination that the second work was only a "repackaging" of any work designed to "avoid the drudgery in working up something fresh" because of how it used certain elements, including ephemeral elements (composition, posing, story structure), in order to produce something fresh, expands what a copyright holder in a work ordinarily can control and puts all sorts of fair reuse out of reach of subsequent creators.
Boldly also does not alter Go! with new expression, meaning, or message. A "'transformative work' is one that alters the original work." While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew's journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. Unsurprisingly, Boldly does not change Go!; as ComicMix readily admits, it could have used another primer, or even created an entirely original work. Go! was selected "to get attention or to avoid the drudgery in working up something fresh," and not for a transformative purpose. [p. 16-17]
And that's the crux of the matter, because if a mash-up like this, that merged two aesthetics that had never been merged before, even if to convey a similarly inspirational message ("In propounding the same message as Go, Boldly used expression from Go! to "keep to [Go!'s] sentiment." [p. 16]), can violate a copyright, then a copyright holder has enormous veto power over all subsequent expression that might use the cultural vocabulary it ever introduced.
In a weird bit of performative nonsense, Senators Thom Tillis and Pat Leahy, along with Representatives Hakeem Jeffries and Nancy Mace, have come together to... try to help kids lock up culture under copyright. Specifically, they want a bill that would allow kids to register a copyright for free for participants in the Congressional Art Competition and the Congressional App Competition. It is not at all clear why this is necessary, other than to perpetuate the myth that you need a copyright to be creative.
First, to be clear, any such unique and original artwork is already covered by copyright. For better or for worse (by which I mean, for worse), the US now says that copyright is automatic from the time the work is "fixed" in a tangible medium (and if you try to point out that computer code is not a tangible medium, it gets them very, very angry, so don't bother...). So no one needs to register their copyright to be protected. Not registering does limit the ability of the copyright holder to sue or to get statutory damages. But if anyone creating works for a Congressional Art Competition is seeking to sue others, well, that seems like a bigger problem right there.
But here's the key point: copyright is supposed to be there solely as an incentive for creation. The entire setup and basis for copyright in the Constitution is so that Congress can create incentives to promote the progress of science and the useful arts (and, copyright was meant for the "science" part, patents are the "useful arts"). I can pretty much assure you that no one creating artwork or apps for a Congressional competition is doing so because they're incentivized by the copyright. They're doing so because of the competition itself and the desire to express themselves (and maybe get some attention for what they've done).
So encouraging locking these things up is bizarre and counterproductive. More to the point, why aren't these elected officials suggesting that the artists and developers entering these competitions explore the many Creative Commons options to help get their works more widely known?
The answer, tragically, is as obvious as it is cynical. This is all driven by the legacy copyright industries who keep trying to push the myth that copyright = creation. And these are their favorite elected officials. Hollywood backed Tillis strongly in the last election, in which he was expected to lose, so he clearly owes them. Leahy has always been extremely close to Hollywood. Beyond being the Senate supporter of SOPA (his version was PIPA), Hollywood always rewards Leahy by giving him small roles in every Batman film. His daughter is also a Vice President and top lobbyist for the Motion Picture Academy, Hollywood's top lobbying body.
On the House side, the legacy copyright industry has been cultivating a close relationship with Jeffries for a while now, including setting up a neat fundraiser for him in which if you just pay him (and Jerry Nadler) $5k each you get to hang out with Jeffries at the Grammies. Nice work if you can get it. Nancy Mace is new to Congress, so she may just be along for the ride here.
The problem with all of this is just how cynically corrupt this seems. Even if it's in the form of "soft corruption," the connection of a few Senators and Representatives pushing a misguided line of thinking -- that completely undermines the very basis for copyright law -- in favor of the myth pushed by Hollywood and the legacy recording industry, it just makes everyone actually respect copyright even less.
This isn't what copyright is for, and it's shameful that these elected officials are pushing the myth forward.
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.
