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July 8th, 2014: La Marseillaise, ladies and gentlemen!
I actually don't know what the anthem of the Klingon Empire is :( :( D:
If you don't read this comic by now...are we really friends?
For some reason the Old Reader is showing me Dinosaur Comics from eight years ago...and I'm totally ok with it.
dinosaur comics returns monday!|
April 26th 2006
Here is a picture of my new book at the grocery store. The books are actually made of paper! How could they have been so hilariously miscategorized?
I can't believe I let quantz build up in my reader and didn't see this comic until two months after its brilliant release.
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January 13th, 2014: Are you drinking liquid out of your cupped hands right now? YOU ARE?? Wow sheesh that's a problem; luckily one that can be easily solved via CAPITALISM:
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March 19th, 2014: There has been a tiny tyrannosaur discovered in Alaska! So far it has been named Nanuqsaurus hoglundi but I think we all know the REAL name of this dinosaur:
AT&T announced a new “sponsored data” scheme that lets content creators buy their way around the company’s data caps. It’s bad news for everyone—but AT&T.
Yesterday AT&T announced a new “sponsored data” scheme, offering content creators a way to buy their way around the data caps that AT&T imposes on its subscribers. Although AT&T touted it as a “win-win for customers and businesses”, it is actually just a win for AT&T. This plan is a tremendous loss for everyone else.
Going to the Heart of Net Neutrality
While people sometimes get lost in the details, at its core net neutrality is a pretty straightforward concept: it is the principle that the company that connects you to the internet does not get to control what you do on the internet.With its sponsored data scheme, AT&T is proposing to do just that. AT&T’s relationship with a website, app, or service will control the way that AT&T’s subscribers interact with the internet.
AT&T is imposing its own tax on anyone who wants to connect to its millions of subscribers. Of course, this tax is only attractive to content creators if AT&T’s normal service is too shabby to deliver their content without it. That gives AT&T a big incentive to keep data caps low and overage fees high.
Who gets to innovate in a world where you need to pay AT&T to compete? The answer? Established services that can afford to pass the fee onto customers. That’s why net neutrality isn’t really about Netflix or Facebook. They may not like it, but when push comes to shove they will probably pay AT&T’s tax and pass it along to their customers. But the next Netflix or the next Facebook won’t be able to afford to do that at the start. Startups will abandon any potentially “data-intensive” innovation to big players—a recipe for stagnation. As more established services move to AT&T’s special lane, caps covering everything else may go down bringing the definition of data-intensive down with it.
AT&T is Creating Artificial Scarcity Just to Monetize It
AT&T has proudly moved past the days when the iPhone crashed its network for millions of excited subscribers. In May of last year CEO Randall Stephenson told investors that AT&T anticipated reducing expenditures on its network and that data caps were really about charging content providers He repeated his confidence in AT&T’s network in December.
The sponsored data plan itself further highlights AT&T’s confidence in its network: if the network truly was fragile AT&T probably would not be inviting creators to dump a lot more content onto it. Any problems in the network that exist going forward should be traced back to the fact that AT&T is investing in its special paid access lanes instead of the parts of the network available to everyone else.
“The FCC’s strategy of closing its eyes, putting its fingers in its ears, humming, and pretending that data caps don’t exist needs to stop.”
Furthermore, even if AT&T is painting an overly rosy picture to investors and deluding itself about its network capacity, monthly data caps are an incredibly inefficient way to deal with momentary network congestion.
But they are a great way to gouge content creators.
Special Problems for Rural and Low-Income Communities
For many people wireless data caps are a frustration, but one they can work around. Wired internet connections at home and at work give them plenty of uncapped internet access when they need it. But for many others, wireless is their only way to connect to the internet.
In rural areas, 4G wireless connections are pitched as replacements for decommissioned wired internet connections, or as ways to affordably bring high-speed internet to hard-to-reach areas. For these areas, capped wireless internet becomes their only option.
Similarly, many households in low-income communities do not have the luxury of purchasing two internet connections. As a result, many of them are mobile-only internet users.
Both of these communities are under threat of being trapped in a second tier internet, pushed only to sites and services that can afford to pay their way around AT&T’s paywall. For them, the “real” internet will start to leave them behind.
Where is the FCC?
In its Open Internet Order, the FCC detailed the problems that the sort of two-sided market proposed by AT&T creates such as inefficiently high fees, provider arms races, and overall reduced innovation. Unfortunately, in the past two years the FCC has done nothing to understand the role that data caps can play in creating just such a market. Even the FCC’s own Open Internet Advisory Committee admitted that it didn’t have enough information to begin explaining how data caps fit into the Order.
The FCC’s strategy of closing its eyes, putting its fingers in its ears, humming, and pretending that data caps don’t exist needs to stop. AT&T, along with other ISPs, will continue to test the boundaries of the FCC’s stomach to protect an open internet. If the FCC doesn’t push back then AT&T, like boundary pushers everywhere, will have no reason to stop.
And that’s a loss for everyone besides AT&T.
Haha. I may have once had a similar conversation about the predecessor to Wakfu.
T-Rex is the only person who understands me. And by person I mean talking dinosaur, obviously.
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i'm at NYCC on saturday, come say hi!
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October 10th, 2013: I am at New York Comic Con this weekend! Come say hi! We can share only the highest of fives!
One year ago today: travel over chasms would be super convenient for the athletic blind
Funny that we were just talking about this tactic in Trademark Law the other day.
Read more of this story at Slashdot.
This makes a huge amount of sense - it formalizes existing practice in a way that gives Valve an opportunity to make money when your friend wants to use their own account.
Read more of this story at Slashdot.
The thrust of this: (1) The once popular theory that data caps were a means of reducing congestion has been shot down, and (2) there is no explanation or justification for data caps to replace it. Given this, we should be concerned about an industry-wide ISP policy that will have significant effects on the way we all use and share information.
Any discussion must be built on facts. But the FCC has not asked the questions, and ISPs have not provided answers.
Earlier this week, the Open Internet Advisory Committee – a group formed by the FCC to provide advice about the Commission’s Open Internet Order (also known as the net neutrality order) – released its first report. The Committee examined a host of thorny issues left unresolved in the FCC’s 2010 Order. The overall, but unstated, conclusion was clear: in the almost three years since the Order, the FCC has done almost nothing to improve its understanding of the issues in question. It, and the public, is almost three years older but far from three years wiser.
We Don’t Know
Nowhere was this inaction more striking than in the report’s discussion of usage based billing and data caps. The report’s observation that “much information about user understanding of caps and thresholds is missing” should be the subheading for the entire data caps section. The section is shot through with clauses like “may require future monitoring,” “lack of definitive data,” “no definitive standard,” “these questions require more information,” “questions cannot be answered because there is no quantitative evidence,” and “little public analysis.”
The Committee is diverse, with representatives from ISPs, content creators, edge providers, consumers, and more. Finding consensus on an issue as divisive as data caps would be hard under any circumstances. But doing so in a largely data-free environment was probably doomed from the outset. With no data to test assertions, the discussion could have been little more than competing assertions.
It Did Not Have to Be This Way
Data caps, and concerns about data caps, are far from new. As early as 2011 Public Knowledge, along with our allies, sent a pair of letters to then-Chairman Genachowski urging the Commission to start collecting simple data on how data caps were implemented and administered.
Without a response from the Commission, in 2012 Public Knowledge went directly to the CEOs of major ISPs asking them to explain how and why they implemented their data caps.
In the meantime, Public Knowledge released two reports raising concerns about data caps and urging the Commission to take steps to better understand their usage and impact.
As the report indicates, none of this resulted in either the FCC or the ISPs shedding any light on data caps.
What We Do Know
In this information vacuum, the report does take steps to explain some of what is happening with data caps. Although it does not provide a source, it asserts that ISPs view data caps as set in a way that only impacts a handful (1-2%) of customers. Unfortunately, there is nothing to indicate that the caps are ever reevaluated once they have been set as usage patterns change.
The report also dismisses the once-popular theory that data caps can be effectively used to manage network congestion, rightly pointing out that caps “provide no direct incentive to heavy users to reduce traffic at peak times.”
An Obligation to Ask
In the Open Internet Order, the FCC committed to continue to monitor the internet access service marketplace. This report suggests that monitoring has been, at a minimum, inadequate. Almost three years since the Order was first released, most of the debates remain the same. Advocates like Public Knowledge continue to raise concerns. ISPs continue to explain why those concerns are not justified. And, in the absence of actual information or action by the FCC, the debate pretty much stops there.
The FCC has not even taken steps to act on data caps when it has an obligation to do so. Over a year ago, Public Knowledge filed a petition asking the FCC to look into the way that Comcast was treating internet video delivered to Xbox 360 consoles and TiVos. With nothing to show for the year since, today Public Knowledge sent a follow-up letter demanding action.This report serves as a useful introduction to the issues that it confronts, and the Chairs and participants should be commended for producing it in the absence of useful information.
Very little in the report should come as news to those following these issues closely, or to those tasked with regulating it. Issues have been outlined. Viewpoints have been explained. Questions have been listed.
If the FCC wants to be taken seriously, it must now take the next step. Advance the debate. Gather, and make public, actual information.
Original image by Flickr user EssG.
Members of the band The Turtles, best known for their 1967 song "Happy Together," have filed a class-action lawsuit against SiriusXM, saying that the satellite radio company is violating the rights they have in their sound recordings by playing their music to satellite radio subscribers without permission.
Sound Recording Copyrights are Recent, and More Limited
This might seem to be a strange oversight on the part of SiriusXM, except that normally, radio services don't need to get permission to play music. This is because copyrights for recording artists are a relatively recent phenomenon. In fact, recording artists didn't have *any* copyright rights in their works until 1972. Even after 1972, when Congress decided to expand copyrights to include recorded sound (copyrights in sheet music had been allowed since the 1830s), it did so in a limited manner. Recording artists could prevent others from reproducing, making derivative works of, or distributing copies of their works, but they couldn't stop anyone from publicly performing them.
That included broadcasters, who were free to play records over the air without permission or payment to the people who made the records. Even much later, when Congress decided to expand recording artists' rights to include public performance "by means of a digital audio transmission," it also included a statutory license for that right, meaning that satellite radio and webcasters, who make digital audio transmissions, don't have to get permission from recordings artists—but they do have to pay for the use of their songs. (These statutory licenses in section 114, which are calculated differently depending upon the type of broadcaster, are the source of a lot of the conflict you might be hearing about internet radio rates.)
State Copyright Law?
But the Turtles argue that these laws don't apply to their catalog. That's because they're not actually claiming copyright infringement as we know it—they're saying their rights under California state law were infringed. Yes, copyright is a federal system of laws, and yes, in nearly all cases, that means it supersedes (and is meant to supersede) state laws that try to do the same thing. But in this case, there's a potentially troubling gap.
When Congress decided to include sound recordings within copyright in 1972, it didn't retroactively bring existing sound recordings under that protection. So pre-'72 sound recordings fall outside the scope of copyright laws. This leaves room for the states to have their own quasi-copyright laws governing them. Most states have specific statutes on the books to prevent bootlegging, copying records and so on, and there are also common law causes of action like misappropriation that are often generally applied to people making unauthorized copies of pre-'72 sound recordings.
As to whether or not California's laws actually prevent SiriusXM from playing pre-'72 sound recordings, there's a lot of state-specific law to get into, including whether the state laws cover public performances or just reproductions, whether the elements of the common law claims are met, whether laches or fair use might apply, and so on. But there's a major policy consideration lurking amongst the legal questions, too.
Losing Access to Culture
If the Turtles are right and Sirius needs to get permission for pre-'72 recordings, there's a big problem looming on the horizon. For one thing, if you have to seek permission, instead of relying upon a statutory license, it becomes just that much harder for someone to get the music on the air—the costs of finding and negotiating with different rightsholders can be too great to bother, in lots of cases, and even if rightsholders (very likely the major record labels) band together to offer "blanket" licenses, that leaves a lot of independent artists in the cold, and the catalog of available music even smaller. Add to that the problems of figuring out where the rights are for each of at least 50 different state jurisdictions, and playing tracks from before 1972 becomes a far less attractive proposition than before.
And this wouldn't just be a problem for Sirius; a major question left open by this lawsuit is whether or not the same sorts of state laws mean that radio stations and other "public performers" of recorded music could face the same sorts of lawsuits. They could well face the same questions about what they want to risk in litigation, and what they're willing to spend on lawyers to negotiate licenses, and which tracks and catalogs they want to license. A legal landscape that looks the way the Turtles would have it creates a much sharper divide between music recorded before and after 1972, raising the barriers for that older music.
There's another year in the 20th century that acts as a similar divide. A March 2012 piece in the Atlantic has recently been making the rounds again. In a striking graphic, it breaks down, by the decade of their publication, the number of newly-printed books available on Amazon. Looking back, the latest decade available (the 2000s) show as a sharp spike—understandable in that people want to read recently-written books. It drops precipitously in the '90s, and remains at an extraordinary low level until it hits the '20s.
The reason for this dramatic dip in book availability? Copyright law. Books clearly in the public domain—those published before 1923—are much, much more available for readers to buy. Only those in-copyright titles that are regular sellers are likely to give the sellers the margins they need to invest in stocking them.
This chart gives us a hint of what might lie on the other side of a case that makes pre-'72 recordings more expensive. It's not that they'll disappear from the radio or webcasting services—there's a known demand for the Beatles, the Rolling Stones, and the tops of the chards from decades before them.
But what about the entire universe of music that isn't already at the top of the rotation? How will that fare? And when commercially-owned works aren't being accessed in the market, what does that do for their preservation? This isn't a theoretical question: one of the primary reasons that copyright lawyers worry about pre-'72 recordings is the question of how they can be preserved. See, for example, this article, which talks about how the uncertainty of state laws on sound recordings frustrates important historical research and preservation.
The legislative history on the topic of older sound recordings has seemed to indicate that Congress always meant to get around to resolving what to do with them. In the meantime, however, the field remains open not just for disputes between musicians, labels, distributors, and users, but for a world where those disputes make the past that much more foreign to our ears.
Today, the Federal Communications Commission voted to enact a framework that mandates just and reasonable telephone rates for the friends, family and counsel of inmates in state prisons and detention centers.
Today, the Federal Communications Commission approved a framework that mandates just and reasonable telephone rates for the friends, family and counsel of inmates in state prisons and detention centers. The order provides immediate financial relief to the households of the 2.7 million children with a parent behind bars who struggled with the cost of communicating with them. Public Knowledge commends FCC leadership for its action and congratulates the many advocates both in and outside the beltway for their dedicated efforts.
This long awaited action was facilitated through the outstanding and tireless commitment of FCC Commissioner Mignon Clyburn and staff, the Campaign for Prison Phone Justice as well as a wide coalition of civil rights, public interest and criminal justice reform organizations. Together these efforts ensure that the families and loved ones of inmates are no longer susceptible to the exorbitant rates and egregious fee practices of inmate call service providers. To emphasize, the FCC has done exactly what is in their authority according to the Communications Act, by ensuring that phone rates for a population of Americans remain just and reasonable.
No policy maker can argue the FCC’s authority over its action on this issue or the gross market failure of the inmate calling business that caused the commission to intervene. The commission offered ample time and an open docket for comment. During which it received thousands of calls, postcards and letters from families of inmates who described the financial and emotional hardships caused by the high cost to communicate with loved ones behind bars. High costs that were often attributed to a system run by state legislatures in which financial commissions or portions of call revenue collected by prison phone companies, were then filtered over to the states.
Separating the actual costs of those calls from commissions is one of the key reforms included within the FCC’s order today. Ensuring the charges for calls are cost-based eliminates the practice of attributing the high costs to the commission arrangement. Other key reforms include adopting a “safe harbor” below $0.15 for providers, under which it must keep its per minute rate unless otherwise approved by the commission. Rates for the deaf and hard of hearing community cannot be higher than those of non-deaf inmates. The FCC also re-asserted its authority over intra-state rates, opening the process for reforming costs between facilities within the same states.
While further details remain to be seen, Public Knowledge believes these reforms are significant enough in scope to provide swift and much-needed relief for the families, friends and loved ones of persons in prison. Families like the two sons of Bethany Fraser-who lost half of her household income due to her husband’s incarceration. Choosing between the high costs of calls in order to keep her children connected to their father or paying for essential family needs became a real life dilemma.
Today the FCC took a step in the right direction by asserting its authority over predatory phone practices. Now children of incarcerated parents, including Fraser’s, can feel a little more connected to a loved one behind bars.
Original image by Strong Familes.
As usual, Danc has some of the most well thought out insights of any game designer I can think of.
Read more of this story at Slashdot.
Unlike other lawsuits focusing on privacy rights, Tuesday's suit argues that the spying violates the constitutional right to free association.
I work with this guy, and he's really, really, really smart. He's also really into telecom policy.
Read more of this story at Slashdot.
I make love the way I play chess - victory or defeat in three moves.
The National Security Agency has removed a fact sheet about surveillance programs from its website after two Democratic senators claimed the information was misleading.
In a letter to NSA chief Gen. Keith Alexander on Monday, Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) said the agency's explanation of the programs contained a significant inaccuracy that "portrays protections for Americans' privacy as being significantly stronger than they actually are."
They said they were unable to identify the inaccurate statement because further details were classified.
My unlimited data plan has been throttled and I don’t know how it happened
There has been a lot of discussion surrounding Data Caps and how they are only used for the top percentage of “data hogs,” or as a reasonable bandwidth pricing model for wireless carriers. I just never thought Data Caps could happen to me.
Just an Ordinary Mobile Internet User
I wasn’t trying to do anything fancy. Like many of my friends, I use my mobile device everyday to send text messages, tweet, email, stream videos, read books, browse the web, video chat, and pay bills. I use my mobile device for everything I do, and it’s become an essential part of my life and the way I connect with the world. All of these things are important to me, which is why I pay AT&T for an unlimited data plan.
You Have Been Data Capped
Strangely, at some point AT&T decided to start interpreting my ‘unlimited’ plan as one that is limited to only 5GB of bandwidth a month. I received a text message from my wireless carrier that I was approaching my monthly data limit of 5GB and would soon face a reduction of my mobile data Internet speed. I had no idea how this had happened and I didn't know what to do, or how to fix it. This must be a mistake – I could never have used that much data, right?
I needed to know how this happened. I quickly checked my mobile wireless data usage but my phone was telling me I used over 5GB of data while AT&T’s website said I only used 3GB. And neither of them told me how I got here. Was it too many emails, too many web pages visited, too many hours of streaming music, too many facebook or twitter posts, video conversations, angry bird downloads, or netflix movies?
What does a Data Cap Look Like?
Now that I was capped, what was going to happen? Was my digital life coming to an end?
Before I hit my 5GB limit, I ran an Internet speed test to compare my 4G data transfer rates before and after I was capped. Before I hit the data cap my Internet speed test registered on average a speedy: 17.47 Mbps download, and 4.27 Mbps upload. Several days after I passed the 5GB limit my Internet speed had slowed down on average to a mere: 0.39 Mbps download, and 0.48 Mbps upload.
My punishment for using too much Internet was having my connection slowed 98%!
Living with a Data Cap
Life with a data cap prevents me from accessing any media that is data intensive. I can still make phone calls, send and receive text messages, and check emails, but all of my mobile applications that use the Internet are sluggish and slow to respond.
Any streaming video content or video conversations – the uses that actually require the 4G connection I am paying for – will not load. Video from Facebook, YouTube, Netflix, Apple, Skype, and on the web simply freezes. Data caps have impaired my ability to use the Internet to its full potential, and impacts not just other data capped individuals like myself, but all consumers.
The FCC Should Investigate Data Caps
The FCC should conduct a full investigation into the nature, purpose, and impact of data caps on consumers. Consumers receive little to no information on what data usage is causing them to be data capped – or receive conflicting information on how much data they have actually used.
In an age where mobile devices are increasingly being used to stay connected and share media in more data intensive ways, more and more consumers will continue to be data capped and lose the ability to connect with the world, unless we stop data caps.
Original image by Flickr user Baytram366
Introducing laws that regulate 3D printing before figuring out what 3D printing is will not lead to success.
We’ve written a lot about various legal and political reactions to 3D printed guns. Fundamentally, we have urged lawmakers to take the time to focus on what really concerns them about the idea of a 3D printed gun and to make sure that any new legislation actually addresses that concern. In almost every case, singling out a specific method of manufacture (be it 3D printing or anything else) is not the best way to do that.
While this is a good legislative practice generally, sometimes it can come into conflict with another instinct – the need for publicity. Occasionally, lawmakers are motivated more by their desire to get a headline than their desire to make good policy. All of the attention that 3D printing has been getting lately makes it a tempting target for just that impulse.
There have already been a handful of bills at the local, state, and national level introduced with some connection to 3D printing and guns. But a recent bill out of New York City stands out as a shining example of legislating for a headline without taking a moment to understand the substance.
Why is 3D Printing in this Bill?
The bill, introduced by New York City Council Members Lewis A. Fidler, Letitia James, Margaret Chin, Domenic M. Recchia, Jr., Leroy Comrie, Mark Weprin, Annabel Palma, Helen D. Foster, Gale A. Brewer, Maria Del Carmen Arroyo, Inez E. Dickens, Robert Jackson, Andy King, Peter A. Koo, G. Oliver Koppell, Brad S. Lander, Rosie Mendez, Deborah L. Rose, and Albert Vann is four pages long but you can stop at the beginning. It starts by adding a new definition to the administrative code of the city of New York. That definition is for “Three-dimensional printer”:
“A computer-driven machine capable of producing a three-dimensional object from a digital model.”
Why does this definition betray shameless headline chasing on behalf of Council Members Fidler, James, Chin, Recchia, Comrie, Weprin, Palma, Foster, Brewer, Del Carmen Arroyo, Dickens, Jackson, King, Koo, Koppell, Lander, Mendez, Rose, and Vann? A 3D printer is “a computer-driven machine capable of producing a three-dimensional object from a digital model,” isn’t it?
Sure. But so is every other modern manufacturing machine. A CNC mill fits that definition. As do laser cutters. So do industrial arms that build cars on assembly lines. And robots. And, for that matter, automated crochet knitting machines.
Which is fine. If these Council Members think that people using machines to make firearms is a problem, they should draft a bill that addresses that problem. Alternatively, if these Council Members think that people specifically using 3D printers to make firearms is a problem, they are free to draft a bill to address that too.
But that’s not what appears to have happened here. This bill reads like it was drafted after someone saw a bunch of stories about 3D printed guns, but before they took any time to think about 3D printed guns, let alone formulate a specific concern about 3D printed guns.
Many Bad Reasons, Still Looking for a Good Reason
Of course, there are plenty of reasons to move quickly to put forward a 3D printed gun bill. But none of them have to do with creating carefully considered policy. Getting a few press hits can certainly be valuable. But that value is diminished when they draw attention to the fact that you have no idea what you are talking about and do not have an interest in learning about the issue before you start drafting laws.
What happens when you rush to the press without doing any research or asking simple questions? You look like a jerk.
But I’m willing to be proven wrong on this front. If either New York City Council Member Fidler, James, Chin, Recchia, Comrie, Weprin, Palma, Foster, Brewer, Del Carmen Arroyo, Dickens, Jackson, King, Koo, Koppell, Lander, Mendez, Rose, or Vann can explain the specific concern they have with 3D printed guns (not 3D printed guns that are also undetectable, or 3D printed guns that happened to be made at home, or some other type of gun that could also be made some other way - something about 3D printed guns because they are made on a 3D printer), or why that concern led them to a definition of 3D printer that encompasses pretty much all modern automated manufacturing machines, I’m happy to walk this back. Because, especially after this post, the last thing that I want to be accused of being is a jerk.
Basically, Microsoft's gaming branch is completely suicidal.
Read more of this story at Slashdot.
Go go shameless self-promotion.
At a hearing on unlocking phones, some suggest that Congress added laws against circumventing access controls not just to fight piracy, but in order to protect particular business models. Businesses use this argument to justify using copyright law to criminalize activities that don't actually infringe copyright.
Up until last year, unlocking a cell phone so that it could be used with a different carrier was perfectly legal. That changed when the Librarian of Congress decided no longer to include it in a list of exceptions to the Digital Millennium Copyright Act (DMCA), which forbids the circumvention of technology that controls access to copyrighted works. The Librarian's decision has sparked a great deal of controversy, and lead to several proposed bills that would once again make it legal to unlock cell phones. In a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet last Thursday, Congress heard testimony about one of these bills, and about the practice of unlocking phones.
Subcommittee Vice Chairman Tom Marino began the hearing by framing the considerations on each side in terms of their effect on the market and existing business models, pitting the promise of a more competitive marketplace that phone unlocking allows against the ability of carriers to recover the cost of subsidizing phones.
The focus is telling, because this was the primary positive argument presented for criminalizing the unlocking of cell phones – to protect a particular existing business model. Notably absent was the claim that unlocking cell phones in any way facilitated copyright infringement.
Representative Zoe Lofgren commented on this, stating that, “It's not Congress' role to tell people the business model they should use,” and that using criminal law to enforce a private contract is “just a misuse of the law.”
One of the witnesses, however, had a very different tone. Stephen Metalitz, an attorney who has regularly represented large copyright holders on DMCA issues, claimed that Congress had intended not only to fight piracy, but to protect specific business models when it enacted the DMCA, and he cited the business models that have emerged since the DMCA was enacted. (Check out the 1:42-1:47 mark of the full hearing video)
Is he right? Was the DMCA drafted in order to expand the ability of businesses to use criminal law to protect their business models?
The answer is no. Section 1201, the anti-circumvention portion of the DMCA, specifically states that it is meant to have no effect on rights, limitations, or defenses to copyright infringement, including fair use. (See Section 1201(c) available here)
What's more, the standard the Copyright Office uses in deciding which activities should be exempt is a simple two-part test:
If the process for deciding on exceptions were perfectly effective, every activity that didn't infringe copyright but that was threatened by the DMCA would be exempt. This legal design shows no intent by Congress to outlaw activities that would otherwise be non-infringing.
Unfortunately, businesses don't want you to unlock phones without their permission, and they can use the threat of prosecution under the DMCA to enforce rights they don't have. The process for deciding on exception is complicated, and each activity is assumed to be illegal unless someone can compile sufficient evidence to prove that it shouldn't be. Even activities that have previously been exempted, such as cell phone unlocking, have to be re-approved every three years de novo (meaning it is, once again, assumed to be illegal until proven otherwise).
Inevitably, that means that many non-infringing activities won't be exempt, simply for the lack of resources needed to prove that they should be. Moreover, the uncertainty of a de novo triennial review may prevent programmers and other innovators from creating new goods and services out of fear that their services may be outlawed by the next review.
What Metalitz is doing is seizing upon flaws in the application of the law to support the idea that Congress intended to create and enforce the specific business models that have emerged since the law was passed.
Of course, as Representative Lofgren claimed, it's inappropriate for Congress to try to enforce specific business models, and the only way to permanently protect non-infringing activities such as cell phone unlocking is by reforming Section 1201.
Image by flickr user izqrdo.
A personal favorite argument alluded to by T-Rex - if our personalities have to be sufficiently different in order to appreciate heaven, then we aren't really the ones who get to experience it.
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June 11th, 2013: Last night I saw Upstream Color and enjoyed it but did not figure it all out! But the best part about movies is talking about them with your friends so NO WORRIES.
One year ago today: boy i sure hope you read other webcomics beyond my own
I knew there was a reason I still followed Raph Koster. This is an incredibly thoughtful post on narrative and mechanics in games.
when people say games need objectives in order to be ‘games’, i wonder why ‘better understanding another human’ isn’t a valid ‘objective’
games need ‘challenges’ and ‘rules’, isn’t ‘empathy’ a challenge, aren’t preconceptions of normativity a ‘rule’
I have such a complicated emotional response to this. And I think you like getting letters, based on what I see on the Internet.
I would rate better understanding of another human and the challenge of empathy as bare minimum requirements for something reaching for art.
The assumptions underlying this question are the interesting thing. A game of bridge demands great understanding of another human, and great synchrony of thought. A huge number of the games of childhood are designed to teach empathy. We play games all the time in order to get to know people.
But that’s not what you really mean, is it. What you are really talking about is something else entirely.
The debates over “what is a game” have been going on for a long time now. They have an uncomfortably personal edge lately. We are seeing powerful works of art created in the digital medium. Further, they are deeply personal statements. And even further, many of these works are coming from groups that have been marginalized, oppressed, discriminated against.
Many of these works are brilliant.
The assumption implicit in what you’re saying is that a work’s formal structure isn’t as relevant as what it accomplishes. This is a completely valid point of view, but not, I think, all that useful for sorting something into a genre. But I accept that many simply don’t care about sorting that way.
But it also sort of implies that games with objectives and rules haven’t been reaching for these goals too. And that’s not only not true, but unjust to games’ expressive power.
What is reveals is a preference for the kinds of understanding you want, towards specific modes of conveying that understanding.
An aesthetic of unplayability
I have been fascinated lately by the fact that many art games accomplish their power and effect by subverting “gameness.” And what I mean by that is denying the player agency.
When we think about what makes a game, we almost always come back to some degree to interactivity. I’ve argued in the past that interactivity is hardly unique to games, and therefore can’t be used as the sole yardstick. But I sure wouldn’t try to classify something as a game that is non-interactive.
Historically, many signature emotional moments in game have been accomplished by using non-interactivity. When Floyd dies in Planetfall, we do not have control. People still rhapsodize over the death of Aeris in Final Fantasy VII. We did not have control.
More recently, I have seen the following currents develop:
I think all of these games are awesome, and am humbled by them. But I also wonder about the overall aesthetic. I would pose the following questions to their creators:
I end up with these questions because these by and large feel like narrative moves, not game-like moves. Or perhaps, they feel game-like in the sense that I the player feel like I am being played, in the “are you playing games with me?” sense. They feel, in the end, like the twist ending, the O Henry moment, like it was all a dream. Like the ending of The Murder of Roger Ackroyd, or John Cage’s 4’33”, something that should probably only be done once, marveled at, and then moved past.
The impositional narrative
Don’t get me wrong – something like the power of daily ritual, as displayed in Howling Dogs or Cart Life, is something that only this medium could do. The moment when you are a Tetris piece that does not fit, in Dys4ia, is something only our medium could do. I am not making an aesthetic judgement here about these tools; I am posing a craft question. I want to believe that despite the political layers that adhere to the discussion of this topic, that we are all craftspeople who care about the carpentry of what we do. We all need to reach our own accommodations and understand our own aesthetics.
Games have had an element of futility for a long time. Single-player games especially. The robots always won, in Robotron. The Space Invaders always conquered the earth. But at least we were able to make a go of it. The games themselves have different messages, but the aesthetic here says that we can’t make a go of it. It’s a rigged world. You can’t do better at Train. You can only do worse. The message of September 12 is “don’t play me.”
It’s probably me seeing things, but I can’t help but wonder to what degree the overall aesthetic in the art game community is a descendant of (bear with me) Super Mario. If there’s one overriding factor in the aesthetic of a Nintendo game, it’s control. Miyamoto is said to plan absolutely everything. Every outcome. Every permutation. Every possibility.
In this, the underlying fundamental kinship of the big AAA game and the arthouse darling Twine game is apparent. They are both more about the author than the player.
Are they games?
Can we, should we, do I, exclude these things from the realm of games? Not only do I not exclude them, I welcome and evangelize them and have been doing so for over a decade (despite what some say about me). But I actually think it’s the wrong question on many levels.
I wonder instead whether the work is trying to exclude itself from “gameyness.” By and large, these are games about people who lack power and lack control. The message gets across because games have always been about agency; gamers are used to having power and control, and to have the game itself deny it is a wake up slap across the face.
Effectively, these are games as rhetoric not games as dialectic, moving against the fundamental current of gameness. And the rhetorical move is “destroy everything,” as Porpentine put it in her GDC13 session with Terry Cavanaugh on indie games.
Overall, to me it feels like it speaks to a conflicted relationship with games. The creators of these works do not want to be excluded: it is their medium. At the same time, the aesthetic argues for un-gaming things.
Nor do I mean to pick on indies here; Warren Spector made a statement in his session about how “story is finally getting taken seriously” that was a moment of great cognitive dissonance for me. To me, it feels like story is all that gets taken seriously in AAA, certainly, and to a large degree in the art game and indie movements. And in AAA we have seen some moves lately that speak to a conflicted relationship there as well: No Russians using exactly the same rhetorical devices as the art games, Spec Ops: The Line, the arguably failed narrative line in Far Cry 3, even the discussions over violence in Bioshock Infinite.
Games are uncomfortable with themselves, and not just on the level of “what are our narratives.” But actually on the level of “what are games for?” We see our tools taken up by crass moves into marketing and monetization, we see the craft we developed being used for manipulation, and we start asking ourselves whether everything we do is manipulation, whether we are fundamentally crass.
I find myself cheering on the punk neon fringe. But I also find myself saying “please don’t destroy everything” because some people live in there, and it is always worth getting to know people, especially the ones not like you.
Ranting is not conversation
I was hesitant to write a lot of this down, because while many found this year’s GDC to be the most inclusive ever, I also was struck by the degree to which GDC time was spent not with “the good guys winning” but rather with good guys fighting good guys. I found myself cast as an excluder because I am interested in definitions, and I am sure this article will land me there again. (In fact, the height of cognitive dissonance was having a lovely conversation about design with Cara Ellison at a late night party – about many of these same topics, in fact; and finding myself sort-of-namechecked the next day when Anna Anthropy read a modified version of Cara’s poem “Romero’s Wives” aloud — a version filled with righteous anger that is impossible to quarrel with). I literally had one indie developer whose work I admire run away from me in the street.
On the political level, every word is charged. On the theoretical level, the pomo stream of thought says there are no boundaries. But in both cases, we see these tools turned again and again towards reinforcing labels, asserting identities. A monologue is implicitly reinforcing boundaries, just like defining a term is. None of what I have written in this little essay is about the messages in the works or about the games’ creators. But I fear it will be taken that way anyhow, just as my earlier writings on narrative and mechanics were taken. I find myself wanting to say sorry sorry sorry for — having an academic debate about minutiae of the structure of interaction?
But then we get something like the Experimental Gameplay Workshop, where everything we saw was actually about mechanics. Including mechanics that work to create empathy in profoundly non-narrative ways: Spaceteam, Searchlight, Ninja Shadow Warrior. I found it deeply inspiring in a way that the prevailing narrative of the conference was not quite. But I also recognize that I took away little understanding of people and a lot of understanding of math from most of the games presented, being as they were “about geometry” rather than “about empathy.”
All in all, I wonder whether fundamentally we as a community are doing a bit too much ranting. In the games and in the aesthetic and yes, from stage at GDC. Oh, I don’t mean in the literal sense of strident complaint. I mean in the metaphorical sense of holding forth. Games have had nothing to say for so long that I worry that we have collectively concluded that “saying something personal” is what makes them worthwhile art.
Ranting is a rhetorical device. It’s unidirectional. Yes, it’s all part of a larger conversation, of course. And sometimes we need to speak loudly to be heard, especially if we are from a marginalized group. But fundamentally it is hard to listen when everyone is loud, and the aesthetic of control is all about the player listening, and not getting to speak. Fundamentally, these design moves are about impositional narrative, not about the narrative the player constructs. Imposing a narrative, a norming, a worldview – I thought that is what we were ranting against. Running away from attempted engagement – I thought that is what we were ranting against.
The unique power of games, to me, lies in the conversation between player and designer. That happens to be my aesthetic. I often despair of whether games even have this power, because I have seen the way in which we end up having to retreat back to the comforts of other media. But to me, it still feels like a lodestone. I chase formalism in order to better understand the tools it affords because I already know how to write, I already know how to make music, I already know how to draw. I already know how to get a message across – except perhaps in this rambling mess of a post.
So yes, Leigh, understanding other people is a challenge. Empathy is a goal. I’ve argued for them for a long time now myself. It is fantastic that we have the disparate points of view, the fresh voices, the outsider art, and all the rest of it.
But I also find myself looking to the future, where I hope the games have empathy for the player, rather than the other way around, because it is a far harder artistic, and empathic, challenge to understand an opposing point of view than it is to present one’s own. I’ll be entertained by a rant I agree with, and angered by a rant I don’t, but a debate is far more likely to change my mind. To me, this is why Cart Life deserved its win, the way it argues with itself.
So I guess my reply to those tweets is, “yeah, but I’d rather argue with a game than be told what to feel.” Because games are the only medium you can argue with – and maybe change the game’s mind.
Anyway, Leigh, this is the convo we didn’t get to have at GDC, and that didn’t fit in a tweet by about 2400 words. I think all of this – my craft questions, the general anger I see, all of it – is probably something that we as a craft and a community grow through. We just can’t quite tell how, just as a teenager can’t quite know the adult they will be. We’ll probably muddle through, and the debates — and even the anger — will be our tools for doing so.
I don’t claim to have answers on all this. Just a lot of questions. And the desire to express how conflicted I feel about it all.
See you at the next conference.
I guess I should go home and play TIE Fighter in eulogy.
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