The perfect storm of user created garbage…
Sit down, kids, Uncle Psychochild is gonna go off on a rant.
I still like to read Slashdot on occasion. Yeah, it's not where the cool kids hang out these days, but I'm getting old and set in my ways. It's still a pretty decent site for tech news, and sometimes the discussion is worthwhile.
Yeah, sometimes. But, when it goes wrong it goes seriously wrong.
Warning: this post talks about griefing involving images of anatomy. Probably NSFW, but you shouldn't be reading this at work, anyway. Unless you're a CSR, then this stuff is probably pretty tame compared to your work. ;)
A recent story broke that involved everything the MMO Bloginati love to talk about: online worlds, intellectual property, griefers, penises, and Second Life. Oh man, you can't get a more perfect story than this. Slashdot happened to cover the story with the completely rational headline "Second Life Mogul Challenges Press Freedom".
So, a little background might be necessary for the youngin's: Slashdot tends to lean toward the "techno-libertarian" side of the wacko spectrum. A summary: Microsoft, intellectual property, paying for things = bad; Linux, free speech, being l33t = good; C vs. C++, vi vs. emacs, { on the same line of the function declaration vs. on a separate line = holy wars where the infidel must be CRUSHED! Yeah, you can probably see this is already going to be fun.
So, what happened is that Anshe Chung gave a press conference in Second Life and someone thought it'd be humorous to have some animated flying penises flying across the stage; some say "attacking" the avatar of Anshe Chung. Yeah, most people reading this will roll their eyes and shake their heads and instinctively prepare to ban someone.
Unfortunately, there's a twist here: The owners of the Anshe Chung avatar decided to assert copyright and use the DMCA to request that people take down images and videos containing their copyrighted material. Motivations for the requests have not been discussed. Now, one can assume that part of the motivation here is that few people enjoy having pictures of themselves surrounded by penises spread across the internet. Well, at least if they didn't get paid first. But, anyway.
I also ascribed a second motivation to this: the people behind the Anshe Chung avatar want to make sure that the griefers aren't rewarded for their behavior. This is customer service 101 for online spaces: don't reward the griefers with extra attention when they do something wrong.
I posted on Slashdot a comment to that effect:
Speaking from a community management point of view, griefers (people who send flying penises into places to disrupt the activity) want attention. Knowing that the flying penises you sent to harass someone is being posted all over the internet? Holy crap, that's the griefer supreme jackpot. (That surely makes up for all the years that mommy didn't love you.)
So, I suspect that one of the real motivations here is to show that harassing Anshe Chung does not automatically equal free exposure on popular blogs and internet news sites, and to keep unflattering images off the net. The DMCA just happens to be a convenient and easy-to-use tool to accomplish these ends. In the end, it is possible that the takedown notices aren't anything truly malicious, just someone trying to make sure that they aren't harassed continuously on a game they happen to enjoy.
That said, I agree that it's a bit ugly the possibility of asserting IP rights just to get rid of something you don't like. In this case I'm not ready to get bent all out of shape, despite being a huge proponent of free speech, because there's a reasonable explanation. The ideal situation would be that online harassment such as what was experienced in the photos/videos would be illegal. Yet, I think we're still a long way off from having anything resembling enlightened laws when dealing with online spaces like this.
A fairly reasonable post, or so I thought. See, the problem is that I didn't subscribe to the groupthink, and my sins are almost without number. Supporting IP? Bad enough, but to talk about laws in a positive light? I am obviously not a libertarian, and that's the deadliest sin!
Now, a little more background info: Slashdot comments can be moderated by users who randomly get points. This moderation can be positive or negative. In theory, abuses of the system are kept in check by "metamoderation", where anyone can go in and evaluate the moderation on various comments without knowing who did the moderation. So, if someone with an obvious agenda moderates all posts about Microsoft negatively, the metamoderators will catch that and the culprit will be selected less often to moderate. (*snicker*) But, there's a subtlety to the system: Anything marked as "overrated" or "underrated" will not be metamoderated. Oh, we love loopholes, don't we?
As you can probably guess, the system isn't the well-oiled machine you might think. To be fair, Slashdot does work pretty well, in general, but the moderation and metamoderation system tends to simply allow people with axes to grind to do so without actually contributing to the conversation. Did someone say something good about Microsoft? Spend one of your moderation points lower the post's score.
Why is this important? If you look at the moderation score at the bottom of my post above, 50% of the moderation is "Interesting", and 50% is "Overrated". Remember what I said about the "overrated" moderation above? Yep, some people are punishing me for not holding the majority viewpoint and doing so while avoiding consequences. Ah, the loophole is abused. What's more, one of the replies to my comment that takes my argument completely out of context, ignores my points, and tries to validate the griefer playstyle is rated at a 5, the maximum a comment can be rated.
The beauty of this is that it's a two-layer example of why user-created content is not a panacea. Penises and punishing non-libertarians all in one convenient package.
Anyway, some intelligent discussion for people that actually care about the issues here. Let me point out that I'm on the record as supporting free speech. A few of the Slashdot detractors tried to paint me as an enemy of free speech. *rolls eyes*
The really interesting thing here is that people are trying to compare this to snapping a photo of a person. The problem is that this is not the case: the avatar in the screenshots is not a person, but a construction that can be protected by intellectual property laws. Note that I am going to ignore the potential Right of Publicity issues here. The lawyer types that usually inhabit this space seem to be conflicted whether screenshots and videos are covered under "fair use" of the copyrighted material. This really is one of the ways where laws in the offline world don't really translate well to the online realm. A photo of a person is generally less restricted than duplicating images of artwork. Which laws should prevail?
An interesting story, with enough information around the edges to make a good point. We do have to face the facts: this online thing is getting more and more complicated. It probably is only a matter of time before the law pokes its nose into our realm. I can only hope that it's an informed intrusion, but history doesn't support me on this, unfortunately.
As they say, interesting times.
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And now, for one reason why I keep reading Slashdot....
No sooner do I post my previous entry when I come across this gem on Slashdot (http://it.slashdot.org/comments.pl?sid=215690&cid=17516318):
Herding cats is hard because you are using the wrong management technique. You herd cattle (and sheep and g...
Trackback by Psychochild's Blog — 9 January, 2007 @ 6:43 PM
>the avatar in the screenshots is not a person, but a construction that can be protected by intellectual property laws.
Which the owner has chosen to unrestrictedly broadcast into an unregulated medium. Bear in mind that in order to record, the person who shot the mpeg must have actually been present as an "audience" member and bear further in mind that this was the equivalent of a "press conference". A congratulatory blog article with screenshots would not have faced DMCA takedown notices.
Definitely "Fair Use", Brian.
Comment by Cael — 10 January, 2007 @ 6:08 AM
Which the owner has chosen to unrestrictedly broadcast into an unregulated medium.
Where was her agreement to do that? Besides, a band can play a set in a bar where people on the street can hear it; that doesn't mean you can record the song and put it in your game, or on your blog, or whatever. Assuming the song is the original work of the band and they have not signed away rights, they still own copyright and have control of the song.
Definitely "Fair Use", Brian.
Care to explain how you've reached that conclusion? Some of the lawyer types I talk to don't think it's quite so definite.
The one case you could make is if a news outlet were using clips to report the news, just as they can take video footage of people to do the same. A video on a site like YouTube wouldn't fall under this category and would be more of a commercial exploitation of someone else's intellectual property. A posting on a blog like BoingBonig falls in the murky middle; is it really a "news" site? Particularly when it contains a healthy amount of (possible) advertising posted as content? Not a "definite" here, I fear.
As I said, I'm not thrilled with the thought of anyone using these tactics to prevent bad publicity, but I think there's more to this story than someone trying to keep a bad name out of the press.
Comment by Psychochild — 10 January, 2007 @ 7:17 AM
Cyber Rape Porn Murder Death Kill
[...] Yes. Someone outside the Graef household is actually, seriously arguing that Anshe Chung was raped by flying virtual phalluses. Let’s be perfectly clear. Ms. Chung was griefed. Something we are all familiar with in the MMO world (Psychochild covered this angle very adeptly already, so I’ll just direct you there) and despite Prokofy Neva’s profuse, multimegabyte rantings against “tekkies” to the contrary, Second Life is in fact an MMO game. Albeit one where the Time To Cock is measured in picoseconds. In fact, I fully expect an open source SL client to have a phallus ON THE LOGIN SCREEN. [...]
Pingback by Broken Toys — 10 January, 2007 @ 2:33 PM
I think it's definite because the plaintiff (and remember, i'm used to English law so ICBW) is not the main feature of published media, the flying wangs are. What we're looking at here is the equivalent of film shot at a red-carpet event at which, by the act of appearing, the avatar is regarded as public domain for the purpose of reportage, wherever and however that reportage is made available - as a matter of interest, do you regard youtube as a broadcast or a network supplier for the true broadcaster (in this case SomethingAwful)?
Alternatively and possibly more accurately, it is the equivalent of "guest appearances" by well-known video-games characters in cartoon strips like Penny Arcade or CtrlAltDel.
Comment by Cael — 11 January, 2007 @ 2:36 AM
i'm used to English law so ICBW
And, likewise, I'm arguing as a business person since I am not a lawyer. This is my personal interpretations of the laws based upon what I've learned. I can be just as wrong, and anyone with serious concerns should see a real lawyer.
the equivalent of film shot at a red-carpet event
No, we are not. Celebrities at the red-carpet event are not covered under copyright. Now, celebrities do have Right of Publicity, as I explained above, which means that they have legal recourse if they are "harmed by" use of their voice or likeness. This largely prevents companies from using celebrity likeness to imply endorsement. One common example is a case of Bette Midler vs. Ford Motor Company. The advertising agency hired by Ford had a singer duplicate Ms. Midler's voice in one of her songs for a commercial. The problem with Rights of Publicity is that it varies from state to state in the U.S. Also note that a common exception for Rights of Publicity are use in reporting the news.
Further, it's been pointed out that the Second Life interviews were held in specific areas: at C|Net's in-game studio, and at Anshe Chung's "offices". Although people were let in, it could be argued that these are not "public" places, as you assert in your example.
And just a small nitpick, but photographing a celebrity on a red carpet is an exception to the laws, not "public domain". That is a very specific legal term that means that the work has passed outside of the domain of copyright. In fact, the photographer that takes the picture of the celebrity actually owns the copyright to that photo, so copyright laws are still in effect.
On the other hand, avatars are covered under copyright. And gods help us if they get Rights of Publicity. But, "fair use" has a lot of restrictions; you can't just post up copyright material and claim "fair use" and expect everything to be okay. You can learn more in my book Business & Legal Primer for Game Development. Page 170 talks about "fair use" in terms of U.S. copyright. The four provisions are:
The problem here is that most use is of a commercial nature. The part that infringes, the avatar, is fictional; the commercial nature is harder to say. Even though you claim the "flying wangs" are the focus, the one video I saw spent significant time in a closeup of the Anshe Chung avatar, meaning that it used her avatar for a majority of the time. Finally, it's not hard to claim that using her avatar for an unflattering video could harm her market. So, it's definitely not a "definite" case of fair use here.
as a matter of interest, do you regard youtube as a broadcast or a network supplier for the true broadcaster (in this case SomethingAwful)?
This is a tricky matter, unfortunately. But, the law that Anshe Chung used to take down some of the images and video, the DMCA, allows surrogate broadcasters to claim immunity from copyright infringement of their users as long as they respond to DMCA takedown requests. When contacting a broadcaster or host, you have to jump through a specific set of hurdles to establish copyright ownership. If the broadcaster or host removes the copyrighted material, they are protected from claims of copyright infringement. Some people, notably the Slashdot groupthink, hate the DMCA; as a small company that has had their intellectual property abused, I find the DMCA to be a useful tool in restricting the availability of materials that infringe on Meridian 59. Like any other tool, it can be used for good or for ill.
Alternatively and possibly more accurately, it is the equivalent of "guest appearances" by well-known video-games characters in cartoon strips like Penny Arcade or CtrlAltDel.
Ah! But, that's not covered under fair use, either. A very specific comic was removed because it used material covered under intellectual property protection. The comic satirized American McGee taking well-known characters and making them all goth. The Penny Arcade guys used Strawberry Shortcake, which happens to be owned by American Greetings. As a result, they were contacted by a lawyer and removed the comic. (Note that the comic is still easily available on the internet with a simple Google search.) Note that parody, where you lampoon the source material, does allow for use of copyrighted material; this is why Spaceballs can have a shriveled little green guy called Yoghurt. On the other hand, you cannot appropriate copyrighted material into satire which does not focus on the source material. That's why the use of Strawberry Shortcake in this case was not protected.
In the case of copyrighted material owned by game companies, most companies figure it's good to get exposure in a webcomic so they don't enforce copyright restrictions. Copyright isn't a "use it or lose it" type of situation.
Hope that clears some things up. :) Yes, this is a huge, complicated issue. So, it comes as little surprise that people don't seem to really understand the issues here.
Comment by Psychochild — 11 January, 2007 @ 5:53 AM
I'm not at all convinced that screenshots are so strongly owned by the game manufacturer. Consider the more extreme case,
http://news.com.com/Blizzard+abandons+DMCA+threat+over+WoW+manual/2100-1043_3-6082135.html
In this case Blizzard was trying to use the screenshot claim to prevent a competing commercial product, yet clearly the case was not strong enough for them to follow through. (We know Blizzard *would* follow through if they felt they had a chance - consider the battlenet case)
This particular case seems even more cut and dried. The flying phallus incident is newsworthy event.
I think you have a good point that the news services do us a disservice by publicizing griefer behaviour, thereby encouraging more of it. However, these virtual news reports seem no different from the real world ones. Compare the flying phalluses with the epidemic of cream pies a few years back:
http://archives.cnn.com/2000/WORLD/europe/11/23/pie.protest/
In any case, this hamfisted attempt to shutdown copies merely generates *more* coverage as all the news sites post their inevitable "We're being oppressed!" pieces. So, as a community management technique, it was rather poorly thought out.
I find it inconsistent to claim that footage of a video game "cream pieing" should be redactable under copyright law while real world "cream pieing" is apparently fair game. I think, regardless of what the law is currently (and I suspect it does allow copying-for-comment, especially regarding the Blizzard screenshot case), in the long term screen shots and video tape from gameworlds will not be redactable by the game company if they are used to report on the world itself. (Indeed, this seems to fall squarely in the quote-for-comment fair use. It can hardly be said that the videos represent any sizeable fraction of the game itself. And, it would be rather crippling to prevent people from providing the thing that they are referring to, especially as in the case of game worlds it is not recreatable! One could argue one doesn't need to quote a book because your readers could buy their own copy - there is no option here.)
Of course, I have no doubt that specific videos would have gone too far - quoted more than they should, etc. But the fact some stretch the limit of what should be acceptable doesn't mean that there isn't a large range of things that would be clearly acceptable.
Comment by Brask Mumei — 11 January, 2007 @ 9:43 AM
I find it inconsistent to claim that footage of a video game "cream pieing" should be redactable under copyright law while real world "cream pieing" is apparently fair game.
Absolutely not, because the situations are not consistent. The important thing here, something that we should already know, is that avatars are not people. Yes, they're controlled by people, but that's a different issue. The laws affecting the "phallus attack" and the "cream pie" attack are different. Avatars have strong protection under copyright law, just as cartoon characters do. People have Rights of Publicity, as I describe in the monster comment above, but that's slightly different. And, as I also said above, "fair use" isn't necessarily a good defense for the use of the images here.
You can't compare this to something that happens in the offline world and expect the comparison to be 100% accurate. I'm one of the first people to advocate that online interaction is still meaningful, but that doesn't mean they are automatically equivalent to offline actions.
It's a surprising argument, especially for those of us that have been online for so long, but that's the way the currently law could be interpreted. And, as I said in my Slashdot comment, I don't have much hope for enlightened laws being made for specific online use; so, in the end, it isn't that this is the most advantageous argument for me, either.
Comment by Psychochild — 11 January, 2007 @ 5:23 PM
If i take a photo of the guy in the Mickey suit at Disneyworld and put it on my website, am i in breach of the DMCA?
Comment by Cael — 12 January, 2007 @ 2:14 AM
If i take a photo of the guy in the Mickey suit at Disneyworld and put it on my website, am i in breach of the DMCA?
The straight answer is "no", since you didn't ask the right question. The DMCA does not control what is copyright and what is not, it provides protections for hosts and broadcasters from inadvertent IP infringement and provides a mechanism so that IP holders can notify the hosts and broadcasters of infringing material. The law gets a lot of hate from the Slashdot crowd, but it's actually really handy for a small business owner like myself.
The question you should have asked is, "If I take a photo of the guy in the Mickey suit at Disneyworld and put it on my website, have I violated Disney's copyright?" And, the answer to that is "probably." But, it's generally not in Disney's best interests to restrict people from posting photos of Mickey on their websites, so they generally don't go around enforcing their copyright and requesting removal of this type of material. The more interesting issue is what happens if someone started tossing giant purple dildos at Mickey and you then snapped a picture and posted it on your website.
The legal issues in this new question are: Do character costumes enjoy the same level of IP protection as online avatars? Again you have the online vs. offline distinction, which does make a difference here I think. You also have the intent of the person posting the picture/screenshot/video: posting a vacation shot of Mickey isn't likely to cause any ire. Finally, you have some difficulty because we're talking about something sexually explicit in the U.S.; few news stations would probably want to have a story about someone lobbing dildos at a person in a Mickey costume for fear of obscenity charges. We've just gotten too jaded with the plethora of penises in online social spaces like Second Life, I guess. ;)
Comment by Psychochild — 12 January, 2007 @ 3:17 AM
While I do recognize that there is a legal difference between offline and online persona, I am not convinced that this difference will remain. In the long run, tensions between the law and society tend to have the law changed to match society, not the other way around.
So, when we ask the question: "Should avatars have stronger protection than real life figures?" it doesn't address the question to point out that they currently have stronger protections. Whatever stronger protections they have now is an artifact of the IP law leaking into areas that the framers likely hadn't given much thought to, and to which society as a whole has definitely not given much thought.
I personally do not think an avatar representation of myself deserves any additional protection than my own face does. Indeed, given the choice, I would much rather have the stronger protections on my actual identity - it is much harder to change that than the avatar!
Comment by Brask Mumei — 13 January, 2007 @ 7:28 PM