[MUD-Dev] DCMA -- another weapon in the fight against Emulators

[Caliban Tiresias Darklock]

From: "Frank Crowell" <frankc at maddog.com>
> From: "Eric Rhea" <eric at enkanica.com>

>> Has anyone demonstrated that emulators are actually harmful to
>> these businesses? If anything, from where I'm standing on this
>> side of the fence, it looks as if emulators have nill impact or
>> are actually harmful to the industry as a whole. Aren't these the
>> future developers and peers of "the family" they are putting
>> down?

> I don't know or could even try to guess what goes through the
> minds of some business people.  I have had problems with my own
> "peers" and their attitudes about IP and other things.

I believe it was Eric S. Raymond who said the primary failure of the
software industry is that they are fundamentally a service industry
laboring under the pernicious delusion that they are a manufacturing
industry. Well, maybe it wasn't ESR, but somebody said that, and it
wasn't me. Until now.  Well, I've said it before, but not here. You
know what I mean.

There are two sides to this issue, pretty much like any other issue.

On the one hand, there is the principle of the thing. A piece of
software is written and perfected by a team of dedicated and special
individuals who have a particular talent, just like a Broadway
musical. And like a Broadway musical, it does not matter whether
your derivative or modification of the original helps or harms the
author(s) financially or raises public interest and awareness or
whatever -- the fact is that the author(s) have a RIGHT to decide
what can and cannot be done with their production, and you do not
have that right. When you want to make a derivative or modification,
you need their permission, and they are allowed to ask you for
whatever fees or preconditions they like before licensing the
proposed changes. They do not even need to be rational. If you want
to produce a local revival of the musical and the authors say you
have to wear a Hare Krishna robe and hula dance the length of LAX
with a live salmon in each hand, then that is what you have to do
and there are no two ways about it. Likewise, if they say "no", they
do not need to give you a reason or any recourse whatsoever -- it is
their right and privilege to make that decision, and no law anywhere
says they have to be fair about it.

On the other hand, there is also... well, oddly enough, the
principle of the thing! A piece of software is mass-produced and
shipped in trucks to retail stores where people buy it and take it
home, just like a car. And like a car, it does not matter what the
designers and builders of the car think of the paint job you want to
put on it -- it's YOUR CAR. You can repaint it and reupholster it
and chop the top and jack up the back end and even drive it off a
damn cliff if you like, and the designers and builders have NO RIGHT
to tell you what you can and can't do with it.

That's why nobody knows WHAT the hell is going to happen when they
try to argue copyright as it applies to software. You have one side
arguing "it's a floor wax" and the other side arguing "it's a
dessert topping" and generally the judge has already made up his
mind and just wants to watch the circus.  "Ladies and gentlemen, in
this corner, a software author who claims that the software he wrote
is an artistic work protected by copyright! And in this corner, a
consumer who claims that the software he purchased off a retail
shelf is a product he owns!" Well, on both sides, DUH. But since
both arguments are true, who is *right*?

Not that it matters. Like Robert Frost said, a jury consists of
twelve persons chosen to decide who has the better lawyer. Court
cases are like war; it doesn't matter who's right, it only matters
who's left.

It's tempting to say that the source code is the art and the binary
is the product. This makes a certain amount of sense: the source
code is only really of interest to other programmers (artists),
while the non-programming consumer is primarily interested in the
binary. Unfortunately, the source code really *is* important to
consumers of certain products, and the binary itself is really just
the source code in a different "language". One might as well say
that the German version of Nietzsche's work is art, while the
English translation is just a product -- and it would be every bit
as ludicrous.

It gets even iffier when you start getting into license agreements
that involve the game company owning your data. Nobody would argue
that you could use spreadsheet software without using a spreadsheet,
and nobody in his right mind would say that the company who wrote
the spreadsheet software also owns your spreadsheet. Likewise, while
you must have a character to play the game, nobody would ever say
that the people who wrote the game also own your character. Even if
they *say* they own your character, they can also say you're a
potato. That doesn't make it true.

One of the things that keeps being brought up is the question of IP
agreements you make with your employer. They say "when you sign an
IP agreement with your employer, it's the same thing" -- but it's
not. My employer *pays* me to come up with ideas for him. But when I
sign onto some MMORPG, I pay *them* a monthly service fee. Why am I
paying them to do all the work of creating something they would then
own?

Personally, I think it's reasonably obvious who "owns" the rights to
dynamic game data -- who paid the other party money? The guy who
foots the bill has the rights by default, and it is HIS decision
whether to give them to the other person. If I pay to play the game,
then I own the character. If you pay me to play it, you own it. So
whether I buy the game at retail or pay to play it online, the saved
games belong to me and I can treat them like anything else I
own. Consider it a work made for hire -- you wouldn't have made it
if I hadn't paid you to make it.

The spooky part is what this question means in the web application
market.  Many companies today have this big idea that instead of
buying software on a CD, you could rent the use of software that
runs in your browser instead...  either on a per-use basis, or with
a monthly service fee. But once a court rules that a software
company can make you pay to use their software *and* claim ownership
of anything you make with it, that concept is going to get seriously
scary. (And potentially KILL this emergent market before it's even
commercially viable.)

What we really need is a definitive ruling from the courts as to
what software actually *is*. Currently, we defend software as a tool
to manipulate things, a viewer to display things, a complete work of
art, or a piece of proprietary information -- depending on which
interpretation paints our rights in the best possible light. That
ambiguity and uncertainty has got to *go*. As long as it persists,
neither the creator nor the consumer will have any reliable
indication of what people can or can't do with software.

While we're at it, let's overturn that stupid 1872 ruling about
corporations having the same rights as individuals.


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