I like the way you guys think. :)

Good time to land an EFF gig.

Us lawyers have a saying: bad cases make bad law. Or maybe it's bad facts make bad cases. I was pretty 420'd during law school, tell you the truth. But I do remember the part about the Constitutional right to free religious practice. Maybe it takes an atheist to notice this, but Scientology is unquestionably a religion and has the right to own, disseminate - and withhold from public view as they deem necessary - sacramental and scriptural materials. Perhaps the situation is not unlike the withholding of Dead Sea Scroll content and imagery, based on copyright law but motivated by religious concerns. Sadly, by provoking a Church which incorporates confronatation and litigation into its theology, the combatants in these cases make the ways of mischief obvious to corporate rights-holders and thus un-thinkingly pave the way for much more heinous misdeeds (with plenty yet to come, be sure of that) by the Disneys and Segas and Playboys and Adobes of this world.

Edited by author 03-21-2002 02:15 PM
I think your Blizzard comment is a bit off point. Blizzard created the Battle.Net platform as a free place to play their products online. In order to use this service, you need to purchace the game, not rip it off, and input a CD code. The open source version had no cd key checking function, meaning that just about anyone could rip off a game and then play online.

It's their product, they weren't comfortable with someone making a carbon copy of their product, sans piracy protection, so they shut them down. What's wrong with that?

If you don't go after people infringing on your copyright, you lose it.

Stoner, first, thank you for so succinctly phrasing Scientology's chief problems -- its incorporation of confrontation and litigation into its theology.

Second, Scientology's right to copyright doesn't extend to suppressing all dissent, which is what those suppressed links contain. Surely you don't mean to say that dissent automatically "provokes" Scientology. That dissent is religious practice as well.

If nothing else, the First Amendment is higher up on the legal food chain than the DMCA. I hope I hope I hope.

The great scam of scientology is that people don't even question their notion that it's a religion.

The highest teachings of this church were made public domain in Sweden, where you can see for yourself how utterly preposterous the whole thing is.

Anyway. God bless Cory for highlighting this, and linking to xenu.net - a superb, objective, and above all else nescessary website. I live around the corner from one of their 'churches' (for a church, it doesn't half look like a shop). Xenu.net has been the cornerstone of the local anti-scientologist movement, and I hate to think that the lawyers^H^H^H^H^H^H^Hpriests at whacko HQ have started to pull the rug out from under it.

Scientology would be hilarious, if they didn't kill, destroy lives, and lie and cheat.

> It's their product, they weren't comfortable with someone making
> a carbon copy of their product, sans piracy protection, so they
> shut them down. What's wrong with that?

There is no mandate to replicate other peoples' protection measures in your own reverse-engineered versions of technologies. If people are cloning Vivdendi's CD, then Vivendi should go after the cloners, *not* the people who are making improved versions of the server that are better and have more features.

If, for example, Apple produces an innovative, valuable digital music player, they have no obligation to include technical countermeasures that stop people from using that device to make unauthorized copying impossible.
The Betamax decision affirmed the principle in law that a tool that is capable of substantial non-infringing uses is legal, even if there are infringing uses for that tool.

The bnetd server does lots of good, noninfringing things, and nothing about it *demands* infringement. The bnetd people are not breaking any laws. If some *users* are breaking the law, well, let Vivendi pursue those users.
Here's another example: I bought and paid for American McGee's Alice. The game requires that the CD be in the drive in order to run. This is a giant pain in the ass for me, since I use my drive for lots of other things, and don't want to have to travel with a spare CD case to put my $70 Alice CD in.
So I ripped the CD to a .dmg file (like an ISO) using Apple's DiskCopy tool, and now I mount it on my desktop when I want to play the game, fooling the program into thinking that the CD is in the drive.

This is a fair use. I bought it, I own it. It could also be used to pirate the game, since the ripped image of the disk can be used to allow others who get a copy of it from me to play the game without buying the CD. Until I give someone a copy of that file, though, no laws are being broken (and arguably, even if I do give someone a copy, we're still not breaking the law unless we both use it to play at the same time -- otherwise, it could be considered a loan [permitted under the Doctrine of First Sale] or a backup).
Even if I do start to bulk-burn and distribute copies of that image, it's *me* who's breaking the law, not Apple (who made DiskCopy).

Suing tool-makers has a chilling effect on innovation. Should Evan put some kind of copyright-checking scheme (say, a list of banned files that can't be linked to) into Blogger to make sure that no one uses his tool to post infringing materials? If he thought he had to, would Blogger continue to exist?

> If you don't defend people infringing on your copyright, you
> lose it.

This is not true.

If you enter "xenu.net" (with the quotes) you get a ton of links on Google. If you enter xenu.net (no quotes) you don't get any links, but you do get an option to search "xenu.net" by clicking a link. In other words, Google still has plenty of links to xenu.net.

while xenu.net may be available to google. If you type in Scientology you do not get any page countering Scientology.

last week from the blogs and the like xenu.net was heavily crosslinked. Effectivly the thing that needs to happen is a google bomb to a page that links to clambake and xenu.net
but the page itself has to be clean of anything that might be sueable.

Well, Boing Boing has lots of Googlejuice. Maybe we will start to show up in the Google rankings on Scientology.

Flat out, Scientology sucks. Those folks spook the hell out of me. I'll be sure to blog about them later tonight and include links to any dirt I can, hopefully I can think of a way to include the words "Britney Spears" in the story, so as to better entice google searchers...lol. I only get about forty hits a day but if just one googler gets the idea that Scientology is stupid, that's good enough for me. :)

Edited by author 03-21-2002 06:49 PM
"They have forced Google to remove from its database links to materials that the Church claims are infringing."

after reading the section of the dmca in question, this sounds like complete bullshit to me! so all anyone has to do is write a letter that meets certain legal requirements to force someone/thing to stop exposing people to a third party's (supposed) copyright infringement? my first question was - "don't they have to prove xenu was infringing to begin with?" but i guess that is answered by the fact that without google, xenu would just be a word of mouth site. so in effect the exposure that google gives along with the fact that they cache the (supposed) infringing materials makes google a contributory infringer. it still doesn't sound right though.

i'm disappointed that google didn't call the bluff. from what i've read, the church has had ample time and opportunity to sue xenu in the past and has not. what are the chances that they would actually take this to court? google has now shown they can be bullied. on the other hand, if they had gone to court and lost, it would be devastating to the service. what's the difference between this and a "i hate pepsi" (with the corporate logo and literature) site coming up higher in the ranks than pepsi.com? what about being able to search servers for mp3's? without a definitive ruling, google is not knowingly breaking the law and can continue in somewhat normal operation by dealing with issues on a case by case basis. i wish someone would challenge this though. there should be some kind of proof/judgment required that the original material infringes copyright.

Clearly I'm not understanding what "pulled their links"
means in practical terms, since, when I google either
"Scientology" or "Operation Clambake," I get hits on
the Operation Clambake site. Color me confused.

Um. Innovation typically does not require the theft of the intellectual property of someone else. If the bnetd guys want to innovate instead of steal they should write their own damn client. To say that they are doing nothing wrong is like saying the locksmith who let the burglar into your house played no part in the theft of your tv.

Actually, all tech innovation involves working from the inventions of those who came before you. Viz. Isaac Newton and "shoulders of giants."
Your locksmith analogy is badly flawed. It's more like saying that someone who makes a better keymaking machine for your loss-leader lock where you make all the money on a proprietary keying system is "stealing from you."
If I make a mailserver that interoperates with Outlook, but doesn't crash and filters virii, am I "stealing" from MSFT by giving consumers an alternative to Exchange Server?

Yes. If your mailserver directly builds on MSFT technology and they have not provided you a license to do so you are stealing from MSFT. If you were "standing on the shoulders of giants" you would create your own COMPLETE technological solution and spend a good chunk of your profits defending your products from the people who will steal from you and claim they are "innovating". I am all for building a better mousetrap. The problem with that is that stealing is cheaper and easier.

What good is the "innovative" bnetd without the client that was developed and licensed to you by Blizzard?

Btrost, I'm sorry you feel that way. It's a very interesting and unusual position to take, one that is at odds with the historical and Constitutional basis of intellectual property. With that attitude, a car vendor who also controlled gasoline distribution could enjoin others from making gas-powered cars. More ot the point, the Internet wouldn't exist if everyone were required to either a) get permission before extending someone else's technology or b) invent complete, end-to-end solutions.

The Doctrine of First Sale says that I can do what I want with your technology after I buy it from you. There are limits -- such as those imposed by copyright (can't copy your code), trademark (can't trade on your name), and patent (can't use your original and substantial inventions) law -- but those limits are the exception, not the rule.

The right to reverse-engineer and interoperate has been universally good for technology, consumers and vendors, starting with the suppliers who made interoperable IO devices for IBMs mainframes (after winning that right in court) and continuing to today, as tachnologists reverse-engineer Microsoft's deliberately obfuscated document formats and ship
word-processors, spreadsheets and presentation engines that can itneroperate with their documents.

The key here is "The Doctrine of First Sale says that I can do what I want with your technology after I buy it from you."

Purchase the technology from Microsoft. Do with it what you will. Innovate to your heart's content. Just remember to do that first part. Maybe I missed the part where the bnetd guys purchased Battlenet client technology from Blizzard? Sorry, buying a copy of Starcraft IS NOT purchasing said technology.

You misunderstand. Having bought and paid for the client CD, bnet was free to reverse-engineer it and make a new, better server (an important point -- bnetd has more features and is more stable than the Blizzard server, IOW, it is better for gamers, an almost unviersal outcome of reverse engieering).
Just as the people who made new, unauthorized peripherals for IBM mainframes in the 60s didn't have to license the mainframe from IBM (a license IBM never would have granted, given their stake in expensive aftermarket peripherals).

No one is asserting that the targets of the bnetd takedown didn't buy their copies of the game.

No. You misunderstand. Having bought and paid for the client CD they were free to paint said CD blue, add mag wheels to it, or fling it against the wall. Buying most software gives the user free will to do what they will with the media, not the content, which is only to be used in a manner consistent with the license agreement for that software. Technology theft and piracy IS NOT good for gamers or anyone else except the pirates and thieves. If there is no legitimate money to be made in software development, legitimate software development will stop. Good luck getting tech support and timely upgrades from Bobby the Hacker.

Brost, case law, the Constitution and copyright law does not support your position on the Doctrine of First Sale. You are simply wrong.

As far as "Bobby Hacker" supporting software, I think you'll find that there's a wealth of hacker-supported software, from Apache to shareware apps.

I must have missed that "Every citizen shall have the right to plagiarize, counterfeit and steal." Article to the Constitution. I will just assume you never intend on making a living as a programmer, artist, musician, or author as your twisted view of "consumer rights" places your rights to steal their work above their right to earn an honest living plying their trade. I am neither a lawyer nor a Constitutional historian, but I do know the difference between right and wrong. But I wish you luck. Keep sticking it to the man. I could care less whether you personally pirate or hack or turn in someone else's homework. Just be honest about what you are really doing. And don't try to pretend it is the "right thing." The "right thing" is harder to do than that, and the people who do it deserve ALL the credit and reward. I am sorry if I come off like an ass but this is a battle that artists have been fighting for centuries.

Well, I guess I should do my research before I post. I see that you are indeed a professional author which makes me understand your position on this even less.

Look at it this way:
Suppose Blizzard had never created battle.net, and these guys had come along and written, out of the clear blue, a server that did everything their server now does. Would that have been infringing?
Clearly, no...all their copies of Starcraft would have been purchased legally, they just would have put together a way for them to talk to each other. You're allowed to do that with your property.
Now...and this is the tricky part...the fact that Blizzard DID write a server intended for just such communication doesn't change the situation at all. Just because they wrote it doesn't mean nobody else is allowed to.
Sure, nobody's allowed to steal Blizzard's code, but that's not even being alleged (I believe), and as long as you write the whole thing yourself (or design and construct it yourself, in terms of meatspace inventions), it's perfectly legitimate to create a "new something" that mimics the function of an "old something".
That's why the distinction between reverse engineering and copywrite infringement is so important. One is a clever act of invention, the other is theft.

Ok ok.. My button is pressed for some reason tonight.. and I am in 5th-gear smartass overdrive..

Let’s pretend for a moment that the Xerox machine didn't exist. I have now invented a machine that’s ONLY function is to duplicate the Collected Literary Works of Cory Doctorow. Not only does it duplicate his writings exactly but it ACTUALLY IMPROVES the writing in a few places. So I go down to my local bookshop and purchase my one copy of Mr. Doctorow's life's work hot off the press, after all, the pre-release buzz has been incredible!! I then make my improved version of his tome for all my friends using my incredible machine. Opps. I broke the law here... well... only if we are all reading at once, so I will make sure that doesn't happen. Wink wink. You know, this thing is so great, I bet everyone would like to only buy one copy and then maybe they will have as low of morals as I do and will give everyone they know a copy for free. My version of his book IS better. Hell, I am doing them a favor! So I then stand near the bookshop and make sure everyone who buys a copy knows they can use my incredible machine for free to crank out as many books as they would like. It is a good thing Mr. Doctorow doesn't care about material things or he might think I am doing something wrong. It really is a shame he had to get a job at the docks to feed his family.. I mean EVERYONE is reading his book. Tisk tisk.

Ok.. enough for one night. I said my piece.. No hard feelings Cory. I really enjoy your posts to Boing Boing.

Btrost, I really don't see you actually addressing any of Cory's points. I get the feeling that you don't think of yourself as a troll, but it's difficult not to dismiss you as such.
You admit that you are neither a lawyer, nor a consitutional historian, however your ignorance in these areas does not excuse you from dealing with arguments based on law and the constitution.
You posit straw-man hypotheticals in order to attack Cory's position, while ignoring the actual REAL-WORLD cases which support it.

Consider for a moment...a moment...that perhaps you lack a basic comprehension of the issue. Consider that perhaps Cory, a professional author, has not taken up a position so very antithetical to artistic creation as you believe.

JRC- Fine. Troll I am. Dismiss me all you want. I will no longer participate in your discussions. Thanks for the hospitality. Who says the Internet is not a wonderful place for intelligent and courteous discourse?

Consider for a moment.. a moment.. that you are a pompous ass.


Cory and Theory, Thanks again for sharing your opinions, although I disagree with them, and taking the time to talk with me. It was fun. But not enough fun to put up with people like JRC.

I'm with Ulrika. www.xenu.net shows up fourth in a search for "scientology" at 1:50am PST 3/22/02.

personally I think there should be a doctrine of first sale, where if it can be shown to an arbitrator(note not a court) that party B is receiving monetary benefit from works somehow derived from the works of party A, then party A has the right to receive a percentage, chosen by the arbitrator, or the monies earned by party B. Then do away with older copyright, in other words, you can make a porno film of mickey and minnie and Disney can't stop you, they can just get a share of your profits.
Aside from that, I wonder if the scientologists will go after the wayback machine and if they do, what then?!

Too bad btrost dropped off this discussion. Given his (or her)interpretation of copyright law and the concept of intellectual property, I'd be interested in hearing what he (or she) thinks about fantasy rpgs, such as say... oh, I don't know, maybe Everquest, which are based on the intellectual property of the Tolkien estate. You can argue that Tolkien's work was based on northern european folklore, which obviously no one owns the rights to. However, Everquest's concept of "Halflings" is clearly based on Hobbits, which are an original "invention" of Tolkien. Jesus! He even calls Hobbits "Halflings" at some points in his copyrighted works. So did Everquest secure permission from the Tolkien estate to include Halflings in their game?

Edited by author 03-22-2002 12:01 PM
Btrost: In order not to dismiss you as a troll, all I requested was that you actually address some of the isues being raised, by Cory and Theory at the time, although Cletus raises a great point as well.
I do not believe that "opinion" is sancrosanct, nor do I believe that everyone has "a right to his or her opinion." I believe that everyone has a right to his or her informed opinion.
I do not find it difficult to respect those I disagree with, as long as they are able to justify and explain their beliefs well.
Lastly, I apologize for the percieved pomposity of my previous post, but I also recognize that none of the issues I raised have been actually addressed by you. Furthermore, you've had no problem characterizing those who disagree with you (and agree with the law and the US Constitution) as naive at best and willing pirates and thieves at worst.

No hard feelings, either, btrost. A better example, though, is what if someone like Isaac Asimov invents the idea of a Galactic Civilization in decline, and a number of science fiction writers use that as the
"foundation" (heh) of their works?

Or, better still, what if someone decides to re-tell Gone With the Wind from the slaves' point of view, call it "Wind Done Gone," and have their right to do that affirmed in a court of law?

Or what if Robert A Heinlein decides to write a bunch of books with L Frank Baum characters in them?

Or what if Geoff Ryman wants to write "Was," and win the World Fantasy Award for a novel that uses Oz characters and L. Frank Baum?

when it comes to copyright, i probably know just enough to be dangerous and i know absolutely nothing about gaming. it seems to me, however, that the game server would fall under derivative works? if they took the basic idea, didn't copy the code and built something new that improved on the original idea and performed better, how is that different from something like fan fiction? aren't there dozens of books by different authors based on star wars?

another example - a few years ago there was a dispute between two photographers in nyc. photographer 1 was up and coming, his works deemed "trendy". i think an example of his work was a big blow-up dog doll, sitting on a staircase. photographer 2 bought the same dog, found the same staircase and took the same picture. photographer 1 sued #2 and won. in this case, it was not a derivative work, it was a copy. if photographer 2 had used a different doll, or even had the dog surrounded by cans of dog food or something, then it would have been derivative.

this has been a really interesting discussion! yay!

The Star Wars example isn't a good one, because SW novels are licensed.
Blizzard is a client-server application -- like Netscape server and Netscape Navigator, or Outlook and Exchange. Making a new server for someone else's slient is like making a dry-cleaning accessory for a home clothes dryer 00 I have created something that adds value to other people's labor.

thanks. i didn't know that about the star wars novels.

Found in New World Disorder: Google restores Xenu Links.

bfrost, your xeroxing the works of Cory straw man seems like a bizarre non sequitur. Note that you posit starting out with Cory's copyrighted material, modifying it and distributing it. That's not what these gamers did (caveat: my knowledge of this example only comes from the discussion here). If they'd bought a copy of a commercial server, and distributed it, modified or not, that would be piracy and illegal. What they did was build something from the ground up that worked with their clients the same way... something that had the same effect.

If you wanted to write from scratch a story that had the same _effect_ on a reader as one of Cory's, that would be perfectly legitimate. If there were an idea that that was wrong, there wouldn't be new stories.

Cory, you corrected someone below about "if you don't defend your copyright, you lose it." I thought that was the case -- that it's the copyright holder's responsibility to tell violators to cease and desist, and that if they're lax in that responsibility, they ran the risk, upon ever actually trying to stop someone's use, of being told: "sorry, it's public domain now." You're saying this is false?

It is false, Zed. This revolves around the idea that someone who infringes on your IP might be able to go to court and say that they did so in good faith, on the basis that they understood tha tyou had allowed previous infringements to stand.

This is a legit worry, but it's not the same thing as "if you don't defend your IP, you lose it."

There are different kinds of infringement. If a nonprofit daycare center paints your registered trademark characters on their walls and you let it stand, that means that other nonprofit daycares can probably defend subsequent uses of those marks.

However, it DOES NOT mean that your commercial competitor can use those marks on, say, their rival themepark. Judges aren't idiots -- it's not credible that someone from, say, Universal Studios who showed up in court to defen thteir new "Mickey Mouse Action Adventure" ride on the grounds that Disney, say, had allowed their marks to be used by a daycare would be acquitted.

There's this idea that IP is like virginity, off or on. In fact, it's a continuum, and failure to defend does not engender loss of all rights.

To draw this topic and "Saddam Hussein, Novelist" together, http://www.jonathonart.com/LotusMaiden1/saddam.html is a page by the artist of the painting that Saddam used without permission as the cover of "Zabibah and the King". Howzabout "Saddam Hussein, Copyright Violator"?

In fact, Cory, some of us consider virginity to be a continuum as well. ;-> But I digress...