On the defense of piracy enablers [LWN.net]

On the defense of piracy enablers

Posted Aug 23, 2005 15:48 UTC (Tue) by lurk546 (guest, #17438) [Link] (1 responses)

I think that this is important enough that you should make it available to non-subscribers now rather than waiting a week.

On the defense of piracy enablers

Posted Aug 23, 2005 16:28 UTC (Tue) by danielthaler (guest, #24764) [Link]

I disagree. After all it's not like the software patent business, where the vote was mere hours away.
This will still be a valuable article in 3 weeks or even in 3 months.
Getting to see such articles earlier is the value of an lwn subscription.

On the defense of piracy enablers

Posted Aug 23, 2005 17:24 UTC (Tue) by eyal (subscriber, #949) [Link]

By far the most popular piracy enabler is Windows. Does it mean that Microsoft must be taken down? Well... errr... hmmmm...

Florian Mueller's view on the bnetd issue

Posted Aug 23, 2005 18:17 UTC (Tue) by mozart3 (guest, #19939) [Link] (2 responses)

FWIW, in October 2004 Florian posted his view on this topic here:

http://www.nosoftwarepatents.com/phpBB2/viewtopic.php?t=418

Florian Mueller's view on the bnetd issue

Posted Aug 23, 2005 18:24 UTC (Tue) by mozart3 (guest, #19939) [Link]

Sorry, wrong date: it's from March 05.

Florian Mueller's view on the bnetd issue

Posted Aug 25, 2005 6:56 UTC (Thu) by hingo (guest, #14792) [Link]

It seems Florian has joined the ever growing team of Open Source luminaries, that fought a great victory in one battle, only to step right into some ridiculous position on some other opinion. Reading his explanation it seems to me, that the problem with bnetd is that it is bad for Blizzards business and the Blizzard people are his friends. I certainly don't buy the "server and client are an inseparable product" argument. Isn't that what Microsoft went to court for? Browser and OS is the same product. Better yet, browser and server is the same product, that's why IIS can do some nonstandard things.

While I do not know anything about bnetd it self, just by reading Florians own argumentation I can safely say: I don't know whether the bnetd guys are right, but I do know for certain that you are wrong, wrong and wrong. Sorry Florian.

On the defense of piracy enablers

Posted Aug 23, 2005 19:31 UTC (Tue) by shlomif (guest, #11299) [Link] (1 responses)

Very nice feature! I was against that comment by Mr. Mueller as well, but could not come up with a lot of good mental support. You pulled a very good work on that in this essay. Thanks!

On the defense of piracy enablers

Posted Aug 23, 2005 22:02 UTC (Tue) by barbara (guest, #3014) [Link]

I would also like to add my thanks for this article, Jon. It seems these
days all of us need to be ever-vigilant in defending our freedom.

In the words of Benjamin Franklin...

They that can give up essential liberty to obtain a little temporary
safety deserve neither safety nor liberty.

On the defense of piracy enablers

Posted Aug 23, 2005 19:35 UTC (Tue) by mcelrath (guest, #8094) [Link] (1 responses)

The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

-- H. L. Mencken

Not that I think the bnetd developers are scoundrels, but I thought the quote was apt.

On the defense of piracy enablers

Posted Aug 23, 2005 21:29 UTC (Tue) by brouhaha (subscriber, #1698) [Link]

Not that I think the bnetd developers are scoundrels, but I thought the quote was apt.

Very apt indeed. The people who take advantage of bnetd to use pirated games are the scoundrels, and we must defend the bnetd developers because their work promotes freedom, despite the fact that some people might choose to abuse that freedom. Anyone suggesting that the bnetd developers should be castigated for enabling piracy completely misses the point. We don't blame Tim Berners-Lee when people use the web to distribute pirated material, nor do we try to ban the web.

The Supreme Court used to understand this, for instance when they ruled on the Betamax case. Just as the Betamax had substantial noninfringing use, so does bnetd.

Eric

On the defense of piracy enablers

Posted Aug 23, 2005 19:58 UTC (Tue) by jvotaw (subscriber, #3678) [Link] (7 responses)

I think it's worth noting that there is *no way* to write something like bnetd without making piracy easier, one way or another. Here are the options available to the bnetd developers, as I see them:

1. Write an interoperable server, and don't do any CD key checking. This is how bnetd was implemented; I don't think Blizzard was willing to give them a way to check keys.

2. Write an interoperable server, and check keys inside the server. Even if the key-checking code is a closed-source module, this would make it easy for a third party to write a key generator.

3. Write an interoperable server, but make it pass through CD keys to the Blizzard servers for verification. How long do you think it would be before someone wrote a one-line patch to bnetd to always return "true" from this check?

4. Don't write an interoperable server, period.

There are no good solutions to the CD key verification problem from bnetd's point of view. You could chose not to make an interoperable server, but that's not a real solution and undermines rights that are extremely valuable. Think Wine, Samba, OpenOffice...

-Joel

On the defense of piracy enablers

Posted Aug 24, 2005 8:59 UTC (Wed) by jzbiciak (guest, #5246) [Link] (6 responses)

I can think of at least one way for it to work with the pass-through method. Since all the CD Keys are unique, require all copies to play on the Blizzard server network at least once.

When the CD key's registered, issue that client a public key and Blizzard keeps the private key. Whenever a client connects to a 3rd party server, pass the CD-Key through to Blizzard. After Blizzard checks that the key's unique and not being played by more than one machine, they then send back a date code signed by the private key. The 3rd party server needs to send this back to the client before the client agrees to trust the server.

All this assumes the client and the Blizzard servers are not modified and the only thing non-original is the 3rd party server. So, every so often the client makes a request for Blizzard server auth, and if it doesn't reply with an appropriately signed date code within an appropriate time frame, it disconnects. It's that simple. The 3rd party server only needs to pass through these requests to Blizzard. And Blizzard can choose whether to preemptively send signed date codes down to the 3rd party server to prevent disconnects due to network instability.

So, yeah, you could do #3 and do it in a way that can't be circumvented by "return TRUE;"

On the defense of piracy enablers

Posted Aug 24, 2005 15:38 UTC (Wed) by zblaxell (subscriber, #26385) [Link] (4 responses)

Did I miss something?

I thought the whole point of the server authentication was to prevent unauthorized clients. I assume that an authorized client implements its own CD key checks, and that to get it to work at all, you'd have to modify the client to bypass at least its own checks, before you could do anything else--this is typical of pirated closed-source software anyway.

With such a client, the server could return anything--TRUE, FALSE, NULL, or 3.141592653 signed by $DEITY's PGP key--and the client would just ignore it.

On the defense of piracy enablers

Posted Aug 24, 2005 16:11 UTC (Wed) by jzbiciak (guest, #5246) [Link] (3 responses)

Actually, what Blizzard was arguing was that the bnetd SERVER allowed two completely unaltered bog standard clients with the same CD-Key to connect. My scheme would prevent that.

Blizzard's concept of "authorized" in this context is merely "unique CD-key with respect to all other currently logged in clients."

Remote integrity checking of the client itself can be layered onto this. I was merely discussing the CD-Key uniqueness check.

On the defense of piracy enablers

Posted Aug 26, 2005 5:40 UTC (Fri) by mebrown (subscriber, #7960) [Link] (2 responses)

Duh... maybe I'm missing something, but isn't bnetd open source? What is to prevent Evil Pirate(TM) from just commenting out your checks?

On the defense of piracy enablers

Posted Aug 26, 2005 13:32 UTC (Fri) by jzbiciak (guest, #5246) [Link] (1 responses)

Right, but neither the client nor Blizzard's servers are. In this protocol, the client refuses to talk to a server unless it verifies that it can get ahold of Blizzard's servers indirectly via that server. That is, bnetd can do whatever the hell it wants. But, if it can't get the specially signed auth token from Blizzard's servers for the client, the client simply refuses to talk to it.

Like I said, this would allow any 3rd party server to work, as long as it passes through authentication requests between Blizzard's servers and clients. The bnetd server would not be able to break this due to the fact everything going each direction is cryptographically signed and thus tamper proof.

On the defense of piracy enablers

Posted Aug 26, 2005 18:12 UTC (Fri) by jzbiciak (guest, #5246) [Link]

Let me be a little more clear:

I'm saying it's possible to achieve Blizzard's aims IF they modify their protocol and the behavior of the client.

The client needs to insist on receiving a time-stamped "token"--the time stamp's there to prevent replay attacks--that it can determine easily came from an official Blizzard server. Digitial signatures such as RSA can achieve this.

The Blizzard servers enforce the "one copy of a given CD-Key online at a time" policy by being the only source of these tokens.

A 3rd party server (such as bnetd) can still exist, passing through auth requests to Blizzard's servers and passing back replies to the clients. The 3rd party server can't fake the auth token because it doesn't have Blizzard's private key.

Such a system works because the client insists on getting a time-stamped token signed by an official Blizzard server. Now if someone hacks the client, then you're back to being a pirate. But the bnetd authors certainly cannot be blamed for others hacking their clients.

Now, you may wonder what value bnetd would have if you still needed to contact the Blizzard servers. Easy: The Blizzard servers are only handling authentication. Once the client is satisfied that Blizzard blesses its existance, the local bnetd can run the whole game. That could offer latency benefits etc.

I don't know how I could make this approach more clear. Like I said, for it to work, it requires the client to insist on reaching a Blizzard server, and for the Blizzard server to produce auth tokens that no one else can fake.

Your are correct

Posted Aug 27, 2005 3:03 UTC (Sat) by jvotaw (subscriber, #3678) [Link]

I hadn't thought of this (and I have never heard of anyone who has), but I believe it would work.

You should patent it. ;)

-Joel

An expensive piracy

Posted Aug 23, 2005 21:40 UTC (Tue) by job (guest, #670) [Link] (1 responses)

The very idea that such a software would be created as a piracy enabler is absurd. Who would pay for that development? You could probably buy a couple of hundred licenses for the money that so many hours of development work would bring in, if it was a purely commercial endeavour.

An expensive piracy

Posted Aug 24, 2005 13:46 UTC (Wed) by southey (guest, #9466) [Link]

Oh, I don't know, the apparent ease that coders have to create things like bnetd and cracking the xbox suggests that this is what companies are already doing :-).

On the defense of piracy enablers

Posted Aug 24, 2005 1:27 UTC (Wed) by smitty_one_each (subscriber, #28989) [Link]

I think it was the X11 section, in ESR's "The Art of Unix Programming" where I first saw the phrase: "Mechanism, not policy."
Programmers provide an executable mechanism. If users choose opt for unethical/illegal policy, the coders should be about as liable as the Monopoly Squad is for all of the losses incurred by insecure software, i.e., scot-free.
How the legal system perpetuates the injustice of blaming everyone but the criminal, I am unsure. Possibly, convenience.
Grr.
Chris

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 18:33 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (47 responses)

The EFF has deservedly lost the cast against Blizzard, and I stand by my criticism of the EFF's (and CCIA's) siding with the bnetd developers.

It's absurd to apply the concept of interoperability to a computer game. No one who (i) plays computer games and (ii) knows how the games business works would view a game client and server the same way as two productivity applications.

The word interoperability contains two Latin roots: "inter" ("between") and "opus" ("work").

There is no "between" because, for commercial and conceptual reasons that should prevail over any fundamentalist perspective on "freedom", a game client and a server must be treated as a unity. Reverse engineering and interfering with a protocol between a game client and a server can lead to a variety of negative effects, such as:
- circumvention of copy protection schemes
- cheat programs (which take a lot of fun out of the game)
- denial-of-service attacks against the server
- security risks for other people on the service
- manipulations of the gameplay concept (scoring, rules etc.)

I am developing a client-server game myself, and I don't want any of the above to happen. I believe that people don't need to interfere with my program. I'm the designer and author and owner. It's everyone's choice to use it the way I offer it. Take it or leave it, but don't tamper with it. If I don't want people to play my game by other rules than the one that I believe, for design considerations, to be right, then that's the legitimate right of an author and designer.

No one in his right mind can make a case for a pressing need to interfere with a game. That leads to the second word, "opus", i.e., "work". Yes, interoperability is indispensable for a productivity application. That's where if you weigh the pro's and con's of reverse engineering of a protocol off against each other, the conclusion will be far more likely to be that the public interest in interoperability prevails.

An entertainment product, however, is not a productivity case like accessing PDF files.

I have to point out that I worked with Blizzard Entertainment as their German consultant and representative (1995 until 1998), and I know Blizzard's senior management. They want to give gamers value, and they were always reluctant to use traditional copy-protection schemes (such as errors on the medium). Some of you may remember that when battle.net was created (for Diablo I), there were those services like Mplayer and TEN that charged gamers a monthly fee. Battle.net provided a much more gamer-friendly business model (you buy the game once and never have to pay any fees), and that business model would have been irresponsibly destroyed if the EFF had succeeded in court.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 18:48 UTC (Wed) by corbet (editor, #1) [Link] (25 responses)

Hmm...I've written a network filesystem, and I think your reasoning applies to me too. I don't want anybody to get around the proprietary licensing on my filesystem client ("circumvention of copy protection schemes"). I wouldn't want any particular client to adopt techniques which might get it an unfair share of bandwidth out of the server ("cheat programs"). Denial of service is undeniably a bummer. Heaven forbid if a third-party client could find a way to get around file permissions ("security risks"). Etc. Clearly, the creation of alternative CIFS servers and clients (for example) should not be allowed.

For that matter, the same could be said for a web service. There's a good reason for IE-only web sites after all.

You know, the netrek people were faced with all this stuff fifteen years ago, and they coped with it. And alternative servers (remember "paradise"?) with new features resulted.

The right to create interoperable software doesn't go away just because the creator decrees that two sides of a protocol are a "unity." I must disagree, sorry.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 18:57 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (24 responses)

Your alleged analogies don't fit.

Have you ever seen any depictions of Justitia, the goddess of justice? Usually she's shown with scales in her hand. You have reasons for one position and reasons for another, and you put the weights on both scale pans and have to weigh them off against each other. That's how basically every judicial decision works except for some extremely simple cases.

I expressly said in my statement that the public interest in interoperability may prevail over those other considerations. The scale pan for interoperability may indeed be the one that goes down because it has more weight. However, that depends upon how legitimate the interest in interoperability is vs. the negative implications of reverse engineering. And that's a question of the application category. Comparing Samba, OpenOffice etc. to a game doesn't take into account how disparate entertainment software is from productivity software.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:04 UTC (Wed) by corbet (editor, #1) [Link] (18 responses)

So you are saying that the "legitimacy" of interoperability is dependent on the opinion of some third party. Who? Could you possibly codify that "legitimacy" test into law? I believe your claim is that the right to create interoperable software is subject to the whim of the original vendor, which, to me, is the same as saying that this right does not exist at all.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:14 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (13 responses)

I don't blame you for probably having had fewer conceptual debates on statutory law and case law than I've had over the last 16 months in the European software patent debate. So I'm trying to explain those fundamental concepts.

I never said nor implied that "the whim of the original vendor" is the decisive criterion. The goddess of justice, or less metaphorically speaking, the judicial system has to decide, and the court decided the right way in this case.

Again, it's a matter of weighing one set of considerations against another. You have the interest of the author vs. the interest of the public. Anyone who denies that reasoning of the scales of Iustitia lacks understanding of legal concepts or is a blind fundamentalist (or both). You can't only claim certain consumer's rights without comparing their validity and legitimacy to the author's rights. And that comparison is genre-specific.

As for the "whim", computer games are pieces of art, which is not a quality judgment, just a fact. I'll give you an example: When the two professional soccer clubs in Munich wanted to modernize the Olympic Stadium with its world-famous tent-like design, the architect vetoed some (not all) of their plans for conceptual reasons. It's an inalienable originator's right. They had to build a whole new stadium in the end. That's the way it is.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:48 UTC (Wed) by khim (subscriber, #9252) [Link] (3 responses)

You have the interest of the author vs. the interest of the public.

100% wrong, of course. We have two interests of the public. The public have an interest in its own freedom in using published works; depending on circumstances, public may also have an interest in encouraging creation of such works through some kind of incentive system.

Can Blizzard prove that availability of programs like bnetd will make it impossible fior them to create new works ? If not - then public sold its freedom for nothing.

Anyone who denies that reasoning of the scales of Iustitia lacks understanding of legal concepts or is a blind fundamentalist (or both).

Of course. Anyone who says something I do not like to hear is dirty fundamentalist. Greeeat argument.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 20:15 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (2 responses)

It's obvious that everything in a law is for some reason deemed to be in the public interest. Still there are rights that the public gets (interoperability is a right to everyone who uses some software) and rights that an individual gets (an author's right).

Trying to impose the burden of proof on the creators may be en vogue in some fundamentalist circles. However, it's just not accepted in the world of political realities. Anyone who says that an author has to justify his ownership in his creation (and has to prove that otherwise he'd go out of business) positions himself in a way that is unacceptable for politicians anywhere right of the Greens and the far left. There's no majority support for that approach.

I've talked to many conservative and center-left and (neo)liberal politicians, and like it or not, their approach is that the burden of proof is on those who want to restrict IPRs.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 22:03 UTC (Wed) by Ross (guest, #4065) [Link]

What you may be missing is that under US law the only legitimate motivation for copyrights and patents is the good of the public, unless and until the Constitution is ammended. This has nothing to do with burden of proof (in fact, that mostly favors the copyright - if registered - or patent holder). Also, the discussion isn't about ownership. Blizzard owns the copyright to their games and to Battle.net. I do not challenge that. I don't think anyone else did. To attack our statements based on that argument is just tearing up straw men. Also, it isn't about "majority support", though now that you mention it, in technical circles, I think your position would be in the minority.

Interoperability for games is fundamentally flawed reasoning

Posted Sep 1, 2005 12:32 UTC (Thu) by biehl (subscriber, #14636) [Link]

... and rights that an individual gets (an author's right).

Yes, but it is a fair argument that a society/public giving rights to individuals that are out of line with benefit to that society/public is just a bunch of bad merchants - pay lots - get little back.

Anyone who says that an author has to justify his ownership in his creation (and has to prove that otherwise he'd go out of business) positions himself in a way that is unacceptable for politicians anywhere right of the Greens and the far left. There's no majority support for that approach.

Maybe - but that "there is not support" is not reason that it is not true! And it is important to stress that nothing is taken from authors the work is theirs always, what is in question is what "rights" they can enforce through a public legal system after they release it - it is all about what OUR tax-money are spent on. Why must our tax-money be spent on a judicial system that gives us, (society in general) a bad deal?
Should we also support a system of rules that gives the original makers of Samsung televisions the rights to raid private homes and destroy their television product, at any time they see so fit? Maybe we should have a publicly funded police unit to stand by so Samsung just has to make a call?

I've talked to many conservative and center-left and (neo)liberal politicians, and like it or not, their approach is that the burden of proof is on those who want to restrict IPRs.

Yes - it is important to remember how the arguments you present makes you look. But saying that something is right because you can find a group of people (conservative and center-left and (neo)liberal or whatever) that think so doesn't make it so.

-Anders

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 22:07 UTC (Wed) by corbet (editor, #1) [Link] (5 responses)

I don't blame you for probably having had fewer conceptual debates on statutory law and case law than I've had over the last 16 months in the European software patent debate.

Then I don't blame you for being a little condescending, but I may not be quite as ignorant as you seem to think.

I'll give you an example: When the two professional soccer clubs in Munich wanted to modernize the Olympic Stadium with its world-famous tent-like design, the architect vetoed some (not all) of their plans for conceptual reasons. It's an inalienable originator's right. They had to build a whole new stadium in the end. That's the way it is.

That's the way it is in Germany. But bnetd is a U.S. case, and the U.S. does not give "artists" the same sort of lingering rights over their creations. Your stadium example could not happen here in the absense of explicit, contractual rights given to the architect. It is, thus, not an appropriate precedent for the bnetd case.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 6:42 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (4 responses)

QUOTE: That's the way it is in Germany. But bnetd is a U.S. case, and the U.S. does not give "artists" the same sort of lingering rights over their creations. Your stadium example could not happen here in the absense of explicit, contractual rights given to the architect. It is, thus, not an appropriate precedent for the bnetd case.

My point about the stadium was that if such a right exists (on whatever legal grounds), and you can't modify something that someone else owns, then you have to build something to your liking from scratch. If you want a game server with certain features, write your own server with its own protocol (and then a game with that proprietary protocol), or a server for an open protocol, or take an open-source program that you are allowed to modify, but don't disrespect someone else's rights.

I can't really see how that logic is specific to whether it's statutory law, case law or an agreement under which that right exists. In any of those scenarios, if the right does exist, then you have to build your own thing instead of infringing upon someone's rights.

As for U.S. law and rights of artists over their creations: U.S. law doesn't systematically dinstinguish between the originator's right and copyright like German law does. However, any reasonable interpretation of copyright law takes the interest of an artist in the integrity of his creation into account (unless the rights of the artist are sufficiently well protected anyway, even without that aspect).

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 8:09 UTC (Thu) by Ross (guest, #4065) [Link] (2 responses)

So, I guess, your argument boils down to the idea that American (US) copyright law is unreasonable and "communistic". Exactly how does that have anything to do with bnetd?

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 8:23 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (1 responses)

U.S. copyright law is not communistic. It's under a constitution of a free market economy. I'm only against any communist interpretations of it, and as you've seen in your case, the courts tend to look at those rights from a perspective in which a profit motive is legitimate (which doesn't say it's the only motive nor the only legitimate aspect).

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 9:46 UTC (Thu) by Ross (guest, #4065) [Link]

No decision on copyright was made in the case, as has been pointed out to you repeatedly, so I don't know why you continue to insist that it somehow was. The case was about: a) circumvention vs. interoperability (not copyright but DMCA) and b) EULAs.

About your rights and ours

Posted Aug 25, 2005 11:46 UTC (Thu) by man_ls (guest, #15091) [Link]

If you want a game server with certain features, write your own server with its own protocol [...] but don't disrespect someone else's rights.

That is a self-appointed right. Nobody gives you the right to decide how your "creations" are used: not the law, not reason, not common sense.

Yes, others have said it before, but as you don't seem to grasp it, let me reiterate. Under international copyright law, you only have the right to control distribution of your work; and the right to control derivative works. Here you are talking about controlling the uses of your work, which is not a right. And, as developers, we are talking about the right to interoperate, which is explicitly recognized under US and EU law.

Let's see about reason. As our favorite editor and others have suggested, some software houses might complain that open source programs like Samba destroy their business model; still it does not give them the right to control interoperating works. And if it is not a right for them, it is not for you either. It seems that in the bnetd case judges thought otherwise. I don't know the particulars of the case, but from what I have read it is pretty clear to me who holds the high moral ground.

And for common sense, here's a hyperbolic example: an author might like to restrain people from using her book as toilet paper, because it diminishes its value and is a disrespect to the integrity of the work; but she would probably not succeed, and you would probably not like her to succeed.

Inalienable Rights.

Posted Aug 24, 2005 22:56 UTC (Wed) by grantingram (guest, #18390) [Link] (2 responses)

It's an inalienable originator's right. They had to build a whole new stadium in the end. That's the way it is.

"Inalienable rights" are important things like not being subject to arbitrary arrest, detention or exile. Some concern for the integrity of an artistic work is hardly on the same scale.

The debate about "intellectual property" and Copyright would be a lot clearer if we stopped thinking about "intellectual property" as "property" and Copyright as a "right" and thought of them instead as legal mechanisims for encouraging progress in various fields.

Inalienable Rights.

Posted Aug 25, 2005 15:42 UTC (Thu) by maderik (guest, #28840) [Link] (1 responses)

Inalienable only means that the right cannot be surrendered or transferred. It has nothing to do with the importance of the right -- or if these rights have been endowed by some Creator. Some countries/courts have found that artists' "moral rights" to works are in fact inalienable. However, even then moral rights usually have been discussed with respect to alteration, defacement, or destruction of a work and not mere usage.

Inalienable Rights.

Posted Sep 1, 2005 20:49 UTC (Thu) by zakaelri (guest, #17928) [Link]

How would that bear on the example posed above, then? If I purchase a book, and then proceed to use it as toilet paper... Is that then defacement? What if I purchase, say, a picasso painting and do likewise? Does my purchase of that picasso come with some archaic form of an EULA whereby I can't do what I want with it?

These are but questions... I don't understand how these unalienable ('moral') rights work.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:20 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (3 responses)

As for "codification", even if the written law doesn't say anything, then some very generable standards of reasonableness will be applied if one right (the right to interoperability) stands against another right (the author's right).

If the law says "in the public interest", which I personally believe should be a criterion for interoperability, then it's a somewhat higher standard, but it would really be left to the judges. Many fundamental terms and standards are left to case law because they change over time and are too difficult to codify. German criminal law only says that you get up to X years in jail for "insulting" someone, and it's just case law what an "insult" is and what it isn't.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:54 UTC (Wed) by khim (subscriber, #9252) [Link] (2 responses)

If the law says "in the public interest", which I personally believe should be a criterion for interoperability, then it's a somewhat higher standard.

It's the other way around: any and all rights granted to authors must "promote the progress of science and the useful arts". If we can be reasonable sure that availability of programs like bnetd will bancrupt all companies who produce online games - then we probably should stop this nonsense (obviously online games are "usefull arts"). If not... then I fail to see your point.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 20:06 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (1 responses)

QUOTE: It's the other way around: any and all rights granted to authors must "promote the progress of science and the useful arts".

I'm slowly but surely getting tired of responding to ever more comments that take a one-sided perspective on things. In every one of my comments, I've talked about why one set of considerations would or would not outweigh another, and I keep getting comments that turn a blind eye to one side of the equation.

Today's world - and I'm speaking of free economies, not communist states - undoubtedly views intellectual property rights as a necessity to provide an economic incentive for investment. That's not in contradiction to the idea of promoting the progress of science and the useful arts. However, it's not like an author's right needs more justification than a restriction of an author's right needs. There has to be a balance, and that balance is genre-specific.

If you can make a case that you save human lives by reverse engineering some software that is used in a hospital, and that it's the only reasonable way of saving those lives, then you'll certainly find the judges to be more sympathetic to your case than if you say you want to interfere with someone else's computer game.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 5:47 UTC (Thu) by bronson (guest, #4806) [Link]

It's strange that you blame Jon and others for failing to see both sides of the argument. It's pretty clear to me that they see the point you're trying to make, it's just that they strongly disagree with it. Alas, it doesn't appear to me that you've managed to understand their side of the argument. The scales swing both ways you know.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:41 UTC (Wed) by khim (subscriber, #9252) [Link] (4 responses)

Comparing Samba, OpenOffice etc. to a game doesn't take into account how disparate entertainment software is from productivity software.

Ok, let's compare two cases for my friend in small town.

1. BattelNet vs bnetd. He can use the "buy the game once and never have to pay any fees" model. $100-$150 per year (~1 hour per day: there are only dial-up in town and it's not cheap; Internet Cafe is cheaper but there are no way to install it's own game there) for one user. Or he can install bnetd and play with it's friends - not as fun but $0 for all. If there are 10-20 we are talking about $1000-$3000 here.

2. Windows 2003 server vs samba. He can use Linux with samba ($0) or he can buy Windows 2003 server for ~$1000 for 10 users and for ~$1500 for 20 users. Or he can use ftp to transfer files (no need to reverse-engeener protocol at all).

Why we should forbid to do reverse engeenering in first case and permit in second case ? In Russia, for example, unlimited traffic planes are only available in Moscow and St. Petersburg, so for 85-90% or users "a monthly fee" and "buy the game once and never have to pay any fees" models are indistinguishable...

So no, I do not think there are any difference between Battle.Net servers, ICQ and samba. In all cases it's pure convinience (you can live without ICQ and samba at all, right? ntalk and ftp are there, you know and if in doubt there are Web-based ICQ as well), in all cases we are modifying data produced by programs and return data back and we never modify program itself.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:55 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (3 responses)

The first example is unrealistic WRT the cost of Internet access of the USA (where the bnetd decision was made), but even if it weren't, it doesn't take into consideration that all Blizzard games provide for LAN play.

The difference between a game and a file system:
- For a game, the interest of the designer in controlling the conceptual integrity and of his piece of art must be rated higher than for a file system.
- For a file system, the interest of the user in heterogeneous access is a more valid one than of someone to tamper with an entertainment product.

The combination of those two factors is why the comparison might have a different outcome in the end.

As for instant messaging like ICQ, I generally would agree that there's no pressing need to access them except if one dominates the market. Interoperability can be mandated for anti-trust reasons (as is just happening to Microsoft in the European Union).

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 21:59 UTC (Wed) by Ross (guest, #4065) [Link]

The very idea that you consider this "tampering", "interference", and a threat to the "integrity" of the game speaks volumes. I don't see where those concepts are coming from. They certainly aren't in US copyright law.

The interoperability argument comes from a defense to a claim of circumvention. Because copyright carves a chunk out of freedom of speech, and becuase copyright exist for the specific goal of increasing the progress of the arts and sciences, when the exclusive rights interfere with that goal or place an undue burden on freedom of speech they are effectively neutralized. The interests of the public are the ultimate justification for copyright -- not to reward authors or to preserve artistic integrity. Blizzard claims that non of the protections of copyright law (like fair use) come into play with the DMCA. But there is a very specific and clear statement in the DMCA that allows interoperability. Furthermore it says that it isn't intended to mandate implementation of DRM. I do not see how what Blizzard is asking for is not both a restriction of interoperability or a mandate to implement their copy control mechanism in any interoperating work.

Your argument, I guess, is that the defense should not be valid when applied for game client or servers because they are "only" entertainment products. What is special about those which reduces the public's interest? (I see none.) Is entertainment not one of the fastest growing areas of consumer spending? (It is.) Does it not define many aspects of our culture? (Yes, it does.) Are not the vast majority of products protected under the DMCA entertainment products. (They are.)

You seem to think the theoretical "artist's rights" trump the legally real interests of the consumer. And yes, there are other areas of law like anti-trust which intersect, but those would tend to increase the public's right to inter-operate despite the wishes of the copyright holder in order to preserve competition. You see copyight is an inherent grant of monopoly. It makes sense, but you have to give it limits, otherwise the grant can be extended to cover any number of unrelated items... such as independently-created works which interoperate.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 17:45 UTC (Thu) by riel (subscriber, #3142) [Link]

For a game, the interest of the designer in controlling the conceptual integrity and of his piece of art must be rated higher than for a file system.

Did you just say that level editors are immoral?
Do I have to remind you that some of the most successful games became that successful because people could create levels themselves and get involved more than they could do just playing? One example here would be the game Doom.

Creating a different server (with slightly different game play, I assume) would be along the same lines as creating new game levels and can help make a game more popular.

Interoperability for games is fundamentally flawed reasoning

Posted Sep 1, 2005 9:48 UTC (Thu) by quintesse (guest, #14569) [Link]

For a game, the interest of the designer in controlling the conceptual integrity and of his piece of art must be rated higher than for a file system

To use "conceptual integrity" in this case is just playing the system, Blizzard is telling you that client and server are one inseperable product just like Microsoft said that IE was inseperable from Windows.

You gave an example about the German stadium before. I'm pretty sure that the changes they wanted to make were pretty obvious that the architect didn't agree with them. I guess that if the problem had been in the quility of the plumbing and they wanted to remove the tubes and replace it with a new better ones the architect wouldn't even have tought about objecting about the conceptual or artistic integrity, don't you think?

Well the Blizzard case is the same, they don't want you to believe that, they're trying to make you believe that what they have made is Centre Pompidou and that in this case the plumbing is an integral part of their product while it is not. It's the plumbing or foundation of a building, the wall the painting is hanging on, the plastic that makes the CD that contains the music etc.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:43 UTC (Wed) by Ross (guest, #4065) [Link] (9 responses)

Mr. Mueller,

I replied to a very similar message from you on this subject via email, and you failed to address the points I made rebutting your statements.

First of all, I do not view a game server and a game client as a single work. Therefore there is a very real reason to be talking about "between". Saying that a game protocol doesn't communicate between two different things is astoundingly silly -- that's the very purpose of network protocols.

You seem to want to apply different rules based on the domain of the communication. I see no need to do so. Remember, we are talking about copyright over computer programs. What the programs do have nothing to do with the legitimacy of their copyright. Unless you are claiming that things like office applications have no creative or expressive value, which I personally do not.

Your laundry list of "negative effects" is moot. I could address each of them but there is no point. The "negative effects" have no legal force in the debate. I could say that Microsoft puslishing Windows XP has had dozens of negative effects. That does not and should not allow me to use the legal process against them.

Things like cheating are problems, but they are not something which copyright is designed or intended to prevent. Trying to bootstrap the temporary exclusive rights granted by a copyright to include things outside of those rights is not only unfair, unworkable, but is abuse of copyright. As I explained copyright protects the work (your client and your server), but does not guarantee protection against other works by forbidding them to exist.

I fail to see the point about Blizzard's relunctance to use copy protection technologies (I see you have corrected your statement since writing it in email), but they have used them, for example, forcing the CD to remain in the drive at all times during game play for absolutely no reason. Copy protection is not user-friendly. Saying that Battle.net is both a de-facto copy control and that it was intended as one are mutually exclusive statements. And if it was intended to be one or not is beside the point. If I say that the lack of a certain Web browser to read this site is a control over who can read this comment I do not suddenly get the force of law to prevent that browser from being fixed or for other browsers to be used. Copyrights are not to protect business models, they are about the progress of the arts and sciences through the growth of the public domain through incentives via the grant of temporary molopolies. Bad business models will eventually be replaced by better ones, and will fail with or without the additional rights granted in your proposed law.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 19:49 UTC (Wed) by Ross (guest, #4065) [Link]

Another point in regards to your post. You have suggested repeatedly that Blizzard is most interested in protecting gamers. First, the Blizzard you worked for no longer exists. Second, any company exists to pursue the interests of its owners. Vivendi's shareholders presumably are most interested in profits, so any care about gamers is secondary.

Also, you never did clarify what definition of "piracy enabler" you are using or how it doesn't cover things like emulators, CD burning applications, Samba, WINE, Linux, ftp, TCP/IP other than it something to do with the way the game industry works.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 21:06 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (7 responses)

With the greatest respect, would you (and everyone who agrees with you) please appreciate that I can't spend all of my time in online discussions, be it here or via E-mail. Maybe there will be an opportunity to have this kind of debate at greater length, such as at a conference somewhere.

The way this discussion here goes reaffirms my concerns that a number of members of the open-source community have a value system that, right or wrong, is not compatible with that of a political majority. We were able to build majorities against software patents in some parliaments (in some even unanimity) because it's a very special case, but there's no majority for anti-IP fundamentalism.

The point that everyone, including you and the LWN editor, misses is this: If Blizzard doesn't even create a game like Starcraft, then there's no need for anyone to "interoperate" with it. If, however, someone wants to build a Starcraft-like game with his own server, then he's free to also write an entire client-server game itself.

You (the bnetd team) may have lacked the skill, the resources, the time, the energy or several of those factors to write your own game. It's obviously easier to just hack a simple protocol. That, however, is no justification for interfering with the game of those who have all of those factors in place.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 24, 2005 21:39 UTC (Wed) by Ross (guest, #4065) [Link]

Fine, you don't have enough time to answer every email or to rebut every point. But you did start the discussion with a press release. You had enough time to write that.

And as to your argument, you continue to conflate what you believe is "how the game industry works" with what the law is. You suggest how things should be and then argue things as if that is how they are. So we are not making any progress in the discussion of why the EFF should have lost. You apparently see what I consider reasonable and even-handed as "anti-IP fundamentalism". Obviously that's a difference of opinion, but it must be based on your belief in the idea of something like an artist's right to have their work viewed "as they intended". Such a thing doesn't exist here, at least not in a legal sense based on copyright. Morally, creating such a right offends my sense of freedom. Copyright gives control over duplication, public display, derivative works, etc. Copyright does not (and should not) include additional rights like absolute control all aspects of the use of the protected work.

Saying that not wishing to extend copyight to those extremes (which it thankfully hasn't yet been extended to, though the DMCA moves in that direction) is "anti-IP fundamentalism" smells like a political soundbite. You must have been around the politicians for too long :) Maybe giving the IP-industry lobbyists something to be happy about will quench their thirst for software patents, but I doubt it. Besides, though you protest this is all about the need for a "balanced" treatment of copyrights to offset the image of the EFF to the politicans in light of the battle against software patents, it seems you are really the one which sees the EFF, myself, and others as "anti-IP", and that it would primarily make you feel better, not the politicians.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 5:15 UTC (Thu) by proski (guest, #104) [Link]

If Blizzard doesn't even create a game like Starcraft, then there's no need for anyone to "interoperate" with it.

Sure. If Microsoft didn't create Windows, we wouldn't need Samba. If mp3 compression wasn't invented, we wouldn't need LAME. Every market has its rules. If rules are too tough for some players, others will fill the niche. Maybe they will have less money to make a quality product. Maybe it will take them longer. The same applies to software patents too - some companies could not function without them.

But let's see what is on the other pan of Justitia. It's freedom to develop compatible products. The damage from restricting this freedom cannot be limited to entertainment products, because almost every software has some entertainment applications, whether it's a game, a video codec or an operating system.

As for cheating, it works the other way too. What if the creator of software allows some cheats in its server and refuses to patch them (e.g. because it wants everybody to buy a new version of the game that uses a different protocol and server)? Some of the customers would prefer to use an alternate server known not to allow such cheats.

An open source server could provide transparency that no close source code can provide. I could inspect the server to see that my opponent cannot cheat, and so can my opponent. Sure, we have also a problem of verifying that the game server is running exactly that software. It's a totally different question, but it's easier to insure when no marketing departments are involved.

Disclaimer - I'm neither gamer nor lawyer and I have never played Blizzard games.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 7:41 UTC (Thu) by dvdeug (subscriber, #10998) [Link] (4 responses)

If $foo doesn't create $bar, then there's no need for anyone to interoperate with $bar. That's not just true for games.

Not only does your phrasing of "anti-IP fundamentalism" speak to your personal bias, I think you're wrong about it being a political impossibility. In the US, Congress hass passed laws permitting home users to edit movies to suit their tastes, no matter what Spielberg thinks about it, to install and use a program without requiring a copyright license, and to make copies of audio tapes for personal use. The attitude that the IP owner has complete control does not rule even in the political world; there are no laws in the US that would let the architect of a building stop the owner from making whatever changes the owner wanted to.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 7:47 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (3 responses)

All of the examples that you give relate to "fair use", and fair use is a different story when you do something in the privacy of your home vs. when a server software is made available for public use.I never said that consumers have no rights.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 8:19 UTC (Thu) by Ross (guest, #4065) [Link] (1 responses)

If it is fair use is an interesting question, one which hasn't been discussed much. However your description is too narrow. Fair use can and does encompass public uses of copyrighted works.

For example in reviewing, studying, and commenting on a work, you are permitted to make and distribute quotes from it. If the work is short you can distribute the whole thing. If a work is the subject of public inquiry fair use has been found to go beyond that (things like the memos from electronic voting company). Fair use also applies to software, even wholesale copying, in cases where it is required for interoperability and there is no other way to accomplish the task. This would usually mean that the software wasn't very expressive (otherwise there would probably be alternate ways of obtaining the same result).

Oh, and nice deflection BTW

Posted Aug 25, 2005 8:22 UTC (Thu) by Ross (guest, #4065) [Link]

I actually responded without noticing you shifted the discussion back to piracy. But in this case we aren't talking about infringement on any of the rights granted under US copyright law so the topic is really mute with respect to bnetd, though it is an interesting discussion on its own.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 19:48 UTC (Thu) by dvdeug (subscriber, #10998) [Link]

I don't see the fundamental difference between selling a DVD player that enables the user to play the DVDs how they want over the interests of the copyright holder, and providing a BNet server that enables the user to play Blizzard games how they want over the interests of the copyright holder.

Idealogy versus fact

Posted Aug 25, 2005 2:50 UTC (Thu) by jmalcolm (subscriber, #8876) [Link]

This thread makes me realize that I am much more a stickler for reality in debate than I am for either side of this issue.

What I find most disappointing about Mr. Mueller's contribution to this thread is his refusal to engage on the suggestion that the law is not as he says it is. Arguing the superiority of an idealogy, or it's popularity, does nothing to establish it's credibility in law.

If we were arguing whether or not the law should be changed then Mr. Mueller's arguments would all be appropriate and welcome. They would at least be welcome as valid even if not popular on this forum. If, as I thought we were, we are are arguing the legitimacy of the BNet decision as a matter of law, I do not see anything in Mr. Mueller's arguments that suggests that the decision should not be overturned.

Perhaps somebody that agrees that the interoperability should not have been allowed in this case can explain why in the context of copyright law is it CURRENTLY exists in the United States.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 2:52 UTC (Thu) by dlang (guest, #313) [Link] (6 responses)

I happen to play Blizzard games and there are advantages to the Bnet style of play compared to the lan style of play (less load on a particular gameing machine for one)

however I can't use Bnet unless I agree to upgrade my game when they tell me I should. this is valid to make sure that all play that takes place there is on a level playing field.

but what if I don't want to upgrade, and I want to play against other people who don't want to upgrade?

Blizzard doesn't give me any way to do this.

however BnetD would let me do this.

and if Blizzard isn't generating any reveue from the Bnet play then what exactly is it that they are loosing from this?

and I did read all the fine print when I purchased and installed my game, nothing in there said anything about any requirement to only use the Blizzard servers.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 6:32 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (5 responses)

As for the revenue impact of battle.net: If you don't have a valid and unique key, which comes with the product as you buy it, you can't access battle.net. If you can't access battle.net, and if no (illegal) battle.net substitute is around, then you can still play against the computer or over a LAN, but you miss a significant part of the fun. Consequently, you have a major incentive to buy the game (such as in a situation in which you've made an illegal copy of the game client, which then becomes a teaser as long as it offers limited gameplay and only the real thing when you buy the box and get the battle.net key).

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 7:17 UTC (Thu) by hingo (guest, #14792) [Link] (4 responses)

Florian, again you completely failed to address some very valid arguments. The argument was, that this person who has legitimately bought a copy of the game, no piracy involved, has several very good reasons why using the bnetd server is technically better than any of your alternatives. Your answer is, that bnetd can be used to play the game without a license key. But he has a license key. I'm really wondering why we are even listening to you anymore?

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 7:54 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (3 responses)

QUOTE: again you completely failed to address some very valid arguments.
The question is whether the impossibility of answering to each and every detail in scientific completeness and accuracy, in an Internet forum, can be equated to any "failure".

QUOTE: has several very good reasons why using the bnetd server is technically better than any of your alternatives
The courts weren't convinced of that bnetd claim of technical superiority.
Even if bnetd were superior in some way, then it's only superior because someone builds on the game itself, which in terms of the skill level and investment of resources (that are required to develop it) is a hugely greater challenge than hacking a rather simple protocol.
I've made my point in other postings: Interfering with a proprietary client-server architecture (unlike one based on open standards) is basically the same as modifying the code of a single executable, given how software has evolved from single executables over executables with DLLs to client-server, Internet-based and cluster architectures.

QUOTE: But he has a license key.
The question is not whether he has it, but whether it's ascertained that he has it. You can't abolish U.S. border controls because some or most of those who enter the country do have a valid passport and/or visa.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 8:32 UTC (Thu) by Ross (guest, #4065) [Link]

Again, you are attributing things to copyright which just don't exist, at least in the law as I understand it (admittedly US-centric). In the US, it is perfectly legal to modify a binary on your computer. You can't distribute the modified binary (well, probably not), and you still need a license for it, but "destroying" the pristine vision of the work that the author had by changing the work is not a crime. In fact, in other examples in this thread people mentioned examples that are prefectly legal. Saying that bnetd effectively does the same thing (which I don't think is accurate) does not justify your claim that it promotes piracy, violates the DMCA, or that it is anti-copyright or anti-capitalist "propaganda".

Then, you say this:

"The question is not whether he has it, but whether it's ascertained that he has it. You can't abolish U.S. border controls because some or most of those who enter the country do have a valid passport and/or visa."

*boggle*
So now people who purchase software are required to prove they own it at some undefined place and to some agency? You had just finished explaining about how Blizzard intended pirated copies to be able to play on LANs but not Battle.net as a teaser. Umm... isn't that basically admitting that it is authorized use? And isn't there a problem with your logic because a player may never connect to Battle.net even if they have a valid key. In that case how are they helping Blizzard "ascertain" they have a valid and unique license? They aren't. So are they protecting Battle.net or the game? It seems to me like the former, even if that was not their intent.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 12:20 UTC (Thu) by hingo (guest, #14792) [Link] (1 responses)

The question is whether the impossibility of answering to each and every detail in scientific completeness and accuracy, in an Internet forum, can be equated to any "failure".

Sure. But why then do you have time to answer questions nobody is asking? If you are posting a reply to something, reply to that something. If you want to make your own comments, by all means, make it as a reply to the article, not to a specific question you don't intend to answer.

I'm repeating myself, but why are we even listening to you?

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 16:50 UTC (Thu) by GreyWizard (guest, #1026) [Link]

I'm repeating myself, but why are we even listening to you?

Perhaps because he has taken the time to articulate the details of a point of view we oppose in a forum that is convenient for us? Don't get me wrong, I think he's full of beans for reasons you and others have spelled out already, but we will not build a political majority in support of sound laws without understanding the argument presented on the other side.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 15:50 UTC (Thu) by swiftone (guest, #17420) [Link]

absurd to apply the concept of interoperability to a computer game

You follow this comment with an analysis of why it is bad for business. You do not, however, explain why it is "absurd". If I purchase a client, and I want to sue it somewhere other than a given server, I have an interoperability issue.

In one of your statements linked elsewhere in the discussion, you make an important assessment of why someone would or would not need a product like bnetd. I'd like to address those:

People come up with all sorts of ridiculous pretexts as to why they say they need bnetd. They say they need it because they want to play at LAN parties -- however, the Blizzard games do feature LAN play.

Blizzard games do feature LAN play...if you are connected to the internet. (As I recall. it has been many years since I used Blizzard products -- I have boycotted them since they acted against bnetd.) Not everywhere you want to setup a LAN party has a handy internet connection.

They say they need it because the official battle.net servers have too much downtime -- I'm not sure the battle.net downtime exceeds that of most people's E-mail servers, and those are much more critical.

A straw-man. If I want to play a game I have purchased, I care only about whether I can play right THEN, not about whether my email server was down last week. (In fact, if my email server was down, I'd look into finding an alternative server that worked with my client...)

They say they want "choice" but don't understand that the client and the server is, in case of a Blizzard game, basically one product.

A claim you stand by, but you don't seem to support beyond maintaining the opinion. bnetd is worthless without a client. Starcraft (for example) is quite usable without a server. Should Blizzard vanish, or decide that it's not longer worthwhile to run the servers for a game, I would still have my client. And that is where choice comes in. I have purchased a product, and I should be able to (fully) use it, regardless of the state of Blizzard's current uptime, bandwidth, connectivity, attitudes, or existence.

I'm the designer and author and owner

All well and good...until you sell me a copy. Now I'm allowed to use this copy. Sure, you still maintain copyright, I'm not allowed to distribute copies...but I'm very much allowed (ethically and legally) to USE the product I have purchased.

Reverse engineering and interfering with a protocol between a game client and a server can lead to a variety of negative effects,

Everything you list except for copy-protection is not a legal concern, and is thus irrelevant. Were a server plagued by cheaters, it would be abandoned. As it is clearly not Blizzard's server, Blizzard has no concern.

that business model would have been irresponsibly destroyed if the EFF had succeeded in court.

Defense of buisness models is not the concern of the law (and would be a pretty bad idea, given the lessons of history). I note also that the business model in question has already been destroyed by market forces...or is World of Warcraft not a subscription game? What recent products from ANYONE are based on centralized non-subscription servers?

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 16:52 UTC (Thu) by GreyWizard (guest, #1026) [Link] (1 responses)

While on the substance of the argument I agree with other posters that you have mistaken you own biases for principles of reasoning and are in other ways wrong, I have to say I admire the courage and patience you have demonstrated by expressing your position in this forum. Thanks for taking the time to have it out.

Interoperability for games is fundamentally flawed reasoning

Posted Aug 25, 2005 17:07 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

Thanks for the kind words. Well, I think it was and still is an important issue. What I've written is based on extensive experience in talking to pro-business politicians in various countries. I didn't pretend to be a devil's advocate. I meant everything I wrote. However, there's also a risk that a disagreement on an issue like this defocuses from the fact that we share other positions and goals.

On the defense of piracy enablers

Posted Aug 25, 2005 1:40 UTC (Thu) by wookey (guest, #5501) [Link]

I have to say that after reading this thread, I find myself unable to understand Florian's distinction between interoperability in games software and interoperability in other spheres. It seems totally artificial to me. The ability to write interoperable software for _any_ purpose legally is something to be defended. I don't see that it makes any difference if the software is entertainment-oriented or work-oriented. This theory would seem to suggest that writing software for playing video is not something Florian feels should be defended if the original producers of video-playing software did not approve (movies being entertainment, not productivity (usually)). But I think most people who run Linux feel that it is important to preserve the ability of the mplayer, gstreamer, VLC and xine teams to continue their (excellent) work.

Personally I am totally unintested in computer games, but I still think it is important that it is legal to write something like the bnetd server, or at the very least that it was right for the EFF to fight the case.

I don't feel like an IP extremist - I write software (and licences) and books, and thus have an interest in my 'author's rights', but I will admit to having become a stong supporter of Free Software, and not always paying as much for my movies and music as hollywood would like. I've also spent quite a lot of time talking to politicians about IP recently, although amittedly on nothing like the scale Florian achieved, and would agree that there is quite a strong tendency for them to think of IP as 'generally a good thing', but equally it is perfectly possible to explain to most of them that there is a balance to be struck and 'more IP' is not always better, and they do understand the importance of interoperability. It does feel like Florian wants to special-case his own area of activities, but perhaps I am simply failing to grasp his thesis.

Latest in a long history

Posted Aug 25, 2005 1:53 UTC (Thu) by log2 (guest, #10024) [Link] (1 responses)

Found this etymology somewhere in utah.edu, I don't know if it's authoritative:

   The word discuss comes from the Latin verb discutere: which means to dash
   or shake to pieces, agitate, disperse, dispel, drive away;

Sounds about what we're doing so far! Let's try to elevate this "discussion"
with some selective history. It's a list of "bad guys" with Blizzard at the
end, however, it would be a fallacy to suggest or infer that Blizzard is a
bad guy merely by inclusion. I think the question is whether Blizzard belongs
on this list or not.

19th century
--------------
JP Morgan:
   "Railroads, railcars and fuel oil are a single product!"
   ---> you can't transport things by rail without our say-so
Edison:
   "Recording machines and the resulting recordings are a single product!"
   ---> you can't make audio recordings without our say-so
Eastman:
   "Cameras and film are a single product!"
   ---> you can't take pictures without our say-so

20th century
--------------
Movie makers:
   "Movie cameras and film are a single product!"
   ---> you can't make movies without our say-so
Car maker cartel (Selden patent) (pre Henry Ford):
   "Our cars and four-wheeled vehicles are a single product!"
   ---> you can't build cars without our say-so
IBM (1930s):
   "Our punch machines and punch cards are a single product!"
Movie studios (mid-20th century):
   "Our movies, projectors, and theatre chains are a single product!"
IBM (1960s):
   "Our mainframe computers and OS/360 are a single product!"
   ---> you can't use our OS on Amdahl's computers!
AT&T (until 1968?):
   "Our switches and wires and the handset in your home are a single product!"
    ---> you can't use fax machines or modems without our say-so!
CueCat:
   "The cuecat thing and our web-connected service are a single product!"
    ---> BWAHAHAHA...later
Larry McVoy (until 2005):
   "The BitKeeper client and server are a single product!"
    ---> BWAHAHA...later
Blizzard:
   "Our game client and server are a single product! Copyright violations!"
    ---> judge believes them, upholds injuction, FOR NOW...
Real & Apple & Microsoft:
   "Our streaming servers and the browser plugin are a single product!"
   ---> all 3 companies stomped on stream savers/alternate player makers
Cable and ILECs (phone) companies:
   "Our connectivity and internet service are a single product!"
   ---> FCC agrees, FOR NOW...
Adobe:
   "Our Internet-enabled Acroread program and your protected PDFs are a
    single product!"
   ---> stay tuned, this battle is coming soon
----------------

You get the idea. I made the above list from memory, there could be some
date/name errors, but I contend that such errors are minor. My point is
this:

We (in America) have repeatedly found it necessary to reign in those companies
and individuals who try to sell "aggregate" products with that prevent later
substitutions at the "component" level.

The vendors named above didn't want an end user to be able to use part of the
vendor's product for another (non-vendor-enriching) purpose.

IBM and AT&T and the movie studios eventually had their products severed by
legislation. These vendors had lots of money, very good lawyers, and had an
excellent case of "we are providing the best public good with our (aggregate)
products just the way they are." In fact those decrees were phased in over
many years to minimize market chaos; I think some (anti-monopolistic) clauses
in the IBM hardware "divesting" of the 1970s are not yet in force.

The movie industry also had an excellent argument that "movies are different
than other products!" and the courts agreed with them for many years, and they
enjoyed (and still enjoy) some special exemptions from what is otherwise
considered anti-trust behavior. Radio and newspapers also have some special
status, but their situation is complicated by what constitutes "broadcasting"
and "the public airwaves."

The movie industry also did not enjoy First Amendment protection for a long
time, because it was "merely entertainment".

To repeat (because I am about to shift gears):

We (in America) have repeatedly found it necessary to reign in those companies
and individuals who try to sell "aggregate" products with that prevent later
substitutions at the "component" level. It took years for the "public good"
to take on enough mass to outweigh the immediate, obvious benefits of
protecting the vendor's aggregate product.

Now back to the Blizzard situation.

1) Europe does not have the same legal tradition as America.

   I can think of many sub-points to this, especially in with regard to free
   speech, censorship, doctrines of first sale, and the proper balance between
   the "rights" (if any) of authors and users. The only subpoint I want to
   mention is this:

   a) Sound, well-reasoned arguments in the European context can sound totally
      protectionist to America. It is tempting to write off Mr. Mueller, but
      one must realize he is immersed in a different system.

2) The argument that Blizzard's game system is "merely entertainment," and
   therefore is not subject to interoperability considerations, has no bearing.

   a) This distinction was used in America to restrict expressions in movie
      form; attempts to do so today would simply be called "censorship," since
      we now deny the legal distinction between "expression in a movie" and
      "expression in a book," we are still working to get "expression in
      computer software" included (because judges don't get it (yet)).

      I'm saying people have tried to brand things as "merely entertainment,"
      and it doesn't stick in the long term.

   b) This distinction only exists in general terms, and disappears when you
      pick up a magnifying glass to examine Blizzard's system. It is a standard
      on-the-wire impersonation of a server to a client. This is not novel,
      and there are many precedents like CIFS/Samba. The history of such
      precedents, though, demonstrates that judges are not always quick in
      the uptake, and often arrive at the wrong answer first.

      I'm saying the operation of a protocol state machine can't be labeled
      as "work" or "play" by anyone, let alone a judge. If you could label
      machines this way, you could take one of each type and merge them into
      something that was both (or neither). The boundary is fuzzy, and the
      fuzziness cannot be removed.

      This (alleged) distinction also disappears when you approach it with
      the tools of sentential logic; you always wend your way down to the
      conclusion that "these things are indistinguishable mechanically, it's
      just the user's own mental purpose at the moment that differs."

3) Mr. Mueller attempts to separate a game system from a file system, but
   he simply makes unrelated assertions.

     Let F = "a filesystem" and G = "a game or entertainment product".
     Define ControlInterest(x) to be
       "the designer's interest in controlling the conceptual integrity of x"
     and define HetAccess(x) to be
        "the interest of the user in heterogeneous access to x"
     and define Tamper(x) to be
       "the interest of someone to tamper with an entertainment product".

     Mr. Mueller states that

       ControlInterest(G) must be rated higher than ControlInterest(F), and
       HetAccess(F) is more valid than Tamper(G)

   This is not a coherent argument; it is not even circular!

   I hope Mr. Mueller will stop with the Latin already, as it is an example
   of the fallacy of appeal to false authority. One of my favorite quotes:

     Quid quid latine dictum sit, altum viditur.
     All that is said in Latin sounds profound.

4) Americans want to protect their right to do what they want with the stuff
   the purchase. This "right" (it does not exist in black-and-white terms) is
   brought into question when stuff like software patents, click-wrap licenses,
   onerous subscription terms, and actions like Blizzard's get discussed.
   This right is not in the American Constution, but is enshrined in case law.
   (more case law than Mr. Mueller has been party to, even in his capacity
   of fighting software patents in Europe, I suspect). Remember the reseller
   of Adobe products in California was found to have re-sold items legally,
   despite the assertions of Adobe? I believe there was also a German court
   ruling upholding the doctrine of first sale (meaning the court found in
   favor of the reseller, not the OEM).

5) At this point, in opposition to (4), one often hears mention of "author's
   rights." Sure, there are author's rights: you can't distribute or sell or
   claim authorship of someone else's work. There is no such thing as the
   "right to sell at a profit", and it may simply be that Blizzard's game
   model is untenable. Remember Cuecats? They GAVE away their physical
   product, and tried to insist that people who found a way to put the device
   to their own uses were HARMING them! Remember Bitkeeper? McVoy said
   people who tried to mimic the server or client were harming him, too!
   The world is a tough place, and I agree it would be easier if "author's
   rights" included the right to profit, but it doesn't. bnetd does not
   infringe any author's rights, only those imagined by Blizzard:
   "Our game client and server are a single product!"

6) Mr. Mueller keeps mentioning these things: Blizzard has the best intentions,
   helps gamers, didn't want to use onerous CD-copy protection methods, and
   so on. Irrelevant. If your product is adaptible, people will adapt it to
   their needs/whims. Blizzard's stated intentions does not incriminate them.
   Also, as someone pointed out, there is old Blizzard/Mueller, but now there
   is new Blizzard/Vivendi. Suppose Blizzard/Vivendi changed their mind, and
   and now wanted to make it "difficult" for their clients. Will that suddenly
   put bnetd in the clear? Of course not...there is no connection between those
   vendor motives and the legal standing of users who divide the product in
   places the vendor says is not a division point!

7) I understand that because of the nature of fighting the software patent
   battle in Europe, Mr. Mueller is very interested in seeking out and
   maintaining the "majority opinion" on certain questions, but

   a) There's no need for Mr. Mueller to slight the Greens and the far left
      in Europe with statements like this:

        "...a way that is unacceptable for politicians anywhere right of the
        Greens and the far left. There's no majority support for that approach.

      Perhaps he meant to qualify it: "no support for that approach...yet."

   b) I thought the Greens helped the anti-software patent efforts in Europe.
      In fact Mr. Mueller seems to refer to such cooperation in a different
      quote:

        "We were able to build majorities against software patents in some
        parliaments (in some even unanimity) because it's a very special case,
        but there's no majority for anti-IP fundamentalism.

      Perhaps there were no Greens in those nations' parliaments.

   c) Another comment from Mr. Mueller in this discussion:

        "The way this discussion here goes reaffirms my concerns that a number
        of members of the open-source community have a value system that, right
        or wrong, is not compatible with that of a political majority.

      Agreed. Some things cannot be compromised for the sake of entering into
      a majority. "Idealist" is a better word for such people than your choice
      of "fundamentalist."

   I can think of many times when the majority opinion was later overturned.
   Even a unanimous US Supreme Court decision. It is a fallacy to assert that
   to the majority opinion is correct.

8) Here's one I didn't mention in the history list. I wonder if Mr. Mueller
   has an opinion on the DVD Jon case. I am sure that the DVD-CCA feels as
   though Jon Johansen was "interfering with their game." They sell a product,
   and they want license fees from anyone who enables the use of that content.

   Dangerous (potentially support-base-fragmenting) questions for Mr. Mueller:

      a) Is a movie more like a game or a filesystem?

      b) Is Mr. Mueller critical of the Norwegian courts for supporting anti-IP
         fundamentalism?

      c) If the court had ruled against Johansen, would Mr. Mueller be
         applauding Norway's tough stance on the protection of author's rights?

A lot of companies have invented successful products with one key property:
they can be "taken back" (remotely disabled) after the purchase. This is the
kind of product we cannot afford to protect with our legal machinery. It is a
subversion of the copyright/patent bargain. To protect these vendors and
products would tilt the scales of Mr. Mueller's goddess, Justitia.

Look at the history list again. All those are cases of ATSRM, that is "after-
the-sale-rights-management. Some are effected through digital means, some not,
but the common conclusion is that aggregate products that prevent component-
level substitution can sometimes gain wide acceptance before the harmful
after-effects can be weighed. Rather than keep going back to the beginning
(judicially) every time on this stuff, we have to recognize ASAP that when
Blizzard goes after bnetd, it's the latest round in a conflict that, although
drawn out by judicial ignorance, ultimately goes against the aggregaters.
Aggregators?

Latest in a long history

Posted Aug 26, 2005 17:11 UTC (Fri) by madscientist (subscriber, #16861) [Link]

By far, the best post in this thread.
Congrats!

You should no answer

Posted Aug 25, 2005 2:06 UTC (Thu) by gallir (guest, #5735) [Link] (7 responses)

To people that in the middle of an argument raises the word "anti-IP"
and/or "fundamentalist". It's even worse if he put those word together in
the same sentence. And if he still adds "you the open source community"
to the sentence it deserves only an answer: moron^Wdeeply confused.

Of course, pretending that the politicians' opinion (or "political
majority") are more relevant and "definitory" of ethical _and_ legal
dilemmas does not help him neither.

Do you think also that he is clearly biased? (to say the least).
According to Florian: "Patent law must have strict limits indepently of
few software creators' desire, but copyright law can be extended and
interpreted according to the desire of few software creators". Oh wait!,
Blizzard is also against software patents (for good economical reasons,
by the way), nice contradictory coincidence. He's spent too much time
with pointy haired execs... in Brussels, too much.

First ESR whined against GPL, now FM against the "anti-IP-FLOSS
fundamentalists". We must improve the process to select our leaders, :-)

No community mandate

Posted Aug 25, 2005 8:19 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (6 responses)

QUOTE: We must improve the process to select our leaders, :-)
I'm not a selected nor an elected leader. I've played a role in a political process of major strategic importance (the EU software patent directive). I've contributed to a debate, and I can continue to do so without any mandate from any community.

There are politicians on the right wing whom the term "open source" makes want to puke, and some of those are in favor of software patents despite my persuasive efforts, while others have understood from me that one can be pro-IP and anti-swpat at the same time. There is no way to have any constructive dialog with them on the basis of an anti-IP ideology.

I believe that it's important to reach out to all parts of the democratic spectrum, especially to the majority. Despite a different perspective on the specific problem of software patents and the vitriolic rhetoric in that fight over software patents, I'm on good terms with various IP professionals (such as in-house IP lawyers of large corporations and a high-ranking judge who was partially responsible for the pro-swpat stance of the German government). The common ground is that I, too, believe IPRs are generally good. And I think open source will do better if open-source activists come from the assumption that individual authors may reserve a variety of rights. As the success of open source shows, there are always authors who are willing to cede some of those rights and publish their works under more consumer-friendly licensing terms, but within reason, they should be given the choice.

No community mandate

Posted Aug 25, 2005 8:36 UTC (Thu) by Ross (guest, #4065) [Link]

"As the success of open source shows, there are always authors who are willing to cede some of those rights and publish their works under more consumer-friendly licensing terms, but within reason, they should be given the choice."

You make it sound like we are asking for companies to be forced to open source their software or put it in the public domain. I don't want that. I believe in the utility and purpose of copyright. But you and I disagree on what that purpose is and what rights it encompasses. To me, I am not asking them to give up any rights, but to quit insisting they have rights over things which they do not own (in this specific instance, bnetd).

No community mandate

Posted Aug 25, 2005 13:18 UTC (Thu) by gallir (guest, #5735) [Link]

> I'm not a selected nor an elected leader. I've played a role in a
> political process of major strategic importance (the EU software patent
> directive). I've contributed to a debate, and I can continue to do so
> without any mandate from any community.

It was half joke, half serious. But it seems you forget to recognize that
FLOSS communities gave the strongest support to anti software patent
campaign. Also you were a respected person in tose communities.
Few weeks later you starts to accsuim them of fundamentalist. Just very
strange.

> There are politicians on the right wing whom the term "open source"
> makes want to puke,

And?

> and some of those are in favor of software patents despite my
> persuasive efforts,

So, is a fault of the FLOSS communitry? What do you mean?

> while others have understood from me that one can be pro-IP and
> anti-swpat at the same time.

Your arguments are contradictory and does noty pass any logic analysis.
Why IP laws must have a limit in the case of patentes but not for
copyright?

> There is no way to have any constructive dialog with them on the basis
> of an anti-IP ideology.

Where did you get our basis is "anti-IP"? You are using exactly the same
discourse of the people that promoted software patents in Europe.

The rest of your comment is again very condescending. Thanks for the your
insightful recommendations. But don't spread FUD like accusing of
"anti-IP" --some people in the community are against IP laws, others
think they have to be modified to match the social interest, others don't
care-- or "fundamentalism" just because you don't have coherent
arguments to defend your biased opinion about a specific case: your
friends' company against software developers.

No community mandate

Posted Sep 1, 2005 7:57 UTC (Thu) by Wol (subscriber, #4433) [Link] (3 responses)

As the success of open source shows, there are always authors who are willing to cede some of those rights and publish their works under more consumer-friendly licensing terms, but within reason, they should be given the choice.

No disrespect to Florian, but he seems to miss two points. The anglo-saxon judicial code is exactly opposite to the Napoleonic Code (which also explains why the UK is such a difficult member of the EU). The Napoleonic code says "if it isn't explicitly permitted, then it's forbidden". The Anglo-Saxon code says "if it isn't explicitly forbidden, then it's permitted".

Florian also seems to have missed that pretty much ALL of the "rights" he is trying to defend, are invalid under the US constitution. The only justification for copyrights is to ensure that "creative works" pass as quickly as possible and in as large a quantity as possible into the Public Domain. Given this requirement, juxtaposed with the fact that if Blizzard shut down their servers this game would become unplayable, I just cannot see how what Blizzard is doing is justifiable under the constition.

It's all very well Florian saying "we are a minority view", but in order to impose his view on America he will need to change the constitution. I don't see how his view is going to gain the necessary majority to do that ... Oh - and I also find it "difficult" to take him seriously when he goes on about "America should ignore American legal precedent when discussing a totally American case, but should bow down to a German precedent" (when German law doesn't even recognize the concept of precedent - certainly not in the Anglo-Saxon "binding case law" sense!). Florian - when discussing a foreign case, DON'T drag your own law into it (other than as a "compare and contrast" or "we do things differently here" example). Just because you're different doesn't mean you're right - especially when your viewpoint is at odds with the highest law in the relevant land - namely the US Constitution.

Cheers,
Wol

The question is who missed the key points

Posted Sep 1, 2005 8:16 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (2 responses)

By entering late into a discussion that already seemed closed, one always has the risk of saying something pointless because it's been addressed before. That may just have happened to Wol.

I acknowledged the difference in legal systems, also between author's rights and copyright, about a week ago. However, it's totally irrelevant to this case because Blizzard had expressly reserved the rights that I was talking about, through its EULAs and TOUs, and the courts found those agreements valid, enforceable and perfectly reasonable, while the EFF claimed that they constituted "copyright misuse". (And in that context, all of the questions that I raised come up: Does the copyright holder, because of a profit motive or for other reasons, impose too restrictive terms or is it in his right to do so?)

The thing is that if someone has a right, he has it, whether it's the constitution of the respective country, some other written law, case law or an agreement on the grounds of which he has that right.

Even the case with the German architect served the purpose for which I mentioned it. A U.S. architect may have to reserve that respective right under an agreement, but does it matter? I just said that if someone has that right and insists on it, those who want to modify his work have to rebuild something new (if they can).

As for the U.S. Constitution, I've previously explained that it's the constitution of a free market economy and not of a communist state. Consequently, the progress of science and the useful arts must always be viewed against the background of a free market economy. You won't find judges today that believe people, let alone companies, only contribute to science and the useful arts on a pro bono basis. The profit motive is clearly viewed by politicians and judges as key to the progress of science and the useful arts. That doesn't mean to say that there would be no progress without commercial ambitions, but the general line of thought is that in some areas there'd be a lot less progress. Consequently, no one has to change the U.S. Constitution.

The question is who missed the key points

Posted Sep 1, 2005 8:29 UTC (Thu) by Wol (subscriber, #4433) [Link] (1 responses)

The reason the discussion has re-opened is because (if you hadn't noticed) I'm not a subscriber. This article has been available for me to view for, what, about 9 hours.

As for the US being the "constitution of a free market economy", isn't it BY DEFINITION not a free market economy if it involves copyrights, "droit d'auteur", or patents?

And I'll add, while I am unaware of Blizzard's EULA or TOU, hopefully this case, when appealed, may declare things like EULAs to be "contracts of adhesion" and therefore void. One of the big problems with UCITA was that it declared EULAs valid whether or not the customer had the opportunity to read it before voiding their refund rights by opening the package...

Cheers,
Wol

The question is who missed the key points

Posted Sep 1, 2005 8:43 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

OK, thanks for the information about the reopening of the discussion.

I had already left the discussion and I don't intend to comment too much here now that it has reopened, but let me say this: I don't think we disagree on the question of whether IPRs *can be* and *indeed are* misused by some. Also, I don't see any comments here that consider every form of IPRs automatically something illegitimate, but references to the gnu.org manifestos are dangerously close to that with respect to software.

I, personally, think it's more difficult to challenge the patent system in a field like pharmaceuticals where there is no other proven form of protection, and clearly a high up-front investment required for R&D. I know that there are cases of misuse, and spurious and fraudulent patents, even in that space, but it's a tall order to demand the replacement of the patent regime with something completely different in that field.

As for software-related legislation, my approach in discussions with politicians is that intellectual property is generally a good thing and authors (like me) should receive a maximum level of protection, but let's look at where IPRs run counter to their purpose. For instance, if patents can be used to expropriate a copyright holder, then there's a conflict even within an IP-is-great framework. In my experience, the only basis on which politicians (except a very few on the left margin) are prepared to discuss the idea of abolishing software patents is if at the same time the benefits of copyright are highlighted.

There are some signs now that the European software patent debate may restart. A vice chairman of the Legal Affairs Committee in the European Parliament, Rainer Wieland MEP (a German conservative, but unlike other German conservative MEPs, he's not completely unreceptive to our points), has published a column in a German magazine in which he says he's going to push for a new attempt at clarifying the status of software patents in Europe. Some MEPs show symptoms of severe battle fatigue and would rather not touch that hot iron again, so it remains to be seen what will happen and when. However, in case it does restart, my preference would be for a legislative project that addresses software patents and copyright, and possibly even a sui generis protection, in a holistic sense in order to have more structural flexibility to meet the needs of creators while ensuring that the market stays competitive.

Dangerous anti-IP terminology and philosophy

Posted Aug 25, 2005 7:27 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (4 responses)

In various postings here, I've seen a terminology for, and an approach to, IPRs that is problematic to say the least.

"Monopoly":
I've been criticized by an Ericsson patent attorney after a debate for referring to what he thinks is legitimate ownership as a "monopoly". I disagreed with him because many software patents are bound to be inadvertently "infringed" upon during their 20-year term.
However, that's exactly the difference between a patent and copyright. It's exactly why maddog told people that they shouldn't have a problem with the Linux mark because they can always sell software under another name, but you can't develop software that matches the broad and general description in a patent.
For copyright law in connection with software or literature, the notion of a monopoly is biased communist rhetoric that puts the collective above the individual creator. You don't infringe upon copyrights inadvertently in our field. It may happen in music where a rather short sequence of notes is protected, and even there it's extremely rare. However, in our field, you know when you breach a copyright. The chance of someone coincidentally writing a game server that happens to have the battle.net protocol is far lower than that of winning every lottery in the world during someone's entire lifetime. Therefore, it's not a monpoly. It's legitimate ownership. That legitimate ownership can be restricted if it's in the public interest, but not without a strong justficiation that outweighs other considerations.
If the founding fathers used the term "monopoly" because the creation of IPRs was a new thing at the time, then that was a different historical situation (more about that further below). Today it's ridiculous to call copyright a monopoly because even though it it in a systematic sense, that term is pejorative in this context.

Interpretation of Article I, § 8 of the United States Constitution:
The promotion of progress in science and the userful arts can, in a free market economy, not be viewed as a contradiction to, or something detached from, commercial interests. In fact, a profit motive is a major reason for some forms of progress, while it's none (or a hinderance) to others.
In case of computer games, it's very clear to any unbiased person that cinematic games are developed by huge teams of full-time people with a substantial budget. Open source has proven that a more secure operating system and web browser, and an office suite that has the entire functionality that 98% of all users need, can be developed under an alternative model. For the rich Blizzard-style computer games that are like cinematic productions, it's clear that the open-source approach doesn't work.

Negative angle on IPRs as a necessary evil:
It's been said and implied over and over again that an author should only get certain rights to his creations if it can't be avoided (because otherwise he'll go out of business). That's why it's called a "monopoly" even when it doesn't harm any innocent person, and that's why people try to give the U.S. Constitution that unreasonable anti-creator angle.
Guys, wake up: You live in the 21st century. Lawmakers and judges are the ones who decide, not the EFF or FSF (or myself, for that matter). Centuries ago, when IPRs were introduced, they had to be justified. At this point in history, IPRs are considered a major success story, the foundation of the modern economy, and also the only major area in which the U.S. has a trade surplus vs. Europe and Asia. There is now growing awareness that IPRs may in some peripheral areas run counter to their purpose, but in general, their importance and legitimacy is beyond reasonable doubt.
About 100 years ago, our great-great-grandmothers had to fight for their suffrage. Today, women's suffrage is unquestionable in the western societies. If you now want to restrict it, you have an uphill battle and a major burden of proof (unless you go to a country with a different cultural background). The challenge to say that long-standing IPRs such as copyright require much justification is similarly steep as trying to deny women the right to vote. Politicians and judges alike, with a very few exceptions, share the absolutely firm belief that an author is entitled to a variety of things that some of you here may not like. They don't have to change the U.S. Constitution because that school of thought perfectly fits within it. The meaning of general principles in constitutions is dynamic per se.

Author's choice:
Some here quote from a free software ideology as if that were an ethical or even legal standard for all software. It's still an author's choice whether he reserves all rights that he possibly can under the law (which is what Blizzard do and what I do) or only some (such as under the Creative Commons license or GPL) or as many as possible (such as under the BSD).
You can't force Blizzard to allow interference with its software that you are perfectly allowed to do with an open-source program. I won't open-source my program code either, at least not until it's very outdated (like John Carmack does with his obsolete Quake versions, which I think is great and visionary). There's empirical evidence that the best game developers in the world don't do open source because they have a profit motive (which doesn't mean it's the only motive, but it's a major one). In other application categories, you can combine a profit motive with an open-source model (Red Hat, MySQL AB...). In games, it doesn't work for now.

Antiquated definition of "unity" WRT software:
The dangerous effect of a ruling in favor of bnetd would have gone way beyond computer games. It would have been disastrous to talk about a coherent client-server architecture (from the same vendor and with totally proprietary standards) as two different programs. The world has changed since those computers that weren't connected over a network or the pre-Internet days. Today we have lots of client-server applications that are a unity (unlike those clients and servers that use open standards such as HTML), and we also have cluster applications with different modules performing different functions, but all of them together forming a single coherent system. Interfering with modules that are technically separate, but must be viewed as legally/commercially parts of the same, would have the same effect as letting people interfere with modules of a single piece of executable code.
That said, and considering that bnetd breaks a business model and enables piracy, I continue to believe that the EFF stepped over the threshold from a digital rights movement to a digital anarchy movement (or digital lawlessness movement) by supporting bnetd in court. I hope that the EFF has learned its lesson from this defeat in court, and that they will take on more honorable and meritorious cases in the future.

Political consequences:
The whole point that I made in the announcement which triggered this was that anti-IP radicalism hurts open source politically, especially on the right wing. Look at it strategically: Open source will continue to grow no matter what activists say in the political arena, but how big open source can get and how fast it can grow will largely depend upon politicians.
You need lawmakers (in such fields as patent legislation), you need governmental authorities (such as in anti-trust proceedings), and government use of software is strategically important. It accounts for about 15% of the entire software market and sends out a signal to corporations. Open source has had some of its major breakthroughs with public administrations (city of Munich, for instance). If open-source advocates take positions that trigger defensive reactions from, or even cause nausea to, pro-business politicians with their value system, then open source limits its own potential and plays in the hands of its enemies.
That was my concern when I wrote the press release, and this discussion here has added to it. However, I do hope that some (possibly even a silent majority) understand this strategic worry.

Pity, no false dilemmas

Posted Aug 25, 2005 21:14 UTC (Thu) by man_ls (guest, #15091) [Link]

Thanks for further explaining your points. Unfortunately, they are still completely bogus, so let me quickly rebate some logical fallacies (using skepdic.com's mini-lesson, Nizkor's and Atheism Web catalogues) contained in your message. This is an important task since it shows not only that your thoughts are not well articulated, but also where they fail.

I've seen a terminology for, and an approach to, IPRs that is problematic to say the least.

Lack of clarity. I don't really know what IPR stands for (although Google says it's Intellectual Property Rights); the use of the misleading term "intellectual property" is compounded by the overused acronym IP and with further qualifications is really mystifying to me.

I've been criticized by an Ericsson patent attorney after a debate for referring to what he thinks is legitimate ownership as a "monopoly". I disagreed with him because many software patents are bound to be inadvertently "infringed" upon during their 20-year term.

Red herring. A monopoly is not defined by how easy it is to fall into its clutches inadvertently.

the notion of a monopoly is biased communist rhetoric that puts the collective above the individual creator.

Argumentum ad hominem. The notion is simply descriptive; if you find that the negative connotations it carries nowadays are a burden, then you should not use the word "monopoly" yourself as you did with the attorney.

You don't infringe upon copyrights inadvertently in our field.

Selective thinking. You perfectly can, as was shown after the SCO accusations by the 200 lines or so inadvertently introduced by SGI, in the Linksys router affair and many other unwanted GPL violations, or in Moglen's discussion about proprietary kernel modules; and that is only in the reduced field of Linux kernel development.

Taken in context, you might view places like sourceforge an invitation to infringe inadvertently -- an unexperienced developer can take some code and put it inside a proprietary program, thinking it is OK since it is "freeware".

[...] you know when you breach a copyright. The chance of someone coincidentally writing a game server that happens to have the battle.net protocol [...] Therefore, it's not a monpoly.

Non sequitur. Protocols are not protected by copyright; as Ross explained above, in the bnetd case copyright law was not invoked, but the DMCA.

In fact, a profit motive is a major reason for some forms of progress, while it's none (or a hinderance) to others. In case of computer games, it's very clear to any unbiased person that cinematic games are developed by huge teams of full-time people with a substantial budget.

Begging the question. It is clear that expensive proprietary games are expensive and proprietary.

For the rich Blizzard-style computer games that are like cinematic productions, it's clear that the open-source approach doesn't work.

Hasty conclusion. In 1990 you could have said "For a rich kernel that supports thousands of devices, it's clear that the open-source approach doesn't work"; in 1995 equivalently "For a rich operating system that provides services for big corporations...".

At this point in history, IPRs are considered a major success story, the foundation of the modern economy, and also the only major area in which the U.S. has a trade surplus vs. Europe and Asia.

Burden of proof. Considered by whom? You do not show your sources and only give a vague reminiscence of unnamed authorities.

About 100 years ago, our great-great-grandmothers had to fight for their suffrage. Today, women's suffrage is unquestionable in the western societies.

Appeal to emotion (and to the gallery for good measure). The argument is just included to induce emotions and sympathy for your cause, since it has nothing to do with copyright or computers. In fact, the opposite might be argued: in women's suffrage a restriction was lifted, while here restrictions are being expanded.

Politicians and judges alike, with a very few exceptions, share the absolutely firm belief that an author is entitled to a variety of things that some of you here may not like.

Appeal to authority, if I ever saw one. Qualified sources support your position.

In other application categories, you can combine a profit motive with an open-source model (Red Hat, MySQL AB...). In games, it doesn't work for now.

And another hasty conclusion, combined with biased sample. There are actually very good games licensed under the GPL, but you obviously do not consider them "cinematic"; there are actually inferior proprietary games, but you are obviously not talking about them. Also, consider that today's free software games are plainly superior to commercial games of just 15 years ago.

The dangerous effect of a ruling in favor of bnetd would have gone way beyond computer games.

Appeal to fear. You want to make the audience believe your point of view by deriving horrible consequences from the opposite.

Interfering with modules that are technically separate, but must be viewed as legally/commercially parts of the same, would have the same effect as letting people interfere with modules of a single piece of executable code.

Slippery slope. It has nothing to do, and I don't see the evil effect of interfering with modules.

[...] considering that bnetd breaks a business model and enables piracy [...]

Anecdotal evidence. The case that worries you is so relevant that it defines the situation of "intellectual property".

I hope that the EFF has learned its lesson from this defeat in court, and that they will take on more honorable and meritorious cases in the future.

Appeal to ridicule. They were defeated in a pitiful cause, so they should learn the right and true way: yours.

You need lawmakers (in such fields as patent legislation), you need governmental authorities (such as in anti-trust proceedings), and government use of software is strategically important.

This one is difficult to catalogue; I'd say burden of proof. It is not clear that we need them since free software has grown nicely without them; it is clear that they need us, they will be the users.

However, I do hope that some (possibly even a silent majority) understand this strategic worry.

A very clear appeal to popularity, similar to the hilarious "lurkers support me in email".

I would say that if you want people to listen to you, you should not resort to these fallacious arguments, but state your case plainly instead. Also, since you have been and still are closely related to Blizzard, your motives are highly suspicious in the bnetd case; you might just be trying to score a point with current management. Therefore you should use a different example.

Dangerous anti-IP terminology and philosophy

Posted Aug 27, 2005 3:22 UTC (Sat) by dvdeug (subscriber, #10998) [Link] (1 responses)

You assume that this is a restriction of existing copyright. It's not; the case was completely unprecedented. To claim that we're trying to restrict existing copyright is specious. In the analogy for women's suffrage, it's like claiming that the Equal Rights Amendment was just one part of women's suffrage, when it clearly was not.

"The chance of someone coincidentally writing a game server that happens to have the battle.net protocol is far lower than that of winning every lottery in the world during someone's entire lifetime." So what? The protocol is not copyrighable.

As for your claim that the client and server are one program, let's consider MS-DOS. If the client and server for Warcraft are one program, then command.com and cp.com and the rest of MS-DOS are one program. Are you claiming that I can't replace cp.com or command.com with my custom, original, programs? Does the law prohibit selling alternate "window managers" for Microsoft Windows?

More directly to client and server, when I buy a program on a disc, I expect it to be complete. And lo and behold, people stuck Warcraft into their computers and it ran just fine. How can some piece of code somewhere else be part of the same program?

"You can't force Blizzard to allow interference with its software that you are perfectly allowed to do with an open-source program." If you've been around lawyers, you should know the importance of using clear language. I can interfere with Blizzard's software in many ways, perfectly legally and ethicially. I'm not forcing Blizzard to do anything; I'm demanding Blizzard don't interfere with me using the program the way I want.

Dangerous anti-IP terminology and philosophy

Posted Aug 27, 2005 5:40 UTC (Sat) by Ross (guest, #4065) [Link]

Another interesting aspect of the idea that the client and server are the same program comes up when the server interacts with more than one client program. So are Starcraft, Warcraft, Diablo, etc. all the same program? They all connect to the same Battle.net server.

Does Blizzard also claim ownership of bots which connect to Battle.net, or are those somehow different because they are not games? What if one was part of a game?

Dangerous anti-IP terminology and philosophy

Posted Sep 1, 2005 8:21 UTC (Thu) by Wol (subscriber, #4433) [Link]

At this point in history, IPRs are considered a major success story, the foundation of the modern economy, and also the only major area in which the U.S. has a trade surplus vs. Europe and Asia.

As man_ls said, "burden of proof". The patent system is getting to be fundamentally broken - why else is Florian fighting it? And how come that all of the fastest growing world economies basically ignore patents? China, the "tiger economies", and for good measure I'll add "early 20th Century US" to the list as well. Oh - and I'll add the pharmaceutical industry to the list of examples of a pathological patent system too - there's a LOT of evidence that it belongs there.

Copyrights - I think "Mickey Mouse Copyright Extension Act" is pretty much all that needs to be said there, although I'll add the film soundtrack industry to that too. No halfway decent (or pretty crap, even) composer is now that keen on writing film music. The studios demand "all rights", which means suddenly that if you then write another piece that even remotely resembles your earlier piece (something that's very hard NOT to do) you promptly get "approached" by the film industry for breach of copyright!

About the only IPR that, in my view, can be declared unambiguously good is trademarks. Who's purpose is merely to guarantee that when you shell out good money, you're really getting what you think you're getting. They don't stop you making cheap imitations. They don't stop you making expensive imitations. They just insure that if you make an imitation, your customer knows it's an imitation.

Cheers,
Wol

Copyright vs. Author's Right

Posted Aug 25, 2005 7:53 UTC (Thu) by cantsin (guest, #4420) [Link] (2 responses)

Several posters suggested that Florian Mueller's arguments were based on his background in a different, i.e. continental European legal system. This is correct, and I just would like to back it with facts:

Continental European law doesn't have copyright, but an author's right ("droit d'auteur", "Urheberrecht", "auteursrecht" etc.).
The crucial difference between author's right and copyright is that author's right is "inalienable", i.e. it can't be transferred from the author to another party. If I - as a German - create a work, the author's right will remain mine, and can't be owned by my publisher or employer, until its expiration 70 years after my death.
However, continental European publishers and employers routinely circumvent the inalienability of author's right by making the author/creator sign contracts that grants them exclusive "representation" of their author's right (similar to a lawyer representing the rights of a client)
For authors/creators of free software and free content, the author's right mostly provides advantages because, unless they sign a contract, they are free to release their work under a free license, and no employer can claim rights on it.
The Blizzard case, however, demonstrates advantages of Anglo-American copyright to continental author's right. Another example is the policy that developers of GNU software sign over copyright to the FSF. This is not possible or legal within continental European legislation.

Copyright vs. Author's Right

Posted Aug 25, 2005 8:00 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (1 responses)

Prior to your posting, I had already acknowledged that systematic difference in my posting dated Aug 25, 2005 6:42 UTC (Thu), but I also explained that everything I said was based on the assumption that someone has a certain right, irrespective of whether it's a constitution, a code of law, case law or an agreement that creates that right. The key thing is that if someone has that right, you always have the alternative to build a new stadium from scratch.

Copyright vs. Author's Right

Posted Aug 25, 2005 18:20 UTC (Thu) by maderik (guest, #28840) [Link]

if someone has that right...

There are three parts to this "if" to cause it -- and thus the premise that follows it -- to fail:

That there is such a right recognized in the US. The best example I can give of why such a right is not an inherent right in the states is the issue a while back w.r.t colorization of B&W movies. This required new law in the US. As I recall the discussions, European nations did not feel the need to pass similar laws because of their artists' rights traditions were sufficient protection.
That the bnet server violates the artists' rights even as European countries typically see them. Your stadium analogy fails because that is a modification of an original such that the original no longer exists. Your case would be stronger if a new and different stadium was proposed using the modified design and that was rejected. Even then, you've not made any convincing argument that the bnet server changes any of the game's artistic attributes -- as opposed to functional attributes -- that are the domain of artists' rights. Does it violate an artist's right if the new stadium is identical in external appearance but uses a gravel foundation instead of a sand foundation?
Even if such a right exists, that no other rights superceed it. Specifically the rights of use and interoperability. If the changes are so subtle that the impact to the artist's rights is minimal, then do the user's rights (e.g. first sale, etc.) outweigh the artists rights in this case?

Won't make further contributions to this online debate now

Posted Aug 25, 2005 8:36 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (4 responses)

Sorry, but things have to come to an end, and it doesn't look to me like the navigation on an HTML page like this benefits from ever more contributions. We've already had a couple of cases in which something was stated by someone to "correct" my statements while I had previously said the same, more or less.

Now that I've explained my thinking at great length, I'd rather devote the same time to the book that I'm writing on how we prevented the ratification of the European software patent directive. That book will also contain a variety of programmatic statements on software patents (and on IPRs in general).

To me, the important thing is the starting point of all of this: Negating author's rights that politicians (and judges) consider to be beyond reasonable doubt can position the entire open-source movement (even if only a vocal minority of radicals is responsible) outside of the consensus area of a vast political majority, and the price for that is really high.

By issuing a press release that commented on the bnetd case in a very short format, I may have inadvertently provoked the kind of reaction that came from Jon.

I'd be happy to talk about this interesting set of issues some more, but this is neither the time nor the place for more of that. Maybe there will be an opportunity at some FOSS or IP or digital consumer rights conference. If I happen to participate in such an event, any of you can contact me there, or if you organize such an event, I might be available to participate as a speaker (for logistical reasons, that's far more likely to work out for a conference in Munich or Brussels than in San Fran or Tokyo).

Think about what I said because it's essential to the future success and proliferation of open source. So long.

Won't make further contributions to this online debate now

Posted Aug 25, 2005 8:58 UTC (Thu) by cross (guest, #13601) [Link] (1 responses)

You don't think that book is somewhat premature? You really don't think that we won't get software patents in Europe next time round?

Won't make further contributions to this online debate now

Posted Aug 25, 2005 9:36 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

This almost makes me feel like a New Year's resolutioner who resumes smoking on January 2nd ;-) but it's a different topic now, swpats, so just one more reply.

The fact is that we have swpats in Europe. The European Patent Office and national patent offices have granted tens of thousands of them.

Right now, however, their legal basis is rather weak since article 52 of the European Patent Convention expressly excludes "programs for computers [as such]" from the scope of patentable subject matter. VP Cheney's former employer Halliburton just lost a case in the High Court of England and Wales, which declared a software patent invalid, and the judge explained in his ruling that the EU directive would have softened up the criteria (in other words, it would have legalized many swpats that the courts can overturn right now).

It's true that the pro-swpat forces won't quit, nor will we. Right now we have the statutory law that we want and they have the case law at the level of the EPO (not in national jurisdictions) that they want. Sooner or later, a point will have to be reached at which either the EPO changes its practice and fully complies with the law (that's what we want) or national jurisdictions accept the EPO approach (that's what the pro-swpat forces want).

The fact of the matter is that the other camp has now had two failed attempts at changing the statutory law in their favor. They held a diplomatic conference in the year 2000, and the FFII (and others, but primarily the FFII) mobilized some resistance. The EU directive was just a fallback plan of the other camp because of that earlier failure, and now that Plan B has failed as well, so there'll be a "Plan B2" (a new attempt at pushing that kind of directive through, which is what they did when they didn't get gene patents the first time) or a "Plan C" (a different approach, such as through the community patent directive).

The European Parliament will return from its summer break on Monday, and that's when the debate will basically be continued in one way or another.

However, a legislative process which for the first time in the history of the European Union resulted in the outright rejection of a proposal of the EU Council (i.e., EU member state governments) by the European Parliament, and which produced a variety of interesting and funny anecdotes, deserves to be chronicled regardless of if and when the issue itself will make it back on the political agenda.

Won't make further contributions to this online debate now

Posted Aug 27, 2005 3:32 UTC (Sat) by dvdeug (subscriber, #10998) [Link]

"Negating author's rights that politicians (and judges) consider to be beyond reasonable doubt" is begging the argument. The author has no rights in the US once he's signed away his copyright. Moreover, the Blizzard case is far from something that politicians and judges consider to be beyond reasonable doubt; it was unprecedented and debatable, and I suspect many judges and politicians would agree with bnetd's side.

Hallelujah!

Posted Aug 27, 2005 10:14 UTC (Sat) by grouch (guest, #27289) [Link]

Does this mean I won't have to wade through any more of your pseudo-religious, condescending pontifications about your superior right to control us peasants?

On the defense of piracy enablers

Posted Aug 25, 2005 9:23 UTC (Thu) by dvrabel (subscriber, #9500) [Link]

It should be pointed out that Battle.net is a player matching service with some bells and whistles (and if it's anything like Gamespy's 'service' it is or has been poor). Thus to claim it's an integral part of the game is a bit of stretch.

bnetd FAQ

Blizzard should have gone the route that Bioware went with Neverwinter Nights: make the authentication server separate from the (optional) player-matching service. This would permit third party player matching services without them having to circumvent authorization checks.

On the defense of piracy enablers

Posted Aug 25, 2005 14:42 UTC (Thu) by ajcpi (guest, #1122) [Link]

I have only one issue. The use of the term "piracy" for copyright infringement is way out of line.

'U.N. Conventions on the Law of the Sea ... defines the crime of piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends."' http://www.legalaffairs.org/issues/July-August-2005/featu...

Using the term piracy to describe copyright infringement both diminishes the meaning of the term for actual pirates, and overstates the harm and seriousness of copyright infringement.
a.

On the defense of rational debate

Posted Aug 25, 2005 23:05 UTC (Thu) by bignose (subscriber, #40) [Link]

Please, can we stop playing into the hands of the "intellectual property" cartel with use of the word "piracy" to mean something it's not.

http://www.gnu.org/philosophy/words-to-avoid.html#Piracy

Piracy is a terrible crime: attacking ships on the open sea, doing violence against those on board and robbing them. It is a morally reprehensible crime, with little possible defense.

Copyright infringement is a far lesser crime: no violence is done, no property is stolen. It is far less clear how morally culpable (as opposed to legally culpable) a person guilty of copyright infringement is.

Please stop promoting the conflation of the two terms; it only defeats rational debate on the topic. To mis-use "piracy" to refer to copyright infringement pre-supposes a moral equivalence of the crimes that is completely unjustified, and only helps those who want extreme measures enforced.