#eff

[mostlysignssomeportents]

Good riddance to the Open Gaming License

Last week, Gizmodo’s Linda Codega caught a fantastic scoop — a leaked report of Hasbro’s plan to revoke the decades-old Open Gaming License, which subsidiary Wizards Of the Coast promulgated as an allegedly open sandbox for people seeking to extend, remix or improve Dungeons and Dragons:

https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634

The report set off a shitstorm among D&D fans and the broader TTRPG community — not just because it was evidence of yet more enshittification of D&D by a faceless corporate monopolist, but because Hasbro was seemingly poised to take back the commons that RPG players and designers had built over decades, having taken WOTC and the OGL at their word.

Gamers were right to be worried. Giant companies love to rugpull their fans, tempting them into a commons with lofty promises of a system that we will all have a stake in, using the fans for unpaid creative labor, then enclosing the fans’ work and selling it back to them. It’s a tale as old as CDDB and Disgracenote:

https://en.wikipedia.org/wiki/CDDB#History

(Disclosure: I am a long-serving volunteer board-member for MetaBrainz, which maintains MusicBrainz, a free, open, community-managed and transparent alternative to Gracenote, explicitly designed to resist the kind of commons-stealing enclosure that led to the CDDB debacle.)

https://musicbrainz.org/

Free/open licenses were invented specifically to prevent this kind of fuckery. First there was the GPL and its successor software licenses, then Creative Commons and its own successors. One important factor in these licenses: they contain the word “irrevocable.” That means that if you build on licensed content, you don’t have to worry about having the license yanked out from under you later. It’s rugproof.

Now, the OGL does not contain the word “irrevocable.” Rather, the OGL is “perpetual.” To a layperson, these two terms may seem interchangeable, but this is one of those fine lawerly distinctions that trip up normies all the time. In lawyerspeak, a “perpetual” license is one whose revocation doesn’t come automatically after a certain time (unlike, say, a one-year car-lease, which automatically terminates at the end of the year). Unless a license is “irrevocable,” the licensor can terminate it whenever they want to.

This is exactly the kind of thing that trips up people who roll their own licenses, and people who trust those licenses. The OGL predates the Creative Commons licenses, but it neatly illustrates the problem with letting corporate lawyers — rather than public-interest nonprofits — unleash “open” licenses on an unsuspecting, legally unsophisticated audience.

The perpetual/irrevocable switcheroo is the least of the problems with the OGL. As Rob Bodine— an actual lawyer, as well as a dice lawyer — wrote back in 2019, the OGL is a grossly defective instrument that is significantly worse than useless.

https://gsllcblog.com/2019/08/26/part3ogl/

The issue lies with what the OGL actually licenses. Decades of copyright maximalism has convinced millions of people that anything you can imagine is “intellectual property,” and that this is indistinguishable from real property, which means that no one can use it without your permission.

The copyrightpilling of the world sets people up for all kinds of scams, because copyright just doesn’t work like that. This wholly erroneous view of copyright grooms normies to be suckers for every sharp grifter who comes along promising that everything imaginable is property-in-waiting (remember SpiceDAO?):

https://onezero.medium.com/crypto-copyright-bdf24f48bf99

Copyright is a lot more complex than “anything you can imagine is your property and that means no one else can use it.” For starters, copyright draws a fundamental distinction between ideas and expression. Copyright does not apply to ideas — the idea, say, of elves and dwarves and such running around a dungeon, killing monsters. That is emphatically not copyrightable.

Copyright also doesn’t cover abstract systems or methods — like, say, a game whose dice-tables follow well-established mathematical formulae to create a “balanced” system for combat and adventuring. Anyone can make one of these, including by copying, improving or modifying an existing one that someone else made. That’s what “uncopyrightable” means.

Finally, there are the exceptions and limitations to copyright — things that you are allowed to do with copyrighted work, without first seeking permission from the creator or copyright’s proprietor. The best-known exception is US law is fair use, a complex doctrine that is often incorrectly characterized as turning on “four factors” that determine whether a use is fair or not.

In reality, the four factors are a starting point that courts are allowed and encouraged to consider when determining the fairness of a use, but some of the most consequential fair use cases in Supreme Court history flunk one, several, or even all of the four factors (for example, the Betamax decision that legalized VCRs in 1984, which fails all four).

Beyond fair use, there are other exceptions and limitations, like the di minimis exemption that allows for incidental uses of tiny fragments of copyrighted work without permission, even if those uses are not fair use. Copyright, in other words, is “fact-intensive,” and there are many ways you can legally use a copyrighted work without a license.

Which brings me back to the OGL, and what, specifically, it licenses. The OGL is a license that only grants you permission to use the things that WOTC can’t copyright — “the game mechanic [including] the methods, procedures, processes and routines.” In other words, the OGL gives you permission to use things you don’t need permission to use.

But maybe the OGL grants you permission to use more things, beyond those things you’re allowed to use anyway? Nope. The OGL specifically exempts:

Product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark…

Now, there are places where the uncopyrightable parts of D&D mingle with the copyrightable parts, and there’s a legal term for this: merger. Merger came up for gamers in 2018, when the provocateur Robert Hovden got the US Copyright Office to certify copyright in a Magic: The Gathering deck:

https://pluralistic.net/2021/08/14/angels-and-demons/#owning-culture

If you want to learn more about merger, you need to study up on Kregos and Eckes, which are beautifully explained in the “Open Intellectual Property Casebook,” a free resource created by Jennifer Jenkins and James Boyle:

https://web.law.duke.edu/cspd/openip/#q01

Jenkins and Boyle explicitly created their open casebook as an answer to another act of enclosure: a greedy textbook publisher cornered the market on IP textbook and charged every law student — and everyone curious about the law — $200 to learn about merger and other doctrines.

As EFF Senior Staff Attorney Kit Walsh writes in her must-read analysis of the OGL, this means “the only benefit that OGL offers, legally, is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability.”

https://www.eff.org/deeplinks/2023/01/beware-gifts-dragons-how-dds-open-gaming-license-may-have-become-trap-creators

But like I said, it’s not just that the OGL fails to give you rights — it actually takes away rights you already have to D&D. That’s because — as Walsh points out — fair use and the other copyright limitations and exceptions give you rights to use D&D content, but the OGL is a contract whereby you surrender those rights, promising only to use D&D stuff according to WOTC’s explicit wishes.

“For example, absent this agreement, you have a legal right to create a work using noncopyrightable elements of D&D or making fair use of copyrightable elements and to say that that work is compatible with Dungeons and Dragons. In many contexts you also have the right to use the logo to name the game (something called “nominative fair use” in trademark law). You can certainly use some of the language, concepts, themes, descriptions, and so forth. Accepting this license almost certainly means signing away rights to use these elements. Like Sauron’s rings of power, the gift of the OGL came with strings attached.”

And here’s where it starts to get interesting. Since the OGL launched in 2000, a huge proportion of game designers have agreed to its terms, tricked into signing away their rights. If Hasbro does go through with canceling the OGL, it will release those game designers from the shitty, deceptive OGL.

According to the leaks, the new OGL is even worse than the original versions — but you don’t have to take those terms! Notwithstanding the fact that the OGL says that “using…Open Game Content” means that you accede to the license terms, that is just not how contracts work.

Walsh: “Contracts require an offer, acceptance, and some kind of value in exchange, called ‘consideration.’ If you sell a game, you are inviting the reader to play it, full stop. Any additional obligations require more than a rote assertion.”

“For someone who wants to make a game that is similar mechanically to Dungeons and Dragons, and even announce that the game is compatible with Dungeons and Dragons, it has always been more advantageous as a matter of law to ignore the OGL.”

Walsh finishes her analysis by pointing to some good licenses, like the GPL and Creative Commons, “written to serve the interests of creative communities, rather than a corporation.” Many open communities — like the programmers who created GNU/Linux, or the music fans who created Musicbrainz, were formed after outrageous acts of enclosure by greedy corporations.

If you’re a game designer who was pissed off because the OGL was getting ganked — and if you’re even more pissed off now that you’ve discovered that the OGL was a piece of shit all along — there’s a lesson there. The OGL tricked a generation of designers into thinking they were building on a commons. They weren’t — but they could.

This is a great moment to start — or contribute to — real open gaming content, licensed under standard, universal licenses like Creative Commons. Rolling your own license has always been a bad idea, comparable to rolling your own encryption in the annals of ways-to-fuck-up-your-own-life-and-the-lives-of-many-others. There is an opportunity here — Hasbro unintentionally proved that gamers want to collaborate on shared gaming systems.

That’s the true lesson here: if you want a commons, you’re not alone. You’ve got company, like Kit Walsh herself, who happens to be a brilliant game-designer who won a Nebula Award for her game “Thirsty Sword Lesbians”:

https://evilhat.com/product/thirsty-sword-lesbians/

[Image ID: A remixed version of David Trampier's 'Eye of Moloch,' the cover of the first edition of the AD&D Player's Handbook. It has been altered so the title reads 'Advanced Copyright Fuckery. Unclear on the Concept. That's Just Not How Licenses Work. No, Seriously.' The eyes of the idol have been replaced by D20s displaying a critical fail '1.' Its chest bears another D20 whose showing face is a copyright symbol.]

[robosylveon]

a very polite cat so be nice

[sayonarawildhearts]

CITIZEN SLEEPER — ANNIVERSARY WALLPAPERS

[floridaboiler]

[marsdemo]

half the bandcamp team was just laid off, following epic's decision to sell bandcamp to songtradr (after acquiring bc in early 2022). much of this wave of layoffs included their editorial team, bandcamp daily. please keep your eye on their union, bandcamp united (+ their twitter), for next steps. it would probably also be a good idea to start archiving articles and downloading your digital purchases now, since it seems that no one's really sure what the next steps are for the platform

[commiepinkofag]

Threat of KOSA Remains Despite Revisions

KOSA now has the support of 60 senators.

The larger organizations for 'respectable gays' like HRC, GLAAD & GLSEN have withdrawn opposition against KOSA in its latest draft.

These national conservative gay organizations continue to throw queer & trans folx under the bus.

American Civil Liberties Union still opposes KOSA

“At its core, KOSA is still an internet censorship bill that will harm the very communities it claims to protect,” said Jenna Leventoff, ACLU senior policy counsel. “The First Amendment guarantees everyone, including children, the right to access information free from censorship. We urge lawmakers to continue to amend this bill so the government is no longer the one determining what content is or is not fit for children.”

From ACLU:

Requiring or incentivizing age-verification chills speech for adults and minors

“Duty of Care” requirements still entice platforms to censor content

Government interference in online speech is unconstitutional

Take Action

[titleknown]

You know that one bad AI bill on likeness rights I talked about a bit ago? Yeah, there's another one advancing, and it's also bad, and if you don't believe me, then at least believe the EFF...

[seohyun0306]

Extremely proud to be a South African. The nation’s boyfriend never misses. The eff has been doing more for the Palestinian cause than the entire government of some countries.

[gigglecoffin]

made cyber sims out of some of my ocs/pplayed dress up w my other cyber sims

[dollb0nezz]

~what a mess~

[mostlysignssomeportents]

Privacy first

The internet is embroiled in a vicious polycrisis: child safety, surveillance, discrimination, disinformation, polarization, monopoly, journalism collapse – not only have we failed to agree on what to do about these, there's not even a consensus that all of these are problems.

But in a new whitepaper, my EFF colleagues Corynne McSherry, Mario Trujillo, Cindy Cohn and Thorin Klosowski advance an exciting proposal that slices cleanly through this Gordian knot, which they call "Privacy First":

https://www.eff.org/wp/privacy-first-better-way-address-online-harms

Here's the "Privacy First" pitch: whatever is going on with all of the problems of the internet, all of these problems are made worse by commercial surveillance.

Worried your kid is being made miserable through targeted ads? No surveillance, no targeting.

Worried your uncle was turned into a Qanon by targeted disinformation? No surveillance, no targeting. Worried that racialized people are being targeted for discriminatory hiring or lending by algorithms? No surveillance, no targeting.

Worried that nation-state actors are exploiting surveillance data to attack elections, politicians, or civil servants? No surveillance, no surveillance data.

Worried that AI is being trained on your personal data? No surveillance, no training data.

Worried that the news is being killed by monopolists who exploit the advantage conferred by surveillance ads to cream 51% off every ad-dollar? No surveillance, no surveillance ads.

Worried that social media giants maintain their monopolies by filling up commercial moats with surveillance data? No surveillance, no surveillance moat.

The fact that commercial surveillance hurts so many groups of people in so many ways is terrible, of course, but it's also an amazing opportunity. Thus far, the individual constituencies for, say, saving the news or protecting kids have not been sufficient to change the way these big platforms work. But when you add up all the groups whose most urgent cause would be significantly improved by comprehensive federal privacy law, vigorously enforced, you get an unstoppable coalition.

America is decades behind on privacy. The last really big, broadly applicable privacy law we passed was a law banning video-store clerks from leaking your porn-rental habits to the press (Congress was worried about their own rental histories after a Supreme Court nominee's movie habits were published in the Washington City Paper):

https://en.wikipedia.org/wiki/Video_Privacy_Protection_Act

In the decades since, we've gotten laws that poke around the edges of privacy, like HIPAA (for health) and COPPA (data on under-13s). Both laws are riddled with loopholes and neither is vigorously enforced:

https://pluralistic.net/2023/04/09/how-to-make-a-child-safe-tiktok/

Privacy First starts with the idea of passing a fit-for-purpose, 21st century privacy law with real enforcement teeth (a private right of action, which lets contingency lawyers sue on your behalf for a share of the winnings):

https://www.eff.org/deeplinks/2022/07/americans-deserve-more-current-american-data-privacy-protection-act

Here's what should be in that law:

A ban on surveillance advertising:

https://www.eff.org/deeplinks/2022/03/ban-online-behavioral-advertising

Data minimization: a prohibition on collecting or processing your data beyond what is strictly necessary to deliver the service you're seeking.

Strong opt-in: None of the consent theater click-throughs we suffer through today. If you don't give informed, voluntary, specific opt-in consent, the service can't collect your data. Ignoring a cookie click-through is not consent, so you can just bypass popups and know you won't be spied on.

No preemption. The commercial surveillance industry hates strong state privacy laws like the Illinois biometrics law, and they are hoping that a federal law will pre-empt all those state laws. Federal privacy law should be the floor on privacy nationwide – not the ceiling:

https://www.eff.org/deeplinks/2022/07/federal-preemption-state-privacy-law-hurts-everyone

No arbitration. Your right to sue for violations of your privacy shouldn't be waivable in a clickthrough agreement:

https://www.eff.org/deeplinks/2022/04/stop-forced-arbitration-data-privacy-legislation

No "pay for privacy." Privacy is not a luxury good. Everyone deserves privacy, and the people who can least afford to buy private alternatives are most vulnerable to privacy abuses:

https://www.eff.org/deeplinks/2020/10/why-getting-paid-your-data-bad-deal

No tricks. Getting "consent" with confusing UIs and tiny fine print doesn't count:

https://www.eff.org/deeplinks/2019/02/designing-welcome-mats-invite-user-privacy-0

A Privacy First approach doesn't merely help all the people harmed by surveillance, it also prevents the collateral damage that today's leading proposals create. For example, laws requiring services to force their users to prove their age ("to protect the kids") are a privacy nightmare. They're also unconstitutional and keep getting struck down.

A better way to improve the kid safety of the internet is to ban surveillance. A surveillance ban doesn't have the foreseeable abuses of a law like KOSA (the Kids Online Safety Act), like bans on information about trans healthcare, medication abortions, or banned books:

https://www.eff.org/deeplinks/2023/05/kids-online-safety-act-still-huge-danger-our-rights-online

When it comes to the news, banning surveillance advertising would pave the way for a shift to contextual ads (ads based on what you're looking at, not who you are). That switch would change the balance of power between news organizations and tech platforms – no media company will ever know as much about their readers as Google or Facebook do, but no tech company will ever know as much about a news outlet's content as the publisher does:

https://www.eff.org/deeplinks/2023/05/save-news-we-must-ban-surveillance-advertising

This is a much better approach than the profit-sharing arrangements that are being trialed in Australia, Canada and France (these are sometimes called "News Bargaining Codes" or "Link Taxes"). Funding the news by guaranteeing it a share of Big Tech's profits makes the news into partisans for that profit – not the Big Tech watchdogs we need them to be. When Torstar, Canada's largest news publisher, struck a profit-sharing deal with Google, they killed their longrunning, excellent investigative "Defanging Big Tech" series.

A privacy law would also protect access to healthcare, especially in the post-Roe era, when Big Tech surveillance data is being used to target people who visit abortion clinics or secure medication abortions. It would end the practice of employers forcing workers to wear health-monitoring gadget. This is characterized as a "voluntary" way to get a "discount" on health insurance – but in practice, it's a way of punishing workers who refuse to let their bosses know about their sleep, fertility, and movements.

A privacy law would protect marginalized people from all kinds of digital discrimination, from unfair hiring to unfair lending to unfair renting. The commercial surveillance industry shovels endless quantities of our personal information into the furnaces that fuel these practices. A privacy law shuts off the fuel supply:

https://www.eff.org/deeplinks/2023/04/digital-privacy-legislation-civil-rights-legislation

There are plenty of ways that AI will make our lives worse, but copyright won't fix it. For issues of labor exploitation (especially by creative workers), the answer lies in labor law:

https://pluralistic.net/2023/10/01/how-the-writers-guild-sunk-ais-ship/

And for many of AI's other harms, a muscular privacy law would starve AI of some of its most potentially toxic training data:

https://www.businessinsider.com/tech-updated-terms-to-use-customer-data-to-train-ai-2023-9

Meanwhile, if you're worried about foreign governments targeting Americans – officials, military, or just plain folks – a privacy law would cut off one of their most prolific and damaging source of information. All those lawmakers trying to ban Tiktok because it's a surveillance tool? What about banning surveillance, instead?

Monopolies and surveillance go together like peanut butter and chocolate. Some of the biggest tech empires were built on mountains of nonconsensually harvested private data – and they use that data to defend their monopolies. Legal privacy guarantees are a necessary precursor to data portability and interoperability:

https://www.eff.org/wp/interoperability-and-privacy

Once we are guaranteed a right to privacy, lawmakers and regulators can order tech giants to tear down their walled gardens, rather than relying on tech companies to (selectively) defend our privacy:

https://pluralistic.net/2022/11/14/luxury-surveillance/#liar-liar

The point here isn't that privacy fixes all the internet's woes. The policy is "privacy first," not "just privacy." When it comes to making a new, good internet, there's plenty of room for labor law, civil rights legislation, antitrust, and other legal regimes. But privacy has the biggest constituency, gets us the most bang for the buck, and has the fewest harmful side-effects. It's a policy we can all agree on, even if we don't agree on much else. It's a coalition in potentia that would be unstoppable in reality. Privacy first! Then – everything else!

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/12/06/privacy-first/#but-not-just-privacy

Image: Cryteria (modified) https://commons.wikimedia.org/wiki/File:HAL9000.svg

CC BY 3.0 https://creativecommons.org/licenses/by/3.0/deed.en

[randokatz]

You guys remember when EFF was rlly popular on here and everyone made fan art and there were even ask blogs about it? Well I dont!

I got hyper fixated on EFF last year and now I'm sad that it's no longer popular (I total haven't been stalking the escape from furnace tag at all btw)

Anyway here's some drawing I did of the cast cuz uh please let this get a bigger fandom again please

(Lmao try and guess who is who)

[sayonarawildhearts]

ULTRAKILL — VIOLENCE WALLPAPERS

[drlooneylegs]

[marsdemo]

We must strategically focus on a relatively smaller number of carefully selected companies and products for maximum impact. Companies that play a clear and direct role in Israel’s crimes and where there is real potential for winning, as was the case with, among others, G4S, Veolia, Orange, Ben & Jerry’s and Pillsbury. Compelling huge, complicit companies, through strategic and context-sensitive boycott and divestment campaigns, to end their complicity in Israeli apartheid and war crimes against Palestinians sends a very powerful message to hundreds of other complicit companies that “your time will come, so get out before it’s too late!” Many of the prohibitively long lists going viral on social media do the exact opposite of this strategic and impactful approach. They include hundreds of companies, many without credible evidence of their connection to Israel’s regime of oppression against Palestinians, making them ineffective.

Consumer boycott targets - The BDS movement calls for a complete boycott of these brands carefully selected due to the company's proven record of complicity in Israeli apartheid. (Siemens, Puma, Carrefour, AXA, Hewlett Packard (HP), SodaStream, Ahava, RE/MAX, Israeli produce in your supermarkets)

Divestment targets - The BDS movement is pressuring governments, institutions and investment funds to exclude and divest from as many complicit companies as practical, especially weapons manufacturers, banks, and companies listed in the UN database of business involved in Israel’s illegal settlement enterprise, as well as the WhoProfits and AFSC Investigate databases of companies enabling the occupation. Below we give some of the targets we are campaigning against. (Elbit Systems, HD Hyundai/Volvo/CAT/JCB, Barclays, CAF, Chevron, HikVision, TKH Security)

Pressure (non-boycott) targets - The BDS movement actively calls for pressure campaigns against these brands and services due to their complicity in Israeli apartheid. We have not, on strategic grounds, called for a boycott of these brands and services, instead we strategically call on supporters and institutions to mount other forms of pressure on them until they end their complicity in Israeli apartheid. (Google and Amazon, Airbnb/Booking/Expedia, Disney)

Organic boycott targets - The BDS movement did not initiate these grassroots boycott campaigns but is in support of them due to these brands openly supporting Israel’s genocide against Palestinians. (McDonald's, Burger King, Papa John's, Pizza Hut, WIX, etc)

— From the BDS Movement Website, originally posted November 5th 2023 and edited for clarification November 8th 2023